delivered the opinion of the Court:
Defendant’s appointment to the office is admitted by appellee’s counsel. The filing of his oath of office is averred in the plea, and not traversed by the replication. It therefore stands confessed by the pleading, so that all there is remaining to give to defendant complete title to the office of city treasurer, is the approval by the city council of his official bond.
There were eight members in the body of the city council; a quorum consisted of five members; the mayor had a casting vote in case of a tie. On the 21st and 29th of May, the council being duly convened, and all its members present, a motion was made to approve defendant’s bond, and one-half of the aldermen (four) and the mayor voted to approve the bond, and the other half refused to vote. This action of the city council, it is claimed by appellant, was a valid approval of the bond.- On the other-hand, it is contended that a majority of the aldermen present (five) should have voted in its favor, to make a valid approval of the bond. In respect of the election of corporate officers, the well settled rule is, as stated in Wilcox on Corporations, sec. 546: “After an election has been properly proposed, whoever has a majority of those who vote, the assembly being sufficient, is elected, although a majority of the entire assembly altogether abstain from voting, because their presence suffices to constitute the elective body; and if they neglect to vote, it is their own fault, and shall not invalidate the act of the others, but be construed an assent to the determination of the majority of those who do vote; and such an election is valid though the majority of those whose presence is necessary to the assembly protest against any election at that time, or even the election of the individual who has the majority of votes.” And see Angell & Ames on Corporations, secs. 126, 127; Rex v. Foxcraft, 2 Burr. 1017; Commonwealth v. Read, 2 Ashm. 261; State v. Green, 37 Ohio St. 227. This doctrine is admitted by appellee’s counsel, with respect to elections; but they • claim that it is limited to cases of elections, and does not extend to the transaction of other corporate business,—that in the latter case a majority of those present must vote for a proposition, to carry it. There is authority for this distinction. Gosling v. Veley, 4 H. L. Cases, 679.
It is further insisted that as the city charter directs the city council “to determine the rule of its proceedings in conformity with the usual practice of deliberative bodies, ” the parliamentary rule which is adopted by such bodies should obtain, and that that rule requires the vote of a quorum to transact business, and that where the roll is called, and the yeas and nays are taken, and it appears from the response to the call that no quorum is voting, business must be suspended till a quorum answers. We do not find it necessary here to pass upon these positions of appellee’s counsel, for, conceding their correctness, we think the admitted rule which applies in cases of elections should be taken to govern in this case of approval of the bond, as being a thing pertaining to the matter of the officer’s appointment. The appointment and approval of the bond are both necessary to the investiture of the office. Both are to be by the same body, and we think they may be looked upon as an entirety in investing any one with the office,—that the approval of the bond is a step in the completely filling of the office of city treasurer by the city council, and thus is not other business, but the same business with that of the officer’s appointment. What the propriety of separating the proceeding, and requiring another mode of expressing the will of the council in the approving of the bond than in the choosing of the officer? We see not why, properly enough, the same rule may not be held to cover the whole proceeding of the making of the officer, and that the same vote in respect of number of members voting, which admittedly suffices in the case of the election of the officer by the city council, should be deemed sufficient for the approval of the officer’s bond. This should be so, unless the authorities forbid. Where the members of the council are equally divided, four voting one way and four the other, there is a ■tie, and the mayor may vote with either side, and make a majority. What reason is there why, when all the eight members are present, and four vote and four refuse to vote, the mayor should not vote with one side or the other, and make a majority? Why may it not be considered as equivalent to a tie, counting the members who do not vote as voting the contrary way from the mayor ? This would be fulfilling the purposes of the law in giving the mayor a casting vote in case of a tie. It would enable the making of a majority, and prevent the obstruction of business by .refusing to act, ■and would be giving effect to the will of the majority, which is the governing rule in the action of corporations. (Angell & Ames on Corporations, sec. 499.) What the. propriety of ■giving to a refusal to vote more potency than to a vote cast ?— of allowing a gain from violation of duty, in making the refusing to vote of more effect in governing the action of the body of which one is a member, than voting ? The charter provision, •that where the officer appointed fails to qualify within ten days after receiving notice of his appointment, the office shall be filled by a new appointment, did not render the appointment void on failing to qualify within the time; but such failure was but a cause of forfeiture of the office, which the city council might waive, and they did here waive it, in proceeding afterward in the approval of the bond. Chicago v. Gage, 95 Ill. 621; Cawley v. People, id. 249.
It is said that all controverted questions of fact were finally settled by the judgment of the Appellate Court, and therefore the judgment of that court must be conclusive. It is true that under the Practice act the reexamination of cases brought to this court is to be in respect of questions of law only, and that no assignment of error is to be considered which calls in question the determination of the court below upon controverted questions of fact in any case except as there provided. But in the present case there is no controverted question of fact. Appellee’s counsel say, in their brief, “there is no controversy as to the facts, and that the only question in either the trial court or the Appellate Court was as to their legal effect.” The question is, whether the uncoütroverted facts sustain the defendant’s plea of justification, which is a ques-. tion of law only, and we answer it in the affirmative.
The judgment of the Appellate Court must be reversed and the cause remanded.
Judgment reversed.