KFN 50?7 I Q o iisoo PRELIMINARY REPORT lc.1 * TO THE SPECIAL JOINT COMMITTEE — ON STATUTORY REVISION COMMISSION BILLS OF THE LEGISLATURE OF THE STATE OF NEW YORK BY THE CHAIRMAI OF THE COMMITTEE jdflj M2J%> 1 z v^l ■?' : Bt ''j^S^jS-J ^ V - J^^^iTjra -•»?* Tfl i I 1 ■^as^ HH Bm^TTT^- ft J MS ■* ffii'lf ~*" tpTOf"Wi »>'• j Hjflp HB.t"'*'-lf "iffiE •-.;i"'"'"^-SS~ 9^-^^QgJ»K. 3r Sfi ! ^^^--^^jBBBM^MflEj '^''^Bp^^y'T-.NJL^ GJnrnell &aui ^rfyool library Cornell University Library KFN5027.S8 1900 Preliminary report to the Special Joint 3 1924 021 899 236 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924021899236 L-g-G- i s L/VTvye./^ PRELIMINARY REPORT TO THE Special Joint Committee ON STATUTORY REVISION COMMISSION BILLS OF THE Legislature of the State of New York BY THE Chairman of the Committee August i8, 1900 fif23fl PRELIMINARY REPORT TO THE LE COMMITTEE ON STATUTORY REV COMMISSION BILLS To the Members of the Legislative Committee on Statutory Revis- ion Commission Bills : Gentlemen : In accordance with the suggestion made by the Com- mittee at the meeting held in New York City, July 30, 1900, 1 submit a statement showing what has been accomplished to date and the work yet to be done. The resolution creating the Committee having imposed upon it the duty of reporting upon the bills submitted by the Statutory Revision Commission, the Committee must consider separately, first, the General Laws; second, the Codes. The Statutory Revision Commission, created in 1889, (L. 1889, ch. 289), goes out of existence this year (L. 1900, ch. 664). The confused condition of the statute law justified its appointment. Up to 1890 over forty thousand laws had been passed since New York became a State. From the acknowledged completeness of the Revised Statutes of 1828, our law had drifted in chaos. Statutes purporting to be general in nature were contradicted by numerous special statutes on the same subject. The enormous number of laws had given rise to endless litigation and public and pri- vate evils. It seemed to be the consensus of opinion that this state of affairs should be terminated by a revision com- mission. In 1895 (L. 1895, ch. 1036) the members of the present Statutory Revision Commission were also appointed to con- sider the question of code revision. Since that time, there- fore, the work of the Commission naturally divides itself into the two branches above indicated ; viz., the revision Of the General Laws, and the revision of the Codes. 3 THE GENERAL LAWS The Revision of the General Laws must be com- pleted substantially along the lines outlined by the Statu- tory Revision Commission. It is too late now to do other- wise. The General Laws must be brought down to date, and remaining special legislation codified. The general plan adopted by the Commission was to embody in a single law all cognate subjects, and to fit each completed law into a definite system, so that a continu- ance of the work would not involve reconstruction. The latest plan of the Commission contemplates sixty Gen- eral Laws and five Codes as follows : general laws, in force and proposed, as prepared by the statutory revision commission, including the so-called code bills a. p I 2 3 4 5 6 7 8 9 10 ii 13 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Short Title The Statutory Construction Law The State Law The Civil Service Law (a) The Naturalization Law The Indian Law. The Election Law The Public Officers Law.. The Legislative Law The Executive Law The State Finance Law The Public Lands Law The Canal Law (Improperly 13)- The Salt Springs Law The Public Buildings Law The Prison Law The Military Code The General Municipal Law The County Law The Highway Law The Town Law The Village Law The General City Law The Education Law . The Tax Law The Public Health Law The State Charities Law The Poor Law The Insanity Law _. When Enacted L. 1892, L. 1892, L. 1 goo, Not yet 1892, 1892, 1892, 1892, 1892, L. 1897, L. 1894, L. 1894, L. 1892, L. 1893, Not yet L. 1898, L. 1892, L. 1892, L. 1890, L. 1890, L. 1897, L. 1900, Not yet L. 1896, L. 1893, L. 1896, L. 1896, L. 1806, C. 677 C. 678 C. 195 enacted C. 679 C. 680 C. 681 C. 682 C. 683 C 413 C. 317 c. 338 C. 684 C. 227 enacted C. 212 C 685 C 686 C. 568 C. 569 C. 414 C. 327 enacted C. 908 C. 661 C. 546 C 225 C 545 When Prepared Former Former Present Present Former Former Former Former Former Present Former Former Former Former Present Former Former Former Former Former Present Present Present Present Former Present Present Present Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs 2Q 3° 31 32 33 34 35 3 6 37 38 39 4° 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 5S 59 The Liquor Tax Law The Navigation Law The Forest, Fish and Game Law (£).. The