State ex rel. Giannacopoulos v. Cajoleas , 6 Pelt. 337 ( 1922 )

Dinkelspiel;

Plaintiffs alleging that they compose more than one-half of the members of the congregation of the Hellenic Orthodox Oh’ uoh of theCity of Hew Orleans, petitioned the Civil District Court for the Parish of Orleans, for the issuanoe of a writ o' man .amu" direoted against George J. Oajoleas, defendant, President of said ohuroh, compelling him to oall forthwith, a '•peoial me «ting of its oongregation or tc show cause to the contrary, on a da/ io be fixed by the Court.

Amongst the reasons set out in plaintiffs’ petition as to why they wr-re entitled to the relief prayed for, are the following:

That the rules, repletions and by-laws of said corporation -itotj. Is that speoial meetings of its members snail be aa..led by ti: = ^resident, whenever requested so to do, by not les3 than ow. — third of its members. IPlalntiffs petition, Section 6.)

c in utter disregard of the rights of petitioners ■r.d other?, being more than one-n&ir of the members of the oongrega.ior., u.e defendant, Pr .?i-',ent of said oongregation, had fai led art refused to oall the speoial meeting as requested, • m it ;h mandatory and his duty to do, that petitioners were witr;-ut relief by ordinary process of law, o.ud it was naoesst-y fji a writ of mandamus tc be issued compelling him so Oj. (bu-.cions 9 and 10 plaintiffs' petition)-

The Judge aqua Issued an order, in oompliance with the r j¡ plaintiffs' petitiou ordering che issuanoe of an als.-iiti' -. wr:t oi mandamus and fixing r. date rcr ice return.

Defendant excepted to piainciffe' petition on the junf thst >.vme set rorth no legal o'.use or aotlun, a*d al- ?> fil»d ar. '-■newer to the- merits in the event cnac the exception above noted wae overruled.

The matter was disposed of by the Judge aqua on the exoeption of no oause of action, whioh was maintained by him, the relief prayed for by plaintiffs being denied, and from this decree an appeal was taken to this Court, that being the sole issue presented for adjudication.

In the written opinion of the Judge aqua in deciding the exception of no oause of aotion, he gave as tie reason for sustaining the exception, that to oompel the President to -'all special meetings prayed for by a majority of ocngregaticn would force him to do a vain thing; foi whi1 e i* was true that under the oharter of the corporation, one-third of the members thereof had the undoubted right to demand that a specie! meeting be oalled upon their written request to th;t effeot, yet if this particular meeting wes oalled, the thing, whioh according to the written request for said meeting they intended to disous.s at that meeting and possibly aot upon, were expressly delegated to its Board of Trustees, and therefore, under their own oharter, having no legal right to do those things whioh they desired to do at this meeting, the oalling of same would be a -arce, unnecessary and serve no useful purpose and for those reasons, mainly, he he declined to issued the writ of mandamus prayed for and maintained the exception of no oause of aotion, denying plaintiffs the relief prayed for by them.

Be that as it may, we are of opinion that under Article 5 of the charter of this corporation, one-third of the members thereof have an undoubted right to demand tnat a speoial meeting of its members be oalled and it Is mandatory upon its President, upon due proof that suoh meeting has been asked for by the required number of members,(one-third), to call same, it being no concern of his what purpose or what object the meeting was to be oalled-

It may be equally true, as stated by the learned Judge aqua,, that the members attending this meeting, would have no power to do those things whioh they might propose to do, or might even go so far as to do them in spite of the oharter provisions to the oontrary, but oonoeding this to be a fact, it is our opinion that at this time, the Court has no oonoern with these matters, leaving to any one who might be aggrieved by what was done at this special meeting,fiheir undoubted rights granted them by thCir oharter, to seek redress at the hands of the proper tribunal.

The oharter of the corporation having in Artiole 5 provided when and how an extraordinary (or speoial) meeting of the community should be oalled, and as far as we oan find, there being no exceptions or limitations in said charter to the soorksagc oontrary, we are of opinion that it was the plain duty of the President, as the head of this organization to have oalled this meeting when legally requested to do so by one-third of its members, and failing and declining so to do, the only remedy left to the relatera was to apply to the Court to compel him to perform his purely ministerial duty through a writ of mandamus, directed to him by the proper Court, whioh remedy the law provides is proper under oiroumstanoes of this nature.

"When the charter, by-laws, or general laws makes it the duty o.f offioers to oall a stockholders' meeting to eleot directors or transaot other corporation business and they wrongfully refuse to do so, mandamus will lie at the instance of the stockholders."

Fletcher Cyclopedia Corporations, Vol. 3. p. 2720.

For the reasons assigned, it is ordered, adjudged and deoreed, that the Judgment Appealed from be annulled, avoided and reversed, and that the exception of no cause of action filed by George J. Cajoleas, defendant and appellee herein, to plaintiffs' petition, be and same is hereby overruled.

It is further ordered, adjuu^au and deoreed, that the alternative writ of mandamus issued herein, be made afee. '©ótete aha that the said George J. Cajoleas, President of the Hellenic Orthodox. Church be and he is hereby m’dssad to oall a special meeting of the community or th ss provided of the congregation forthwith as is/jucsjcsat for in Artiole 5 of the oharter of said corporation, and the said George J. Cajoleas pay oosts of both Courts.

-Judgment reversed and application for mandamus granted-