Page:Federal Reporter, 1st Series, Volume 8.djvu/82

 QC FEDEBAIi BEPOBTEB. �three-fifths in interest of the entire stock voted to authorize a sale. It was stock only iu name, and therefore not entitled to vote. As to the stock bought by the company for non-payment of aasessments, there would be less objection; but if voted it should be in such a manner as to represent the interest of every stockholder, for every one of theni had an interest in the stock, and was entitled to have his interest voted according to his own views. If the treasurer should exercise the right to vote such stock, it might resuit in making the action of the meeting adverse, to the views of the majority of the stockholders ; and it is not seen how it would be practicable to have the stock voted in harmony with the views of all, unless all the stock was represented at the meeting and all consented to have the treas- urer cast the vote, and such was not the case. �If the stock owned by the company was not entitled to be voted, the next ihquiry is whether the requisite three-ufths of the remain- ing stock was voted in favor of the resolution authorizing the direct- ors to sell. The record, after sotting forth the resolution to be acted on, states that a vote by ballot was taken, and sets it forth after this manner, viz. : "T. W. Edwards, 316 shares; T. W. Edwards, proxy, 5 shares;" and so on until the vote in person and proxy is shown to be 3,387 shares in favor of the resolution, being more than three- fifths, excluding stock owned by the company. Of the stock thus voted, 1,561 shares were voted by proxies. This record is -prima facie evidence, certainly against stockholders, of the acts of the corpora- tion therein reeorded. The officer making up the minutes was the agent of the stockholders, and it is therefore their record of their own action. It may not be conolnsive, but if a stockholder seeks to discredit this evidence he must do it by proofs conclusive in character and weight. �Excluding stock owned by the company, it is claimed that three- fifths of the shares did not vote in favor of a sale. The evidence from which such conclusion is urged is mainly that of the 3,387 affirmative votes, 1,561 of the shares were voted by proxies, and that a large number of such proxies are missing from the office of the company, raising the presumption that they never existed, and if not, then the resolution to authorize a sale was not passed by a vote of three-fifths in interest of the stock. �It is saidthe statute (section 2847) which permits stock to be voted by proxy requires the proxy to be "duly filed." But this must be regarded as directory. If the proxies were present and actually voted, the f act that none of them were filed, or that none of them can ��� �