Matter of Taylor

This is a very hard case, and if the court can .grant the relator the relief asked for, it should do so.

The facts set forth in the affidavit of relator, on which the

The relator has been a member of the police force ever since April 17, 1884, and has regularly done duty as patrolman since his appointment at that time. In May, 1890, the father of the relator’s wife, who resided at Bethel, Sullivan County, in this State, while visiting at the relator’s house, died on the 11th day of that month. In order to accompany the remains of his father-in-law to Bethel, where interment was to take place, the relator took his vacation earlier than he otherwise would have done, and had a fourteen days’ leave of absence from the department, extending from the 11th to the 25th day of May, and went with such remains to Bethel, where he remained until May 24, when he returned to ¡New Y orle. There is no telegraphic station at Bethel, the nearest-one being five miles distant, and there is no railroad station there, the nearest one being twelve miles distant.

When the relator left ¡New York, on May 11, he had no-knowledge of the provisions of chapter 163 of the Laws of 1890, nor did he know that any such act had been passed, introduced, or was contemplated. The first knowledge that the relator had that any oath or statement was required of' the members of the force'within thirty days from the date of the passage of the act was on May 24,1890. The board of police issued an order requiring members of the force to assemble on May 22, for the purpose of taking the oath required by said act, but the relator had no knowledge of such order until his return to the city. The captain of his precinct, it appears, did, on the 20th or 21st of May, intrust a dispatch to an officer, to be transmitted to the relator at Bethel, concerning the requirements of the law, but such officer, learning at the Grand Central Depot that there was no telegraphic station at Bethel, did not forward the dispatch. ■

The relator is not, and never has been, directly or indirectly interested in the manufacture or sale of spirituous or malt liquors, ales, wines or beer, and could truthfully take the oath provided for in said chapter 163 of the Laws of 1890, and,,

Notwithstanding these facts, the relator was notified on Hay 28 that he had been discharged from the force, no reason being given therefor, and no charges ever having been preferred against him.

The act, chapter 163 of the Laws of 1890, was passed on the 22d of April, and the third section declares that all members of the police force shall, within thirty days after the passage of the said act, make and subscribe an oath before an officer duly authorized to take the acknowledgment of deeds,., to the effect that he is neither directly nor indirectly interested in the manufacture or sale of any spirituous or malt liquors,, wine or beer. While it was undoubtedly the duty of the board of police to require members of the force to comply with the statute, and take the oath therein provided for, within thirty days after the passage of the act, I do not think that, under the circumstances of this case, the failure of the relator-to take the oath within such thirty days justified his discharge from the force. It would, in my opinion, be an unreasonable construction of the statute to hold that a failure to take the; perscribed oath within thirty days after the passage of th& act, operated in every instance to deprive members of the-, police force of their places, Hany laws have been passed! from time to time, the object of which was to render members of the police force secure in their places, and to prevent their discharge except for cause and after a hearing, and at the present time such laws are in full force and effect. Suppose that, at the time of the passage of the act and for thirty days thereafter, members of the police force were sick, and for that reason unable to take the oath; or that, at the time of the passage of the act, and for thirty days thereafter, other members of the force were absent from the State on duty,, pursuant to orders from their superior officers. It is inconceivable that the Legislature should have intended, in eases;

My opinion is that the provision of section 3, requiring the oath to be taken within thirty days after the passage of the act, must be regarded as directory merely, and not mandatory. This view is confirmed by the language of the last sentence of said section 3, which is: “ The failure to take the oath in this section prescribed shall disqualify anyone irom holding, or debar any one from continuing to hold, any -office or position mentioned in this act.”

It will be observed that this sentence does not declare that •a failure to take the oath within, thirty days after the passage -of the act shall disqualify anyone from holding, or debar anyone from continuing to hold, any office or position, but in •effect provides that a failure to take the oath at all shall ■produce such disqualification or debarment.

The books are full of cases in which it has been held that •similar provisions in statutes were directory and not mandatory. “ Generally the rule is, when a statute specifies the time within which a public officer is to perform an act regarding the rights and duties of others, it will be considered as directory merely unless the nature of the act to be performed or the language of the statute shows that the designation of time was intended as a limitation of power” (People v. Allen, 6 Wend. 487 ; Jackson v. Young, 5 Cow. 269 ). “ The statute which requires an officer before whom proceedings are,had against an absconding, concealed or non-resident debtor to make and file his report within twenty days after the appointment of • trustees, and the latter to cause their appointment within thirty days,is directory merely” (Wood v. Chapin, 13 N. Y. 509 ). “ The provision in the statute limiting the time of a referee to make his report is merely directory 55 (Matter of Empire City Bank, 18 N. Y. 200 ). <c The

Upon principle and authority I think that the provision of ■said section 3, requiring the oath to be taken within thirty •days after the passage of the act, must be considered as directory merely, and not mandatory, and that the oath could be lawfully taken within a reasonable time after the expiration of •such thirty days; and what should be considered a reasonable time must depend upon the circumstances of each case.

In the present case the relator did not know of the requirements of the statute when he went away, nor until his return, ■and immediately after his return he presented himself at the police department and offered to take the oath; and I think that he should have been allowed to do so.

The application for a mandamus will be granted, but as it is against public officers, who, no doubt, acted in accordance with what they believed to be their duty, it will be without costs.