The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-01-15

wise that u otherwise than BY the expiration OF the
terms OF tdeir ofces when, or IN case such vAcaI-
Of the 1arter 81 the remainder u the board for the
time being or majority OF Them. that y, by the re-
mAinder Of the board Or majority OF the remain
cancy or vacancies happens, not the succeeding or
By the ninth section Of the charter any vacancy
vacancies which shall happen in the board OF
directors by death. resignation or otherwise may pc
filed by the remainder Of the board for the time
being, or majority OF them BY ballot.
the charter had previously provided for the an
nua lection by the stockholders OF ten directors IN
place Of the ten whose terms OF Office were annually
to expire but the charter does not provide for the
or contingency Of an omission by the remainder
or the board or majority Of the remainder OF tat
board TO I'LL vacancy or vacancies IN II under the
the petitioa in this matter states that 1t has been
holders to Ill such vacancies at the next succeeding
annual election he'd to oil the places OF the ten al
rcctors whose terms Of ONCE annually expire. -.
Upon the whole. though the question Is not nee
from doubt, hlnk the shareholders have the right
to Ill such casual vacancies IN the board OF drec-
tors when they have not been filled under the ninth
section OF the charter by the remainder OF the board
by majority OF the remainder OF the board as to
which. or In which the vacancies happened.
with the nature and purpose OF the corporation and
OF the conceded rights and interests OF Its sharehod.
ers to concede this right also to them in the alb
sence OF any express provision for the or con-
tingency In the charter or the law under which the
corporation was organized
election by the directors was regu ar and valid II
majority or the directors then constituting the board
can be said to have assembled or met with view to
the election or an election and to have been present
at the election.
Calling Homer Morgan who had ceased to be
stakeholder but whose ONCE OF director had not
been resigned or declared vacant, director, there
were forty directors; without him there were thirty
nine
Seventeen votes only were cast; but the respond
claim that twenty-one directors were IN attend
ance At the meeting for the election OF whom Henry
ii. Porter and Robert M. q. Graham were two.
Alter careful examination OF the papers submitted
have come to the conclusion that 1t cannot prop
ery be said or held that the two directors last named
assembled or met with the other. nineteen or that
they attended the meeting or were present at the
election. My conclusion is that these two directors
never Intended or consented to assemble or with
the other nineLecn or with any OF the Nineteen as an
eecting meeting or body, or to constitute or meet
form an electing meeting or body. Their aildaviis
the room where the meeting was held for two or
three minutes and the other to the door OF the
r0om and that their purpose was not to attend the
meeting or to assemble with the nineteen.
Az nineteen Is not and cannot be made out to be
majority OF thirty-nine 1t follows that the election
by the directors must be declared to have been I'M
authorized, and to be null and void, irrespective Of
the question, whether Homer Morgan was or was
not director, and irrespective OF the question Of
notice.
do not see why it should not also be declared II
have the right to do som this proceeding, that the
election py the stockholders subsequently and on the
same day, TO NIL the ten casual vacancies, was au-
thorlzed, and as and IL valid.