
    John T. Elfvin, Individually as a Citizen, Resident and Taxpayer of the City of Buffalo and as a Member of the Common Council of the City of Buffalo, Appellant, v. City of Buffalo et al., Respondents, et al., Defendants.
    Argued March 14, 1967;
    decided March 14, 1967.
    
      
      Thornton G. Edwards for appellant.
    I. Provision for a referendum must be expressly authorized by statute or it is invalid. (Mills v. Sweeney, 219 N. Y. 213; Matter of McCabe v. Voorhis, 243 N. Y. 401; Elkind v. City of New Rochelle, 5 Misc 2d 296, 4 A D 2d 761, 5 N Y 2d 836; Matter of Kupferman v. Katz, 19 A D 2d 824, 13 N Y 2d 932; Barto v. Himrod, 8 N. Y. 483.) II. Section 411 of the Buffalo City Charter is only a local law which has not been authorized by statute. III. Section 411 is unconstitutionally vague in purporting to bind the common council to an indefinite proposition. (People v. Diaz, 4 N Y 2d 469; Smith v. California, 361 U. S. 147.)
    
      Anthony Manguso, Corporation Counsel, for respondents.
    I. Plaintiff lacks legal capacity to bring an action disputing the constitutionality of section 411 of the Buffalo City Charter. (Schieffelin v. Komfort, 212 N. Y. 520; St. Clair v. Yonkers Raceway, 13 N Y 2d 72; City of Buffalo v. State Bd. of Equalization & Assessment, 26 A D 2d 213; Massachusetts v. Mellon, 262 U. S. 447; Walters v. Great Neck Real Estate Bd., 22 Misc 2d 605.) II. The allegations contained in the complaint of plaintiff are without merit and insufficient as a matter of law. III. Section 416 of the Charter is not superseded by sections 23 and 24 of the Municipal Home Rule Law relative to time limitations on referenda. IV. Plaintiff’s prayer for a preliminary injunction should be denied. (Malkan v. General Transistor Corp., 27 Misc 2d 677; Bergen Beach Land Corp. v. City of 
      
      New York, 108 Misc. 70, 192 App. Div. 884; Goebel v. Bolan, 150 Misc. 574; Rundguist v. Leibowitz, 22 Misc 2d 117, 10 A D 2d 584; Graham v. Board of Supervisors, Erie County, 49 Misc 2d 459; Brower v. Williams, 44 App. Div. 337; Maloney v. Katzenstein, 135 App. Div. 224.)
   Memorandum. The Local Law (Buffalo City Charter, § 411) authorizing the council to “ submit to the electors of the city for determination by them ” at an election “any * * * questions * * * upon which the council has power to act ” is a valid statute and does not, in terms, violate the specifications of article IX of the New York Constitution, or the legislative implementation of the Home Rule provisions of the Constitution. This charter provision, enacted in 1927, stems in substantial part from an amendment to the earlier Buffalo charter enacted in 1920 by the Legislature. The resolution of the council submitting the question to the voters is in literal conformity with section 411. It submits a question for determination concerning which the council has power to act. In view of the historical development in New York of methods by which powers of local government may be exercised and the rather widespread use of referenda related to those powers as part of a developing growth of modern local government, it ought not to be held on this record that the challenged resolution is invalid as an abdication of local legislative responsibility.

The order should be affirmed, without costs.

Van Voorhis, J.

(dissenting). The difficulty with the validity of this resolution of the Buffalo City Council arises from the circumstance that the council takes no position in the resolution on whether there should be a city sales tax, does not adopt a city sales tax subject to approval by the electorate, but divests itself of legislative judgment by transferring its powers and responsibilities in this regard to the electorate. If it be assumed that section 411 of the Buffalo City Charter was adopted as a Local Law, with the same force and effect as though it were a State .statute, even the Legislature could not adopt a law conditioned to take effect as a law upon direct vote of the people (Barto v. Himrod, 8 N. Y. 483; People ex rel. Unger v. Kennedy, 207 N. Y. 533; Mills v. Sweeney, 219 N. Y. 213; Matter of McCabe v. Voorhis, 243 N. Y. 401), Section 411 of the City Charter states that, after the people vote, the council shall take such action as may be made necessary by such determination of the electors. This means that by the resolution, whose validity is in question, the council has reduced itself to act as an automaton. The State Legislature could not place itself in such a position in the discharge of its legislative responsibilities. The same is true with reference to the City Council which cannot do, under the powers conferred upon it by the Home Rule Amendment to the State Constitution and the Municipal Home Rule Law, what the Legislature could not do itself.

In McQuillin, Municipal Corporations (3d ed., Yol. 5), it is said at paragraph 16.50 that 11 an unlimited initiative and referendum provision is unconstitutional.”

The order appealed from should be reversed, the resolution of the Buffalo City Council submitting to the voters the question of the levy of a Buffalo City sales tax should be declared invalid and the special election upon that proposition enjoined.

Chief Judge Fuld and Judges Bbegan, Beeitel, G-abrielli , Strbit * and Cooke * concur in memorandum; Judge Yaw Yoorhis dissents in an opinion.

Order affirmed. 
      
       Designated pursuant to section 2 of article VI of the State Constitution in the temporary absence of Judges Bürke, Scileppi and Keating.
     