Powers v. Marine Engineers' Beneficial Ass'n No. 35

KERRIGAN, J.

This is a petition for a writ of

mandamus

to compel the election of officers of the defendant in the manner required by section 321b of the Civil Code.

The defendant, Marine Engineers’ Beneficial Association No. 35, is a nonprofit corporation organized and acting under the laws of California, and of which the defendants Carberry and Searey are alleged to be respectively president and secretary

de facto.

The petitioner is a member of the organization in good standing and has been such ever since he joined it in the year 1910. In 1912 the association amended and re-adopted its by-laws, and in article VIII thereof provided that balloting for the election of its officers should be conducted through the mail. This by-law was and is in conflict with the provisions of section 321b of the Civil Code, which requires ,,the election of officers to be held at a meeting of the members of the association and by ballots or votes cast by the members actually present or by proxy at such meeting. In August, 1915, however, section 599 of the Civil Code was amended so as to permit nonprofit corporations to adopt by-laws similar to the one here in question. In part this section reads as follows: “Corporations now organized, or that may hereafter be organized for purposes other than profit, may, either in their by-laws, ordinances, constitutions or articles of incorporation, provide for. . . . The manner of voting by the members of the corporation, which may be by ballot in the manner provided for by section 321 of this code, or in any other manner provided for by the by-laws, ordinances, constitutions or articles of incorporation of any corporation now organized, or that may hereafter be organized, for purposes other than profit.”

[553]

[1]

It is conceded that since this amendment, nonprofit • corporations such as the defendant, may adopt by-laws permitting the election of officers by balloting through the mail. It is also conceded that no express by-law relating to the election of officers has been adopted by the defendant since the adoption of article VIII of its by-laws in the year 1912, and that since that time and since the amendment of section 599 of the Civil Code in 1915 the officers of the defendant have been elected annually in the manner required by said article VIII, to wit, by balloting through the mail. It also appears from the undisputed testimony of the petitioner taken at the hearing upon this application that he did not vote at the election of officers held in December, 1920, nor in the preceding annual election; indeed, he sought, under the provisions of sections 312 and 315 of the Civil Code, to have the election of the year 1919 annulled and set aside on the ground that it was void because in violation of the provisions of section 321b of the Civil Code. However, before that proceeding could be disposed of on appeal, the time for holding the election of 1920 arrived; and the officers of the association refusing to hold said election in accordance with the requirements of section 321b, and, on the contrary, following the method permitted by said article VIII of the by-laws of the association, the petitioner brought the present proceeding for the purpose already outlined.