_Mr. King's opinion to the Canva.s.sers_.

"OTSEGO.--It may be inferred, from the const.i.tution and laws of the state, that the office of sheriff is held during the pleasure of the Council of Appointment, subject to the limitation contained in the 26th section of the const.i.tution. The sheriff may therefore hold his office for four years, unless within that period a successor shall have been appointed, and shall have entered upon the execution of the office. The term of four years from the appointment of R. R. Smith not having expired, and B. Gilbert not having entered upon the execution of the office before the receipt and delivery of the votes by R. R.

Smith to his deputy, I am of opinion that R. R. Smith was then lawful sheriff of Otsego.

"This opinion is strengthened by what is understood to be practice, namely, that the office of sheriff is frequently held for more than a year under one appointment.

"R. R. Smith's giving notice to the Council of Appointment of his disinclination to be reappointed, or his acting as supervisor, cannot, in my opinion, be deemed a resignation or surrender of his office.

"Should doubts, however, be entertained whether R. R. Smith was _lawfully_ sheriff when he received and delivered the votes to his deputy, the case contains facts which in another view of the subject are important. It appears that R. R. Smith was appointed sheriff of Otsego on the 17th of February, 1791, and afterwards entered upon the execution of his office: that no other person was in the execution of or claimed the office after the date of his appointment, and before the time when he received and delivered the votes of the county to his deputy; that during that interval R. R. Smith was sheriff, or the county was without a sheriff; that R. R. Smith, during the election, and when he received and delivered the votes to his deputy, continued in the actual exercise of the shrievalty, and that under colour of a regular appointment. From this statement it may be inferred, that if R. R. Smith, when he received and delivered the votes to his deputy, was not _de jure_, he was _de facto_, sheriff of Otsego.

"Though all the acts of an officer _de facto_ may not be valid, and such of them as are merely voluntary and exclusively beneficial to himself are void; yet such acts as tend to the public utility, and such as be would be compellable to perform, such as are essential to preserve the rights of third persons, and without which they might be lost or destroyed, when done by an officer _de facto_, are valid.

"I am therefore of opinion, that admitting R. R. Smith, when he received and delivered the votes to his deputy, was not _de jure_ sheriff, yet that he was _de facto_ sheriff; and that his receiving and delivering the votes being acts done under colour of authority, tending to the public utility, and necessary to the carrying into effect the rights of suffrage of the citizens of that county, they are and ought to be deemed valid; and consequently the votes of that county may lawfully be canva.s.sed.

"2d Question. The preceding answer to the first question renders an answer to the second unnecessary.

"3d and 4th Questions. The sheriff is required to put into one box every enclosure delivered to him by an inspector appointed for that purpose by the inspectors of any town or district; and for omitting to put any such enclosure into the box, he is liable to prosecution; but in case of such omission, the votes put into the box, and seasonably delivered into the secretary's office, may, notwithstanding such omission, be lawfully canva.s.sed; and equally so whether the omitted enclosure be kept back or sent forward with the box to the secretary's office. I am therefore of opinion that the votes contained in the box may lawfully be canva.s.sed; that those contained in a separate packet, from considerations explained in the depositions, and distinct from the objection of not being included within the box, cannot be lawfully canva.s.sed.

"CLINTON.--The deputy having no interest in the office of sheriff, but being merely the sheriff's servant, it does not seem to be necessary that the evidence of his being employed or made a deputy should be a deed or an instrument in writing, though the latter would be proper; yet a deputy may be made by _parole_: I am therefore inclined to the opinion that the votes of Clinton may be canva.s.sed.

