JJ. Before MacFarlane, Kline and Reid, follows title and an affirmation of abso * lute ownership, or a qualified property with the circumstances of such qualified Reid, J., March 7, 1924.-Counsel for proprietorship would ordinarily be suffidefendants has filed what is styled in the cient to present a prima facie case caption and in the endorsement "Affida-* If plaintiff's title be clearly and fully vit of Defense in the Nature of a De- set forth with an averment of wrongmurrer," as though it were filed under ful dispossession, the defendant must Section 20 of the Practice Act, overlook-meet this **by setting forth in ing the fact that the action is in replevin his affdavit of defense facts sufficient to and therefore not within the provisions justify his retention of the property." of that act. It is clear that the averments in the The pleadings in replevin are now statement filed here do not meet this governed by the Act of 1901 and its sev- requirement. The only averment from eral amendments, and these are silent as which title in the plaintiff can be deto demurrer. No doubt a common law duced is that the defendants "took the demurrer may yet be filed in such cases, goods and chattels of said G. G. Deitbut, if so, it should have the support of rick, plaintiff, namely (followed by a the usual affidavit that it has not been description of the articles), and unjustly filed for purpose of delay. It is a dilat-detained the same against gages and ory plea, and as such comes within pledges, until, etc." The foregoing does. Amended Rule No. 137, which says: not contain a concise statement setting "No dilatory plea shall be received un- forth the facts upon which plaintiff's less supported by affidavit that it is not title to the goods is based. intended for the purpose of delay." We might, therefore, overrule the demurrer on that ground; but, as there is evidently some misconception of the proper practice, due to an apparent disposition to assimilate and apply the practice in cases governed by the Practice Act to others not within its terms, we shall consider this case and the pleadings on their merits. * * " The statement is further defective in pleading, by way of anticipation the matter of damages claimed to have resulted from the violation of plaintiff's right under a lease. The lease forms no proper part of plaintiff's statement, and the matter of damages claimed for the violation of plaintiff's rights under it may only be set up by plaintiff in reply to the defendant's affidavit of defense when filed. As to the impropriety of such anticipation in the declaration, see Drumgoole v. Lyle, page 467, supra, where it is stated: Being a replevin case, Section 4 of the Replevin Act applies. This provides, inter alia, that "The plaintiff in such action shall file a declaration verified by "It is not necessary that the plaintiff oath, which shall consist of a concise anticipate the defense which may be set statement of his demand setting forth up, and traverse it; to do so, would cause the facts upon which his title to the confusion and reverse the logical order goods and chattels is based * of proof. The plaintiff may not, and is Drumgoole v Lyle, 30 Pa. Sup. Ct., 463, not bound to, know what justification not only rules that the practice in Land- will be presented by the defendant.” lord and Tenant Replevin cases is governed by the Act of 1901, but it also clearly requires a statement conforming to the language of the section above cited. The opinion there proceeds (pp. 466-67): That such matter, here pleaded by anticipation, is only pleadable in reply to defendant's affidavit, is shown by Amended Rule No. 319 of this court which now governs all cases of distraint and must be adhered to. "This has evident reference to the facts relating to his acquisition of the The plaintiff's statement should be property and the condition which entitle amended to comply with the proper him to its possession. Possession usually practice as above outlined. C. P. of Com. ex rel. Neal v. Shields et al. Indiana Co. County, and also caused a writ of quo warranto to issue at No. 197 March Term, 1923, against Dr. W. L. Shields, to inquire by what authority he assumed and exercised, and does now assume, exercise and enjoy, the office of President of the Board of Directors of said Farm Corporations -- Corporate elections - Meetings Quorum -Majority in inter-ers' and Miners' Bank of Jacksonville. est -Stock-By-laws Acts of April 29. 