Opinion
May Term, 1897.
John A. Reynolds and Daniel S. Tuttle, for the relator.
W.F. Bishop, for the respondents.
The statute above quoted provides for the designation of two papers fairly representing each of the two principal parties into which the county is divided. The designation is not to be made by the board of supervisors, but by a majority of the supervisors representing respectively each of said parties, and the papers to be designated must not only fairly represent one of the principal political parties, but must also represent the political party to which the majority making the designation belong.
It is claimed by the respondents that the resolution above set out, made, signed and presented to the supervisors by them, was not intended as, and was not, a designation of a paper in which to publish the session laws and concurrent resolutions of the Legislature, but was intended as, and was, a mere resolution submitted to, and to be passed upon by, the board of supervisors. We think that this contention cannot be sustained. What is called a resolution was in fact a written designation made by a majority of the Democratic members of the board. The act conferred no power on the board of supervisors to pass on the designation, and the subsequent vote of the board had no force and effect. It is difficult to see how the Democratic majority could have made any other or more effective designation of a newspaper in which to publish the session laws and concurrent resolutions than the resolution above quoted to which they affixed their signatures.
As under the statute a designation was to be made by a majority of the Democratic members of the board of supervisors, and the relators composed such majority and made the determination complained of, we are not prepared to say that the writ issued on the application of the relator was not properly directed to them under the provisions of section 2129 of the Code of Civil Procedure.
We are, therefore, brought to the question whether the papers presented to us establish the fact that The Watkins Democrat fairly represented the political party to which the majority of the Democratic members of the board of supervisors of Schuyler county belonged. We think that this question is answered by the foregoing statement of the facts of the case. The allegations contained in the petition are squarely denied in the return. That paper avers that The Watkins Democrat "did not either fairly, or at all, represent the political party to which the respondents herein belong;" the party represented by the paper in question only polled thirty-six votes in the county of Schuyler at the last election; that said paper did not then, and does not now, represent the Democratic party, or one of the two principal parties into which the people of Schuyler county are divided. It appears from the return that The Watkins Democrat supported at the last election different candidates for President, Vice-President, Governor, Lieutenant-Governor and Member of Congress from those supported by the respondents.
We are compelled to take the statements of fact contained in the return as true. We are not authorized to go beyond the return and consider the facts stated in the petition, unless admitted by the return. ( People ex rel. Miller v. Wurster, 149 N.Y. 549.) As said in People ex rel. P.P. Co. v. Martin et al. ( 142 N.Y. 228) : "We are bound to take the return here as absolutely true."
Therefore, on the papers submitted to us, it does not appear that the relator was entitled to have his paper designated. If we are permitted to take judicial knowledge of contemporary history we are of opinion that the National Democratic party of 1896, which was supported by The Watkins Democrat, was a very different one from the Democratic party (so called) whose National convention was held at Chicago, with a different platform and principles and different nominees.
As it appears, therefore, that the paper of which the relator was the proprietor did not fairly represent the political party to which the majority of the Democratic members of the board of supervisors belonged, or one of the two principal parties into which the people of Schuyler county were divided; as that paper supported other candidates for President, Vice-President, Governor, Lieutenant-Governor and Member of Congress than those supported by the respondents, the relator is not in a position to complain of the action of the Democratic majority in refusing to designate The Watkins Democrat as the paper in which to publish the session laws and concurrent resolutions of the Legislature at the time in question. Under the state of facts shown by the return, the Democratic majority of the board of supervisors, under the statute, had no power to designate The Watkins Democrat.
It does not appear from the facts stated in the return that The Watkins Review was properly named as a paper to publish the session laws and concurrent resolutions of the Legislature. The return fails to show that such paper fairly represented the political party to which the Democratic majority of the board belonged. If so, the designation was unauthorized, and probably void. But as the facts appearing in the return show that the Democratic majority could not legally have designated The Watkins Democrat, the relator has no standing in court. He was not injured — not being entitled to a designation of his paper — because the board had made an unauthorized designation. The writ of certiorari issues only in favor of a party aggrieved. (Code Civ. Proc. § 2127.)
And where it appears by the return that the relator is not aggrieved, the writ should be dismissed.
We conclude that the writ should be quashed, with fifty dollars costs and disbursements.
All concurred.
Writ of certiorari quashed, with fifty dollars costs and disbursements.