Coolbaugh v. Herman , 221 Pa. 496 ( 1908 )

Opinion by

Mr. Justice Potter,

■ This was a quo warranto to try the right of the defendant, Asher W. Herman, to hold the office of director of the Sterlingworth Railway Supply Company, a corporation of the state of Pennsylvania. At the annual election held January 22, 1907, certain shares of stock standing on the books in the name of “ William J. Kuebler, Trustee,” and “ Howard P. Kinsey, Trustee,” and “ Zearfoss and Hilliard, Trustees,” were voted by the parties named as trustees in favor of the defendant as a director. It was claimed by relator that these votes were illegal, and this was conceded by defendant if objection thereto at the election was made in time. It was admitted on the trial that during the election objection to the contested votes was made and a statement under oath furnished to the election officers as required by the Act of May 26, 1893, P. L. 141, but the testimony was conflicting as to whether this was done at the time the ballots were tendered, or later. It is conceded that if the objection was made and statement filed in time, sufficient contested votes must be rejected to change the result of the election so far as the relator is concerned.

The court submitted to the jury the question of fact whether the objection was made and a statement filed at the time the ballots were tendered to the election officers, saying in his charge, “ Now, by time, the law does not mean that he should do it in the next second, or that he should be right there and hand it in just as soon as the other man handed in his ballot; but it must be within a reasonable time.” But the learned judge went on to charge the jury that if there was an interval of. perhaps fifteen minutes after the ballots were tendered before the protest came and was filed with the judges of the election, that the verdict then ought to be in favor of the defendant in this case. Under this charge, the jury found for the defendant, and judgment was entered upon the verdict.

While the testimony is conflicting as to whether the protest was made immediately upon the contested ballots being offered, or ten or fifteen minute's later, it clearly appears from the evidence that at the time when the protest was- made, the election was still in progress, and there was no question as to the identitity of the ballots which had been objected to.

■This case seems to have been tried upon the theory that the election board did not act upon the protest which was filed, and that it was not required to do so, if the protest was not filed substantially at or about the time when the ballots were tendered. But it appears from the evidence that the election board did take action upon the protests, and that they determined to accept the votes as offered, in accordance with the list of stockholders furnished to them by the secretary, and that they pursued this policy in the face of and without regard to the protests. The testimony shows that the election board listened to argument as to the legality of the votes, before the voting was concluded or the result announced; and that they deliberated' upon, and talked over, the matter before deciding whether or not they would exclude the votes which were objected to. Conrad Miller, one of- the tellers, testified: “ The vote was tendered and was accepted and passed upon, and shortly after, I am unable to say just when, those papers were presented, those objections; then we stopped awhile and considered whether it was legal, whether we would pick out those ballots out of the hat again.”

It is apparently conceded by everyone that if the decision of the election board had been ' to exclude, instead of accepting them, there could have been no doubt as to the particular ballots objected to, and no difficulty in identifying and removing them from the receptacle in which they had been deposited.

The real question which arises in this case, is not whether the election board should have taken action respecting the protests, for clearly that is what they did. But the point is, whether the effect of their action is to be permitted to stand, under the plea that they should not have considered the protest at all, because it came a few minutes after the ballot was tendered. We do not consider the reference in the statute to the objection'being taken at the timé the ballot was tendered, as- a peremptory requirement that the objection and the offer of the ballot .shall be simultaneous. The learned judge of the court below concéded this, but he instructed the jury that the protest in order to be effective must follow almost immediately after, the deposit of the ballot. We are not persuaded that the legislature intended that a delay of a few moments upon the part of the objector should render his protest void. No rights were impaired thereby.

“ In general, it may be laid down as a rule, that when a statute directs certain proceedings to be done in a certain way, or at a certain time, the law will be regarded as directory and thé proceedings under it will be held valid, though the command of the statute as to form and time has not been strictly obeyed;, the time and manner not being the essence of the thing required to be done: ” Potter’s Dwarris on Statutes, 221, 22'6 (note 29).

The purpose of the statute under consideration, was to prevent the voting of stock by one-not the owner, or who was an undisclosed trustee. And the essence of the requirement as to the objection, is that it must be made at a time when it may be considered and passed upon by the election officers, and the disputed ballot rejected if unlawfully offered.

Under the facts of the case at bar, no difficulty appeared in identifying the ballots to which objection in writing was made, at the time when the election board were considering the protests. The act of 1893 was passed to further define evidence of stoék ownership and the right to vote thereon. Under its provisions, if the person in whose name the stock stands, and who is offering to vote thereon either in person or by proxy, is not the owner thereof, either in his own right or as active trustee, with the character of his trusteeship disclosed on the face of the certificate or transfer books in connection with his name, he is not entitled to vote the stock. Clearly, therefore, it was the duty of the election judges to reject the votes offered in the name of an undisclosed trust. Obviously, in so far as the stock to the voting of which objection in this case was made, was concerned, the character of the trusteeship was not disclosed, and the votes so tendered should have been rejected.

The plain intention of the statute is to prevent voting by an inactive trustee, or in behalf of an undisclosed trust. It cannot be said that such a requirement is destroying any property right. It is merely regulating the exercise of the right. If the trust be not active, the right to vote the stock is expressly reserved to the real owner by the second section of the act.

The fifth, sixth and seventh assignments of error are sustained.

The judgment is reversed and it is here entered for, the plaintiff.