property, the law of New York has generally been given the preference; in matters indifferent, the best law, in the opinion of the commission, obtaining in any of the three cities has been maintained In any case, and regardless of the former municipality from which it was taken, such borrowed legislation was declared "to be not a new enactment, but a continuation."1

*."

But the process did not consist merely in the express copying of provisions applicable to the various communities. The Greater City took over, along with the areas which it combined, an uncatalogued dowry of law. The opening sections of the charters of 1897 and 1901 declared the Greater City "to be the successor corporation in law and in fact of all the municipal and public corporations united and consolidated *** with all their lawful rights and powers, and subject to all their lawful obligations, without diminution or enlargement except as herein otherwise specially provided."2 Lest there be possible doubt, the closing sections of the charters of 1897 and 1901 incorporated broad saving clauses regarding the formerly separate municipalities, saying: "their powers to the full extent of legislative power in this behalf are respectively devolved upon the corporation of The City of New York as herein constituted and the municipal assembly thereof, unless otherwise expressly provided in this act or by law," and that "any grants of franchises or properties or rights of any nature granted by said. state to the City of Brooklyn or to any of the other municipal and public corporations which are herein united and consolidated * * * are to all intents and purposes hereby ratified, granted, confirmed and extended to The City of New York as constituted by this act."4

* * *

But the legislative heritage of the several communities was not saved to the Greater City by these broad clauses alone. There

1 Sec. 1608, L. 1897, ch. 378, repeated as sec. 1608 in L. 1901, ch. 466. 'Sec. 1, L. 1897, ch. 378, repeated in L. 1901, ch. 466. See also sec. 3, in both acts, for a reiteration of the idea in slightly different terms. Secs. 4-5 relate especially to the devolution of debts.

Sec. 1615. Here, as in the citations following on this point, the section numbering and text are the same in both L. 1897, ch. 378, and L. 1901, ch. 466.

• Sec. 1617.

66

was also a devolution of power upon particular agencies in the new government. The Board of Aldermen, aside from the fact that it was declared to possess any unassigned powers directly granted to or devolved upon the corporation,1 was expressly vested with all powers and duties conferred at the time of consolidation upon the common council of the City of Brooklyn or of Long Island City, or upon any board, body or officer of any of the municipal and public corporations or parts thereof, consolidated with The City of New York."2 The Board was further vested, by another section, with "Any and all of the powers and duties of the several boards of supervisors heretofore existing in any of the counties within the territory of City of New York not transferred or devolved upon administrative departments, boards, commissions, officers or other functionaries **

More important, perhaps inasmuch as the powers possessed by a city are normally assigned by law to some particular part of its organization-were the clauses, scattered through the several chapters of the charter, which devolved upon each important administrative department all unenumerated and consistent powers and duties of its predecessors in all parts of the area of the Greater City. Space does not permit an examination of the provisions by which this device was applied to the Commissioners of the Sinking Fund, the Police Department, the Borough presidents in respect to highways and sewers, the Department of Water Supply, Gas and Electricity, the Street Cleaning De

1

2

Secs. 1 (in part) and 4.

Sec. 42. The ordinances of the superseded municipal councils were continued, in so far as consistent, by sec. 41.

Sec. 1586.

It is not in point here to consider (1) numerous sections devolving jurisdiction (e. g., 695) or property e. g. 275, 608, 724, 817), nor (2) those continuing the powers of former N. Y. C. agencies, even when extended to the Greater City (e. g., 243, 945), nor (3) the devolution upon a city department of all powers of a particular agency, as the Trustees of Brooklyn Bridge (601), nor (4) partial examples, as the devolution of powers of the building department of the city of Brooklyn on the superintendent of buildings in that borough (sec. 646, renumbered 408 in 1901 charter).

Sec. 204; see also, on particular phases of the sinking fund system, secs. 207, 208, 209, 211, 221.

