North Dakota Wheat Growers Asso. v. Moore , 52 N.D. 904 ( 1925 )

This appeal is from an order of the district court of Cass county restraining the defendants, as directors of the plaintiff corporation, pending the determination of the action, from calling or holding a meeting of the directors, or taking other proceedings to summarily consider the question whether the personal plaintiff shall be ousted from his office as president of such corporation. The action is brought upon the theory that, in law, and especially under the law by virtue of which the plaintiff corporation is created, and because of matters contained in its charter, the directors have no right or power to oust the president from his office, or to call or hold a meeting for the purpose of considering such ouster; such matters being claimed to rest solely and exclusively with the members of the corporation, which has no capital stock. The trial court, after full hearing and careful consideration, agreed with the plaintiffs and issued the order appealed from.

The defendants, on the other hand, claim that, in law, generally, the directors of a corporation have the power to oust its officers at will, unless restrained by contract; that the law under which this corporation is created does not purport to make any change in this rule; that the by-laws of the corporation expressly provide for such ouster, and the matters involved are purely internecine and the courts will not meddle with them, except to prevent fraud, which, they say, is not involved in this action. All the assignments of error go to the one question, which is said to be determinative of the case: — "Have the directors of this corporation the lawful right and power to call and hold a meeting to consider the subject of ousting this president of the corporation, at will, so long as its by-laws are complied with?"

Upon the argument, a question was raised as to whether the by-laws were properly before this court. Without determining the question of the sufficiency of the authentication or certification of the by-laws, we shall consider them in the record and before us for consideration.

It appears from the by-laws that the annual meetings of members is held on the second Tuesday in July to elect ten directors, out of an elective total of twenty, one director, to fill the quota, being appointed by the president of the Agricultural College, and that the annual meetings of directors shall be held immediately after such an election. At such meetings the directors elect the officers, who are to serve until their successors are elected and qualified. The by-laws provide for the calling of general and special meetings, the time of notice, the service of notice, etc.

On the argument, it was conceded by appellants that if a decision should be rendered in this case on that day it would be impossible for the appellants to call and hold another meeting of the directors to consider the subject involved in the order appealed from, after such decision and before such annual meeting of the members and directors. It was suggested to appellants' counsel that, under the circumstances disclosed, the questions here might be rendered moot; but he urged that, while the determination of the questions might have no effect in the present action, they ought to be determined because the plaintiff corporation had more than fifteen thousand members in the State, and that, therefore, there was a public interest in their determination.

Appellate courts, as a rule, decline to decide questions which have become moot. "It is not within the province of appellate courts to decide abstract hypothetical or moot questions disconnected from the granting of actual relief, or from the determination of which no practical relief can follow." 3 C.J. 358. Where, however, the matter in controversy appears to be one of "great public interest" and involves the "authority and power" of public officials, the appeal will not be ignored as a moot question. State ex rel. Dakota Trust Co. v. Stutsman, 24 N.D. 68, 139 N.W. 83, Ann. Cas. 1914D, 776. See also, United States v. Hamburg-Amerikanische Packet Fahrt-Actien Gesellschaft,239 U.S. 466, 60 L. ed. 387, 36 Sup. Ct. Rep. 212. The present case, however, does not fall within that exception. It is true that the questions may be important to a large number of individuals in the state; but that falls far short of making them matters of such general public concern as to warrant a court in applying the exception, instead of the rule. The plaintiff is a mere private corporation, no matter how many members or stockholders it may have. It deals with a commodity of much importance to the public at large in the State; but, whether it deal well or ill with that commodity, its transactions are all of a private nature, affecting, so far as appears, no one but its members. It may handle wheat or it may not, and the public at large can not complain, there being no question of unlawful monopoly suggested.

That the question for decision is moot is apparent from the record, in addition to the concession of counsel. If the order appealed from be reversed, still the defendants are effectually restrained from acting before their annual meeting by their conceded lack of time in which to act, legally. If the order be affirmed, it gives the plaintiffs no further assurance, because of that same lack of time. In other words, the rights of both parties will remain exactly the same, whichever way the matter may be determined, or whether it be determined at all.

It results that the appeal should be, and is, dismissed.

CHRISTIANSON, Ch. J., and BIRDZELL, JOHNSON, and NUESSLE, JJ., concur.

BURKE, J., being disqualified, did not participate; WOLFE, Dist. J., sitting in his stead.