1874, and May 14, 1891. If no special rule exists, it requires a majority of the members of any constituted body of persons, whose presence at or participation in a meeting is required to constitute a quorum, to be present at such meeting in order to render its proceedings valid or to enable it to transact business legally. Where the stock of a corporation consists of 500 shares, and the by-laws provide that quorum," and that "each share of stock shall The respondents in both cases filed answer thereto Feb. 23, 1923. For the purpose of this discussion, we find from the pleadings, inter alia, the following admitted facts: I. That the Farmers' and Miners' Bank of Jacksonville is a corporation created by authority of the laws of the a "majority in interest shall constitute a State of Pennsylvania, with a capital entitle the holder thereof to one vote," pro-stock of 500 shares, and doing business vided that he has held such stock for thirty in the Borough of Jacksonville, Indiana days prior to the annual meeting, a majority of all the stock, that it, 251 shares, is neces-County. sary for a quorum. In such case, where it appears that 106 shares had not been held by their owners for thirty days prior to the meeting, it cannot be shares were eligible for voting purposes, 211 shares present constituted a quorum, and that the election of directors who received successfully contended that, as only 394 212 votes was legal. 2. That section of article 1 of the by laws provides, inter alia: "The business of said bank shall be managed and conducted by a board of eleven directors," &c.; that section 2 of article II of the by-laws of said bank, regulating the meetings of stockholders, provides: "A majority in interest shall constitute a quorum;" and that section 2 of article X of said by-laws provides: "No stockD. B. Taylor and James M. Mack, for holder shall be entitled to vote at the an Acts of April 29, 1874, P. L. 73, and May 14, 1891, P. L. 61, considered. Suggestions for quo warranto. Judgment of ouster. relator. nual meeting of the stockholders unless his stock shall have been held by him in Peelor & Feit and Cunningham & his own right for at least thirty days preFisher, for respondents. vious to the date of such meeting." 3. That the by-laws fix the second Tuesday of January as the date for holdand that W. L. Neal, the relator, on the ing the annual meeting of stockholders, Second Tuesday, 1923, was a stockholder and owner in his own right of 213 shares of the capital stock of said bank, and was a member of the board of directors acting president. and its legally elected and qualified and Langham, P. J., March 16, 1923.- On Jan. 27, 1923, W. L. Neal, relator, by suggestion filed, caused a writ of que warranto to issue at No. 196, March Term, 1923, in the Court of Common Pleas of Indiana County, against Dr. W. L.. Shields, Dr. T. R. Boden, S. F. Boden, Joseph H. Stern and A. G. Stewart, to inquire by what authority they assumed and exercised, and do now as- 4. That on the second Tuesday of sume, exercise and enjoy, the office of January, 1923, the said Farmers' and Directors of the Farmers' and Miners', Miners' Bank of Jacksonville had issued Bank of Jacksonville, located in Indiana and outstanding 500 shares of its capital In the case at bar, as heretofore indicated, we must determine whether stock, the entire amount of its authorization, of which 106 shares were not eligible for voting purposes "at the annual there was a legal quorum present at the meeting of the stockholders," because annual meeting held the second Tuesday not held by owner thereof "in his own of January, 1923, held at the banking right for at least thirty days previous to rooms of the Farmers' and Miners' Bank the date of such meeting.' of Jacksonville, for the purpose of electing a board of directors. 5. That on the second Tuesday of January, 1923, W. L. Neal, the relator, was not present in person or by proxy at the annual stockholders' meeting, of which due notice had been given, and only 214 shares of the capital stock of said bank were represented, of which 213 shares participated in the election of eleven directors, the five respondents named at No. 196, March Term, 1923, were sworn and assumed the office of directors and proceeded to elect W. L. Shields, respondent named at No. 197, March Term, 1923, as president of the board of directors, who assumed the duties thereof. DISCUSSION Section 5 of the Act of April 29, 1874, P. L. 73, as amended by the Act of May 14, 1891, P. L. 61, reads as follows: "Section 5. The by-laws of every corporation created under the provisions of this statute, or accepting the same, shall be deemed and taken to be its law, subordinate to this statute, the charter of the same, the Constitution and laws of this Commonwealth and the Constitution of the United States. directors or trustees shall be chosen annually by the stockholders or members at the time fixed by the by-laws, and shall hold their office until others are chosen and qualified in their stead," &c. * * * The Section 6 of the Act of April 29, 1874, Under the foregoing admitted facts, P. L. 73, provides: "Every such corporathe question of law for this court to tion may determine, by its by-laws, what determine is, Was there a quorum re-number of stockholders shall attend, presented at the organization of the either in person or by proxy, or what stockholders' annual meeting held the second Tuesday of January, 1923? number of shares or amount of interest shall be represented at any meeting