I concur in the result reached by the court in the above opinion, but, I am unable to agree with the reasoning on which that result is based by my associates.
The twelfth paragraph of the bill of complaint is as follows:
"Your complainant further avers that the machine which said respondents, acting as a board to purchase voting-machines, voted to purchase, is not of a type or make that has been approved by the secretary of state in accordance with said chapter 2195. And this complainant is informed and believes and therefore avers that neither the secretary of state nor any member of said board to purchase ever saw the machine that said board voted to purchase at the aforesaid price of Eight Hundred Forty-Seven ($847) Dollars prior to the passage of said vote."
The majority of the court have interpreted the act in question as not requiring that the machines purchased by *Page 347 the board be of a type or make approved by the secretary of state. In this interpretation I am unable to agree with them. They base it upon the following language of sec. 5: "The board shall be empowered to select the lowest responsible bid, of the machine which fulfills to its satisfaction all the requirements heretofore enumerated."
They conclude from this language that the only restriction in the act as to the type or make of voting machines which the board is authorized to buy is that it fulfills to the satisfaction of the board all the requirements enumerated in sec. 4 of the act. This conclusion would be clearly correct, if it were not for other language of the act which to my mind clearly requires the above-quoted language of sec. 5 to be interpreted to the contrary. I shall underline the words which seem to me particularly important in this connection.
Section 1 is as follows: "The use at any state, city, or town election of voting-machines of such type or make as shall havebeen examined and approved by the secretary of state is hereby authorized under the restrictions provided in this act." It does not necessarily follow from this language that no voting-machines of any other type or make can be used in such elections, but it certainly emphasizes the element of approval by the secretary of state of the type or make of such machines. The language above quoted from sec. 5 also requires that any machines to be purchased under the act shall have been approved by the board as satisfying the requirements enumerated in the act.
Section 2 provides as follows: "In this act, unless the context otherwise requires: . . . The term `machine,' when used in sections five to twenty-seven, inclusive, of this act, shall mean any voting-machine of a type or make approved by thesecretary of state; . . ." If the above-quoted language from sec. 5 is rewritten in accordance with this definition of the word "machine," it will read as follows: "The board shall be empowered to select the lowest responsible bid, of the voting-machine of a type or *Page 348 make approved by the secretary of state which fulfills to its satisfaction all the requirements heretofore enumerated."
I can see no inconsistency or ambiguity in this language as thus reworded, and I can find nothing in the context which requires that the term "machine" in the above-quoted language from sec. 5 shall not be construed as meaning "any voting-machine of a type or make approved by the secretary of state." If the term is so construed, the language will require that voting machines purchased by the board shall be of a type or make approved both by the secretary of state and by the board, as satisfying the requirements enumerated in the act.
The secretary of state is one of the five general officers of the state, elected directly by the people, and the supervision of elections and other work in connection with them are committed to his department and constitute one of the most important, if not the most important of the functions of his office. I see nothing incongruous or unreasonable in providing that any type or make of voting machines, to be eligible for purchase by the board, acting in behalf of the state must be approved by concurrent action by him and the board of which he is a member but which can act without a unanimous vote of its members. Indeed it seems to me that no other interpretation of the language above quoted from sec. 5 is consistent with the following language at the end of sec. 3: "Provided, however, that no type or make of machine shall be used at any state or town election until such machine shall have been approved by the secretary of state."
This interpretation also seems to me to be strongly supported by language near the middle of sec. 3, in which, after providing for the approval by the secretary of state of any type or make of voting machines, if requested by a representative of such type or make and if satisfied as to its durability, accuracy, efficiency and capacity and that it complies with the requirements of the act, the act proceeds as follows: "and thereafter such type or make of machine may be used upon ratification by purchase by theboard *Page 349 hereinafter named as provided in this act." To me this clearly requires concurrent approval by the secretary of state and the board.
Again, in sec. 4, which sets forth many requirements for voting machines, the introductory paragraph is as follows: "Any type or make of voting-machine approved by the secretary ofstate must meet the following requirements," and the last paragraph is as follows: "Any machine that does not conform in all respects to the foregoing requirements shall not be approvedby the secretary of state." (italics ours)
To my mind the necessity of approval by the secretary of state of any type or make of machine to be purchased by the board under the act is by far the most prominent feature of the act and I can hardly imagine how its necessity could be made clearer.
As to the meaning of the word "make" in the expression "type or make" which is so frequently used in the act, I find that the first definition of that word in Webster's New International Dictionary is, "a The manner or style in which a thing is composed or constructed; constitution of parts; structure; form. b Nature; character; type; kind." It also may refer to the "quality or origin of a manufactured article." I believe that it is used in the act in question as practically synonymous with "type."
There was not introduced in the superior court any evidence of an approval by the secretary of state of the type or make of the machines purchased by the board, construing the word "make" as above stated, and I cannot find that there is any official record of such an approval of which this court should take judicial notice and which would prove conclusively that there has been such an approval.
To sum up my conclusions on this phase of the case, I find that under the act as properly construed, the board could not validly contract to purchase voting machines of any type or make not approved by the secretary of state; that it is averred in the bill of complaint that the machines *Page 350 which the board voted to purchase are not of a type or make that has been so approved by the secretary of state in accordance with the act; that there was no evidence before the superior court, and there is none before us, to disprove the truth of that averment; and that therefore it must be assumed to be true for the purposes of our decision. From these findings it follows, in my judgment, that the decree appealed from, denying and dismissing the bill of complaint should not be sustained on the ground adopted in the opinion of the court, viz., that there is clearly no merit in the complainant's suit, even if it be assumed that he is a proper party to bring it.
But the justice of the superior court who entered the decree rested his decision on another ground, which was the one urged by the attorney general in support of his motion that the bill be dismissed, and which deserves consideration. This ground is, in substance, that the complainant, in bringing and prosecuting this suit, was not really acting at all in protecting his own interest as a taxpayer to the state, whose taxes might, or even would be increased, but was acting solely as the attorney and in the interest of a corporation which was an unsuccessful bidder for the contract to sell voting machines to the state, and which had no right to prosecute such a suit in its own behalf.
From the testimony given by the complainant himself, especially when considered in the light of the fact that he did not show or even allege that he was a taxpayer to the state or show that the carrying out of the contract attacked would or might be substantially detrimental to him, I believe that the conclusions of fact upon which the decision of the superior court was based were fully justified.
I have made no exhaustive study of the question whether these conclusions justify the dismissal of the bill, and there are authorities on both sides of it, but my opinion now is that upon sound principle and by the weight of authority the question should be answered in the affirmative. The authorities which have had the most weight with me are *Page 351 Vadakin v. Crilly, 7 Ohio Cir. Ct., N.S. 341, affirmed on memo. 73 Ohio St. 380; Stubbs v. City of Aurora, 160 Ill. App. 351, 362; Bednarski v. City of West Hammond, 170 Ill. App. 543, 564; 2 High on Injunctions, (4th ed.) § 1302.
On this ground I concur in the final result reached in the opinion of the court.