Canairo v. Serrao
| Decision Date | 31 March 1897 |
| Citation | 11 Haw. 22 |
| Parties | J. S. CANAIRO, MANOEL BRANCO, J. R. GASPAR, JOHN ANTONIO, JOSE DE MENDONCA, FRANCIS MARTINS AND SANT' ANNA, PLAINTIFFS, v. JOSE G. SERRAO, JOSE JOAQUIN FORTADO, JACINTHO M. GOUVEA AND ANTONE CARVALHO, DEFENDANTS. |
| Court | Hawaii Supreme Court |
Submitted March 19, 1897.
INFORMATION FOR A WRIT OF QUO WARRANTO.
Syllabus by the Court
The day for the annual meeting of a corporation was fixed by the by-laws. The directors changed the day fixed and named another day, and caused notice to be sent to the stockholders that the annual meeting would be held on the day named by them.
Held that without the consent and approval of all the stockholders the meeting held on that day was illegal.
Held that the directors have no power or authority, without the consent of all the stockholders, to alter or change the by-laws of a corporation, nor to change the day of the annual meeting if fixed by the by-laws. The power to change, alter or amend the by-laws is in the stockholders.
Held that officers elected at such illegal meeting were in office unlawfully, and could be ousted by quo warranto.
Held that to obtain a writ of quo warranto, a formal petition duly verified must be filed; an information without such petition is insufficient to cause the writ to issue under our statutes and practice. That a writ of quo warranto must be issued in the name of the sovereign.
Held, that where on quo warranto it appears that the persons against whom the writ is directed were not legally elected officers of a corporation, or hold office unlawfully, the court or judge has power under our statutes to order the corporation to hold a new election and call a meeting of stockholders for that purpose, and need not refer the petitioners to the remedy by mandamus.
G. F. Little, for plaintiffs.
D. H. Hitchcock, W. S. Wise and F. M. Wakefield, for defendants.
OPINION
The affidavit of J. S. Canairo sets forth in substance that he is a stockholder in the Portuguese Sugar Mill Company, Limited (a corporation), with a capital stock of $30, 000 dollars, divided into 60 shares of $500 each; that 57 shares only have been legally sold, and the plaintiffs hold a majority thereof, to wit, 29 shares; the officers are a president, vice-president, secretary, treasurer and auditor, who constitute the board of directors, and the business of the company is committed to their charge. That by Sec. 3, Art. VI. of the by-laws, " all the business transactions must be agreed upon by all the members of the board of directors, in case they cannot agree, it shall be submitted to the general assembly for a final decision." That the by-laws provide for an annual meeting of shareholders in January of each year (the by-laws fix the date of the annual meeting at January 15 of each year), and all the shareholders shall be notified by the secretary two weeks prior thereto by letter. Affiant further sets forth that defendants or some of them published a notice in the newspapers that the annual meeting of 1897 would be held on January 17; and that letters sent to shareholders by defendants or some of them gave notice to appear for their annual meeting on January 16, 1897. That on January 16, 1897, the defendants who represented a minority of the shares, unlawfully and in violation of the by-laws, held a pretended meeting and election of the following officers: J. G. Serrao, president (one of the defendants); J. S. Canairo, vice-president (one of the plaintiffs); Antone Carvalho, secretary (a defendant); J. J. Fortado, treasurer (a defendant); J. M. Gouvea, auditor (a defendant), and that these officers assumed the duties of officers of the company, but that this assumption of control is contrary to the rights of plaintiffs, and in violation of the by-laws of the company, and in violation of law; and that the same will result in the injury and irreparable damage to the plaintiffs, who are a majority of the shareholders; and also injury and damage to the business of the corporation and its sugar mill plant. Further, that the defendants, who pretend to be directors, have fraudulently and in violation of the by-laws, against the will and over the protest of a majority of the shareholders, unlawfully sold three shares of the capital stock, Nos. 60, 61 and 62, December 15, 1896, to one Nuno Fernandez, for the purpose, under colorable title, of controlling sufficient of the shares favorable to defendants and fraudulently secure their election as officers. Further, that on January 16, 1897, a majority of the shareholders (meaning the plaintiffs) assembled, a quorum being present, and elected J. S. Canairo, president, Manoel Branco, vice-president, J. R. Gaspar, treasurer, Joao Antonio, secretary (who was secretary in 1896), Jose Mendonca, auditor, and that these officers constitute the regularly and lawfully elected board of directors. Further, that defendants, without right or title, unlawfully and fraudulently prevent the plaintiffs from entering upon their respective duties as such officers. Wherefore plaintiffs pray for a writ of quo warranto against defendants and each of them to-
1. Show by what authority they hold their respective offices and exercise the powers and duties of directors, officers and managers of this corporation.
