Ball v. State

In this case we must decide whether claimant, Chairman of the State Bingo Control Commission, is entitled to his salary for that office from April 1, 1975 to September 2, 1975. More precisely, the determinative issue is whether the Legislature in enacting the 1975-1976 budget (L 1975, ch 50) abolished both the State Bingo Control Commission and claimant’s office either by direct action or by implication in failing to expressly appropriate funds for the commission or for claimant’s salary. Both the Court of Claims and the Appellate Division have held that the Legislature had not taken the necessary action to abolish claimant’s statutorily created position. We agree with the determination of the courts below.

Bingo had been legalized in New York State by a 1957 amendment to the New York State Constitution (see NY Const, art I, § 9, subd 2). The State Bingo Control Commission was created in 1962 to rigidly regulate the game of bingo in the State and prevent the infiltration of criminal and other undesirable elements into the game (see Executive Law, art 19-B, §§ 430-439-b; General Municipal Law, art 14-H, §§ 475-499; Report to Governor Rockefeller of Moreland Act Commission [March 1, 1962]). Claimant has been the chairman of the commission since its creation. In June, 1974, he was reappointed to this position for a third five-year term to expire in 1979, and his appointment was confirmed by the Senate. In his 1975-1976 executive budget, the Governor recommended the abolition of the Bingo Control Commission, and budget bill S 3492/A 4509 was introduced to effect that recommendation and transfer the functions of the commission to the State Wagering and Racing Board. The bill was passed by the Assembly but failed to win approval in the Senate and, thus, never became law. The 1975-1976 budget, formally known as "State Purposes Appropriation Bill” (L 1975, ch 50), was passed by the Legislature on March 26, 1975 and signed by the Governor on April 7, 1975. The budget contained no provision relating to the abolition of the Bingo Control Commission or the transfer of its functions to the Racing and Wagering Board. Although no funds were specifically appropriated for the commission or for claimant’s salary, the budget contained a lump-sum appropriation for $399,200 under the title "Regulation of Wagering” earmarked for "Personal service—regular” (L 1975, ch 50, p 240). A portion of these funds was presumably intended for the regulation of bingo activities

It is axiomatic that the Legislature may abolish or shorten the term of positions which it has created (see, e.g., Lanza v Wagner, 11 NY2d 317 , 324; Nichols v MacLean, 101 NY 526 , 533; Matter of Friedman v D'Antoni, 50 AD2d 9 , 10-11, affd 41 NY2d 1004 ). Thus, in the early case of Nichols v MacLean (supra, p 533 ), it was held that "[t]he legislature may abolish an office during the term of an incumbent, or diminish the salary, or change the mode of compensation, subject only to constitutional restrictions.” It is clear in this case that the Legislature took no express action to abolish the Bingo Control Commission or the office of chairman of that agency. Thus, the issue presented is essentially one of legislative action and intent; may it be inferred from the enactment of the 1975-1976 budget without explicit appropriation of funds for claimant’s salary that the Legislature expressly or impliedly repealed the office of Chairman of the Bingo Control Commission?

Article 19-B of the Executive Law creates the Bingo Control Commission and specifies its purpose and function. Subdivision 1 of section 433 of the Executive Law establishes the position of chairman of the commission, and subdivision 5 thereof provides that "[t]he chairman shall receive compensation fixed by the governor within the amount made available by appropriation therefor.” Subsequent to the adoption of the latter statute, section 169 of the Executive Law (as amd by L 1975, ch 667, § 16) was approved by the Governor and became effective on August 6, 1975, but, by its terms, was made retroactive to April 1, 1975. That section fixes the chairman’s salary, providing that:

"The annual salaries of the officers holding the positions indicated hereinbelow shall be as follows:

* * *

"(j) * * * chairman of state bingo control commission * * * $35,250.”

As we have already pointed out, the initial executive budget

The doctrine of repeal by implication is heavily disfavored in the law and may be resorted to only in the clearest of cases (Cimo v State of New York, 306 NY 143 , 148; City of New York v Maltbie, 274 NY 90 , 97; see, also, Matter of Corning v Donohue, 29 NY2d 209 , 215; McKinney’s Cons Laws of NY, Book 1, Statutes, § 391; cf. Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84 ). The rule has been neatly stated that "such repeals [by implication] will not be discovered unless the conclusion is unavoidable, as when repugnancy between the two statutes in plain” (Cimo v State of New York, supra, p 148). Moreover, the general rule " 'applies with peculiar force to statutes enacted at the same session of the Legislature’ ” (County of Saratoga v Saratoga Harness Racing Assn., 4 NY2d 622 , 627, quoting from Board of Educ. v Rogers, 278 NY 66 , 71). The Legislature which enacted the 1975-1976 budget also amended section 169 of the Executive Law without deleting from that statute the express provision for claimant’s salary. We may not conclude, there

