People ex rel. Del Vecchio v. Supervisors of Kings County , 3 Abb. Ct. App. 560 ( 1867 )


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  • By the Court.

    Davies, J.

    It is difficult to see upon what ground the relator can claim compensation for the publication of the notice, issued by the comptroller of the State, and by him directed to be published in two newspapers in the county of Kings, and which were so published. The relator was never employed to publish said notice, and by his demiirrer to the return, he admits that said notice was published by him without authority, and copied by him from the columns of the Eagle and Times, after the same had been published by those papers.

    Section 61 of chapter 427, laws of 1855, makes it the duty of the comptroller of the State to give notice of certain tax sales, in the manner therein provided, “in the newspapers designated by the boards of supervisors of such counties respectively, to publish the session laws. ... The boards of supervisors of the respective counties shall audit and pay the expense of such publication.” - The relator admits that he was never authorized or requested by the comptroller of the State to publish this notice. His action, therefore, was merely voluntary, and created no legal liability upon the board to audit and pay his bill. He was purely a volunteer.

    Eeither can the relator claim the right to publish the notice in his paper, and to demand compensation therefor, on the ground that he had been appointed one of the printers to print the laws, under the act of 1845. That act directs the boards of supervisors of the several counties of this State, at their annual meetings, to appoint the printers for publishing the laws in their respective counties. It then provides the manner of making the appointment. The board of supervisors of Kings county did proceed to make such appointment, and did appoint and designate two newspapers, printed in said county, to publish said laws. If there was any irregularity in such appointment, or if the rtdalor was appointed, as he claims, he has not selected the proper mede for trying and settling those *565questions. The regularity of the appointment of the newspapers designated cannot be thus inquired into collaterally. The relator, if he claimed to have been appointed or designated as one of the newspapers, should have instituted the proper proceedings to have tested that question. He should not have lain by and permitted others to enter upon the discharge of the duties of an office to which he claims to have been appointed, and thus subject the county to expense to such persons for the discharge of those duties.

    But it is very clear that the relator, upon the facts stated in the return, never was appointed or designated as one of the printers within the meaning of the act of 1845. It is apparent that the supervisors did not observe the precise directions of the statute. They did designate two newspapers to publish the laws, although not in the manner pointed out. The provision as to the manner may be held directory, if the substance of the act was complied with. The balloting may be regarded as informal, but the resolution of the board declared the result, and that could only be changed by a direct proceeding for that purpose.

    Under no view of the facts can the relator claim to have been appointed or designated as one of the papers. It is to be borne in mind that the board were to appoint two printers. To attain this, each supervisor was to vote for one, and the paper having the highest number of votes, and that having the next highest number of votes, “ shall be the papers designated for printing the laws.” It is thus seen that it was essential to an election, that two papers were to be voted for at the same time. Two were to be chosen, appointed or designated by the same act, and each supervisor was restricted to voting for only one. And it may be conceded that all the ballots having more than one paper named therein were void. It follows, thereforefore, that the only legal ballot cast was for the paper owned by the relator. But one supervisor alone voting could not make the appointment. The act clearly contemplates and requires that more than one vote shall be cast. Two papers are to be appointed by one and the same process. Ho voter can vote for more than one paper. The paper having the highest number of votes, and the paper having the next highest number of votes, are to be the papers designated for *566printing the laws. It follow?, therefore, at such an election, that at least three legal ballots must be cast, and that, to make tin appointment, one paper must have two, and another paper one. This is the" least possible number of legal votes which can be voted to make an appointment in compliance with the provisions of this act. Now, if the relator’s position he correct, there was but one legal vote cast at this election. If so, it conclusively follows that no appointment was made at that meeting of the hoard; and it also clearly follows that the relator or his paper: was not appointed or designated. No one of two or more papers received the highest number of votes, and no paper received the next highest number of votes; consequently, no two papers could be designated for printing the laws.

    •In whatever aspect, therefore, we regard the relator’s claim for compensation for publishing the notice in question, we are unable to discover any legal ground for enforcing it.

    Without discussing the question whether a mandamus was the proper remedy to compel payment of this demand, we are of the opinion that the judgment refusing to award it was correct, and should be affirmed, with costs.

    All the judges concurred, except Bocees, J., who was absent.

    Judgment affirmed, with costs.

Document Info

Citation Numbers: 3 Abb. Ct. App. 560

Judges: Davies

Filed Date: 12/15/1867

Precedential Status: Precedential

Modified Date: 1/12/2023