may come within the operation of the principle. Within this limit it is the peculiar and exclusive office of the court to decide upon the validity of the regulation. But there is another class of regulations, made by corporations, as well as by individuals, who are common carriers of passengers, which operate upon, and affect the rights of others which are not, properly speaking, by-laws of the corporation, and which do not fall within the operation of the principle. Of this character are all regulations touching the comfort and convenience of travelers, or prescribing rules for their conduct to secure the just rights of the company. It is not perceivable of this class of regulations, that they are never unreasonable unless they are unlawful. On the contrary, they are unlawful because they are unreasonable, or an unnecessary infringement of the rights and liberty of the passengers. The reasonableness and validity of a regulation, that passengers by railroad or steamboat should exhibit their tickets when reasonably requested; that they should not smoke or indulge in other filthy, or offensive practices; that male passengers should not enter a car or a saloon, especially appropriated to females, might be conceded, and the right of the company to enforce them, even by excluding, in case of necessity, the offending passenger from the train. But it would scarcely be contended that a regulation requiring passengers continually, or as often as the caprice or malice of a conductor might require it, to exhibit their tickets; forbidding them to speak, or change their seats from one part of a car or saloon to another, when the right of no other passenger was affected, was a regulation lawful in itself or which might safely be enforced. This latter class of regulations are no more in violation of the charter of the company, or of any particular statute, than the former. But they would be held unlawful, because they are unreasonable, and an unnecessary infringement of the rights and liberty of travelers. The distinction between such regulations as are necessary, and conducive to the comfort and convenience of travelers, or to protect the rights of the company, must from its very nature be a question of fact rather than of law. The reasonableness and unreasonableness of the regulation is properly for the consideration, not of the court, but of the jury. But there was in reality no such question involved in the present case. The right to transfer conductors' checks, resulted upon a contract which the company had a clear and unquestionable legal right to enforce. The question was improperly submitted to the jury, and the verdict is against law, and contrary to the evidence. New trial granted. Note. See note 85 Am. Dec. 617, et seq; 1886, L. S. & M. S. R. Co. v. Rosenzoweig, 113 Pa. St. 519; 1892, Am. Liv. St. Co. v. Chicago L. S. Ex., 143 Ill. 210, 36 Am. St. Rep. 385; 1899, Northport, etc., Ass'n v. Perkins, 93 Maine 235, 74 Am. St. Rep. 342. Sec. 348. 2. Power to make. (a) Incidental. HOBART, J., IN NORRIS v. STAPS.. c. 1625, Hobart's Rep. 211 a. "I am of the opinion that though power to make laws is given by special clause in all incorporations, yet it is needless; for I hold it to be included, by law, in the very act of incorporating, as is also the power to sue, to purchase, and the like. For as reason is given to the natural body for the governing of it, so the body corporate must have laws, as a politic reason to govern it; but those laws must ever be subject to the general law of the realm, as subordinate to it. And therefore, though there be no proviso for that purpose the law supplies it. Note. See 1613, Sutton's Hospital, 10 Co. 23a., supra, 264, on 266; 1815, St. Luke's Church v. Mathews, 4 Dessaus. (S. C.) 578, 6 Am. Dec. 619; 1819, Commw. v. Woelper, 3 Serg. & R. (Pa.) 29, 8 Am. Dec. 628; 1832, Leggett v. N. J. M. & B. Co., 1 Saxton Ch. (N. J.) 541, 23 Am. Dec. 728; 1834, Taylor v. Griswold, 2 Green Law (N. J.) 222, 27 Am. Dec. 33; 1895, Engelhardt v. Fifth Ward, etc., Ass'n, 148 N. Y. 281, 35 L. R. A. 289; 1899, Bailey v. Association of Master Plumbers, 103 Tenn. 99, 46 L. R. A. 561. Note, 85 Am. Dec. 618. Sec. 349. Same. (b) This power resides in the shareholders or members, unless otherwise provided. THE MORTON GRAVEL ROAD CO. v. WYSONG.1 1875. IN THE Supreme Court OF INDIANA. 51 Ind. Rep. 4. [Action to recover & penalty for violating a by-law regulating tolls. Judgment below for plaintiff. The by-law was adopted by the directors, and not by the corporation at large. The statute provided: "Such company may make, enact, and publish any and all ordi nances and by-laws," etc.] DOWNEY, J. This is in conformity to the statute on the subject, enentitled "An act establishing general provisions respecting corporations," I G. & H. 267, section 2 of which provides that "corporations shall, where no other provision is specially made, be capable, in their corporate name, to make necessary by-laws," etc. The power to make by-laws resides in the members of the corporation at large, where there is no law or valid usage to the contrary. 1 Statement abridged. Only that part of opinion relating to the one point is given. § 350 RIGHT TO MAKE BY-LAWS. In Angell & Ames on Corp., section 327, it is said: "Unless by the charter, or some general statute to which the charter is made subject, or by immemorial usage, this power is delegated to particular officers or members of the corporation, like every other incidental power, it resides in the members of the corporation at large, to be exercised by them in the same manner in which the charter may direct them to exercise other powers or transact their general business, and if the charter contain no such direction, to be exercised according We must, therefore, treat the to the rules of the common law," etc. by-law in question as invalid, and as having nothing to do with the question to be decided. Judgment reversed. * Note. See, also, 1827, Union Bank v. Ridgley, 1 Har. & G. (Md.) 324; 1868, Stevens v. Davison, 18 Gratt. (Va.) 819, 98 Am. Dec. 692; 1873, People v. Crossley, 69 Ill. 195; 1880, Carroll v. Mullanphy Sav. Bank, 8 Mo. App. 249; 1887, State Savings Assn. v. N. J. P. Co., 25 Mo. App. 642; 1893, Brinkerhoff-Farris, etc., Co. v. Lumber Co., 118 Mo. 447, infra, p. 1162; 1899, North Milwaukee T. S. Co. v. Bishop, 103 Wis. 492, 45 L. R. A. 174; note 85 Am. Dec. 618. But the shareholders may delegate authority to make by-laws to the directors, or the statute or charter may authorize them to do so: 1845, Cahill v. K. M. I. Co., 2 Douglass (Miss.) 124, 43 Am. Dec. 457; 1875, Spurlock v. Pacific R., 61 Mo. 326. Sec. 350. (c) Limits on power to make. 1. Forfeitures. IN THE MATTER OF THE ELECTION OF DIRECTORS OF THE LONG ISLAND R. R. CO.1 1837. IN THE SUPREME COURT OF NEW YORK. 19 Wendell's [Motion to set aside an election, for refusing to permit Edwin Lord vote 1200 shares of stock, for the reason "that the stock had already been declared forfeited for default in payment of the calls." If these shares had been voted the result of the election might have been changed. The forfeiture was declared under a by-law enacted for that purpose.] NELSON, C. J. * The corporation possess the power to make by-laws not inconsistent with any existing law, for the management of its property, the regulation of its affairs, and for the transfer of stock. This is the broadest general power con(2 R. S. 602, § 1, sub. 6. ferred upon it; but it is not new, and would have existed as incidental. When taken as incidental it must be exercised in conformity to the general law of the land, that being the rule to regulate the proceedings of artificial bodies, as well as the conduct of natural persons, independently of express provisions of the charters of those Only so much of opinion as relates to the one point is given. companies to the contrary. This general law has ascertained the rights of person and of property of the citizen, and established modes of proceeding in case of a violation of them; and corporate bodies must conform to them, in seeking redress, the same as individuals. The former can no more take the remedy into their own hands than can the latter. So strict has this salutary principle of subjection been held in England, that even a by-law in pursuance of an express power in a charter granted by the king, is void, if contrary to the common law or act of parliament. (1 Kyd on Corp., 109; Willcock on Corp., 95; Angel & Ames, 186; 8 Co. 125, a, 127, 6; 2 Inst. 47; 1 T. R. 118.) Thus a by-law imposing a forfeiture of goods is void, though the letters patent authorized it; and a power granted to a corporation of dyers to search, and if they found cloth dyed with logwood, to seize it as forfeited, was adjudged void as contrary to magna charta. On the same principle, by-laws in restraint of trade are adjudged void. (11 Co. 53; 1 Burr. 12; 4 Burr. 1951; 7 Dowl. & Ryl. 601; 1 Bacon's Abr. 547; Angel & Ames, 184; Willcock, 142.) So a by-law that may be lawful can not be enforced by an extraordinary penalty, such as imprisonment or forfeiture of goods, or by distress and sale of goods, for, by the general law of the kingdom, no man is to be imprisoned, or dispossessed of his goods and chattels nisi per legale judicium parium suorum, vel per legem terræ: and if such penalties were allowed, corporations would