"To have adopted for such a city what may be described as a skeleton charter, would have been to have left to the local legislature the framing of ordinances that should be the fundamental law for all the vast interests thus to be consolidated into a single government. In connection with the building department, the commission has done this, partly because it was clearly impossible to extend the building laws of the present City of New York over territory presenting such widely different conditions, and partly because the commission were unwilling to venture upon original legislation as to a subject at once so intricate, so technical, and yet so important. Moreover, few subjects afford, it is believed, a more appropriate field for local regulation. The charter, therefore, provides that the existing building laws shall stand in all parts of the consolidated territory until superseded by a municipal building code, and the municipal assembly is given authority to employ experts in the preparation of such a code."

The plan was embodied in sec. 647, which without attempting even to list, let alone to assemble and reproduce the legislation in question, declared that the various acts then in effect "concerning, affecting, or relating to the construction, alteration or removal of buildings or other structures in any of the municipal and public corporations included within the City of New York as constituted by this act" should continue in full force. It authorized the municipal assembly "to establish and from time to time to amend a code of ordinances, to be known as the building code,'" providing for all the matters already described, and it stipulated that "upon the establishment of such code the several acts first above mentioned shall cease to have any force or effect, and are hereby repealed

*

* ""

In accordance with this mandate, a body of ordinances was enacted and approved on October 24, 1899, and took effect on December 23 of the same year. "This ordinance," its opening lines declared, "to be known and cited as the Building Code and presumptively (to) contain the building law,

except so far as such provisions are contained in the charter ** * "1 Under a charter amendment of 1904,2 it became a chapter in the general code of ordinances. The story of the efforts to revise it-finally completed in 1916, after a decade of costly failure3-does not concern the present point except in so far as it indicates the complicated and controversial subject-matter of which the device under discussion had largely rid the charter.

The Validity of Conditional Repeal Assumed by the Courts.

In turning to the construction which this instance of conditional repeal has received in the courts, it must at once be pointed out that the revision of the charter in 1901* very nearly removed whatever legal difficulties may have inhered in the original provisions. The Building Code as it stood on the first day of 1902 was expressly confirmed and it and provisions of law fixing penalties under it and "all then existing law affecting or relating to the construction, alteration or removal of buildings or other structures" were continued in full force. In practice, this would have stilled doubts, had they existed, because the transmutation of law into ordinance was largely accomplished. In theory at least, however, the charter of 1901 authorized the process to continue; it did this, furthermore, in language of which—if it were not a probable inadvertence—something could

'Sec. 1 of Pt. I, A, as given in Ash, The Building Code of the City of New York, with notes (1899), p. 1.

'L. 1904, ch. 628, sec. 2. Under the revision of the code of ordinances which was approved September 12, 1916, it constitutes ch. 5 and comprises 32 articles and several hundred sections.

3

Report of the Building Bureau of Manhattan, 1916, p. 15. The connection of a veteran civil servant, Rudolph P. Miller, as engineer of the Board of Aldermen's Committee, with the eventual success is well known. The final plan was to put the revision through the Board of Aldermen article by article. Mr. McAneny spoke in 1915 of "something like three hundred thousand dollars futilely spent upon it" in the previous, abortive revisions during a decade. Proceedings of the Academy of Political Science, April, 1915, vol. V, No. 3, p. 224. Other estimates put the total cost as high as half a million dollars.

L. 1901, ch. 466, sec. 407.

be made in arguments supporting the competence of the legislature to delegate charter amending power. "The Board of Aldermen," it was said, "shall have power from time to time to amend said building code and said laws and to provide therein for all matters concerning, affecting or relating to the construction, alteration or removal of buildings or structures * * *.”1

The cases in which the courts have construed the sanctions of the Building Code do not seem to date back of 1903. The question of the legality of the process whereby the code first replaced an existing body of law has not been directly presented; its validity has been assumed, rather than argued, and it has been easy to beg the question by pointing to the confirmation written into the charter of 1901. The leading case, City of New York v. Trustees of Sailors' Snug Harbor,2 centered on the question whether the power to require the construction of fire escapes on factory buildings lodged with the borough superintendent of buildings or the state labor department. Before 1897, it was pointed out, the more general terms of the State Labor Law had been ousted in the area of New York City by special laws on the subject of building control. Had the situation in this respect been altered by the replacement of these laws by the Building Code ordinance, especially in view of the charter proviso that "the provisions of such building code' shall be in conformity with and be subject to all general laws of the estate (sic) concerning, affecting, or relating to buildings, or classes of buildings, or other structures?"3 In deciding that the situation had not been altered and that the labor law did not operate, Justice O'Brien touched on the validity of the method by which the Building Code had been adopted. Without in any way implying doubt as to the soundness of that method, he cut the knot by saying: "In view of this ratification by the Legislature of the power to enact the Building Code, we

Ibid. Italics are the author's. It need not be pointed out that the original provision in 1897 did not in any legal sense give the Board of Aldermen power to amend state laws regarding building; the Board did nothing to the laws; the Legislature itself repealed them contingently. (1903) 85 App. Div. 355, 361, 83 N. Y. Supp. 442, aff'd. (1905) 180 N. Y. 527.

