Ball v. State

Herlihy, J. (concurring).

I agree with the conclusion of the majority that the direct legislative action necessary to abolish the claimant’s position is not established by the facts and circumstances of this case. I do not agree, however, with the assertion that a repeal by implication of article 19-B of the Executive Law would not also abolish the claimant’s position and preclude his right to recover unpaid salary. The sole right of claimant to his salary would be his appointment for a five-*51year term and the repeal of article 19-B would necessarily shorten his term to the time already served by direct action of the Legislature. For the following reasons, I have concluded that the legislative action involved in this case did not repeal section 433 of the Executive Law.

The general rule as to repeal by implication is that "Repeals of earlier statutes by implication are not favored and a statute is not deemed repealed by a later one unless the two are in such conflict that both cannot be given effect.” (McKinney’s Cons Laws of NY, Book 1, Statutes, § 391; Matter of Corning v Donohue, 29 NY2d 209, 215.) "The absence of an express provision in a later statute, for repeal of an earlier one, gives rise to a presumption that repeal was not intended [citation omitted]. If by any fair construction, both statutes can be given operation, implied repeal will not be declared * * * a more general statute * * * will not repeal a more specific one * * * unless there be patent inconsistency and the two cannot stand together, so that the Legislature is clearly shown to have intended such a result [citations omitted]”. (Cimo v State of New York, 306 NY 143, 148-149; see, also, People v Mann, 31 NY2d 253, 258.)

"[T]he primary and fundamental question to be resolved is what did the Legislature intend.” (People v Mann, supra, p 257.)

Upon its face the budget bill does not purport to repeal any of the provisions of article 19-B. The appropriation for "personal service—regular” for the State Racing and Wagering Board was a lump sum in 1975 and the appropriation for the Department of State was in the same form. Pursuant to the provisions of article VII of the Constitution it appears that in connection with the budget bill, the Legislature could have repealed article 19-B or specifically abolished any personnel provisions therein as being related to the appropriation requested and granted. Unlike other legislation, the budget bill for the Executive Department becomes law immediately upon its passage by the Legislature and without approval by the Governor. In connection with the budget, the Governor did submit specific legislation abolishing the Bingo Commission and transferring its powers to the Racing and Wagering Board as well as repealing sections 433 and 439-b of the Executive Law. The Legislature did not pass that legislation.

The joint report of the finance committees recites that the proposed transfer of 14 Bingo Investigator positions is denied *52and/or abolished and a new position "Director of Division of Bingo” was approved. The report said his duties were to "design and clarify the State’s regulatory activities related to Bingo Control and Local Enforcement responsibilities”. (Report of Sen. Finance Committee and Assembly Ways and Means Committee on Proposed Budget Reductions, 1975, p 85.) The report, however, does not recite that the Bingo Commission was to be abolished or that any particular Bingo Commission powers were to be transferred to the Racing and Wagering Board. The report states (p ii) "In reading the narrative, it should be noted that all agency programs may not be listed.”

The legislative action in the present case does not establish any clear intent on its part to abolish the Bingo Commission. Section 433 is a special of specific statute and the budget bill is a general statute. It is entirely possible to transfer certain functions to the Racing and Wagering Board without abolishing the commission. Indeed, the new Director of Division of Bingo in the Racing and Wagering Board was merely directed to design and clarify regulatory activities by the joint report. This could be a service to the Bingo Commission even though he is placed in the Racing and Wagering Board. Section 434 of the Executive Law provides for assistance to the Bingo Commission from other agencies or departments.

The conclusion that the Legislature had no specific intent to abolish the Bingo Commission and in particular the claimant’s position as fixed in section 433 of the Executive Law has further support by later action of the same Legislature. In August of 1975 chapter 667 of the Laws of 1975 was approved and became law, retroactive to April 1, 1975, and section 16 thereof repealed subdivision (e) of section 169 of the Executive Law and relettered the subdivision which recites the title of "chairman of state bingo control commission” without striking that title from the statute. By implication, the legislative intent as expressed in August of 1975 and retroactive to April 1, 1975 was that the claimant’s position was not abolished.

The specific legislation introduced in the Legislature did not pass in the Senate and, therefore, did not become law. On the record it is impossible to conclude that the passage of the budget bill, by implication, abolished the claimant’s position.

The judgment appealed from should be affirmed.