Labor Law The Agricultural Law The Domestic Commerce Law The General Corporation Law (c) The Stock Corporation Law (d) The Banking Law The Insurance Law The Railroad Law The Transportation Corporations Law The Business Corporations Law (t) The Religious Corporations Law The Membership Corporations Law.. The Benevolent Orders Law The Joint Stock Association Law The Real Property Law The Personal Property Law The Domestic Relations Law The Lien Law _ The Negotiable Instruments Law The Partnership Law The Wills Law. _ The Judiciary Law The Jury Law The Insolvent Debtors Law The Evidence Law The Statute of Limitations The Condemnation Law The Estray Law _ The Drainage Law (/) The Surrogates Code The Justices Code_ The Code of Civil Procedure.- The Penal Code. The Code of Criminal Procedure The Consolidation Act of New York.. An Act to Repeal Certain Acts, etc. _. L. 1896, L. 1897, L. 1900, L. 1897, L. 1893, L. 1896, L. 1890, L. 1890, L. 1892, L. 1892, L. 1890, L. 1890, L. 1890, L. 1895, L. 1895, L. 1896, L. 1894, L. 1896, L. 1897, L. 1896, L. 1897, L. 1897, L. 1897. Not yet Not yet Not yet Not yet Not yet Not yet Not yet Not yet Not yet Not yet Not yet Not yet Not yet Not yet Not yet Not vet C. 112 C. 592 C. 20 C. 415 C. 338 c. 376 C. 563 C. 564 C. 689 C. 690 C. 565 C. 566 c 567 c 723 C. 559 C 377 C 235 C 547 C. 417 C. 272 C. 418 C. 612 C. 420 enacted enacted enacted enacted enacted enacted enacted enacted enacted enacted enacted enacted acted ena ena enacted enacted actc Present Present Former Present Former Present Former Former Former Former Former Former Former Present Present Present Former Present Present Present Present Present Present Present Present Present Present Present Present Present Present Present Present Present Present Present Present Present Present Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs Comrs (a) Originally passed L. {d) See L. 1892, ch. 488. (r) See L. 1892, ch. 687. {d) See L. 1892. ch. 6S8. (?) See L. 1892. ch 691. (/) Proposed Code Bill , ch. 370. Not yet prepared because of pending litigation. Is to combine L. 1869, ch. 888, and L. 1895, ch. 384 THE DETAILS OF THE WORK OF THE COMMISSIONERS ON the General Laws are set forth at length in their two gen- eral reports to the Legislature and in the revisers' notes pre- facing the various bills as introduced. It is not possible in the limits of this report to do more than to refer to them. Our Committee began work may 2, 1900. The disposition of the General Laws was first undertaken. 5 Having nothing to do with the plan of the General Laws as already outlined, we began work at once upon the bills sub- mitted by the Commission to the Legislature of 1900. We found forty-nine bills to be considered as follows : BILLS BEFORE THE LEGISLATIVE COMMITTEE S3 <55 Short Title Nature of Bill 383 375 393 Code Bill 718 386 385 751 4°3 2170 State Finance Law, Amendment 2169 811 Public Buildings Law Amendment 174 1296 571 1297 849 Educaiion Law Codification 1439 724 434 Public Health Law State Charities Law Amendment Amendment 422 356 7'7 716 965 394 719 715 713 714 Amendment Business Corporations Law Religious Corporations Law. Membership Corporations Law Amendment Amendment Amendment 388 387 384 722 Real Property Law . Personal Property Law.. Domestic Relations Law Lien Law Amendment Amendment Amendment Amendment 389 879 521 355 402 173 172 Sio 1721 Partnership Law Wills Law J udiciary Law Jury Law Insolvent Debtors Law. Evidence Law Statute of Limitations.. Condemnation Law Estray Law Amendment Codification Code Bill Code Bill Code Bill Code Bill Code Bill Code Bill Codification '37 241 952 2001 2242 418 435 Surrogates Code Justices Code Code of Civil Procedure Penal Code Code of Criminal Procedure . Consolidation Act of N. Y. .. An Act to Repeal, etc Code Bill Code Bill Code Bill Code Bill Code Bill Amendment The first task before the Committee was the prepar- ation of the bills set forth in the foregoing list for report to the Legislature. Upon examinaton it was found that in some cases the Commissioners had incorporated existing laws into the General Laws without change, while in other instances the laws had been re-written. In order to determine what changes had been made, these forty-nine laws and codes have been carefully compared with the original statutes from which they were derived. Any variations from the originals have been indicated by pen and ink corrections, except in cases where the variations have been so extensive as to make necessary the insertion of type-written slips setting forth the original laws at length. The tables of repeals at the end of the proposed laws have been carefully checked up with the statutes purported to be included in the codified laws, and eight