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Commission's failure to propose that the whole of the administrative code should be subject to alteration by the local legislative body. On this point the Commission's own reports were somewhat confusing. The draft of the charter submitted on April 8, 1909, stated that “The council may alter, amend or repeal the administrative code as expressly provided therein." 1 This left the process of repeal to be clarified in the draft of the code. When that document finally appeared, it stated: “The council shall have power by ordinance to repeal, modify or amend the following chapters and titles of this act.” 2 A blank space followed. It was thus indicated that the code would be divided in practice into two classes of provisions—the unenumerated parts being amendable only by the State Legislature. But the all-important enumeration was not given. In their report no more than a vague hint was given of the principle that the Commission intended to be applied : 3
“It (the council) may also amend certain specified sections of the administrative code which are so local in their operation that they may properly be altered by the city legislature, thus relieving the State Legislature from
consideration of unnecessary administrative detail.” The stark interrogation of the blank spaces in the draft of the code crowned the uncertainty that characterized throughout the manner in which the Commission submitted this proposal.
Did not the Commission fatally compromise the idea with which they worked? Are not the advantages of segregating detail in an administrative code destroyed unless the whole of it is subjected to alteration locally or at least to some mode of amendment that differs substantially from that applicable to the charter proper ? Certain advantages may be admitted to exist regardless of a different method of amending the administrative code. A shorter charter might be more readily popularized; the fundamental features of city government comprised in such a charter might by custom (although in the absence of a constitutional amendment no legal barrier would protect it) achieve relative immunity from tinkering by friend or foe. But against such possible advantages must be set the serious disadvantage of a further scattering of the law. To the charter and ordinances of the city, the scheme of 1909 would have added in effect two new elements, the one consisting of the parts of the administrative code made subject to local amendment and the other, of the parts subject to legislative control—and this is not to mention the uncoordinated special laws and relevant provisions in the general statutes. The proposal could not have failed to result in increasing the confusion in the legal sources of the city government. Unless all of its provisions are subject to a wholly different method of amendment (presumably by local authorities), the separation of a civil administrative code from the charter is not simplification but complication.1
*Ch. III, “The Council," sec. 35. The drafts of the charter and of the code are available, among other places, in N. Y. Sen. Docs. 1909, vol. 6, no. 27.
'Ch. II, “ The Council," Title II, "Powers," sec. 28a. • Op. Cit., p. 11.
After the still-birth of the Ivins report, the plan of an administrative code passed under a cloud. It was directly repudiated by the Legislative Joint Committee on the Charter of the City of New York (to which the work of the Commission was referred as to a receiver in bankruptcy); it was not broached seriously at any stage in the charter revision movement which, beginning under the auspices of the city authorities in 1910, side-tracked the other proposals but went down in defeat in the dramatic charter controversy of 1911. The argument with which
* In so far as the Commission dropped from both charter and administrative code details (and did not throw them into the penal law, the code of criminal procedure, the public officers' law, and other general statutes, this being another phase of their scheme of simplification), the Commission's recommendations did affect the power of the state over the city. Their 1909 report stated: “The charter will consist of 75,000 words; the present charter contains over half a million. The administrative code will be no larger than the charter. The charter and code together will be about one-quarter the volume of the present charter." Op. Čit., p. 7. It must be added, on the other side of the account, that the repealing clauses in the Commission's draft of the code repealed the Consolidation Act and the Greater New York Charter and their amendments, but said absolutely nothing about other legislation affecting the City of New York.
the Legislative Joint Committee dismissed the plan showed that "simplification,” like most slogans of reform, is double-edged: 1
“The tendency of modern legislation is toward simplification and the inclusion of all cognate matter in one instrument—a policy most recently exemplified by the enactment of the ‘Consolidated Laws.'
All who have had occasion to examine a charter find it much more convenient and less confusing if they are able to find under one title, chapter or other division, related subject-matter. In this view we are confirmed by the opinion of officials and others, who have had occasion to constantly study or interpret the provisions of the existing charter.
In view of the plan of the Commission in regard to the authority to be conferred upon the local legislative body, it seems to have been deemed desirable that the provisions which would be affected by the power to repeal or amend should be contained in a statute separate from the charter. It is unnecessary to discuss at length the extent or limitation of the power of the Legislature to delegate the authority to repeal or amend legislative acts in the manner proposed; for in the opinion of the Committee such comprehensive power should not be delegated to a local legislative body even if constitutionally possible.
