« PreviousContinue »
In order to facilitate its work, the Commission was divided into sub-committees to each of which was referred the duty of investigating and reporting upon the manner of conducting and transacting business in the departments referred to it. Throughout the summer the chairman or other members of the sub-committees pursued their work and this preliminary task was carried on unremittingly until in September it had progressed to a point which permitted the Committee on Draft to begin the preparation of the charter, chapter by chapter. From October 1, 1908, until the date of the report that Committee met every night with the exception of Saturdays, Sundays and holidays, and the evenings on which the full Commission was convened, and has repeatedly held sessions during the daytime.
In the preparation of each individual chapter and title the Committee on Draft in every instance through one of its own members or one of the other sub-committees, carefully investigated the actual operations of each department and bureau, and considered the statutory provisions applicable thereto with such officers and employees as were believed to be best qualified to explain the prevailing practice and illustrate the actual administrative interpretation of the charter. It was also sought to discover how far actual organization conformed to the letter of the law, how far the practice was the result of administrative interpretation, and to what extent it was a spontaneous development. Particular care was exercised to ascertain how far administrative practice reflects the law as well as the degree to which the departments had found it necessary to disregard the statute because either of difficulty in its application or of the obsoleteness or unintelligibility of its provisions.
The various committee investigations, although long and to dious, were absolutely necessary if the law and the facts were to be made to correspond, and the law were to be relieved of obsolete, unintelligible and systematically disregarded provisions. A particularly long and precise investigation was required concerning the operations of the finance department, the sinking funds, the dock department, the police department, the health department, the charities department, the department of education, the department of taxes, the borough presidents and the board of assessors, and much time was necessarily spent in investigations of provisions of the existing charter dealing with the city's bonds and obligations, particularly assessment bonds, revenue bonds, special revenue bonds, and general fund bonds.
Inasmuch as the Commission was charged with the investigation of the effect and working of the charter, and all other acts relating to the city and was empowered to report such legislation as it might deem advisable in the premises, it became a matter of primary importance to consider constitutional limitations upon the city's borrowing capacity. The Commission through a subcommittee made as exhaustive a study of the subject as was possible within the time and means at its disposal, and copies of its two reports to the Governor in relation to the subject are hereto annexed. There is also inserted in the proposed charter a section providing so far as the legislature may, a method for calculating the borrowing capacity of the city, the application of which, in the judgment of a majority of the Commission, should render it impossible for the city to find itself again in the position in which it now is viz., without any other standard for the determination of its debt-incurring power than the fluctuating opinions of the administration for the time being. If the legislature have the power to provide such a method, the entire Commission concurs in the wisdom of formulating a rule which, by requiring stated reports by the board of estimate and apportionment, may serve as a partial restraint upon the inclination to reckless expenditure.
The legislative authorization to report a charter and an adminis trative code the Commission interprets as an authorization to re port a charter new in form with such substantive changes as it deems necessary to render government economical and efficient. Hence the effort of the Commission has been to conform law with wise administrative practice; to eliminate the purely obsolete; to clarify the text; to harmonize the law with administrative interpretation; to efface the redundant and establish coherence. It has sought to follow the lines of the historical development of the existing charter, with due consideration for the actual experience in charter history of other American cities with similar problems; to make no radical or purely experimental changes; to preserve existing phraseology where it was clear or had received a definita meaning from the courts; to bring all matter relating to the sami subject under one title; to correlate and coordinate different departments and bureaus, and, so far as practicable in the time at its command, to substitute order and symmetry for the present confusion and cross division of powers and duties and to give the law, in a word, an intelligible, logical form. One purpose has been to eliminate from the charter much general statutory law which is found both in the charter and in the revised statutes.
The magnitude of this entire undertaking will be appreciated by careful study and analysis of the Commission's work, in tracing to their several origins numerous provisions of the existing charter, in correlating diverse sections referring to the same subject matter, and in formulating the results in simple yet comprehensive language.
