Mr. Cooley treats alone the subject of popular elections, the scope of his work not including elections by governing bodies of corporations.

This is not only the rule at common law, but it is so by statute in this state; and hence, in our elections by the people, the candidate who gets the highest number of votes is elected. And this rule is applied to corporate action, where the corporate power resides in the inhabitants or citizens at large, and where they meet and act in their primary capacity, and hence in indefinite numbers: Dillon on Municipal Corporations, secs. 208-215.

But the rule is equally well settled, and indeed is not open to controversy, that where an election is to be made by a definite body of electors, as a number of aldermen, that, "in the absence of special provision, the major part of those present at a meeting of this select body must concur, in order to do any valid act": Dillon on Municipal Corporations, secs. 216, 220. "Where, therefore," adds the author, "it appeared that thirteen ballots were cast when the members present were only entitled to give twelve votes, of which seven were for one person and six for another, there is no election, and the council, though it has declared that the person receiving seven votes was duly elected, may rescind its action, and proceed to a new election": Dillon on Municipal Corporations, secs. 216, 220.

And this common-law rule as to majorities he declares is applied to governing bodies of municipal corporations, where not specially regulated by charter or statutes: Dillon on Municipal Corporations, secs. 216, 217.

We have seen that it is not only differently regulated by the charter of Knoxville, or other statute of Tennessee, but that the charter provides for the transaction of business only by a majority of a quorum, and gives the mayor a right to vote when the majority thereof cannot decide, thereby conclusively showing that a majority must concur, or there is no result. A different rule, as we have seen, and we repeat, prevails at common law, where the election is by an indefinite number of electors, in which a plurality of votes is sufficient for an election.

These rules and their distinctions are very forcibly and clearly stated in the able treatise on elections in the sixth volume of American and English Encyclopædia of Law, as follows: "The only way to defeat the election of a candidate at an election where the number of the electors is indefinite, or where the law does not require a majority of all the members

of a body having a definite number (as opposed to a majority of those voting), is by voting for another canidated; and the fact that a majority enters a protest against the minority candidate voted for at a regularly called election will not defeat the election, if no other candidate is voted for. This rule does not apply to cases where the elective body consists of a definite number, and a majority of the members is requ red for an election. In such case, a refusal to vote, or a blank vote by a majority, will defeat an election ": Pages 322, 331.

We have heretofore seen that under this charter a majority of the quorum is required. This author shows further that the rule respecting the election by a definite number in a municipal body extends also to other bodies of definite numbers, as legislatures, etc., and shows that in such case a majority must concur, and vote for the candidate, in order to elect him; quoting several cases and instances of high authority. He says, illustrating: "By section 15 of the Revised Statutes of the United States, it is provided that all votes for senators shall be by viva voce vote of members of the legislature, and by section 37, that all votes for representatives in Congress must be written or printed ballots, and that all votes received or recorded contrary to such action shall be of no effect. It has been held that where there is no provision of law making a plurality sufficient for an election, that a majority of the votes cast must be for a candidate, in order to elect him ": 6 Am. & Eng. Ency. of Law, 332, citing State v. Fagan, 32 Cong. El. Cas. 45.

He cites several cases sustaining the text, the notes being as follows: "In the absence of any act of Congress on the subject, a state may pass a law, or a joint or concurrent resolution of the legislature requiring a majority of all the members elected to both branches of the legislature to elect a senator of the United States; and in such a case, where twenty-nine votes were given for one candidate, and twenty-nine blank votes were given, it was held that this did not constitute an election: 2 Cong. El. Cas. 608; Yules v. Mallory, Sen. El. Cas. 146." And again: "In 1866, in the Stockton case, in New Jersey (Senate Election Cases, 264), it appeared that there was no law in the state regulating the election of senators; and there had been a practice of regulating the election of all officers by resolution of the convention, and at the convention for the election of senators, in 1865, a resolution was adopted that a plurality of the members present might elect.

The judiciary committee, reporting through Senator Trumbull, decided in favor of the validity of the election, but the resolu tion was amended by the close vote of twenty-two to twentyone, and the candidate was declared not elected. It was claimed by some of the senators that the parliamentary law required a majority to elect, and this could only be changed. by a law or a resolution of the house acting in their legislative capacity ": 6 Am. & Eng. Ency. of Law, 332.

Thus it appears, by concurrence of text-book, judicial, senatorial, congressional, and legislative authority, that the rule is settled that a majority of a definite body present and acting must vote for a candidate, in order to elect him, and that it is not sufficient that he receive a plurality of votes cast, or a majority, if blank ballots are excluded. His claim must not depend upon the negative character of the opposition, but upon the affirmative strength of his own vote. It is not sufficient that a majority were not cast against him; to be elected, the majority must be cast for him.