2. To show cause why a judgment of ouster should not be rendered against them and each of them.
3. And why the plaintiffs and each of them be not put in possession of the management and control of the business affairs of said company by virtue of their election to offices hereinbefore mentioned.
4. For production of books and documents of the company, and that the legality of the election be tested.
5. And for an injunction against defendants from acting as officers.
The defendants in their answer deny that the capital stock of the company thus far legally sold is 57 shares, deny that 29 shares is a majority of the stock; admit that letters were issued to the shareholders of the said company to attend the annual meeting on January 16, 1897, and allege that said notices were given in compliance with the by-laws of the said corporation. Further allege that at said meeting on January 16, 1897, these defendants were duly elected as officers of said corporation, at which meeting the holders of a majority of the shares of the capital stock were present, and that defendants were elected by a majority vote of all stock so present. They deny that said election was fraudulent and illegal, but allege that it was held in strict conformity with law and the by-laws of the company, and that they are the duly and legally elected officers of the company. They deny that plaintiffs are duly elected officers or officers at all of the company, and that the meeting and election of officers was invalid and void. They deny any false or fraudulent sale of three shares or any shares of stock. And pray that they be confirmed in their offices.
After full hearing, the presiding circuit judge found for the plaintiffs and ordered " a new election of officers to hold office for the year 1897, such election to take place within one month from the first day of March, 1897, the officers elected for the year 1896 to act until their successors are elected."
The law and proceedings in quo warranto are set forth in Chap. 39, Laws of 1876 (Comp. Laws, p. 593). Of the Writ of Quo Warranto. Sec. 36. This is an order issuing in the name of the sovereign, *** directed to a person who claims or usurps an office in a corporation, inquiring by what authority he claims to hold such office.
Sec 38. The order is obtained by petition *** setting out facts sufficient...
To continue reading
Request your trial
-
Territory Hawai`i v. Morita
...officers? Respondent–appellants have in their opening brief cited a number of Hawaiian cases, namely, Queen v. Costa, 8 Haw. 552,Canario v. Serrao, 11 Haw. 22,Territory v. Mattoon, 21 Haw. 672,Wilder v. Colburn, 21 Haw. 701, and Chinese Society v. Yap, 24 Haw. 377, to the effect that an off......
-
Nakakuni v. Towse
...office in which has come into question, to invoke the provisions of the statutes has been repeatedly recognized by this court. (Canairo v. Serrao, 11 Haw. 22;Yong Kwong Tat v. Yee Mun Wai, 22 Haw. 604;Chinese Society v. Yee Yap, 24 Haw. 377.) Jurisdiction over the statutory action in the na......
-
United Chinese Soc'y v. Wai
...good title may not recover because of infirmities in the respondent's title. See 32 Cyc. 1460; 17 Enc. Pl. & Pr. 463, 471. In Canario v. Serrao, 11 Haw. 22, where it was found that the respondents were without title, the court ordered a new election though the petitioners, likewise, were wi......
-
Canario v. Serrao
...raising the validity of a certain election of officers of the cor poration in question. On appeal to this Court we decided on March 17, 1897, 11 Haw. 22, that the Circuit Judge had power to order a new election and directed him to proceed with the case. He did so and ordered, on June 22, 18......
-
Quo Warranto in Hawai'i
...that a resident, taxpayer, and qualified voter had standing to petition for the writ. This followed an earlier case, Canairo v. Serrao, 11 Haw. 22 (Haw. Rep. 1897), that held that a petitioner need not claim title to office in order to seek the writ. After lodging the petition, it is then r......