People ex rel. McKenzie v. Board of Supervisors

Smith, J. : Section 3 of chapter 280 of the Laws of 1845, as amended by chapter 215 of the Laws of 1870, makes it the duty of each board of supervisors in the several counties of this State, at their annual meeting, to appoint the printers for publishing the laws in their respective counties, in the following manner: “ Each member of the board shall designate by ballot one newspaper printed in the county to publish the laws, 'and the paper having the highest number of votes, and the paper having the next highest number of votes, shall be the papers designated for printing the laws, provided such papers are of opposite politics, and fairly represent the two principal political parties into which the people of the county are divided.” At their annual meeting in November, 1878; the board of supervisors of Cattaraugus county, designated by the highest number of votes, the “ Randolph Register,” and by the next highest number, the “ Cattaraugus Union,” as newspapers to publish the session laws. The first named newspaper represented the Republican party, and the last named the Democratic party. It [13] is not claimed by the relator but that the designation of the Republican newspaper was regular, but it is claimed that instead of designating a Democratic paper, the board should have designated one of the three newspapers in said county which represented the “ National Greenback ” party, as one of the newspapers to publish the session laws. This claim is based mainly upon the fact that at the general election, held in said county shortly before the action of the board was had, more votes were given for the greenback candidates, in some instances, than were received by the Democratic candidates for the same offices, and that in respect to some of the local offices the Democrats made no separate nominations, but indorsed the greenback candidates and generally voted for them. Even if the evidence derived from the canvass were to govern, it is by no means of a decisive character, inasmuch as the majorities were not largo as between the greenback and Democratic candidates, and in one instance the majority was on the side of the Democrats. Still, the results of the. canvass were undoubtedly proper to be considered by the board in deciding which were the two principal parties in the county, but they were not necessarily controlling. The statute has not made the canvass a test by which the question is to be determined. The Legislature has committed the question to the decision of the board, and in deciding it the members of the board act judicially, and they may consider not only the number of votes cast at the next preceding election, but also all other facts within their knowledge bearing upon the question. The board having acted in the matter and determined the question, a mandamus will not lie to compel a reversal of their judgment. (The People ex rel. Opdyke, Mayor, etc., v. Brennan, Comptroller, etc., 39 Barb., 651; Francis v. Common Council of Troy, 20 Alb. L. J., 269.) The order appealed from should be affirmed, with ten dollars costs and disbursements. Talcott, P. J., and Hardin, J., concurred. Order appealed from affirmed, with ten dollars costs and disbursements.