"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 canvassed.
"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 canvassed; 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 canvassed; 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
canvassed.
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