Points decided.

that the several objections are without merit, it must not be expected that when the appellant fails to appear, we will grope in darkness in search of some fancied error, in order to show that it is not sustained by the facts nor supported by the law.

The judgment of the district court is affirmed.

[No. 715.]

THE STATE OF NEVADA EX REL. WILLIAM H. SEARS, RELATOR, v. W. T. WRIGHT ET AL., CONSTITUTING THE BOARD OF TRUSTEES OF THE ALLEN COMPANY, RESPONDENTS.

The

MANDAMUS-HOW SERVED.-The service of the alternative writ of mandamus upon the president of a corporation: Held, sufficient in this case. better practice is to serve each individual trustee.

DEMAND FOR ANNUAL ELECTION OF TRUSTEES--UPON WHOM SERVED.-It is not necessary that a demand for an annual election of trustees should be made upon the board of trustees when in session; a demand upon each individual trustee of the corporation is sufficient.

MANDAMUS-HOW DIRECTED.-A mandamus directed against the individual

trustees constituting the board of trustees of a corporation is virtually the same as if directed against the board of trustees, and is sufficient. VERIFICATION TO PETITION FOR MANDAMUS.-The verification to a petition for mandamus in the form of a jurat to ordinary affidavits is sufficient. INTERVENTION IN Mandamus.—To entitle a party to intervene in proceedings

for a writ of mandamus, it must be shown that the applicant would either gain or lose by the direct legal operation or effect of any decision that might be rendered. MANDAMUS-INTEREST OF RELATOR.-Before relator can obtain the writ of mandamus, he must establish sufficient facts to show that he has a legal right to have something done by respondents which they have refused to do. IDEM. The relator should not be compelled in an application for mandamus to contest his rights against third persons; the investigation should be limited to such facts as are necessary to determine the rights of the parties properly before the court.

IDEM--MINING STOCK.- Where relator asks that an annual election of trustees shall be held as provided by law, and comes into court the apparent owner of the stock in his possession, and the respondents admit that he paid the assessment thereon as levied by them, and that at his request they issued to him the identical stock presented in court, he has

Opinion of the Court-Hawley, C. J.

shown such an interest in the stock against respondents as entitles him to the writ of mandamus.

ANNUAL ELECTION OF TRUSTEES-RIGHTS OF STOCKHOLDERS.—The legal right to have an annual election of trustees of a corporation as required by law (Stat. 1875, 68) belongs to any stockholder, independent of the number of shares of stock owned by him.

Beatty, J., dissenting:

MANDAMUS-WHEN PROPER REMEDY.--The mere fact that an action or proceeding will lie does not necessarily supersede the remedy by mandamus. The relator must not only have a specific, adequate and legal remedy, but it must be one competent to afford relief upon the very subject-matter of his application.

THIS was an original application to the Supreme Court for a writ of mandamus to compel respondents, W. T. Wright, John Skae, L. Reynolds and Dennis Driscoll, as trustees of the Allen Company, a corporation formed and existing under the laws of the State of Nevada, to forthwith call a meeting of the stockholders of said corporation, for the purpose of holding an annual election of a board of trustees. The form of the jurat to the petition was "subscribed and sworn to before me, this 15th day of May, A. D. 1875. Chas. F. Bicknell, Clerk." This was the only affidavit annexed to the petition.

The other facts are stated in the opinion.

De Long & Belknap and William H. Sears, for Relator. Whitman & Wood, for Respondents.

By the Court, HAWLEY, C. J.:

Relator in his petition alleges: that the Allen Company is a corporation; that its capital stock is divided into one thousand eight hundred and fifty shares; that relator is the owner and in the actual possession of one thousand eight hundred and seventeen shares; that the business and affairs of the Allen Company is managed and controlled by respondents as trustees; "that there has been no election of a board of trustees or other officers, by the stockholders of said corporation, for over three years last past, nor has there been any stockholders' meeting of said corporation called for such purpose; but said trustees, in defiance of the rights of

Opinion of the Court-Hawley, C. J.

the stockholders and in violation of law and the by-laws of said corporation, have refused, and still continue to refuse to call any meeting of stockholders for the purpose of electing trustees;" that respondents, in February last, levied an assessment upon the capital stock of said corporation of five dollars per share; that on May 10, relator then being the owner and holder thereof, presented to respondents certificates of the capital stock of said corporation, representing one thousand eight hundred and seventeen shares; that relator then paid, and the respondents accepted and received, nine thousand one hundred and fifteen dollars for the assessment and costs of advertising the same; that respondents at the same time accepted and received said one thousand eight hundred and seventeen shares and cancelled the same, and issued and delivered to relator certificates of stock of said corporation in lieu thereof, representing one thousand eight hundred and seventeen shares in the name of relator, "which said certificates relator now holds, owns and possesses;" that there has been no election, annual or otherwise, of a board of trustees of said corporation, called or held within three years last past; that relator, on May 14, served upon each of respondents a notice demanding that they should call a meeting of the stockholders for the purpose of electing a new board of trustees, and that respondents have refused to comply with such demand.

