Laughlin, J.:
On the 15th day of October, 1906, this court, by a majority vote, granted a motion duly made to dismiss the appeal herein (115 App. Div. 118), and subsequently certified two questions to the Court of Appeals' (Id. 893). By the remittitur of the Court of Appeals now presented to this court it appears that the Court of Appeals reversed our order dismissing the appeal, but did not answer either question upon which this court requested the opinion of the Court of Appeals. The questions which we certified for the opinion of the Court of Appeals were as follows :
(1) Was it error to dismiss an appeal to the Appellate Division from a final order granting a peremptory mandamus where the defendants have obeyed the writ by completely performing the acts which they wez-e coznmanded to perform ?
(2) If it was error to dismiss such appeal was the mandamus properly granted upon the papers presented to the Special Term ?
It appears by the opinion of the Court of Appeals (186 N. Y. 263) that instead of. accepting the recital izi the first question that the board had obeyed the peremptory writ of mazidaznus authorized by the order appealed from “ by completely perforzniug the acts which they were coznmanded to perform,” which appeared by the affidavits upon which the motion to dismiss was made and was not controverted, the record was examined and the conclusion reached that the duty of the board was not and could not be 'coznpleted by designating newspapers which concededly answered all the réquireznents of the statute and authorizing the publication therein of the election notices required by law. It is manifest that such decision must have been izpon the tlieozy advanced in the dissenting opinion of Hr. Justice Ingeaham on the motiozi to dismiss the appeal, which was,- in effect, that the duty to cause the notices to be published is a contiziuing duty on the part of the board, concerning which they can only contract for the publication for one day at a time, if at all. This is the logical and necessary effect of the decision. It clearly appeared by uncontroverted evidence upon the record before us and upozx the motion to dismiss the appeal that the newspapers originally designated were not eligible for designation for the reason that they were not supporting the principles of the Democratic party and were supporting those of the Republican party, which necessarily upon [220] such record rendered the original designations' illegal. It was asserted oii the argument and in a brief submitted by counsel for one of the newspapers originally designated, as amicus curies, that it was not- true that the papers originally designated were not supporting the principles of the Democratic party, which was essential to enable the board to lawfully designate them for the publication ■ of the election notices. There having- been. reason to believe that the failure of the board to deny any of -the. allegations of the moving papers, and that its failure to give notice to the proprietors- of the newspapers originally designated to enable them to controvert the facts, had resulted in a record that did not present.a .question that might have been presented and might arise thereafter, namely, as to whether it was essential to eligibility for such designation' that the newspaper was supporting the candidates as well as the principles of the Democratic party — I refrained from expressing an opinion on that question until it should be presented to the court in some proceeding or-diction to which the persons interested would be parties.
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Laughlin, J.:
On the 15th day of October, 1906, this court, by a majority vote, granted a motion duly made to dismiss the appeal herein (115 App. Div. 118), and subsequently certified two questions to the Court of Appeals' (Id. 893). By the remittitur of the Court of Appeals now presented to this court it appears that the Court of Appeals reversed our order dismissing the appeal, but did not answer either question upon which this court requested the opinion of the Court of Appeals. The questions which we certified for the opinion of the Court of Appeals were as follows :
(1) Was it error to dismiss an appeal to the Appellate Division from a final order granting a peremptory mandamus where the defendants have obeyed the writ by completely performing the acts which they wez-e coznmanded to perform ?
(2) If it was error to dismiss such appeal was the mandamus properly granted upon the papers presented to the Special Term ?
