bonded debt limit of the city, the court will not grant the motion of the N. Y. Board of Rapid Transit Railroad Commissioners for a confirmation of a report favorable to the construction of such railway.Matter of Rapid Transit Railroad Comrs., 5 App. Div. (N. Y.) 290, 39 N. Y. Supp. 750. [4] Local officers. The members of the Board of Rapid Transit Railroad Commissioners are local or city officers.- Sun Publishing Assn. v. Mayor, 8 App. Div. (N. Y.) 230, 40 N. Y. Supp. 607; affd. 152 N. Y. 257, 46 N. E. 499. [5] "City purposes." See also, ante, § 14, note [2]. Construction, management and control of rapid transit railways by the municipality is a "city purpose."- Sun Publishing Assn. v. Mayor, 152 N. Y. 257, 46 N. E. 499, 37 L. R. A. 788, affg. s. c. 8 App. Div. (N. Y.) 230, 40 N. Y. Supp. 607. [6] Distribution of powers of local government. Power of state to resume and transfer powers previously conferred on local officers,- see ante, § 5, note [5]. In distributing the powers of local government, the legislature may act as it may deem best. What it could have done originally, it could do by subsequent enactment.-People ex rel. Taylor v. Dunlap, 66 N. Y. 162; Matter of Allison v. Welde, 172 N. Y. 421, 65 N. E. 263. [7] Abolishment of offices. The legislature may abolish a city office as unnecessary unless it is a constitutional office; and even if some of the functions of the office are necessary for the welfare of the municipality, these functions may be devolved upon other city officers.- Matter of Allison v. Welde, 172 N. Y. 421, 65 N. E. 263. There is no vested right in an office which may not be disturbed by legislative enactment.- People ex rel. Ryan v. Green, 58 N. Y. 295. The legislative body creating an office may abolish it, ending the tenure of the existing incumbent before the expiration of the time for which he was appointed.- City Council v. Sweeney, 44 Ga. 463. [8] Rights granted by subway lease. The lease by The City of New York of the subway does not give the right to the lessee to use the ducts, which were constructed in connection with said subway, for the transmission of electricity for the use of third parties.- City of N. Y. v. Interborough R. T. Co., 55 Misc. (N. Y.) 138, 106 N. Y. Supp. 296. The lease of the New York Subway to J. B. McDonald carried with it the right to maintain automatic weighing and vending machines in the subway stations so long as such machines in no way interfere with the use by the public of the railroad or deprive the public of any right to which it is entitled.- City of New York v. Interborough R. T. Co., 53 Misc. (N. Y.) 126, 104 N. Y. Supp. 157. [9] Railroads organized under Act of 1875. A railroad corporation formed under the N. Y. Rapid Transit Act, of 1875, acquires by the act of incorporation and upon obtaining the necessary consents of the public authorities and the property-holders, an indefeasible right to construct its road upon the routes designated in its articles of incorporation.- Suburban R. Co. v. Mayor, 128 N. Y. 510, 28 N. E. 525. Street surface railways cannot be organized under the N. Y. Rapid Transit Act of 1875.- New York Cable Co. v. Mayor, 104 N. Y. 1, 10 N. E. 332. § 84. Transfer of records; *[retaining of employees].-1. The board of railroad commissioners, the commission of gas and electricity, and the inspector of gas meters, shall transfer and deliver to the public service commission of the second district all books, maps, papers and records of whatever description, now in their possession; and upon taking effect of this act, the said commission is authorized to take possession of all such books, maps, papers and records. 2. The board of rapid transit railroad commissioners shall transfer and deliver to the public service commission of the first district all contracts, books, maps, plans, papers and records of whatever description, now in their possession; and upon taking effect of this act, the said commission is authorized to take possession of all such contracts, books, maps, plans, papers and records. The said commission may also, at its pleasure, retain in its employment any person or persons now employed by the said board of rapid transit railroad commissioners, and all said persons shall be eligible for transfer and appointment to positions under the public service commission of the first district. Proceedings by which a public officer may obtain possession of books and papers belonging to his office,- see N. Y. Code Civ. Pro., § 2471a. *Words in brackets not a part of section heading as enacted.-Ed. General power of Commission to employ subordinate officers,— see ante, § 8. General rules of statutory construction,- see ante, § 1, notes [23]-[40]. A certificate of appointment to a public office does not establish a prima facie right to the books and papers pertaining thereto.- Matter of Brenner, 170 N. Y. 185, 63 N. E. 133. "Subdivision 2 of section 84 [of the Public Service Commissions Law] provides that the Commission may retain in its employment any person or persons now employed by the Board of Rapid Transit Railroad Commissioners and all said persons shall be eligible for transfer and appointment to positions under the Public Service Commission of the First District. As to the future employees of the Commission, they are under the jurisdiction of the State Civil Service Commission and an application should be made to that body for authority to make appointments." - Opinion of Corporation Counsel F. K. Pendleton, rendered to Comptroller H. A. Metz, July 13, 1907. "Subdivision 2 of section 84 [of the Public Service Commissions Law] provides that all contracts of the Board of Rapid Transit Railroad Commissioners shall be transferred and delivered to the new Commission. I am of the opinion that this is broad enough to include the lease of the premises occupied by the Board."