"So if a board of village trustees consists of five members, and all, or four, are present, two can do no valid act, even though the others are disqualified, by interest, from voting, and therefore omit or decline to vote. Their assenting to the measure voted for by the two will not make it valid. If three only were present, they would constitute a quorum. Then the votes of two, being a majority of the quorum, would be valid; certainly so, where the three are all competent to act": Dillon on Municipal Corporations, sec. 217.

These authorities answer the proposition urged by complainant, that the blank vote must not be considered, and it must be treated as though only seven votes were cast, and he got four. It is true that the blank vote cannot be, in the technical sense, a ballot; but it is nevertheless an act of negation, affirmative in showing that another voter acted, and negative in determining the majority. It was one of eight attempted to be cast with a purpose of not supporting complainant, and is only to be counted as showing that he did not get a majority; just as would have resulted had it been an illegal vote, as being for two candidates, or otherwise.

But complainant's case would be no better if that vote was entirely disregarded, because the record otherwise shows that eight aldermen were present, and without reference to their vote, he must have received five votes, in order to be elected.

The roll-call shows eight present. On the vote to reconsider, eight voted. Indeed, it is not anywhere contended by complainant that they were not all present and participating, and, as shown, the contrary affirmatively appears.

But it is said that the mayor declared the election carried, and that this is equivalent to a vote for him, and with four votes for him and four not for him, the mayor's vote or action makes the election.

There are several answers to this, all conclusive: 1. The mayor had no right to vote, as there was no tie; and 2. He did not vote; 3. His action declaring the result, without voting, could not make an election, because the law does not allow him to declare a candidate elected, even on a tie, without voting, or at all.

He can only, in such case, vote and make an election; and when he does this, it makes it, even though he should then declare the candidate not elected.

A still further argument is made, however, that the board appears to have ratified it, and this should be treated as giving it validity.

The answers to this are, if possible, even more conclusive. They are: 1. That the board has no power to elect except by ballot. There was never but one ballot cast, and if that did not make it, no election could otherwise be made. 2. The board did not ratify it. On the contrary, four members voted to reconsider, and therefore against ratification, and four for it. This, at best, while unimportant, was not an affirmative; it was, at most, but a tie, which the mayor might, by his vote, have decided. He did not choose to vote, but, instead, declared the matter lost. In both instances, the mayor refused or failed to vote, and contented himself with declaring that the results stood accomplished without his vote. We are not presenting the parliamentary question, or attempting to show that four against four would rescind any legal action. We are only showing that no majority ever, in any way, voted to ratify the election. The argument need not be repeated here, that this meant nothing and accomplished nothing. The law is, that they could not make an election by ratification, and the fact is, they did not.

In addition to the effort to reconsider, it is said, as evidence of ratification, that on the notification, called "certificate," of the recorder, in which he advises complainant of his election, he appends to that statement the words "by order of the

Having

board," and that this is evidence of ratification. shown that ratification could not make, or make valid, an election, it is, perhaps, superfluous to deal with the evidences of it; but having denied the fact, it is proper not to overlook this point as bearing on the question of fact as to whether or not any act of the board was an attempted ratification.

We have seen that the recorder has nothing to do with the election, either to make or declare or certify it, under the charter. This whole paper, including indorsement, therefore goes for nothing. His statement, in a paper, that he was not required to make, that it was done by order of the board, would not prove that fact, of course, and no other evidence of it is offered. He may, and doubtless did, think himself authorized to make it, and may have been ordered to do so; but no such order is produced, and nothing else proves it.

The construction herein given to the charter regulating municipal elections and the action of municipal boards is not only sound in law, but in policy. It would be of the most injurious consequence to hold that municipal bodies could make elections, or appropriate money, legislate rights away, or pass measures affecting vast property interests, by less than an affirmative vote of an acting majority. It is going sufficiently far to allow them to act by majority of a quorum present; but if, by legislative act or judicial construction, they should be authorized to act by a minority of a quorum, there would be no safeguards effectual to protect the public within the scope of their authority. It is equally salutary to provide, by following well-founded principles and precedents, that what they will not, or do not in fact, do by vote they shall not have power to accomplish by declaring it done without vote.

Reverse the decree, and dismiss the bill, with costs.

TURNEY, C. J., while agreeing with the other members of the court that if the complainant was a duly elected member of the board of education, he was entitled to his voice therein, and the chancery court had the jurisdiction to enforce his claim, did not assent to their conclusion that there was no such election by the mayor and board of aldermen as the charter contemplated. The following is a synopsis of his dissenting opinion on this point: Even under the rule laid down by Mr. Dillon, there was an election. As there was no dissent to the motion for an election, to hold it, as was done, was a valid act, in which all present concurred. If it was necessary for all the aldermen present to vote, this necessity was conformed to; for eight votes were cast, although one of the ballots was a blank. The blank, if regarded at all, was an expression of indifference by the alderman who cast it, as between