
    The People of the State of New York ex rel. Henry Sweet, Relator, v. George G. Raymond, Mayor of the City of New Rochelle, and Henry C. Perley and Others, Aldermen of the City of New Rochelle, Together Constituting the Common Council of the City of New Rochelle, and Robert L. Forbes, Respondents.
    Second Department,
    March 5, 1909.
    Certiorari— writ issues only on relation of party aggrieved — municipal corporations ■— designation of official newspaper — when certiorari will not issue on relation of owner of newspaper not designated.
    An application for a writ of certiorari must be made by or in.behalf of a person aggrieved by the determination to be reviewed.
    Where the common council of the city of Hew Rochelle pursuant to. the charter has designated two political newspapers as representing the two principal political parties of the city, the publisher of a newspaper not designated claiming that his paper rather than one designated represents one of the principal political parties cannot review the determination by certiorari in the absence of proof that there are no other papers in the city which fairly represent that party, for he is not a “ party aggrieved’’within the meaning of section 3137 of the Code of Civil Procedure. Moreover, where the period for which the appointments were made has expired and the applicant has not published any official notices, he is not entitled to the writ, for even if the designations were erroneous, the city would not be liable to him for services rendered.
    . Cebtiobaei issued'out of the Supreme Court and attested on the 26th day of May, 1908, directed to George G. Raymond, mayor of the city of Rew Rochelle, R. Y., and others, aldermen of said city, together constituting the common council thereof, commanding them to certify and return to the office of the clerk of the county of Westchester all and singular their proceedings had in relation to the designation of two official newspapers of the said city for the year 1908.
    
      Myer Nussbaum [William A. Moore with him on the brief], for the relator.
    
      Joseph W. Middlebrook, for the respondent Forbes.
   Burr, J.:

The charter of the city of Rew Rochelle provides, among other things, that “ The common council shall, at its first ■ meeting in each official year, or as soon thereafter as practicable, fix and determine the legal fee per folio at which all notices, ordinances, by-laws, rules and regulations of the common council, * * * and such other matters as the common council may direct to be published, shall be published by the official newspapers of said city, and thereupon shall designate two newspapers published in said city that fairly represent the two principal political parties into which the people of the city are divided; in which the same shall be published at the fees so prescribed. The newspapers so designated shall be the official newspapers of the city for the ensuing official year for the purposes aforesaid, and until the next annual designation.” (Laws of 1899, chap. 128, § 62.)

By the same act it is further provided that the official year of the city shall, except as may be therein otherwise provided, commence with the first day of January in each year. (Id. § 5.)

On the 28th day'of January, 1908, the common council of the city adopted a resolution, which was subsequently approved by the mayor, which, among other things, provided that the legal fee for the publication of notices, ordinances and such other matters as the common council might direct to be published, should be “fixed and determined at the sum or price of fifty cents per folio for each and every insertion ; and that the Rew Rochelle Press and the Rew Rochelle Paragraph, two newspapers published in the City of Hew Rochelle;, that fairly represent the two principal political parties into which the people of the City are divided,” should be and they were thereby designated as the two newspapers in which said matter should be published, which two newspapers should be the official newspapers of the city of Hew Rochelle for the ensuing year. Thereafter, in accordance with the terms of such resolution, the various notices, ordinances, by-laws, rules and regulations of the common council and of the boards of the said city of Hew Rochelle were delivered to and accepted and printed by the said papers in the regular issues thereof for ¡such ensuing year.

This proceeding is brought on the relation of 'Henry Sweet to review the determination of the common council in so far as it designated the Hew Rochelle Paragraph as oné of the papers in which said notices should be published. Thé relator claims -that, while the HeW Rochelle Press fairly represents the Democratic party, the Hew ¡Rochelle Paragraph does., not fairly represent the Republican party, which parties are the two principal political parties into which the.people of the city are divided.

At the threshold of the proceeding We are met with two objections to the maintenance thereof which seem to us'to he insuperable. An application for a writ of certiorari must be made by or in behalf of a person aggrieved by the determination to be reviewed. (Code Civ. Proc. § 2127; People ex rel. Second Avenue R. R. Co. v. Board of Comrs., etc., of N. Y., 97 N. Y. 37.) It appears that the relator is the publisher of a newspaper published in the city of Hew Rochelle calle'd the Hew Rochelle Pioneer, which paper he claims has constantly and, consistently advocated the principles of and fairly represented the Republican party. It does not appear, however, that there are not other newspapers published in the said city which in like manner may he said to fairly represent the principles bf that party, and there is nothing from which this court can determine that if the decision of the common council were set aside the paper of which the relator is the owner and publisher Woiild be designated as one of the official newspapérs of the city.' It follows, therefore, that the relator is not a person aggrieved by the determination-of the common council within the meaning of the statute.

Again, the¡ ensuing official year for which the newspaper known as the Hew Rochelle Paragraph was designated as one of the official newspapers of the city terminated on the 1st day of January, 1909. • There is no claiffi that any of the notices or ordinances required to, be published in the official newspapers.of the said city have been. published during the year past in the New Rochelle Pioneer, of which the relator is the owner and publisher. ■ No claim could, therefore, arise in his favor against the city if the determination, sought to be reviewed was erroneous, since the city would not be liable tó him for services which he had not rendered. If the respondent Forbes,, who is the owner and publisher of the New Rochelle Paragraph, has no valid claim against the city because the designation of that paper as one of the official newspapers was in direct violation of the provisions of the statute, it may be that a taxpayer’s action will lie to restrain the payment of the claim or to recover, back the moneys if unlawfully paid.

