public officers, who are such de facto acting under color of office by an election or appointment not strictly legal, or without having qualified themselves by the requisite tests, or by holding over after the period prescribed for a new appointment, as in the case of sheriffs, constables, &c.; their acts are held valid as respects the rights of third persons who have an interest in them, and as concerns the public, in order to prevent a failure of justice. (a)

This general principle has been applied to the officers of a private moneyed corporation, so far as concerns the rights of others, (b) and the sounder and better doctrine, I apprehend to be, that where the members of a corporation are directed to be annually elected, the words are only directory, and do not take away the power incident to the corporation to elect afterwards, when the annual day has, by some means, free from design or fraud, been passed by. (c) 1

(a) The King v. Lisle, Andrews's Rep. 163. The People v. Collins, 7 Johns. Rep. 549. Jones v. Gibson, 1 N. H. Rep. 266. Johnston v. Wilson, 2 ibid. 202. Anon. 12 Mod. Rep. 256. In the matter of The M. & H. Railroad Co. 19 Wendell. 135, 145. Plymouth v. Painter, 17 Conn. Rep. 585. The State v. Allen, 2 Iredell's N. C. Rep. 183. Sprague v. Bailey, 19 Pick. Rep. 436. In this last case it was held that a collector of taxes was not responsible for the regularity of the town meeting, or the validity of the votes at the meeting at which the tax was granted. It is a usual and wise provision in public charters, that the officers directed to be annually appointed, shall continue in office until other fit persons shall be appointed and sworn in their places.2 This was the case in the charter granted to the city of New York, in 1686, and again in 1730. By the English statute of 1 Victoria, ch. 78, for the regulation of municipal corporations, it was declared that the election of persons to corporate offices should not be questioned for want of title in the persons presiding at such elections, provided such persons were in actual possession of, and had taken upon themselves the execution of the duties of such office.

(b) Baird v. Bank of Washington, 11 Serg. & Rawle, 411. Bank of the United States v. Dandridge, 12 Wheaton, 64. Lehigh Bridge Co. v. Lehigh Coal Company, 4 Rawle, 1.

(c) Hicks v. Town of Launceston, 1 Rol. Abr. 513. Foot v. Prowse, Mayor of Truro, Str. Rep. 625. 3 Bro. P. C. 167, S. C. The Queen v. Corporation of Dur

1 Cahill v. Kalamazoo Mutual Ins. Co. 2 Doug. Mich. R. 124. An election will not be annulled for prior irregularities in the election of officers de facto, who have acted. Smith v. Erb, 4 Gill R. 437. Every reasonable intendment is in favor of the regularity of the proceedings of a private corporation. M'Daniels v. Flower Brook M. Co. 22 Vermont R. 274.

2 R. S. of Maine, (1857,) c. 46, sec. 7. Without such a provision corporation officers do not hold over. Beck v. Hanscom, 9 Fost. 213.

* 296

*The statute of 11 Geo. I. c. 4, was made expressly to prevent the hazard and evils of a dissolution of the corporation, from the omission to elect on the day; and it seems to admit of a question whether the statute was not rather declaratory, (for so it has been called,) and introduced to remove doubts and difficulty. (a) The election, when it does take place, must be had, and the assent of a majority of the corporation to any transaction concerning the corporation must be given, when the members of the corporation are duly assembled collegialiter; and they must act simul et semel, and not scatteringly, and at several times and places. (b)

ham, 10 Mod. Rep. 146. The People v. Runkel, 9 Johns. Rep. 147. Trustees of Vernon Society v. Hills, 6 Cowen's Rep. 23. McCall v. Byram Manufacturing Co. 6 Conn. Rep. 428. Nashville Bank v. Petway, 3 Humph. Tenn. Rep. 522. But see Rex v. Poole, 7 Mod. Rep. 195. Cases temp. Hardw. 23. 2 Barnard. Rep. K. B. 447, S. C. contra ; and the opinion of the chancellor, in Phillips v. Wickham, 1 Paige's Rep. 590, seems also to be contra. In the case of Rex v. Poole, (Cases temp. Hardw. 23,) Lord Hardwicke speaks doubtfully of the common law on this point; though he refers to the case of Lansdown, in Rolle's Abridgment, where an election eight days after the charter day was held good, for that the day was only directory. But he admitted that the mention of hours on the election days was merely directory, and not restrictive. In the case Ex parte Heath and others, 3 Hill, 42, it was held, that where a statute required an official act to be done by a given day, for a public purpose, it was merely directory as to time, and the act done on a succeeding day was held valid.

