
    (44 Misc. Rep. 192.)
    In re DAVID.
    (Madison County Court.
    June, 1904.)
    1. Highways—Commissioners—Oath of Office.
    Highway Law (Laws 1890, p. 1193, c. 568), § 84, requiring commissioners appointed by a county court to determine the necessity of a highway and assess the damages to take the constitutional oath of office, means the oath prescribed by Const, art. 13, § 1, requiring, among other things, an oath to support the Federal and' State Constitutions;
    2. Same. ,
    Where commissioners appointed under Highway Law (Laws 1890, p. 1193, c. 568), § 84, to lay out a highway, fail to take the oath required by such section, the proceedings are void.
    3. Same—Assessment of Damages—Cost.', '
    Highway Law (Laws 1800, p. 1195, c. 568), § 92, providing that on assessment of damages by highway commissioners the assessment shall be paid by the town, applies only where the improvement is carried out, and where the proceedings are declared void an owner who has obtained damages from the commissioners cannot recover costs incurred in the proceeding.
    4. Same—Notice to Highway Commissioner.
    Where county commissioners appointed to determine the necessity of a highway failed to give the town highway commissioner personal notice of the time and place of their meeting, as required by Highway Law (Laws 1890, p. 1193, c. 568), § 85, it does not invalidate the proceedings where the notices required had been duly posted.
    In the matter of the application of S. B. David to lay out a highway in the town of Lebanon and for the assessment of damages. Application by E. W. Cushman to amend an order, so that in addition to the allowances therein made allowance may be made to him, as attorney for Sarah M. Morgan, for services and disbursements in the above-entitled matter.
    Denied.
    E. W. Cushman, for the motion.
    M. H. Kiley, for S. B. David.
    Dayton F. Smith (C. A. Hitchcock, of counsel), for Lewis Close, commissioner of highways, opposed.
   SMITH, J.

By the decision of the commissioners appointed to determine as to the necessity of the highway mentioned in the petition, and to assess the damages by reason of the laying out of such highway, it was certified and determined that it is necessary that the highway be laid out, and the damages were assessed as follows: William Blair, $238.40; Sarah M. Morgan, $342.18; Orril Hayward, $301.50. On motion to confirm the decision of the commissioners, the supervisor and the highway commissioner appeared in opposition, and on the 18th of March, 1904, an order was made by this court, vacating and setting aside the decision of the commissioners, and, by consent of the supervisor and commissioner, that order directed that the fees of the.commissioners be paid by the town, and also, by like consent, certain allowances were made to M. H. Kiley, attorney for the petitioner, and to Dayton F. Smith, for himself and for the counsel, C. A. Hitchcock, for services rendered by them; the allowance to Mr. Kiley being for services as attorney for the petitioner, and the allowance to Mr. Smith being for services rendered by him and by the counsel, Hitchcock, in opposing the confirmation, and in proceedings to set aside the decision of the commissioners. Section 84 of the Highway Law (Laws 1890, p. 1193, c. 568), provides that the commissioners shall take the constitutional oath of office, and appoint a time and place at which they shall all meet to hear the commissioners of highway of the town where such highway is situated and others interested therein. Section 85 of the Highway Law provides for giving notice of the time and place of the hearing by posting such notice for at least eight days in three public places of the town, and personally serving on the owner and occupants of the land through which the proposed highway is to run a notice of the time and place of the hearing at least eight days previous to the hearing, or by leaving such notice at the residence of the owners and occupants with a person of mature age. The statute does not require personal service on the commissioner •of highways, and it has been held that the commissioner has no more interest than any other taxpayer. People ex rel. D., L. & W. R. Co. v. County Court, 92 Hun, 13, 37 N. Y. Supp. 869.

I think want of notice to the highway commissioner did not invalidate the proceedings. The only notice to him required by the statute is the notice given by posting in three public places. The section referred to requires the commissioners to take the constitutional oath of office. That is the first thing for them to do, and the validity of their subsequent proceedings depends upon their taking that oath, and thus qúalifying themselves as commissioners. By article 13, § 1, of the Constitution of this state, members of the Legislature and all officers, executive and judicial, except such inferior officers as shall be by law exempted, shall, before they enter on the duties of their respective offices, take and subscribe the following oath or affirmation:

“I do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of New York, and that I will faithfully discharge the duties of the office of-according to the best of my ability.”

An addition to this oath, not necessary here to be considered, is required of officers chosen at any election. By the same article, no-other oath, declaration, or test shall be required as a qualification for any office of public trust. I know of no other oath of office described by the Constitution, and of no constitutional oath of office except the one quoted, and by section 84 of the Highway Law, the commissioners were required to take that oath. The Legislature had the right to prescribe the nature of the oath of office to be taken. The Legislature could have limited the oath of office which the commissioners should take, and had the act required them to have taken an oath simply to faithfully discharge their duty, there is no doubt but that it would have been sufficient and valid; but the Legislature has seen fit to require the commissioners to take this constitutional oath, and that requirement must be substantially complied with. The statute is mandatory.

