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ary power over the making, repairing, improving and paving of the streets of the city. That power was conferred by the Dongan charter and confirmed by the Montgomerie charter, and still exists unimpaired.”1 Less conclusively, it was said in 1895: “The broad powers for purposes of municipal government possessed by the common council of the City of New York, derived from its ancient charters and modified and enlarged by subsequent statutes, include, to the fullest extent consistent with constitutional limitation, the power to control and regulate the public streets.'2

But when, in 1916, the city sought, among other bases of power, to find in the original royal grants a sanction for its attempt to compel the relocation of tracks on Central Park West, the Court waved the contention aside, saying: "The assertion and the argument of the appellant that the power in question was bestowed by the ancient charters of the city and has devolved to it need not detain us. Neither their language or intent nor the contemporaneous conditions support the assertion."3 The terms of the Greater City Charter, already quoted, might properly be held to confine the continuing authority of the royal charters to the peculiarly proprietary activities of the city, which, although at one time sharply controversial' and still important, may be regarded as fairly well adjudicated.


the subject matter of the by-law, operates as a limitation to any general and undefined powers in the charters” (p. 125). When Brick Presby. terian Church v. Mayor, etc., of N. Y. (1826), 5 Cowen, 538, presented the question of the validity of an ordinance which prevented burials upon a plot which had been granted earlier by the city for purposes of " quiet enjoyment," the city authorities did not attempt, in the face of the Ordrenan case and the fact that the legislature had acted in regard to the city's control of such matters, to appeal to the powers of the original charters. So, also, in Coates v. Mayor, etc., of N. Y (1827), 7 Cowen, 585.

Moore v. The Mayor, etc., of New York (1878), 73 N. Y., 238. * Jorgensen v. Squires (1895), 144 N. Y., 280

• People ex rel. City of N. Y. v. N. Y. R. Co. (1916), 217 N. Y., 310, 312. The unfavorable decision was followed by a charter amendment, L. 1917, ch. 692, adding sec. 242c.

As an example of how nicely the lines of the controversy over New York City rights (here, jurisdiction to low water on the Long Island shore), were once drawn, cp. Udall v. Trustees of Brooklyn (1821), 19 Tohnson, 175, which held that a weigher licensed by New York City could not operate on a fixed dock, with Stryker v. Mayor (1821), 19 Johnson, 179, holding he could operate on a floating vessel on the Brooklyn shore. See also Hoffman, Treatise upon the Estate and Rights of the Corporation of the City of New York as Proprietors (1853); Gerard, A Treatise on the Title of the Corporation to the Streets, Wharves, Piers, Parks, Ferries, and other Lands and Franchises in the City of New York (1872).



The Problem of Parallel General and Special Legislation an Un-
avoidable Complication—The Usual Rule of Adjustment-Its
Application in New York State-Its Application to the General
City Law, the General Municipal Law, and the Civil Service Law-
A Decade's Legislation Examined–The Use of Classification of
Cities in the Consolidated Laws—Legislation Affecting Judicial
Organization, Precedure, and Penalties—Legislation for Counties-
The Problem of a Better Adjustment of Special and General Law
-The Common Law as a Source-Summary.

The quest for the sources of the law affecting New York City, if it is exhaustive, must carry one beyond legislation which, whether recent or very old and whether assembled or scattered, applies peculiarly to the municipalities now combined in the Greater City. The existence of some general legislation that ramifies into municipal affairs seems inevitable under any system. Even if it were deemed desirable to drop the attempt to simplify state-city relations and to lessen the vexing dependence upon special legislation by general provisions in behalf of certain common local activities or certain classes of cities, the necessity would remain for general enactments on penal offenses, judicial procedure, and other matters which are woven in the fabric of municipal government. Problems of conflicting law follow inevitably.

The Usual Rule of Adjustment.

Yet the rule of adjustment is simple; it is cumbered in its application only by the necessity of judgments on questions of intention and differences of degree. A general act will not supersede a prior special act unless the general act clearly reveals an intention to create a uniform rule. Conversely, a special act will graft an exception upon pre-existing general law. The theory is that the Legislature recognizes certain exceptional conditions when it passes a special act and that it considers these still to exist when, later, it legislates generally on the same subject. The problem, then, is always one of intention. “The search for it," said the Court in a recent case in point,1 "leads below the surface of verbal expression, and, piercing all disguises, goes straight to the purpose of the law-makers, aided by formulated rules when they serve, bound by no rule that obstructs the discovery of the rational genuine purpose of the Legislature."

