
    In the Matter of Erastus Corning, 2nd, Appellant, v. Thomas F. Donohue et al., Constituting the Board of Elections of Albany County, Respondents, and Louis J. Lefkowitz, as Attorney-General of the State of New York, et al., Intervenors-Respondents.
    Argued October 7, 1971;
    decided October 21, 1971.
    
      
      Harvey M. Lifset for appellant.
    I. Chapter 462 of the Laws of 1970 is no longer applicable after July 1, 1971. (McMaster v. Gould, 240 N. Y. 379; County of Saratoga v. Saratoga Harness Racing Assn., 4 N Y 2d 622.) II. Chapter 462 of the Laws of 1970 violates the city’s taxing and debt contracting powers as set forth in the Constitution. III. Chapter 462 of the Laws of 1970 is a local bill and therefore unconstitutional as enacted. (Matter of Cutler v. Herman, 3 N Y 2d 334.)
    
      Arthur J. Harvey and Lawrence F. Klepper for Edward Applebaum and others, intervenors-respondents.
    I. The Albany city school district notwithstanding a loss of population remains subject to the provisions of chapter 462 of the Laws of 1970 for purposes of the school board elections. II. The intent of the Legislature was to hold the school board elections in November. (Travis v. American Cities Co., 192 App. Div. 16, 233 N. Y. 510; Jaffe Plumbing & Heating Co. v. Brooklyn Union Gas Co., 51 Misc 2d 1083, 29 A D 2d 1051; Matter of Schmidt v. Wolf Contr. Co., 269 App. Div. 201, 870, 294 N. Y, 973, 295 N. Y. 748; Neddo v. State of New York, 194 Misc. 379, 275 App. Div. 492, 982, 300 N. Y. 533; People v. Purves, 55 Misc 2d 227; Matter of Klipp v. New York State Civ. Serv. Comm., 42 Misc 2d 35, 22 A D 2d 854, 15 N Y 2d 880; Oldfield v. New York & Harlem R. R. Co., 14 N. Y. 310; People ex rel. McCann v. Kilbourn, 68 N. Y. 479; Matter of McMahon v. Palmer, 102 N. Y. 176, 133 U. S. 660; Lamport v. Smedley, 155 App. Div. 516, 213 N. Y. 82.) III. Chapter 462 of the laws relating to the support and maintenance of the public schools does not violate section 17 of article III of the State Constitution prohibiting local laws. (Matter of Board of Educ. of Union Free School Dist. No. 1 of Towns of Bethlehem, Coeymans & New Scotland v. Wilson, 303 N. Y. 107; Cohen v. State of New York, 52 Misc 2d 324; Lynn v. Nichols, 122 Misc. 170, 210 App. Div. 812; Lanza v. Wagner, 11 N Y 2d 317; People ex rel. Elkind v. Rosenblum, 269 App. Div. 859, 295 N. Y. 929; Board of Educ. of City of Syracuse v. King, 280 App. Div. 458, 1033; Matter of Hirshfield v. Cook, 227 N. Y. 297; Matter of Ahern v. Elder, 130 App. Div. 900, 195 N. Y. 493; Union Free School Dist. No. 14 v. Village of Hewlett Bay Park, 279 App. Div. 618; Packer Collegiate Inst. v. University of State of N. Y., 273 App. Div. 203, 298 N. Y. 184.) IV. Petitioner’s point II ought not to be considered by the court. (Maloney v. Hearst Hotels Corp., 274 N. Y. 106; Flagg v. Nichols, 307 N. Y. 96; People ex rel. Rutland R. R. Co. v. State Tax Comm., 243 N. Y. 543; People ex rel. New York Cent. & Hudson Riv. R. R. Co. v. Public Serv. Comm., 208 N. Y. 589.) V. Chapter 462 of the Laws of 1970 does not violate the city’s taxing and debt contracting powers as set forth in the Constitution.
    
      Louis J. Lefkowitz, Attorney-General (William J. Kogan, Ruth Kessler Toch and Jean M. Coon of counsel), intervenorrespondent, pro se.
    
