| Ill. App. Ct. | Apr 11, 1899
delivered the opinion of the court.
This was a petition filed in the court below by E. K. Haynes, F. E. Dabk, R. W. E. Hayes and Harrison Miner, stockholders of “ Hayes Pump and Planter Company,” of Galva, Illinois, against John H. Morgan, chairman, T. H. Johnston, secretary, and C. A. Hempstead, Will Calhoun and Adam Deem, tellers, seeking a mandamus to compel said tellers to recanvass the votes cast for directors of said corporation at a certain meeting of the stockholders, and to compel said chairman and secretary to record the result of said recanvass, and further to cause petitioners to be let in to the office of director. Defendants demurred to the petition; the demurrer was overruled; defendants elected to abide by their demurrer; and the court awarded a writ commanding a part of what was asked. Defendants appeal.
A special meeting of the stockholders of said company was called for June 28, 1896, to elect directors and transact other business. Defendant Morgan was elected chairman of that meeting, defendant Johnston, secretary, and the other three defendants to act as tellers at the election of directors. Ballots for seven directors were cast by those stockholders who were present and by those holding proxies of absent stockholders, and said ballots were canvassed by the tellers and they made a report showing the number of votes cast for each candidate, and that E. K. Hayes, S. "V". Deem, E. W. Houghton, J. D. Foliett, O. E. Yocum, T. H. Johnston and R. W. E. Hayes had received the highest number of vptes. Upon motion said parties were declared elected. The secretary was directed to take care of the ballots, and the meeting adjourned. The petition states the number of votes cast for each petitioner, and that the petitioners each had a majority of the votes cast at said election, and were, in fact, elected; that the tellers rejected 2,520 votes cast for the petitioners, and counted some of their votes unjustly and illegally for Houghton, Deem, Johnston, Hempstead, Yocum and Follett. The final order directed a writ commanding said tellers to immediately recount and recanvass the vote cast at said meeting, to count 1,582 votes each for E. K. Hayes and R. W. E. Hayes, 1,581 for F. E. Dack, and 1,"583 for Harrison Miner, and to immediately make a full and correct report of said recount and recanvass to said chairman and secretary, and that the latter immediately cause said vote to be recorded.
A writ of mandamus will not issue unless the party applying for it shows a clear legal right to have the thing sought by it done, and in the manner and by the person or body sought to be coerced, nor unless it would be effectual as a remedy if enforced, nor unless it is in the power of the defendant, and his duty also, to do the act sought to be compelled. (People v. Hatch, 33 Ill. 9" date_filed="1863-11-15" court="Ill." case_name="People ex rel. Harless v. Hatch">33 Ill. 9, 140.) We are of opinion petitioners have not brought this case within these rules. Morgan and Johnston were chairman and secretary of that meeting only. Their offices as such, expired with its adjournment. There is nothing in the petition to show they now have control of the record or any power to "make therein the entries required by the writ awarded. The tellers were only such for that meeting, and their authority expired with its close. The petition does not show that they have the custody of the ballots or any power to obtain them. Mandamus does not generally lie to reverse action already taken (2 Spelling on Extraordinary Relief, Sec. 1559), and we are of opinion it will not lie against these defendants after their temporary functions at said meeting ceased. Moreover, the result of obedience to the writ would be unimportant and ineffectual. The directors, whose election is here assailed, are none of them parties to this suit, except Johnston, and he only in his capacity as chairman. The others can not be affected by the order in this case or by any action taken in obedience to the writ. If no one had yet taken office as director by virtue of said election, the utmost effect of obedience to the writ awarded would be to give petitioners Dack and Miner an apparent right to the office upon the face of the record.. In the absence of averment we must assume the directors declared elected at once entered upon their said office of director. Resort must be had to quo warranto to oust them. In that proceeding the court will not be bound by the record, but can go behind the face of the returns and ascertain the truth. (2 Spelling on Extraordinary Relief, Sec. 1776; High on Extraordinary Legal Remedies, Sec. 722; People v. Van Cleave, 1 Mich. 362" date_filed="1850-01-15" court="Mich." case_name="People ex rel. Attorney General v. Van Cleve">1 Mich. 362.) The directors who were in office before this petition was filed can not be deprived of the prima facie title the original record gave them by any change made afterward pursuant to an order obtained in a suit to which they were not parties. As the petition does not show a clear legal right to have defendants, now out of their temporary office, perform the duty required, nor that Morgan and Johnston have any control over the record or power to amend it, nor the tellers any power to obtain the ballots, and does not show an amendment of the record now would aid Dack and Miner to obtain possession of the office of director, we conclude the writ should not issue. The judgment Will therefore be reversed.