Hyperlawhypertext legal databasebeta People ex rel. Opdyke v. Brennan 39 Barb. 651

← Cases

People ex rel. Opdyke v. Brennan

39 Barb. 651 Court N.Y. Sup. Ct. Decision date 1863-07-11 English

Delivered by Sutherland, J.

Contents

Majority

p. 651
The People, ex rel. George Opdyke, Mayor of the city of New York, vs. Matthew T. Brennan, Comptroller of the city and county of New York.

Headnote

The act of April 24, 1863, directing the mayor and comptroller of the city of New York to designate four papers “ having the largest daily circulation,” in which corporation advertisements shall he published, requires the designation to be of the four papers published in the city, having the largest daily circulation, and is not to be so construed as to restrict such circulation to the city and county of New York.
If the comptroller refuses to meet the mayor and act with him, in the mat
p. 652
ter,1 a mandamus will lie to compel him to unite with the mayor in designating the four papers having the largest daily circulation; hut as the determination of the question of fact which four papers have the largest daily circulation involves the consideration of evidence and an adjudication upon such evidence, the writ should not command the comptroller to unite with the mayor in designating four certain papers named therein.
rilHIS is an appeal from an order made at a special term i directing a peremptory mandamus to issue commanding the respondent to unite with the relator in designating four newspapers published in the city of Hew York, having the largest daily circulation, viz : the “Hew York Herald,” the “New York Sun,” the “New York Tribune,” and the “Hew York Times,” in which to publish the advertisement in pursuance of section 2 of the act of the legislature, chapter 227, passed April 24th, 1863, which is as follows:
“Ho portion of the sums which shall hereafter be raised by tax or assessment in the city and county of Hew York shall be paid for advertising, except the same shall have been incurred for advertisements in the newspapers authorized by the mayor and comptroller of the said city, who shall designate four papers having the largest daily circulation, and any six others in their discretion, not to exceed ten in all.”
The question was whether the “ daily circulation” mentioned in the act means the daily circulation, or the circulation within the city. The mayor wished to name the “ Herald,” “Sun,” “Tribune” and “ Times,” as such four papers, taking their aggregate of circulation without reference to the localities in which they are circulated. The comptroller insisted that the four papers selected should be those which have the largest circulation ivithin the city and county of New Yorle.
John E. Develin and James T. Brady, for the appellant.
David Dudley Field, for the relator.
p. 653
[New York General Term,
July 11, 1863.
Sutherland, Leonard, and Clerke, Justices.]

By the Court,

The words of the act are “ four papers having the largest daily circulation.” We have no right to add to this the words “in the city of New York.” It is reasonable and probable, that the legislature intended that the advertisements should be published in the four papers having the largest daily circulation in the city of New York, but it is also reasonable and probable that the ' act was worded on the theory, that the four papers having the largest daily circulation generally would have the largest daily circulation in the city of New York. We think therefore, that the construction of the act by the mayor and by the justice who made the order appealed from was correct. But as the determination of the question of fact which four papers have the largest daily circulation, involves the consideration of evidence, and an adjudication upon such evidence, by the mayor and the comptroller, we do not see upon what principle a mandamus can issue commanding the comptroller to unite with the mayor in designating four certain papers, naming them in the mandamus. This court could, by mandamus, compel the mayor and comptroller to meet and act in the matter; but we do not think that we could compel them to act in a particular manner ; that is, to unite in designating four certain papers named by the court. (The People v. Dutchess C. P. 20 Wend. 658 . Ex parte Bassett, 2 Cowen, 458. The Judges of the Oneida Common Pleas v. The People, 18 Wend. 78 . Opinion of the Chancellor and cases cited.)

We think the order appealed from should be modified, so as to order a mandamus to issue to the comptroller, directing him to unite with the mayor in designating the four papers having the largest daily circulation, generally.

Cases cited