9 Nev. 325 | Nev. | 1874
By the Court,
The board of trustees of the Ophir Silver Mining Company consists of seven members. At a meeting held on the 29th day of June, 1874, there were present six trustees, viz. : Lissak, Locan, Hassey, Baldwin, Grayson and Hall. On motion, a vote was taken to elect a trustee to fill a vacancy occasioned by the resignation of trustee Peart. This vote resulted in a tie; trustees Lissak, Locan and Hassey voting for W. S. Lyle; trustees Baldwin, Grayson and Hall for J. S. Wall; whereupon trustee Lissak, president of the board, having voted as a trustee, claimed the right to give the casting vote under art. VI. of the by-laws, of the corporation, which provides that the president ‘ ‘ shall have the easting vote at all meetings of the stockholders and trustees,” and again voting for W. S. Lyle, declared him duly elected a trustee.
1. It is contended on the part of respondent that the bylaws of the Ophir company are void. First, because they were adopted by the stockholders instead of the trustees. It appears that they are the only by-laws ever adopted by the corporation. They are found properly recorded in the books kept by the board of trustees, and have been used, acted upon and referred to as the by-laws of the corporation, both by the trustees and stockholders, ever since their adoption in 1860. Under these circumstances, we think they must be considered and treated as the regular by-laws of the corporation. Second, it is claimed that the particular section of the by-laws under which the president is given the casting vote is void, because inconsistent with section 7 of the act providing for the formation of corporations, which declares that: “A majority of the whole number of trustees shall form a board for the transaction of business, and every decision of a majority of the persons duly assembled as a board shall be valid as a corporate act.” General. Laws of California, 1 Hitt. 938. But relator contends that under section 5 of said act, an exception is made in cases where the election is to fill a vacancy. Section 5 provides: “When any vacancy shall happen among the trustees by death, resig
Is the election of a trustee to fill a vacancy a corporate act? To have perpetual succession and, of course, the power of electing members in the room of those removed by death or otherwise is among the ordinary incidents of a corporation. 2 Kent Com., Sec. 277. “The power to fill vacancies in a corporation and elect officers is a corporate incident.'” Angell & Ames on Corporation, Sec. 144; Kearney v. Andrews, 2 Stockton Ch. (N. J.) 72; Gashwiler v. Willis, 33 Cal. 19. In the general provisions, concerning corporations we find that every corporation has power: “To appoint such subordinate officers and agents as the business of the corporation shall require.” 1 Hitt. 746. In the act, under which the Ophir was incorporated, it is provided that the corporation shall have power, “to appoint such officers, agents and servants, as the business of the corporation shall require.” 1 Hitt. 935. Trustees are elective officers of the corporation; and it follows from the foregoing provisions that their election is a corporate act. Being a corporate act it must be exercised in the manner required by the charter. The act provides that “ a majority of the persons duly assembled as a board shall be valid as a corporate act.” The by-law creates a right of election contrary to the charter. It authorizes an election to fill a vacancy by a less number than the majority. For instance, in the present case, there is an equality of votes; and instead of the election being made by a majority the president really names the trustee. A corporation cannot make by-laws contrary
Again: it is conceded that the president would not have the right in all cases to give the casting vote and respondent’s counsel contend, for this reason, that the by-law is void; that a single entire clause of the by-laws cannot be good in part and bad in part. We think that this objection is also fatal to this particular clause of the by-laws. In The King v. The Steward, etc., of Faversham, Lord Kenyon, Ch. J., said: “Though a by-law may be good in part and bad in part, yet it can be so only where the two parts are entire and distinct from each other.” 6 T. R. 356. “If a by-law be entire, so that the part which is void influences the whole, the entire by-law is void.” Ang. & A. on Cor., Sec. 358, The same doctrine has frequently been announced in the construction of statutes. It is true, as was said by Shaw, C. J., in Fisher v. McGirr, that “there is nothing inconsistent in declaring one part of the same statute valid and an
2. Was Lyle such a de facto officer as to make his acts valid and binding? What is an officer de facto? “One who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law.” Parker v. Kett, 1 Lord Raymond, 658; The King v. The Corporation of Bedford Level, 6 East, 368. “One who actually performs the duties of an office, with apparent right and under claim and color of an appointment or election.” Brown v. Lunt, 37 Maine, 428. “ One who has the color of right or title to the office he exercises; one who has the apparent title of an officer de jure.” Brown v. O’Connell, 36 Conn. 451. “On the one hand he is distinguished from a mere usurper of an office, and on.the other from an officer de jure.” Mallett v. Uncle Sam G. & S. M. Co., 1 Nev. 197; Plymouth v. Painter, 17 Conn. 588. Such in brief arc the general definitions under which we are asked to declare Lyle a de facto trustee. We do not deem it necessary to examine minutely all the points with the numerous subdivisions which were ingeniously and elaborately argued by the respective counsel with a citation of authorities indicative of an extended and praiseworthy research; but shall confine ourselves to what we deem the controlling points in this branch of the case.
"While it is an established principle that the acts of all public officers having the presumptive evidence of title by law, commission, election, or otherwise, and the actual peaceable possession of office, are valid as far at they affect the interests of the public or of third parties; yet, we think, as was held in Vaccari v. Maxwell, “that the decisions in relation to the acts of officers de facto are reasonably to be restricted to those who hold office under some degree of notoriety, or are in the exercise of continuous official acts, or are in possession of a place which has the character of a public office.” 3 Blatch. 377. If the opposing trustees had acquiesced in the selection of Lyle, and allowed him, without objection, to vote upon the removal of respondent and the election of relator, then it might be claimed with some degree of reason, supported by authority, that he was a de facto officer; and if Curtis had surrenrdered up his authority and allowed Corey to act, then the latter would have been superintendent de facto, and all his
It is so ordered.