Francis v. . City of Troy , 1878 N.Y. LEXIS 746 ( 1878 )

Rapallo, J.

I think that section 13 of title 5 of the charter of the city of Troy, is intended to cover the whole subject of advertising notices of the sale of lands for taxes. The duty of causing these notices to be published is imposed exclusively on the chamberlain; the number of papers in which they are to be published is limited to two. These must be daily papers, and they are to be selected by the chamberlain, and not the common council, and they need not be papers appointed by the common council to do the city advertising. The expense of the advertising thus authorized to be caused by the chamberlain is to be added to the tax and is a charge upon the land sold. By these provisions the expense is limited, and the city relieved from bearing any part of it, by throwing it all on the delinquent taxpayers.

No duty of advertising in such cases is imposed upon the common council, and it is obvious that any expense incurred by them for that purpose would be entirely superfluous, and at variance with the policy of section 13. When it is provided expressly that these notices shall be published by the chamberlain, it cannot be implied that it was intended that they should also be published by the common council. Anri when the number of papers is limited to less than the number which the common council is empowered to employ for city advertising, and the expense is specially provided for, it cannot be supposed that it was intended that they should also be published in the larger number of papers without any provision for expense, but at the charge of the city, and the taxpayers who are not delinquent be thus made to pay for the delinquency of the others a larger expense than is charged upon them. The papers selected by the chamberlain may include none of those designated by the common council, and if the plaintiffs’ claim is sustained these notices of - tax sales may be published in six papers, while all other city advertisements can be published only in four. I think the intent of section 13 was not thus to enlarge the expense, but was to restrict it, and that where special provision different from the ordinary course of city advertising is thus made for a particular class of advertisements, and a particular officer is designated to cause them to be published and provision is made for the expense, they are withdrawn from the general power of the common council over city advertising.

The judgment should be reversed and judgment rendered for the defendant, with costs.

All concur, except Miller and Earl, JJ., absent.

Judgment reversed.