sets of the forty-nine laws have been bound into volumes, in the order of the chapter num- bers, making 392 laws thus prepared. These volumes have been distributed to the members of the Committee and placed at the disposal of the State and New York City Bar Associations for special examination. To report to the 7 Legislature upon these bills will impose a vast amount of labor on the Committee. It will involve an examination of the entire field of statute law in this State. After the bills have been examined, there still will remain a doubt whether they contain all the general statutes embraced within the plan of revision. To obviate this uncertainty it is necessary to go back of editorial compilations of statutes to the original acts. Therefore, the Committee has undertaken a page to page examination of the session laws, from the beginning of the history of the State to date. If a plan can be devised which will wipe out the obsolete and unnecessary legislation at present upon the statute books, and if some check then can be placed upon ill-considered amendments of General Laws, a great and lasting service will be performed for the people of the State. In the 122 years of State history, about 49,000 laws have been passed. Any well considered revision of this mass of material should clarify rather than confound. Each General Law adopted should cover the entire field of cognate sub- jects, and all special statutes upon the same subject should be repealed specifically. This observation, which seems almost a truism, will be found pertinent when the fact is observed that the first three general revisions of the laws of this State include no specific repeals, but contain only gen- eral repealing clauses. Each of these revisions, therefore, added to the mass of legislation, and to the general confus- ion, by making necessary a judicial construction as to the extent of the operation of the general repealing clauses. The page to page examination of the session laws above mentioned, is an attempt to summon every law upon the statute books to show a special reason for existence, and if no such reason can be found, to recommend its repeal. This is more easily said than done. To be exact, there are 48,786 laws to be considered. The examination of this vast amount of statutory law seems like an endless task, and one almost impossible of accomplishment in the brief time within which the work of the Committee must be done. However, the work is so vitally important that it has been undertaken, and is being pushed rapidly. Up to date about six thousand laws have been examined and entered on tables. The plan adopted is to begin with the first year and dispose of each session consecutively, noting the results of the examination of each law upon specially prepared printed tables, which will make the record permanent. A PARTICULAR RECOMMENDATION IS TO BE MADE AS TO EACH STATUTE whether it should be repealed or retained, and if retained, whether it should be codified into some of t he Gen- eral Laws, or retained substantially in its present form. The result of this work should be to discover every statute which should be codified, and every law which should be repealed specifically, because obsolete, or covered by some existing general law. From this examination of the session laws the Committee will be able to report, first, the General Laws complete ; second, a list of laws for repeal ; third, a list of statutes, special and general, necessarily retained, not within the plan of the General Laws. Then it will be possible to begin the coming century with a new set of books, which, in comparatively narrow compass, will be a complete statement of all the statute law of the State of New York. Thereafter, if some check on frequent amendment can be devised which will prevent the repetition of the evil which has brought our law into its present disgraceful state, the labors of this committee will not have been in vain. No argument is necessary to convince any reasonable man, whether a lawyer or not, of the importance of the completion of the revision of the General Laws, and the page to page examination of the statutes above referred to, and it is specially desirous to push to completion this branch of the work. CODE REVISION A PERFECT REVISION OF THE GENERAL LAWS CANNOT BE HAD WITHOUT A REVISION OF THE CODE OF ClVIL PROCED- URE. If this is to be attempted the Committee must deter- mine upon a plan forthwith. Three recent plans of Code Revision are before the Committee for discussion: 9 /. The plan of the Statutory Revision Commission. 