the managers and officers competent to carry on its affairs conformably to the directions of the charter. That may be done on the day appointed by the act, it not being required that the managers, officers or any other persons should preside at or do any act in reference to the election which is conducted entirely under the control of the stockholders.

ARTICLE III. ORGANS OF ACTION.

Sec. 190. In general.

"As has been stated by Kyd, there are three different kinds of assemblies in corporations, which he styles legislative, electoral and administrative. 1. The legislative assembly possesses the power of making laws; such as the court of common council in London, the court proprietors of the Bank of England and of the East India and South Sea Companies. [Also the convocation in the University of Oxford, and the congregation or senate in the University of Cambridge.] 2. The electoral assembly is that which is authorized to elect officers; such are, in general, the proprietors in stock companies; and the body at large of every corporation, when the power of election has not been vested in a minor body. 3. The administrative have the management of particular affairs, such as the courts of assistants in the city companies of Europe, the court of directors of a bank and other stock companies. The same body of men may, therefore, and frequently do, possess distinct powers. In private corporations (which, to some extent, may be said to be towns in miniature) the electoral power is generally in the body at large, though it may be vested in a body selected solely to make elections, or in the legislative or administrative assembly. The qualification of persons to exercise the above powers must, of course, depend upon the charter and the by-laws. By the constitution of the railway companies in England, the proper organs through which they may act are threefold: 1. The general assembly of the company. 2. The board of directors; and 3. A duly constituted agent."-Angell and Ames on Corporations, § 98.

"The various classes of persons by whom the affairs of a corporation are practically conducted are: 1. Officers, being those who are parts of the organization; 2. Agents, who are not parts of the organization, but represent it to the public; and 3. Servants, who do not even represent it, but only labor to advance its objects."-1 Abbott's Digest of Corporation Law, p. 2.

Sec. 191. Same.

THE METHODIST EPISCOPAL CHURCH v. SHERMAN.1

1874. IN THE SUPREME COURT OF WISCONSIN. 36 Wis. 404-409.

[Suit by the church to recover on an alleged agreement by the defendant to pay one hundred dollars necessary to complete the church edifice. The Rev. Dr. Hatfield was engaged to conduct the services at the dedication, and he was requested by an informal meeting of the trustees, pastor and class leaders to solicit subscriptions during the dedication exercises, but was not appointed agent to receive such by any vote of either trustees or the corporation. He called for subscriptions and named a person to write down names and amounts as subscribed. Defendant agreed to take or be put down for the last hundred dollars necessary, and his name was so put down. A few days later, and before any meeting had been held, one of the trustees called on the defendant to perform his agreement, at which time he undertook to revoke his promise. Judgment below was for the plaintiff and defendant appealed.]

RYAN, C. J. * The respondent is a corporation aggregate, having a board of trustees to manage its affairs. We need not stop to consider how far the power to contract is in the aggregate body or in the select body. It must be wholly in the one or the other, or partly in both. There may be a doubt whether it can contract by parol, except through an agent authorized by vote. A. & M. Turnpike Co. v. Hay, 7 Mass. 107. But, pretermitting that question, it could certainly contract only through the aggregate body by vote, or through the select body by vote, or through an agent authorized by vote of one body or the other, or both. Angell and Ames, $$ 231, 232.

It does not appear in the record that Dr. Hatfield was appointed agent to receive subscriptions by vote of either body. On the contrary, it does appear by the evidence of one of the trustees that his only show of authority was a request at an informal meeting of the trustees, pastor and class leaders. This gave him no authorty for the corporation.

He solicited subscriptions, during a religious service, for a religious purpose. Manifestly there was present no formal meeting of the corporation aggregate or of the select body. The appellant then made the offer when there was present no body or agent authorized to accept it for the corporation. It remained a mere offer, which the appellant might retract until accepted by the corporation. Addison on Con., 36.

Judgment reversed.

Note. In Cammeyer v. United German Lutheran Church, 2 Sandf. Ch. (N. Y.) 186 (1844), it was held that "where the exercise of corporate acts is vested

Statement of facts abridged. Arguments and part of the opinion omitted.

in a select body, an act done by the persons composing that body, in a mass meeting of all the corporators, or in union, or amalgamated with other like bodies, parts of the corporation, is not a valid corporate act.' See, also, cases infra, modes of action, pp. 833-854.

As to who is a corporate officer, see, 1825, Dedham Bank v. Chickering, 3 Pick. (Mass.) 335; 1827, Union Bank v. Ridgely, 1 Harr. & G. (Md.) 324; 1843, Commonwealth v. Cuyler, 5 W. & S. (Pa.) 275; 1844, Commonwealth v. Wyman, 49 Mass. (8 Met.) 247; 1846, Burr v. McDonald, 3 Gratt. (Va.) 215; 1853, Union Co. v. James, 21 Pa. St. 525; 1854, Er parte Bailey, 27 Eng. L. & Eq. 190; 1857, Commonwealth v. Tuckerman, 76 Mass. (10 Gray) 173; 1872, Commonwealth v. Christian, 9 Phila. (Pa.) 556; 1890, Brand v. Godwin, 8 N. Y. Supp. 339.

