Opinion
No. 27329
Decided May 31, 1939.
Elections — Voting machine may be purchased or rented, when — Sections 4785-161 and 4785-161a, General Code — Substance and not form prevails where character of instrument doubtful — Purchase and not rental of voting machines authorized by "acquisition" — Contract to purchase void without bond — Section 4785-161c, General Code.
1. Except where electors of a county voted to adopt voting machines prior to the effective date of Section 4785-161, General Code, such statute provides for the purchase but not the rental of voting machines for an entire county or municipality.
2. Under Sections 4785-161 and 4785-161 a, General Code, voting machines may be rented only (a) where electors adopted voting machines prior to the effective date of Section 4785-161, (b) where temporarily necessary to equip all precincts until a full quota for a county or municipality can be supplied under contract of purchase, or (c) for experimental use in a limited number of precincts in a county or municipality.
3. Where there is doubt about the character of an instrument the substance rather than the form will prevail.
4. Where, upon recommendation of a board of elections, a board of county commissioners, after giving careful consideration to the question of the purchase of voting machines, authorizes the "acquisition" of voting machines by the board of elections for the entire county, such authorization is not one for the rental but for the purchase of voting machines.
5. A contract for the purchase of voting machines by a board of elections for an entire county without the seller providing therewith a satisfactory bond as required by Section 4785-161 c, General Code, is illegal and void.
APPEAL from the Court of Appeals of Trumbull county.
This is an action by a taxpayer against the board of elections, the county commissioners, the treasurer and auditor of Trumbull county and the Automatic Voting Machine Corporation for injunctive relief. The amended petition prayed for both a temporary and permanent injunction against the execution of certain contracts whereby voting machines were to be acquired for Trumbull county from the Automatic Voting Machine Corporation, hereinafter termed the corporation. The Court of Common Pleas found the contracts valid and refused a permanent injunction, whereupon the cause was appealed to the Court of Appeals. That tribunal also found the contracts valid, dissolved the temporary order theretofore granted and dismissed the relator's petition. The cause is in this court for review by reason of the allowance of relator's motion to certify the record.
Mr. Paul E. Kightlinger, for appellants.
Mr. Paul Reagen, for appellee, Board of Elections.
Messrs. Harrison Marshman and Mr. Claude C. Smith, for appellee, Automatic Voting Machine Corporation.
The principal question for consideration is whether a certain contract for voting machines, known as Exhibit "D," is illegal by reason of the failure of the Automatic Voting Machine Corporation to furnish a bond as required by Section 4785-161 c, General Code. It is contended by the defendants that no bond is required for the reason that the agreement in question is not a purchase but a rental contract authorized by statute.
It is claimed by the defendants that the contract in question was authorized by Section 4785-161 a, General Code, but a careful reading of that section will reveal that it provides: First, that where an entire municipality or an entire county has previously adopted or authorized a contract for the purchase of voting machines, then and then only may voting machines be temporarily rented until the full allotment thereof has been supplied to such municipality or county; and second, for the rental or purchase of voting machines in a limited number of precincts for experimental use. The language used is "make provision for the experimental use."
There are two principal methods and one exception by which voting machines may be acquired for an entire county or municipality. The methods are to be found in Section 4785-161, General Code. Under one method "the board of county commissioners of any county or the legislative authority of any municipality may on recommendation of the board of elections, authorize the purchase of such voting machines * * * respectively for the entire county or for such municipality, either out of current revenue or by the issuance of bonds within the limitations fixed by law." The word "rent" is not found in the language used. Since the word rent is not used, it follows therefore that the board of county commissioners, in the absence of a vote by the electorate, may, on recommendation of the board of elections, authorize only the purchase of voting machines for an entire county or municipality.
The second method for the purchase of voting machines for an entire county or municipality mentioned in Section 4785-161 is by filing a petition signed by two per cent of the electors requesting that the question of adopting voting machines be submitted to the electors at the next general election. The law further provides that upon the filing of such a petition the board of county commissioners shall forthwith determine whether it will be necessary to issue bonds to provide for the purchase of such voting machines, if adopted. If it is deemed necessary to issue bonds therefor, the county commissioners, by resolution, shall provide for the submission on the same ballot, but as a separate issue, the question of issuing such bonds.
