Collins v. Spicer

• Decision Date: 02 June 1885
• Parties: PEOPLE ex rel. COLLINS v. SPICER, Comptroller.
• Court: New York Court of Appeals Court of Appeals

99 N.Y. 225

1 N.E. 680

PEOPLE ex rel. COLLINS

v.SPICER, Comptroller.

Court of Appeals of New York.

Filed June 2, 1885.

Lewis E. Griffith, for People.

Wm. J. Roche, for respondent, John D. Spicer, comptroller.

RUGER, C. J.

This is a proceeding by mandamus to compel the comptroller of the city of Troy to countersign two certain bills containing items of account accruing between the dates of June 13, 1881, and June 5, 1883, for advertising and publishing official proceedings and notices for the municipal government of Troy by the Troy Observer. No question is made but that the services in question were actually rendered by the relator, nor but that the city of Troy had the benefit of them in the performance of a duty imposed upon it by law. It is, however, urged as a defense that the Troy Observer was ineligible for the legal performance of such work after February, 1880, by reason of not possessing the qualification of membership in the Associated Press required by chapter 30 of the laws of that year, and as a consequence thereof that the performance of any printing required to be done by an official newspaper after that period could not lawfully be performed by the Troy Observer. Under the authority of the city charter, as amended by section 3, c. 813, Laws 1873, reading as follows: ‘The common council shall designate not to exceed four newspapers having the largest circulation in the city, in which the city advertising shall be done only on the order of the common council,’-on March 11, 1879, the Troy Observer was, among others, legally designated as one of such newspapers. No period was prescribed by the law or by the act of appointment, as appears herein, for the termination of the official character of the papers designated, and the inference must be that it was intended to continue until legally terminated, either by some provision of law, the act of the appointing power naming a successor thereto, or by a repeal of the authority under which the designated paper was acting. It is not claimed that any other paper has, at any time, been legally designated to succeed the Troy Observer as an official newspaper, or that the common council have, by any legal act, attempted to terminate its official existence. The claim is that by virtue of section 4, c. 30, Laws 1880, amending section 3, tit. 2, c. 598, Laws 1870, and providing that ‘the common council shall, on the second Tuesday of March, 1880, and at its second regular meeting after the general election in each year, designate not to exceed four newspapers published in said city, and having the largest circulation within the corporate limits, and whose proprietors or firms or newspapers shall be members of ‘the Associated Press of the state of New York,’ in which all municipal advertisements, etc., shall be published, and which shall thereupon be known as official newspapers, the official existence of the Troy Observer was terminated, and publications made in it thereafter were unauthorized, and did not create a legal liability on the part of the city therefor.

In the absence of legislative interpretation implied from confirmatory statutes subsequently passed, there would seem to be some doubt whether the act of 1880 would, of its own force, terminate the official existence of the papers theretofore named; but, in view of the effect of such legislation, we do not think it profitable or necessary to discuss that question. The question presented depends mainly upon the construction to be given to chapter 319, Laws 1883, and incidentally to that of chapter 144 of 1881; and, while not entirely free from doubt, we think considerations of justice favor such an interpretation as will support the relator's demand. The claim seems to be a meritorious one, and its collection should not be defeated unless some insuperable objection exists to its enforcement. A fair and honest claim against a municipal corporation is entitled to the application of the same rules of construction which would obtain in the case of a similar claim against an individual, and neither should be subjected to a strained or technical interpretation of the law for the purpose of defeating them.

The papers on the appeal show that on March 11, 1879, the common council duly appointed four newspapers, viz., the Troy Times, Troy Press, Northern Budget, and Troy Observer, as official newspapers for the city. No successful attempt was made after the enactment of chapter 30, Laws 1880, to comply with the provision of that act requiring a new designation of papers of prescribed qualifications until the seventh day of October, 1881, when the same papers were again designatedby the common council to act as the official newspapers of the city. It is not disputed but that the Observer was ineligible to appointment under the law of 1880, as not having the qualification of being a member of the Associated Press. Notwithstanding this fact, that paper, both before and after the seventh of October, 1881, was employed by the city officers to publish official notices and advertisements, and continued to perform this duty down to the fifth day of June, 1883. Again, on the fifth day of April, 1883, the common council attempted to name official papers for the city, and by a vote of a majority of its members designated the Troy Times, Standard, Telegram, and Observer as such papers. It is claimed on the part of the defendant that neither the Standard nor the Observer possessed the legal qualifications to entitle them to be named by the common council, and this fact may be assumed as established by the case. As may be supposed, controversies soon arose over the validity of the publication of legal notices in the papers named, and over the claims of such papers to compensation for such services, owing to the omission by the common council to make any designation after February 1880, and to the lack of statutory qualifications possessed by some of the papers printing the municipal proceedings and notices.

To determine these controversies, the legislature, on April 25, 1881, passed chapter 144 of the laws of that year. This act, in terms, assumed to validate the publication of all municipal advertisements, notices, and proceedings printed in the four newspapers previously designated by the common council as official newspapers, and directed the payment of the claims of said four newspapers for such printing and services, upon proof that they had been rendered upon the direction or authority of the proper officers of the city government. This act was in retroactive in its effect, and was intended to be so by its authors. The claims arising previous to its passage have all been settled in accordance with its terms. The act, however, assumed to lay down no rule for the future, and left the door...