or sidewalk, except the temporary occupation thereof, during the erection or repairing of a building on a lot opposite the same, nor shall they permit the erection of booths and stands within stoop lines, except for the sale of newspapers, periodicals, fruits and soda water, and with the consent in such cases of the owner of the premises." The Appellate Division was impressed by the fact that the clauses just cited were "a revision of the matter contained in the act of 1896 and a re-enactment of a portion of such act, but the Legislature has left out of it that portion of the Consolidation Act which related to stands and booths under stairways of the elevated railroad structures." On this basis the

Appellate Division held that the omitted part of the act of 1896 had been repealed. The Court of Appeals, however, over-ruled the contention of the intermediate court and held that the city had not lost the power in question.

Indeed, far from upholding repeal by omission where the subject-matter is in any way covered by the terms of the charter, the construction adopted by the courts has favored giving effect to omitted legislation if it is possible to do so. In Baker v. The City of New York,1 for example, the point at issue was whether, in face of the fact that the charter provided for the appointment of stenographers by the coroners and said nothing about compensation for transcripts, the provisions of prior law regarding fees still applied. The Court said:

1

"The provision of the charter that the coroners shall have stenographers is in no way inconsistent with the provisions of the Consolidation Act. The charter does not as fully describe the duties of such a person as does the Consolidation Act, nor does it regulate his salary. It was not the purpose, evidently, of the framers of the charter, to revise and collate all the provisions which were in existence at the time relating to the office and to the powers and duties of coroners. The intention was to recognize in a general way the existence of such offices, leaving the regulation of their powers and duties to be governed by the earlier and more ample provisions on that subject in the Consolidation Act."

1 (1900), 67 N. Y. Supp., 814, 816; 56 App. Div., 350.

By the same reasoning a provision of the charter stipulating that clerks of commissioners in condemnation proceedings should be paid out of certain funds was held not to repeal a prior statute which required that the clerks be designated by the corporation counsel.1 These examples illustrate the manner in which the courts have resolved in favor of prior legislation the doubts that must frequently arise in connection with the provision found in the general repealing clause of the charter,2 which states that such legislation is to be regarded as repealed, not only in so far as it is inconsistent, but in "so far as the subject matter thereof is revised or included in this act." This interpretation is allied to, and sympathetic with, the principle stated in the concluding phrases of the repealing clause itself and repeatedly applied,3 under which the charter is regarded merely as a continuation of the Consolidation Act and other prior legislation wherever, although differing perhaps in terms, they are the same "in substance and effect." Therefore even unwritten practices of government before 1897 may guide the interpretation of the explicit terms of the present charter.5

But of how much practical importance, one may ask, is the pre-existing legislation dating back to the Consolidation Act of 1882 which, omitted from the Greater New York Charter, has been carried along by its saving clauses? What would have been the practical effect if it had been repealed outright? The adjudicated cases afford at the best a slender basis for a judgment.

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Matter of Board of Public Improvements (1902), 77 App. Div., 351. 2 Sec. 1608.

See, for example: Worthington v. London Guaranty and Assurance Company (1900), 164 N. Y., 81, 85, "The student of the charter is constantly impressed with the fact that this is not a new enactment, but a continuation of the Consolidation Act of 1882 and its amendments as modified;" Matter of East 176th St. (1898), 33 App. Div., 365, 53 N. Y. Supp., 875, aff'd by memo. 158 N. Y., 668; People ex rel. Bierach v. York, et al. (1899), 36 App. Div., 185, 55 N. Y. Supp., 462; in re Opening of East 169th St. (1899), 40 App. Div., 452, 58 N. Y. Supp., 100, aff'd by memo. 161 N. Y., 622; People v. Jensen (1904), 99 App. Div., 355, 90 N. Y. Supp., 1062, aff'd by memo. 181 N. Y., 571.

For an exposition of the rule on this point as it has been developed in the New York courts, see, for example, Matter of Estate of Prime (1893), 136 N. Y., 347, and cases there differentiated.

3

Ghee v. Northern Union Gas Co. (1899), 158 N. Y., 510, the question at issue here being the location of the power to grant franchises for the use of the streets for gas-lighting purposes.

In People ex rel. Pumpyansky v. Keating, which has been shown to have involved the continuance of a law empowering the city over a particular matter, "it was not contended by either side that the city could grant any such right unless by virtue of such statute."1 The effect of a contrary decision would presumably have been the enactment, or equally troublesome attempt to enact, a charter amendment. Most of the instances which raise the question of omitted legislation involve the details of procedure, and not powers. Although technical, they are not for this reason. unimportant. In one of the cases already cited, Matter of Board of Public Improvements, to hold (said the Court) that the law in question had been repealed by omission from the charter would require a procedure in condemnation proceedings "which would increase the cost of these proceedings, now extremely burdensome to the city and the property owners."