(a) The King v. Pasmore, 3 Term Rep. 238, 245, 246. By the N. Y. Revised Statutes, if any corporation shall not organize and commence the transaction of its business within one year from the date of its incorporation, its corporate powers shall cease.

(b) The Dean and Chapter of Fernes, Davies's Rep. 130-132. Peirce v. New Orleans Building Co. 9 Louis. Rep. 397. In like manner, the acts of joint arbitrators, as well as all other judicial acts, must take place in the presence of each other. Stalworth v. Inns,1 13 Meeson & Welsby, 466. Moore v. Ex'rs of Moore, Coxe's N. J. R. 144. When a corporation election has been irregularly or illegally conducted, the regular and established common-law remedy is by motion for leave to file a quo warranto information. Ex parte Murphy, 7 Cowen, 153. Regina v. Alderson, 11 Adolph. & Ellis, 1. In New York, by statute, (sess. 48, ch. 325, sec. 9, and which provision was afterwards incorporated in the N. Y. R. S. vol. i. 603, sec. 5,) a more summary and easy remedy was provided. Any person aggrieved by any such corporate elections, may, on giving reasonable notice, apply to the Supreme Court, who are to proceed forthwith, and in a summary way, to hear the affidavits, proofs, and allegations

1 The decision is not so strong as is said above. The court rather declined to make a decision.

The power to make by-laws is either expressly given or tacitly annexed, as being necessarily incident to corporate bodies to enable them to fulfil the purposes of their institution; and when the objects of the power and the persons who are to exercise it, are not specially defined in the charter, it is necessarily limited in its exercise to those purposes, and resides in the body politic at large. It is usual, however, in the charter creating the corporation, to vest the power of making by-laws in a select body, as for instance in a board of trustees or directors. (a) These corporate powers of legislation must be exercised reasonably, and in sound discretion, and strictly within the limits of the charter, and in perfect subordination to the constitution and general law of the land, and the rights dependent thereon. Subject to these limitations, the power to make by-laws may be sustained and enforced by just and competent pecuniary penalties. (b)

of the parties, and to establish the election, or order a new election, or make such order and give such relief as right and justice may require. See the case Ex parte Holmes, 5 Cowen, 426, to that effect.

(a) Angell & Ames on Corporations, 3d edit. ch. 10.

(b) See the opinions of the judges in the case of the King v. Westwood, 7 Bing. Rep. 1, and the very elaborate opinion of the assistant vice-chancellor of New York, in Westervelt v. Corporation of the City of New York, Hoffman's Ch. Rep.; and see Angell & Ames on Corporations, ch. 10, 3d edit. where this branch of the subject is treated, and with great and exhausting research. Every corporate body has a right at common law, and without statute, to make by-laws needful for the management of the business and property of the corporation, and to regulate the duties and conduct of its officers and agents. Savage, Ch. J., in The People v. Throop, 12 Wendell's R. 183. Child v. Hudson's Bay Company, 2 P. Wms. 209. In the case of the State of Louisiana, ex relat. Hatch v. The City Bank of New Orleans, decided on appeal to the Supreme Court of Louisiana, March, 1842, it was adjudged that a stockholder and director, without a resolution of the board, had no right to inspect the stock leger or transfer-book containing the list of the stockholders. See Rex v. Bank of England, 2 B. & Ald. 620. Rex v. Merchant Tailors' Company, 2 B. & Adolphus, 115, cited in support of the decision, and the case of The People v. Throop, in 12

1 Power to suppress a house, &c., will not authorize its demolition. Welch v. Stowell, 2 Doug. (Mich.) R. 332. But a power given to directors to pass by-laws, will authorize a majority of them to pass by-laws. Cahill v. Kalamazoo Mut. Ins. Co. 2 Doug. (Mich.) R. 124, ante, p. [295] note. (1)

2 The reasonableness of a by-law is a question of law and not of fact. State v. Overton, 4 Zabr. 435.

The power of amotion or disfranchisement of a member for a reasonable cause, is a power necessarily incident to every corporation. It was, however, the doctrine formerly, that no freeman of a corporation could be disfranchised by the act of the corporation itself, unless the charter expressly conferred the power, or it existed by prescription. (a) But Lord Ch. B. Hale held (b) that every corporation might remove a member for good cause; and in Lord Bruce's case, (c) the K. B. declared the modern opinion to be that a power of amotion was incident to a corporation. At last, in the case of The King v. Richardson, (d) the question was fully and at large discussed in the K. B.; and the court decided that the power of amotion was incident and necessary for the good order and government of corporate bodies, as much as the power of making by-laws. But

Wend., was cited in support of the decision of the court below. But a corporation cannot, by a by-law, subject to forfeiture shares of stockholders for non-payment of instalments, unless the power be expressly granted by the charter. Corporations cannot impose penalties, and take redress into their own hands. Kirk v. Nowill, 1 Term Rep. 118. In the matter of the Long Island R. R. 19 Wendell, 37. How far and when it is in the power of the corporation to enforce by suit the payment of subscriptions for corporate stock, and make and recover assessments for the same, is fully considered, and the cases critically examined in Angell & Ames on Corporations, 3d edit. ch. 15. In Tuttle v. Walton, 1 Kelly's Geo. R. 43, a by-law of a corporation creating a lien on the stock of the members for their corporate debts, is valid and binding between the corporators, and even as against a purchaser at execution of the stock, with notice of the lien, and when the lien was prior in time to the lien acquired under the judgment.2

A certificate of corporate stock is transferable by a blank indorsement, which may be filled up by the holder, by writing an assignment and power of attorney over the signature indorsed. Kortright v. Buffalo Commercial Bank, 20 Wendell, 91.3

(a) Bagg's case, 11 Co. 99 a. 2d resolution. See, also, Sty. Rep. 477, 480. 1 Lord Raym. 391. 2 ibid. 1566.

(b) Tidderly's case, 1 Sid. Rep. 14.

(d) 1 Burr. Rep. 517.

(c) 2 Str. Rep. 819.

1 Nor impose upon them a personal liability. Trustees of Free Schools, &c. v. Flint, 13 Met. R. 539. See also Downing v. Potts, 3 Zabr. 66. Winter v. R. R. Co. 11 Geo. 438. K. & P. R. R. Co. v. Kendall, 31 Me. 470.

2 The effect of subscriptions absolute and conditional was discussed in P. & K. R. R. v. Dunn, 39 Me. 587.

8 See Dunn v. Com. Bank of Buffalo, 11 Barb. R. 580. As to the effect of merely formal transfers, see Sabin v. Bank of Woodstock, 21 Vt. 353.

this power of amotion, as the court held in that case, must be exercised for good cause; and it must be for some offence that has an immediate relation to the duties of the party as a corporator; for as to offences which have no immediate relation to his corporate trust, but which render a party infamous and unfit for any office, they must be established by indictment and trial at law before the corporation can expel for such a cause. In the case of The Commonwealth v. St. Patrick Society, (a) while it was admitted to be a tacit condition annexed to the corporate franchise that the members would not oppose or injure the interests of the corporate body; and that expulsion might follow a breach of the condition; yet it was adjudged, that without an express power in the charter, no member could be disfranchised unless he had been guilty of some offence which *298 either affected the interests or good government of the corporation, or was indictable by the law of the land, and of which he had been convicted. If there be no special provision on the subject in the charter, the power of removal of a member for just cause resides in the whole body. (b) But a select body of the corporation may possess the power, not only when given by charter, but in consequence of a by-law made by the body at large; for the body at large may delegate their powers to a select body as the representative of the whole community. (c) 1

The cases do not distinguish clearly between disfranchisement and amotion. The former applies to members, and the latter only to officers; and if an officer be removed for good cause he may still continue to be a member of the corporation. (d) Disfranchisement is the greater power, and more formidable in its application; and in joint stock or moneyed corporations no stockholder can be disfranchised, and thereby deprived of his property or interest in the general fund by any act of the corporators, without at least an express authority for that pur

(a) 2 Binney's Rep. 441. See, also, to S. P., Willcock on Mun. Corporations, 271. (b) The King v. Lyme Regis, Doug. Rep. 149. Willcock on M. C. 246.

(c) Ibid. and 3 Burr. Rep. 1837.

(d) Angell & Ames on Corporations, 404, 3d edit.

1 People v. Higgins, 15 Ill. 110.