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respectively, such section shall cease to have any force or effect." It requires no straining to draw from this at least the following problems :
(1) Is it necessary that the ordinance shall expressly declare itself to be in regulation of the matters provided for in a particular section,' or does the completion of repeal take place automatically whenever an ordinance is enacted which touches upon the subject-matter of one or more of the conditionally repealed sections?
(2) If so, does the repeal of the whole of any section take place only when substantially all its subject matter is regulated by ordinance, or is the whole repealed when a part merely is covered, and, in either case, how is the line drawn in determining how apposite the ordinance must be to the subject-matter, and how much of that subject matter it must cover, in order to complete the repeal of a charter section?
(3) Or, despite the fact that the charter seems to speak only of the repeal of whole sections, can a part of a section remain in the charter while the part that is covered by an ordinance is repealed ?
(4) Is it material to the effect of the ordinance in consummating repeal, whether it is consistent with, or repugnant to, the charter section in question? Is repeal to be regarded as effected if the ordinance merely repeats the exact language of the charter provision ? if it repeats the substance, but in different words? if it repeats the substance but with minor alterations of meaning ?
(5) If a section which was listed in 1901 as conditionally repealed subject to ordinance is amended subsequently by the Legislature, before any ordinance in regulation of its subject matter has been adopted and without any mention of conditional repeal in the amending statute, is the amended section still conditionally repealed subject to ordinance ?
It must be said frankly that most of these questions have
'For example, the ordinance involved in In re City of New York, supra, p. 106, note two.
never been settled in the courts; few aspects of the matter, indeed, have been adjudicated. Some assistance, at least in delimiting the problem, was given in Waldo v. Christman.1 The issue in this case was whether the repeal of sec. 762 of the charter had been completed by the enactment of certain provisions in the Building Code, in point here only as an ordinary ordinance. The Court held that the charter section was not repealed, and suggested a test in the phrase, “comprehensive ordinance."
The opinion may be quoted at some length:
“ It is true that sec. 762 of the charter is included in the Second Schedule referred to in subd. 3 of sec. 1620' of ch. 466 of L. of 1901. From this circumstance the argument is made that the enactment by the local authorities of secs. 102 and 109 of the building code superseded sec. 762 of the charter. While a superficial reading of sec. 1620 makes this contention seem plausible, yet we think that upon a closer examination it becomes evident that the legislature did not intend that sec. 762 should be deemed repealed until the local authorities 'shall pass ordinances regulating the matters provided for in the said ' section, or 'until' said section should be changed by the Board of Aldermen.' A comparison of secs. 102 and 109 of the building code with the provisions of sec 762 of the charter shows very clearly that these ordinances are not co-extensive with the provisions of the charter referred to. Thus the provisions of sec. 102 of the building code relate to fire appliances in buildings of a certain specified height, and are generally much more limited in their scope than are the provisions of sec. 762 of the
* (1911) 72 Misc. 349, 353-5, 130 N. Y. Supp. 260 (also, by the same opinion, Waldo v. Winter & Co.).
'The Court (erroneously, but not strangely in view of the double use of the term "section" in the charter of 1901) refers to “Section Three as a subdivision of the last regularly numbered section of the charter, i.e., 1620.
Sec. 762 of the charter is still in force, and in so far as it relates to the facts of these cases has not been superseded by the building code. The provisions of secs. 102 and 109 of the Building Code are not inconsistent with sec. 762 of the charter. We think that the design of the Board of Aldermen in enacting these sections was to make certain specific provisions which should supplement the provisions of the charter and not to pass a comprehensive ordinance which should regulate the matters provided for' in sec. 762 of the charter, or to change the regulations prescribed by the charter provisions. In view of the language employed in sec. 1620 we think that it is evident that the Legislature did not intend that the section of the charter referred to in the Second Schedule' should be repealed until comprehensive ordinances, which should substantially provide for the proper regulation of the same subject-matter, should be enacted by the local authorities of
the City of New York.” Although this is the statement of an intermediate court only, it may be taken to show conclusively that the mere trenching of ordinance upon the subject-matter of a section listed for conditional repeal is not enough to accomplish repeal. But at what point does an ordinance become “comprehensive"? At what point does it “substantially provide for the proper regulation of the same subject matter"? The solution offered is as reasonable in its general theory as it is likely to be uncertain in its detailed application. Yet a more exact rule could hardly have been offered unless the courts had chosen, against the normal tendencies of statutory construction, to recognize repeal only where an ordinance expressly offered itself as a regulation of the matters treated in a particular section.
