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tution of 1851. 2 Const. Debates, 1,238, 1,860, 1,918, ganization of said new county, it shall be the duty of 1,938, 1,910.
the General Assembly to organize the same." In the This examination of the Constitutional Debates shows Constitution, and throughout the legislation of the the affirmative sense of the convention to have been State, we believe without exception, whenever a majorthat amendments to the Constitution could be adopted ity of all the votes is required to carry a measure it is only by the majority of electors of the State. The so stated in substantial words; and when a plurality proceedings also show us that a contrary proposition of votes is sufficient to elect an officer it is declared was ultimately rejected. The section, as first intro that whoever shall receive the highest number of votes duced by Read, of Clark, required “a majority of the shall be elected, or that the electors shall elect the qualified voters to adopt an amendment to the Consti officer, without stating that it shall require a majority tution." Steveuson moved to amend the section by of the electors to make a choice. The people of a State inserting the words, “a majority of all the votes cast | may form an original constitution or abrogate an old for and against the same." This amendment was one and form a new one at any time, without any accepted, and in that form the section was referred to political restriction except the Constitution of the the committee and reported to the convention, as we United States; but if they undertake to add an amendhave seen, without the Stevenson amendment. Mr. | ment, by the authority of legislation, to a constitution Owen's amendment, still without the Stevenson amend. already in existence, they can do it only by the method ment, as we have also seen, was substituted for the pointed out by the Constitution to which the amendsection reported by the committee, and became a part ment is to be added. The power to amend a constituof the Constitution. 2 Const. Debates, 1,258-1,260. tion by legislative action does not confer the power to
We may thus ascertain the expressed intention of legislate on any other subject contrary to its prohithe framer of the Constitution. Affirmatively, that it / bitions. Collins & Frierson, 24 Ala. 100. should require a majority of all the electors of the With these constitutional provisions and legislative State to adopt an amendment to the Constitution; enactments before us, forming a line of precedents runand also their expressed intention. Negatively, that ning from and since the foundation of the State, to hold - a majority of all the votes cast for or against the that a plurality, or majority of a part instead of all the same," unless such majority was a majority of all the electors could ratify an amendment to the Constitution electors, should not be sufficient to ratify an amend - a far more important act than the proposal of the ment. The act of the Legislature by which the amendment, or the passage of a bill which is repealable amendment under consideration was submitted to - would be a departure from the line of safe reasoning the electors of the State for their ratification or rejec- and logical sequence, and contrary to the Constitution tion, in this respect followed the Constitution and and laws. affirms the same principle. The title of the act is : The principle of plurality, contended for by the "An act providing for the submission to the electors counsel for the appellee, frequently develops suffiof the State of Indiana for ratification, the constitu ciently glaring disproportions between the number of tional amendments proposed,” etc., and it declared electors of a constituency and the number of votes cast that "if a majority of the electors should thus ratify sufficient to elect; but when applied to the ratification any of said amendments, the same shall be a part of of a constitutional amendment, and pushed to an exthe Constitution."
treme, it runs into absurdity. The election of an A distinction will be observed in the Constitution as officer affects the right of no one except the person well as in the acts of the Legislature, between voting elected. To him it grants a privilege to be exercised to adopt the Constitution, or to ratify an amendment | for the public good, the exercise of which is a public to the Constitution, and voting to elect officers. The necessity. It does not affect the right of even the perConstitution requires a majority of all the votes to son defeated, but only denies him a privilege which ratify an amendment, but to elect an officer it requires cannot be granted except by an election. In such case only the highest number of votes, or a plurality. Sec the Constitution requires only the highest number of tions 4 and 5 of article 5 of the Constitution, providing votes to elect, though it may only be a plurality of a for the election of governor and lieutenant-governor, very inconsiderable number of the electors in propordeclare that in voting for governor the electors shall tion to the whole number. But the ratification of a designate for whom they vote as governor and for constitutional amendment affects the rights of millions whom as lieutenant-governor, * * * and the per | of people who are not electors and cannot vote, and son respectively having the highest number of votes for for an indefinite time, until the amendment shall be governor shall be elected. This difference in language abrogated by the same power that made it. In such between the highest number of votes and the majority case the Constitution requires the majority of all the of all the votes is not a mere accident of composition; electors to ratify the amendment. The principle of the words are used advisedly. So the Legislature, plurality, which might ratify a constitutional amenddoubtless, can provide by law for the ratification of a ment, irrepealable by legislative action, binding the constitutional amendment by a plurality of votes rights of two millions of people for an indefinite period, where there is no constitutional prohibition.
