"5. Because the notice of the appointment of Benjamin Gilbert was received by Richard R. Smith on or before the first of May, and his commission was received by William Cooper on or before the third of May. Mr. Gilbert might therefore have been notified, qualified, and executed the duty. He did actually qualify on the eleventh, which gave ample time to have forwarded the ballots before the last Tuesday in May. These facts, with other suggestions of unfair practices, rendered the conduct of the Otsego election justly liable to suspicion; and the committee were constrained to conclude that the usurpation of authority by Richard R. Smith was wanton and unnecessary, and proceeded from no motive connected with the preservation of the rights of the people or the freedom and purity of elections.
"6. Because, having in several instances, by unanimous vote, rejected ballots of whole towns, free from any suspicion of unfairness, by reason of a defect in form only of the return, the committee conceived themselves the more strongly bound to reject ballots where the defect was substantial, and the conduct at least questionable; especially as the law regards the custody of enclosures containing the ballots as a trust of high importance, and contemplates but three persons in whose hands they are to be confided until they come to the possession of the canvassers, to wit, the inspector, the sheriff, and the secretary; all officers of great responsibility and confidence.
"7. Because the return, upon the face of it, appeared to be illegal. The law requires the sheriff, 'upon receiving the said enclosure, directed to be delivered to him as aforesaid, without opening or inspecting the same, or any or either of them, to put the said enclosures, and every one of them, into one box, which shall be well closed, &c., and be delivered by him, without opening the same, or the enclosures therein contained, into the office of the secretary of this state before the last Tuesday in May in every year.'
"By recurring to the preceding state of facts it will be evident that this direction of the law had been disregarded. If irregularities of this kind should be permitted and countenanced, it would be in the power of the sheriff, by excluding a part of the votes, to confer a majority on any candidate, in counties where there were divisions of interests. Affidavits were indeed produced tending to show that there had been, in that town, disputes respecting the election of town officers; that two enclosures, purporting to contain the votes of the town, were delivered to Mr. Smith, and that he had put into the box that enclosure which contained the votes taken by the persons whom he judged to be the legal inspectors: a matter proper to have been submitted to the opinion of the committee.
"The committee have considered this subject with deliberate attention, and in every light in which it could be placed; and whether they regarded the channels of conveyance, the mode of the return, or the general principles which ought to govern their decisions touching the freedom of elections and security against frauds, they found undeniable reasons which compelled them to reject the votes.