
    The People of the State of New York ex rel. H. S. Beldon Crowe, Individually and as Surviving Partner of Crowe Publishing Company, Relator, v. George Peck and Others, as Members of the Democratic Party of the Board of Supervisors of Schenectady County, Bernard A. Farrell, as Clerk of the Board of Supervisors of Schenectady County, and Mitchell May, as Secretary of State of the State of New York, Defendants.
    (Supreme Court, Schenectady Special Term,
    December, 1914.)
    Supervisors — board of — designation by majority of newspaper to publish Session Laws — County Law, § 20.
    A single employee is not an interested person within the meaning of section 1868 of the Penal Law.
    Where a majority of the seven Democratic members of the board of supervisors of Schenectady county designated the Schenectady Gazette to publish the Session Laws, concurrent resolutions of the legislature and election notices for the year 1915, and filed said designation with the board of supervisors who, in turn, sent to the secretary of state the proper notice, said designation is not illegal because one of the supervisors voting therefor though employed at a stated salary as city editor of the Gazette by the corporation which publishes it was not interested therein either as stockholder, officer or director.
    A designation of another newspaper thereafter made by three of the seven Democratic members of the board of supervisors to' publish like matter is not legal under section 20 of the County Law.
    Application for a writ of mandamus.
    Burritt B. Johnson, for relator.
    Naylon & Robinson, for defendant Daily Gazette Company.
   Van Kjbk, J.

This is an application for a writ of mandamus, peremptory or alternative, directed to the defendants aforesaid, commanding them to cancel and declare null the designation of the Schenectady Gazette to publish the Session Laws, concurrent resolutions of the legislature and election notices for the year 1915, and commanding the said supervisors to designate the Delanson and Quaker Street Review to publish said Session Laws, concurrent resolutions and election notices; or that the court declare the aforesaid designation of the Delanson and Quaker Street Review to publish laws, etc., to be the legal designation and requiring said clerk of the board of supervisors to file such designation and send the proper notice to the secretary of state of such designation.

Seven of the supervisors of the county of Schenectady are members of the Democratic party. Three of said Democratic members have designated the Delanson and Quaker Street Review to publish the Session Laws, concurrent resolutions of the legislature and election notices for the year 1915 and delivered said designation to the clerk of the board of supervisors. Shortly prior thereto, four of said Democratic members designated to publish the same laws, etc., the Schenectady Gazette and filed said designation with the clerk of the board of supervisors, who in turn sent to the secretary of state the proper notice of such designation. This latter designation, being made by a majority of the Democratic members, is a legal designation (County Law, § 20) unless Supervisor Hill, one of the four, was prohibited by law from acting because of his interest (Penal Law, § 1868) and therefore the contract so made could not be the basis of a legal charge against the county. Beebe v. Supervisors of Sullivan County, 64 Hun, 377; affd. on opinion below, 142 N. Y. 631; also opinion of Attorney-General, 1 Dept. Repts. 480, where section 1868 of the Penal Law is carefully discussed with reference‘to the acts of a supervisor in designating a paper to publish laws, etc., and cases cited.

The one question presented is whether or not Supervisor Hill is interested within the meaning of section 1868. He is an employee of the Daily Gazette Company and holds the position of city editor. The Daily Gazette Company publishes the Schenectady Gazette. It asked leave to intervene and answer; this permission was given. Supervisor Hill is not interested in the Daily Gazette Company or the Schenectady Gazette as stockholder, director or officer; nor has he any financial or money interest in the paper; he is employed at a fixed salary. My attention is not called to any decision in our courts in which it has been held that a single employee is an interested person within the meaning of this provision of the Penal Law. The attorney-general has expressed the opinion that an employee may properly be said to have an indirect interest in the success of his employers. Upon such success or extension of business may depend, not only the amount of the employee’s salary, but further may depend his receiving any employment whatever. Reports of Attorney-General, 1912, p. 455. There may be circumstances under which the employee would have an interest. For example, if he were working on a commission; or, if the success of the business in which he was employed depended upon the contract which he was making; or, if he represented his employer (under the terms of his employment) in making the contract, so that in some degree he would enjoy credit or benefit from the contract; he might be held to have an individual interest. No such, circumstances exist here. The Schenectady Gazette is the principal, if not the only, Democratic paper published in the city of Scheneetady; it has a very wide circulation and is apparently doing a prosperous business. There is no suggestion that the securing of this contract to publish the laws is necessary to its financial success, and it does not appear that it is any part of the services rendered by him as an employee of the Gazette to make contracts or procure new business. It does not appear that in anywise it can affect him financially whether or not this contract is made. His taking part in the designation is consistent with his duty as a supervisor and entire disinterestedness as an employee; it cannot be doubted that the Gazette comes within the requirements of the statute, or that the circulation of the Gazette would furnish a much wider circulation and publication of the laws and bring them to the attention of many more people than could the circulation of the Delanson and Quaker Street Review. The most general publicity, not patronage, is the purpose of the statute. People ex rel. Hall v. Ford, 127 App. Div. 444. It seems to me that it is extending the prohibition too far to hold that it covers a simple employee, working upon a fixed salary, who does not otherwise represent his employer in the transaction, because he is interested individually in the contract which he has taken part in making as a member of the board of supervisors. In making such a contract, under the facts in this case, it does not seem to me that he is serving two masters — that he is the agent of his employer. I realize that an employee may be, and often is considered to be, interested in behalf of his employer and in many cases would be inclined to favor the employer, but doubt whether such conclusion should be reached from the naked fact of employment. More should be shown. My opinion in Matter of Schenectady Illuminating Company v. Board of Supervisors, ante, 226, is urged as an authority here by the relator. In that case Mr. Carr (a supervisor) was a director, officer and stockholder of the illuminating company. All of the stock of the illuminating company was held by the General Electric Company. Mr. Carr was in the employment of the General Electric Company and as such was given one share of the stock to enable him to be such director and officer. As an employee of the General Electric Company he represented that company; he did the business concerning which the contract was made, on behalf of the General Electric Company. Under these circumstances it seemed to me that he was the agent of the General Electric Company and he did have an interest in the contract.

"Whether or not I am correct in my conclusion that Supervisor Hill is not interested and, therefore, the contract is enforceable, a mandamus cannot issue in behalf of the relator. Section 20 of the County Law permits a majority of the members of a party to designate a paper fairly representing the political party to which said members belong, regard being had to advocacy by such party of the principles of such party and the support of the state and national nominees thereof and to its regular and general circulation in the towns of the county, to publish the Session Laws and concurrent resolutions of the legislature, also the election notices. It provides also: “ If a majority of the members of the board, representing either of such parties cannot agree upon a paper, or shall fail to make a designation of a paper or papers as above provided, then in such case the paper or papers last previously designated, in behalf of the party or parties, whose representatives or a majority of them have failed to agree, shall be held to be duly designated to publish the laws for that year, and any designation of a paper or papers made contrary to the provisions of this section shall be void.” A majority of the Democratic members of the board of supervisors of Schenectady county have not designated the Delanson and Quaker Street Reivw. There is therefore no legal designation of that paper; and, if the designation of the Schenectady Gazette for the year 1915 is illegal, then no legal designation for 1915 has been made, and the Schenectady Gazette, being the paper legally designated for the past year, must be held to be duly designated to publish the laws, concurrent resolutions and election notices for the year 1915.

No issue of fact is raised by the petition and answer. The issue is one of law.

The writ of mandamus is denied; an order accordingly may be presented.

Application denied.  