by the vote of two electors against a vote of one when Section 3 of article 7 of the Constitution, providing the whole number of votes cast was but three, is not for the election of supreme judges, declares that “one only unconstitutional, but is dangerous to human of said judges shall be elected from each district, and rights and repugnant to the sense of mankind. As the reside therein; but said judge shall be elected by the adoption of a Constitution is the considerate act of an electors of the State at large." In this provision in entire people, and as it binds all departments of tho reference to the election of an officer, the word “major- government and cannot be repealed except by the ity" of the electors is not used as it is in the section in same power that made it, its adoption should not be reference to the ratification of an amendment to the left to the vicissitudes of a meager plurality of votes Constitution. We must suppose that the framers of which the accidents of a day might cast one way or the Constitution meant just what, in plain words, another. they said; and that he people who ratified their labors We have seen that there is no analogy between electunderstood them in the same sense.
ing an officer and ratifying a constitutional ameudIn the fifteenth clause of the schedule of the Consti- | meut; nor is there any analogy between the cases cited tution, authorizing a new county to be created out of on behalf of the appellee, wherein taxes are assessed and the territory contiguous to the counties of Perry and granted by the vote of the majority of the electors and Spencer, it is provided that, “if a majority of all the the ratification of a constitutional amendment. In votes given at said election shall be in favor of the or- ! such cases the taxes assessed and the franchises granted
affect the rights of but few persons relative to the have been presented for judicial decision; indeed, we whole number of the people, and are temporary in | have been able to find only the single case above cited their nature, while the ratification of a constitutional presenting sa similar point to that before us. There amendment permanently affects the entire body politic, are many cases upon questions of levying taxes, grantand the comparison of the votes of the members of a ing privileges, establishing county seats, and electing private corporation which can affect only the officers, wherein the question of majorities and pluralcorporation and its property, with the vote of ities are discussed; but very few upon the ratification the electors of a State upon an amendment to the Con- | of constitutions or constitutional amendments. We stitution which affects the rights of all the people of must therefore mainly rely upon the precedents and the State, does not come to us with any force of an practices found in the history of our own State. State argument, nor throw any light that we can see upon v. Winkleman, 35 Mo. 103; Bayard v. Klinge, 16 Minn. the question before us.
49; Taylor v. Taylor, 10 id. 107; People v. Mayfield, 20 The appellant's counsel rely upon the case of Gillispy | id. 160; People v. Wayant, 58 I11. 263. v. Palmer, 20 Wis. 514. In that case the plaintiff was a The appellee's counsel refer us to the legislative and person of African descent. He brought his action executive construction given to the act of January 28, against the inspectors of the election for refusing to 1873, under which section 7 of article 10 of the Constiallow him to have his name registered as an elector, tution was submitted to the electors of the State, in averring that in pursuance of the Constitution and aid of our construction of section 1 of article 16. The laws, the question whether the rights of suffrage should construction of a legislative act by the co-ordinate be extended to persons of African descent had been branches of the government is entitled to great respect submitted to the electors of the State, and that a ma from this court; but the act of March 10, 1879, under jority of the votes cast upon that question was in favor which the present amendment was submitted to the of such extension, but admitting that such majority electors, is so different from the act of January 28, was not a majority of all the votes cast at such elec 1873, that we can derive but little aid therefrom. In tion.
the former act there was but the single question of the A demurrer for want of facts was sustained to the ratification or rejection of the amendment submitted complaint. On appeal to the Supreme Court the to the electors; the governor and secretary of State judgment was reversed. This case presents a question were authorized to declare the result of the election, similar to the one which we are considering, and if the and if it appeared “a majority of all the votes cast at Constitution of the two States were the same upon said election was in favor of the adoption of said prothis point, the decision would be entitled to great re posed amendment," then the governor was to prospect as an authority in the present case.
