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sede some prior enactments is obvious from the language used in sec. 2143.”
Judicial interpretation in the cases which have directly involved this phase of the Consolidation Act, then, has not settled the doubts regarding its effect in repealing by omission. On the one hand, pointing against repeal, stands a single case, never carried to the highest court and apparently never cited favorabiy or unfavorably, which denied the exhaustiveness of the Consolidation Act even in the grant of power to city authorities on general matters. Partly supporting it, stand several others which, in their failure to consider the Consolidation Act as a factor in deciding the continuing force of pieces of legislation prior to 1882, may be construed to have held by implication that the Consolidation Act was not exhaustive. On the other hand, pointing toward repeal, a half-dozen cases have refused to give effect to prior legislation that, although neither expressly repealed nor positively repugnant, was omitted from the Consolidation Act. Several of these spoke broadly of a legislative intention to make the revision of 1882 a complete declaration of New York City law; actually, they decided no more than that, at the points where the Consolidation Act touched the subject matter of prior legislation, selected from it, and provided a reasonably complete scheme, the Consolidation Act repealed what it omitted.
The Doctrine of Codification Consulted.
Such being the facts and the interpretations immediately in point, can light upon the repealing effect of the Consolidation Act be had from the theory of codification generally?
There is substantial agreement that, if an intent to codify is apparent and if the revision covers the subject matter of an omitted piece of legislation, the omission repeals it by implication, even though the express terms of old and new law are consistent.1
For example: Sutherland, Statutes and Statutory Construction (20 d., by J. vis, 1904), Vol. I, p. 520, says, “A revising statute embracing antecedent general laws on various subjects and reducing them to one system and one text repeals all prior statutes upon the same subjects not included in the body of the revision and not exempted by an express Although the more incisive decisions in point seem to have arisen in other jurisdictions, numerous New York cases have applied this doctrine to the revision of laws in particular broad fields, as civil procedure, liquor, banking and the like, even to the point of counteracting the usual rule that general legislation does not repeal prior special acts.2 The obverse of the doctrine
clause. Where one act is formed from another, some parts taken and others omitted; or where there are two acts on the same subject, and a later embraces all the provisions of the first and also new provisions, the later act operates, without any repealing clause, as a repeal of the first. But the object of the old and the new acts must be the same. The fact of revision raises a presumption of a complete code, or a complete treatment of the subjects embraced in it.” The anonymous commentator in 25 R. C. L., 924-5 remarks, “As a general rule, the enactment of revisions, codes and compilations, and of statutes manifestly designed to embrace an entire subject of legislation, operates to repeal former acts dealing with the same subject, although there is no repealing clause to that effect. The application of the rule is not dependent upon the inconsistency or repugnancy of the new legislation and the old; for the old legislation will be impliedly repealed by the new even though there is no repugnancy between them
Endlich, A Commentary on the Interpretation of Statutes (1888), p. 272, does not so rigorously qualify his generalization, “But the general rule seems to be that statutes and parts of statutes omitted from a revision are to be considered as annulled, and are not to be revived by construction," citing in this connection, however, cases which in most instances do not involve revision in the broader sense of the term codifica. tion.
? Illustrations are: (1) mechanics liens in N. Y. C., Heckmann v. Pinkney (1880), 81 N. Y., 211 (L. 1875, ch. 379, held to repeal L. 1863, ch. 500); (2) horse-racing, People v. Cleary (1895), 13 Misc., 546; (3) Code of Civil Procedure, People v. Levy (1896), 16 Misc., 615; Brigham v. N. Y. (1919), 185 App. Div., 917, aff'd 227 N. Y., 575; (4) tax law, People ex rel. Newburg Sav. Bank v. Peck (1898), 157 N. Y., 51; Matter of Huntington (1901), 168 N. Y., 399; Pratt Institute v. City of New York (1905), 183 N. Y., 151 ; Peterson v. Martino (1914), 210 N. Y. 412; (5) Code of Criminal Procedure, People ex rel. Sloane v. Fallon (1899), 27 Misc., 16; (6) Statutory Construction Law, Ryer v. Prudential Ins. Co. of America (1905), 95 N. Y. Supp., 1158; (7) Municipal Court Code, Kral V. Lovitz (1916), 161 N. Y. Supp., 127. In the field of more general codification, an early case, Harrington v. Trustees of Rochester (1833), 10 Wend., 547, 551, held that the Revised Statutes of 1830 repealed a prior repugnant act despite the presence of a specific repealer in which this act was not mentioned; the court argued that implication alone was enough to accomplish repeal in connection with consolidations. No New York case seems to have held, however, that the omission of an act which was neither repugnant to nor on a subject covered in a codification automatically repealed such act.
