People ex rel. Quinn v. Voorhis

Laughlin, J.:

The appeal is from an order of the Special Term directing that a peremptory writ of mandamus issue herein, commanding the defendants, as commissioners composing the board of elections of the city of New York and their successors in office, to “ publish a list of places for the registration and polling of -votes according to the Election Laws of the State of New York, and especially section 10 thereof, in four (4) daily newspapers published in the Borough of Manhattan, which advocate the election of William Randolph Hearst as the candidate of the Democratic Party for Governor, the said Democratic Party being the political party polling the next highest number of votes for Governor at the last, election in the State of New York, and its platform” adopted at the last State convention at which said Hearst was nominated for Governor “ and the Democratic ticket as nominated at said Convention.” On the motion to1 dismiss the appeal it appears that-a peremptory writ of mandamus has been duly issued pursuant to the order appealed from, commanding the appellants to convene and designate for the purpose of publishing said election notices four daily newspapers which advocate the election of said Hearst and the platform of the Democratic party as adopted at its last State convention and the Democratic ticket nominated at said convention; that pursuant to the command of said writ the appellants convened as a board of elections and reconsidered and rescinded a resolution adopted on the 4th day of October, 1966, which, among other things, designated the Sun, the World, the Times and the Staats-Zeitung aa daily newspapers advocating the principles of the Democratic party in ¿which the election u'otides, should .be published and revoking and annulling l< any authority for the publication of the-said election notices that may be contained in the letter of the President ” of the board to the publishers of said newspapers, which.letter was dated .on the 4th day of October,. 1906, and- thereupon adopted a resolution designating the New York Daily News, New York American, the Telegraph and the.Morgen Journal as daily newspapers published in fh,e borough of Manhattan in which said election notices should be published; that said resolution reconsidering and.rescinding the former resolution was adopted at three o’clock on ihe afternoon of the 8th day of October, 1906, and the resolution making a new designation of newspapers was adopted- half an hour later, and that-the notice of ajipeal was not-served until late in the afternoon of the' same day. No costs were awarded on granting the order, and, therefore, since the appellants, instead of applying for a stay and taking an, appeal, .have fully complied with the -mandamus ' issued pursuant to the order, this subsequent appeal can be of no avail or effect so far' as this proceeding is concerned. Notwithstanding this fact, it is urged that the cáse falls within the rule that-where an important public question is involved; the, court instead of dismissing an appeal, even though the' order appealed from has been executed,, will retain the case and express an opinion upon the law as a precedent for the guidance of public officials in the future.

We are of opinion that this case; is not one in which that course should be followed. The appellants, instead of presenting aiiy evi- . dence to sustain their action or giving notice to the proprietors of the newspapers first designated as Democratic papers by them, and ■ affording them an opportunity to apply for intervention dr to present, affidavits showing that they .were supporting. the principles,, although not the present candidates, of the Democratic party, which might render them eligible for designation under the statute (Election Law [Laws of 1896, chap. 909], § 10, as amd. by Laws of Í906, chap. 259), have allowed- the, allegations of the petition, charging not only that the newspapers first designated by them were not supporting the candidates of the Democratic party, but also that they were not supporting the principles of the Democratic party, and on the contrary were supporting both the candidates and the principles of the Republican party, to remain undenied. It is manifest, therefore, that the record as made does not present for determination the correctness of the theory upon which the appellants doubtless originally acted, or the -claims that may be made in behalf of the newspapers originally designated, that, although not supporting the candidates, they are still loyal to the principles and are supporting the principles of the Democratic party and might, therefore, be ' eligible for such designation.

It was stated upon the argument, but does not. appear in the record, although it is to be inferred from the papers upon which the motion to dismiss is made, that the president of the board, after the original designation of newspapers, by a letter duly authorized the proprietors of the newspapers to commence the publication, and that the board, without any notice or hearing to the proprietors of. those papers, has assumed to rescind the resolution and to annul the authority for publishing the notices theretofore given pursuant thereto, and has authorized the proprietors of the newspapers designated on the eighth of October to publish the notices. It would be improper, in view of the state of this record, as already indicated, for this court to express any decided opinion which might embarrass the proprietors of the newspapers in asserting their claim for the publication of the notices either under the original designation or under the last designation. We have, therefore, reached the conclusion that the appeal should be dismissed, and an order ot that effect may be entered.

Patterson and Houghton, JJ., concurred; Ingraham and Clarke, JJ., dissented.