An exception to the foregoing methods of purchase of voting machines for an entire county or municipality is to be found in the last sentence of Section 4785-161, reading as follows: "If the electors of any county or municipality shall have voted prior to the enactment of this provision in favor of adopting the voting machine, then such board of county commissioners or legislative authority of such municipality, as the case may be, shall provide for the purchase or rent of such machines in the manner herein provided." The word "rent" is not found in the entire Section 4785-161, except in the foregoing sentence. The provision is an exception and applies only to a county or municipality which voted to adopt voting machines prior to the effective date of such statute. The statute was enacted as an emergency measure and approved by the Governor on June 29, 1931. Since the instant action does not include any proceedings prior to the effective date of the statute, we are not required to construe such special provision except to state that it cannot apply to the instant case.
In the instant case there was no submission of the question to the electorate by the county commissioners, and therefore no adoption of voting machines in Trumbull county. Whatever validity the contract in question may have must therefore be found primarily in the action taken by the Board of County Commissioners of Trumbull county. The record reveals that before the present contract was executed, the board of elections had recommended to the county commissioners that machines for the entire county be purchased on a fifteen-year installment basis, the total cost, including interest, to be $131,458.14. On September 10, 1937, the board of county commissioners refused to authorize the purchase of voting machines for the entire county as thus recommended by the board of elections.
Thereafter further negotiations were had between the board of elections and the defendant corporation and on November 5, 1937, the board of elections voted to send the following recommendation to the county commissioners: "Based upon the use of voting machines at the election on November 2, 1937, the board of elections unanimously recommend [sic] the acquisition of voting machines for use at elections in Trumbull county." The word "rent" is not found in the recommendation made.
On the same day the board of county commissioners took action as follows: "After giving careful consideration to the question of the purchase and use of voting machines in Trumbull county, pursuant to the recommendation of the board of elections, it has been: 'Moved by Neil Duck, seconded by R.R. Goddard, that the recommendation dated November 5, 1937, submitted by the Trumbull county board of elections, recommending the acquisition of voting machines for use at elections in Trumbull county, be hereby acknowledged and the board of county commissioners, Trumbull county, Ohio, authorize the acquisition of such voting machines out of current revenue, in accordance with Sections 4785-161 and 4785-161 a, of the General Code of Ohio; such contract for the acquisition of said voting machine shall be submitted to and approved by the board of elections. Yeas: Neil Duck, and R.R. Goddard. Nays: None.' "
It will be noted that the board of county commissioners did not authorize the board of elections to rent the machines. After giving careful consideration to the question of the purchase of voting machines, it authorized "acquisition" which is defined by 1 Bouvier's Law Dictionary, Rawle's Revision, as "the act by which a person procures the property in a thing." Accordingly it may be said that the only legal effect of the action of the board of county commissioners was to authorize the board of elections to acquire the voting machines — to purchase them.
On November 8, 1937, the following action was taken by the board of elections: "The contract from the Automatic Voting Machine Company, of Jamestown, for voting machines for the years 1938 to 1952, inc., was presented, and it was moved by Mr. Fisher and seconded by Mrs. McLain, that the contract be accepted; and that all members of the board sign the same. Upon roll call all voted yes. The contract was entered into upon authorization to acquire voting machines received from the county commissioners."
Here again we do not find the word "rent" but instead the phrase "to acquire voting machines." Again referring to Bouvier's Law Dictionary we find the word "acquire" is defined as follows: "To make property one's own. To gain permanently."
The contract entered into by the board of elections and the corporation on November 8 is as follows:
"Contract No. 'D.'
"This agreement made in duplicate pursuant to authorization of the board of county commissioners and Section 4785-161 a of the Ohio General Code, this 8th day of November, 1937, by and between the Automatic Voting Machine Corporation of Jamestown, New York, party of the first part, hereinafter referred to as 'company' and the board of elections of and for the county of Trumbull, state of Ohio, party of the second part and hereinafter referred to as the 'county.' Witnesseth, that for and in consideration of the agreements hereinafter stated and expressed, the parties hereto covenant and agree with each other as follows:
" First: — The company agrees to rent and re-rent one hundred (100) United States standard voting machines of the nine party row, forty candidate type similar to the seventy-five (75) voting machines used in parts of the county at the election held November 2, 1937, and it is agreed by the parties hereto that those seventy-five (75) machines shall be a part of the one hundred (100) each accompanied by one instruction model at the following rental prices, such rental prices to be paid on or before July 1st of each year: —
"$10,525.72 plus cost of delivery of twenty-five (25) machines to the county for 1938 and
"$8,675.58 each year thereafter beginning 1939 and including 1952.
"Provided however that the rental for the year 1938 shall be credited with and reduced by the sum if any which the county pays the company for the use of its voting machines at elections during the year 1937.
" Second: — The company agrees that if and when the county shall have paid it, the total rental from 1938 to 1952 inclusive described above, no further rental need be paid and the company will at the option of the county give it a bill of sale for said machines.
" Third: — The county agrees that should it elect to rent and re-rent said one hundred (100) voting machines it will give the company written notice of such intention on or before April 1 each year and pay the rental for such year specified above on or before July 1 each year such machines are rented and re-rented.
" Fourth: — The county further agrees that it will be responsible for the safety and good care of said voting machines during the time they are in the county's possession, and, if any of said machines shall in any way become damaged during such time the county will pay for such repairs as shall be necessary to put said machines in perfect condition, and the county further agrees that, should it not rent or re-rent said machines in any year it will on or before May 1st of said year return said machines to the company f.o.b. cars Jamestown, New York, all transportation charges prepaid.
" Fifth: — The county further agrees that said machines while in the possession of the county shall not be subject to any personal property tax and no such tax shall be imposed thereon.
"Provided however that should such tax be imposed upon such machines this agreement of the county to the contrary notwithstanding, and such tax be paid then and in that event in consideration of the reduced annual rental specified above, the county agrees to pay additional rental equal to such tax for all years in which such tax is paid.
"In witness whereof the parties have hereunto set their seals and duly executed this agreement this 8th day of November, 1937.
"Automatic Voting Machine Corporation,
"By Russell F. Griffen,
"Vice President.
"(Corporate Seal)
"Attest:
"Martin L. Badhorn,
"Secretary.
"Board of Elections of Trumbull County, Ohio,
"By Clyde Sherman, Chairman.
"(Seal)
"Margaret McLain,
"Robert Ferrell, Anna L. Brooks, Clerk. Herbert L. Fisher.
"Jamestown, New York, November 8, 1937.
"Board of Elections,
"County of Trumbull,
"Warren, Ohio.
"Dear Sirs:
"In consideration of your rental contract covering one hundred voting machines which you are about to make with us, of even date herewith, we agree that if all rentals which may become due thereunder are promptly and fully paid you shall have the right to purchase said voting machines on or before August in any of the following years at the prices indicated provided the rental for such year and prior years has been paid in full.
"1938 ...... $98,000.00 1939 ...... $92,264.42 1940 ...... 86,356.77 1941 ...... 80,271.89 1942 ...... 74.004.47 1943 ...... 67,549.02 1944 ...... 60,899.91 1945 ...... 54,051.33 1946 ...... 46,997.29 1947 ...... 39,731.63 1948 ...... 32,248.00 1949 ...... 24,539.86 1950 ...... 16,600.48 1951 ...... 8,422.91
"Very sincerely yours,
"Automatic Voting Machine Corporation,
"Jamestown, N Y
"Russell F. Griffen."
While the words "rent" and "re-rent" are used in the foregoing contract it should be remembered that the board of county commissioners on November 5, 1937, did not authorize the board of elections to rent or re-rent voting machines. Referring now to the figures of the contract, by computation it will be revealed that the total amount over a fifteen-year period to be paid by the board of elections to the corporation amounts to $131,983.84, almost exactly the same sum that was to be paid on the contract of purchase previously rejected on September 10, 1937, by the board of county commissioners. Here was a September contract to purchase 100 voting machines for a total cost of $131,458.14 to be paid over a period of fifteen years turned into a November contract to rent 100 voting machines for a period of fifteen years for practically the same sum, the title to the machines under the latter contract to be conveyed to the county at its option at the end of the fifteen years. That Contract "D" was regarded, in substance, as a contract of purchase was indicated by the testimony of Miss Brooks, one of the members of the Trumbull County Board of Elections. The following are some questions and answers by Miss Brooks on cross-examination:
"Q. Apparently so, Miss Brooks; now, you, as a member of the Trumbull county board of elections, understand that, under the last contract, of November 8, that each succeeding board of elections has the option to determine whether or not voting machines shall be used in the place of ballots, for that year? A. That is my understanding.
