granted a reasonable time, to-wit, until Monday, May 16, to confer with counsel and determine what answer to make to such charges, but it was defeated. The resolution to remove Manice from the office of director was then carried. The meeting did not occupy more than five or ten minutes.

At the stockholders' meeting held May 18 four of the directors, two of those whose terms of office would expire in 1911, and two of those whose terms of office would expire in 1912, resigned, and but two were elected to take the place of those whose terms of office expired in 1910. The board then consisted of six directors, of whom, except for the removal that we have mentioned, the relator was one of the class whose term of office would expire in 1912. At such stockholders' meeting a resolution was offered that all of the acts of the board of directors, including the determination of the board of directors that sufficient cause exists for the removal of William Manice from the office of director of the company and that his removal is desirable and for the best interests of the company, be approved and ratified. A resolution was then offered as follows: "Whereas, The amendment of the certificate of incorporation adopted on or about the 24th of December, 1909, which provided that the directors shall 'consider' whether sufficient cause exists to remove a director and that if the board after such 'consideration' shall 'determine' that cause exists, contemplates the furnishing to the person charged with a copy of the charge made against him and giving him an opportunity to confer with counsel and a reasonable time to reply thereto and be heard in his own defense; and,

"Whereas, in the case of Mr. Taylor and Mr. Manice neither of them have been furnished with a copy of the charge made against him and neither of them have ever been given an opportunity to reply thereto or to be heard before the board of directors in his own behalf;

"Resolved, That under the by-laws there has as yet been no proper or legal determination that a cause for the removal of either Mr. Taylor or Mr. Manice exists and that, therefore, under the by-laws the question as to the removal of either Mr. Taylor or Mr. Manice is not now properly before this meeting."

Such resolution was defeated. The counsel for the relator then asked that he be furnished with a copy of the charges made against relator, and he was told by the chairman of the meeting that the charges were incorporated in the resolution adopted at the meeting of the board of directors. A motion was then made to adjourn, which was defeated. The resolution approving and ratifying the acts of the board of directors was then adopted by a vote of stockholders holding more than two-thirds of all the stock of the corporation. A meeting of the directors was held immediately after the adjournment of the stockholders' meeting on May 18, and a director was elected to fill the vacancy caused by the removal of the relator, and he is now acting as such director by alleged right of such election. The relator claims that his alleged removal is wholly illegal and void.

The learned justice at special term, in denying the motion for a peremptory mandamus, referring to the relator, said: "As a director he was but an agent of the corporation, and the principles of the law of agency were applicable to him. If wrongfully removed before the expiration of the period for which he was elected, he is entitled to recover if damages have resulted; but he can not insist upon being retained in a fiduciary relation toward the stockholders against the latter's wishes. The stockholders had the power to revoke the agency, though not the right."

In the reason so given for the denial of the motion we think the distinction between a person occupying an ordinary contract relation as an agent for a principal and a person elected for a specified term as a director of a private corporation was wholly overlooked.

"The board of directors of a corporation do not stand in the same relation to the corporate body which a private agent holds toward his principal * * *. In corporate bodies the powers of the board of directors are, in a very important sense, original and undelegated." (Hoyt v. Thompson's Executors, 19 N. Y. 207, 216; Beveridge v. N. Y. E. R. R. Co., 112 N. Y. 1, 22, 23.)

While the ordinary rules of law relating to an agent are applicable in considering the acts of a board of directors in behalf of a corporation when dealing with third persons, the individual directors making up the board are not mere employees, but a part of an elected body of officers constituting the executive agents of the corporation. They hold such office charged with the duty to act for the corporation according to their best judgment, and in so doing they can not be controlled in the reasonable exercise and performance of such duty. As a general rule the stockholders can not act in relation to the ordinary business of the corporation, nor can they control the directors in the exercise of the judgment vested in them by virtue of their office.

The relation of the directors to the stockholders is essentially that of trustee and cestui que trust. The peculiar relation that they bear to the corporation and the owners of its stock grows out of the inability of the corporation to act except through such managing officers and agents. The corporation is the owner of the property, but the directors in the performance of their duty possess it, and act in every way as if they owned it.

