Mr. Rodolfo B. Valdez

September 3, 1992 Mr. Rodolfo B. Valdez Wack Wack Golf and Country Club Mandaluyong, Metro Manila S i r : This refers to your letter of August 25, 1992 requesting opinion on the following queries: 1. In the absence of a quorum ,can Wack-Wack Golf and Country Club transact business, like proclaiming the winners in the election of directors? llcd 2. Whether or not the votes cast constitute a majority, can there be a valid election of directors where no actual meeting was held on the date of annual meeting for lack of quorum ? 3. Is there a need to hold a new election of directors for the postponed annual meeting? The pertinent provision of the Corporation Code provides: "SECTION 24. Election of directors or trustees . At all elections of directors or trustees, there must be present ,either in person or by representative authorized to act by written proxy ,the owners of the majority of the outstanding capital stock, a majority of the members entitled to vote .The election must be by ballot if requested by any voting stockholder or member. In stock corporations, every stockholder entitled to vote shall have the right to vote in person or by proxy the number of shares of stock standing, at the time fixed in the by-laws, in his own name on the stock books of the corporation, or where the by-laws are silent, at the time of the election, and said stockholder may vote such number of shares for as many persons as there are directors to be elected or he may cumulate said shares and give one candidate as many votes as the number of directors to be elected multiplied by the number of his shares shall equal, or he may distribute them on the same principle among as many candidates as he shall see fit: Provided, That the total number of votes cast by him shall not exceed the number of shares owned by him as shown in the books of the corporation multiplied by the whole number of directors to be elected: Provided, however, That no delinquent stock shall be voted. Unless otherwise provided in the articles of incorporation or in the by-laws, members of corporations which have no capital stock may cast as many votes as there are trustees to be elected but may not cast more than one vote for one candidate. Candidates receiving the highest number of votes shall be declared elected. Any meeting of the stockholders or members called for an election may adjourn from day to day or from time to time but not sine die or indefinitely if, for any reason, no election is held, or if there are not present or represented by proxy, at the meeting ,the owners of a majority of the outstanding capital stock, or if there be no capital stock, a majority of the member entitled to vote ." (Emphasis supplied) It is clear from the aforequoted provision that for the election of the members of the Board of a non-stock corporation, it is mandatory that at least a majority of all members entitled to vote must be present either in person or by proxy at the meeting held for the purpose. Thus, in the absence of the required quorum, there cannot be a valid election of the Board. The Corporation Code further provides that a corporation cannot adopt any procedure of election of the Board different from the manner provided for under the aforecited provision. "SECTION 47. Contents of by-laws . Subject to the provisions of the Constitution, this Code, other special laws, and the articles of incorporation, a private corporation may provide in its by-laws for: LLphil xxx xxx xxx 7. The manner of election or appointment and the term of office of all officers other than directors or trustees ; ...(Emphasis supplied) It is the first requisite of validity that by-laws must be consistent with, and not repugnant to or in contravention of the laws of the land (8 Fletcher Sec. 4185).The by-laws are subordinate to the articles of incorporation as well as the Corporation Code and related statutes, and should therefore not be inconsistent with any of these. Otherwise, they would have no binding effect (Campos and Lopez Campos, Corporation Code, citing Fleischer vs. Botica Nolasco, G.R. No. 23241, March 14, 1925, Phil. 584 (1925). Thus, in case of conflict between the Corporation Code and by-laws, the former shall prevail . In the light of the foregoing, your first and second queries are answered in the negative and the third one in the affirmative. LLjur Please be advised accordingly. Very truly yours, (SGD.) ROSARIO N. LOPEZ Chairman