We turn now to appellant’s contentions that the enactment of the budget was sufficient to repeal the applicable sections of the Executive Law upon which claimant bases his claim for salary. On this appeal, the State advances the argument that subdivision 2 of section 44 of the State Finance Law should be construed to require that the budget must provide a specific appropriation for a public officer’s salary. That statute provides: "Any appropriations for salary, compensation or expenses shall be the salary, compensation or expenses for one year of the officer, employee, office, board, department, commission or bureau for whom or which the same is appropriated, notwithstanding existing provisions of any other statute fixing the annual salary, compensation or expenses of such officer or employee * * * at a different amount.” This section is operative only in the situation in which an actual budgetary appropriation for salary differs from the salary specified in a statute. In such a case subdivision 2 of section 44 provides that the amount of the appropriation is the controlling amount of salary. It does not operate to deprive a public officer of his salary where the budget makes no specific appropriation for salary but only contains a general lump-sum provision for "Personal service”. In fact, it appears that not only did the 1975-1976 budget make no specific appropriation for the salary of the Chairman of the Bingo Control Commission but there are also no specific salary appropriations for any other public officials (except for certain members of the Alcoholic Beverage Control Board in New York City; see L 1975, ch 50, p 20). Indeed, the budget merely contains lump-sum provisions for "Personal service” under the various departmental headings; it cannot be seriously maintained that by virtue of subdivision 2 of section 44 of the State Finance

Appellant also relies on the "Joint Legislative Report of the Senate Finance and Assembly Ways and Means Committee on Actions Taken on the 1975-1976 Executive Budget” as a "precise declaration of Legislative intent” to abolish the Bingo Control Commission and claimant’s position. The report merely indicates the recommendation of the joint committee and obviously is not itself an expression of legislative intent, especially in light of the failure of the bill specifically abolishing the commission to win approval. However, an examination of the portion of the report dealing with regulation of wagering contains no discussion relating to the elimination of the commission. The report (p 85) recites that four nonstatutory positions in the Racing and Wagering Board are abolished, that 14 bingo investigator positions transferred from the Department of State are abolished, and that a position, director of division of bingo, in the Racing and Wagering Board is approved "to design and clarify” the State’s regulatory activities with respect to bingo. There is a conspicuous absence of any language relating to the elimination of claimant’s position or the bingo commission itself. The same reasoning applies with regard to a memorandum from the Deputy Comptroller. The memorandum is dated March 31, 1975 and prior, of course, to the adjournment of the Legislature on July 12, 1975 without having passed any legislation designed to abolish the bingo commission. The memorandum itself noted that substantive legislation abolishing some agencies had not yet been enacted. Obviously, in the face of the failure of such legislation to win final approval, the initialing of the memorandum by the secretaries of the Senate Finance and Assembly Ways and Means Committees may not serve as evidence of legislative intent.

Finally, appellant places considerable reliance on our recent decision in Matter of Blyn v Bartlett ( 39 NY2d 349 ), which involved the question whether the Administrative Board of the Judicial Conference could validly abolish the positions of confidential attendant in the Supreme Court and law secretary in the Civil Court of the City of New York. Our decision in the case was predicated upon the conclusion that section 222 of the Judiciary Law vested the Administrative Board with the power to abolish such positions despite the provision in section 166 of the Judiciary Law that Supreme Court

We conclude by emphasizing that this case is not resolved by recourse to the truisms that "[t]he courts do not sit in judgment upon questions of legislative policy” (Gaynor v Rockefeller, 15 NY2d 120 , 134) and that the province of the courts does not extend to the wisdom, necessity or motivation of legislation (see Kittinger v Buffalo Traction Co., 160 NY 377 , 388, 389). Reliance on these basic jurisprudential principles may not compensate for the absence of required legislative action. The policies of the executive branch in budgetary matters are subject to the approval of the Legislature (NY Const, art VII, §§ 2, 3, 4) and only the Legislature may repeal a validly enacted statute. Under the circumstances presented here we cannot conclude that the Legislature has manifested a clear intent to repeal the existing statutory authority establishing the Bingo Control Commission. In making this determination we do not abdicate our judicial role in derogation of legislative authority. Rather, we only apply the constitutional dictate that the legislative power of the State is vested in the Senate and Assembly (NY Const, art III, § 1). "Thus reads the fundamental law binding on us all, Judiciary, Governor, Legislature” (People v Tremaine, 281 NY 1 , 11).

Accordingly, the order of the Appellate Division should be affirmed, without costs. The court has denied costs because of the excessive length of respondent’s brief (see, e.g., Slater v Gallman, 38 NY2d 1 ; see, also, Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578 ).

Chief Judge Breitel and Judges Jasen, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed.