
    The People ex rel. Charles H. Willson, Resp’t, v. The Board of Trustees of the Village of Mount Vernon, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 9, 1891.)
    
    1. Villages—Tbustebs—Laws 1890, Chap. .163.
    Chapter 163, Laws 1890, which requires police officials, etc., to take an oath that they are not interested in the manufacture or sale of liquors, applies only to excise commissioners, excise inspectors, police officials and their subordinates, and was not intended to apply to a trustee of a village under such a law as chap. 644, Laws 1887.
    2. Same.
    Failure to take the oath does not create a vacancy, but at most only furnishes a cause for forfeiture, and a vacancy can only be created by a direct proceeding for that purpose.
    Appeal from order directing that a peremptory mandamus issue to the defendant commanding it to convene and fill an alleged vacancy in the office of trustee.
    
      Norman A. Lawlor, for app’lt; Glose & Robertson, for resp’t.
   Pratt, J.

This was an application by Charles H. Willson, an elector of the village of Mount Vernon, for a peremptory mandamus to compel the defendant to fill a vacancy in the office of trustee of said village, occasioned by the failure of Bartholomew McGrrahe to take the oath required by chap. 163 of the Laws of 1890.

McGrrane was duly elected trustee of the village of Mount Vernon on the 21st day of May, 1889j for the period of two years from the 28th day of May, 1889; took the oath of office in due time and entered upon the duties of his office as such trustee when said chap. 163 of the Laws of 1890 took effect.

McGrane did not take the oath required by said act within the time prescribed therein, nor has he since taken it. It is claimed he was a police official by virtue of his office as trustee. This claim is sought to be proved by a reference to the act, chap. 544 of the Laws of 1887, title 8, § 1, defining the duties of trustees in which, among other duties imposed upon them, is that of apprehending and punishing common prostitutes, vagrants and disorderly persons, and also under § 6 of said act said trustees may “ appoint one or more police constables, extra police and night watchmen.”

These powers are vested in the board of trustees as a board and not in the individual members. It would not be claimed that a trustee could of his own motion arrest and punish a vagrant, for instance, or appoint extra police. In the former case it was intended that the board in its legislative capacity could pass ordinances for the arrest and punishment of vagrants, and in the latter, that the board might in an emergency, at their discretion, appoint extra police officers.

If this is the true construction, it follows that a trustee does not come within the class of officers designated in chap. 163 of the act of 1890, who are required to take the oath required by that act. I think it is clear that this act was only intended to apply to the excise commissioners, excise inspectors, police officers and their subordinates. Neither in the title nor in the body of the act is a trustee by th.at name required to take the oath.

Our conclusion is that the act of 1890 was never intended to apply to a trustee of a village under such an act as that of chap. 544 of the Laws of 1887.

It may be further stated that the act of 1890 does not declare the office vacant by reason of not taking the oath, but merely disqualifies a person from holding, and debars him from continuing to hold, any office mentioned in the act. It, therefore, follows that there is no vacancy which the board of trustees can be required by mandamus to fill.

These views, if correct, are sufficient to reverse the judgment; but it may not be amiss to add that a failure to take the oath under the statute of 1890 does not create a vacancy, but, at the utmost, only furnishes a cause for forfeiture, and a vacancy can only be created by a direct proceeding for that purpose.

The case of Cronin v. Stoddard, 97 N. Y., 271, is the same in principle, and in that case this doctrine was laid down. People ex rel. Williamson v. McKinney, 52 N. Y., 374; Adams v. Tator, 42 Hun, 384; 6 N. Y. State Rep., 359; Weeks v. Ellis, 2 Barb., 320.

Again, the rule is well settled that a mandamus is not a proper remedy of trying the title to an office. People v. Stevens, 5 Hill, 616; People v. Corporation of New York, 3 Johns. Cases, 79; People v. Lane, 55 N. Y., 219; Foot v. Stiles, 57 id., 399.

Not only upon what we regard as a proper construction of the statutes, but upon an error in the mode sought to oust the trustee from office, we think the judgment must be reversed.

Barnard, P. J., concurs; Dvkman, J., not sitting.  