128 N.Y. 545 | NY | 1891
The appellant has refused to administer the oath of office to the respondent and raises the question of the right to compel him to administer it. The theory of his case, apparently, is that in some way his administration of the oath of office would amount to a decision as to the respondent's title to the office, and, as he denied that there was any legal election of the relator, he could not be compelled to take and file his oath. But that is not so. By the provisions of the act, under which this village was incorporated, every person elected or appointed to office is required to take and file with the clerk of the village an oath of office. By an ordinance of the board of trustees of the village, authority was conferred upon the clerk to administer such oath of office. If applied to for that purpose, he was not called upon to decide as to the legality of the applicant's election or appointment; but, in his ministerial capacity, he was obliged to administer the oath of office, if prima facie it appeared that the individual desiring to be sworn had the greatest number of votes at the charter election. Perhaps, too, the clerk might refuse if the person was known to be ineligible. At this election, there were one hundred and thirty-six ballots cast, of which sixty-six were for the opposing candidate, O'Brien; sixty-six were for "Morris A. Young;" one was for "Morris Young," and one was for "M.A. Young;" *549 one was defective, and one was blank. If the sixty-eight ballots bearing the name of Young were legal ballots for the relator Morris A. Young, then he had received a majority of the votes for the office. Whether the votes given for "Morris Young" and for "M.A. Young" should be counted for the relator was not a question for the clerk to pass upon, when Young applied to him to administer the oath of office. It was sufficient that the returns presumptively showed the relator's election. Thereupon he was entitled to have the proper oath of office administered to him, in order that he might be in a condition to assert his legal rights.
Upon the question of the propriety of granting the writ of peremptory mandamus, it is sufficient to say that, as by the paper in the clerk's possession, signed by a majority of the inspectors of election, a return was made showing that a majority of the ballots were for the candidate named Young, it presumptively showed his election and it was the duty of the clerk to administer the oath which the statute requires every officer to take and file. It is not material that the inspectors did not make a certificate as to Young's election to the office. They did sign a paper showing the whole number of votes given for each person voted for, and that, as between the candidates O'Brien and Young, a majority were for Young. That paper the clerk had possession of. There was no denial of material facts alleged or established by the relator as to the results of the election appearing from the paper filed with the clerk, or concerning his identity, and hence the issuance of the writ of mandamus to compel the clerk to do his duty was perfectly proper.
The order appealed from should be affirmed, with costs.
All concur.
Order affirmed. *550
