A. J. WALKER, C. J.
It is- certain that the taking “of-the sense of the holders of real estate”'in the city of Montgomery was an indispensable condition precedent to the power of taxation by the corporation of that- city, under the act approved 24th February, 1860. — Pamphlet-Acts of ’§9-60, page 1-93. The corporation had no authority to [166]*166tax, until it was sanctioned by the sense of the holders of real estate, taken “ as required by the law.” The want or absence of this preliminary step is a complete negation of the power to tax. The power was dependent, not upon the fact that the sense of the real-estate holders favored its exercise, however clearly that fact might be now proved, but upon the condition, that such “sense” had'been taken, and that the expression of. it was. -in favor of the power. It is, therefore, not necessary for those who assail the tax imposed, to show that-.tlie sen.se of the .real-estate holders was opposed to the tax. ' The want of. power to levy the tax is shown, whenever it appears that the condition precedent was not performed. ' The equity of the complainant’s bill is maintained, if it is averred and ■ proved, that the imposition of the tax was not preceded by, and based upon, the requisite preliminary step.
The bill .avers, that- a certain ordinance, consisting of three sections, was passed by the city council; that, in pursuanqe of that ordinance, an election was held; and that the city council,- acting on the presumption that the election was legal-and the'sense of, the holders of real estate in favor of. the tax, proceeded- to collect the tax. We thinkit thus appears with reasonable certainty, that the .election .in pursuance of the ordinance.• was the thing .done,,-upon which .the city council predicated its authority .-to levy the tax, and relied as a fulfillment ¡of the condition precedent. To intend against the pleader that something else .was done, which amounted to a taking of the sense of, the.real-estate holders, would be extending the intendments against -the pleader with unreasonable se-verity. If, then, the election, held in pursuance of the ordinance aboye named,, was not, within the meaning of the statute, a taking of the- sense of the •. real-estate holders in the city, the absence of the-.necessary condition precedent ■ to the exercise of- the power of ¡taxation is averred, and the .tax is illegal. 'Therefore, the .equity of the bill hinges upon.the- question, whether the sense..of the proper class of persons was taken by the election. The right to relief [167]*167upon the proof depends.upon the same question,; and the treatment of the question as it arises upon the proof will only be varied so far, as to bring, to. view some new facts, giving rise to additional questions -urged on the part of the defendant. A consideration of the case upon the proof will, therefore, comprehend all the points' to be decided. We will, therefore, proceed to inquire, whether the city council have taken .the sense of the real-estate holders, looking to the facts alleged in the bill, and the other material facts proved.
Authority is given by the first section of the act of 1S60 ¿0 the municipal authorities of the city of Montgomery, “in such manner as they may deem expedient, to take the sense of the.holders of real estate in said city, upon the proposi¿ion to raise by tax npon real estate, not to exceed two per cent .per annum, the-sum of ■ three hundred thousand dollars,” $c. The expression “holders of real estate” is descriptive of the persons whose sense was to be taken. It includes all persons who -were in fact holders of real estate. The sense of those persons could only be determined by an expression of their wishes per capita. It could not be determined by the result of an election-where each individual was allowed a yote for each hundred dollars in value of his real estate. . If it could, we might have the absurdity of an expression; of the sense, of a thousand holders of real .estate, by the votes of a hundred of themumber, who happened to own more land in. -value than all the rest. The .authority given: was to take the sense of the-individuals who belonged .to the particular class ot persons, on terms of equality, without any discrimination based upon the value of real .estate owned. An enlarged discretion as to tbe manner of taking “ the sense” is certainly given; and that may authorize ^regulation as to whether the vote should be viva voce or by ballot, and as to the places and time of voting, and, perhaps, as to whether an election should be held, or the votes privately gathered by an appointed agent. .There are, doubtless, other matters which fall within the - scope of the discretionary control over the manner of tak[168]*168ing “-the sense.” But that control extends to the manner» It cannot justify any discrimination among the persons belonging to the particular class. The sense of that class is to be 'taken, and the •discretion is confined to the manner in which that thing-is to be done».