'Infra., p. 60, for comment on this problem in ega to New York City.
is that omission does not repeal if the subject-matter of the earlier act is not covered.1
The difficulty in applying this doctrine to such a revision as the Consolidation Act of 1882, however, is already apparent; it would remain even if more numerous and more emphatic precedents existed in New York for the principles just stated. There is an important practical difference between a statute that gathers together and reduces to one text the previous enactments on such a subject as “corporations” or " banking” and, on the other hand, the consolidation of all kinds of laws affecting a particular locality. It has been shown that the crucial factor in determining whether prior legislation is repealed by omission is the relation of the subject matter of the prior act and of the code. But what shall we regard as
Sutherland, op. cit., at p. 523: “An act to revise and consolidate the various acts on a general subject will not repeal a particular act relating to some branch of that subject which is omitted from the revision and whose subject-matter is not covered by it. Thus, an act to revise the criminal law and containing no provisions on the subject of pools, trusts, and conspiracies in restraint of trade was held not to repeal a particular act on that subject. (Commonwealth v. Grinstead, 108 Ky., 59, 57 S. W., 471.) So a general revision of the revenue laws was held not to repeal the inheritance tax law, nor a law imposing a privilege tax on railroads; the new law being silent on those subjects (Zickler v. Union Bank and T. Co., 104 Tenn., 277). A revision of the law in regard to local improvements was held not to repeal a provision of the former law prescribing a special limitation in regard to suits to set aside or enjoin a special assessment (Kansas City v. Kimball, 60 Kan. 224, 56 Pac., 78).” In 25 R. C. L., at p. 925, it is said, “It has, however, been held that the omission of a statute from a revision does not effect its repeal, although all statutes within its purview which are not contained within it are expressly repealed by it, if no provision in the revision attempts to deal with the subject matter of the omitted statute," citing Hammer v. State, 173 Ind., 199, 21 Ann. Cas. 1034, 24 L. R. A. (n. s.), 795. Black Handbook on the Construction and Interpretation of the Laws (2d ed., 1911), at p. 593, notes of the Revised Statutes of the U. S. (1873), “Where it is found that an act of Congress which is an independent statute, permanent in character, although special in its application, and not repealed by any act prior to the revision of the statutes, has been omitted from the Revised Statutes, it nevertheless continues in force," citing Peters v. U. S., 2 Okla., 116, 33 Pac., 1031
* Other variable and important factors in determining the effects of codification (which need not be discussed here since the repealing clauses of the Consolidation Act of 1882 and of the charters have been examined) but which may hopelessly differentiate seeming analagous cases, are: (1) Do legislative history and other antecedent events indicate an intention to revise completely; (2) Does the revision expressly declare itself to be a codification and in what language? (3) Does it expressly declare that non-repugnant acts shall continue? (4) Does it expressly repeal certain acts and, if so, is such repealer expressly qualified to protect against the implication that the acts which it does not mention are continued ?
the subject of the Consolidation Act? Or what shall we consider to be the subject of an act, dealing, say, with a phase of street openings, which the Consolidation Act omitted ? Shall we say " New York City," or, rather, "assessments "? If the former, it can be argued from the usual rules for the construction of codes that the Consolidation Act automatically repealed all prior laws touching New York City.
The problem just stated has not been adjudicated squarely. The question of the subject of the Consolidation Act was raised obliquely in another connection, because of alleged conflict with the constitutional provision that “no private or local bill, which may be passed by the legislature, shall embrace more than one subject, and that shall be expressed in the title."2 If the point were strained, it would embarrass every city charter. One escape is to follow an earlier case which held that the New York City charter of 1857 was neither private nor local.3
A more sensible solution, and one which the later cases already cited have terded to apply, assumes that a charter is both special and
* People er rel. 2d Ave. R. Co. v. Coleman (1889), 51 Hun., 640, 4 N. Y. Supp., 417, in which L. 1885, ch. 311 was attacked as unconstitutional because its title stated simply that it was an act to amend L. 1882, ch. 410. The court held that if any fault existed, it was in the Consolidation Act, yet to demand that the title of that act should fully describe its contents would be to defeat the very purpose of the constitution. In re McAdam (1889), 7 N. Y. Supp., 454, aff'd 54 Hun., 637, upheld against a similar charge of unconstitutionality, L. 1884, ch. 516, the title of which stated that it amended L. 1882, ch. 410, "in relation to commissioners of accounts.” The court found that this title was more explicit than that of the Consolidation Act; the title of the latter, the opinion implied, was suitable for its purpose, saying that the Consolidation Act " was virtually a charter of the city of New York.” In People v. Kane (1900), 43 App. Div., 472, 473, 61 Ñ. Y. Supp., 632 (aff’d. on opinion below, 161 N. Y., 380), it was said of the Greater N. Y. Charter: "It is of no moment that the provisions of law violated or evaded are contained in different sections of the charter. The charter is one statute * and the eye of the law so regards it. The division thereof into chapters and sections is but formal."
· Art. 3, sec. 16, in both the Constitutions of 1846 and 1894.
• Phillips v. Mayor, etc., of N. Y. (1857), 1 Hilt., 483, 488, in which Justice Ingraham of the Court of Common Pleas said in part: “I am not prepared to admit that the act in question is either a private or a local bill. It can in no sense be called a private bill * Nor do I think such an act, devolving upon others the powers which the legislature possesses for the purposes of government, can be called a local act.” Citing Connor v. Mayor, 1 Selden 285, he continued: “With much greater force may these remarks be applied to a statute providing for the government of a large
local but that, from the standpoint of constitutional restrictions on enactment and entitling statutes, a charter must for practical reasons be regarded as embracing only one subject. Could this construction be borrowed in the application of the theory of codification to the question of implied repeal in connection with Consolidation Act? It has never been suggested. Instead, the cases which have discussed the relation of the Consolidation Act to prior acts have always thought of the subject of both acts in terms of phases of city activity, not the whole of it.
The theory of codification, then, leads surely to no automatic conclusion; it throws us back, as the repeal of any piece of prior legislation comes into dispute, upon a judgment in the comparison of the subject-matter of the old and the new.
The Legislative Heritage of Communities Absorbed in Greater
In addition to the uncertainty in the location of old law affecting the former City of New York which the Consolidation Act of 1882 left to the present day, it is necessary, if the sources of city government are to be encompassed, to note another element of uncertainty which was created by the amalgamation of three existing cities and of a number of minor municipalities. The Greater New York Commission based the charter of 1897 largely upon “ legislation already upon the statute books in relation to one or the other of the cities to be consolidated into Greater New York."1 The law of old New York was not exclusively used. “Where the local laws have differed," the Commission reported, “in matters financial and relating to
portion of the territory and property of the state, delegating powers of legislation and authorizing the passage of laws as well as the administration of them, which in their operation affect all citizens of the state, who either in their persons come within their range or whose property is within the limits of that jurisdiction * * Nor do I think that the provisions of the statute can be said to be of more than one subject. The act was intended to provide or add to the charter of the city.”
Report made by the Commission which prepared the Greater New York Charter to the Legislature, Feb. 18, 1897 (as printed in Birdseye, The Greater New York Charter, p. xxxii).