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

• Decision Date: 06 July 1979
• Citation: 419 N.Y.S.2d 339,71 A.D.2d 787
• Parties: In the Matter of URBAN LEAGUE OF ROCHESTER, NEW YORK, INC., Appellant, v. The COUNTY OF MONROE, and Lucien Morin, County Manager, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 339

419 N.Y.S.2d 339

71 A.D.2d 787

In the Matter of URBAN LEAGUE OF ROCHESTER, NEW YORK, INC., Appellant, v. The COUNTY OF MONROE, and Lucien Morin, County Manager, Respondents.

Supreme Court, Appellate Division, Fourth Department.

July 6, 1979.

Paul A. Fischer, Rochester, for appellant.

John D. Doyle, County Atty., Rochester, by Joseph T. Pilato, Rochester, for respondents.

Before CARDAMONE, J. P., and HANCOCK, SCHNEPP, DOERR and WITMER, JJ.

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 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 Civil Service Law § 15, subd. (1)(a). 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). 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 (McKinneys Cons.Laws of N.Y.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. General Construction Law (§ 93) provides that "(t)he 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, 55 N.Y.S. 125; 56 NY Jur.Statutes, §§ 97-100.)

Moreover, section 1200 of the Monroe County Charter 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.

Judgment affirmed without costs.

All concur, except DOERR, J., who dissents and votes to reverse the judgment in the following Memorandum:

I disagree. Civil Service Law, § 15, subdivision 1(a) in pertinent part provides: "A municipal civil service commission shall consist of three persons, not more than two of whom shall at any time be adherents of the same political party. The members of a county civil service commission shall be appointed by the board of supervisors, except that in a county having a county executive the members of the commission shall be appointed by the county executive with the advice and consent of the board of supervisors. . . ." Monroe County presently has a five-member Civil Service Commission, all having been appointed directly by the county manager for staggered terms.

In order to arrive at a determination of the issue presented in a coherent manner, a review of the Monroe County government is required. Chapter 948 of the Laws of 1935 authorized any county in the State of New York outside of New York City to adopt one of two forms of government therein described as Plans "A" and "B". The only county to take advantage of such statutory enactment was Monroe where the electors adopted Plan "B" effective January 1, 1936 under which the executive-administrative powers were transferred from the board of supervisors to a county manager appointed by that body. (For a brief history of the development of the optional form of Monroe County government, see Matter of Dutcher v. Hatch, 19 A.D.2d 341, 243 N.Y.S.2d 80.) In any event the county manager form of government, as codified in Article 2-a of the County Law of 1909, eventually became the Optional County Government Law, section 1006 by L.1950, c. 692 and section 1008 thereof provided that nothing therein contained should be construed to repeal or in any manner affect the provisions of the Civil Service Law (L.1950, c. 692 § 1, effective January 1, 1951).

Since no other county had taken advantage of the Optional County Government Law, it was repealed effective May 15, 1954 except insofar as it applied to Monroe County (L.1952, c. 834; Alternative County Government Law, § 701(2)).

Thereafter the City of Rochester and County of Monroe agreed to consolidate their civil service commissions and to accomplish this result Optional County Government Law, § 1008 was repealed and amended permitting a city, wholly within a county operating under the county manager form of government, to withdraw from its civil service administration and come under that of the county. Again, only Monroe County came under the aegis of this amendment. The statute also provided that if such election were made the county civil service commission membership would be increased from three to five members, all of whom to be appointed by the county manager (L.1961, c. 565, effective April 12, 1961). That merger became a realty. (See Matter of Caparco v. Kaplan, 20 A.D.2d 212, 245 N.Y.S.2d 837.)

If the Monroe County Civil Service Commission is extant pursuant to Optional County Government Law, § 1008, supra, or some other statutory enactment, the decision below must be affirmed. No enabling statute exists.

After passage of the Municipal Home Rule Law (L.1963, c. 843, amended L.1964, c. 78), the Monroe County Board of Supervisors in 1965 adopted a county charter readopting the county manager form of government which had been followed previously under the Optional County Government Law (Morin v. Foster, 45 N.Y.2d 287, 408 N.Y.S.2d 387, 380 N.E.2d 217). Chronologically such charter adoption was some five years prior to the formal consolidation of the City of Rochester and Monroe County civil service commissions. To effectuate such commission merger the Monroe County Charter, § 1200 was amended to provide: "The Monroe county civil service commission is continued for the purpose of administering civil service law for Monroe County and civil divisions therein including the city of Rochester. The five-member civil service commission as established under the optional county government law shall continue until such law is repealed, in which event 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. Except as otherwise provided in chapter eight hundred sixty-three of the laws of nineteen hundred seventy of the state of New York, nothing in this charter shall be construed to repeal or in any way affect the provisions of the civil service law of the...