By the third section of the ordinance of the city council already noticed, it was directed, that the vote should be taken pro rata, according to the assessed value of the real estate of the respective voters, (each having one vote for every hundred dollars in value of his real estate,), and that the tax should be levied if the decision by the election so held should be in- favor of it. The decision • at such an election, "by a majority of votes in favor of the tax, would only indicate that the-persons who owned a major portion in value of the real ■■ estate were in favor of the tax — not that the sense of a majority of the persons who composed the class described as holders of real estate was in favor of it. Understanding the import of the expression in reference to taking the.sense of the real-estate holders as has been-above stated, we .must decide, that-such -as election would not be a taking of the sense-'ofsuch persons. Therefore, the bill, in showing that the tax was levied in presumption of the legality of such an-electioiuheld in pursuance of the ordinance above stated, negatives-the authority to impose the tax. Such an electiony-tested by the law in reference to which-.it- was held, was-illegal, and was no ascertainment of the sense of the designated class, and no fulfillment of the condition precedent- prescribed by the statute.
The managers of the election registered the names of the different persons who voted at the election, and stated opposite to -each- name the number of votes cast, and the side upon which, they were cast. It is contended for the appellant, that an inspection-of the ■ returns by the manager's shows that.a majority - of the persons, counted per capita, who voted at the election, were -in favor of the tax. We are not sure that the position is correct; but, conceding it. to be so, it only establishes the fact, that a [169]*169majority- of the persons who voted were in favor of the tax. It falls far short of demonstrating that the sense of the holders of real estate in the city was taken, and that it was in favor of the tax.- An election was, as we concede, a legal mode of-taking the sense of the designated class of persons $-• and when a legal and properly appointed election.is held, the sense of a majority of those who vote must be deemed the sense of a majority of those entitled to vote. Those who do not vote' must be understood to consent to abide the decision of those who do. — Ang. & Ames on Corp. 114, § 127 ; Grant on Corp. 204; First Parish in Sudbury v. Starns, 21 Pick. 154; Wilcock on Corp. § 546 ;
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A. J. WALKER, C. J.
It is- certain that the taking “of-the sense of the holders of real estate”'in the city of Montgomery was an indispensable condition precedent to the power of taxation by the corporation of that- city, under the act approved 24th February, 1860. — Pamphlet-Acts of ’§9-60, page 1-93. The corporation had no authority to [166]*166tax, until it was sanctioned by the sense of the holders of real estate, taken “ as required by the law.” The want or absence of this preliminary step is a complete negation of the power to tax. The power was dependent, not upon the fact that the sense of the real-estate holders favored its exercise, however clearly that fact might be now proved, but upon the condition, that such “sense” had'been taken, and that the expression of. it was. -in favor of the power. It is, therefore, not necessary for those who assail the tax imposed, to show that-.tlie sen.se of the .real-estate holders was opposed to the tax. ' The want of. power to levy the tax is shown, whenever it appears that the condition precedent was not performed. ' The equity of the complainant’s bill is maintained, if it is averred and ■ proved, that the imposition of the tax was not preceded by, and based upon, the requisite preliminary step.
The bill .avers, that- a certain ordinance, consisting of three sections, was passed by the city council; that, in pursuanqe of that ordinance, an election was held; and that the city council,- acting on the presumption that the election was legal-and the'sense of, the holders of real estate in favor of. the tax, proceeded- to collect the tax. We thinkit thus appears with reasonable certainty, that the .election .in pursuance of the ordinance.• was the thing .done,,-upon which .the city council predicated its authority .-to levy the tax, and relied as a fulfillment ¡of the condition precedent. To intend against the pleader that something else .was done, which amounted to a taking of the sense of, the.real-estate holders, would be extending the intendments against -the pleader with unreasonable se-verity. If, then, the election, held in pursuance of the ordinance aboye named,, was not, within the meaning of the statute, a taking of the- sense of the •. real-estate holders in the city, the absence of the-.necessary condition precedent ■ to the exercise of- the power of ¡taxation is averred, and the .tax is illegal. 'Therefore, the .equity of the bill hinges upon.the- question, whether the sense..of the proper class of persons was taken by the election. The right to relief [167]*167upon the proof depends.upon the same question,; and the treatment of the question as it arises upon the proof will only be varied so far, as to bring, to. view some new facts, giving rise to additional questions -urged on the part of the defendant. A consideration of the case upon the proof will, therefore, comprehend all the points' to be decided. We will, therefore, proceed to inquire, whether the city council have taken .the sense of the real-estate holders, looking to the facts alleged in the bill, and the other material facts proved.
