Standard Publishing Co. v. City of New York

111 A.D. 260, 97 N.Y.S. 740, 1906 N.Y. App. Div. LEXIS 138

Opinion

Gaynor, J. :

Section 5 of the Election Law

* requires the Secretary of State to send to each county clerk in the State three months before each general election a notice of the day of election and of each office to be filled, and that each county clerk shall' forthwith file and record such notice in his office and publish it once a week until election day “ in the newspapers designated to publish election notices.” It also requires such notice to be sent to the board of elections of the city of Mew York, but does not require such board to publish it.

. In 1904 the county clerk of Queens county published such notice in the plaintiffs newspaper, and this action is to recover the- legal compensation therefor.

Section 22 of the County Law makes it the duty of the supervisors of each county to designate two newspapers to publish such election notice and also the official .canvass of elections, and to fix the compensation to be paid therefor. The appellant does not dispute that the plaintiffs newspaper was regularly designated in 1899 under the said section. That designation has continued unless another has been legally made. The board of elections of the city of Mew York assumed to designate other newspapers in July, 1904, and the question is whether it had power to do so.

By section 1586 of the city charter (as amended in 1901) all powers.and duties of the boards.of supervisors theretofore existing in any of the counties wfthm the territory of the city (of which .Queens is one), and not- transferred to any administrative department, hoard or official of the city, were transferred to the hoard of aldermen. That hoard h^s' never designated any newspaper to publish such election notice. •

The appellant claims that the power of designation given to the-supervisors by said se'ction 22 of the County-Law was transferred to the board of elections, but can point to no statute provision to that effect. It is claimed, however, that the general scheme of the Election Law and the city charter taken together accomplishes that result. . But when such claim of legislative intention to concentrate all .the powers and duties concerning elections, in the city of Hew York in the board of elections is put to the test, it does not hold good. The county clerks of the several counties within the city limits have to.receive and publish such notice under section 5 of the Election Law, as we have seen, and they also have to publish the final result of. the election canvass (Elec. Law, § 136).- Also, on March 4, 1904, the board of aldermen fixed the compensation to be paid for the publication of such notice, acting under the said section 22 of the County Law, thus' evincing the understanding that it succeeded to- that duty. And if to that why not to the other duty under the same section of designating the newspapers also ? • If the general scheme contended- for exists, it ought to hold ■ good at all points. ' 1 . ■

On reading the provisions of section 11 of the Election Law cre- . ating the board of elections "and prescribing its powers and duties (as amd. by Laws of 1901, chap. 95, § 5), and also the like statute provisions in the city charters of 1882 and 1897 in respect, of its predecessor, the bureau of elections, to'whose powers and'duties it succeeded (Laws of 1882, chap. 410; Laws of 1897, chap. 378), it will be found that while the power .and duty of designating newspapers and publishing other notices are specifically given, they are •not given in the particular here in dispute. And there are numerous powers and duties in respect of elections and the canvass of the votes not imposed on the board of elections. \

To hold that the general provision of section 11 (subd. 2) of the Election Jaw, that the hoard of elections is charged with the duty of executing the provisions of law relating to all elections, “ except as otherwise provided by law,” imposes the duty here in dispute would, of course, be'to beg the whole question.

It is true that under section 22 of the County Law the newspapers are not designated by the board of supervisors but by the members representing the two great political parties, each set designating one newspaper, in accordance with the practical interpretation of that section which prevails throughout the State. (Matter of Ford, 92 App. Div. 119.) But that duty is meant to be devolved on the board of aldermen by section 1586 of the charter, although that section only mentions in terms 'powers and duties of boards of supervisors. The construction must not be so strict as to defeat the intentioú.

The judgment is affirmed.

Hibsohbebg, P. J., Woodwabd, Rich and Milleb, JJ., concurred.

Judgment of the County Court of Queens county affirmed, with costs.

See Laws of 1896, chap. 909, as amd, by Laws of 1901, chap. 232,— [Rep,