Majority
p. 438The People, on the relation of Dobbs, vs. Dean, clerk of New-York Common Pleas.
Headnote
A minor is inhoíding a civil officet within it belongs’ not to the officer whose duty it is to administer the oath of Omce to refuse, to administer such oath.The relator has been appointed, since the first day of J anuaiT instant, a commissioner of deeds in the city of New-York. On presenting himself before the clerk of the common pleas of New-York to take the oath of office, the clerk refuse(j to administer the oath, on the ground that the relator . ’ P . was a minor within the age of 21, and theretore incompetent to the office. The relator applies for a mandamus di- . , . , , . . ,, r r , rectmg the clerk to administer the oath,
By the Court,
A minor and an alien are incapable of holding a civil office within this state, (1 Revised Statutes, 116, § 1;) but it is not the province of the officer to whom application is made to administer the oath of office to determine whether the person presenting himself is or is not capable of holding, an office. It is the duty of such officer, on the production of the commission, to administer the
p. 439
oath. If an appointment has been improvidently made, there is a legal mode in which it may be declared void. Let an altentative mandamus issue.