
    The People ex rel. LeRoy J. Brooks, Resp’t, v. Charles H. Watts, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed December 8, 1893.)
    
    1. Excise—Test oath.
    The provision of § 3, chap. 163, Laws of 1890, that the test oath should he taken “before an officer duly authorized to take the acknowlment of deeds,” was directory and did not prevent its being taken before any officer authorized to administer oaths.
    3. Same—Defects in bond or oath of commissioners.
    The defect or omission, if any, in regard to the bond or oath required of an excise commissioner, at most, makes such commissioner’s title defeasible and affords cause for forfeiture of the office, but does not cretae a vacancy.
    3. Same.
    Statutes requiring an oath of office are usually directory in their nature, and unless the failure to take the oath by the time prescribed is expressly declared ipso facto, to vacate the office, the oath may be taken afterwards, if no vacancy has been declared.
    Appeal from a judgment entered in Chenango county on March 20, 1893, upon a verdict at the Chenango circuit directed by the court in favor of the relator and against the defendant; also from an order denying a motion on the minutes for a new trial
    The action is brought to oust the defendant from the office of excise commissioner of the town of Norwich. The relief granted by the judgment is that the defendant “is guilty of usurping and intruding into and unlawfully holding and exercising the office of excise commissioner of the town of Norwich, Chenango county, N. Y., and that he be ousted and excluded therefrom.”
    
      John W. Church and W. B. Leach, for app’lt; Howard J, Newton, for resp’t.
   Merwin, J.

At the annual town meeting of the town of Norwich on the 17th day of February, 1891 the relator, LeRoy J. Brooks was duly elected to the office of commissioner of excise. This was shown by the record of the proceedings of the town meeting signed by the officers who presided at the meeting and by the town clerk and filed in the office of the town clerk. 2 R. S., 8th ed., 885, § 19. Matter of Baker, 11 How. Pr., 431; People v. Zeyst, 23 N.Y., 141.

On the 23d February, 1891, the relator took and filed with the town clerk the constitutional oath of office. He also at same date executed and filed a bond in accordance, as he claims but which defendant disputes, with the provisions of chap. 444 of the Laws of 1874 as amended by chap. 459 of the Laws of 1886. On the 13th July, 1891, the relator filed with the town clerk an oath in form as required by § 3 of chap. 163 of the Laws of 1890. This was sworn to before the town clerk. The defendant claims that the town clerk did not have authority to administer the oath and that it was filed too late. Another oath sworn to before a notary public was filed on the 3d June, 1892. This, the defendant claims, is in form defective and was filed too late.

The relator, upon filing his oath and bond on the 23d February, 1891, entered upon the duties of the office and so continued until the 6th June, 1892. On the 4th June, 1892, the town board passed a resolution appointing the defendant excise commissioner in the place of the relator. The defendant under the resolution qualified and on the 6th June took possession of the office and was so in possession at the time of the commencement of this action.

The resolution of the board recited that the relator was elected in February, 1891 and “thereon took the general oath and filed his bond as required by law, but failed to further qualify by making and subscribing the test oath as required by'g 3, chapter 163, Laws of 1890 ;” that the oath filed July 13, 1891 was not taken “before ah officer duly authorized to take acknowledgment of deeds,” as in the act of 1890 provided; that the oath filed June 3, 1892 was not in time. It was then resolved, that, the office being vacant by reason of the failure of the relator to qualify to said office as by law provided, the board appoint the defendant to fill the vacancy occasioned by such failure.

By the judgment appealed from, the relator is not declared entitled to the office. The only question here therefore is whether there was then any vacancy existing which the town board had a right to fill. The relator was in fact in possession of the office and in the performance of its duties and had been for a year and upwards.

The defendant claims that a vacancy existed because 1, the test oath required by § 3 of chap. 163 of the Laws of 1890, was not filed in time and was not taken before the proper officer, and 2, because the bond filed in pursuance of the provisions of chap. 444 of the Laws of 1874, as amended by chap. 459 of the Laws of 1886 was not in sufficient an amount. The oath was taken before the town clerk and he was authorized to take it. Ohap. 172 of Laws of 1838.' Chap. 569 of Laws of 1890, § 56. The provision that the oath should be taken “ before an officer duly authorized to take the acknowledgment of deeds ” was directory and did not prevent its being taken before any officer authorized to administer oaths. Ex parte Heath, 3. Hill, 49 ; Canniff v. Mayor, etc., 4 E. D. Smith, 430; People v. Stowell, 9 Abb. N. C., 456; 19 Am. & Eng. Encyl., 144. The act did not specify any particular time within which the oath should be filed by officers thereafter elected. It provided that “ a failure to take the oath in this section prescribed shall disqualify any one from h'olding or debar any one from continuing to hold, any office or position mentioned in this act.” The oath in proper form was in fact filed long before any proceedings were taken to declare a vacancy. In Dillon on Municipal Corporations, 4th ed., § 214, it is said, “ statutes requiring an oath of office and bond are usually directory in. their nature ; and unless the failure to take the oath or give the hond by the time prescribed is expressly declared ipso facto, to vacate the office, the oath may be taken or the bond given afterward, if no vacancv has been declared.” See also Matter of Taylor, 25 Abb. N. C., 143.

The bond was in the sum of $2,000. The defendant claims that if should have been in the sum of $2,205, that being double the amount of the excise moneys of the previous year as indicated by the report of the supervisor. This objection to the bond is not raised in the order appointing the defendant and no vacancy is declared on this account. On the contrary it is there stated that the relator “filed his bond as required by law.” The bond as given appears to have been accepted by the supervisor and filed. It ran to the supervisor in accordance with the statute and presumptively he fixed the amount.

According^ to the current of authority in this state, the defect or omission, if any in regard to the bond and oath, at the most made the relator’s title defeasible and afforded cause for forfeiture of the office but did not create a vacancy. That, it is said, could only be effected by a direct proceeding for that purpose. Cronin v. Stoddard, 97 N. Y., 274; Horton v. Parsons, 37 Hun, 45; People, etc., v. Board, etc., 59 id., 206; People, ex rel. etc., v. Criney, 91 N. Y., 635.

Ho authority is cited showing that in such a case as this the town board had authority to make an adjudication of vacancy.

But it is urged that the rule upon the subject of vacancies has been changed by the provisions of § 51 of the “ town law,” which provides that the officer elected shall, before he enters upon the duties of the office, and within ten days after he shall be notified of his election, take the constitutional oath of office and such other oath as may be required by law, and that a neglect or omission to take and file such oath, or a neglect to execute and file within the time required by law arn^ official bond or undertaking, shall be deemed a refusal to serve, and the office may be filled as in case of vacancy.

By the statute in force before the passage of the town law, it was provided that every office should become vacant by refusal or neglect to take the oath of office within the time required by law, or to give or renew any bond within the time prescribed by law. 1 R. S., chap. 6, title 6, § 34. 1 R. S., 8th ed., 402. It may be doubted whether there was any design to change the rule on the subject in the revision of 1890.

The town law did not take effect until March 1, 1891. That was after the relator was elected and had entered upon the duties of the office. It is not to be presumed that the town law was designed to be retroactive. Goillotel v. Mayor, etc., 87 N. Y., 443.

In view of the fact that the proper oath was filed long before the town board acted, and that no question was made about the bond, I fail to see any good reason for disturbing the judgment.

Judgment and order affirmed, with costs.

Hardin, P. J., and Martin, J., concur.  