"Q. And that, by the same token, each succeeding board of elections, of its own motion, that is in its own exercise of discretion, can elect to revert to the ballot system? A. They could.
"Q. If they see fit; your answer is yes? A. They could, but they wouldn't want to waste that much money.
"Q. What was that, Miss Brooks? A. I say, if they would, be very unwise, because look at the money they have paid out.
"Q. Would be a substantial loss to be sure, if they didn't continue after having paid rental for a number of years, wouldn't it? A. Absolutely.
"Q. So that, the option of exercising its official discretion, as to whether it decided to use the machines in future years, or not, would be practically forestalled by that, practically obstacle [ sic] of the great investment; isn't that true?
"Mr. Regan: You understand the question. A. It would."
On redirect examination Miss Brooks emphasized the element of purchase in her answer to the following question:
"Q. And the county would also be in much worse shape if they didn't have the option to purchase? A. Very much worse, very much worse; that was the point with us all along, to protect what we were paying in."
Where there is doubt about the character of an instrument the substance rather than the form will be considered. Steele v. State, 159 Ala. 9, 48 So. 673; Ducker v. Latonia Deposit Bank, 242 Ky. 374, 46 S.W.2d 493; Drovers' Deposit National Bank v. Tichenor, 156 Wis. 251, 145 N.W. 777.
Not only was there no bond given to secure the performance of the contract, but there is not a single syllable in the agreement that the voting machines will comply fully with the fourteen requirements set forth in Section 4785-161 c, General Code. Although the particular make of voting machine must have been previously approved by the Secretary of State, nevertheless the bond must be given to insure the performance of the individual machines. The agreement stipulates that it is optional with the county to proceed after payment in any particular year. It is optional with the county after fourteen years to quit making annual payments and let the corporation keep the machines. For example, if after the county makes payments for fourteen years and the machines fail to operate efficiently, of what avail is the option to the county, if there be no bond by the defendant corporation? After fourteen-fifteenths of the purchase price (by whatever name it may be called) has been paid, if the machines fail, of what value is the option to the county to make the fifteenth payment and accept title, if there be no bond to guarantee performance? Nor is that all. In respect to performance, the contract violates not only the letter but also the spirit of the law. Instead of requiring the corporation by bond to guarantee the performance of the machines, paragraph four of the contract provides that "if any of said machines shall in any way become damaged during such time the county will pay for such repairs as shall be necessary to put said machines in perfect condition * * *." Machines may become damaged by reason of faulty material or manufacture as well as by storage. Should the former happen, the county, under the provision just quoted, would not only be obligated for its so-called annual rental payment but might also be required to pay for the repairs to put the machines "in perfect condition."
Section 4785-161 b, General Code, provides for the approval of a voting machine by the secretary of state before such machines may be purchased or used in any county. The first sentence of that section reads as follows: "No make of voting machine shall be purchased or used in any county of the state unless and until it shall have been approved by the secretary of state in the manner herein provided." It is significant that the word "rent" or "rented" is not found in the language used.
The next section of the statute, Section 4785-161 c, General Code, refers to the requirements, etc., of voting machines. The first sentence of that section reads as follows: "No voting machine shall be approved by the board of examiners or the secretary of state, or be purchased or used by any board of elections, unless it shall fulfill the following requirements * * *." (Italics ours.) Here again neither the word "rent" nor "rental" is to be found. The last paragraph of this section is explicit and mandatory. It states: "Before any voting machine is purchased the person or corporation owning or manufacturing such machine must give an adequate guarantee, in writing and post a satisfactory bond with the board of elections securing that such machines comply fully with the above requirements and will correctly, accurately and continuously register and record every vote cast." (Italics ours.) What are the requirements referred to? There are fourteen such requirements covering every possible phase of voting by machines in order to guarantee the secrecy and sacredness of the ballot. If the language used does not require a bond to guarantee the compliance of the machines when purchased, then by the same token where a machine is rented it would not have to comply with any of the fourteen requirements.
A voting machine, when used in an election, is an instrument to record the sovereign will of the people. It is an instrument designed for use at a particular time at a particular place. In order that all electors may have an equal chance to record their votes it is important that such machines operate efficiently in the manner intended. It was in the furtherance of such a purpose no doubt that the statute reads "that such machines comply fully" with all requirements and in addition thereto "will correctly, accurately and continuously register and record every vote cast." Here is an agreement made for voting machines, the first such contract for an entire county under the present law, at a total expenditure of $131,000 plus — an important contract — without bond, indeed without any "adequate guarantee" of any kind written into the contract itself. To contend that such an agreement covering a period of fifteen years, during which time the entire cost of the machines is to be paid, is a contract of rental on an experimental basis is to tax one's credulity. If there is to be experimentation for a period of fifteen years at a total cost of $131,000 plus, there is that much added reason for compliance with the statute and a bond to guarantee that the machines will comply with all requirements provided by law.
Much is said in the brief of appellant about the absence of bidding as required by statute and also about the failure of certification of funds by the county auditor as required by law. Where a contract like the one known as Exhibit "D" is so manifestly illegal and void under the statutes, examination of other claimed errors in respect to such agreement would be a work of supererogation.
It is the conclusion of this court that the contract known as Exhibit "D" is illegal and void. If it be considered as a rental contract it is void for the reason that the board of county commissioners did not and could not legally thus authorize the rental of voting machines for the entire county, under the facts of the instant case. On the other hand, if it be regarded as a purchase contract, it is illegal and void by virtue of noncompliance with Section 4785-161c requiring the defendant corporation to furnish a satisfactory bond.
Contract "B" is also invalid for the reason that it was neither authorized nor executed according to law. It was a contract for county-wide use of voting machines for a two-year period, not only without the bond required by law but without any authorization whatever of the board of county commissioners. In fact, that contract was executed in defiance of the board of county commissioners. That contract for voting machines for 1937 and 1938 was executed on September 149, 1937, only four days after the board of county commissioners had refused to authorize the purchase of voting machines for the entire county. The action of the board of county commissioners with reference to Contract "D" was at a later date, November 5.
Contract "A" for the rental of fourteen voting machines and Contract "C" for one machine may be clearly regarded as for experimental purposes, and therefore valid. The judgment of the Court of Appeals will be reversed as to Contracts "D" and "B" and affirmed as to Contracts "A" and "C."
The judgment of the Court of Appeals will be reversed as indicated and final judgment rendered for the relator.
Judgment reversed.
WEYGANDT, C.J., DAY and ZIMMERMAN, JJ., concur.
WILLIAMS, MATTHIAS and HART, JJ., dissent.
No question as to the merits of voting machines or the policy of their use is involved in this case. We are concerned only with the validity of the contract under review.
The contract in question, designated in the record as "Exhibit D," provides in simple language that the Voting Machine Corporation agrees to rent to the board of elections of Trumbull county one hundred voting machines, sufficient to supply the election precincts of the entire county, at rental prices to be paid July first of each year, as follows: $10,525.72 plus cost of delivery of twenty-five machines to the county for 1938, and $8,675.58 each year thereafter, beginning in 1939 and including 1952, provided that if and when the total rental is paid from 1938 to 1952, inclusive, the company will at the option of the county, give it a bill of sale for the machines. It is further provided that the county may end the rental contract and purchase the machines outright in any year at a figure set out for each year as the purchase price. It is further provided, and this is an important consideration, that the county may elect at its option each year whether it will rent or re-rent the machines for the ensuing year by giving written notice of its intent so to do on or before April first and paying the rental on or before July first each year the machines are rented or re-rented. If they are not to be rented for any ensuing year the machines are to be returned to the company on or before May first.
In other words, the contract is a year to year rental contract with option to purchase for a definite price at the end of any year, provided rentals have been paid for previous years. The machines may be surrendered on May first of any year, thereby terminating the contract, so that no future revenues are pledged for either rental or purchase and each new board of elections is free to retain the machines on a rental basis or return them in any year. It permits the board of elections the utmost freedom, if better or cheaper machines can be obtained at any time, to take advantage of such opportunity by cancelling this contract and returning the machines.
