Olnrn^U ICaui ^ri^nnl Hibrary Cornell University Library KFO 210.M36 Law gpvernlna private corporations In Oh 3 1924 024 702 015 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024702015 THE LAW GOVERNING PRIVATE CORPORATIONS IN OHIO Including Commercial Corporations, Steam, Street and Traction Railroads, Fire, Life, Accident and Industrial Insurance, Trust Companies, Private Banking Companies, Savings, Loan and Building Associations, and every form of Private Corporation doing business in Ohio, With Forms of Procedure for the Formation, Organization, Operation, Consolidation and Liquidation of Corporations. By EDWIN TfVlARSHALL (Of the Toledo Bar) 1903 The W. H. Anderson Co. Publishers. Copyright, 1903 BY The W. H. Anderson Co. INTRODUCTION. ^ I ^HE following pages are the result of an effort to present, in a concise and practical manner, all the law of Ohio relating to private corporations, and it is the hope of the writer that the book will be of use to the profession and others interested. Notwithstanding the care given to this work and the desire to make it useful, it can not be assumed that it is free from faults and errors. It is a difficult matter to classify the cases bearing upon such conglomerate and illogical corporation laws as ours, especially when the work is destroyed by one or two sessions of the legislature. The book is respectfully submitted to a profession that is inclined to be lenient and charitable toward any- thing that saves time. E. J. MARSHALL. Toledo, Ohio, January ist, igoj. THE LAW GOVERNING PRIVATE CORPORATIONS IN OHIO. PART I. CONSTITUTIONAL PROVISIONS AFFECTING CORPORATIONS. Art. VIII, § 4. Credit of state. The state shall not become joint owner or stockholder. § 5. No assumption of debts by the state. § 6. Counties, cities, towns, or townships not authorized to become stockholders. Art. XIII, § 1. Corporate powers. § 2. Corporations, how formed. § 3, Dues from corporations, how secured. § 4. Taxation of corporations. § 5. Right of way. § 7. Associations with banking powers. Art. VIII.. § 4. CREDIT OF STATE. THE STATE SHALL NOT BECOME JOIITT OWNER OR STOCKHOLDER. — The credit of the state shall not, in any manner, be given or loaned to, or in aid of, any individual association or corporation ■whatever; nor shall the state ever hereafter become a joint owner, or stockholder, in any company or association in this state, or elsewhere, formed for any purpose whatever. See generally Cincinnati, etc., E. R. Co. v. Commissioners, 1 Oh. St. 77 ( 1852 ) ; Stuben- Tille, etc., R. R. Co. v. Trustees, 1 Oh. St. 10.5 (1852); Loomis v. Spencer, 1 Oh. St. 153 (1853) ; Cass v. Dillon, 2 Oh. St. 6(i7 (1853) ; Thompson v. Kelly, 2 Oh. St. 647 (1853); State ex rel. v. Commissioners, 6 Oh. St. 280 (1856) ; State ex rel. v. Van Home, 7 Oh. St. 327 ( 1857 ) ; State ex rel. v. Trustees, 8 Oh. St. 394 (1858) ; Weaver v. Cherry, 8 Oh. St. 564 (1858); State ex rel. v. Commissioners, 11 Oh. St. 183 (1860) ; State ex rel. v. Com- missioners, 12 Oh. St. 596 (1861) ; Trustees v. Springfield, etc., R. R. Co., 12 Oh. St. 624 (1861); Commissioners v. Nichols, 14 Oh. St. 260 (1863) ; Fosdick v. Perrysburg, 14 Oh. St. 472 (1863); Walker v. Cincinnati, 21 Oh. St. 14 (1871). § 5. NO ASSUMPTION OF DEBTS BY THE STATE.— The state shall never assume the debts of any county, city, town, or township, or of any corporation what- ever, unless such debt shall have been created to repel invasion, suppress insurrection, or defend the state in war. See Walker v. Cincinnati, 21 Oh. St. 14, 52 (1871). LAW GOV. PRIV. COR. — I. [1] Private Corporations in Ohio. Corporations; Powers, formation, etc. § 6. COUNTIES, CITIES, TOWNS, OB, TOWNSHIPS NOT AITTHORIZED TO BECOME STOCKHOLDEES. — The general assembly shall never authorize any county, city, town, or township, by vote of its citizens, or otherwise, to become a stockholder in any joint stock company, corporation, or association whatever; or to raise money for, or loan its credit to, or in aid of, any such company, corporation, or association. See generally Taylor v. Commissioners, 23 Oh. St. 22 (1872); Walker v. Cincinnati, 21 Oh. St. 14, 54, 55 (1871); Cass v. Dillon, 2 Oh. St. 608 (1853) ; .Fosdick v. Perrysburg, 14 Oh. St. 472 (1863) ; Thompson v. Kelly, 2 Oh. St. 647 (1853) ; Wyscaver v. Atkinson, 37 Oh. St. 80 (1881); ^tna Life Ins. Co. v. Pleasant Twp., 53 Fed. 214 (1893) ; Pleasant Twp. V. iEtna Life Ins. Co., 138 U. S. 67 (1891). Art. XIII. § 1. CORPORATE POWERS. • special act conferring corporate powers. ■ The general assembly shall pass no Scope of section.. No distinction can be made between private and municipal corporations, and the inhibition extends as well to the conferring of addi- tional powers on an existing corporation as to the creation of a, new one. — State ex rel. v. Mitchell, 31 Oh. St. 592, 607 (1877). These sections are The sections of the Constitution of 1851 retrospective, in their — Citizens' Bank v. (1856) ; State ex rel. (I860) ; State ex rel 394 (1858). not retrospective. thirteenth article of the are prospective, and not intent and applications. Wright, 6 Oh. St. 318 V. Roosa, 11 Oh. St. 16 . V. Trustees, 8 Oh. St. Reorganization cannot be effected by special act. See Atkinson v. Marietta, etc., K. R. Co., 15 Oh. St. 21 (1864). May authorize abandonment of poorer. Permission to surrender powers does not come within the purview of this section. — Pennsylvania, etc., Co. v. Commissioners, 27 Oh. St. 14 (1875). Ordinance authorizing an extension of a street-car line does not confer cor- porate authority. Sims v. Street R. R. Co., 37 Oh. St. 556 (1882). See generally Vought v. Columbus, etc., R. R. Co., 58 Oh. St. 123 (1898) ; State ex rel. v. Davis, 23 Oh. St. 434 (1872) ; State ex rel. v. Cincinnati, 23 Oh. St. 445 ( 1872 ) . § 2. CORPORATIONS — HOW FORMED. — Corporations may be formed under general laws; but all such laws may, from time to time, be altered or repealed. Effect of article 1, § 2. This section must be construed in connec- tion with section 2, article 1, which provides that " no special privileges or immunities shall ever be granted that' may not be altered or repealed." — Shields v. State, 26 Oh. St. 86. 94 (1875). Exemption from control not presumed. The rights of the public are never presumed to be surrendered. Where a corporation, in- corporated before the adoption of the consti- tution of 1851, claims to be exempt from legis- lative control, this fact can never be presumed, but must appear affirmatively by the terms of the charter itself. — Zanesville v. Zanesville Gas Light Co., 1 0. C. C. 123 (1885); s. c, 1 C. D. 73. AVhat are general lanrs. See State ex rel. v. Sherman, 22 Oh. St. 411 (1872). Consolidated companies subject to this section. Consolidated companies organized in pursu- ance of the general laws are subject to this section. — Shields v. State^ 26 Oh. St. 86 (1875). Power to regulate rates of fare. Under this section the general assembly has power to alter and regulate rates of fare chargeable by common carrier companies. — Shields v. State, 26 Oh. St. 86 (1875). See generally, as to power to alter or repeal, Milan, etc., Road Co. v. Husted, 3 Oh. St. 578, 583 (1854) ; Bank of Toledo v. Bond, 1 Oh. St. 622 (1853) ; Lake Shore, etc., Ry. Co. v. Cin- cinn.ati, etc., Ry. Co., 30 Oh. St. 604 (1876) ; State ex rel. v. Columbus Gas Co., 34 Oh. St. 572 ( 1878 ) ; Zanesville v. Gas Light Co., 47 Oh. St. 1 (1889); Harper v. Ampt, 32 Oh. St. 291 (1877). § 3. DUES FROM CORPORATIONS, HOW SECURED. — Dues from corporations shall be secured, by such individual liability of the stockholders, and other means, as may be prescribed by law; but in all cases, each stockholder shall be liable, over and above the stock by him or her owned, and any amount unpaid thereon, to a further sum, at least equal in amount to such stock. Constitutional Provisions. Corporations; Banking Powers. Liability must be imposed in all cases. The legislature has no power to create cor- porations without securing the individual lia- bility of stockholders, at least to the minimum amount required by the constitution; and if the act of incorporation does not secure this, either by express provision or by requiring from the corporation or stockholders such acts of organization or otherwise, as will sub- ject them to the constitutional- provision, the act will be iinconstitutional and void. — State ex rel. v. Sherman, 22 Oh. St. 4il (1872). See generally § 3258 et seq. § 4. CORPORATE PROPERTY SUBJECT TO TAXATION. — The property of corporations, now existing or hereafter created, shall forever be subject to taxation, the same as the property of individuals. See Exchange Bank v. Hines, 3 Oh. St. 1, 8 (1853) ; Baker v. Cincinnati, 11 Oh. St. 534, 540 (1860). Powrer to surrender right to tax. See Milan, etc., Road Co. v. Husted, 3 Oh. St. 578 (1854); Debolt v. Ohio, etc., Trust Co., 1 Oh. St. 563 (1853); Mechanics' Bank V. Debolt, 1 Oh. St. 591 (1853); Knoup v. Piaua Bank, 1 Oh. St. 603 (1853); Bank of Toledo V. Bond, 1 Oh. St. 622 (1853) Matheny v. Golden, 5 Oh. St. 361 (1856) State ex rel. v. Moore, 5 Oh. St. 444 (1856) Ross County Bank v. Lewis, 5 Oh. St. 447 (1856); Piqua Bank v. Knoup, 16 How. (U. S.) 369 (1854). § 5. RIGHT OP WAY. — No right of way shall be appropriated to the use of any corporation, until full compensation therefor be first made in money, or first secured by a deposit of money, to the owner, irrespective of any benefit from any improvement proposed by such corporation; which compensation shall be ascertained by a jury of twelve men, in a court of record, as shall be prescribed by law. See § 3281 and § 6414 et seq. § 7. ASSOCIATIONS WITH BANKING POWERS. — No act of the general assembly, authorizing associations with banking powers, shall take effect until it shall be submitted to the people, at the general election next succeeding the passage thereof, and be approved by a majority of all the electors, voting at such election. See generally Forrest City, etc., Ass'n v. Gallagher, 25 Oh. St. 208 (1874); Dearborn V. Northwestern Savings Bank, 42 Oh. St. 617 (1884) ; Bates v. People's, etc., Ass'n, 42 Oh. St. 655 (1884). PART II. POWERS OF BANK OFFICERS; FOREIGN CORPORATIONS; COMMISSIONER OF RAIL- ROADS AND TKLEGKAPHS; SC'PERTNTEXDENT OF INSURANCE; CEMETERY ASSOCIATIONS; GAS COMPANIES; RAILWAYS IN MUNICIPAL CORPORATIONS; STREET RAILROADS; TAXATION; MECHANIC'S LIENS ON RAILROADS; LIEN OF COMMON CARRIERS. PowEES OP Bank Officers. § 111. Bankers, etc., not to act as notaries. 5 148a. Fees to be charged by secretary of state for official services. FOBEIGN COEPOBATIONS. § 148e. Foreign corporations. § 148d. Certificate necessary for foreign stock corporation, etc. Annual Repohts and Taxes. An Act. To require annual reports and annual fees. (Willis Bill.) Commissioner of Railroads and Telegraphs. ? 245. Commissioner of railroads, how appointed, term, who eligible. § 246. His bond, and oath of office. § 247. Duty to examine tracks, bridges, etc., supposed to be dangerous; shall prescribe rate of speed over same, or wholly stop passage of trains, penalties. § 247a. Gates, bells, devices, or flagmen at crossings. § 247b. Regulations as to such gates, bells, devices, or flagmen. § 247e. Gates or flagmen at dangerous crossings in Hamilton — duty of prosecuting attorney. § 247d. How railroads can cross each other or a stream without stopping; discontinuance. § 247e. Petition for safety devices and procedure thereon. I 247f. Compulsory interlocking. § 247g. Crossing without stopping. § 247h. Penalty for non-compliance with order. § 248. Shall examine into alleged violations of law by railroad, its ofiicers, agents, or employees. § 248a. Duty of commissioner of railroads as to differences between citizen and common carriers. § 249. Officer in state house, may appoint a clerk ; powers and duties of the clerk. § 250. Commissioner may pass free over all railroads. S 250-1. Additional statements, etc., required of railroad and telegraph companies. I 250-2. Expense to be borne by railroads. 5 250-3. Penalty. I 251. Annual reports of railroad companies, when to be made, what to contain. § 252. Commissioner shall furnish blanks. § 253. Penalty for failure to report. I 254. Annual report by telegraph company, when to be made, and what to contain. I 255. Defective or erroneous reports must be amended. § 256. Railroad companies shall furnish copies of leases and contracts with other com- panies. I 257. Fatal accidents shall be notified to commissioner by telegraph, and he may examine into the cause of same. § 268. Commissioner may subpwna witnesses. [4] Miscellaneous Provisions. Part II, §§ 259-2481. § 259. Penalty for oiBcer, agent, or employee of railroad to refuse to answer questions. § 260. Statement required to be made by railroad companies. § 261. Penalty for failure to comply. § 262. Prosecutions for fines, how made. §263. Prosecution by civil action; by whom brought. § 264. Annual report of commissioner, what to contain. § 265. Moneys collected shall be paid into state treasury, fees of prosecuting attorneys. Sttpekintendent of Insurance. § 266. Superintendent of insurance, appointment and term ; who eligible. § 267. Bond to be given, and, with oath of office indorsed thereon, to be filed with the secretary of state. § 268. Duty of superintendent to enforce insurance laws. § 269. He may appoint a deputy superintendent, deputy to take oath and give bond, and may discharge duties of superintendent; other clerks may be employed, and experts. § 270. Insurance department ; expenditures, salaries ; office and fees of superintendent. § 271. Instruments under superintendent's seal to be evidence, and entitled to record. § 272. Examinations of companies doing business in the state. §273. Power of examinei-s; may publish result. § 274. Proceedings against unsound companies. § 275. Procedure in case of default to comply with requisition. § 276. In relation to unsound mutual insurance companies. § 277. Revocation of authority to such companies. § 278. Record of proceedings and report thereof. §279. Annual valuations, rate of interest, etc.; exception. § 280. Forms of statements to be furnished. § 281. Securities shall be deposited in the state treasury. § 282. Fees shall be paid by companies. § 283. License, etc., of persons making application for insurance. § 284. Annual publication of certificate required. § 285. Foreign insurance companies may appoint agents, etc. § 286. Discontinuance of business by life insurance company. § 286a. Discontinuance and withdrawal of securities by company other than life. § 287. Applicable to companies under laws of the United States. § 288. Penalty for violation of statutory provisions relating to insurance companies. § 289. Insurance business unlawful except under provisions of this chapter. An Act. To provide procedure for collecting claims payable from funds on deposit witli commissioner. Cemetery Associations. § 1465-1. Tax for erection of buildings upon grounds of cemetery association. § 1465-2. Application of tax. § 1465-3. Bonds in anticipation of tax. § 1469. No levy on lots. 5 1470. Penalty for corpse nuisance. § 1470-1. Trustees of townships or cemetery associations may cause dead bodies to be re- moved in certain cases. § 1470-2. May sell burial grounds at public sale; proviso. § 1470-3. Disinterment, etc., of body buried in cemetery. § 1470-4. Form of application. § 1470-5. Writ of mandamus. § I47I. May be removed, etc. Gas Companies. § 2478. Regulating price of electric light, artificial and natural gas. § 2479. Minimum not to be reduced during term agreed upon. Private Corporations in Ohio. Part II, §§ 259-2481. i 2480. AVhen council may occupy streets for gaa purposes, etc. § 2481. Gas companies may be permitted to occupy streets. § 2482. Forfeiture of charter for neglect to furnish gas. § 2483. A temporary failure shall work no forfeiture. § 2484. Council may appoint gas inspector, his duties and compensation. § 2485. Exclusive monopoly shall not be allowed to gas companies. § 2485a. Consolidation of companies doing business in same municipality. § 2491. Contract to supply munioipality with electric light. Eailkoads in Municipal Coepokations. § 10, Mun. Code. Appropriation of railroad property. § 2494. Council to pass ordinance to light bridge or railway. § 2495. Character of the ordinance. § 2496. Notice of requirement to be given. § 2497. Procedure on failure to light bridge or railway. § 2498. Assessment for expense of such lighting, etc. § 2499. How lien may be enforced. § 2500. Regulation of rate of speed. An Act. Authorizing changes and extensions of existing routes and transfer systems. Stkeet Railroads. § 2501. Terms and conditions of construction and operation to be fixed by council; renewal of grant. §29, JIun. Code. Grant of street railway franchises; use of tracks of existing companies, etc. § 30, Mun. Code. Publication, bids, consents, term of grant, release from obligation. § 31, Mun. Code. Rights of abutting owners; curative provisions. i 2503. Grade of streets when street railroad is constructed. § 2504. Pavement of streets where railroads are constructed ; proviso. § 2505. Council of city or village may grant extension of street railroad. § 2505a. Power to lease or purchase, to enter into beneficial arrangement, to purchase stock, etc.; perfection of lease or purchase; rights of dissenting stockholder: increase of fare prohibited. § 2505b. Consolidation. § 2505c. Use of street railway tracks for operation of passenger cars of other railway com- pany, etc. § 2505e. Street railway company may lease or purchase property, etc., of electric light and power company; stockholders' meeting to perfect lease or purchase; dissenting stockholder; powers of purchasing company; lease or sale not to affect liability of light and power company. Taxation of Coepokations. § 2734. Who shall list personal property. § 2735. Where personal property shall be listed. § 2744. Corporations generally; their returns. § 2745. Returns by foreign insurance companies. Miscellaneous Provisions. Part II, §§ 259-2481. I 2745a. Insurance policy on Ohio property not to be placed in agency outside state ; re-in- surance. I 2745b. Revocation of license for violating above. ■S 27450. Superintendent of insurance to inspect company charged with violating the law. § 2745d. Expenses of inspection. §2746. In whose name property to be listed; but stock in companies which make return of capital not to be listed by shareholder, i 2747. When lists to be made ; notice and forms to be given by assessors. ^ 2748. Statements to be verified by oath. I 2749. State auditor to fvu-nish blanks; oath of person listing property; fixing values; county auditor to assemble and instruct assessors and furnish blanks. § 2759. Statement by unincorporated banks ; deductions by county auditor. § 2759a. Further statement required. S 2759b. Savings banks. § 2760. How averages obtained. I 2761. Persons commencing the business of banking after the day preceding the second Monday of April; how to be listed. S 2762. Shares in incorporated banks to be listed. I 2763. Tax on real estate. f 2764. Names of stockholders and number of shares held by each. f 2765. Return to be made by cashier to the auditor. S 2766. Auditor to fix value of bank shares, and report to board of equalization. I 2769. Proceedings when bank fails to make return; penalty for making false statement. § 2770. Board of appraisers for railroad company. S 2771. President of board; quorum; secretary; i-ecord of votes; copy of minutes to be kept in auditor's office. § 2772. Board of valuation of railroad to meet annually, in Jlay ; duties of the board. S 2773. Penalty for officers, etc., refusing to comply with requirements of board; contempt of board; punishment. S 2774. Apportionment of valuation of railway property. S 2775. Compensation of members of the board. § 2776. How portion of value for this state found when part of road in another. I 2777. Who deemed express, telegraph, or telephone company, i 2778. Annual statement to auditor of state. 5 2778a. State board of appraisers and assessors; assessments by; correction thereof. S 2779. Penalty for failure to file statement; further powers of board; penalty for refusal to testify or bring books ; statutes as to false returns applicable. 1 2780. Report of board; filing of statements, etc.; deduction of value of real estate; apportionment and taxation of valuations. § 2780-7. Freight-line and equipment companies defined. § 2780-8. Annual statements of same ; blanks ; exemptions. §2780-9. State board of appraisers and assessors; members; officers; minutes; meetintr; right to appear, etc. % 2780-10. Penalty, recovery, and disposition of same. §2780-11. Annual report; assessment and collections; penalty. § 2780-12. Sleeping-car company defined. § 2780-13. Annual statement. §2780-14. State board of appraisers and assessors; members, powers, etc. § 2780-15. Penalty. §2780-16. Report; filing of statements, etc.; disposition of tax; suit to collect. Private Corporations in Ohio. Bankers, § 111. § 2780-17. Electric light, gas, natural gas, pipe-line, waterworks, street railroad, railroad, messenger, or signal companies defined. § 2780-18. Annual statements of same. § 2780-19. State board of appraisers and assessors; members; officers; minutes; meeting; right to appear, etc. §2780-20. Penalty; recovery and disposition of same. §2780-21. Annual reports; assessments and collection; penalty. § 2780-22. Exemption of municipalities. § 2780-23. Auditor shall file reports with secretary of state. §2808. State board for banks; how constituted. § 2809. Powers of board. § 2810. State auditor to report to county auditors. § 2811. How constituted, and their meeting. § 2812. Their powers. § 2839. Lien on bank shares ; unlawful to transfer stock until delinquent taxes are paid. § 2840. Bank may pay taxes and deduct amount from dividend. § 2842. Agent of express or telegraph company to pay taxes of the company ; one may pay for all the offices of the county. § 2843. Unlawful to act as agent of or perform gerviees for certain companies when taxes ) due and unpaid for twenty days. Mechanic's Liens on Raileoads. § 3207. What contracts for railroad work shall stipulate; claims; order of priority. § 3208. What lien shall have precedence; how such lien perfected; proceedings under. § 3209. How action may be brought. §3210. Contractor to be notified of time of payment; disputed claims, and how adjusted. §3211. To whom preceding sections apply; the word "'owner" defined. Lien of Common C'akeieks. § 3221. Xotice to owner of receipt of freight. § 3222. Register of freight. § 3223. When property may be sold. § 3224. Xotice of sale of property to be given. § 3225. DLsposition of proceeds of sale. § 3226. Suit to subject freight to payment of costs, etc. § 3227. Storage and the lien therefor. § 3228. Copy of notice, sale bill, etc., to be kept. § 3229. Sale of perishable articles. § 3230. Within what time property may be claimed. § 3231. Penalty for neglect to comply with provisions. Mechanic'.s Liens on Railboads. § 3231-1. Lien upon railroad, for labor or material furnished. § 3231-2. How lien obtained. §3231-3. Bond; when injunction may issue. §3231-4. Engineer to make measurements; estimates, etc. § 3231-5. Penalty. § 111. BANKERS, ETC., NOT TO ACT AS NOTARIES. — No banker, broker, cashier, director, teller, or elerk of any bank, banker or broker or other person hold- ing any official relation to any bank, banker, or broker, shall be competent to act as notary public in any matter to which said bank, banker, or broker is in any way interested. (March 23, 1893, 90 v. 119; April 11, 1876, 73 v. 206.) I^iability for default of notary. See Bank v. Butler, 41 Oh. St. 519 (1885). Miscellaneous Provisions. 