authority conferred by this section a commissioner of highways would not be permitted to hold his office after the expiration of his term. People v. Tiernan, 30 Barb. 193, 8 Abb. 359. The word "qualified" as used in this section of the Public Officers' Law means to take an oath of office, and to file an official undertaking as required by law. People ex rel Williamson v. McKinney, 52 N. Y. 374, 380. highways, who has been duly elected, fails to qualify by filing his official oath of office and undertaking the commissioner in office at that time continues therein until the vacancy is filled as provided by law. So where a commissioner of § 3. Commissioners of highways; number of, how determined. -The electors of such town may at their biennial town meeting, determine by ballot whether there shall be elected in their town one, two or three commissioners of highways. Whenever any town shall have determined upon having two or three commissioners of highways and shall desire to have 'but one, the electors thereof may do so by a vote by ballot taken at a biennial town meeting, and when such proposition shall have been adopted no other commissioner shall be elected or appointed until the term or terms of those in office, at the time of adopting the proposition shall expire or become vacant and they may act until their terms shall severally expire or become vacant as fully as if two or three continued in office. When there shall be but one commissioner of highways in any town, he shall possess all the powers and discharge all the duties of commissioners of highways as prescribed by law. In towns of less than two square miles in area, where five-sixths of the territory shall consist of an incorporated village or villages, the office of highway commissioner is hereby abolished and the powers and duties heretofore performed by him shall devolve upon the town board of such town together with such further power and authority over highways, streets and bridges as are now possessed by or that may be hereafter granted to boards of trustees of villages of the third class. The provisions of this act shall not affect or abridge the term of office of any highway commissioner elected prior to the passage of this act. (Town Law § 15, as amended by L. 1903, chap. 57.). Submission of proposition; application for vote.-Where prop ositions are to be voted upon by ballot at a town meeting, a written application for the submission of such a proposition, plainly stating the question to be voted upon, should be filed with the town clerk at least twenty days before the town meeting. The town clerk is then required, at the expense of the town, to give at least ten days' notice, posted conspicuously in at least four of the most public places in the town, of such proposed question, and that a vote will be taken by ballot at the town meeting mentioned, (Town Law, § 32.) Where it is proposed to change the number of commissioners of highways an application for the submission of a proposition therefor should be directed to the town clerk, should be signed by the electors desiring the submission of such proposition, should state plainly the question desired to be voted upon, and should request a vote thereon at a town meeting specified therein. The form of such application may be as follows: FORM NO. 1. Application for Submission of Proposition as to Number of Commissioners of Highways. county of........... hereby make ap To A. B., town clerk of the town of........ The undersigned, electors of the town of.. lication pursuant to the provisions of section 32 of the Town Law, for the submission of a proposition at the biennial town meeting to be held in such town on the......day of........, 19...., upon the following question: Shall there be hereafter elected in the town of..... commissioners of highways? And said applicants hereby request that a vote be taken upon such proposition at such town meeting. Dated this........day of.... ..., 19.... C. D. § 4. Qualifications.-a. Eligibility. Every elector of a town is eligible to the office of commissioner of highways, (Town Law, § 50). No person shall be capable of holding the office of commissioner of highways who shall not at the time he shall be chosen, or within which the electors electing him reside, or a resident of the state, a resident of the town for which he shall De chosen, or within which the electors electing him reside, or within which his official functions are required to be exercised, (Public Officers' Law, § 3). b. Oath of office.-Every person elected or appointed to any town office, except justice of the peace, shall before he enters on the duties of his office, and within ten days after he shall be notified of his election or appointment, take and subscribe befor some officer authorized by law to administer oaths in his county, the constitutional oath of office, and such other oath as may be required by law, which shall be administered and certified by the officer taking the same without reward, and shall within eight days be filed in the office of the town clerk, which shall be deemed an acceptance of the office; and a neglect or omission to take and file such oath, or a neglect to execute and file, within the time required by law, any official bond or undertaking, shall be deemed a refusal to serve, and the office may be filled as in case of vacancy. (Town Law, § 51.) Section 10 of the Public Officers' Law is to the same effect. Under the above section a commissioner of highways is required within ten days after he shall be notified of his election or appointment to take and subscribe the constitutional oath of office. Such oath is prescribed by the