and which should not be undertaken unless the execution can be thorough and the results definitive. It is a task, therefore, which in practice must either be performed before charter revision begins (and it has been in this sense, as a prelude to a revision of the charter with reference to governmental structure and other major problems of policy, that a consolidation of local laws has been especially advocated during the last decade),1 or it must be provided for afterward.

Aside from these practical obstacles, arising from shortage of time and inadequacy of staff, the plan of a charter that would be a complete consolidation of existing laws (without differentiation of parts subject to local control) presents a grave objection from the standpoint of current opinion regarding city government. It presumes a detailed charter, restrictive of city powers. These defects conspire to make the plan seem impracticable in execution and undesirable in consequences.

The possibilities thus far discussed ought probably to be rejected on one ground or another. The first group of methods would prolong the double disadvantage of uncertainty and of the dependence of the city upon many detailed statutory provisions. The second group would either assume the risk and inconvenience of a summary repeal, or, if it were sought to make the charter a real consolidation, would encounter both the practical obstacles to its preparation and the permanent embarrassment of an elaborate statutory basis for city government. What is needed, evidently, is some more flexible system of repeal.

(III) The Disposition of Prior Law Through Some Form of Conditional Repeal.

The third group of possibilities involves varying applications of what has been called conditional repeal. The term indicates a scheme whereby the Legislature repeals statutory provisions contingently upon the enactment of ordinances in their place. Although the repeal is technically a legislative act, the laws in

1

1 Supra, pp. 23-4, for illustrations of this point of view.

question are thus made subject practically to local modification. The advantages of the method are two-fold: it does not repeal out of hand but permits a transition by means of substitution; it transfers control over detail from state to local authorities.

Conditional repeal is not new in connection with New York City statutes; several instances of its use have been described at length in the preceding chapter. It was applied to the building laws by the charter of 1897,1 and to forty-six designated charter sections by the Amendatory Act of 1901; 2 less directly, it has been used with the limited grant of local power to fix salaries irrespective of the provisions of existing law,3 and it has been considered in connection with the proposed grant of local power to reshape administrative organization. Not only has the legality of these several precedents for conditional repeal passed unchallenged, but the decision in Cleveland v. Watertown 5 (arising in another connection) has tended to confirm the competence of the Legislature to authorize the local authorities, in carrying out a new charter, to dislodge statutory provisions in regard to city administration which are found to be unsuitable, although such statutory provisions have not been repealed specifically and although they are not positively inconsistent with the terms of the new charter.

Yet the execution of schemes of conditional repeal may present serious difficulties. The composite experience with the several uses of the device has shown three sources of trouble: (1) the problem of defining clearly just what provisions of the law are covered by the conditional repeal and are accordingly subject to local action in the future; (2) the problem of defining precisely what form local action must take in order to effect the repeal; (3) the less vexing problem of defining the power of the Legislature, before the repeal is effected, to amend a provision that has been conditionally repealed, and the related problem of defining the effect of such intermediate amendment by the

Supra, pp. 124-126.

(1918)_222 N. Y. 159, construing the Optional City Government Law of 1914. For a discussion, supra, pp. 126-129.

Legislature upon the subsequent status of the provision in question. These difficulties 1 are inherent but not irremediable; careful drafting can largely remove them. Their presence, however, constitutes an important factor in choosing between the several variations of the broad method of conditional repeal which are discussed in the following paragraphs.

(A) Conditional Repeal Through an Administrative Code.

The plan of an administrative code is akin in principle to the uses already made of conditional repeal under the Greater New York charter. Two important differences, however, distinguish this proposed embodiment of the idea. (1) The first is one of degree. Instead of dealing with one subject merely, as in 1897, or with a few miscellaneous sections, as in 1901, the plan of an administrative code involves so much of the material of the old charter that a sweeping simplification is possible. (2) The second Is a difference of method. Whereas the 1897 charter repealed all provisions on a particular subject, building regulation, without attempting to locate these laws or to indicate their repealable portions, and whereas the charter of 1901 designated certain sections in the old charter, without attempting to distinguish the varied matter within each section, the plan of an administrative code presumes that the Legislature itself will discriminate and segregate, breaking up the sections of the old charter and of the other special city laws and regrouping their provisions.