The Present Charter in Relation to Laws Prior to 1882.

The charters of 1897 and 1901 left unrepealed all prior legislation (a) which was not "inconsistent or (b) which was not "the same in terms or in substance and effect" or (c) which was merely "omitted." Such legislation was obviously to be found in the Consolidation Act of 1882, as amended to 1897, and in laws enacted between 1882 and 1897 which, although specially applicable to the City of New York, were not in the form of amendments to the Consolidation Act. But what of laws that antedated 1882? This raises the most difficult legal question that is presented in the whole subject of repeal. For whatever laws were left unrepealed by the Consolidation Act and are not inconsistent or identical in terms or in substance and effect with the provisions of the present charter are still in force.

'People ex rel. Hofeller v. Buck (1920), 193 App. Div., 262, 266. It may be noted that when the Pumpyansky case was before the Appellate Division, the two judges who dissented from the opinion that the statute of 1896 had been repealed were inclined to rest their dissent upon the saving clause (sec. 41) of the charter which continued the pre-existing ordinances ard upon the argument that the city still retained a general power over streets.

The problem that lies back of 1882 is not merely one of the application of a legislative intent; it concerns the intent itself. Did the omission of prior matter from the Consolidation Act accomplish its repeal by implication?

The question involves contingencies that are normally dormant and can at the worst be infrequent. Charter revision must, however, take account of potentialities. Old law has a way of bobbing up unexpectedly long after the event, and this is the more likely in those large fields in which the law of the city touches private property and, in connection with such matters as street improvements, assessments, taxation and the rest, not only creates relations between municipality and individuals but also leaves these to multiply in rights and obligations between private persons as transfers of real estate go on through the years. A single random illustration will suffice. In 1903 a case was decided that involved an action for ejectment on a tax sale for taxes of 1877-9, advertised and held in May, 1883, under a law of 1871 which governed such proceedings. Any uncertainty in the intent of the Consolidation Act of 1882 to repeal or to continue prior law not only affects legislation from the beginning but also is carried into the present situation.

Inconclusiveness of Express Repealers in Connection with the Consolidation Act.

The first phase of the question is one of fact. What, exactly, did the Consolidation Act of 1882 and the legislation that led immediately to it say of repeal? The Consolidation Act itself contained neither specific nor general repealers nor, as far as New York City was concerned, did it contain any general saving clause. Section 2143, which dealt with the effect of the act, had to do primarily with the relation of the Consolidation Act to the Codes of Civil Procedure and of Criminal Procedure and the Penal Code. Its only phrases of general application provided:

'Ely v. Azoy (1903) 39 Misc. 669.

(1) that the passage of the Consolidation Act should not affect penalties, forfeitures, rights of removal, etc., in actions already commenced, although under laws superseded or repealed by it; (2) that nothing in the act should “be construed as affecting any existing provision of law so far as such provision applies to any portion of the State other than the City of New York." Otherwise, the Consolidation Act was silent regarding its effect on prior legislation.

The Consolidation Act must be considered, however, in connection with an earlier and separate enactment. On June 16, 1881,2 at the instance of the commissioners who had already prepared the compilation of local laws and were then at work on the draft of the Consolidation Act, the legislature repealed by specific reference a considerable number of statutes which dated back to 1784 and which were deemed by the commissioners to be obsolete or otherwise inapplicable. But this, too, left the question of prior legislation open. In view of its express closing statement that the repeal of legislation by it should not be construed implying that any portion not herein mentioned remains in force," it could scarcely be argued-a doubtful contention at best-that the specific enumeration in this repealing act should be considered exhaustive.

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This second provision was added by L. 1883, ch. 276, passed April 21, which altered 34 sections in the original Consolidation Act. The only other change made in sec. 2143, however, set forward the date when the Consolidation Act should be considered to be generally in effect from March 1 to April 1, 1883.

L. 1881, ch. 537, "An Act to repeal certain acts and parts of acts therein named, so far as the same relate to or apply to or within the city of New York," effective July 1, 1882. Sec. 1 stated simply, "The following acts and parts of acts are hereby repealed, so far as the same relate to or in any manner apply to or within the city of New York * * *" Sec. 2, which followed the enumeration, read, The repeal of any of the said laws shall not revive any provision of law repealed or superseded by any such law or portion thereof. The repeal by this act of the said acts or portions shall not be construed as implying that the same or any portion thereof has remained in force down to the passage of this act, or as implying that any portion not herein mentioned remains in force." Nothing more was said. This act was amended with reference to a slight error in a particular act which it had repealed, by L. 1882, ch. 301. It may be added that L. 1880, ch. 245, had repealed a number of acts by specific reference, in order to clear debris away from the Code of Civil Procedure; some of these naturally related to New York City.