Opinion
Argued January 11, 1907
Decided February 19, 1907
Otto T. Hess and Thomas W. Churchill for appellant.
William B. Ellison, Corporation Counsel ( Arthur C. Butts, Terence Farley and Thomas F. Noonan of counsel), for respondents.
The statute under consideration in this case required the defendants, amongst other things, to make publication of a list of the registration and polling places designated for the borough of Manhattan "in four daily newspapers published in the Borough of Manhattan which advocate(d) the principles of the political party polling the highest number of votes in the state at the last preceding election for governor, and also in four daily newspapers published in the Borough of Manhattan which advocate(d) the principles of the political party polling the next highest number of votes for governor at said election, one of which newspapers may be a daily newspaper published in the German language." (L. 1896, ch. 909, § 10, as amended by L. 1906, ch. 259.) Under this statute it became the duty of the defendants to designate what may be generally described as four Democratic newspapers, and they made a purported compliance with this requirement. The relator, claiming that the newspapers selected did not meet the test imposed, instituted mandamus proceedings to compel the defendants to designate the "Daily News" as one of the four Democratic papers. Upon the return of the application the Special Term made an order that a peremptory writ of mandamus forthwith issue commanding the defendants to publish the notice in question "in four daily newspapers published in the Borough of Manhattan which advocate the election of William Randolph Hearst as the candidate of the Democratic party for Governor, the said Democratic party being a political party polling the next highest number of votes for Governor at the last election in the State of New York, and its platform as set forth at the convention held in the city of Buffalo, State of New York, on the 26th day of September, 1906, at which said convention William Randolph Hearst of New York was nominated for Governor and the Democratic ticket as nominated at said convention."
Upon appeal to the Appellate Division that court reversed the order of the Special Term and directed that a mandamus issue requiring the defendants to publish the notices in question "in four daily newspapers published in the Borough of Manhattan which advocate the principles of the Democratic party."
We think and hold that the order of the Special Term was clearly erroneous and that the order of the Appellate Division was correct.
The first order required the defendants to measure the availability of a newspaper by the threefold test whether it was (1) supporting a certain candidate for governor, (2) supporting a platform adopted at a certain convention, and (3) supporting the ticket as nominated at said convention. No such test was prescribed by the statute, and the Appellate Division applied the proper rule in requiring the defendants, as a board of elections, to appoint papers which advocated the principles of the Democratic party. That was the test provided by the statute. Of course, if a controversy should arise over the fact whether defendants did satisfy this test and designate papers advocating the principles of a certain party it might be pertinent, as bearing upon and tending to the solution of the inquiry, to ascertain whether those papers did or did not support certain candidates and platforms. But that would be a matter of proof under the provisions of the statute. The rule laid down by those provisions relates to "principles."
Many other questions are argued upon this appeal and some of them seem to have been more or less considered and discussed in the court below. The answer which we have given to the particular proposition very briefly considered is sufficient to lead to an affirmance of the order appealed from, and we do not desire at this time to pass upon, or even consider, the other questions pressed upon our attention. It will be sufficient to consider them hereafter if they arise and are presented in any case or proceeding which necessarily involves a disposition of them.
The order should be affirmed, with costs.
CULLEN, Ch. J., EDWARD T. BARTLETT, HAIGHT, VANN, WILLARD BARTLETT and HISCOCK, JJ., concur.
Order affirmed.