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(B) The Legislature may enact a new charter as a single, brief instrument, and may declare all other special legislation applicable to New York City government to be subject thenceforth to modification by local action.
(C) Features of the two foregoing procedures may be combined in a third variation of the method of conditional repeal. A new charter may be enacted to take effect on some future date, with a provision repealing all other special New York City legislation as of that date, and with the requirement that in the meantime the city authorities shall sist all this prior legislation and shall incorporate necessary provisions from it in a coherent body of ordinances.
Such, in the barest outline, are the alternatives by which the simplification of the statutory sources of the city government may be attempted. The ground can now be retraced more slowly, and each alternative examined in turn.
(1) The Old Method of Blanket Repeal of Inconsistent and
Blanket Continuance of Consistent Law. The possibilities indicated under the first heading can be quickly dismissed. It would be a calamity, a quarter of a century after the adoption of the Greater New York Charter, to copy the expedient for which even then shortage of time was a poor excuse. The effect would be to prolong indefinitely the statutory confusion that has long surrounded the city government.
The difficulties that have attended upon the use of loose repealing and saving clauses in the New York charter have been indicated. In the first place, it is uncertain what laws actively apply to the city today. The factors that have combined to produce this condition need be recalled only briefly. (a) The New York City Consolidation Act of 1882 (which, like all other special New York City legislation antedating the Greater New York charter, remains in force except in so far as it has been repealed specifically, or by reason of inconsistency with later statute law, or by reason of the fact that its subject-matter has been revised or included in some charter provision) has been assumed to be the foundation of the Greater New York Charter; but the Consolidation Act of 1882 cannot be clearly proved to have exhausted earlier legislation, and the search for active law on any point, if it is to be absolutely sure, must examine the statutes back to 1784.1 (b) After 1882, furthermore, the legislation was again scattered by the enactment of laws that did not in terms amend the Consolidation Act.2 (c) The charter of 1897 did not attempt to clarify the confusion but merely repealed provisions which were inconsistent or the subject matter of which it covered in terms or effect.3 (d) The charter of 1897 further created uncertainty by conferring on the Greater City an unknown legacy of powers formerly possessed by the smaller consolidated municipalities, and it complicated matters still further by extending through the area of the enlarged city all such provisions of consistent law affecting the old City of New York as "are not in their nature locally inapplicable to other portions of the city.”4 (e) The Amendatory Act of 1901 did not cure the situation; if anything, it left it worse in that, although it specifically repealed numerous sections of the charter of 1897, it continued parts of the latter that it did not reprint. (f) Since 1897 the passage of special acts which have not in terms amended the charter and which frequently have amended neither charter nor Consolidation Act has gone on unchecked at the rate of two for every formal charter amendment. As a result, the boundaries of the statutory sources of New York City's government are intricate on all sides and at several points are quite obscure. In the second place, aside from the difficulty of finding out all the provisions of law that may apply to a given situation, the question of consistency or inconsistency can be answered only by judicial or administrative decision. The disclosure of the real charter proceeds slowly, as situations present themselves acutely enough to provoke such decisions. Phases of the city's law are still unresolved.
Such are the elements of uncertainty that inhere in the policy
Supra, pp. 35-52, for an analysis of the problem of repeal under the Consolidation Act.
* Supra, pp. 10-15.
Supra, pp. 28-32, for a recital of the repealers and saving clauses of the Greater New York Charter and of the Amendatory Act of 1901; Pp. 32-35, for examples of the application of these provisions in the courts.
Supra, pp. 52-56.
•Supra, pp. 80-82, for a skeletonized presentation of the situation, the evolution of which is traced broadly in the first chapter.
of continuing consistent and repealing inconsistent prior law. The extent of the resulting inconvenience cannot be measured merely in public actions litigated in courts of record; its real extent could be read, if it were possible to trace it at all, in perplexity, investigation, and delay in the round of public administration and also in private disputes that distantly involve the city's law. But the inconvenience that results from uncertainty is not the sole, nor even the greatest, disadvantage attendant upon this policy of repeal. Its inevitable effect is to conserve statutory details and to place these beyond the reach of the local authorities. In so far as a new charter allows these to continue without increasing local power over them, it detracts from whatever seeming brevity may be given to its formal contents and whatever seeming breadth may be given to its grant of power.
These disadvantages might be lessened, of course, through the use of a list of specific repeals, whereby the more patently superseded or unnecessary laws might be disposed of at a stroke. Such a device at the best would be a partial corrective, however, unless the repealers were exhaustive (and to make them so would constitute a quite different policy of repeal, discussed under the next heading); it would still be necessary to fall back upon general clauses of repeal. Furthermore, no extensive use of specific repealers is possible without a close examination of the existing statutory sources. It is sheer waste to enter far on such an examination except under a plan that purposes to cover the whole and to dispose with finality of what it finds.