9 Fees of Secretary of State, § 148a. § 148a. FEES TO BE CHARGED BY SECRETARY OF STATE FOR OFFICIAL SERVICES. — The secretary of state shall hereafter charge and collect the following fees for ofB.cial services: 1. For filing the articles of incorporation of any corporation whose capital stock is ten thousand dollars or under, ten dollars; of a corporation whose capital stock is over ten thousand dollars, one-tenth of one per cent, upon the authorized capital stock of such corporation. 2. For filing a certificate of increase of the capital stock of any corporation having a capital stock where the amount of the increase is ten thousand dollars or under, ten dollars; where the amount of increase is over ten thousand dollars, one- tenth of one per cent, upon the proposed amount of increased capital. 3. For filing articles of agreements of consolidation of corporations having a capital stock, the following fees shall be collected by the secretary of state: Said articles of agreements of consolidation shall be treated as the articles of incorporation of the new consolidated corporations created by such articles or agreements of con- solidation, and the fees for filing such articles or agreements of consolidation, shall be the same in each case as is hereinbefore set forth for the filing of articles of incor- poration of a corporation having the same amount of capital stock, as is provided for by the articles or agreements of consolidation for the new consolidated corporation, created by any such articles or agreement of consolidation; and in fixing the amount of such fees, no credit shall be allowed for fees previously paid by any of the con- stituent corporations, parties to such consolidation, but the same shall be determined solely by the amount of capital stock of the new corporation created by such articles or agreements of consolidation. 4. For filing the articles of incorporation of any mutual insurance corporation not having a capital stock, or of any other mutual corporation not organized strictly for benevolent or charitable purposes and having no capital stock, or of any corpora- tion organized for any of the purposes mentioned in section three thousand six hun- dred and thirty of the Revised Statutes of Ohio, or in the sections supplementary thereto, twenty-five dollars, save and except as hereinafter provided. 5. For filing the articles of incorporation of corporations formed for religious, benevolent or literary purposes; or of such corporations as are not organized for profit, have no capital stock, and are not mutual in their character; or of religious or secret societies, or of societies or associations composed exclusively of any class of mechanics, express, telegraph, railroad or other employes, formed for the mutual pro- tection and relief of the members thereof and their families exclusively, two dollars. 6. For filing the articles of incorporation of corporations formed for the purposes named in section three thousand eight hundred and thirty-three of the Revised Stat- utes, ten dollars; for filing a certificate of the increase of the capital stock of any such corporation, five dollars. 7. For filing a certificate of the reduction of the capital stock of any corporation, five dollars. 8. For filing a copy of the decree of court, changing the name of any corporation, five dollars. 9. For filing a. certified copy of the acceptance by any corporation incorporated prior to the adoption of the present constitution, of any of the provisions of the Revised Statutes, five dollars. 10. For filing an amendment to the articles of incorporation of any corporation, twenty cents a hundred words, to be in no case less than five dollars. 11. For filing for a railroad company a certificate of extension of line, a certifi- cate of change of termini, a certificate of the adoption or change of location, a certifi- cate of the intention of the corporation to construct a branch line, or a certificate of change of route, twenty cents a hundred words, to be in no case less than five dollars. 12. For filing a certificate of the extension of purpose, or change of domicile, of any corporation, five dollars. 13. For filing other certificates not herein enumerated, except certificates of elec- 10 Private Corporations in Ohio. Foreign Corporations, § 148c. tion, for filing which no charge shall be made, twenty cents a hundred words, to be in no case less than five dollars. 14. For filing the copy of papers evidencing the incorporation of any municipal corporation, the annexation of territory by any municipal corporation, or the advance- ment or reduction in grade of any municipal corporation, five dollars, to be paid by the corporation, the petitioners therefor, or their agent. 15. For filing the certificate of subscription required to be filed by section three thousand two hundred and forty-four of the Revised Statutes, two dollars. 16. For filing a name, or names or initials by manufacturers, bottlers and dealers in ginger ale, seltzer-water, soda-water, mineral water and other beverages, under the act of April 9, 1880 (77 O. L., 140), five dollars. 17. For making every certificate under the great seal of the state, one dollar. 18. For recording miscellaneous records, papers, or other documents, required by law to be recorded in the office of the secretary of state, twenty cents a hundred words. 19. For making copies of articles of incorporation, and for making copies in other cases, the fees provided for in original section one hundred and forty-eight of the Revised Statutes shall be charged; and all fees herein established shall be paid into the state treasury as provided in said original section; and the secretary of state shall neither file nor record any of the articles of incorporation, certificates or other papers hereinabove referred to, unless the fees for filing same are first duly paid. (Feb- ruary 12, 1889, 86 V. 33; March 14, 1888, 85 v. 80; May 15, 1886, 83 v. 165; March 18, 1884, 81 V. 52.) Validity and application to consolidated companies. Ashley v. Eyan, 49 Oh. St. 504 (1892) ; s. c, 153 U. S. 436. § 148c. FOREIGN CORPORATIONS. — Every foreign corporation, incorporated for purposes of profit, now or hereafter doing business in this state, and owning or using a part or all of its capital or plant in this state, shall, within thirty days after the passage of this act, or, in case of a. company hereafter coming into this state, then before it proceeds to do any business in this state, under the oath of the presi- dent, secretary, treasurer, superintendent or managing agent in this state of such corporation, make and file with the secretary of state, a statement, in such form as the secretary of state may prescribe, containing the following facts: 1. The number of shares of authorized capital stock of the company, and the par Viilue of each share. 2. The name and location of the ofiice or officers [offices] of the company in Ohio, and the name and address of the officers or agents of the company in charge of its ■business in Ohio. 3. The value of the property owned and used by the company in Ohio, where sit'iate, and the value of the property of the company owned and used outside of Ohio. 4. The proportion of the capital stock of the company which is represented by property owned and used [and] by business transacted in Ohio. From the facts thus reported, and any other facts coming to his knowledge bear- ing upon the question, the secretary of state shall determine the proportion of the capital stock of the company represented by its property and business in Ohio, and shall charge and collect from the company, for the privilege of exercising its fran- chises in Ohio, one-tenth of one per cent, upon the proportion of the authorized cap- ital stock of the corporation, represented by property owned and used and business transacted in Ohio, being the same fee required to be paid by corporations formed under the laws of Ohio. Upon the payment of the said amount, the secretary of state shall issue to the foreign corporation a certificate that such corporation has complied Miscellaneous Provisions. 11 Foreign Corporations, § 148c. with tlie laws of Ohio, and is authorized to do business therein, stating the amount of its entire capital and the proportion of which is represented in Ohio. Provided, this section shall not apply to foreign insurance, banking, savings and loan, or build- ing and loan companies, or to foreign, co-operative or investment companies organ- ized to sell certificates or debentures on the installment or partial payment plan, or companies doing business on the service dividend plan, who have deposited with the treasurer of the state of Ohio security satisfactory to him of the value of not less than twenty-five thousand dollars, and who shall annually thereafter deposit securi- ties equal in value to ten per cent, of the gross receipts on the amount of business done in Ohio for the preceding year, until the whole amount so deposited has reached the sum of one hundred thousand dollars, for the protection of the holders of said cer- tificates or debentures, or to express, telegraph, telephone, railroad, sleeping car, trans- portation or other corporations engaged in Ohio in interstate commerce business; or to foreign corporations entirely non-resident, soliciting business, or making sales, in this state by correspondence or by traveling salesmen. Any foreign corporations shall have the right, on application, to be heard by the secretary of state, touching the matter of the determination of the proportion of its capital stock represented by property used and business done in Ohio. Any corporation aggrieved by the decision of the secretary of state, may, within ten days, appeal to the auditor of state, the treasurer of state and the attorney general, whose decision in the matter shall be fljial. Every foreign corporation subject to the provisions of this section which shall neglect or fail to comply with its requirements, shall be subject to a penalty of one thousand dollars, and an additional penalty of one thousand dollars [for] every month that it continues to transact any business in Ohio without com- plying with the requirements of this section, to be recovered by action in the name of the state, and on collection, paid into the state treasury to the credit of the gen- eral revenue fund. The attorney general, on the request of the secretary of state, shall institute such action in the court of common pleas of Franklin county, or in any county in which such corporation has an oflace or place of business, as he prefers. The governor and secretary of state, on good cause shown, may, in their discretion, remit the penalty, or any part thereof, prescribed in this section. No foreign corporations subject to the provisions of this section, shall maintain any action in this state upon any contract made by it in this state after the time fixed by this act for compliance by such corporation with its requirements, until it shall have com- plied with the requirements of this act, and procured the requisite certificate from the secretary of state. Every corporation which has filed its statement and paid the privilege tax under this section, and which thereafter shall increase the proportion of its capital stock, represented by property used and business done in Ohio, shall within thirty days after such increase, file an additional satement with the secretary of state, and pay a fee of one-tenth of one per cent, upon the amount of its increase of its capital stock, represented by property owned or business done in Ohio. All fees collected by the secretary of state under this section shall be paid by him into the state treasury to the credit of the general revenue fund. Every corporation subject to the provisions of this section which complies with its requirements, shall not be subject to process of attaehmentrtrnder section 5521, Revised Statutes, or any law of Ohio, upon the ground that it is a, foreign corporation or a non-resident of this state. " Wo person shall be required to list for taxation any share or shares of the capital stock of any corporation, whether domestic or foreign, the property of which is taxed in the name of such company in Ohio, nor shall any person be required to list 12 Private Corporations in Ohio. Foreign Corporations, § 148d. for taxation any share or shares of the capital stock of any corporation, whether domestic or foreign, if satisfactory proof, when demanded, is furnished to the taxation authorities by the holder of such share or shares that two-thirds or more of the property of such corporation is taxed in Ohio and the remainder is taxed in some other state or states of the United States ; provided, however, that this shall not apply to shares in any foreign corporation unless it shall, whether otherwise required by law to do so or not, pay annually for the privilege of exercising its franchise in Ohio, upon its entire authorized capital stock, the sam.e percentage as is required by law on the subscribed or issued capital stock of domestic corporations for profit." (May 10, 1902, 95 V. 539; April 14, 1900, 94 v. 225; April 23, 1898, 93 v. 225; May 16, 1894, 91 V. 272.) Exemption from attachment — constitutionality. Puerring v. Carter-Crume Co., 16 0. C. C. 629 (1898) ; s. c, 9 C. D. 411. § 148d. CERTIFICATE NECESSARY FOR FOREIGN STOCK CORPORATION, ETC. — No foreign stock corporation, other than a. banking or insurance corporation, or foreign building and loan associations, or foreign co-operative or investment com- panies, or foreign companies organized to sell certificates or debentures on the install- ment or partial payment plan, or foreign corporations doing business on the service dividend plan, who have deposited with treasurer of the state of Ohio securities sat- isfactory to him of the value of not less than twenty-five thousand dollars, and shall annually thereafter deposit securities to the satisfaction of said treasurer equal in value to ten per cent, of the gross receipts on the amount of business done in Ohio for the preceding year, until the whole amount so deposited has reached the sum of $100,000, for the protection of the holders of such certificates or debentures, shall do business in this state without first having procured from the secretary of state a certificate that it has complied with all the requirements of law to authorize it to do business in this state, and that the business of the corporation to be carried on in this state is such as can be lawfully carried on by a corporation incorporated under the laws of this state for such or similar business, or if more than one kind of business, by two or more corporations so incorporated for such kinds of business exclusively. The secretary of state shall deliver such certificate to every such corpo- ration so complying with the requirements of the laws of this state. No such foreign stock corporations doing business in this state without such certificate, shall main- tain any action in this state upon any contract made by it in this state until it shall have procured such certificate. Before granting such certificate, the secretary of state shall require every such foreign corporation to file in his oface a sworn copy of its charter or certificate of incorporation, and a statement under its corporate seal particularly setting forth the amount of capital stock, the business or objects of the corporation which it is engaged in carrying on, or which it proposes to engage in or carry on within the state, and a place within this state which is to be its principal place of business, and designating in the manner prescribed in the code of civil procedure in this state, a person upon whom process against such corporation may be served within this state. The person so designated must have an ofllce or place of business at the place where such corporation is to have its principal place of business within this state. Such designation shall continue in force until revoked by an instrument in writing designating in like manner some other person upon whom process against such corporation may be served in this state. Any agent so desig- nated by such foreign corporation may, in the name and on behalf of such corpora- Miscellaneous Provisions. 13 foreign Corporations, § 148d. tion, bring or prosecute actions in any of the courts of tMs state in the same manner and with like effect as if done by an officer of such corporation. If the person so designated die or remove from the place where such corporation has its principal place of business within this state, and such corporation does not, within thirty days after such death or removal, designate in like manner another person upon whom process against it may be served within this state, the secretary of state shall revoke the authority of such corporation to do business within this state, and process against such corporation in actions upon any liability incurred within this state before such revocations, may after such death or rem^oval, and before another designation is made, be served upon the secretary (of state). At the tim.e of such service the plaintiff shall pay to the secretary of state two dollars, to be included in his taxable costs and disbursements, and the secretary of state shall forthwith mail a copy of such notice to such corporation, if its address or the address of any officer thereof is known to him. For each certificate thus issued by the secretary of state he shall ■be entitled to receive and shall be paid fees according to the amount of capital stock of each such corporation, as follows: $100,000 or less $15 00 More than $100,000 and not exceeding $300,000 20 00 More than $300,000 and not exceeding $500,000 25 00 More than $500,000 and less than $1,000,000 30 00 $1,000,000 or more 50 00 Which fees and the several sums of two dollars above named are to be paid by him to treasurer of state to credit of general revenue fund. Provided that such foreign corporations as comply with the provisions of section 148c of the Revised Statutes, as amended May 16, 1894, shall not be subject to process of attachment under section 5521, Revised Statutes, or any law of Ohio, upon the ground, that it is a foreign corporation or non-resident of this state. If any person solicits, or transacts, within this state, any business for any such foreign corporation, imtil it shall have com- plied with all the provisions of this section, he shall be deemed guilty of a misde- meanor, and on conviction, shall be fined not less than ten dollars nor more than five hundred dollars, or be imprisoned not less than ten days nor more than six months, or both. It shall be the duty of the prosecuting attorney, upon direction of the attorney-general, to prosecute any person charged with a violation of the provisions of this section. (April 23, 1898, 93 v. 227; May 19, 1894, 91 v. 355; April 25, 1893, 90 v. 261.) What are corporations. In determining whether organizations are or are not corporations, the designation of them as joint stock associations or partner- ships, by the statute of New York, under which they were created, and their classifica- tion as joint stock associations and partner- ships by the courts of New York, are not conclusive, if they have_ all the properties, rights, attributes, privileges, immunities of corporations, they may be regarded as such. — State V. United States Express Co., 1 N. P. 259 (1895); s. c, 2 N. P. 98 (1895); Express Co. V. State, 55 Oh. St. 69 (1896). See State ex rel. v. Ackerman, 51 Oh. St. 163, 197 (1894); Andrews Bros. Co. v. Youngstown Coke Co., 86 Fed. 585 (1898). Poorer of foreign corporations. In the absence of statutes, there is nothing prohibiting a foreign corporation from doing business, suing and being sued, and exercising all its general powers in this state. — New- burg Petroleum Co. v. Weare, 27 Oh. St. 343 (1875) ; Hanna v. International Petroleum Co., 23 Oh. St. 622 (1873). . Rights obtained only through comity. Foreiftn corporations can exercise none of their franchises or powers within this state, except by comity or legislative consent. That consent may be upon such terms and condi- tions as the general assembly under its legis- lative power may impose. — Western Union Tel. Co. v. Mayer, 28 Oh. St. 521 (1876); State ex rel. v. W. U. M. Ins. Co., 47 Oh. St. 167 (1890). Do not become Ohio corporations by doing business here. A foreign railroad corporation, by merely leasing, possessing and operating in this state, the property of a domestic corporation, does not thereby become an Ohio corporation. — Baltimore, etc., R. R. Co. v. Cary, 28 Oh. St. 14 Private Corporations in Ohio. Foreign Corporations, § 148d, 208 (1876) ; Railway v. Stringer, 32 Oh. St. 408, 472 (1877). POMTBTS. A corporation can have no greater power in a foreign state than it has in the state of its creation ; it being always limited to the pow- ers conferred in its charter from charging more than six per cent, interest, cannot charge more in a foreign state,- although the law there permits a greater rate to be charged. — Ewing V. Toledo Savings Bank, 43 Oh. St. 31 ( 1885 ) . See Curtis v. Hutchinson, 10 W. L. J. 134 (1852) ; Ohio, etc., R. R. Co. v. Indian- apolis, etc., R. R. Co., 5 A. L. Reg. 733 (1866). Same subject — exception. Where the charter of a foreign corporation denies it a power required by the policy of this state, its acts in this state must be gov- erned by our policy, for instance, a New York corporation, though prohibited in New York, may in Ohio make an assignment for the benefit of creditors. — Hall v. Ohio, etc., Iron Co., 24 W. L. B. 310 (1890). Same subject — exception. Where the charter powers of a corporation are general, and are broad enough to cover a certain act, a general law of the state creat- ing the corporation restricting corporations in doing such acts will not affect it in other states; for instance, the power of a New York corporation to take lands by devise in Ohio is not affected by the New York statutes of wills. — American Bible Society v. Mar- shall, 15 Oh. St. 537 (1864). Power to hold land. A foreign corporation may hold land in this state when not forbidden by express legisla- tion or the general policy of the law. — State ex rel. v. Sherman, 22 Oh. St. 411, 433 (1872) ; American Bible Society v. Marshall, 15 Oh. St. 537 (1864). Foiver to sue and be sued. In the absence of statute a foreign corpora- tion has power in this state to sue and be sued. — Hanna v. International Petroleum Co., 23 Oh. St. 622 (1873) ; Lewis v. Bank of Kentucky, 12 Qh. 132 (1843)-; Mohr Dis- tilling Co. v. Lamar Ins. Co., 7 W. L. B. 341 (1882). Power to make assignment for benefit of creditors. Hall V. Ohio, etc.. Coal Co., 24 W. L. B. 310 (1890). Preference by a foreign corporation. A foreign corporation having no property in Ohio may prefer an Ohio creditor by trans- ferring to him property out of the state. — First Nat. Bank v. McKinney, 16 0. C. C. 80 (1898) ; s. c. 9 C. D. 1. Organization to evade our laws. It is no defense to an action by a foreign corporation that it was organized in a foreign state to evade laws of this state governing corporations. — Newburg Petroleum Co. v. Weare, 27 Oh. St. 343, 352 (1875). See Second Nat. Bank v. Hall, 35 Oh. St. 158, 167 (1878); s. c, 2 C. S. C. Rep. 397. Are not citizens. Corporations of other states are not citizens entitled to all the privileges and immunities of citizens in the several states within the meaning of the U. S. Constitution. — Western Union Tel. Co. v. Mayer, 28 Oh. St. 521 (1876). Citizenship — removal of actions. For the purpose of jurisdiction and re- moval, in such case, a company incorporated by, and doing business within, another state is to be regarded as a citizen of such other state. — Shelby v. Hoffman, 7 Oh. St. 450 (1857). Constitutionality. These acts are constitutional. -^ .astna Iron, etc., Co. V. Taylor, 3 N. P. 152; s. c, 4 Dec. 180; s. c, 13 0. C. C. 602 (1896) ; s. c, 5 C. D. 242. Ouster by quo 'nrarranto. When a foreign corporation doing business in this state is exercising its franchises in contravention of the laws thereof, it may be ousted therefrom by proceedings in quo war- ranto. — State ex rel. v. W. U. M. Ins. Co., 47 Oh. St. 167 (1890) ; State ex rel. v. Insur- ance Co., 49 Oh. St. 440 (1892). Failure to comply with law. To take advantage of the act as a defense in a suit instituted by a foreign corporation, the averments of the answer must bring such foreign corporation plainly within the pro- visions of it, and show that such foreign cor- poration does not belong to the class of foreign corporations exempted by the law from the provisions. — Toledo Commercial Co. v. Glenn Mfg. Co., 11 0. C. C. 153 (1896) ; h. c, 5 C. D. 131; s. c, 55 Oh. St. 217; Brady v. Palmer, 19 O. C. C. 687; s. c, 10 C. D. 27 (1899) ; s. c, 8 C. D. 703; s. c. (Sup. Ct. 1901), 45 W. L. B. 176. Penalty — effect on contract. Where the penalty imposed by the statute is on the persons acting as agents, and the statute is silent as to the contract, it seems that the contract is good. — See Union, etc., Ins. Co. V. McMillen, 24 Oh. St. 67 (1893) ; Manhattan Ins. Co. v. Ellis, 32 Oh. St. 388 (1877). Failure to comply .