
    The People ex rel. The Press Publishing Company, App’lt, v. James J. Martin et al., as Police Commissioners, etc., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed April 17, 1894.)
    
    
      1. Elections—Publication of nominations—Certiorari.
    The hoard of police commissioners of the city of New York, in making the selection of papers for publishing nominations under § 61, chap. 680 of 1893, acts judicially, and its action may be reviewed by certiorari.
    
    3. Same—Who may institute.
    The publisher of a paper not selected, who claims that it has the largest circulation, has sufficient interest to institute certiora/ri proceedings.
    3. Same—Proof.
    The board is not bound to resort to any particular evidence or to give to the various newspaper representatives a formal hearing,
    Appeal from order of the general term of the supreme court in the first judicial department, made October 13, 1893, which confirmed a determination of the board of police commissioners of the city of New York, designating certain newspapers for the publication of election notices, which proceedings were brought up for review by certiorari.
    
    The election law of 1892 provides fob the publication of the list of candidates to be voted for at any general election. The relator is the publisher of the New York World, and in the fall of 1892 it claimed that it was one of the papers published in the -city of New York in which the lists of nominations of candidates should.be published as required by that law; and on the 6th day of September an affidavit was made by its business manager, in which it was stated that the World was published in the city of > New York; that it advocated the principles of the political party which at the last preceding election cast the largest number of votes in the state of New York, and that its daily circulation exceeded by many thousands that of any other newspaper published in the United States; and the affidavit contained a statement that the relator was ready at any time, upon demand, to submit to the police commissioners or any one designated by them, in substantiation of its claims, all its books and accounts relating to its circulation. The affidavit was on the day of its verification delivered to and left with the police commissioners, with a letter signed by the business manager of the World, notifying them that it should be designated for the publication of all election notices for the reasons stated in the affidavit. From that time to the 25th -day of October following, there does not seem to have been any communication between any representative of the World and the police commissioners ; and on the latter day at their meeting its business manager again appeared before them and requested them to allow him to produce evidence, proving that the circulation of that paper in the city of New York was larger than that of any other daily newspaper published in the city, and that its circula-, tion was 75,000 in excess of the Sun and the Daily News. But the board would not allow him to produce such evidence. Before he appeared there, and before the request was made by him, the board had designated the New York Sun and the New York Daily News as representing the democratic party, and the New York Tribune and the Press as representing, the republican party.
    Thereafter, on the 2d day of November, the relator applied for a writ of certiorari to review the determination of the police commissioners in designating the papers named, and in its verified petition for the writ it alleged the facts herein before stated, and farther, that the letter and affidavit of the relator's manager of September 6 were before the commissioners at the time of the designation of the other papers, and that no other affidavit was at that time before them; that they did not obtain the best information that they could relative to the papers having the largest circulation within the city, and that they did not obtain any such information as a board other than that furnished by the affidavit of the relator’s manager, and that none of the newspapers designated had the .largest circulation within the city of New York. The commissioners made return to the writ, in which they admitted that there was left at their office in the city of New York the letter and affidavit hereinbefore mentioned, and that they designated for publication of the lists of candidates the Sun, News, Tribune and Press ; and they averred that on the 25th day of October, 1892, the only papers written in regard to the subject-matter before them were the letter and affidavit before mentioned; that at the time of the passage of the resolution designating the four papers no one appeared for the relator to substantiate the statements contained in the letter and affidavit; that after the resolution ■designating those papers had been adopted the manager of the World requested to be heard and was heard,but did not produce any witnesses or further evidence, and they declined to reconsider their action; that in designating the papers for the publication they selected those which, according to the best information they could obtain, had the largest circulation within the • city and county of New York.
    Upon the affidavit upon which the writ was issued, and the return to the writ, the general term affirmed the determination of • the board of police commissioners, and this appeal is from the decision of the general term.
    
      John M. Bowers, for app’lt; I). J. Dean, for resp’ts.
    