    I. The only provisions of the Education Law which apply to the City of Albany are contained in article 52 of that law and those continue to apply regardless of population changes. (Board of Educ. v. Rogers, 278 N. Y. 66; County of Saratoga v. Saratoga Harness Racing Assn., 4 N Y 2d 622.) II. Chapter 462 of the Laws of 1970 is not a private or local bill prohibited by section 17 of article III of the New York Constitution. (Lynn v. Nichols, 122 Misc. 170, 210 App. Div. 812; Vroman v. Fish, 181 App. Div. 502; Farrington v. Pinckney, 1 N Y 2d 74; Lanza v. Wagner, 11 N Y 2d 317, 371 U. S. 74; Cohen v. State of New York, 52 Misc 2d 324; Grimm v. County of Rensselaer, 4 N Y 2d 416; City of Rye v. Metropolitan Transp. Auth., 24 N Y 2d 627.) III. Article VIII of the New York State Constitution does not invalidate chapter 462 since its provisions are applicable to Albany as an article 52 city; furthermore, appellant should not be permitted to raise a new constitutional question upon his appeal to this court because the question was not raised in the petition or upon argument in the courts below. (Nod-Away Co. v. Carroll, 240 N. Y. 252; New York Bank Note Co. v. Hamilton Bank Note Co., 180 N. Y. 280; Matter of Hood ds Sons v. Du Mond, 297 N. Y. 209; Grimm v. County of Rensselaer, 4 N Y 2d 416; Robertson v. Zimmerman, 268 N. Y. 52; Levy v. McClellan, 196 N. Y. 178.)
    
      John J. Glyne for respondents.
   Chief Judge Fuld.

Whether chapter 462 of the Laws of 1970 —which amended article 52 of the Education Law—is applicable to the City of Albany after July 1, 1971, is the principal question posed by this appeal. We agree with the Appellate Division that it is.

Section 2550 of the Education Law, contained in article 52, declares that “ This article [article 52] shall apply to the school districts of the following cities only: New York, Buffalo, Rochester, Syracuse, Yonkers and Albany. ’ ’ Article 51, on the other hand, applies to all other school districts of cities which in 1950 —when article 51 was added to the Education Law and article 52 was amended—had a population of less than 125,000 inhabitants and to those school districts of cities incorporated thereafter. Although article 52 bears the title, “ City School Districts of Cities with One Hundred Twenty-Five Thousand Inhabitants or More ”, it is manifest, based upon the language of that article and article 51, as well as upon the intent of the Legislature explicitly declared, that two classes of cities are provided for, one class consisting of the six cities, including Albany, named in section 2550, and the other class consisting of all other cities. Quite obviously, in the light of this classification, no city other than the six named may be brought into or included within article 52 — except by specific legislation—no matter how large its population may become and, by the same token, no one of those six may be taken out of the article and moved into article 51 without express legislative provision.

Consideration of the legislative history confirms this conclusion. Prior to 1950, all city school districts were under one article of the Education Law. In that year, the Legislature decided that the districts were to be dealt with separately in two articles (L. 1950, ch. 762). By a later numbered chapter (ch. 764) dealing with article 51, the Legislature made its intent clear that section 2501, contained in article 51, was not to include any of the six designated cities. Thus, it was provided (L. 1950, ch. 762, § 22-a, as added by L. 1950, ch. 764, § 11) that “ It is the intent of the legislature * * * to codify, without change in substance or effect, the provisions of article fifty-two of the education law, as renumbered * * *, which are in force and effect on January first, nineteen hundred fifty, and relate to the city school districts of the cities of New York, Buffalo, Rochester, Syracuse, Albany and Yonkers.” And, as further appears (ch. 764, n. 17), section 22-a was added ‘ ‘ to make clear that no substantive changes in the provisions relating to the six largest city school districts are intended ”.