Authority is given by the first section of the act of 1S60 ¿0 the municipal authorities of the city of Montgomery, “in such manner as they may deem expedient, to take the sense of the.holders of real estate in said city, upon the proposi¿ion to raise by tax npon real estate, not to exceed two per cent .per annum, the-sum of ■ three hundred thousand dollars,” $c. The expression “holders of real estate” is descriptive of the persons whose sense was to be taken. It includes all persons who -were in fact holders of real estate. The sense of those persons could only be determined by an expression of their wishes per capita. It could not be determined by the result of an election-where each individual was allowed a yote for each hundred dollars in value of his real estate. . If it could, we might have the absurdity of an expression; of the sense, of a thousand holders of real .estate, by the votes of a hundred of themumber, who happened to own more land in. -value than all the rest. The .authority given: was to take the sense of the-individuals who belonged .to the particular class ot persons, on terms of equality, without any discrimination based upon the value of real .estate owned. An enlarged discretion as to tbe manner of taking “ the sense” is certainly given; and that may authorize ^regulation as to whether the vote should be viva voce or by ballot, and as to the places and time of voting, and, perhaps, as to whether an election should be held, or the votes privately gathered by an appointed agent. .There are, doubtless, other matters which fall within the - scope of the discretionary control over the manner of tak[168]*168ing “-the sense.” But that control extends to the manner» It cannot justify any discrimination among the persons belonging to the particular class. The sense of that class is to be 'taken, and the •discretion is confined to the manner in which that thing-is to be done».
By the third section of the ordinance of the city council already noticed, it was directed, that the vote should be taken pro rata, according to the assessed value of the real estate of the respective voters, (each having one vote for every hundred dollars in value of his real estate,), and that the tax should be levied if the decision by the election so held should be in- favor of it. The decision • at such an election, "by a majority of votes in favor of the tax, would only indicate that the-persons who owned a major portion in value of the real ■■ estate were in favor of the tax — not that the sense of a majority of the persons who composed the class described as holders of real estate was in favor of it. Understanding the import of the expression in reference to taking the.sense of the real-estate holders as has been-above stated, we .must decide, that-such -as election would not be a taking of the sense-'ofsuch persons. Therefore, the bill, in showing that the tax was levied in presumption of the legality of such an-electioiuheld in pursuance of the ordinance above stated, negatives-the authority to impose the tax. Such an electiony-tested by the law in reference to which-.it- was held, was-illegal, and was no ascertainment of the sense of the designated class, and no fulfillment of the condition precedent- prescribed by the statute.
The managers of the election registered the names of the different persons who voted at the election, and stated opposite to -each- name the number of votes cast, and the side upon which, they were cast. It is contended for the appellant, that an inspection-of the ■ returns by the manager's shows that.a majority - of the persons, counted per capita, who voted at the election, were -in favor of the tax. We are not sure that the position is correct; but, conceding it. to be so, it only establishes the fact, that a [169]*169majority- of the persons who voted were in favor of the tax. It falls far short of demonstrating that the sense of the holders of real estate in the city was taken, and that it was in favor of the tax.- An election was, as we concede, a legal mode of-taking the sense of the designated class of persons $-• and when a legal and properly appointed election.is held, the sense of a majority of those who vote must be deemed the sense of a majority of those entitled to vote. Those who do not vote' must be understood to consent to abide the decision of those who do. — Ang. & Ames on Corp. 114, § 127 ; Grant on Corp. 204; First Parish in Sudbury v. Starns, 21 Pick. 154; Wilcock on Corp. § 546 ; Oldknow v. Wainwright, 1 W. Bla. 229 ; Rex v. Foxcroft, 2 Burr. 1017. But this-principle can only apply, when the election is legally proposed. — Rex v. Monday, 2 Cow. 530; Ang. & Ames on Corp., supra ; Grant on Corp. 204-208; Wilcock on Corp. 544, 545, 546.
