point, that of 1888,1 which permitted the construction of arcades over the sidewalks around Madison Square Garden.

That the illustrative acts which have just been cited were in some sense temporary, despite their permanent aspect, becomes clearer when they are compared with such a measure as that of 18872 which assigned jurisdiction over certain streets to the department of parks and which, for all its very particular scope, was as lasting as the general rule to which it made exception; or the series of acts3 for the construction and maintenance of public baths; or the act of 18854 which regulated the height of buildings in New York City-all of which, it may be added, were carelessly passed without reference in terms to the Consolidation Act. In so far as the enactments that were left hanging in the air were really temporary in any of the three senses outlined in the preceding paragraph and did not merely seem temporary because of the narrow scope of their subject matter, the blame must be lodged upon the form of the original revision.

A third reason why legislation over-spilled the Consolidation. Act was the passage of acts which ostensibly at least applied to all cities within certain population groups. A favorite category was a population of 800,000 or over at the last decennial enumer

'L. 1888, ch. 534.

"L. 1887, ch. 179.

L. 1883, ch. 425; L. 1887, chs. 209, 227; L. 1888, chs. 402, 411; L. 1889, ch. 452, this last providing for an ex officio board of bathing-house

commissioners.

'L. 1885, ch. 454.

Examples were: (1) applicable to cities of 500,000 or over, L. 1886, ch. 151, regulating the hours of labor on street and elevated railways; (2) 800,000 or over, L. 1884, ch. 182, fixing compensation of patrolmen in the police department; L. 1884, ch. 234, fixing the compensation of uniformed members of the fire department; L. 1885, ch. 555, fixing the compensation of police surgeons and doormen; L. 1886, ch. 322, regulating the price of illuminating gas; L. 1887, ch. 565, fixing the salary of commissioner of docks; (3) 900,000 or over, L. 1887, ch. 218, fixing the compensation of chiefs of battalion in the fire department; (4) 1,000,000 or over, L. 1885, ch. 486, creating a relief fund in the police department; L. 1891, ch. 4, relating to rapid transit development and supervision; (5) 1,200,000 or over, L. 1888, ch. 539, providing regulations for the protection of consumers of coal; (6) 1,250,000 or over, L. 1895, ch. 1006 regulating procedure in street closing in a manner so fundamental that, since neither the charter of 1897 nor that of 1901 repealed this act, Ash, in his Greater New York Charter, Annot., 4th Ed., prints the act in amended form, after the charter proper, as part of the charter in a more realistic sense. This act, it is fair to add, was treated as a special city act in that it was submitted to New York City and was accepted by it.

ation. Brooklyn alone was within hailing distance of the old City of New York. In 1880 its population was 599,495, as compared with 1,206,299 in the Metropolis. The gap was closing, however, and their problems were becoming assimilated; by 1890 Brooklyn's population was 838,547. Even during the Eighties, therefore, it was not mere indirection to legislate for cities of 800,000 and over. But why, in 1887, fix the salary of chiefs of battalion in the fire departments of places of 900,000 and upwards? This smacked of a subterfuge that was as petty as it was legally unnecessary at a time when the state constitution did not prohibit special legislation for cities. To legislate in general terms on such a matter as rapid transit was doubtless wholesome; here the problem was at once fairly distinct from the routine of city. business and a question for a long view ahead. In such cases it might pay to risk the element of confusion that is inherent between general and special municipal legislation.3 But to regulate the minutiae of salary scales by legislation that was ostensibly general only added complications without bringing the cities one jot nearer to a municipal code.

As a result of these influences-carelessness; the difficulty of articulating temporary legislation; the formally general scope of

In 1880, Buffalo, the third city, had only 155,134 inhabitants; the combined populations of the 9 largest municipalities in the state, outside the metropolis and Brooklyn, was 491,369. It was not until 1920 that Buffalo passed the half-million mark, and then by a few thousands only.

'The constitutional classification of cities and the provision of the local suspensory veto on special legislation were added in the new Constitution of 1894, Art. XII, sec. 2. The Constitution of 1846, aside from prohibiting the incorporation of villages by special act (Art. of Amendment III), expressly permitted special legislation for city purposes: Corporations *** shall not be created by special act, except for municipal purposes (Art. VIII, sec. 1). The only express restriction was: "No private or local bill, which may be passed by the Legislature, shall embrace more than one subject, and that shall be expressed in the title." For a further discussion, see infra, pp. 51, 70. The New York legislature may have been influenced by the example of states which, in the face of constitutional requirements of general legislation, were beginning to employ a classification of cities; among these states were Pennsylvania (Const., 1873, Art. III, sec. 7) and New Jersey (Const. Amendment, 1875, Art. IV, sec. 11). The principal reason for the enactment in New York State prior to 1894 of laws ostensibly applicable to groups of cities, however, was probably the fact that special legislation was being attacked and the legislature was instinctively utilizing whatever changes in form might serve to disarm the criticism.

For a discussion of this problem, see infra, p. 59.

other measures-the cohesion which the Consolidation Act brought to the laws concerning New York City was in large part destroyed. Why did the charters of 1897 and 1901 fail to correct the disintegration?

