Summary
In Matter of Troy Press Co. (94 App. Div. 514; affd. without opinion, 179 N.Y. 529) it was considered that the designation was limited in duration to one year, inasmuch as meantime the minority party might become one of the two principal parties. If this view be accepted, it is evident that the annual designation should not be based on the expression of the views of the voters of the county for Presidential electors, chosen once in each four years, or of the Governor, chosen once in two years.
Summary of this case from Matter of Pearsall v. Bd. of SupervisorsOpinion
May, 1904.
George B. Wellington and Seymour Van Santvoord, for the appellant.
T.J. Quillinan, for the respondents.
Have the members of boards of supervisors the power to designate newspapers to publish the session laws and concurrent resolutions of the Legislature for a period extending more than one year? This is the first question requiring an answer on this appeal.
The period of time for which newspapers are to be designated is not expressly stated in the statute. The intention of the statute, however, cannot be reasonably doubted. The purpose of publishing the session laws and concurrent resolutions of the Legislature is to give to the people of the State notice of their enactment and of the provisions thereof. Every person is presumed to know the law and the earliest and fullest opportunity for reading new statutes is desirable. That every person, so far as practicable, may have an opportunity to read the laws of a general nature it is provided that they shall be published in each county of the State, and it is also provided that all laws of a local nature shall be published in each of the counties interested in the same (Laws of 1845, chap. 280, §§ 1, 2, as amd. by Laws of 1892, chap. 715), and as a further means of bringing the laws to the attention of the greatest number of people section 19 of the County Law ( infra), also provides that the publication shall be made in two newspapers fairly representing the political parties of the members of the board of supervisors of the county representing respectively each of the two principal political parties into which the people of the county are divided, and in determining the newspapers that so fairly represent such political parties, regard must be had to advocacy by such paper of the principles of its party and its support of the State and National nominees thereof and to its regular and general circulation in the towns of the county.
After the designation of a newspaper has been once lawfully signed and filed it cannot be revoked. ( People v. Supervisors of Monroe County, 60 Hun, 328.) If such a designation can extend for more than one year there would seem to be no limit to the period for which it might be extended, at least if the term of office of supervisors should be correspondingly extended.
It would be possible for the owner of a newspaper so lawfully designated to sell such newspaper and by reason of such change of ownership or by reason of a change in the political principles of an owner, such newspaper might at a subsequent State or National election, within the term of such designation, advocate the principles of a party other than the one of the members of the board of supervisors so designating it. It would also be possible that the political sentiments of the county would so change, as shown by a subsequent State or National election within the period for which such newspaper was designated, that the representatives of a third party in the board of supervisors, which at the time of the designation was a minority party in the county, might become the representatives of a majority party in the county, and thus entitle them and the people of the county to have the session laws and concurrent resolutions published in a newspaper fairly representing such political party that had thus become one of the two majority or principal parties into which the people of the county were divided. The whole spirit of the statute, considered in connection with the purpose thereof, requires that the publication of the session laws and concurrent resolutions shall be made with reference to the current year, and the sentiments and political principles of the people of the county and its newspapers therein at the time of the designation and of such publication, and a designation which extends for more than one year is so contrary to the spirit and intent of the statute that it should not be made, and it is not within the terms of the statute.
The language of the present statute relating to the designation of newspapers (County Law [Laws of 1892, chap. 686], § 19, as amd. by Laws of 1900, chap. 400) as well as that of all previous statutes relating thereto is consistent with an annual designation of newspapers at the regular fall session of the several boards of supervisors following the general election, and inconsistent with any other or different practice or procedure. The practice of designating newspapers to publish the session laws and concurrent resolutions annually after the general election has been universal.
By said section 19 of the County Law it is expressly provided that "any designation of a paper or papers made contrary to the provisions of this section shall be void." The designation of the Troy Observer on October 14, 1902, so far as it relates to the year 1904, is void, and the Democratic members of the board of supervisors in 1903 were required by the terms of said section to designate a newspaper representing their party for publishing the session laws and concurrent resolutions of the Legislature for the year 1904. It is contended by the respondents that by chapter 124 of the Laws of 1901 the annual meeting of the board of supervisors of Rensselaer county is held on the second Tuesday of January in each year and that as a Democratic newspaper was not designated at the annual meeting in January, 1903, or at a special meeting called for the purpose there was no authority in the Democratic members of the board of supervisors to file a designation of a newspaper on December 1, 1903.
Assuming that under section 3 of chapter 280 of the Laws of 1845, as amended by chapter 715 of the Laws of 1892, the annual meeting of the board of supervisors therein referred to, so far as the county of Rensselaer is concerned, is the meeting in January of each year, the contention of the respondents in regard to the authority of the Democratic members of said board of supervisors on the 1st day of December, 1903, depends upon whether said section 3 is now in force.
Where there is no direct repugnancy or inconsistency between the earlier and the later law, there may in some cases be an implied repeal. This result follows where the later act revises, amends and sums up the whole law on the particular subject to which it relates, covering all the ground treated of in the earlier statute, and adding new or different provisions, and thus plainly shows that it was intended to supersede any and all prior enactments on that subject-matter and to furnish for the future in itself alone the whole and only system of statute law applicable to the subject. (Black on Interpretation of Laws, 116.)
