Charter Revision in 1901 Leaves the Situation Unchanged.

The Charter Revision Commission of 1900 did not attempt to go back of this. Required to report in December of the year of its creation, with only $25,000 at its disposal and oppressed by haste throughout, it was not disposed to reopen problems of which the Greater New York Commission had stopped short and which it had glossed over. Indeed, the fruit of the Charter Revision Commission is perhaps more accurately described, in a term often applied to it, as "the Amendatory Act of 1901" than as a charter. The report of the Commission boasted of no drastic intent:

"In preparing its recommendations for legislation it became necessary for the Commission to determine in the first place whether it would undertake the preparation of a charter different in form from the existing charter or whether it would embody its recommendations in the form of amendments to that charter. But the limited amount of time at the command of the Commission has rendered it impossible to do more than to deal with questions of substance; and it has seemed to the Commission that by presenting its views in the form of amendments to the charter as now existing, the legislature and the public generally would perceive more clearly what changes are proposed." The specific repealers2 which were listed at the close of the bill were confined to sections in the Greater City Charter. As for the rest, the broad saving and repealing clauses of 1897 were repeated almost verbatim.3

Special Laws Which Have Not Amended the Charter.

Not only did the revisions of 1897 and 1901 fail to integrate all the law relating to New York City, but the passage of special

'Report of the Charter Revision Commission to the Governor of the State of New York, Dec. 1, 1900, p. 3.

'L. 1901, ch. 466, Section Two, referring to the First Schedule appended to the act.

'Id., sec. 1608 (repealer); secs. 1609, 1610 (saving clauses).

acts that did not in terms amend the charter continued unabated. Some of these expressly amended those parts of the Consolidation Act of 1882 which, although active law, had not been included in the Greater City Charter. More, however, related to neither charter nor Consolidation Act. The latter situation was natural. The reasons for the passage of special legislation outside the charter were essentially those which, as an earlier paragraph has indicated, had caused New York City legislation after 1882 to scatter beyond the confines of the Consolidation Act. Although, as before, many of the unrelated statutes touched matters already treated in the body of the Greater City Charter, to which, by implication only, they added qualifications or exceptions or even outright repeals, the larger number were temporary or were so very restricted in application as to seem temporary. Neither charter nor Consolidation Act provided convenient handles to which to tie them.

The extent of the disunion in the sources of city government thus introduced may be judged from a few figures. The Ivins Commission, reporting in 1907, found that 650 special acts had been passed since the advent of the Greater City Charter, which did not amend it. Six hundred and eighty have been enacted. since, at the sessions of 1908 to 1921, inclusive.2 Comparison reveals still more clearly the frequency of the practice. Since the enactment of the 1901 charter, through the legislative session of 1921, 550 formal amendments have been incorporated in it; whereas, in the same period, there have been 1,002 special New York City acts passed without reference to it. Of the measures introduced between 1904 and 1921, inclusive, which have peculiarly involved the Metropolis, 2,545 have proposed to amend the charter; 5,220 have not referred to the charter.

'Report of the Charter Revision Commission of 1907 to the Governor of the State of New York, Nov. 30, 1907, in N. Y. Sen. Docs., 1908, vol. 2, p. 10.

For the details and sources of this and the following figures, see the table in Appendix. Discrepancies are likely between various computations of the number of special acts which do not amend the charter, because an element of judgment is involved in determining whether certain acts are to be regarded as special and peculiar to the city in question; any total on this point is an approximation only.

Adverse Comment on the Condition of the Statutory Sources of the City's Government.

Objections have not been lacking. The draft offered by the Greater New York Commission was vigorously criticised from the standpoint of its underlying form by a special committee of the Association of the Bar of New York City. "The proposed charter of the Commission," they reported to the Association on March 9, 1897,1 "is not a charter in any proper sense, and it is not a code. It is an imperfect compilation and to some extent a condensation of laws affecting the territory of the proposed Greater City." More specifically, they objected to indiscriminate reenactment of existing law, and to the blanket clauses which continued consistent legislation. They deplored the failure to use "the golden opportunity, not likely to be again afforded for a long period, to give these great communities an improved, clear, simple and harmonious system of local government."2 The report led to a resolution of the Association of the Bar at its meeting on March 9:

"that in the judgment of this association the enactment of the proposed body of law contained in that charter would give rise to mischiefs far outweighing any benefits that may reasonably be expected to flow from it; that ample opportunity should be given for thorough revision, simplification, and reduction in the form of the proposed charter; and that the true welfare of the communities to be affected by the proposed act will be best consulted by postponing the period at which consolidation shall take effect and by referring the bill for redrafting before its enactment into law."

