13 Abb. N. Cas. 421 | N.Y. Sup. Ct. | 1883
— This application presents questions of law only upon the following undisputed facts: The board of supervisors of the county of Greene, on the 24th day of December, 1883, pursuant to the provisions of chapter 215 of the Laws of 1870, entitled “An act to amend ‘An act for the publication of the Session Laws by two newspapers in each county of this state,’ passed May 14, 1845,” undertook to designate the two papers published in the county of Greene which should publish such laws. Upon the ballot which was taken to accomplish that object, the Catskill Examiner received five votes, the Windham Journal received five votes, and the Catskill Recorder four votes. The chairman of the board, immediately after the result of the ballot had been announced, decided that the Examiner and Journal had been selected, and so also the board of supervisors, on a subsequent day, declared by resolution.
It is conceded that the Examiner and Journal are of opposite politics, the -former being a republican paper and the latter a democratic one, and that they fairly represent the two
It is also conceded that the Recorder is a democratic paper, and would likewise fairly represent the sentiments of the democratic party; and it is further averred, in the moving papers, that the Recorder was the choice of a majority of the members of the board of supervisors who had been elected upon the regular democratic tickets in the various towns.
The legal position of the applicant for the writ is, that as the two papers 'claimed by the board to have been selected received an equal number of votes, there has been no selection.
The statute (chap. 215 of Laws of 1810) declares the appointment shall be made in the following manner: “ Each member of the board of supervisors shall designate by ballot one newspaper printed in the county to publish the laws, and the paper having the highest number, and the paper having the next highest number of votes, shall be the papers designated for printing the laws, provided such papers are of opposite politics, and fairly represent the two principal political parties into which the people of the county are divided.”
It being conceded that the two papers which the board of supervisors claim were designated “ are of opposite politics, and fairly represent the two principal political parties into which, the people of the county are divided,” the question which the motion presents is, when three papers are voted for, and the two claimed to have been selected received an equal number of votes, has there been a selection, as the statute in plain terms declares that “ the paper having the highest number, and the paper having the next highest number of votes, shall be the papers designated ? ” Tn other words, when the law is plain and unambiguous in its language, and there is no expression, word or clause in the act limiting, construing or explaining the words used, can it receive any other construction or interpretation than that which its language plainly and directly calls for. •
It was warmly contended upon the argument that in the
But why speculate as to the intent ? We have plain language for our guidance, embodying a meaning which seems free from doubt, and it is safer and better to follow the statute as embodying the legislative will than to interpolate and change words so as to conform its intent to our views of what it should have been. Allen, J., in McCluskey agt. Cromwell (11 N. Y., 593, 601), well said: “ It is beyond
In construing this law the conclusions reached are (1st) that if the legislature has not said what it intended to say, that
In announcing these conclusions I am well aware that other minds will take a different view of the statute under consideration. Believing, however, that the courts are to interpret and not frame laws, to my own mind the result is clear and not to be avoided. The enunciation of such conclusion brings me to the last question which this motion presents: Should the mandamus asked for be granted ?
By the act, it is made “ the duty of the board of supervisors in the several counties of this state, at their annual meeting, to appoint the printers for publishing the laws in their respective counties.” That duty has not been discharged, and a duty imposed by law can be compelled to be discharged. This court has no power to inform the board what papers it should select, but it can and does inform it what is the proper construction of the statute, and how a selection must be made. It is true that the act does not require a second ballot, or a third ballot, but it does require a selection, or designation, and states how it shall be made. It was unnecessary to expressly confer the right to cast a second or additional ballots, for when an act is to be done the right to do everything necessary to complete the act is conferred by implication. One ballot having failed to make a designation, as required by law, the right to take others follows.
The mandamus asked for should be granted, but without costs.