People ex rel. Baldwin v. Barnes — 17 A.D. 197

Majority

p. 197

The People of the State of New York ex rel. William H. Baldwin, Relator, v. J. Franklin Barnes and Charles B. Swartwood, as Two of the Supervisors of Schuyler County, New York, Respondents.

Headnote

Designation of a paper to publish the session laws—when a paper does not fairly represent the Demoeratie party—the return to a writ of certiorari is conclusive*— the writ issues only in favor of a party aggrieved — addressed to a majority of the Democratic members of a board of supervisors.

Upon a return to a writ of certiorari it appeared that the relator was the proprietor of the Watkins Democrat, which had, up to 1896, represented the Democratic party, in the village of Watkins and county of Schuyler, but in the campaign of that year had supported for National and State offices the candidates of “The National Democratic” party, which party cast in the county of Schuyler in that election only thirty-six votes. • A majority of the Democratic members of the board of supervisors of Schuyler county, on December 1, 1896, designated, pursuant to section 19 of chapter 686 of the Laws of 1892, the Watkins Review, a non-partisan paper printed in the comity, owned by one of the Republican

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members of the board of supervisors, as the paper to publish the session laws of 1897 and the concurrent resolutions of the Legislature. It did not appear from the return that either paper “fairly represented:the political party” to which the Democratic majority of the hoard of supervisors belonged.

Held, that the court was .not authorized to go beyond the return to the writ and consider fa;cts stated in the petition, unless those facts*were admitted by the return;

That as the Watkins Democrat did not fairly represent the party to which the majority of the Democratic members of the board of supervisors belonged, and, therefore, could not properly be designated by them, its proprietor had no standing in court and was not injured by the fact that the hoard had' made an unauthorized designation of another paper.

Bemblc, that the direction of the writ to the persons who composed a majority of . the Democratic members. of the board of supervisors, and who made the determination complained of, was hot improper under the provisions of section 2129 of the Code of Civil Procedure. ■

Certiorari issued out of the Supreme Court and attested on the 4th day of December, 1896, directed to J. Franklin Barnes; and Charles B. Swartwood, as two of the supervisors of Schuyler county, New York, commanding them to certify and return to the office of the clerk of the county of Schuyler all and singular their proceedings in relation to the designation of The Watkins Review, as the paper in which.-to publish the Session Laws in the county of Schuyler.

The questions submitted in. this case arise upon the return to a writ of certiorari issued on December 4, 1896, on the petition of the relator for the purpose of' reviewing proceedings of the defendants as a majority of the Democratic members of the board of supervisors of Schuyler county in designating, on the 1st day of December, 1896, The Watkms Review as the newspaper to publish the session laws and concurrent resolutions of the Legislature.

The petition sets- forth that relator was, and has been,-for twenty years the proprietor of a newspaper called The Watkms Democrat, issued weekly in the village of Watkins, in said county of Schuyler, N. Y.; that for twenty years it has represented the Democratic party, which is one of the two principal political parties into which the people of Schuyler county are divided. At the time of the last election, and during the last Presidential campaign, it was the only newspaper in the county of Schuyler which advocated the election of the regular Democratic candidates nominated in and for the offices.

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to be filled in said county by the regular Democratic party in convention assembled.

The relator f urther stated in the petition that his newspaper, at the last election, did not support the nominees of the Democratic convention held at Chicago, or the State ticket afterwards nominated by the same party, but did support the persons nominated for National and State offices by the “National Democratic” party; that The Watkins Democrat is, and for years last past has been, the only Democratic newspaper published in the county of Schuyler;

That The Watkins Review is a non-partisan newspaper printed in said county," owned by John Corbett, one of the Republican members of the board of supervisors;

' That the respondents, a majority of the Democratic members of the board of supervisors, on December 1, 1896, designated The Watkins Review as one of the papers in which to publish the session laws and concurrent resolutions of the Legislature; that The Watkins Review does not represent either of the two principal political parties into which the people of said county are divided, and the designation does great injustice to the relator, whose paper, The Watkins Democrat, fairly represents the political party to which the majority of the Democratic members of said board belong.

