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fold. In the first place, they were mere compilations, crudely chronological and without even grouping by subject, let alone the elements of examination, comparison, and elimination. In the second place, in the nature of their city origin, they were quite without legal status. They were at the best a poor convenience. They facilitated access to the law but they did nothing to clarify it.
In the meantime special legislation affecting the City of New York was passed at a rate which, by 1880, had reached about thirty-five acts each year. Nothing had effectively corrected the centrifugal tendencies which had long been at work on the sources of law relating to the city. The result was a confusion of which the highest court of the state complained in 1875: “It is scarcely safe for any one to speak confidently of the exact condition of the law in respect to public improvements in the cities of New York and Brooklyn. The enactments in reference thereto have been modified, superseded and repealed so often and to such an extent, that it is difficult to ascertain just what statutes were in force at any particular time."2
The New York City Consolidation Act of 1882.
Such was the statutory disorder at which the Consolidation Act of 1882 was aimed. First authorized in 1879,3 the process was not completed until 1882. In practice, it involved two phases: compilation; then, revision. The execution of the plan was local. The corporation counsel was directed to appoint two persons who, with himself, were to prepare a compilation and revision for submission to the legislature of 1880. Only the compilation was ready at that time. It was printed in two volumes under the title, The Special and Local Laws Affecting Public Interests in the City of New York, and immediately given official status by an act which declared that "Said volumes shall
* New York Senate Committee on Cities, Testimony, vol. 5, Appendix, pp. 468-471 (1891).
* In the Matter of Kiernan (1875), 62 N. Y., 457, 459-60.
* L. 1879, ch. 536 (June 20), “An Act to provide for a compilation and revision of the laws of the State of New York affecting public interests in the City of New York.” The commissioners were George Bliss, Peter B. Olney, and William C. Whitney, corporation counsel, ex officio. 'L, 1880, chi 494.
be considered as containing presumptively all special and local laws.
The commissioners proceeded under further authorization by acts of 18802 and 18813 and, taking their compilation as the basis, reported a revision on May 23, 1881,4 too late for legislative action. Their handiwork was passed on July 1, 1882, as “ an act to consolidate into one act and to declare the special and local laws affecting public interests, in the City of New York," to be known as the New York City Consolidation Act of 1882.5
The Consolidation Act was in a very real sense a charter.6 It made no substantive changes, to be sure. Its authors, pointing to the fact that the legislative instructions under which they acted required that they should “not make any change in the meaning of existing laws,”? reported, “We have endeavored strictly to conform to this provision, though, of course, we have had sometimes to adopt one of two or more possible constructions of a
*L. 1880, ch. 595 (June 26), the full text reading, “The volume entitled 'The special and local laws affecting public interests in the City of New York,' and printed by order of the Legislature of eighteen hundred and eighty, may be read in evidence and cited in any court or proceeding. Said volumes shall be considered as containing presumptively all special or local laws affecting public interests in force in the City of New York, on the first day of January, eighteen hundred and eighty, but this presumption shall not be considered as extending to special laws relating to any corporation (other than the mayor, aldermen and commonalty), or to any association or society, nor shall the insertion or omission of any law relating to any such corporation be construed as in any manner affecting the corporate existence of any such corporation or its possession of its franchises."
*L. 1880. ch. 594 (June 26), An act to provide for a revision of special and local laws affecting public interests in the city of New York." It directed the appointment of commissioners by the corporation counsel; in practice, the same personnel continued
L. 1881, ch. 572 (June 24), directing that, after making a preliminary report to the present session, the commissioners should continue their work, without further compensation, and submit the final revision at the opening of the 1882 session.
* Available as Report of the Commissioners appointed under Chapter 594 of the Laws of 1880, with a Draft of the Revision of the Special and Local Laws affecting Public Interests in the City of New York (1881). Printed at the expense of the City.
*L. 1882, ch. 410.
See, as an example of judicial comment, In re McAdam, 7 N. Y. Supp., 454, 455 (1889), which remarks “ Ch. 410 of the Laws of 1882 was virtually a charter of the City of New York."
statute or statutes.” In point of inclusiveness, however, it was more truly a charter than those which had gone before or those which were to follow. Neither the Greater New York Charter of 1897 nor the Amendatory Act of 1901 repealed it. It remains an important part of the statutory basis of the city's government. For this reason the problem that it left in regard to the completeness with which it repealed prior special legislation is postponed until, in the following chapter, the question of the present sources of the law relating to New York City is considered.
The City's Law Scatters Again.
