done in propria persona. The only exception to this rule has been in the case of the peers of England, who have been, by license obtained from the king, allowed to make other lords of parliament their proxies to vote for them in their absence.1 It has never been doubted that, in all elections in municipal or other public corporations, every vote must be personally given;2 and, in the absence of a statute or valid by-law otherwise providing, the same rule applies in the case of elections in private corporations, even in those having a joint-stock.3 § 737. Validity of a By-law which Provides for Voting by Proxy.There is a difference of opinion among the American courts, as to whether a by-law of a private corporation, which authorizes shareholders to vote by proxy, is valid, in the absence of an express statutory authorization for the passage of such a by-law. Those courts which follow the analogy of the common law hold that such a by-law is invalid. But other courts have taken the view that such a by-law is valid. There are two reasons in support of the rule which denies the right to vote by proxy, aside from the analogy of the common law. The first is founded in the policy of requiring the personal attendance of the shareholders, in order that each may have the benefit of personal consultations with the others. The other is founded in the policy of preventing voting by fraudulent proxies. 1 1 Bla. Com. 168; Ang. & A. Corp., § 128. 22 Kent Com. 294. 3 Phillips v. Wickham, 1 Paige (N. Y.), 590. 4 Taylor v. Griswold, 14 N. J. L.) 222; s. c. 27 Am. Dec. 33; People v. Twaddell, 18 Hun (N. Y.), 427; Brown v. Com., 3 Grant Cas. (Pa.) 209. A charter provision that "each person being present at an election "shall be entitled to vote, means an actual and not a constructive presence. Ibid. State v. Tudor, 5 Day (Conn.), 329; s. c. 5 Am. Dec. 162; People v. Crossley, 69 Ill. 195; Com. v. Detwiller, 131 Pa. St. 614; s. c. 7 L. R. A. 357; 47 Phila. Leg. Int. 114; 20 Int. 20 Pitts. L. J. (N. S.) 378; 18 Atl. Rep. 990. Where the Neither has proved sufficient, in the case of joint-stock corporations, to maintain the rule which excludes the use of proxies. A view has been taken which restrains the right to vote by proxy to mere routine matters, and which denies it in case of a vote for a fundamental change in the corporation, or a surrender of its charter.1 no member of any mutual fire § 738. Statutes conferring the Right to Vote by Proxy. The division of judicial opinion stated in the preceding section has ceased to be of much practical importance, in view of the fact of statutes existing in nearly all the States and territories providing that stockholders in private corporations may, at all meetings therefor, vote either in person or by proxy appointed in writing. Some of these statutes impose restrictions upon the right. Thus, in New York, the right is granted "subject to the provisions of the act of incorporation."3 Another statute of the same State enacts that 66 insurance company, organized under the laws of this State, shall be allowed to vote by proxy for a director or directors of any such company." "No share shall confer the right to vote which shall not have been holden three calendar months previous to the day of the election, nor unless it be holden by the person in whose name it appears, absolutely and bona fide, in his own right or that of his wife, or as executor or administrator, trustee or guardian, or in the right of some corporation, copartnership or society of which he or she may be a member, and not in trust for any other person: every person voting except females, shall do so in their own proper person and not by proxy: Provided, that this provision shall not prevent any guardian of minor children, or any bona fide trustee who holds stock in a fiduciary capacity, from voting upon 1 Smith v. Smith, 3 Desau. (S. C.) 557. 2 Rev. Stat. Ariz. (1887), § 300; 2 Civ. Code Cal. 1885, § 312; Gen. Stat. Col., § 242; Gen. Stat. Conn. 1888, § 1925; Laws of Del., p. 376, § 2; Const. Ill., art. 6, § 3; 2 Rev. Stat. Ind. 1888, § 3002; Gen. Stat. Kan. 1889, 1185; Rev. Stat. Me. 1883, p. 401, § 13; Rev. Code Md. 1878, p. 321; § 52; Pub. Stat. Mass. 1882, p. 565, § 5; 1 How. Mich. Stat. 1882, § 4861; Gen. Stat. Minn. p. 450, § 160; Rev. Code Miss. 1871, p. 530, § 2406; 1 Rev. Stat. Mo. 1889, § 2484; Gen. Stat. Nev., § 806; Gen. Laws N. H. 1878, p. 356, § 21; Rev. Stat. N. J. 1877, p. 181, § 21; Comp. Laws N. M. 1884, § 196; 3 Rev. Stat. N. Y. (Banks & Brothers' 8th ed.), p. 1730, 6; 1 Rev. Stat. Ohio, § 3245; Hill's Laws Ore., § 3223; 1 Brightly's Purd. Dig. Pa. St., p. 342, § 28; Pub. Stat. R. I. 1882, p. 368, § 3; Code Tenn. 1884, § 1706; Rev. Laws Vt. 1880, § 3313; Code Va. 1887, § 1116; 1 Rev. Stat. W. Va., p. 316, § 44. 3 3 Rev. Stat. N. Y. (Banks & Bros. 8th ed.), p. 1730, § 6. 42 Rev. Stat. N. Y. 1875, p. 668, § 70. such stock at any election." 1 A statute of New Hampshire provides that, except in cases of railway corporations, "no stockholder shall act as proxy for any other stockholder, nor shall any person act as proxy for more than one stockholder, or vote as proxy for shares exceeding one-eighth of the whole capital stock. No proxy shall confer the right to vote at more than one meeting, which shall be named therein." 