general elections instead of at the annual town meetings. That act in so far as it relates to Justices of the Peace was held to be unconstitutional and it was questioned as to Supervisors. People v. Schiellein, 95 N. Y. 124.

§ 4. Supervisors in Cities.

In several of the cities of the state provision is made by law for the election of more than one Supervisor. In the City of Buffalo, which is divided into thirteen wards, two Supervisors are elected in each of the first twelve wards and one in the thirteenth ward, so as to equalize the number of Supervisors between that city and the towns of Erie County.

In the City of New York the Board of Supervisors has been abolished and the provisions of law for electing Supervisors repealed, and the powers theretofore exercised by the Supervisors were vested in the Board of Aldermen, who, in the discharge of such duties, act as Supervisors. Laws 1874, chap. 304; Laws 1882, chap. 410, § 29 et seq.

5. Supervisor's Qualifications.

No person shall be eligible to any town office, unless he shall be an elector of the town for which he shall be chosen. 1 R. S. 345 (8th ed.) 889, § 11.

Every male citizen of the age of twenty-one years who shall have been a citizen for ten days and an inhabitant of this state one year next preceding an election, and for the last four months a resident of the county, and for the last thirty days a resident of the election district in which he may offer his vote, is an elector. Const. N. Y., art. II., § 1.

§ 6. Persons not Eligible.

No loan officer appointed under the act of the 14th of March, 1792, entitled "An act for loaning moneys belonging to this State," shall, during his continuance in that office, be eligible to the office of Supervisor. 1 R. S. 345 (8th ed.) 889, § 12. The office of loan officer has been abolished. See Laws 1832, chap. 118, and Laws 1850, chap. 337.

No person holding the office of Commissioner for loaning the moneys belonging to the United States, deposited with the State of New York for safe keeping, under the act passed April 4th, 1837, shall be eligible to the office of Supervisor of any town or ward of this state. Laws 1838, chap. 58, § 1; 1 R. S. (8th ed.) 587.

No Railroad Commissioner of a town shall hereafter be eligible to the office of Supervisor thereof. Laws 1873, chap. 720, § 2; 1 R. S. (8th ed.) 953.

*

*

shall be elected or

§ 7. Offices that cannot be held by Supervisor. No Supervisor of any town appointed to hold the office of Superintendent of the Poor. Laws 1829, chap. 352, as amended by Laws 1853, chap. 80; 3 R. S. (8th ed.) 2122.

No Supervisor, or clerk of the Board of Supervisors, shall be appointed to, or hold the office of County Treasurer. 1 R. S. (8th ed.) 394, § 13.

The office of County Treasurer is an elective office. Laws 1848, chap. 136, § 1, as amended by Laws 1849, chap. 360. Vacancies in such office may be filled by the Board of Supervisors until the first day of January, succeeding the next general election thereafter. Laws 1848, chap. 136, § 2; 2 R. S. (8th ed.) 1051.

No *

nor can

* Supervisor is eligible to the office of Trustee,

*

be a member of any Board of Education within his district or town. Laws 1864, chap. 558, title VII., art. 3, § 23; 2 R. S. (8th ed.) 1291.

No Supervisor of any town or ward shall be eligible to the office of Commissioner under the act aforesaid, passed April 4th, 1837, for loaning U. S. deposit funds. Laws 1838, chap. 58, § 2; 1 R. S. (8th ed.) 587.

He could not be a "loan officer" under the act of the 14th of March, 1792, entitled "An act for loaning moneys belonging to this State." 1 R. S. (8th ed.) 889, § 12.

§ 8. Ineligibility, effect of.

The rule of law in this state is that where an officer is by statute prohibited from holding at the same time another office, he is not thereby made merely ineligible

to hold the office, but he is ineligible to an election or appointment thereto. And where such ineligible person received a majority of the votes cast for the office, it was held that, being ineligible, he could not hold the office and that his ineligibility to hold it did not entitle the person who received a minority of the votes cast to hold the office. People v. Clute, 50 N. Y. 451 See also Barker v. People, 3 Cow. 686; Gosling v. Veley, 7 Adol. & Ellis, N. S. 406-439; Saunders v. Haynes, 13 Cal. 145; State v. Giles, 1 Chand. (Wisc.) 112; State v. Smith, 14 Wisc. 497.

§ 9. Office becomes vacant by accepting another office.