The return of the respondents denies that they had, in fact; made any legal designation of The Watkins Review as alleged in the petition, but admitted that they had offered to the board of supervisors written resolutions signed by them, of one of which the following is a copy:

“ Resolved, In conformity with the law in such cases made and provided, that the Watkins Review, a weekly newspaper published in the village of Watkins, in said county, be and the same is hereby duly designated as the second paper for the publication of the .session laws of 1897, as it more fairly represents the Democratic party than any other paper published in Schuyler county.

■ “ CHARLES B. SWARTWOOD.

“ J. FRANKLIN BARNES.”

The return also sets forth that after offering said resolution “ Supei’visor Barnes moved that the 1 Watkins Review ’ be designated as the second paper to publish the laws of 1897, and his motion

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""prevailed. The .chair declared the ‘ Watkins Review’ was duly designated.”

- The return also contained the following allegation: ■“ The respondents .herein further certify and return that the paper mentioned in the petition and writ as.the ‘Watkins Democrat’ did not either ■fairly or at all represent the political' party to which the respondents herein belong and belonged at the last preceding election for State and Rational nominees,-and at the time the said paper, * The . Watkins Review,,’ was designated as aforesaid to publish .the session laws for 1897. That the party represented by the said paper, the.

‘ Watkins Democrat,’ at that time polled but thirty-six votes.in the . county of Schuyler where said "paper was. published and .circulated. And said ‘ Watkins Democrat’. did not at that time, and does not now,, represent the. Democratic party, neither did it at that time, nor does it now represent one of the two. principal" political parties into which the people of Schuyler county ¿re divided, neither did it then, nor does it now fairly represent the-. political party to which these respondents belong,” It also: stated that no proof was offered by the relator before the board of supervisors that the Watkins Democrat represented" the political party to which the respondents belonged.;; while on the contrary, the proceedings of the Democratic committee.of said cotinty were proved, "by which resolutions • were passed, as follows : “ The Democratic "committee of Schuyler county in regular session' on the afternoon "of October 16th, Dr. J. E. Barnes presiding, unanimously passed, the following resolutions introduced by Dr. John M. Quirk of Mon-tour Falls :

“ Whereas, the Watkins Democrat in advocating the candidacy of" Palmer and .'Buckner,'Griffin-and Heinrichs .and De Melville Page for Congress in this twenty-ninth district,, nominees of the so-called National-Democratic party, does not represent the regular organization of the Nation, State and Congressional District ■ of Schuyler comity; therefore,

“ Resol/ued, "That it is. the sense- of this . body, the Schuyler County Democratic Committee, that the ‘ Watkins Democrat’'is not a representative Democratic oaper, and is not entitled to the party . patronage.”

The return also contains a general- denial of the allegations •

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contained in the petition, setting forth the right of the Watkins Democrat to he designated as the paper to publish the session laws and concurrent resolutions of the Legislature.

Section 19, chapter 686, Laws of 1892, contains the following provision: “ The members of the board of supervisors in each county

representing, respectively, each of the two principal political parties into which the people of the county are divided, or a majority of such members representing, respectively, each of such parties, shall designate in writing a paper fairly representing the political party to which they respectively belong, to publish the session laws and concurrent resolutions of the Legislature required by law to be published, which designation shall be signed by the members making it and filed with the clerk of the board of supervisors.”

Jolm A. Reynolds and Daniel 8. Tuttle, for the relator.

W. F. Bishop, for the respondents.

. The statute above quoted provides for the designation of two papers fairly representing each of the two principal parties into which the county is divided. The designation is not to be made by the board of supervisors, but by a majority of the supervisors representing respectively each of said parties,'and the papers to be designated must not only fairly represent one of the principal political parties, but must also represent the political party to which the majority making the designation belong. ,

• It is claimed by the respondents that the resolution above set out, made, signed and presented to the supervisors by them, was not intended as, and was not, a designation of a paper in which to publish the session laws and concurrent resolutions of the Legislature, but was intended as, and was, a mere resolution submitted to, and to be passed upon by, the board of supervisors. We.think that this contention cannot be sustained. What is called a resolution was in fact a written designation made by a majority of the Democratic members of the board. The act conferred no power on the board of supervisors to pass on the designation, and the subsequent vote of the board had no force and effect. It is difficult to see how the

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Democratic majority cquld have made any other or more: effective designation of a newspaper in which to publish the session laws and •concurrent resolutions than the resolution above .quoted to which they affixed their signatures..

