An opposing tendency has been at work. In 1910 the commission to inquire into courts of inferior criminal jurisdiction in cities of the first class deplored the fact that "The Charter of the City of New York contains many of the provisions applicable to these courts, and also many penal provisions which have no place in that instrument."1 In its recommendation that the charter be rid of these elements, it had the support of the New York Charter Commission, which, dropping detailed consideration of the field of the local criminal courts after the advent of the more special investigation, planned to stop the gap until the law on the subject could be integrated separately from the charter by shifting most of the existing judicial provisions of the charter to the proposed administrative code. Partial segregation was actually accomplished later. The Inferior Criminal Courts Act of 19103 repealed as many as thirty-eight sections of the charter. The New York City Municipal Court Code of 19154 repealed nineteen sections, although it also recognized the continuance of matter affecting the court in the body of the charter. The New York City Court Act,5 enacted in 1920 as an incident in the plan to revise and resolve the Code of Civil Procedure into

'N. Y. Assembly Docs., 1910, vol. 26, No. 54, at p. 81. The commission was authorized by L. 1908, ch. 211; it reported finally on April 4, 1910. Report of the New York Charter Commission, March 8, 1909, N. Y. Senate Docs., 1909, vol. 6, No. 27, p. 27.

2

L. 1910, ch. 659, "An act in relation to the inferior courts of criminal jurisdiction in the city of New York," which it defined to comprise the court of special sessions and the city magistrates' courts.

'L. 1915, ch. 279, superseding L. 1902, ch. 580.

L. 1920, ch. 935. Companion statutes, all submitted by the joint legislative committee on simplification of civil practice, were: Civil Practice Act (ch. 925), applying generally to all courts of record; Surrogate Court Act (ch. 928); Justice Court Act (ch. 937); Court of Claims Act (ch. 922); an act amending the county law generally (ch. 921), containing many special provisions for the counties within N. Y. C., but especially for N. Y. County, to which its general terms are not applicable; an act amending the Code of Criminal Procedure generally (ch. 920); an act amending the Judiciary Law generally (ch. 938); and also acts amending the General Associations (Joint-Stock) Law (ch. 915), the General Corporation Law (ch. 916), the General Construction Law (ch. 917), the Executive Law (ch. 918), the Decedent Estates Law (ch. 919), the Condemnation Law (ch. 923), the Civil Rights Law (ch. 924), the Town Law (ch. 927), the State Finance Law (ch. 929), the Real Property Law (ch. 930), the Public Officers Law (ch. 931), the Public Lands Law (ch. 932), the Prison Law (ch. 933), the Personal Property Law (ch. 934), the Legislative Law (ch. 936).

a group of practice acts, brought together the law on that subject but confined its express repeals to parts of the former Code of Civil Procedure. It goes without saying that the intermediate courts which are shared with the rest of the state, even though modified within the area of New York City, are governed by bodies of law which exist outside the charter.

Procedural and penal provisions, even more than judicial organization, invite a weaving of general law in and around the charters of cities. The Charter Commission of 1908-9 took a view that was on all fours with their wish to shorten and to simplify:

"The present charter contains fully 170 sections which, being penal in their nature, should disappear from the charter proper. Many are repetitions of provisions of the Penal Code or Code of Criminal Procedure, and are altogether needless in the charter. Others so nearly repeat the provisions of one or the other code as to leave the law. in doubt, because of the question raised as to which is controlling. Others, in whole or in part, are in neither the Penal Code nor the Code of Criminal Procedure, yet in one or the other code they undoubtedly belong. All penal charter sections have been segregated, and we recommend their re-enactment in a separate chapter of the administrative code until such time as they shall have been properly cared for in the Penal Code or Code of Criminal Procedure."

Yet, in the very next breath, they confessed the inherent difficulty in the way of any attempt wholly to segregate provisions of this kind on one side or the other of the line. "A few penal sections touching matters of peculiar gravity are retained in the proposed charter," their report stated, "for the sake of greater clearness and in order that the charter may adequately depict the entire plan of city government."

The authors of the New York City Consolidation Act of 1882 had sought to straddle the difficulty by a device which has already

1Report of the New York Charter Commission, March 8, 1909, op. cit., PP. 17-8.

been the subject of comment in another connection. Certain sections of the Consolidation Act were declared to contain the substance of parts of the Code of Civil Procedure and the Code of Criminal Procedure and not to "be construed as making any new enactment, or as repealing, modifying, amending or superseding any provision of either of said codes, or any amendments thereof * **"'1 *." Thus it sought to avoid confusion by keeping the final source of authority in this field single, although, one may add, it was held that the differing language of the Consolidation Act might be used to clarify the meaning of the codes.2 These provisions did not apply to the penal law, however; as to this the Consolidation Act merely stipulated that the new Penal Code, although already enacted, should be given the same effect as if passed after the Consolidation Act. This did not prevent the city charter from serving as an independent source of penal law. It remained possible by special act to make a certain kind of" conduct in the City of New York an offense and to provide for its punishment, even though it would not be a penal offense elsewhere, or would be crime of a higher degree if committed elsewhere."

These peculiar saving clauses of the Consolidation Act were not renewed in the Greater New York Charter. They are not, however, quite bereft of contemporary significance, in view of the principle which has construed the charter as a continuation

1L. 1882, ch. 410, sec. 2143.

Deutermann v. Wilson (1888), 15 N. Y. Civ. Proc. Rep., 411.

'L. 1881, ch. 676, "An act to establish a Penal Code," passed July 26, 1881, and therefore in process of formation while the Consolidation Act was being drawn finally together.