Where an officer is prohibited by law from holding any other public office during the term of office for which he was elected and the statute declares that by an election to and acceptance of such other public office, his office shall immediately become vacant, full force and effect will be given to the statute, and the first office will be held to have become vacant by operation of law. People v. City of Brooklyn, 77 N. Y. 503. See also People v. Green, 58 N. Y. 296; People v. Nostrand, 46 N. Y. 375; People v. Carrique, 2 Hill, 93; People v. Board of Police, etc., 35 Barb. 535; Van Orsdall v. Hazard, 3 Hill, 243.

There are instances where provision is made by statute that the acceptance of an office will create a vacancy in another office held by the same person. For instance, a School Commissioner, by his acceptance of the office of Supervisor, Town Clerk or Trustee of a school district, shall vacate his office. Laws 1864, chap. 585, title II.,

85; 2 R. S. (8th ed.) 1272.

§ 10. Contested elections.

Questions of contested elections to the office of Supervisor, unless determined by the courts, are to be determined by the Board of Supervisors. Laws 1875, chap. 482, §7; 2 R. S. (8th ed.) 1043.

§ 11. Notice of his election.

When the name of the person elected to the office of Supervisor is upon the poll list as a voter, no notice of his

889,

election, other than the reading and recording of the statement of the result of the election need be given. 1 R. S. (8th ed.) SS9, § 9. But if his name be not upon the poll list as a voter it is the duty of the clerk of the town meeting, within ten days thereafter, to transmit to each person elected to any town office, a notice of his election. Ibid. § 10.

The statement of the result of the canvass of votes given at a town meeting held for the election of town officers, entered by the clerk of the meeting in the minutes of the proceeedings kept by him as required by § 9 above, is intended by the statute as the certificate and evidence of election. In re Baker, 11 How. Pr. 419; People v. Cook, 14 Barb. 288.

§ 12. Refusal to serve-penalty.

* *

If any person chosen or appointed to the office of Supervisor * shall refuse to serve, he shall forfeit to the town the sum of fifty dollars. 1 R. S. 342 (8th ed.) 891, § 25.

If any person elected to the office of Supervisor shall not take and subscribe the oath of office required by law, and cause the certificate thereof to be filed, as the law requires, such neglect shall be deemed a refusal to serve. 1 R. S. (8th ed.) 890, § 16.

Under a some

When not liable for second penalty. what similar statute it was held, where an Overseer of Highways refused to serve, and thereby subjected himself to the penalty prescribed by the statute, that he could not be reappointed, and, on refusal to serve, be made liable to a second penalty. Haywood v. Wheeler, 11 Johns. R. 432.

The same rule would doubtless be held applicable to the office of Supervisor.

13. Must take oath of office.

Every person chosen or appointed to the office of Supervisor * * * before he enters on the duties of his office, and within ten days after he shall be notified of his election or appointment, shall take and subscribe

the oath of office prescribed by law. 1 R. S. (8th ed.) 889, § 13.

For form of oath see post, § 20.

§ 14. Oath of office, who may administer it.

The oath of office may be taken and subscribed before a Justice of the Peace, or a Commissioner of Deeds. 1 R. S. (8th ed.) 889, § 13. It may also be taken before the Town Clerk of the town in which such officer shall be elected. Laws 1838, chap. 172, 1 R. S. (8th ed.) 892; or, before a notary public, who is vested with the same power to take affidavits and to certify to the same in all cases where Justices of the Peace or Commissioners of Deeds may now take and certify to the same. Laws 1859, chap. 360; Laws 1863, chap. 508, § 2; 3 R. S. (8th ed.) 2647.

Commissioners of Deeds may be appointed by the common councils of the different cities in this state. Laws 1848, chap. 75; Laws 1848, chap. 161; 1 R. S. (8th ed.) 380. The office of Commissioner of Deeds in the towns was abolished by Laws 1840, chap. 238.

As a general rule where an inferior officer is required to discharge a duty such as taking an oath before a particular officer, or one of several officers, he cannot legally take the oath before any other officer, and if he does his act is void. National Bank of Chemung v. City of Elmira, 53 N. Y. 49; Craft v. Merrill, 14 N. Y. 456.

While the precise point whether or not the oath of office must be taken before one of the officers named above has not been decided, prudence would dictate that it be done to save any question that might arise. The intimations contained in ex parte Heath, 3 Hill, 42, and Canniff v. Mayor, etc., of N. Y., 4 E. D. Smith, 431, that the provision of the statute is merely directory, would better not be followed.

§ 15. Accompanying certificate.

Whatever officer takes the oath of office, shall certify in writing the day and year when the same was taken, and shall deliver such certificate to the person by whom the oath was made. 1 R. S. (8th ed.) 890, § 14.

For certificate see § 20.