"However, the major contention asserted is that the Order was not promulgated in the manner prescribed by the Charter. Plaintiffs assert that the Commissioner lacked authority to enact the ban without adopting it as a regulation and complying with the publication and notice requirements of Section 1105. Plaintiffs point to various sections of the Traffic Regulations containing local prohibitions which were adopted through the enactment of formal regulations ... to demonstrate that in the past the Commissioner recognized the need to adopt prohibitions through the enactment of regulations.
"Defendants, on the other hand, assert that under Section 2903b(2) of the [City] Charter the Commissioner had the authority to enact the ban by merely ordering that signs be affixed in the affected streets specifying the prohibition. They argue that merely because in a few instances the Commissioner chose to enact a prohibition through adoption of a regulation does not mean that the power does not exist to enact bans through the posting of signs without filing or publication. They maintain ... that 'where the Department has acted by regulation, it did not do so because it felt it was compelled to do so by sec. 1105, but because of practical and policy considerations involved in regulating various types of traffic in various ways.' The essence of defendants' position, as refined at oral argument, is that the Commissioner need not enact any regulations and may regulate traffic and parking in the City merely by erecting signs, without any notice or publication. In support of this position defendants point to section 1642 of the VTL which they assert permits the Commissioner to act by 'order.'
"That VTL sec. 1642 provides that one of the means by which the City may regulate traffic is by 'order does not mean that the Commissioner need not comply with the sec. 1105 Charter requirement for publication and notice when other Charter provisions require that a prohibition be adopted by means of the promulgation of a regulation. In other words, although State law may permit a City official to proceed in a specified manner, if the City, through its legislative body, requires that the official act only after giving certain notices, the City's limitation governs and restricts the manner in which the official may proceed.
"The issue thus presented is whether sec. 2903b permits the bicycle prohibition to become effective under the authority of paragraph (2) thereof authorizing the posting of signs.
"An accepted legal principle is that an interpretation of a statute by the agency administering it is entitled to great weight. However, here the agency has not acted consistently in determining when a regulation is necessary. As indicated above, the Commissioner has enacted several regulations that are purely local in nature and could seemingly be handled merely by the posting of signs. However, it is obvious that most local prohibitions have been invoked without adoption of a regulation. Consequently, the prior actions of this agency do not provide any useful guide in interpreting section 2903.
"In Edenwald Contracting Co., Inc. v. City of New York ... the Commissioner of Highways issued a directive that limited the hours during which an asphalt plant could operate in certain zoning areas. The court held that such limitation was beyond his powers, and stated that to argue that a 'directive' was not a 'rule or regulation' requiring compliance with sec. 1105 would be 'semantic sophistry,' and that a court should look to the 'substantive effect' of the directive to determine whether compliance with the publication and notice requirements was mandated.
"In People v. Cull ... an administrative agency issued an order limiting speed on a state highway to 35 miles per hour without complying with the state constitutional requirement that all 'rules and regulations' be filed with the department of state. The court noted that such term had not 'been the subject of precise definition,' but that as used in the constitution it means a 'norm or procedure which establishes a pattern or course of conduct for the future' ... and that although a conviction for speeding could not be sustained without proof of the posting of the limitation, a filing was also necessary to establish its legality. ...
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