Opinion
Argued March 3, 1913
Decided March 25, 1913
Abram S. Gilbert, Alfred T. Davison and Lewis J. Smith for appellants. W. Bourke Cockran and James L. Dowsey for respondents.
Clinton M. Flint for South Side Messenger Company, intervening.
The preliminary contention of the appellants, to the effect that the so-called National Progressive party is not a political party for the purposes of this proceeding, may be quite summarily dismissed. The Election Law (Cons. Laws, ch. 17; amended L. 1911, ch. 891, § 3, subd. 8) defines a party to be "any political organization which at the last preceding election for Governor polled at least ten thousand votes for any candidate for any office nominated by it to be voted for by all of the electors of the state." Tested by this statutory definition, the National Progressive party is clearly a political party. Without any attempt at argument we simply suggest that we can think of no reason why the term "party" as used in the statutes germane to our discussion should not be construed as falling within the definition of that term in the Election Law.
The main question involved in this proceeding is whether the board of supervisors of a county can be compelled by writ of mandamus to designate a newspaper to publish the session laws when it is impossible to comply literally with the provisions of section 20 of the County Law, and the decision of that question depends largely upon the angle from which it is viewed. If, for instance, we should regard section 20 as the only law relating to the publication of the session laws, it would be obviously impossible to apply its provisions to the conditions which exist in Nassau county; but if we treat it as one of several statutes all relating to a common subject, and read them all together in the light of the purpose for which they were enacted, it is readily perceivable that the specific and impracticable commands of section 20 of the County Law should not be permitted to interdict the performance of the plain duty imposed by other cognate sections and statutes.
The underlying purpose of all these statutes, including section 20 of the County Law, is to secure for the information of the public the dissemination of the session laws and other legislative enactments. The manifest scheme of section 20 is to do that through the medium of newspapers supposed, or at least represented, to have the largest circulation in the county. The general idea is set forth in the Legislative Law, in the Tax Law, and in parts of the County Law, all of which enjoin the publication of specified enactments and proceedings in the newspapers designated to publish the session laws and concurrent resolutions of the legislature. Section 20 of the County Law, which is but a part of the general statutory scheme, directs the designation of these newspapers by a particular method which cannot be followed in Nassau county because of political conditions which were not foreseen when section 20 was enacted or from time to time amended. We must, therefore, either find a general authority in somebody to publish the session laws in the several counties, or we must hold that their proper publication in Nassau county must fail because the directions of section 20 of the County Law cannot be literally followed. The latter alternative might prove most unfortunate, for it would affect the publication of all tax notices and legislative enactments of a local nature, as well as all the enactments and proceedings of the board of supervisors. All these are directed to be published in the papers designated for the publication of the session laws, and if in some of the counties no paper can be legally designated for that purpose the far reaching results may be more easily imagined than described.
We have already referred to the general purpose of the statutes which provide for these publications. Section 20 of the County Law directs that this shall be done in a specified way. If there are two or more newspapers published in a county, the supervisors belonging to the two principal political parties into which the people of the county are divided shall each designate a paper, representing the principles and supporting the candidates of their respective parties. If the members belonging to either of the two leading parties shall fail to agree, or if either of such parties shall have no representative in the board of supervisors, the paper last previously designated by the members of the party failing to agree or having no representative shall continue to be the designated paper. It is obvious that when this section and its several amendments were framed and adopted, the expression "the two principal political parties," had a well-understood meaning in this state. It clearly referred to the Republican and the Democratic parties which were then the leading political parties, and so long as that condition continued, the provisions of section 20 of the County Law were easily complied with. But things have changed. The year 1912 gave birth to a new party known as the National Progressive party which, at the last general election, nominated candidates for national and state offices, and in the county of Nassau cast the second highest number of votes. It thus became one of the two principal parties into which the people of the county have divided themselves, and it has no representative in the board of supervisors and no newspaper which had been previously designated and which could hold over. This is a contingency not provided for in section 20 of the County Law; but the purpose of this section and of the other laws to which we have referred may still be effectuated under the powers which must be held to be inherent in public officers who are commanded by the legislature to do certain things but are not directed how to do them. In such a case the law which contains a command implies the power to do the thing commanded. If section 20 of the County Law were expunged from the statute books, the several boards of supervisors would still be under the necessity of publishing legislative enactments of a local character, their own enactments and proceedings, tax notices and other matters, in the papers designated for the publication of the session laws and concurrent resolutions. If these cannot be published in a newspaper designated for that purpose, they cannot be legally published at all, and it is unthinkable that the whole scheme shall fail simply because a single section of one statute prescribes a method of selecting a medium of publication that is impossible under present political conditions in one or more of the counties of the state.
The obvious remedy is to resort to the general power which must be held to inhere in the boards of supervisors, as boards, to designate newspapers for the publication of the session laws when the conditions are such that the specific commands of section 20 of the County Law cannot be obeyed. This general power is to be implied from the control over the subject which is vested in the boards of supervisors. Whatever may have been the reason for delegating this duty, in the first instance, to two political groups of supervisors instead of the boards as concrete bodies, it was never intended that the purpose of these statutes shall fail utterly whenever a board of supervisors happens to be composed of political elements which render it impossible to muster two separate groups representing the two principal parties. Section 20 of the County Law presents a plain casus omissus, and if that were the only law on the subject we should be compelled to send the parties to the legislature for relief; but the failure of that section to provide for such a contingency as has arisen in Nassau county, so far from rendering boards of supervisors powerless to perform their duties, simply calls into action those general powers to which we have referred. It is the duty of the board of supervisors of Nassau county to publish various proceedings and enactments in two newspapers designated for the publication of the session laws. If that designation could be made in the manner prescribed in section 20 of the County Law there would, of course, be no other alternative than to follow its commands; but since that cannot be done, the board must resort to its general powers. The duty to publish is primary. The direction to do it in a particular way is secondary. When it is impossible to comply with both, the latter must give way to the former.
The orders of the Special Term and the Appellate Division should be affirmed, with costs.
CULLEN, Ch. J., GRAY, WILLARD BARTLETT, CHASE, COLLIN and HOGAN, JJ., concur.
Orders affirmed.