Mr. Henry L. Ferraris

November 28, 1989 Mr. Henry L. Ferraris Bureau of Customs M a n i l a Sir : This refers to your letter dated November 6, 1989, requesting opinion on the query posed therein. You alleged that the by-laws of the "Association of Customs Inspectors and Custom Guards, Inc." provides for a yearly election to be held on the third Monday of November and the elected officers will serve a term of one (1) year. However, due to the massive re-organization implemented by the bureau, almost all of the officers and members were transferred to other Divisions, prompting the remaining members thru a resolution to call a snap-election last July, 1989. Your query is: Shall the elected officers serve only up to November, 1989 as mandated by the by-laws or shall they continue up to November, 1990? The manner of filling of vacancies is provided for under Section 29 of the Corporation Code. The same section provides that the director so elected to fill a vacancy shall serve only for the unexpired term of his predecessor in office. The Code provides, thus: "SECTION 29. Vacancies in the office of director or trustee . 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 the vote of at least a majority of the remaining directors or trustees, if still constituting a quorum; otherwise, said vacancies must be filled by the stockholders in a regular or special meeting called for that purpose. A director or trustee so elected to fill a vacancy shall be elected only for the unexpired term of his predecessor in office ..... ....(emphasis supplied). Corollary thereto, the by-laws of subject corporation provide: Article III "SECTION 4. Vacancy . In case of vacancy due to resignation, promotion, transfer, retirement, dismissal, and expulsion of any of the Directors, the Board, if it still constitute a quorum is empowered and authorized to designate from amongst the candidates to directorship who garnered the next highest number of votes in the last preceding election of Board of Directors in the order of ranking as shown in the election returns, to fill the unexpired term and until his successor shall have been elected and qualified." (emphasis supplied). From the foregoing, it is very clear that any member elected to fill-up a vacancy shall serve only for the unexpired term. Hence, an election should be held to elect the regular members of the board/officers. It is well-settled that when the by-laws provide for the time of the holding of an annual meeting for the election of directors, the same should be held at the regular appointed time. Please be advised accordingly. Very truly yours, (SGD.) RODOLFO L. SAMARISTA Associate Commissioner