As under the statute a designation was to be made by a majority of the;Democratic members of the'board of supervisors1, and the relators’composed such majority and made the determination coin-, plained of, we are not prepared to say that the writ'issued. on the ..application of the relator was not properly directed to. them under ’ the provisions of. section 2129 of the Code of Civil Procedure.

We airé) therefore, brought to the question whether, the papers . presented .to us establish'the fact that The. Watkins Democrat fairly represented the political party to which' the majority of the Democratic .members, of . the board , of- supervisors of 'Schuyler-county belonged. ■ We ¡think that, this question is answered by the... foregoing, statement of the facts of the case. The allegations contained in the petition are squarely denied in the return. That paper avers that The Watki/ns Democrat, “did not either fairly, or at.all, represent the ..political .party to which the respondents herein belong; ” the party represented by the paper in question only polled thirty-six votes in the county of Schuyler at the last election;. that said paper did not then, and .does not now, represent the. Democratic party, or one of the two. principal parties into which the people of Schuyler county are divided. It appears from the. return that The Watkins Democrat supported at the last .election different candidates for President, Vice-President, Governor, Lieu.tenant-Governor and Member of Congress from those supported by the respondents. • ’

We , are compelled to' take the statements of fact .contained in the : return as true.. We are hot authorized -to-go beyond the return and consider the facts stated in the petition, unless admitted by the return. (People ex rel. Miller v. Wurster, 149 N. Y. 549 .) As said in People ex rel. P. P. Co. v. Martin et al. ( 142 N. Y. 228 ) i “ We are bound to -take the return here as absolutely’ true.”

Therefore, on the papers submitted to us, it does not appear that-the relator was entitled to: have his paper designated.- If we are permitted to take judicial knowledge of contemporary history we are of opinion that the National Democratic party of 1896, which

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was supported by The Watkins Democrat, was a very different one-from the Democratic party (so called) whose National convention, was held at Chicago, with, a different platform and' principles and. different nominees.

As it appears, therefore, that the paper of which the relator was the proprietor did not fairly represent the political party to which the majority of the Democratic members of the board of supervisors, belonged, or one of the two principal parties into which the people, of Schuyler county were divided; as that paper supported other-candidates for President, Vice-President, Governor, Lieutenant-Governor and Member of Congress than those supported by the respondents, the relator is not in a position to complain of the action of the Democratic majority in refusing to designate The-Watkins Democrat as the paper in which to publish, the session laws and concurrent resolutions of the Legislature at the time in question. Under the state of facts shown by the return, the Democratic majority of the board of supervisors, under the statute, had no-power to designate The Watkins Democrat.

It does not appear from the facts stated in the return that The Watkins Review was properly named as a paper to publish the session laws and concurrent resolutions of the Legislature. The return fails to show that such paper fairly represented the political party to which the.Democratic majority of the board belonged. If so, the designation was unauthorized, and probably void. But as the facts appearing in the return show that the Democratic majority Could not legally have designated The Watkins Democrat, the-relator has no standing in court. He was not injured—-not being entitled to a designation of his paper — because the board had made an unauthorized designation.. The writ of certiorari issues only in favor of a party aggrieved. (Code Civ. Proc. § 2127.)

And where it appears by the return that the relator is not aggrieved, the writ should be dismissed.

We conclude that the writ should be quashed, with fifty dollars costs and disbursements.

All concurred.

Writ of certiorari quashed, with fifty dollars costs and disbursements.

Cases cited

People ex rel. Miller v. Wurster 149 N. Y. 549 N.Y. 1896-06-16 p. 202
People ex rel. Press Publishing Co. v. Martin 142 N. Y. 228 N.Y. 1894-04-17 p. 202