- Opinion of Corporation Counsel F. K. Pendleton, rendered to Comptroller H. A. Metz, July 13, 1907. § 85. Pending actions and proceedings. This act shall not affect pending actions or proceedings, civil or criminal, brought by or against the board of railroad commissioners or the commission of gas and electricity, or the board of rapid transit railroad commissioners, but the same may be prosecuted or defended in the name of the public service commission, provided the subjectmatter thereof is within the statutory jurisdiction of such commission. Any investigation, examination or proceeding undertaken, commenced or instituted by the said boards or commission or either of them prior to the taking effect of this act may be conducted and continued to a final determination by the proper public service commission in the same manner under the same terms and conditions, and with the same effect as though such boards or commission had not been abolished. General rules of statutory construction,- see ante, § 1, notes [23][40]. § 86. Construction; *[this act shall not be deemed to apply to interstate commerce].- Wherever the terms board of railroad commissioners, or commission of gas and electricity or inspector of gas meters or board of rapid transit railroad commissioners occur in any law, contract or document or whenever in any law, contract or document reference is made to such boards, commission or inspector, such terms or references shall be deemed to refer to and include the public service commissions as established by this act, so far as such law, contract or document pertains to matters which are within the jurisdiction of the said public service commissions. Nothing in this act contained shall be deemed to apply to or operate upon interstate or foreign commerce. General rules of statutory construction,— see ante § 1, notes [23][40]. § 87. Repeal. The following acts and parts of acts, together with all other acts amendatory of such acts, and all acts and parts of acts otherwise in conflict with this act, are hereby repealed; Laws of 1905, chapter 737. Laws of 1905, chapter 728. Laws of 1904, chapter 158. Laws of 1894, chapter 452. Laws of 1892, chapter 534. Laws of 1891, chapter 4, sections 1, 2 and 3. Laws of 1890, chapter 565, sections 150 to 172 inclusive. Provisions of N. Y. Statutory Construction Law relative to effect of subsequent re-enaction,- see N. Y. Statutory Construction Law, § 32. General rules of statutory construction,- see ante, § 1, notes [23][40]. Repeal by implication,- see also, ante, § 1, note [38]. *Words in brackets not a part of section heading as enacted.-Ed. While repeals by implication are not favored, a statute will be construed as taking away a right existing prior thereto if it is found that such pre-existing right is so repugnant to the statute that the survival of such a right would in effect deprive the subsequent statute of its efficacy.- Texas & P. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 Sup. Ct. R. (U. S.) 350, revg. s. c. 12 Tex. Ct. R. 498, 85 S. W. 1052. A statute covering the whole subject matter of a former one, adding offenses, varying the procedure, etc., operates not cumulatively but by way of substitution, and therefore impliedly repeals it. In the absence of any repealing clause, however, it is necessary to the implication of a repeal that the objects of the two statutes are the same. If they are not, both statutes will stand, though they refer to the same subject.U. S. v. Claflin, 97 U. S. 546, affg. s. c. Fed. Cases No. 14,799. To establish a supersession or repeal of a statute by implication, it is not sufficient to show merely that a later statute, making no mention of the particular subject of the first, employs language broad enough to cover some part or all of it for, as words are sometimes employed with less than their largest literal meaning, it must also appear that the two statutes cannot stand together, reasonable purpose and operation being accorded to each. Particularly is this true if the first expresses a settled policy in legislation.- Great Northern R. Co. v. U. S., 155 Fed. 945. The repealing clause in the Hepburn Act, "all laws and parts of laws in conflict with the provisions of this act are hereby repealed," expresses the extent to which it has been intended to repeal prior laws, and excludes any implication of a more extended repeal.- Great Northern R. Co. v. U. S., 155 Fed. 945. Where two statutes relate to the same subject matter, though not in terms repugnant and inconsistent, if the latter one is plainly intended to prescribe the only rule that shall govern, it will repeal the earlier one.Matter of N. Y. Institution, 121 N. Y. 234, 24 N. E. 578. Where a revising statute covers the whole subject matter of antecedent statutes, the revising statute virtually repeals the former enactments without any express provision to that effect, and even where some parts of the revised statute are omitted in the new law, they are not in general to be regarded as left in operation, but are considered as annulled, if it appear that the legislature intended to cover the whole subject matter by the new statute.- Matter of N. Y. Institution, 121 N. Y. 234, 24 N. E. 578, Heckman v. Pinckney, 81 N. Y. 211. Where two statutes relate to the same subject matter, though not in terms repugnant and inconsistent, if the latter one is plainly intended to prescribe the only rules that shall govern, it will repeal the earlier one.- Matter of N. Y. Institution, 121 N. Y. 234, 24 N. E. 378. |