Opinion
January, 1903.
Lewis E. Carr, for plaintiff.
Clarence E. Bloodgood, for defendant.
An order to show cause takes the place of a notice of motion, and cannot be substituted therefor, except in the manner particularly pointed out and authorized by section 780 of the Code of Civil Procedure, and by rule 37 of the General Rules of Practice of the Supreme Court.
The affidavit upon which the order to show cause herein was granted sets forth none of the matters required by such section of the Code, or by such rule of practice, to be stated for that purpose.
The plaintiff had ample time to give the regular notice of motion, and therefore there was no occasion for the order to show cause, and the same was improperly granted, and should therefore be vacated.
It is claimed, however, that even although the order to show cause should be vacated, that the injunction embodied in the same order may stand. Without discussing that as a matter of practice, and as to whether, when both matters are so coupled together in the same order, the vacating of one portion does not cause the other to fall with it, it seems best to me to treat that branch of the matter upon its merits.
The plaintiff's action is entirely based upon the defendant's failure to file the sworn statement prescribed by section 41x of the Penal Code, and it is claimed that by his failure to do so, he has forfeited his office. So far as that section provides for the forfeiture of the office by failure to make and file the oath prescribed, it is repugnant to article XIII of the Constitution of the State of New York. That article after prescribing the form of oath to be taken by the members of the Legislature, and all officers executive and judicial, except such inferior officers as shall be by law exempted, concludes, "And no other oath, declaration or test shall be required as a qualification for any office of public trust."
The section of the Penal Code referred to is the requirement of an oath other than that prescribed by the Constitution as a condition for holding public office, and seems to me therefore to be in direct conflict with such Constitution.
The principle involved in this case was directly passed upon in the case of People ex rel. Bishop v. Palen, 74 Hun, 289.
I cannot see any distinction in principle between that case and the one now under consideration.
That portion therefore of section 41x of the Penal Code that makes the failure to file the sworn statement therein prescribed a forfeiture of office, is repugnant to the Constitution, and void.
For these reasons, the order to show cause is vacated, and the injunction dissolved, with ten dollars costs of motion.
Order to show cause vacated and injunction dissolved, with ten dollars costs.