Fulton County Pub. Co. v. Common Council of City of Johns Town , 157 N.Y.S. 1058 ( 1916 )

WHITMYFR, J.

The Fulton County Publishing Company, a corporation which owns and publishes the Fulton County Democrat, a weekly newspaper, of the city of Johnstown, N. Y., is asking for a peremptory writ of mandamus, requiring the common council of said city to recognize the designation, made by the Democratic members of said council on April 27, 1915, and May 8, 1915, of said paper as one of the two official newspapers of said city, and to cause all notices, ordinances, by-laws, rules, and regulations of said council and of all boards and officials of said city to be published therein, and for such other and further relief as may be just. In January, 1915, the Republican members of said council designated the Leader-Republican, a daily newspaper printed and published in the city of Gloversville, N. Y., and circulated in both cities, as one of the two official newspapers of said city of Johnstown, and its publishers agreed with said council to make publications at the fees theretofore prescribed by said council. At that time no newspaper representing the Republican party was printed in said city of Johnstown. At the same time the Democratic members of said council designated the Evening Telegram, a daily newspaper printed and published in sa'id city of Johnstown, as one of the two official newspapers of said city, and its publishers agreed with said council to make publications at the fees theretofore prescribed by said council. The Republican party and the Democratic party were then and are now the two principal political parties of said city and the designations were made f,or the ensuing official year, pursuant to section 57 of the City Charter. That of the Leader-Republican is not questioned. The Telegram was then owned and-published by relator, which at the same time owned and published the Democrat, then a semiweelcly. After its designation, publications were made in the Telegram, as required, until March 29, 1915, when the plant of the company was destroyed by fire. Thereupon the publication of the daily was discontinued, and the semiweekly was changed to a weekly. About a month later, the Democratic members of the council designated the weekly in place of the daily, and the company accepted. The council did not recognize that designation, but designated the Morning Herald, a newspaper which represents the National Progressive party, is printed and published in the city of Gloversville, and is circulated'in both cities. Hence this proceeding.

[1-4] The designation of the Telegram and the agreement on the part of the Publishing Company to make publications at the fees prescribed by the common council of the city constituted a contract between the company and the city; and the fire did not affect the contract, so that the discontinuance of the daily and the consequent failure of the publishing company to make publications therein, as agreed, without the consent of the common council, constituted a breach of the contract on the part of. the publishing company. The original designation of the Telegram was duly made and could not thereafter be revoked. People v. Monroe County Supervisors, 60 Plun, 328, 14 N. Y. Supp. 867; Matter of Troy Press Co., 94 App. Div. 514, 88 N. Y. Supp. 115. And the discontinuance of a designated paper during an official year was not contemplated, and the manner of taking action thereupon was not provided for by the City Charter. So that, the later designations made by the Democratic member of the common council were unauthorized. In the emergency, the common council alone was authorized to act, under its general powers. That body, however, could not make any designation it pleased, but was required to make one which would comply with the requirements of the charter, if that could be done. People ex rel. Bonheur v. Christ, 208 N. Y. 6, 101 N. E. 846. It designated the Morning Herald, which then represented and now represents the National Progressive Party, and which then was and now is printed and published in the city of Gloversville.

[5] At that time the Fulton County Democrat was, and it is now, the only Democratic paper printed and published in the city of Johnstown, and in fact in the county of Fulton. While it is a weekly paper, yet the charter does not in any of its sections require daily publications. The only possible questions in this respect arise with reference to sections 74, 104 and 133 of the charter. Section 74 relates to' the issue of bonds, and provides that:

“They shall be sold on sealed proposals or at public auction upon notice published in the official newspapers for at least three weeks prior to the time of such sale or the opening of such proposals.”

That means that at least three weeks shall intervene between the publication and the sale or the opening of proposals. People ex rel. Hetfield v. Trustees, 70 N. Y. 28, 32. Section 104 relates to the completion of the revised assessment roll by the assessor, and requires him to give public notice that he will attend at the end of ten days, at a time to be designated by him, to hear objections and to correct errors, “by publishing the same at least one week in the official newspapers of the city.” And section 133 relates to the assessment roll for improvements, and provides that the city engineer shall prepare it and a duplicate thereof, both to be deemed originals, and leave same at the office of- the city clerk, and thereupon “give public notice in the official papers for one week” that the same has been prepared and will remain at the office of the city clerk f,or fifteen days from the date of such notice for examination.

[6] Under the last two sections, the acts are not to be performed in less than a week from the time of publication, but more than a week will intervene in each case. And while relator is the company which owned the Telegram, and therefore failed to carry out its contract with the city, the papers do not show that the city has been damaged, or that relator cannot pay, if it has. So that the Democrat could and should have been designated and the designation of the Herald was illegal.

[7] And, finally, while relator does not ask that the designation of the Herald be rescinded, it does ask that the council be required to make publications in the Democrat, and then asks “for such other and further relief as may be just and proper,” so that the relief may be molded according to the rights of the parties. People ex rel. Henry v. Nostrand, 46 N. Y. 377; People ex rel. Keene v. Queens County Supervisors, 142 N. Y. 271, 36 N. E. 1062; People ex rel. Sturtevant v. Armstrong, 116 App. Div. 103, 101 N. Y. Supp. 712.

Peremptory writ accordingly.