
    The State of Connecticut, ex relatione Freeman Kilbourn against Samuel Tudor, jun.
    A by-law, enacted by a corporation, whose object is the acquisition of property,author-ising the stockholders, in all their meetings, to vote by proxy, is a valid bylaw.
    
      Quere, whether the stockholders of such a corporation, may vote byproxy, without a bylaw for that purpose ?
    In an information, in nature of a quo ■warranto, against an officer of an incorporated company, charging him with having usurped the franchises of the office, the court will not grant a new trial, for a misdirection, if it appears, that the term of the office has expired, and a new annual election of officers has been made.
    MOTION for u new trial.
    This was an information in nature of a quo warranto, in behalf of the state, at the relation of Freeman Kilbourn, against the defendant, for usurping, using and exercising the office of first director of the Hartford Bridge Company.
    
    It was stated in the information, that in the year 1808, the General Assembly incorporated the Hartford Bridge Company, and invested them, their successors, heirs and assigns, with the power of appointing such officers, and establishing such by-laws and regulations, as they should deem necessary for their government, not contrary to their charter, or the laws of this state ; that at the first meeting of the corporation, held pursuant to their charter, on the 27th day of April, 1809, they proceeded to enact certain by-laws and regulations for the government of the corporation, by one of which it was provided, that on the first Monday of June, annually, a president and four directors should be elected from the stockholders, to manage their affairs ; and that a clerk should also be elected at Such annual meetings ; that at an annual meeting of the corporation, held on the first Monday of June, 1811, Freeman Kilbourn, the relator, was elected first director of the corporation ; who accepted the appointment, and claimed to be admitted and declared a director of the corporation.
    It was also stated, that notwithstanding the election of the relator, as above mentioned, Samuel Tudor, jun., the defendant, on the first Monday of June, 1811, did, without any legal warrant, use and exercise, and did continue to use and exercise, the office of first director of the corporation, for the year then ensuing ; and did claim to be first director of the corporation, and to have, use, and enjoy all the liberties, privileges and franchises belonging and appertaining to the "ffice of first director, as aforesaid.
    
      The defendant alleged in his plea, that a! she annual mcei-h)g of the corporation, in June, 1811, he was elected first director for the year then next ensuing ; ihaf he accepted jjje appointment, and by that warrant, did use and exercise, and continued to use and exercise, the office of first director of the corporation, in the manner set forth in the information. The issue being closed, the jury returned a verdict for tlic defendant.
    On the trial of this cause, before the Superior Court, the prosecutor read in evidence, the charter of the Hartford Bridge Company, which, after constituting the petitioners, their associates and successors, a body corporate, gave them power to appoint such officers, and to establish such by-laws and regulations, as they might deem necessary for the corporation, not contrary to their charter, nor to the laws of this state, and subject to be repealed, by the Superior Court, at any session thereof in the county of llar fot J. The charter also provided, that the members of said company should be entitled to as many votes as they should hold shares in tin-stock of said company; but it was silent as to the mode of voting.
    The prosecutor also read in evidence, a by-law of the cor • poration, enacted on the 20th day of September, 1810, by which it was provided, “ that at all future meetings of said company, the vote should be determined, by the majority of the shares, which each vote should represent, either as his own property, or as attorney for other persons.”
    The prosecutor also read in evidence, a power of attorney, dated the 11th day of December, 1809, made by Joseph Lath-rop and others, of the city of Nem-York, stockholders of ihe corpofation, and owners of stock to the number of 245 shares: by which one Gains Lyman was constituted their attorney, and fully authorised to vole for them, on their several shares, in the election of officers of the corporation.
    
      It was admitted, that on the ballot for the choice of first director, Lyman offered and tendered his vote for the relator, in pursuance of his power, and that the presiding officer re-¡ecfed iiis vote, and fhe ballot being closed, declared (he defendant to be duly elected to that office.
    It was also admit ted, that the number of shares represented by Lyman, at the ballot, exceeded the number of shares represented by k!i other persons present, end voting, at the election.
    it was claimed by the defendant, that at the date and execution of the power to Lyman, no by-law of the corporation existed, by which the stockholders could vote by proxy.
    The court, in their charge to the jury, instructed them that the law was so, that Lyman was not entitled, by virtue of the power of attorney from Lathrop and others, to vote in the election of officers of the corporation, because the stockholders could not vote by proxy ; and directed them to find a verdict for the defendant. The prosecutor moved for a new trial, on the ground of a misdirection; and the question was reserved for the consideration of the nine Judges.
    The principal question discussed by the counsel for the prosecutor, on the hearing of the motion, was, whether the stockholders of the Hartford Bridge Company were entitled to vote by proxy ?
    
      N. Terry and Mitchell, in support of the motion.
    
      Daggett and J. W. Edwards, contra.
   Ingersoll, J.

This was a motion for a new trial, on the ground of a misdirection to the jury, on a point of law. The suit was an information in nature of a qua warranto, against the defendant, stating that he had usurped the office of first director of the Hartford Bridge Company, and praying that he might be ordered to show by what warrant he held the same. The great question in the case was, whether it was competent for the members of the company to vote by proxy, in the choice of their officers ? If they were authorised so to vote, by their charter of incorporation, or by any by-law under it, then the verdict ought to have been in favour of the plaintiff: .If otherwise, it ought to have been, as in lac; was, in favour of the defendant.

The court charged the jury, that no voles could legally have been given by proxy ; and that therefore, as, without counting such votes, the defendant had the greatest number for first director, the verdict ought to be in his favour.

There were also some other points in the case, hut this being the leading one, and being also that on which the opinion of this court is particularly desired, I shall confine my observations almost entirely to it.

There is no clause in the act of incorporation empowering the members of the company to vote by proxy; but as is usual in such acts, there is power given to “ establish such by-laws and regulations as they may deem necessary for the government of the corporation, not contrary to the charter, or the laws of this state, and subject to be repealed by the Superior Court, at any session in the county of Uarlfoid, '

There wTas also a by-law, duly made and passed by said company, on the 20th day oí .September, 1810, which was previous to the time when the choice in question v, as made, providing, that at all future meetings of said company, “ the vote should be determined by the majority of the shares, which each vote should represent, either as his own property, or as attorney for other persons.” This by-law has never been repealed.

In the discussion of this question, it has been urged, on the one side, that it was incident to this corporation, as well ns to every other corporation, the object of which is the acquisition of property, as a matter of course, that votes might be given by proxy : But, at any rate, that after making the by-law above mentioned, there could be no doubt as to such right. v

On tlje other side, it was said, that such common law right did not exist; but that it was a fundamental principle in corporations of every kind, that votes should be given in person, and never by proxy ; that this being the common law', was then the law of this state ; and that no by-law au-chorising votes to be given by proxy could be valid, the same being contrary to the laws of this state.

My opinion is, that the charge was incorrect, and (hat in the case under consideration, the votes given by the attorney for his principals, ought to have been received. How the point would have been determined, had there been no by-law passed, it is unnecessary to say. So much, however, 1 think may be said, that those incorporated societies, whose object is the acquisition of property, stand on a different ground as to this question, from those of every other kind : That is to say, it is not so clear, that every vote given in a corporation of the former kind must be personal, as it is that, it must lu-so, in one of the latter. I agree most fully, that by the common law, every vote given in a corporation instituted for the public good ; either the good of the whole slate, or of a particular town or society ; must be personally given. So also, every vote given by a freeman for his representative, must be given by him in person. There is no deviation from this rule; the authorities on this subject are uniform. Neither can a vote be given in a town or society meeting, merely on the ground of owning property within the limits of such town or society. But from the very nature of a monied institution, the mere owning of shares in the stock of the corporation, seems, of course, to give a right of voting. But whatever might have been the result of reasoning on the nature of monied institutions, still, since the passing of the by-law above mentioned, I am very clear, that the votes for the officers of this corporation, as well as all other votes relative to it, may be given by proxy.

If this by-law' be contrary to the laws of this state, it certainly has no validity. It is not a settled principle, however, that a by-law must never modify or vary the rights of individuals, lest it should be contrary to the laws of the state. According to such a principle, no valid by-law whatever could be made. No ; all by-laws of a minor corporation are good, that are reasonable, and calculated to carry into effect the objects of the institution, and are not contradictory to (lie general policy of (he laws of the land. Thai the by-law in the present case is reasonable, maj be a¡ >*!'. a power being given by the legislature, to vote by prosy, in ali the bank incorporations in this state. That it is calculated to carry into effect the objects of the institution, and is not contradictory to the general policy of the law of the state,- may be argued from the same facts. For if such were not the character of this by-law, the legislature would never, in the instances mentioned, have granted the power so to vote.

Again, in order to shew more clearly, that this by-law is a valid one, it may be proper to take into consideration, what are the powers, rights and privileges of each individual of a voluntary association of men, entered into for the purpose of carrying on business. It is very clear, that any one of these individuals, thus associated, may authorise any person to act for him in his absence, in all matters relative to the subject matter of the association. Ail trading companies and joint partnerships stand on this ground. In this very case, if every one of the persons who are incorporated into a bridge company, had, without any act of incorporation, united together for the purpose of building the bridge, which the company has built, and to share in the profits ; each one might have empowered another to act for Inn in hi- absence. This principle is so plain, that, I think, it cannot be denied. Is it not, then, very absurd to say, that these rights are all taken away, the moment that an incorporation takes place ? Perhaps, it may be said, that if my principles and deductions are correct, a voting by proxy would be authorised, without any by-law for that purpose. This point I have no need to press. So much, however, may be claimed, and as it strikes me, the claim is irresistible, that a by-law giving such authority, is, and must be, to all intents and purposes, good.

Further, to shew that this by-law is valid, we need but to compare some of the essential qualities of monied corporations with those of other corporations, such as towns and societies. It is essential, that all the voters in a town or society, ..hoiiUl live within the respective limits of such Sown or society. li is requisite also, that, besides the qualifications in point of property, they should a!! he males, and of the age of twenty-one years. A by-law, therefore, oí a town or society empowering females or minors, or any one living out of the limits of the town or society, to vote, whatever property he might have within such limits, would be uiteriy void. Such a by-law would be contrary to the taws of the slate. In monied corporations, however, it is of no consequence where the stockholders live, whether in this state or in any of the United Slates, or in any foreign state or kingdom. W hether they be males or females ; both sexes holding shares, are equally entitled to vote. From the necessity of the case, therefore, it should seem, that a by-law, like the one under consideration, must be good. For, if it were otherwise, it would very frequently happen, that many of the stockholders would never be able to vote at all.

In short, the difference between money corporations, and others, such as towns and societies, and all of the like kind, is so manifest, that the rules applicable to each are by no means similar. The former are but trading companies, with all the powers and privileges of such companies, and are incorporated to enable them to carry on their business with more advantage to themselves, as well as to the public. The latter, it is well known, are of a totally different character. Such being the case, there is no question in my mind, but that the by-law authorising the members of the company to vote by proxy, is a valid law. Nay, I should much more question the right of the corporation to pass a by-law restricting the right of voting, to the person. This would seem to me like subverting the fundamental principles of the institution. But of such a by-law I need give no opinioij.

Though my opinion is, that the charge in the present case was incorrect, and the. verdict wrong, yet I would not advise a new trial of the cause. The relator is not now kept out of any office, nor does the defendant now hold the office of first director, to deprive him of which, the prosecution was commenced. The People, ex relat. Teel v. Sweeting, 2 Johns. Rep. 184. A new annual election of officer? lias taken place, and it is but a matter of costs between the litigating parties that a new trial would settle. This object, is not of sufficient magnitude to demand a new trial. To settle the question, as to the right oí voting by proxy, was, as 1 presume, the principal cause of the prosecution, and that can he well ettled, by the opinion of this court, without a new trial of the cause.

SliTonKcn, Ch. J., Swift, Tnu:.ruui,n, Sum? and Bua¡> aud, Js., concurred.

Reeve, Edmond and Eamdvín, .Is., dissented.

New trial to be granted.  