People ex rel. Thompson v. Board of Supervisors

16 N.Y. Sup. Ct. 60

• Court: New York Supreme Court
• Decided: November 15, 1876
• Status: Published

Opinion

Per Curiam:

Chapter 662 Session Laws 1870, enacts that “ all legal notices and advertisements, required by the laws of this State, or by any special law, to be published in the said county of Hamilton, shall be published in sueh newspaper or newspapers as shall be designated by the board of supervisors.”

The question is whether the words “ in such newspaper or newspapers ” are intended to change the general laws as to the number of newspapers in which notices are to be published, or whether they only express the idea that such notices, as are by general laws to be published in one newspaper, are not by this act required to be published in more than one. The latter seems to be the best construction of the act. It was not passed for the purpose of changing the general system as to the number of papers in which notices should be published. Its object was only to enable the supervisors to designate newspapers out of that county, until a newspaper should be published therein. This is in analogy to the Laws 1845, chapter 280.

Then we have chapter 427 of Laws of 1855. Section 61 requires the notices in question to be published in the newspapers designated to publish the Session Laws, and requires the boards of supervisors to audit and pay the expenses. Section 62 enacts that, if no newspapers shall have been thus designated, the comptroller shall select two newspapers in the county ; if there are not two in the county, then he is to select two which he believes to be most generally circulated.

Thus, as the supervisors had designated only one newspaper, and as the general law required publication in two, the comptroller rightfully selected another.

This view is strengthened by the fact that chapter 690, Laws of 1866, in certain cases, when one of the papers designated by that law refused to publish, did permit a publication in the other paper only. The repeal of that act by chapter 662, Laws of 1870, is an indication that no such exception to the general laws in respect to publication prevails any longer.

It is urged that section 62, of chapter 427, Laws of 1855, does not require the supervisors to pay the expense of publication in newspapers selected by the comptroller.

But this section must be read in connection with section 61. The obligation to pay the expense of such publication is not to be escaped by the neglect to designate newspapers. It is intended that this expense should be borne by each county; and none the less because the newspapers are selected by the comptroller on account of the failure of the supervisors to act.

Chapter 215, of the Laws of 1870, provides for the mode of selecting two papers to publish the Session Laws in the. several counties. And it enacts that, if there be only one paper printed in the county, the laws shall be published in that paper. But there is no reason to understand that this clause takes from' the comptroller the general duty imposed by section 62, above mentioned, of publishing the tax notices in two newspapers for each county. And therefore that act does not affect the present case.

We think, for these reasons, that the order denying mandamus should be reversed, with ten dollars costs and printing, and mandamus granted, with ten dollars costs.

Present — LearNed, P. J., Booxes and Boardman, JJ.

Order reversed, with ten dollars costs and printing, and order for mandamus granted, with ten dollars costs.