State Ex Rel. Northeast Property Owners Civic Ass'n, Inc. v. Kennedy ( 1961 )

As I view this case on rehearing, the relators' action in quo warranto to oust the present officers of the association hangs upon the thin, tenuous thread of an invalid "special meeting" which was illegally and improperly called and convened on the same day and at the same time as the regular meeting, but at a different place. In order to prevail in this action, the relators must rely upon the business transacted at this "special meeting" which they now belatedly attempt to designate as a regular meeting. A copy of the notice of the meeting, with all emphasis supplied by them, refutes their claim that it was a regular meeting. The notice, exactly as sent out, postmarked June 11th, is as follows:

"NEPOCA Meeting June 14, 1960 "This Is A Special Meeting "12907 St. Clair Avenue "at 8:00 P. M.

"Stipulated by Lessor:

"This meeting will be open to members only

"We expect to vote to issue free membership for 1960-61 to our 1959-60 members in good standing. There are other vital matters to be voted on at this time.

"We assure you, your own welfare and that of yourneighbors, demand that you attend this meeting.

"Have your membership checked against the records."

This meeting cannot qualify as a "special meeting" for a number of reasons:

1) It is a violation of Article I, Section I of the bylaws, as amended in 1955, which provides that "special meetings" may be called at the discretion of the chair (president). The record shows that the respondents called and convened the regular meeting in accordance with the bylaws which provide that regular meetings shall be held on the second Tuesday of each month at 8:00 p. m. The record also shows that the president, in cooperation with the editor of the NEPOCA News, had always notified the members of the time and place of the regular meeting. It was not until after the regular meeting was properly called that the "special meeting," described above, was improperly and illegally called at the same time but at a different place.

2) It is a violation of Section 1702.18, Revised Code, which provides that in case of a "special meeting" the purpose or purposes for which the meeting is called shall be given either by person or by mail not less than ten nor more than sixty days before the date of the meeting. The three-day notice, therefore, was not sufficient in law.

3) The notice failed to state the purpose of this "special meeting."

4) The notice was unsigned and, therefore, anonymous.

5) The relators, claiming responsibility for the unsigned notice of the "special meeting," failed to give notice to all members of the association of the unusual business they proposed to transact, namely, to vote the present officers out of office and to elect others to take their place, contrary to law.

6) The notice held out a lure or inducement to members to attend this "special meeting" to the effect that they expected to vote free membership for 1960-61 to "our 1959-60 members in good standing." This inducement was illegal and unauthorized and was, in effect, an amendment to Article IV of the bylaws which provides for the payment of dues for the year 1960-61. Article V of the bylaws, concerning amendments, provides the manner in which the bylaws may be amended. It requires that any proposed amendment shall be submitted in writing at a regular meeting which shall be acted upon at the next regular meeting, a vote of two-thirds of those present being necessary to carry. It provides further that the regular notice of the meeting at which such proposed amendment shall be voted upon shall include a notice of the proposed action.

At the regularly scheduled meeting at which a quorum was present, the ouster of the officers was considered and voted down by the membership.

An action in quo warranto is a high prerogative writ and an extraordinary remedy which should be exercised with due caution and discretion. See 45 Ohio Jurisprudence (2d), 614, Section 4.

For the reasons stated, the "special meeting" was void abinitio, and any action there taken was a complete nullity. It follows, therefore, that this "special meeting" cannot form the basis of an action for an ouster of the regularly elected officers in an action in quo warranto. Consequently, the writ in quo warranto should be denied.