"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.
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