dissenting:
I am baffled by the majority’s reliance on public policy to justify its holding that the right of shareholders of preJuly 1971 (pre-1971) corporations to cumulative voting is waivable. The majority acknowledges that shareholders of pre- and post-1971 coiporations are treated differently by the 1970 Constitution, and insists both that section 8 of the Transition Schedule remains a part of the Illinois Constitution to this date and that the provisions of section 8 constitute a right guaranteed to shareholders of pre-1971 corporations. To the extent that public policy regarding cumulative voting for corporate directors is reflected in the Constitution, there are two policies expressed, one relating to pre-1971, and one to post-1971, corporations.
A document as intricate as the Hlinois Constitution need not reflect a single public policy. Rather, a number of different policies underlie various provisions. The separate parts are molded into a harmonious whole by the organization and structure of the final document. The policies underlying a particular provision can only be understood in the context of other sections with which that provision interacts, and of the spirit and wording of the Constitution as a whole. To identify the public policy toward cumulative voting which is expressed by the 1970 Constitution, one must evaluate all sections of that constitution, including section 8 of the Transition Schedule.
The majority’s holding that the public policy underlying the new constitutional provision which makes cumulative voting optional for shareholders of post-1971 corporations translates into waivability of the corresponding rights of shareholders of pre-1971 corporations defies both logic and the organization of the 1970 Constitution. As all parties point out here, a specific decision was made at the constitutional convention to treat the two groups of shareholders differently. The policies in favor of and opposed to cumulative voting are contradictory The delegates concluded that one set of policies applied to the pre-1971 group, and the other set to the post-1971 group. Using one policy to explain or clarify the other is illogical, since the two policies inherently conflict.
The majority opinion loses sight of the rationale which impelled this court to hold that the shareholders’ right to cumulative voting under the 1870 Constitution was not waivable. Under the majority view, because the 1970 Constitution evidences a change in public policy whereby cumulative voting is no longer considered essential to proper corporate governance, shareholders can agree by unanimous vote to waive their rights. It is axiomatic that only the holder of a right can waive it. Earlier decisions of this court have made it clear that the right to vote cumulatively for the election of directors is not a right which belongs exclusively to the shareholders. (Stroh v. Blackhawk Holding Corp. (1971), 48 Ill. 2d 471; Luthy v. Ream (1915), 270 Ill. 170; Gidwitz v. Lanzit Corrugated Box Co. (1960), 20 Ill. 2d 208, 215; Durkee v. People ex rel. Askren (1895), 155 Ill. 354.) Therefore, they cannot waive that right by their exclusive, albeit unanimous, action. As long ago as 1895, this court stated that the minority shareholders’ interest and right to be represented in corporate management was tied to the success of the corporation, and that both the State and the public were also interested in effectively managed, successful corporations. (Durkee v. People ex rel. Askren (1895), 155 Ill. 354.) Since Durkee, this court has consistently reiterated the theme that shareholders exert control over the corporation through their voting rights, and that they cannot be deprived nor deprive themselves of those voting rights. (Stroh v. Blackhawk Holding Corp. (1971), 48 Ill. 2d 471; Luthy v. Ream (1915), 270 Ill. 170; Gidwitz v. Lanzit Corrugated Box Co. (1960), 20 Ill. 2d 208, 215.) In other words, there are public interests involved, as well as the private interests of the minority shareholders, and those interests cannot be waived by the minority shareholders.
The majority concludes that, as a result of the 1970 Constitution, “public policy no longer requires cumulative voting *** [and] [t]hus, the underpinnings of this court’s previous decisions have been substantially eroded, if not completely eliminated.’’ (101 Ill. 2d at 327-28; see also 101 Ill. 2d at 328-29.) However, by its plain language, section 8 of the Transition Schedule to the 1970 Constitution provides that shareholders of all corporations previously organized under the laws of Illinois “shall retain their right to vote cumulatively” for directors. Nothing in the language of section 8, or of any other provision anywhere in the Transition Schedule of the 1970 Constitution, indicates that the nature of this right has been changed with respect to existing corporations. Whatever public policies are expressed in the 1970 Constitution with respect to corporations organized after July 1, 1971, the document reflects no changes in public policy with respect to previously organized corporations. Since the public policy which relates specifically to existing corporations is unchanged, a right which was unwaivable before the effective date of the 1970 Constitution must remain unwaivable after that date. For that reason, I dissent.