There is no evidence in this record that the rental price is unfair or unreasonable. In fact the record shows that the annual rentals are but $150 more than the cost of conducting the elections by ballot. Neither is there any impeachment of this contract on the ground of abuse of discretion, bad faith, fraud, or even bad judgment on the part of county commissioners or board of elections who authorized and entered into this contract, after an experimental use of such machines in a portion of the voting precincts of the county for two years prior to the date of the contract.
The majority opinion reverts to the fact that in September 1937 the board of county commissioners decided not to purchase outright one hundred voting machines for $131,458.14, payable in installments over fifteen years, as a conclusive argument that they did not mean to authorize a rental of such machines over a fifteen-year period for a total rental of $131,983.84. But it must be remembered that in the rental contract they were not obligating themselves to pay the whole purchase price, but less than $9,000 per year as rental, with the privilege of cancelling the contract any year and in addition the option to purchase for cash for $98,000, and for lesser sums from year to year as shown in the schedule set out in the majority opinion. From a commercial viewpoint, it is difficult to see a sale rather than a rental in a contract which calls for installments in annual amounts not substantially greater than the annual savings in expense over holding elections by the ballot system, to continue for a period of fifteen years when the county would have the option to take title, especially when there is taken into consideration the heavy depreciation and obsolescense in this type of complicated machinery. In other words, the cash value of these second-hand machines at the end of fifteen years of use would be, in the natural course of events, very small.
In my opinion this contract is amply authorized by the election statutes of this state. In the first place, since this contract obligates the county to the extent of single annual rentals only, payable from current revenues, the board of elections would have authority to make such expenditures as a part of the annual election expenses of the county as provided for in Section 4785-20, General Code.
Section 4785-161 a provides that, "When voting machines have been authorized [by the board of county commissioners] or adopted [by the majority vote of the electors], a sufficient number of machines shall be purchased or rented by the board of elections so that all polling places within such county, * * * shall be equipped with voting machines." (Explanations in brackets and italics mine.) In the same section is the following provision: "If it shall be impracticable to supply each election precinct with a voting machine or voting machines at any election following such adoption, or authorization, as many shall be supplied for that election as it is practicable to purchase or rent * * *, but the additional voting machines necessary to supply all precincts shall be purchased and installed at the next succeeding election * * *." (Italics mine.) But this portion of the section, whatever it may mean, has no application here because the contract in question calls for the rental of all the machines necessary to supply all the precincts of the county.
The majority members of this court invalidate this contract by what, in my opinion, is a super-technical and strained construction of the language used by the board of county commissioners in its resolution authorizing the board of elections to enter into the contract in question. The resolution is quoted in the majority opinion, and will not be repeated in full here. It will be noted that the board of commissioners says: "After giving careful consideration to the question of the purchase * * * of voting machines * * * it has been: Moved * * * that the recommendation * * * submitted by the Trumbull county board of elections, recommending the acquisition of voting machines for use at elections in Trumbull county, be hereby acknowledged and the board of county commissioners * * * authorize the acquisition of such voting machines out of current revenue [the annual budget of the board of elections] in accordance with Sections 4785-161 and 4785-161 a, of the General Code of Ohio; such contract for the acquisition of said voting machines shall be submitted to and approved by the board of elections." (Italics mine.)
The majority of this court insists that the word "acquisition" used in this resolution means "purchase" and only "purchase," and cannot be construed to comprehend "rental." I think, for very good reasons, it may comprehend either or both according to the context and intent of the parties using the term in question. The board of elections at their meeting September 11, 1937, passed a resolution to the effect that they equip the entire county by renting one hundred machines; at the meeting of the board of elections held November 5, 1937, the board recommended to the county commissioners the "acquisition" of the machines; on the same date the county commissioners adopted their resolution. This board says, "giving careful consideration to the question of purchase," we authorize "acquisition" and repeat that term several times, departing entirely from the term "purchase." They authorize such "acquisition" out of "current revenue" when they must have known that the board of elections had no such budget as would permit the purchase from current funds. The commissioners in their resolution also give their authority, "in accordance with Sections 4785-161 and 4785-161 a." If the authority was to purchase, only Section 4785-161 need be mentioned; but when they include 4785-161 a they must have had in mind rental because such type of acquisition is authorized by this section.
