Opinion op the coukt by
JUDGE BURNAMAppieming.
The appellant, Charles W. Keith, instituted this proceeding under section 3063, Kentucky Statutes, which is a section of the charter of cities of the second class, to test the validity of a city ordinance granting to the Cov-ington Gas Light Company, its successors and assigns, the exclusive franchise for a term of twenty years from the date thereof to enter into and upon the streets and other public places of the city of Covington, to lay and maintain *783gas pipes, and to furnish the city and its inhabitants with gas. The basis of his complaint that the ordinance is illegal is that on the first Monday of January, 1900, the board of councilmen elected M. H. McLean, one of its members, as its regular president, who continued and remained in said office of president, and was such president on the 24th day of December, 1900; that at a meeting of the board of councilmen on that date they elected E. P. Sayer, one of its members, president pro tempore; and that the ordinance in question was passed while Sayer was so acting, the regular president being president at the meeting, but having voluntarily vacated his chair as president, put on his hat, and announced that he would not put that motion, or any motion. It is insisted that for this reason the ordinance is illegal, null and void. A cer tified copy of the record of the proceedings of, the council, filed in this suit, shows that at the meeting of the board of councilmen held December 4, 1900, the ordinance was given its first reading; and that at a subsequent meeting held December 24, 1900, all of the members of the council were present, and the regular president in the chair, when a motion was made in writing, 'signed by two-thirds of the whole board, extending the session until 11:45 o’clock p. m. of that day, ■the president refused to entertain this motion, ruled it out of order, and vacated his seat. Thereupon a motion was regularly made by one of the members of the council, and seconded by another, to elect E. P. Sayer, a member of the council, president pro tempore. This motion was adopted by the vote of threé-fourths of the whole body; three members, including Mr. McLean, who was present, refusing to vote; and the ordinance was passed, eight members of the board of councilmen voting for its passage, and one against it. At a subsequent meeting, held *784December 26, 1900, the minutes of all the proceedings and actions of said board on the 24th of December, 1900, were approved.
Section 3043 of the Kentucky Statutes provides that the board of councilmen of cities of the second class shall be composed of two members from every ward of the city, and that each board shall elect from its own members a president thereof, who shall hold the office one year; that, in his absence, a president pro tempore shall be chosen from among its own members; that each board shall adopt rules for its proceedings; and that a majority of the members of the board elected shall form a quorum. It appears that the board of councilmen of the city of Covington consists of twelve members. Section 3059 of the Kentucky Statutes provides, viz.: “No ordinance and no resolution shall be passed unless a majority of the members-elect in each board shall vote therefor on vi-m voce vote, which shall be entered in full on the journals of the two boards, and until it shall be read in each board at two several meetings, and free discussion allowed thereon; so much of this provision as requires a reading at two several meetings may be Suspended with by a vote of two-thirds of the members-elect of the board in which the proposed ordinance is pending.” It is not contended that this ordinance did not secure the necessary vote, or that it was not passed by the board of aldermen. The sole ground of objection is that Bayer had no right to preside at the meeting on December 24th, while McLean was present.' It seems to us that this contention is wholly untenable. When McLean, the regular president, vacated the chair, and refused to preside over the meeting, put the necessary motions and to discharge the duties imposed upon him by his position, he was absent, within the meaning of *785the statute, though not absent in fact. We have not been cited to any authorities directly in point. In the case of Byrne v. Arnold, 24 New Br., 161, the Canada statute provided that, where a prosecution for a certain offense is brought before two- justices, no other justices shall sit unless one or both of the original justices is absent. The court said: “I think the word ‘absence’ in this section does not necessarily menu actual absence from the place or room where the trial is: held, but would apply to a case where the justices had for some cause become unable to sit or take part in the proceedings.” In the case of Heyker v. McLaughlin (Ky.), 50 S. W., 859, the board of education of the city of Covington had passed a by-law which required the vote of two-thirds of the members thereof to elect a clerk. The board consisted of twelve members. At a regular meeting of the board Heyker received the vote of seven members of the board and McLaughlin the vote of the other five members, but the president of the board refused to declare Heyker elected to the office, and McLaughlin, the incumbent, refused to surrender the office. Upon an appeal to this court in suit to secure the office it was held that, as Heyker received a majority of the votes at the regular meeting called for the election of a. clerk, he was entitled to the office and salary attached thereto, notwithstanding the failure of the president of the board to declare the result. The essential point in the passage of an ordinance by the board of councilmen is that it should be fairly submitted to the members of the council, and shall receive the number of votes required by law to pass it. As the records of the proceedings of the board of councilmen clearly show that turee-fourths of the members voted that Bayer should act as president *786pro tempore, after the regular president had vacated his seat and refused to perform the duties of his office, and that two-thirds of the entire body of councilmen voted for the passage of the ordinance, and that at an adjourned meeting held in the council chamber on Wednesday evening, December 26, 1900, at 7:30 o’clock p. m., the minutes of the last meeting were read, and approved without objection, we are of the opinion that all of the steps required by law to give validity to the ordinance in question have been complied with, and that the ordinance and contract made pursuant thereto are binding both upon the gas company and the city. Judgment affirmed.