claim that “the same was duly ratified by the people." Section 1 of the Constitution of Wisconsin defines | The governor did so proclaim, and no one tioned who shall be electors, but does not include persons of his decision. The question is thus far settled. At the African descent. But there is a provision “that the time of submitting the present amendment to the vote Legislature may at any time extend by law the right of of the electors of the State, under the latter act, other suffrage to persons not herein enumerated; but no questions are also submitted, and the governor, by the such law shall be in force until the same shall have act, had no power to declare whether the amendment been submitted to a vote of the people at a general had been adopted or rejected. Nor does the latter act election and approved by a majority of all the votes provide any means by which the whole number of cast at such an election.
votes cast at that election can be ascertained. Section 1 of article 12 of the Constitution of Wis The argument of the appellee's counsel, that if a maconsin, providing for amendments, is expressed in jority of all the electors of the State was necessary to almost the same words as section 1 of article 16 of the the ratification of the amendment, it was unnecessary Constitution of Indiana, under which amendments to provide by the act of March 18, 1879, for a vote before us were proposed, differing in nothing essential against the ratification; and that as the law provides except that under the Constitution of Wisconsin for a negative vote, it indicates the intention of the amendments may be ratified by a majority of the Legislature that a plurality of affirmative votes over electors voting thereon, instead of a majority of the the negative votes should be sufficient to ratify the electors of the State.
amendments, is auswered by section 2 of article 26 of It is plain that the two provisions in the Constitu the Constitution, which requires “if two or more tion of Wisconsin upon the question of extending the amendments shall be submitted at the same time, they right of suffrage by a legislative enactment and by an shall be submitted in such a manner that the electors amendment to the Constitution are in apparent con shall vote for or against each of such amendments flict. It was thereupon the duty of the Supreme Court separately." Nor do we now decide if the act provided to harmonize the two sections and give uniformity to that a plurality vote in favor of the amendment should the Constitution by construction. The court very be sufficient to ratify it, that it would have been valid properly said: “The right of suffrage by such an against section 1, article 10, of the Constitution, which amendment could be given to colored persons. It is proclaims that if a majority of the electors of the State probable that the framing of the Constitution required shall ratify the amendment it shall become a part of more votes to extend the right of suffrage in one way the Constitution. than in another. More votes to approve the act of the | The counsel for appellee have reminded us of the legislation conferring the right when so approved than momentous nature of the question we are considering, to make and approve any and all amendments to the and suggested the disastrous consequences which, as it Constitution, including that conferring suffrage upon appears to them, must follow to the social, municipal colored persons? We see no reason for such a conclu and political interests of the State if our decision sion."
should be adverse to their client. We are not imThis is a sound judicial rendering and it con pressed with the force of this argument to a court. ducted the court to the only judgment it could Courts know nothing of policy or expediency. It is render without impairing a constitutional provision. their duty to understand the Constitution and the But as the two Constitutions are fundamentally differ laws, and uphold them by their decisions. Nor do we ent as to the proportion of votes necessary to ratify an see any danger of disaster in the discharge of a plain amendment, the decision cannot be held as an author duty. History and experience prove that disasters folity in the present case.
low a disregard of Constitution and laws, and that As the adoption of an amendment to a constitution peace, liberty and prosperity are secured by obedience is of rare occurrence, but few cases upon the question I to them. As the Constitution is the foundation of
government, and the bulwark which protects the gov- | substantial number who vote at general State elections, erned in all human interests, and as its ratification is and the number of whose votes is officially returned the most solemn political act of a people in making by sworn officers into the office of the secretary of changes therein of amendments thereto, which are State. This number need not necessarily include irrepealable by legislative action, the letter and spirit | electors who are sick, absent from the State, or preof the Constitution and the laws must be complied vented from going to the polls. The construction with, or the amendment so proposed cannot be re must be such as has a sensible application to the affairs garded as a part of the original instrument.
of men, rather than one of abstract number or theory. The great advantage, as is supposed, that will arise The history of a State, the number of inhabitants, and to the people from the ratification of the amendment | its official statistics, are publio facts, known to all peris also urged upon us as an argument. Of advantages sons, and never need be averred or proved in judicial or disadvantages it is not our province to judge. The proceedings. question for us to decide is: Has the amendment been He also holds that if the whole number of votes cast ratified or not? The people of the State of Indiana do at a given election should be less than the whole numnot desire advantages obtained at the expense of the ber of the State, thus interpreted, the latter number Constitution; and no considerable advantage could being the constitutional guide, would govern, the compensate them for a breach of the fundamental law former having ovly the authority of legislative action, of the State. They would pay dearly, indeed, for the for the number cast might bear a very inconsiderable advantage of an immediate decision of this court that proportion to the whole number of electors in the the amendment was ratified if it had to be made in State. In the opinion of this court the consequence, violation of the Constitution and the law.
