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largely to counties within the Greater City or on its immediate borders. Two-thirds of the total number involved the fixing of salaries or other compensation, being, with one exception, mandatory as far as the central city authority was concerned; two others involved the fixing of the number of subordinate employees. Such legislation, thrown off at about the same rate at each session, is nowhere assembled. It amends neither the charter nor any large body of general law. Only ten of the thirty acts under consideration, for example, related in terms to the County Law or to other chapters in the Consolidated Laws.
The Problem of a Better Adjustment of Special and General Law.
The survey which has occupied the preceding paragraphs has at least suggested the width and variety of the general legislation that may affect city affairs. Unless express directions are attached, the relations of general law and charter provisions can be decided only upon the basis of the broad principles already stated. Express directions in the general statutes themselves have sometimes mitigated the problem. It is easy to exempt a particular city outright from all or part of an act. It is easy and, in view of the tendency to resolve doubts against general law, more important to make the act expressly inclusive, as: “wherever the provisions of this act are in conflict, either direct or implied, with any provision of any present or future charter, local regulation or ordinance * * * the provisions of this act shall in all cases govern”;1 or, “the provisions of this section shall apply to all cities of the State, including the City of New York ;'or, again, "notwithstanding the provisions of such general or special law" as may already exist.3 But such qualifications are hardand-fast. Flexible directions are sometimes attempted: as, after stating a certain method of choosing an officer, “or in such other way as the city charter shall designate ;"4 or, to cite another ex
L. 1913, ch. 774.
ample, "authority designated by the Mayor, unless the charter
designates”;1 or, qualifying the whole operation of the act," nor shall this section have any application to cities in which boilers are regularly inspected by competent inspectors, under the authority of local laws and ordinances.”2
The concluding example shows that it is not easy to draft a provision that will at once permit a flexible adaptation of che law and at the same time not raise more doubts than it settles. This difficulty, and the prolix and dispersed condition of so much local law, tempts the Legislature to leave the adjustments between general and special legislation to time and circumstance and the implicit rules of construction. The failure to make the relationships express often needlessly aggravates an element of uncertainty which at the best could not be entirely eliminated under any practicable system of local government.
The Common Law as a Source.
In bringing to a close the survey of the sources, other than in special law, of provisions that affect New York City, it is necessary to mention the common law.
Here, also, the law of the city merges without sharply-drawn boundaries into unmapped territory. It is an incompleteness, of course, shared with statute law generally. Although statutory provisions which expressly or impliedly show an intention to exhaust the rule or remedy will usually operate to repeal common law on the point, even though consistent, the Consolidation Act of 1882 was held to allow the persistence of common law. One expression of judicial opinion will illustrate. In Poth v. the Mayor, etc., of N. Y.,3 the Court of Appeals said:
While this Court has not before been called upon to determine whether in such actions the plaintiff's damages could be limited by the provisions of sec. 903, it has held, in many of the cases cited, that the provisions of the
L. 1911, ch. 252.
Consolidation Act presented no obstacles to the property
But the additions which can thus be brought to the written charter are procedural rather than substantive and concern the minutiae where the city touches private property rather than the field of broader governmental powers. For practical purposes, this element of incompleteness in the written charter is not serious.
Where, then, are the sources in law of the city government today? It was this question that provoked the examination of the problems of unrepealed special law and of parallel general and special legislation. The discussion has shown the variety of the sources of law affecting New York City. These may be summarized in retrospect in tabular form. Even as a bare indication, neither part of the summary makes pretense of being complete. The first part of the table, outlining the sources in special law, obviously fails to encompass the tangled story of the many partial territorial consolidations, each with its devolution of power, that have gone into the making of the present City of New York. An attempt is made to show something of the chronological relation of the several elements of special law, but it is important to remember that all remain at least potentially effective as sources of the City government. The second part of the table, sketching the sources in general laws, is even less complete. In the nature of things, its headings are no more than loose descriptions and the acts which it names, although among the most important, are merely illustrations. The summary follows:
11. e., Title 3, "Vacating and Modifying Assessments,” found in Ch. XVI, L. 1882, ch. 410.
(a) acts since 1897
4. Unrepealed special 7. Powers and rights 9. Powers and righto.
acts, 1882 - 1896, of Brooklyn city, in regard to disconwhich although re
Long Island City. tinued county funclating peculiarly to
and towns and vil- tions, devolved by N. Y. C., did not lages in Queens and blanket clause on in terms amend the Richmond counties, Gr. N. Y. C. Consolidation Act devolved by blanof 1882.
ket clause on Gr.
N. Y. C.
of 1882 and its
10. Powers and rights the act were neither
already devolved repealed expressly
upon old N. Y. C. nor repealed by
and Brooklyn city inclusion in the
earlier partial charter (in which
consolidations with case they are con
Co. and strued as
Kings Co., respec-
far as applicable.
prior to 1882, omit-
SOURCES IN GENERAL LAW.
SCOPE OF APPLICATION
1. General acts which have amended assembled and organized
bodies of law
General City Law
Public Officers' Law
The Penal Law
The Judiciary Act
Rapid Transit Act
Tenement House Act (f) relating, as amendmente, to the numerous subjects of
the chapters of the Consolidated Laws of New York. 2. General acts which have not in terms amended any
assembled and organized bodies of law. 3. Common law.
From these sources flows the law that officers and, indeed, citizens also must know. The uncertainties are seen in three directions: (1) backward, the search for the law, to be sure and conclusive, cannot stop even at 1882 but must go beyond the New York Consolidation Act and, as regards the legislative heritage from the municipalities on Long Island, at least back to the Brooklyn Consolidation Act of 1888; (2) outward, the search is cumbered by irrelevancy, arising, first, in the enactment of special laws needlessly unrelated to the charter and, second, in the frequent failure to minimize, by careful qualification, the necessary evil of overlapping general and local law; (3) inward, by a prolixity of text, which, for all its detail and often because of its detail, is not self-explanatory, as the numerous merely declaratory amendments of the last two decades amply prove.
Is simplification possible? The answer can best be approached by reviewing legislative devices whereby it has been attempted to give the local authorities partial command of the statutory sources of their government.