358
THE GREEN BAG
owner of property of one of its essential attributes, is to deprive him of his property.1 It would seem to be evident, as was said by the Appellate Division of the New York Supreme Court in a recent case,2 that the right of a stock-holder to vote upon his stock is "one of the essential rights of own ership" of the stock itself. "A share of stock may be denned as a right which its owner has in the manage ment, profits, and ultimate assets of the corporation."* In a recent case, the highest court of the state of New York said, "The stockholders are the equitable own ers of the corporate property." 4 This statement, while it is perhaps not technically correct, doubtless sets forth in substance the nature of their relation to the corporate assets. The stock-holders have a right, at any rate, upon a final winding up and dissolution, to receive everything which remains after the complete discharge of all the obligations of the corporation to third parties. This must evidently be the case with a stock life insurance company equally as with the ordinary trading company. Whatever the rights of the policy-holders may be, they depend upon the several con tracts which the policy-holders have made with the Society. Aiter those contracts shall have been discharged, whatever re mains will be the property of the company itself, and upon a dissolution must be divided among its members. It is further to be noted that the Insur ance Law of the state of New York,5 in case the capital stock of a company becomes impaired, imposes in certain events a liabil1 People ». Otis, 90 N.Y., 48; Matter of Jacobs, 98 N. Y., 98; People v. Hawkins, 157 N. Y. i, 7; Long Island R.R. Co. v. Garvey, 159 N. Y., 334, 337; Pumpelly v. Green Bay Co. 13 Wall. 166, 1772 Sullivan v. Parkes, 69 App. Div. 221, 229. 3 Lamkin v. Palmer, 24 App. Div. 255, 260; Affd. 164 N. Y., 201.
- Martin v. Niagara Co., 122 N. Y., 165, 172.
- §§41, 42.
ity upon the stock-holders to make it good. In view of these facts it would seem to fol low that the voice given to the stock-holders by the original charter of the Equitable Society in the nomination of the board of directors who are to control and manage its business and property, is one of the ele ments which enters into and makes up the value of the shares, and that to take away from the stock this right to choose a major ity of the board, will deprive them of a property right protected by the Constitution. Counsel for the Society in the proceed ings instituted by minority stock-holders to restrain the adoption of the proposed amended charter, have based their argu ment that the changes proposed do not vio late any constitutional guaranty, largely upon the strength of two decisions of the Supreme Court of the United States.1 These decisions dealt with changes in the manner in which directors of certain corpo rations were to be chosen by the stock holders, but it is certainly very doubtful whether they are likely to be held to afford any authority for the proposition that the legislature, or a corporation under legisla tive authority, may validly take away from stock-holders, against their consent, the right to control the management of the company . In Miller v. The State, a railroad com pany was organized under the laws of the state of New York, its charter providing that it was to have thirteen directors. The legislature authorized the city of Rochester to subscribe for its stock to the amount of $300,000, and pfovided that the city should have the right to nominate one director for every $7 5,000 of capital stock which it held, but should have no voice in the election of the remaining directors. At the time the act was passed and the city's subscription made, other parties had subscribed to the road's capital stock to the amount of $677,500. The city, therefore, subscribed for four-thirteenths of the total subscribed 1 Miller v. State, 15 Wall. 478; Looker v. Maynard, 179 U. S. 46.