"TIOGA.--The sheriff is one who executes an office in person or by deputy, so far at least as the office is ministerial; when a deputy is required of the sheriff conomine, he may execute it in person or by deputy; but if the deputy appoints a deputy, it may be doubtful whether ordinarily the acts of the last deputy are the acts of the sheriff. The present instance is an extreme case; had the duty been capable of being performed within the county, the sheriff or another deputy could have performed. Here the deputy, being in the execution of his duty, and without the county, is prevented by the act of G.o.d from completing it; the sheriff could not appoint, and the deputy undertakes to appoint a deputy to finish his duty, who accordingly does so. The election law is intended to render effectual the const.i.tutional right of suffrage; it should therefore be construed liberally, and the means should be in subordination to the end.

"In this case it may be reasonably doubted whether the canva.s.sers are obliged to reject the votes of Tioga.

"RUFUS KING."

_Mr. Burr's opinion to the Canva.s.sers._

"OTSEGO.--The duration of the office of sheriff in England having been limited by statute to one year, great inconveniences were experienced, as well by suiters as by the public. To remove which it was thought necessary to pa.s.s an act of parliament. The statute of 12 Ed. IV., ch.

1, recites at large these inconveniences, and authorizes the sheriff to execute and return writs in the term of St. Michael, before the delivery of a writ of discharge, notwithstanding the expiration of the year. The authority given by this statute being to execute only certain specified duties, the remedy was not complete, and another statute [1] was soon after pa.s.sed, permitting sheriffs to do every act pertaining to the office, during the term of St. Michael and St.

Hilary, after the expiration of the year, if not sooner discharged.

The practice in England appears to have been conformable to these statutes, [2] though the king did pretend to dispense with them by force of the royal prerogative; and this claim and exercise of a power in the crown to dispense with and control the operation of statutes, has been long and universally condemned as odious and unconst.i.tutional; yet the form of the commission is said still to be during pleasure.

"These considerations tend to show the principles of several opinions and adjudications, which are found in English law-books, relative to the holding over of the office of sheriff.

"None of the statutes of England or Great Britain continued to be laws of this state after the first of May, 1778. So that at present there remains no pretence for adopting any other than the obvious meaning of the const.i.tution, which limits the duration of the office to one year, beyond which the authority to hold cannot be derived from the const.i.tution, the appointment, or the commission. If inconveniences arise, remedies can be provided by _law only_, as has in similar cases been done in England, deciding on legal principles; therefore, the appointment and commission, and with them the authority of Mr. Smith, must be deemed to have expired on the 18th of February.

"Yet there are instances of offices being exercised by persons holding under an authority apparently good, but which, on strict legal examination, proves defective; whose acts, nevertheless, are, with _some limitations_, considered as valid. This authority is called _colourable_, and the officer in such cases is said to be an officer _de facto_; which intends an intermediate state between an exercise strictly lawful and one without such colour of right. Mr. Smith does not appear to me to have holden the office of sheriff on the 3d of May under such colour or pretence of right. The term of his office had expired, and he had formally expressed his determination not to accept a reappointment; after the expiration of the year he accepted, and even two days before the receipt of the ballots, openly exercised an office incompatible with that of sheriff; and it is to be inferred, from the tenour of the affidavits, that he then knew of the appointment of Mr. Gilbert. The a.s.sumption of this authority by Mr.

Smith does not even appear to have been produced by any urgent public necessity or imminent public inconvenience. Mr. Gilbert was qualified in season to have discharged the duty, and, for aught that is shown, his attendance, if really desired, might have been procured still earlier.

"Upon all the circ.u.mstances of this case, I am of opinion,

"1. That Mr. Smith was not sheriff of Otsego when he received and forwarded the ballots.

"2d. That the ballots delivered by the deputy of Mr. Smith cannot be legally canva.s.sed.

"The direction of the law is positive, that the sheriff shall put all the enclosures into one box. How far his inattention or misconduct in this particular shall be deemed to vitiate the ballots of a county, appears to be left to the judgment of the canva.s.sers. Were the ballots of this county subject to no other exception than that stated in the third and fourth questions, I should incline to think it one of those cases in which the discretion of the canva.s.sers might be safely exercised, and that the ballots contained in the boxes might be legally canva.s.sed; those in the separate package do not appear to be subject to such discretionary power; the law does not _permit_ them to be estimated. But the extent to which this power might be exercised in cases similar in kind, but varying in degree, cannot be precisely defined. Instances may doubtless be supposed, in which sound discretion would require that the whole should be rejected.