In short, the Legislature demonstrated that its intent was not to divide the cities on the basis of population but, rather, to separate out article 52’s six enumerated cities from the remaining cities of the State in order to accord them special treatment under the Education Law. Section 2501 does, it is true, recite that article 51 shall apply to each school district which now is, or hereafter becomes, a city school district of a city with less than one hundred twenty-five thousand inhabitants ” but it is highly unlikely that the Legislature anticipated, in 1950, that the population of any of the six cities listed in article 52 would fall below 125,000. What the Legislature undoubtedly had in mind by its wording of section 2501 was that article 51 should apply to each school district of a city which then (in 1950) had a population of less than 125,000 and to each school district of any subsequently■ incorporated city. In other words, the reference to a district which hereafter becomes ” a city with less than 125,000 envisaged and provided for the possible incorporation of new cities and the creation of new school districts.

By chapter 462 of the Laws of 1970, section 2553 of the Education Law, contained in article 52, was amended to make the Albany Board of Education elective, subject to a permissive referendum to be held at the general election in November of 1970. The referendum was held and the voters approved the elective board by a large majority. Chapter 462 also provided that the first election of the members of the board—of whom there were to be seven in number, elected on a nonpartisan basis •—was to take place at the general election in November, 1971. The terms of office of the present board, the statute further specified, “ shall expire on the thirty-first day of December, nineteen hundred seventy-one ” (subd. 9, par. q).

Chapter 492 of the Laws of 1970 became effective three days after chapter 462. It provided that, in the case of a city which had a population of 125,000 inhabitants or more by the 1960 census and less than 125,000 by the 1970 census, the school district of that city should be governed by the provisions of article 52 until July 1,1971. The appellant contends that, since Albany’s population has, according to the 1970 census, dropped below 125.000 inhabitants, article 51, not article 52, governs its school district after July 1, 1971, and that chapter 462 was thereby impliedly repealed.

This contention impresses us as highly unreasonable. Not only is repeal of a statute by implication frowned upon by the courts (see, e.g., County of Saratoga v. Saratoga Harness Racing Assn., 4 N Y 2d 622, 627; Board of Educ. v. Rogers, 278 N. Y. 66, 71) but, as already indicated, there is no doubt that the Legislature intended — as clearly reflected in section 2550 and elsewhere — that Albany be governed by the provisions of article 52, regardless of any change in its population. Indeed, it is of considerable significance that the Governor, in his message of necessity attending the bill which became chapter 492, declared that it " would provide that the City of Albany School District would continue to be subject to the provisions of Article 52 of the Education Law governing school districts of cities over 325.000 in population regardless of the population figure resulting from the 1970 census.” (Emphasis supplied.) Moreover, the Legislature had just passed the bill—which became chapter 462—making the Board of Education elective, provided that the people of Albany approved such a step by a vote at the November, 1970 general election. Had the Legislature intended to repeal chapter 462, it would undoubtedly have so declared. Stated somewhat differently, since the Legislature had already manifested its intent (by chapter 462) to make the board elective, it makes no sense for it to have passed a second law, three days later, which would delay the election without indicating that such was its design and purpose.

This brings us to the appellant’s arguments that chapter 462 is unconstitutional. As to the contention asserted below, we need but state that we agree with the Appellate Division that that enactment does not violate section 17 of article III of the State Constitution. The appellant’s other constitutional argument— not previously advanced in the lower courts — is that chapter 462 violates section 4 of article VIII of the Constitution (dealing with a city’s taxing and debt contracting powers). With respect to that point, it is enough to say that, even if we were to depart from our frequently stated rule and consider a constitutional question raised for the first time in this court (see, e.g., Schillawski v. State of New York, 9 N Y 2d 235, 240; Matter of Hood & Sons v. Du Mond, 297 N. Y. 209, 213; Cohen and Karger, Powers of the New York Court of Appeals, p. 641; cf. Matter of Glen Mohawk Milk Assn. v. Wickham, 21 N Y 2d 719), the new constitutional question which the appellant asserts is not presented, since no issue relating to Albany’s taxing and debt contracting powers is here involved.