The Greater New York Charter Fails to Integrate the Law Anew.

The failure of the Greater City Charter to centralize the law anew was the natural consequence of the circumstances under which its authors worked. First, they approached their task in the cautious spirit that seems to have infected charter revisers from the beginning. Second, unusual difficulties, and additional grounds for conservatism, inhered in the task of combining under one body of law several municipalities, each with its own cherished powers and its own obscure legal history. Third, shortage of time hurried these cautious men through their complicated problem.1

The circumspection of the Greater New York Commission was recalled in remarks of Seth Low, one of its members, before the New York Constitutional Convention of 1915. Alluding to the process by which the charter developed, he said:

"The result is not only that the charter of New York is a very bulky document, but it is estimated that approximately ten thousand laws affect the administration of the City of New York and its powers, surrounding the charter, so that we are not dealing with a charter that has been made out of hand *** but we are dealing with a charter that is the growth of two hundred and fifty years, and I venture to think that the gentlemen of this convention will feel as I do, that it is a tremendously serious proposition

*

The secretary of the Council of the New York City Club remarked later: "The enactment of the charter of Greater New York of 1897 is a matter of recent history * *. It is hardly necessary to recall the insufficiency of the sum of money provided by the act creating the commission; the hurried character of much of the work done, especially at the last; the employment of different men to draft different parts of the charter, each without knowledge of what the others were doing; and the unseemly manner in which the bill was hurried through the legislature, despite its many serious and obvious weaknesses," J. W. Pryor, in Rochester Conference for Good City Government, 1906, p. 129.

to suggest that a charter which is a growth like that should be torn up by the roots and the city compelled to start over again."1

Small wonder, then, that the logical opportunity offered at the formation of the Greater City was deliberately neglected.

"Then, if ever, was the time to provide an entirely new charter for the City of New York; but that commission, like its predecessors, declined to undertake that great responsibility. Possibly something of that decision was due to pressure of time, but we were restrained, sir, by the recognition of the fact that we were dealing with a growth, not with a document that was given out of hand by the Legislature. To illustrate the significance of the situation, let me call the attention of the convention to the fact that when the corporation counsel of New York City was asked to prepare an amendment to the charter that would permit the city to establish a central purchasing bureau, it was necessary to provide for the repeal or modification. of approximately one hundred different laws-approximately, if not exactly."2

To this historical reason for caution was added the legal argument for a detailed charter. The Committee on Draft, in their report to the Greater New York Commission on December 24, 1896, thus envisaged their problem.

"The established rule of law which prescribes that a charter granted to a municipal corporation must be construed so strictly that nothing may pass by bare inference, but every substantial power must be found in the express. terms of the grant, has added greatly to the labors of your Committee. It would have been comparatively easy to have drawn a charter in general terms, with concise sections, comprehensive in character. This, however, would have left to the varying and uncertain rulings of the courts

1New York Constitutional Convention, 1915, Revised Record, pp. 1964-5.

the extent and sufficiency of the powers conferred, and would have led to special legislation, when anything new or doubtful pertaining to the general grants arose for municipal action. To confer upon the Greater New York a charter which should render the city self-governing, it became, therefore, prudent and necessary to endow it, in general and in detail, with every right, power and privilege essential to municipal independence, subject to the sovereignty of the State. This method was further enjoined by the chief duty devolved upon the Commission, which is to effect a consolidation of the various municipalities so that there may be no break or jar in the unity and integrity of the single corporation, and no lack of power or supremacy in its central government."1

The result was natural. The charter of 1897 was long and detailed. But it did not possess the exhaustiveness that might have compensated for its prolixity. It was by no means as inclusive of New York City legislation as was the Consolidation Act of 1882, upon which it was largely based.2 Instead, it fell back upon a three-fold expedient. By brief saving clauses,3 it continued all consistent prior law. Blanket fashion, it repealed whatever was inconsistent with itself. By a few broad phrases, it gathered up, for possible future use, whatever was compatible among the powers and duties of the various local governments which Greater New York supplanted.5

1

Report of the Committee on Draft of Charter, to the Greater New York Commission, December 24, 1896, the quotation being taken from the reprint as given in Birdseye, The Greater New York Charter (1897), p. xiii.

'The drafters of the Greater City Charter did not indicate, officially, the derivation in the Consolidation Act of each section of the charter. That task has since been performed by private commentators; see Ash, The Greater New York Charter, annotated (4th ed., 1918), pp. xxxvii-lxv; or Birdseye, The Greater New York Charter (1897), pp. xli-xlv. Slightly less than one-third of the sections of the Consolidation Act were carried into the charter of 1897. Ash, op. cit., in Appendix I, pp. 1243-1315, selects and reprints sections of the Consolidation Act deemed to be still in force. L. 1897, ch. 378, sec. 1609.

Id., sec. 1608.

Secs. 1, 3, 4, 5, but especially, for the city as a whole, 1615, 1617, and, for particular agencies, 41, 1586, 204, 274, 358, 517, 547, 616, 886, 1058, 1168. For further comment, infra, p. 52-56.