
    The People of the State of New York ex rel. U. S. Standard Voting Machine Company and John H. Michaelson, Appellants, v. The City of Geneva and Others, Respondents.
    
      Municipal corporation—purchase by, of a voting machine — in involves an appropriation of money —it requires the vote specified by the city charter for that purpose — Us submission to the taxpayers of the city of Geneva —proper form, of action by a common council in overruling a veto.
    
    A purchase of voting machines by a city, pursuant to the authority of sections 163-160 of the Election Law (Laws of 1896, chap. 909) involves an appropriation of money, a,nd must he accomplished in accordance with the provisions of the city charter, e. g., in the case of the city of Geneva, by a resolution or ordinance of the common council adopted by an affirmative vote of at least two-thirds (nine) of the members thereof.
    
      It is unnecessary to determine whether a purchase of voting machines for the use of the city of Geneva constituted an extraordinary expenditure within the meaning of section 141 of the charter of that city (Laws of 1897, chap. 360, as amd. hy Laws of 1898, chap. 297) requiring the submission to the taxpayers at a special election of the proposition to make an extraordinary expenditure, for the reason that the Election Law expressly authorizes the local authorities to determine whether or not pan expenditure for voting machines shall he made, and the taxpayers have no voice in the matter.
    Where the effect of a resolution, if properly passed hy the common council of the city, would he to create a charge upon the municipality and the taxpayers therein, a literal compliance with the statutory provisions must clearly appear.
    Where, after the mayor of the city of Geneva had transmitted to the common council his veto of a resolution passed hy such common council, the common council passed, hy ayote of two-thirds of the members thereof, another resolution, which, while it related to the same subject-matter as the vetoed resolution and referred to the veto, was not identical, either in form or in substance, with the vetoed resolution, such action does not constitute a valid exercise of the power conferred on the common council hy the city charter to pass a resolution over the mayor’s veto hy a vote of two-thirds of the members thereof.
    Appeal by the relators, the IT. S. Standard Voting Machine Company and another, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the cleric of the county of Ontario on the 30tli day of July, 1904, denying the relators’ application for a peremptory writ of mandamus.
    On the 2d day of June, 1904, an order was served upon all the defendants requiring them to show cause at a Special Term of the Supreme Court appointed to be held in the city of Rochester, N. Y., on the 4th day of June, 1904, why a peremptory writ of mandamus should not issue to compel the mayor and clerk of the city of Geneva, N. Y., to execute a contract for and on behalf of said city for the purchase from the relator company of six voting machines at the net price of $500 each, as directed by certain resolutions passed by the common council, or in case any of the facts stated in the- affidavits upon which said order to show cause was granted were denied, that an alternative writ issue to the end that the true facts might be ascertained and the appropriate relief then granted. Practically none of the facts were controverted, nevertheless the application was denied upon the merits and the order appealed from was made.
    
      
      William S. Moore and Joseph W. Taylor, for the appellants.
    
      W. Smith O'Brien and Myron D. Short, for the respondents.
    
      
       Added by Laws of 1899, chap. 466, andamd. by Laws of 1901, chap. 630.—[Rep.
    
   McLennan, P. J.:

The important questions raised by this appeal are:

1. Was an affirmative vote by two-thirds of defendant’s common council necessary to legally authorize the mayor and clerk to execute the contract in question for and in behalf of the city ?
2. Was any resolution adopted by a two-thirds vote of the common council, which was a valid authorization for said mayor and clerk to so execute such contract ?
3. Was it necessary, in order to make the expenditure contemplated by the proposed contract, to submit the question to the taxpayers at a special election as provided by section 141 of the charter ?

The city of Geneva is a city of the third class, incorporated by chapter 360 of the Laws of 1897, which as amended constitutes its charter. The act provides, among other things, that the common council shall consist of thirteen members (nine being two-thirds), twelve aldermen and the president of such council, all of whom are elective officers. The mayor is given the right to veto all resolutions passed by the common council except such as relate - to its organization, etc., within ten days after their passage, and in case such right is exercised he is required to transmit to the council in writing his veto and his reasons therefor. Within ten days thereafter the common council may pass such resolution over his veto by a vote of two-thirds of all the members thereof in office unless a greater number of votes was necessary for its original passage, in which case at least that number of votes must be cast for the passage of the same over his veto. Section 51 prohibits the appropriation of any money for any purpose except by an ordinance or resolution passed by an affirmative vote of two-thirds of all the members of the common council. Section 141 (as amd. by Laws of 1898, chap. 297) provides that whenever the common council shall resolve by an affirmative vote of two-thirds of its members that an extraordinany expenditure ought, for the benefit of the city, to be made, porceedings shall be taken to submit the question to the taxpayers at a special election.