For a leading case giving this effect, see People v. Jaehne (1886), 103 N. Y., 182; see also People v. O'Neil (1888), 109 N. Y., 251. But note that People ex rel. Van Heck v. Catholic Protectory (1885), 38 Hun., 127, aff'd 101 N. Y., 195, held that the Penal Code was not to be regarded as having repealed anything in the Consolidation Act, since "this act was enacted when the Penal Code was within the knowledge and was in the mind of the legislature."

"People v. Sheridan (1888), 1 N. Y. Supp., 61, 48 Hun., 620 (dropping from Penal Code provision vs. sprinkling salt on streets did not repeal a somewhat similar provision in the N. Y. C. Consol. Act of 1882, although both items were derived from same prior act); People v. Rontey (1889), 4 N. Y. Supp., 235, 51 Hun., 640, aff'd 117 N. Y, 624 (Consol. Act provision regarding proprietors of pharmacies not affected by the Penal Code provision regarding clerks in such places, the two being different).

'People ex rel. Smith v. Van de Carr (1903), 86 App. Div., 9.

of the Consolidation Act of 1882. In People v. Jensen,1 for example, a current charter provision, because identical with a section of the Consolidation Act, was held to be affected by an amendment added to the Penal Code in 1884. But the device itself was abandoned. Penalties and procedure have become the subjects of undifferentiated masses of legislation outside as well as inside the charter. How widely a code of procedure must touch the miscellaneous aspects of a large local government may be judged from the fact that, when the old Code of Civil Procedure was broken up in 1920, its subject-matter was distributed into twenty-two acts, of which only five were exclusively practice acts and of which fourteen were chapters of the consolidated laws that the casual view would never associate with judicial procedure.

Legislation for Counties.

Legislation for counties, in view of the fact that those within Greater New York have been nearly stripped of all save judicial and recording functions, has been closely related to the bodies of law which have just been discussed. Like them, it is part of the uncertain context of the charter. The former powers of county. boards of supervisors devolved broadly on the Greater City; the delimiting of the boundaries of Queens County in 18982 eliminated the last case of overlapping by a county partly within and partly outside the city limits; a constitutional amendment of 18993 opened the way for a sweeping clause in the charter of 1901 regarding the transfer of county functions.

1

3

1 (1904) 99 App. Div., 355, aff'd by memo. (1905), 181 N. Y., 571. 'L. 1898, ch. 588.

N. Y. Const., 1894, Art. III, sec. 26, as amended November 7, 1899, reads in part: "In a city which includes an entire county, or two or more entire counties, the powers and duties of a board of supervisors may be devolved upon the municipal assembly, common council, board of aldermen, or other legislative body of the city."

L. 1901, ch. 466, sec. 1586: “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 the City of New York not transferred or devolved upon administrative departments, boards, commissions, officers or other functionaries, are hereby vested in the board of aldermen of the City of New York." This was less qualified than the sec. of the same number in L. 1897, ch. 378.

Much of the legislation affecting the counties within New York City is general, or at least ostensibly general. More, perhaps, is frankly special. Such bills need not be submitted to the city authorities, even when they involve a direct city charge,1 although through friendly intention2 or mere inattention they have sometimes been put informally before the Mayor. Each year has seen county legislation scattered further afield.

Thus the session of 1920 passed twenty-eight acts that expressly named particular counties within New York City; of these, twenty-two applied to a single county, six named counties in combination. Two other acts, although in form general, were qualified by particular population limits that confined their effect

1

See, e. g., McGrath v. Grout (1902), 171 N. Y., 7, which held that L. 1901, chs. 704-5-6, making certain offices in Kings County salaried and dependent on city funds, were not special city laws; it was said they did not affect the city government, its property, or its particular affairs." In 1916, as a phase of the program of the Joint Legislative Committee on the Finances of New York City, a proposed constitutional amendment requiring the submission of bills affecting counties within a city to the city authorities was introduced (S. Int. 602, S. Pr. 634, by Sen. Brown) and passed the Senate April 12 by a vote of 29:20. 18 of the negative votes were cast by New York City members, 15 being Democrats (7 from N. Y. Co., 6 from Kings, 2 from Bronx Co.) and 3 Republicans (2 from Kings, 1 from N. Y. Co.). The opposition included no less than three gentlemen who, then and since, have been the tireless floor leaders of their party and the champions of the city in the Senate. N. Y. Sen. Jour., 1916, p. 1190.

'The instances have not been numerous in the aggregate. See table, in Appendix A. In 1922, the Governor submitted a score of county salary bills to the Mayor and followed him in disapproving all of them. Report of the Committee on Legislation of the Citizens' Union, 1922, p. 16. L. 1921, ch. 586 (involving a salary increase in the office of the County Clerk of Kings), was, while a bill, sent to the Mayor along with special city bills. The legislative clerk attempted to recall it, alleging a mistake. The Mayor vetoed it, but it received the Governor's signature. Report (typewritten) of N. Y. C. Law Department, Legislative Bureau, on Session of 1921, p. 9. In 1916, Mayor Mitchel vetoed a bill (later L. 1916, ch. 600) in relation to the liability of the Register in N. Y. Co. for mistakes in official searches. Advised by the Attorney General that it was not a special bill, Gov. Whitman signed it. Report of Law Department of City of New York, 1916, p. 39. In view of the evident element of ambiguity in sec. 2 of Art. XII, providing for the local reference of city bills, it is to be regretted that the proposed amendments of this section (such as that defeated at polls in 1922) have not at least gone further in clarifying the meaning of provision. An illustration of the confusion in procedure which such proposed amendment evidently seeks to correct is afforded in People ex rel. Boyle v. Cruise (1921), 231 N. Y., 639, aff'g 197 App. Div., 705, 189 N. Y. Supp., 338.