(Proxies.)

LEWIS, C. J., delivered the opinion of the court. There is some difference of opinion on the question, whether the stockholders in a corporation, purely of a private nature, have a right to vote by proxy. State v. Tudor, 5 Day 329; Taylor v. Griswold, 2 Green 223; Ang. & Am., Corp. ch. 4, § 7. But it seems reasonable to hold that, in a case where the shareholders are embarked in a common enterprise, and where the vote of each affects the interests of the others in the management of the concern, the selection of directors should be made under circumstances favorable to a consultation with each other, so that they may have the benefit of each other's views and information relative to their common interests. This can only be done by requiring the shareholders to be present, when voting.

It is not necessary, however, to decide this question, in the case now before us. The charter declares that "each person, being present at the election," shall be entitled to vote; and there is no provision in favor of voting by proxy. By the term "present," we understand the charter to mean an actual, not a constructive presence; this is the ordinary sense of the word; the clause in question, by strong implication, excludes all voting by absent stockholders. The error in conducting two former elections passed sub silentio, and cannot control the clear intention of the charter. It was no part of the duty of the stockholders to give previous notice of their intention to insist on a compliance with the requirements of the charter; the instrument itself was sufficient notice of what would be required. The judgment of the court below was correct. Judgment affirmed.

The right of voting by proxy is not a general one, and the party who claims it must show a special authority for that purpose; it has been said, that it may possibly be delegated, in some cases, by the by-laws of a corporation, where express authority is given to make such by-laws, regulating the manner of voting. Philips v. Wickham, 1 Paige 598.

(Proxies.)

And it was, accordingly, so held, in State v. Tudor, 5 Day 329; in that case, Ingersoll, J., said, “I agree most fully, that by the common law, every vote in a corporation instituted for the public good, either the good of the whole state, 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 moneyed 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 moneyed 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."

The authority of this case has, however, been much impaired by the decision of the supreme court of New Jersey, in Taylor . Griswold, 2 Green 223, where it was ruled, that the obligation and duty of corporators to attend in person and execute the trust or franchise reposed in or granted to them, is implied in and forms a part of the fundamental constitution of every charter in which the contrary is not expressed. In that case, it was said by Chief Justice Hornblower, "that when the charter is silent, and no by-laws have yet been passed, regulating the mode of election, and of voting upon other questions that may arise in conducting the ordinary and appropriate business of the corporation, the corporators, when lawfully assembled, must be governed by the same rules and principles that prevail in all primary assemblies; that is, until a different rule has been established by some competent authority, every question must be decided, and every election determined, by the majority; or, in other words, by the major part numerically of those who are personally present and voting." "It is incidental to every corporation to have the power of making by-laws, regulations and ordinances, relative to the purpose for which it was instituted. But this incidental power of legislation is limited, not only by the terms of the charter (according to the maxim, expressum facit cessare tacitum), but by the spirit and design of the charter, the purpose for which it was created, the object which the legislature had in view, and the general principles and policy of the common law. If, in view of these first and elementary

(Proxies.)

principles, we repeat the question, whether the right to make a by-law, dispensing with the personal attendance of members, and permitting them to appear and vote by proxy, is incident to a corporation, the answer must be in the negative; such a power is not essential, nor even apparently necessary, to carry into effect the object for which corporations are generally created." The learned chief justice then went on to show that such power was not conferred by a general authority, in the charter, to make by-laws for the government of the corporation; and that although, in the absence of any charter provisions, a corporation has power to provide for the mode of election to its corporate offices, yet, that it does not follow that it may permit its members to delegate their corporate rights, and send an agent or proxy to represent, deliberate, judge and vote for them. "The common law," concludes the learned judge, "which requires all votes to be given in person, is a part of the law of the land; the by-law in question is repugnant thereto, and consequently void." See 4 Kent Com. 295 n.

A stockholder may revoke a proxy, though given for a valuable consideration, if necessary to prevent a fraudulent use of it. Reed v. Bank of Newburgh, 6 Paige 337.

STATE v. ADAMS.

In the Supreme Court of Alabama.

JANUARY TERM 1829.

(REPORTED 2 STEWART 231.)

[Majorities.]

Where two candidates receive an equal number of votes, there is no election. The sheriff has no authority to give a casting vote between two candidates for the office of sheriff.

An act providing that the returning officer shall only vote in a certain contingency, is constitutional; a citizen, by accepting office, may waive a constitutional franchise.

If a vacancy in office exist, to be filled by executive appointment, the judiciary cannot inquire into the reasons of the governor for making the appointment.

A failure to elect, creates a vacancy, which can be filled by executive appointment.

Information in the nature of a quo warranto, on the relation of John E. Anderson, to inquire by what authority James H. Adams claimed to exercise the office of sheriff of Marengo county.

The defendant alleged in his answer, that at the general election, held for Marengo county, on the first Monday in August 1828, the relator, John E. Anderson, one Henry Chiles and Thomas Adams were candidates for the office of sheriff; that Anderson and Chiles received an equal number of votes, and more than Adams; that in consequence of a mistake in computing the votes, the late sheriff proclaimed Anderson duly elected; that on the Saturday after the election, the mistake having been discovered, the sheriff re-examined the returns, and found that Anderson and Chiles had received an equal number of votes, whereupon he gave his casting vote in favor of Anderson, and forwarded his certificate of the result to the secretary of state. That Anderson did not receive a majority or

(Majorities.)

plurality of votes, at the election, but only an equal number with Chiles, whereby, in consequence of the expiration of the term of office of the former sheriff, the office became vacant, and was filled by the governor, on the 25th September 1828, appointing and commissioning him, the defendant, to the said office of sheriff. That under this commission, he had been duly qualified, had given bond, and had taken on himself and continued to discharge the duties of the office.

The relator put in a demurrer to this answer, which was overruled by the court; a replication was then filed and issue joined, and at the same time, there was a verdict and judgment for the defendant. The relator assigned for error the overruling of the demurrer, and the decisions on certain bills of exception, which are fully stated in the opinion of the court.

TAYLOR, J., delivered the opinion of the court. It is insisted for the relator: 1. That he was legally elected, and is entitled to the office: 2. But if he was not, that there was no vacancy in the office, which authorized an executive appointment; and therefore, the defendant is not authorized to discharge the duties of the office: 3. But if the court should come to neither of these conclusions, that the judgment must be reversed and remanded, because the court below erred in rejecting the evidence offered by the relator, and receiving that to which he objected. I will reverse the order in which these points were discussed in the argument, and consider the third point, in the first instance.

The relator, on the trial of the case in the circuit court, offered in evidence some papers, purporting to be representations to the governor, in the form of petitions of many of the citizens of Marengo, by which he was induced to commission Adams, with a view to show, as he alleged, that fraud was practised upon the governor, in procuring from him the commission; which were ex