— effect on contract. A contract made by a foreign corporation, which had failed to comply with the act of 1893, was not void. — See Fergus v. Colum- bus, 6 N. P. 82 (1899) ; s. c, 8 Dec. 290. Right of action merely suspended. Where the statute provides that a foreign corporation failing to comply with the law shall not maintain an action at law until it has complied with the law, the remedy is Miscellaneous Provisions. 15 Foreign Corporations, § 148d. merely suspended until such time as the cer- tificate is procured. — Simplex Dairy Co. v. Cole, 86 Fed. 739 (1898); Crefeld Miller v. Goddard, 69 Fed. 141 (1895). What is doing business. Whether a foreign corporation is carrying on business in a. state must be determined by what it has done, or is doing, rather than by what it may hereafter do, under powers re- served to it in existing contracts, but not yet exercised. For one person to supply the means to another to do business with or on is not the doing of business by the former. — United States v. American Bell Telephone Co., 29 Fed. 17 (1886) ; s. c, 5 0. F. D. 558. Need not commence business in its own state. Xhe legal existence of a foreign corporation cannot be questioned because it has done no business in its home state other than its or- ganization. — Hanna v. International Petro- leum Co., 23 Oh. St. 622 (1873). Failure to comply — no defense to prose- cution for crime. On the trial of an indictment for the em- bezzlement of moneys coming into the posses- sion of the defendant as the agent of a foreign corporation, it is not a, defense that the cor- poration had failed to file with the secretary of state the statement required by §§ 148c and 148d. — State v. Pohlmeyer, 59 Oh. St. 491 (1898). Corporations engaged in interstate commerce. This law can only apply to such corpora- tions as come within the jurisdiction of the state for the purpose of carrying on their business here; but a state cannot prohibit corporations from doing business in any other state in selling its products or wares in any manner that it chooses. — Toledo Commercial Co. V. Glen Mfg. Co., 11 0. C. C. 153; s. c, 5 C. D. 131 (1896) ; s. c, 55 Oh. St. 217 (1896) ; General Electric Co. v. Lima Electric Ry. Co., 4 N. P. 167 (1897); Haldy v. Tomoor-Haldy Co., 3 N. P. 43 (1896); s. e., 4 Dec. 118; Aultman, Miller Co. v. Holder, 34 VV. L. B. 92 (1895). Inspection of books. When a foreign corporation does business in this state its stockholders may obtain an in- spection of its books by appropriate proceed- ings. — State ex rel. v. Farmer, 7 0. C. C. 429 (1892). Waiver of right to remove actions to federal courts. A statute which requires a foreign corpora- tion, as a condition precedent to obtaining permission to do business here, to waive the right to remove causes to the federal courts, is repugnant to the constitution and laws of the United States, and the waiver is void. — Railway v. Stringer, 32 Oh. St. 468 (1877); Baltimore, etc., R. R. Co. v. Cary, 28 Oh. St. 208 (1876); Railway Passenger, etc., Co. v. Pierce, 27 Oh. St. 155 (1875) ; New York Ins. Co. V. Best, 23 Oh. St. 105 (1872); Thoms v. Greenwood, 7 A. L. R. 320 (1878). Liicense to do business is not contract. A license to a foreign corporation to do business in a state on the payment of a fee does not constitute a contract so as to pre- vent the state from adding another fee. — .-lOtna Iron, etc., Co. v. Taylor, 3 N. P. 152 (1896); s. c, 4 Dec. 180. Privilege of doing business is not prop- erty. See Western Union Tel. Co. v. Mayer, 28 Oh. St. 521 (1876). Payment of fees under protest — rem- edy. See iEtna Iron, etc., Co. v. Taylor, 3 N. P. 152 (1896). License fee. The fee of one-tenth of one per cent, on the capital stock covers the authorized capital stock, not merely the paid-up stock. — Opin- ion of Attorney-General, 32 W. L. B. 274 (1894). See iEtna Iron, etc., Co. v. Taylor, 3 N. P. 152; s. c, 4 Dec. 180; 13 O. C. C. 602 (1896) ; s. c, 5 C. D. 242. Legal existence of foreign corporations. A person dealing with a foreign corpora- tion ia estopped to deny its legal existence and right to do business. — Newburg Petro- leum Co. V. Weare, 27 Oh. St. 343 (1875); Second Nat; Bank v. Hall, 35 Oh. St. 158 (1878). Pleading. A foreign corporation suing in the courts of this state is not required to set out in the petition the terms of its charter showing its capacity to maintain the action. — Smith v. Weed Sewing Machine Co., 26 Oh. St. 562 ( 1875) . See Elektron Mfg. Co. v. Jones Bros. Co., 8 0. C. C. 311 (1894); s. c, 4 C. D. 555; Brady v. National Supply Co., 45 W. L. B. 176 (1901). Pleading. When the charter, powers or franchises o* a, foreign corporation become the basis of an action in this state, they must be specially pleaded, and a pleading for that purpose which does not disclose the state by which nor the terms in which they were granted is bad on demurrer. — Devoss v. Gray, 22 Oh. St. 159 (1871). See Lewis V. Bank of Kentucky, 12 Oh. 132, 151 (1843); Brady v. National Supply Co., 45 W. L. B. 176 (1901). Pleading license to do business. It is not necessary for a foreign corporation bringing suit to allege compliance with local laws. Want of compliance is a matter of defense. — Bradv v. Palmer, 19 O. C. C. 687 (1899); s. c, 45 W. L. B. 176. Proof of existence and poirers. The charter of a foreign corporation being' a law of another state, can only be properly 16 Private Corporations in Ohio. Foreign Corporations, § 148d. "brought before the court by its introduction as evidence. When thus properly produced, be- ing a written instrument, its construction will be for the court. — James v. Cincinnati, etc., R. R. Co., 2 Dis. 261, 266 (1858). See Niagara Bank v. Baker, 15 Oh. St. 68 (1864). Voluntary appearance, what is. A foreign corporation which cannot be served, and does not intend to become a party is. not to be considered as making a voluntary appearance, so as to justify the court in mak- ing it a party to the record, merely because it assumes the defense of the suit for the actual defendant, pursuant to previous contract, and conducts the same by its own attorneys, and in part by witnesses who are under salary from it at the time of testifying; nevertheless the evidence may disclose conduct on the part of the foreign corporation that will estop it in subsequent litigation over the same matter. — Bidwell V. Toledo Consolidated St. Ey. Co., 35 W. L. B. (Fed.) 196 (1896); s. u., 36 W. L. B. 94. Appointment of agent. An agent upon whom service can be made must be one actually appointed by or repre- senting the corporation as a matter of fact, not one created by implication or construction, contrary to the intention of the parties. — - United States v. American Bell Telephone Co., 29 Fed. 17 (1886) ; s. c, 5 0. F. D. 558. Managing agent. The term managing agent implies the carry- ing on of the corporate business, or some sub- stantial part thereof, by means of an agent who manages and conducts the same within the limits of the state, for and on account of the foreign corporation. — United States v. American Bell Telephone Co., 29 Fed. 17 (1886); s. c, 5 0. F. D. 558. Service of process. While a strict compliance with the statutes will be required, a substantial compliance is necessary. The return must show the serv- ice to have been made upon the managing agent in and for this state. It is not suffi- cient to merely show service upon the defend- ant's agent. — Fleckmyer Wheel Co. v. Com- mercial Wheel Co., 35 W. L. B. 358 (1896). Service of process on managing agent. A service upon " John Doe, agent of the Lamar Ins. Co., and the chief officer of its agency in the city of Cincinnati. No chief officer of said company found," is service upon its managing agent. — Mohr Distilling Co. v. Lamar Ins. Co.. 7 W. L. B. 341 (1882). See American Express Co. v. Johnson, 17 Oh. St. 641 (1867) ; Barney v. New Albany, etc., E,. R. Co., 1 Handv, 571 (1855) ; Gibbin v. Kanawha Coal Co., 2 C. S. C. 75 (1870) ; Wheeling, etc., Co. V. Baltimore, etc., R. R. Co., 1 C. S. C. 311 0871). Service of process. Foreign corporations doing business in Ohio may be sued in the United States circuit courts by process served on the agent of such corporations in the state, and it is immaterial where the cause of action arose or the con- tract was executed, or that the plaintiff is not a citizen of Ohio. — Mohr Distilling Co. V. Sundry Ins. Cos., 7 W. L. B. 335 (1882); Runkle v. Lamar Ins. Co., 5 W. L. B. 217 (1880). Service of process by mail. See Heart v. Lycoming Ins. Co., 26 Oh. St. 594 (1875); s. c, 2 A. L. R. 355. See Mohr Distilling Co. v. Fireman's Ins. Co., 12 A. L. R. 168 (1883). Judgments against foreign corpora- tions. Where a corporation chartered by the state of Indiana was allowed by a law of Ohio to transact business in the latter state upon the condition that service of process upon the agent of the corporation should be considered as service upon the corporation, a judgment against the corporation obtained by means of such process ought to have been received in Indiana with the same faith and credit that it was entitled to in Ohio. — Lafayette Ins. Co. V. French, 18 How. (U. S.) 404 (1835). Attachment, exemption from. A corporation complying with the law is exempt from attacJiment. — See Peurring Bros. V. Carter-Crume Co., 33 W. L. B. 2 (1896). See § 5521. Attachment, jurisdiction. See § 5030; Rainey v. Jefferson Iron Works, 8 0. C. C. 674 (1894); s. c, 4 C. D. 231. Attachment of property, practice. See Vallette v. Kentucky Trust Co., 2 Handy, 1 (1855). AVhat is a foreign corporation — attach- ment. " Nonresident of the county " and " foreign corporation " are not equivalent terms so far as corporations are concerned in the justice of the peace attachment act. Foreign cor- porations only include corporations organized by other states.— Bo^ev v. Ohio, etc.. Trust Co., 12 Oh. St. 139 (1861). Attachment of stock. The situs of stock being the domicile of the company, it cannot be reached by garnishment in a foreign state by service on the agent of the corporation and by publication for service on the nonresident owner o| the stock. — Ashley v. Quintard, 41 W. L. B. 289 (1899). Garnishment of foreign corporations. A foreign corporation doing business in Ohio, and having a managing agent in the state, may, by virtue of §§ 5547 and 5534, be served with garnishee process, and held liable A'llSCELLANEOUS PROVISIONS. 17 Reports of Corporations; Excise Tax. thereunder. — Eainey v. Maas, 28 W. Ii. B. 246 (1892); Pennsylvania R. R. Co. v. Peo- ples, 31 Oh. St.- 537 (1877); Rocke v. Rainey, 15 W. L. B. 333 (1886). See Kelley Co. v. Oarvin Machine Co., 6 N. P. 350 (1896) ; s. c, 4 Dec. 374; Baltimore, etc., R. R. Co. v. May, 25 Oh. St. 347 (1874). ^Personal liability of stockholders of foreign corporations. The obligations of the contract of the stockholders in a foreign coi-poration can- not be deemed to be impaired by the pro- vision of a statute, enacted prior to the in- corporation of such company, imposing the same^ personal liability upon stockholders in ioreign corporations doing business in the state as upon stockholders in domestic corpo- rations. — Piniiey v. Nelson, 22 Sup. Court Rep. (U. S.) 52 (1901). Xaw^s applicable to foreign corpora- tions. When a corporation is formed in one state, and by the express terms of its charter it is created for doing business in another slate, and business is done in that state, it must Tie assumed that the charter contract was made with reference to its laws, and the lia- bilities which those laws impose will attend the transaction of such business. — Pinney v. Nelson, 22 Sup. Court Rep. (U. S.) 52 (1901). Taxation of shares in foreign corpora- tions under old acts. Hubbard v. Brush, 61 Oh. St. 252 (1899). £ee Lee v. Sturges, 46 Oh. St. 133 (1889); Bradley v. Bander, 36 Oh. St. 28 (1880); Worthington v. Sebastian, 25 Oh. St. 1 (1874); Sturges v. Carter, 114 U. S. 511 (1884). See opinion of R. P. Rainey, 17 W. L. B. 14 (1887). Taxation, choses in action. Choses in action, whether book accounts, promissory notes, or the like, of foreign cor- porations that are kept in this state and arise out of the corporate business transacted here, are subject to taxation under the provisions of section 2744 of the Revised Statutes. — Hub- bard V. Brush, 61 Oh. St. 252 (1899). Corporation created by tviro states. A corporation created by concurrent legis- lation of two states, receiving from each the same charter in legal effect, has a legal domi- cile in each state, and may lawfully hold its meetings and transact its corporate business in either state. — Covington, etc., Bridge Co. V. Mayor, 31 Oh. St. 317 (1877). See Ohio R. R. Co. V. Wheeler, 1 Black (U. S.) 286 (1861) ; Sebastian v. Covington Bridge Co., 21 Oh. St. 451 (1871). Foreign railway companies. See § 3399, notes. Foreign building and loan associations. See §§ 3836-12 et seq. Certain corporations cannot do business in Ohio. Foreign corporations having power to deal in stocks cannot do business in Ohio, and the secretaiy of state cannot issue a certificate of authority unless such powers are eliminated. — ■ See opinion of Sheets, Attorney-General. See generally paper by E. J. Marshall, 32 W. L. B. 166' (1894), and paper by F. E. Laughran, 34 W. L. B. 334 (1895). Domestic corporation does not become a foreign corporation by doing busi- ness in a foreign state. See Lander v. Burke, 65 Oh. St. 532 (1902). An Act to Require Corporations to File Annual Reports with the Secre- tary of State and to Pay Annual Fees Therefor. Be it enacted by the General Assembly of the State of Ohio: § 1. DOMESTIC CORPORATIONS, FOR PROFIT, REQUIRED TO FILE AN- NUAL REPORT WITH SECRETARY OF STATE. — Every corporation organized Ttnder the laws of this state, for profit, shall make a report in writing to the secre- tary of state, annually, during the month of May, in such form as the secretary of state may prescribe, containing the following facts: 1. The name of the corporation. 2. The location of its principal office. 3. The names of the president, secretary, treasurer and members of the board of directors, with postoffice address of each. 4. The date of the annual election of officers of such corporation. 5. The amount of authorized capital stock and the par value of each share. 6. The amount of capital stock subscribed, the amount of capital stock issued and outstanding, and the amount of" capital stock paid up. 7. The nature and kind of business in which the company is engaged and its place or places of business. LAW GOV. PRIV. COR. — 2. 18 Private Corporations in Ohio. Reports of Corporations; Excise Tax. 8. The change or changes, if any, in the above particulars made since the last annual report. Such report shall bo signed and sworn to before an oflicer duly authorized to administer oaths, by the president, vice president, secretary, or general manager of the corporation, and forwarded to the secretary of state. FEE TO BE PAID UPON FILING SUCH BEPORT.— Upon the filing of such report, the secretary of state shall charge and collect from such corporation a fee of one-tenth of one per cent, upon the subscribed or issued and outstanding capital stock of said corporation, and to be not less than ten dollars in any case. (April 11, 1902, 95 V. 124.) § 2. FOREIGN CORPORATIONS, FOR PROFIT, REQUIRED TO FILE ANNUAL REPORT WITH SECRETARY OF STATE.— Every foreign corporation for profit, now or hereafter doing business in this state, and owning or using a part or all of its capital or plant in this state, and subject to compliance with the provisions of section 148c of the Revised Statutes of Ohio, shall, in addition to the statements required by section 148c and 148d, Revised Statutes of Ohio, make a report in writ- ing to the secretary of state, annually, during the month of September, in such form as the secretary of state may prescribe, containing the following facts: I 1. The name of the corporation and under the laws of what state or country organized. 2. The location of its principal office. 3. The names of the president, secretary, treasurer and members of the board of directors, with the postoffice address of each. 4. The date of the annual election of officers. 5- The amount of authorized capital stock, and the par value of each share. 6. The amount of capital stock subscribed, the amount of capital stock issued, and the amount of capital stock paid up. 7. The nature and kind of business in which the company is engaged and its place or places of business, both within and without the state of Ohio. 8. The name and location of its office or offices in Ohio, and the name and address of the officers or agents of the company in charge of its business in Ohio. 9. The value of the property owned and used by the company in Ohio, where situated, and the value of the property owned and used outside of Ohio and where situated. 10. The change or changes, if any, in the above particulars made since the last annual report. Such report shall be signed and sworn to before an officer duly authorized to administer oaths, by the president, vice president, secretary, superintendent or managing agent in this state, and forwarded to the secretary of state. FEE TO BE PAID UPON FILING SUCH REPORT.— Upon the filing of such report the secretary of state, from the facts thus reported and any other facts coming to his knowledge bearing upon the question, shall determine the proportion of the authorized capital stock of the company represented by its property and business in Ohio, and shall charge and collect from such company, in addition to the initial fees provided for in sections 148c and 148d of the Revised Statutes of Ohio, for the privilege of exercising its franchises in Ohio, annually, one-tenth of one per cent, upon the proportion of the authorized capital stock of the corporation represented by property owned and used and business transacted in Ohio, and to be not less than ten dollars in any case. (April 11, 1902, 95 v. 125.) § 3. DOMESTIC CORPORATIONS, NOT FOR PROFIT AND HAVING NO CAPITAL STOCK, REQUIRED TO FILE ANNUAL REPORT WITH SECRETARY OF STATE.— Every corporation organized under the laws of this state, not for profit and having no capital stock, shall make a report in writing to the secretary of state Miscellaneous Provisions. 19 Reports of Corporations; Excise T^x. annually, during the month of December, in such form as the secretary of state may prescribe, containing the following facts: 1. The name of the corporation. ?. 3. The location of its principal office. 3. The names of the president, secretary, treasurer and members of the board of trustees, or directors, with postoffice address of each. 4. The date of the annual election of such corporation. ) 5. The object or purpose which such corporation is engaged in carrying out. Such report shall be signed and sworn to before an officer authorized to administer oaths, by the president, vice president, secretary or other chief officer of the corpora- tion, and forwarded to the secretary of state. FEE TO BE PAID UPON FILING SUCH REPORT.— Upon the filing of such report the secretary of state shall charge and collect the following fees: For all cor- porations organized for the purposes mentioned in section 148a, paragraph 4, of the Revised Statutes of Ohio, ten dollars; for all corporations organized for the purposes mentioned in section 148a, paragraph 5, one dollar. (April 11, 1902, 95 v. 126.) § 4. CERTIFICATE TO BE ISSUED BY SECRETARY OF STATE SHOWING COMPLIANCE WITH THIS ACT.— Upon the filing of the report and the payment of the fee provided for in the preceding sections of this act, the secretary of state shall make out and deliver to such corporation a certificate of the compliance by such corporation with the preceding sections and the payment of the annual fee therein provided for. ALL FEES THUS COLLECTED TO BE PAID INTO THE STATE TREASURY; MONTHLY REPORT TO AUDITOR OF STATE.— The secretary of state shall make a report monthly to the auditor of state of the annual fees collected under this act, and shall pay the same into the state treasury to the credit of the general revenue fund. (April 11, 1902, 95 v. 126.) § 5. PENALTY FOR FAILURE TO MAKE REPORT OR PAY FEE; CORPORA- TIONS FOR PROFIT. — In case any corporation required to file the report and pay the fee prescribed in sections 1 and 2 of this act shall fail or neglect to make such report or pay such fee within the period prescribed in said sections, respectively, such corporation shall be subject to a penalty of five hundred dollars, and an additional penalty of one hundred dollars per day for each day's omission after the time limited in this act for filing such report and paying such fee. Such penalty and the annual fee or fees required to be paid by the provisions of sections 1 and 2 of this act may be recovered by an action in the name of the state, and on collection paid into the treasury to the credit of the general revenue fund. The attorney general, on request of the secretary of state, shall institute such action in the court of common pleas of Franklin county, or of any county in the state in which such corporation has an office or place of business, as he prefers. REMISSIOKT OF PENALTY.— The governor, secretary of state and attorney gen- eral, upon good cause shown, may, in their discretion, remit the penalty on (or) any part thereof prescribed in this section. PENALTY FOR FAILURE TO MAKE REPORT OR PAY FEE; CORPORATION WOT FOR PROFIT.— In case any corporation required to file the report and pay the fee prescribed in section 3 of this act shall fail or neglect to make such report or pay such fee for three months after the expiration of the time limited by this act, and such default is wilful and intentional, the attorney general shall, on the request of the secretary of state, bring an action in the court of common pleas of Franklin county, or of any county in this state in which such corporation is located, to forfeit 20 Private Corporations in Ohio. Reports of Corporations; Excise Tax. and annul the charter of such corporation, and if such court is satisfied that such default is wilful and intentional, the court is authorized to revoke and annul such charter. (April 11, 1902, 95 v. 126.) § 6. HEARING BY SECRETARY OF STATE AND APPEAL FROM DECISION THEREOF. — Any corporation shall have the right to be heard by the secretary of state upon the matter of determination of the amount of fees due under the provi- sions of this act. Any corporation aggrieved by the decision of the secretary of state may, within ten days, appeal to the auditor of state, treasurer of state and the attorney general, whose decision in the matter shall be final. (April 11, 1902, 95 V. 127.) § 7. CERTAIN CORPORATIONS EXCEPTED FROM THE PROVISIONS OF THIS ACT.