I am of the opinion that the order appealed from .should be reversed and the application for a peremptory writ of mandamus denied. The petitioner was the publisher of the Hew York Daily News, and made'his application, to the court, not in the capacity of a citizen,' or representative of a political party for the purpose of settling a public question, but to compel the board of elections to designate the paper of which he was the publisher'as one of the papers, in which the election notices should be published for the purpose of obtaining payment therefor from the city.
The petition presented to the court prayed that a writ of mandamus issue commanding the board of elections to designate the Daily News as one of the four Democratic papers in which said election notices shall be inserted, and nothing else. And the order to show cause upon which the order appealed from herein was granted, was to the same effect,'although it did conclude with the phrase “and for such other and further relief as may be just and proper in the premises.” The order to show cause, however, must be governed and interpreted by the petition, and the relief granted must be. that clearly asked for and indicated by .the moving papers. The relief demanded by the petition was denied; and the order granted relief not contemplated nr prayed for, and which may have interfered with vested rights without notice to or hearing of interested parties. It undertook by mandamus proceedings to review and set aside'the action of the'board of elections, a board which exercises quasi judicial functions, in determining in the exercise of its discretion a question of fact. The order also injected into the statute a *125provision as to the advocacy of a particular candidate for a particular office, in place of the advocacy of the principles of a party, as the test to be applied in determining the papers in which the notices should be published.
The office of a writ of mandamus is to compel specific action in the exercise of purely ministerial functions. If the performance of an official act involves discretion, courts, although they have power to demand action, have no right to say that it must be in a particular way. As the petition in the matter at bar asked and only asked for a particular exercise of the discretion of the board, it should have been denied; and it seems to me any action of the court based upon such papers as are here presented was unauthorized and improper.
In People ex rel. Francis v. Common Council (78 N. Y. 41) where there was a question of the designation of four papers having the largest circulation in the city of Troy and the common council had selected four, and another paper petitioned the court, the court said: “ The four papers designated have acted under their appointment. They are not parties to this proceeding, and their appointment would not be vacated by any judgment which could be rendered herein. There would in that case be five official papers when the law authorizes only four. It would be difficult to say that the claims of the papers appointed by the common council, for services rendered could be successfully resisted by the city on the. ground of any invalidity in their appointment. The effect of the mandamus would be to compel the appointment of a fifth paper without disturbing that of the other four. A very clear case should be made out to induce the court to subject the city to this additional expense, and we do not find the right of the relators to a mandamus so plain as to justify that course.”
It is true that the court by its order did not direct the designa- ■ tion of relator’s paper, but it did direct the board to select four papers which .advocated the election of a particular candidate as the candidate of the Democratic party for the office of Governor, in spite of the fact that it appeared from the papers submitted that the board had already designated four papers, and it is evident upon the face of these papers that in order to comply with the peremptory mandamus the board must first rescind its prior action, the con*126sequences of which rescission may he to seriously impair contractual rights already existing without an opportunity to the holders of such rights, if such there were, to he heard.
As I think the order appealed from was unauthorized,, it should be reversed and the motion forjnandaimis denied.
Ingraham, J., concurred.
Appeal dismissed.