Mills v. Sweeney

• Decision Date: 31 October 1916
• Parties: MILLS v. SWEENEY, City Clerk.
• Court: New York Court of Appeals Court of Appeals

219 N.Y. 213

114 N.E. 65

MILLS

v.SWEENEY, City Clerk.

Court of Appeals of New York.

Oct. 31, 1916.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Suit for injunction by Moses C. Mills against Daniel J. Sweeney, as City Clerk of the City of Buffalo. From an order of the Appellate Division (161 N. Y. Supp. 1135), reversing an order, denying in part and granting in part the motion for preliminary injunction, the defendant appeals. On question certified by the Appellate Division. Order affirmed.

The Appellate Division has certified the following questions to this court:

‘(1) Did the common council of the city of Buffalo have the power to enact chapter XLV of the ordinances of the city of Buffalo?

‘(2) Has the said ordinance been ratified by subsequent legislative enactment?

‘(3) Is the ordinance now in force?

‘(4) May the defendant be restrained from publishing the required notices that question No. 3 in the petition is to be voted upon at the general election to be held November 7, 1916?’

The facts, so far as necessary, are stated in the opinion.

Clayton M. Smith, of Buffalo, for appellant.

Daniel J. Kenefick, of Buffalo, for respondent.

WILLARD BARTLETT, C. J.

This is a taxpayer's action to restrain the expenditure of the public moneys of the city of Buffalo in publishing certain election notices under chapter XLV of the ordinances of that city. The complaint demands judgment that the ordinance in question shall be adjudged to be illegal and invalid and of no force or effect. The ordinance was enacted by the common council on the 11th day of July, 1904, and the portion thereof material to be considered upon this appeal reads as follows:

‘Chapter XLV.

‘Public Policy Questions.

‘1. Upon filing with the city clerk of a written petition signed by five per centum of the registered voters of the city of Buffalo, as shown by the last registration list, or upon a resolution of the common council of said city, passed by a majority vote thereof authorizing it, it shall be the duty of the proper election officials to submit any question or questions of public policy so petitioned for or authorized, to the electors of said city at any general election in order to obtain the opinion of such electors thereon. * * * Not more than three questions proposed by petition shall be submitted at the same election.’

The ordinance contains further provisions requiring the city clerk to publish in four daily newspapers a notice that the questions are to be voted upon at the next election, and it also requires that the questions shall be submitted in the manner and form prescribed for the submission of constitutional amendments or other public measures.

[1][2] It is contended in behalf of the appellant that authority in the common council to enact the ordinance was conferred upon that body by a provision of the city charter then in force (Laws of 1891, c. 105) known as the general welfare clause. That clause reads:

‘The common council shall, from time to time, enact * * * such other and further ordinances not inconsistent with the laws of the state, as shall be deemed expedient for the good government of the city, the protection of its property, the preservation of peace and good order, the suppression of vice, the benefit of trade and commerce, the preservation of health, the prevention and extinguishment of fires, the exercise of its corporate powers and the performance of its corporate duties.’ Section 17, subd. 11.

It will be observed that nowhere in this charter provision is any express power bestowed upon the common council to submit questions of public policy or other questions to a referendum. It is only by implication that the existence of the power can be established.

Judge John F. Dillon, in his classic treatise on the Law of Municipal Corporations, says that in this country the term ‘ordinance’ is seldom, if ever, applied to charters or acts of the Legislature regulating the powers of municipalities and their mode of action, but is limited in its application to the acts or regulations in the nature of local laws passed by the proper assembly or governing body of the corporation. 2 Dillon's Mun. Corp. (5th Ed.) § 570. This statement imports that legislation regulating the method of action of a municipal corporation hardly falls within the scope and province of an ordinance; but, however that may be, the word ‘ordinance’ usually means simply a local law prescribing a general and permanent rule. Citizens' Gas & Mining Co. v. Elwood, 114 Ind. 332, 16 N. E. 624. An ordinance generally imports a command or prohibition applicable to all the inhabitants or certain classes in the given municipality. It is usually designed to compel or prevent action of some sort on the part of some one.

The ordinance under consideration here it of an entirely different character. The phrase ‘questions of public policy’ is broad and indefinite. It may include not only questions of local legislation under present consideration by the common council, but also plans, projects, or schemes brought forward for the first time by a small minority of the voters in which the remainder of the community takes no special interest and concerning which an expression of opinion by the electorate can be of no possible value, being merely a brutum fulmen. In the latter view it is merely a measure for the taking of an advisory popular vote having no legal effect or consequences whatsoever upon any question of public policy whenever such vote is petitioned for by 5 per cent. of the registered electors in Buffalo or whenever it is authorized by a resolution of the common council. No provision is made for giving effect to the advice of the voters. Their approval or disapproval of a specified public policy will not compel any one to adopt or reject it in the administration of the affairs of the municipality. There is no requirement that the questions propounded need have reference to any matter actually under official consideration. Hence a referendum under the ordinance may not be restricted to the useful function of informing the common council as to the sentiment of the electorate concerning some public measure before that body for adoption or rejection. In short, the language of the enactment is so broad and the possibilities thereunder so unlimited that it permits a small proportion of the voters to invoke public action which may be utterly useless and futile.

These observations, however, are only suggestive of the exceptional character of the ordinance, and do not apply directly to the question whether the common council was vested with authority to enact an ordinance of this kind by the general welfare clause of the former charter.

I am of opinion that this general clause (also to be found in the existing charter, chapter 217 of the Laws of 1914) was not intended by the Legislature to confer upon the common council authority to enact an ordinance involving a referemdum of any kind. Ever since the referendum has found recognition in the political system of this state it has been the policy of the Legislature to deal with it directly and in express terms, and not delegate the right to adopt it to inferior legislative bodies. Thus express legislative provision for the submission of propositions to the voters of specified localities is to be found in General City Law (Consol. Laws, c. 21) §§ 23 (as added by Laws 1913, c. 247) and 70; in Town Law (Consol. Laws, c. 62) § 48; in Liquor Tax Law (Consol. Laws, c. 34) § 13; and in Village Law (Consol. Laws, c. 64) § 348. In the existing charter of the city of Buffalo we find an article entitled ‘The Referendum’ (sections 31 to 34, inclusive), which provides under certain circumstances for submitting to a vote of the electors of the city the question whether an ordinance shall be repealed, and which prescribes a method whereby any resolution appropriating money other than for the regular payrolls or disposing of any property or rights of the city may be submitted to the electors before becoming effective. I think that the charter provisions prescribing when a referendum may be had are exclusive, and by implication prohibit the common council from providing by ordinance for a referendum as to other matters.

If the general welfare clause in the Buffalo charter authorized that city to provide by ordinance for a referendum upon any questions of public policy, it is difficult to perceive why all the second-class cities in the state do not possess the same power. The Second-Class Cities...