quirement that officers included in it must be elected in odd-numbered years. People ex rel. Howard v. Wende (1898) 25 Misc. 330, 53 N. Y. Supp. 1039; People ex rel. Howard v. Erie County (1899) 42 App. Div. 510, 59 N. Y. Supp. 476, affirmed in (1899) 160 N. Y. 687, 55 N. E. 1099. See also People ex rel. Ward v. Scheu (1901) 167 N. Y. 292, 60 N. E. 650, in which it is held that the provision relating to elections to fill vacancies is not mandatory, but permissive.

The provision in this section that the term of city officers shai! expire at the end of an odd-numbered year was considered in People v. Fitzgerald (1904) 96 App. Div. 242, 89 N. Y. Supp. 268, affirmed in (1905) 180 N. Y. 269, 73 N. E. 55, and it was there said that the term of such an office expires at midnight on the last day of December. It was accordingly held that $94 of the Greater New York charter (1901, chap. 466), which provides that the mayor shall hold office for two years, commencing at noon on the first day of January following his election, could not be construed to carry the term beyond midnight of the last day of December.

ARTICLE XIII.

[OFFICIAL OATH; BRIBERY; PASSES.]

§ 1. [Oath of office.]-Members of the legislature, and all officers, executive and judicial, except such inferior officers as shall be by law exempted, shall, before they enter on the duties of their respective offices, take and subscribe the following oath or affirmation: "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 according to the best of my ability;" and all such officers who shall have been chosen at any election shall, before they enter on the duties of their respective offices, take and subscribe the oath or affirmation above prescribed, together with the following addition thereto, as part thereof:

"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 other valuable thing as a consideration or reward for the giving or withholding a vote at the election. at which I was elected to said office, and have not made. any promise to influence the giving or withholding any such vote;" and no other oath, declaration, or test shall be required as a qualification for any office of public trust. [Const. 1821, art. 6, § 1; 1846, art. 12, § 1; Am. 1874]

In the chapter on the Commission of 1872 I have quoted Mr. Dudley's proposition, amending this section by providing, among other things, that a false official oath should be deemed sufficient cause for removal, and, in a note to § I of article 10, have called attention to the fact that Governor Odell, in 1902, removed a sheriff substantially on the ground that he had taken a false oath.

The civil service acts (1884, chap. 410, and 1887, chap. 464) giving a preference to veterans are not a violation of the prohibition against any other oath or test. Qualifications relating only to fitness do not constitute a "test," nor can the preference given to veterans be deemed a "test" within the meaning of this provision. Re Wortman (1888) 22 Abb. N. C. 137, 2 N. Y. Supp. 324, Daniels, J., who gives an interesting sketch of the origin of the test oath imposed by the statute of Charles II., which is cited in the chapter on the Colonial Period.

The civil service act of 1883, chap. 354, Am. 1884, chap. 410, provided for a state civil service commission, to be composed of three members appointed by the governor, but not more than two of whom should be adherents of the same party. This provision was challenged as imposing an unconstitutional test under this section, but it was sustained in Rogers v. Buffalo (1890) 123 N. Y. 173, 9 L. R. A. 579, 25 N. E. 274, the court holding that "the imposing of a test, by means of which to secure the qualifications of a candidate for an appointive office, of a nature to enable him properly and intelligently to perform the duties of such office, violates no provi

sion of our Constitution." The court say that, looking at the question "as a matter of common sense, we are quite sure that the framers of our organic law never intended to oppose a constitutional barrier to the right of the people, through their legislature, to enact laws which should have for their sole object the possession of fit and proper qualifications for the performance of the duties of a public office on the part of him who desired to be appointed to such office."

