Opinion
June 27, 1906.
William J. Roche, for the relator.
John T. Norton and George B. Wellington, Corporation Counsel, for the respondents.
The provision of the charter designating the manner in which the common council shall determine the circulation of the respective newspapers is not inconsistent with the provision of the Second Class Cities Law, and remains in effect by virtue of section 483 of the latter statute. The authority of the common council to designate official newspapers was not pursued in the mode required by law, and in making its determination it violated the rights of the relator to its prejudice and, therefore, that determination is reviewable by certiorari. (Code Civ. Proc. § 2140.) The relator is interested in having such review, for it continues the official news paper until its successor is properly designated. This statute relating to the designation of official newspapers was evidently intended to bring the public matters before the newspaper readers of the two principal parties. It is clear that a Republican newspaper and a Democratic newspaper, or a newspaper of any other party, may be said to be newspapers of opposite political faith, but a newspaper which supports no party, and advocates the principles or candidates of no party, but is the personal organ of its publishers and proprietors, at times supporting the candidates and principles of either of the other parties as its officials may determine, cannot be said to be a paper of opposite political faith to any regular party paper. The Evening Standard is not of a political faith opposite to any party newspaper. It is independent in its politics, and may during all the term covered by the present designation support Republican policies and candidates or the policies and candidates of any other party. If its designation stands, both official newspapers may, during all the term of the designation, support the same political policies and candidates, which is not the intention of the statute. A religious newspaper, an agricultural newspaper, or any trade journal may from time to time advocate certain political principles or candidates, but by so doing it does not become, within the meaning of this statute, a newspaper of opposite political faith to any party newspaper. The Evening Standard voices the principles of no political party and is not qualified to act as an official newspaper. It would seem that, while its circulation is large, its subscribers must be made up of Democrats, Republicans and persons of other parties, as it has no party of its own. In the State and National campaign of 1904 it did not support the Democratic principles or candidates; nor in the election of November, 1905. The mere fact that for these years it did not support the regular Democratic candidates might not disqualify it for being designated as a Democratic paper if its general faith was Democratic and it generally advocated the principles and candidates of that party. But that question is not here for deter, mination and is not determined. The record shows that it is neither of the Democratic, the Republican or any other political faith, and clearly upon the facts shown here the two newspapers of the city having the largest circulation and of opposite political faith are the Republican and the Democratic papers respectively having the largest circulation. The petition makes the positive affirmation as to the independent character of the Standard. The return does not reply to those allegations at all except by a general allegation upon information and belief that the Troy Daily Times and the Troy Evening Standard, the two papers whose designation is under review, were the two daily newspapers published in the city which have the largest circulation and are of opposite political faith. This in view of the positive allegation in the petition as to the non-partisan character of the Standard, must be viewed simply as a conclusion, and probably rests upon the view of the respondents that an independent paper is of opposite political faith to a Democratic or Republican paper. I do not, therefore, consider that this part of the return meets or controverts the allegation in the petition that the Standard is not a party but is an independent paper and that fact, therefore, stands admitted.
For the reason, therefore, that the common council in making the designation did not act in the manner and upon the evidence required by the charter of the city, and also for the reason that the Evening Standard, one of the papers designated, is not eligible to such designation, the designation of newspapers made in January, 1906, is annulled, and the common council is required, within thirty days after the service of the order herein, to meet and designate official newspapers according to law, with fifty dollars costs and disbursements to be paid by the respondent.
All concurred.
Determination of the common council annulled, and the common council is required, within thirty days after service of the order herein, to meet and designate official newspapers according to law, with fifty dollars costs and disbursements to be paid by the respondent.