As to how officers differ from mere agents, see Salem v. Gloucester Bank, 17 Mass. 1; Foster v. Essex Bank, 17 Mass. 479; Ehrenzeller v. Union Canal Co., 1 Rawle (Pa.) 181, 188; Weatherby v. Saxony, etc., Co., 29 Atl. Rep. 326 (N. J.)

As to difference between officers and servants, employes, etc., see, 1865, Hovey v. Ten Broek, 3 Rob. (N. Y.) 316; 1868, Coffin v. Reynolds, 37 N. Y. 640; 1874, Hill v. Spencer, 61 N. Y. 274; 1875, Adams v. Goodrich, 55 Ga. 233; 1882, Wakefield v. Fargo, 90 N. Y. 213; 1882, Gordon v. Jennings, L. R. 9 Q. B. Div. 45; 1887, Sleeper v. Goodwin, 67 Wis. 577; 1889, Vane v. Newcombe, 132 U. S. 220; 1890, Pendergast v. Yandes, 124 Ind. 159; 1890, Hand v. Cole, 88 Tenn. 400; 1891, Louisville, etc., R. Co. v. Wilson, 138 U. S. 501; 1894, Clark's Appeal, 100 Mich. 448; 1897, Palmer v. Van Santvoord, 153 N. Ý. 612; 1898, Cocking v. Ward, Tenn. Ch. App., 48 S. W. Rep. 287; 1899, Bristor v. Smith, 158 N. Y. 157.

Sec. 192. Qualification of agents and officers.

WIGHT v. SPRINGFIELD AND NEW LONDON RAILROAD

COMPANY.1

1875. IN THE SUPREME JUDICIAL COURT OF Massachusetts. Mass. Rep. 226-228, 19 Am. Rep. 412.

117

[Petition for mandamus to compel respondent to admit petitioner to act as one of its directors. The city of Springfield was the lawful owner of 1,500 of the 2,000 shares of stock of the railroad company; at a duly called meeting of the shareholders of the railroad company, the city of Springfield was represented by five persons properly selected for that purpose, one of whom was the petitioner. At this meeting the petitioner received a large majority of the votes of the shares of stock for director, but he not being himself a shareholder, the president of the meeting refused to declare him elected, and the corporation, by its officers, have since refused to recognize him as a director, or allow him to act as such.]

GRAY, C. J. Although the directors of a railroad corporation are usually chosen by the stockholders from their own number, there is no rule of law that makes the holding of stock an indispensable qualification of a director, unless prescribed by some act of the legislature or by-law of the corporation. The only adjudication upon the subject cited at the argument supports this view. State v. McDaniel, 22 Ohio St. 354. And the statutes expressly requiring directors of banks and insurance companies to be members of the corporation, and the first directors of a railroad corporation incorporated under the gen1 Statements of facts abridged, and only part of opinion given.

eral law to be associates, strengthens the conclusion that the legislature intended to leave the qualifications of directors in the permanent organization of such a corporation to the determination of the stockholders.

Mandamus to issue.

Note. 1. Unless statute or charter prevents, a corporation can select whomsoever it pleases to be its officers, agents or servants: 1847, Hoyt v. Bridgewater C. M. Co., 6 N. J. Eq. (2 Halst.) 253, on 275; 1847, Sargent v. Webster, 54 Mass. (13 Metc.) 497, 46 Am. Dec. 743; 1870, Densmore Oil Co. v. Densmore, 64 Pa. St. 43; 1872, State v. McDaniel, 22 Ohio St. 354; 1876, British Provident Life, etc., Assn., L. R. 5 Ch. Div. 306; 1880, Opinion of Attorney-General, 7 Pa. Co. Ct. Rep. 178.

2. In general the corporation may by by-laws prescribe qualifications of its officers or directors: 1841, Dispatch Line of Packets v. Bellamy Mfg. Co., 12 N. H. 205, 37 Am. Dec. 203; 1844, Cammeyer v. United Church, 2 Sandf. Ch. 186; 1862, Richards v. Merrimac & C. R. Co., 44 N. H. 127; 1870, People v. Northern R. Co., 42 N. Y. 217, on 230; 1871, Hazelhurst v. Savannah G. & N. A. R. Co., 43 Ga. 13; 1892, Cross v. West Virginia Cent. & P. R. Co., 37 W. Va. 342, 18 L. R. A. 582, 16 S. E. Rep. 587. But not contrary to statutory provisions: 1876, British Provident Life, etc., Assn., L. R. 5 Ch. Div. 306.