The one official attempt in New York State to work out this combination of features was prepared in connection with the illfated charter submitted to the Legislature of 1909. Even as a draft, the proposed code of that year failed, in ways that will shortly appear, to carry to a logical conclusion the idea on which it was supposedly founded. Out of it came an interest with which movements for charter revision have had to reckon ever since. The unsuccessful project of 1907-9 must still serve as the center in any discussion of the idea. The plan of an administrative

For an exposition of these problems as they have appeared in existing schemes, see especially, supra, pp. 101-104; 107-111; 116-120.

code for New York City seems to have originated with Mr. Ivins In any event, it was not a subject of controversy within the Commission, although two of the members, on the grounds of defects of hurried workmanship, eventually declined to approve the submission of the code-draft. The argument on behalf of the plan figures prominently in the Commission's reports. After reviewing the history of special legislation and of charter tinkering, the Commission said: 1

The foregoing review of the evils of continual legislative interference in matters of local government and of the extremely complicated character of the present city organization, suggests the necessity for dividing the charter into two parts, one to constitute the organic law of the city's being; the other, an administrative code for the guidance of the departments created by that law."

The Commission was impressed by an analogy that it believed was found in the relation of constitutions to statutory law in nation and in states; the charter of a city, it argued, should be a fundamental law. The report continued: 2

"The administrative code, if this plan of revision be adopted, should contain all of the purely administrative provisions of the present charter, amended so as to harmonize with the revised organic law. The Legislature should enact this code in the first place. Thereafter, its amendment should be in the control of a local legislative body, and should be made so difficult of enactment by the State Legislature as to prevent mandatory expenditures, improvements, increases of salaries, and other interferences in local affairs without the clearest possible demand from the responsible city authorities, or the people of the city as a whole."

Throughout its work, the structure of the charter, rather than the structure of government, chiefly engaged the energies of the Commission. It was to improvements in the form of the charter

Report of the Charter Revision Commission of 1907 to the Governor, Nov. 30, 1907, in N. Y. Sen. Docs., vol. 2, no. 10, p 18. Cf. virtual suggestion of repealable code in 1900 by City Club and by City Vigilance League.

'Ibid., pp. 19-20.

that the Commission pointed with the most satisfaction in its final report.1

The execution of the plan was marred by two defects. The first was the belatedness of its presentation and its incompleteness. Whereas the Commission reported to the Legislature on March 8, 1909 and a bill that embodied the draft of the charter, proper, was introduced at that time, the administrative code was not presented until April 20. When it was presented, it was offered only" as an aid to the legislative committees, and not as a bill for passage." 2 Yet this course was defended as a matter of policy. At a committee hearing on March 23, when question was raised about the missing code, Mr. Ivins said that the Commission could not submit it until it had received a yes or no on the charter; it would then submit it chapter by chapter, as each corresponding part of the charter was taken up for detailed consideration.3 Without the text of the code, however, the Legislature could not easily answer the question of a fundamental reorganization in the form of the charter itself.

1

A second and more important defect in the plan was the

Report of the New York Charter Commission to the Legislature, March 8, 1909, in N. Y. Sen. Docs., 1909, vol. 6, no. 27, p. 6. "The chief value of the Commission's work and the feature of it which has required the most time and care is its attempt to give intelligible and coherent shape to the entire charter and to separate the organic or structural matters of city government from adjective or administrative details."

'Letter of transmittal, April 20, 1909, printed with the code draft in NY. Sen. Docs., 1909, vol. 6, no. 27. A postscript expressed the dissent of J. H. Dougherty and N. A. Elsberg: "We cannot approve of the transmission of this document, the work of the Commission being in our judgment not sufficiently advanced for report to the Legislature." The Commission's report, op. cit., p. 7, made a virtue of what, one fears, was merely necessity, stating: "Because of the flexibility of the code and the ease with which it may be modified to conform with legislative decision upon the charter, and as well because of lack of time to frame to the full satisfaction of the Commission the several code chapters, it has been deemed wise to defer the presentation of the code until the legislative committees shall have reached their conclusions. The charter may be considered independently of the adminstrative code, but the converse proposition is not true."

Brooklyn Standard Union, Mar. 24, 1909. Mr. Dougherty was doubtless nearer the true explanation when he begged the committee not to press for an early submittal of the code; it was too much, he said, for flesh and blood to stand. Idem. Shortly afterward, the interested but hostile correspondent of the Standard Union wrote in the issue of April 6: "Contrary to general expectation, the Ivins' adminstrative code is being rushed to completion."