3 § 739. Further of the Right to Vote by Proxy. - If the governing statute requires stock to be voted in the name standing on the transfer book, either in person or by proxy, a proxy from such person must be produced, although he is the cashier of the corporation, and a proxy from his successor in office will not be sufficient. A proxy may be revoked, even though given for a valuable consideration, where it is about to be used for a fraudulent purpose; and an injunction will lie to restrain the voting by proxy, in fraud and in violation of the charter of the corporation. § 740. Right to Vote how Affected by By-laws. As hereafter seen, by-laws have been authorized by statute in some States which go so far as to regulate the right to vote at corporate elections; but it is scarcely necessary to say that if the right to vote by proxy is given by the charter, it cannot be restrained by any by-laws which the corporation may enact, at least against the dissent of the stockholder claiming the right. Neither can such a right, when given by the charter or by statute, be limited by a mere resolution, passed by the members at the meeting. When, therefore, the charter provided that life members should be entitled to vote at all elections for officers thereof by proxy," it was held that a resolution that no proxy should be voted on at any meeting of the society unless showing, within itself, that it was specifically intended to be used at such meeting, was repugnant to the charter and void, as an attempt to limit the power 1 Bright. Purd. Dig. Pa. Stat., p. 162, § 32. 2 Gen. Laws N. H. (1878), p. 356, § 21. 3 Gen. Laws N. H. 1878, p. 356, § 22. 4 Re Mohawk &c. R. Co., 19 Wend. (N. Y.) 135. 8 5 Reed v. Bank of Newburgh, 6 Paige (N. Y.), 337. Campbell v. Poultney, 6 Gill & J. (Md.) 94; s. c. 26 Am. Dec. 559. Post, §§1050, 1052. 8 Re Lighthall Man. Co., 47 Hun (N. Y.), 258. given by the member to his proxy.1 A regulation of a corporation that stockholders shall have one vote for each share held by them up to ten shares, and fixing the proportion which his votes shall bear to his shares above that number, is a reasonable regulation, uniform in its operation, conflicts with no law, and is binding on all the shareholders.2 § 741. Injunction to Restrain Fraudulent or Ultra Vires Voting.— An injunction will be granted to restrain the voting of stock of a corporation in violation of its charter. Such an injunction was allowed, where it appeared that certain shares were transferred without consideration to divers persons, and that powers of attorney were taken back by the real owners, to enable them to cast a greater number of votes than the charter would allow to the single holder of the shares. The bill was not faulty for not joining the corporation by name as a party, and also the transferees of the shares, it having alleged that they were unknown. But an injunction will not be granted in one State to restrain officers of a corporation from voting upon proxies of the stockholders at an approaching meeting in another State, upon an allegation that the statutes thereof do not provide for voting by proxy. Nor will an injunction be granted at the suit of one who is a stockholder in two corporations, to enjoin the owner of a controlling interest in one of the corporations from voting at a stockholders' meeting therein, in favor of the proposition that such corporation shall engage in a certain business, on the ground that, engaging in such business would be an illegal interference with the rights of the other corporation." § 742. Statutory Provisions as to who Entitled to Vote. The statutes which speak upon the question almost universally prescribe that shareholders in whose names shares are standing upon the 1 Matter of White v. N. Y. Agricultural Soc., 45 Hun, 580; s. c. 10 N. Y. St. Rep. 594. 2 Com. v. Detwiller, 131 Pa. St. 614; 8. c. 7 L. R. A. 357; 25 W. N. C. 329; 47 Phila. Leg. Int. 144; 20 Pitts. L. J. (N. s.) 378; 18 Atl. Rep. 990. 3 Campbell v. Poultney, 6 Gill & J. (Md.) 94; Webb v. Ridgely, 38 Md. 6 Woodruff v. Dubuque & Sioux City R. Co., 30 Fed. Rep. 91. 7 Converse v. Hood. 149 Mass. 471; s. c. 21 Northeast. Rep. 878. corporate books, are entitled to vote.1 In Colorado, corporate elections are by ballot, each person being entitled to as many votes as he has stock. In the same State, no member of a banking company is entitled to vote, while his paper held by the bank or liabilities to it are due and unpaid. In Kentucky, each stockholder is entitled to vote only in proportion to the amount paid on his subscribed stock. In Oregon, each stockholder present in person or by written proxy, shall have one vote for each share subscribed by him; but after the first meeting no vote can be cast on unpaid stock.5 In Wisconsin, in elections of directors by railroad companies, each stockholder is entitled to a vote, in person or by proxy, for every share of stock owned by him, for thirty days preceding the election. A majority of the stockholders may compel the production of books and papers to determine the qualifications of members and candidates.6 In Michigan, each stockholder is entitled to cast, in person or by proxy, one vote on each share of stock owned or held by him ten days before election and a majority of the votes cast are requisite to an election, or for the determination of any question voted upon. In Wisconsin, every stockholder is entitled to one vote for each share of his stock at stockholders' meetings, and on election of directors, and votes in person or by proxy (if so provided by company's bylaws); and guardians, executors, etc., may vote shares held by them.8 In Missouri, if the right of a shareholder to vote is questioned, the inspectors should require the transfer books of the corporation as evidence of the stock held in it, and stock that has stood on those books in the name of a person for thirty days may be voted directly by such person, or by his proxy. Executors, guardians, trustees and pledgors, may vote upon stock held by them or in their name. In mining companies in Colorado, corporate elections are by ballot, each shareholder casting a number of votes equal to his number of shares, and a majority of votes cast elects.10 In the same State, shareholders vote in person or by proxy, each voter casting one vote for each share owned by him for the adoption of a change of name, place of business, number of directors, amount of capital stock, consolidation with another company- two-thirds of all the stock being necessary to such adoption.11 In California, each person acting in person or by proxy, must be a member or bona fide stock How. Mich. Stat. 1882, § 3315. 8 Rev. Stat. Wis. 1878, § 1760. 10 Gen. Stat. Colo. 1883, chap. 19, § 86. Gen. Stat. Colo. 1883, ch. 19, §§ 111, 112. |