Malloy

The charter of the city of San Jose provides that the board of education of the city shall consist of eight members, and that “ a majority of the board shall constitute a quorum for the transaction of business, but any smaller number may adjourn from time to time. The board may enact rules for the conduct of its own proceedings,” and it shall have power “to employ and dismiss” teachers, and to fix and order paid their salaries or compensation. (Stats. 1873, p. 395, secs. 3, 50, 52.)

Prior to January 5, 1893, a rule was adopted by the board, and was then in force, providing that “ no measure, or proposition shall be valid unless passed by five votes, except motions to adjourn, to postpone, to reconsider, to commit, to lay on the table, to amend, or the previous question.”

On January 5, 1893, there was a regular meeting of the board, but only seven of its members were present. There was then a vacancy in the corps of teachers of the city, and the members present regularly proceeded to ballot for the election of a teacher to fill the vacancy. Seven ballots were cast, and four of them were for the respondent, Alice B. Malloy. But, notwithstanding a majority of the members present,…