The proposed charter contains all provisions which touch upon the corporate powers, rights and franchises of the city, the city's obligations and the sinking funds established for their protection, and all substantive law of a constitutional character relating to the organization of the municipality as a self-governing community, and as the representative of the state in the administration of general law within the municipal jurisdiction. The fundamental changes are comparatively few, and will readily be apprehended. The chief value of the Commission's work and the feature of it which has required the most time and care is its attempt to give intelligible and coherent shape to the entire charter and to separate the organic or structural matters of city government from adjective or administrative details. In making this separation it has been actuated by the desire to formulate a charter of a permanent or abiding nature, for it recognizes that the administrative code will doubtless require frequent amendment, either for the adoption of improved methods or in response to successful administrative practice. The code in the nature of things should be a more fluid body of law, susceptible of change and evolution without change or alteration of the charter proper. The advantage of this dual statute will, we think, be at once apparent to the legislature and the people. The charter can and should be placed in all hands and will be readily comprehended. The administrative code, not being of such fundamental importance, bears a closer resemblance, for instance, to the ordinances of the Council, and belongs in a somewhat larger way to that body of adjective law which includes local ordinances and regulations. It is, therefore, not of such general interest or fundamental importance as the charter, but is of special and particular interest as the embodiment of details affecting the conduct of city or departmental business.
Our report, therefore, will assume the form of two draft bills which illustrate as perfectly as the limit of time and the measure of our strength and ability can do, the precise form of legislation which we would recommend, as well as the precise content of that legislation; and the two draft bills should be treated not as final propositions for adoption but as recommendations in bill form so
presented that if approved by the legislature they may be treated as a whole, and that if the legislature disapproves of any particular matter, its substitute may be promptly formulated and fitted into the general scheme.
Because of the flexibility of the code and the ease with which it may be modified to conform with legislative decision upon the charter, and as well because of lack of time to frame to the full satisfaction of the Commission the several code chapters, it has been deemed wise to defer the presentation of the code until the legislative committees shall have reached their conclusions.
The charter may be considered independently of the administrative code, but the converse proposition is not true. The legislature itself cannot well take up consideration of the code until it shall have passed upon the charter; but when that has been done those parts of the code which have been drawn to conform with our proposed charter can readily be revised so as to harmonize the administrative law with the charter as finally adopted by the legislature.
The charter will consist of 75,000 words; the present charter contains over half a million. The administrative code will be no larger than the charter. The charter and code together will be about one-quarter the volume of the present charter. The charter contains 299 sections; the code will contain about the same number. The present charter contains 1620 sections.
For the purpose of facilitating the study and appreciation of the draft charter, and in order to point out the character, scope and purpose of each chapter, and to indicate the extent to which changes or innovations of a fundamental character have been recommended, we call the attention of the legislature to the following analysis.
GENERAL PROVISIONS REGARDING THE RIGHTS AND FRANCHISES
OF THE CITY. This chapter contains the grant to the city of corporate power, of franchises and of power of local administration, continues the guarantee of all pledges and securities for the city's liabilities, regulates the grant of franchises to use the streets and waters, and besides provisions with regard to grants of land under water, contains sections relative to actions by and against the city, and fixes the geographical boundaries of the boroughs.
In its draft the Commission has made use of the elaborate description of municipal powers contained in the charter of cities
of the second class drawn by the late Judge Earl. Inasmuch as some of the grants to the city originated in royal charters and have been confirmed by the state constitutions, provisions have been added to ensure the continuance of all rights, privileges and powers heretofore vested in the municipality.
In the present charter words are defined with needless fre quency and not always in identical language. The definition of “Franchises ” in our Chapter II has been predicated upon definitions found in the jurisprudence of our own state and of other states and in the decisions of the federal courts, and in the Special Franchise Tax Law.
Consents to the exercise of franchises to use the streets and waters of the city are treated in section 7, which is practically identical with section 73 of the present charter. It is reported in this form not because it meets with the approval of the Commission, but because, whenever and however amended, it should conform to the amendments of the Rapid Transit Act of 1891 and of the Public Service Commissions Law, which, it is understood, will be considered by the legislature at the present session.
In section 10 slight changes have been made in the phraseology of the corresponding section of the present charter (section 86). The substantive change in the section would prohibit grants of land under water within the city to the riparian proprietor without the city's consent, and would limit grants by the commissioners of the land office to riparian proprietors upon terms and conditions satisfactory to the city acting through its board of estimate and apportionment. These changes embody in statutory form the principle frequently enunciated by the courts that “riparian owners have no right to prevent important public improvements upon tide water for the benefit of commerce," and that “when any public authority conveys lands bounded by tide water it is impliedly subject to those paramount uses to which the government as trustee for the public may be called upon to apply the water front for the promotion of commerce and the general welfare” (Sage v. Mayor, 154 N. Y., 79-80). The effect of our change will be that riparian owners cannot acquire such grants without the approval of the city and later on compel the city, in the event of the requirement of lands under water for the development of the water front, to undertake condemnation proceedings in which, or to enter into contracts by which, it would be obliged to pay exorbitant prices - many times what riparian grantees shall have paid the state.