Furthermore, the county commissioners had previously, under date of September 15, 1937, sent a letter to all county officials, including the board of elections, about revenues and budgets, the last paragraph of which is: "You are cautioned not to incur any obligations for 1938 in anticipation of an increased budget for at this time the board is in no position to state whether extra funds will be available." Does it appear reasonable, in the face of this letter to the board of elections, that they, the board of county commissioners, intended to authorize the purchase of one hundred voting machines at a cost of about $130,000 when the whole annual budget of the board of elections for the preceding year, as allowed by the county commissioners, was about $30,000?
We need look only to the majority opinion to see that the word "acquire" has been used to comprehend the securing of voting machines by rental. The majority opinion says: "There are two principal methods and one exception by which voting machines may be acquired for an entire county or municipality." (Italics mine.) The third of these methods referred to is described by the writer in the words of the statute, which are: "Then such board of county commissioners or legislative authority of such municipality, as the case may be, shall provide for the purchase or rent of such machines in the manner herein provided."
The word "acquisition" is used in Section 4785-20, General Code, a part of the election laws, in a sense that cannot in every instance mean "purchase." It provides that the board of elections in providing funds for its work shall include "the expenditures for the acquisition, repair, care and custody of polling places, booths, guard rails and other equipment for polling places * * *." (Italics mine.) The use of the word "acquisition," with reference to polling places, certainly does not mean that the board must purchase a polling place in each precinct. It must be a matter of common knowledge that the great majority of polling places are acquired by rental. Clearly it means that the board may acquire a polling place by lease or rental, as it may also do in case of voting machines.
In many of the statutes of this state giving county commissioners and municipal authorities the right to acquire property, the acquisition is permitted by purchase or by lease indicating that the word "acquire" may comprehend either purchase or lease or both. To illustrate, Section 2421, General Code, provides that: "When the commissioners deem it unnecessary to the construction of any bridge and the approaches thereto to acquire the entire land upon and over which the same shall be located, they may acquire such part of such land and such easements and rights in the remainder thereof as they shall deem necessary and sufficient for such construction."
Section 3615, General Code, provides that "Each municipal corporation * * * may * * * acquire property by purchase, gift, devise, appropriation, lease, or lease with the privilege of purchase, for any municipal purpose authorized by law * * *." The authorities hold that property may be "acquired" by lease ( State, ex rel. Cole, v. District Court, 79 Mont. 1, 254 P. 863); that "acquire" does not necessarily mean the taking of a fee ( Harris v. Bedell Co., 222 App. Div. 467, 226 N.Y. Supp., 513); and that rights are "acquired" other than by purchase ( Allen et al., Trustees, v. Commissioner of Corporations and Taxation, 272 Mass. 502, 172 N.E. 463, 70 A. L. R., 1299).
The word "acquire" is not a complete synonym for "purchase." It comes from the Latin acquirere, meaning primarily to seek, to obtain, to gain by any means; as to acquire a title, but it may be a fee or any lesser interest. (See Anderson's Dictionary of Law and March's Thesaurus Dictionary.) The word "acquire" is more comprehensive than either purchase or rent and includes both. As I see it, the board of elections could acquire these voting machines either by purchase or rental.
Even if the term "acquisition," used in the resolution of the board of county commissioners authorizing the board of elections to supply voting machines for Trumbull county, be construed to mean "purchase," it must be remembered that words granting authority pertaining to the administration and proprietary powers, must be liberally construed, and when so construed the authority to purchase includes the lesser authority to rent. Galloway v. Road Improvement District No. 4 of Prairie County, 143 Ark. 338, 220 S.W. 450.
The majority opinion concedes that the board of elections, under Section 4785-161 a, may temporarily rent voting machines to equip all precincts until a full quota can be supplied under contract or purchase. Even if this limited view of the statutes be taken, there is nothing in this contract which is inconsistent with such a plan. The contract is good in its inception and has not yet been violated.
Complaint is made that no bond was filed as provided for by Section 4785-161 a, but a reading of this section shows at once that a bond is required only when voting machines are purchased. Under this contract, if and when the machines fail to work they may be returned to the company. If the county should decide to purchase the machines, then, and not till then, could a bond be required.
This case was tried to a painstaking, competent trial judge, who found no infirmity in this contract. His judgment was affirmed by the Court of Appeals and should be affirmed by this court.
WILLIAMS and MATTHIAS, JJ., concur in the foregoing dissenting opinion.