The order of the Appellate Division should be affirmed, without costs.

Bergan, J. (dissenting).

For more than 20 years the State of New York has consistently, and without any exception, divided city school districts into two classes: one comprised of cities over 125,000 inhabitants; the other of cities of less than 125,000. The policy is laid down in article 52 of the Education Law, entitled “ City School Districts of Cities with One Hundred Twenty-Five Thousand Inhabitants or More ’ ’; and article 51, entitled City School Districts of Cities with Less than One Hundred Twenty-five Thousand Inhabitants”.

It is not disputed that the 1970 official Federal census shows the City of Albany to have a population of less than 125,000, and that in 1950 when the two classifications of city school districts was first established, and in 1970, before the last census was completed, and at the time when chapters 462 and 492 of the Laws of that year were enacted, the latest official census of 1960 continued to show Albany at above 125,000 population; and accordingly not then eligible for classification within article 51.

The regulations affecting each of the two classes of school districts differ in several respects, especially in relation to the time and manner of selection of school boards. The critical issue in this case is which article of the statute controls when a city population drops from over 125,000 to less than that number. More specifically, the question is whether a change occurs automatically on the certification of a new official census.

Article 52, dealing with school districts in cities of more than 125,000 population, specifies each city in that class by name. All of them, including Albany, at the time of enactment of the article in 1950 had over 125,000 inhabitants. But article 51, dealing with cities of less than that number, states in broad terms, and without specifying any of them by name, that it applies to ‘ each school district ” which now (1950) is, “ or hereafter becomes ”, a city school district of a city ‘ ‘ with less than one hundred and twenty-five thousand inhabitants ”. This becomes operative according to “the latest” Federal census (Education Law, § 2501).

On the face of it this must mean that a city falling by reduced population into the less than 125,000 group is thereupon governed by that article even though it had previously by name, and correctly by population, been classified and governed by an article expressly relating to cities of over 125,000. The words “ hereafter becomes ” according to “ the latest ” Federal census clearly serve that purpose.

It is suggested that the only meaning which may be attributed reasonably to the words of section 2501: ‘ ‘ each school district of a city which now [1950] is, or hereafter becomes, a city school district of a city with less than one hundred twenty-five thousand inhabitants ’ ’ is that its application is limited to districts “ then ” in 1950 in that class “ and to each school district of any subsequently incorporated city ”. The general language of the section, of course, embraces districts of subsequently created cities; but the specific expression ‘ ‘ hereafter becomes * * * less than one hundred twenty-five thousand * * * according to the latest federal census ’ ’ can have no reference to a newly incorporated city which must have been evolved from a previously existing village in which the exact latest census population of above or below 125,000 could be of no critical importance.

On the other hand it must have been intended to relate to a school district in a city of over 125,000 which after 1950 and “ according to the latest federal census ” actually “ becomes ” that size. Nor can this meaning be excluded. The statutory words clearly have that literal sense. It is not possible for a court to say with assurance that no drop in city population had been anticipated. Indeed the erosion of the core sections of older cities in a population flight to the suburbs has been observed for a long time.

It follows from this language that an automatic shift from article 52 to article 51 coverage occurs on a drop below 125,000 in official census population, since this " becomes ’ ’ the classification of the city by numbers "according to the latest federal census If there were otherwise doubt about this transition because Albany still was left by name in article 52 it would be resolved by the language of chapter 492 of the Laws of 1970 which is the only relevant statutory provision dealing with a transition due to population change. The statute suspends the effect that would be consequent on a change in population if a reduction under 125,000 be shown by the 1970 census, until July 1, 1971.

This necessarily implies that without such a suspension the transition from one classification to the other would have occurred immediately on the official certification of the ‘ ‘ latest federal census ” showing the decrease in population. The purpose of chapter 492 was to postpone such a change. The words of that statute say just that.

