elected, or to cumulate said shares, and give one candidate as many votes as the number of directors multiplied by the number of his shares of stock shall equal, or to distribute them on the same principle among as many candidates as he shall think fit; and such directors or managers shall not be elected in any other manner." 1 "In all elections for directors or managers of any incorporated company, each shareholder shall have the right to cast as many votes in the aggregate as shall equal the number of shares so held by him or her in said company, multiplied by the number of directors or managers to be elected at such election; and each shareholder may cast the whole number of votes, either in person or by proxy, for one candidate, or distribute such votes among two or more candidates; and such directors or managers shall not be elected in any other manner."2 A similar provision exists in the present constitution of Pennsylvania.3 It was held to be self-enforcing, and not merely directory to the legislature.1 § 755. Statutory Provisions as to Cumulative Voting. The right of cumulative voting is also provided for in many of the States by statute. Thus, in Illinois, following the constitution of that State, it is provided that every subscriber shall have the right to vote, in person or by proxy, for his number of shares, for as many persons as there are directors or managers to be elected, or may consolidate his votes and cast as many for one candidate as the number of his shares, multiplied by the whole number to be elected or to distribute them on the same principle among as many candidates as he shall think fit; and that directors or managers may not be elected in any other manner.5 A similar provision exists in Kansas, but with the proviso that, in elections of directors for corporative associations, no stockholder shall be allowed to cast more than one vote multiplied by the number of directors of the association.6 In Missouri, in elections for directors or managers, each elector shall cast as many votes as he has shares of stock, multiplied by the number of directors or managers to be elected, and he may distribute said votes among two or more candidates, or cast 1 Ill. Const. of 1870, art. 11, § 3. 2 Mo. Const. of 1875, art. 12, § 6. Const. Idaho, 1889, art. 11, § 4 (ex(cept the word " "legislature used instead of "general assembly "); Const. Montana, 1889, art. 15, § 4 (except that the words "legislative assembly are used instead of "general assembly," and the words "directors or trustees are used instead of the words "directors or managers"); Neb. Const. 1875, art. 11, § 5, with unimportant verbal variations; W. Va. Const. 1872, art. 11, § 4 (substituting the word "legislature " for "general assembly"). 3 Const. Penn. 1874, art. 16, § 4. 4 Pierce v. Commonwealth, 104 Pa. St. 150. 5 Starr & Curt. Ill. Stat., p. 610, § 3. 6 Gen. Stat. Kan. 1889, § 1185. all for one. This mode of election is exclusive.1 Similar provisions exist in Texas.2 In California, the statute provides that all elections shall be by ballot, each person having the right to vote, in person or by proxy, all the shares standing in his name at least ten days before the election, for as many persons as there are directors to be elected, or cumulate and give one candidate as many votes as his number of shares multiplied by the number of directors to be elected, or distribute them on the same principle among the candidates, as he sees fit. In corporations having no capital stock each member may give one director as many votes as there are directors to be elected.3 § 756. Judicial Decisions on the Subject of Cumulative Voting. This right of cumulative voting does not exist, unless it is expressly conferred by an operative constitutional provision or statute. Constitutional provisions of this kind are not retroactive. They do not operate upon existing charters, unless such charters are subject to the power of the legislature to modify or repeal them, under principles elsewhere stated. Construing the provision of the Missouri constitution, it has been reasoned that, although the language is broad enough to include all corporations, those previously in existence as well as those thereafter to be created, yet, on a familiar rule of interpretation, it would not be regarded as applying to corporations previously created with an express exemption in their charters from the operation of the general law by which the legislature was authorized to repeal, alter, or suspend the charter of every corporation. An intention thus to interfere with existing franchises would not be imputable to the convention which framed the constitution, unless their purpose had been couched in explicit language. If such were the purpose of the constitutional provision, it would be void under the Federal constitution, as interpreted in the Dartmouth College Case, in respect of such prior corporations, 11 Rev. Stat. Mo. 1889, § 2490. 22 Sayle Tex. Civ. Stat. 1888, art. 4128. Deer. Code Cal., vol. 2, § 307. 4 State v. Stockley, 45 Ohio St. 304; 19 Am. & Eng. Corp. Cas. 143; 13 Northeast. Rep. 279; 11 West. Rep. 259; 2 Rail. & Corp. L. J. 474. 5 Baker's Appeal, 109 Pa. St. 461 State v. Greer, 78 Mo. 188; reversing s. c. 9 Mo. App. 219. 6 Ante, § 89. 7 Trustees of Dartmouth v. Woodward, 4 Wheat. (U. S.) 518. See also Sloan v. Railroad Co., 61 Mo. 24, 30; Scotland Co. v. Railroad Co., 65 Mo. 123, 135. as impairing the obligation of the contract subsisting in the special charters granted them by the legislature and accepted by them. Nor was it an answer to this position to say that the right of voting, under the prior system, was not a right of substantial value, upon the faith of which corporators could be supposed to have embarked their capital in corporate enterprises.1 Nor, in the opinion of the Supreme Court of Missouri, could such a constitutional provision be upheld on the theory of being a necessary police regulation, and hence not within the doctrine of the Dartmouth College Case. On principles elsewhere discussed,3 it is not competent for the directors of a corporation, to accept for the corporation such a constitutional provision; since such an acceptance involves a constituent change in the corporation, which requires unanimous consent, or according to one view, the concurrence of a majority in value, by a regular vote at a meeting duly called for that purpose. An election held for seven directors of a private corporation created under Pennsylvania general corporation act of 1873, at which the cumulative system of voting was employed, and five directors only received the necessary pluralities, is valid as to the five so elected, and they have full power to act as a board, even though two remaining directors were not chosen." 