| Conn. | Jun 15, 1812
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
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for the government of the corporation, not contrary to the charter, or the laws of this state, and subject to be repealed by the Superior Court, at any session in the county of Uarlfoid, '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 This by-law has never been repealed.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-
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 contradicto
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,
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
New trial to be granted.