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CHAPTER IV.

ATTEMPTS TO EMPOWER THE LOCAL AUTHORITIES

TO CHANGE THE SOURCES.

I. The Scheme of a General Grant of Power Superimposed on Existing Charters—The Municipal Empowering Act of 1913—— Did it Confer Local Power to Change Existing Law ?-Has it Enlarged the Scope of Local Action in any Respect?-II. Conditional Repeal and the Replacement of Charter Provisions by Ordinances(1) The Greater New York Charter and the Building CodeThe Validity of Conditional Repeal Assumed by the CourtsAn Element of Uncertainty Created—Conclusion—(2) Conditional Repeal of Designated Charter Sections, 1901—The Validity of Conditional Repeal Again Assumed by the Courts—But Serious Uncertainties Again Created_Conclusion—(3) Conditional Repeal in the Grant of Power to Change Salaries—The Evolution of the Provision-Early Ambiguities—The Uncertain Scope of the Provision as Revised in 1901-Proposals to Enlarge Local Power Over Salaries—The Existing Provision as Precedent and Warning—III. Proposed Application of Conditional Repeal in a Blanket Grant of Power to Reorganize Departments-Judicial Construction of the Optional City Government Law of 1914 in its Relation to Local Power Over the Statutory Sources of Administrative Organization-Conclusion.

Can the Legislature, by conferring on local authorities what is practically the power to set aside the provisions of existing law, find a short-cut past the masses of detail in the charter and in other special laws affecting the City of New York?

The question strikes deeply into the problem of the charter. The ultimate necessity and the greatest difficulty in charter revision lies in the treatment of these masses of statutory detail. Even granted a willingness on the part of the Legislature to repeal them outright in wholesale fashion and to empower the local authorities to deal with such matters as many of them have covered, a further and more serious obstacle remains : some of this legislation cannot be repealed indiscriminately and out of hand, in the absence of affirmative provisions to take its place and without regard to the need of unbroken continuity and smooth transitions in the conduct of city affairs. The difficulty points to the desirability of schemes whereby the Legislature, without assuming either the risk of immediate and sweeping repeal or the task of considering and mulling over the details itself, can empower the local authorities to change the statutory sources of their government by a more gradual process of replacement.

The problem here presented can best be considered by reviewing past attempts. It is necessary to examine, in the first place, the attempt to superimpose a blanket grant of power upon existing city charters. In the second place, coming nearer to the heart of the problem, it is necessary to examine the uses of what may be called conditional repeal, whereby certain parts of the charter or of other special laws affecting New York City have been repealed contingently upon their replacement by local ordinance. The consideration of the past uses of this latter device (in connection (1) with building laws under the Charter of 1897, (2) with a number of designated charter sections under the Amendatory Act of 1901, and (3) with the salary-fixing power) leads finally to an examination of the proposal, closely related to the foregoing, that the city authorities should be empowered to reshape administrative organization irrespective of existing law.

I

The Scheme of a General Grant of Power Superimposed on Existing ChartersThe Municipal Empowering Act of 1913.

The expedient of a pervasive and corrective grant of power, poured by a general act through the interstices of existing charters, was notably illustrated in the Municipal Empowering Act (or, to use its less accurate popular name, the Home Rule Law) of 1913.1 Although its purposes embraced all cities in the State and although its results, as far as judicial construction goes, must be traced largely in the affairs of smaller places, this act must be reckoned with by the student of the statutory sources of New York City government in search of methods whereby elements of flexibility can be introduced.

*L. 1913, ch. 247, constituting Art. 2a (secs. 19-24, incl.) of the General City Law, which is ch. 21 of the Cons. Laws. The act has since been amended by L. 1917, ch. 483, adding 3 subdivisions to sec. 20, 24 (power to regulate the height of buildings, etc.), 25 (power to restrict the location of trades and industries), and 26 (stating that the two previous subdivisions should not apply to cities of 1st class having population above 240,000 and less than 450,000). It should be noted that L. 1914, ch. 470, adding secs. 242a and 242b to the New York City charter, had already conferred the so-called zoning power on that city specially. Sec. 20a was added to the General City Law by L. 1921, ch. 230, author. izing the establishment of purchasing departments, but cities of the 1st class over 1,000,000 were expressly excluded. The Municipal Empowering Act was largely the result of the joint endeavors of the Municipal Government Association (incorporated in 1912) and the Conference of Mayors, which, at its third annual meeting in June, 1912, passed the following resolution: "That the Mayors' Conference urge upon the legislature the grant of broad, general powers to all city governments in the State, to the end that each city may have sufficient power to actually control its own affairs." Although its enactment was doubtless facilitated by the unusual circumstance of Democratic control in all branches of state government, the final passage of the Municipal Empowering Act did not show partizanship or even sharp controversy. See, however, the extravagant claims for the act in the Democratic Municipal Platform of 1913. N. Y. Times, August 24, 1913, II., 2:2. The legislative history of the act was briefly as follows: introduced February 21 by Sen. Cullen (S. Int. 947, Pr. Nos. 1063, 1560), and in Assembly by Assemblyman Levy (Ass. Int. 1265, Pr. Nos. 1369, 1804). The latter, after minor amendments, passed first, March 20, by a vote of 129:00 (Ass. Jour., 1913, p. 1344), but upon arrival in the Senate (as Rec. 344) was laid aside in favor of the Senate bill, which, after some amendments, passed March 26 by a vote of 43:3, those in the negative being Murtaugh, D., Elmira, Argetsinger, R., Rochester, and E. R. Brown, R., Watertown (Sen. Jour., 1913, p. 916). As Rec. 218, this passed the Assembly March 27, without amendment, by a vote of 131 :00 (Ass. Jour., p. 1629). It was approved by Governor Sulzer April 10, 1913. In view of Sen. Brown's opposition and his relation later, as chairman of the Joint Legislative Committee for the investigation of the Finances of the City of N. Y. (1916), to empowering legislation, it may be noted that he carried his opposition to the Municipal Empowering Act to the point of introducing, April 28, 1913, a bill (S. Int. 1818) which proposed to repeal the new act; it naturally died in committee (Sen. Jour., 1913, p. 1739).

It facilitates an understanding both of the purpose that was set for the Municipal Empowering Act before its passage and of the difficulties that embarrassed its operation afterward to have in mind the point of view of its sponsors. They drew a distinction between power and the agencies whereby it is exercised. They minimized the fact that in any city under an existing legislative charter, powers are mostly vested not in the municipal government as a whole but in particular parts thereof and that for this reason power and the means of its exercise are inextricably confused.1 An example of the viewpoint behind the Municipal Empowering Act may be cited. Consciously speaking for “the little group of men in this State who have made the term 'municipal home rule' have the meaning and vitality attained by it in the last few years," the then secretary of the City Club of New York said in 1915:1

'On this point see H. L. McBain, The Law and the Practice of Municipal Home Rule (1916), p. 111; also American Municipal Progress and the Low (1917), by the same author, at p. 6.

1

“Far from pursuing the loose theories, to call them no worse, followed in some of the western states, we have pursued a diametrically different policy. The West has placed its entire emphasis upon the right of a city to control the form of its municipal organization. Those of us in the State of New York who have been working on this problem recently have put our whole emphasis upon the fact that home rule is essentially a question of the breadth and sufficiency of the legal powers with which a municipal corporation is clothed. Therefore, long before we thought of raising seriously the question as to the form of municipal organization, we sought to establish, for the first time in the history of the State, a common pool of municipal powers which each city shared with every other city. That was the object and partial accomplishment of chapter 247 of the Laws of 1913."

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The act, in its initial clause (sec. 19) declared that: “Every city is granted power to regulate, manage and control its property and local affairs and is granted all the rights, privileges and jurisdiction necessary and proper for carrying such power into execution. No enumeration of powers in this or any other law shall operate to restrict the meaning of this general grant of power,

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Robert S. Binkerd, in Proceedings of the Academy of Political Science, January 1915, vol. V, no. 2, p. 72. Mr. Binkerd added in the course of his remarks: “It is not possible, without constitutional change, to pursue this program to its ultimate conclusion

See also the interpretation given by Laurence A. Tanzer, who, as counsel of the Municipal Government Association, was the chief draftsman of the act, “ Legislative Interference in Municipal Affairs and the Home Rule Program in New York,” National Municipal Review, October, 1913, vol. II, no. 4, p. 602. See also a book by the former secretary of the Municipal Government Association, Walter T. Arndt, The Emancipation of the American City (1917).

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or to exclude other powers comprehended within this general grant." The next section with its twenty-three subdivisions conferred, " subject to the constitution and general laws," a number of powers which, although entitled specific, were in fact so broadly drawn and necessarily so miscellaneous in content that their reproduction in any summary is impossible. The exercise of powers under the act was hedged about, finally, by fairly exact restrictions inapplicable to the exercise of an existing power) upon procedure in the incurring of obligations and in the disposal of city real estate and franchises (sec. 23,2). Two provisos qualified the entire act. One (sec. 21), a definition, stated: “ The terms 'public or municipal purpose' and 'general welfare,' as used in this article, shall each include the promotion of education, art, beauty, charity, amusement, recreation, health, safety, comfort and convenience, and all the purposes enumerated in the last preceding section.” The other (sec. 22), a saving clause, provided: “The powers granted by this article shall be in addition to and not in substitution for, all the powers, rights, privileges and functions existing in any city pursuant to any other provision of law.”

Did the Municipal Empowering Act Confer Local Power to

Change Existing Law? From the standpoint of the present study, the most interesting problem in the operation of the act was whether it enabled local ordinances to supersede the written provisions of state law. The language permitted, if it did not invite, confusion on this point. The troublesome phrases may be recalled. In the absence of provision of law or ordinance (according to sec. 23), the local legislative body was to determine the agency which was to exer

The exact text of sec. 23, subd. 1 read: "The powers granted by this act are to be exercised by the officer, officers or official body vested with such powers by any other provision of law or ordinance (subject to amendment or repeal of any such ordinance) and in the manner and subject to the conditions prescribed by law or ordinance (subject to amendment or repeal of any such ordinance), but no provision of any special or local law shall operate to defeat or limit in extent the grant of powers contained in this act; and any provision of any special or local law which in any city operates, in terms or in effect, to prevent the exercise or limit the extent of any power granted by this article, shall be superseded. Where any such provision of special or local law is superseded under the

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