Conflicting Evidences of Legislative Intent.

But, although silent in regard to its repealing effect, was there anything in the Consolidation Act or in the legislation leading to it which might be taken as an indication of the legislative intention concerning omitted legislation? The evidence is conflicting. (1) On the one hand there were indications of the purpose to make the Consolidation Act inclusive of all New York City law. The compilation of 1880, although legally quite separate from the Consolidation Act, served in fact and by common knowledge and with undoubted legislative intent as its basis. Of this compilation the legislature had declared that it was to be "considered as containing presumptively all special or local laws affecting the public interests in force in the City of New York, on the first day of January, 1880." More directly in point was the language of the act of 18802 which directed the preparation of a consolidation: "In making such revision the said commissioners shall not make any change in the meaning of existing laws, but shall seek to simplify and to mold into consistent acts all existing statutes upon matters embraced in such special and local laws." The term "all" was not found in the title of the Consolidation Act1 but was employed at one point in the act itself; section 2143, in explaining why certain foregoing sections had been taken in substance from the Codes of Civil Procedure and of Criminal Procedure, although they were to have no effect upon the latter, stated that the designated sections were to "be treated and considered as embraced in this act solely in order that it may contain all provisions of existing laws which are of special application in the City of New York." The possible implications of this wording are obviously lessened by its association, as an incidental explanation, with directions for the interpretation of a particular class of provisions in the Consolidation Act.

1L. 1880, ch. 595, passed on the same day as the statute directing the commissioners to proceed with the task of actual revision.

2 L. 1880, ch. 594.

"Italics are the author's.

"An Act to consolidate into one act and to declare the special and local laws affecting public interests in the city of New York.”

B Italics are the author's.

(2) On the other hand, the report of the commissioners who drafted the Consolidation Act expressly stated that they had omitted not only "laws which were temporary in their purpose" but also "laws which, though the basis of the existing order of things-the foundation of existing rights-seem not properly the subject for revision, as nothing affirmative remains to be done under them."1 Yet such acts could not be considered obsolete. In the words of the report, "They, like many general laws of the State, are necessary to be referred to from time to time ***." This important qualification is indeed recalled in the later language of the report: "It will certainly be no small gain if we can succeed in bringing into five hundred pages all the active, effective laws specially applicable in the City of New York."

Cases Which Point to the Survival of Omitted Legislation.

Such being the facts, the second phase of the question is one of interpretation. Have judicial decisions since clarified the problem of legislative intent in the omission of prior matter from the Consolidation Act?

An early decision by an intermediate court at once presents itself in support of the position that acts of more than temporary nature were continued in force despite omission from the Consolidation Act. Mayor, etc., of the City of New York v. Buel3 arose in the attempt of an employment agency to oppose the imposition of a penalty for failure to pay the license fee which a city ordinance prescribed. The basis of the ordinance was an act of 18224 that gave the common council "full power and authority to make and pass such by-laws and ordinances as they shall,

'Report of the Commissioners appointed under Chapter 594 of the Laws of 1880, with a Draft, etc., May 23, 1881, p. iv. This passage in the report has already been quoted from, and the policy discussed, supra, p. 11.

2 Italics are the author's.

(1884) 12 Daly 494, in the Court of Common Pleas on appeal from judgment in the District Court of the 3d district.

L. 1822, ch. 15. The ordinance in question dated to Apr. 30, 1827. It has been carried unchanged through the several revisions of the ordinances; it appeared, it may be added, in an edition of ordinances issued in 1894 (art. 20 of ch. VIII). This ordinance fixed the fee at $25 and $12 annually for renewal, with a penalty of $50 for each offense.

from time to time, deem necessary and proper for the regulation of intelligence offices," including, specifically, a charge for licenses at "such sum of money as the said common council may require." The Consolidation Act omitted this. In enumerating subjects in the jurisdiction of the common council, however, it conferred power to make ordinances "in relation to the licensing and business of *** keepers of intelligence offices," among certain other designated trades.1

Had the omission of the act of 1822 repealed it and with it. the ordinance, as the appellants contended? Conceivably, the court might have shifted the controversy from the line drawn by counsel and have held that the brief, vague, but broad mention of intelligence offices in the Consolidation Act covered, the substance of the act of 1822 and was to be regarded as a mere continuation of it on this matter, thus saving the ordinance, despite repeal of the act of 1822. Instead, Justice Daly, with the concurrence of his colleague, held squarely that the early act remained in force. The short opinion will bear quotation almost in its entirety.

"It does not follow, because, by the act of 1882, the local laws of the City of New York have been consolidated into one act, that a prior local law has been repealed. It must be repealed expressly, or by necessary implication.

Indeed, it has been said by Dwarris that the leaning of the court is so strongly against repealing the positive provision of a former statute by construction as almost to establish the rule of no repeal by implication (Dwarris on Statutes, 673, 674); and it is only where the provisions of the subsequent act are so contrary to or incompatible with the former that it will amount to a repeal of it; or where the whole construction of the subsequent act shows that it is intended to supersede it (Norris v. Crocker, 13 How. (U. S.) 429; Potter on Statutes, 155, 161, and cases there collected); which is not the case here.

1L. 1882, ch. 410, sec. 86, subd. 20. Ordinances under this section were subject to a provision in sec. 85, which permitted "penalties for each and every violation thereof, in such sums as it may deem expedient, not exceeding one hundred dollars Sec. 283, empowering police officers to trace missing articles, also mentioned intelligence offices, but in another connection entirely.

* *

I do not find in the language quoted from the report of the commissioners who framed the Consolidation Act anything to warrant the assumption of the appellant that the commissioners intended to repeal the act of 1822. But even if they had expressed that such was their intention, it would not be enough; the repeal must be in the subsequent statute itself, either expressly or by necessary implication.

All that has been done in the Consolidation Act in respect to the keepers of intelligence offices is that they are classified amongst those in relation to whom ordinances requiring them to be licensed may be passed by the Common Council; and in this respect the Consolidation Act is merely cumulative of the pre-existing law in 1822, and does not in any way repeal the provision in the act of 1822 that the persons obtaining the license should pay therefor such sum of money as the Common Council may require. The Common Council therefore had authority to enact the ordinance that keepers of intelligence offices should pay for licenses the sums before named, and that if any one kept an intelligence office without having procured a license, he should be subject to a penalty of $50 for each offense."

The situation, clearly, was not the extreme one where the revision not only omits the earlier act but does not even mention its subject matter; such a case (as later paragraphs will show) would probably present less, rather than greater, difficulty in holding the prior legislation to be in force. Even in its field, Mayor, etc., of the City of New York v. Buel was inconclusive. It was never passed upon by a higher court; apparently it has never even been cited in New York courts; no further decisions on the same point are found.

Other cases which have pointed in the same direction have given merely incidental or indirect indications. Thus the question in McKenna v. Edmundstone2 was whether provisions of

1

2

Shepard's, N. Y. Misc. Cits.; Silvernail's, N. Y. Cits., 1794-1898.

(1883) 91 N. Y., 231, aff'g. 10 Daly 410. See also Matter of Petition of Knaust (1886), 101 N. Y., 188, in which the court did not even mention the Consolidation Act in deciding that L. 1867, ch. 697, amended by L. 1868, ch. 288, did not repeal, by implication, L. 1866, ch. 367, regarding certain powers of commissioners of Central Park.

18751 which related specially to mechanics' liens in New York City had been repealed by the enactment, in 1880, of a statute2 covering mechanics' liens in the cities of the State generally. The problem primarily concerned the effect of general on prior special legislation. In holding that the act of 1875 had not been repealed, the Court remarked incidentally, "The New York Consolidation. Act incorporates (sec. 1807 & ff.) provisions found in both the act of 1875 and that of 1880, but we do not perceive that it affords any light upon the point here considered." This failure of the highest tribunal, at a time when the passage of the Consolidation Act of 1882 was freshly in mind, even to think of it as exhaustive of special New York City legislation was, at the least, significant.

Cases Which Point to the Repeal of Omitted Legislation.

Against these straws in the wind were certain cases which pointed to the opposite conclusion. Matter of N. Y. Institution for Deaf and Dumb3 may be regarded as leading, not only in point of time and the frequency of later citation, but also in the breadth of its dictum on the nature of the Consolidation Act. The litigation sprang from the fruitful field of street opening procedure. Had an act of 18655 providing for the opening of

3

1L. 1875, ch., 379.

'L. 1880, ch. 486.

'(1890) 121 N. Y., 234; 25 Abb. N. C., 31 (with note). In the Matter of Wheelock (1890) 121 N. Y., 664, was affirmed on the basis of this opinion. The lower court had already decided (1889), 21 N. Y. S. Rep., 369, that even if L. 1865, ch. 381, had conferred power over sewers on the commissioners of Central Park (which the court denied) the provision would be considered repealed by the vesting of jurisdiction over sewers in the commissioner of public works.

Of the 7 cases adduced by counsel in Matter of N. Y. Institution for Deaf and Dumb in favor of the proposition that the Consolidation Act repealed the statute of 1865, only one, People v. Jaehne (1886), 103 N. Y., 195, dealt with the Consolidation Act, and that concerned the peculiar relation created by its sec. 2143 as regards the Codes of Civ. Pro. and Crim. Pro. Of 8 cases cited by opposing counsel in favor of the continuing force of the act of 1865, only one, McKenna v. Edmundstone (1883), 91 N. Y., 231, touched the Consolidation Act, and that, as has been pointed out, supra, p. 41, was significant because it at once dismissed it.

L. 1865, ch. 565, sec. 8. Intervening legislation was also involved, but holding that L. 1874, ch. 604, had revived the provisions of 1865 after their partial eclipse under statutes of 1872 and 1873, the court set the question of consistency directly between the act of 1865 and the Consolidation Act of 1882.