certain streets been superseded by sections in the Consolidation Act which regulated such procedure generally? In answering this question, the Court said more than was required and more than, in strictness, it decided, since it was really an instance not of omission but of substitution. The fact that the Consolidation Act not only covered the subject matter of the act of 1865 but even embodied some of its provisions became a central point in the decision. The Court recognized this:

"We have not, therefore, a case where some prior statute has been wholly omitted and no provision of any kind substituted in its place. But this is a case where the prior provision of law has been entirely dropped, and provisions under the same subject are found in the new act. Under such circumstances, how is the Consolidation Act to be construed? It was the manifest intention of the Legislature that it should take the place of the numerous special and local acts applicable to the City of New York, which had been enacted for more than a century, and to rescue them from the obscurity, uncertainty and difficulty caused by their scattered condition; and that intention should have effect" (p. 239).

The Court might have avoided altogether the question of the inclusiveness of the Consolidation Act, considered in its entirety, and have rested the decision upon the relation of the act of 1865 to the revised provisions on street opening procedure. This positive basis of decision was indeed suggested in the opinion although as a secondary consideration:

"Against the construction contended for by the petitioner, the general rule may also be invoked, that where two statutes relate to the same subject-matter, although not in terms repugnant and inconsistent, if the latter one is plainly intended to prescribe the only rule that shall govern, it will repeal the earlier one." (p. 240).

'Citing on this point, inter alia, Heckmann v. Pinkney (1880), 31 N. Y., 211; People v. Gold and Stock Tel. Co. (1885), 98 N. Y., 79; People v. Jaehne (1886), 103 N. Y., 182, 193.

Actually, the decision went very little further, as its concluding passages will show:

"Some of the authorities go so far as to hold that where prior statutes are revised or consolidated into one act, any part of the prior statute omitted must be deemed to have been repealed, although the matter omitted is in no way. provided for in the new law. But we need not go so far in this case. Here sec. 8 of the act of 1865, contained provisions for the assessment and payment of the expenses of improving streets, and complete provisions upon the same subject, somewhat dissimilar, however, are contained in the Consolidation Act, and hence they must be deemed, under all the decisions, to take the place of the prior provisions, and to furnish the only rule upon the subject.

We have, therefore, reached the conclusion that sec. 8 of the act of 1865, although not specially repealed, was superseded by the Consolidation Act ***." (p. 241).

The relatively limited scope of the decision must guide the reading of its broad statements regarding the inclusiveness of the Consolidation Act. The Court considered the title of the act; particularly it marked the language of section 2143 which explained the reasons for including material from the Codes of Civil Procedure and Criminal Procedure.1 "It is thus plain," the opinion said, "that it was the legislative intention that the Consolidation Act, made up of many acts taken from many books, should contain all the special and local acts applicable to the city of New York," and in a later paragraph, after examining certain cases2 in other jurisdictions, it said, "These views

1Supra, p. 38.

2

Only one of these, however, involved the question of the exhaustiveness of a codification of the whole body of statute law within one jurisdiction, as distinguished from the revision by a particular act of a prior act or acts on the same subject. Bowen v. U. S., 14 U. S. Ct. of Claims, 162, involved the intent of the Revised Statutes of the U. S. "The object was to relieve one from the necessity of having recourse to the earlier statutes, except in cases of grave doubt, or of absolute conflict between different sections of the revision." The other cases cited, Ellis v. Paige (1822), 1 Pick., 43, and Bartlett v. King (1815), 12 Mass., 537, involved only effects in the revision of one act by another

are quite applicable to the Consolidation Act, which was intended to revise and consolidate the whole statute law relating to the city of New York."

Subsequent cases have not removed the uncertainty from this dictum. Of the opinions which have since cited Matter of New York Institution for Deaf and Dumb in some connection or another,1 five only have dealt directly with the Consolidation Act. They, too, have always involved the substitution of material in the Consolidation Act, not its outright omission.

Matter of Board of Street Opening 2 stressed the broad intention back of the Consolidation Act, as evidenced in its history, to make it comprehensive of New York City law. The point immediately at issue concerned a peculiar saving clause attached to that part of the Consolidation Act which regulated the opening of streets, etc.: "Nothing contained in this title shall be construed as affecting any provision of special acts relating to particular districts or portions of the city, so far as such provisions are inconsistent with the provisions of this title." A statute of 18651 had provided that in the area north of 155th Street property owners should not be assessed for more than half of the construction cost of any street over a mile long. Later legislation, in 1874,5 had restated this limitation as applicable in the 23d and 24th wards. Did the saving clause just quoted operate to continue the provision in the scope given to it in 1865? The decision turned upon the determination that it had already been repealed, since the commissioners who drafted the Consolidation Act indicated in the notes to their

1

Shepard's N. Y. Ct. of App. Cits., and the author's observations, locate 27 such cases (not including Matter of Wheelock), of which 5 dealt with the effect of the Consolidation Act of 1882; 12 with the effect of codification of some kind, although none with the codification of the body of law relating to a city; 2 with the bearing of the Rochester charter on prior legislation; 8 with the effect of omission in a case of revision of one act by another, of which 3 cited Matter of N. Y. Inst. for D. and D. only to distinguish it.

3

(1895) 86 Hun., 267.

Sec. 1008, applying to Title 5, "Opening Streets, Avenues, and Public Places," found in Ch. XVI, "Taxes and Assessments," L. 1882, ch. 410.

L. 1865, ch. 565, sec. 4.

L. 1874, ch. 604.

final report that the law of 1865 was to be regarded as superseded by acts of 1871 and 1874.1

Poth v. Mayor, etc., of N. Y.2 assumed without argument that two special acts had been "repealed or superseded by the Consolidation Act, which provided for all cases of assessments." Mercantile National Bank v. Mayor, etc., of N. Y.,3 held that the Consolidation Act stated all the conditions under which assessments could be reviewed by certiorari and that resort could not be made to the more generous terms which had been stated in an act on the subject in 1880.

Ely v. Azoy turned upon the question whether, where the Consolidation Act embodied the substance of previous law in practically identical language, it should be regarded merely as a continuation of the earlier provisions, thus saving from disturbance actions and other proceedings in progress at the time of its enactment. In holding that it should be so regarded, the Court mingled with its decision dictum on the broader problem of repeal:

1

"The Consolidation Act, however, although a new act, was intended to be a compilation and codification of a great number of acts relating to the City of New York, and undoubtedly operated to repeal absolutely all inconsistent provisions of the former laws, and all provisions of former laws omitted in the consolidated statute. But as to provisions re-enacted in the Consolidation Act in the

The note read: "1865, ch. 565, Comp. 998, superseded by 1871, ch. 534, and 1874, ch. 604." Report of the Commissioners appointed, etc., with a Draft, etc. (1881), p. 403. But reference to this made it necessary to distinguish Matter of N. Y. Institution for the Deaf and Dumb, which had held that sec. 8 of L. 1865, ch. 565, was still in force when the Consolidation Act was adopted. The ground of distinction was that the particular subject-matter of sec. 8, unlike that of sec. 4, was not covered in L. 1871, ch. 534, nor L. 1874, ch. 604. It can be seen how flexible was the guide thus made of the annotations of the commissioners. (1896) 151 N. Y., 16, 20. The special acts were L. 1880, ch. 537, and L. 1881, ch. 648, amending L. 1871, ch. 598. The annotations in the report of the commissioners, in 1881, do not extend later than the session of 1879. (1902) 172 N. Y., 35, 44. The earlier statute involved was L. 1880, ch. 269. The decision was rendered easier because sec. 821 of the Consolidation Act, as amended by L. 1885, ch. 311, contained the words, "but only on the grounds * The court did not have to say how it would have construed the original wording of the section.

same words which were used in the former act, or in different but equivalent words, the law must be regarded as continuous, and the new act as to such parts will not operate as a repeal of the former acts so as to defeat a public remedy or to put an end to proceedings properly begun."

Danielsen v. Sigsbee, Humphrey & Co., et al.,1 very recently, faced the question of the effectiveness today of an early statute that defined the jurisdiction of a local court over seamen. At this point," said the opinion, "it is essential to ascertain the effect of the Consolidation Act of 1882, ch. 410 In view of the title of the act, was there a repeal by implication of ch. 71 of the Laws of 1819? Do the provisions of sec. 2143 change the ordinary rule in reference to repeal by implication?" The Court, noting that the same question had been raised in Matter of N. Y. Institution for the Deaf and Dumb, pointed out regarding that case: "the provisions of the omitted section were covered by other legislation in the new enactment, which did not follow the omitted provisions. * In the case at bar, the provisions of the old act (ch. 71 of the L. of 1819) were incorporated in the new act in almost the identical language, and, in addition, the effect of such provisions was extended, so as to cover, not only actions for seamen's wages, but also any action for services brought against an owner or master of a vessel, providing such services were rendered during any voyage of such vessel. Thus the new act is somewhat broader than the old."

* *

As for sec. 2143, the very fact that the particular subdivision of the Consolidation Act was specifically excepted in the enumeration of certain parts which were not to effect the Codes of Civil Procedure and of Criminal Procedure, created the implication that a repeal was to take place. "It is a fair inference that they thus intended that the old act should be superseded, and that they contemplated that the consolidation should repeal or super

1

(1921) 187 N. Y. Supp., 700, 702. Although not in point here, it may be added that sec. 1286, held herein to repeal L. 1819, ch. 71, was itself repealed by the Municipal Court Act, L. 1902, ch. 580.