The return to the writ in this case traverses none of the essential facts set forth in the petition, and we shall, therefore, in compliance with the request of counsel for both parties, as expressed in a stipulation annexed to the record, proceed to the consideration of the sole question wé are asked to determine, and that is, whether or not the relator’s term of office as superintendent of public schools of the city of Eochester, under his last appointment, expired on the 15th day of July, 1900. If it did, of course, the writ should be dismissed; but otherwise the order allowing the same should be affirmed.
Manifestly the answer to this question must depend upon the force arid effect to be given to the act of 1898, known as the “ Dow Law,” for in the view we are disposed to take of the case the amendment of 1900 requires but little, if any, consideration.
It is conceded by both counsel that the Dow Law did, in effect, if not in express terms, repeal chapter 784 of the Laws of 1897, under which the relator was first elected or appointed superintendent ; and such is unquestionably the fact; for aside from the intention to repeal, as expressed in the repealing clause, the later enactment was obviously designed as a substitute for title VI of the charter of the city of Eochester which related to the public schools and defined the powers and duties of the school officers in that city.
. As a matter of fact this enactment accomplished a complete revision and established a practical codification of the public school system of the city. It changed the title of the superintendent, enlarged Ms powers and imposed upon him new duties and responsibilities. In like manner it defined with much minuteness the powers and duties of the board of education and created several new offices which were unknown to the old law, and from the time it went into effect, viz., December 1, 1898, it was the law, and the *299only law, under which the schools of the city were or could be conducted. Under its provisions it became competent for the board of education to appoint a clerk or secretary, as well as a general librarian, both of which positions were formerly held by the superintendent; and in virtue thereof it was also empowered to enforce performance by the superintendent of the additional duties and responsibilities cast upon him.
Now, in view of the situation thus briefly outlined, what power to fill vacancies in the office of superintendent resided in the board on the 5th day of J une, 1899 ? A vacancy certainly existed on that day, and it became the duty of the board to supply that vacancy by appointing a superintendent to serve for either a full or an unexpired term. This much no one denies, but it is contended that in assuming to fulfill this duty by appointing a superintendent for a full term of four years, the board exceeded its powers, and thus we are confronted with the vital question in the case, viz.: Can the relator, whose appointment was made at the time and under the circumstances hereinbefore detailed, serve for a full term of four years, or only for the unexpired term of his predecessor ?
It is conceded by the learned counsel for the appellant that the Legislature might have abolished the office of superintendent, but it is insisted that it has not done so, and in this he is doubtless literally correct; for there is nothing in the Dow Law which in express terms either abolished the office or extended the term of the occupant thereof ; but it did change the title of the office from “ City Superintendent of Common Schools ” to that of “ Superintendent of Schools; ” and it likewise declared that the tenure of that office should thereafter be four years, instead of two. Moreover, it expressly provided that the new act should go into effect on the first day of December following its enactment, and that when it did thus go into effect it should, with one immaterial exception, take the place of all existing laws relating to the same subject. In these circumstances, we do not see why it is not made perfectly apparent that it was the design of the Legislature that the old order of things should be superseded by a more elaborate, comprehensive and systematic form of school government, and that the new system in all its details should go into operation at the time specified in the act. It is a rule of statutory construction which is almost fundamental in its nature, that where *300two statutes relating to the same subject are manifestly repugnant to each other, the older enactment must yield to and be regarded as repealed by the later one. (People ex rel. Ross v. City of Brooklyn, 69 N. Y. 605 ; Lyddy v. Long Island City, 104 id, 218; Matter of New York Institution, 121 id. 234; Stack v. City of Brooklyn, 150 id. 335.)
The rule above stated is applicable even where the later statute contains no express repealing clause; but it is hardly necessary to invoke it in the present instance, because as we have seen the Legislature left no room for conjecture as to its intention, as it in express language substituted the new system for the old.
It is insisted, however, that, even conceding this to be so, the term of office of the superintendent could not be abridged until the expiration of the term for which the relator was originally appointed, and, consequently, that when a vacancy occurred in the office the new appointee could only serve during the unexpired term of, the previous incumbent. This contention, if we correctly apprehend the position of the learned counsel, is based upon that provision of the Public Officers Law which declares that “ If an appointment of a person to fill a vacancy in an appointive office be made by the officer or by the officers, body or board' of officers, authorized to make appointment to the office for the full term, the person so’ appointed to such vacancy shall hold office for the balance of the unexpired term. * * * ” (Laws of 1892, chap. 681, § 27.)
But this provision is a general one which is designed to furnish a method by which vacancies in office, not otherwise expressly provided for by statute, can be filled. It has no application, however, to cases like the one under consideration, where the statute creating the office has been repealed and the right to hold the office does not survive the repeal. **
It is sometimes said that the occupant of a public office has a vested right therein of which he cannot be deprived, but this is not a correct statement of the law, for public offices are not created for the benefit of the. incumbent, but for the public, and the power which creates the office, whether it be constitutional or legislative, may also terminate it. (Conner v. Mayor, 5 N. Y. 285 ; People v. Roper, 35 id. 629, 639.)
In the present case, as we have seen, the Legislature, while not in *301express language abolishing the office of city superintendent of common schools, has in effect done so by providing an entirely new governmental system for the public schools of the city of Bochester, to be carried on under the supervision of a “ Superintendent of Schools,” whose term of office shall continue for four years, and by authorizing the board of education of that city to enact proper rules and regulations for the proper execution of all powers vested in that body.
This law was in effect when the relator resigned his office and, consecpiently, when it became necessary to appoint his successor, we think the board of education was forced to act under the existing statute and in accordance with the rules and regulations for its execution which they had adopted. (Long v. Mayor, 81 N. Y. 425; People ex rel. Gere v. Whitlock, 92 id. 191.)
Such being the case, it follows that the relator’s appointment was for a full term and not for an unexpired one, and if we are correct in this view it becomes unnecessary to determine whether the act of 1900 is valid or invalid, or what effect, if any, it has upon the statute which it purports to amend.
It is, of course, perfectly apparent that the relator’s purpose in resigning his office at the time and under the circumstances he did, was to gain the advantage of an appointment for a longer term under the Dow Law, and whatever view we might be'disposed to take of the propriety of such action upon the part of the responsible head of the educational department of a populous city, we are constrained to dispose of the present appeal upon strict legal principles, uninfluenced by other considerations, and in so doing to affirm the order appealed from.
All concurred.
Order affirmed, with fifty dollars costs and disbursements.