tance that prompted this defeat was reflected in the elimination from the home rule amendment, while under consideration by the Senate Committee on Affairs of Cities in 1922, of the provision by which the powers of a city containing more than one county were extended to county employees. It is fair to add, however, that the same Legislature at last enacted an amendment to the charter' which has greatly enlarged the power of the central city authorities over county salaries, while balancing this extension of control by the abolition of the scheme of separate county tax rates and by thus shifting the cost of county government to the city treasury.

The observer who scents partisan motives at work here may profitably speculate on the reasons why, far from being prominent planks in the program of the minority floor leadership and city spokesmen during the last few years, bills proposing a broad control over city salaries have not even been introduced.' He is naive indeed if he is surprised. The history of the provisions on salary-fixing has from the beginning shown rather less of the will to power than of the will to escape it.

The Existing Provision as Precedent and Warning.

To the student of the statutory sources of the government of the Greater City, these considerations are part of his lesson but neither they nor the proposals to broaden the charter provision permitting the change of salaries are his main interest. The provision, as it is already embodied in section 56 of the charter, has for him a double significance. (1) On the point of law, it is a precedent. Limited though its application has

1L. 1922, ch. 58.

'The absence of such bills is emphasized by noting that the one bill touching the salary-fixing power broadly had an exactly opposite purpose. At the 1921 session A. Int. 1190, A. Pr. No. 1314, introduced by Mr. Burchill, a N. Y. Co. Democrat, proposed the addition of sec. 56a in the charter, providing that no salary of any officer coming within the scope of the preceding section should be lowered below the amount fixed when the act should have taken effect. This bill passed the Assembly on April 14, 1921, by the formally recorded vote of 142:00. N. Y. Ass. Jour., 1921, p. 2362, Becoming S. Rec. No. 524, it ended with reference to committee.

been, section 56 has been an accepted use of a scheme of conditional repeal whereby, without detailed enumeration, express language in statutes can be set aside by local action. (2) In point of draftsmanship, it is a warning. The needless ambiguities already noted give it a lesser place, as a pattern to avoid, beside the two other examples of conditional repeal which have been reviewed.

III.

Proposed Application of Conditional Repeal in a Blanket Grant of Power to Reorganize Departments.

Another seeming short cut to a flexible charter lies in a broad grant by state law of local power to reorganize departments despite the provisions of existing law. It must be regarded in legal theory as a slightly different application of the scheme of conditional repeal. Its possible applications to New York City are two-fold: (1) as an amendment of the existing charter, divorced from any attempt at general revision; (2) on a more ambitious scale, as a basic assumption in a new and briefer charter.

Interest in the more modest possibilities of the device grew as the recent movement for municipal reorganization in the

1

A partial application has long existed. Charters since 1873 (L. 1873, ch. 335. sec. 28) have authorized heads of department to consolidate bureaus established by law. As amended, the phrase now runs (L. 1901, ch. 466, sec. 1543): Any head of department or borough president, may, with the consent of the Board of Estimate and Apportionment, consolidate any two or more bureaus established by law, and may change the duties of any bureau ✶ ✶✶" Partial applications, along a different line, will be found among the acts which, from time to time, have reorganized the structure of departments. See e.g., L. 1916, ch. 528, sec. 4, amending charter sec. 595, subd. 2, in connection with the creation of the Department of Plant and Structures: The Board of Estimate and Apportionment may in its discretion direct the transfer of the powers and duties of the Police Department, the Department of Street Cleaning, the Department of Parks, the Department of Public Charities, the Department of Correction, the Fire Department, the Department of Health and the Board of Trustees of Bellevue and Allied Hospitals in respect of the construction, maintenance, upkeep and repair of buildings and structures, and the repair of boats, vehicles, apparatus and equipment, to the Department of Plant and Structures."

United States progressed beyond its earlier preoccupation in the central structure of city government and began to place increasing emphasis upon such underlying administrative processes as the allocation of functions, personnel methods, financial control, and the like. A reflection of this interest was the recommendation of the Joint Legislative Committee for the Investigation of the Finances of New York City in 1916 that power be given to the City authorities to consolidate departments, which the committee estimated would save two million dollars annually. No bill to amend the charter in this direction, however, was introduced at the time. The chairman of the JointLegislative Committee, Senator Elon R. Brown, doubted the competence of the Legislature to enact it without a constitutional amendment. For three years thereafter his so-called "home rule amendment"' embarrassed the advocates of a more comprehensive constitutional grant. Passed only by the Senate in 1916, the "Brown" amendment slipped through both houses in 19173 but lapsed in the following year.

In 1918 a bill which proposed to amend the New York City charter by giving power to consolidate and abolish departments

1

Report (the first) of the Joint Legislative Committee for the Investigation of the Finances of the City of New York, Feb. 7, 1916, in N. Y. Sen. Docs., vol. 14, no. 25, p. 21. This recommendation was one of fourteen items in the Committee's program of proposed legislation. The investigation had first been authorized by resolution of Apr. 24, 1915, largely provoked by New York City's complaint of embarrassment in the face of a direct tax; the committee was continued by resolutions of Mar. 30, 1916, Jan. 15, 1917, and Apr. 5, 1917.

