153 A.D. 623 | N.Y. App. Div. | 1912
The following is the opinion of Purcell, J.:
The history and facts out of which the proceeding arose, stated as briefly'as possible, are the following:
On the 30th day of December, 1909, a majority of the Republican members of the board of supervisors of Oneida county, pursuant to the provisions of section 20 of the Comity Law (Consol. Laws, chap. 11; Laws of 1909, chap. 16) designated the Rome Tri-Weekly Republican, a newspaper owned and published by the relator, as a paper to publish the Session Laws and Concurrent Resolutions of the Legislature for the year 1910, and on the same day filed such designation with the clerk of their board. On the day next following the Utica Sunday Tribune Company, which published at the city of Utica, in the said county, the Utica Herald-Dispatch, a newspaper having a general circulation in that county, sued out a writ of certiorari to review the proceeding of the said majority of the members of the board of supervisors in designating the Rome Tri - Weekly Republican as a paper to publish the said Session Laws and Concurrent Resolutions. The order allowing said writ-provided that “the execution of said designation by said Republican Supervisors, and all proceedings on account of or by reason of such determination and any further action of said clerk of said board in reference to or upon said designation * * * be and hereby is stayed pending this certiorari, or until the further order of this court.” The proceeding under said writ was heard on the return thereto by the Appellate Division of
On December 9, 1910, the clerk of the hoard of supervisors of said county filed in the office of the Secretary of State, as provided bylaw, a notice stating that the said Rome Tri- Weekly Republican had been selected as one of the papers for the publication within Oneida county of the Session Laws and Concurrent Resolutions of the Legislature for the year 1910, and prior thereto and pursuant to the provisions of chapter 559 of the Laws of 1902, being the tax law of Oneida county, the relator published the statement and notice relating to the tax sales in said county for the year 1910, which publication consisted of said statement and notice of sale of 486 separate parcels of real estate for the payment of which the statute provides that the county treasurer shall collect not to exceed the sum of two dollars for the publication of each parcel of land for the newspaper publishing the same, and in November of that year the said county treasurer, the respondent herein, sold for the non-payment of taxes the property so advertised and collected from each of the 486 owners and purchasers of said property the sum Of two dollars as a fund with which to pay the proper Republican newspaper in the said county of Oneida entitled to publish the said statement and notice of the list of tax sales for the year 1910, and he now has the said money in his possession or under his control. By the said Oneida county tax law the papers designated by the supervisors of that county to publish the Session Laws and Concurrent Resolutions are the proper papers to publish
The question presented for' determination is whether the relator is entitled to the writ and relief demanded, and unless there was some obstacle to prevent it he would clearly be entitled to it. The obstacle urged is that the designation of the Rome Tri - Weekly Republican was improperly made and amounted to a mere nullity. If this is so, relief must be denied him. If the question stated had come to me as an original proposition I would not hesitate in pronouncing the proceedings of the members of the hoard of supervisors in designating the paper mentioned as the proper one for the publication of the Session Laws and Concurrent Resolutions of the Legislature a clear violation of official duty on their part, but the way is now made all the easier as upon the same or substantially the same state of facts, as we have here the Appellate Division of ■the Supreme Court in this judicial department in no uncertain terms condemned the designation referred to, declared it to be contrary to the provisions of the statute, and pronounced it a nullity. I am asked to ignore this decision for the reason that on appeal to the Court of Appeals the order made by the Appellate Division was reversed. That is true, but the reversal was upon a question of practice, it being held that the proceedings of the supervisors could not be reviewed by certiorari proceedings. " The reasoning, however, of the learned Appellate Division stands, and its decision should be regarded in the disposition of the question here. Justice Robson analyzed the evidence and arrived at the conclusion that the designation was illegal, a nullity, and in this his four associates concurred, and thus we have the deliberate judgment of the five justices of our Appellate Division upon the question of whether the designation was lawful or unlawful.
Enough for the proper disposition of the case has already been said, but before leaving it, to show the impropriety of the
Under this statute, no doubt, the supervisors of Oneida county had the right to make a designation of a newspaper for the purposes specified. Indeed, it was their duty to do so, but such designation had to be one “ fairly representing the political party ” to which they belonged, “regard being had to the advocacy by such paper of the prificiples of its party and its support of the State and National nominees thereof, and to its regular and general circulation in the towns of the county. ” In making such designation, as Justice Robson said: “ In testing the question whether a newspaper does in fact so fairly represent the principles of a political party as to make it eligible for designation, regard must, as the statute provides, be had, not only to its advocacy of the principles of its party and its support of the State and national nominees thereof, but also to its general and regular circulation in the towns of the county in which it is published. If a newspaper is deficient in either of these particulars, and there is another newspaper published in the county which clearly measures up to the full requirements of the statute, it would seem that a designation of the former would he warranted.” Here, the record discloses that the circulation of the Rome Tri - Weeldy Republican did not exceed 1,000 copies, and that there were at least two large towns in the county where it did not appear to have any circulation at all, nor was proof made either in the certiorari pro
But it is said that the proceedings of members of the board of supervisors under the same circumstances as occurred here are not open to review, the Court of Appeals having held that certiorari will not lie. If certiorari will not lie, I cannot think that no remedy exists in cases where members of a board fail to perform their duty. It is true mandamus will not always lie to compel a body to act in a particular way, but it will lie to compel performance of official duty, and should" a board of supervisors fail in this respect in a proper case made, I doubt not mandamus would lie. (People ex rel. Schau v. Mc Williams, 185 N. Y. 92.)
In view of the conclusion that I have arrived at, I do not deem it necessary to discuss the question of whether the respondent or even the relator was bound by the restraining order contained in the writ of certiorari referred to. I will say, however, that the language of the order restrained the execution of the designation -until the further order of the court, and this, of course, lasted until the decision made by the Court of Appeals in December, 1910. Doubtless both the respondent and relator had full knowledge of the restraining order and anything done under it by either of them was in violation of its terms, and would have doubtless led to punishment, if contempt proceedings for that purpose had been instituted. It is dangerous to trifle with a restraining order of the court even where persons are not parties to the proceeding in which it is issued. (People ex rel. Stearns v. Marr, 181 N. Y. 468.)
My conclusion is that the relator’s application should be denied and the proceedings dismissed, but, on account of thó peculiar circumstances of the case, without costs.