*See Sutherland, Statutes and Statutory Construction (2d ed., by J. Lewis, 1904), vol. I, secs. 274-8, pp. 526-38. Black, Handbook on the Construction and Interpretation of Laws (2d ed., 1911), p. 329.

Its Application in New York State.

These principles have received a normal application in New York. It was said in a leading case in 1872;2 "A special and local statute, providing for a particular case or class of cases, is not partially repealed or amended, as to some of its provisions, by a statute general in its terms, provisions and application, unless the intention of the Legislature to repeal or alter the particular law is manifest, although the terms of the general act would, taken strictly, and but for the special law, include the case or cases provided for by it.” Other and later decisions along the same line have abundantly illustrated that general laws do not override prior special enactments, and the corollary that special laws do triumph, up to the length of the inconsistency, over pre-existing general statutes.2 Cases have not been wanting, however, to show how the weight of legislative intention, especially when the element of codification is present, may tip the scales in favor

* In re Seeley (1921), 187 N. Y. Supp., 130, 133, aff’d in 196 App. Div., 920, and 231 N. Y., 601, holding that the County Law superseded a special provision of 1822 for courts in Seneca County. But note in another recent case, the disposition to require that repeal must be express: "The law is well settled that special statutes which are local in their application are not deemed repealed by general legislation, except upon the clearest mani. festation of an intent by the Legislature to effect such repeal, and such repeal cannot ordinarily be accomplished by implication." People v. City of Buffalo (1916), 157 N. Y. Supp., 938, holding that a charter provision for the payment of fines to the city treasurer was not superseded by the Motor Vehicle Law.

* In re Commissioners of Central Park (1872), 50 N. Y., 493, 497, holding that a section of the R. L. of 1813, in relation to New York City, which made reports by commissioners of estimate and assessment conclusive and final was not superseded by a code provision in L. 1867, ch. 107, governing the proceedings of courts; they related, the court said, to two different systems.


* Matter of The Evergreens (1872), 47 N. Y., 216 (act for settlement of claims against a particular cemetery company, not superseded by act for sale of unoccupied burial grounds and rural cemeteries generally); People v. Quigg (1874), 59 N. Y., 83 (special act governing the collection of fines in N. Y. C. not superseded by a more general act regarding the police force); Van Denburgh v. Village of Greenbush (1876), 66 N. Y., 1 (mechanics lien law for a particular locality not superseded by a general act on the subject); Whipple v. Christian (1878), 15 Hun., 321, aft'd 80 N. Y., 523 (essentially similar to preceding); McKenna v. Edmundstone (1883), 91 N. Y., 231 (essentially similar to preceding); Matter of Altering Main Street, Sing Sing (1885), 98 N. Y., 454 (charter provision not superseded by general highway law); People ex rel. Roosevelt v. Westchester County Supervisors (1886), 40 Hun., 353 (special grant to town of power to appropriate for highway purposes not repealed by general act, despite express statement that it applied to every town”); Higgins v. Bell (1889), 6 N. Y. Supp., 105, aff'd (1891), 128 N. Y., 598 (Brooklyn charter provision for police inspection of boilers not superseded by general act exempting boilers guaranteed by insurance companies) ; Buffalo Cemetery Association v. Buffalo (1889), 118 N. Y., 61 (charter provision regarding assessments of cemetery lands not repealed by law forbidding sale of such lands for taxes); Aldinger v. Pugh (1890), 57 Hun., 181 (special provision regarding surrogate in Oneida County not superseded by Code of Civil Procedure); People ex rel. Lardner v. Carson (1894), 30 N. Y. Supp., 817, aff'd (1895), 86 Hun., 617 (provision of Lockport_charter permitting town elections within city not repealed by General Election Law); People ex rel. Trustees v. Dohling (1896), 6 App. Div., 86 (provision of special act creating a corporation not superseded by statute governing the exemption from taxation of the property of religious corporations generally); Lewis v. City of Syracuse (1897), 13 App. Div., 587 (charter provision not superseded by act regulating time limit of damage suits in cities over 50,000); Casterton v Town of Vienna (1897), 44 N. Y. Supp., 868, aff’d (1900), 163 N. Y., 368 (special act not superseded by statute governing generally the assessment of lands divided by town lines); People ex rel., Speight v. Coler (1898), 31 App. Div., 523 (civil service; law of 1896 regarding exemption of confidential positions did not repeal Brooklyn charter provision); City of Jamestown v. Home Telephone Co. (1908), 125 App. Div., 1 (charter power to prevent setting of poles, etc., not superseded by Transportation Corporations Law); People ex rel. Conklin 2. Boyle (1917), 163 N. Y. Supp., 72, aff’d 178 App. Div., 908 (Public Officers Law not applied as against the more special provisions of the County Law, the court saying, The conflict between such statutes must be resolved in favor of the legislation which is specific"); Ryan v. City of N. Y. (1920), 228 N. Y., 16, rev'g 189 App. Div., 49 (charter provision for police pension fund not superseded by Workmen's Compensation Law).

