Messrs. Peck Piñon and Emmanuel T. Santos

May 22, 1991 Messrs. Peck Pion and Emmanuel T. Santos Legaspi Towers 300, Inc. 2600 Roxas Boulevard Corner Vito Cruz, Manila S i r s : This refers to your letter of April 8, 1991, requesting opinion relative to the disputed quorum for membership meetings of Legaspi Towers 300, Inc. prcd In connection therewith, please be advised that the Commission refrains from rendering opinions on queries based on allegations involving justiciable issues which could only be clarified and determined in a proper proceeding. Like in other letter-queries of similar nature, the Commission has adopted the policy of not taking any action on justiciable issues presented before it for the reason that the opinion which may be rendered thereon would not be binding upon private parties who would in all probability, if the opinion happens to be adverse to their interest take issue therewith and contest it before the Court. For this reason, the Commission refrains from giving categorical answer to your query so that it will not be estopped to decide on said issue if brought before it for litigation in a proper proceeding. However, for purposes of information only the following may be imparted. Section 52 of the Corporation Code provides that " Unless otherwise provided for in this Code or in the by-laws , a quorum shall consist of the stockholders representing a majority of the outstanding capital stock or majority of the members in case of non-stock corporations." In like manner, Section 47 of the Corporation Code provides that "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 :...3. The required quorum in meetings of stockholders and members and the manner of voting them." The by-laws may, therefore, provide for the required quorum in meetings. Corollary to the foregoing, the By-Laws of Legaspi Towers 300, Inc. provides: "SECTION 6. Quorum . The presence of members constituting a majority of the total voting power and not delinquent in the payment of their dues and assessments, shall constitute a quorum and a majority vote of those present and voting shall constitute a valid corporate act, except in matters and/or cases where the Corporation Law or the Condominium Act requires the affirmative vote of a greater number. A smaller number of votes insufficient to constitute a quorum may adjourn the meeting from time to time and may take up only social or ceremonial matters." It has to be emphasized, however, that the provision in the by-laws relative to quorum will not hold true in those instances where the Corporation Code or applicable special law explicitly prescribes the proportion of stock holders or members necessary to resolve or carry out a particular corporate proposal. In such cases, therefore, a quorum shall consist of such ratio of stockholders or members as may be declared by statutory provisions. It is a cardinal rule that a by-law providing what shall constitute a quorum is invalid if it is in conflict with the provisions of statute on the subject. Thus, where the number necessary to constitute a quorum is prescribed by statute, a by-law requiring less than the proportion required by the particular legislation is subordinate to the statute (SEC Opinion dated August 24, 1988 addressed to Bito, Lozada, Ortega & Castillo). As to what should be the basis in computing the "majority of the total voting power," which is the required quorum as provided for in the By-Laws of subject Corporation, the following provision of its By-Laws should be observed: "SECTION 3. Annual Meeting Vote of Members .... The members of the corporation shall be entitled to one vote for every ten (10) square meters or a fraction thereof of not less than six (6) square meters of floor area of office/residential unit owner provided, however, that members who are delinquent in the payment of their dues and assessments fixed by the Board of Directors pursuant to the powers granted herein and approved by members of the corporation as required by law, shall not, unless otherwise provided herein, be qualified to vote in any meeting of the corporation until their dues and assessments have been paid in full. For purposes hereof, a member shall be considered delinquent should the monthly dues and/or assessments pertaining to the office/residential unit of the said member remain unpaid after a period of thirty (30) days from the due date thereof. In the annual election of directors, no cumulative voting shall be allowed, and each vote may be cast for as many times as there are directors to be elected but may not be cast cumulatively in favor of one or more candidates." LibLex Please be advised accordingly. Very truly yours, (SGD.) ROSARIO N. LOPEZ Chairman