People v. Ryall

11 N.Y.S. 828, 65 N.Y. Sup. Ct. 235, 34 N.Y. St. Rep. 203, 58 Hun 235, 1890 N.Y. Misc. LEXIS 2386

• Court: New York Supreme Court
• Decided: November 26, 1890
• Status: Published

Opinion

Landon, J.

The indictments are under section 154, Pen. Code, which is as follows: “Omission of duty by public officers. Where any duty is or shall be enjoined by lafy upon any public officer, or upon any person holding a public trust or employment, every willful omission to perform such duty, where no special provision shall have been made for the punishment of such delinquency, is punishable as a misdemeanor.” The office of superintendent of public works for the village of Saratoga Springs is created by chapter 257, Laws 1874. His duties are prescribed by the act, and are substantially as follows: He has charge of all the streets, sidewalks, alleys, bridges, culverts, etc., and, if they are out of repair, it is his duty to fix them. It is his duty to remove all obstructions from the streets, etc., to report to the board of trustees the condition of such streets, etc., and to do many other things connected with the streets; and he shall be personally responsible to the public for neglect of duty to the same extent as the commissioners of said village. He has a salary of $800. The duty which he is charged with omitting is described in section 6: “Sec. 6. Before said superintendent shall receive any portion of his salary or compensation, he shall make oath and execute an affidavit that he has not in any manner been interested, pecuniarily, in any contract, work, materials, or other matter, connected with his official duties, as. prescribed by this act, which oath or affidavit shall be filed with the receiver of taxes and assessments of said town or village. ” The indictments charge-no omission of duty with respect to the streets. The only omission charged is the omission to make the oath and execute the affidavit prescribed in section 6. The making such oath and executing such affidavit cannot be done in an official capacity, but must be done by the defendant in his personal capacity. It is his conscience that is challenged. As an individual he knows whether as an officer he has done anything forbidden, and as an individual he must make oath. The omission to make the oath was his individual, not his official, omission. The law does not require the defendant to make the oath and execute the affidavit. It leaves that optional with him, and suspends his right to receive his salary until he shall make oath and execute affidavit. It follows that the wrong done consisted in defendant’s receiving his salary before his right to receive it was complete. If that is a crime, it is not the one-of which he is accused. Judgments affirmed. All concur.