3. As to residence and citizenship, there is no rule, unless by statute or charter provision, that requires an officer or director to be a resident or citizen of the state creating the corporation. Statutes, however, frequently provide that a part of the directors shall be residents of the state creating the corporation. 1827, McCall v. Byram Mfg. Co., 6 Conn. 428; 1850, Conant v. Millaudon, 5 La. Ann. 542; 1868, Matthews v. Theological Sem. R. P. Ch., etc., 2 Brewst. (Pa.) 541; 1887, State v. Smith, 15 Ore. 98, 15 Pac. Rep. 137, 386; 1890, Commonwealth v. Detwiler, 131 Pa. St. 614, 18 Atl. Rep. 990, 992; 1892, Horton v. Wilder, 48 Kan. 222, 29 Pac. Rep. 566; 1893, Hulings v. Lumber Co., 38 W. Va. 351, 18 S. E. Rep. 620.

4. Neither is an officer or director required to be a shareholder, unless the statute, charter, or a by-law so provides: 1841, Dispatch Line of Packets v. Bellamy Mfg. Co., 12 N. H. 205, 37 Am. Dec. 203; 1847, Hoyt v. Bridgewater Copper M. Co., 6 N. J. Eq. 253; 1872, State v. McDaniel, 22 Ohio St. 354; 1889, Fey v. Peoria Watch Co., 32 Ill. App. 618; 1898, Bristol Bank & T. Co. v. Jonesboro B. & T. Co., 101 Tenn. 545. But statute, charter or by-law frequently so requires, and then generally they must be holders in their own right and in good faith: 1841, Dispatch Line, etc., v. Bellamy, etc., 12 N. H. 205; 1852, Bartholomew v. Bentley, 1 Ohio St. 37; 1889, Bainbridge v. Smith, 41 Ch. Div. 462, 33 Am. & E. Č. C. 172, n. 182; 1891, In re Newcomb, 18 N. Y. Supp. (N. Y.) 16; 1892, Chemical National Bank v. Colwell, 132 N. Y. 250; 1893, State v. Mfs. Assn., 50 Ohio St. 145, 24 L. R. A. 252; 1894, Frank v. Lewis Foundry & M. Co., 24 Pittsburg L. J. (N. S.) 33. But see, 1891, In re Argus Printing Co., 1 N. Dak. 434, 26 Am. St. Rep. 639, 36 Am. & E. Corp. C. 101, 48 N. W. Rep. 347, 12 L. R. A. 781, and 1894, Greenough v. Alabama G. S. R. Co., 64 Fed. Rep. (C. C.) 22; 1898, Haines v. Kinderhook & H. Ry. Co., 33 App. Div. (N. Y.) 154.

SUBDIVISION II. FUNCTIONS OF MEMBERS, DIRECTORS AND OF

FICERS.

ARTICLE I. MEMBERS AND DIRECTORS.

Sec. 193. The members of the corporation wield such powers as are extraordinary or unusual in their nature, whereas the directors manage the ordinary business of the corporation; and fundamental changes in the character or business usually require action by both the shareholders and the executive and administrative officers.

METROPOLITAN ELEVATED R. CO. v. MANHATTAN ELEVATED R. CO.1

1884. IN THE COURT OF COMMON PLEAS, CITY AND COUNTY OF NEW YORK.2 II Daly's (N. Y. Com. Pleas) Rep. 373-528,

14 Abb. New Cas. 103-316, 15 Am. & Eng. R. Cas. 1-94.

[Action to set aside a tripartite agreement made between the New York Elevated Railroad Company, the Metropolitan Elevated Railway Company and the Manhattan Elevated Railway Company, whereby the first two were to lease their roads to the latter, which assumed the performance of certain contracts and the payment of certain bonds of the former; the Manhattan Company being unable to perform its part of the agreements, after much litigation, and by way of settlement, supplementary agreements were entered into which would enable the Manhattan Company to continue in the control of the roads on the basis of concessions made by the other companies. These supplemental agreements were executed by the Metropolitan Company, by authority of its directors, without the assent or ratification of the shareholders. New directors of this company being elected, it brought suit to set aside the supplemental agreements on the ground of fraud, breach of trust, etc., on the part of the former directors.] VAN BRUNT, J. That the directors of a corporation are agents seems to be clearly recognized in all the cases in which the relations of directors and shareholders to their corporation have been discussed.

It is said in Twin Lick Oil Co. v. Marbury (91 U. S. 587, 589) that the directors are the officers or agents of the corporation, and

1 Statement of facts greatly abridged. Only so much of the opinion as relates to the authority of directors is given. Copies of all agreements and leases are given in 14 Abb. N. C., pp. 125, 130 and 166, and are valuable as forms.

2 No appeal was taken. All parties accepted this as a correct exposition of the law. The most eminent counsel in New York were engaged in the case.