Although the act remained, the principle that underlay the New York City Consolidation Act of 1882 was immediately compromised and almost disregarded. Within less than a decade a prominent commentator upon the charter could say, “When the statutory revision * * * was enacted in 1882, it was supposed that all laws thereafter passed, relating to New York City, would be in the form of amendments to the Consolidation Act. The legislature has, however, during the nine years since 1882, passed a vast number of laws, which, although relating to New York City solely, do not, in terms, amend any of the sections of the Consolidation Act. Many of these laws, however, supersede, modify or affect the provisions of the Consolidation Act.”'2
Why was a seemingly clear intent slighted and the charter allowed to unravel again?
Carelessness was a factor that it is almost unnecessary to mention. It is impossible otherwise to explain how it came that the act of 18843 which abolished the confirmation of the mayor's
Report of the Commissioners appointed under Chapter 494 of the Laws of 1880, with a Draft of the Revision, etc. (1881), p. iii.
Ash, New York City Consolidation Act, as in force in 1891 (1891),
* L. 1884, ch. 43. The Charter Revision Commission of 1907 remarked: " It is a singular commentary upon the looseness with which laws affecting the city, both good and bad, have been passed, that the two statutes last referred to, so fundamentally affecting the powers of the Mayor, were not in the form of amendments of the city's charter, but were special acts." The reference is to L. 1884, ch. 43 and L. 1895, ch. 11, the latter conferring unlimited power of removal during the first 6 months. Report of the Charter Revision Commission of 1907 to the Governor, Nov. 30, 1907, in N. Y. Sen. Docs., 1908, vol. 2, no. 10, p. 24.
appointments, thus effecting one of the most vital changes in the form of city government during its whole history, was passed without reference to the Consolidation Act. This instance was outstanding but by no means single. Why, if it were not sheer carelessness, was the Consolidation Act disregarded in the terms of the statute of 18841 which made the comptroller elective, or the important act of 18902 which set up the commissionership of street improvements for the 23rd and 24th Wards and thus foreshadowed the borough system of administration? Such cases were inexcusable. Not less blameworthy, although more explicable, was the failure to relate to the Consolidation Act a much larger number of acts that dealt with very particular situations. These were in fact no more detailed than provisions which had already been placed in the Consolidation Act and which have been included in the charters since that time.
But the cause was deeper than carelessness. The revisers themselves had excluded from the Consolidation Act a mass of prior enactments which were very particular in scope and temporary in effect. The report of the commissioners in 1881 stated their policy:
we have revised only what may be called the active laws; that is, those under which something remains to be done, either constantly or at some time or times; while we have omitted laws which were temporary in their purpose, and laws which, though the basis of the existing order of things—the foundation of existing rights—seem not properly the subject of revision, as nothing affirmative remains to be done under them. Such omitted laws embrace those which define the location of existing streets and parks and the lines of the waterfront, which authorize the issue of bonds where the authority has been fully exercised, which authorize the erection of buildings or public improvements which have been fully completed, which give the city its interest in real estate, and other similar acts. They, like many general laws of the State, are necessary to be referred to from time to time, but, as we
66 * * *
*L. 1884, ch. 73. *L. 1890, ch545.
have said, do not seem the proper subjects of revision. Indeed, a revision of some of them would tend to do harm
rather than good."1 This was more than an invitation of example to subsequent legislatures. Temporary legislation necessarily continued, since the city's dependence on the state had not been altered; and the Consolidation Act contained no sub-divisions, no categories, no receptacles, to which such new legislation could easily be related.
The excluded temporary legislation was so in several senses. The quotation recited in the preceding paragraph has already indicated a distinction. It may be elaborated by a few illustrations from enactments after 1882 which were passed without reference to the Consolidation Act. (1) A few were entirely temporary, in the sense that, their operation having ceased, no continuing rights remained to vex the future. Such was the act of 18892 which authorized the completion of the north extension of the Metropolitan Museum of Art building. The examples were not numerous, however. Where private property is touched, a vestige of effect remains, however temporary may seem the operation of the statute, and a very large portion of the special legislation during this period of municipal government concerned public improvements and thus touched private property. (2) A larger number of the acts, therefore, were temporary in a less complete sense. Both their affirmative operation and their direct effects ceased, but certain consequences remained potential. Such was a statute of 18883 which extended the time for presenting damage suits arising in connection with a particular step in the expansion of the city's water supply system. No one could see what remote events might some day turn upon the validity of one of these actions. (3) In other instances, the direct effect persisted, although the affirmative action quickly terminated. Such was the act of 1886,4 authorizing the use of a part of Riverside Park for the purpose of the Grant memorial; or, more clearly in
* Report of the Commission appointed under Chapter 594 of the Laws of 1880, with a Draft of the Revision, etc. (1881), pp. iv-v.
*L. 1889, ch, 513. * L. 1888, ch. 419. * L. 1836, ch, 338.