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this remedy had been provided by L. 1892, ch. 275, amending sec. 506 of the Consolidation Act. Justice Scott said in part:
when the Legislature provided that the building laws formerly in force should be repealed upon the adoption of a Building Code, it meant that those provisions of the Building Code which it was within the power of the municipal assembly to adopt, should supersede and stand in the place of legislative acts covering the same field. If, therefore, the municipal assembly had no power to enact sec. 151 of the Building Code, purporting to provide a remedy by injunction, the section must be treated as if it had not been included in the Code at all, and consequently sec. 42 of ch. 275 of the Laws of 1892, embracing a subject not within the authority of the municipal assembly and, therefore, not validly treated by the Building Code, remained unrepealed."
Conclusion Regarding Conditional Repeal Under the Charter of
Here was demonstrated the fact that the enactment of the Building Code did not, ipso facto, repeal every special law that related in any way to building or even every law the substance of which it sought to include. Here was suggested an obvious automatic relationship, whereby effect is given either to a provision of law or to an ordinance that seeks to cover the subject matter of the provision of law. But neither here nor in an almost simultaneous casel that closely followed it did the court undertake to give a definition of the scope of the concept of building regulation or to locate the boundary beyond which ordinances could not go in supplanting pre-existing statutes.
The practical difficulties in the particular situation which has just been discussed were perhaps not serious; they were less important even than they might have been if the ordinance, instead of merely copying, had departed from the substance of the statute that it sought to replace. It would be exaggeration,
? In the Matter of the City of New York (O. J. Gude Co., App.) (1907) 122 App. Div. 741, 107 N. Y. Supp. 484.
furthermore, to suggest, in thus directing attention to an element of uncertainty in the operation of the scheme of conditional repeal as applied to building laws, that it has at any time proved disturbing. It is obvious, however, that this element must be reckoned with, and must be guarded against in any use of the scheme of conditional repeal upon a wider scale.
Conditional Repeal of Designated Charter Sections, 1901.
The Amendatory Act of 19011 listed forty-six sections of the Greater New York Charter and, without itself attempting to reprint them, declared that they should continue in full force until the Board of Aldermen should “pass ordinances regulating the matters provided for in the said several sections." The proviso concluded: "*
all of which ordinances the said Board of Aldermen is hereby expressly empowered to pass. Upon the passing of any such ordinances regulating the matters provided for in any one of the said sections respectively, such section shall cease to have any force or effect, and the same is and shall be repealed."
This provision represented no careful planning. The Charter Revision Commission did not deem it significant enough to mention in their report. Nor is any consistent criterion of selection evident in the subject matter of the various sections which were chosen from the mass of the charter for conditional repeal. The content of these sections was miscellaneous. (a) Three2 concerned licensing in connection with boarding houses, immigrant booking agents, and hotel runners; (b) nine involved fire control, of which one regulated the disposal of shavings, etc., onet required the maintenance of lights, apparatus, etc., in build
*L. 1901, ch. 466, Section Three (the whole body of the charter, with its numerous sections,” being Section One). This refers to the Second Schedule, appended to the act and bearing the not quite accurate subtitle, Sections to Remain in Force Until Changed by the Board of Aldermen." 'L. 1897, ch. 378, secs. 347, 348, 349.
Sec. 760. * Sec. 762.
ings used by many persons, onel required numbering of exits and the printing of floor plans on programs in places of amusement, and the remaining six2 regulated explosives and combustibles and other aspects of fire prevention; (c) nine concerned the protection of health and the avoidance of nuisances, six3 enumerated certain noxious products, one relating to the filling of yards and cellars, one to garbage receptacles, and one to the driving and slaughtering of animals; (d) nine touched the control of streets, of which four? were very old provisions regarding the breaking of street lamps and knockers, ones stated a law of the road, one forbade throwing certain kinds of debris in the streets, one10 placed restrictions on parades, etc., and onell gave a definition of "streets," one 12 conferred power to regulate driving, etc., (e) sixteen13 concerned the licensing of amusements.
Most of these on their face were necessary but transitory details rather than the essence of power. They were not, however, a whit more detailed and temporary than hundreds of sections which the Commission left untouched in the charter. The inconsistency is the more apparent when it is noted that one of the sections chosen for conditional repeal14 broadly stated that "the municipal assembly is hereby authorized and empowered to pass ordinances regulating the rate of speed * by foot passengers, vehicles and animals "; and that another section15 in forbidding the driving and slaughtering of cattle, sheep, swine, pigs or calves, permitted wide variations by adding the clause, except at such times and in such manner as pro
Sec. 1457. u Sec. 1466. 19 Sec. 1454.
