¶1This is a case of an appeal from a precept issued by the order of the common council of the city of *311Greencastle, for the collection of an assessment claimed to be due from the appellant, as a property owner, to the appellees, as contractors, for work done upon a certain street improvement in said city, under an order of, and contract with, the common council.
¶2The whole proceeding in relation to the street improvement was certified by the city clerk and filed in the court below, where it is made by statute to stand as and for a complaint in the case. The work was ordered to be done without a petition from the property owners; in which case the law requires that two-thirds of the council shall vote for the order for the improvement, which we construe to mean that two-thirds of all the persons who compose that body shall vote for it, and not merely two-thirds of the members who may be present, though less than the whole number may form a quorum for business. There was, a demurrer to the complaint, for want of sufficient facts, overruled, exception taken, and this ruling is assigned for error. The complaint does not show that two-thirds of the council voted for the order, but only that 'two-thirds of those present voted for it; nor does the record disclose how many wards or councilmen there are in the city, and we cannot take judicial notice of their number. In the well-considered case of Moberry v. The City of Jeffersonville, 38 Ind. 198, a majority of this court held that the complaint must, to be good on demurrer, show affirmatively that two-thirds of all the persons composing the council voted for the order for making the improvement; and, subsequently, on full and thorough consideration, overruled an able and earnest petition for a rehearing, and we adhere to the ruling in that case and the cases there cited.
¶3The judgment is reversed, at the costs of the appellees, with instructions to the court below to sustain the demurrer to the complaint.
¶4I have written the above opinion to suit the opinion and judgment of my brother judges, but I d.o not concur in it. *312I hold that no question of fact can be raised or disputed that arose before the making of the contract; and that the question of whether two-thirds of the members of the council voted for the order for the improvement, is a question of fact and not of law.