CORPORATIONS - OFFICERS - PRESIDENT CONCURRENTLY HOLDING ANOTHER OFFICE IN A CORPORATION.
In the absence of a contrary provision in the corporate articles or bylaws, the president of a domestic corporation to which the provisions of Title 23A RCW apply, may concurrently hold any other office in the same corporation except the office of secretary; conversely, under such circumstances the secretary may hold any other office in the corporation except the office of president.
- - - - - - - - - - - - -
March 20, 1968
Honorable William A. Gissberg
State Senator, 39th District
Route 1, Box 41
Lake Stevens, Washington 98258
Cite as: AGO 1968 No. 13
By letter previously acknowledged, you have requested our opinion on a question which we paraphrase as follows:
In the absence of a contrary provision in the articles or bylaws, may the president of a domestic corporation, to which the provisions of Title 23A, Revised Code of Washington (Washington Business Corporation Act) apply, concurrently hold any other office in the same corporation?
We answer your question in the affirmative, subject to the single qualification set forth in the following analysis.
By way of background, we would point out that since July 1, 1967,1/ Washington has a new basic law governing business corporations. This law, called the Washington Business Corporation Act, is substantially patterned after the model business corporation act, which was prepared as a research project of the American Bar Foundation. Section 161 of the act provides [[Orig. Op. Page 2]] for its application to existing corporations to the following extent:
"The provisions of this act shall apply to all existing corporations organized under any general act of this state providing for the organization of corporations for a purpose or purposes for which a corporation might be organized under this act, where the power has been reserved to amend, repeal or modify the act under which such corporation was organized and where such act is repealed by this act. Neither the enactment of this title nor the amendment or repeal thereof, nor of any statute affecting corporations, shall take away or impair any liability of cause of action existing or accrued against any corporation, its shareholders, directors or officers."
The provision of the new act which is relevant to your inquiry is RCW 23A.08.470, which reads in pertinent part as follows:
"The officers of a corporation shall consist of a president, one or more vicepresidents as may be prescribed by the bylaws, a secretary, and a treasurer, each of whom shall be elected by the board of directors at such time and in such manner as may be prescribed by the bylaws. Such other officers and assistant officers and agents as may be deemed necessary may be elected or appointed by the board of directors or chosen in such other manner as may be prescribed by the bylaws. Any two or more offices may be held by the same person, except the offices of president and secretary." (Emphasis supplied.)
This section is identical to § 44 of the model act. According to the writers of the definitive treatise entitled "Model [[Orig. Op. Page 3]] Business Corporation Act, Annotated,"2/ this provision was modeled after similar sections in the corporations laws of Alaska, Colorado, Illinois, Iowa, North Carolina, North Dakota, Texas, Wisconsin and the District of Columbia. See, Model Business Corporation Act, Annotated, § 44, P 2.02. The statutes of each of these jurisdictions are reported by the writers of the treatise to allow the same person to hold any two or more corporate offices except the offices of president and secretary.3/
In this regard, it is further to be noted that Hornstein, Corporation Law and Practice, states that as a general rule, unless barred by statute, articles, or bylaws, a single individual may hold several corporation offices, and then cites § 44 of the model business corporation act, only as prohibiting the same person from holding both the office of president and secretary. Vol. 1, Hornstein, Corporation Law and Practice, § 512, p. 630. Neither Hornstein nor any other text writer has ever suggested that the provision has any broader application than that.
The approach taken in § 44 of the model act adopted by our legislature as part of the new Washington act is notably dissimilar to the provision contained in the old Washington business corporation act. RCW 23.01.330, which covered the same subject in the old act, provided in material part as follows:
"(1) The board of directors shall elect a president, a secretary and a treasurer, and may elect one or more vice presidents. No one of said officers, except the president, need be a director, but a vice president who is not a director cannot succeed [[Orig. Op. Page 4]] to or fill the office of president. Any two of the offices of vice president, secretary and treasurer may be combined in one person." (Emphasis supplied.)
In AGO 61-62 No. 179, copy enclosed, we applied the rule of expressio unius est exclusio alterius to that provision and concluded that:
". . . since RCW 23.01.330 authorizes 'any two of the offices of vice president, secretary and treasurer' to be combined in one person but does not mention the office of president, this office is of the opinion that under Title 23 RCW, a president of a corporation may not concurrently hold the office of treasurer in the same corporation."
Conversely, by application of the same rule and reasoning, it is to be seen that the new statute authorizes any two offices except the office of president and secretary to be held by the same person.
Therefore, in answer to your question, we conclude that in the absence of a contrary provision in the corporate articles or bylaws, the president of a domestic corporation may concurrently hold any other office in the same corporation except that of the office of secretary; and, by the same token, the secretary may hold any other corporate office except that of president.
We trust the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
ARTHUR W. VERHAREN
Assistant Attorney General
*** FOOTNOTES ***
1/The effective date of chapter 53, Laws of 1965, codified as Title 23A, RCW.
2/This three volume treatise, which was prepared as a research project of the American Bar Foundation and published by the West Publishing Company, contains a comprehensive analysis of the business corporation acts of all the states, the District of Columbia and Puerto Rico, and compares such acts with the provisions of the model act.
3/South Carolina has a similar provision except that it does not forbid the same person from holding any two offices.