AGO 81-012.

• Case Date: February 09, 1981
• Court: North Dakota

North Dakota Attorney General Opinions 1981. AGO 81-012. OPINION 81-12Date Issued: February 9, 1981 (AGO 81-12) Requested by: Ben Meier, Secretary of State- QUESTION PRESENTED - Whether a corporation is bound by the number of directors stated in the original articles of incorporation when no provision is set forth in the articles of incorporation for the regulation of the internal affairs of the corporation.- ATTORNEY GENERAL'S OPINION - It is my opinion that a corporation is not bound by the number of directors stated in the original articles of incorporation unless the corporation has failed to adopt a bylaw that fixes the number of directors and which is not inconsistent with the law or the articles of incorporation. The fact that bylaws will be adopted to regulate the internal affairs of the corporation need not be set forth in the original articles of incorporation. - ANALYSIS - Section 10-19-37 of the North Dakota Century Code (N.D.C.C.) states, in part, as follows:

10-19-37. NUMBER AND ELECTION OF DIRECTORS. The number of directors of a corporation shall be not less than three nor more than fifteen. Subject to such limitation, the number of directors shall be fixed by the bylaws, except as to the number constituting the initial board of directors, which number shall be fixed by the articles of incorporation. The number of directors may be increased or decreased from time to time by amendment to the bylaws, but no decrease shall have the effect of shortening the term of any incumbent director. In the absence of a bylaw fixing the number of directors, the number shall be the same as that stated in the articles of incorporation. . . . (Emphasis supplied).

Accordingly, the corporation can adopt bylaws which it may amend from time to time setting the number of directors at not less than three nor more than fifteen. If they have not adopted a bylaw setting forth the number of directors, then the number of directors of the corporation shall equal the number of directors set forth in the original articles of incorporation. Section 10-19-53(9), N.D.C.C., states that the articles of incorporation shall set forth "Any provision, not inconsistent with law, which the incorporators elect to set forth in the articles of incorporation for the regulation of the internal affairs of the corporation, including any provision...