Majority
p. 58The People of the State of New York ex rel. The Utica Sunday Tribune Company, Respondent, v. Thomas Williams and Others, Republican Members of the Board of Supervisors of Oneida County, New York, During the Year 1909, Appellants, and Margaret H. Ward, Clerk of Said Board, Defendant. Fourth Department, July 12, 1910.
Headnote
Certiorari — striking out portion of return —when new return should be ordered— County Law — designation of newspaper to publish Session Laws — purpose of statute'-— qualification of newspaper — when designation erroneous.While the court in directing a further return‘of a writ of certiorari may direct that certain objectionable parts of the prior return be omitted, it cannot strike out such objectionable parts without ordering a further return where the prior return is left imperfect and meaningless.
The purpose of section 20 of the County Law, authorizing the designation of a newspaper fairly representing a political party as a medium for the publication of the Session Laws and resolutions of the Legislature, is to give the People . of the State early and general notice of their enactment and provisions.
In determining whether a newspaper is eligible for such designation, regard must be had not only to its advocacy of the principles of its party and its sup- - port of the State and national nominees, but also to its general and regular circulation in the towns of the county where it is published. If a newspaper be deficient in either of these particulars it should not be designated if there be another paper published in the county which measures up to the full requirements of the statute.
Thus, a newspaper whose aggregate circulation does not exceed 1,000 copies, and which has no circulation in two of the towns of the county, should not be appointed if there be another paper qualified on the grounds of political advocacy which has a circulation of over 11,000 covering all the towns of the county, even though the proprietor of the latter paper also publishes a Sunday paper which politically is independent.
Appeal by the defendants, Thomas Williams and others, Republican members, etc., from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Oneida on the 10th day of March, 191Ó, directing that certain portions of the return made by them as respondents to a writ of certiorari be stricken from said return.
The writ, issued and attested December 31, 1909, was directed to Thomas Williams and others, constituting a majority of the Repub
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lican members of the board of supervisors of Oneida county during the year 1909, and also to the cleric of said board of supervisors, commanding them to certify and return to the office of the cleric of Oneida county all and singular their proceedings, decisions and actions had in regard to the designation of a newspaper, to wit, thé Borne Tri-Weekly Republican, as an official paper in which to publish the Session Laws and Concurrent Resolutions of the Legislature for the year 1910, and all and singular the evidence, documents, records and all other papers before them,- or submitted to or offered or filed with them, concerning said matter, and also their determi- , nation as such supervisors thereon. Pursuant to stipulation the appeal from the order striking out parts of the return to the writ, and the certiorari proceedings were presented to, and heard by, the court at the same time.
D. Francis Searle and Albert J. O Connor, for the appellants.
E. D. Lee, for the relator, respondent.
It is assumed that relator’s application to the Special Term for an order striking out certain parts of the return was based upon a claim that the return was defective. Section 2135 of the Code of Civil Procedure provides that, if the return to the writ is defective, the court may direct a further return. The order instead of directing a further return, which shall omit the parts thereof to which objection was made, explicitly directs that certain parts of the return be stricken therefrom. It may be that the court at Special Term has the power to require a further return which shall omit therefrom matter which is clearly irrelevant, and which has no place in the return. (People ex rel. Joline v. Willcox, 134 App. Div. 563 .) But the fact still remains that the court cannot, either directly or indirectly, make return to the writ for the person or body whose action is under review. Excision of the parts of the return directed by the order leaves parts of what remains imperfect and meaningless. Respondents made but one return to the writ. They have not made nor adopted the emasculated return remaining after giving effect to the order. The order should be reversed.
