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(B) Conditional Repeal of All Special Laws Affecting the City

Government, Without Detailed Segregation by the Legislature of the Parts Subject to Local Control and Without Time Limit.

A second use of conditional repeal would consist in a brief stipulation that, consistently with the terms of the new (and presumably shortened) charter, the local legislative authority might modify all statutes specially affecting the government of the City of New York, with the possible exception of certain statutes specifically enumerated. This method would avoid the double difficulty noted in connection with the proposal of an administrative code. It would extend the principle of conditional repeal through all or nearly all of the statutory sources of the City government; yet it would not throw the task of an immediate examination of these sources upon the shoulders of men pressed for time and preoccupied with the broader aspects of the charter. But it, too, has defects that warrant its rejection if a more satisfactory escape can be found.

In the first place, it invites on a magnified scale those difficulties of drafting and those uncertainties in execution that have been noted in connection with earlier, partial uses of conditional repeal under the Greater New York charter. Not all the acts that affect New York City, affect New York City peculiarly; not all the acts that peculiarly affect New York City, affect the government of the City, as distinguished from private or semiprivate interests therein; even the acts that specially affect New York City government, are frequently not involved as whole acts, but only in respect to scattered provisions therein. The method of repeal now under consideration would entail a definition by a broad phrase 1 of the class of provisions in the statutes

* E. g. (to quote from a recent proposed draft of a shortened charter): "The power of legislation conferred upon the City by this Act includes the power to supersede, wholly or in part, as to and within the City of New York or to re-enact in modified form, so as to have the force of law with respect to and within the City, any law or portion of law of the State of New York, heretofore or hereafter enacted, which deals with any matter solely of municipal or local concern in or to the City of New York, including, among others, all matters concerning which powers are delegated to the City by this Act, save in respects as to which power is not so delegated *** ."

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of New York State that were thenceforth to be subject to modification by the local authorities. Even the most careful drafting could hardly devise a phrase that would not leave in the future endless uncertainty what statutory provisions were or were not subject to local control.

If the plan were adopted, it would be important in the interest of orderliness to require the local authorities to exercise their broad power of superseding statutory provisions only by specific reference to the statutes repealed or modified.

In the second place, the method would allow the precious opportunity of charter revision to slip by without guaranteeing an end of the present confusion in the statutory sources of the City government. The plan of course would permit, but it would not definitely invite, let alone require, an early concerted examination and consolidation of the provisions of law applicable to the City

The scattered condition of the City's law could go on indefinitely. The situation would be relieved, to be sure, by reason of the transfer of the amending power from the state capitol to the city hall. Even this advantage would be largely compromised, however, by the fact that it would be hard, not only to say whether the pre-existing statutory provisions relevant to any situation were subject to local modification, but even to find out what statutory provisions were relevant.

(C) Repeal of All Special Law Affecting the City Government,

Contingently Upon the Preparation of a Local Consolidation of the Useful Provisions Therein.

The search for a practicable method of disposing of the masses of special statutes not covered in the charter leads to a final alternative. This method combines features of the two schemes of conditional repeal already discussed. In its bare essentials, it would involve the following steps: (1) the enactment of a new and shortened charter, to take effect upon a date fixed at least two or three years in advance; (2) the provision therein for the repeal, as of that date, of all statutes or parts of statutes affecting the government of New York City except such as the Legislature might specifically reserve from repeal; (3) the concomitant requirement that in the meantime a local body (appointed, perhaps, by the law department of the City) 1 should examine all legislation thus subjected to repeal and should prepare an orderly consolidation of whatever in it was of current use; (4) thenceforth, this consolidation would be subject to local modification.

Within these essential outlines of the plan, several lesser though important features can be variously adjusted. One feature concerns the submission of the local consolidation to the State Legislature. It is obvious that a report of some kind should be rendered, since the preparation of the consolidation would be pre-requisite to the completion of charter revision. Doubtless it should be made the duty of the local authorities in this report to recommend the re-enactment of such statutes, if any, within the scope of the repeal as might be thought to need a continued statutory basis. Thus an opportunity would be afforded for corrective or precautionary action, especially necessary on the border-line between legislation affecting public and that affecting merely private interests. As for the local consolidation itself, it is hardly desirable that the Legislature should pass it; it would be enough, by a separate enactment, to recognize and to confirm it as the consummation of the new charter.