The provision of this section that no other oath, declaration, or test shall be required as a qualification for any office of public trust, was violated by the act of 1890, chap. 163, requiring an excise commissioner to file an oath that he had not been directly or indirectly engaged in the manufacture or sale of intoxicating liquors, and depriving him of his office unless he should take such oath. The constitutional provision does not "prohibit the legislature from prescribing qualifications as to fitness for office, but does prohibit requiring the candidate to take any oath or declaration as to such qualification or fitness; it may undoubtedly prescribe tests by which the candidate's fitness for the position aspired to may be demonstrated, and it may impose certain conditions as to experience or fitness, as in requiring that the holder of certain offices shall be above the age of twenty-one years, that inspectors of election shall be able to read and write, that the holders of specific offices shall be civil engineers, or attorneys and counselors at law, but it prohibits the requiring of any qualifications which are measured or determined by the oath or declaration of the candidate for office himself." People ex rel. Bishop v. Palen (1893) 74 Hun, 289, 26 N. Y. Supp. 225.

Section 41% of the Penal Code, which requires a candidate for office to file a sworn itemized statement of his election expenses, is repugnant to the provision prohibiting any additional oath, declaration, or test as a qualification for office. Stryker v. Churchill (1903) 39 Misc. 578, 80 N. Y. Supp. 588.

§ 2. [ Bribery of public officers.]—Any person holding office under the laws of this state who, except in payment of his legal salary, fees, or perquisites, shall receive or consent to receive, directly or indirectly, anything of value or of personal advantage, or the promise thereof, for performing or omitting to perform any official act, or with the express or implied understanding that his official action

or omission to act is to be in any degree influenced thereby, shall be deemed guilty of a felony. This section shall not affect the validity of any existing statute in relation to the offense of bribery.

[Am. 1874, art. 15, § 1.]

The history of the bribery provisions of the Constitution will be found in former volumes. The subject engaged the attention of several conventions and legislatures, resulting in a new article which was included in the amendments adopted on the recommendation of the Commission of 1872.

§ 3. [Bribery, how punished.] Any person who shall offer or promise a bribe to an officer, if it shall be received, shall be deemed guilty of a felony, and liable to punishment, except as herein provided. No person offering a bribe shall, upon any prosecution of the officer for receiving such bribe, be privileged from testifying in relation thereto, and he shall not be liable to civil or criminal prosecution therefor, if he shall testify to the giving or offering of such bribe. Any person who shall offer or promise a bribe, if it be rejected by the officer to whom it was tendered, shall be deemed guilty of an attempt to bribe, which is hereby declared to be a felony.

[Am. 1874, art. 15, § 2.]

In People v. Sharp (1887) 107 N. Y. 427, 1 Am. St. Rep. 851, 14 N. E. 319, will be found an interesting discussion of the question whether a witness may refuse to answer before a committee of the state senate appointed to investigate certain charges of bribery in the city of New York, but the case in the court of appeals does not directly involve this section. The general term ([1887]

45 Hun, 461) had held that the section did not apply under the circumstances disclosed by the evidence.

§ 4. [Witnesses.]-Any person charged with receiving a bribe, or with offering or promising a bribe, shall be permitted to testify in his own behalf in any civil or criminal prosecution therefor.

[Am. 1874, art. 15, § 3.]

See note to § 2.

§ 5. [Passes.]-No public officer, or person elected or appointed to a public office, under the laws of this state, shall directly or indirectly ask, demand, accept, receive, or consent to receive for his own use or benefit, or for the use or benefit of another, any free pass, free transportation, franking privilege, or discrimination in passenger, telegraph, or telephone rates, from any person or corporation, or make use of the same himself or in conjunction with another. A person who violates any provision of this section shall be deemed guilty of a misdemeanor, and shall forfeit his office at the suit of the attorney general. Any corporation, or officer or agent thereof, who shall offer or promise to a public officer, or person elected or appointed to a public office, any such free pass, free transportation, franking privilege, or discrimination, shall also be deemed guilty of a misdemeanor, and liable to punishment except as herein provided. No person or officer or agent of a corporation giving any such free pass, free transportation, franking privilege, or discrimination hereby prohibited, shall be privileged from testifying in relation thereto, and he shall not be liable to civil or criminal prosecution therefor if he shall testify to the giving of the same.

[New.]