5 § 757. Certificate of Election. If the statute requires the inspectors to make out and give to the successful candidates a certificate of their election, it may become a question what force and effect are to be ascribed to such a certificate; and here, as in other cases, the language of the applicatory statute must be carefully considered. The subject is illustrated by several of the earlier cases in New York, where such a statute was in existence. In one of them it was laid down that a certificate is not essential to enable a person elected a trustee to take the office; and that if the inspectors neglect or refuse to give a certificate, 1 State v. Greer, 78 Mo. 188; reversing s. c. 9 Mo. App. 219. Compare Hays v. Com., 82 Pa. St. 518, 523, cited by both of the Missouri courts. • State v. Greer, supra; citing Thorpe v. Rutland &c. R. Co., 27 Vt. 140; Sloan v. Pacific R. Co., 61 3 Ante, § 86. 4 Ante, § 71, et seq. 5 Baker's Appeal, 109 Pa. St. 461. 6 Wright v. Commonwealth, 109 Pa. St. 560. the party entitled to the office may have his right to it declared in a judicial proceeding.1 Again, it has been held, under the same statute, that a certificate, under the hands and seals of the inspectors of the election, that a person has been duly elected a trustee, is prima facie evidence of his right to the office. But this applies only to certificates which have no vitiating quality on their face. If a certificate recites facts which show that the persons whom the inspectors have declared to be elected were not elected, of course it is not evidence of their right to the office, but, on the contrary, it demonstrates that no such right exists. The reasoning is that the statute merely provides that the certificate shall entitle the party who has been elected to hold the office. It is the fact of the election, and not the possession of the certificate, which lies at the foundation of the right. Where there is no election there is no right, and the certificate cannot create a right. The certificate being merely prima facie evidence of the right, it is competent to go behind it and inquire into the facts of the election. The established principle seems to be that, in a proceeding in the nature of a quo warranto to try the title to a public or corporate office, it is competent to go behind the certificate of election, which has been given by the proper authority to the defendant, which certificate would otherwise be conclusive, for the purpose of ascertaining the real facts of the case.3 1 People v. Peck, 11 Wend. (N. Y.) down, on what they called a canvass 604, 611. 2 Hartt v. Harvey, 10 Abb. Pr. (N. Y.) 321. 3 People v. Seaman, 5 Denio (N. Y.), 409; People v. Ferguson, 8 Cow. (N. Y.) 102; People v. Vail, 20 Wend. 12; People v. Van Slyck, 4 Cow. (N. Y.) 297. Thus, it is held in New York that it is competent, in a proceeding by an information, in the nature of a quo warranto, to go behind the certificate of the county canvassers as to the town canvass, and rectify an error in the statement of the inspectors; and it appearing that the votes in a particular town were regularly canvassed, and that the inspectors set sheet, the number of votes given to each of the candidates for the office contested, but in making their final statement, after stating the whole number of votes, they omitted, by mistake, to add how many were given to each of the persons voted for by the electors, it was held competent to hear evidence tending to show that the relator, and not the defendant, had been elected by the greater number of votes; and accordingly it was adjudged by the court, contrary to the certificate of the county canvassers in the particular case, that the relator was duly elected. People v. Vail, 20 Wend. (N. Y.) 12. § 758. Statutory Provisions as to Conduct of Elections. By the statute of Missouri, the meeting shall convene at 9 a. m. and continue three hours, unless its object is sooner accomplished. But if it be convened for any other purpose than holding an election or voting on a proposition, it shall be regulated by the by-laws, as to the manner and time of convening it and the manner of conducting it. By the statute of New York, when the right of any person to vote is challenged, the inspectors shall require the transfer books of the company, and from those books shall decide the challenge; and all shares standing on such books in the name of any person shall be voted by him or by his proxy, subject to other provisions of the statute.2 By a statute of Ohio, an agent of the corporation, must make out a list of stockholders from the transfer book, showing number and class of shares of each on date of closing transfers before the meeting, and if no such time is fixed, ten days before the meeting. This shall be given to the inspectors, and shall be prima facie evidence of the ownership of stock. In case this is absent, inspectors shall ascertain the ownership by corporate books, certificates of stock, or other satisfactory proof. They shall receive and count the votes cast at such meeting, or at any adjournment thereof, either upon an election, or for the decision of a question, and determine the result, and their return shall be prima facie evidence thereof. By the statute of Arkansas, applicable to railroad companies, the inspectors appointed by the commissioners must openly count the votes and declare the result, and within 10 days file a certificate, subscribed by a majority of them, with the Secretary of State, and with county clerk in each county through which proposed line passes. By statute in New York, when the directors of any corporation shall neglect to adopt a by-law providing for the annual election of directors, for sixty days after the first year of corporate existence, the stockholders may elect directors in the place of the directors holding over, in the manner pointed out by such statute. If at the meeting held to elect such directors, the books of the corporation, showing who were and are stockholders of the association, are absent, each stockholder, in order to be entitled to vote at such election, must make or present a statement in writing signed and verified by him, setting forth the number of shares of the stock of such corporation standing in his name on its books and upon which he is entitled to vote, and file the same with the inspectors of election. Thereupon he is entitled to vote on such stock, so appearing to be owned by him, and standing on the books of the corporation in his name.5 11 Rev. Stat. Mo. 1889, § 2484. 2 2 Rev. Stat. N. Y. 1882, p. 1535, § 6. 3 Rev. Stat. Ohio (Giauque) § 3245 (5). 4 Ark. Dig. Stat. 1884, § 5427. 3 Rev. Stat. N. Y. (Banks & Bros. 8th ed.), p. 1726, § 3. |