— Provided that electric light, gas, natural gas, water works, pipe line, street railroad, electric iuterurban railroad, steann railroad, messenger, union depot, express, freight line, sleeping car, telegraph, telephone and other corporations, required by law to file annual reports with the auditor of state, and insurance, fra- ternal beneficial, building and loan, bond investment, and other corporations required by law to file annual reports with the superintendent of insurance, shall not be subject to the provisions of the preceding sections of this act. FIRST REPORT OF NEWLY ORGANIZED CORPORATION; WHEN TO BE FILED. — Provided further, that a corporation shall not be required to file its first annual report under this act until the proper month hereinbefore provided for the filing of such report, next following the expiration of six months from the date of its incorporation or admission to do business in this state. (April 11, 1902, 95 v. 127.) § 8. CERTIFICATE OF DISSOLUTION, REVOCATION OF CHARTER OR ABANDONMENT TO BE FILED WITH SECRETARY OF STATE — Every domestic corporation, in case of dissolution, revocation of charter or abandonment of its cor- porate purposes, shall file with the secretary of state a certificate of such dissolution, revocation of charter or abandonment; in case of dissolution or abandonment by voluntary action of the corporation, such certificate shall be signed by the president and secretary of the corporation; in case of dissolution, or revocation of charter by action of a competent court, such certificate shall be signed by the clerk of the court entering the decree of dissolution or revocation. The fees for making and filing such certificate with the secretary of state shall be taxed in the costs in favor of the party paying the same, and shall have the same priority as other costs in the dissolu- tion proceedings. FOREIGN CORPORATION RETIRING FROM STATE SHALL FILE CERTIFI- CATE TO THAT EFFECT.— Every foreign corporation when it shall retire from business in this state is hereby required to file with the secretary of state a certificate to that effect, signed by the president and secretary of the corporation. FEES FOR FILING SUCH CERTIFICATES.— The fee for filing certificates of dissolution, revocation of charter, abandonment, or retirement of corporations for profit, shall be five dollars; for filing such certificates of corporations, not for nrofit, one dollar. SURRENDER OP CHARTER OF CORPORATION NOT IN ACTIVE EXIST- ENCE AT TIME OF PASSAGE OF THIS ACT.— Provided, that the charter of a corporation which is shown to have been no longer in active existence at the time of the passage of this act, may be surrendered on the payment of one dollar, on proof as otherwise provided by law. MERE RETIREMENT FROM BUSINESS, ETC., DOES NOT EXEMPT.— The mere retirement from business or voluntary dissolution of a domestic or foreign Miscellaneous Provisions. 21 Commissioner of Railroads and Telegraphs, §§ 245-247. corporation without having filed the certificate provided for in this section, shall not exempt it from the requirements to make reports and pay fees in accordance with the provisions of this act. (April 11, 1902, 95 v. 127.) § 8. This act shall take effect and be in force from and after its passage. (April 11, 1902, 95 V. 127.) Note: This act is the so called Law." ' Willi=^ Constitutionality. See Southern Gum Co. B. 617 (1902). V. Laylin, 47 W. L. COraMISSIONER OF RAILROADS AND TELEGRAPHS. § 245. HOW APPOINTED, AND TERM; WHO ELIGIBLE.— A commissioner of railroads and telegraphs shall be appointed by the governor, by and with the advice and consent of the senate; and he shall hold his oflace for two years: no person is eligible to the oflS.ce who is an oflScer or employe of a railroad company, or who owns or is interested in the stock or bonds of a railroad company. (April 5, 1867, 64 v. Ill, § 1; S. & S. 76.) For an act authorizinn- the governor, auditor of state, attorney-general, railroad commis- sioner, and state librarian, to sell property deeded by Albert A. Bliss and wife to the state of Ohio by deed bearing date February 19, 1852, see 81 v. 175. For an act to authorize the issue of bonds to meet deficiencies in the general revenue fund, see 83 v. 154. Must enforce act against having inexperi- enced employees, see § 3365-13. To enforce an act entitled " to regulate the height of bridges, etc., overhead roadways, etc., over railroad tracks," see § 3337-18. To require trains to equip with automatic couplers and air brakes, see § 3365-23 et seq. To enforce act limiting number of hours of service on railroad, see § 3365-14 et seq. To compel introduction of fire extinguishers on passenger trains, see § 3354-2 et seq. Appliances for blocking of railway frogs, etc., to be approved by, see § 3365-18. Report of number and class of cars equipped with automatic couplers and air brakes, etc., to, every six months until Jan- uary 1, 1900; commisioner to furnish blanks for same, see § 3365-23a. Duty as to construction of over-head wires over line of steam railroad, see §§ 3365-28, 3365-29. Employment of counsel, see § 202. § 246. HIS BOND, AND OATH OF OFFICE.— The commissioner, before entering upon the discharge of his duties, shall give bond to the state in the sum of five thou- sand dollars, with two or more sureties, to the acceptance of the governor, conditioned for the faithful performance of his duties; which bond, with his oath of office and the approval of the governor indorsed thereon, shall be deposited with the secretary of state. (April 5, 1867, 64 v. Ill, § 2; S. & S. 76.) § 247. DUTY TO EXAMINE TRACKS, BRIDGES, ETC., SUPPOSED TO BE DANGEROUS; SHALL PRESCRIBE RATE OF SPEED FOR PASSING OVER SAME, OR WHOLLY STOP THE TRAINS FROM PASSING OVER SAME; PUNISHMENT OF OFFICERS AND OTHERS FOR DISOBEYING HXS ORDERS, AND PENALTY AGAINST COMPANY. — When the commissioner has reasonable grounds to believe, either on complaint or otherwise, that any of the tracks, bridges, or other struc- tures of any railroad in this state are in a condition which renders them, or any of them, dangerous, or unfit for the transportation of passengers, he shall forthwith inspect and examine the same; and if, on such examination by himself or his agent, he is of opinion that any of such tracks, bridges, or other structures are unfit for the transportation of passengers with safety, he shall immediately give to the superin- tendent, or other executive officer of the company operating such road, notice of the condition thereof, and of the repairs or reconstruction necessary to place the same in a safe condition; and he may also prescribe the rate of speed for trains passing over such dangerous or defective track, bridge, or other structure, until the repairs or reconstructions required are made, and the time within which such repairs or recon- struction must be made; or if, in his opinion, it is needful and proper, he may forbid the running of passenger trains over such defective track, bridge, or other structure: 22 Private Corporations in Ohio. Commissioner of Railroads and Telegraphs, §§ 247a, 247b. and if a superintendent or other executive officer receiving such notice and order neglects for two days after receiving the same to direct the proper subordinate officers to run the passenger trains over such defective track, bridge, or other structure, at a speed not greater than that so prescribed, or if the running of passenger trains is so forbidden, then to stop running passenger trains over the same; or if any engineer, conductor, or other employe knowingly disobeys such order, every superintendent, officer, engineer, conductor, or employe, so offending, shall be fined in any sum not exceeding five hundred dollars, or imprisoned in the jail for any period not exceeding one year, or both, at the discretion of the court; and the company operating such road, if it neglects or without good cause fails to make the repairs or reconstruction prescribed by the commissioner within the time by him limited, shall for each day that such repair or reconstruction is delayed beyond the time prescribed, forfeit and pay to the state the sum of one hundred dollars. (April 5, 1867, 64 v. Ill, § 6; S. & S. 77.) See § 1 of " an act for the protection of railroad employees," § 3365-18. § 247a. GATES, BELLS, DEVICES OS. ELAGMEN AT CROSSINGS.— When, in the opinion of the commissioner of railroads, the public safety requires that a gate or gates, automatic alarm bell, or other mechanical device be erected and maintained at any place where a public road or street is crossed at the same level by any railroad, and which crossing has been declared by said commissioner to be a dangerous one, or that a flagman be stationed and maintained at such dangerous crossing, he shall give the superintendent, manager or other officer in charge of such railroad, a written notice that the same is required, and such company, person or corporation owning or operating such railroad shall erect or station the same within such time thereafter as said commissioner shall prescribe. Any company, person or corporation neglect- ing or refusing to erect or maintain such gate or gates, automatic alarm bell, or other mechanical device, or to maintain such flagmen, when so required as aforesaid, shall forfeit and pay to the state, for every such neglect or refusal, the sum of one hundred dollars, and the further sum of ten dollars for every day w^hile such neglect or refusal shall continue. (April 15, 1889, 86 v. 367; May 19, 1894, 91 v. 353.) Foiirer of city to order gates and ivatcli- men. In the absence of special statute a city has no power, by ordinance, to compel a railroad company to maintain, at. a street crossing within the corporate limits, a watchmkn to protect travelers along a liighway. — Ravenna v. Pennsylvania Co., 45 Oh. St. 118 (1887). Duty of company to maintain ^ates. Where crossings are dangerous it is the duty of the company to maintain gates and watchmen. — Railway ' Co. v. Schneider, 45 Oh. St. 678 (1888); Lake Shore, etc., Ry. Co. V. Gaffney, 9 0. C. C. 32 (1894) ; s. c, 6 C. D. 94; New York, etc., E,y. Co. v. Swartout, 14 0. C. C. 582 (1895); s. c. (1 C. D. 7I3S; Rail- way Co. V. Reiss, 13 0. C. C. 405 (1889) ; ». c, 7 C. D. 450. Duty of gatemen. See Rnihvav Co. v. Schneider, 45 Oh. St. 678 (1888); Toledo, etc., Ry. Co. v Fuller, 17 0. C. C. .562 (1804); b. c, 9 C. D. 123; Lake Shore, etc., Rv. Co. v. Geiger, 8 O. C. 0. 41 (1893) ; s. c, 8 C. D. 307. Defective gates. See Baltimove. etc. R. R. Co. 37 W. L. B. 54 (1896). Anderson, § 247b. REGULATIONS AS TO SUCH GATES, BELLS, DEVICES OR FLAG- MEN. — All gates, bells or devices, which by the provisions of this act are under the direction of the commissioner of railroads, shall be built in such a manner, and within such a time, and of such material as shall be approved by the commissioner of rail- roads, and shall be located on the highway or street, on one or both sides of the rail- road track or tracks as the commissioner may deem the public safety to require, and shall be so constructed as, when closed, to obstruct and prevent any passage across such railroad or railroads from the side on which the gate may be located; or said bell shall be made to ring before the approach of each and every train of cars or of a locomotive within three hundred feet of such crossing, or more, according to the Fpeed of the train, and continue to ring until the train of cars or the locomotive shall have reached the crossing. There shall be a person in charge of every such gate and Miscellaneous Provisions. 23 Commissioner of Railroads and Telegraphs, §§ 247c-347d. it shall be his duty to close the same at the approach of every train of cars, or of a locomotive, and to keep it open at all other times. In case an automatic alarm-bell, or other mechanical device shall be required at any such crossing, it shall be the duty of the railroad company at all times to keep such bell or device in good working order. For every neglect of such duty such person or railroad company, upon convic- tion thereof, shall pay the sum of twenty-five dollars. When more than one railroad crosses a public highway or street at such dangerous crossing, the expense incurred in the erection and maintenance of gates, bells or device provided for in this section, and of the necessary gate-keepers, or of a flagman, shall be shared equally by the rail- road companies alongside whose tracks the gates, bells or device shall be located. Provided that an automatic alarm-bell, or other mechanical device as provided for in this and the preceding section, shall not be erected within the limits of any city of the flrst class or of any city of the first, second, third, and fourth grades of the sec- ond class, upon the order of the commissioner of railroads and telegraphs; but nothing herein contained shall prohibit any railroad company from using such automatic alarm-bell or other mechanical device, if it desire, at any public railroad crossing not declared dangerous by said commissioner of railroads and telegraphs; and pro- vided further, that where a gate or gates, has or have been erected, and is or are maintained by the railroad company, or where a flagman has been stationed and is maintained by the railroad company, shall not be abandoned, and any automatic alarm-bell or other mechanical devices be substituted therefor. (April 15, 1889, 86 V. 367; May 19, 1894, 91 v. 353.) See Lake Shore, etc., Ry. Co. v. Cleveland, etc., Ey. Co., 5 N. P. 83 (1898). § 247c. GATES OR FLAGMEN AT DANGEROUS CROSSINGS IN HAMILTON; DUTY OF PROSECUTING ATTORNEY.— When, in the opinion of the city council of any city of the third grade b of the second class, the public safety requires that a gate or gates be erected and maintained at any place where a public road or street is crossed in said city at the same level by any railroad, and which crossing has been declared by said council to be a dangerous one, or that a flagman be stationed and maintained at such dangerous crossing, council shall give the superintendent, man- ager or other officer in charge of such railroad, a written notice that the same is required, and such company, person or corporation owning or operating such railroad shall erect or station the same within such time thereafter as council may prescribe. After said notice has been given to the superintendent, manager or other officer in charge of such railroad that the same is required, such railroad company and said council shall agree as to whether said crossing so declared to be dangerous shall be protected by a gate or gates, or a flagman; and if they fail to come to any agreement within ten days, then the question shall be submitted to arbitrators, the council selecting one person, the railroad company one; the two thus selected shall choose a third. The arbitrators thus selected shall decide whether said dangerous crossing shall be protected by a gate or gates, or a flagman, and their decision shall be flnal. Any company, person or corporation neglecting or refusing to erect or maintain such gate or gates, or to maintain such flagman when so required as aforesaid, shall forfeit and pay to the state for 'every such neglect or refusal the sum of one hundred dollars, and the further sum of ten dollars for every day while such neglect or refusal shall continue. Provided further, that nothing herein contained shall be construed as con- flicting with section 247a. (May 19, 1894, 91 v. 350.) § 2. It is hereby made the duty of the prosecuting attorney of the proper county, upon being advised of the violation of this act, to immediately commence civil action against said company, person or corporation in the name of the state for the recovery of the forfeitures and penalties imposed in this act. (May 19, 1894, 91 v. 350.) § 247d. HOW RAILROADS CAN CROSS EACH OTHER OR A STREAM WITH- OUT STOPPING; DISCONTINUANCE.— When in case two or more railroads or a railroad and an electric railroad crossing each other at a common grade, or any railr 24 Private Corporations in Ohio. Commissioner of Railroads and Telegraphs, §§ 247e-247f. road crossing a stream by a swing or draw-bridge shall, by a system of interlocking, or by other works or fixtures, to be erected by them, or either of them, render it safe for engines or trains to pass over such crossing, or bridge, without stopping, and such system of interlocking works or fixtures shall first be approved by the com- missioner of railroads and telegraphs, and a plan of such interlocking works or fix- tures, for such crossing or bridge, designating the plan of crossing shall have been, filed with such commissioner, then and in that case, it is hereby made lawful for the engines and trains of such railroad or railroads, to pass over such crossing or bridge without stopping, any law, or the provisions of any law, now in force to the contrary notwithstanding, and all such other provisions of law contrary thereto are hereby declared not to be applicable in such case; provided, that the said commissioner shall have and is hereby given power in case such interlocking system or other fixtures, shall, in his judgment, prove to be unsafe or impracticable, to order the same discon- tinued, opportunity first being given the^person or company operating the same to be heard before said commissioner as to the propriety of such order. In case such order is made and enforced, the existing statutes relative to stopping at crossings shall apply until such time as a device approved by said commissioner is substituted. (April 27, 1896, 92 v. 315.) See § 3333 et seq. § 247e. PETITION POE, SAFETY DEVICES AND PROCEDURE THEREON.— In case where the tracks of two or more railroads, or the tracks of a railroad and an. electric railroad cross each other at a common grade in this state, any company own- ing any one of such tracks, whose managers may desire to unite with others in pro- tecting such crossing with interlocking, or other safety devices, and shall be unable to agree with such others on the matter, may file with the said commissioner a peti- tion stating the facts of the situation and asking said commissioner to order such crossing to be protected by interlocking, or other safety devices; said petition shall be accompanied by a plan showing the location of all tracks and switches, and upon the filing thereof notice shall be given to each company or persons owning or operating any track involved in such crossing, and the said commissioner shall thereupon view the site of such crossing and shall, as soon as practicable, appoint a time and place for the hearing of such petition. At the time and place named for hearing, unless the hearing is for good cause continued, said commissioner shall proceed to try the ques- tion of whether or not the crossing shall be protected by interlocking or other safety devices, and shall give all companies and parties interested an opportunity to be fully heard; and after such hearing said commissioner shall enter an order upon a record- book, or docket, to be kept for the purpose, granting or denying such petition; ajid. in case the same is granted, such order shall prescribe the interlocking or other safety devices for such crossing and all other matters which may be deemed proper to the efl&cient protection of such crossing, and in such order the commissioner shall designate the proportion of the cost of the construction of such plant, and the expense of majntaining and operating the same, which each" of the companies or persons con- cerned shall pay, and shall also fix the time within which such appliance shall be put in, such time, however, not to exceed ninety days from the making of such order. (April 27, 1896, 92 v. 315.) § 247f. COMPULSORY INTERLOCKING.— In case, however, one railroad com- pany or an electric railroad company shall hereafter seek to cross at grade with its track, or tracks, the track, or tracks, of another railroad, the railroad company, or the electric railroad company, seeking to cross at grade shall be compelled to provide interlocking or other safety devices put in to the satisfaction of the said commissioner of railroads to protect such crossing, and to pay all costs of such appliance, together with the expense of putting them in. The future maintenance and operation thereof shall be equally apportioned between the two or more roads by the said commis- Miscellaneous Provisions. 25 Commissioner of Railroads and Telegraphs, §§ 247g-350-l. sioner of railroads and telegraphs; provided this act shall not apply to crossings of side tracks only. (April 27, 1896, S3 v. 315; April 25, 1898, 93 v. 334.) § 247g. CKOSSING WITHOUT STOPPING.— Whenever interlocking or other safety devices are constructed and maintained in compliance with sections 2 or 3 (§§ 247e, 247f) of this act then and in that case it shall be lawful for the enginea and trains of such railroad or railroads and the cars of such electric railroad to pass over said crossing without stopping, any law or the provisions of any law, now in. force to the contrary notwithstanding; and all such other provisions of law contrary thereto are hereby declared not to be applicable in such case. (April 27, 1896, 82 v. 315.) § 247h. PENALTY FOB NON-COMPLIANCE WITH OBDEE..— Any person, company or corporation refusing or neglecting to comply with any order made by the said commissioner of railroads and telegraphs in pursuance of this act shall forfeit and pay a penalty of five hundred dollars per week for each waek of such refusal and neglect, the same to be recovered in an action of debt in the name of the state of Ohio, and to be paid, when collected, unto the county treasurer of any county in which such suit may be tried. (April 27, 1896, 92 v. 315.) § 248. SHALL EXAMINE INTO ALLEGED VIOLATIONS OF LAW BY RAIL- ROADS, ITS OFFICERS, AGENTS OR EMPLOYES.— When the commissioner, upon complaint, or otherwise, has reason to believe that any railroad company, or any officer, agent, or employe of any railroad company, has violated, or is violating, any of the laws of the state, he shall examine into the matter. (April 15, 1867, 64 v. Ill, § 5; S. & S. 76.) § 248a. DUTY OF COMMISSIONERS OF RAILROADS AS TO DIFFERENCE BETWEEN CITIZENS AND COMMON CARRIERS.— When the commissioner, on. complaint or otherwise, has reason to believe that differences have arisen between, citizens of the state and any corporation operating as a common carrier, within the state, he shall examine into the matter, and shall report his findings to the general assembly, if in session, otherwise to the governor. (May 18, 1886, 83 v. 206.) § 249. OFFICE IN THE STATE HOUSE; MAY APPOINT A CLERK; POW- ERS AND DUTIES OF THE CLERK.— The office of the commissioner shall be in the state house; and he may appoint a clerk, which appointment must be evidenced by the certificate of the commissioner: the clerk shall discharge such duties as are assigned to him by the commissioner, and he may issue subpoenas for witnesses and administer oaths in all matters pertaining to the duties of the office of commissioner. (April 8, 1871, 68 v. 55, § 3; S. & S. 80.) § 250. COMMISSIONER MAY PASS FREE OVER ALL RAILROADS.