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We may, therefore, consider the cause as it would have been, ' presented had the order amending the return not been made. The purpose of the writ is to obtain a review of the action of a majority of the members of the board of supervisors of Oneida county, representing the Republican party, in designating the Rome Tri-Weekly Republican as a paper to publish the Session. Laws and Concurrent Resolutions of the Legislature for the year 1910. The relator publishes at. Utica in said county the Utica Herald-Dispatch, a newspaper having a general circulation in that county, and was an applicant for the designation of that paper. The statutory authority under which such designation is made is found in section 20 of the County Law, being chapter 11 of the Consolidated Laws (Laws of 1909, chap. 16). It is not questioned that respondents had the right to designate a paper for tlie purpose specified in the statute. But it is urged that the paper designated was not, as required by the act, one “ fairly representing the political party ” which respondents represented in the board of supervisors, “ regard being had to the advocacy by such paper of the principles 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.” The purpose to be served by requiring publication of the. Session Laws and Concurrent Resolutions of the Legislature is to give to the people of the State early and general notice of their enactment and of the provisions thereof. It is publicity of the laws for general information of the People subject to them that is sought. (People ex rel. Hall v. Ford, 127 App. Div. 444 ; People ex rel. Union & Advertiser Co. v. Supervisors of Monroe County, 60 Hun, 328 .) To that end it is required, that the newspaper designated as the medium of publication must fairly represent the political party by whose representatives in thé board of supervisors it has been selected. 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
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which clearly measures up to the full requirements of the statute, it would seem that a designation of the former would not be warranted. Such a newspaper may be a type of specimen of a party paper, but it does not fairly represent the party to which it belongs within the plain purpose and intent of the statute. (People ex rel. Hall v. Ford, 127 App. Div. 444 ; People ex rel. Republican & Journal Co. v. McCarthy, 134 id. 761.) Recurring now to the facts appearing in the record we find that the Rome Tri-Weelcly Republican has an aggregate circulation not exceeding 1,000 copies. There are at least two towns in the county where it does not appear to have any circulation. It does not appear to what extent its circulation goes in the other towns ; but it must necessarily be small because of its limited total circulation. On the other hand,, the Utica Herald-Dispatch is a daily pa,per having a general circulation throughout all the towns of the county of more than 11,000 copies. Its circulation in the two towns in which the Rome TriWeekly Republican does not circulate is upwards of 1,000 copies. So far as the regular and general circulation of the two papers throughout the towns of the county of Oneida is concerned, it is clear that the Utica Herald-Dispatch is entitled to first consideration. The other test to be applied, as the statute provides, it is claimed by respondents precludes consideration of the Utica Herald-Dispatch as fairly representing the Republican party in Oneida county. It appears from the return that relator in addition to publishing the Utica Her aldr Dispatch^ which apparently has no Sunday edition, publishes a Sunday paper called the Utica Sunday Tribune, Nowhere in the return, however, is relator’s statement in the petition for the writ, as to the consistent advocacy by the Utica Herald-Dispatch of the principles of the Republican party and its support of the State and national nominees thereof, directly denied. The allegation in the return that relator publishes another paper called the Utica Sunday Tribune, which is independent in politics and that relator calls the paper published by it “ Herald-Dispatch six days in the week and Utica Sunday Tribune on one day in the week” comes far short of putting in issue the fact that the Utica Herald-Dispatch, as a paper, has consistently advocated the principles of the Republican party and supported the nominees of that party. The statute, in terms, refers to the princi
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pies advocated by the paper itself, and the support given by it to the nominees of its party, as a criterion by which its capacity, as fairly representing its party is to be gauged, not the principles advocated and the support given to nominees by another paper of different name, even though the same proprietor and publisher may control both papers. We think that on the papers presented it satisfactorily appears that the Rome Tri-Weekly Republican is not a paper fairly representing in Oneida county the principles of the Republican party within the meaning and intent .of the statute. The designation by respondents of that paper to publish the Session Laws and Concurrent Resolutions of the Legislature was, therefore, contrary to the' provisions of section 20 of the County Law (supra) and is void for that reason.
All concurred.
Order reversed and designation annulled, without costs.
Cases cited
- People ex rel. Hall v. Ford 127 App. Div. 444 p. 60, p. 61