2

'L. 1897, ch. 378, sec 647. This provision is not repeated in the 1901 charter.

fail to see why the Building Code should not be given the same force within the corporate limits as the statute passed by the Legislature itself." Later cases, citing this, have indulged in even less argument.

Nevertheless, in so holding, the courts have never suggested that the Building Code has occupied a different status from that of ordinances generally. "But, although given the force of law," it was said by Justice Scott in declining, on a technically procedural ground, to apply it to the situation at hand, "the Building Code remains nothing more than an ordinance of which the court cannot take judicial notice, and which to be availed of must be pleaded and proved."2

An Element of Uncertainty Created.

Although doubt was never cast on the validity of the scheme of conditional repeal, an uncertainty existed. What were "all matters concerning, affecting, or relating to the construction, alteration, or removal of buildings or other structures"? How far, under this clause, could the local legislative body extend the boundaries of the field in which it was empowered to complete the conditional repeal of state law by the enactment of ordinances? The problems which were implicit in the phraseology were anticipated by an early annotator of the code, writing before there had been opportunity for adjudication of any kind :3

1

1 Messer Co. v. Rothstein (1908) 129 App. Div., 215, 113 N. Y. Supp. 772, aff'd, 198 N. Y. 532; Post v. Kerwin (1909) 133 App. Div. 404, 117 N. Y. Supp. 761; Racine v. Morris (1910) 201 N. Y. 240, aff'g. 136 App. Div. 467, 121 N. Y. Supp. 146; City of New York, v. Foster (1911) 148 App. Div. 258, 133 N. Y. Supp. 152, aff'd 205 N. Y. 593; People ex rel. Van Beuren & New York Bill Posting Co. v. Miller (1914) 161 App. Div. 138, 146 N. Y. Supp. 403.

'Schnaier & Co. v. Grigsby (1909) 132 App. Div. 854, 856, 117 N. Y. Supp. 455, aff'd. 199 N. Y. 577; see also Goetz v. Duffy (1916) 171 App. Div. 680. 157 N. Y. Supp. 590, 591, remarking on the same point, "It is a mere code of ordinances." These cases were decided before L. 1917, ch. 382, amended sec. 1556 of the charter by adding, "All courts in the city shall take judicial notice of city ordinances."

3

Ash, The Building Code of the City of New York, with notes, (1899), pp. iii-iv.

"The construction placed upon this section by the municipal assembly in enacting the code, deserves special mention. The code embraces provisions (secs. 150-156) referring to violations of the sections regulating the construction, alteration or removal of buildings, inflicting penalties for such violations, and regulating the legal procedure to prevent these violations by suit, injunction, etc. These provisions have been taken bodily from the building law contained in the N. Y. C. Consolidation Act (L. 1882, ch. 410), secs. 505-14, as amended by L. 1892, ch. 275, and with slight changes due to the altered situation consequent upon consolidation incorporated in the code. It may be a serious question whether the section of the charter above quoted conferred any legal authority upon the municipal assembly to enact an ordinance covering the subject matter of the sections of the Consolidation Act last referred to."

The justification of these doubts was partially given some years later in City of New York v. Wineburg Advertising Company. It was here held that, despite the attempt to include its subject matter in the Building Code, sec. 506 of the Consolidation Act must be regarded as still in force.2 The Court sustained the contention that an action in equity might be brought to prevent the erection of a sky-sign, on the ground that, although injunction ordinarily will not lie to enforce ordinances,

1(1907) 122 App. Div. 748, 107 N. Y. Supp. 478. The Kobbe Co. v. City of New York, ibid, p. 489, involved the same matter and was decided briefly on the basis of the opinion in the Wineburg case.

This decision blocks whatever argument might be drawn from an earlier case, Kenney v. Brooklyn Bridge Stores Co. (1904) 121 App. Div. 684. This was a suit to recover damages for a death resulting from a fall through an open hatchway. It was alleged that L. 1892, ch. 275, amending the Consolidation Act of 1882, had been violated by the owner. The Court held that, even if it were in force, the law of 1892 would not apply because it had been intended to protect firemen. It added (in what was dictum since the Building Code had not been argued and proved in court): "It would seem, therefore, that under the express provisions of the charter of 1897, upon the enactment of that building code by the municipal authorities the provisions of the Consolidation Act in relation to the construction of buildings in the City of New York were repealed, and the liability of the defendant, if any, must depend upon the building code in force on Aug. 13, 1903, the date of the accident.” (p. 688).