State ex rel. Siciliano v. Johnson
| Decision Date | 26 November 1963 |
| Parties | STATE ex rel. S. P. SICILIANO, Plaintiff-Respondent, v. Bernard JOHNSON et al., Appellants, Bayfield Electric Coop., Inc., Defendant-Respondent. |
| Court | Wisconsin Supreme Court |
Norlin & Spears, Washburn, for appellants.
Pray, Pray & Clark, Ashland, for plaintiff-respondent
Sec. 294.04(1)(a), Stats., 1 authorizes the attorney general to commence an action in quo warranto when any person shall usurp, intrude into, or unlawfully hold any office in a corporation created by the authority of the state. Sec. 294.04(2), Stats., 2 provides that such action may be brought in the name of the state by a private person on his own complaint when the attorney general refuses to act. Under sec. 990.01(25), Stats., the term 'officer,' when used in connection with a corporation, includes a director of the corporation. This statute has been in force since before Johnson, Nortunen and Elonen were elected to the board of directors of the cooperative. See sec. 370.01(25), Stats.1951.
The instant action was commenced in the name of the state by the relator, S. P. Siciliano, and the record contains a letter from the attorney general declining to bring the action. The relator alleged in the complaint that the individual defendants were unlawfully holding office as directors of the cooperative; that the relator was a member of the cooperative at all times material to the action, and that the cooperative was created by the authority of the state of Wisconsin.
The following facts were stipulated to by the parties. The Bayfield Electric Cooperative, Inc., was incorporated in 1940. Among the bylaws adopted at the first meeting of the incorporators was the following:
This provision has not been changed, and remains in full force and effect at the present time. At the time of the first meeting, five of the seven incorporators were serving as town chairmen in their respective localities. Two of them were being paid on a per diem basis, and two received fixed compensation of $100 and $150 per annum, these figures having been fixed by the annual meetings of their towns. The fifth man's compensation is unknown. Each of the seven original incorporators was aware of these facts.
Since the organization of the cooperative, at least eleven persons have been members of its board of directors while holding the office of town chairman, and no action has ever been commenced for the purpose of questioning the right of any person to serve as town chairman and as a member of the board at the same time. There has never been any attempt to amend, alter, or repeal the bylaws of the cooperative relative to such dual capacity. Directors are elected by the cooperative at annual meetings, to serve three-year terms.
Defendant Bernard Johnson was elected chairman of the town of Drummond, Bayfield county, in 1945, and became a director of the cooperative in 1953. At the annual meeting of the electors of the town of Drummond, held on April 3, 1956, the following motion was made and carried: 'The salary of the town chairman be increased from $400 per year to $500.' He currently is the town chairman of the town of Drummond and also a director of the cooperative.
Defendant Matt Nortunen was elected chairman of the town of White River, Ashland county, in 1957, and became a director of the cooperative in 1958. The official minutes of the annual meeting of electors of the town of White River, held April 3, 1962, contain the following: At the time of the 1962 meeting the salary of the town chairman was $250 per year. Nortunen is a director of the cooperative and town chairman at the present time.
Defendant Toivo Elonen was elected chairman of the town of Oulu, Bayfield county, in 1961, and became a director in September, 1962. The official records of the meeting of the electors of the town of Oulu reveal that in 1957, the 'salary' of the town chairman was set at $325 per year. The minutes of the 1962 meeting contain the entry: 'The town salaries remain the same as last year.' Elonen is currently town chairman and a director of the cooperative. When Elonen was nominated for a directorship of the cooperative in 1962, the nominations committee considered the eligibility of town chairmen to serve on the board and were advised by the attorney for the cooperative that the bylaw applied only to partisan and political offices and not to the office of town chairman. Thereupon the committee nominated, ameng others, Toivo Elonen, who was then known to be chairman of his town.
It was also stipulated that the office of chairman of the towns of Drummond, White River and Oulu, are, and at all times material to the action have been, elective public offices.
The trial court found the following facts: That the action was properly commenced by the relator pursuant to authorization duly obtained from the attorney general; that each of the individual defendants was the duly elected chairman of his own town and each was compensated by payment to him of an annual salary; and that the defendants held and exercised the office of director of the cooperative. In a written memorandum opinion, the trial court concluded that each of the defendants is the incumbent of an elective public office and each is being paid a salary in connection with this office, within the prohibitions of the bylaw.
The sole issue involved on appeal is whether the office of town chairman, which the parties have stipulated to be an elective public office, comes within the prohibition of the bylaw of the cooperative. It is a general rule that the principles which govern the construction of contracts also govern the construction and interpretation of corporate bylaws. See 13 Am.Jur., Corporations, p. 290, sec. 160; ...
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