Empire Voting Mach. Co. v. City of Chicago

• Decision Date: 30 March 1920
• Docket Number: 2680.
• Citation: 267 F. 162
• Parties: EMPIRE VOTING MACH. CO. v. CITY OF CHICAGO et al. [1]
• Court: U.S. Court of Appeals — Seventh Circuit

267 F. 162

EMPIRE VOTING MACH. CO. v. CITY OF CHICAGO et al. ^[1]

No. 2680.

United States Court of Appeals, Seventh Circuit.

March 30, 1920

Rehearing Denied June 5, 1920. Stephen A. Foster and Herbert Pope, both of Chicago, Ill for plaintiff in error.

F. B Johnstone, Horace Kent Tenney, and Leon Hornstein, all of Chicago, Ill., for defendants in error.

Before BAKER, ALSCHULER, and EVANS, Circuit Judges.

EVANS Circuit Judge.

Plaintiff in error, hereinafter termed plaintiff, instituted this action to recover a money judgment, basing its cause of action upon a contract executed July 21, 1911, between it and the board of election commissioners of the city of Chicago hereinafter called the board, whereby 1,000 Empire voting machines were purchased for the specified price of $942,500. The contract was made after the board had received bids from various manufacturers and had examined various machines. The type selected had been examined and approved by the Illinois state voting machine commission.

The contract provided for the delivery of 200 machines on or before 8 months from the date of the contract, 300 on or before 15 months from the date of the contract, 200 on or before 21 months from the date of the contract, and 250 on or before 26 months from the date of the contract. Plaintiff delivered 200 of the machines between February and April, 1912, for which it was paid in two installments; the last payment being made in April, 1912, and after 192 of the machines had been used in the April primary election. The 300 machines were delivered shortly thereafter. A taxpayer's suit was then begun to restrain the board and the city from carrying out the agreement, and such suit was shortly followed by this action to recover the contract price for the 300 machines. The District Court directed a verdict in defendant's favor.

The city of Chicago, herein called the defendant, sought by way of counter relief to recover the purchase price of the 200 machines, but at the close of the testimony withdrew this issue.

Numerous questions, both of law and of fact, are presented on this writ of error; but in our view of the case it will be necessary to consider but one of them. Defendant denies plaintiff's right to recover, because the board had no power to bind defendant without a prior appropriation by the city council having been made to cover the purchase price of the voting machines. That no such prior appropriation had been made is conceded.

Two sections of the Illinois statutes are relied upon in support of this defense. Section 208 of the Criminal Code of Illinois (Hurd's Rev. St. 1917, c. 38) reads:

'Every person holding any public office (whether state, county or municipal) * * * who shall be guilty of contracting directly or indirectly, for the expenditure of a greater sum * * * of money than may have been, at the time of making the contracts, appropriated or set apart by law or authorized by law to be contracted for or expended upon the subject matter of the contracts * * * shall be fined not exceeding $10,000, and may be removed from his office. * * * '

And article 7, section 4, of the Cities and Villages Act (Hurd's Rev. St. 1917, c. 24, Sec. 91) reads as follows:

'No contract shall be hereafter made by the city council or board of trustees, or any committee or member thereof; and no expense shall be incurred by any of the officers or departments of the corporation, whether the object of the expenditure shall have been ordered by the city council or board of trustees or not, unless an appropriation shall have been previously made concerning such expense, except as herein otherwise expressly provided.'

Statutes or constitutional provisions quite similar to the last quoted section are common. Green et al. v. City of Everett, 179 Mass. 147, 60 N.E. 490; Commonwealth v. Foster, 215 Pa. 177, 64 A. 367; Mineralized Rubber Co. v. City of Cleburne, 22 Tex.Civ.App. 621, 56 S.W. 220; Fabric fire Hose Co. v. City of Teague (Tex. Civ. App.) 152 S.W. 506. They have uniformly been held to be mandatory. If contracts are made in defiance of this statutory requirement, they are void. Hurley v. Trenton, 66 N.J.Law, 538, 49 A. 518, affirmed 67 N.J.Law, 350, 51 A. 1109; Roberts v. City of Fargo, 10 N.D. 230, 86 N.W. 726; Kelly v. Broadwell, 3 Neb.Unof. 617, 92 N.W. 643.

The section under consideration has been frequently before the Supreme Court of Illinois, and the right to recover without such appropriation has been denied. May v. City of Chicago, 222 Ill. 595, 78 N.E. 912; Litz v. Village of Hammond, 230 Ill. 310, 82 N.E. 634; Gathemann v. City of Chicago, 263 Ill. 292, 104 N.E. 1085. The wisdom of this legislation cannot be doubted. It localizes official responsibility for municipal indebtedness and makes intelligent action by the appropriating body of a city possible.

But plaintiff contends that:

(a) Article 7, section 4, of the Cities and Villages Act does not apply to the board of election commissioners.

(b) That if the word 'officers,' as used in this section, is construed to include the board of election commissioners, the City Election Law (Hurd's Rev. St. 1917, c. 46, Secs. 155-287e45) and the Voting Machine Law (Hurd's Rev. St. 1917, c. 46, Secs. 430-451) are inconsistent therewith, and should be construed as amendments or as exceptions to said section.

(c) The city is estopped to assert the invalidity of its contract.

Contending that the duties of the board under the Voting Machine Act call for independent action, and that article 7, section 4, of the Cities and Villages Act, if applicable to the board, would destroy such independence, plaintiff asks for a construction in harmony with the purpose of the act.

But does it follow that such freedom is attainable only by the city's surrender of the control of its purse strings? The Cities and Villages Act has long been in force. Since 1875 it has been expressive of the public policy of the state of Illinois toward the debt-creating body of the municipalities of the state. If this policy were to be abandoned in whole or in part, it is hardly conceivable that the Legislature would have expressed its intention inferentially and by indirect legislation. The power of the board or any other municipal board to create debt for the city or incur expense must somewhere be traced to legislative enactment and the extent of such power will be strictly construed.

While the board is authorized to determine the advisability of using voting machines and to select the kind of machine to be used, there is no authority on its part to vote appropriations, make assessments or otherwise provide for the payment of its obligations. These last-named duties rest with the city council, subject again to certain limitations. For the board to report its recommendations to the council, the only tax-voting body, and to secure appropriations for its needs prior to incurring indebtedness, is not surrendering to the council its independence nor its duties, any more than it would be to surrender to the county judge who appoints the members of the board in any given county, the prerogative of the office. True the council may refuse an appropriation notwithstanding the board is satisfied that voting machines are productive of accuracy in election counts and tend to eliminate frauds in elections. But such contentions can hardly outweigh the reasons which induced the Legislature to enact section 4 of article 7 of the Cities and Villages Act. It is hardly necessary to suggest the possibilities that would result from a policy that permitted various boards, in addition to the city council, to incur unlimited indebtedness or appropriate money without limit.

But this is a question of statutory construction. The wisdom of such legislation was for the lawmaking body to determine. We are interested in construing the legislation and ascertaining the legislative intent as expressed therein. Are the members of the board 'officers' of the city of Chicago, or can it be said that the board is a 'department of the corporation'? Plaintiff answers this query in the negative.

In enacting this legislation, the state of Illinois was endeavoring to check irresponsible officials and make possible intelligent action by the taxing and debt creating body of the city. Could it possibly have been intended that 'officers' and 'departments' of a city were powerless to act without a prior appropriation, yet others could bind the municipalities without prior appropriation? Or could it have been intended by this Legislature to deny to a 'Department' or 'Officer' of the city the right to incur debt, yet to permit a board which was but a quasi city department to burden the municipality with unlimited debt without first obtaining an appropriation from the council? To state either question is to answer it. The Legislature intended no narrow or limited definition of the words 'officers' or 'departments of the corporation,' when it prohibited them from incurring debt or creating debt or creating expenses without a prior appropriation by the council.

Moreover, the status of the members of the board has been defined by the Supreme Court of Illinois on at least two occasions. People v. Board of Commissioners, 260 Ill. 345, 103 N.E. 282; Wetherell v. Devine, 116 Ill. 631, 6 N.E. 24. In the former case, after referring to the holding in Wetherell v. Devine, that the election commissioners were corporate authorities, the court said:

'It was declared that they are such corporate authorities because they are appointed in a mode to which the municipality has given consent * * * and it necessarily follows that they are officers of the municipality within and for which they are appointed. The appellants were officers appointed

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