People ex rel. Press Publishing Co. v. Martin

VAN BRUNT, P. J.

I cannot agree in the conclusion at which Mr. Justice FOLLETT has arrived in the case at bar. It will be observed that in the statutes considered and the cases cited by him the language was essentially different from the statute under which this proceeding arises. In the case of People v. Brennan, 39 Barb. 651, the language of the statute (chapter 227, Laws 1863, § 2) was:

“No portion of the sums which shall hereafter be raised by taxes or assessments in said city and county of New 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 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 mayor insisted that the term “daily circulation” meant the largest general circulation; and the comptroller, that it meant the largest circulation within the city; and the question discussed by the court was as to which of these contentions was correct It is true that in discussing the question it was said:

“As the determination of the question of fact which of the four papers have the largest daily circulation involved a consideration of evidence, and an adjudication upon such evidence by the mayor and comptroller, we do not see upon what principle a mandamus can issue, directing the comptroller to unite with the mayor in designating four certain papers, naming them in the mandamus.”

But, as already suggested, the language then under consideration was essentially different from the one under which this application arises. By the law of 1863 the mayor and comptroller were compelled to designate four papers having the largest daily circulation. There was no provision as to what evidence or proof they should take, in order to establish the fact of circulation; and the courts held that they were bound to take evidence upon that point, which necessarily meant legal evidence, and to decide upon such evidence. In the case at bar the provision of the statute is that the board, in selecting the respective papers for such publication, shall select those which, according to the best information the board can obtain, have the largest circulation within said city; clearly giving the board the greatest latitude as to the sources from which information is to be derived, and expressly excluding the idea that legal evidence, only, could be acted upon. This statute was passed, and this language was used, evidently because of the difficulties arising from the strict phraseology of the act of 1863, and other acts of a similar character; and it was the manifest intention of the legislature to give the board greater discretionary powers than those which either of those previous acts had conferred. So, in the case of People v. Common Council of Troy, 78 N. Y. 33, section 3, tit. 2, c. 813, Laws 1873, was under consideration, which provided that the common council shall designate not to exceed four papers having the largest circulation in the city, in which said advertising shall be done; and in that case it was held that, no mode of ascertaining which papers have the largest circulation being pointed out, the question was left open as one of fact to be determined by the common council, and that the determination of such question of fact was a judicial duty, and, though the common council might be compelled by mandamus to determine the facts, it could not be directed to decide in a particular way, however clearly it might be made to appear what the decision ought to be. It appeared in that case that the common council designated the papers without any evidence before it as to which had the largest circulation, and it was held that it was the duty of the council to make the designation on evidence, and that its duties were judicial, and not ministerial. But in the case at bar they are not restricted to evidence, but are to get the best information they may obtain, thus leaving it discretionary with the board as to what sources of information they may consider to be the best. Because the court is of opinion that better information may be obtained, it cannot control the judgment of the board as to what it considers best.

And furthermore, in the case at bar, the relator had furnished proof which was clearly insufficient to entitle it to the designation; and at the last meeting of the board, on the last day on which the designation could be made, it presented additional and amended affidavits, claiming that the board, without having any opportunity to test in any respects the statements therein contained, was bound to accept them in their entirety. I do not think, after this relator had presented its evidence, and the board was acting upon it, upon the last day in which it had any authority to act, that the presentation to it of an affidavit can form the foundation of a reversal of such action. Such a ruling would make it impossible for the board to guard against the presentation of alleged facts, which might have no existence in reality, or to -apply any ordinary tests to the alleged proof in order to ascertain its value. I am of the opinion that the writ should be dismissed.

O’BRIEN, J., concurs.