Whipple v. Christie

Holt, J. Appeal from a judgment perpetually enjoining the defendant eor — 74 — poration and the individual defendants in their capacity as officials thereof and otherwise from recognizing certain persons as officials thereof and also from interfering with certain other persons in discharging their duties as officers of the corporation. The defendant corporation is a domestic fraternal beneficiary association. The supreme governing body thereof is known as the imperial council, the regular meetings of which are held in June •of each odd numbered year. The constitution of the association contains this provision for special meetings of the council: “Special meetings may be called by the imperial good Samaritan whenever he considers it for the best interests of the order to do so, and he shall call a special meeting upon the request of a majority of the members, provided, that such a request shall state specifically the purpose of such meeting.” Pursuant to a call by the imperial good Samaritan, a special meeting of the imperial council was held on July 2 and 3, 1912, whereby a change in the members of the council and some of its executive officers was made which occasioned this legal proceeding to prevent such change. There is no dispute as to the facts, and it is conceded that, if the call for the special meeting mentioned was valid, then the plaintiffs are not entitled to any relief; but if invalid, the judgment rendered is right. The stipulated and found facts contain these paragraphs: “That John Christie, the imperial good Samaritan of said association, considering it for the best interests of the order to do so, did, in the month of June, 1912, sign and issue a written call for a special meeting of the imperial council of said association, to be held on July 2, 1912, setting forth in said call the time and place of said special meeting and the specific business for which said special meeting was called, and transmitted to W. A. Hicken, the imperial scribe, a sufficient number of copies of said call for all of the members of the imperial council, together with a written request to the said Hicken that he, as imperial scribe, should notify by mail all the members of the imperial council of the time, place and purpose of said meeting at least seven days prior thereto; that the said Hicken absolutely refused to send the notices; and that if said Hicken had sent such notices he would have duly mailed them at Duluth, Minnesota. — 75 — “That thereupon, the said Christie, as imperial good Samaritan, sent by mail from Duluth, Minnesota, to all the members of the imperial council, a copy of the call issued by him, which said call complied with the provisions of said article V, section 2, of the constitution in substance and in form, and which contained all of the elements necessary to a proper notice under said article Y, section 2, •and that the said call and notice was so mailed by the said John Christie more than seven days prior to the date of the special meeting; and that every member of said imperial council actually received said notice in the due course of the mail.” It is to be observed that in the imperial good Samaritan is vested the absolute right to call a special meeting of the council whenever he considers it for the best interests of the order to do so. The imperial scribe has no voice whatever in the matter. His is the mere •clerical duty to mail a notice of the meeting to each member of the ■council. In this instance, he absolutely refused to perform this duty, ■though requested in writing so to do by the imperial good Samaritan, .and by him furnished with a sufficient number of copies of the signed •call to mail one to each member of the council. In this situation is the notice of the call valid which, according to the stipulation, complied with the provisions of the constitution, was mailed at the proper place, within the specified time, and was received by every member of •the imperial council in due course of mail? By the stipulation it must be admitted that the call was full and adequate in every respect to serve the purpose intended, namely, that, at the time and place specified, the members of the council were directed by the imperial :good Samaritan to assemble in a special meeting to consider certain stated matters. The only defect that may be pointed to is that the imperial scribe did not send the notice, or perhaps attest it by his ¡signature. It is only by inference that the constitutional provision .above set out requires the scribe’s signature to calls. Yre apprehend that had the scribe, without attestation or signature, mailed the call specified in the stipulation, no question could well be raised against the validity thereof, and certainly the call would have been valid if the scribe had attested it, although the mailing was done by the imperial good Samaritan. All the members of the council — 76 — knew that the imperial good Samaritan had the full and absolute power to issue the call, and that the scribe is a mere messenger to-forward the same to the members of the council. It is true that the court, by mandamus, can compel the scribe to-perform this purely clerical or ministerial duty. But it would seem that where, as in this case, full notice of a duly-issued call has been given to everyone entitled thereto by the one solely authorized to-issue it, the court should hesitate to give such effect to a wilful refusal by another official to discharge the mere ministerial duty of transmitting the same that the meeting held pursuant to the call is-irregular and its proceedings void. Where the result intended by the constitutional provision is attained, courts ought not to upset the-business done by a corporation, merely because some official who had no discretionary duty to perform