The sun. [volume] (New York [N.Y.]) 1833-1916, 1906-10-27
ELECTION ADJ ERTISING CASE.
Court Of Appeals Decides That the Lower
Court Erred In Diminishing the Appeal.

ALBANY, Oct. 2e.-The Court Of Appeals
reversed the Appellate Division to-day in
the litigation growing out Of the Election
Boards redesignation, under mandamus,
of Democratic papers other than Hearst
papers to publish election notices in New
York.
The Corporation ounse appealed from
tho order granting he mandamus. The
Appellate Division dismissed the appeal,
but permitted the proceedings to be carried
to the Court Of Appeals, where it was argued
Yesterday.
The Court of Appeals to-day decided that
the Appellate Division erred in dismissing
the appeal. Reversing the decision Of the
Appellate Division, IL RENTS the proceeding
back 10 the Appellate Division for action
upon the merits. The decision OF the court
says:
Two questions are certii' 4 TO MS as follows:
l. Was il error TO dismiss an appeal to the
Appellate Division from a final order granting
a peremptory mandamus where the Defend
ants have obeyed the writ by completely per-
forming the acts which they were commanded
to perform?
,. If it was error to dismiss such appeal
was the mandamus properly granted upon
the papers presented TO the special term?
We decline to consider the second question,
as the merits OF this controversy are not
before tts.
We are of opinion that il was error on rhe
part Of the Appellate Division to dismiss the
appeal from the final order granting a writ
of persmptOry mandamus, even though the
defendants had obeyed the writ in part by
performing some of the acts which they were
commanded 10 perform.
We do not answer the first question as
framed. where it states that the defendants
have obeyPd the writ by completely perform
Ing the acts, &c, as the duty empowered
upon the Board of Elections under the statute
is continuous and will not be completed until
election day, for the board is required TO
cause 10 be published notices OF the election
on various days, some Of which are still future.
Il is a well recognized principle that n party
affected by an order commanding him TO do
an act retains the right to appeal thnreirom
50 long as IN the future the effect OF the order
may be to constrain his action.
The decision Of the Court Of Appeals
throws the election advertising dispute into
a greater tangle than ever, as the Appellate
Division will not be in session next week 10
take M the matter again. unless it consents
10 hold a special session. Meanw lille the
election notices have to be printed for three
days more before election day and the
papers Interested are in a judicial duandary,
ne UTrI move OF Nlc DDdIh Ol EIcNNlOhH
was to designate The SUN, the World, the
Tunes and the Stddts- Zetunq as the official
Democratic papers for the purpose Of cleo
ton advertising. Then Justice Greenbaum
mandamused them to and desig-
nate only such papers "a are supporting
Mr.. Hearst, the Democratic nominee. The
board did so, and rescinded it former desig-
nation. The new. papers named were the
American. the NorGen journal, the Daily
Neus and the Morning TeIe0r1Th. An appeal
war taken and both sets Of papers kept on
printing the notices, the first named ignor-
ing the new order.
On the appeal the Appellate Division held
that as the hoard had already obeyed the
order of Justice Greenbaum there was
nothing left for the court to determine.
The order of the Court Of Appeals handed
down yesterday seems to he a fiat rebuke
to this contention of the Appellate Division,
which will now have to reconsider the,
whole question on its merits and determine
whether the test Of Democracy in a New
York newspaper to-day is its attitude toward
Hearst as the Democratic party. or whether
the test is not really its attitude toward The
principles of the Democratic party, without
regard to candidates. Whichever way the
decision goes there will be one set Of papers
wondering where the money is coming from
for the advertising done by order of the
board