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In re Ford

87 N.Y.S. 407 Court N.Y. App. Div. Decision date 1904-03-02 English

Delivered by CHESTER, J.

Contents

Majority

p. 407
(92 App. Div. 119.)
In re FORD.
(Supreme Court, Appellate Division, Third Department.
March 2, 1904.)

Headnote

1. Election—Publication oe Notice.
Under County Law, § 22 (Laws 1892, p. 1750, c. 686), and section 19 (Laws 1900, p. 933, c. 400), providing that two newspapers—one representing each political party—shall be designated by the board of supervisors to publish election notices, and that any designation made otherwise than as directed shall be void, a designation of four papers of each party was wholly void, and not a valid designation as to the papers first named.
2. Same—Compensation.
County Law, § 21 (Laws 1892, p. 1750, c. 686), provides fór the expense of publication of session laws in counties within certain limits; the specific rate to be fixed by the board of supervisors. Section 22 then provides that “such boards shall in like manner designate two newspapers in which shall be published election notices, and fix the compensation therefor.” Held that, in fixing the compensation for the publication of election notices, the board is not limited to the minimum and maximum charges prescribed by section 21 for the publication of session laws.
3. Same—Dubess.
The publisher of a newspaper which had been designated by the board of supervisors to publish election notices claimed that his paper had at a former time been designated to publish the notices at a higher price, and, on being told that if he did not sign a written acceptance of the designation at the price named therein, another paper would be designated, he did so. Held, that he did not act under duress.
Appeal from Special Term, Delaware County.
Application by John G. Ford against the board of supervisors of Delaware county for a peremptory writ of mandamus to compel respondents to audit and allow applicant’s claim for the publication of election notices. From an order denying the application, applicant appeals. Affirmed.
The relator is the proprietor of a Republican newspaper published in the county of Delaware known as the “Stamford Recorder.” During the annual session of the board of supervisors of that county held in November, 1902, the
p. 408
Republican members of that board signed and filed with its clerk a written designation of four Republican papers, in which designation the relator’s paper was first named, to publish the election notices for the ensuing year. A similar designation of four Democratic papers was made and filed by the Democratic members of the board for the same purpose. Upon discovery in July, 1903, that the election notices would be of unusual length, and, if published in eight papers at the old rate, would involve an expense of upwards of $20,000, a special meeting of the board of supervisors was called and convened on the 20th of that month; and on the next day, after being advised by the district attorney of the county that the designation of four papers for each party to publish the election notices was an illegal designation, resolutions were unanimously passed by the board revoking and rescinding the designation theretofore made, directing the members of the board representing each of the two principal parties- to each designate one paper to publish the election notices, and fixing the compensation for the papers so to be designated at 10 cents a folio for the first 300 folios, and 5 cents a folio for all folios in excess of that number, for the publication of such notices. When the relator became aware of the fact that it was claimed that the designation of his paper, with the three other papers, was invalid, he, on the 20th day of July, 1903, filed with the clerk of the board a written acceptance of such designation. After the adoption of such resolutions, the members of the two political parties proceeded to make designations, and all the Republican members on July 21, 1903,- signed a written designation of the Stamford Recorder to publish the election notices in the county of Delaware for the year 1903. The relator wrote below such designation the following: “The above designation is hereby accepted at the compensation fixed "by the board July 21, 1903. J. Giles Dol'd.” The designation and acceptance were filed with the clerk, and the relator published the election notices for the year 1903 in his paper the required length of time. At the annual session of the board in November, 1903, the relator presented his bill for such publication (341 folios at the rate of 50 cents per folio, amounting for 14 weeks to $2,387) for audit. The bill was audited by the board at 332 folios at the rate fixed by it, and allowed at $442.40. The difference in the number of folios arises from the board treating the matter published as one notice, and not as separate notices in which fractional parts of a folio had been charged as for a full folio. There is no claim that the matter published contained, in fact, more than 332 folios. Prior to 1903 the rate paid by the board had been 50 cents per folio, pursuant to a resolution passed in 1900 fixing that rate. Prom an order denying the relator’s application for a peremptory writ of mandamus to compel the board to audit and allow his claim at the rate of 50 cents per folio, according to the items thereof, he appeals.
Argued before PARKER, P.J., and SMITH, CHASE. CHESTER, and HOUGHTON, JJ.
Charles E. Pashley, for appellant.
Ge'orge A. Fisher, for respondent.

The contention of the relator, briefly stated, is paper having in designation of November, 1902, such designation as to his paper was a valid one, which could not thereafter be withdrawn or rescinded; that the Republican members had no power thereafter to make another designation; that the rate of compensation fixed by the resolution of July 21, 1903, was illegal, because below the minimum fixed by law; that the acceptance of the designation on July 21, 1903, was signed by him while under duress; and that by such acceptance he did not waive his right to publish the election notices under the prior designation, and to be paid therefor at the previously existing rate of 50 cents per folio

p. 409
The county law, which was in force at the time, authorized the designation of two newspapers only—one representing each of the two principal political parties—in which to publish election notices. Laws 1892, p. 1750, c. 686, § 22. The attempted designation of four papers representing each of the two parties was clearly void as to all the papers so designated, unless the circumstance that the relator’s paper was named first, in enumerating the four, makes the designa-, tion valid as to it. Two cases are cited by the relator in support of his contention in this respect. The first is People v. Supervisors of Richmond Co., 20 N. Y. 252 . There two persons had been appointed to fill vacancies in the office of commissioners of highways. Three had been elected and classified. The commissioners of the first and third class omitted to qualify, and two were appointed to fill the vacancies, without any designation of the class to which they respectively belonged. Johnson, C. J., who wrote the opinion of the court,, says:
“It seems to me a natural construction to place upon such an appointment to regard the first-named appointee as appointed to the first class; and that construction I am, in the absence of any authority upon the subject, inclined to adopt, rather than come to the conclusion that no effectual appointment was made.”

