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cise any particular power drawn from the act. Where, however, law or ordinance had already vested "such power” in the hands of some agency, the new power should be carried on by it and in the manner already provided, “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in terms or in effect, to prevent the exercise or limit the extent of any power granted by this article, shall be superseded." Yet even when thus " freed from the limitations imposed by such provision,” the power in question was to be carried on by the same body in whose hands it would lie if nothing were superseded.

The authors of the act, in truth, claimed for it no revolutionary effect upon the power of city councils over the express provisions of existing charters.1 If their viewpoint, with its fancied distinction between power and the means of its exercise, had been kept in mind, it should not have been difficult to construe the intent which was shadowed in these phrases, however serious might be the obstacles, constitutional and practical, in the performance of the theory. Did it not mean that, imagining powers as fluids and the various agencies of city administration as the pipes through which they flow, no rearrangement of existing pipes was contemplated but that, where some power already flowed and was restrained by some internal obstruction from reaching the extent to which the level of the new reservoir would drive it, such obstructions might be disregarded? But what sort of obstructions? And how could they be brushed aside without involving the repeal of state law by local ordinance? The one easily conceived application of the

provisions of this subdivision, such power, freed from the limitations imposed by such provision, shall be exercised by the same officer, officers or official body that would be vested with the same under the provisions of this subdivision, if such provision had not been superseded, but the exercise thereof shall be subject to the limitations provided for in subdivision two of this section."

See, for example, the moderate statement by L. A. Tanzer, op. cit. p. 602, “This grant of power is not in substitution for, but is in addition to existing powers and fills up gaps in powers now existing in any city. Every existing power is to be exercised in the manner now provided in the charter of the city

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provisions already quoted, which would not involve the local repeal of the express terms of law, would have been to hold that an existing charter grant of a power to some particular agency no longer could create an implied restriction against the further grant by ordinance of power along the same line.

Judicial construction soon frowned down the notion that the Municipal Empowering Act permitted the alteration of existing charters without further legislative action. For a little space the idea seemed to have official sanction in an opinion of the Attorney General to the Legislature on April 30, 1913, and the Governor was so persuaded of the corrective efficacy of the new legislation that he vetoed eighty-five and signed only sixty special acts relating to municipal affairs. Within two months, however, the Attorney General (advised, it may be said, by the sponsors of the act) shifted his ground and took a position on delegation of legislative power which was as unfortunately narrow in the other direction.1

Two early cases failed to be conclusive. Hammitt v. Gaynor, it is true, held that the Municipal Empowering Act did


Opinions of the Attorney General of New York, 1913, vol. II, pp. 375-82, reproducing an address before the Annual Conference of Mayors on June 5, 1913. The argument of Attorney General Carmody centered upon the unconstitutionality of any, delegation of legislative power (although it did not pause here to explain the large police power already possessed by city councils), rather than upon the competence of the legislature to delegate an undefined power to undo what it has expressly done. Shortly after, the Attorney General held that the Common Council of Kingston could not put the city marshal, who received fees under L. 1910, ch. 647 (amending the charter), on a salaried basis; the ground given, however, is that even the legislature could not by special act increase or decrease fees during the term of office (Art. III, sec. 18). Op. cit., pp. 677-9. In 1916 the State Comptroller cited the address of June 5, 1913, as his authority for holding that the council of Glen Falls could not fix the salary of the city chamberlain at an amount in excess of the salary named in the charter, yet even then he did not seem to grapple with the vital issue, saying instead : “My conclusion is that the fixing of salaries is not one of the powers conferred generally or specifically by ch. 247 of the Laws of 1913, and that the provision of the Glen Falls charter mentioned above, has not been superseded.” Opinions of State Comptroller, 1916, in 9 State Dept. Rep., 466, 467.

(1913) 144 N. Y. Supp., 127, 82 Misc., 196, aff'd without opinion (1914) 150 N. Y. Supp., 1089, 165 App. Div., 909. The special act involved was L. 1911, ch. 669. The subdivision of the Municipal Empowering Act in point (sec. 20, subd. 20), provided : (every city is empowered)

To provide methods and provide, manage, and administer funds for pensions and annuities for and retirement of city officers and enployees."

not supersede an act of 1911 which had prescribed the conditions under which members of the Board of Estimate and Apportionment in New York City might retire employees; but the court was able to point, and it did point, to the fact that in any event no local action had yet been taken to supersede the law of 1911; the dictum, which pointed in the direction of the power to repeal, may therefore be disregarded. Gibbs v. Lutheri decided that the Municipal Empowering Act did not by its grant of power over streets supersede provisions in the charter of Olean which required certain preliminaries in street opening. Although the opinion held flatly enough that “the Home Rule Bill grants powers in addition to and not in substitution of the charter provisions, and is intended to supply omissions," the bearing of the decision upon the immunity of statutory provision from local repeal was obscured by the concern of the court at the dangerously unrestricted power which the Municipal Empowering Act would give the common council over property owners in all matters of street opening and by the court's belief that purely legislative powers cannot be delegated.

