Opinion
May 4, 1910.
C.L. Andrus, for the relator.
Andrew J. McNaught, Jr., for the respondents.
The relator is the proprietor and publisher of the Delaware Express, a Republican newspaper published in the village of Delhi, in the county of Delaware, which has a circulation of nearly 2,700 copies in the said county of Delaware. This circulation was distributed uniformly and generally through the county. The Sidney Record, the paper designated by the Republican supervisors to publish the Session Laws and Concurrent Resolutions for 1910, is published at Sidney and has a circulation of about 1,300, but a circulation of only about 900 in the county of Delaware. Sidney is situated upon the western boundary of said county and near to the Otsego and Chenango county lines. A substantial part of the circulation of the Sidney Record is outside the county of Delaware. No question is made about the party loyalty of either newspaper. The respondents in their return have stated or by not denying have admitted the foregoing facts, and in connection have stated, "That the said respondents in so designating the said `Sidney Record' as aforesaid, took into consideration all of the facts aforesaid and exercised their best judgment and discretion in making said designation and in attempting to make a just and equitable determination in relation thereto, from the applicants therefor and with due regard to the Republican newspapers published in said County of Delaware, and that they also took into consideration the prior designations for the past six years, the fact that the relator's said newspaper, `The Delaware Express,' was designated for said purpose for the year 1909, that public printing was not constituted by statute a monopoly by law or discretion in making such designation would not be vested in the respondents by the statute, with knowledge and giving due consideration to all of the facts aforesaid these respondents, many of whom had been members of said Board of Supervisors for many years, made the designation of said `Sidney Record' as aforesaid."
In People ex rel. Republican Journal Co. v. McCarthy ( 134 App. Div. 761) this court annulled the determination of the Republican members of the board of supervisors of St. Lawrence county, where the discrepancy in the extent of the circulation between the paper represented by the relator and the paper designated was not nearly as great as the discrepancy which appears before us in this case. The object of the statute is to give information of the laws enacted as generally as may be to the voters of the county, both Republican and Democratic. Without reviewing in detail the allegations of the return or the allegations of the relator's petition, not denied by the return, it would seem to be undoubted that for this purpose a publication in the paper represented by the relator would give by far a more general information of said statutes and concurrent resolutions. There are no facts stated which give any justification for disregarding the superior opportunity offered by the relator for the giving of such information; and it is also apparent from the return itself that the supervisors have construed as more important other matters than the party faith and the extent of the circulation, or the primal purpose of the law to give the greatest publicity to these statutes.
The determination must, therefore, be annulled, with fifty dollars costs and disbursements to relator.
All concurred, except SEWELL and HOUGHTON, JJ., dissenting.
Determination annulled, with fifty dollars costs and disbursements to relator.