sheriff may deputise by parol. As to Otsego, on which the election
really turned, King held that Smith was sheriff until a successor
qualified, if not in law, then in fact; and though such acts of a _de
facto_ officer as are voluntarily and exclusively beneficial to
himself are void, those are valid that tend to the public utility.

Burr was uninfluenced by respect for suffrage. Being statutory law, it
must be construed literally, not in spirit, or because of other rights
involved. He agreed with his colleague as to the law governing the
Clinton case; but following the letter of the act, he held that
Tioga's votes ought not to be counted, since a deputy could not
appoint a deputy. The Otsego ballots were also rejected because the
right of a sheriff to hold over did not exist at common law; and as
the New York statute did not authorise it, Smith's duties ceased at
the end of his term; nor could he be an officer _de facto_, since he
had accepted and exercised for one day the office of supervisor, which
was incompatible with that of sheriff. In other words, Burr reduced
the question of Jay's election to Smith's right to act, and to avoid
the _de facto_ right, so ably presented by Senator King, he relied
upon Smith's service of a day as supervisor before receiving and
forwarding the ballots, notwithstanding sheriffs invariably held over
until their successors qualified. Seven of such cases had occurred in
fifteen years, and never before had the right been seriously
questioned. In one instance a hold-over sheriff had executed a
criminal. When urged to appoint a sheriff for Otsego earlier in the
year, Governor Clinton excused his delay because the old one could
hold over.

After this decision, only Clinton himself could avert the judgment
certain to be rendered by a partisan board. Nevertheless, the Governor
remained silent. Thus, by a strict party vote of seven to four, the
canvassers, omitting the three counties with four hundred majority in
Jay's favour, returned 8,440 votes for Clinton and 8,332 for Jay.
Then, to destroy all evidence of their shame, the ballots were burned,
although the custom obtained of preserving them in the office of the
secretary of state.[64]

[Footnote 64: A few days after Clinton's inauguration Burr wrote a
Federalist friend: "I earnestly wished and sought to be relieved from
the necessity of giving any opinion, particularly as it would be
disagreeable to you and a few others whom I respect a