Constitution (Const., art, 13, § 1), as follows: "I do solemnly swear, (or affirm), that I will support the constitution of the United States and the Constitution of the State of New York, and that I will faithfully discharge the duties of the office of commissioner of highways according to the best of my ability." (If the commissioner was elected to the office the oath must also contain the following clause). “And I do further solemnly swear, (or affirm), that I have not directly or indirectly paid, offered or promised to pay, contributed, or offered or promised to contribute, any money or valuable thing as a consideration or reward for the giving or withholding a vote at the election at which I was elected to such office, and have not made any promise to influence the giving or withholding of any such vote." Such oath may be taken before a justice of the Supreme Court, county judge, surrogate, special county judge, special surrogate, county clerk, deputy county clerk, justice of the peace, notary public, or commissioner of deeds. It is also provided that a town officer may administer any necessary oath in any matter or proceeding lawfully before him, or to any paper to be filed with him as such officer. (Town Law § 56). Since the oath of office of a commissioner of highways is to be filed with the town clerk, it is probable that such oath may be taken before the town clerk. The Constitution provides that no other oath, declaration or test shall be required as a qualification for any office of public trust, (Const., art. 13, § 1), so that notwithstanding the provisions of section 51 of the Town Law, it is not permissible to exact of a commissioner of highways any other oath. A failure of a commissioner of highways to take and file the oath of office before entering upon his duties is a misdemeanor, (Penal Code, § 42). Notwithstanding the commissioner's failure to take the oath of office, he is an officer de jure, and may perform the duties of his office; the courts holding that the provisions of the statute compelling an officer to file an oath are not self-executing and do not work a forfeiture of the office, but that such forfeiture must come from some act, judicial or otherwise, which effectually ousts the officer. Horton v. Parsons, 37 Hun. 42, 45; Foote v. Stiles, 57 N. Y. 399. The filing of an official oath constitutes an acceptance of the office, and an omission to take and file such oath is a refusal to serve, and the office may be filled as in the case of vacancy. The law contemplates two steps by a commissioner elected to office. The first to be taken is the filing of his oath of office. When that has been done the office is deemed to have been accepted, and that is equivalent to saying that the officer elect has entered upon his duties. It is after so entering upon his office, and within a specified time thereafter, that he is required to execute and submit his undertaking. That he is regarded as in office when he has filed his oath is perfectly clear from the provision that neglect to file the oath within the prescribed time causes a vacancy. When he has evidenced in the required manner his acceptance of the office to which he was elected, his predecessor is out. Matter of Bradley, 141 N. Y. 527, 36 N. E. 598. c. Undertaking. Every commissioner of highways shall, within ten days after notice of his election or appointment, ex ecute an undertaking with two or more sureties, to be approved by the supervisor of his town, to the effect that he will faithfully discharge his duties as such commissioner, and within ten days after the expiration of his term of office, pay over to his successor all moneys remaining in his hands as such commissioner, and render to such successor true account of all moneys received and paid out by him as such commissioner, which undertaking shall be delivered to the supervisor, and filed by him in the office of the town clerk within ten days thereafter. (Town Law, § 63.) Form of undertaking and liability thereon.-Every undertaking of a commissioner of highways must be executed by such officer and his sureties, and acknowledged or proven and certified in like manner as deeds to be recorded, and the approval indorsed thereon. The parties executing such undertaking shall be jointly and severally liable, regardless of its form in that respect for the damages to any person or party by reason of a breach of its terms, (Town Law, § 66). Conditions generally affecting undertakings of commissioners.— The statute relating to the undertaking of a commissioner of highways does not specify the sum for which the undertaking is to be given. The undertaking is based upon the amount of money received by the commissioner and expended by him in the course of his official duties. If no sum be specified in the undertaking it will be deemed to be an undertaking for the amount received by the commissioner. It is proper, however, to include in the undertaking a specified sum for which the commissioner and sureties will be bound. If a sum be so specified in the undertaking, it shall not limit the liability of the sureties therein. (Public Officers' Law, § 11). It is required that every official undertaking be executed and duly acknowledged by at least two sureties, each of whom must add thereto his affidavit that he is a freeholder or householder within the state, stating his occupation and residence, and the street number of his residence and place of business if in a city, and a sum which he is worth over and above his just debts and liabilities and property exempt from execution. The aggregate of the sum so stated in such affidavit must be at least double the amount |