— The commissioner shall have the right of passing, in the performance of his duties, on all the railroads within the state, and upon all trains, and any part thereof, free of charge. (April 5, 1867, 64 v. Ill, § 4; S. & S. 76.) § 250-1. ADDITIONAL STATEMENTS, ETC., REQUIRED OF RAILROAD AND TELEGRAPH COMPANIES. — Every railroad company and telegraph company incorporated or doing business in this state, or which shall hereafter become incor- porated and do business under any general law in this state, shall, in addition to the reports already required by law, on or before the first day of September in each year, make and transmit to the commissioner of railroads and telegraphs a full and true statement under oath of the proper officers of said corporation, of the affairs of the said corporation as the same existed on the thirtieth day of the preceding June. Such statement shall be in the form and manner as may be prescribed by the said commis- sioner of railroads and telegraphs. The commissioner shall prepare and furnish each railroad company, or to each organization having one or more railroads in charge, 26 Private Corporations in Ohio. Commissioner of Kailroads and Telegraphs, §§ 250-2-251. and to each, telegraph company or general manager thereof in the state, blank forms for making the report required herein, and the said commissioner may at any time make and propound to such railroad companies any additional interrogatories which to him may seem necessary. When any report is defective, or appears to he erroneous, the said comm.issioner shall notify the corporation to amei^d the same in the matter or matters named and make return of the same within fifteen days. Every railroad corporation shall, within a reasonable time after their road shall be constructed, and at any other time when required by said commissioner, cause to be made a map and profile thereof and file the same with the commissioner; every such map shall be drawn on a scale and certified and signed by the president or engineer of such cor- poration. Every railroad company and telegraph company shall make out under oath and file with said commissioner of railroads and telegraphs, on or before the first day of September of each year, a true list of the names of each and every stockholder, giving the number of shares owned by such stockholder, together with his post-office address. (April 19, 1894, 91 v. 154.) § 250-2. EXPENSE TO BE BOBNE BY BAILROADS.— For the purpose of maintaining the department of commissioner of railroads and telegraphs, and expenses incident to the same, and for the purpose of exercising police duties and supervision of railroads and telegraphs of the state in the interest of public safety, the annual total expenses of said commissioner of railroads and telegraphs, includ- ing the salary of said commissioner, clerk, inspector, engineer, experts and additional clerical force, and other expenses incident to said office and officer, not exceeding the sum of $15,000, shall be borne by the several corporations owning or operating rail- roads within this state, according to their means, to be apportioned by the state board of equalization, who shall, on or before the first day in each year, assess upon each of said corporations its just proportion of said expenses in proportion to its grofis earnings from operations for the next year preceding that in which the assessment is made. Such assessment so made by the state board of equalization shall, forth- with, be certified to the several railroad companies by the auditor of state, and on or before the next following first day of August in each year the said railroad companies shall pay the amount of the assessment so apportioned to them by the auditor of state, who shall cover the same into the state treasury as a special fund for the main- tenance of the said office of commissioner of railroads and telegraphs, and expenses incident thereto. (April 19, 1894, 91 v. 154.) § 250-3. PENALTY. — That any railroad company or telegraph company violat- ing any of the provisions of this act, shall forfeit and pay to the state of Ohio the sum of $1,000, and $25 per diem for every day that said company refuses, neglects or fails to comply with the requirements of this act, which forfeiture and fine shall not release said company from the assessments herein provided. (April 19, 1894, 91 V. 154.) § 251. ANNUAL REPORTS OF RAILROAD COMPANIES; WHEN TO BE MADE; WHAT TO CONTAIN; CASUALTIES AND OTHER INFORMATION REQUIRED BY THE COMMISSIONER; REASON FOR FAILURE TO REPORT ANY ITEM, TO BE GIVEN. — The president, or other officer in charge of any rail- road, situate in whole or in part within the state, shall, on or before the first day of September, in each year, make and file in the office of the commissioner a report, veri- fied by the oath of such officer, for the year ending on the thirtieth day of June pre- ceding, which report shall state: AS TO STOCK AND DEBT. 1. The amount of capital stock subscribed; 2. The amount of capital stock paid in; 3. The amount of funded debt; 4. The amount of floating debt; Total amount of paid in stock and debt: Miscellaneous Provisions. 27 Commissioner of Railroads and Telegraphs, § 251. COST OF ROAD AND EQUIPMENT. 5. Cost of right of way; 6. Cost of construction; 7. Amount of all other items embraced in cost of road; 8. Cost of equipment; Total cost of road and equipment: CHARACTERISTICS OF THE ROAD, ETC. 9. Length of main line, single track, laid with rail; 10. Length of branches, single track, laid with rail; 11. Length of double track, main line and branches; 12. Aggregate length of sidings and other tracks, not enumerated above; Total length of rail computed as single track: 13. The maximum grade, with its length in main road, and also in branches; 14. The shortest radius of curvature, with length of curve in main road, and also in branches; 15. Total degrees of curvature in main road, and also in branches; 16. Total length of straight line in main road, and also in branches; 17. Number of wood bridges, and aggregate length; 18. Number of iron bridges, and aggregate length; 19. Num.ber of stone bridges, and aggregate length; 20. The greatest age of wood bridges; 21. Number of wood trestles, and aggregate length; 22. The greatest age of wood trestle; 23. Number and kind of tunnels, and aggregate length; 24. Length of fence required to inclose road, both sides, and reasons why not completed; 25. Number of engines; 26. Number of express and baggage cars; 27. Number of passenger cars; 28. Number of freight cars; 29. Number of other cars; 30. The highest rate of speed allowed by express passenger trains; 31. The highest rate of speed allowed by mail and accommodation trains; 32. The highest rate of speed allowed by freight trains; 33. The rate of fare for passengers charged for the respective classes per mile; 34. The highest rate per ton per mile charged for the transportation of the various classes of freight, through and local. DOINGS OF THE YEAR. 35. Length of new rail laid; 36. Length of re-rolled rail laid; 37. Number and kind of bridges built, and length; 38. Number of miles run by passenger trains; 39. Number of miles run by freight trains; 40. Number and kind of farm animals killed, and amount of damages paid therefor; 41. Number of passengers (all classes) carried; 42. Number of passengers carried one mile; 43. Number of tons of local freight carried; 44. Number of tons of through freight carried; 45. Total movement of freight, or number of tons carried one mile: EARNINGS FOR THE YEAR. 46. From transportation of passengers; 47. From transportation of freight; panies to pay a fee of one dollar per mile is unconstitutional, see Railway v. State, 49 Oh. St. 189 (1892). 28 Private Corporations in Ohio. Commissioner of Railroads and Telegraphs, §§ 252-255. 48. From mail and express service; 49. From all oth.er sources; Total earnings for the year: EXPENDITURES FOR THE YEAR. 50. For construction and new equiprtient; 51. For maintenance of way and structures; 52. For maintaining and operating motive power and cars; 53. For transportation expenses, including those of stations and trains; 54. For interest on bonds and other indebtedness; 55. For dividends, stating rate per cent.; 56. All other expenditures for management of road, and for other purposes; Total expenditures during the year: 57. All casualties resulting in injuries to persons, giving the extent and causes of each, and such other and further information as may be required by the com- missioner; but if any company is unable to furnish such required informa- tion, the reasons of such inability shall be given. (May 13, 1868, 65 v. 183, § 9; S. & S. 78.) See Cleveland, etc., Ry. Co. v. UUam, 20 0. C. C. 512 (1898). The act of 86 v. 151 requiring railroad com- § 252. THE COMMISSIONER SHALL FURNISH TO RAILROAD AND TELE- GRAPH COMPANIES BLANKS FOR REPORTS.— The commissioner shall prepare and furnish to each railroad company, or to each organization having one or more rail- roads in charge, and to each telegraph company or chief manager thereof in the state, or having lines in the state, blank forms for making the reports required by this chapter, which blanks may be so prepared by the commissioner as to obtain the Information required by the foregoing inquiries more in detail, or omit such of a historical or permanent character as may have been given in previous reports. (May 13, 1868, 65 V. 183, § 9.) § 253. PENALTY AGAINST OFFICER OF RAILROAD FOR FAILURE TO REPORT. — A president or other officer in charge of a railroad, whether doing busi- ness or in course of construction, who refuses or neglects to make and furnish the report at the time prescribed in section two hundred and fifty-one, or any report required by the commissioner, shall forfeit and pay a sum not exceeding one thousand dollars; and he shall be subject to a like penalty for every period of thirty days thereafter he so refuses or neglects to furnish the same. (April 25, 1873, 70 v. 158, § 10.) § 254., ANNUAL REPORT BY TELEGRAPH COMPANY; WHEN TO BE MADE AND WHAT TO CONTAIN. — The president or chief officer of every telegraph line or company, whether the line is doing business or is in process of construction, shall make a report of the business of such line or company to the commissioner, in such form as he directs, on or before the first day of September, in each year, for the year ending on the preceding first day of June, which report must be verified by the oath of such president or officer in charge; and for neglect or refusal to make and furnish such report at the time herein named, the company owning such line shall forfeit and pay any sum not exceeding five hundred dollars; and the company is subject to a like penalty for every period of thirty days thereafter such president or chief officer so refuses or neglects to furnish the same. (April 25, 1873, 70 v. 158, § 11.) § 255. DEFECTIVE OR ERRONEOUS REPORTS SHALL BE AMENDED IN FIFTEEN DAYS; RETURNS MUST CONFORM TO FORMS PRESCRIBED; REASON MUST BE GIVEN FOR ANY FAILURE IN THIS RESPECT.— When the returns of any corporation required to report to the commissioner of railroads Miscellaneous Provisions. 29 Commissioner of Railroads and Telegraphs, §§ 356-260. and telegraphs are incomplete, defective, or probably erroneous, the commissioner shall notify such corporation thereof, and it shall thereupon amend the return in the matter or matters named, and make return of such amendment within fifteen days; and all returns shall be in strict accordance with the forms prescribed by the commis- sioner; but if any corporation finds it impracticable to return all the items in detail, as required, it shall state the reason why such details can not be given; but the fact that it does not keep its accounts in such manner as to enable it to make such returns shall not be considered or taken as a valid excuse; and if the form for the returns and report furnished by the commissioner makes necessary any change or alteration in the ordinary method or form of keeping the accounts of such corporation, he shall give to such corporation at least thirty days' notice thereof prior to the commencement of the year for which the changes and additions are necessary in order to make the full returns required. (May 5, 1873, 70 v. 276, § 1.) § 256. COMPANIES OPERATING RAILROADS SHALL FURNISH COPIES OP LEASES AND CONTRACTS WITH OTHER COMPANIES DOING BUSINESS THEREON. — Every corporation or company operating a railroad, or any part of a railroad, within this state, shall, on demand of the commissioner, furnish him with copies of all leases, contracts, and agreements with express, sleeping car, freight, or rolling stock companies, or other companies doing business upon or in connection with such road; and the commissioner shall have power, personally or by agent, to examine any officer, agent, or employe of any railroad company, or of any of said other companies, under oath, relative to the stock which any officer, agent, or employe of the railroad company has in any of said other companies, so doing business upon or in connection with such road, and his pecuniary interest, direct or indirect, in any of said other companies. (May 5, 1873, 70 v. 276, §§ 3, 3.) § 257. FATAL ACCIDENTS SHALL BE NOTIFIED TO COMMISSIONER BY TELEGRAPH, AND HE MAY EXAMINE INTO CAUSE OF SAME.— The superin- tendent of every corporation operating a railroad, or any part of a railroad, in this state, shall promptly notify by telegraph the commissioner of all accidents happen- ing on such railroad, or part of a railroad, in this state, resulting in loss of life to any person or persons; and the commissioner may, personally or by agent, examine into the cause and character of such accidents. (May 5, 1873, 70 v. 276, § 3.) § 258. COMMISSIONER HAS POWER TO SUBPCENA WITNESSES, ETC.— The commissioner, in the discharge of his duties, has power to subpoena witnesses, administer oaths, compel the production of books and papers, and punish for con- tempt in the same manner and to the same extent as justices of the peace. (April 5, 1867, 64 V. Ill, § 5; May 5, 1873, 70 v. 276, § 3.) § 259. PENALTY FOR OFFICER, AGENT, OR EMPLOYE OF RAILROAD TO REFUSE TO ANSWER QUESTION.— An officer, agent, or employe of any railroad company who refuses to answer any question propounded to him by the commissioner in the course of any examination authorized by this chapter, shall be fined in any sum not less than fifty dollars nor more than five hundred dollars; and the property of the railroad company of which he is an officer, agent or employe, is liable to be taken in execution to satisfy the fines and costs in such cases. (May 5, 1873, 70 v. 276, § 3.) § 260. STATEMENT REQUIRED TO BE MADE BY RAILROAD COMPANIES. — The secretary of each railroad company, and of each telegraph company, now doing business, or whose line is in process of construction, or which may be hereafter organ- ized in the state, shall, within thirty days after the election of the directors of such company, make out and forward to the commissioner of railroads and telegraphs a list of the officers and directors of their respective companies, giving the place of residence and post-office address of each; and thereafter, if any change occurs in the organization of the officers or board of directors of the company, shall notify the com- 30 Private Corporations in Ohio. Commissioner of Railroads and Telegraphs, §§ 261-265. missioner of railroads and telegraphs of the fact of such change, and the residence and post-office address of each of the officers and directors. (April 24, 1873, 70 v. 155, § 1.) § 261. PENALTY FOB FAILURE TO COMPLY.— For a. failure to comply with the provisions of the preceding section, any company so neglecting for thirty days after the time herein provided, shall be subject to the same penalties as attach for neglecting or refusing to make the required annual report to the commissioner of railroads and telegraphs. (April 24, 1873, 70 v. 155, § 2.) § 262. PROSECUTIONS FOR FINES ONLY TO BE BY CIVIL ACTION, AND FOB FINE AND IMPRISONMENT BY INDICTMENT.— All prosecutions against railroad or telegraph companies, or any officer, agent or employe thereof, for forfeit- ures, penalties or fines, without imprisonment, provided for in. this chapter, and other sections of the statutes and laws of Ohio, if not otherwise specifically stated, shall be by civil action in the name of the state; and all prosecutions for penalties involving imprisonment shall be by indictment. (April 25, 1893, 90 v. 299; April 5, 1867, 64 V. Ill, § 7; May 5, 1873, 70 v. 276, § 3.) § 263. PROSECUTION BY CIVIL ACTION; BY WHOM BROUGHT.— The civil action provided for in the next preceding section shall be brought by the prosecuting attorney of the proper county at the instance of said commissioner of railroads and telegraphs; and in case said commissioner fail to so instruct the said prosecuting attorney of the proper county, upon the written request of any taxpayer of the county to commence civil action provided for in the next preceding section, said prosecuting attorney shall do so, provided he is furnished with evidence which in his judgment will probably sustain such action, and if the action fail the costs in such case shall be adjudged against the county, except in such cases as hereinafter provided; pro- vided, further, that where cause of civil action, arises, as provided for in the next preceding section, within the boundary lines of any municipality, in addition to the provisions already provided for in this section for instituting prosecutions of civil action, the city solicitor of any municipality shall, when required so to do by resolu- tion of the council adopted by a majority of the quorum, institute such proceedings and prosecute them to final judgment. When such action is so brought by the munici- pality and fails of final judgment in the supreme court, the cost thereof shall be adjudged against such municipality, and time for notice of appeal and giving of bond shall not apply to cases within the meaning of this act. (April 25, 1893, 90 v. 299; April 5, 1867, 64 v. Ill, § 8.) § 264. ANNUAL REPORT TO BE MADE BY THE COMMISSIONER, AND WHAT TO CONTAIN. — The commissioner shall make to the governor, on or before the first day of January, of each year, a. report of the affairs and condition of all the railroad and telegraph companies having lines in this state, and also of accidents on railroads resulting in injuries to persons, and the circumstances and cause thereof; and he shall include in his report such other information and such suggestions and recommendations as, in his opinion, are of importance to the state. (February 27, 1877, 74 V. 33, § 13.) § 265. MONEYS COLLECTED SHALL BE PAID INTO THE STATE TREAS- URY; FEES OF PROSECUTING ATTORNEYS.— All moneys arising from suits in the name of the state, or prosecutions against railroad companies or against any of their officers, or employes, for violation of any of the provisions of law relating to railroads, shall be paid into the state treasury; but prosecuting attorneys shall, for any moneys collected therein by them, be allowed ten per centum thereof for their services. (April 5, 1867, 64 v. Ill, § 7.) Miscellaneous Provisions. 31 Superintendent of Insurance, §§ 266-270. STJPEKINTENDENT OF nrSUBANCE. § 266. APPOINTMENT AND TEEM; WHO ELIGIBLE.— The superintendent of insurance shall be appointed by the governor, by and with the advice and consent of the senate, and hold his office for three years; and no person shall be appointed who is not an elector of this state, or who has any official connection with an insurance com- pany, owns any stock in such company, or is interested in the business thereof, except as a policy holder. (March 12, 1872, 69 v. 32, § 2.) § 267. BOND TO BE GIVEN, AND, WITH OATH OF OFFICE INDORSED THEREON, TO BE FILED WITH THE SECRETARY OF STATE.— Before entering upon the discharge of his duties, the superintendent shall give bond to the state in the sum of twenty thousand dollars, with not less than two sureties, to be approved by the governor, conditioned for the faithful discharge of his duties; and the bond, with his oath of office and the approval of the governor indorsed thereon, shall be filed with the secretary of state. (March 12, 1872, 69 v. 32, § 3.) § 268. DUTY OF SUPERINTENDENT TO ENFORCE INSURANCE LAWS.— The superintendent shall see to the execution and enforcement of all laws relating to insurance. (March 12, 1872, 69 v. 32, § 3.) Discretion vested in commissioner. State V. Moore, 42 Oh. St. 103-106 (1884). § 269. HE MAY APPOINT A DEPUTY SUPERINTENDENT TO TAKE OATH AND GIVE BOND, AND MAY DISCHARGE DUTIES OF SUPERINTENDENT; COMPENSATION; CLERKS AND EXPERTS.— The superintendent may appoint a deputy superintendent having the same qualifications as the superintendent, whose appointment may be evidenced by a certificate under the official seal of the superin- tendent. Before entering upon the discharge of his duties, the deputy superintendent shall take the oath of office, and give bond in the sum of ten thousand dollars to the superintendent, with two or more sureties to the acceptance of the superintendent, conditioned for the faithful performance of his official duties. In case of the absence or inability of the superintendent, the deputy superintendent shall have the powers and perform the duties of the superintendent. The deputy superintendent shall receive a salary of two thousand four hundred dollars per annum. Foreign insurance companies shall pay, annually, as fees for making out and forwarding annually, semi-annually and quarterly the interest checks and coupons accruing upon bonds and securities deposited, the sum of twenty-five dollars on each one hundred thou- sand dollars so deposited, which fees shall be turned over to the state treasurer on the warrant of the state auditor. The superintendent may employ from time to time such other clerks as the prompt dispatch of business requires; and he may, also from time to time, employ skilled and competent persons to examine the business and affairs of insurance companies and report thereon. (May 12, 1902, 95 v. 549j April 26, 1898, 93 v. 292; March 12, 1872, 69 v. 32, § 4.) State V. Moore, 42 Oh. St. 103-106 (1884). § 270. INSURANCE DEPARTMENT; EXPENDITURES, SALARIES; OFFICE AND FEES OF SUPERINTENDENT.— The office of the superintendent shall be in the state house, and all salaries and expenditures of the insurance department shall be paid [on the certificate of the superintendent; but no money shall be paid] * out of the state treasury in excess of the amount collected from insurance companies, as pro- vided by law; and provided, also, that, in case the excess of fees collected and paid into the state treasury, as provided by section two hundred and eighty-two. Revised Statutes of Ohio, over the total salaries and expenditures of said insurance depart- ment, shall equal the sum of fifteen thousand dollars, the said superintendent of insurance shall receive, out of said excess of fees, a sum not exceeding ten per centum on such excess; provided, that said superintendent shall not receive in such fees exceeding the sum of one thousand dollars per annum in addition" to his salary, as 32 Private Corporations in Ohio. Superintendent of Insurance, §§ 271-373. now provided by law; provided further, that all fees shall be paid by the superin- tendent of insurance into the state treasury on the warrant of the state auditor. And the said additional salary, so provided, shall be paid under appropriations, by the state treasurer, upon the warrant of the state auditor. (May 12, 1908, 95 v. 549; May 1, 1885, 82 v. 202; Rev. Stat. 1880; March 12, 1872, 69 v. 32, § 4.) * XoTE. — The words in brackets do not ap- enactment shows that they were undoubtedly pear in 95 0. L. 549, but are required by the omitted by mistake, sense, and an examination of the foimer § 271. INSTBXJMENTS TJIirDEB SUPERINTENDENT'S SEAL TO BE EVI- DENCE, AND ENTITLED TO RECORD. — Any certificate, assignment, or convey- ance, executed by the superintendent in pursuance of law, and sealed with his seal of ofiice, shall be received as evidence, and may be recorded in the proper recording oiflce in the same manner and with like effect as a deed regularly acknowledged before an officer authorized by law to take acknowledgments of deeds; and all copies of papers in the office of the superintendent, certified by him and authenticated by the seal, shall in all cases be evidence equally and in like manner as the originals. (March 12, 1872, 69 v. 32, § 5.) § 272. EXAMINATIONS OF COMPANIES DOING BUSINESS IN THE STATE. — The superintendent, when he has reason to suspect the correctness of any state- ment of an insurance company doing business in the state, whether incorporated in this state or not, or that its affairs are in an unsound condition, shall make, or cause to be made by some person by him for that purpose appointed, an examination into the affairs of such company; and such company, its officers and agents shall submit their books and business to such examination, and in every way facilitate the same, and he shall, annually, make or cause to be made, an examination of the assets of every life insurance company organized under the laws of this state, and ascertain if the same are invested in the manner prescribed by law at the date each investment w^as made, and, also, if the last preceding annual statement of assets and unpaid death claims was correct. The actual expenses incurred by said examination shall be paid "by the state treasurer on the warrant of the state auditor upon the certificate of the superintendent of insurance; provided that, when any examination is made upon the demand of the company therefor, the expenses of the same shall be paid by the company; and provided further, that, when, by the laws of any other state, district, territory or nation, examinations of companies of this state are required or permitted to be made by the insurance department or other authority of such state, district, territory or nation at the expense of such companies, then the expenses of all examinations made by the insurance department of this state of all companies of such state, district, territory or nation shall be respectively charged to and col- lected from the companies so examined. (May 12, 1902, 95 v. 549; May 15, 1878, 75 V. 576, § 7; March 12, 1872, 69 v. 32, § 13.) Special charter. Companies organized under special chaiter prior to the constitution of 1S51 are subject to this section. — State v. Ins. Co., 50 Oh. St. 252; s. c, 153 U. S. 446 (1893). No appeal from superintendent's de- cision. Appeal will not lie from the decision of the superintendent in revoking the license of a company on the ground of being in an " un- sound condition." — State v. Moore, 42 Oh. St. 103-106 (1884). § 373. POWER OF EXAMINERS; MAY PUBLISH RESULT.— For the piir- poses of such examination, the superintendent, or the person or persons so appointed tyy him, have power to administer oaths to and examine the officers and agents of such company relating to its business and affairs; and when the superintendent deems it to the interest of the public, he may publish the result of such investigation in a, newspaper printed in Columbus, and of general circulation in the state, and in one printed in the county where the principal office of such company is located. (March 12, 1872, 69 V. 32, § 8.) Miscellaneous Provisions. 33 Superintendent of Insurance, §§ 274-276. § 274. PROCEEDINGS AGAINST UNSOUND COMPANIES. — When it appears to the superintendent, from examination, or otherwise, that the assets of any life insurance company, organized under the laws of the state, are insufficient to reinsure its outstanding risks, as provided by this chapter, or that the assets of any joint stock insurance company other than life, organized under the laws of this state, after deducting therefrom all actual liabilities and a reinsurance fund equal to fifty per cent, of the whole amount of premiums on all unexpired risks and policies, are reduced twenty per cent, or more below the capital stock required by law, he shall require the officers thereof to direct the stockholders to pay in the amount of such deficiency, within such period as he designates in such requisition; and after the superintendent issues his requisition calling for a sum to be paid by the stockholders of any company, amounting to or exceeding forty per cent, of the capital, it is unlaw- ful for the company to issue any new policies or transact any new business until the superintendent of insurance issues to such company a license, authorizing it to resume business, or until the court has rendered its decision in the case, as herein provided; but in case the requisition calls for a less amount than forty per cent, of the capital, and the officers of the company, in accordance with the requisition, direct the stock- holders to pay the amount required for making up the capital, and so signify to the superintendent, then it will be lawful for the company to continue business as before the issuing of the requisition, for the term of thirty days from the date thereof; and, if at the expiration of the thirty days, any portion of the requisition of the superin- tendent remains unpaid, the company shall not issue any new policies, or transact any new business until authorized by the superintendent as aforesaid. (April 26, 1873, 70 V. 165, § 9.) § 275. PROCEDURE IN CASE OE DEFAULT TO COMPLY WITH REQUISI- TION. — In case of default on the part of the company to comply with such requisi- tion, the superintendent shall communicate the fact to the attorney-general, who shall apply to the court of common pleas of the county in which the principal office of the company is located for an order requiring such company to show cause why the business thereof should not be closed, and shall give to the company such notice of the pending of such application as the court directs, and the court shall thereupon proceed to hear the allegations and proof of the respective parties; or, the court shall have power to refer the application of the attorney-general to a referee, to inquire into and report upon the facts stated therein: In case it appears to the satisfaction of the court that the assets of the company are not sufficient, as aforesaid, or that the interests of the public so require, the court shall decree a dissolution of the company and a distribution of its effects; and any transfer of the stock of a company made during the pendency of such investigation shall not release the party making the transfer from his liability for losses which have occurred previous to the transfer. (April 26, 1873, 70 v. 165, § 10.) § 276. IN RELATION TO UNSOUND MUTUAL INSURANCE COMPANIES. — If, upon examination, it appears to the superintendent that the assets of any company organized on the plan of mutual insurance, after deducting therefrom all actual lia- bilities and a reinsurance fund equal to fifty per cent, of the advanced cash premiums received on all unexpired risks and policies, are insufficient to justify the continu- ance of such company in business, he shall proceed, in relation to such company, in the same manner as is herein required in regard to joint stock companies; and the trustees or directors of such company are hereby made personally liable for any losses which are sustained upon risks taken after the superintendent of insurance has issued his requisition for filling up the deficiency in the assets, and before such deficiency is made up; but nothing herein shall be so construed as to require any mutual fire insurance company to keep on hand any cash reinsurance reserve or funds invested in securities, other than their premium notes, when the premium notes amount in gross to three per centum of the amount at risk by the company. (April 26, 1873, 70 V. 165, § 11.) LAW GOV. PRIV. COR. — 3. 34 Private Corporations in Ohio. Superintendent of Insurance, §§ 277-379. Re-insurance fund not a debt. The sum set aside as a re-insurance fund is not a debt to be deducted in making returns for taxation. — Ins. Co. v. Cappellar, 38 Oh. St. 560, 568 (1883). Unpaid assessment. A stockholder, who has not paid his assess- ment, made in pursuance to this section, is not entitled to share in dividends afterwards declared by the company until such assessment is paid. — Rhodes v. Ins. Co., 3 0. C. C. 501 (1888) ; s. c, 2 C. D. 288. § 277. REVOCATION OF ATJTHOBITY TO SUCH COMPANIES. — When it appears to tlie superintendent of insurance, from the report of the person appointed by him, or other satisfactory evidence, that the affairs of any company, partnership, or association, not organized under the laws of this state, are in an unsound condi- tion, he shall revoke the authority granted to such company to do business in this state, and cause a notice thereof to be published in at least one newspaper publisbed in the city of Columbus, and in the county where the general agency is located within this state; and after the publication of such notice, it is unlawful for the agents of such company to procure any new applications for insurance or to issue any new poli- cies. (March 12, 1872, 69 v. 32, § 12.) See State v. Moore, 42 Oh. St. 103, 106 (1884). Remedy to prevent revocation. Mandamus will not lie to prevent the re- voking of the license of an insurance com- pany. Injunction ig proper remedy. — State V. Hahn, 50 Oh. St. 714 (1893); overruling State V. Eeinmuud, 45 Oh. St. 214 (1887) . § 278. BECOKD OE PROCEEDINGS AND REPORT THEREOF. — The superin- tendent shall keep and preserve, in a permanent form, a full record of his proceedings, including a concise statement of the condition of each company reported, visited, or examined by him; and he shall, annually, at the earliest practicable date after the returns are received from the several companies, make a report to the legislature of the general conduct and condition of the insurance companies doing business in this state, with, such suggestions as he deems expedient, including also the information contained in the statements required of the companies, and the result of the ofS.cial valuations of life policies, to be arranged in tabular form, and prepare the same for printing in two separate reports, one pertaining to life insurance companies, and the other to all insurance companies other than life; and he shall also report the names and compensation of the clerks employed by him, the whole amount of income, the source whence derived, and the expenses in detail, during the year ending on the thirty-first day of the preceding December. (March 12, 1872, 69 v. 32, § 13.) See State v. Reinmund, 45 Oh. St. 214(1887). § 279. ANNUAL VALUATIONS, RATE OF INTEREST, ETC.; EXCEPTION. — The superintendent shall, annually, make or cause to be made, net valuations of all outstanding policies, additions thereto, unpaid dividends, and all other obligations of every life insurance company transacting business in this state; and for the purpose of such valuations, and for making special examinations of the condition of life insur- ance companies, as provided in the laws of this state relating to life insurance com- panies, and for valuing all policies of whatever description, and for any purpose whatever, the rate of interest shall be four per cent, per annum, and the rate of mor- tality shall be established by the tables known as the American experience tables, but when the laws of any other state of the United States authorize a valuation of life insurance policies, by some designated state officer, according to the standard herein provided, or according to any other standard which makes the value of the policy not less than that of the standard herein provided, the valuation made accordino' to the said standard, by such officer of the policies and other obligations of any life insur- ance company not organized under the laws of this state, and certified by said officer may be received as true and correct, and no further valuation of the same shall be required of such company by the superintendent of insurance, except that in no case Miscellaneous Provisions. 35 Superintendent of Insurance, §§ 280-282. sliall the superintendent of insurance accept the certificate of valuation of such officer of another state of the United States, when such officer does not accept, or refuses or fails to accept a like certificate from him of the valuation of the policies of any life insurance comipany incorporated under the laws of Ohio, or when any sUch officer of another state is prohihited by law from accepting the certificate of valuation of the superintendent of insurance of this state, the said superintendent shall forthwith require thB officers of ail companies located in such state to submit to him, within a reasonable time, the descriptions of the policies thereof for valuation, and he shall proceed to make, or cause to be made, a valuation thereof according to the standard herein named, and in case said descriptions are not submitted to the said superin- tendent within the time fixed by him, he shall revoke the license of such company or companies as shall fail to do so, and shall refuse to renew the same, until such description shall be submitted and a valuation by him shall have been completed. (February 7, 1889, 86 v. 11; Rev. Stat. 1880; May 15, 1878, 75 v. 580, § 14.) § 280. FORMS OP STATEMENTS TO BE FURNISHED. — The superintendent shall, annually, in September, furnish to the insurance companies doing business in this state, two or more printed copies of the forms of statements required by this chapter to be made by them, and he may make such changes, from time to time, in the form of the same, and such additions thereto, as seems to him best adapted to elicit from the companies a. true exhibit of their condition. (March 12, 1872, 69 v. 32, § 15.) § 281. SECURITIES SHALL BE DEPOSITED IN THE STATE TREASURY. — All securities deposited with the superintendent of insurance, pursuant to the pro- visions of any law of the state, shall be deposited by him with the treasurer of state, who, with his sureties, shall be responsible for the safe keeping thereof; and the treasurer shall only deliver such securities or coupons attached thereto upon the written order of the superintendent of insurance. (April 26, 1873, 70 v. 165, § 16.) § 282. FEES SHALL BE PAID BY COMPANIES.— There shall be paid by every insurance company doing business in this state, to the superintendent of insurance, the following fees: For filing copy of its charter or deed of settlement, twenty -five dollars; for filing each statement, twenty dollars; for each certificate of authority, or license and certified copy thereof, two dollars; for each copy of a paper filed in his office, the sum of twenty cents per folio; and for affixing the seal of office and certify- ing any paper, one dollar; all of which fees shall be paid by the superintendent into the state treasury. There shall also be paid by every life insurance company doing business in this state, annually, by way of compensation for the valuation of its poli- cies, in case no certified valuation of the same has been furnished to the superin- tendent of insurance, as provided in section 279 of the Revised Statutes of Ohio, one cent on every one thousand dollars insured by it on lives, which shall be paid by the superintendent of insurance into the state treasury. When by the laws of any other state or nation, any taxes, fines, penalties, license fees, deposits of money, or of [securties], certificates, or other obligations or prohibitions are imposed on insur- ance companies of this state, doing business in such state or nation, or upon their agents therein, so long as such laws continue in force, the same obligations and pro- hibitions, of whatever kind, shall be imposed upon all insurance companies of such other state or nation, doing business within this state, and upon their agents here. (May 12, 1902, 95 v. 549; March 30, 1892, 89 v. 167; March 25, 1891, 88 v. 196; March 12, 1872, 69 v. 32, § 17.) See § 3631a. As to operation of last clause of this sec- tion, see State v. Eeinmund, 45 Oh. St. 214 (1887). As to valuation of policies, State v. Eein- mund, 45 Oh. St. 214 (1887). Section retaliatory. This section is retaliatory, and therefore must be confined to cases fairly within it. — State y. Ins. Co., 49 Oh. St. 440 (1892). Section construed. — State v. Ins. Co., 49 Oh. St. 440 (lb92). 36 Private Corporations in Ohio. Superintendent of Insurance, §§ 283-286. § 283. LICENSE, ETC., OF PERSONS MAKING APPLICATION FOR INSUR- ANCE. — It shall be unlawful for any person, company, or corporation in this state, either to procure, receive, or forward applications for insurance in any company or companies not organized under the laws of this state, or in any manner to aid in the transaction of the business of insurance with any such company, unless duly author- ized by such company and licensed by the superintendent of insurance, in conformity to the provisions of this cha.pter. (March 12, 1872, 69 v. 32, § 18.) § 284. ANNUAL PUBLICATION OF CERTIFICATE REQUIRED. — Every insurance company doing business in this state shall publish, at least once a year, in some newspaper of general circulation, in every county where such company has an agent, a certificate from the superintendent of insurance that such company has, in all respects, complied with the laws of the state relating to insurance; and the cer- tificate shall also contain a statement, under the oath of the president or secretary of such insurance company, of the actual amount of paid up capital, the aggregate amount of assets and liabilities, together with the aggregate income and expenditures of such company for the year preceding the date of such certificate; a copy of which certificate shall be filed in the office of the recorder in each county in which the com- pany has an agent, and for every such paper the recorder shall receive the sum of ten cents. No other publication than as herein provided for is required of such com- panies. (March 12, 1872, 69 v. 32, §§ 19, 21; S. & S. 227.) § 285. FOREIGN INSURANCE COMPANIES MAY APPOINT AGENTS, ETC. — Any insurance company not organized under the laws of this state may appoint one or more general agents in this state, by resolution of its board of directors or man- agers, with authority to appoint other agents of the company in this state, a certified copy of which resolution shall be filed with the superintendent of insurance; and agents of such company, appointed by such general agent, shall be held to be the agents of such company as fully, to all intents and purposes, as if they were appointed directly by the company; and agents for any such company in this state may be appointed by the president, vice-president, chief manager, or secretary thereof, in writing, with or without the seal of the company, and when so appointed shall be held to be the agents of such company as fully as if appointed by the board of direc- tors or managers in the most formal mode. (March 12, 1872, 69 v. 32, § 20.) § 286. DISCONTINUANCE OF BUSINESS BY LIFE INSURANCE COMPANY. — When any life insurance company, transacting the business of insurance within the state of Ohio, desires to discontinue its business, the superintendent shall upon application of such company, or association, give notice of such intention in a paper published and having general circulation in the county in which such company or its general agency is located, at least once a week for six weeks, the expenses of publi- cation to be paid by the company. After such publication, the superintendent shall deliver up to such company, or association, the securities held by him belonging to it on being satisfied by the exhibition of the books and papers of such company or association, and on examination to be made by himself, or some competent disinter- ested person or persons, to be appointed by him, and upon the oath of the president or principal officer, and the secretary or actuary of the same, that all debts and liabili- ties of every kind are paid and extinguished, that are due, or may become due unon any contract or agreement made with any citizen or resident of the United States- and the superintendent may also, from time to time, deliver up to such companv or association, or its assigns, any portion of said securities, on being satisfied that' an equal proportion of the debts and liabilities, of every kind, that are due or m become due, upon any contract or agreement made with any citizen or resident of the United States, by said company, or association, has been satisfied; but the amounr of securities retained by him shall not be less than twice the amount of remainin liabilities. (March 12, 1872, 69 v. 32, § 22.) ^ Miscellaneous Provisions. 37 Superintendent of Insurance, §§ 286a-289. § 286a. DISCONTINUANCE AND WITHDRAWAL OP SECtTBITIES BY COM- PANY OTHER THAN LIFE. — When any insurance company or corporation other than life, which has made, or hereafter shall make, a deposit with the superintendent of insurance, intends to discontinue its business in Ohio, the superintendent shall, upon application of such company or corporation, give notice of such intention in three newspapers of general circulation in the state at least once a week for six weeks, the expense of such publication to be paid by the company. After such publication, and on being satisfied by the affidavit of t:(ie principal ofiicers of the company and by an examination of the books and records of the company or corporation to be made by him or some competent disinterested person or persons by him appointed for that purpose, if such examination be by him deemed necessary, that all debts and lia- bilities of every kind that the deposit is made to secure, or that may become due on any policy issued to any resident or citizen of the state of Ohio, are fully paid off, satisfied and discharged, the superintendent shall deliver up to such company or cor- poration or its assigns the securities held by him belonging to it. (March 22, 1893, 90 V. 103.) § 287. APPLICABLE TO COMPANIES UNDER LAWS OF THE UNITED STATES. — All the provisions of this chapter relating to insurance companies organ- ized under the laws of any other state of the United States shall apply to any company organized under the laws of the United States, for any of the purposes specified in this chapter; and all the provisions of this chapter relating to agents of companies organized under the laws of any state shall apply to the agents of such companies organized under the laws of the United States; and any violation of the provisions of this chapter by any person, or agent, in the employment of any such company, organized under the laws of the United States, shall subject the offender to the same penalties provided by this chapter for any violation of its provisions by persons act- ing for similar companies organized under the laws of any other state of the United States. (March 12, 1872, 69 v. 32, § 23.) § 288. PENALTY FOR VIOLATION OF STATUTORY PROVISIONS RELAT- ING TO INSURANCE COMPANIES. — Any person who violates any of the provi- sions of this chapter, or of any insurance law of this state for the violation of which no penalty is elsewhere provided, shall be fined not more than one thousand dollars or imprisoned not more than six months, or both. Any corporation, company or association violating any pf the provisions of this chapter, or of any insurance law of this state for the violation of which no penalty is elsewhere provided, shall be liable to a penalty of not more than one thousand dollars nor less than one hundred dollars, to be recovered by action in the name of the state, and on collection paid to the super- intendent of insurance to be covered by him into the state treasury. (May 19, 1894, 91 V. 331; April 17, 1885, 82 v. 138; 69 v. 32,. § 24.) Cited, State ex rel. v. Aekerman, 51 Oh. St. 1C3, 193 (1894). § 289. INSURANCE BUSINESS UNLAWFUL EXCEPT UNDER PROVISIONS OF THIS CHAPTER. — The provisions of this chapter shall apply to individuals and parties, and to all companies and associations, whether incorporated or not, now or hereafter engaged in the business of insurance; and it is unlawful for any company, corporation, or association, whether organized in this state or elsewhere, either directly or indirectly, to engage in the business of insurance, or to enter into any contracts substantially amounting to insurance, or in any manner to aid therein, in this state, or to engage in the business of guaranteeing against liability, loss or damage, unless the same is expressly authorized by the statutes of this state, and such statutes and all laws regulating the same and applicable thereto have been complied with. (May 12, 1902, 95 V. 553; March 12, 1872, 69 v. 32, § 25.) Cited. State v. Aekerman, 51 Oh. St. 163, 193 (1894). Does not apply to insuring one's o^^n Toroperty in tinB.nt*horized compai'-v. Pennsylvania v. Biddle, 11 L. R. A. (Penn.) 561 (1891). 