Wright v. Central California Colony Water Co.

McKee, J. This was a proceeding to set aside an election for seven directors of the Central California Colony Water Company, a corporation organized and existing under the laws pf this State, having a capital stock of $30,000, divided into 192 shares o.f stock, of the par value of $156.25 each.

It is claimed that the petitioner was not qualified to inaugurate the proceeding to set aside the election, because he was not a bona fide stockholder, having stock in his own name on the stock books of the corporation, at least ten days prior to the election; and .that .the court did not find on that issue.

But there was no,such issue joined in the case. The petitioner merely alleged that he was a bona fide stockholder at the commencement of the proceeding. Of this allegation there was a denial; and upon the issue raised by the denial, the court finds that the election for directors was held on the 21st of September, 1881, and that on the 20th of September, the day before the [533]election, “the petitioner became a bona fide stockholder in said corporation, and has ever since continued to be a stockholder therein, having stock in his own name upon the stock book of the corporation.”

That being the fact, it may be conceded that the petitioner was not a qualified elector of the corporation, under section 312 of the Civil Code, which provides that a bona fide stockholder, having stock in his own name on the stock books of the corporation,-at least ten days prior to the election, is the only person entitled to vote at a corporate election. But while the petitioner may have been disqualified from voting at the election, he was not disqualified from instituting proceedings to set aside the election, if it was voidable; for by the same section of the Code, “any absent or other stockholder” is authorized to institute such a proceeding. Therefore, as a stockholder of the corporation, the petitioner had legal capacity to institute the proceeding commenced on the 29th of September, 1881.

It is urged, however, that even if the petitioner had the capacity to sue, the proceeding was improperly commenced in the Superior Court, because section 312 of the Civil Code, upon which the proceeding is founded, only authorized the filing of a petition in the District Court to set aside a voidable election; and as, at the time of the- commencement of the proceeding, there was no District Court, and no law which authorized the filing of such a petition in the Superior Court, the proceeding was improperly commenced in the Superior Court.