Upon presenting his petition, relator obtained an alternative writ, which was served upon "W. T. Wright, the president of the board of trustees of the Allen Company.' 1. Respondents Driscoll, Skae and Reynolds, specially appear and move to quash the writ.

While we think the better practice would be to serve each individual trustee, yet we do not think that under the provisions of the statute it is absolutely necessary so to do. The proceedings are instituted not against respondents as individuals, but in their representative capacity as trustees. It is virtually the same as if commenced directly against the board of trustees. The service, therefore, upon the president must, in the present case, be held sufficient.

Opinion of the Court--Hawley, C. J.

2. Respondent Wright interposes a demurrer and claims: "That the writ doth not state facts sufficient to constitute a cause of action or proceeding against him." His counsel argue that the demand for an annual election should have been made upon the board of trustees when in session, and rely upon the principles announced in The Yellow Jacket S. M. Co. v. Stevenson, 5 Nev. 224, and Hillyer et al. v. The Overman S. M. Co., 6 Nev. 51, to support this position. It is claimed that these cases virtually overrule the case of The State ex rel. Flagg v. The Board of Trustees of the Lady Bryan M. Co., 4 Nev. 400, wherein a similar demand to the one made in this case was held sufficient. We fail to find any conflict in the reasoning of the respective opinions. In our judgment, there is nothing in either inconsistent with the views expressed in the others. In the cases cited by counsel, contracts had been made and knowledge obtained by individual trustees, acting in an individual capacity, and it was sought thereby to bind the corporation, and the court held that the trustees acting individually, and not as a board, could not act for the corporation; that "the trustees represent the corporation only when assembled together and acting as a board."

In the present case, as in Flagg v. Lady Bryan, relator is demanding that the trustees shall do an act which the law especially enjoins upon them as a duty pertaining to their office.

It has been held that in the case of public officers who have failed to perform such duties, it is not necessary to make any demand. (Humboldt County v. The County Commissioners of Churchill County, 6 Nev. 39; Mottu et al. v. Primrose, 23 Md. 501; Commonwealth ex rel. Middleton v. Commissioners of Alleghany Co., 37 Penn. St. 246.) If a demand is necessary, and we proceed upon the theory that in cases like the present it is, we do not think relator was bound to wait until he caught the board in session to serve his notice.

In the case of Flagg v. Lady Bryan, the trustees had not adopted any by-law prescribing the manner in which an an

Opinion of the Court-Hawley, C. J.

nual election should be held, and it was claimed that in the absence of such a by-law the time of calling such an election was in the discretion of the trustees. The court held that it was the duty of the trustees to call the annual election, and they could not avail themselves of the failure to adopt a bylaw "as a reason why they should not do another act which the law imposes upon them as a duty." So, here, it was the duty of the trustees to meet as a board and call the annual election. They cannot excuse themselves for not complying with the law, by showing that they have neglected some other duty, or failed to perform an act which should properly precede the one sought to be enforced.

If respondents' position is correct, how could relator ever obtain relief? He must first proceed to obtain a writ to compel the trustees to hold a meeting of the board, and while it is in session he must make his demand for an annual election. Would not relator have to serve a notice upon the individual trustees demanding them to meet as a board, and if the notice is insufficient in the one case, would not the same argument apply in the other? At most, it is a distinction without any substantial difference. No valid reason, in our judgment, exists against the rule of practice prescribed in Flagg v. Lady Bryan M. Co., and believing it to be correct we approve it.

Respondents also argue in support of the demurrer, that the action is wrongly brought against the individual trustees instead of against the board of trustees. We have already decided that the proceeding is virtually against the board. The fact that it is directed to the individuals constituting the board furnishes no ground for demurrer.

In The Mayor v. Lord, the writ was directed to the mayor and aldermen of the city of Davenport, and it was claimed that the city was incorporated by the name and style of "The City of Davenport," and that the writ ought to have been addressed to the corporation and was erroneously directed to the mayor and aldermen. The Supreme Court of the United States, in passing upon this objection, said: 'The point that the writ was misdirected is not well taken.

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