People ex rel. Bishop v. Palen , 81 N.Y. Sup. Ct. 289 ( 1893 )

HERRICK, J.

This is an appeal from a judgment entered upon the verdict of a jury rendered by direction of the court, subject to the opinion of the court at general term, and ordered by the court to be heard in the first instance at general term. On the 3d day of March, 1891, the relator John Wesley Bishop was elected excise commissioner for the town of Olive, county of Ulster. He filed what purported to be his official oath and bond on the 11th day of March, 1891, but did not take or file the oath required by chapter 163, Laws 1890, until the 9th day of April, 1892. The relator Wilbur F. Hill was elected excise commissioner for the town of Olive, county of Ulster, on the 1st day of March, 1892, and on the 7th day of March, 1892, he filed with the town clerk papers purporting to be his official oath and bond, but did not take or file the oath required by said chapter 163, Laws 1890, until the 8th day of April, 1892. On the 16th day of April, 1892, the town board of the said town of Olive declared the offices of excise commissioners to which said relators had been elected, as before stated, to be vacant, for the reason that they had not filed the oath required by chapter 163, Laws 1890, and thereafter proceeded to appoint the defendants, Zachariah Palen and George W. Beesmer, excise commissioners, to fill said vacancies. That Palen and Beesmer thereafter and •in due time took and filed the necessary oaths of office, including the one required by chapter 163, Laws 1890, together with their official bonds, with the town clerk, and thereafter, with one Albert Elmendorf, the other excise commissioner of said town, met and organized as the excise board of said town, and granted licenses as such board of excise, and received the money therefor. Thereafter this action was commenced, asking for a judgment upon the right of the said John Wesley Bishop and Wilbur F. Hill to hold the offices of excise commissioners of said town, and that the defendants be adjudged to have no just or legal right to hold, occupy, or exercise the duties of said office of excise commissioner, and that the said defendants be ousted and excluded from the office of commissioners of excise of the town of Olive. Section 1, c. 163, Laws 1890, enacted that “it shall be unlawful for any excise commissioner in the several villages, towns and cities of this state, to be either directly or indirectly interested in the manufacture or sale of spirituous or malt liquors, ales, wines or beer.” Section 3 of the same act provides that “every excise commissioner in the several villages of this state shall within thirty days after the passage of the act, make and subscribe an oath to the effect that he is neither directly nor indirectly interested in the manufacture or sale of spirituous or malt liquors, ales, wines or beer, and that all such officers as are hereafter elected or appointed, shall make and subscribe such an oath and file the same in the clerk’s office of the town or village or with the police department of a city;” and it further provides that the “failure to take such oath shall disqualify any one from holding, and debar any one from continuing to hold any office or position mentioned in the act.” Section 51, c. 569, Laws 1890, provides that “every person elected or appointed to any town office, except justice of the peace, shall before he enters on the duties of his office, and within ten days after he shall be notified of his election or appointment, take and subscribe before some officer authorized by law to administer oaths in his county, the constitutional oath of office, and such other oath as may be required by law, which shall be administered and certified by the officer taking the same without reward, and shall within eight days be filed in the office of the town clerk, which shall be deemed an acceptance of the office; and a neglect or omission to take and file such oath, or a neglect to execute and file, within the time required by law, any official bond or undertaking, shall be deemed a refusal to serve, and the office may be filled as in case of vacancy.”

. The relators, it appears from the case, were ignorant of the requirement of chapter 163 until about the time they took the oath within required, and filed the same in the town clerk’s office. It will be seen from what I have stated in regard to the requirement of said chapter 163, and from section 51, c. 569, herein set forth, that the relators come squarely within the provisions of these two statutes, and by their failure to take and file the oath provided for in chapter 163, Laws 1890, as therein set forth, and as provided for in chapter 569, Laws 1890, they were disqualified and debarred from holding the office of excise commissioners, provided the law requiring such oath to be taken and filed was one that the legislature had power to pass. That portion of chapter 163, Laws 1890, which provides for taking and filing the oath; that the person so taking and filing it has not been engaged either directly or indirectly in the manufacture or sale of intoxicating liquors, and disqualifies him from holding or continuing to hold office, unless he does so,—is challenged as repugnant to article 12 of the constitution of the state of New York. That article, after prescribing the form of the oath to be taken by members of the legislature and executive and judicial officers, except such inferior officers as shall be by law exempted, concludes with the following sentence: “No other oath, declaration or test shall be required as a qualification for any office of public trust” This last clause of the article does not prohibit the legislature from prescribing qualifications as to fitness for office, but does prohibit requiring the candidate to take any oath or declaration as to such qualification or fitness. It may undoubtedly prescribe tests by which the candidate’s fitness for the position aspired to may be demonstrated, and it may impose certain conditions as to experience or fitness, as in requiring that the holder of certain offices shall be above the age of 21 years; that inspectors of election shall be able to read and write; that the holders of specific offices shall be civil engineers or attorneys and counselors-at law"; but it prohibits the requiring of any qualifications that are measured or determined by the oath or declaration of the candidate for office himself. The article in question is a limitation upon-the qualifications of office holders that may be imposed or required by the legislature. It is an exclusion of anything in the notice-of an oath except the one therein set forth. Some of the reasons that inspired the adoption of this clause of the constitution in-question are set forth in Rogers v. Common Council, 123 N. Y. 173, 25 N. E. 274. To the reasons there set forth it may be added that the multiplying of oaths had become a great abuse, and the solemn, and binding effect intended had been weakened by the number required. The extremely conscientious were debarred from seeking- or holding offices of public trust; and, in addition, it was obnoxious-, to the spirit of the common law to require a person to be a witness against himself, in any matter that might lead to the imposition of a fine, penalty, or forfeiture. Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. 195, and cases cited. All these things doubtless inspired the framing of the clause referred to, and it should be strictly construed for the purpose of carrying into effect its undoubted spirit and intent. “Qualification,” in one sense, means “fitness for;” in another, “the doing of some act as a condition of taking or holding office.” “Qualify: To make oath to any fact;, to take the oath of office before entering upon its duties.” Cent. Dict. See, also, Worcest. Dict. “Qualification: That which oualifies a person to render him admissible, to or acceptable for a place an office or employment.” Cent. Dict. Also, Rap. & L. Law Dict. The word is used in the constitution in the sense of something to-be done before taking office, as a condition of holding it; in the sense of taking an oath of office, not in the sense of fitness. That the oath prescribed by section 3, c. 163, Laws 1890, is a requirement or qualification for holding office, seems to me can admit of no discussion. The failure to take it disqualifies the person from-holding, and prohibits him from continuing to hold, any of the offices mentioned in the act. It is something to be done by him before he can hold office. The statute in question is a law that increases the number of oaths to be taken by office holders. It is a law compelling a person to be a witness against himself in. a matter that may lead to a forfeiture. It is a law requiring something to be done by-the candidate as a condition to his holding office. It requires an additional qualification by him to that set forth in article 12 of the constitution. It requires an additional' oath of office; and it seems to me very clearly not only within the-spirit and intent, but of the very letter, of the constitution, and is therefore null and void. It follows that the relators were not. required, as a condition to holding the office of excise commissioner, to take the oath therein provided for. The facts being undisputed, and a verdict having been rendered subject to the opinion of the general term, the judgment entered thereon should be reversed, and judgment ordered as prayed for in the complaint of the plaintiff. Let judgment be entered accordingly, with costs. All concur.