Tidewater Southern Ry. v. Jordan

Mandamus. The petitioner, a railroad corporation, institutes an original proceeding in this court to compel the secretary of state to file in his office a certified copy of a certificate of creation of bonded indebtedness by petitioner. The facts are undisputed, the only return to the alternative writ heretofore issued being in the form of a demurrer for want of facts. The respondent urges but one ground in support of his refusal to file the certificate, and it is conceded that, unless this ground be well taken, the petitioner is entitled to the relief sought.

The proceedings for creating a bonded indebtedness were taken under subdivision 5 of section 359 of the Civil Code. That subdivision provides that arty corporation desiring to

We entertain no doubt of the soundness of petitioner’s contention that the vote of the seven who attended the meeting was all that was required. The statute does not demand the “unanimous vote of all the directors,” nor the “unanimous vote of all the members of the board.” What is called for is the “unanimous vote of the board.” The provision looks to the body constituting a board of directors, rather than to the individuals of whom that board is composed. Section 308 of the Civil Code provides that “a majority of the directors is a sufficient number to form a board for the transaction of business. ...” Accordingly, the seven directors, duly assembled in regular meeting, constituted the board of directors and a resolution adopted by the affirmative votes of all such directors was “adopted by the unanimous vote of the board of directors.”

This view does not lack the support of authority. The case of McLane v. Placerville etc. R. R. Co., 66 Cal. 606 , [ 6 Pac. 748 ], relied on by petitioner, seems, on a careful reading, not to be precisely in point. But other decisions cited fully sustain the proposition.

In Coxon v. Inhabitants of the City of Trenton, 78 N. J. L. 26 , [ 73 Atl. 253 ], the court, in dealing with an ordinance

The Code of Civil Procedure of New York (sec. 191) withholds the absolute right of appeal from the appellate division of the supreme court to the court of appeals “when the decision of the appellate division of the supreme court is unanimous.” Five justices compose the appellate division, but four constitute a quorum. "Where, in hearing an appeal, only four sat, and all four concurred in an affirmance, it was held that the decision was unanimous, within the meaning of the code section. (Harroun v. Brush Elec. L. Co., 152 N. Y. 212 , [ 38 L. R. A. 615 , 46 N. E. 291 ].)

Similar in principle are the decisions holding that provisions requiring the vote of “two-thirds of each house,” or the like, mean two-thirds of the members present and constituting a quorum. (State v. McBride, 4 Mo. 303 , [ 29 Am. Dec. 636 ]; Green v. Weller, 32 Miss. 650 ; Southworth v. Palmyra etc. R. R. Co., 2 Mich. 287 ; Warnock v. Lafayette, 4 La. Ann. 419 .)

The construction thus indicated gives the requirement of unanimity the effect of making it impossible for a majority of a mere quorum, which might be a minority of the entire membership, to adopt the resolution, as such minority might do in the absence of any restriction of this nature. (St. Aemilianus Orphan Asylum v. Milwaukee County, 107 Wis. 80 , [ 82 N. W. 704 ]; Gumaer v. Cripple Creek T. T. & M. Co., 40 Colo. 1 , [ 122 Am. St. Rep. 1024 , 13 Ann. Cas. 781, 90 Pac. 81 ].) Thus read, the provision is reasonable and in harmony with the apparent purposes of the statute. On the other hand, the interpretation urged by the respondent might block or delay the transaction of business of great importance to the stockholders if, on account of illness or for any other

It is ordered that a peremptory writ of mandate issue as prayed.

Shaw, J., Angellotti, J., Lorigan, J., Melvin, J., and Henshaw, J., concurred.