Mr. Pishoo B. Mahibubani

February 8, 1993 Mr. Pishoo B. Mahibubani Hindu Temple Inc. 1426 Looban Street, Paco Manila S i r : This refers to your letter of January 28, 1993 requesting opinion on the query posed therein. prcd As stated, under the by-laws of Hindu Temple, Inc.,the Board of Trustees shall be elected every two years. One of the trustees who was, elected to the Board for the term 1989-1991 ran for re-election for the term 1991-1993 but was not re-elected. However, one of the elected trustees for the second term resigned and said trustee who lost the election was designated pursuant to the by-laws to fill up the vacancy caused by the resignation. Your query is, will his serving in the Board for the remaining period of the term be considered a consecutive term so as to be covered by the prohibition in the by-laws stating that "no member shall be elected Trustee of the Temple for more than two (2) consecutive terms"? The word "term" in a legal sense means the fixed and definite period of time which the law describes that an officer may hold office and a holder over does not change the length of the term but results in shortening the period served by this successor. (Levin v. Hunter, 6 Ill App 2d 461, 128 NE 2nd 630, cited in 2 Fletcher sec. 344) Being a fixed period, it cannot be split into two or more terms so as to consider the remaining period as another term. Thus, we opine that for purposes of the above prohibition in the by-laws of subject Corporation, the consecutive term referred to therein should be applied only to a director who was elected in the regular election for 1991-93 and was previously elected in the immediately preceding regular election and not to a trustee who merely serves the remaining period of the original term of the resigned director, unless it can be clearly established that the intention of the prohibition is to cover such a situation. In this connection, your attention is also invited to the provision of your by-laws which provides that "any vacancy occurring before the expiration of the term of two (2) years, shall be filled by the Board of Trustees by designating the losing candidate who polled the highest number of votes in the immediate preceding election", which provision appears to be contrary to the Corporation Code. Such provision, which is automatic in manner, cannot prevail over the express provision of Section 29 of said Code which provides that any vacancy occurring in the board of directors or trustees other than by removal by the stockholders or members or by expiration of term, may be filled by election , either by the vote of at least a majority of the remaining directors or trustees, if still constituting a quorum or by the stockholders in a regular or special meeting called for that purpose. The by-laws are subordinate to the Corporation Code, and should therefore not be inconsistent with the latter. In case of conflict between the Corporation Code and by-laws, the former shall prevail. Thus, if the director referred to your letter was not elected in accordance with Section 29 of the Corporation Code, his designation to fill in the vacant position cannot be considered as valid. Very truly yours, (SGD.) ROSARIO N. LOPEZ Chairman