kets; section one hundred and seventy-one, to water works; and sections one hundred and seventy-two and one hundred and seventy-three, to gas works.

In the enumeration of the several powers conferred on the board of aldermen, found in the twenty-third section of the charter, under sub-division seventeen, it will be seen that they have the general power to "erect, establish and regulate public markets."

In the one hundred and sixty-seventh section it is enacted that the mayor and aldermen of the city of Paterson are authorized to purchase a suitable site or sites, and erect thereon one or more public markets. This legislative power and discretion are to be exercised through the board of aldermen, as we have already seen in the twenty-third section. They are to purchase a suitable site or sites, and erect thereon one or more public markets, and to employ suitable architects, engineers, and other persons necessary to accomplish these purposes.

They are herein required to use judgment and discretion in determining the suitableness of the site, and also of the architect, engineer, and other persons employed to accomplish the purpose. This they must use, and cannot delegate to others without express legislative authority. Lyon v. Jerome, 26 Wend, 485; New York v. City of New York, 3 Duer, 119, 131.

How far is this authority given in the one hundred and seventyfifth section?

The mayor and the aldermen are therein authorized and directed, whenever they shall decide to carry out and effect these purposes and objects, or any of them, to appoint three discreet persons, who shall have power and authority, on behalf of and in the name of said mayor and aldermen, to make all contracts and purchases, and to transact all business necessary in relation thereto, &c., and their acts and contracts shall be binding on the corporation, as if made directly by the mayor and aldermen.

There is here, in my opinion, no necessary conflict of authority or of action. The board of aldermen must select a suitable site; they must select suitable architects and engineers. When the lot, and the plan and specifications are thus determined, then the board of aldermen are directed to appoint three commissioners, with certain qualifications, to contract and purchase, and to carry out the objects thus defined and settled. This construction, it appears to me, harmonizes the two sections. The commissioners become the ministerial officers and agents of the corporation to carry out its

resolves for a specified work. Upon report by them made, their contracts and purchases become binding on the city, and the board provides the funds for payment, according to the terms of the charter.

Having thus considered the one hundred and seventy-fifth section in its relation to the one hundred and sixty-seventh section and the general terms of the charter, it remains to consider the form of the resolution itself.

It is manifest that the mayor and aldermen of Paterson have not selected a suitable site or sites, and that they have not employed suitable architects, and prepared plans and specifications for the proposed market, but in this resolution they have delegated these important duties to the commissioners. This they cannot do, and the resolution is fatally defective in these particulars. They are appointed in general terms to proceed according to law, and purchase a site and build a public market thereon. The whole subject is therefore left to their discretion; after determining that they deem it right and expedient that the city should own a market, and appointing three commissioners to purchase land and build, the mayor and aldermen have supposed their duties were fulfilled, until it should become necessary to provide funds for the payment of the contracts and purchases of the commissioners. In this they have erred.

The power and discretion given to them to appoint these commissioners is in derogation of their general authority to control and manage the affairs of the city, and must be construed strictly. It must appear that in exercising this authority the board of aldermen have not gone beyond the power conferred. It is necessary that courts should watch with the most jealous care the appointment of any such commission, however good may be the character of the persons appointed, where the authority conferred is so great, and some of the ordinary securities are omitted. The charge will be laid heavily upon the property of the citizens for the payment of the proposed improvements, and it must appear that every requirement has been observed.

The resolution is not within the terms of the charter, in the particulars above stated, and is therefore null and void.

4. Majority Necessary for Valid Action.

RUSHVILLE GAS COMPANY V. CITY OF RUSHVILLE.

Supreme Court of Judicature of Indiana. November, 1889. 121 Indiana 206.

ELLIOTT, J. The mayor of the city of Rushville appointed a committee, composed of the members of the common council, to investigate and report upon the question of the expediency of buying an electric light plant and machinery. The committee, in due time, reported to the common council in favor of making the purchase. On the 3rd day of April, 1889, action was taken on the report at a regular meeting, at which all of the members of the common council were present, and the following resolution was introduced:

"Resolved, That the report of the special committee, relating to lighting the city, be adopted, and that the officers therein named be instructed to sign the contract named therein."

