A Decade's Legislation Examined.

A body of general legislation, then, surrounds the special New York City law, sometimes over-riding the latter but oftener effective only where special provisions are inconclusive or are lacking altogether. Of what does this general legislation consist? Its nature is indicated in an accompanying tabulation of acts which, during the first decade after the consolidation of the New York Statutes in 1909, affected cities of the first class or cities at large. Such a tabulation can be only approximate. It is not easy to say just what legislation affects cities. Many enactments1 refer in terms to cities or to particular classes of cities simply in order to limit geographically the application of some state law and thus to adjust it to varying economic conditions; many, including numerous provisions in the Labor Law, prescribe conditions which are at least potentially of interest to local officers but which, because they directly impose no local function, cannot be regarded as affecting cities in a real sense. No two persons would draw the same line in excluding these from the tabulation. The present table must be taken on this modest basis.

It will be observed that of the 192 general acts affecting cities during the decade, 178 amended in terms slightly over half of the various chapters which make up the consolidated laws. Even the casual glance will find some meaning in the manner in

E. g., the Insurance Law, Cons. L., ch. 28, sec. 143, as amended by L. 1915, ch. 56, set fees for a broker's certificate, issued by the state superintendent of insurance, at different sums for brokers operating in 1st, in 2d., in 3d class cities and in other places; or, to take a more extreme example, L. 1919, ch. 37, amended the Banking Law to permit banks to maintain branches in cities over 50,000, whereas previously the limit had been 1,000,000.

† E. g., L. 1918, ch. 434, restricting work by male minors and women as messengers at night in cities of first and 2d class; L. 1917, ch. 535, regulating women's hours in restaurants in such cities. Or L. 1910, ch. 348, and L. 1911, ch. 393 (amending the General Business Law but repealed by the Banking Law as revised L. 1914, ch. 369), which required the licensing of private bankers engaged in ticket-selling, etc., in cities of 1,000,000 or over. But cp. those just cited, which have been omitted from the table, with L. 1913, ch. 463, which, in amending the labor law regarding conditions in bakeries, stated that their execution in 1st class cities should vest in the local departments of health; the latter has been included in the table.

which the legislation has scattered and in the relative frequency with which the several chapters have been amended in regard to cities: the Education Law, by 18 acts; the Tax Law, 17; the Tenement House Law, 17; the General City Law, 13; the General Municipal Law, 13; the Election Law, 12; the Highway Law and the Penal Law, each 6; the General Business Law, the Insurance Law, the Poor Law, the Public Health Law, each 5; the Civil Service Law, the Labor Law, the Railroad Law, each 4. There is no first class cities' law, as such; and it will be observed that legislation on behalf of first class cities exclusively has been relatively slight, the table showing twenty-eight such statutes. Of the total of 192 acts covered, only fourteen were left hanging in the air without a formal relation to an existing body of laws. More than half of the latter were temporary in effect.1

The General City Law and the General Municipal Law have been important but by no means primary centers of this legislation. The pull of the specialized chapters of the consolidated laws has been stronger than the fact of a common municipal relation. Aside from this, moreover, the General City Law and the General Municipal Law were built of legislative leavings in the beginning and remain too fragmentary to offer lodgment conveniently to new legislation within a wide scope. The General City Law, for example, gives one of its fourteen active articles to the broad powers which were conferred on cities by the socalled Home Rule or Municipal Empowering Act of 1913;2 other separate articles are concerned with such relatively narrow fields as the regulation of plumbing, of plastering, of lodging houses, of coal distribution, the employment of police matrons. The contents of the General Municipal Law are nearly as miscellaneous and unequal.

'One of these, L. 1913, ch. 788, illustrates that the ponderous arm of general legislation may be lifted to correct very particular situations. The act provided that if "in any city" of the 1st class "any person" had made a deposit for the restoration of a side-walk, on which there existed a surplus, he might, by a stated procedure, apply for it within one year after the passage of the act.

L. 1913, ch. 247, infra, pp. 84-97.

The Use of Classification of Cities in the Consolidated Laws.

The constitutional classification of cities,1 obviously, has not been the sole measure used in this legislation. At least fifteen of the acts that are considered in the tabulation based their operation wholly or in part upon other population groupings.2 The various chapters of the consolidated laws abound in such provisions.

The constitutional problem need not be sharpened, since decisions long ago blunted it into practical shape. The basis of a loose construction was expressed as early as 1877 in an opinion that held the old rapid transit act of 1875 to be general. By 1898 a reluctant court admitted that it was "too late to insist upon a strict construction * * * we must take up that work, at the present time, with a liberal view of the law and of the situa

1 N. Y. Const. of 1894, Art. XII, sec. 2 (as amended November 5, 1907, lowering limit of 1st class cities from 250,000): “All cities are classified according to the latest state enumeration, as from time to time made, as follows: The first class includes all cities having a population of one hundred and seventy-five thousand, or more; the second class, all cities having a population of fifty thousand and less than one hundred and seventyfive thousand; the third class, all other cities. Laws relating to the property, affairs or government of cities, and the several departments thereof, are divided into general and special city laws; general city laws are those which relate to all the cities of one or more classes; special city laws are those which relate to a single city, or to less than all the cities of a class *" On the basis of the 1915 state enumeration, New York City, Rochester and Buffalo still comprise the 1st class; Albany, Binghamton, Schenectady, Syracuse, Troy, Utica and Yonkers, the second; the third class cities number 37. In the 1920 federal census, Niagara Falls is just above the 50,000 line; Syracuse, just below 175,000.

'One act, L. 1916, ch. 416, drew its lines at 1,500,000, 500,000, 50,000, 10,000, 5,000, 1,200, and under; five acts, L. 1911, ch. 322, L. 1913, ch. 699, L. 1914, ch. 492, L. 1919, chs. 181, 645, drew the line at 1,000,000; one, L. 1916, ch. 524, staked the boundaries at 1,000,000, 100,000-1,000,000, and below; another, L. 1919, ch. 409, at 1,000,000, 400,000-1,000,000, and below; one act, L. 1913, ch. 495, at 750,000; one, L. 1910, ch. 227, at 500,000; one, L. 1914, ch. 227, at 200,000; one, L. 1918, ch. 496, at 100,000; one, L. 1917, ch. 813, at 10,000; one, L. 1916, ch. 182, at 5,000; one, L. 1911, ch. 298 discriminated incorporated places over 1,200. 327; followed

3

Matter of N. Y. Elevated R. R. Co. (1877), 70 N. Y., in Matter of the Application of Church (1883), 92 N. Y., 1 (holding general an act which applied to any county containing an incorporated city of over 100,000 inhabitants in which territory contiguous to the city had been mapped out in streets); also followed in People ex rel. N. Y. Electric Lines Co. v. Squire (1888), 107 N. Y., 593 (subway act of 1885, as amended L. 1886, ch. 503, held neither private nor local).

tion." Later, the Rapid Transit Act,2 which applied to cities of 1,000,000 or over, was assailed on the ground, among others, that it was in fact special and as such had been imperfectly enacted. In sustaining it, the language of the Court on this point showed that its conception of special legislation held more than a trace of the old idea that some legislation holds a proprietary advantage for cities and that primary distinctions can be erected on this basis. The Court remarked:

"It is said that because the Rapid Transit Act does not relate to all cities of the first class, it is a special city law which can be passed only as by the Constitution provided. Again I disagree with the contention of the appellants. In the first place, Rapid Transit Act was passed before this constitutional provision went into effect. In the second place, the act is not one of those contemplated by the provision in question. The latter contemplates laws which relate to municipal property and affairs and which may be described, as the provision does describe them, as 'city' laws.*** It (the act) was adopted not only for the benefit of the cities which, of course, would be affected, but of the public at large, and it confers broad powers, including that of the granting of franchises. It is a much more general law than is contemplated by the provision in question."

Nor has the constitutional provision embarrassed the frequent legislation that varies its terms within peculiar population limits.

1Matter of Henneberger (1898), 155 N. Y., 420, 429. The court, however, drew the line here and held unconstitutional, under Art. 3, sec. 18, and Art. 8, sec. 10, a law of 1897 (ch. 286) which provided for the laying out of highways in towns of 8,000 or more, containing villages of 8,000 to 15,000 population. The constitutional classification of cities was not involved.

'L. 1891, ch. 4; repeatedly amended (by at least 18 acts, for example, between 1910 and 1918, incl.) and still one of the most important sources outside the charter of what is for practical purposes New York City legislation.

Admiral Realty Co. v. City of N. Y. (1912), 206 N. Y., 110, 140. See also Gubner v. McClellan (1909), 115 N. Y. Supp. 755, which had held that the Public Service Commission's Act (L. 1907, ch. 429) was neither local nor private.

Thus an amendment to the election law, which in prescribing the methods of registration required an extra column with the personal signatures of voters and other formalities in cities over 1,000,000, was declared to be general in its terms.1

Legislation Affecting Judicial Organization, Procedure and Penalties.

The table which has been presented fails to show the consider able body of legislation which affects the administration of justice and which, standing partly inside and partly outside the charter, is in many instances general. Its subject-matter is in the main three-fold: the organization of courts, some within New York City being peculiar to that city, others universal in the State; judicial procedure, civil and criminal; penal provisions. No consistent policy regarding the inclusion of these matters in the New York City charter has been followed. The tendency to shift from the general laws of the state to the charter at least those portions that concerned peculiarly local tribunals has been sometimes in evidence. Thus the Commissioners of Statutory Revision, reporting in 1900 on their plans for the Code of Civil Procedure, said: "The special provisions relating to the City Court of New York will be included in the New York Consolidation Act. Many of these sections are already in that statute as well as in the Code, and it is believed that for the sake of convenience they should be in one statute only, and that it is not necessary to continue them in the Code." Even when, in 1902, a special commission3 brought together many scattered laws in the Municipal Court Act, nearly a score of related sections in the Greater City charter were deliberately left untouched.

In re Ahern (1909), 130 App. Div., 900, 115 N. Y. Supp., 1108, aff'd in Ahern v. Elder, 195 N. Y., 493.

Report of the Commissioners of Statutory Revision, April 5, 1900, vol. 1, p. 9.

'N. Y. Assembly Docs., 1902, vol. 13, No. 36. The commission to revise and codify the laws relating to the Municipal Court of the City of New York was designated by the board of justices of that court under L. 1901, ch. 218; it reported January 27, 1902.

L. 1902, ch. 580; superseded by the Municipal Court Code, L. 1915, ch. 279.