2 Barb. 320 | N.Y. Sup. Ct. | 1848
The important question raised by this demurrer is, whether the omission of Lynde, one of the justices by whom the order of filiation was made, and the warrant of commitment was signed, to take the oath of office on his re-election, before entering upon his duties in January, 1846, makes the defendants Ellis and Brooks, the overseers of the poor, trespassers in causing the arrest of the plaintiff. The proceedings detailed in the plea are such as were required by tit. 6, ch. 20, of the 1st part of the revised statutes. By statute, it was the duty of the defendants, as overseers of the poor of the town of Champion, to institute those proceedings. By the 20th section of art. 3, tit. 6, ch. 5, of the 1st part of the revised statutes, it is enacted, that, “Every person who shall be elected or appointed to any civil office or public trust embraced in that chapter, before he shall enter on the duties of such office or trust, shall take the following oath or affirmation.” Then follows the oath to support the constitution of the United States and the constitution of the state of New-Yofk. The 31st section of the same article provides (1 R. S. 121, IsZ ed.) that “if any person shall execute any of the duties or functions of any office, without having taken and subscribed the oath of office required by law, or without having filed in the proper office any bond required by law, he shall forfeit the office to which he may have been elected or appointed, and shall be deemed guilty of a misdemeanor punishable by fine or imprisonment.” These are all the statutory provisions relating to the subject.
Lynde, notwithstanding his omission to take the oath of office, was a justice of the peace, defacto ; and his acts, so far as relates to the public and third persons, were valid. (The People v. Covert, 1 Hill, 674. Same v. Stevens, 5 Hill, 616.
This case is distinguishable from Low v. Rice, (8 John. Rep. 409,) and Clayton v. Per Dun, (13 Id. 218.) In those cases the justice was an officer dejure and defacto, both; but being at the time an inn-keeper, he was by law prohibited from trying any cause by virtue of the act. (1 R. L. 397, &19.) He had no jurisdiction, in those cases, of the subject matter; and the question in both cases, arose on certiorari brought to reverse his judgment. In those cases, the justice possessed all the other powers incident to his office, except the power of trying civil actions under the act for the recovery of debts to the value of twenty-five dollars. Of that he was expressly, and in terms, deprived.
In the present case, on the contrary, Lynde came regularly into office by an election, at the proper time, and assumed to act in that capacity. The defect complained of does not go to his jurisdiction. He was not, in terms, prohibited from acting, before taking the oath; but was required to take the oath before entering on the duties of the office, and the consequences ■resulting from his omission to do so, are declared to be a forfeiture of office, and fine or imprisonment. This implies, that •until forfeiture is judicially declared, he is still in office, so far at least, as the rights of the public and third persons are concerned.
The law does not require third persons, at their peril, to ascertain whether a magistrate, coming into office by color of a regular election, and acting as such, has taken the requisite steps to continue in it. Much less will it require another class of officers, who are compelled to invoke the aid of the first in a matter of public concern, to do so. The affairs of society could
The defendants Ellis and Brooks were not parties to the proceedings before the justices, against the plaintiff. The rule, therefore, cannot be extended to them, which involves the parties, who set in motion, for their own benefit, an illegal proceeding, with the fate of those" by whom it is conducted. They were ministerial officers on whom the statute devolved the duty of instituting before the magistrates the proceedings stated in the plea. They, therefore, fall within the principle of Savacool v. Boughton, (5 Wend. 170,) and kindred cases, and are protected, if the magistrates had jurisdiction of the subject matter, and were ostensibly in office.
I am satisfied that the replication is bad ; that the plea affords a complete defence to the defendants Ellis and Brooks; and that judgment should be given for them on the demurrer.-
There must be judgment for the defendants Ellis and Brooks on the demurrer to the replications to the 3d, 5th, and 7th pleas; with leave for the plaintiff to amend his replications on payment of costs.
