Hazen

Heydenfeldt, J., concurred.

The first and second sections of the third article of the charter of the city of San Francisco, passed April 16, 1851, provide, that “ the legislative power of the city of San Francisco shall be vested in a Board of Aldermen and a Board of Assistant Aldermen, which shall each consist of one member from each ward, and shall form the Common Council of the City. A majority of each Board shall constitute a quorum, but a smaller number may adjourn from time to time, and may compel the attendance of absent members. Either Board may originate or amend any ordinance or resolution, and no ordinance or resolution shall be passed, except by a majority of all the members elected.”

The ordinance under consideration in this case was passed by a vote of four in the affirmative to three in the negative; there being a vacancy in the Board by reason of the resignation of one member.

The first position assumed by the appellant is, that the ordinance is void, because five members, a majority of eight, the whole number originally elected, did not vote in favor of its passage.

On the part of the respondent, it is claimed that the word “ elected,” as used in the second…