New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1870-06-14

A Mr.. Bustamente assumed IN represent
$500 shares of stock, classed by the secre-
tary as north of Canton" upon which 1t
appears not dollar has ever been paid, be-
cause it was issued with the understanding
that no calls should be made upon II untl the
road should be extended beyond Canton.
which has never been done. B. s. Hatch ap.
peared and claimed to represent $3.50 shares
of the same stock. I conclude that the
election to be held on the eighteenth was
adjourned to the twenty-hfth of April, then
to be held unless the injunction should still
be in the way, because of the 1863, 349 shares
entitled to vote not more than one.hfteenth
could have legally cass-admlttlng the
validity Of the proxies, not more than one
fifth. and the charter in such case so ad-
journed the meeting. 1t will De remem.
bered that notice had been published that
in event of failure on the first day, the
election would be proceeded with on the
second, and that McComb moved an ad-
journment on the eighteenth to the twenty
fifth.
1t seems to be the rule that if an election
in corporation be fixed by the charter,
other notice is not necessary. Grant on
Corporations, l57 and 213. Angel & Ames
on Corporations, 45l. Even when public
notice is required to be given, failure so
to do will not vitiate the election of itself.
Such provisions are considered as directors
only. 20 Wisconsin, 225; 10 Iowa, 21S; E.
Hill, GAG; IA Barbour. 26l.
The evidence shows that some three
hours before the election was held on the
twenty fifth, the president of the company
was notified by General Starke, one of the
gentlemen from New York, who came down
to represent the stock owned by that State.
The second question OF law is, whether the
manner and form in which he election on
tle twenty. fifth was held was sufficient. I
think it was. The evidence shows that Nc
Comb and the other stockholders who voted,
together with the representatives, OF the Mis-
sissippi stock, attending at the office OF the
company on the afternoon Of that day. They
asked the president to produce the commits
sioners who had been appointed to hold this
annual election. TIE president replied that
they were intruders, and ordered them to
leave. They met in thu stockholders room,
proceeded to organize, chose three commits
sioners and held the election, with the re-
suit hereinbefore stated They were soon
afterward arrested upon charge OF being
trespassers, but were discharged by the
committing magistrate.
II is contended by the respondents that
this election is void, because it was not held
by the commissioners who had been chosen
by the Board of Directors. The charter
provides that the annual election shall be
held by three commissioners, appointed by
the directors for the time being, from among
the stockholders. The evidence shows that
at meeting of the directors, held prior to
the sixteenth, three commissioners were
named. The resolution authorized the
president to appoint, in case they or any of
them refused or failed to act. One did fail
and the president filled the vacancy. Thus
it appears that these respondents had dele.
gated to one who was present on the twenty
fifth, the power to have named commits.
sioners or inspectors on that day, If the
others could not have been produced. But
otherwise this objection does not seem fatal.
The provision as to the mode OF appoint
ment of inspectors who are taken from and
serve merely for the stockholders, is direc-
tory.
The will OF the stockholders can not be
defeated by the neglect or refusal of officers
| to do their duty. In recent case decided
in New York. the question was passed upon.
At an election held for directors Of the At
lantic Mail Steamship Company, the in
spectors refused to act. The stockholders
chose others, and proceeded to the election.
| 1t was contested and held valid. Abbott's
| Practice Reports, United States, volume
| 2, 36l.
In the brief fled by counsel tor respond
ents, the position is taken that no election
| having been held on the eighteenth OF
| April, and it being impossible to hold an
election on the twenty-6fth, the respond
ents must hold on until the next annual
election. This view strengthens the argu
ment of the REALTORS. If the officers OF the
corporation can prevent an election, and
thus continue themselves in power, the ne.
! cessity of the stockholders acting is seen
| l do not concur, however in this opinion
| for / think the election might be compelled
| by mandamus, although the day named by
| tho charter had ma nsSSpd-apOthar 6lrpcfOJ3
provision merely.
But the respondents insist in their plead
ings, in argument aud their brief, that this
election must be disregarded for another
| reason, even more cogent than the tehnica
| objection of law. Because, they say, the
whole transaction was conceived in fraud
and brought forth in surprise. McComb, il
is urged, came here from abroad, pretended
to buy stock, sought the Intervention of the
| him, found out from the evidence how vii
famous his proceedings were, and theI
| changed his plans. We obtained an injunc
| ton with the sole view of dismissing 1t 81
he did and thus to perpetrate his unlawful
| designs. All those who acted with him are
asserted to be equally guilty.
| Believing the facts to be as have under
stood and hereinbefore stated them, l Car
not but conclude that these respondents ar
| uOG lu tuS UOSltIou W UO ACdlu upOu ouNA
allegations.
They had sought by every legal means t.
| retain control of the affairs of the corpora
tion without regard to the wishes Of an i'm
mense majority of the stock.
| But these charges are not sustained by tht
| evidence. The clear and straightforward
testimony of Mr. McComb, corroborated b.
the other witnesses, shows this state of facts
Mr.. McComb came here and at once ez
pended over four hundred and fifty thou
sand dollars cash, purchasing controllin
interestin the corporation, He then sough
| to have his rights protected. He was fOile
for the time being, but put himself in com
munication with representative men in th
commercial community who sustained hin
and combined" with him to elect Boar
of Directors in the road, who would recoe
nize his claims if they should be adjudi
Gated to him. There is no proof of fraud.
I an satiied that if / should refuse the re
lief sought by these REALTORS, upon the tecf
nical objections urged, I would do great il
justice.
1t is therefore ordered and decreed ths
there be judgment in favor of the State I
Louisiana, plaintiff, and the relato1
hereinafter named that the respondent
G. T. Beauregard, G. Fellows, H. Florenc
j. C. Denis, J. ). Warren, G. J. Iced
John Armstrong, Writ Adams, L. Mon
gomery, j. Green, John B. Hemphill, an
B. L. Hatch, be adjudged to be usurpinl
intruding and unlawfuIIy holding and exc
cising the office of directors of the corpor
ton named and styled the New Orlean
jackson and Great Northern RAILROAD Con
pany, domiciied within the Jurisdiction
this court, and that they be ousted al
excluded from said Office, forbidden to e:
else the functions of said office. 1t
further ordered and decreed that Il
REALTORS, Henry S. McComh, Joseph 7
Oglesby, Richard Pritchard, Edwin H. Sur
! | p,orr 7 D-at+ ou;,