Much the same criticism was levelled at the Amendatory Act of 1901. The New York Chamber of Commerce, in a letter pre

The committee was appointed January 12, 1897, with W. H. Peckham as chairman. Its report was printed as a pamphlet, along with the resolutions on the subject at the meeting of the Association of the Bar of New York City of March 9, 1897.

'On the constructive side, the committee suggested the more extended use of the device employed in connection with the building code, in the 1897 charter. See infra, p. 97 et seq.

pared by a special committee and addressed on October 20, 1900, to the Charter Revision Commission, stressed defects of form in the proposed charter itself, before turning to the structural aspects of city government. They admitted that under the circumstances, if the Commission allowed itself to be forced into making a report within the time allowed, it could not avoid cutting the knot by the use of general repealing and saving clauses. In this expedient, however, endless perplexities inhered. The examination of prior legislation was, the committee recognized, a heavy task. "Lawyers of high standing represent to us that this necessary provision involves almost insuperable difficulties and that it would require months of investigation to find out what is consistent and what is inconsistent." Better, however, this trouble at once than later; the Commission, they recommended, should ask for more time and money.

A decade later these objections to the form of the charter were forcefully summed up in a brief2 submitted on May 19, 1911, by the Committee on Amendment of the Law of the Bar Association, on the occasion of a joint hearing of the legislative committees on affairs of cities regarding the proposed " Gaynor Charter." Although pointed immediately at the mooted draft, destined to

This memorial is available as a printed leaflet, entitled, Letter from the Chamber of Commerce to the Charter Revision Commission, recommending Certain Changes in the Charter, October 20, 1900. The subcommittee from the Executive Committee of the Chamber, which prepared it, consisted of C. S. Smith, J. K. Todd, and G. F. Peabody.

This brief, which was submitted without oral argument, was reproduced in the bound typewritten transcript of the stenographic report, entitled, Hearings before the Joint Committee on Cities of the Senate and Assembly, 1911, vol. 2, pp. 664-82. The brief itself was entitled, "Memorandum on Senate Bill 1029, Int. No. 907." Its first and longest section is dedicated to the question of charter form; its concluding sections, pp. 676-82, take up other alleged defects. Perhaps the antipathy which the authors of the brief shared with other civic agencies to the auspices and the suspected intent of the proposed charter and to certain structural changes that it involved strengthened their hands in indicting it on a charge of which every revision since 1882 had been guilty. The brief did add, however, that "as a rule the proposed law is well and clearly expressed, and if it were complete in itself it might well receive our commendation in this respect" (p. 675). On July 13, a spokesman of the legislative committees on affairs of cities announced that a schedule of laws specifically repealed had been introduced in the charter draft in accordance with the suggestions of the Bar Association. Brooklyn Daily Eagle, July 13, 1911.

defeat later in 1911, the criticism was equally applicable to the existing charter, since no material changes were proposed either in the repealing and saving clauses or in the form and content generally. The brief summarized the unfortunate short-cuts taken. by commissions of 1896 and 1900. "The result has never been satisfactory. The existing charter is about as far as possible from being the instrument which a proper charter should be, and is exceedingly defective as a law." That the error existed, would not excuse, but aggravate, the fault of repeating it in any subsequent revision.

"It is manifest that a law which is merely a new compilation will only add to the existing confusion of the various statutes relating to the municipal government. Any new instrument ought to be so carefully prepared and be drawn with so much knowledge of the existing law, that it will be complete in itself and will not necessitate the examination of all prior statutes which are still on the statute books unrepealed and which run back to the year 1784. The bill in question does not do this. On the contrary, it will simply add to the present confusion. It has apparently been prepared with the idea of shortening the provisions of the present charter and this it does. But it does this only by the process of omitting certain provisions which still remain law, and which are to be found only through an examination of the existing charter and other statutes."2

The existing charter, declared the authors of the brief, has presented uncertainties enough, and they continued:

"Such a condition of affairs should not be tolerated. The charter of the City of New York should be complete in itself. Within this code, any citizen should be able to find the provisions and the statutes relating to the municipality. He should not be called upon to wade through a

1Ibid., pp. 675-6. 'Ibid., pp. 666-7.