This court, in Bosworth v. Allen (168 N. Y. 157), referring to directors, say: "While not technically trustees, for the title of the corporate property was in the corporation itself, they were charged with the duties and subject to the liabilities of trustees. Clothed with the power of controlling the property and managing the affairs of the corporation, without let or hindrance, as to third persons they were its agents, but as to the corporation, itself, equity holds them liable as trustees. (2 Pomeroy's Equity Jurisprudence, secs. 1061, 1063, 1088, 1097.)"

The relator occupied a position toward the corporation that was one of trust and responsibility. He was given power and authority to act not only substantially uncontrolled by the corporation, but he

was not subject to discharge as an employee unless such right is vested in some court or body of persons by statute or in its articles of incorporation duly authorized by statute.

It would be somewhat startling to the business world if we definitely announced that the directors of a corporation were mere employees and that the stockholders of the corporation have the power to convene from time to time and remove at will any or all of the directors, although their respective terms of office have not expired.

It is and was prior to the amendment of said certificate of incorporation provided by statute that an action may be maintained against a director of a corporation to procure a judgment suspending him from exercising his office if it appear that he has abused his trust or to remove him from office upon proof or conviction of misconduct. (General Corporation law, sections 90 and 91; former sections 1781 and 1782 of the Code of Civil Procedure.) It is provided by section 307 of said General Corporation Law that a director shall not be suspended or removed from office by a court or judge otherwise than by the final judgment of a competent court in an action brought by the attorney-general as prescribed by said. section 90 of that act.

The statute providing for an action in the name of the attorneygeneral to suspend or remove a director is not exclusive of such reasonable and lawful charter provision relating thereto as may be included in the articles of incorporation. Without some statute or provision of the charter authorizing his removal or suspension, a director cannot be removed or suspended from office until the end of his term, at least without cause. (Thompson on Corporations [2nd ed.] secs. 1084, 1085, 1086; Taylor on Corporations, sec. 649; Cook on Corporations, sec. 711; Morawetz on Private Corporations, secs. 541, 542.)

Upon the merits of the controversy presented by this appeal there are two important questions for consideration: 1. Whether the amendment of the certificate of incorporation contemplates the removal of a person as a director without a reasonable notice of the alleged sufficient cause for his removal and a reasonable opportunity for him to be heard upon the question whether his removal is desirable and for the best interests of the corporation.

2. Whether the relator had a reasonable notice of the alleged sufficient causes for his removal and a reasonable opportunity to be heard before the board of directors in relation thereto.

We shall not further discuss the merits of the relator's claim because we are of the opinion that his remedy, if any, is not by mandamus. * * *

The action in the nature of a quo warranto affords a complete remedy to the relator if he is legally entitled to be reinstated and renders the proceeding by mandamus not only unnecessary but contrary to the recognized practice of the courts.

The special term and the appellate division were right, therefore, as a matter of law in refusing the writ, and the order should be affirmed, with costs.

CULLEN, Ch. J., HAIGHT, VANN, WILLARD BARTLETT, HISCOCK and COLLIN, JJ., concur.

Order affirmed.

Section 2.-Rights.

A-COMPENSATION.

CHEENEY v. LAFAYETTE &C. R. CO.

1873. 68 Ill. 570.

APPEAL from the Circuit Court of Livingston county; the Hon. CHARLES H. WOOD, Judge, presiding.

This was an action of assumpsit, by Jonathan H. Cheeney against the Lafayette, Bloomington and Mississippi Railway Company, to recover for services, as stated in the opinion.

7 In Gold Bluff &c. Corporation v. Whitlock (1903) 75 Conn. 669, 55 Atl. 175, held that the stockholders may amend the by-laws so as to increase the number of directors.

See Isle of Wight R. Co. v. Tahourdin (1884) L. R. 25 Ch. Div. 320, 332 ("I am of opinion that under sec. 91 a general meeting of shareholders has power to remove directors"); Ward v. Davidson (1886) 89 Mo. 445, 463, 1 S. W. 846 (court may remove directors for misconduct).

As to removal of corporate officers by the directors, see Brindley v. Walker (1908), 221 Pa. St. 287, 70 Atl. 794.

