Opinion 94 - 9


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 (publication not registered as second-class matter but designated as official newspaper prior to 1940)

PUBLIC OFFICERS LAW, 70-a; GENERAL CONSTRUCTION LAW, 60(a): A publication which was designated as an official newspaper of a village from prior to 1940 through 1970, and which would otherwise qualify as a newspaper under General Construction Law, 60-a except that it is not registered as second-class matter, may be designated by a county as one of its official newspapers and may submit claims for compensation pursuant to Public Officers Law, 70-a.


You ask whether the amendments to General Construction Law, 60(a) and Public Officers Law, 70-a made by chapter 725 of the Laws of 1975 permit a county to designate as one of its official newspapers a publication which is not registered as second class matter, if the publication was designated as the official newspaper of a village from prior to 1940 through 1970.

County Law, 214(2) provides, in pertinent part, that the board of supervisors of a county shall annually designate at least two newspapers published within the county as official newspapers for the publication of all local laws, notices and other matters required by law to be published. Although section 214 does not define the word "newspaper", the word is defined in General Construction Law, 60(a). Further, Public Officers Law, 70-a sets forth certain conditions precedent to a newspaper making a claim for compensation for the publication of concurrent resolutions, proposed constitutional amendments, questions to be submitted to voters of the state, official notices of state agencies and official notices of political subdivisions.

In general, to meet the requirements of General Construction Law, 60(a) and Public Officers Law, 70-a, 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. Thus, as a general rule, a publication may not be designated as an official newspaper or make a claim for payment of compensation for publication of local government official notices unless, among other things, it is entered as second-class mail matter.

Chapter 725 of the Laws of 1975, however, added to both General Construction Law, 60(a) and Public Officers Law, 70-a exceptions to the second-class matter requirement for certain publications which were designated as official newspapers prior to 1940 (see also L 1975, ch724). General Construction Law, 60(a) was amended to add the following provision:

Notwithstanding any provision of this subdivision to the contrary, a publication which was designated and publishing notice as an official newspaper prior to the year nineteen hundred forty and continued to be so designated and publishing for at least thirty years after such year shall be deemed to be a newspaper within the meaning of this subdivision.

Public Officers Law, 70-a was amended by the addition of the following language:

Notwithstanding any provision of this section to the contrary, any publication which was designated and publishing notice as an official newspaper prior to the year nineteen hundred forty and continued to be so designated and publishing for at least thirty years after such year, which has been designated for the publication of concurrent resolutions, proposed constitutional amendments, propositions or questions to be submitted to the voters of the state, may make claim for compensation pursuant to the provisions of this section. [Emphasis added]

The legislative history of chapter 725 of the Laws of 1975 indicates that its immediate purpose was to permit a particular newspaper which was widely read and circulated within the Town of Tonawanda, but which did not have a second class mailing permit, to be re-designated as the official newspaper within that Town (see Sponsor's Memorandum in Support of S. 6222 of 1975; Memorandum to the Governor by the Department of State, July 22,1975). The language of the amendment, however, is stated in general terms and, on its face, clearly applies to any publication which was designated and publishing notice as an official newspaper prior to 1940 and through at least 1970. In this regard, we note that memoranda contained in the bill jacket for chapter 725 indicate that it was understood at the time the bill was enacted that it had general application beyond the Town of Tonawanda (see, e.g., Memorandum to the Governor by the Department of Insurance, July 15, 1975; Memorandum to the Governor, by the Department of State, July 22, 1975; Memorandum to the Governor, by the New York State Publishers Association, July 18, 1975; Memorandum to the Governor, by the County Officers Association, July 3, 1975; Memorandum to the Governor, by the Town of Tonawanda, July 14, 1975).

Further, there is no language in the amendment restricting the exception only to a publication which was previously designated as the official newspaper in the designating municipality. Accordingly, based on the express terms of General Construction Law, 60-a, as amended by chapter 725 of the Laws of 1975, it is our opinion that a publication which was designated as an official newspaper of a village from prior to 1940 through 1970, and which would otherwise qualify as a newspaper under General Construction Law, 60-a except that it is not registered as second-class matter, may be designated by a county as one of its official newspapers.

As to whether such a newspaper may submit a claim for compensation pursuant to Public Officers Law, 70-a, we note that the wording of the 1975 amendment to that section differs from that of the amendment to General Construction Law, 60(a). The amendment to section 70-a, if read literally, would allow a newspaper falling within the exception to submit a claim only if it has been designated for publication of concurrent resolutions, proposed constitutional amendments, propositions or questions to be submitted to the voters of the State. If applied in this manner, the 1975 amendment would lead to an anomalous result. A municipality would be authorized to designate as its official newspaper a publication falling within the exception under General Construction Law, 60-a, but would not be permitted to compensate the newspaper, even though the newspaper could be compensated for publication of the specified State notices. Clearly, such a result was not intended by chapter 725 (see, e.g., Memorandum to the Governor, by the Conference of Mayors, July 30, 1975 and Memorandum to the Governor, by the Town of Tonawanda, July 14, 1975, referencing the cost of publication in official newspapers).

It is a general rule of statutory construction that when confronted with inconsistent provisions, a statute must be viewed as a whole and, in consideration of its scheme, history and purpose, harmonized to carry out its legislative intent, even to the extent, if necessary, of disregarding specific provisions which are inconsistent with the dominant apparent intent (McKinney's Statutes, 98[b]; Matter of Luis R., 98 Misc 2d 994, 414 NYS2d 997; Sacharoff v Murphy, 182 Misc 235, 44 NYS2d 117 affd 268 App Div 765, 50 NYS2d 168 revd on other grnds 294 NY 305 cert den 66 S Ct 60, 326 US 744, 90 L Ed 445). In this instance, an apparent intent of chapter 725 was to allow municipalities to designate publications meeting the exception in General Construction Law, 60-a as official newspapers and to pay such publications for their services. Therefore, it is our opinion that a publication falling within the exception and designated as a county official newspaper may also submit claims for compensation pursuant to Public Officers Law, 70-a.

August 2, 1994
S. John Campanie, Esq., County Attorney
County of Madison