Opinion 88-28


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


OFFICIAL NEWSPAPER -- Designation of (criteria for designation in towns)

LOCAL LAWS -- Official newspaper (designation by town)

GENERAL CONSTRUCTION LAW, §60; PUBLIC OFFICERS LAW, §70-a; TOWN LAW, §64(11): A publication must be a "newspaper" as defined in General Construction Law, §60 and must satisfy the conditions precedent set forth in Public Officers Law, §70-a before it can be designated an "official newspaper" of a town pursuant to Town Law, §64(11). The place of publication of a newspaper is a question of fact [1982 Opns St Comp, No. 82-307 superseded in part].

You ask whether a town is required or permitted to designate as its official newspaper or, if no such designation is made, to publish official notices in any of three newspapers which are circulated in the town by subscription and on newstands, but are not printed in the town. You describe each of the newspapers as follows:

(1) a daily newspaper with its principal office in, and which is entered as second class mail matter in the post office of a city within the county in which the town is located;

(2) a weekly newspaper with its principal office in, and which is entered as second class matter in a hamlet outside the town; and

(3) a weekly newspaper with its principal office in, and which is entered as second class matter in the post office of the town.

Town Law, §64(11) authorizes a town board to designate an "official newspaper". However, in order for a publication to be designated an official newspaper, the publication must constitute a "newspaper" as defined in General Construction Law, §60 and satisfy the conditions precedent to designation as an official newspaper set forth in Public Officers Law, §70-a.

General Construction Law (GLC), §60(a), with certain exceptions, defines the term "newspaper" as follows:

"In any case in which notice of any fact is required by law to be published or advertised in a newspaper, the term 'newspaper' shall mean a paper of general circulation which is printed and distributed ordinarily not less frequently than once a week, and has been so for at least one year immediatelypreceding such publication or advertisement, and which contains news, articles of opinion (as editorials), features, advertising, or other matter regarded as of current interest, has a paid circulation... and has been entered at United States post-office as second-class matter. A publication which is distributed or made available primarily for advertising purposes to the public generally without consideration being paid therefor shall not be deemed to be a 'newspaper' for the purpose of publication or advertisement of such notice required by law. * * * *

Further, Public Officers Law (POL), §70-a establishes two conditions precedent to the designation of a newspaper as an "official newspaper", as follows:

"* * * Every newspaper printed, published or having its principal office outside of a city having a population of over [350,000] inhabitants, as a condition precedent to designation as the official newspaper of any county, city, town, village or other political or civil subdivision of the state or for the making of claim for compensation under the foregoing provisions of this section, must be established at least one year and entered in the post office as second class matter. * * *"

Thus, in general, pursuant to GCL, §60(a) and POL, §70-a, to constitute a "newspaper" which satisfies the conditions precedent for designation as an "official newspaper" a publication must: (1) be in general circulation; (2) be established and ordinarily printed and distributed at least weekly for at least one year; (3) contain news, editorials and other matters of "current interest"; (4) have a paid circulation; and (5) be entered as second class mail matter. Any publication which does not satisfy these threshold requirements may not be designated an "official newspaper" (see, e.g., 1984 Opns St Comp, No. 84-58, p 73; 1981 Opns St Comp, No. 81-70 p 71; 1980 Opns St Comp, No. 80-307, p 93).

Town Law, §64(11) establishes a hierarchy of newspapers which may be designated the "official newspaper" of a town (cf. Town Law, §52-a, relating to the designation of an official newspaper in the Town of Greenburgh). That statute provides that a town board:

