The opinion
DISSENTING OPINION.
TurNey, C. J.,
The charter of Knoxville provides : “ The Board of Education shall be elected by the Board of Mayor and Aldermen, from the citizens and qualified voters of the town, by ballot; and the. term of office of each member shall be five years.”
On January 27, 1888, the Board of Mayor and Aldermen met.
A motion “'to go into an election for a member of the City School Board to fill out the unexpired term of TIon. M. J. Condon, resigned,” was carried. There were present the Mayor and *70 eight Aldermen, who constituted, at that time, the entire Board. The ballot was taken, when it was found that J. C. Lawrence had received four votes, J. L. Fisher three votes, and a blank was found without any name on it, which was thrown out.
The Mayor declared Lawrence elected. Motion to reconsider was lost.
Lawrence was notified of his election, and on January 31 took the oath óf office before the Recorder, having received from the Board a certificate of election.
The members of the Board of Education refused to permit Lawrence to sit and serve with them.
Whereupon he filed his bill, alleging his title to the office, asking that it be declared by decree, praying that defendants be required to give him notice of the meetings, and permit him to be present; that they be enjoined from meeting or transacting any business of the Board of Education without giving him notice and permitting him to be present and participate.
There was demurrer, which fully presents every question of jurisdiction in the Chancery Court, which was overruled — properly, as we hold.
There can be, in our opinion, no valid reason why a Chancery Court may not exercise its in-junctive powers to restrain an unlawful act, or, as here, what seemed to be a lawful act performed in an unlawful manner. The bill did not seek, nor the fiat restrain, the meetings of *71 the Board and tlie transaction, of its business. The restraint went only to the extent of inhibiting such action by four members of the Boai’d without notice, and permission to complainant to ■be present and take part, his bill making a prima facie case of a right and duty on his part to do so.
It is difficult to sec why a Court having the power to prohibit action may and does not have the power, derived in the same way, to command action; the reason for the one applies with like force to the other. If the Court may restrain a wrong, it may command a right. Then, if complainant was a duly elected member of the Board, he was entitled to his voice therein, and the Chancery Court had the jurisdiction to enforce his claim.
So far the Court is a unit.
The question of his election arises. Under the facts stated, a majority is of opinion there was no such election as the charter contemplates, and, in support, rely, in part, on Section 220, second volume of Dillon on Municipal Corporations, which is: “In the absence of special provision, the 'major part of those present at a meeting . of a select body must concur in order to do any valid act.” This is construed to mean that the candidate must have a majority of the votes of all present entitled to a vote, and that, while the seven voting constituted a quorum for the transaction of any business of the Board, there was not the majority of all present, and, therefore, no *72 election, and complainant entitled to no relief under his bill.
I do not assent to this conclusion, and am of opinion that, even under the rule laid down by Mr. Dillon, there was an election. There was no dissent to the motion for an election; therefore, to hold it, as was done, was a “ valid act,” to which there was a concurrence, not only of the “major part,” but of all present. If it Avas nec-essaiy that all the Aldermen present should vote, then I am of opinion such necessity was con formed to, and that eight votes were cast, although one of the ballots was a blank. If the blank can be regarded at all, it must be as an expression of indifference by the Alderman Avho cast it as between the two nominated candidates, and, therefore, as an expression of consent that he who should receive a majority of those actually voting should be the elected member of the Board of Education, and (if the blank Avas considered at all) such was the interpretation of the Mayor when he declared Lawrence elected. Such Avas the interpretation of, the Board in refusing to reconsider; and, also, in the unchallenged certificate of election, furnished by the Recorder, “by order of the Board,” with objection from no one.
To my mind it is clear that no account should be taken of the blank ballot, nor of the nominal presence of the Alderman who east it. lie might have retired from the room, in which event I understand it to be agreed that a majority of the *73 seven voting would have made an election; his absence would, of itself, make the “action” of the “major part present” “valid.” The question then is, Was it necessary that his absence should have carried him out of sight or hearing? I think not. When he determined (after voting that an election be held) that he would take no part in the ■election, he in legal contemplation absented himself from the Board, and did not change that contemplation by dropping a blank in the ballot-box any more than would the failure of a qualified voter present at the poles of a town or city election, to cast a vote; nor any more than the casting a blank by such voter would change the result. Both would be failures to vote; both would be absences from the election as a voter.
No weight should be attached to the fact that he voted for an election to be held at that meeting. That would not make him present for the election any more strongly than it would make him present for an election on the next or any subsequent day. Nothing can constitute a presence but participation. If there was participation, it was by acts signifying a full acquiescence in the action of the majority voting.
Judge Cooley, in his work on Constitutional Limitations, 3d Ed., Section 14, states the rule more strongly against the defendants than I have done. He says: “In most of the States a plurality of the votes cast determines the election; in others, as to some elections, a majority. But in determining upon *74 a majority or plurality, the blank votes, if any, are not to be counted, and a candidate may therefore be chosen without receiving a plurality or majority of voices of those who actually 'participated in the election(Italics mine.)
Under this rule the blank is not to be counted. The presence of him who cast it was not necessary to a quorum to make an election. If he had been in fact absent, it is admitted the election would have been lawful, and free from objection. If Judge Cooley is right, it follows that, although we may hold that the casting a blank ballot was a participation in the election, still complainant, having a majority of such number as was authorized to elect, was elected, notwithstanding the presence and participation of him who cast the blank, which is not to be counted. If there had been five present at the election, with three voting for one man and two for another, or two ■ voting blanks, or not voting at all, the election would have been complete. Here were seven actually voting, and one not, and we are asked to count the blank against the complainant. We may as well, by the same process of reasoning, count it for him. The juster rule is not to count it at all. It seems to me the rule cited from Judge Cooley is the oue this State should adopt in the first case of the kind arising in our Courts. The blank was nothing, should be counted for nothing; without it or its author there was a complete quorum, and their action should be affirmed. If a quorum *75 may bold an' election, a majority of that quorum may make an election.
Under the rule laid down by the majority, it is put in the power of one man to defeat an election when he sees that his vote for his favorite will make a tie, as then the Mayor cannot cast his vote. So if he, the voter, desires a defeat, he can accomplish it by a blank.