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lation; it has repealed in general terms whatever has been inconsistent and it has continued the rest. Inconsistency is not discovered until litigation arises. It is only after a point has been before the courts that one can say with certainty what the charter does provide. Such clarifying litigation proceeds slowly, as the exigencies of everyday operation furnish appropriate test cases. This tedious working out of the meaning of blanket repeals of inconsistent law is sufficiently clouded even where the legislature's intention to repeal is obvious. There are respects, however, in which the legislative intent regarding the repeal of early laws affecting the City of New York is itself in doubt. Uncertainty also inheres in the relation between special and general legislation, although here some fairly clear rules facilitate the adjustment.
How has this confused and uncertain condition in the statutory sources of New York City government arisen?
Before considering in some detail the historical reasons for the condition stated, the underlying causes may be anticipated by noting certain tendencies which have characterized charter revision in the past. (1) One factor has been caution. The early charter grants were broad and vague. Every possible privilege or power implicit in these grants was jealously guarded by a city which was in a very real sense a corporate business enterprise. With this view of the city's rights and interests, all existing provisions of law were treasured against future needs. As the bulk of legislation affecting the city increased and as the property interests of the city ramified, the only safe course has seemed to lie in resort to the device of a general repeal of inconsistent legislation and the blanket continuance of all consistent prior law. (2) Haste in charter revision has always been a contributing factor. Even if the will to risk a more courageous policy in disencumbering the city of earlier laws had existed, tiine
J. S. Davis, Essays in the Earlier History of American Corporations (1917), p. 49, which begins its treatment with the remark, “For convenience, nevertheless, we may somewhat arbitrarily set off the public corporations from the private ones, applying a distinction then unrecognized.” On the early history of the ferries, see A. E. Peterson, New York as an Eighteenth Century Municipality, Prior to 1731 (1917), pp. 124-50. See also G. W. Edwards, New York as an Eighteenth Century Municipality, 1731-1776 (1917), PP. 85, 93-4, 172-89.
has never sufficed for the excavation and sifting of the legislation which, layer on layer, has long surrounded the charter.
The Revised Laws of 1813.
The earliest, and for nearly three-quarters of a century the only, attempt to draw together and to knit into a unified whole the scattered laws relating to the City of New York was carried out in 1813. It was a part merely of a general codification of the statutes of the state which has been popularly associated with the names of the revisers, Van Ness and Woodworth.2 One of the chapters which came from their hands was "an act to reduce several laws, relating particularly to the City of New York, into one act."3 Unlike the “Kent and Radcliff” compilation of 1802, from which, along with the session laws of subsequent years, it drew its material,4 it did not set down whole statutes in their original form. It went further and, although deliberately avoiding substantial change, resolved their contents into a single act of three hundred and fifteen consecutive sections.
The revision of 1813 was not in any complete sense a charter. The royal grants remained outside it; the Montgomerie charter of 1731," although already supplanted in large part by statutory
The " Jones and Varick revision,” authorized by L. 1786, ch. 35, and carried out in a series of acts on various subjects passed during 1787, did not touch the City of New York. The “Kent and Radcliff compilation," provided for by L. 1800, ch. 70, and L. 1801, ch. 190, and published in two volumes, 1801-2, dealt with New York City legislation, Vol. II, pp. 89-146, but was in no sense a revision; merely reprinted whole WS seriotim.
*R. L., 1813. The revision was authorized by L. 1811, ch. 150, appointing and directing Van Ness and Woodworth "to reduce into one act all the different acts or parts of acts which shall or may relate to the same subject or place, which in their judgment shall be most useful and render the said acts most plain and easily to be understood; and that in such acts they omit every or any part or parts of the acts before passed as shall have been previously repealed, or shall have expired by their own limitation." L. 1813, ch. 195, authorized the publication of the revision.
:2 R. L., 1813, ch. 86, pp. 342-460, passed April 9, 1813.
See the note which followed the act, 2 Ř. L., p. 460, listing the sources in "K & R" (the compilation of 1802) and in "W" (Webster's edition of session laws, vols, 3-6, inclusive). The derivation of particular sections was not indicated.
See infra, p. 56, on the continuing effect of the royal charters.
provisions, was still the core of the city's government. The codifiers of 1813 did, however, weave together the active provisions of some eighty-nine acts passed by the provincial assembly, 16911775,1 and of one hundred and fifty-two special statutes affecting New York City, passed between 1778 and the revision of 1813.2
Codification raises a problem of repeal which is discussed below,3 ir. connection with the Consolidation Act of 1882; it need not be dwelt upon at this point. Ch. 86 of the Revised Laws of 1813 was silent alike regarding repeal and continuance of prior legislation in relation to New York City. A repealer which covered the entire revision was, however, supplied by a separate act* passed a few days later; this repealed "all acts and parts of acts heretofore passed by the legislature of this state which come within the purview or operation of any of the acts passed during the present session of the legislature, commonly called the revised acts.” Aside from this express blanket repeal and from the indication of legislative intent afforded in the instruction to the revisers to omit obsolete legislation, the repeal at least of Colonial legislation was made doubly sure by the provision of Dec. 10, 1828, that "no statute passed by the government of the late colony of New York shall be considered a law of the State."
The Statutory Sources of the City's Government Permitted to
Not until 1882 was the attempt of 1813 repeated. During the intervening years, the legislation scattered unchecked, and, fall
The computation is based on A Compilation of the Laws of the State of New York relating particularly to the City of New York, prepared at the request of the Common Council by Henry E. Davies, 1855, pp. 2-12. This compilation was, of course, without legal status or effect. Of the 89 acts listed by title, several affected other localities as well as New York City, several involved essentially private grants within the city, and a number directly imposed trade regulations. For a general statement, see G. W. Edwards, New York as an Eighteenth Century Municipality, 1731-1776 (1917), pp. 34-35.
Statutory Record of Unconsolidated Laws (Special, Private and Local Statutes) of the State of New York (1911), vol. 2, in Index, at p. 90, note.
• See infra, pp. 35-52.
ing layer on layer, rested where it fell. The one successful revision of the statutes of the State generally, in 1829-30, evaded the task of consolidating the laws applicable to New York City. “The local laws relating to New York,” a note explained, “are exceedingly numerous; a few only have been selected, which are of general and public importance."1 There was no further general revision of the State laws until the Consolidated Laws were at last achieved in 1909. The magnitude and the delicacy of the task, with attendant difficulty and inertia, increased as rapidly as the need for it. The actual accomplishments of the almost continuous efforts that followed the constitution of 1846 covered only a few particular fields of the law.?
The revision of 18133 was assumed to continue, as part of the foundation, by the notable charter alterations of 1830,4 1849,5
13 Rev. Stat., 424. The few statutes relating to New York are given pp. 424-442. This revision was authorized by L. 1824, ch. 336 and L. 1825, ch. 324. It was carried out in acts passed in 1827 and 1828, published in 1829 and 1830. The Revised Statutes ran through a number of editions, the 9th of which appeared in 1896. Strictly speaking, the revision of 1827-8 was essentially static and these enlargements were without official standing. On this point see Matter of Norton (1899), 39 App. Div., 369.
*A review of the course of consolidation generally in New York State may throw light indirectly upon the tardiness with which New York City legislation was revised. The Constitution of 1846, Art. 1, sec. 17, directed that “the Legislature, at its first session after the adoption of this constitution, shall appoint three commissioners, whose duty it shall be to reduce into a written and systematic code the whole body of the law
Such a commission was constituted under L. 1846, ch. 59. A Code of Procedure (the Field Code” so-called) was adopted 1848-9. The Code of Remedial Justice, adopted in 1876, was supplanted in the next year by the Code of Civil Procedure. Progress was slow; the Code of Criminal Procedure was first reported in 1849, the Penal Code in 1865, yet they were not adopted until 1881. A revision of the banking laws took place in 1882. The Statutory Revision Commission was set up by L. 1889, ch. 289, and was continued by L. 1890, ch. 313. Before its abolition under L. 1900, ch. 664, some 48 general laws had been adopted, accomplishing a partial revision. The permanent Board of Statutory Consolidation, established by L. 1904, ch. 664, accomplished a complete revision of the general laws in the enactment of the Consolidated Laws of 1909. The history of codification from the beginning is reviewed in the Report of the Board of Statutory Consolidation, Feb. 24, 1908, N. Y. Ass. Docs., 1908, no. 50.
As an example of the continuing applicability of ch. 86 of the Revised Laws of 1813, see Matter of Commissioners of Central Park, 50 N. Y., 493, 495 (1872), which said “The law of 1813 (2 R. L., 408), regulating the opening and laying out of streets, etc., in the City of New York, is still in force, and except as modified by subsequent legislation, prescribes the forms of procedure in all cases.”
“L 1830, ch. 122. “L, 1849, ch. 187.
1857,1 1870,2 and 1873.3 Of these, only the three latter were charters in the strictly formal sense. The so-called "charters" of 1830 and 1849 were distinguished from many other charter amendments only by the relative importance of the changes they effected in the organization of city government. The act of 1830, although the first material modification in municipal structure since 1731, occupied a scant five pages in the session laws, slightly less than an act, placed by chance immediately after it, which incorporated the Livingston County Bank in the village of Geneseo. The amendment of 1849 was double the length; but from the standpoint of the make-up of the charter it attempted to do no more. Both assumed the royal charters and a mass of subsequent special acts; both were content to repeal in general terms whatever was inconsistent in prior law. The acts of 1857, 1870 and 1873 were charters in the formal sense that they repeated the grant of corporate existence. They were, moreover, at once more detailed and more inclusive. Yet they, too, failed to clarify the sources of the city's law. They did, it is true, expressly repeal the important charter amendments which had intervened since 1830. For the rest, however, they expressly continued the Dongan and Montgomerie charters "so far as the same or either of them are now in force;" and their silence implied the continuance of the consistent provisions of the body of law which had been gathered in 1813 and of uncounted special acts since that time. They stopped with the easy device of a blanket repeal of all acts or parts of acts inconsistent with their own terms.
The only mitigating device in the years between 1813 and 1880 was the occasional gathering and publication by the city government of the laws which were deemed of interest to it. At least four such collections were made. Their inadequacy was two
*L, 1857, chi 446. *L. 1870, ch. 137. *L. 1873, ch. 335.
• Laws of the State of New York relating particularly to the City of New York, published by the authority of the Corporation. (1827). Same title, 1833; this, however, included as a new feature a list of the titles of provincial and state acts prior to 1813. Compilation of the Laws of the State of New York, relating particularly to the City of New York, prepared at the request of the Common Council. by Henry E. Davies (1855). Same title, 1862, prepared by David T. Valentine. Prior to the revision of 1813, in 1805, the Common Council had ordered the printing, along with the charter, of acts of the legislature which had vested additional power in the City.