Page:Harvard Law Review Volume 10.djvu/458

432 432 HARVARD LAW REVIEW. It might perhaps be said more plausibly, that at the time when voting by proxy was prohibited, the making of an agreement by which the owner of shares parted with the right to vote upon them, would have been against the policy of express corporation law. It is universally conceded that in the absence of statute, a proxy to vote upon shares is void.^ But this rule of the common law has been abrogated practically everywhere, and we find the change occurring at the time when general laws are enacted providing, as a matter of common right, for the obtaining of charters, upon the perfunctory execution of simple declarations and the payment of nominal fees. In other words, it might be well said, that at a time when charters are granted as a matter of personal favor, and be- cause of the special confidence reposed by the State in its trusted subjects, one of the privileges connected with the incorporation of companies being the ownership of shares and the right to vote thereon, that that and all other rights granted by the Charter should be restricted to those in whom the special confidence had been reposed. But if the reason for the rule contended for be that the stockholder, because of the special confidence reposed in him, has received a franchise from the State, in which the public has an interest, and that he therefore virtually receives and must hold and Use his stock, as a public trust, that cannot any longer be the rule because the reason itself has ceased. Corporate franchises are now rarely acquired by special grant from the State. Any persons (with certain unimportant qualifications), however unworthy, may by their own action form a corporation, and may immediately transfer the corporate franchise to other persons, even more un- worthy. The State has no voice in the matter ; there is no delectus persoiiarum. The right to incorporate is statutory, *' free to every- body. The rights in the corporation can be adjusted by contract and the terms fixed by contract. The corporation is little more under our laws than a joint-stock company under the English laws; indeed, in its true nature, more nearly resembling a limited partnership, under special articles, than a corporation at common law." 2 When the policy of the State changes to the point that the obtaining of charters is a matter of universal right, the restriction upon the personnel of the voter should be removed. And when, as now, the right to vote by proxy has become estabhshed, so that a 1 Thompson on Corporations, sec. 736. 2 Chater v. Sugar Refinery Co., 19 Cal. 245; see N. E. Trust Co. v. Abbott, 162 Mass. 148.