to constitute a quorum. If the quorum is If there was a legally constituted quor-not so determined, a majority in interum at the organization of the stockhold-est of the stockholders shall constitute a ers' meeting and a majority thereof quorum." voted for the directors, respondents in interest shall constitute a quorum;' and section 5 of article II provides: "At any stockholders' meeting, each share of stock shall entitle the holder thereof to one vote in person or by proxy." named at No. 196, March Term, 1923, In the case at bar, section 2 of article then the writ should be dismissed, other-II of the by-laws provides: "A majority wise the quo warranto should be sustained and the respondents removed or ousted from exercising the duties and prerogatives of directors of said bank. It follows that the proceedings at No. 197, March Term, 1923, must stand or fall upon the determination of the case at No. 196, March Term, 1923. It is well understood that, if no special rule exists, it requires a majority of the members of any constituted body of persons whose presence at or participation in a meeting is required to constitute a quorum [to be present at such meeting] in order to render its proceedings valid or to enable it to transact business legally. It will be observed that there is no special rule controlling what constitutes a quorum, other than that provided by the by-laws. to wit. "A majority in interest;" and if a stockholder is entitled. to one vote for each share of stock owned in his own right, providing he has held such stock for thirty days prior to the annual meeting, the number of stockholders present at the meeting has nothing to do with a legally constituted quorThe quorum may be present either um. in person or by proxy. It will be ob- shares should have been represented in served that the by-laws fixing the quor-person or by proxy before a legal organium follows the exact language of the sta-zation could be effected. In other words, tute. The respondents at No. 196, March no quorum as required by law in this Term. 1923, rely upon the fact that particular case was present. 106 shares of the 500 shares outstanding were not entitled to vote after said shares had been transferred within thirty days prior to the date of the annual election, and that this changed the number of shares necessary to constitute a quorum. In other words, the respondents claim that, inasmuch as only 394 shares were eligible for voting purposes, that the 214 shares present constituted a quorum, and, therefore, the election of the five directors who received 212 votes were legally elected. The respondents take the position that the 106 shares of stock, not eligible for voting purposes by reason of section 2 of article X, should be deducted from the entire outstanding stock in reckoning “a majority in interest" for the purpose of ascertaining a quorum. In this position we cannot concur. In our judgment, that particular by-law limits the voting power only of the corporation, and in no way affects the quorum as defined in section 2 of article II, heretofore cited. If section 2 of article X had been intended to It must be kept in mind that these 106 limit or in any way modified the requishares, admittedly ineligible for voting sites of a quorum in the event of certain purposes, were not present in person or shares changing hands within thirty days by proxy at the organization or at any of the "annual" meeting, it should have time during the "annual" meeting of the so stated. As the by-laws stand, we canstockholders in question, but were shares not read any modification into them that of the capital stock of the bank for all would change or limit the plain, clear other purposes except voting at a stock-and unambiguous language defining what holders' "annual" meeting. This was an shall constitute a quorum for this cor“annual" meeting of the stockholders for poration to do business. the purpose of electing members of the board of directors. Then, how can it be said that less than a majority of the shares issued and outstanding would constitute "a majority in interest?" The law, and the by-laws, which are a part of the law, specifically state that "a majority in interest shall constitute a quor- It is conceded by both sides that the um." If the relator or any other person question here raised under a similar state had bought up 400 shares of the capital of facts has not been decided by our apstock of this bank, instead 106 shares, pellate courts. In support of what we within thirty days of the "annual meet-have said and cited, we refer to 14 Coring" of the stockholders, and stayed pus Juris, 897, on the question of “maaway from the meeting, could it be said jority in interest." that the remaining 100 shares could have gone ahead and elected a board of directors, provided fifty-one shares of the stock had been represented in person or by proxy? Under the restriction of the law and the by-laws, that would certainly not be "a majority in interest," and