No new charter can genuinely simplify the statutory basis of New York City's government if it introduces general clauses that repeal inconsistent and permit the continuance of all that is consistent in existing law. The experience of the city, while it furnishes ample precedents, condemns the further use of the device.
(II.) The Outright Repeal of All Prior Law Omitted from a
The second group of possibilities, characterized by the definitive repeal of prior legislation, deserves more respectful consideration. The objective—a charter that in itself will express all the active provisions of special law applicable to the city government-can be approached by two courses that are very different in method and in consequences.
On the one hand, a relatively brief charter might be drawn, and, without any attempt at detailed examination of the earlier statutory sources of city government, all prior legislation might be cleared away by a slashing phrase. On the other hand, the existing legislation might be treated more conservatively, and, at the price of much pains and with the final result of a relatively lengthy document, the charter might be made a veritable consolidation of all active provisions of law applicable to the City of New York. One of these courses is a counsel of courage, perhaps of rashness; the other, of caution and patience; both at least avoid the line of least resistance into which previous charter revisions have so unfortunately slipped. The two possibilities require separate comment and appraisal
(A) A brief charter accompanied by the sweeping and immediate repeal of all prior legislation is a novel and adventurcus proposal in the light of the city's history. The earlier chapters have shown the extent to which the laws affecting the city lie outside the formal charter. If the charter were shortened, the relative importance of the omitted matter would probably be increased. Would it be safe to repeal all this outlying legislation at a stroke? If a ready and sure reply were possible, the statutory confusion that engulfs the charter would not be truly chaos. No certain answer can be extracted from the adjudicated cases in which application has been given to provisions illustrative of the mass of law in question.1 Vital issues, it must be admitted, have not been in evidence. If the policy of a sweeping repeal were adopted, doubtless the most serious risk—the possible disturbance of existing property relations—could be off-set in large measure by the use of a clause preservative of existing rights; a suggestion for such a clause, if not an exact pattern, is found in the phrases attached to the Brooklyn Consolidation Act of 1888.2
* Supra. pp. 34, 48.
* L. 1888. ch. 583. “An Act to revise and combine in a single act all existing special and local laws affecting public interests in the City of Brooklyn. Sec. 35 recited: “ * * * all local and special acts passed prior to Jan. 1, 1888, relating to the corporation of the City of Brooklyn' designated in sec. 1 of title 1 of this act or to the administration of the Nevertheless, although one cannot in candor raise alarms over the dangers involved, the scheme of a sweeping and immediate repeal in connection with a relatively brief charter must be declared a faulty method of disposing of an elaborately interwoven fabric of statutes. The disturbance of the existing legal basis of numerous details of administrative procedure, in the absence of provision for a transition, is enough to condemn it. If the choice lay between such a method and the former method of loose repealing and continuing clauses, doubtless it would be preferable to incur the possible risks of drastic, outright repeal and to rely upon later legislation to correct any extreme situations that might appear in practice. Fortunately the choice is not so narrow; other methods are open.
(B) The second variation of the method of sweeping and immediate repeal of prior law contemplates a longer charter—a charter that would be a genuine consolidation of all the active provisions of law applicable to New York City. The plan implies a detailed scrutiny which, going back of the charters of Greater New York, back of the New York City Consolidation Act of 1882, back also into the legislative histories of the other amalgamated communities, would comb the session laws from the beginning. It is a task which has not been done for forty years and which has needed doing nearly as long. It is a task which the preparation of a digest-compilation of the special statutes affecting the municipalities now included in the Greater City, published in 1922 after nearly eight years spent in preparation, has made appreciably easier. But it is a task which cannot be done quickly
property or affairs of said corporation, except * *” (here the act named four specific acts) * ** “are hereby repealed; provided, however, that nothing in this section contained shall abrogate, annul, impair, or in any manner affect the corporate powers, rights, privileges or franchises of the said 'the City of Brooklyn,' or any lien, contract, right, title or interest heretofore acquired by said corporation or by any other person The remainder of the proviso was the usual stipulation to protect actions already instituted. The use of the term, “corporate powers” in this connection is of doubtful wisdom. It is one thing to attempt to protect the vested property interests of the city; it is quite another matter to preserve powers and thus to complicate future questions as to the competence of the city to act by introducing an obscure if not unknown quantity into the definition of local power. For further comment on this point, infra, pp. 151-2.
*Supra, p. 25, for a description of its scope.