State ex rel. Matre v. Bergs

Vinje, C. J.

Whether the right to the office of president of a corporation can be acquired and held by virtue of a contract with the corporation is not necessary to decide in this case, for it is obvious that if it can be so acquired it must be by clear and express contract to that effect. It cannot be by doubtful and ambiguous terms or by inference. Wé have carefully examined the contracts between the parties to this controversy and are unable to find such a contract. They all, except that part of a contract set out above, relate to. the formation of a Wisconsin corporation, the sale of patents, the transfer of property, and the sale of manufactured products, etc. Chief reliance is placed by defendant on that part of the agreement quoted which appoints defendant general manager of the corporation for a period of ten years from its date. We construe this to be a contract of employment in the position of general manager, and not a contract to hold the office of president. Many corporations have both a president and a general manager; the first is an officer of the corporation; the second is, as general manager, only an employee of the corporation. He may bean officer also, but need not be. “The word ‘manager’ is not synonymous with ‘officer,’ ” the New York court said in Thomas F. Meton & Sons v. Isham Wagon Co. 4 N. Y. Supp. 215, where it held that a general manager of a corporation could not verify a pleading when the Code required it to be verified by an “officer” of the corporation.

Much as we sense the desirability if not necessity of defendant’s continuance in office in order to adequately protect his investments in the corporation, we are unable to assist him in this case, which involves only the question as to who is entitled to the office of president. If he has sustained damage by reason of a breach of the corporation’s agreement to employ him as general manager he must seek redress in an appropriate action. He" cannot do so in an action of quo warranto. His only defense thereto is to show that the relator is not entitled to the office.

The fact that the April meeting was duly called was found by the trial court and is not contradicted by the parties, except that defendant claims that such a meeting cannot be called for the election of directors because they are hot “officers” of the corporation within the meaning of the statute. Sec. 182.18.

The directors of a corporation constitute its managing body and are popularly and technically its officers. The following cases found in 6 Words and Phrases, page 4949, all hold the term “officer of” a corporation as used in the statutes or elsewhere includes a director thereof. Torbett v. Eaton, 49 Hun, 209, 1 N. Y. Supp. 614, 616. See, also, Brand v. Godwin, 15 Daly, 456, 460, 8 N. Y. Supp. 339; Second Manhattan Bldg. Asso. v. Hayes, 2 Keyes (N. Y.) 192, 193; Comm. v. Wyman, 8 Met. (49 Mass.) 247, 253; Eastham v. York State Tel. Co. 86 App. Div. 562, 83 N. Y. Supp. 1019; U. S. v. Means, 42 Fed. 599. We have not been able to find any to the contrary.

The argument of the defendant is that the latter part of the statute, providing that in case the corporation for a year or more “has failed or neglected to elect all or any of the members of its board of directors, such court shall,” etc., shows that directors were not intended to be included in the former part relating to calling meetings to elect officers. But the only officers the stockholders can elect are directors. The statute would be meaningless if it provided for calling stockholders to elect officers, if there were none they could elect. The board of directors must elect the president, secretary, and treasurer, the stockholders cannot; so it is clear that at the April meeting the stockholders properly elected the directors.

Defendant claims that under the by-laws he is entitled to the office of president. It will be seen that the by-laws of the corporation set out above place no duties upon the president that are not usually exercised by such officer or that in any way suggest that the hiring of defendant as general manager was a hiring to perform such duties. The office of president and the position of general manager of a corporation are not inconsistent or antagonistic.

Whether or not all the officers elected were nonresidents is a matter that concerns the state alone and must be tested in an appropriate action. Private parties cannot invoke the statute or enforce the penalty upon a corporation for failing to have a resident officer within the state. Our conclusion is that the relator was duly elected president of the corporation, and is entitled to a judgment of ouster.

By the Court. — Judgment reversed, and cause remanded with directions to enter a judgment of ouster.