Pierce v. Commonwealth , 104 Pa. 150 ( 1883 )

The opinion of the court was delivered October 22d 1883, by

Gordon, J.

About the correctness of the ruling of the learned judge of the court below, in this case, we have no doubt. It seems to have been admitted, in the outstart of this trial, that the election of the 8th of January 1883 was properly called, was held at the proper time, and was conducted in an orderly and regular manner. Nor is there any doubt but that the relators received the highest number of votes cast for directors at that election. It is said, however, that this result was brought about by the cumulation of the votes of the relators upon four out of the six candidates proposed for election. But this they certainly had a right to do, or we fail correctly to read the Constitution of 1874: “In all elections for directors or managers of a corporation, each member or shareholder may mast the whole number of his votes for one candidate, or distribute them upon two or more candidates, as he may prefer :” Article 16, section 4. This section to us seems very plain and unambiguous. If there are six directors to be elected, the single shareholder has six votes, and, contrary to the old rule, he may cast those six votes for a single one of the candidates, or he may distribute them to two or more of such candidates as he may-think proper. He may cast two ballots for each of three of the proposed directors, three for two, or two for one, and one each for four others, oHmally, he may cast one vote for each of the six candidates. ^Now, as this Sharps-ville Railroad Company was incorporated since the adoption of the new Constitution, it is necessarily subjected thereto, and must be governed by its provisions^ But the provision above cited vested in the relators, as stockholders, the absolute right to vote as they did, and if, as a consequence of the exercise of such right, their candidates had the highest number of votes cast at that election, they are the rightful directors of the corporation. Put, it is said, this provision is but directory, and it cannot go into effect without some legislative action directing the manner of its exercise. To this proposition we cannot assent. There is no alteration required in the mode of conducting corporate elections; each company continues to use that method prescribed by its charter, and the constitutional right is one that belongs solely and exclusively to the individual shareholder. He may exercise it or not as to him may seem proper, but whether lie does so exercise such right or not, the ordinary manner of conducting the corporate election is in no wise interfered with. Legislative action is, therefore, uncalled for; it would be useless to alter the present mode of election, and with the right itself the General Assembly cannot meddle. Again, it is urged, that from the heading of this section, it is obviously intended to apply only to private corporations, and as a railroad company is not a private but a public corporation, therefore it applies not to the case in hand. To the first part of this proposition we assent, but dissent as to the second part. Railroad and canal companies are private corporations. This we have decided in point twice within the last two years; once in the case of Timlow v. The Philadelphia and Reading Railroad Company, 3 Out. 284, and again in the case of the Pittsburgh and Lake Erie Railroad Co. v. Bruce, 6 Out. 23. If, however, these are not enough for the establishment of the point in issue., we may cite Pierce on Railroads, p. 1; Morawetz on Private Corporations, § 2, and Redfield on the Law of Railways, vol. I. 52-3. The last named author cites many books for the position assumed, which any one curious about such matters may consult for himself. So in the case of the trustees of the Presbyterian Society v. The Auburn and Rochester Railroad Co., 3 Hill 567, it is said that a railroad company is not public, nor does it stand in the place of the public; it is but a private corporation over whose rails the public may travel if they choose to ride in its cars. Indeed,’ we regard it as a misnomer to attach even the name “ quasi public corporation ” to a railroad company, for it has none of the features of such corporations, if we except its qualified right of eminent domain, and this it has because of the right reserved to the public to use its way for travel and transportation. Its officers are not public officers, and its business transactions are as private as those of a banking house. Its road may be called a quasi public highway, but the company itself is a private corporation and nothing more. We have, therefore, no hesitation in saying that it is embraced by the provisions of the 4th section of article 16 of the constitution.

Finally, we have the allegation of fraud, in this, that the relators did not give the respondents notice in advance, that they were going to cumulate their votes on four candidates. Rut as this was simply the exercise of a constitutional right, of which the respondents were presumed to be as well informed as the relators, and as the Constitution placed its exercise entirely within the volition of the individual stockholder,- we do not see who has the right to restrain that volition by the imposition of any condition whatever, or to compel the voter to say in advance whether he will or will not use that privilege. Up to the very moment of voting he lias the positive right to exercise liis own will in this matter, and to us that sounds like a strange allegation which charges the plaintiffs with fraud upon the ground simply that they did that only which the supreme law of the State authorized them to do, that is, quietly and according to their own will, distribute their votes upon four candidates instead of six. With the learned judge of the court below, we must agree, that in this there has been no wrong committed upon the respondents. Judgment affirmed.