"II. Because, if the committee were by law authorized to examine and determine the legality and extent of the sheriff's authority and commission, we are of opinion that Richard R. Smith, at the time he received and transmitted the ballots, was the lawful sheriff of Otsego. By the constitution, the sheriff, whatever may be the form of his commission, must hold his office during the pleasure of the Council of Appointment; and, by the law of the land, he must continue therein until another is appointed and takes upon himself the office. Richard R. Smith, having been appointed on the 27th of February, 1791, and Benjamin Gilbert having been appointed on the 30th of March, 1792, but not having qualified or taken upon himself the office until Richard R. Smith had received and forwarded the same, must be deemed the lawful sheriff of the county. The uniform practice which has prevailed since the establishment of the constitution, precludes all doubt respecting its true construction on this point. For although the commissions of the sheriffs are for one year, they have nevertheless continued to exercise the office until others were appointed and entered upon the execution thereof, which has often been long after the expiration of the year, and sometimes after the same person has remained in office more than four years successively. And such sheriffs, sometimes after the expiration of their year, at others after having held the office for four successive years, have received and transmitted ballots for governor, lieutenant-governor, and senators, which ballots have on former elections been received and canvassed; and even upon the present canvass, the committee have canvassed the ballots taken in the counties of Kings, Orange, and Washington, notwithstanding the year had expired for which the sheriffs of these counties were commissioned, and no new commissions had been issued. Hence the sheriffs of those counties, in receiving and transmitting the ballots, must have acted under their former commissions, since a mere appointment without a commission, and a compliance with the requisites prescribed by law, could not, in our opinion, give any authority as sheriff to the person so appointed.
"III. Because, if Richard R. Smith, at the time he received and forwarded the ballots, was not sheriff, the county was without a sheriff, a position too mischievous to be established by a doubtful construction of law.
"IV. Because, if Richard R. Smith was not of right sheriff of the county at the time he received and forwarded the ballots, he was then sheriff in fact of that county; and all the acts of such an officer which tend to the public utility, or to preserve and render effectual the rights of third persons, are valid in law.
"V. Because, in all doubtful cases, the committee ought, in our opinion, to decide in favour of the votes given by the citizens, lest by too nice and critical an exposition of the law the rights of suffrage be rendered nugatory.
"We also dissent from, and protest against, the determination of the major part of the said committee respecting the votes taken at the said election in the county of Clinton;
"Because it appears that the sheriff of the said county deputed a person by parole to deliver the box containing the ballots of the said county into the secretary's office. Such deputation we deem to be sufficient; and as there is satisfactory evidence that the box was delivered in the same state in which it was received from the sheriff, the votes, in our opinion, ought to be canvassed.
"We also dissent from, and protest against, the determination of the major part of the said committee, by which they declare that George Clinton was, by the greatest number of votes taken at the last election for governor, lieutenant-governor, and senators, chosen governor of this state; and that Pierre Van Courtlandt was, by the greatest number of votes at the said election, chosen lieutenant-governor; and that John Livingston was, by the greatest number of votes at the said election, in the eastern district of this state, chosen a senator in the said eastern district.
"Because it cannot be ascertained whether George Clinton was chosen governor, or Pierre Van Courtlandt lieutenant-governor of this state, by the greatest number of votes at the last election, without examining the ballots contained in the boxes delivered into the secretary's office by the sheriffs of the counties of Otsego and Clinton—there being a sufficient number of freeholders in these counties, with the votes given in the other parts of the state for John Jay as governor and Stephen Van Rensselaer as lieutenant-governor, to give them a majority of votes for those offices. Nor can it be ascertained whether John Livingston was chosen a senator in the eastern district by the greatest number of votes in that district, without examining the votes taken in the county of Clinton—there being a sufficient number of freeholders in that county, with the votes given in other parts of the district for Thomas Jenkins as a senator, to give him a greater number of votes for a senator than the number given for the said John Livingston.