
    The State, ex rel. Lieghley, Pros. Atty., v. Potter et al.
    (Decided June 13, 1932.)
    
      Messrs. Thompson, Iline & Flory, for relator.
    
      Mr. G. M.. Vrooman, for defendants.
   Vickery, J.

This cause came into this court on a writ of quo warranto, as an original action, the purpose being to oust a certain board of directors of the Northern Ohio Lumber & Timber Company, elected at a regular election of the corporation, and to place in its stead another board of directors that were voted for by the stock represented by the executor of Elmer Teare, which he was denied the right to vote at the election.

It seems that one Elmer Teare, who was the moving spirit of the Northern Ohio Lumber & Timber Company, a corporation, owned some 1,201 shares of the capital stock of said corporation, which represented the majority of the stock in said corporation. The record shows that Elmer Teare died testate about seven years before the happening of the events which resulted in this lawsuit; that Halsey Teare and George Teare, sons of Elmer Teare, were made joint executors under the will of Elmer Teare, deceased, and both qualified as said executors; that thereafter, the stock never having been changed on the books of the corporation, Halsey Teare, one of the coexeeutors who was managing that part of the business of, the estate always voted the shares of stock of Elmer Teare, although they had never been transferred to the executors, as, under the law, they might have been; that later on, prior to the happening of the events herein described, Halsey Teare died, leaving George Teare sole surviving executor of the estate of his father, Elmer Teare; that at this election George Teare appeared with a certificate from the probate judge of the filing and probating of the will of Elmer Teare, certifying that Halsey Teare and George Teare were appointed joint executors, that Halsey Teare had died, that George Teare was the sole surviving executor, and that whatever rights the estate had were conferred upon George Teare as sole surviving executor.

The officers in charge of the election, however, refused to permit George Teare, as such executor, to vote the shares of stock which stood in the name of Elmer Teare, although for a period of about seven years the executor Halsey Teare had voted, said shares, and the officers in charge proceeded to elect a board of directors that was not supported in entirety by the Teare stock. George Teare, representing the stock of Elmer Teare, together with other stock friendly to the Teare interests, likewise elected a board of directors at said meeting. After said antagonistic boards were elected, this action was brought in quo warranto, through the office of the prosecuting attorney, seeking to oust the anti-Teare board of directors thus elected and to have the Teare board of directors inducted into office, who would be the duly elected, qualified, and acting directors of said corporation had the Teare votes been properly admitted.

The case was presented to this court upon a writ of quo warranto and a demurrer to the writ. All the essential facts were set up in the petition, and the attorneys co-operated in presenting the matter in such a shape that it could be fairly tested upon the demurrer. The case was ably argued by learned counsel upon both sides, and many authorities have been presented to the court, both pro and con.

We have examined this question with much care, because it is a very important question, and have come to the conclusion that the relator is entitled to the relief that he seeks; that under the circumstances of this case, whatever by-laws required the notification of the change of stock ownership within ten days before the election had been abrogated so far as they related to the Teare stock, by reason of the long years of concurrence in having this stock voted, even though it stood in the name of Elmer Teare, the deceased owner of the stock; and it would be unjust and unrighteous for a minority of the stockholders to get control of this corporation by refusing to let the majority of the stock vote under the circumstances of this case; and we therefore hold that the plaintiff is entitled to the relief that he seeks. Not only must the board of directors that was elected under the circumstances by a minority of the stockholders after the Teare stock had been refused the right to vote be ousted, as holding office illegally and without being properly elected, but the board of directors that was elected by the votes of the Teare stock should be inducted into office; and such will be the order of the court, that the relator be granted the relief that he seeks, that the board of directors elected at the meeting in which the Teare stock was refused participation be ousted, and that the board of directors elected by the Teare stock be inducted into office. Section 12318, General Code.

A journal entry may be prepared carrying this judgment into effect.

Writ allowed.

Levine, P. J., and Weygandt, J., concur.  