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.
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