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ter, stating in part that the board shall “pass all such ordinances

as to the said Board of Aldermen may seem meet for the good rule and government of the City."1 Any new broad grant was a matter of carrying coals to Newcastle.

Against these affirmations or half way affirmations must be set several outright refusals to allow cities to draw new powers from the Municipal Empowering Act. Two of the cases rested upon the ground that the mooted ordinances involved general legislative power. In deciding that Yonkers could not penalize Sunday exhibitions by fine or imprisonment, it was said that “the additional powers granted by chapter 247 of the Laws of 1913 *

did not, and could not, surrender the general power to legislate against criminal offenses, which remains in the Legislature.''2

So, too, a New York City ordinance which sought to regulate the selling and reselling of theatre tickets was invalid despite the City's appeal to the broad grant with which the Municipal Empowering Act begins. Justice Greenbaum said :3

" It was doubtless the intention of the Legislature by that section to overcome the effect of the former strict rule of construction which limited the powers of a municipal corporation to those expressly granted by extending them to all matters with which it may deal under the general grant of power conferred by the charter, even if they may not have been specifically enumerated therein. But assuredly this liberal construction of the charter as to the powers of the city may not be held to confer general legislative power upon the municipality. The business of selling tickets is not a matter which would fall within the scope of any duty or power implied in

'L. 1901 ch. 466, sec. 44, as amended L. 1905, ch. 629, sec. 5.

'People ex rel. Kieley v. Lent (1915), 166 App. Div., 550, 551, 152 N. Y. Supp., 18, aff'd 215 N. Y., 626. The provision of the Municipal Empowering Act which was appealed to reads (sec. 20): “ (* every city is empowered)

22. To regulate by ordinance any matter within the powers of the city, and to provide for the enforcement of ordinances by legal proceedings, to compel compliance therewith, and by penalties, forfeitures and imprisonment to punish violations thereof."

Matter of Gilchrist (also by same opinion In re Newman) (1920), 181 N. Y. Supp., 245. 246, 110 Misc., 362. The ordinance in question, approved December 13, 1918, as sec. lla of ch. 3, Art. I of Code of Ordinances, not only required a license fee of $250.00 to sell tickets, but specifically stated that the resale price should not be more than fifty cents over the regular rate as printed on the ticket.

the charter."

Another casel brushed aside the Municipal Empowering Act, as it did the royal grants, as a source of local power to compel the relocation of street railway tracks in New York City, although it admitted that the legislature might extend its police power to the matter and although the legislature did deal with the situation by a very specific charter amendment in the next year.

Two recent cases have given a narrow construction to the term “municipal affairs” as employed in the Municipal Empowering Act. Could the City of New York operate motor-bus lines ? When the question was presented in Brooklyn City R. Co. v. Whalen, the City's representatives pointed both to the Municipal Empowering Act and to the existence of an emergency. Justice Blackmar denied authority, saying in part:

“ It would be futile to attempt a definition of what constitutes local affairs' within the meaning of the act. But one thing, I think, may be safely said, and that is

1

2

People ex rel. City of N. Y. v. N. Y. R. Co. (1916), 217 N. Y., 310, 313; Cardozo and Seabury, JJ, dissenting on the ground that the existing local control over streets carried with it a grant of police power. The majority opinion did not draw the line between the charter and the Municipal Empowering Act as possible sources of authority in the matter. The charter amendment which corrected the situation was L. 1917, ch. 692, adding sec. 242c. For a discussion of the bearing of the case on present-day efficacy of the royal grants, cf. supra, p. 58.

(1920) 182 N. Y. Supp., 283, 285, 191 App. Div. 737 (aff'g 181 N. Y. Supp., 208, 111 Misc., 348), and aff’d by memo. only, 229 N. Y. 570. The law department of New York City, on January 9, 1920, 56 Op. of the Corp. Counsel 34, had advised that the Municipal Empowering Act was in itself ample basis for the municipal operation of motor bus lines. Another opinion that had declared power to act was that of May 24, 1920, vol. 56, p. 537, involving the taking over of a discontinued ferry between 92d street and Astoria. So, too, an opinion of December 3, 1918, vol. 53, p. 655, approving, inter alia, a proposed ordinance involving the licensing of rapid transit employees. The latter virtually over-ruled an earlier opinion, September 30, 1916, vol. 49, p. 315, on a related point. But, on the other side, see the opinion of April 8, 1919, vol. 54, p. 436, advising that power to pass an ordinance that proposed a municipal milk distributing plant did not exist under the Municipal Empowering Act.

that the power to control ‘local affairs' does not add new powers to the corporation. The act refers to local affairs which were such at the time the act was passed in 1913. Certainly municipal operation of bus and stage lines was not a local affair at that time."