"Clinton.----To the question relative to the ballots of this county, it may suffice to say, that verbal and written deputation by a sheriff are, in law, considered as of equal validity, particularly when it is to perform a single ministerial act.

"Tioga.----it is said that a deputy may make a deputy to discharge certain duties merely ministerial; but, considering the importance of the trust in regard of the care of the ballots, and the extreme circ.u.mspection which is indicated in the law relative to elections, I think that the ballots of this county cannot, by any fiction or construction, be said to have been delivered _by the sheriff_; and am of opinion that they ought not to be canva.s.sed.

"AARON BURR."

The opinion of Rufus King in this case was concurred in by Stephen Lush, T. V. W. Graham, and Abraham Van Vechten, of Albany; Richard Harrison, John Lawrence, John Cozine, Cornelius J. Bogart, Robert Troup, James M. Hughes, and Thomas Cooper, of New-York.

The opinion of Colonel Burr was sustained by Pierpont Edwards of Connecticut, Jonathan D. Sergeant, of Philadelphia, Edmund Randolph, of Virginia, United States attorney-general, Zephaniah Swift, Moses Cleaveland, Asher Miller, David Daggett, Nathaniel Smith, and Dudley Baldwin. These opinions were procured by Colonel Burr, as appears from the private correspondence on the subject.

FROM JONATHAN D. SERGEANT.

Philadelphia, 4th May, 1792.

DEAR SIR,

You will perceive by the date of the enclosed that it has been ready some time, but I have waited in hopes that I should have the pleasure of sending forward Mr. Randolph's opinion in company with mine. As he is not yet quite ready, and I am going out of town, I send forward my own singly. He is very solicitous to collect all possible information on the subject before he gives his opinion, and would willingly excuse himself from the task, were it not, as he says, that it would look like a want of that independence and firmness which dispose a man to meet any question, however important or strongly contended.

His opinion hitherto has been conformable to yours, and I expect will continue so. When it is ready I will forward it without the delay of sending it round to Dr. Edwards's in the country. The doctor had spoken to me some time before your letter came to me, so that I was nearly prepared when I received yours.

Your obedient servant,

JONATHAN D. SERGEANT.

On the 6th of November, 1792, the legislature met. On the 13th, pet.i.tions, memorials, &c. were presented to the House of a.s.sembly, demanding an inquiry into the conduct of the board appointed to canva.s.s the votes given for governor, &c. at the preceding election, held in the month of April. On the 21st the house, in committee of the whole, took up the subject. Witnesses were examined at the bar; various resolutions and modifications were offered and rejected. The debate was continued at intervals from the 21st of November, 1792, until the 18th of July, 1793. The minority of the canva.s.sers entered a protest against the proceedings of the majority, which it is due to them to insert here.

"_The Protest of Messrs. Jones, Roosevelt, and Gansevoort_.

"We, the subscribers, members of the joint committee appointed to canva.s.s and estimate the votes taken at the last election in this state for governor, lieutenant-governor, and senators, do dissent from, and protest against, the determination of the major part of said committee respecting the votes taken at the said election in the county of Otsego.

"I. Because these votes having been given by the freeholders of Otsego, and the packages containing the same having been received and transmitted in season to the secretary's office by the person acting as sheriff of the county, the committee have no right to reject them under the pretence of judging of the legality, validity, operation, or extent of the sheriff's authority or commission; these commissions being foreign to the duty of their appointment, and capable of a decision only in the ordinary courts of law.

"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 const.i.tution, 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 const.i.tution, 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 canva.s.sed; and even upon the present canva.s.s, the committee have canva.s.sed 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;