The article in' question is a limitation upon the qualifications of officeholders which may be imposed or required by the Legislature. It is an exclusion of anything in the nature of an oath except the one therein set forth. People ex rel. Bishop v. Palen, 74 Hun, 292, 26 N. Y. Supp. 225. In Rogers v. Common Council of Buffalo, 123 N. Y. 173, 25 N. E. 274, 9 L. R. A. 579, the court held that a statute by which an applicant for appointment to a position in a public, office is made to show his fitness therefor does hot constitute an illegal test, within the meaning of this section, and that the framers of our organic law never intended to oppose a constitutional barrier to the right of the people, through their Legislature, to enact laws which should have for their sole object the possession of fit and proper qualifications for the performance of the duties of a public office on the part of him who desired to be appointed to such office. The Legislature had the right to prescribe the nature of the oath to be taken, and the requirement must be substantially complied with. The reason why the' Legislature has required the commissioners to take the same constitutional oath required of public officers may not be apparent, but they have required it, as they had the legal right. The oath taken by the commissioners is substantially in the following form:

“I do solemnly swear that I will faithfully and fairly try the questions and determine the issues referred and submitted to me as such commissioner, and make a just and true decision and certificate thereof, according to the best of my understanding.” .

Substantial compliance with the form prescribed is essential to the validity of the oath, and if a material part of the oath be omitted, it is as though no oath had been taken. 23 Am. & Eng. Encyc. of Law, 360; Matter of Executive Communication, 14 Fla. 277; Hoagland v. Culvert, 20 N. J. Law, 387.

Where the statute requires the person elected or appointed to office, before he enters upon the duties of his office, to take an oath to faithfully perform the duties of the office, compliance therewith is a condition precedent to the officer’s right to exercise the functions of the office. 23 Am. & Eng. Encyc. of Law, 354, and cases there cited. The same rule must require him to take substantially the oath prescribed. In Shattuck v. Bascom, 105 N. Y. 39, 12 N. E. 283, it was held that where the form of oath to be taken by assessors is prescribed, it must be followed, and any material variation therefrom will invalidate the assessment. It will be observed that the commissioners herein did not take the constitutional oath. They did not swear or affirm that they would support either the Constitution .of the United States or of this state; hence they never qualified, and all their subsequent proceedings were unauthorized and of no force. People v. Connor, 46 Barb. 336. The whole town had an interest in the proposed highway, and had a right to require that the proceedings should in all material respects conform to the requirements of the statute, which, in effect, declares that until the commissioners take the oath of office required by the law, they are incompetent to do any other act as commissioners. It was an act necessary to give them jurisdiction to proceed in the discharge of their duty, the omission of which rendered all their acts coram non judice and void, because in laying out highways they act under a special and statutory authority; and it must appear upon the face of their proceedings or by proof aliunde that they acquire jurisdiction. Miller v. Brown, 56 N. Y. 383.

On motion to confirm the decision of the commissioners, this court had power to review all the proceedings, whether such proceedings related to the merits of the application or otherwise. People ex rel. Hanford v. Thayer, 88 Hun, 136, 34 N. Y. Supp. 592; Matter of Lawton, 22 Misc. Rep. 426, 50 N. Y. Supp. 408.

The objections that the proceedings are invalid1 may be made by the, commissioner of highways on this hearing. People ex rel. Smith v. Allen, 37 App. Div. 248, 55 N. Y. Supp. 1057; People ex rel. Ottman v. Commissioners, 27 Barb, 94.

Other objections have been urged by the counsel for the commissioner of highways, but from the view I take of the commissioners not having taken the proper oath of office, I do not deem it necessary to pass upon those objections. It follows that the commissioners could not make any valid award to the landowner, whose counsel now asks compensation.

I am fully persuaded that the order setting aside the decision of the commissioners was warranted, and it finally determined the question of the necessity of the proposed highway, and, of course, Mrs. Morgan cannot recover the damages awarded, and neither^ does she lose her lands. Matter of De Camp, 151 N. Y. 557, 45 N. E. 1039. By section 92 of the Highway Law (Laws 1890, p. 1195, c. 568), in all cases of assessment of damages by commissioners appointed by the court, the costs thereof shall be paid by the town, except when reassessment of damages shall be had on the application of the party for whom the damages were assessed, and such damages shall not be increased on such reassessment, the costs shall be paid by the party applying for the reassessment. As the commissioners decided that the road was necessary, and assessed damages for Mrs. Morgan, the counsel contends that she is entitled to the costs incurred by her in this proceeding. The language of section 92, that in case of assessment of damages by commissioners appointed by the court, the costs are directed to be paid by the town, was plainly intended that in case the proposed improvement should be carried into effect, the costs and expenses occasioned by it should be defrayed by the town. It means in case there is a valid assessment of damages; it has no application to a case where the proposed improvement fails. Matter of Miller, 9 App. Div. 260, 41 N. Y. Supp. 581. Indeed, it has been held that the statute does not confer upon the highway commissioner power to employ an attorney upon the credit of the town in a proceeding to lay out a highway. People ex rel. Bevins v. Supervisors, 82 Hun, 298, 31 N. Y. Supp. 248.

There is some force in the suggestion of counsel that, inasmuch as costs were allowed to the counsel for the petitioner and to counsel employed to oppose the confirmation of the decision of the commissioners and to set aside such decision, compensation should be allowed to the counsel employed by the landowner; but the costs thus allowed were, by the express consent of the supervisor, the town’s fiscal officer, and the highway commissioner, allowed in open court, which officers object, or at least do not consent, to costs being allowed the moving party, and the court must now determine as to whether such costs are a legal and enforceable claim against the town, and from the examination of that question I am led to the conclusion that the claimant has not a claim against the town which the court has power to enforce; that her only remedy is with the town auditing board, who very likely would have the power to make some proper allowance.

The motion is, therefore, denied.

Motion denied.  