It is clear that the purchase of the machines in question would constitute an appropriation of money within the express language and meaning of section 51 of the charter, and, therefore, an affirmative vote of two-thirds (nine members) of the defendant’s common council was necessary to legally authorize such expenditure, unless the section as applied to the expenditure in question has been changed by subsequent legislation. It is suggested that such change was effected by the Election Law, being chapter 909 of the Laws of 1896. Section 163 of that act provides that the common council of any city other than the city of New York may adopt for use at elections voting machines. Section 165 provides that “ the local authorities adopting a voting machine shall, as soon as practicable thereafter, provide for each polling place one or more voting machines * * *.” And section 166 provides: “ The local authorities on the adoption and purchase of a voting machine may provide for the payment therefor in such manner as they may deem for the best interest of the locality * * *.”

Those provisions are not mandatory. The local authorities of any city are simply permitted to adopt and purchase voting machines for its use and to make provision for payment of the same. No particular method of exercising such power is prescribed by the sections referred to, and, therefore, as it involves an appropriation of money, it must be accomplished in accordance with the provisions cf the charters of the respective cities ; in the case of the defendant city by a resolution or ordinance of the common council adopted by an affirmative vote of at least two-thirds of its members.

By the Election Law authority was conferred upon the city of Geneva to purchase and use voting machines. It already had the power to purchase other property necessary for its use. To consummate either or any purchase an appropriation of money is in effect necessary, and section 51 of the charter to which attention has been called prescribes the only manner by which such an appropriation can be made. No different method was prescribed for the purchase or payment of voting machines than for the purchase or payment of any other property, except that the city was authorized to pay for such machines by issuing bonds, but such method of payment constituted an appropriation of money quite as effectively as if payment in cash had been authorized by the city. It was necessary, in order to legally authorize the purchase of the machines in question or the appropriation of the moneys necessary for the payment of the purchase price, that a resolution to that effect should have been adopted by the common council by the affirmative vote of at least nine of its members.

The resolutions relied upon by the relator as authorizing the purchase of the machines in question were not adopted in the manner required by the charter, and were, therefore, void.

At a regular meeting of the common council held on the 15th day of March, 1904, an alderman, who was a member of the city property committee, reported that the committee recommended the purchase of six U. S. Standard Voting Machines, one for each ward.” Another alderman “ moved that the report be accepted and recommendation adopted.” Upon such motion eight aldermen voted in the affirmative and two in the negative. It does not appear that such resolution was ever submitted to the mayor.

At a regular, meeting of the common council held on the 5th day of April, 1904, the president of the council and nine of the aider-men being present, ten members in all, one of the aldermen, who was a member of the city property committee, submitted to the council as his report a communication from the United States Standard Voting Machine Company, which embodied the terms of a contract which it was proposed to enter into for the purchase by the defendant city from the relator of six voting machines for the net price of $3,000. Such communication also contained three proposed resolutions; one, that the United States Standard voting machine be adopted for use at elections in the city of Geneva; another, that the mayor and city clerk be directed to enter into a contract with the United States Standard Voting Machine Company for the purchase of six machines, in accordance with the terms and conditions of the proposal made by said company, and the third directed the mayor and city clerk to issue bonds of the city, as therein provided, to the amount of $3,000 in payment for such machines. On motion of one of the aldermen, these three resolutions, but all as one, were adopted by a vote of eight members, being less than two-thirds of all the members, there being thirteen members of the council. The relator Michaelson, in his affidavit, states, as a conclusion, that said resolutions were passed by a vote of at least two-thirds of all the members of said common council, giving no details of such vote. But it appears by the affidavit of the city clerk, who was also clerk of the council and acting as such at the time, that there were only nine aldermen and the president of the common council present; that the president did not vote; that one of the aldermen, a Mr. Beynolds, voted in the negative, and that, according to his best recollection, Alderman Klopher also voted in the negative, leaving only seven affirmative votes.