2 As introduced in 1917, Sen. Brown's amendment (S. Int. 53, Pr. 1730, as given in N. Y. Sen. Jour., 1917, p. 1900-1) stated, as the gist of its positive side, "the Legislature may by general laws confer upon cities such powers of local legislation and administration as the Legislature may from time to time deem expedient." It does not seem that this wording would have removed beyond all possible doubt by a court disposed to a strict view, the question of the power of a city to set aside the express provisions of existing law regarding departmental organization or anything else.

S. No. 1730; A. Rec. No. 310.

'S. Int. No. 446, Pr. No. 1263; A. Rec. No. 345. Introduced Feb. 14 by Sen. Foley, D., of N. Y. C.; passed Senate Apr. 5, by 40:1 (Sen. Lockwood, R., of Kings in negative) N. Y. Sen. Jour., 1918, p. 1029. As A. Rec. No. 345 it died in the Assembly after reference to committee. Apr. 8, N. Y. Ass. Jour., 1918, p. 1662.

passed the Senate. It did not fare as well in the next session,' but passed the Senate in 1920 in slightly altered form,' and, by this time a hardy perennial, was introduced without result in the session of 1921.3

Judicial Construction of the Optional City Government Law in Its Relation to Local Power Over the Statutory Sources of Administrative Organization.

The constitutional feasibility of the scheme was strengthened in 1918 by the ultimate vindication of the Optional City Government Law for second and third class cities,' after four years of clouded legality. The act permitted any city in these classes to choose by referendum any one of six forms of government. These were briefly described as regards their central organs and the powers of the latter.

'S. Int. No. 140, Pr. No. 141 (Sen. Foley); A. Int. No. 642, Pr. No. 680 (Mr. Donohue), proposing a new charter section, 44a, providing that Board of Aldermen, on prior recommendation of Board of Estimate and with the Mayor's approval, might abolish any board, body, commission, department or office and transfer its powers and duties to any other agency. These identical bills died in committee.

S. Int. No. 1673, Pr. No. 2141 (Sen. Walker), proposing a new charter section, 113, to authorize the Board of Estimate, with the concurrence of the Board of Aldermen, to transfer functions from one department to another. Advanced to third reading without reference and passed unanimously in the Senate on Apr. 21 (N. Y. Sen. Jour., 1920, p. 1678); becoming A. Rec. 778, ended in Assembly with reference to the cities' committee. A Int. 591, Pr. 619 (Mr. Donohue). No such proposal was introduced in 1922, doubtless in view of pending charter revision.

*L. 1914, ch. 444. A few points of its legislative history may be recalled. A slightly similar bill, applicable to third class cities, was introduced in 1911, in view of the wish of certain elements in Lockport to secure a new type of government. N. Y. Times, Apr. 16, 1911, 8:1. In developed form it became part of the program of the Municipal Government Association in collaboration with the Conference of Mayors. After the failure of the bill to move in the regular session of 1913, the Conference of Mayors urged action at the special session and the Governor endorsed the proposal in his special message, July 8, 1913. N. Y. Sen. Docs, 1913 (extra sess.), vol. 30, no. 15. Action came in 1914. S. Int. No. 659 (A. Int. No. 835), A Rec. No. 420, passed in the Senate, Mar. 25, by 47:2 (the negative voters being one Republican and one Democrat, both up-State), N. Y. Sen. Jour., 1914, p. 1361, and passed in the Assembly, Mar. 26, by 135:4 (the opposition consisting of three upState Republican members and one Democratic member from Brooklyn) N. Y. Ass. Jour., 1914, p. 2047. Approved Apr. 16.

1

The crucial necessity of the act was to dovetail the new forms, thus outlined, into the very extensive body of pre-existing legislation which affects any city. This was partly accomplished by the familiar legislative devices of continuing all present powers and of repealing inconsistent provisions of law. The acute difficulty lay in the clauses' which left it to the city to make a selection from pre-existing law, using bases of selection other than the question of inevitable inconsistency with the stated terms of the Optional City Government Law. At this point, the act predicated a distinction between powers, on the one hand, and, on the other, their location with a particular administrative agency and the regulation of the method of their exercise. While, therefore, pre-existing powers continued, the council under any one of the new schemes was given authority to "confer by ordinance upon any officer or employee of the city any powers, or to impose upon any such officer or employee any duties, theretofore conferred or imposed upon any officer or employee by provision of law." It was provided further that "whenever by any such ordinance all the powers and duties of any appointive officer or employee of the city are conferred or imposed upon one or more other officers or employees, such ordinance may abolish the office or employment." Similarly, authority was given to supersede provisions which governed the method of carrying out any power. It was said that the council should have power to regulate by ordinance the exercise of any power and the performance of any duty by any officer or any employee of the city; and upon the passing of any such ordinance every provision of the charter or of the second class cities law, applicable to such city, regulating the matters, or any of them, provided for in such ordinance, shall cease to have any force or effect in such city.""

Doubt was thrown upon the legality of this vital feature of the act by an opinion of the Attorney General on Jan. 11, 1916.5

'Art. I, sec. 4.

'Art. I, sec. 8.

Art. III, sec. 37, entitled "Effect upon provisions of existing law of adoption of ordinance regulating subject-matter thereof."

Qualifications were here attached to preserve existing restrictions on the methods of granting franchises, disposing of real estate, or incurring indebtedness.

Report of the Attorney General, 1916, pp. 79-95.