Philippine Medical Association

January 4, 1985 Philippine Medical Association P. O. Box 4039 Manila Attention : Dr . Antonio D . Talusan Sir : This relates to your letter dated December 13, 1984, informing this Commission that an Election Code was promulgated by the PMA Board of Governors in its meeting held on October 21, 1984 pursuant to Article XII of its by-laws. A specific provision of said Election Code is quote hereunder: "Incompatible Position: Before filing his Certificate of Candidacy, a candidate who holds a position in the Board of Governors, Commission on Audit, Commission on Elections, Organizing Committee of the Annual Convention, and Standing or Ad hoc Committee of the Board must resign from such position and annex a copy of his letter of resignation to his certificate of candidacy. He may later, with the permission of the Commission on Elections, return to such position should it remain vacant, if it turns out that he is the only candidate to the office for which he has filed a Certificate of Candidacy." Hence, this present request that the aforequoted provision of the Election Code be declared null and void and ordered deleted from said Code in view of the reasons stated in your letter. Anent thereto, the pertinent provisions of your New By-Laws provide thus: "ARTICLE VII. Board of Governors . xxx xxx xxx SECTION 4. Term. A governor shall hold office for a term of one year or until his successor shall have been duly elected and qualified. . . . ." "ARTICLE IX. Commission on Elections . SECTION 1. The Commission on Elections shall consist of six (6) members who shall have terms of three (3) years each, . . . ." "ARTICLE X. Commission on Audit . SECTION 1. There shall be an independent Commission on Audit composed of a Chairman and two (2) members for a term of three (3) years on a staggered basis. . . . ." "ARTICLE XI. Committees . cdll xxx xxx xxx SECTION 2. The members of the Standing Committee shall be appointed by the President with the concurrence of the Board of Governors for a term of three years arranged on a staggered basis. . . . ." The so-called election laws adopted by a corporation are mere "rules" on motion to meet a particular situation, partake of the nature of resolutions and are not operative as by-laws . (8 Fletcher, Cyc. Corp., 1966 Rev. Vol., sec. 4167, at 626, citing Hornady v. Goodman, 167 Ga. 555, 146 S.E. 173). "The by-laws of a corporation are, in effect, its constitution, and will prevail over a resolution of a board of directors." Rosenfield v. Inland Iron Works, Inc., 267 Ill. App. 254, citing Fletcher Cyc. Corp. (1st Ed.), sec. 481. "Where resolution of directors is inconsistent with corporation's by-laws, by-laws will prevail." (Ibid). Authorities are replete on this matter. While it is true that under Article XII of your new by-laws, there shall be an Election Code promulgated by the board of governors that shall govern the conduct of your election, it is believed that such rules, regulations and resolutions must not be inconsistent with the by-laws and hence, do not have the force and effect of amending or repealing the by-laws. (Fletcher, Supra, sec. 4167, citing Flaherty v. Portland Longshoremen's Benev. Society, 99 Me. 253, 59 A 58). Inasmuch as your by-laws fixes the term of office of the members of the Board of Governors, Commission on Audit, Commission on Elections and Standing Committees, the respective term of offices of the members thereof cannot be changed by the establishment of a different rule as embodied in your Election Code. Thus, it is our opinion that the aforequoted provision of your Election Code is contrary to your by-laws and therefore void. Please be guided accordingly. Very truly yours, (SGD.) MANUEL G. ABELLO Chairman