6 Sec. 274.

* Sec. 388.

partment and the Borough presidents of Queens and Richmond Boroughs in regard to street cleaning, the Park Board,2 the Department of Taxes and Assessments, the Department of Education, and the Department of Health. A single illustration must suffice to show how broadly these provisions were couched. The Board of Taxes and Assessments was declared to possess, in addition to its stated powers and in so far as compatible with the express terms of the charter, "All of the rights, powers and duties heretofore devolved by law upon the board of taxes and assessments in The City of New York, upon the department of assessments of the City of Brooklyn, and upon like departments, boards or officers of taxes and assessments other than for street improvements in the other municipal and public corporations or parts of municipal and public corporations consolidated by this act ** *.”

As active sources of power, these grants have always been more theoretical than real and, naturally, have been of diminishing importance. Attempts to appeal to them have been made,7 however, and the possibility remains. As long as it does remain, the boundaries of the statutory sources of New York City's present government are pushed out and back into the legislative histories of several municipalities, especially Brooklyn. There the

1 Sec. 547. 'Sec. 616.

3 Sec. 886.

4

Sec. 1058. This was not repealed by L. 1917, ch. 786, amending the General Education Law (Con. Laws, ch. 16), which superseded some 30 sections of the charter.

' Sec. 1168.

7

Sec. 886.

Queens Co. Water Co. v. Monroe (1903), 83 App. Div., 105, 82 N. Y. Supp., 610; Heymann v. Steich (1908), 114 N. Y. Supp., 603, aff'd, 118 ibid. 1113, aff'd 201 N. Y., 578. Neither of these cases sustained the particular contention regarding devolved power which was advanced in each but, in rejecting these particular claims, neither denied that powers of the consolidated municipalities devolved on the Greater City and that this fact might be made the basis of present-day action. Most of the cases which have concerned the organization or powers of Brooklyn or the other municipalities have arisen out of the temporary difficulties of transition from separate municipalities to the Greater City; for example: (1) settlement of claims, Carey v. Wurster (1898), 31 App. Div., 553, 52 N. Y. Supp., 160; In re Vacheron (1900), 51 App. Div., 182, 64 N. Y. Supp., 503; (2) transfer of personnel, McKenna v. City of N. Y. (1898), 34 App. Div., 152, 54 N. Y. Supp., 634; (3) transfer of functions, People ex rel. Quinn v. Feitner (1898), 30 App. Div., 241, 51 N. Y. Supp., 1094, aff'd 156 N. Y., 694.

boundaries are left, as far as Brooklyn is concerned, with less uncertainty of frontier than has been noted in connection with the New York City Consolidation Act of 1882. The legislation affecting Brooklyn had scattered as the New York City law had done. It had been drawn together and revised in 1888.1 Fortunately this dealt with the question of repeal more conclusively than did the New York City Consolidation Act of 1882. It expressly stated that "all local and special acts passed prior to Jan. 1, 1888, relating to the corporation of the City of Brooklyn *** are hereby repealed."2

The Royal Grants as Continuing Sources of City Government.

The royal grants survive as part of the city's law. The several constitutions of New York expressly preserved them,3 although not against amendment subsequently by acts of the legislature.* The Greater City Charter was even more explicit than the

1L. 1888, ch. 583, "An Act to revise and combine in a single act all existing special and local laws affecting public interests in the city of Brooklyn.' The commissioners who prepared this revision were appointed under L. 1886, ch. 626. See Report of Law Department of Brooklyn, 1884, p. 57, in volume entitled, Mayor's Message, 1884.

