The New York herald., 1868-04-08
CORPORATION ADVERTISING.


in the matter OF the new YORK HERALD vs. the
city,
This claim. amounting In the aggregate to
$2s,45o 10, Is made for advertising for the Common
Council, the Boards Of Councmen and Aldermen,
the Mayor. Comptroller. Commissioner OF Taxes,
street Commissioner and City Inspector. 1t is
proved that the work was done and performed In the
NEW YORK HERALD for these several Boards and De-
partments, during period extending from the I'd Of
March, 1854, to the 25th of May 1885, except only
single tem-to wit, "Notice to taxpayers $1So"-ad-
vertised on the 18th Of January Is63 for the Com
! missioner of Taxes and Assessments This item is
made chargeable to the county, instead of the oity
therefore, transferred to the claim before US pre-
sented by the claimant against the county.
6s yW Wa e 1ae %as
circulation designated BY the Mayor and Comp
Laws Of1S63 as one OF the Ofcai papers in which the
| advertisements, notices and oiiical proceedings
should be published, when authorized required by
The third section Of that act Ia in the following
| wOrds:-
sSys:ns :s%s shall ff have % been s
the Mayor and Comptroller Of said city designate
Others in their discretion, not exceed ten in all
Previous TO the passage Of the act OF 1863 the des
gnat1n on 81 @ ociai papers for such publications was
tion as to number or the extent of circulation.
In the judgment OF this Board the act OF 1868 took
away the power OF designation from the Common
Council, and was intended to invest it, and did in
vest it, exclusively in the Mayor and Comptroller
strcted to the selection Of four papers having the
largest circulation, and six Others without regard to
pressing the views Of this Board on this point has
been given in the case Of the Journal or Commerce.
ss New yaEr e repeat here ~ ~,
pers selected by the Mayor and Comptroller, was the
proper organ for official publications.
The tax levy acts for the years 1883 1884 1855 and
1886 limited the appropriations for advertising In the
official papers. The sums appropriated have been
wholly exhausted, and portion OF them have been
paid to and received by the NEW YORK HERALD.
The claim before us Is for the balance remaining
paid after & the g. appropriations were exhausted, al
The objection has been made that this Board being
empowered to allow only those claims which legal
or equitable in the judicial sense cannot allow such
as exceed the yearly appropriations in the tax levy:
that the same statutory defence which might be in
terposed III an action at law-tO wit that there was
no unexpended appropriations applicable to the
CLAIMS equally obligatory on this Board.
IN our opinion TINS objection while 1t ought to be
other circumstances, Is not controlling and mpera-
tive In the present case. The act under which this
Board is organized in the enumeration of claims
which Is forbidden to entertain expressly excludes
from the prohibition those which have ''been re.
Jected by any court or Judge for the want Of ap
preparation or fund to meet the same"
A Jortiori this Board may entertain claims which
nave nOa M mus been rejected although like defence
"belore any court or judge" When the authority to
contract an obligation for any object is solely derived
from and conferred by the law or ordinance making
and limiting the appropriation, 1t Is admitted that
claims, under such authority, but In excess OF the
be allowed.
But such is not this case. The power to authorize
advertising publications of official proceedings by
the municipal government OF New York is conferred
oy tne charter ana by special statutes besides the
portant measures in the administration Of the mum.
cipal government can only be legally conducted
through the medium Of public notices In the official
newspapers.
1t Is only necessary to cite few Of the provisions
OF law to illustrate this proposition. The thirty
seventh section OF the charter Of 1857 provides that
the clerks Of the respective Boards shall publish all
ordinances and amendments of ordinances which
shall be passed, and also the proceedings, in the
newspapers which may be employed by the corpora.
tiOn." by the same section any ordinance which
shall contemplate any specific Improvement or in:
vOlvinR the "sae, disposition or appropriation Of
public property or the expenditure OF public moneys
or income therefrom or lay any tax or assessment"
Board and Immediately after the adjournment OF the
Board at which the same shall have been passed, be
published with the ayes and noes, &C., &c., as part
Of the proceedings.
Again, it is provided in the thirty eighth section:-
pirate heads Of departments, and shall be founded on
sealed bids proposals made In compliance with pub
lie notice. advertised In such OF the newspapers Of the
city as may be employed by the Corporation for the
purpose said notice to be published for at least ten
days in each OF the newspapers so employed, and all
such contracts, when given, shall be given to the
lowest bidder &C."
Provisions OF the like import, regulating the sale of
the property Of the Corporation the leasing of docks
and wharves and other property belonging to the
city also requiring the publication, by the Comptrol
Ier of "a full and detailed statement OF the receipts
and expenditures OF the Corporation for the infor
nation Of the citizens OF New York." and affecting
other necessary measures Of municipal government,
might be multiplied. The foregoing Will suffice.
To hold that the power and duty to publish in the
official papers designated in obedience 10 manda-
tory statute was suspended when the appropriations
In the tax levy acts We're exhausted would have been
to hold that all these prudent and necessary measures
OF frequent and unforeseen should also be
suspended. Because remedy could be obtained in
such cases III actions at law IL has been the custom
to appeal 10 the taxing power OF the Legislature and
To seek RELIEF by special appropriations In the annual
tax levy acts. In the manifest difficulty OF hearing
and deciding these applications for relief may be
found the leading motive to the creation of boards of
audit and investing them with authority to hear and
allow claims which could not be paid for want OF ade
qnate appropriations but which were, nevertheless.
1t does not follow that every advertisement which
the NEW YORK HERALD or any other official Corpora
ton paper may choose 10 publish emanating from
the Common Council, Boards Of Commissioners, or
heads OF departments, Is legally chargeable TO the
city treasury. IL must appear that what has been
published has the sanction of law II the ADVERTISE
ment, on critical investigation shall be found TO
late to u subject, not having the authority Of any
law expressly or by necessary Implication recurring
or permitting the publication, the claim pro tanto,
must be disallowed.
Guided by these principles, this Board has nves-
tgaed the items OF the account under consideration,
and the prices charged therefor. Nearly the whole
OF the claim has, In this manner been found legal,
for which action at law could be sustained, pro-
vided the unexpended appropriation for advertising
had been large enough to covert BY far the largest
portion Of the claim has accrued In the publication
OF the daily proceedings OF the Common Council and
the several boards comprising IL. 1t has been proved
before us that the whole OF this portion OF 1t has been
critically examined. and found correct by the asss
tant auditor OF accounts In the department Of
finance. by the twenty section Of the city
charter, this officer belongs to the "auditing bu-
reau," upon which bureau Is devolved the duty to
revise audit, and settle all accounts In which the
city IL concerned as debtor creditor.v
IL has been urged by the Counsel for the Corpora
ton that "the provisions OF law only authorize the
publication OF those matters upon which vote Is
had"-"that there Is no proceeding by legislative
body except by vote Of It's membersn We do not
concur In this view. Until the Legislature, or at
least the Common Council, shall prescribe and limit
the portion OF the daily transactions OF the respec-
tive Boards OF Aldermen and Councilmen which
shall constitute the proceedings for publication, 1t
will be impossible for the publishers OF newspapers