      
       Affirming 55 St. Rep. 442.
    
   Earl, J.

In the Election Law, chap. 680, sec. 61, it is provided that, at least six days before an election to fill any public office, the board of police commissioners of the city of New York shall cause to be published in not less than two, nor more than four newspapers within such city, a list of all nominations for candidates for offices to be filled at such election, and" that <( one of such publications shall be made in a newspaper which advocates the principles of the political party that at the last preceding election cast the largest number of votes in the state; and another of such publications shall be made in a newspaper which advocates the principles of the political party that at the last preceding election cast the next largest number of votes in the state. The clerk or board, in selecting the respective papers for such publication, shall select those which, according to the best information he can obtain, have the largest circulation within such county or city. In making additional publications the clerk or board shall keep in view the object of giving information, so far as possible, to the voters of all political parties; and in no event shall additional publications be made in two newspapers representing the same political party.”

The relator is right in claiming that the police commissioners in designating the newspapers act judicially; that their determination may be reviewed by writ of certiorari, and that the relator had sufficient interest to institute this proceeding; and while the time » has long since passed when any decision in this matter can have any practical, efficient operation, we will, in view of the public importance of the questions involved, overlook that circumstance and proceed to the determination of the matter upon its merits upon the facts as they appear in this record.

The police commissioners cannot, under this act, arbitrarily designate the newspapers without making any inquiry or any effort to obtain the best information as to their circulation. They must act in good faith and seek for information as to the circulation of the newspapers, and in making the designation they must act according to the best information they can obtain. But they are not bound to resort to any particular evidence nor to give the various newspaper representatives a formal hearing. They can receive affidavits, examine books or make other inquiries satisfactory to them for the purpose of ascertaining which of the newspapers has the largest circulation within the city. If they are furnished with formal proof by the representatives of any newspaper, they should receive it and act upon it. If evidence, not open to suspicion or doubt or question, is furnished to them showing that any particular newspaper has the largest circulation, they should receive and act upon such evidence, giving to it its proper force and effect. In other words, they should act in good faith, seeking for the best information to guide them in the-exercise of their judicial discretion in the selection of the newspaper under the act. All sources of information are open to them as they are open to assessors of property for taxation who are to proceed upon diligent inquiry and the best information they can obtain. 2 R. S. [7th ed.] 990, 991, 994; People ex rel. Westbrook v. Trustees of Ogdensburgh, 48 N. Y. 390.

Now, what facts have we here ? At the time the police commissioners designated the newspapers they had not been furnished with any'evidence by the relator that the World, bad a larger circulation in the city of New York than any other newspaper. The entire circulation may have been larger than that of any other-newspaper in the whole country, and yet its circulation may not have been so large in the city of New York as some other newspaper published there. The offer of the relator on the 25th of October, then to show that the circulation of the World in the city of New York was larger than any other newspaper, came too late, as the designation had then been made. There is absolutely nothing in this record showing that the determination of the police commissioners was erroneous, or from which we can determine that they did not exercise their jurisdiction regularly and rightfully. We are bound to take their return as true, and in it they allege that in designating the papers they selected those which, according to the best information they could obtain, had the largest circulation in the city of New York ; and thus they certified that they had actually and literally complied with the statute. If the return was evasive, or not sufficiently full, they could have been compelled, under § 2135 of the Code, to make a further return. They could have been required to return what action they took and what information they sought and obtained in reference to the circulation of the newspapers. But, instead of asking for a further ret.urn, the relator was oontent to stand upon the return as made. We are bound to take the return here as absolutely true. If it be false the relator has its remedy by an action against the police commissioners for making a false return, in which action it can recover its damages suffered in consequence thereof. People ex rel. Sims v. Fire Commissioners, 73 N. Y. 437.

Therefore, because we cannot in this record discover any error in the proceedings or determination^ of the board of police commissioners, the order of the general term should be affirmed with costs.

All concur.

Order affirmed.  