A second mooted feature concerns the relation between the local consolidation and the common ordinances. Should they be united, or should they continue as separate bodies of law? The principal factor in determining the answer is the method of amendment provided for each; the only justification for keeping them separate would lie in the provision of a different, and presumably more difficult, procedure for the modification of the consolidation based upon provisions previously contained in the statutes. This factor depends in turn upon elements-especially

"A precedent for this is found in the manner of appointing the commissioners who, under L. 1879, ch. 536, prepared the compilation approved by L. 1880, ch. 595, entitled, The Special and Local Laws Affecting Public Interests in the City of New York, and of appointing the commissioners (in practice, the same men) who. under L. 1880, ch. 594, and L. 1881, ch. 572, prepared the New York City Consolidation Act of 1882. Supra.

pp. 8-9.

the organization of the local legislative power and the attitude taken toward it—which lie outside the present study. If an opinion may be ventured here, it must be said that (assuming the charter itself is not enacted locally) there should be only one method of local legislation and one body of law subject to modification locally. Accordingly, the local body charged with the original consolidation should be instructed to consider the existing ordinances also and to throw them into a common melting pot along with the mass of conditionally repealed

As matters now stand, the ordinances parallel statutory provisions and needlessly duplicate their language at many points.

Conclusion.

The alternative methods of disposing of the masses of prior special law have been passed in review. The actual choice of a methol must be conditioned by circumstances, and no abstract a priori judgment regarding the relative merits of these methods can be final. One thing can be said in conclusion, however, Under the circumstances that have characterized charter revision in the past and that are likely to attend it in the future, the method last described seems preferable. Its advantages have been revealed in the discussion of the defects of the other alternatives. This method seems to combine most satisfactorily the elements of inclusiveness and finality, and at the same time to avoid choking the process of charter revision with a task of multitudinous detail.

It is presumed that any attempt at the simplification of the city's law will cover, not only the statutes relating directly to the present and to the old City of New York, but also those relating to the numerous local governments that at one time or another have existed within the area of what is now Greater New York. The nature of the vague devolution

the present city of the powers of these former governments has been noted in a previous chapter.1 This vague devolution should be terminated. The fact that little practical resort has been made to it as a source of power does not render it less desirable to cut off even the possibility. As long as it remains, an unknown quantity is injected into the definition of city power, and both the city authorities and those who have dealings with the city are invited to a recurring search into the obscure legislative histories of long defunct governments. After more than a score of years of experience under the Greater New York charter, it should be quite feasible, with the advice of the administrative departments, to find whether there are items, touching power or procedure, which should be expressly saved from the general repeal; if so, these can best be picked up and preserved in the local consolidation outlined in the preceding paragraphs. Furthermore, the general saving clause in the new charter, in so far as it touches this matter, should concern the City's heritage of property interests, not governmental powers. A similar policy should be taken toward the royal charters, which survive as sources of city government.1

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'Supra, pp. 52-56.

Simplification of the statutory sources of city government must reckon with more than the accumulations of speciai law. An earlier chapter sought to show the extent to which the sources of New York City government lie in general laws.2 An attempt should be made to clarify, in its application to the metropolis, the usual rule that loosely governs the relation of general and special statutes on municipal matters. Doubtless, much material (penal provisions, for example) previously found in the charter and in other special laws could be dropped bodily and left to the appropriate chapters of the consolidated laws. On the whole, however, the circumstances of New York City government seem to dictate that a clearer paramountcy should be given to the laws peculiarly applicable to it. The City must be conducted under an elaborate body of special provisions, made by the state or the locality; furthermore, in so far as the special statutes affecting the City are reduced to simpler terms, it is presumably with the intent of broadening the scope of local power. It is advisable, therefore, that the charter should

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