* Citing with approval Lantry v. Hoffman (1907) 55 Misc. 261, aff'd 124 App. Div. 937, which, without raising definitely the question of the repeal of sec. 762, had held that under provision of that section authorizing the fire commissioner to requ fire extinguishing equipment in buildings, he could require the installation of perforated pipes, despite the fact that the building code made a similar provision for buildings of a certain character, enforceable by another department.
The Uncertain Status of the Charter Sections in Question.
A consequence is that it is almost impossible to say which of the forty-six sections originally listed for conditional repeal are to be regarded as still in force. The various editions of the charter, including an annotation which has an almost official standing, are hopelessly in disagreement and are all demonstrably inaccurate on this point.
Conclusion Regarding Conditional Repeal Under the Amendatory
Act of 1901.
Some will say, perhaps, that the very absence of adjudication shows that the practical consequences have not been embarrassing. They may urge, as a mitigating factor, that, if an ordinance is seriously repugnant to any of the sections which have been conditionally repealed, the intention of the ordinance to complete the repeal will be obvious, and that, if the ordinance is not repugnant in this degree, it does not matter whether both are or are not in effect. Yet situations can readily be imagined and, indeed, situations have been mentioned in other connections in preceding pages, in which it matters greatly whether both of two entirely consistent provisions, differing in antecedents and ramifications, are regarded as in force. The argument, furthermore, takes no account of possible repugnancy between an ordinance and a part only of one of the charter sections. Even if these difficulties could be waved aside, however, the disadvantages of any uncertainty in the legal sources of the city government could not be lightly dismissed. Here again, as in the treatment of building laws under the first Greater New York Charter, the operation of conditional repeal has disclosed ambiguities and dubious effects against which, if the scheme were employed on a larger scale, it would be necessary to take careful guard.
Conditional Repeal in the Grant of Power to Change Salaries.
A further use of conditional repeal, begun in the Greater City Charter of 1897 and carried further in the Amendatory Act of 1901, concerned the vital matter of salaries. The
application was less express than in the two instances already noted, but it was equally a case of the repeal of provisions of existing statutes subject to the passage of ordinances.
The Evolution of the Provision.
The introduction of this feature of flexibility in the charter of 1897 may be examined in order to facilitate an explanation of the slightly different provisions of 1901. The Greater New York Charter, like its predecessors, left the lion's share of the salary-fixing power with the heads of departments rather than with the local legislative body.' Section 56, however, stated :
“The salaries of all officers whose offices may be created by the municipal assembly for the purpose of giving effect to the provisions of this act, shall, subject to the other provisions of this act, be prescribed by ordinance or resolution. The municipal assembly shall have power,
* The charter of 1873, L. 1873, ch. 335, sec. 28 (continued as sec. 48 in the Consolidation Act of 1882) introduced the element of conditional repeal very slightly in conferring salary-fixing power on the heads of departments, stating (italics the author's): "The number and duties of all officers and clerks, employees, and subordinates in every department, except as otherwise herein specifically provided, with their respective salaries, whether now fixed by special law or otherwise, shall be such as the heads of the respective departments shall designate and approve, but subject, also, to the revision of the Board of Estimate and Apportionment." It must be noted that the conditional repeal implied in the ital. icized phrase applied, by reason of a foregoing qualification, only to provisions of special acts omitted from the charter of 1873 and, later, from the Consolidation Act of 1882. The Consolidation Act fixed many salaries specifically and, between these and the salary-fixing power of the heads of departments, there remained little power for the Common Council under sec. 97 of the Consolidation Act (also taken from the charter of 1873): “The salaries of all officers, whose offices may be created by the Common Council for the purpose of giving effect to the provisions of this act, shall, subject to the other provisions of this act, be prescribed by ordinance or resolution * * * "
(italics again the author's). * L. 1897, ch. 378, sec. 1536, "* * * The head of every department, *** shall have power *** to fix and regulate, within the limits of his appropriation and subject to the restrictions, if any, hereinbefore prescribed, the salaries and compensation of said subordinates, appointees and employes.” Sec. 233 provided: “The salaries of all officers paid from the city treasury not embraced in any department shall be fixed by the municipal assembly and the board of estimate and apportionment, unless otherwise provided by law or by this act."