Schieffelin v. McClellan (1909), 135 App. Div., 665, app'l dissm'd (1910), 197 N. Y., 610, held that city was bound only by sec. 74 of charter, and not also by sec. 92 of prior general Railroad Law, the court saying:

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of the superiority of general law. They have tipped more easily when the local provision has been an ordinance merely, since direct evidence has then been lacking that the Legislature has taken cognizance of a special situation.2

Its Application to the General City Law, the General Municipal

Law, and the Civil Service Law.

Nor has the application of these principles differed essentially in the case of bodies of law which, as the General City Law3 and

" It is a well stablished rule of statutory construction at a later special statute which covers the whole subject matter of an earlier general statute, and which, although not repugnant to the earlier statute, embraces new and more specific provisions, will be held to have been intended, within the scope of its operations, as a substitute for and a repeal pro tanto of the earlier general act” (p. 669). But compare People ex rel. Kemmett v. Craig (1908), 60 Misc., 300, aff'd 128 App. Div., 908 (Rochester charter, L. 1907, ch. 755, held not to have superseded Liquor Tax Law of 1896, court saying legislature could not have intended to “make a farce" of the earlier act by giving police court exclusive jurisdiction).

In re City of Buffalo (1892), 18 N. Y. Supp., 771 (special act for acquisition of park property in particular ward in West Seneca held to be repealed by the Condemnation Law of 1890); Matter of Dobson (1895), 146 N. Y., 357 (Brooklyn charter provision superseded by an act vesting the power to fix salaries of firemen of cities of 90,000 population or over, the court saying: “To hold otherwise, it would be necessary to disregard the language and general scope of the act, as well as the facts notoriously existing when the act was introduced and passed."); City of Buffalo v. Neal (1895), 86 Hun., 76 (charter provision for payment of fines by keeper of penitentiary superseded by County Law); Barker v. Town of Floyd (1901), 69 N. Y. Supp., 1109 (şpecial act authorizing the erection of a town hall superseded by Town Law); Matter of Troy Press Co. (1907), 187 N. Y., 279 (special acts regarding the designation of newspapers by a particular board of supervisors superseded by Second Class City Law and General Tax Act, the court saying: “They exhaust the subject to which they relate and irresistibly lead to the inference that they should become a substitute in place of the local, previously existing statutes"); Murdoch v. Griffenhagen (1917), 165 N. Y. Supp., 361 (special act regarding sheriff's fees superseded by Code of Civil Procedure); Municipal Gas Co. v. Public Service Commission (1920), 186 N. Y. Supp., 541 (Special act fixing standard gas in Albany superseded by an act for 2nd class cities); In re Seeley (see comment in text and note, supra, p. 60).

'Matter of Reddish (1899), 45 App. Div., 37; 1914 Opinions of Atty. Gen., vol. 2, pp. 366-70.

•L. 1909, ch. 26, constituting ch. 21 of Cons. Laws. Its basis was in L. 1900, ch. 327, which had consolidated some general laws regarding city affairs.

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