The People of the State of New York ex rel. The Troy Press Company, Relator, v. The Common Council of the City of Troy and Others, Respondents

The People of the State of New York ex rel. The Troy Press Company, Relator, v. The Common Council of the City of Troy and Others, Respondents. Third Department, June 27, 1906. Municipal corporation—certiorari to review designation of official newspapers in city of Troy—proof as to circulation required — designation of independent newspapers annulled. The provisions of the charter of the city of Troy requiring that in designating as official newspapers those having the largest circulation, the common council shall consider the oaths of the publishers and the business records in determining the actual circulation, is still in effect by virtue of section 483 of the Second Class Cities Law, and when said common council designates newspapers without taking such proof of circulation, the designation is illegal and will be reviewed by certiorari on the relation of a newspaper aggrieved. So, too, said common council must follow the requirements of chapter 183 of the Laws of 1903 amending the Second Class Cities Law, and designate two daily ■ newspapers'which have the largest circulation “and are of opposite political .faith,” and hence the designation of an independent newspaper is unauthorized, as it sustains the principles of no political party. The object of said provision is to bring political matters before the newspaper readers of the two principal parties, and the designation of an independent newspaper may not have this effect, as both papers designated may support the same party in any one election. Certiorari issued out of the Supreme Court and attested on the 3d day of February, 1906, directed to The Common Council of the City of Troy.and others, requiring them to certify and return to the office of the clerk of the county of Rensselaer all and singular their proceedings had in relation to the designation of official newspapers for the city of Troy. This is a certiorari to review the determination of the common council of tiie city of Troy designating official newspapers for that city: The city is a city of the second class having less than 90,000 inhabitants, and as to such city chapter 182 of the Laws of 1903, which amends section 29-of an act for the government of cities of the second class (Laws of 1898, chap. 182), provides that the common council, within thirty days after its first meeting, shall meet and designate the two daily newspapers published in said city which have the largest circulation and are of opposite political faith, and also the two weekly newspapers published in said city which have the largest circulation and arc of opposite political faith, as the official newspapers of the city for two years and until others are designated. The charter of the city (Laws of 1892, chap. 670, tit. 3, § 9, as amd. by Laws of 1893, chap. 575) provided that the common council should designate not to exceed four newspapers published in the city and having tlie largest circulation within its corporate limits as official newspapers, and that “ the oaths of the publishers of said newspapers and the business records of such newspaper offices for the three months preceding such designation shall be required by the common council as confirmatory of the actual circulation of the said newspapers before such designation is made by tlie common council.” The relator had been designated as one of the official newspapers in 1904 and has the largest circulation of any Democratic newspaper published in the city. Without requiring the oaths of the publishers, or the business records of the newspapers, the common council in January, 1906, designated the Troy Daily Times and the Troy Evening Stcmidard as the two official daily newspapers. The Times is a Republican newspaper; the Evening Standu: d is not a Democratic nor a Republican paper, nor of the faith of any political party, but is independent in politics and supports such candidates and political principles and policies as its proprietors and .publishers may from time to time deem best, without reference to their political character or affiliation. Section 483 of the Second Class Cities Law declares that “nothing contained in this act shall be construed to repeal any statute of the State * * * not inconsistent with the provisions of this act, and the same shall remain in full force and effect, when not inconsistent with the provisions of this act, to be construed and operated in harmony with the provisions of this act.” The relator contends that the above provision continues in force the provisions of the charter of the city requiring the common council, before the designation of the official newspapers, to obtain tlie affidavits of the publishers or proprietors of the paper and tlie business records of the papers as to circulation, and that the alleged designation is in violation of that provision of the charter, and that the Evening Standard is not eligible for designation, and that the relator is aggrieved by the designation under review. William J. Roche, for the relator. John T. Norton and George B. Wellington, Corporation Counsel, for the respondents. This section lias been since amended by chapter 377 of the Laws of 190G. — [Rep. [MAJORITY — Kellogg, J.:] Kellogg, J.: The provision of the charter designating the manner in which the common council shall determine the circulation of the respective newspapers is not inconsistent with the provision of the Second * Class Cities Law, and remains in effect by virtue of section 483 of the latter statute. The authority of the common council to designate official newspapers was not pursued in the mode required by law, and in making its determination it violated the rights of the relator to its prejudice and, therefore, that determination is reviewable by certiorari. (Code Civ. Proc. § 2140.) The relator is interested in having such review, for it continues the official news paper until its successor is properly designated. This statute relating to the designation of official newspapers was evidently intended to bring the public matters before the newspaper readers of the two principal parties. It is clear that a Republican newspaper and a Democratic newspaper, or a newspaper of any other party, may be said to be newspapers of opposite political faith, but a newspaper which supports no party, and advocates the principles of candidates of no party, but is the personal organ of its publishers and proprietors, at times supporting the candidates and principles of either of the other parties^ as its officials may determine, cannot be said to be a paper of opposite political faith to any regular party paper. The Evening Standard is not of a political faith opposite to any party newspaper. It is independent in its politics, and may during all the term covered by the present designatiomsupport Reqmblican policies and candidates or the policies and candidates of any other party. If its designation stands, both official newspapers may, during all the term of the designation, support the same political policies and candidates, which is not the intention of the statute. A religious newspaper, an agricultural newspaper, or any trade journal may from time to time advocate certain political principles or candidates, but by so doing it does not become, within the meaning of this statute, a newspaper of op posit ■' political faith to any party newspaper. The Evening Standard voices the principles of no political party and is not qualified to act as an official newspaper. It would seem that, while its circulation is large, its subscribers must be made up of Democrats, Republicans and persons of other parties, as it has no party of its own. In the State and Rational campaign of 1904 it did not support the Democratic principles or candidates; nor in the election of November, 1905. The mere fact that for these years it did not support the regular Democratic candidates might not disqualify it for being designated as a Democratic paper if its general faith was Democratic and it generally advocated the principles and candidates of that party. But that question is not here for deter, mination and is not determined. The record shows that it "is neither of the Democratic, the Republican or any other political faith, and clearly upon the facts shown here the two newspapers of the city having the largest circulation and of opposite political faith are the Republican and the Democratic papers respectively having the largest circulation. The petition makes the positive affirmation as to the independent character of the Standard. The return docs not reply to those allegations at all except by a general allegation upon information and belief that the Troy Daily Times and the Troy, Evening Standard, the two papers whose designation is under review, were the two daily newspapers published in the city which have the largest circulation and are of opposite political faith. This in view of the positive allegation in the petition as to the non-partisan character of the Standard, must be viewed simply as a conclusion, and probably rests upon the view of the respondents that an independent paper is of opposite political faith to a Democratic or Republican paper. I do not, therefore, consider that this part of the return meets or controverts the allegation in the petition that the Standard is not a party but is an independent paper and that' fact, therefore, stands admitted. For the reason, therefore, that the common council in making the designation did not act in the manner and upon the evidence required by the charter of the city, and also for the reason that the Evening Standard, one of the papers designated, is not eligible to Such designation, the designation of newspapers made in January, 1906, is annulled, and the common council is required, within thirty days after the service of the order herein, to meet and designate official newspapers according to law, with fifty dollars costs and disbursements to be paid by the respondent. All concurred. Determination of the common council annulled, and the common council is required, within thirty days after service of the order herein, to meet and designate official newspapers according to law, with fifty dollars costs and disbursements to be paid by the respondent.