It appears by the opinion of the Court of Appeals (186 N. Y. 263) that instead of. accepting the recital izi the first question that the board had obeyed the peremptory writ of mazidaznus authorized by the order appealed from “ by completely perforzniug the acts which they were coznmanded to perform,” which appeared by the affidavits upon which the motion to dismiss was made and was not controverted, the record was examined and the conclusion reached that the duty of the board was not and could not be 'coznpleted by designating newspapers which concededly answered all the réquireznents of the statute and authorizing the publication therein of the election notices required by law. It is manifest that such decision must have been izpon the tlieozy advanced in the dissenting opinion of Hr. Justice Ingeaham on the motiozi to dismiss the appeal, which was,- in effect, that the duty to cause the notices to be published is a contiziuing duty on the part of the board, concerning which they can only contract for the publication for one day at a time, if at all. This is the logical and necessary effect of the decision. It clearly appeared by uncontroverted evidence upon the record before us and upozx the motion to dismiss the appeal that the newspapers originally designated were not eligible for designation for the reason that they were not supporting the principles of the Democratic party and were supporting those of the Republican party, which necessarily upon [220] such record rendered the original designations' illegal. It was asserted oii the argument and in a brief submitted by counsel for one of the newspapers originally designated, as amicus curies, that it was not- true that the papers originally designated were not supporting the principles of the Democratic party, which was essential to enable the board to lawfully designate them for the publication ■ of the election notices. There having- been. reason to believe that the failure of the board to deny any of -the. allegations of the moving papers, and that its failure to give notice to the proprietors- of the newspapers originally designated to enable them to controvert the facts, had resulted in a record that did not present.a .question that might have been presented and might arise thereafter, namely, as to whether it was essential to eligibility for such designation' that the newspaper was supporting the candidates as well as the principles of the Democratic party — I refrained from expressing an opinion on that question until it should be presented to the court in some proceeding or-diction to which the persons interested would be parties.
Since the Court of Appeals has remitted the matter to this court for a decision on the merits, I ain now obliged to express iny views upon questions'which I thought should be left open until the interested parties could be heard. It is to be borne in mind that neither the newspapers originally designated nor those subsequently designated-in place thereof have had notice or are before the court, but notwithstanding that fact, we must render a decision which will necessarily be stare, dédsis, although not res adjudicata as to their rights. In other words, one set or the other of them will be lef-t'in the position of having an adverse decision on questions directly affecting their rights, which, although not binding upon them, will be followed when their cases arise, unless they are.able to convince the court that the decision was clearly wrong. As already observed, the only basis upon which the decision of the Court of Appeals can stañd is that a newspaper, although-eligible to designation, obtains no vested right by being designated and authorized by the board to publish the registration and. election notices, and the board is at liberty to change the designation at any time. Unless this be so, what can now be accomplished by a reversal of the order authorizing the mandamus ? On the record before us, which is the record [221] upon which the Special Term was required to act, the former designations were clearly illegal, and newspapers concededly eligible for designation have since been designated and authorized to publish the remaining notices, and they have accepted the employment and entered upon the performance of the work upon the basis as t@ compensation contained in their proposals which have been accepted. How, unless no vested right can be acquired by such designation and authorization, how can the board rescind the last designation, which so far as the record discloses (and we are confined to the record in making judicial decisions) was perfectly legal and valid ? The order dismissing the appeal has been reversed upon the ground that the board is still at liberty to disregard these apparently lawful designations and authorize the publications in other newspapers. With all due deference to the Court of Appeals, I am of opinion not only that a lawful designation of an eligible newspaper under the statute and' authority from the board to it to publish all of the election notices required by law, as appears to have been done in this case, according to written proposals which have been duly invited and accepted, constitutes a contract in which the proprietor of the newspaper has vested rights, but the command of the statute also requires that the publication once lawfully begun shall be continued in that newspaper to the end. This has always been the practice, and we have a practical construction of the statute which is entitled to great weight. Moreover, that such was the intention of the Legislature clearly appears by a provision of the same section of the statute preceding that relating to the city and county of Hew York, and relating to publications of such notices elsewhere in the State. The provision to which I refer is as follows: “ The officers authorized to designate the registration and polling places in any city, except the city of Hew York, shall cause to be published in two newspapers within such city a list of such places so designated,- and the boundaries of each election district in which such registration and polling place is located. Such publication shall be made in the newspapers so selected upon each day of registration and the day of election, and on the day prior- to each such days. One of such newspapers so selected shall be one which advocates the principles of the political party polling the highest number of votes in the State at the last preceding election for governor, and [222] the other newspaper so designated shall be one which advocates the principles of the political party polling the next highest number of votes for governor at said election. The board of election's