Three of the six members composing the common council voted in favor of the resolution, but the other three members, although present, declined to vote, and the mayor declared that it was adopted. By virtue of this resolution the city is about to enter into a contract with the companies named in the report for the purchase of an electric light plant and the power to run it, for which the city is to pay the sum of ten thousand one hundred and fifty dollars. Acting under the resolution, the Edison Manufacturing Company has put up poles, strung wires on them, and placed in operation a system of electric lights, and the city will buy the plant and machinery unless enjoined. The city has contracted with the Buckeye Engine Company for a steam engine and appliances to be used in operating the machinery of the Edison company plant, at a cost of two thousand two hundred dollars. Unless enjoined the city will issue bonds to pay for the plant, machinery, engine and appliances.

The meeting at which the resolution was adopted was a regular one, attended by all the members of the common council, and all who voted at all voted in favor of the resolution. The question, therefore, is: Does the fact that three of the members present declined to vote authorize the conclusion that the resolution was not legally adopted? In our judgment it does not.

The rule is that, if there is a quorum present and the majority of a quorum vote in favor of a measure, it will prevail, although an equal number should refrain from voting. It is not the majority of the whole number of members present that is required; all that is requisite is a majority of the number of members required to constitute a quorum. If there had been four members of the common council present, and three had voted for the resolution and one had voted against it, or had not voted at all, no one would hesitate to affirm that the resolution was duly passed, and it can make no difference whether four or six members are present, since it is always the vote of the majority of the quorum that is effective. The mere presence of the inactive members does not impair the right of the majority of the quorum to proceed with the business of the body. If members present desire to defeat a measure they must vote against it, for inaction will not accomplish their purpose. Their silence is acquiescence, rather than opposition. Their refusal to vote is, a declaration that they consent that the majority of the quorum may ast for the body of which they are members.

We cannot agree with appellant's counsel in the construction which they place upon the words of Judge Dillon found in section 279 of his work on Municipal Corporations, for, as we read what the author says, it is directly against the appellant. What is said by Judge Dillon is this: "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 could 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." In the first sentence Judge Dillon refers to cases where there is not a quorum present, because there is not the requisite number of qualified members in attendance. He is speaking of the effect of the presence of disqualified persons in that sentence, not of the effect of a vote of the majority of a quorum composed of qualified members of the body. In the last sentence he speaks of a case where there is a qualified quorum present, and he instances such a case as we have here, for here four would be a quorum, and, according to this rule, three of the four could adopt a nieasure if there were no opposing votes. The case referred to by the author in support of the proposition embodied in the first sentence quoted is that of Coles v. Trustees, 10 Wend.

659. In that case three of five town trustees were disqualified from voting, and there was, of course, no quorum of competent members, and consequently no capacity to act. The court said: "The act requires three out of five, or a majority, to make a quorum. If there were but three present, then the votes of two, being a majority, would be valid. Here were five trustees, three of whom were incompetent to vote by the act; and being so, it seems to me, so far as the vote was concerned, they were not trustees for any purpose." It is obvious, therefore, that no such case was before the court as that now before us, for here all the members were present, and the measure was adopted by a majority vote of the quorum.

It would not benefit the appellant if we should hold that the councilmen present and not voting did, in effect, oppose the resolution and certainly the utmost that can, with the faintest tinge of plausibility, be claimed, is that their votes must be counted against the resolution. It is inconceivable that their silence should be allotted greater force than their active opposition would have been entitled to have assigned it had it been manifested. If we should assume that their votes are to be counted against the resolution, then the mayor had the casting vote, and, by declaring the resolution adopted, he gave it in favor of the measure. This is so expressly decided in Mayor v. Orne, 79 Maine 78. But we think that the law is as stated by Willcock, and that the members present and not voting assented to the adoption of the resolution.

Judgment affirmed.

MCCORTLE V. BATES.

Supreme Court of Ohio. December, 1876.

29 Ohio St. 419.

Motion for leave to file a petition in error to the District Court for Noble county.

The original action was brought by the plaintiffs against Bethel Bates, Andrew J. Moore, Josephus Groves, E. H. Craft and I. Q. Morris, in the Court of Common Pleas of Noble county.

The following are the facts, so far as they are material to be noticed: