#### Daniel R. Lyddy, Appl’t, *v.*Long Island City, Resp’t.1

*(Court of Appeals,*

*Filed January*18, 1887.)

1. Municipal Corporations — Long Island City — Laws 1870, Chap. 719, Laws 1871 Chap." 461.

The power which, was given to the common counsel of the defendant city-under chapter 719, of the Laws of 1870, to employ an attorney and counsel when the business of the board required one, was taken away by Laws 1871 chapter 401.

2. Same — Contract with authorized agents — Chargeable with notice OF LIMITATION.

One can contract with a city only through its authorized agents, and he is chai-geable with notice of the limitations upon their official authority imposed by general law.

3. Same — Common council cannot ratify illegal contract.

When the common council of a city lacks power under its charter to create liability by express contract, it can not legalize a claim founded on an alleged contract, by acknowledgement, ratification or otherwise.

4. Statutes — Repeal by implication.

If two acts of the legislature are manifestly repugnant and tend to nullify each other then the older enactment must yield to the later statute. It will not be presumed that the lawmaking power had an intention to establish conflicting and hostile systems upon the same subject, or to have in force provisions of law by which the later will of the legislature may be thwarted and overthrown.

Appeal from an order of tbe supreme court, general term, second department, reversing the judgment of the trial term in *666favor of the plaintiff, and directing a new trial in an action against the city for the yalue of professional services.

*James M.*Lyddy, for appl’t; *Jesse Johnson*and *A. T. Payne*for resp’t.

1

 Affirming 34 Hun., 634*mem.*

Per Curiam.

The plaintiff had judgment upon a trial before the court without a jury. On appeal the general term reversed the judgment, for alleged errors of law, and ordered a new trial. The plaintiff appeals from such reversal upon the usual stipulation for judgment absolute in the event of an affirmance by this court of the order appealed from. The action was brought to, recover for legal services alleged to have been performed by the plaintiff, at the request and upon the employment of the common council of Long Island City, in the investigation of certain alleged abuses by the board of water commissioners in the administration of the affairs of the water department of the city. It is claimed by the respondent that the common council had no authority under its charter to create any liability against the city for such services, a previously existing statute giving such authority having been repealed before the" rendition of the services. The defendant was originally organized as a city under chapter 719 of the Laws of 1870, and among the powers given to the common council by that act was that of employing “ an attorney and counsel, when the business of the board required one, and to pay them a reasonable compensation.” This charter was revised and extended by chapter 461 of the Laws of 1871, and it is claimed by the respondent that thereby the authority of the common council to employ attorneys was taken away, and that thereafter it was placed under an absolute disability to create any debt or liability on the part of the city for legal services.

While no express repeal of the provisions of the Law of 1870 is contained in the act of 1871, it is provided that such provisions thereof as are “not inconsistent with the provisions of this, act are to be construed with and made applicable hereto.” A clear implication arises from this language that such parts of the former statute as are repugnant to or inconsistent with the provisions of the later act are intended to be repealed. It is properly urged by the appellant’s counsel that repeals by implication are not favored by the law, and that a prior statute shall not be deemed repealed by a later one when they can both be given a legitimate effect, and stand together. The rule, however, implies that, if the two acts are manifestly repugnant,, and tend to nullify each other, then the older enactment must yield to the later statute. *Mark v. State,*97 N. Y. 572. Upon examining and comparing these statutes, with a view of discovering the legislative intent upon the subject, it is apparent that the act of 1871 is much more elaborate, and attempts to *667establish a more comprehensive, systematic, and detailed form of municipal government, than that provided by the act of 1870. Among other things, this charter undertook to classify the business of the city, and for that purpose, provided for the establishment of eight separate departments, consisting of the following : “ Finance department and receiving taxes ; law department ; department of public works ; police and health department ; a board of education; board of water commissioners; a fire department; a board of assessors.” Of the law department it was enacted that it should “have charge and conduct of *all law business*of the corporation, and of all the co-ordinate departments created by this act. The chief officer of this department shall be called the attorney and counsel to the corporation. For such services he shall receive an annual salary of two thousand dollars, in lieu of all charges against the city for the same. Fie shall be appointed by the mayor, and shall hold his office for the term of three years, or until his successor shall have been appointed.” The common council are required to raise annually a sum, not exceeding |75,000, for the wants and welfare of the city, which sum is to be the budget for the ensuing year, and is required to be divided among the various departments of the city in certain specified proportions ; the sum of $8,000 being-assigned to the maintenance of the law department, and expenses of local judiciary. The common council is forbidden to divert any money from one fund or budget to another. It is also forbidden to borrow money, or to issue bonds or other evidences of debt, or to incur liability for the payment of any money, or direct any work for the payment of which the city may become liable beyond the amount of cash applicable to the particular purpose then in the treasury of the city ; and all acts done, bonds or other evidences of debt issued, and debts contracted contrary to the true meaning and intent of this section, shall be absolutely null and void as against said city ; but the members of the common council voting therefor shall be jointly and severally liable therefor.

The slightest consideration of these provisions shows an insurmountable repugnancy existing between them and the provisions of the act of 1870. By the later act the selection and appointment of attorneys to transact the legal business of the corporation is confided wholly to the mayor; their compensation is fixed and limited by law, and is payable from a fund, specially and inviolably devoted to that purpose; and it purports to organize a complete and perfected bureau for the transaction of all the corporate legal business of the municipality. It was not contemplated that extra counsel should be employed to perform legal services for the corporation, and no power was lodged in the authorities to provide funds for their compensation, even if employed. The scheme of the act was to guard the city from *668loose, reckless, and indefinite expenditure, and limit tire power of its authorities to create debts by the most careful and stringent provisions. All of the law business of the corporation was required to be performed by the officers of the law department, and their compensation was limited, and the common council was prohibited from using any of the funds raised for that department for any other purpose. The carefully devised plan to limit the power of the common council in the incurring of liability on the part of the city would be frustrated, and the scheme of the act in respect to the financial economy of the city would be nullified and defeated, by the retention of the provisions of 1870. It is not in accordance with settled rules of construction to ascribe to’the law-making power an intention to establish conflicting and hostile systems upon the same subject, or to leave in force provisions of law by which the later will of the legislature may be thwarted and overthrown. Such a result would render legislation a useless and idle ceremony, and subject the law to the reproach of uncertainty and unintel-ligibility. We are therefore of opinion that the provisions of the act of 1870 referred.to were inconsistent with, and necessarily repealed by, the subsequent statute, and that the common council had no power to bind the defendant by the employment of the plaintiff to render legal services. The plaintiff could contract with the city only through its authorized agents, and he is chargeable with notice of the limitations upon their official authority, imposed by general law. *Donovan*v. *City of New*York, 83 N. Y. 293. It follows, as the necessary result of the want of power on the part of the common council to create liability by express contract, that it could not legalize such claim by acknowledgment, ratification, or otherwise.

The question here discussed is fairly presented by the exceptions taken to the findings of law that the defendant is indebted to the plaintiff, and the refusal to find that the liability of the defendant is controlled by the statute of 1871.

The judgment should be affirmed, and judgment absolute ordered in favor of defendant, with costs.

All concur.