delivered the opinion op the court, in which
Jcdse PETERS did not concur:On the 7th day of May, 1867, an ordinance was unanimously passed by the board of councilmen of the city of Lexington, the mayor presiding, providing for the grading and macadamizing of certain streets in said city, at the cost of the owners of property fronting thereon; and the mayor having, by authority of the ordinance, caused a large portion of said improvements to be made, the appellees, the owners of property on said streets, brought *510this suit in equity against the city, seeking a judgment prohibiting it from subjecting their property to the payment of the cost of the improvements.
On a hearing of the cause, the court adjudged to the plaintiffs the prohibitory relief sought by them, and the city has appealed from that judgment to this court.
The decision of the circuit court appears to have been based on the assumption that said ordinance was invalid for want of sufficient evidence that it was passed with the “ unanimous consent ” of the mayor and councilmen in council, which was required by the 10th section of the charter of the city. And it is now insisted for the appellees, in support of the judgment, that although the ordinance purports to have been passed “by the mayor and board of councilmen,” and the record containing it to have been signed by the mayor, yet as it does not appear from the record, by express recital, or the vote of that officer, that he did, at the time, consent to the ordinance, it was invalid for want of conformity to said requirement of the 10th section of the charter of the city.
A majority of this court, Judge Peters dissenting, is of a different opinion. If it be conceded, as contended for the appellees, that the circuit court properly disregarded the extrinsic parol evidence of the fact that said measure, at the time, and before, and after the passage of the ordinance, was approved by the mayor, still, as the charier required the consent of the mayor as requisite to the passage of the ordinance, and it purports to have been passed by the mayor and councilmen, it should be presumed to have been so passed in the mode prescribed by the charter; and especially so, as there is nothing in the record counteracting this presumption. This principle of construction is expressly recognized *511in the case of the City of Covington vs. Ludlow, 1 Metcalfe, 295. And although it was held in that case, and, as we think, in accordance with principle and authority, that, in the absence of any record evidence of the passage of an ordinance it was not competent to establish its enactment by extrinsic testimony, the doctrine is therein conceded, that where unanimity is indispensable to the legal authority to make an order on the books of a corporation, and such order was entered of record, it should be presumed to have been made with the unanimity required, although that fact does not appear in the record.
In this case, the failure of the mayor to record his vote in favor of the passage of the ordinance, raises no presumption against its validity; for, according to section 60 of the charter, he was not entitled to a vote on a proposition which received the unanimous vote of the council. And. as the charter did not require that the assent of the mayor or council should appear by a vote by ayes and noes, this opinion does not conflict with other decisions of this com-t in relation to charters so requiring the vote to appear.
It seems to the majority of this court, Judge Peters dissenting, that the circuit court erred in granting to the plaintiffs any relief on their petition.
Wherefore, the judgment is reversed, and the cause remanded, with directions to dismiss the petition at the costs of the plaintiffs.