Geneva v. Fenwick2 was more completely decisive. In holding that the act did not authorize the common council of Geneva to take action which would validate a bond issue against which irregularities under the existing charter provisions were alleged, the Court said:

“ I do not believe that by the enactment of the ‘Home Rule Bill' (so-called) the Legislature intended to confer on municipalities the right to over-ride plain charter pro


(1913) 143 N. Y. Supp., 90, 81 Misc., 611, aff'd (1913) 158 App. Div., 951, 143 N. Y. Supp., 1118. The judicial brows lifted a bit at the idea of home rule; the tone was faintly sarcastic.

(1913) 159 App. Div., 621, 626, 145 N. Y. Supp., 884. The decision is of added interest because Gov. Sulzer had vetoed a bill in the session of 1913, proposing to validate the bond issue, his reason being that such act was unnecessary in view of the enactment of the Municipal Empowering Act. Although it is not directly in point, it is interesting to note that in 1918 the legislature passed in both houses a proposed constitutional amendment (S. Int. 1151, by Mr. Sage), attempting to add in the section (Const., Art. 3, sec. 18) which enumerates matters on which private and local bills may not be passed, two items, one of which forbade the legalizing of procedure in municipal bond issues by special act. It was not re-enacted by the session of 1919.

visions, ample and efficient to accomplish a given purpose. To hold other would be to invest municipalities with the right to frame their own charters and to utterly disregard special powers conferred upon them by the legislature. It seems to me that the powers granted by the Home Rule Bill were not in substitution of the powers, rights and privileges existing in any municipality pursuant to any existing provision of law. Where charters are complete and contain all necessary powers to attain a given purpose, it is idle to invoke the aid of the act referred to."

Has the Municipal Empowering Act Enlarged the scope of Local

Action in Any Respect?

But it may be asked whether, even if the Municipal Empowering Act has not opened the way for the remaking of charters locally, there have not been fields relatively disentangled from existing statutory detail in which the scope of city powers has been enlarged and resort to special declaratory amendment made unnecessary. The answer is not easy. In so far as the act of 1913 has been one of the factors making for a more liberal construction of municipal powers, it may have been at work even in situations in which it has not been mentioned, and it is impossible to measure its influence. Direct resort to it has been infrequent, if one may judge by the seemingly unchanged number of special city bills which have been introduced and passed in the sessions since 19132 and by the small number of adjudicated cases which have involved it.

*For a summary of conflicting current tendencies in the law of municipal corporations, see H. L. McBain, American Municipal Progress and the Low (1917), ch. II, “The Rule of Strict Construction," concluding:

it is open to question whether it may be said that the rule is gradually being broken down. It is a difficult task to weaken the force of a long-standing rule of law. From the cases that have been under review, nevertheless, it would seem that important inroads are being made upon the rigidity with which the rule of strict construction has been applied” (p. 57).

"A study of the number of bills at Albany shows that although the number of special city bills introduced, passed and signed fell off in 1914 and 1915, the decline was temporary; furthermore, in 1914, it was no greater proportionately than the falling off in the legislative output on all subjects.

A few cases which have pointed toward enlarged power claim attention first. Mollnow v. Rafter1 and Matter of Christey2 held, in different connections, that under the Municipal Empowering Acts cities might pay claims that admittedly they were not competent to settle under their existing charters.

Other cases which have expressly considered the Municipal Empowering Act as a factor in city power, and which have sustained the city's action, decided little on the point in question, since they ended by holding that local authority was already forthcoming under existing law.

Hellyer v. Prendergast is especially instructive because it illustrates that, in New York City at least, the charter already contains general grants of power and elastic clauses which can be stretched nearly, and perhaps quite as far as the provisions of the Municipal Empowering Act. The ordinance in dispute was attacked on the grounds that the charter gave the department of health full jurisdiction over its employees. In upholding the ordinance, the court relied, not merely on the Municipal Empowering Act," but on an elastic clause which caps the enumeration of powers of the Board of Aldermen in the char


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(1915) 89 Misc., 495, 152 N. Y. Supp., 110, involving the power of the city council of North Tonawanda to pay a judgment (with expenses) against a policeman who had been sued for using force in making an arrest. The power of the city to pay the judgment against the policeman was in this case denied, however, on the grounds that it would constitute a gift and as such would be contrary to Const. Art. 8, Sec. 10.

(1915) 92 Misc., 1, 155 N. Y. Supp., 39, involving the power of Buffalo to pay the expenses of the city auditor in a suit in which he successfully defended his right to keep the office.

•The item in the Municipal Empowering Act in point was: “(every city is empowered)

to pay or compromise claims equitably payable by the city, though not constituting obligations legally binding on it” (L. 1913, ch. 247, sec. 20, subd. 5).

* Hellyer v. Prendergast (1917), 176 App. Div., 383, 162 N. Y. Supp., 788 (sustaining a New York City ordinance providing that only citizens and actual residents of the city should be appointed in the several departments); City of Buffalo v. Till (1920), 192 App. Div., 99, 182 N. Y. Supp., 418 (sustaining, an ordinance forbidding street speaking without mayor's permit as valid anyway under charter); People ex rel. Economus v. Coakley (1920), 110 Misc., 385, 180 N. Y. Supp., 386 (sustaining Utica's power to license pool halls as probably valid in any event under the Second Class Cities Law). Sec. 20, subd. 17, “(every city is empowered):

* To determine and regulate the number, mode of selection, terms of employment, qualifications, powers and duties and compensation of all emplovees of the city and the relations of all officers and employees of the city to each other, to the city and to the inhabitants."

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