Stone v. Healy

Hosmer, Ch. J. The question for the Court’s determination, is merely this; whether the plaintiff, at the time when he attached the goods in question, was a constable of the town of Guilford. Before the adoption of the constitution of this state, he was duly appointed and sworn; but the attachment he levied after the constitution was adopted, without having taken the oath of office prescribed by that instrument. It is contended, that the reception of this oath was an indispensible qualification of office. I am of a different opinion. It never was the intention of the constitution to put an end to the executive authority in any, much less in all its departments. The supposition is too grossly inconvenient to be countenanced. But if the oath provided by the constitution was necessary, for those who held offices at the time of its adoption, the absurd consequence suggested, inevitably must result. The constitution declares, that all officers, executive and judicial, shall, before they enter on the duties of their respective offices, take the oath prescribed. Art. 10 sect. 1. The phraseology necessarily implies futurition; and clearly indicates, that all officers, who, in time to come, should be appointed, and who had not entered on the duties of their offices, should take the oath; but until a future appointment to office, the government of the state was not to be suspended If this had been the intention, the declaration would have been explicit, that officers, judicial and executive should be incapable of any official act, until the oath prescribed was received; but the exigencies of the case did not require such a provision. Sufficient, it was supposed to be, that in future every incumbent of office should swear to support the constitution of this state, and that of the United States. [280] Peters, Brainard and Bristol, Js. were of the same opinion. New trial not to be granted.