It expressly deals with a city which, as in the case of Albany, had 125,000 inhabitants according to the census of 1960 and which has less than 125,000 according to the census of 1970. The school district of such a city " shall continue to be * * * governed by all of the provisions of article fifty-two ” until July 1, 1971. The statute was enacted before the 1970 census was promulgated and it was intended to postpone “ until ” July 1,1971 the change which would otherwise occur if the 1970 census when completed and certified demonstrated a lower population.

The July 1 cut-off date necessarily means that after that time the district no longer ‘ ‘ continues ” to be governed by article 52; but that the broad provisions of section 2501 affecting every city district in the State which ‘ ‘ hereafter becomes ’ ’ one of a lower population class according to the latest ” Federal census are applicable.

It is true that chapter 462 of the Laws of 1970, enacted the same year, dealt expressly with the school district of the City of Albany and made many changes in statutory applicability. But all of these changes were addressed to specific sections in article 52 which relates only to cities of over 125,000 population ; and at the time of its enactment the “ latest ’ ’ official census population of Albany was over 125,000 and the amendments were then appropriate to article 52.

Thus both the original article 52 provision affecting Albany in 1950 (L. 1950, ch. 762) and the 1970 amendments made by chapter 462 were enacted at times when the “ latest ’ ’ census population was in excess of 125,000. Although some -of the provisions of chapter 462 projected forward to 1971, they must be deemed to have been contingent on a continuance of the city in the class of cities of over 125,000 inhabitants to which all the provisions of article 52 and all the 1970 amendments related.

It was suggested by appellant on the argument that chapter 492 repealed chapter 462 and the court seems right in holding there was not a repeal. The two chapters are consistent. The provisions of chapter 462 did not become inoperative at the end of 1970 because they were repealed; they became inoperative because those provisions along with other provisions of article 52 relating to the city school district of Albany were affected by promulgation of “ the latest federal census” bringing the Albany district into a statutory classification of “ every city ” of less than 125,000. And chapter 492, delaying the transition until July 1, 1971, made it manifest that the transition became effective after that date ‘ ‘ notwithstanding any contrary provision of the education law, or of any general, special or local law ’ ’.

It is significant that chapter 492 deals with classification according to Education Law article number and not by section number or specific reference to cities by name. It is addressed to school districts governed by ‘ ‘ article fifty-two ” and continues that status temporarily. That the function of this 1970 statute is to suspend the declassification from article 52 for a short time is thus indisputable. This is what the statute says in plain terms. And the resulting transition into article 51 coverage of all districts of cities of less than 125,000 after July 1 is logically inescapable.

Therefore it seems to follow that the school district of the City of Albany, now less than 125,000 population, is governed by the provisions of article 51 in the same manner as all other school districts in cities of that population class.

The immediate controversy involves the time of the election of the school board. If chapter 462 continues to apply the school board election becomes part of a general election. Albany would thus be the only city in the State of less than 125,000 where the school board election is part of a general election.

If there is one certain thing about over-all State education policy, it is that school board elections should be kept apart from general political contests. Not only all of the city districts of less than 125,000 have separate school board elections in May (Education Law, § 2502 read with § 2602) but this is the universal rule as to the numerous rural school district elections generally (§ 2002).

It is to be noted also that election of members of the newly created Community School Districts in the City of New York are thus separated from the general election by being held in May (Education Law, § 2590-b).

If the usual party nominations are not permitted in school board elections the joinder of the school election with the general political party contests at the same time and on the same voting machines creates problems of special difficulty for nonpartisan school board elections. A different construction of the Education Law by this court would avoid that difficulty.

The order of the Appellate Division should be reversed and the judgment of Special Term reinstated.

Judges Burke, Breitel, Jasen and Gibson concur with Chief Judge Fuld; Judge Bergan dissents and votes to reverse in a separate opinion in which Judge Scileppi concurs.

Order affirmed. 
      
      . As the Appellate Division put it (37 A D 2d 213, 216), “ [a]rticle 52 specifically enumerates and limits its application to six cities only, including Albany. We are of the opinion that a decrease in population to under 125,000 did not ipso facto remove Albany from the regulating scope of article 52. Implementing legislation will be required to accomplish this result.”
     