The only determination made upon that branch of the case was as-to the classification of the two commissioners where the appointment of both was authorized, and such determination was based upon the construction which the court, in the absence of authority, deemed it. essential to put upon an appointment so made.

The other case cited is People ex rel. Banta v. Kneissel, 58 How. Prac. 404. _ There the mayor of New York nominated to the board of aldermen for confirmation four persons as inspectors of weights and measures, when there were only two such officers in the city— one for the First and the other for the Second District. The board of aldermen acted upon the nominations separately, and the court held that the relator, who was the one first confirmed, was lawfully appointed, although in the opinion it was stated that, “regularly and properly, one person only should have been nominated for each of these offices.”

These cases undoubtedly were properly decided, upon the facts presented, but they should not be regarded as authorities to be extended beyond the questions there presented for decision. Here there was an effort to- deal out “patronage” to four papers instead of to one. This was attempted to be done by a single designation naming all four. There was but one transaction. The whole scheme-was void, as being unauthorized by law. The fact that the relator’s paper happened to be first named in such a scheme cannot fairly be regarded as making a legal designation of his paper, when all the rest of the attempt was concededly unlawful and void.

Section 19 of the county law (Laws 1892, p. 1749, c. 686, as amended by Laws 1900, p. 933, c. 400) authorizes the designation of certain newspapers to publish the session laws and concurrent resolutions of the Legislature required by law to be published, fixes the method of making such designation, and provides that "any designation of

p. 410
a paper or papers made contrary to the provisions of" this section shall be void.” Section 22 of the county law provides for the designation “in like manner” of two newspapers for the publication of election notices. The language quoted from section 19, which by section 22 is thus made applicable"to the method of designating .papers to publish election notices, is broad enough to cover and to prohibit a designation of papers in excess of the number authorized by law, as well as to prevent a departure from the methods authorized by law for the designation; and the designation^ as a whole, in-, eluding that of the relator’s paper, was one which came under the express condemnation of the statute, and was therefore unlawful. Such an attempt by members of the board could in no way bind the. county, nor confer any rights upon the relator. The designation of November, 1902, having been unlawful, it was as if no designation had-been made, and there was no need of the passage by the board of a resolution revoking and rescinding it. Without such resolution, nothing stood in the way of a legal designation at the first opportunity.

The board was charged', I think, under the law, with the duty of fixing the compensation for publishing these notices. Section 19 of the county law provides for the designation of newspapers for the publication of session laws, and for the manner of such designation. Section 21 provides that:

“The expense of such publication * * * ■ in counties not having a city of over fifty thousand inhabitants shall not be less than twenty nor moré than fifty cents per folio, and in other counties not less than thirty nor more than fifty cents per folio; the specific rate in either case to be fixed by the board of supervisors.”

Then follows section 22, relating to election notices and official ■ canvass, which is as follows:

“Such boards, except in the counties of Brie and Kings, shall, in like manner, designate two newspapers,, representing respectively each of the two principal political parties into which the electors of the county are divided, in which shall be published the election notices issued by the Secretary of State, and the official canvass, and fix the compensation therefor, which shall be a county charge.”

The argument in behalf of the relator is that che phrase “in like manner,” in section 22, refers not only to the method of designation, but to fixing the compensation, and therefore that the board, in fixing the compensation, was limited by the rates fixed by section 21 for publishing the session laws. To uphold that theory requires a somewhat forced and unnatural construction of the section. The language is that “such boards * * * shall, in like manner, designate two newspapers * * * in which shall be published the election notices * * * and fix the compensation therefor.” It is not that it shall in- like manner designate the newspapers, and in like manner fix the compensation. I do not think we should give a forced or liberal construction to this section, the only effect of which, in this, case, will be to add to the public burdens, when the other construction seems the natural and reasonable one. But it is urged that such a construction will permit a board to fix a rate much above the maximum rate for publishing the session laws, as well, as one below

p. 411
the minimum rate for such publication, and much abuse might result. We may trust to the electors to deal with a supervisor who would use his position to aid in fixing an unreasonably high rate, or a rate above the usual or prevailing rate, for such a service.

The view of the case so far expressed, if correct, leaves the question of the alleged duress of the relator in signing the acceptance of the last designation at the rate then fixed of little moment, yet it will be briefly referred to. It appears that the relator was present at the special session of the board in July, and was told by several Republican members that, as a condition of designating his paper, he must sign a written acceptance thereof. He went before the board and protested against its action, and stated what he claimed his rights to be under the alleged designation of the prior November. The written designation of his paper was then prepared and signed by all the Republican members. Before filing it, he was informed that, if he did not indorse his acceptance thereon, the designation would be given to some other paper. He then wrote on the designation the words, “The above designation is hereby accepted.” That was not deemed sufficient; the chairman insisting that the words “at the compensation fixed by the board July 21, 1903,” be added. These words were finally added, and the acceptance signed by the relator. There was no duress or coercion about all this. The relator was over 21 years of age, possessed of all his faculties, under no restraint whatever, and was engaged in making the best bargain for himself that he could. His conduct simply showed that, if he could not procure the designation at the old 50 cent rate, he was willing to accept it at the rate fixed by the board, and that, if he had any rights under the prior unlawful designation, he waived them by accepting the new designation upon the terms fixed by the board.

Upon all the facts of the case, the Special Term was fully justified in exercising its discretion against granting the writ asked for by the relator. The order should be affirmed, with $10 costs and disbursements. All concur.

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