PEOPLE EX REL. SWEET
RAYMOND, MAYOR, ET AL.
Certiorari by the People, on the relation of Henry Sweet, against George G. Raymond, Mayor, and others, to review the action of the city council in designating official newspapers. Writ quashed, and proceedings dismissed.
[115 N.Y.S. 276] Myer Nussbaum, for relator.
Joseph W. Middlebrook, for respondent Forbes.
Argued before HIRSCHBERG, P. J., and WOODWARD, GAYNOR, JENKS, and BURR, JJ.
The charter of the city of New Rochelle provides, among other things, that:
" The common council shall, at its first meeting in each official year or as soon thereafter as practicable, fix and determine the legal fee per folio at which all notices, ordinances, by-laws, rules and regulations of the common council, *** and such other matters as the common council may direct to be published, shall be published by the official newspapers of said city and thereupon shall designate two newspapers published in said city that fairly represent the two principal political parties into which the people of the city are divided, in which the same shall be published at the fees so prescribed. The newspapers so designated shall be the official newspapers of the city for the ensuing official year for the purposes aforesaid and until the next annual designation." Laws 1899, p. 192, c. 128, § 62.
By the same act it is further provided that the official year of the city shall, except as may be therein otherwise provided, commence with the 1st day of January in each year. Id. § 5. On the 28th day of January, 1908, the common council of the city adopted a resolution, which was subsequently approved by the mayor, which, among other things, provided that the legal fee for the publication of notices, ordinances, and such other matters as the common council might direct to be published, should be " fixed and determined at the sum or price of 50 cents per folio for each and every insertion, and that the New Rochelle Press and the New Rochelle Paragraph, two newspapers published in the city of New Rochelle, that fairly represent the two principal political parties into which the people of the city are divided," should be, and they were thereby, designated as the two newspapers in which said matter should be published, which two newspapers should be the official newspapers of the city of New Rochelle for the ensuing year. Thereafter, in accordance with the terms of such resolution, the various notices, ordinances, by-laws, rules, and regulations of the common council and of the boards of the said city of New Rochelle were delivered to and accepted and printed by the said papers in the regular issues thereof for such ensuing year.
This proceeding is brought, on the relation of Henry Sweet, to review the determination of the common council in so far as it designated the New Rochelle Paragraph as one of the papers in which said notices should be published. The relator claims that, while the New Rochelle Press fairly represents the Democratic party, the New Rochelle Paragraph does not fairly represent the Republican party, which parties are the two principal political parties into which the people of the city are divided.
At the threshold of the proceeding we are met with two objections to the maintenance thereof which seem to us to be insuperable. An application for a writ of certiorari must be made by, or in behalf of, a person aggrieved by the determination to be reviewed. Code Civ. Proc. § 2127; [115 N.Y.S. 277]People ex rel. Second Avenue Railroad Co. v. Board of Commissioners of Parks, 97 N.Y. 37.It appears that the relator is the publisher of a newspaper published in the city of New Rochelle called the New Rochelle Pioneer, which paper he claims has constantly and consistently advocated the principles of, and fairly represented, the Republican party. It does not appear, however, that there are not other newspapers published in the said city which in like manner may be said to fairly represent the principles of that party, and there is nothing from which this court can determine that, if the decision of the common council were set aside, the paper of which the relator is the owner and publisher would be designated as one of the official newspapers of the city. It follows, therefore, that the relator is not a person aggrieved by the determination of the common council within the meaning of the statute.
Again, the ensuing official year for which the newspaper known as the New Rochelle Paragraph was designated as one of the official newspapers of the city terminated on the 1st day of January, 1909. There is no claim that any of the notices or ordinances required to be published in the official newspapers of the said city have been published during the year past in the New Rochelle Pioneer, of which the relator is the owner and publisher. No claim could therefore arise in his favor against the city if the determination sought to be reviewed was erroneous, since the city would not be liable to him for services which he had not rendered. If the respondent Forbes, who is the owner and publisher of the New Rochelle Paragraph, has no valid claim against the city because the designation of that paper as one of the official newspapers was in direct violation of the provisions of the statute, it may be that a taxpayer's action will lie to restrain the payment of the claim, or to recover back the moneys, if unlawfully paid.
Be that as it may, for the reason stated, this proceeding is improperly brought, and the writ of certiorari must be quashed, and the proceedings dismissed, with costs.
Writ quashed, and proceedings dismissed, with $50 costs. HIRSCHBERG, P. J., and JENKS. J., concur. WOODWARD. J., concurs in separate opinion, and GAYNOR, J., concurs on the ground that the action of the common council is not reviewable, and that he does not see how the publisher, after doing the service, could be prevented from getting the compensation by a taxpayer's action; that his newspaper is the legal appointee, and that is conclusive on the question of compensation.
WOODWARD, J. (concurring.)
While it is probably doubtful whether the relator has such an interest in this controversy as to permit him to raise the questions here presented, I am not disposed to place my concurrence upon any mere technical defect. The parties have treated this as a legitimate controversy between themselves, and for my part I think the broad question should be disposed of in harmony with the prevailing law of the state. The relator appears to be the publisher of a newspaper in New Rochelle, and he seeks, upon this review, to overturn the action of the common council of that city in designating the New Rochelle Press (Democratic) and the New Rochelle Paragraph (Republican) as the official papers of that city, under the provisions of the charter. The charter [115 N.Y.S. 278] (chapter 128, p. 152, Laws 1899) provides for the designation of " two newspapers published in said city that fairly represent the two principal political parties into which the people of the city are divided," and it is the contention of the relator that the New Rochelle Paragraph, a newspaper selected by the common council as fairly representing the Republican element of the city, is not within the language of the statute, in that it does not fairly represent the Republican party. Robert L. Forbes, editor and publisher of the New Rochelle Paragraph, has intervened, and he avers that for a period of 12 years he has consistently and uniformly supported the principles of the party, and that he has uniformly supported the ...