Urban League of Rochester, New York, Inc. v. County of Monroe

71 A.D.2d 787, 419 N.Y.S.2d 339, 1979 N.Y. App. Div. LEXIS 12999

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 6, 1979
• Status: Published

Opinions

—Judgment affirmed, without costs. Memorandum: In this CPLR article 78 proceeding petitioner seeks an order compelling respondents to change the number of members of the Monroe County Civil Service Commission from five to three and directing the appointment of a new commission. Petitioner contends that the repeal of the Optional County Government Law in 1974 operated to repeal section 1200 of the Monroe County Charter (Local Laws, 1965, No. 2 of County of Monroe, § 1200), enacted thereunder and to nullify actions taken thereunder. Thus, they argue, the five-member commission established by section 1200 and the appointments to the commission by the county manager are illegal and in violation of section 15 (subd 1, par [a]) of the Civil Service Law. We disagree. We find no repeal, express or implied, of section 1200 by the statute repealing the Optional County Government Law (L 1974, ch 28, § 1). There is no language of express repeal, and, absent such language, a statute is not deemed to repeal an earlier act unless the two are in such conflict that both cannot be given effect (McKinney’s Cons Laws of NY, Book I, Statutes, p 554). Section 1200 of the Monroe County Charter contemplates the possibility of the repeal of the Optional County Government Law and contains provisions for dealing with such an event. Clearly, both the repealing statute and section 1200 may be given effect without conflict and there is no repeal of section 1200 by implication. Nor does the repeal of the Optional County Government Law operate to abrogate the actions of the city and county in establishing a five-member commission or in appointing the members thereof. Section 93 of the General Construction Law provides that "The repeal of a statute * * * shall not affect or impair any act done * * * prior to the time such repeal takes effect, but the same may be * * * enforced * * * as fully and to the same extent as if such repeal had not been effected.” Section 93 operated to preserve the commission upon the repeal of the statute under which it had been created. (See McCrea v. Village of Champlain, 35 App Div 89; 56 NY Jur, Statutes, §§ 97-100.) Moreover, section 1200 of the Monroe County Charter (Local Laws, 1965, No. 2 of County of Monroe, § 1200 as amd by Local Laws, 1970, No. 9 of County of Monroe) provides that in the event the Optional County Government Law is repealed, "administration of the civil service law for Monroe county and civil divisions therein including the city of Rochester shall not be affected except that the county legislature is hereby empowered to terminate the terms of office of the five-member civil service commission and to appoint a three-member commission, in accordance with the civil service law of the state of New York.” Inasmuch as the Legislature has not acted the five-member commission is still in effect. All concur, except Doerr, J., who dissents and votes to reverse the judgment in the following memorandum: