law; for where it consists of several particulars, it is, to all purposes, as several by-laws, though the provisions are thrown together under the form of one." 1 As already scen,2 a corporate by-law sustains the dual character of a law, for the government of the members and the corporate concerns, and of a contract into which the members have voluntarily entered. The principle that it may be void in part and valid in part, has not only an analogy in respect of the constitutionality of acts of the legislature, but also an analogy in respect of the validity of private contracts.3 1 Amesbury v. Bowditch Mutual Fire Ins. Co., 6 Gray (Mass.), 596, 607. 2 Ante, §§ 930, 940. 3 In Page v. Monks, 5 Gray (Mass.), 492, 495, it is said: "A contract is not necessarily void, or wholly inoperative, because it consists in part of promises and engagements for the breach and disregarding of which the statute neither affords nor allows any remedy by an action at law. In such cases, whether any of those promises or engagements can be enforced, must depend on the manner and extent of their connection and combination with the rest. If the contract is in its nature entire, and its parts are incapable of separation or division, then, though some of its stipulations are not, if others of them are affected by the statute, no action. can be brought or maintained upon it. But it is otherwise if the parts are severable." In like manner, in Rand v. Mather, 11 Cush. (Mass.) 1; s. c. 59 Am. Dec. 131, 134, it is said by Metcalf, J.: "On principle, and according to numerous modern adjudications, the true doctrine is this: if any part of an agreement is valid, it will avail pro tanto, though another part of it may be prohibited by statute; provided the statute does not, either expressly or by necessary implication, render the whole void; and provided furthermore, that the sound part can be separated from the unsound, and be enforced without injustice to the defendant." Eastern R. Co. v. Benedict, 15 Gray (Mass.), 289, 292; Allen v. Leonard, 16 Gray (Mass.), 202; Haynes v. Nice, 100 Mass. 327, 329; Friend v. Pettingill, 116 Mass. 515, 517. See cases overruled in Loomis v. Newhall, 15 Pick. (Mass.) 159, where the contrary was decided on the authority of Lexington v. Clark, 2 Ventr. 223, and Chater v. Becket, 7 T. R. 201. Further cases expounding and illustrating this doctrine: Wood v. Benson, 2 Cromp. & J. 94; s. c. 2 Tyrw. 93; Newman v. Newman, 4 Maule & S. 66; Bank of Australasia v. Breilat, 6 Moore P. C. 152; Bishop of Chester v. Freeland, Ley, 71, 79; Norton v. Simmes, Hob. 14; Kerrison v. Cole, 8 East, 231, 236; Doe v. Pitcher, 6 Taunt. 359, 369; Mouys v. Leake, 8 T. R. 411; Gaskell v. King, 11 East, 165; Wiggs v. Shuttleworth, 13 Id. 87; Howe v. Synge, 15 Id. 440; Greenwood v. Bishop of London, 5 Taunt. 727. Application of the doctrine to cases affected by the statute of frauds: Rand v. Mather, 11 Cush. (Mass.) 1; 59 Am. Dec. 131; Page v. Monks, 5 Gray (Mass.), 492; Mayfield v. Wadsley, 3 Barn. & Cres. 357; Ex parte Littlejohn, 3 Mont. D. & De G. 182; Wood v. Benson, 2 Cromp. & J. 94; s. c. 2 Tyrwh. 93. In the following § 1049. Establishing a Quorum of the Board of Directors.— In New York, where the charter of a canal corporation with banking powers, provided that "the corporate powers of the company shall be exercised by a board of directors, to consist of twenty-three persons, who shall elect a president annually from their body, and possess the other privileges and powers conferred by law;" and among the other powers expressly enumerated, was the power "to adopt, establish and carry into execution such by-laws, etc., as shall by its president and directors, be judged necessary or convenient for the said corporation in respect to its canal and banking operations; " and the charter was silent on the question what number of directors should constitute a quorum for the transaction of business, a by-law which enacted that "five directors, of whom the president shall always be one, or in his absence seven directors, shall form a quorum for the transaction of the ordinary business of the company," was held valid.' § 1050. Regulating Corporate Elections. No reason is perceived why a corporation may not make reasonable by-laws regulating the conduct of corporate elections, where the mode of conducting such elections is not pointed out in the charter or in any other applicatory statute, and many statutes expressly confer the power to make such laws. Accordingly, it has been held that a corporation empowered by charter "to make laws, etc., and to do all things needful for the good government and support of the congregation," may make a by-law giving the president thereof the power of appointing inspectors of the election of corporate officers.3 It has also been held that a by-law that no tickets shall be counted, if, besides the names, cases, proceeding with reference to the statute of frauds, it was held that the different parts of the agreement could not be separated: Cook v. Toombs, 2 Anstr. 420; Mechelen v. Wallace, 7 Ad. & El. 49; Vaughn v. Hancock, 3 C. B. 766; Irvine v. Stone, 6 Cush. (Mass.) 508. This principle does not apply in the case of a contract founded upon an indivisible consideration, a part of which is illegal: in such a case the entire contract is void. Filson v. Heimes, 5 Pa. St. 452; s.c. 47 Am. Dec. 422; Bredin's Appeal, 92 Pa. St. 247; Shaw v. Spooner, 9 N. H. 66 197; s. c. 32 Am. Dec. 348; Woodruff v. Hinman, 11 Vt. 592; s. c. 34 Am. Dec. 712. Upon a similar principle, a conveyance in part to hinder, delay or defraud creditors, is void in toto. McNichol v. Richter, 13 Mo. App. 515; Cordes v. Straszer, 8 Mo. App. 61; St. Louis Coffin Co. v. Rubelman, 15 Mo. App. 280. 1 Hoyt v. Shelden, 3 Bosw. (N. Y.) 267; Hoyt v. Thompson, 19 N. Y. 207; ante, § 3811. 2 Ante, §§737, 740, 745. 3 Com. v. Woelper, 3 Serg. & R. (Pa.) 29; s. c. 8 Am. Dec. 628. 1 there are other things upon the tickets," is valid, the charter directing that all elections shall be by ballot. And under such a by-law, tickets on which an eagle was engraved were held not to be legally admissible; 1 and, though the question is subject to doubt and conflict in the absence of statutory directions, it has been held that a corporation, whose object is to acquire property, may legally make a by-law authorizing the stockholders to vote by proxy at their meetings.3 § 1051. Forbidding Secret Societies in Colleges. An incorporated college has authority to forbid its students from joining secret societies, although such societies are incorporated by the legislature.1 § 1052. Instances of By-Laws which have been Held Valid.-By-laws of corporations containing various provisions not deemed unreasonable or contrary to law and under various charters, governing statutes, circumstances and limitations which cannot be fully entered into in this paragraph,- have been upheld, regulating the manner of holding meetings and electing corporate officers; 5 requiring the officer or agent having charge of the corporate funds to give bond for the faithful performance of his duties; by an incorporated board of underwriters, binding the members to uniformity in rates of insurance; 7 by an incorporated board of trade, providing for the payment of storage by the buyer of grain in bulk; 8 requiring the clerk of the corporation to be sworn; of a banking company, requiring its cashier to give bond 1 Ibid. 9 • Ante, § 722. State v. Tudor, 5 Day (Conn.), 329; s. c. 5 Am. Dec. 162. • People v. Wheaton College, 40 Ill. 186. * Re Long Island R. Co., 19 Wend. (N. Y.) 37; s. c. 32 Am. Dec. 429; Kearney v. Andrews, 10 N. J. Eq. 70; Taylor v. Griswold, 14 N. J. L. 222, 226; 8. c. 27 Am. Dec. 33. Authorizing the members to vote at corporate elections by proxy: State v. Tudor, 5 Day (Conn.), 329; s. c. 5 Am. Dec. 162; People v. Crossley, 69 Ill. 195; ante, § 722. But see Taylor v. Griswold, 14 N. J. L. 222; Philips v. Wick 6 ham, 1 Paige (N. Y.), 590; People v. Twaddell, 18 Hun (N. Y.), 427,— which last cases hold that the right to vote by proxy must be authorized by the legislature. 6 Savings Bank v. Hunt, 72 Mo. 597; s. c. 37 Am. Rep. 449. People v. Board of Fire Underwriters, 54 How. Pr. (N. Y.) 228, 240. 8 Goddard v. Merchants' Exchange, 9 Mo. App. 290; 8. c. affirmed, 78 Mo. 609. Hastings v. Blue Hill Turnp., 9 Pick. (Mass.) 80. But the corporation cannot avail themselves of his omission to take the oath in defense of an action against them; and if such with security in the sum of $20,000; 1 of an incorporated asylum, requiring the inmates not to leave the premises without permission from the governor or one of his assistants, and prohibiting them from indulging in contentious, boisterous or disorderly conversation at the table, on pain of expulsion, has been held reasonable and valid; 2 of a benevolent association, providing, as a penalty for the non-payment of dues, that the delinquent should forfeit his rights to any benefits while in arrears, and for a period of three months after the payment of arrears; 3 of an incorporated city passenger railway company, prohibiting passengers from getting on and off the cars by the front platform; 4 and, generally, the regulations of carriers of passengers intended to protect the company from fraud and to promote the safety of the passengers, are upheld when reasonable.5 § 1053. Conclusion of Title One. We have in this title considered the manner in which corporate charters and franchises are conferred by the legislature, and the constitutional restraints under which the legislatures act in making such grants. We have considered the usual modes of organizing corporations under special charters and under general laws. We have gone forward and examined the methods by which corporations are consolidated with each other, and by which they are reorganized after mortgage foreclosures or after the expiration of their charters. We have conducted the process of organizing a corporation down to the election of its officers and the establishment of its by-laws. In treating of these subjects, we have considered many incidental questions which seemed appropriate to be considered by-law provide that the clerk shall be chosen yearly, and also that he shall continue in office till another shall be chosen and qualified, and the person first chosen and qualified is re-elected the next year, he continues to be clerk under the first election, till he is qualified under the second. Ibid. A by-law requiring the proceedings of each day to be drawn up by the secretary is satisfied where they are drawn up by a secretary pro tem., acting in the absence of the regular secretary. Price v. Grand Rapids &c. R. Co., 18 Ind. 137. 1 Savings Bank v. Hunt, 72 Mo. 597; s. c. 37 Am. Rep. 449. 2 People v. Sailor's Snug Harbor, 54 Barb. (N. Y.) 532. 3 Cartan v. Father Matthew &c. Soc., 3 Daly (N. Y.), 20. 4 Baltimore &c. R. Co. v. Wilkinson, 30 Md. 224. 5 Commonwealth v. Power, 7 Metc. (Mass.) 596; Walker v. Dry Dock &c. R. Co., 33 How. (N. Y.) Pr. 327 (that coupon tickets are not good unless torn off by the conductor). in connection with the leading subjects under consideration. This discussion closes the first title, according to the plan on which this work has been projected. Although we have considered in this title the rights of members of corporations in many relations, yet we have scarcely touched upon those rights in respect of members of joint-stock corporations. That subject stands alone in the law of corporations- peculiar to itself; and it will be considered in the next three title. 847 |