38 Private Corporations in Ohio. Cemetery Associations, §§ 1465-1-1465-3. An Act Providing a Method of Procedure for , Collecting Claims Payable from Funds Deposited toith the Superintendent of Insurance, or other State Officer. Be it enacted by the General Assembly of the State of Ohio: § 1. ACTION TO SUBJECT DEPOSIT TO PAYMENT OF LIABILITIES, ETC.; DUTY OP ATTOEJSTEY-GENEBAL.— If any company, corporation, or association, which may by the statutes of this state, be required to make a deposit with the super- intendent of insurance, or other state officer; for the purpose of securing the contracts of such company, corporation, or association, or for any other purpose, shall fail to pay any of its liabilities upon such contracts, or other obligations, for which such de- posit has been made, according to the terms of such contract, or other obligation, after the liability thereon shall have been determined; or if such company, corporation, or association has ceased to do business within this state, leaving unpaid any such liabil- ity, or has become insolvent, the attorney general of the state, on behalf of the super- intendent of insurance, or such other officer, shall, upon the application of any party entitled to participate in such deposit, or the proceeds arising therefrom, commence a civil action in the court of common pleas of Franklin county, Ohio, to determine the rights of all parties claiming any interest in such deposit, to subject such deposit to the payment or satisfaction of all liability or liabilities and to distribute said fund among the persons entitled thereto, making the company, corporation, or association a, party defendant. Said action shall be brought by the attorney general, but for such services he shall receive no compensation other than the salary provided for by sec- tion 1284 of the Revised Statutes of Ohio. (May 10, 1902, 95 v. 480.) § 2. NOTICE TO PARTIES INTERESTED IN SAID FUND; PUBLICATION OF; NOTICE TO COMPANY.— That upon the filing of such petition, the superintendent of insurance, or such other officer, shall cause a notice thereof to be published for six consecutive weeks in three papers of general circulation within the state of Ohio, one of which shall be published in the city of Columbus, Ohio, which notice shall contain a succinct statement of the object and prayer of said petition, and notifying all per- sons claiming to have any interest in said fund, to intervene and set forth such interest therein, and when they are required to answer thereto. A copy of such notice shall be forwarded to the last known address of such company, corporation or asso- ciation, by the clerk of said court as provided for in section 5048, Revised Statutes. Upon the hearing of said cause, such order, judgment, or decree shall be entered by the court as may be deemed just and equitable. (May 10, 1902, 95 v. 481.) § 3. PROCEDURE.— The code of civil procedure shall govern such proceedings in so far as the same may be applicable. (May 10, 1902, 95 v. 481.) § 4. This act shall take effect from and after its passage (May 10 1902 95 V. 481.) • J , , § 1465-1. TAX FOR ERECTION OF BUILDINGS UPON GROUNDS OF CEME- TERY ASSOCIATION.— The trustees of any township in this state, wherein their township owns a burial-place within the grounds of a cemetery association, may levy a tax not exceeding five (5) mills upon the dollar of the tax duplicate of said town- ship for the purpose of erecting permanent buildings upon and within such cemetery grounds. (April 20, 1893, 90 v. 218.) § 1465-2. APPLICATION OF TAX.- When such tax shall have been assessed and collected the same shall be paid to the officers of said cemetery association and by them applied to the erection of such permanent buildings as in their judgment may be requisite for the accommodation of the patrons of said cemeterv CA-nril on 1893, 90 V. 218.) ^ ^ ' § 1465-3. BONDS IN ANTICIPATION OF TAX.- The officers of such cemetery association may issue and sell bonds in anticipation of said tax; such bonds to b Miscellaneous Provisions. 39 Cemetery Associations, §§ 1469-1470-3. interest at a rate not exceeding six (6) per cent, per annum. (April 20, 1893, 90 V. 218.) § 1469. NO LEVY ON LOTS. — Any lot held by an individual in a cemetery shall, in no case, be subject to be levied on or sold on execution. (April 17, 1857, 54 V. 187, § 4; S. & C. 228.) § 1470. PENALTY FOB COEPSE NUISANCE.— If the sexton or other person in charge of a township, or other cemetery suffers the dead to remain in any vault or other receptacle until the same become offensive, he shall be liable, on the complaint of any person before a justice of the peace of the township, to a fine of not over twenty dollars, and an additional penalty of five dollars for every day, after the fine afore- said, that the nuisance is continued. (April 17, 1857, 54 v. 187, § 5; S. & C. 228.) § 1470-1. TRUSTEES OP TOWNSHIPS OR CEMETERY ASSOCIATIONS MAY CAUSE DEAD BODIES TO BE REMOVED IN CERTAIN CASES.— In all cases in which either the trustees of any township or the trustees or board of any cemetery association, incorporated or not, in Ohio, or both combined, shall have heretofore determined or shall hereafter determine to discontinue the use of any burial ground for such purposes, and there shall be opened for public use a burial ground in the near vicinity thereof, the said township trustees, or the said trustees or board of directors of such cemetery association, or both combined, may order and provide for the removal of all bodies remaining or being buried within said burial grounds so to be discontinued, and for the removal of all stones and monuments marking the graves thereof, and for the reinterment of said bodies and the re-erection of such stones and m.onuments in some suitable and public ground in the near vicinity, and pay for the same out of the township treasury; provided, however, that they shall cause notice first to be given to the family, friends or kindred of the deceased, if known to such board or boards, of the order for their removal and of the time within which, not less than thirty days, such removal must be made, and that it is desired that such removal be made by the friends or kindred of the dead, and if at the expiration of such time such removals have not been made, such boards may cause them to be made as afore- said. (March 15, 1876, 73 v. 33.) § 1470-2. MAY SELL BURIAL GROUNDS AT PUBLIC SALE; PROVISO.— Township trustees and trustees and boards of directors of cemetery associations are hereby empowered to dispose of at public sale, due notice thereof being first given in two newspapers of the county, of general circulation, if there be so many, and make conveyance of any burial grounds under their control that they may have determined to discontinue as burial grounds; provided, however, that possession thereof shall not be given to a grantee until after the dead therein buried, together with the stones and monuments, shall have been removed as hereinbefore provided. (March 15, 1876, 73 V. 33.) § 1470-3. DISINTERMENT, ETC., OP BODY BURIED IN CEMETERY.— That the trustees or board of any cemetery association, or other officers having control and management of a cemetery, shall disinter or issue a permit for disinterment, and deliver any body now buried, or that may hereafter be buried in such cemetery under their control, on application of the next of kin of the deceased, being of full age and sound mind, to such next of kin, on payment of the reasonable cost and expense of the disinterment; provided, however, that no such disinterment shall be made during the m.onths of April, May, June, July, August and September of any year; and in no event where the deceased has died of a contagious or infectious disease, and not until a permit has been issued by the local health department. (May 14, 1894, 91 v. 231.) AVho are next of kin? Brothers and sisters are next of kin of minor children deceased; but where these brothers and sisters are minors, the parents are next of kin and competent to make the application. — State ex rel. v. Shonhoft, 14 C. C. 354 (1897); s. c, 7 C. D. 716. 40 Private Corporations in Ohio. Price of Electric Light and Gas, § 2478. § 1470-4. FORM OF APPLICATION.— Such application shall be in writing; shall state the relation of the applicants to the deceased; that the applicants are the next of kin of the deceased, of full age and sound mind; the disease of which the deceased died; where the body shall be reinterred; and shall be subscribed and sworn to before some officer authorized to administer oaths. (May 14, 1894, 91 v. 231.) § 1470-5. WBIT OF MANDAMUS.— In case said trustees or board or other offi- cers in charge of said cemetery shall refuse to issue said permit for disinterment, there shall be issued by the court of common pleas of the county wherein the ceme- tery is situated, a writ of mandamus requiring said trustees or board or other officers to issue said permit. (May 14, 1894, 91 v. 231.) § 1471. MAY BE REMOVED, ETC.— The trustees shall, when the dead laid in any vault or other receptacle become offensive, on complaint of any householder of the township, issue an order forthwith to the sexton or other person in charge, to have the same immediately interred; and in case the interment is neglected for three days after the complaint, any justice of the peace of the township may issue his written, order to any householder of the township to inter the dead at the expense of the trus- tees, and shall allow a reasonable charge for the service aforesaid. (April 17, 1857, 54 V. 187, § 6; S. & C. 228.) § 2478. REGULATING PRICE OF ELECTRIC LIGHT, ARTIFICIAl AND NATURAL GAS. — The council of any city or village in which electric lighting com- panies, natural or artificial gas companies, or gas light or coke companies may be established, or into which their wires, mains or pipes may be conducted, are hereby empowered to regulate, from time to time, the price which said electric lighting, natural or artificial gas, or gas and coke companies may charge for electric light or for gas for lighting or fuel purposes, furnished by such companies to the citizens, public grounds and buildings, streets, lanes, alleys, avenues, wharves and landing' places; and such electric lighting, natural or artificial gas, or gas-light and coke com- panies shall, in no event, charge more for any electric light, or natural or artificial gas furnished to such corporation or individuals than the price specified by ordinance of such council; and such council shall also have power to regulate and fix the price which such companies shall charge for rent of their meters. (March 1, 1889 86 v. 62; March 4, 1887, 84 v. 39; R. S. 1880; May 7, 1869, 66 v. 218, § 415.) In absence of ordinance fixing price, company can only charge reasonable price. If the authorities fail to act in respect to the power vested in them by this section, and an individual and the electric light company could not agree as to price, on appeal to the courts, the company vifould be compelled to furnish light at a reasonable price. — Cincin- nati, Hamilton, etc., R. E,. v. Bowling Green, 57 Oh. St. 336, 346 (1897). See §§ 2494, 2495, and notes thereto. Company chartered prior to present constitution, subject to regulation, A gas company chartered prior to the adop- tion of the present constitution is neverthe- less subject to the provisions of this section, unless the right to fix its own prices is ex- pressly conferred in its charter. — Zanesvllle v. Gas Light Co., 57 Oh. St. 1 (1889); State ex rel. v. Gas Light Co., ,34 Oh. St. 572. See Cleveland Gas Co. v. Cleveland, 35 W. L. B. 155 (1891). Injunction xirill lie to compel com- pany to furnish gas at prices fixed by ordinance. Gas Light Co. v. Zanesville, 57 Oh. St. 35 (1889). Presumption in favor of good faith of council. The presumption is in favor of the good faith and validity of the action of the council in passing an ordinance regulating price, and this presumption can only be overcome bv the averment of issuable facts to the contrary.— See State ex rel. v. Gas Co., 18 Oh. St. 262 (1868) ; approved 115 U. S. 659, and 118 U. S. .S71; State ex rel. v. Gas Co., 37 Oh. St. 45 49 (1881). Inadequacy of price; what must be shoivn. On the absence of facts showing fraud or bad faith on the part of the council, the in- adequacy of the price is not subject to inquiry. — State ex rel. v. Gas Co., 37 Oh. St. 45, 49 Miscellaneous Provisions. 41 Gas Companies; Use of Streets by, §§ 3480-2481. (3881). See Cleveland Gas Co. v. Cleveland, 35 W. L. B. 155 (1891). Also State ex rel. v. Gas Co., 18 Oh. St. 262 (1868); approved, 115 U. S. 659, and 118 U. S. 371. Cannot delegate regulation of prices, etc. Does not authorize a contract that for an indefinite period leaves to other parties the regulation of the price to be paid, or the quantity or quality of gas that shall be fur- nished. — Cincinnati Gas Co. v. Avondale, 43 Oh. St. 257 (1885). Ordinance fraudulently passed, or stipulating unreasonable price, is void. An ordinance passed for a fraudulent pur- pose, and fixing the price at a rate which the council knows it cannot be manufactured, im- poses no obligations on the company intended to be afifected thereby. — State ex re!, v. Gas Co., 18 Oh. St. 262 (1868) ; approved, 115 U. S. 659, and 118 U. S. 371; Cleveland Gas Co. v. Cleveland, 35 W. L. B. 155 (1891). See as to granting exclusive right to indi- vidual company, and the subject generally, §§ 2485 and 3550, and notes thereto. See as to regulation of prices. State ex rel. v. Gas Co., 3 0. C. C. 251 (1888) ; s. c, Cleve- land Gas Co. V. Cleveland, 35 W. L. B. 155 (1891). Cited, Findlay Gas Co. v. Findlay, 2 0. C. C. 237, 243 (1887). Extent of povrer of council. A city council has no power under this and the next section to compel a gas com- pany, without its assent to the ordinance, to furnish gas in a manner and at a rate entirely at the option of the consumer. — Logan Natu- ral Gas, etc., Co. v. Chillicothe, 66 Oh. St. 186 (1901). § 2479. MINIIiIUM; NOT TO BE EEDTJCED DURING TEEM AGREED UPON.— In case tlie council fixes the minimum price at which, it requires any company to fur- nish, gas to the citizens, or public buildings, or for the purpose of lighting the streets, alleys, avenues, wharves, landing places, and public grounds, for a period not exceed- ing ten years, and the company assents thereto, by written acceptance, filed in the office of the clerk of the corporation, it shall not be lawful for the council to require such company to furnish gas at a. less price during the period of time agreed on, not exceeding ten years, as aforesaid. (May 7, 1869, 66 v. 218, § 416.) Contract for longer than ten years; in- operative as to time beyond that period. Agreement was entered into between a city and gas company by which the latter was to furnish gas at a stipulated price for a period of twenty years. City performed its contract for ten years; held that beyond that period the contract was inoperative, and city could regulate price thereafter. — State ex rel. v. Gas Co., 37 Oh. St. 45 (1881). See Toledo v. Gas Co., 5 0. C. C. 557 (1890). Applicable to natural gas companies. Toledo v. Gas Co., 5 0. C. C. 557 (1890). Agreement unlimited as to time, valid for ten years and no longer* Toledo V. Gas Co., 5 0. C. C. 557 (1890). This section limits the period for which municipalities may contract for the supply of gas under § 2491. Lima Gas Co. v. Lima, 4 0. C. C. 22 (1889). Contract cannot be altered. When a council has fixed the price of gas under this section and the company has ac- cepted the same, it cannot be altered without the consent of the company within ten years. — Logan Natural Gas, etc. Co. v. Chillicothe, 65 Oh. St. 186 (1901). § 2480. WHEN COUNCIL MAY OCCUPY STREETS EOR GAS PURPOSES, ETC. — If such companies are, at any time, required by the council to lay pipes, and light any street, alley, avenue, wharf, landing place, public ground or building, and refuse or neglect for six months after being notified, by authority of the council, to comply with such requirement, the council may lay pipes and erect _ gas-works, for lighting such, streets, alleys, or public grounds, and all other streets, alleys, and pub- lic grounds, not already lighted; and such gas companies or gas-light and coke com- panies, shall thereafter be precluded from using or occupying any of the streets, alleys, public grounds or buildings, not already furnished with gas pipes of such, companies; and the council may open any street for the purpose of conveying gas as aforesaid. (May 7, 1869, 66 v. 218, § 417.) § 2481. GAS COMPANIES MAY BE PERMITTED TO OCCUPY STREETS.— The council may, at any time after the default mentioned in the preceding section, permit such gas companies to use and occupy the streets, alleys, and public grounds of 42 Private Corporations in Ohio. Gas Companies; Regulations as to, §§ 2482-2485. such corporation, for the purpose of lighting the same, and furnishing gas to the citizens and public buildings. (May 7, 1869, 66 v. 218, § 418.) § 2482. FORFEITURE OF CHARTER FOR NEGLECT TO FURNISH GAS, ETC. — A neglect to furnish gas to the citizens, and other consumers of gas, or to the corporation, by any company, in accordance with the prices fixed and established by the council, from time to time, shall forfeit all rights of such company under the charter by which it has been established; and the council may proceed to erect, or, by ordinance, empower any person to erect gas-works, for the supply of gas to such cor- poration and its citizens; provided, that nothing in this section or in sections twenty- four hundred and seventy-nine and twenty-four hundred and eighty, shall operate to impair or affect any contract heretofore made between any municipal corporation and any gas-light and coke company. (May 7, 1869, 66 v. 219, § 419.) Cited, Toledo r. Gas Co., 5 0. C. C. 557 (1890). § 2483. A TEMPORARY FAILURE SHALL WORK NO FORFEITURE.— A temporary failure to furnish gas shall not operate as a forfeiture, unless such failure is through the neglect or misconduct of such gas-light, or gas-light and coke com- panies. (May 7, 1869, 66 v. 219, § 420.) § 2484. COUNCIL MAY APPOINT GAS INSPECTOR; HIS DUTIES AND COM- PENSATION. — The council of any corporation in which gas-works may be con- structed may provide, by ordinance, for the appointment of an officer, to be known as inspector of gas, whose duty it shall be to inspect all gas and gas-meters, and certify the correctness of all bills against consumers of gas, make photometric tests, and per- form such other duties as may be prescribed by ordinance; and the council shall fix his compensation. The council may also provide for the inspection and testing of meters used for measuriiig electric current for electric light, power or other purposes, furnished by any individual or company within the corporation, and may prescribe a suitable charge for such inspection and testing, and the manner of collecting the same. (May 7, 1869, 66 v. 219, § 421; April 12, 1876, 73 v. 227, § 4; May 18, 1894, 91 V. 300.) § 2485. EXCLUSIVE MONOPOLY SHALL NOT BE ALLOWED TO GAS COM- PANIES. — It shall not be lawful for any council to agree by ordinance, contract, or otherwise, with any person or persons, for the construction or extension of gas-works for manufacturing or supplying the corporation or its inhabitants with gas, which shall give or continue to any person or persons making such agreements with the council the exclusive privilege of using the streets, lanes, commons, or alleys, for the purpose of conveying gas to the corporation, or the citizens thereof, or which shall deprive the council of the right to designate the kind of meter to be used for the correct measurement of the gas furnished under such agreement, and to provide for inspecting or regulating the same, or which shall not specify the exact quality of the gas to be furnished, and reserve to the council the right to enforce an exact com- pliance with such specification, under such liules as the council may prescribe- nor shall the council make any such agreement which shall not secure to the council the right to purchase such works, and all the appurtenances belonging thereto, at any time within the existence of such contract or agreement. (May 7, 1869, 66 v. 219 § 422.) No exclusive grant without express au- thority. Municipality cannot grant exclusive right to use of streets, without power expressly granted, or so far necessary to the proper powers granted as to he free from doubt. — See note to State ex rel. v. Hamilton, under § 3550; State v. Gas Co., 18 Oh. St. 262 (1868). Franchise to manufacture includes right to purchase gas. See Hamilton v. Hamilton Gas, etc., Co 8 N. P. 610 (1901). Right to use streets is a franchise. The right to use the street for the laying of the pipes to convey gas, whether in the hands of an individual or a corporation, is a Miscellaneous Provisions. 43 Railroads in Municipal Corporation, § 10 Mun. Code. franchise, and must directly or indirectly emanate from the legislature. — State v. Gas Co., 18 Oh. St. 262 (1868). " Person or persons," include corpora- tion. The words " person or persons," as used in this section, include corporations. — Cincin- nati Gas Co. V. Avondale, 43 Oh. St. 257 (1885). Contract legal, though it fails to give right to purchase franchise. A contract between the city and a gas-light company is legal, though it fails to secure to the city the right to purchase plant. — Lima Gas Co. V. Lima, 4 0. C. C. 22 (1889). Not applicable to natural gas com- panies. Logan Natural GaSj etc., Co. v. Chillicothe, 65 Oh. St. 186 (1901). § 2485a. CONSOLIDATION OF COMPANIES DOING BUSINESS IN SAMB MUNICIPALITY. — Any two or more of the companies mentioned in section 2478, which are doing business in the same municipal corporation, or which are incorpo- rated and organized for the purpose of doing business in the same municipal corpo- ration, may consolidate into a single corporation in the same manner and with the same effect as provided for the consolidation of railroad companies in sections 3381, 3382, 3383, 3384, 3385, 3386, 3387, 3388, 3390, 3391 and 3392 of the Revised Statutes, and any and all acts amendatory and supplementary to said sections. (April 16, 1900, 94 V. 315.) § 2491. CONTRACT TO SUPPLY MUNICIPALITY WITH ELECTRIC LIGHT OR GAS. — A municipal corporation may contract with such company for supplying, with electric light, natural or artificial gas for the purpose of lighting (or heating) the streets, squares and other public places and buildings in the corporation limits; but this section shall be subject to the restrictions in the last clause of section thirty- five hundred and fifty-one. (March 1, 1889, 86 v. 62; March 4, 1887, 84 v. 39; R. S. 1880.) 237 (1887) ; Toledo v. Gas Co., 5 0. C. C. 557, 571 (1890); Bellaire Goblet Co. v. Findlay, 5 0. C. C. 418, 424 (1890). PoTO^er to contract limited to period of ten years by § 2479. Lima Gas Co. v. Lima, 4 0. C. C. 22 (1889). Cited, Findlay Gas Co. v. Findlay, 2 0. C. C. RAILROADS IN MUNICIPAL CORPORATION. Municipal Code, § 10. WHEN MUNICIPAL CORPORATIONS MAY APPROPRI- ATE RAILROAD PROPERTY.