The sun. [volume] (New York [N.Y.]) 1833-1916, 1906-11-06
HEARST NOT DEMOCRACY TEST
APPELLATE DIVISION REyERSES
ADVERTISING ORDER.
Justice Houshsen says the Best Way 70
Advocate n Party's Principles May
Sometimes ne 20 Oppose IT'S Candidates
Case Not Properly Presented nj First.

tons should rave designated papers a
vocating the principles of the Democratic
party " papers eligible for h publica-
ton on the Democratic side OF election
advertising notices, and not necessarily
papers which support the candidates OF the
party.
The opinions arose out of the dispute
over the election advertising notices, JUS
tice Greenbaum ordered the board to- So
lect as Democratic papers only such papers
as were supporting the candidacy OF Hearst,
and t~hereupon the board r~econvened and
rescinded It's previous order naming The
SUN, World, Times and Stdats-Z eitung
"a the official Democratic papers, and or
dered the notices to be published In the
American, the M0rgen Journal, the Daily
NeVs and the Morning Telegraph. Both
sets OF papers have been publishing the
notices ever since.
The BOARD OF Elections appealed from
justice Greenbaum's. order. though it had
obeyed it. The Appellate Division dis
missed III appeal on the ground that as a
new order had been made there remained
nothing for the court to pass upon. The
Court Of Appeals remanded the case back
to the Appellate Division with instructions
to decide the case on its merits. On his
remand the case came up again before the
Appellate Division, and because Of the
resignation OF Presiding Justice O'Brien
it was decided late yesterday, along with a
big batch OF other cases pending.
Justice Laughlin writes the main opinion.
with Justice Patterson concurring. Justice
Laughlin says in part:
Il agree with Mr.. Justice %Ingraham that
il a newspaper is supporting the principle
of a party il is eligible to designation, even
though 1t be not supporting the candidates;
but in selecting the newspapers great
weight should De given to the fact that q
newspaper is supporting both principles
and candidates., because the electors su p
I porting candidates should be able to Rnd
the election notices in newspapers support
ing their candidates. was OF the opinion,
| therefore, and, but for the opinion OF the
Court Of Appeals, II would seem, that IL the
newspapers origin ally designated can show
that they were and are supporting the prin-
ciples OF the Democratic party they were
| eligible with the propriety OF their selec-
| ton the court has ne right to interfere)
and they obtained vested rights Of which
they have not @ and could not be de
| prived without their consent, or being
parties to "a litigationinvolving the question
| and failiYee to snow the fact upon which their
rights depend, and that they are proceeding
within their rights in continuing the publ
cations and will be entitled to recover
therefor.
1T would, however. be destructive Of
rules and principles essential to the due
administration OF Justice for this Court to
reverse what appears To be, upon the facts
presented, a valid order upon suggestions
de hors the record that the board may be
able to show what il did not show when II
should have done so, that the newspaper
originally designated were eligible. II
having been duly shown TO the Court on
notice 10 the board that no legal designation
| had been made, | think the Court acquired
jurisdiction. notwithstanding the prayer
for an order requiring cnat a particular
newspaper be designated to command the
board to perform the duty devol wing upon
Justice Iauvhlin refers in this last SEN
teuce to the fact that the Court was orig
inally asked to require the board to desig-
! nate the NeUs a. an official paper, and,
| though refusing that request, Justice Green
baum took the whole matter into con-
sideration and mad a general order. The
opinion says further:
IF fhe board had denied Che facts al
legged. showing that the designations made
by them were illegal, and had shown that
they had ascertained and determined that
the papers designated by them were sup
porting the principles OF the Democratic
party, then the proceedings should have
been dismissed, as their action could only
| have been reviewed by certiorari, But since
7 il appeared aud remained undenied that
| they had not performed their statutory
duty. the presumption of performance of
duty 10 which public Officers are entitled
was overcome, and the Court was authorized
to issue the writ to compel performance OF
the statutory duty.
~Of course, II the papers originally desig-
mated are IN fact eligible, they may be again
| designated p~ersuant TO the writ to be issued
The order as made. however. is wrong.
1t limits the hoard to designating papers
supporting the candidates, and does not
require the designation of papers support
ing the principles Of the Democratic party;
which is the only direction that " should
have contained.
The order, therefore, should be reversed
and the motion granted directing a manda-
mus to issue requirlng the defendants
Board Of Electionsl to publish the notices
remired by the election law in four daily
published in the Borough Of
Manhattan which advocate the principles
| OF the Democratic party, with $50 costs and
disbursements to the defendants against
the relator Quinn
Justice Houghton. IN another Concurring
+ opinion, has this to say:
IT think the meaning Of the statute is
that the newspapers selected by the Board
of Elections snail he designated to publish
tho election notices continuously Tor the
ueriod and at the times provided by the
Election law, n that the board has no
right to designate one set Of papers to
publish one day and one set another or TO
| change the designation AFTER 1t shall have
been legally made.
Il also think hat the support OF a can
didate at the head or In the body of a ticket
is not the true test as TO whether a news
paper advocates the principles of a party.
Lack Of support, and even antagonism, IA
at times be the best means OF preserN ing
the party and perpet uatirg its principles.
On the moving papers,. however, which l
think were sufficient to give the court below
Jurisdiction TO make a general order, IL is
shown without any contradiction, because
no opposing affidav its were pre- sented, that
the nc spap originally designated did
not, when designated, advocate the prin-
ciples Of the Democratic party. Very
lkel y it could have been established that
this was not proved, but there al no at
tempt 10 do so by any legal proof. This
court is bound by the record before it and
upon such record il appear that the original
designation was illegal because the ne VS.
papers designated were. adv coating the
principles Of the Republican party instead
Of the Democratic party.
"For these reasons l concur in the con-
clusion reached by Mr.. Justice LaughIin."
The result OF h courts decision Is that
il remains for the Board Of Elections to
determine now which Of the eight papers
successfully designated are really support
ing the principles Of the Democratic party