Thus another reason advanced by the Commission for an administrative code separate from a charter ceases to
be controlling." But the Legislative Joint Committee did not quite turn its back on the idea of dislodging some material from the body of the charter. Recalling the example of the conditional repeal of certain sections in 1901, their report said :2 "It will be necessary, however, to retain in a proposed charter many provisions
* Report of the Legislative Committee on Charter of the City of New York, transmitted to the Legislature, Jan. 28, 1910, in N. Y, Ass. Docs., 1910, no. 5, pp. 7-8.
Op. Cit., p. 10.
which properly have no place therein, but which must remain until the board of aldermen passes ordinances with reference thereto.”
Advocacy of an administrative code, however, did not cease with the death of the Ivins' proposal. Speaking on November 19, 1914, Mayor Mitchel was quoted as saying:1
“In my opinion, the City charter should be divided into two distinct portions. There should be a general grant to be the organic law of the City. This should be brief and broad. Then there should be an administrative code corresponding to the by-laws of a corporation, which should be easily amendable by the local legislative body, subject of course to the Mayor's veto."
Endorsed from its inception by the elements dedicated consciously to municipal reform, the idea of simplification through an administrative code completely subjected to local control became almost a commonplace with civic organizations.3
Nevertheless, despite the many off-hand endorsements given it, the scheme of an administrative code to be adopted by the Legislature simultaneously with the enactment of a new charter is open to grave objections. The question of the inclusiveness of the code is fundamental. Will the code, as passed by the Legislature, cover all the statutory provisions that now affect the government of New York City, with the exception of those
*N. Y. Times, Nov. 20, 1914, 9:1. See also comment by Mr. McAneny (then President of the Board of Aldermen and chairman of the Charter Revision Committee of the Board of Estimate) before the Academy of Political Science, Proc. of the Academy of Political Science, April, 1915, vol. V, no. 3, p. 228.
'See, for example, remarks in the Proceedings of the Buffalo Conference for Good City Government, 1910, pp. 34-90.
* For example, the New York City Club's Committee on Charter Revision, 1921: “The most immediate and practicable method for relieving this situation would be a separation of the subject matter of the present charter into a charter proper and an administrative code * * * The general scheme of classification recommended by the Ivins Commission could well be followed, but with a sharper emphasis upon the point that all provisions placed in the Administrative Code are to be subject to local amendment or repeal.” Report on Charter Revision, Prepared by the City Club for Submission to the New York Charter Commission, Dec. 1921, pp. 4-5.
embraced in terms or effect in the new charter and of those definitely repealed? If the answer is in the affirmative, the scheme of an administrative code is defensible in theory; but it then falls before the practical difficulty of effecting a comprehensive examination and consolidation of local laws in the midst of the onerous burden of charter revision. If the answer is in the negative, the scheme misses the heart of the problem of simplifying the statutory sources of city government. There would remain, outside both charter and code, a vague borderland of statutes. These ought somehow to be disposed of. To dispose of them by a simple declaration that inconsistent provisions were repealed and consistent provisions were continued would entail the evils already discussed. To repeal them outright without examination would incur the risks already indicated. The third alternative would be to dispose of them by some method of conditional repeal. The unfortunate result of the latter course would be to give rise to at least four, and probably five, bodies of law specially applicable to New York City: first, the charter; second, the code; third, statutory provisions not covered by either charter or code, but subjected to conditional repeal; fourth, the common ordinances; fifth, there would probably also be a number of special statutes not subjected to conditional repeal and standing quite separate.
Such are the disadvantages inherent in the proposal that an administrative code be adopted simultaneously with a new charter. It is fair to note, however, that there is one important consideration which may favor the adoption even of a partia! code. The Legislature might deem it necessary, in giving its assent to a new charter, to make preliminary adjustments in the outstanding details of administrative organization and procedure, before putting these at the disposal of the local legislative body. If the legislature were to assume this attitude, a code would be a reasonable expedient. In such a case, however, the code should be characterized by the following features: it should be represented expressly as a beginning only; the local legislative body should be given the same power over the borderland of statutes applicable to the city that it has over the code.