spoken of in the argument, of this decision, can at most This court holds that it requires at least a majority | be but a temporary inconvenience. We perceive no of all the votes cast at the same election to ratify a irregularity in the proposal of the amendment for raticonstitutional amendment. We also hold that as the | fication. It has simply not been ratified, and not been act of March 10, 1879, is defective in not providing for rejected. The vote upon it was ineffectual for want the count of the aggregate number of votes cast of the constitutional majority. We see no reason why throughout the State on the day of the election, or in the General Assembly may not submit the amendment not providing some means to find out the whole num-) to the electors of the State, under an amended act, ber of votes cast, by which it might be learned what such as experience may prove to be sufficient to preproportion the number cast in favor of the raiification sent the question to the courts if it ever should arise bore to the whole number, there is no source from again. which this court can ascertain whether the amend The court below erred. We sustain the appeal at the ment received a majority of all the votes cast at the costs of the appellee. election or not. As the amendment was submitted Niblack and Scott, JJ., dissent. upon the day of the general spring elections throughout the State, and as there were, by law, officers to
INJUNCTION OF PUBLICATIONS INJURIOUS elect at the same time in the various counties, it must
TO TRADE - JURISDICTION. be presumed that other votes than those for or against the amendment were cast at the same time. From the peculiar ballots used in voting upon the amendment,
NEW YORK SUPREME COURT JUNE, 1880. many electors may have voted “no” or “yes" upon the question of the amendment, which votes would
CROFT et al. v. RICHARDSON ET AL. not be counted; such, also, would be counted in esti Defendant, who had letters patent for a "carpet exhibitor," mating the whole number of electors voting. It is also issued circulars setting forth that plaintiffs, who also held that the Constitution must remain as it was before held letters patent for a carpet exhibitor, “or othe the amendment was submitted, until it shall affirma
responsible parties," professed to have "a new carpet tively appear that the amendment is ratified. As it
exhibitor, intending to make considerable profit before
legal proceedings put a stop to their nefarious efforts," does not thus atfirmatively appear, we must hold that
and that plaintiffs had no right "to make, sell or lease the amendment is not ratified by a constitutional
any carpet exhibitors," and threatening legal proceedmajority. The opinion, therefore, of this court is that
ings against any one " purchasing, leasing or using such it requires a majority of the electors of the State to exhibitor.” It appeared that no suit for infringement ratify an amendment to the Constitution, but that the of patent had been commenced, and it did not appear whole number of votes cast at the election at which that defendant intended to commence any.Held, that the amendment is submitted may be taken as the num
a State court had jurisdiction to enjoin defendant from ber of electors in the State.
issuing the circulars, and that there was sufficient The writer of this opinion, speaking for himself only,
shown to authorize an injunction. holds that it requires the votes of a majority of the VOTION for injunction made at Chambers to reelectors of the State to ratify a constitutional amend VI strain defendants from publishing and distributing ment. He thinks that this is not only the plain mean
two certain circulars. Sufficient facts appear in the ing of the words used in section 1 of article 10 of the
opinion. Constitution, but that it was also the manifest inten
A. Bell Mulcomson, Jr., for plaintiffs. tion of the framers of the Constitution, as ascertained by the proceedings of the convention. He also holds
George Gifford, for defendants. that the number of electors of a State is a public fact, POTTER, J. This is a motion for an injunction to which the courts must ascertain, without averment or restrain the defendants from publishing and distributproof, whenever it is necessary to the decision of a ing two certain circulars set forth in the complaint. cause. For this purpose a court may look to the It appears from the complaint and the motion papers archives of the State, to the official returns of general that Peterson, one of the plaintiffs and associated in State elections, to the legislative action, and the pro- | business with plaintiff Croft, procured in 1879 letters clamation of the executive. He does not mean that a patent for a carpet exhibitor, and that defendant court must know the exact number of electors of the Richardson procured letters patent for a carpet exhibState to a unit. This is impossible, for the number, on itor in 1875, and that the other defendants are his account of death and coming of age, is not the same agents or licensees in connection with his patent. during any twenty-four hours, and what is impossible The defendants are charged with publishing and disto do is not required to be done. The practical mean tributing circulars containing libellous matter in reing of the phrase "all the electors of the State," is that spect to the plaintiff's character and business in manu
facturing, selling and leasing carpet exhibitors, and TRANSFER OF CORPORATE SHARES - LIAthat plaintiff's business success and profits have been
BILITY. OF CORPORATION FOR and are injuriously affected by means thereof. The
WRONGFUL ISSUE OF circulars represent “that plaintiffs, or other irrespon
CERTIFICATE. sible parties, are sending out circulars professing to have a new Carpet Exhibitor, intending to make a considerable profit before legal proceedings put a stop TEXAS SUPREME COURT, MARCH 23, 1880. to their nefarious efforts. That plaintiffs had no right or authority to make, sell or lease any carpet exhibit STRANGE V. HOUSTON & TEXAS CENTRAL RAILWAY ors, and that any merchant or responsible person, pur
Co. chasing, leasing and using such exhibitor, is liable in
The by-laws of a corporation provided that a transfer of its damages and costs of prosecution," etc. That the
stock should be made in writing, and that upon the plaintiffs have been making such exhibitors under a
presentation of such transfer with the ccrtificate to patent issued to plaintiff Peterson, and selling and
the secretary, a new certificate should be issued to the leasing the same, and that circulars issued by defend assignee, and the certificates of stock contained a proants have injured and are injuring their business by vision to the like effect. B., the owner of stock, transdebarring parties from buying, leasing and using the ferred the same with the certificate to F., from whom same, and that defendants, one or more of them, de
plaintiff received a transfer with the certificate for
value. B. subsequently transferred the stock for value clare that it is not proposed to uselessly expend money
to M., but without the certificate. The corporation isin proceeding legally against the plaintiffs at present,
sued a new certificate of the stock to M. Held, that the to protect their interest, eto.
corporation was liable to plaintiff for the value of the It is plain from the case presented upon this motion,
stock, even though the record in the books of the comthat these circulars, sigued and published by the de pany showed title to the stock in M. at the time plaintfendants, are calculated to and intended to, and do in iff purchased the certificate. fact injure the plaintiff's business. Will the law per The records of the corporation were not constructive notice mnit the continuance of such publications?
to persons dealing in its stock. It is legal and proper for parties claiming rights un
ACTION for damages by reason of the wrongful der letters patent, to publish the rights claimed by
| A issue of a certificate of stock. The facts appear them, and to issue notice and warning of prosecution
in the opinion. of all parties who violate the rights secured by such patent, if done in good faith, and the court will not
BONNER, J. This case is one of first impression in restrain publications and circulars of that character. this court, and we have endeavored to give it that full Hovey v. Rubber Co., 57 N. Y. 119.
consideration in the light of authority, cousistently In this case the plaintiffs claim the right to make with the pressure of other business, which its importand dispose of a carpet exhibitor under the patent ance demands. granted to Peterson, and do not deny the existence or It involves the question of the liability of a railroad validity of the patent granited to defendant Richard company for damages for having issued new shares of son, or defendant's rights thereunder, to make and stock to one claiming under the first shareholder, when dispose of the same. The defendants, however, do the original certificate is still outstanding in the hands deny the validity of plaintiffs' patent and the rights of an innocent third party, but who had not presented under the same, claimed and exercised by plaintiffs. the same, with his transfer, to the office of the comThis court has not jurisdiction to try and determine pany, previously to the issuance of the new stock. disputed rights and claims under patents granted by To determine the liability of the company to some the United States government. But that is not the | extent necessarily involves the merits of the respective real question involved in this controversy between the titles of the two claimants, though but one is before parties. The plaintiffs, while not denying the defend- | the court. ant's rights under this Richardson patent, claim that The original certificate of stock issued on April 1, they have rights under the Peterson patent, aud that 1861, to J. M. Browder, reads as follows: "Houston & they are lawfully engaged in the making, selling and Texas Central R. R. Co., No. 19. Four shares. This leasing exhibitors under their patent, and that the de certifies that J. M. Browder is proprietor of share No. fendants are publishing false and malicious libels con 917, in the capital stock of the Houston & Texas Cencerning the plaintiff's business and their business char tral Railway Company, established by Acts of Incoracter and transactions. This the State courts have the poration passed by the Legislature of the State of right and jurisdiction to restrain. Snow v. Judson, 38 Texas, subject to which, and the by-laws, this certifiBarb. 210; Thorley v. Massam, a case in the English cate is transferable by assignment, and upon surrender Chan. Div., and published in 21 Alb. L. J. 171.
