In re Troy Press Co.

• Decision Date: 29 January 1907
• Citation: 187 N.Y. 279,79 N.E. 1006
• Parties: In re TROY PRESS CO.
• Court: New York Court of Appeals Court of Appeals

187 N.Y. 279

79 N.E. 1006

In re TROY PRESS CO.

Court of Appeals of New York.

Jan. 29, 1907.

Appeal from Superior Court, Appellate Division, Third Department.

Application by the Troy Press Company, for a writ of mandamus of Elias P. Mann, as county treasurer of Rensselaer county, commanding him to sign and deliver to the said company orders and directions for the publication in the Troy Daily Press of certain notices entitled ‘Redemption from County Tax Sale,’ and a certain notice entitled ‘County Tax Sale.’ Appeal by defendant from an order (100 N. Y. Supp. 516) of the Appellate Division, Third Department, reversing an order of the Special Term, which denied a motion for a peremptory writ of mandamus. Affirmed.

Lewis E. Griffith, for appellant county treasurer.

William J. Roche, for respondent Troy Press Co.

HAIGHT, J.

The right of the relator to the order called for in his petition for a writ of mandamus depends upon the question as to whether chapter 236, p. 390, of the Laws of 1860, and chapter 461, p. 801, of the Laws of 1885, as amended by chapter 512, p. 1041, of the Laws of 1892, remain in force or have been repealed by implication by chapter 182, p. 371, of the Laws of 1898, as amended by chapter 581, p. 1268, of the Laws of 1899, known as the ‘Second-Class Cities Law,’ and by chapter 908, p. 795, of the Laws of 1896, which is known as the ‘General Tax Law.’ The county treasurer of Rensselaer county issued his certificate for publication of notices of tax sales of lands and notices of redemptions from sales made pursuant to the provisions of the former statutes, which were special acts applicable to the city of Troy and the county of Rensselaer, and, if those statutes remain in force, then the relator is not entitled to the relief demanded by him. If, however, the special acts have been superseded or impliedly repealed by the second-class cities law, which is in force in the city of Troy, and the general tax law, which is in force in the county of Rensselaer, then the relator is entitled to the order called for.

Under the special acts mentioned the board of supervisors of Rensselaer county is required annually as its fall session to designate as county papers two daily newspapers of opposite politics published in Troy, also two weekly newspapers having the largest circulation therein, and one weekly newspaper published in the town of Hoosick, and also one weekly newspaper, printed in the town of Greenbush, in which every advertisement chargeable to the county shall be advertised, except the Session Laws.

Under the act for the government of cities of the second class (Laws 1898, p. 376, c. 182) it is provided by section 29 that, at the first meeting of the common council after the election of its members, it shall, by a viva voce vote, designate two daily newspapers published in the city to be the official papers of the city; each member shall be entitled to vote for one of the papers, and the two papers having the highest number of votes shall be the official papers for two years and until others are designated. By section 313, which was inserted by chapter 581, p. 1288, of the Laws of 1899, it is provided that ‘in all cases where county and state taxes, which have been levied upon real estate in any city shall remain unpaid after the time when the same should have been paid, notice of the sale of lands situate in the city for such unpaid taxes, shall be published in the official newspapers of the city, in the same manner that is prescribed in existing laws with reference to sales of lands for unpaid city taxes. Where notice of redemption from such sales for unpaid county and state taxes affecting real estate situated in any city shall be required by law to be published, the same shall be published in the official newspapers of the city in the manner and for the time required by law.’ It will thus be observed that under the local acts the papers are to be designated by the board of supervisors, while under the act for the government of cities of the second class they are to be designated by the common council of the city. These provisions are inconsistent, and may result, as they have in this case, in the selection of different papers. Under the provisions of the second-class cities law all statutes of the state and ordinances of cities, so far as inconsistent with the provisions of the act, are repealed. The Constitution of the state has divided the cities into three classes, first, second, and third. As to the cities of the second class the Legislature has seen fit to enact a general law for the government of those cities. The city of Troy is a city of that class, and therefore the law applies to it. One of the purposes sought to be accomplished by the dividing of the cities of the state into...