Wirth v. Fehlberg

76 A. 438, 30 R.I. 536, 1910 R.I. LEXIS 55

• Court: Supreme Court of Rhode Island
• Decided: June 29, 1910
• Status: Published

Opinions

Dubois, C. J.

(1)

This is a petition in equity in the nature of quo warranto, brought, under the provisions of Gen. Laws, 1909, cap. 328, to determine the title to the office of directors in the Narragansett Brewing Company, as between the complainants and respondents. The case was tried upon an agreed statement of facts which included as exhibits a copy of the by-laws of said corporation and a sample of the ballots used in the election hereinafter referred to. The complainants and respondents each received votes for said office at the annual meeting of the corporation; the complainants having been orally nominated therefor prior to- the balloting and having their names printed upon the ballots cast at said election) and the respondents not having been nominated for said office otherwise than by having their names written upon the ballots as candidates in opposition to those so orally nominated. The respondents severally received a larger number of the votes so cast at said election than did the complainants, and the respondents were accordingly declared elected to said office and have since performed the duties and claimed the privileges incident thereto. The complainants contend that they were ■duly elected directors at said election, and that the votes cast for the respondents were void because said respondents had not been orally nominated as candidates for said office in accordance with that portion of the provisions of article 1, section 1, of the by-laws of said corporation, which reads as follows: “The election of directors shall be by nomination and ballot, those receiving the largest number of votes being elected.” The •election of directors in the present case was by nomination, and ballot, and those receiving the. largest number of votes, viz.: the respondents, were declared elected. The complainants, in effect, claim that they were elected without opposition, because no other candidates were nominated at the time of their nomination. But nomination is not equivalent to election, and the election is what is in question. There are many ways of ascertaining the will of the majority in an election, as, for instance, by a viva voce vote, or by a show of hands, or by dividing the house, or by ballot, and there are various kinds of ballots. The word “ballot” indicates a little ball, and it is common knowledge that little balls are used in social clubs and other society elections to determine’whether a candidate for membership shall be admitted or not, and usually this is ■determined by the presence of one or more black balls, which are generally sufficient, under the rules, to defeat the election. In such balloting it is absolutely necessary to name the candidate before the balloting in order that the voters may know for or against whom they are voting. And in balloting with paper ballots marked, respectively, "yes” and "no” it would be just as necessary to name the candidate. But where the name is written or printed on the ballot it might well be called a nomination and ballot, because it is itself evidence of both. By simply counting the ballots and names thereon the election, except in the case of a tie vote, is determined. See In Re Voting Machine, 19 R. I. 729. As in corporate elections the result is to be determined by the number of shares >of stock voted for or against the respective candidates, it was eminently proper to provide for a ballot which should contain the names. - of the candidates for corporate offices. Such a ballot was-provided and used at the election in question, as appears in the agreed statement of facts, Exhibit "B,” which reads as follows:

“Exhibit ‘B.’

Mark a cross (X) in the square at the right of each name- you wish to vote for.

The blank lines are for any other name you may care to vote for.

(Vote for nine names only)

It appears from the foregoing that the voters were not only expected to mark the ballots with a cross, but were required to sign their names thereunder; so there was to be no attempt at secrecy in the matter. This form of ballot may well be taken to be a contemporaneous construction of the requirements of the by-law in that respect by the person who framed the ballot; and as it was used, and thus approved, by the stockholders, it may be said to have become theirs by adoption. It contains an invitation to use the blank lines “for any other name you may care to vote for.” The friends of the respondents availed themselves of the opportunity, and elected them. Whatever criticism may be made concerning the nominations or lack of them, there was no subtlety in the election, the signed ballots were conclusive proof of the identity of the persons who assumed this responsibility. It can not be said that they sheltered themselves behind a secret ballot, for these ballots are not, and cannot be, secret.

The largest number of votes have elected the directors. The spirit and, we believe, the letter of the by-law have been complied with. The will of the majority has been definitely ascertained, and the petitioners have no just ground of complaint.

In these circumstances the petition must be denied and dismissed.

Johnson, J., concurs.