People v. Dibblel was the more striking in the narrow construction which it gave to the Municipal Empowering Act, for, in denying that Schenectady could establish a scheme of group insurance for its employees, it contracted the operation of the act in one of the peculiarly proprietary phases of government. “This insurance," said the Court, “ has no relation to the public health, public morals, or the public safety, nor any of the other objects which come within the scope of the city's power. Attention is called to the granting of pensions to city employees, but it will be noted that in such cases the action of the city authorities is provided for by legislative enactment."

Both of these decisions were marked by what one of the most acute students of constitutional law is fond of calling "the parade of the horribles.” In Brooklyn City R. Co. v. Whalen, it was said:

“We cannot close our eyes to the far-reaching nature of the argument of the Corporation Counsel. If the Home Rule Act authorizes municipal operation of common carrier lines, it is difficult to see any limit to its scope. The city could do whatever its existing officers thought for the general welfare. The line of argument that the Home Rule Act empowers the City to operate stage lines of motor vehicles in order to promote the welfare of citizens would with equal force apply to establishing municipal markets, municipal department stores, municipal drug stores, or any other enterprises which the officials in power conceived would be in the interest of public welfare. No such meaning can be given to the act. It must be inter

* People ex rel. Terbush & Powell v. Dibble (1921), 189 N. Y. Supp., 29, 31, aft'd by memo. only, 196 App. Div., 913, 186 N.' Y. Supp., 951, aff’d by memo only 231 N. Y., 593 (the Court of Appeals holding, it should de added, that the record was inadequate to decide the main question).

preted consistently with the fundamental principle that the powers of corporations, both municipal and private, are such only as are granted expressly or by necessary implication in the laws which constitute the charter. From this use of words of indefinite import, like 'general welfare,' defined to include 'the promotion of education, art, beauty, charity, amusement, recreation, health, safety, comfort, and convenience' (sec. 21, Home Rule Act), no implication can be drawn of a grant of power to cities in the state to assume those activities which according to our conception of government founded on the principle of individualism, are left to private enterprise.”

The Court did not suggest that the deepest pit of hell at least might be fenced about by resort to the crude, indefinite, changing, but practical distinction which the law has already drawn between ordinary business and enterprises which are affected with a public interest. Nor has the grim parade been limited to the area shadowed by the Municipal Building of the Greater City. “If this system of insurance is upheld," said another court in People v. Dibble, “there is no reason why the City may not hire the houses for its employees, provide for their clothing, while in the employment of the city, or make any other provisions for them, and that entirely outside of anything directly connected with their employment or their duties.” The Court did not advert to frequent use of group insurance in private industry; it becomes socialistic for government to use a current device of employment management and to do for its employees what competitive enterprise does as a matter of successful business.

Such has been the outcome of the attempt to relieve the legislature and to liberate the cities by thrusting a broad grant of power beneath the fabric of existing charters. It has not given cities the right to alter matters expressly governed by statute. It has not become (and here has been its primary failure from the standpoint of its authors) a source of substantially enlarged power. Under these circumstances, it could contribute little to New York City, already more richly empowered than the run of cities, although under a charter and other special laws of indescribably detailed content.

II.

Conditional Repeal and the Replacement of Charter Provisions

by Ordinance.

Attention may now be turned from the wholesale method of relief treated in the preceding section to a device which, on a limited scale, has been applied in the revision of the New York City charter. This device consists in the repeal of certain provisions of the charter or of other special laws conditionally upon the later enactment of local ordinances that cover their subject matter, The instances of its actual application to New York City have been: (1) to the laws relating to building regulation, under the charter of 1897; (2) to forty-six sections of the charter, involving miscellaneous matters, under the Amendatory Act of 1901 ; (3) to the fixing of salaries irrespective of existing law (construed to mean laws enacted prior to 1902), under both the original Greater New York Charter and the revised charter of 1901. The analysis of these uses of conditional repeal will lead, in the concluding section of the present chapter, to the consideration of the proposal that the local authorities should be empowered to change departmental organization and in this connection to set aside the provisions of existing statutory law.

The Greater City Charter and the Building Code.

Why did the Greater New York Commission adopt an unusual procedure in regard to the laws affecting building control and why, with this procedure before them, did they not carry it into other phases of city government? The answer is suggested in the Commission's own words :1

* Report of the Greater New York Commission to the Legislature, Feb. 18, 1897, as reproduced in Birdseye, The Greater New York Charter, annotated (1897), p. xxxii.

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