I am unable to concur in the conclusion arrived at by the majority of the court for the following reasons : The board of estimate and apportionment met on the 12th of November, 1909, and assuming to act in accordance with section 92 of the Railroad Law fixed the tenth day of December following as the day when the petition of the traction company should be “ first considered and a public hearing be had thereon ” and directed the publication of notices accordingly. Had the board stopped here their proceedings would have been according to the provisions of the statute cited, but it did not because at the same meeting it heard the report of a committee previously appointed favoring the proposed modifications, and then passed a resolution approving of the same and referred the matter to the corporation, counsel for approval as to form to be reported by him at a meeting of the board to be held on the nineteenth of the same month. On the nineteenth the board again met and the corporation counsel’s approval having been received, a resolution was passed approving the proposed modified contract and authorized the mayor to execute and deliver the same on behalf of the city. Its publication was then directed to be made as'provided in section 74 of the charter and the twenty-third of December fixed as the day for the public hearing thereon.
The acts of the board thus taken did not comply with the letter or spirit of the provisions of the Railroad Law. Under that section the board was required “ before acting thereon ” to give at least fourteen days’ notice of the time and place when the petition would “first he considered.” A public hearing is impliedly required *672by the section (Secor v. Village of Pelham Manor, 6 App. Div. 236) to the end that any arid all persons interested may be heard on the subject-matter of the application before the board shall take any action whatever. The board of estimate and apportionment could not on the 12th of "November, 1909, lawfully consider the merits of the petition, approve the modification or approve a proposed modified contract. It could not do this until .thé hearing provided' for had been had. This, it seems to me, necessarily .follows from the provisions of section 92 of the Railroad Law (Laws of 1890, • chap. 565, as amd. by Laws of 1893, chap. 434) if that section be applicable. I. am of the opinion the section is applicable, and if this be correct, then it follows that ■ the acts of the board were unlawful and such unlawful acts cannot be made the basis of any valid action under section 74 of the charter (Laws of 1901, chap. 466, as amd. by Laws of 1905, chaps. 629, 630) and the publication of the proposed contract so approved would be of no effect.
But, although the board assumed to act in accordance with both sections, the order appealed from is to be reversed upon the ground that section 92 of the Railroad Law does riot- apply, since it was repealed pro tanto by section 74 of the charter and that the - action of the board is sanctioned by- that section. No óne, I take it, disputes the proposition that a general statute may tie repealed by a special one subsequently passed and inconsistent therewith, or entirely. covering the same subject-matter. But such’ repeals are not favored by the courts. • (Trust Company of America v. State Safe Deposit Co., 109 App. Div. 665; affd., 187 N. Y. 178; People ex rel. Brown v. Metz, 119 App. Div. 271; affd., 189 N. Y. 550; Matter of City of New York [Town. of Hempstead], 125 App. Div. 219; affd., 192 N. Y. 569.) If, on a reasonable construction,' the two acts are not inconsistent and may stand together, • -then the authorities are all to the effect that the general act is not repealed by the special act. (26 Am. & Eng. Ency. of Law [2d ed.], 743; Staats v. Hudson River R. R. Co., 3 Keyes, 196; People ex rel. Kingsland v. Palmer, 52 N. Y. 83; Hankins v. Mayor, 64 id. 18; Matter of Murray Hill Bank, 153 id. 199; Davis v. Supreme Lodge, Knights of Honor, 165 id. 159; Bush v. D., L. & W. R. R. Co., 166 id. 210.)
In Davis v. Supreme Lodge, Knights of Honor [supra), where *673the claim was made that a general law had been impliedly repealed by a special one, it was said“ There is no implication of a repeal of the prior law, unless the later act embraces the subject-matter of the earlier, or unless the reason for the earlier act is beyond peradventure removed. Therefore, every effort must be used to make all acts stand, and if by any reasonable construction they can be reconciled, the later act will not operate as a repeal of the earlier. * * * The leaning of the courts is so strong against repealing the positive provisions of a former statute by construction as almost to establish the doctrine of no repeal by implication! . Where there is a difference in the whole purview of two statutes, apparently relating to the same subject, the former remains in force.”
As I read these two sections, there is no inconsistency between them; on the contrary, when considered together they present a harmonious scheme for the protection of the interests of the public in the granting of franchises. Under section 92 of the Eailroad Law the board of estimate and apportionment, when an application is presented for a franchise, must hold a public hearing before action upon the application. Under section 74 of the charter before the franchise can be granted, the proposed terms of the grant must be made public and a public hearing had thereon. This section does not purport to change the requirements of the Eailroad" Law; it merely imposes a further condition.
The prevailing opinions, it seems to me, proceed on an erroneous assumption that the object of the public hearing is the same in both cases and that since the- charter provision is more specific and a later special act, it entirely supersedes the section of the Eailroad Law in question. I do not so regard it. The purpose of the hearing required by the Eailroad Law is to give the public an opportunity to be heard on the question whether or not any franchise should be granted. The hearing under the charter is required only after the board of estimate and apportionment has acted in favor of granting a franchise in some form, audits purpose is to afford the public an opportunity of approving or disapproving of the terms upon which it is proposed to grant it. When an application for a franchise is made under the charter, the board may refuse absolutely to grant it, in the first'instance, and in that case there is no pro*674vision for a public hearing. It is not difficult to imagine that the public might in one case be interested in having a franchise granted just as much as it would in another case in having it refused, and under the Railroad Law they have a fight to be heard in either case, which right does not exist under section 74 of the charter. It is obvious that if the board may pass a resolution favoring an application without a public hearing thereon, it may also deny an application in toto without a public hearing. If it is unnecessary, to hold a public hearing in the one case, it is equally so in the other.
I am of the opinion that the Legislature did. not intend, by the enactment of section 74 of the charter, to repeal' section 92 of the Railroad Law, and if this be true, then it would seem necessarily to. follow that the board was proceeding in an illegal way, and if so, the action can be maintained. (Ziegler v. Chapin, 126 N. Y. 342; Rogers v. Board of Supervisors, 77 App. Div. 501; Queens County Water Co. v. Monroe, 83 id. 105.)
The order should be affirmed.
Clarke, J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.