■ Be that as it may, for the reasons stated this proceeding is improperly brought, and the writ of certiorari must be quashed and the proceedings dismissed, with costs.

Hirschberg, P. J., and Jenks, J., concurred; Woodward, J., concurred in separate opinion, and Gaynor, J., concurred on the ground that the action of the common council is not reviewable and that he docs not see how the publisher after doing the service could be prevented from getting the compensation'by a taxpayer’s action; that his newspaper is the legal appointee, and that is conclusive on the question of compensation.

Woodward, J. (concurring):

While it is probably doubtful whether the relator has such an interest in this controversy as to permit him to raise the questions here presented, I am not disposed to place my concurrence upon any mere technical defect. The parties have treated this as a legitimate controversy between themselves, and for my part I think the broad question should be disposed of in harmony with the prevailing law of the State. The relator appears to be the publisher of a newspaper in New Rochelle, and he seeks, upon this review, to overturn the action of- the common council of that city in designating the New Rochelle Press (Democratic) and the New Rochelle Paragraph (Republican) as the official papers of that city under the provisions of the charter. The charter-(Laws of 1899, chap. 128, § 62) provides for the designation of “ two newspapers published in said city that fairly represent the two principal political parties into which the people of the city are divided,” and it is the contention of the relator that the New Rochelle Paragraph, a newspaper selected by the common council as fairly representing the Republican element of the city, is not within the language of the statute, in that it does not fairly represent the Republican party. Robert L, Forbes, editor and publisher of the New Rochelle Paragraph, has intervened, and he avers that for a period of .twelve years he has consistently and uniformly supported the principles of the party, and that he has uniformly supported the candidates of the Republican party for all political offices; that in the case of the few minor offices where he has failed to support the party nominations, his paper’s course has been due to the fact of an honest belief that the nominations in question were offensive arid repugnant to the principles of the Republican party, and that there was abundant justification for that belief.

The relator, in the presence of a long line of judicial utterances indicating clearly that the courts have no sympathy with the effort to use these statutory provisions, designed to give the widest practical publicity with a minimum of expenditure, for the purpose of coercing or punishing the publishers of newspapers, is forced to contend that the language of the charter of the city of New Rochelle is peculiar in its character, and that it was designed to limit, the choice of the common council, in effect, to the dictum of the local Republican committee which in 1903 removed Mr. Forbes from membership in that committee and declared that his newspaper was not to be recognized as representing the Republican party. Mr. Forbes concedes that he has on certain occasions opposed the election of certain local candidates for judicial and municipal offices,, but his declaration of consistent support of Republican principles for a period of twelve years, and of his uniform support .of Republican candidates for political offices cannot be controverted here, and the common council of the city of New Rochelle, made up of men who are familiar with all the facts, are entirely competent to judge of the question of whether the Paragraph fairly represents one of “ the two principal political parties into which thé people of the city are divided.” The Republican, party is not confined to the city of New Rochelle, nor is it within the jurisdiction of any local committee" of the party ; the Republican party is a national party and we know of no rule or usage which permits a local committee of that party-to determine the political standing of a newspaper or an individual. A committee, contrary to the usual line of assumption on the part of members of such committees, is not a body of plenary powers; it has only such powers, properly speaking, as are specially delegated to it, or such as are necessarily involved in the execution of the powers delegated, and no. one. has ever pointed out any delegation of the authority of the Republicans of the city of Rew Rochelle to a local committee to say whether the Paragraph fairly represents them or not. The action of this committee, in the absence of such an authority, is mere usurpation; it does not represent the Republican party for this purpose, for it was not selected with" that purpose in view, nor has it ever received such authority-, so far as appears. The Legislature, on the contrary, has pointed out the common council as the body which shall determine whether a newspaper fairly represents a majority party, and in the absence of facts conclusively showing that the newspaper designated did not fairly represent such party, there would be no proper ground for the courts to interfere. For all that appears here, the Paragraph may have devoted practically all of its space to the advocacy of the principles and to the promotion of the candidates and policies of the Republican party in its national and State manifestations, at the very time that this local committee was removing Mr. Forbes from its membership and issuing its manifesto against his newspaper. The mere fact that a newspaper refuses to give its sanction to every candidate who is placed in nomination in the name of a great political party is not conclusive of its standing as a fair representative of the party; there are times when newspapers owe a higher duty than allegiance to a mere party name, and under such circumstances they are not to be judged from the standpoint of those whose selfish pur. poses may be interfered with, but by what Enierson would call the “ average tendency,” and tried by this test, in so far as the record goes in the matter now before us, there is nothing to indicate any abuse of the power intrusted to the officials of the city of Rew Rochelle. We are not discussing the particular quarrel between the parties to this controversy; we are simply recognizing the broad principle of law which prevails in this class of cases, and pointing out the reasons which make it contrary to public policy to attempt the belittling process of punishing the public press for the assertion of that independence which is essential to the welfare of ai free government,

For these reason's, I concur in the quashing of this writ.

Writ quashed and proceedings’ dismissed, with fifty dollars costs.  