supplying of members in the room of such as are removed by death, or otherwise, is said to be a power incident to and necessarily iinplied in every aggregate corporation, from the principle of self-preservation.a But it seldom happens that an opportunity is afforded for the applica.

tion of this principle, because the power of election 294" must be exercised *under the modifications of the

charter or statute, of which the corporation is the mere creature, and which usually prescribes the time and manner of corporate elections, and defines the quali. fications of the electors. If this be not done to the requi. site extent in the act or charter creating the corporation, it is in the power of the corporation itself, by its by-laws, to regulate the manner of election, and the requisite proof of the qualifications of the electors, in conformity with the principles of the charter.b

and organization of corporate meetings and all cases relating thereto, er. amined in Angell f Ames on Corporations, ch. 14, 452. 3d edit. The New York Revised Statutes, vol. ii. p. 555. sec. 27, have declared, that when any power, authority or duty is confided by law to three or more persons, or whenever three or more persons, or officers, are authorized or required to perform any act, the power may be exercised by a majority, upon a meeting of all the persons so entrusted or empowered, unless spe. cial provision be otherwise made. It is also a general principle of law, of which this statute provision is partly declaratory, that in a case of mero private authority and confidence, uuless provision be made to the contrary, the whole body must meet and agree in the decision ; but that in matters of public concern, or in some respects of a general nature, and all meet, the act of the majority will bind. Commonwealth v. Canal Com. 9 Watts' Rep. 466. Green v. Miller, 6 Johns. Rep. 38. Vide Infra, p 633. On a reference to three arbiters if all meet, the award of two is valid. Meiklejohn v. Young, Stuart's Lower Canada Rep. 43. But this is contrary to the general rule.

• Hicks v. Town of Launceston, 1 Rol. Atr. 513, 514. 8 East's Rep. 272. n. S. C.

• 2 Kyd on Corp. 20—30. Though the charler gives to a select bedy the power to make by-laws, it does not divest the body of corporations at large of the same right. King v. Westwood!, 4 Barnw. of Cresa. 781. Lovell v. Westwood, 2 Dow of Clarke's P. C. Pep. 21. There is this dis(inction on the subject, that if the power of making's be committed to the corporate body at large, they may delegate that power to a select

It was decided, in the case of Newling v. Francis,a that when the mode of electing corporate officers was not regulated by charter or prescription, the corporation might make by-laws to regulate the elections, provided they did not infringe the charter.b And in the case of The Commonwealth of Pennsylvania v. Woelper,c it was held, that a corporation might, by a by-law, give to the president the power of appointing inspectors of the corporate elections, and also define by by-laws the nature of the tickets to be used, and the manner of voting. All such regulations rest in the discretion of the corporation, provided no chartered right or privilege be infringed, or the law of the land violated. It is settled, that a by-law cannot exclude an integral part of the electors, nor impose upon them a qualification inconsistent with the charter, or unconnected with their corporate character.d Though in the case of elections in public and municipal corporations, and in all other elections of a public nature, every vote must be personally given ;e yet, in the case of monied corporations, instituted for private purposes, it has been held, *that the right of voting by proxy might*259 be delegated by the by-laws of the institution when the charter was silent.f

body representing them; but if the power be given to a select body, they cannot delegate that power. · Term Rep. 189.

See, also, Rex v. Spencer, 3 Burr. Rep. 1827. 2 Kyd on Corp. 26– 31. King v. Westwood, 7 Bingham's Rep. 1.

* 3 Serg. f Rawle, 29.

• Rex v. Spencer, 3 Burr. Rep. 1827. The general law on the subject of valid by-laws, is well digested in 1 Woodd. Lec. 495—500. No director can be excluded by the board of directors of a banking institution, from inspecting the books of the bank, and the court will. in a proper case, enforce the right by mandamus. It must, however, be in a case of a clear right, and for some just or useful purpose. The People v. Throop, 12 Wendell's Rep. 183. Hatch v. City Bank of New-Orleans, 1 Robinson's Louis. Rep. 470. The right in this last case was considered as belonging to the individual stockholders.

• Case of the Dean and Chapter of Fernes, Davies' Rep. 129. AttorDey General v. Scott, 1 Vesey, 413.

i The State v. Tudor, 5 Day's Rep. 329. In New-York, (R. S. vol. i.

It is a question not definitely settled, whether the officers of a corporation, who are directed to be annually elected, can continue in office after the year, and until others are duly elected, in cases where the time of election under the charter has elapsed, either through mistake, accident, or misfortune, and there is no provision in the charter for the case. In the case of public officers who are such de facto, acting under color of office by an election or appointment not strictly legal, or without having qualified themselves by the requisite tests, or by holding over after the period prescribed for a new appointment, as in the case of sheriffs, constables, &c.; their acts are held valid as respects the rights of third persons who have an interest in them, and as concerns the public, in order to prevent a failure of justice.a

604.) at the election of corporate officers in corporations of a private nature, except library, religious and monied corporations, stockholders may vote by proxy. In Phillips v. Wickham, 1 Paige's Rep. 593, the chancellor doubts the validity of the right of voting by proxy, when the power is not given, either expressly or impliedly, in the act creating the institution. And in Taylor v. Griswold, 2 Green's N. J. Rep 223, in the supreme court of New Jersey, after a full and learned discussion, it was held to be a principle of the common law, that where an election depended upon the exercise of judgment, the right could not be deputed; and that it required legislative sanction, before any corporate body could make a valid authorizing members to vote by proxy. The authority of the case of the State v. Tudor, may, therefore, be considered as essentially shaken.