"May designate as the official newspaper of the town any newspaper regularly published in the town if such newspaper has been entered as second class mail matter. If no such newspaper is published in the town, and in any town of the second class having a population in excess of [60,000] according to the latest federal census if there is no newspaper published in such town having general circulation therein, the town board may designate any newspaper published in the county if such newspaper has general circulation in the town or if no newspaper is published in the county entered in a post office within five miles from the town, any other newspaper published in a city, town or village in an adjoining county and having a circulation in the town. If no official paper has been designated, the town board may authorize the publication of a notice, resolution or ordinance in any newspaper which could be designated as the official newspaper of the town or, if there be no newspaper which is regularly published in the town and entered as a second class mail matter, the town board may authorize such publication in any newspaper published and having general circulation in the town. Such authorization shall be deemed a designation of such newspaper as the official paper of the town for the purpose of such publication. * * *"

In interpreting this statute, this Office has previously stated that, while a town board is not required by Town Law, §64(11) to designate an official newspaper, it must follow the statutory order of selection contained in that statute if it does designate one. Therefore, if no newspaper is published in the town, the town board must consider any paper published in the county having a general circulation in the town. If there is no such newspaper published within the county which is entered in a post office within five miles from the town, then the town board may exercise a choice and designate as official newspaper either a newspaper published within the county (and having a general circulation in the town), but entered into a post office more than five miles from the town, or any newspaper published in a city, town or village in an adjoining county and having a circulation in the town (Opn St Comp, No. 80-307, supra.; 29 Opns St Comp, 1973, p 112).

As appears from the hierarchy established by Town Law, §64(11), it is necessary to determine where each newspaper is published to determine which of several newspapers meeting the threshold requirements of GCL, §60(a) and POL, §70-a may be designated as the official newspaper of a town. The rule in this State is that a newspaper is deemed "published" in the place where it is first given to the public for circulation. (Village of Tonawanda v Price, 171 NY 415, 64 NE 191; Loos v City of New York, 257 AD 219, 13 NYS2d 119, reversing 170 Misc 14, 9 NYS2d 760; In re Gainsway, 66 Misc 521, 123 NYS 966). In accordance with this rule, in Village of Tonawanda, supra, the Court of Appeals held that a newspaper was "published" in the City of North Tonawanda, the municipality in which the paper was "completely prepared for distribution," rather than the Village of Tonawanda, even though the newspaper was dated in both municipalities and mailed to subscribers in the Village from a post office in the Village. In Loos, supra, the court held that a newspaper, ultimately circulated throughout the City of New York, was "published" in the Borough of Manhattan, rather than the Borough of Queens, because the newspaper was printed and "first given to the public" in Manhattan; that is, the newspaper was mailed and shipped by truck and train from Manhattan to central distribution points with the nearest distribution point being in Manhattan. Lastly, in Gainsway, supra, the court held that a newspaper printed elsewhere was "published" in the Town of Remsen because the paper was entered as second class matter in the Town of Remsen, and mailed to a large number of subscribers in the post office at the Village of Remsen and distributed, circulated and sold first in that Village.

It is evident that the courts consider a number of factors in determining the place where a newspaper is first given to the public, including the place where the newspaper is printed, the place it is mailed, and the manner in which it is distributed. However, none of these factors, by themselves, are determinative. Thus, the place where a newspaper is first given to the public is a question of fact (see 1980 Opns St Comp, No. 80-580, unreported; 24 Opns St Comp, 1968, p 328; 10 Opns St Comp, 1954, p 75;). To the extent that 1982 Opns St Comp, No. 82-307 suggests that the place of mailing by itself is determinative of the place where a newspaper is published, that opinion is hereby superseded.

Based on the inquiry's description of each of the three "newspapers" in question, it is not clear whether any of the three newspapers has the requisite content to meet the requirement of GCL, §60(a), nor is it clear whether any of the three has been printed and distributed, and established for at least one year as required by GCL, §60(a) and POL, §70-a. Moreover, we are not in a position to determine the factual question as to the place where each of the three newspapers is "first given to the public for circulation" and, therefore, the place where each is published. Accordingly, we express no opinion as to whether any of the three newspapers in question may be designated as the official newspaper of the town or, in the absence of such designation, used to publish official notices.

June 3, 1988
Frederick H. Monroe, Esq., Town Attorney
Town of Chester