(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 *283states 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.