hereof to the directors, a new certificate of proprietorThe circulars issued and distributed among the par ship of said share will be delivered to the assignee.” ties dealing with the plaintiff's go beyond making Plaintiff, Strange, holds possession of this original a claim, that plaintiffs are infringing upon the certificate for a valuable consideration undes the folrights of the defendants, and giving notice of such in lowing chain of title: (1) A transfer from J. M. Browfringement and its legal consequences. They substan der, the original grantee, to E. S. Fletcher, dated tially charge that plaintiffs are prosecuting a business | March 14, 1862. (2) A transfer from E. S. Fletcher to which is an unlawful interference with the defendant's J. R. Coryell, dated May 10, 1873. (3) A transfer from rights, and are irresponsible, and hoping to make J.R. Coryell to plaintiff, B. A. Strange, dated August something out of it before legal proceedings stop them, 29, 1873. and that their efforts in that direction are nefarious, | The title under which Hutchins holds the new stock This language is quite too excessive and ill chosen to is as follows: Browder sold and transferred said certiconvey simple information, that plaintiffs and their ficate of stock on May 6, 1868, for valuable considerapatrons have no rigbt to make and sell carpet exhibit tion to H. C. Merriman. ors and are liable to the defendants for doing so. At In pursuance of said assignment from Browder, all events I think it quite safe to hold that such lan Merriman transferred the stock on the books of deguage is satisfactory evidence of malice, until the de
fendant's company to A. S. Richardson, and certificate tendants commence an action in good faith against the
of stock was issued to Richardson on July 27, 1868, and plaintiffs or other parties, to vindicate the rights which the defendants claim.
afterward Richardson transferred the stock to W.J. Motion to restrain the publications complained of Hutchins, on or about January 14, 1871. The certificate granted, with ten dollars costs of motion.
I to Richardson was surrendered and a new certificate
for the same stock was delivered to Hutchins, who the stock, would pass by a transfer of the certificate, holds and represents the stock in defendant's com and this without it being recorded on the books of the pany.
company. Angell and Ames on Corp., $ 353-4; id. 564; The by-law of the company, authorized by its char New York, etc., R. R. Co. v. Schuyler, 34 N. Y. 30; ter, upon the subject of the transfer of stock, reads: McNeil v. Bank, 46 id. 331 ; Leitch v. Wells, 48 id. 592;
“Sec. 4. The transfers of any share may be made by Bank v. Kortright, 22 Wend. 362; Turnpike Co. v. Feran instrument in writing signed by the owner, which ree, 2 C. E. Green (17 N. J.) 118; Bank v. McElrath, 2 writing may be indorsed on the certificate, or made on Beas. (13 N. J.) 24. a separate paper. The assignee must cause his trans Such certificate and transfer is prima facie sufficient fer to be presented and delivered to the secretary of to authorize the holder to demand of the company the company before it will entitle him to be recognized the privileges and benefits to which the original holder as the owner, and upon presentation of such transfer, I would be entitled. with the certificate of stock, the s
shall record This construction of the legal effect of a certificate of the same in books to be kept for that purpose, and stock and its trausfer is now required, almost as a called “Report Transfers," and the president and sec matter of necessity, both for the benefit of corporaretary shall issue new certificate or certificates to the tions and of trade, since stocks in incorporated comassignee as he may be entitled, unless they have notice panies have become such an important basis for specuof fraud or invalidity of said transfer."
lation and collateral security. To hold otherwise Subsequently to the issue of the new stock to Hutch would virtually withdraw such stocks from all other ins a dema ud was made to the company b
e plaint than the home market. iff, Strange, for the issuance of stock to him, he having Thus it will be seen that the rights of a bona fide presented the original certificate with the transfer to holder of a certificate of stock are two-fold in their himself, which demand was refused. On the trial be character. As against the shareholder he would, low a jury was waived and judgment rendered by the whether his transfer be recorded on the books of the court for the defendant.
company or not, have a good title; as against the From the above statement it will be seen that the company, to enable him to demand that he be recogoriginal certificate of stock was transferable by assign- nized as a shareholder and entitled to his rights and ment, either indorsed on the certificate itself or on a privileges, he should present his certificate and transseparate piece of paper, and was not required to be fer for record in the office of the company. New York, made, as in some cases, on the books of the company. I etc., R. R. Co. v. Schuyler, 34 N. Y. 80.