be enabled to set up private particular laws in contradiction to the laws of the land, which is against the nature and essence of a by-law. (Clark's Case, 5 Co. 64; 3 Salk. 76; Willcock, 98; 1 Bacon's Abr. 551.) Even an act of parliament does not by implication invest the corporation with any extraordinary authority; and if it is intended to be given, it must be by express words to that effect. In Kirk v. Nowill (1 T. R. 118), which was an action of trespass for seizing and taking a quantity of forks, the defendant justified under an act of parliament incorporating the inhabitants of the Liberty of H. into a company of cutlers, and under a by-law of the company. The act authorized the adoption of such by-laws as appertained to good regulation and workmanship in the manufacturing of cutlery wares, with power to impose reasonable pains, penalties and punishment, by fine or amercement, in case of violation, and which was to be levied to the use of the corporation for the benefit of the poor. The company ordained that the searchers (officers recognized in the act) should search for unworkmanlike wares, and seize, carry away and destroy the same. The property was seized under and by virtue of this by-law. Lord Mansfield observed that a corporation in the definition of it, is a creature of the crown, created by letters patent; that such a corporation, with the power of making by-laws, can not make any such law to incur a forfeiture; that those corporations which are created by act of parliament have no other additional powers incident to them than those have which are created by charters, unless they be expressly given, and that no such extraordinary power of making by-laws to incur a forfeiture, appearing upon the plea to have been conferred, it was impossible for the court to say that the by-law in that case could be supported by the act. Buller, J., remarked, that taking it generally as a by-law creating a forfeiture, the act of parliament not having given the corporation the power to make such a by-law, it was bad on that ground. In all the cases where his power to declare a forfeiture of stock as expressly given by the charter has been incidentally noticed by the courts, it has been regarded as a new and cumulative remedy to the one existing at common law. (I Caines' Cas. in Error, 85; 1 Caines, 389, Radcliff, J.; 9 Johns. R. 218; 6 Mass. R. 40; 2 Bibb, 576.) This has also been the understanding of the legislature, for, on examination, it will be found that the power has been usually conferred by an express provision in the charters, from the earliest period down to the present time. Upon the whole, I am entirely satisfied the directors possessed no authority under the charter to declare a forfeiture of the stock; that their acts in this respect were wholly void, and left the rights of the stockholders in full force, and that the sales which were made, and attempted transfers of the supposed forfeited shares, passed no title to or interest in them to the purchasers. Election set aside. Note. 1887, Budd v. Multnomah St. R. Co., 15 Ore. 413, 3 Am. St. Rep. 169, infra, p. 1569; 1892, Gemmel v. Davis, 75 Md. 546, 32 Am. St. Rep. 412; 1894, Morris v. Mettalline L. Co., 164 Pa. St. 326, 44 Am. St. Rep. 614; 1897, Elizabeth City Cotton Mills v. Dunstan, 121 N. C. 12, 61 Am. St. Rep. 654, holding that a corporation may be empowered to provide by its by-laws for forfeiture of shares for non-payment, and if reasonable, it will be enforced." See notes, 68 Am. Dec. 88; 43 Am. St. Rep. 156; 61 Am. St. Rep. 656. On the general subject of forfeiture, and sale of stock for non-payment, see, 1821, Franklin Glass Co. v. Alexander, 2 N. H. 380, 9 Am. Dec. 92, note 97; 1843, Selma & Tenn. R. Co. v. Tipton, 5 Ala. 787, 39 Am. Dec. 344; 1850, Hightower v. Thornton, 8 Ga. 486, 52 Am. Dec. 412; 1855, New Hampshire R. v. Johnson, 30 N. H. 390, 64 Am. Dec. 300, n. 308; 1860, Leevey's Island R. Co. v. Bolton, 48 Maine 451, 77 Am. Dec. 236; 1869, Germantown, etc., R. Co. v. Fitler, 60 Pa. St. Rep. 124, 100 Am. Dec. 546, and note; 1893, Carpenter v. Am. Bldg. Ass'n, 54 Minn. 403, 40 Am. St. Rep. 345, note 348. Sec. 351. Same. 2. Transfers. THE VICTOR G. BLOEDE CO v. VICTOR G. BLOEDE.' 1896. IN THE COURT OF APPEALS OF MARYLAND. 84 Md. Rep. 129-142, 57 Am. St. R. 373. Appeal by the company from a decree ordering it to transfer nine shares of stock to appellee, plaintiff below, standing in name of Y. A by-law of the defendant corporation provided that if any stockholder should desire to dispose of his stock, he shall, before a trans 1 Statement of facts taken from syllabus. Only that part of opinion given relating to validity of by-law. |