delivered the following as his-dissenting opinion:
Not being able to concur with a majority of the court in this case, I feel constrained to submit my views by way of a dissenting opinion.
*512The tenth section of the act incorporating the city of Lexington contains the following provision: “ That the mayor and councilmen, by their unanimous consent in council, may cause any street or alley, in any square in said city, to be paved or turnpiked, at the cost and expense of the owners of lots or parts of lots fronting such street or alley, without any petition or consent; and when the paving or turnpiking shall be completed, they shall apportion the cost and expenses equally on the lot-holders, and a lien is hereby given,” &c.
Certain streets having been graded and macadamized fronting which appellees owned lots, and the city authorities being about to coerce payment from said lot-owners for said improvements, they filed their petition in the court below to enjoin the city from so proceeding; and, on final hearing, that court having granted the relief sought, the city has appealed, and insists that said improvements were made under and by virtue of an ordinance, passed by the mayor and councilmen, in conformity in all respects to that part of section 10 of its charter herein quoted.
The city, however, does not contend that the journal or proceedings of the board of mayor and councilmen show that said ordinance was passed by the unanimous vote of said mayor and councilmen; but it is contended that their unanimous consent for the passage of said ordinance was given, and that extrinsic evidence is competent and admissible to prove such unanimous' consent.
Section 8 of the act of incorporation provides that the mayor and councilmen shall, when qualified, form a board. At all the meetings the mayor, if present, shall preside; and said board shall choose a clerk, *513whose duty it shall be to keep a journal of the proceedings of said board, &c.
On the 7th of May, 1867, said board met; and after ordering certain streets enumerated, to be graded, &c., concludes the ordinance as follows:
“This ordinance to take effect from its passage.
“ On motion, the second and third readings of the above ordinance were dispensed with, and the ordinance passed by the following vote,-viz : Yeas — Messrs. Beard, Graves, Laudaman, Selly, Mooney, Morgan, Mulligan, Price, Robinson, Thompson, Woodruff, and Young; nays,-.
“And then the council adjourned.
“ J. T. Frazier, Mayor."
It was not necessary that the councilmen and mayor should have manifested their consent by a vote; but in order to the validity of the ordinance to charge the lot-owners, they must have expressed their unanimous consent, and that must have been done in council. The precise mode of doing it, is not pointed out in the charter.
It would have been sufficient, perhaps, if the journal had merely stated that the ordinance was passed by the unanimous consent of the mayor and councilmen. But the record of the proceedings quoted shows the individuals by whose consent the ordinance was passed, and excludes the conclusion that the mayor ever did consent to it. Consequently, if evidence aliunde is introduced to prove that he did consent to its passage, that evidence necessarily contradicts the recorded proceedings of the board.
If that can be done, then, as was said by this court in The City of Covington vs. Ludlow, 1 Met., 295, “ The recorded action of the board would be wholly unreliable *514and uncertain, and would fail to afford any evidence that could be depended upon, of the actual proceedings of the city council at any of their meetings.”
But if parol evidence were admissible to prove that the mayor consented to the passage of the ordinance, that offered in this case is insufficient. It does not show that his consent was officially given, or that he gave it “in council,” as is required by the charter. The utmost that the evidence does show is, that he expressed himself in favor of the ordinance in conversations on the subject “ before and after, and on the night of the passage of the ordinance.” This is the evidence of the mayor himself; but he does not prove that he did, while the board was in session, vote for, or otherwise give his consent to, its passage.
I conclude, therefore, that the ordinance was not passed in the manner prescribed by the charter, and the judgment should be affirmed.