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CHAPTER II. THE SOURCES TODAY-SPECIAL CITY LAWS. Provisions for Repeal in the Charters of 1897 and 1901–Examples of Non-Repeal by Omission–The Present Charter in Relation to Laws Prior to 1882—Inconclusiveness of Express Repealers in Connection with the Consolidation Act-Conflicting Evidences of Legislative Intent-Cases that Point to the Survival of Omitted Legislation-Cases that Point to the Repeal of Omitted Legislation--The Doctrines of Codification Consulted— The Legislative Heritage of Communities Absorbed in Greater New York-The Royal Grants as Continuing Sources of City Government. Where, then, is the law of New York City today?

The question comprises a complex of problems which the cautious but hurried and knot-cutting method of charter revision, reviewed in the preceding pages, has rolled up around the Consolidation Act of 1882 as an axis. These problems may be divided into two groups: (1) the problem of unrepealed legislation; (2) the problem of overlapping special and general legislation, especially the General City Law and the General Municipal Law, but involving also the systems of state law that govern the administration of justice, civil service, education, utilities, etc. The present chapter, in treating the first of these groups of problems, must consider unrepealed legislation applicable to the old City of New York, the legislative heritage that came to the Greater City from the communities merged in it, and, finally, the ancient royal granits as possible sources of city government today. The question of unrepealed legislation applicable to New York City naturally claims the major share of attention. It resolves itself into two phases: (1) the relation of the charters of 1897 and 1901 to prior legislation omitted hy them; (2) the relation of the Consolidation Act of 1882 to the earlier New York City laws omitted by it.

Provisions for Repeal in the Charters of 1897 and 1901.

The Greater New York Charter was not intended to exhaust the special laws applicable to New York City. The policy that characterized both the original charter and the Amendatory Act of 1901 in this regard has already been indicated. A recital of this exact provision is now in place. Prior legislation, in so far as it was inconsistent, was repealed by the sweeping clauses of sec. 1608:

“The act of the legislature of the State of New York, passed July first, eighteen hundred and eighty-two, known as the New York City Consolidation Act of eighteen hundred and eighty-two, and acts amendatory thereof, and supplemental thereto, and other acts of the legislature of the State of New York now in force relating to or affecting the local government of the City of New York, as heretofore constituted, are hereby repealed so far as any provisions thereof are inconsistent with the provisions of this act, or so far as the subject matter thereof is revised or included in this act, and no further. So far as the provisions of this act are the same in terms or in substance and effect as the provisions of the said Consolidation Act, or of other acts of the legislature now in force relating to or affecting the municipal and public corporations, or any of them herein united and consolidated, this act is intended to be not a new enactment, but a continuation of the said Consolidation Act of eighteen hundred and eighty-two, and said other acts, and is intended to apply the provisions thereof as herein modified to The City of New York as herein constituted, and this act shall accordingly be so construed and applied.”

On the other hand, sec. 1609 (making explicit what otherwise would have been understood in accordance with the normal rules of statutory construction) declared that omission should not be construed to mean repeal. It said:

“The mere omission from this act of any previous acts or of any of the provisions thereof, including said Consolidation Act of eighteen hundred and eighty-two, relating to or affecting the municipal and public corporations or any of them which are herein united and consolidated, shall not be held to be a repeal thereof."

Such were the provisions that determined the relation between the charter of Greater New York and the masses of prior legislation.

What of the relation of the Amendatory Act of 1901 to the original Greater New York Charter? The clauses just quoted were identical in both documents. The latter enactment, however, contained new provisions (Section Two, so-called, the body of the revised charter being Section One) that specifically repealed 156 sections in the charter of 1897. An attached schedule designated these by number and by title. This repealer was accompanied by the usual qualification intended to protect actions or proceedings already pending under the old law. In addition it was expressly stated that in so far as the revised charter repeated the substance of the old, whether found in repealed sections or not, it should be construed as a continuation merely and not as new legislation. The language of Section Two at this point recited:

“The provisions of this act, so far as they are substantially the same as those of laws existing on December thirty-first, nineteen hundred and one, shall be construed as a continuation of said laws, modified or amended according to the language employed in this act, and not as new enactments, and shall be applicable to all matters contained in the several sections of the said chapter three hundred and seventy-eight of the laws of eighteen hundred and ninety-seven which are repealed, modified or amended by this act. References in laws not repealed to provisions of law incorporated into this act and repealed shall be construed as applying to the provisions so incorporated.”

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The Amendatory Act of 1901 was silent regarding the disposition of those parts of the 1897 charter which it did not specifically repeal and which it omitted altogether; except in so far as the question was covered by sec. 1609,1 adjustments were left to implication and to the normal rules of statutory construction.

* O'Connor v. the City of New York (1906), 51 Misc., 560, aff'd by memo. 120 App. Div., 875, involved the question of the repeal by omission from the revised charter of sec. 262 of the charter of 1897. In taking up the problem, the court alluded at once to sec. 1609.

These repealing and saving clauses made the legislative intent clear, and left only the endless questions of detail that inhere in uncovering relevant provisions in earlier law and in determining whether such provisions are or are not consistent with the charter provisions involved in any contemporary situation. In the latter sense, the perplexities have been very real. The difficulty in discovering the effect of new law upon old law, it must be added, was aggravated by clauses of the charter which, at several points, injected questions of degree. Does a new provision sufficiently cover the subject-matter of the old to accomplish its supercession as matter “revised or included” in the charter? Is a new provision, although different in terms, sufficiently near "in substance and effect” to the old law to be construed as a continuation of it rather than as legislation de novo? To these problems, invited by the language of sec. 1608, a third was added by certain phrases in sec. 1610.1 This section was written into the charter as a legislative short-cut in the task of combining several municipalities. It declared that active provisions of law applicable to the old City of New York should be extended to the whole of the Greater City. Two qualifications were attached; the provisions must be of a “general and permanent” character; they must not be "in their nature locally inapplicable to other portions of the city.” All three questions have been more than a matter of consistency between the formal terms of new and old laws; they have involved the measuring of degrees and have required judgments regarding the practical effects of legislation.

*Sec. 1610 was identical in both L. 1897, ch. 378, and L. 1901, ch. 466. Its full text is as follows: “All of the provisions of all acts of the legislature of the state of New York, including said consolidation act of eighteen hundred and eighty-two, of a general and permanent character, relating to the corporation heretofore known as the mayor, aldermen and commonalty of the city of New York, in force at the time this act goes into effect, which are consistent with this act and its purposes, and which are not revised and included in or the subject matter thereof covered by this act, are hereby extended to The City of New York as herein constituted, so far as they are consistent with this act, and are not in their nature locally inapplicable to other portions of the city than the corporation heretofore known as the mayor, aldermen and commonalty of the city of New York. And the provisions of law thus extended to The City of New York as herein constituted shall apply to said city throughout its whole extent, anything to the contrary notwithstanding contained in the charter of any of the municipal or public corporations or laws relating thereto, which are by this act united or consolidated with the corporation heretojore known as the mayor, aldermen and commonalty of the city of New York."

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In view of the explicit saving clause of sec. 1609, no doubt could exist regarding the continuing force of omitted legislation where the omission was complete in the sense that the charter contained no provisions impinging upon the subject matter of the earlier law. Such situations, however, can arise but seldom. The details of the Greater New York charter ramify into so many fields and in origin touch so many of the pre-existing statutes that it would be difficult to find a special New York law on a topic wholly irrelevant to material now in the charter. This view, which may be deduced from the nature of the charter, seems to have partial confirmation in the absence of cases in point. Where the question of non-repeal by omission has actually been raised before the courts, it has been in connection with laws that have involved subjects treated in the charter.

An illustration is afforded in People ex rel. Pumpyansky v. Keating, which may be regarded as the leading case in point. The question here was the repeal or non-repeal of a statute of 18962 that had authorized the municipal assembly to grant permits for stands beneath the stairs of elevated railroad stations. The charter of 1897 omitted this provision from the enumeration of the powers of the local legislative body. Yet the charter was not wholly silent on the matter at issue. In clauses3 taken largely from the act of 1896, it empowered the municipal assembly, among other things, “to regulate the use of streets * * * and to prevent encroachments upon and obstructions to the same

and to this grant it attached the following condition:

* but they shall have no power to authorize the placing or continuing of any encroachment or obstruction upon any street

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(1901) 168 N. Y., 390, over-ruling 62 App. Div., 348.

* L. 1896, ch. 718, amending sec. 86, L. 1882, ch. 410, as previously amended by L. 1888, ch. 115.

•L. 1897, ch. 378, sec. 49, subd. 3.

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