- The King v. Lisle, Andrews Rep. 163. The People v. Collins, Johns. Rep. 549. Jones v. Gibson, 1 N. H. Rep 266. Johnston v. Wilson, 2 Ibid. 202. Anon., 12 Mod. Rep. 256. In the matter of the M. and H. Railroad Co., 19 Wendell, 135. 145. Plymouth v. Painter, 17 Conn Rep. 585. The State v. Allen, 2 Iredell's N. C. Rep. 183. Sprague v. Bailey, 19 Pick. Rep. 436. In this last case, it was held that a collector of taxes was not responsible for the regularity of the town meeting, or the validity of the votes at the meeting at which the tax was granted. It is a usual and wise provision in public charters, that the officers directed to be annually appointed, shall continue in office until other fit persons shall be appointed and sworn in their places. This was the case in the charter granted to the city of New York, in 1686, and again in 1730. By the English statute of 1 Victoria, ch. 78, for the regulation of municipal corporations, it was declared that the election of persons to

This general principle has been applied to the officers of a private monied corporation, so far as concerns the rights of others, a and the sounder and better doctrine, I apprehend to be, that where the members of a corporation are directed to be annually elected, the words are only directory, and do not take away the power incident to the corporation to elect afterwards, when the annual day has, by some means, free from design or fraud, been passed by.b *The statute of 11 Geo. I. c. 4., was made express

*296 ly to prevent the hazard and evils of a dissolution of the corporation, from the omission to elect on the day; and it seems to admit of a question whether the statute was not rather declaratory, (for so it has been called,) and introduced to remove doubts and difficulty. The election,

corporate offices should not be questioned for want of title in the persons presiding at such elections, provided such persons were in actual possession of, and had taken upon themselves the execution of the duties of such office.

a Baird v. Bank of Washington, 11 Serg. f Rawle, 411. Bank of U. S. v. Dandridge, 12 Wheaton, 64. Lehigh Bridge Co. v. Lehigh Canal Company, 4 Rawle, 1.

• Hicks v. Town of Launceston, 1 Rol. Abr. 513. Foot v. Prowse, Mayor of Truro, Str. Rep. 625. 3 Bro. P. C. 167. S. C. The Queen v. Corporation of Durham, 10 Mod. Rep. 146. The People v. Runkel, 9 Johns. Rep. 147. Trustees of Vernon Society v. Hill, 6 Cowen's Rep. 23. M‘Call v. Byram Manufacturing Co., 6 Conn. Rep. 428. Nashville Bank v. Petway, 3 Hump. Tenn. Rep. 522. But see Rex v. Poole, 7 Mod. Rep. 195. Cases temp. Hardw. 20. 2 Barnard's Rep. K. B. 447. S. C. Contra; and the opinion of the chancellor, in Phillips v. Wickham, 1 Paige's Rep. 590, seems also to be contra. In the case of Rex v. Poole, (Cases temp, Hardw. 20.) Lord Hardwicke speaks doubtfully of the common law on this point ; thuugh he refers to the case of Landsdown, in Roll's Abridgement, where an election eight days after the charter day was held good, for that the day was only directory. But he admitted, that the mention of hours on the election days was merely directory, and not restrictive. In the case Ex parte Heath and others, 3 Hill, 42, it was held that whero a statute required an official act to be done by a given day, for a public purpose, it was merely directory as to time, and the act done on a suc. ceeding day was held valid.

• The King v. Pasmore, 3 Term Rep. 238. 245, 246. By the N. Y. Re

when it does take place, must be had, and the assent of a majority of the corporation to any transaction concerning the corporation must be given, when the members of the corporation are duly assembled collegialiter ; and they must act simul et semel, and not scatteringly, and at several times and places.a

The power to make by-laws is either expressly given or tacitly annexed, as being necessarily incident to corporate bodies to enable them to fulfil the purposes of their institution ; and when the objects of the power and the persons who are to exercise it, are not specially defined in the charter, it is necessarily limited in its exercise to those purposes, and resides in the body politic at large. It is usual, however, in the charter creating the corporation, to vest the power of making by-laws in a select body, as for instance in a board of trustees or directors.b These corporate powers of legislation must be exercised reasonably, and in sound discretion, and strictly within the limits of the charter, and in perfect subordination to

vised Statutes, if any corporation shall not organize and commence the transaction of its business within one year from the date of its incorporation, its corporate powers shall cease.

• The Dean and Chapter of Fernes, Davies' Rep. 130—132. Pierce F. New-Orleans Building Co., 9 Lnu. Rep. 397. In like manner the acts of joint arbitrators, as well as all other judicial acts, must take place in the presence of each other. Stalworth v. Inus, Meeson f Welsby, 456. Moore v. Exrs. of Moore, Coxe's N. J. R. 144. When a corporation election has been irregularly or illegally conducted, the regular and established common law remedy is by motion, for leave to file a quo warranto information. Ex parte Murphy, 7 Cowen, 153. Regina v. Alderson, 11 Adolpk $ Ellis, 1. In New-York by statute (sess. 48, ch. 325, sec. 9, and which provision was afterwards incorporated in the N.Y. R. S. vol. i. 603. sec. 5,) a more summary and easy remedy was provided. Any person aggrieved by any such corporate election may, on giving reasonable notice, apply to the supreme court, who are to proceed forth with, and in a summary way, to hear the affidavits, proofs and allegations of the parties, and to establish the election, order a new election, or make such order and give such relief as right and justice may require. See the case Ex parte Holmes, 5 Cowen 426, to that effect.

Angell f. Ames on Corporations, 3d edit. ch. 10.

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