it takes such a majority to constitute a quorum in this case. On the question of purpose or motive. of the relator in withholding "his own stock, lawfully entitled to vote," we feel that we are not concerned in this particular form of proceeding. "Charter or statutory provision or provisions in by-laws requiring the presence for the purpose of a quorum, or the vote or assent of a majority of the stockholders, or of two-thirds of them, etc., are generally construed as meaning a majorty or two-thirds of the stockholders in interest and not in numbers, unless a contrary intention appears from the lanAdmittedly, only 214 shares were rep-guage or is to be inferred from the naresented at the organization of this ture and purposes of the corporation." meeting, and only 212 shares participated in the election of directors. In our judgment, that was not enough. At least 251 On the question of quorum, see 14 Corpus Juris, § 1377, page 895: "To constitute a valid corporate meeting, a to exercise, the said offices of directors quorum must be present, and action of of said corporation, from acting thereon the stockholders or members at a meet- and from retaining the custody of the ing at which less than the required num- books, papers and seal of said corporaber of members are present, or less than tion from the persons hereby declared to the required amount of stock is repre- be the directors thereof. sented, is void." It is further ordered and decreed that Also, Craig v. First Presbyterian W. L. Neal and his associates, who were Church, 88 Pa. 42, 47: "It may be asked, lawfully elected directors of said corhowever, what is meant by the majority?poration on the second Tuesday of JanuDoes it mean the concurrence of the ary, 1922, are the duly elected directors major part of those who happen to be of said corporation, and shall hold pospresent at a regular corporate meeting, session of the said offices until others or does it mean a concurrence of a ma- shall be elected in their stead according jority of the whole body? There is this to law and the regulations of said cordistinction between a corporate act to be poration. done by a definite number of persons and one to be performed by an indefinite number. In the first case, it is to be ob-ants pay the costs of this proceeding. served that a majority is necessary to constitute a quorum, and that no act can be done unless a majority be present." It is further adjudged that the defend And now, March 16, 1923, the writ of quo warranto at No. 107, March Term, 1923, sustained and made absolute, and In keeping with the foregoing opinion, tion of president by the Directors of the it is adjudged and decreed that the eleca decree of court will be made in each Farmers and Miners' Bank of Jacksoncase, and it is hereby suggested that at ville, on the second Tuesday of January, as early a date as possible a special meeting of the stockholders of said corpora- L. Shields, was not legally elected 1023, was unlawful, and the defendant, tion for the purpose of electing directors president of said corporation, and that shall be called by the persons declared to judgment be entered in favor of the be the lawful directors at the meeting of Commonwealth, and that said defendant the stockholders the second Tuesday of January, 1922, in accordance with the said office, franchises and privileges of be ousted and altogether excluded from by-laws of said corporation. said corporation. ORDER AND DECREE OF COURT And it is further adjudged that a perAnd now, March 16, 1923, the writ of petual injunction issue, restraining the quo warranto at No. 196, March Term, defendant from exercising, or claiming 1923, sustained and made absolute, and it to exercise, the said office of president of is adjudged and decreed that the election said corporation, from acting therein and held for the choice of Directors of the from retaining the custody of the books, Farmers' and Miners' Bank of Jackson-papers and seal of said corporation from ville, on the second Tuesday of January, the person hereby declared to be the 1923, was unlawful, and the defendants, president thereof. W.-L. Shields, T. R. Boden, S. F. Boden, Joseph H. Stern and A. G. Stewart, were It is further ordered and decreed that not elected directors of said corporation W. L. Neal, who was lawfully elected according to law, and that judgment be president of said corporation on the secentered in favor of the commonwealth, ond Tuesday of January, 1922, is the and that said defendants be ousted and duly elected president of said corporaaltogether excluded from said offices, tion, and shall hold possession of the said franchises and privileges of said corpor-office until another shall be elected in his ation. stead according to law and the regulations of said corporation. And it is further adjudged that a perpetual injunction issue, restraining the defendants from exercising, or claiming It is further adjudged that the defendant pay the costs of this proceeding. |