189 Ind. 243 | Ind. | 1919
This is a proceeding in quo warranto brought by the relator, George B. Daubenspeck, against appellees to determine the right of each ap■pelleeto the office of. director, ofHhe Union Telephone
The assignments of error present the same question. The following facts taken from the special findings will suffice to indicate the question for decision. The Union Telephone Company was incorporated on August 10,1903, under an act of the general assembly of this state, approved on April 7, 1881, and acts amendatory thereof and supplemental thereto. From then until now the board of directors has been composed of five stockholders. It was the custom of the company to elect annually three, one for the term of one year and two for the term of two years. Ninety-six and one-half shares is a majority of all the snares of stock issued and outstanding. Appellees are now acting as directors of the company, claiming to have been elected at a regular annual stockholders’ meeting.
The facts pertaining to their election are as follows: Three directors were to be elected. Tellers were chosen, and six persons, appellees and three others, all qualified for the office of director, were nominated to be voted for,* Appellees each received sixty-eight votes, and all were counted for them. The other three nominated received 96% votes each, but the tellers counted for them only 28% votes and rejected and refused to count the other sixty-eight, on the sole ground that these votes represented sixty-eight shares of stock of the company-owned and con
“No person, firm or company can ever at any one time own or control more than five shares of the capital stock of this company, and every such person, firm-or company shall be entitled to only one telephone connection for éach paid up share of stock so owned.”
That said sixty-eight shares were not in the name of the relator on the books of the company, and never had been, but were held by others in blocks of five shares or less, under an agreement with the relator that said stock should be voted as directed by him at all stockholders’ meetings, and for the purposes by him of controlling the corporation and its policies notwithstanding article 11. •
Appellees claim that article ll has the force and effect of a by-law, and also that it amounts to a stipulation between the stockholders as to their holdings of stock.
True, this act does not purport to be an amendment, and for that reason it is suggested that these acts must be construed separately because there is no power in the general assembly to pass supplemental acts. This court has held otherwise, and we know of no good reason why this rule should be changed. McCleary v. Babcock (1907), 169 Ind. 228, 234, 82 N. E. 453. There is nothing to indicate that the legislature used the word “supplemental” in any sense other than as generally understood. Thus considered, it will be regarded as referring to “that which is added to a thing to complete it. ” 3 Bouvier, Law Dictionary (Rawle’s 3d ed.) 3187. It means an addition which cannot be made in the form of an amendment. “It is that which supplies a deficiency, adds to, or completes, or extends that which is already in existence, without changing or modifying the original.” McCleary v. Babcock, supra.
As we have seen by amended §4 of the telephone act, supra, the stockholders are required to elect not less than three directors who shall serve for one year, and until their successors are elected. This statute, when read in connection with §3 of the manufacturing-act, makes it the duty of the stockholders to elect such directors annually. In 1861 §4 of the manufacturing act of 1852, post, was amended by re-enaeting the privilege to absent stockholders to vote by proxy, and by repealing- the limitation that “No one stockholder shall give more than 20 votes,” and in place thereof, “and each share of -stock shall entitle the owner thereof to one vote.” This amendment has been in force continuously since its adoption. Acts 1861 p. 135, §3855 R. S. 1881, §5071 Burns 1914. While §7 of the act of 1852 was amended in 1891, yet no change was made in that part of the section which provided that “the stock of such company shall be deemed personal estate, and when fully paid in shall be transferable in such manner as the by-laws may prescribe.” Acts 1891 p. 344, §5088 Burns 1914.
From these considerations we conclude that the article in question is without force or effect; that the
From all the facts we conclude that the relator was the owner of the stock in question and, in the absence of any statute or valid by-law to the contrary, was entitled to vote the same, and the fact that another voted this stock will not have the effect of invalidating such votes.
It is conceded that appellees received only sixty-eight votes each, and each of their opponents received 96% votes. Under such circumstances appellees cannot be regarded as the choice of the stockholders at such election. The exclusion and rejection of certain votes, for the reason stated by the tellers, was error, and neither of the appellees were duly elected. People v. Phillips (1845), 1 Denio (N. Y.) 388.
Judgment reversed, and cause remanded with instructions to the trial court to restate its conclusions of law in accordance with this opinion, and to render judgment in conformity with the restated conclusions of law.