By the terms of the certificate and by-law there was There is a class of cases in which it is held that shares a continual affirmation made by the company that of stock cannot be assigned simply by delivery and they would hold, for the use and benefit of the rightful transfer of the certificate, unless made on the books of owner of the certificate, the amount of stock tberein the company, so as to defeat the rights of an attachment specified until it was presented at the office of the or execution creditor without notice by levy at the company for cancellation and new stock issued; and office of the company. the company was estopped from denying this. Hol These cases generally turni upon some particulr probrook v. Zinc Co., 57 N. Y. 616; In re B. & San F. R. vision of the charter or upon some statute providing R. Co., E. L. R. 32 B. 584.
for such levy. The company is, to a certain extent, the custodian of In the absence of some such positive provision, the rights of the stockholders, and is responsible for which would make a transfer on the books of the coman illegal issuance of stock to their prejudice. Bayard pany an essential condition, as between the shareholder v. Bank, 52 Penn. St. 234; Louery v. Bank of Balti- and his assignee, to pass title as against such creditor more, Taney's C. C. R. 310; Bank v. Lanier, 11 Wall., it is believed that by reason of the policy which favors 309; Salisbury Mills v. Townsend, 109 Mass. 121; Pratt the unrestrained transfer of shares of stock, the interv. Taunton Copper Co., 123 id. 110; Loring v. Salisbury est of the creditor should be subordinate to that of Wills, 1.25 id. 150; Bridgeport Bank v. R. R. Co., 30 such bona fide assignee; and particularly as otherwise Com. 231; New York & C. R. Co. v. Schuyler, 34 N. such assignee would virtually be without remedy if
the company could protect itself under the levy and It is not intended by this, however, to prescribe an sale. Broadway Bank v. McElrath, 2 Beas. (N. J.) 24. arbitrary rule that the company shall, in any event, ! Browder, the original shareholder, testified that he without being in default, as by negligence or fraud, be placed his certificate of stock with a blank transfer, liable for the issuance of the stock to any other party executed by him thereon, into the hands of Fletcher than the holder of the certificate, but that it takes the for the purpose of effecting a sale. Having thus risk, if issued without due precaution, that the cer given to Fletcher possession of the original certificate tificate may be presented by some one having the su with the external indicia of ownership and the right perior title,
of disposal, Fletcher's subsequent sale of it, under The non-production of the original certificate of which plaintiff, Strange, claims, clothed him with the stock was dotice to the company that such superior apparent legal title. The rights of Strange, if bona fide, title might be in a third party. New York, etc., R. R. do not depend upon the actual title or authority of Co. v. Schuyler, 34 N. Y. 81; Bayard v. Bank, 52 Penn. Fletcher to sell, but upon the act of Browder giving St. 235.
the apparent authority and which would estop him A provision for the record of the transfers of certi and his assignee. Salters v. Everett, 20 Wend. 278; ficates, to be made upon the books of the company, as MeNeil v. National Bank, 46 N. Y. 3:25 ; Bridgeport required by the act of December 19, 1857 (P. D., art. | Bunk v. R. R. Co., 30 Conn. 231; Turnpike Co. v. Fer4909), was intended for the benefit of the company, so ree, 2 C. E. Green (N. J.) 117; Holbrook v. Zinc Co., 57 that it might know, by ready reference, who were | N. Y. 617. legal shareholders, who were entitled to vote at its The title of Strange, however, was subject to be demeetings, receive dividends, etc., and to whom it feated by a superior title in Browder or his assignee, could safely issue new stock. Bank v. Kartright, 22 | if it could be shown that Strange purchased either Wend. 362; Broadway Bank v. McElrath, 2 Beas. (N. with notice of it or without paying a valuable considJ.) 36.
eration therefor. It is uncontradicted, both that Although the certificate was not the share of stock Strange was a purchaser for value and without actual itself, it was what the company constituted the visible notice, and it remains to inquire whether he can be representation of it; and as between the shareholder | charged with constructive notice. and his assignee, the equitable, if not the legal title to! So far as it appears, either from any public statute or