2. The plan of the Bar Associations {the New York City and New York State). j. A third plan, herein suggested. PLAN OF THE STATUTORY REVISION COMMISSION The plan of the Statutory Revision Commission is set forth at length in the "Revisers' Preliminary Note" to the proposed " Code of Civil Procedure," reported by the Commission to the Legislature ( Assembly bill 952, session 1900). This plan of the Commission involves the separation of the present Code of Civil Procedure into eight General Laws and three Codes, as follows: GENERAL LAWS i. The Naturalization Law. 2. The Drainage Law. 3. The Insolvent Debtors Law. 4. The Condemnation Law. 5. The Jury Law. 6. The Evidence Law. 7. The Statute of Liminations. 8. The Judiciary Law. CODES 1. The Justices Code. 2. The Surrogates Code. 3. The Code of Civil Procedure. This plan does not embrace a revision of the practice provisions of the present Code. The New York State and New York City Bar Associations are opposed to the plan. It has been characterized as an attempt to kill thistles by changing fence lines. PLAN OF THE STATE BAR ASSOCIATION The New York State Bar Association has sub- mitted a plan of Code revision, which is advocated as superior to that of the Statutory Revision Commission. This plan has been set forth fully in the report of the Committee on Law Reform, made in 1899. In general the plan of the Bar Association is to reduce the Code of Civil Procedure to a short practice act covering jurisdictional matters mainly, leaving all the details of practice to be controlled by Rules of Court, similar to the plan now in operation in England. One of the objections urged against THIS PLAN is that it violates a fundamental princi- ple of our government, namely: that the legislative and judicial departments should be kept separate. If the rules of practice are to be entrusted to the judges, the judge, to a great extent, becomes a law giver. The people are entitled to make their own law, and to look to their servants, the judges, merely for the enforcement of the law. This objection is well stated in the language of Mr. David Dudley Field : " There are certain propositions that have become maxims "of government, one of which is that the legislative and "judicial departments should be kept distinct, or in other " words, that the same person should not be both the law- " giver and judge. There is no need of arguing about it. " The maxim is founded on philosophy and experience. It " has taken ages of struggle to establish it. And here it is. " We profess to take it for absolute truth ; we talk of it as "one of the fundamental doctrines of modern government; " we write it at the head of our constitutions ; but we violate "it every hour that we allow the judges to participate in "the making of the laws." Another objection urged against the plans of the Bar Association, and that of the Revision Commissioners, is that their plans make it necessary to look in several places to find the provisions governing practice. THIRD PLAN SUGGESTED TO THE LEGISLATIVE COMMITTEE I desire to suggest, for the consideration of the Committee, a third plan for Code Revision, which would contemplate, first : eliminating from the Code of Civil Pro- cedure all provisions not relating directly to practice ; second: considering the necessary changes in practice, and incorporating into the Code of Civil Procedure the Court Rules; third: rewriting and condensing the material thus brought together, in the light of adjudicated cases. The evils inherent in the Code of Civil Proced- ure BEING THE MAIN REASON FOR CODE REVISION, TO DISCOVER AND ERADICATE SUCH EVILS, IS THE FIRST THING TO be accomplished. The code has been condemned as technical, inelastic, redundant, inconsistent, contain- ing substantive and criminal law, and as being the creature of frequent legislative amendment. These evils can be remedied by proper revision. It would be unwise to suggest any plan of code revision which failed to take into consideration the evils which have been clearly pointed out. The plan of such revision should be compre- hended in two words, "simplification" and "condensation." There should be no change for the sake of change, but revision should not hesitate to go to the substance of pro- cedure sufficiently to effect order and simplicity. The revised code should lay claim to structural unity without repetitions or verbiage. It should be short and clear. It should be a complete practice act, regulating all judicial proceedings, and there should be no court rules covering similar subjects. The LIMITS OF THIS report will NOT PERMIT A more extended DISCUSSION, but the course to be pursued as to the completion of the revision of the General Laws and Code Revision is left for the determination of the Com- mittee at its next meeting. In closing I desire to report the following work accomplished to date on the General Laws