in the matter wilfully failed in a. mere clerical act. It is plain that the substance in the constitution of the defendant corporation, in respect to special meetings, is a call by the proper person, and a notice thereof to each member of the council. We think the stipulation effectually settles the proposition that the call was duly issued, and that each member of the council, within the-prescribed time, received notice thereof in substance as provided by the constitution, and given in the most effective way it could well be-given, considering the wilful refusal of the scribe to transmit the-notice. There is no pretense that any member of the council misunderstood the call received. The scribe can surely not raise the objection of irregular notice, and for aught that appears the other three members who did not attend the meeting are in no better position than the scribe. That meetings of a corporation must be called by the proper authority in order to give force and legality to business there transacted is a well-recognized doctrine. 1 Bacon, Benefit Soc. & Life Ins. § 67. So also is the rule that, where the manner and time of giving-notice of the meetings is prescribed, there must be a substantial compliance therewith. 10 Cyc. 324. Outside of these general propositions, we find that the cases cited and relied on by the respondents, herein, with the possible exception of Kuhl v. Meyer, 42 Mo. App. — 77 — 474, relate to want of authority to issue the call, a proposition not involved in the instant case. That is the situation in Reilly v. Oglebay, 25 W. Va. 36; Smith v. Dorn, 96 Cal. 73, 30 Pac. 1024; Bethany v. Sperry, 10 Conn. 200. In Riggs v. Polk County, 51 Ore. 509, 95 Pac. 5, the issue was the validity of a tax levy by a special school meeting held pursuant to a posted written call. The call so' posted was not signed by the chairman of the board as the statute specifically prescribed, and the tax was held invalid. Kuhl v. Meyer, supra, relates to a special meeting of a church society having a constitution which provided that “notice of all meetings shall be given on the previous Sunday during the service.” The notice of the special meeting was mailed; no attempt was made to give the notice at the previous Sunday service, and no excuse for the failure, except that the pastor was known to be opposed to the purposes of the meeting. The -meeting so held was declared invalid. Two decisions are found in line with our conclusion that, in giving notice of a business meeting of a corporation or managing board, minor irregularities and deviations from the strict letter of its constitution or by-laws necessitated by an unanticipated contingency, and which do not defeat or in substance affect the purpose of the enactments, do not invalidate the meeting held pursuant to such call. The one is Ashley v. Illinois, 164 Ill. 149, 45 N. E. 410, 56 Am. St. 187, where, under a provision requiring the secretary to give notice of a meeting of the board of directors, the president mailed the notices issued by him and to which he affixed, by means of a rubber stamp, the purported signature of the secretary. The notice was held good. The other decision is Bell v. Standard, 146 Cal. 699, 81 Pac. 17, in which the validity of a special meeting of the board of directors of a corporation was unsuccessfully assailed on the ground that the call and notice was signed by the vice president and not by the secretary. The vice president had the power to call the meeting. He was also secretary, but as noted did not sign the notice as such. The court [at page 705] says: “Section 320 of the civil code provides that notice of special meetings, where no provision otherwise is made in the by-laws, must be in writing and must be given by the secretary. It does not, however, — 78 — nor do the by-laws in question prescribe any form of notice, nor require that it shall be signed by the secretary. Hence, any form or manner of written notice sufficient to inform the directors that a special meeting of the directors is called, and of the exact time and place where it is to be held will be valid. (Granger v. Original Empire, etc. Co. 59 Cal. 678, 682). Where the, call is signed by an officer authorized to make it, as in this case, and contains in itself all the essential requisites of a notice, it will answer all the purposes-of a notice under section 320 of the civil code aforesaid. That section merely devolves upon the secretary the duty of giving the notice.” The foregoing is applicable here. We fully appreciate the importance of a faithful observance of the constitution and by-laws of a corporation by its officers and members. The formalities prescribed for calling meetings of the corporation and its managing board must be substantially followed. But it is also important that the business and conduct of corporations should not be hampered and interrupted by some wilful refusal of an officer to perform a mere clerical duty imposed on him. If there be such refusal and the duty is, to all intents and purposes, as well performed by some other officer of the corporation, its business should not be at a standstill, unless some good reason exists therefor. A resort to mandamus to compel a recalcitrant official to perform a ministerial act is at best a slow process because of the right of appeal. We do not think the scribe’s wilful refusal to mail the notices of the call, duly issued, in the case at bar sufficient to destroy the efficacy of the notice which was thereupon mailed by the imperial good Samaritan himself; the notice so given complying with the constitution as herein stipulated and found. The judgment appealed from must therefore be reversed and the case remanded with direction to amend the conclusions of law to conform with the opinion herein. Judgment reversed.