Secs. 1472-1486, incl., 346.
Sec. 1454; this section, it is fair to add, contained a definite statement of penalties.
u Sec. 1227.
vided in the sanitary code”; and that the section1 which concerned precautions against fire in places of amusement, although more detailed, left discretion with the fire commissioner at nearly every point. The charter abounds in sections which do not have as much saving flexibility as these.
The Validity of Conditional Repeal Again Assumed by the
The validity of conditional repeal under the 1901 charter was as little questioned on the main point as had been the Building Code. In re City of New York (Morris' License) mentioned the point only to go on to an obvious interpretation of the effect. The Court said:
“The Legislature, while it might confer power upon the Board of Aldermen to pass ordinances upon the subjects enumerated in said title, could not confer power upon the Board of Aldermen to amend, add to, or change the charter. While the charter provided for a continuation of the said provisions until the Board of Aldermen acted, it was expressly provided that: 'upon the passing of any such ordinance regulating the matters provided for in any
1 Sec. 762.
(1909) 131 App. Div. 767, 772, 116 N. Y. Supp. 353, involving an ordinance approved Dec. 19, 1907, entitled “ An ordinance regulating the matters provided for in section 1481 of L. 1897, ch. 378." Sec. 1481 had been part of Title 2 of Ch. XXII. The penalty provision referred to was Sec. 1486 (also conditionally repealed) which related to "a violation of any of the provisions of this title.” Some years before, in an opinion rendered on March 7, 1902, the law department of New York City had advised that certain legislative amendments to secs. 763 and 769, recommended by the Municipal Explosives Commission, were unnecessary, since they could be adopted in the form of ordinances. 12 Opinions of the Corporation Counsel of the City of New York, 488. Subsequent opinions dealt with several of the sections listed in Schedule Two, although none dealt incisively with the problems inherent in the application of conditional repeal: sec. 349, May 1, 1915, vol. 46, p. 310, Nov. 12, 1918, vol. 53, p. 586; sec. 762, June 10, 1915, vol. 46, p. 415, June 24, 1915, vol. 46, p. 470; sec. 763, May 6, 1907, vol. 23, p. 55 sec. 773, April 8, 1915, vol. 46, p. 253; secs. 1472-3, Aug. 23, 1904, vol. 19, p. 38, Nov. 27, 1911, vol. 36, p. 350; secs. 1472 and 1487, Nov. 8, 1915, vol. 47, p. 305; secs. 1473-4, March 6, 1903, vol. 15, p. 327; sec. 1481, April 10, 1907, vol. 23, p. 487.
one of said sections respectively such section shall cease to have any force and effect and the same is and shall be repealed.' It follows that section 1481 has been repealed by the passage of the ordinance, but that ordinance has not been inserted in place of section 1481 in the title
from whence it was taken." On the basis of this reasoning, it may be added, the Court held that a penalty provision applicable to the whole of the original title and not yet displaced from the charter could not be construed as extending to the ordinance. But although the direct connection is broken, the fact that an ordinance displaces a section of the charter may be useful in interpreting the former. In City of New York v. Alhambra Theatre Co.,' involving the same ordinance and charter section already discussed, it was held that the ordinance was valid despite the presence of a provision on the same subject in the penal law, because the legislature must have been aware of the penal law when it reenacted section 1481 into the Greater City Charter and, the Court concluded, " The ordinance which has replaced sec. 1481 gives it the same right.” The legality of conditional repeal was not questioned.
But Serious Uncertainties Again Created.
But, although clearly sustained in its essential principle, the use of conditional repeal in 1901, as in 1897, left serious uncertainties. Some differences may be noted. The charter of 1901 designated particular sections for conditional repeal, whereas the building code proviso of 1897 repealed, without specific designation, all laws on a broad subject. On the other hand, in dealing with section numbers rather than substance, the charter of 1901 set up no single topic of legislation to serve as a guide in determining the limits of repeal. The phraseology, it will be recalled, read: “Upon the passing of any such ordinances regulating the matters provided for in any one of the said sections
(1910) 136 App. Div. 509, 121 N. Y. Supp. 3.