Alderman Beynolds makes an affidavit in which he states positively that he voted against the resolutions, and a Mr. Hanlon, a reporter for a local newspaper, who was present, makes an affidavit in which he states positively that two members of the council voted against the adoption of the resolution, and the affidavit states that his recollection is fortified in that regard by a reference to his report of such meeting, which was published in the newspaper the following morning, in which it was stated that such resolution “ was passed with only two dissenting votes.”

But if we assume that the affidavits present a question of fact in that regard, we deem it of no importance, because the subsequent action of the common council did not conform to the requirements of the charter. Goncededly, within ten days after the adoption of the three resolutions referred to, the mayor vetoed the same and transmitted such veto and his reasons therefor in writing to the common council. At a regular meeting held on the 19th day of April, 1904, such veto was presented to the council for its action. Instead of action being taken by the common council upon the veto, overruling or sustaining it, the relator, Alderman Michaelson, offered the following:

“Whereas, the Common Council of the City of Geneva did, by resolution, direct the purchase of (6) six voting machines for use in the said city; and
“ Whereas, the Mayor of said city has vetoed said resolution,
“ Now, Be it resolved, that the Mayor and City Clerk of the said city be authorized and directed to purchase said machines and to execute contracts therefor in accordance with the terms and conditions of the resolution previously passed,”

Such resolution was adopted, nine (two-thirds) of the aldermen voting in the affirmative and one in the negative.

The resolution thus adopted was neither in form or substance the same as the resolution which the mayor had vetoed. It did not contain even substantially all the provisions of the original resolution ; and simply by reference to it and without referring to the previous action of the common council, the power or authority conferred upon the mayor, or the direction to him, could not be ascertained. There is no provision in the charter which authorizes the common council to overrule the veto of the mayor in such a manner substantially by adopting a new resolution not embodying the essential provisions of the first. By the terms of section 49 of the charter the mayor was entitled to have such last-mentioned resolution submitted to him in order that he might exercise his right of veto in respect to it, and it could only become effective after having been so presented and after the mayor’s approval or upon his failure to act upon it.

Tiedeman on Municipal Corporations (§ 148) says: “ It is absolutely essential to the validity of municipal legislation as expressed in ordinances that it should be enacted by the proper body duly assembled, and in the precise form and manner, if any be prescribed by the municipal constitution and general law from which it derives its authority. * * * If the charter requires the concurrence of the mayor as a part of the law-making power, a resolution or ordinance which is vetoed by him, or which lacks his approval, as manifested by signature, or in some other proper manner, is a nullity.”

In State v. Newark (25 N. J. L. 399, 420) the court said: “ Again, the council may then at its next meeting proceed to reconsider the same (the resolution vetoed). Reconsider what? Only the resolutions presented and returned. The council can only then pass the resolutions presented and returned.”

The effect of the resolution in question, if properly passed, would be to create a charge upon the municipality and upon the taxpayers therein, and a literal compliance with the statutory provisions must clearly appear. (Merritt v. Village of Portchester, 71 N. Y. 309.)

It is unnecessary to determine whether or not the purchase of the six machines in question would constitute an extraordinary expenditure within the meaning of section 141 of the defendant’s charter, because by the sections of the Election Law, to which reference has been made, the local authorities are expressly authorized to determine whether or not an expenditure for voting machines shall be made. As to such expenditure, the taxpayers have nothing to say, whether it is ordinary or extraordinary, but the whole matter is left to the local authorities.

In conclusion it may be said that, as a matter of discretion, the application was properly denied. The decision of the learned court below was not put upon that ground, however, and we are not disposed to rest our decision upon that feature of the case, but conclude that the action of the common council in attempting to authorize the purchase of the machines in question did not comply with the requirements of the charter, and was, therefore, illegal and void.

All concurred, except Spring, J., not voting.

.Order affirmed, with costs. 
      
       Added by Laws of 1899, chap. 466, and amd. by Laws of 1901, chap. 530.—[Rep.
     
      
      Added by Laws of 1899, chap. 466.— [Rep.
     