
    John E. McBride, Appellant, v. Franklin P. Ashley and Others, as Commissioners of Common Schools in the City of Utica, N. Y., Respondents.
    Fourth Department,
    July 5, 1916.
    Public schools — common schools of city of Utica — contract for repairs or erection of schoolhouses — Laws of 1848, chapter 137, section 13.
    The commissioners of common schools of the city of Utica have authority under section 13 of chapter 137 of the Laws of 1843 to contract for the repair of existing or the erection of new schoolhouses.
    Said statute has not been repealed or superseded by subsequent enactments.
    Appeal by the plaintiff, John E. McBride, from an order of the Supreme Court, made at the Oneida Special Term and entered in the office of the clerk of the county of Oneida on the 1st day of November, 1915, denying plaintiff’s motion to continue a temporary injunction pendente lite.
    
    
      William F. Dowling [Lee & Dowling, attorneys], for the appellant.
    
      August Merrill, for the respondents.
   Foote, J.:

This is a taxpayer’s action brought against defendants as commissioners of common schools of the city of Utica to restrain them from entering into contracts for installing heating and ventilating plants in two public school buildings in that city.

Plaintiff appeals from an order of the Special Term denying his motion to continue during the pendency of the action a temporary injunction enjoining any such contracts.

The ground of the appeal is that defendants are without power to contract for the repair of existing, or the erection of new, schoolhouses. The Special Term (See 91 Misc. Rep. 585) held that the commissioners have such power by virtue of section 13 of chapter 137 of the Laws of 1842, entitled “An Act in relation to common schools in the city of Utica,” and that said chapter is still in force. Plaintiff, while conceding that it has not been expressly repealed, contends that it has been superseded and, in effect, repealed by chapter 560 of the Laws of 1902, entitled “An Act to amend chapter one hundred and eighty-two of the laws of eighteen hundred and ninety-eight relative to the department of public instruction in cities of the second class. ”

The act of 1842 provides for election by the people of six commissioners, and gives them the power and makes it their duty to build and repair schoolhouses, and the act in these respects has been treated as in force down to the present time, notwithstanding the act of 1902. The latter act provides for the appointment by the mayor of three commissioners only, and puts upon the city engineer the duty of repairing schoolhouses and upon the board of contract and supply the duty of erecting new ones. It has never been treated by any of the city authorities as applicable to the city of Utica. Six commissioners have been in office by election down to the present time, and they have built and repaired the schoolhouses. The act of 1902 was an amendment to chapter 182 of the Laws of 1898. The latter act is entitled “ An act for the government of cities of the second class.” It is known as the White Charter. Article VII contains a number of sections under the heading “Department of Public Instruction,” but these were all repealed by chapter 581 of the Laws of 1899 (§ 40), leaving only section 240 to continue in force, as follows:

“ § 240. The department of public instruction shall continue as provided by law.”

The act of 1902 re-enacted these repealed sections of the act of 1898 with some changes and additions, but contained a provision in section 3 that the act should not apply to the cities of Rochester and Syracuse. These were second-class cities and at that time there were only two others, Albany and Troy; hence, at the time of its adoption the act applied only to those cities. By section 2 of article 12 of the Constitution this act, not being a general city law applicable to all cities of the second class, was a special city law, and could be made to apply only to the cities to which it was submitted for approval. It was submitted to and accepted by Albany and Troy and became applicable only to those cities. It did not purport to apply to Utica, nor did the act of 1898 which it amends, for Utica had not at that time become a second-class city. It did, however, become such by the State enumeration of 1905. Thereafter the act of 1902 could not constitutionally be made to apply to Utica except by an act submitted to that city for acceptance. Even if it could be done by a general city law, there is none which purports so to do, as will be seen by what follows.

The above-mentioned act of 1898, which was the statute then in force for the government of cities of the second class, contained the following in section 2:

“ § 2. Within thirty days after every State enumeration, the Secretary of State shall file with the clerk of every city a certificate showing the population of such city; and if it appears therefrom that such city has since the prior State enumeration become a city of the second class, then all the provisions of this act shall apply to such city on and after the first day of January thereafter.”

This would have made the act applicable to Utica on January 1,1906, but on May IT, 1905, this section was amended by chapter 501 of the Laws of- that year by adding to said section 2 the following: “but the provisions of this act shall not apply to any city that becomes a city of the second class under the enumeration to be had in the year nineteen hundred and five, until on and after the first day of January, nineteen hundred and eight,” except that the officers for such city shall be elected in the year 1907.

Thus the application of any part of the act to Utica, except as above provided, was postponed to January 1, 1908. Before that date chapter 473 of the Laws of 1906, known as the Uniform Charter of Cities of the Second Class, was adopted, entitled “ An act to provide for the government of cities of the second class.” This act by its terms took effect January 1, 1908. It entirely repealed the act of 1898, and with it would have gone the amendatory act of 1902 but for the following saving clause in the repealing section 230: “ Nothing herein contained, however, shall be deemed to repeal or in any wise affect the validity of the provisions of chapter five hundred and sixty of the laws of nineteen hundred and two [and certain other acts]; but all of such acts are hereby continued in full force and effect. ”

The act of 1906 contained nothing whatever on the subject of a department of public instruction and contained nothing inconsistent with the act of 1842 remaining in force in Utica at least as regards the election of its school commissioners and their power to build and repair schoolhouses.

The repeal of the act of 1898 left the amendatory act of 1902 to stand as a special city law applicable alone to Albany and Troy. It was no longer in form even a part of any general law_ It is not otherwise referred to than as not intended to be repealed in the general act of 1906 or in its successor, chapter 55 of the Laws of 1909 (Consol. Laws, chap. 53), the “ Second Class Cities Law,” now the governing statute.

In confirmation of our conclusion that the act of 1902 did not become applicable to any second-class city except Albany and Troy, we find the Legislature adopting special acts for the departments of public instruction in Yonkers and Schenectady by chapters 452 and 481 of the Laws of 1908, both of which became second-class cities at the same time as did Utica.

That the Legislature did not regard the act of 1842 as superseded by the act of 1902, or any other law, appears from its adoption of chapter 244 of the Laws of 1908 to provide for the sale of bonds of the city of Utica and the use of the proceeds by the commissioners of common schools “ in equipping, remodelling and repairing school buildings of the city.”

It is further contended by plaintiff that by section 120 of the Second Class Cities Law (Consol. Laws, chap. 53; Laws of 1909, chap. 55), which requires all contracts for work or material for-the use of “ any officer, board, body or department of the city,” where the expense thereof shall [[exceed the sum of $250, to be let by the board of contract and supply to the lowest bidder, the power to let schoolhouse contracts has been taken from the commissioners. The application of this section is to all such contracts “except as otherwise provided by law.” As to Utica it is otherwise provided by law as to schoolhouse contracts, as it is also in all the other cities of the second class. In some and perhaps most of them schoolhouse contracts are let by the board of contract and supply, not by virtue of said section 120, but of certain special statutes applicable to each city.

We conclude that the letting of schoolhouse contracts in Utica is in the hands of the commissioners, and that the order should be affirmed, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  