We think it is a teaching of justice and reason, that where an election is authoritatively proposed to be held, upon principles which are illegal, and in derogation of the equality of suffrage, and which tend with reasonable certainty to prevent persons from-- voting, the sense of those who do vote cannot be taken-to be the sense of all who are entitled to vote, and-those who do not vote cannot be presumed to consent to abide the decision of those who do. Every one of the characteristics of such an election is found in the election which is under consideration. The announcement of the principles which should govern in the election was authoritative. It is not like the case of a mere ministerial officer announcing am intention to adopt some illegal regulation in the holding, of an election. It is the case of a corporation,, authorized at its- election to take the sense of a -certain^class of persons, who had no opportunity t© vote exceptas it-might afforded by the corporation. The principle of a pro-rata vote, based upon the value of real estate, which we have already decided to be illegal, is clearly prescribed by the ordinance. The second section of the ordinance, which declares, in general terms, that all [170]*170real-estate holders should be entitled to vote, is manifestly-qualified by the third section, which requires that the vote shall be jpro rata. Tbe managers of tbe election, acting under the authority bestowed by the corporation, and as its ministerial agents, could not disregard the third section, and hold the election under the principle of the second, as it would have been understood in the absence of the third. If they had done so, they would have asserted the superiority of the agent over the principal; and it would have been an election held by them in .violation of their instructions, and .not an election held by tbe corporation through their agency. Jt would have been a taking of tbe sense of the prescribed .class by the managers, and not by the corporation, The holding of the election upon the illegal plan.of a prorrata-vote was a necessary result of the ordinance, which was promulged in advance, • -This illegal principle had, as we think, an obvious tendency to influence persons not.to vote. It is possible that the repulsive discrimination,.predicated upon the value of real estate, may have prevented persons from voting. But, without laying stress upon that view, we think the knowledge .that the votes would weigh according to the value of real property, would necessarily exert, some control over the conviction of the voters as to the' necessity and expediency of .casting their votes, and consequently -over their determination whether to vote or not. .
Let an extreme case illustrate. ..-If there were a community of a hundred persons, and ten out of the hundred held the major portion .of the real 'estate, in .such an election as we are considering, the ten Could control,the result;,; and the ninety, knowing their wishes, would be indifferent about voting. The tendency of such an influence in larger communities, with less difference in the amount of real estate owned by different individuals,, would be less striking, but not less real. Besides these considerations, it is not at all certain that a careful reader of tbe ordinance and mayor’s proclamation, which preceded the election, could determine, from either or both, that his preference as an in[171]*171dividual would be at all indicated by the register kept by the managers of the election. Indeed, it seems to have been a matter altogether incidental to the main purpose- of .taking tbe vote pro rata, that any indication of the vote per capita was made. Is it then improbable, that persons detected the obvious illegality of the principle upon which tbe election was held, and, deeming such an election void, abstained from voting? At least, tbe tendency of such a knowledge - would be to render them less careful to vote, and in that way to lessen the.number of votes cast.
We have been referred to. many decisions, by tbe counsel for tbe --appellant, in wbieh elections were held valid, notwithstanding many irregularities occurred j -but, in those cases, the irregularities supervened pending -the election, and were not such as influenced the result. They afford no analogy-to the question involved in .this case.
We do .not deem it necessary to notice any -of the-other ■questions which have been .argued. We do not wish, however, to he understood “as affirming -that, all the other ...grounds, upon which the validity of the-tax is-assailed, -.are •untenable.' We avoid all expression of opinion'upon them, • both because it is unnecessary, and because-one of the court . .does not sit-in tbe case. Agrave constitutional question ■has been raised and ably argued. Such a question it would be improper for us to decide.,in t,he absence of, a full court» ..¡.unless it was necessary to do-sq,
Affirmed.
Stone, J., not sitting.