*

A leading case, People ex rel. Ullrich v. Bell (1889), 4 N. Y. Supp., 869, held that where the substance was repeated, the revision was to be regarded as a continuation of prior existing law and the re-enactment of a regulation based upon an earlier and superseded act was unnecessary. Const. 1777, art. 36: "* * that nothing in this constitution contained shall be construed * * to annul any charters to bodies-politic by him or them *** made" (referring to King or his agents); repeated in Const. 1821, art. 7, sec. 14; in Const. 1846, art. I, sec. 18; in Const. 1894, art. I, sec. 17. The effect upon the statute of October 14, 1732 (ch. 584), in confirmation of the previous royal grants, of the provision of December 10, 1828 (2 Rev. Stat., 779, sec. 4), that "no statute passed by the government of the late colony of New York shall be considered a law of the State," would present no present problem even if the Greater City Charter did not expressly mention the act of 1732.

Demarest v. the Mayor, etc., of City of N. Y. (1878), 74 N. Y., 161, which involved an action against the abolition of the board of assistant aldermen by the charter of 1873, the court saying: "The Dongan and Montgomerie charters have no peculiar sanctity because they were granted under the sovereigns of England. They were public charters granted for public purposes and are as much subject to legislative control as charters of the same kind granted by the legislature of the state." As for the constitutional proviso, it said: "This provision is not a restraint upon legislative power, but simply a declaration that the constitution itself shall not annul such charters." Against this viewpoint, which is the merest commonplace today, see, as an example of an earlier attitude, Kent, The Charter of the City of New York with Notes Thereon (1836). Corporate franchises in this country rest upon a basis which ought to be at least as solid as Magna Charta, for they are founded on grants that

previous legislative charters1 in conserving grants of franchises or properties or rights of any nature in, to or concerning property of any character or other grants made by the Nicolls' charter, the Dongan charter, the Cornbury charter (so-called), the Montgomerie charter, by the confirmatory act passed the fourteenth day of October, Seventeen hundred and thirty-two " *, which it declared "are to all intents and purposes hereby ratified, granted, confirmed and extended to The City of New York as constituted by this act."2

The growing detail of legislative enactment early began to elaborate upon, and by that very process was soundly held to restrict, the broad terms of the royal grants.

Even in later years, however, appeals to them as sources of power were made from time to time. In 1878, for example, the Court said: "The corporation of the City of New York has plen

are contracts, and 'no state,' says the constitution of the United States, can pass any law impairing the obligation of Contracts'" (1851 ed., p. 203). For a further indication of early uncertainty on the point, see Furman v. Knapp (1821), 19 Johnson, 248, in which the court remarked, "It is not necessary, therefore, to discuss or consider here how far the legislature, without the consent of the corporation, might modify or change the charter."

*

1L. 1830, ch. 122, sec. 26, L. 1849, ch. 187, sec. 28, and L. 1853, ch. 217, sec. 18, spoke merely of "the charter of the city of New York and the several acts of the Legislature amending the same," which they declared repealed so far as inconsistent, but otherwise continued. L. 1857, ch. 446, sec. 54, and L. 1870, ch. 137, sec. 120, provided: "* * but the charter(s) of the city of New York, known as the Dongan and Montgomerie charters, so far as the same or either of them are now in force, shall continue and remain in full force, and shall not be construed as repealed, modified, or in any manner affected hereby." L. 1873, ch. 335, sec. 119, was not so loose: "The charters of the city of New York, known as Dongan and Montgomerie charters, so far as the same or either of them are now in force, not inconsistent with the provisions of this act, shall continue and remain in full force." The Consolidation Act of 1882 reprinted nothing of this, although giving a part of sec. 119 which had to do with another matter; this might be taken as an argument against the idea of repeal by omission, since all commentators assumed the royal grants continued in force.

'Sec. 1617, in both L. 1897, ch. 378, and L. 1901, ch. 466.

Mayor, etc., of N. Y. v. Ordrenan (1815), 12 Johnson 122, representing the question whether an ordinance which imposed cumulative fines for keeping gunpowder except under certain conditions was valid. The court held that it was not, saying: "If it be conceded, that the by-laws in question were authorized by the general powers conferred by the charters, upon which we express no opinion, the application by the corporation to the legislature, and the latter having, in several instances, legislated on