The defendants appeal from an order of the Special Term granting a peremptory writ of mandamus requiring the board of elections “ to publish a list of places for the, registration and polling of votes according to the Election Laws of the State of Hew 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 Gov*122ernor.” The relator moved to dismiss this appeal on the ground that the writ of mandamus was duly issued, and on the eighth day of October, the same date on which the notice of appeal was served, the board of elections met and in compliance with the mandamus designated four' papers for the publication of election notices, as required by the writ. The writ issued required the defendants to convene' “ for the purpose of designating four daily newspapers published in the Borough of Manhattan, in the City of Hew York, in which are to be printed the general election notices in. the city of Hew York, Borough of Manhattan, which said newspapers advocate the eléction of William Randolph Hearst as the candidate of the Democratic party for' Governor, the said Democratic party being the party polling the next highest number of votes at the last election for Governor in the State of Hew York, and its. platform as adopted at tlie State Convention held on the 26th day of September, 1906,- at the City of ISuffalo, State of'Hew York, at which William Randolph Hearst of Hew York was nominated for Governor and the Democratic ticket as nominated at said convention.” The .statute does not require the board to designate newspapers, but to cause the notices to be published. The board having acted under a command of the writ, its action is¡ not an exercise of discretion, but an act commanded by the Supreme Court. If the writ was inrprop-erly issued the subsequent publications could be made in such newspapers as the .board should select as complying with the statute;' and there is presented, therefore,, a question as to whether the court below correctly construed section 10 of the Election Law When it was held that the board was bound under the law to select four-newspapers that supported the candidate for Governor nominated by the Democratic party, the party polling “ the next highest number of votes ” at the last preceding election for Governor. Section 10 of the Election Law (Laws of 1896, chap. 909, as amd. bv Laws of 1906; chap. 259) provides that “ in the borough of Manhattan such publication shall be made in four daily newspapers published in the borough of Manhattan which advocate the principles of the political party-polling the highest number of votes in the State at the last .preceding election for Governor, and also in fohr daily newspapers published in the borough of Manhattan which advocate the principles of the political party polling the next highest number of votes for Gov*123ernor at said election.” This provision contains no reference to a , candidate of either of the parties. Supporting a candidate is not made the test by which the commissioners are to be governed in the selection of the newspapers. A newspaper may, for personal reasons, refuse to support' one or more candidates nominated by a political party to which it adheres, and may at the same time support the principles of the party. There is no more reason that the nominee for Governor should be selected as the test as to whether a newspaper • supports the principles of the party than any other candidate upon the ticket. I think, therefore, the court was clearly in error in commanding the defendants to select newspapers for this publication supporting the candidate for Governor on the Democratic ticket. It was the duty of the defendants to select four newspapers for the publication of these election notices, papers supporting the principles of the Democratic party at the election to be held in November, and they did not comply with their duty if they selected papers that supported the prinmples. of the Republican party, or any other party except the Democratic party. The petition alleges that the defendants had selected, as representing the principles of the Democratic party, four newspapers in the city of New York, namely, the World, Sun, Times and Staats-Zeiiung, and that these four newspapers “ do not advocate the principles of the Democratic Party, being the political party polling the next highest number of votes in the State of New York at the last preceding election for Governor; ” and, further, that the act of - the defendants, in designating these four newspapers, “ was in contravention of the statute in such case made and provided, inasmuch as none of the papers so designated advocates the principles of the political party polling the next highest number of votes for Governor at the last election, to wit, the democratic party ; ” that “ The World, The Sun, The Times and the Staats-Zeitung immediately heretofore, and after said nominations, advocated and does now advocate the principles of the Republican Party, to represent which, in accordance with the law, the said Board of Elections had already appointed the Mail, The Globe, The Press and The Tribune, which have at all times advocated the principles of the said Republican Party.” This allegation is not denied, and the court had before it, therefore, simply an allegation that the board had selected newspapers that *124supported the.principles of the Republican .party under a statutory provision which requires them to designate newspapers supporting the principles of the Democratic party. ' It follows that the act of the defendants' in designating these newspapers was not a compliance with the statute, and that the court, in a proper case, was justified in issuing a mandamus requiring the board to publish these ■ election notices in four newspapers representing the principles of the Democratic party.
For the reasons stated, however, by Mr. Justice Clarke, I concur with him in the conclusions at-which he has arrived.