4 Nev. 400 | Nev. | 1868
By the Court,
Upon the proper statutory notice regularly served the relator petitions this Court for a peremptory writ of mandamus, commanding the defendants, who are the trustees of the Lady Bryan Company, to call and make provision for a meeting of the stockholders of the corporation for the purpose of electing their successors.
The facts upon which the writ is claimed are those substantially stated in the petition. The Lady Bryan Mining Company is a corporation, organized on the 3d day of February, A. d. 1868, in accordance with the laws of the State of Nevada, for the purpose of mining for gold and silver in the county of Storey. The certificate of its incorporation declares that its capital stock shall be one million eight hundred thousand dollars, divided into six thousand shares of the par value of three hundred dollars; that the corpora
It is argued for the relator that by the incorporation law of this State, the first election of trustees under this organization should have been held on or about the 3d day of August, A.D. 1868, six months after the time the certificate of incorporation was filed. This claim is predicated upon the language of section two of anAct to provide for the formation of corporations for certain purposes, (Laws of 1865, page 359) which declares that the certificate of incorporation shall state the names and number of trustees, who shall manage the concerns of the company for the first six months. The certificate whereby this corporation was incorporated being filed in the proper office on the third day of February, it is argued that the trustees named therein could hold their office only for six months,
We do not think the language of section five leaves the time of holding the elections absolutely in the discretion of the trustees, as claimed by the learned counsel for the defendants. So far as the first election is concerned, it certainly does not. The time when that is to be held is fixed in the law itself, at a period six months after the filing of the certificate of incorporation. This time is .unequivocally specified, and we see npthing in the context of the law
A writ, therefore, commanding the trustees to call an election, accomplishes all that is necessary, as the law itself directs the manner in which the call shall be made — that is, by the adoption of a by-law designating the day, place, and manner. And the command to call an election necessarily includes the order to do it in the manner provided by laAV. This is somewhat analogous to a case where the Avrit is issued to a judicial tribunal, commanding it to proceed Avith the trial of a cause, although it may be indispensably necessary to perform many acts preliminary to the trial, and Avith-out which no trial can be had, such as the opening of Court, or the issuing of a venire for a jury, and the like. Still these are matters Avhich are never considered, but the writ issues commanding the Court to proceed Avith the trial, and the laAV directs the manner in w'hich it shall be conducted. Hence we conclude that the failure to allege the existence of a by-laAV does not render the petition defective.
It is also suggested that the petition does not show that an election has not already been had. We think otherAvise. It is first alleged that the first annual meeting should have been held on the 3d day of August; that no such meeting AYas called or held; that in consequence of the failure of the trustees to call it, the relator requested the Board in Avriting to call such meeting at as early a day as practicable; that notwithstanding such request this Board have refused to call a meeting, as requested, or any other meeting of the stockholders for the purpose of electing trustees, and do still so refuse. Such is the substance of the allegations upon this point. Doubtless they might have been more explicit, but we think the fact that no annual election had been held at the time the petition was filed is sufficiently shown under the liberal rules of our 'Practice
The only remaining point presented for consideration is raised by an allegation in the answer to this effect, that on the fifth day of October (which was some time after the institution of this proceeding) the relator and other stockholders of the Lady Bryan Company assembled at the office of the said company, and as such stockholders proceeded to and did vote to expel and remove the old trustees, Rule, O’Noale, Baldwin, Gillis, and Daggett, from office, and elected for their successors the relator and four others, to act as trustees of the company. The defendants, however, deny the right of the stockholders to proceed in such manner, and do not admit the legality of the proceeding, or that it is binding upon them.
But this proceeding, in our opinion, constitutes no objection to the issuance of the writ in this case, for two reasons. 1st. Because the defendants themselves claim that the action of the stockholders removing them was illegal, and hence that they are still the legal Board. Such being the case, the allegation of the answer only show's that the stockholders did an act which effected nothing, being entirely nugatory and void. We do not think that the defendants ought to be allowed to avail themselves of this proceeding by the stockholders as a defence while they deny its legality, and claim, notwitstanding, to be the legal trustees. 2d. Even admitting the removal to be valid, still that does not obviate the necessity for an election. This action of the stockholders is a special pro
Entertaining these views of this question it is unnecessary to decide whether the expulsion of the old trustees was a legal proceeding or not. The defendants deny its legality, and so render that fact unavailing as a matter of defense to themselves in this proceeding ; for if it were illegal and void, they still constitute the legal Board of Trustees, and to them the writ should issue.
The mandamus must issue commanding the Board forthwith to give notice of an election to be held upon some day within two weeks from the time the writ is issued.