In Ripin v. United States Woven Label Co. (1912) 205 N. Y. 442, 98 N. E. 855, the court upheld unanimously the validity of a provision in the articles of incorporation of a business corporation that the number of directors (four in that case) should not be changed except "by the unanimous consent of all the stockholders."

MODE OF EXERCISE OF POWERS.

(1) Directors must act as a board, Machen, Modern Law of Corporations, sec. 1446; cf. Hoyle v. Plattsburgh & M. R. Co. (1873) 54 N. Y. 314, at p. 328, 13 Am. Rep. 595; "Nor is it possible to limit the duty of a director of a corporation, in this respect, to the time while he is acting as director under any special delegation of power, or in attendance at meetings of the Board."

Corinne Mill, Canal & Stock Co. v. Toponce (1893) 152 U. S. 405, 38 L. ed. 493, 14 Sup. Ct. 632, in which Brewer, J. said at p. 408: "No duty was cast on any individual director as such. The board of directors, as a body, were charged with the usual duty of care of the affairs of the corporation, but all the power and duty cast upon them was upon them as a board, and not individually."

(2) Action need not be recorded in writing. Chabot & Richard Co. v. Chabot (1912) 109 Maine 403, 84 Atl. 892; Young v. United States Mortgage & Trust Co. (1915) 214 N. Y. 279, 108 N. E. 418; Catholic Foreign Mission Soc. v. Oussani (1915) 215 N. Y. 1, 109 N. E. 80.

(3) Delegation of Powers. It has been said that directors can not delegate their general powers to an executive committee, unless authorized by statute or the company's regulations. Machen, Modern Law of Corporations, sec. 1467; Gillis v. Bailey (1850) 21 N. H. 149, 160-5. But see: Hoyt v. Thompson Exe. (1859) 19 N. Y. 207; Sheridan Elec. Light Co. v. Chatham Nat. Bank (1891) 127 N. Y. 517, 28 N. E. 467, contra.-Eds.

MR. JUSTICE WALKER delivered the opinion of the court: The Lafayette, Bloomington and Mississippi Railroad Company was organized, and appellant was elected a director. In January, 1870, the company, through its board of directors, created an executive committee, consisting of five persons, who, with the chief engineer, were empowered to make contracts and provide funds for the construction and equipment of the road; and, in the month of January, 1870, appellant was appointed a member of the executive committee, and continued to act as such until the last of January, 1872. This service is claimed by appellant to have been worth $1,000.

He was, also, in September, 1869, appointed as agent of the company to procure the right of way through McLean county, and he rendered services in that capacity for which he claims $600. He was also appointed, in the autumn of 1872, an agent to solicit and procure subscriptions to aid in constructing the road, and he claims he devoted two months of his time to that service, and that it is worth $400; that whilst a member of the executive committee, he made frequent trips to Chicago and Lafayette on the business of the company; that in the spring of 1871, after the road-bed was graded and bridged, he was appointed as a member of a special committee to go East to make, if possible, a contract for the completion of the road, and he went to Philadelphia and New York, and was absent two weeks, and afterwards conferred with other parties with a view of contracting for the completion of the road, and in doing so went to Chicago, Lafayette, Cleveland and New York, and was absent four weeks.

It appears that the claim for these services was presented to the company and audited by its executive committee on the 13th day of January, 1872, amounting to $4,000; that a warrant for that amount was drawn on the treasurer; that the board of directors, at a meeting on the 31st day of January, 1872, appropriated $25,000 to pay this and other claims, but appellant testifies that he has never received any part of his claim, and brought this action of assumpsit to recover for work and labor and for money paid out for the use of the company.

A warrant of attorney was given by the company to confess a judgment, which was entered. But subsequently a motion was made to set aside this judgment, which was done, and the company let in to plead. After filing pleas, the case was submitted to the court for trial, without a jury, by consent of parties. The court found for the defendant, and entered a judgment in bar of the recovery, and for costs, and plaintiff brings the record to this court on appeal.

In adopting the by-laws of the company, no salary or provision for compensation of the officers was made, but it is claimed they all understood and expected that a reasonable compensation would be made for their services rendered in the discharge of their duties.

The doctrine is stated in Redfield on Railways, 406, that, in England, to entitle directors, etc., to receive compensation, it must be