A later statute covering the same subject-matter and embracing new provisions operates to repeal the prior act, although the two acts are not in express terms repugnant. ( McDermott v. Nassau Electric R.R. Co., 85 Hun, 422; People v. Jaehne, 103 N.Y. 182. )
The Legislature of 1892 passed chapter 682 of the Laws of 1892, known as the Legislative Law, and section 48 thereof as originally enacted and as amended by chapter 182 of the Laws of 1902 provides that the Secretary of State shall send to each newspaper designated by the members of boards of supervisors copies of the laws and concurrent resolutions to be published by such newspapers, and section 80 of the statute of 1892 expressly repeals chapter 280 of the Laws of 1845, and also the several amendments thereto, so far as they affect the question herein. This act by its terms was not to take effect until October 1, 1892. (See § 81.) It was approved by the Governor May 18, 1892. On the same day the Governor approved chapter 686 of the Laws of 1892, known as the County Law, and by section 19 thereof provision was made for the designation of newspapers by members of boards of supervisors for the purpose in question. Such County Law by its terms took effect immediately. (See § 239.)
On the 21st day of May, 1892, three days after the approval of said Legislative Law and said County Law, the Governor approved the act known as chapter 715 of the Laws of 1892, which in terms amends the several sections of chapter 280 of the Laws of 1845, and which took effect June 10, 1892 (Laws of 1892, chap. 682, § 43). Section 33 of the Statutory Construction Law (Laws of 1892, chap. 677) provides as follows: "No provision of any chapter of the revision of the general laws, of which this chapter is a part, shall supersede or repeal by implication any law passed at the same session of the Legislature at which any such chapter was enacted or passed after the enactment of any such chapter and before it shall have taken effect; and an amendatory law passed at such session or at any subsequent session begun before any such chapter takes effect shall not be deemed repealed unless specifically designated in the repealing schedule of such chapter."
Chapter 715 of the Laws of 1892, being a later act of the same session of the Legislature at which said Legislative Law and said County Law were enacted, was not superseded by such general laws, but the provisions thereof superseded the similar provisions in said general laws.
Subsequently and in 1898 chapter 349 of the laws of that year was passed amending section 19 of said County Law, and in 1900 chapter 400 of the laws of that year was passed further amending said section 19 of the County Law so as to read as in said chapter provided. Section 19 of the County Law as so amended in 1900 is a full, complete and independent enactment on the subject-matter in the act contained. It treats the designation of newspapers for the purpose in question as the act of the members of the board of supervisors in conformity with the plan of said County Law and said Legislative Law as distinguished from the provisions of the act of 1845 and the amendments thereto. It is a later statute on the same subject-matter as section 3 of chapter 280 of the Laws of 1845, as amended by chapter 715 of the Laws of 1892, and it was intended to sum up the whole law on the subject of such designations. It superseded and repealed by implication said section 3 of chapter 280 of the Laws of 1845, as amended by chapter 715 of the Laws of 1892, and respondents' contention so far as it is based upon that section cannot prevail. The designation of the Troy Daily Press by a majority of the Democratic members of the board of supervisors on December 1, 1903, was a valid and legal designation. Said designation being a valid and legal one, and the designation of the Troy Observer made October 14, 1902, so far as it related to the year 1904 being void, the clerk of the board of supervisors in forwarding to the Secretary of State a notice that the Troy Observer had been selected by the Democratic members of the board of supervisors to publish the session laws and concurrent resolutions of the Legislature of 1904 was not in the performance of any duty required of him by statute. On the designation of December 1, 1903, being filed with him on December 3, 1903, it became his duty to forward to the Secretary of State a notice stating the name and address of the newspaper in said designation stated as the newspaper selected by the Democratic members of the board of supervisors for the publication of said session laws and concurrent resolutions for the year 1904. (County Law, § 19, as amd., supra.) He did not neglect and refuse to so forward such notice to the Secretary of State by reason of any controversy over the facts or by reason of any question relating to the Troy Daily Press being a newspaper that had advocated the principles of the Democratic party and that had supported its State and National nominees.
Every fact is conceded by the record. In his letter to the Secretary of State in explanation of his neglect and refusal to send a notice stating that the Troy Daily Press had been selected by the Democratic members of the board of supervisors to publish the session laws and concurrent resolutions for the year 1904 the clerk says: "Having certified to the one designated at the time I received your request I cannot consistently certify to another."
When the law requires a public officer to do a specified act in a specified way upon a conceded state of facts without regard to his own judgment as to the propriety of the act and with no power to exercise discretion, the duty is ministerial in character and performance may be compelled by mandamus if there is no other remedy. ( People ex rel. Harris v. Commissioners, 149 N.Y. 26, 31.)
The certificate filed by the clerk with the Secretary of State was erroneous and untrue and not in accordance with the fact, and as soon as the designation of December 1, 1903, was filed with him on the 3d day of December, 1903, there was a duty imposed upon him by statute which he has failed and neglected to perform, and the order applied for by the relator should have been granted.
The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Order, if not agreed upon, to be settled by CHASE, J.