and the Codes : i. a general table, showing the work of the Statutory Revision Commission on General Laws and Code bills, and the work of the special Legislative Committees of 1900 thereon, is completed. This table shows a list of laws in force and proposed, as prepared by the Statutory Revision Commission, including code bills, giving the chapter number, the short title and date of passage of each law, and stating in addition, whether the law was prepared by the present Statutory Revision Commissioners or their predecessors. The table also shows the proposed General Laws and amendments to General Laws, including code bills, reported by the present Statu- tory Revision Commision to the legislature of 1900, giving Assembly number of the bill, whether an amendment, a cod- ification, or a proposed code bill. The work of the special Committee of the Assembly of the session of 1900 is also set forth at length, showing the fate of all bills introduced by the Statutory Revision Commission in either Senate or As- sembly. And finally, a detailed statement is made of the bills before the present joint Legislative Committee. This table has been photographed and blue prints have been sent to members of the Legislative Committee, the Gover- nor, and to officers of the State Bar Association and the Bar Association of the City of New York. 2. A portion of the general table has been printed for the convenience of the Committee and has been sent to various members of the bar, with an explanatory letter. 3. A table showing amendments to the Code of Civil Procedure from 1876 to date, is completed. 4. A table showing amendments to the Penal Code from 1 88 1 to date, is completed. 5. A table showing amendments to the Code of Criminal Procedure from 1881 to date, is completed. 6. A table showing amendments to the General Laws from 1890 to date, is completed. 13 7- a table showing the disposition of the various sections of the present code of clvii. procedure, as made by the statutory revision commission in their plan of Code revision, is completed. 8. a table showing what has become of the vari- ous portions of the original revised statutes of 1828, is completed. 9. a table showing the number of session laws passed by the legislature each year, from the begin- NING of State history (1777) to, and including, 1900, is COMPLETED. // is not possible to print the above tables in this limited report. They are at the disposal of the Committee, and are ready for insertion in the final report to the Legislature. In addition to the tables above mentioned : 10. The Code of Civil Procedure has been mounted ON sheets, each section on a separate sheet, and inserted in binding cases ready for special examination. 11. Parson's Pocket Code has been mounted on CARDS ready for examination or transposition, each section being mounted on a separate card. 1 2. The Court Rules have been specially examined. A detailed report on this subject has been bound, and is ready for submission to the Committee. 13. The Court Rules have also been mounted on CARDS, each rule on a separate card, as in the case of the Code of Civil Procedure. 14. The various letters and petitions for and against the work of the Statutory Revision Commission have been filed and indexed. 15. A Collection has been made of the Codes of the various States of the United States, believing that the work of the Committee should be based on a knowledge of the Codes of other States. These books are now at the service of the Committee. 16. In the page to page examination of the ses- sion laws, UP TO date over 6000 LAWS have been exam- ined and entered on the tables. 17. There has been prepared a history of statute law in the State of New York, from earliest col- 14 ONIAL times TO DATE, setting forth the various revisions, and giving a general statement of the organization of courts. This history is at the service of the Committee, and is ready for insertion in the final report. 1 8. A Bibliography has been prepared in the form OF A Card Index, giving the titles of all articles upon codification, code revision and law reform, which are of interest. This bibliography is based upon an examina- tion of the Appellate Division and Powers' Law Libraries in the City of Rochester, the State Library at Albany, the Law Institute, Bar Association and Astor Libraries of New York City. It includes, practically, all articles of import- ance in the English language on these subjects. This bib- liography has been separately printed, and will be sent to the members of the Committee, the officers of the Bar Association, and such members of the bar as may care for the same. Respectfully submitted, A. J. RODENBECK, Chairman. Dated, Rochester, N. Y., Aug. 18, 1900. 15