— All municipal corporations shall have power to appropriate, enter upon and hold, real estate within their corporate limits, for the following purposes: 1st. For opening, widening, straightening, changing the grade of and extend- ing streets and all other public places, and for this purpose the corporation may appropriate the right of way across railway tracks and lands held by railway com- panies where such appropriation will not unnecessarily interfere with the reasonable use of the property so crossed by such improvement; and for obtaining material for the improvement of streets and other public places. * * * When city -will be enjoined. The appropriation for a street crossing over railroad tracks will not be interfered with if the use of the property by the railroad com- pany is not destroyed, and if the city is acting in good faith. — Little Miami R. E,. Co. v. Dayton, 23 Oh. St. 510 (1872); Baltimore, etc., E. E. Co. V. Bellaire, 4 W. L. B. 201 (1872). See Eailroad Co. v. Hyde Pari, 4 N. P. 296 (1897); s. c, 7 Dec. 156. Appropriation proceedings under this section, pleading, etc. See Toledo, etc., Ry. Co. v. Fostoria, 7 0. C. 0. 293 (1893) ; s. c., 4 C. D. 602; Eailroad Co. V. Hyde Park, 4 N. P. 296 (1897) ; =. c, 7 Dec. 156. City cannot appropriate property for use of railroad. See Morehouse v. Norwalk, 6 W. L. B. 267 (1880). Appropriation of railroad property for other purposes. See Railroad Co. v. Belle Centre, 48 Oh. St. 273 (1891). When company estopped to deny right to extension. Where a company obtains the right to cross certain streets on condition that when it 44 Private Corporations in Ohio. Railroads in Municipal Corporation, §§ 3494-2495. becomes necessary to open or extend the same it shall grant a right of way, it is estopped from denying the right to make such opening or extension. — Chicago, etc., R. R. Co. v. Hamilton, 3 0. C. C. 455 (1888); o. c, 2 C. D. 259. Appropriation for parks. See Toledo, etc., R. R. Co. v. Toledo, 7 N. P. 285 (1894); s. c., 5 Dec. 306. Appropriation for ditches. Lake Erie, etc., Ry. Co. v. Seneca County, 57 Fed. 944 (1893). § 2494. COUNCIL TO PASS ORDIITANCE TO LIGHT BRIDGE OR RAILWAY. — When it is deemed necessary by the council of any city or village to have any bridge or railway, located in whole or in part in such corporation, owned, pos- sessed, or operated by any individual, company, association or corporation, or any portion of the same, lighted, the council shall pass an ordinance for that purpose, requiring the individual, company, association, or corporation, owning possessing or operating the same, to light such bridge or railway within a specified time: Provided, that it shall not require any such railway or portion thereof to be lighted with elec- tric arc lights. (May 7, 1902, 95 v. 419; March 23, 1872, 69 v. 47, § 429.) Constitutionality. This act is a police regulation, and is con- stitutional. — Cincinnati, etc., R. R. Co. v. Sullivan, 32 Oh. St. 152 (1877); aeveland, etc., Ry. Co. v. St. Bernard, 15 O. C. C. 588 (1898); s. c, 8 C. D. 385. Applicable to what railroads. Although the .company operating the rail- road is not the owner or the lessee, it is liable under this section. — Cincinnati, etc. v. Bowl- ing Green, 57 Oh. St. 336 (1899). Notice of intention to pass ordinance. The passage of an ordinance is not rendered nugatory by failure of the village to notify the company of its intention. — Cleveland, etc., Ry. Co. v. St. Bernard, 19 O. C. C. 299 (1900); s. c, 10 C. D. 415. See generally Bowling Green v. Railroad Co., 10 C. C. 63 (1894); s. c, 4 C. D. 39; Railroad Co. v. Bowling Green, 9 0. C. C. 524 (1895); s. c, 6 C. D. 531; Railroad Co. v. St. Maiy's, 14 0. C. C. 202 (1897); Railroad Co. V. St. Bernard, 15 0. C. C. 588 (1898) ; s. c, 8 C. D. 385. § 2495. CHARACTER OP THE ORDINANCE.— The ordinance shall specify the manner in which such bridge or railway shall be lighted, the number and style of lamp-posts, gas-posts, electric lights or other lights and fixtures and the time such lights shall be kept burning in each twenty-four hours. (April 13, 1894, 91 v. 147- May 7, 1869, 66 v. 220, § 430.) ' ' Construction of ordinance. An ordinance under this section should re- ceive a reasonable construction. The instru- ment should be reasonably certain in its requirements, but no particular form of words is necessary. It will not be held defective as failing to fix a specified time for the perform- ance of such requirement by the company, if its language, taking the ordinance all togethei-, is sufficiently definite to inform the company that such lighting is required to be done, how and when it is to be done. — St. Mary's v. Lake Erie, etc., R. R. Co., 60 Oh. St. 136 (1899). Reasonableness of ordinance. It is a good (defense that the ordinance is unreasonable in that the light required will obscure headlights and endanger the service of the company. — Cleveland, etc., Ry. Co. v. St. Bernard, 15 0. C. C. 588 (1898) ; s. u., 8 C D. 385. Number of hours. An ordinance prescribing that " the number of hours that said electric lights shall be re- quired to be lighted during each period of twenty-four hours shall be the same as the said council does now or may hereafter re- quire for electric lamps within the limits of said village for lighting streets, shall be lighted," is sufficiently definite. — Cincinnati, etc., R. R. Co. v. Bowling Green, 57 Oh St 336 (1897). Kind and manner of lighting. The city or village has authority to pre- scribe the kind of light that shall be em- ployed, and where an electric light plant is in operation within such city or village lighting its streets and furnishing light to its inhab- itants, an ordinance is not unreasonable be- cause it requires a railroad companv to use the particular kind of lamp and illuminating material in use for lighting the streets of such city or village.— Cincinnati, etc., R. R. Co v Bowling Green, 57 Oh. St. 336 (1897). What time reasonable. A requirement that the companv proceed to do the lighting by electricity within twenty days after notice of the passaae of the or- dinance IS not necessarily unreasonable — St Mary s v. Lake Erie, etc., R. R. Co., 60 Oh St 136 (1899). ' • *^ ■ °".*y °* electric light company to sell light. See Cincinnati, etc., R. R. Co. v. Bowling Green, 57 Oh. St. 336 (1897). ^ Miscellaneous Provisions. 45 Kailroads in Municipal Corporation, §§ 2496-3499. § 2496. NOTICE OP REQUIREMENT TO BE GIVEN.— Notice of such require- ment to liglit any bridge or railway shall be given at least twenty days before pen- alty or charge shall be imposed for default, and such notice may be given by deliver- ing to any owner or part owner, or any person having possession, charge or manage- ment of such bridge or railway, a written or printed copy of the ordinance, provided, however, that when such ordinance requires the lighting of a railway, service of such written or printed copy of the ordinance upon any ticket or freight agent of such railway company in such city or village, and if there be no such ticket or freight agent in such city or village, upon any ticket or freight agent of such railway com- pany in the county wherein such city or village is located, shall be deemed sufficient and shall charge the person, company, corporation, or partnership, owning or operat- ing such railway with notice of the passage of said ordinance and the requirements thereof. (May 6, 1902, 95 v. 369; May 7, 1869, 66 v. 220.) Notice to agent not sufficient. See C, C, C. & St. L. Ry. C6. v. De Graft, 20 O. C. C. 710 (1899) ; Dayton v. C, C, C. & St. L. Ey. Co., 46 W. L. B. 287 (1901>. § 2497. PROCEDURE ON FAILURE TO LIGHT BRIDGE OR RAILWAY.— If the person, company, or corporation, owning, possessing, or operating such railway or bridge, neglect or fail to do such lighting in conformity with the provisions of the ordinance for twenty days after notice as aforesaid, the council may immediately proceed to cause the lighting to be done at the expense of such person or persons, com- pany, or corporations. (March 23, 1872, 69 v. 47, § 432.) § 2498. ASSESSMENT FOR EXPENSE OF SUCH LIGHTING, ETC.— The coun- cil may direct the manner in which the expense of lighting such bridge or railway shall be assessed and collected, and when assessed, the amount shall be a debt due against and payable by such person, company, or corporation, and shall be a lien to be enforced as any other lien on such bridge and the land on which the same is built, or upon the real estate of the railway company or leasehold interest situate or being within the county wherein such city or village is located. (March 23, 1872, 69 v. 47, § 433.) Lien for expense. When, on default of the railway company, Gueh lighting is procured to be do-ne by the council, the expense of such lighting may, by the council, be assessed or declared a lien upon any of the real estate of the railway company within the municipality.^ — Cincin- nati, etc., E. R. Co. V. Sullivan, 32 Oh. St. 152 (1877). How liability enforced. The liability of the railway company to pay such expenses can only be enforced by suit or action, or in the language of the con- stitution, " by due course of law." It is not § 2499. HOW LIEN MAY BE ENFORCED.— The charge may be collected or the lien enforced in the manner pointed out in the chapter providing for the assessment of damages and expenses for making public iraprovements. (May 7, 1869, 66 v. 221, § 434.) a tax or an assessment in the nature of a tax for local improvements, and cannot therefore be summarily placed upon the county dupli- cate and collected as a tax nr assessment proper. — Cincinnati, etc., E. R. Co. v. Sul- livan, 32 Oh. St. 152 (1877). Evidence of expense. Where an assessing ordinance, fixing the expense of such lighting, has been enacted in conformity with this section, such ordinance of itself furnishes prima facie evidence of the expense of the lighting. — St. Mary's v. Lake Erie, etc., R. R. Co., 60 Oh. St. 136 (1899). pal corporation, in a court of competent juris- diction. — Cincinnati, etc., R. R. Co. v. Sulli- van, 32 Oh. St. 152 (1877). Mode of collection. The mode of collecting such charge or en- forcing the lien thereof, prescribed by this section, is by suit in the name of the muniei- § 2500. REGULATION OF RATE OF SPEED.— When a railroad track is laid in a municipal corporation, the council may by ordinance regulate the speed of all locomotives and railroad cars within the corporate limits; provided, such ordinance 46 Private Corporations in Ohio. street Railway Franchises, § 1. shall not require a less rate of speed than four miles an hour, and in villages having a population of two thousand or less it shall not be fixed at a less rate than eight miles an hour; and the corporate authorities may by civil action, recover against any engineer, conductor, or company violating such ordinance a sum not less than five dollars nor more than fifty dollars for each offense. (April 27, 1877, 74 v. 132, § 1.) Evidence in negligence cases. In an a/ction to recover for an injury alleged to have been caused by cars moving on a rail- road track, proof that the company vi^as mov- ing its cars in violation of a city ordinance at the time the injury was inflicted, while not sufficient per se to create a, liability, is yet competent to go to the jury as tending to show negligence and to excuse contributory negli- gence. — Meek v. Pennsylvania Co., 38 Oh. St. 632 (1883); Hart v. Devereux, 41 Oh. St. 565 (1885); Becker v. Cincinnati Street Ry. Co., 1 N. P. 359 (1894); s. c, 2 Dec. 137; Cincin- nati, etc., R. R. Co. V. Murphy, 18 0. C. C. 298 (1899); B. c, 10 C. D. 195; Pennsylvania Co. V. Trainer, 18 0. C. C. 716 (1897) ; s. c, 7 C. D. 567 ; Railway Co. v. Herriek. 49 Oh. St. 25, 32 (1892) ; Engleman v. Lake Shore, etc., Ry. Co., 34 W. L. B. 229 (1895). Power to regulate running of trains. See Ravenna v. Pennsylvania Co., 45 Oh. St. 118 (1887). Gates, watchmen, etc. See §§ 247a, 247b, and notes. An Act Authorizing Changes and the Extensions of Existing Street Railway Routes, and in Existing Transfer Systems. Be it enacted by the General Assembly of the State of Ohio: § 1. MXTNICIPALITIES MAY AGREE WITH STREET RAILWAY COMPANY FOR PAYMENT OF PERCENTAGE OF GROSS RECEIPTS IN LIEN OF CAR LICENSE FEES. — That it shall be competent for the board of public service, in any city of the first grade of the first class, and for the council or other legislative body of any other niunicipal corporation, by and with the consent of the mayor, to agree with any street railway company or companies operating any street railway route or routes in such city or other municipal corporation for the payment of a percentage or additional percentage not less than one per cent, upon its gross receipts in lieu of car license fees that may have been exacted under existing grants, and upon such changes in and extensions of existing street railway route or routes, and any changes in or revision of any prevailing or existing system of transfers between such routes as such board of public service or council, or other legislative body may deem to be to the benefit, convenience or advantage of the public. NO INCREASE IN RATE OF FARE; CONSENTS TO CHANGES OR EXTEN- SIONS OF EXISTING ROUTES NOT NECESSARY, WHEN.— Provided, that nothing herein cbntained shall be construed to authorize any increase in the rate of fare by reason of any such changes, revisions or extensions; and provided, further, that when any such changes in or extensions of existing routes are made so as to run in whole or in part over and along existing tracks alreadjy belonging to such company or companies, it shall not be necessary to secure and file the consents to such changes or extensions of the owners of the property abutting on the streets on which such exist- ing tracks are located. Provided, further, that nothing herein contained shall be construed to authorize the extension of the track or route of one street railway com- pany over those of any other street railway company, otherwise than in the manner already provided by law, excepting by agreement of both such companies. NO EXTENSION IN LENGTH OF FRANCHISE; NOTICE AS TO ORDINANCE TO EXTEND OR CHANGE ROUTE; CONSENTS NECESSARY WHEN.— Provided, that nothing herein contained shall authorize the extension of existing street railway routes or any portion thereof over and along existing tracks or portions thereof for a longer period than the terms for which the original franchises for such roads or routes existing at the time of the passage of this act, were granted. Provided, further that no resolution or ordinance, providing for such extension or change of route or routes or changes or revision of systems of transfers, shall be passed until public notice of the pendency of such resolution or ordinance shall have been given in one or more of the daily newspapers published in said municipal corporation, if there be such Miscellaneous Provisions. 47 street Kailway rranchises, § 2-§ 29 Mun. Code. and, if not, then in one or more newspapers of general circulation in said municipal corporation, for the period of at least three consecutive weeks; and provided, further, that no change or extension of any existing route shall be granted over any street or streets now occupied by street railway tracks, unless the consent of a majority of the owners of property abutting on such street or streets shall have been first obtained as now by law required. (May 10, 1902, 95 v. 502.) § 2. NO StJBSEQTJKNT CHAJSTG-B LW FIVE YEARS.— Whenever any street rail- way route or routes shall have been changed under agreement as provided in the preceding section of this act, no subsequent change of said route or routes shall be made within a period of five years thereafter. (May 10, 1902, 95 v. 503.) § 3. This act shall take effect and be in force from and after its passage. 10, 1902, 95 V. 503.) (May § 2501. TEEMS AND CONDITIONS OF CONSTRUCTION AND OPERATION TO BE FIXED BY COUNCIL; RENEWAL OF GRANT.— No corporation, individual or individuals shall perform any work in the construction of a street railroad, until application for leave is made to the council in writing, and the council by ordinance shall have granted permission, and prescribed the terms and conditions upon, and the manner in which the road shall be constructed and operated, and the streets and alleys which shall be used and occupied therefor, but the council may renew any such grant at its expiration upon such conditions as may be considered conducive to the public interest. (April 21, 1896, 92 v. 206; March 4, 1887, 84 v. 40; R. S. 1880; June 12, 1879, 76 v. 156, § 4; May 7, 1869, 66 v. 217, § 411.) ■What is sufficient application. The presentation of the ordinance for a street railway grant to a common council is a sufficient written application therefor. — San- fleet V. Toledo, 10 0. C. C. 460 (1893); s. c. 8 C. D. 711. Application by corporation before or- ganization. A grant to a corporation is not invalid be- cause the application to the city for a fran- chise was filed before the articles of incorpo- ration of the railway company reached the secretary of state. — Sloane v. People's, etc., Ry. Co., 7 0. C. C. 84 (1891); s. c, 3 C. D. 674. Application in alternative. An application to a city council for leave to construct a street railway may designate a portion of the proposed route in the alterna- tive.— Simmons v. Toledo, 5,0. C. C. 124 (1889); s. c, 3 C. D. 64. Application by trustee. The city may entertain an application from a person describing himself as trustee. — Simmons v. Toledo, 5 0. C. C. 124 (1889); s. u., 3 C. D. 64. Extension of term. An extension of the term of a grant is not invalid because made without competitive bid- ding, notice or consents. — Clement v. Cincin- nati, 16 W. L. B. 355 (1886); Haskins v. Cincinnati, etc., R. R. Co., 4 W. L. B. 1126 (1880); State ex rel. v. Bast Cleveland R. E. Co., 6 0. C. C. 318 (1891) ; o. c, 3 C. D. 471. Henew^al of grant. A street railway grant may be renewed be- fore its expiration. — Cincinnati v. Cincinnati Ry. Co., 31 W. L. B. 308 (1894). See generally as to renewal, Louisville Trust Co. V. Cincinnati, 76 Fed. 296 (1896) ; s. c, 73 Fed. 716; Louisville Trust Co. v. Cincin- nati, etc., Ey. Co., 78 Fed. 307 (1897). Same subject. The consent of abutting lot-owners upon a street occupied by a street railroad is not a condition precedent to the right of the council to grant a renewal of the franchise of such street railroad company. — Pelton v. East Qeveland R. R. Co., 22 W. L. B. 67 (1889). Cars TO^ithont conductors. See as to enforcement of ordinance requir- ing company to furnish conductors. Thorn- hill V. Cincinnati, 4 0. C. C. 354 (1890) : s. c, 2 C. D. 592. See Municipal Code, § 28. Violation of terms and conditions, remedy. The city may have a remedy by action on the contract or the state may proceed by way of quo warranto. — State ex rel. v. Toledo Ry. & Light Co., 23 0. C. C. 603 (1902). Municipal Code, § 29. STREET RAILWAY FRANCHISES; STREET RAIL- WAY FRANCHISES. — The right so to construct or extend such railway as provided in section 3437 Revised Statutes of Ohio, within or beyond the limits of a municipal corporation can be granted only by the council tb^r^'^f, by ordinance, and the right 48 Private Corporations in Ohio. street Railway Franchises, § 30 Mun. Code. to construct such railway within or beyond the limits of an unincorporated village can be granted only by the county commissioners, by order entered on their journal; and e,fter said grant or renewal of any grant shall have been made, whether by gen- eral or special ordinance, or by the order of the county commissioners, neither the municipal corporation nor the county commissioners shall release the grantee from any obligations or liabilities imposed by the terms of said grant or renewal of a grant during the term for which said grant or renewal shall have been made. Pro- vided, that no authority shall be given by such municipal or county authorities, to occupy the track, whether single or double, or other structure, of any existing street railways for more than one-eighth of the entire distance between the termini of the route, as actually constructed, operated and run over, of the company or individual to whom such grant is made; except, however, in granting permission to extend exist- ing routes in cities, such cities, and the companies owning such route, shall have the same rights and powers they have under the laws and contracts now existing; and that no extension of any street railroad located wholly without any such city, or of any street railroad wherever located, which has been or shall be built in pur- suance of a right obtained from any source or authority other than a municipal corporation, shall be made within the limits of such city, except as a new route, and subject to the provisions of section 2501 of the Revised Statutes of Ohio and section 30 of this act. Municipal Code, § 30. PUBLICATION, BIDS, CONSENTS, TERM, RELEASE OF OBLIGATIONS.— Nothing mentioned in section 2501 of the Revised Statutes of Ohio shall be done; no ordinance or resolution to establish or define a street railroad route shall be passed, and no action inviting proposals to construct and operate such railroad shall be taken by the council; and no ordinance for the purpose specified in section 2501 of the Revised Statutes of Ohio shall be passed until public notice of the application therefor has been given by the clerk of the corporation once a week, for the period of at least three consecutive weeks in one or more of the daily papers if there be such, and if not, then in one or more weekly papers published in the corpo- ration; and no such grant as mentioned in section 2501 of the Revised Statutes of Ohio shall be made, except to the corporation, individual or individuals, that will agree to carry passengers upon such proposed railroad at the lowest rates of fare, and shall have previously obtained the written consent of a majority of the property holders upon each street or part thereof, on the line of the proposed street railroad, represented by the feet, front of the property abutting on the several streets along which such road is proposed to be constructed; provided, that no grant nor renewal of any grant for the construction or operation of any street railroad, shall be valid for ii greater period than twenty-five years from the date of such grant or renewal; and after such grant or renewal of a grant is made, whether by special or general ordi- nance, the municipal corporation shall not, during the term of such grant or renewal release the grantee from any obligation or liability imposed by the terms of such grant or renewal of a grant. Other statutes. See § 3437 et seq. Publication of notice. Publication of notice of an application on the same day of the week for three consecutive weeks in a daily newspaper published and of general circulation in such city is sufficient in ii case where the council proceeding under such notice passes an ordinance granting the ritrht. notwithstanding a general ordinance of the city required such notices to be published in two daily papers of the city. — Simmons v. Toledo, 5 0.' C. C. 124 (1889) ; s. u., 3 C. D. (14. See Smith v. Columbus, etc., Ry. Co., 8 N. P. 1 (1900). When publication should be made. If the notice of the application is to be given before the passage of the first ordinance' or resolution, to merely establish or define a' route, and inviting proposals for the construe-' tion thereof, on certain terms, it is not so far jurisdictional in its character as to make the first ordinance or resolution invalid if notice IS not given, and if such notice is given before the passage of the final ordinance it will be suflScient, bnt if not so given, the final ordi- nance will be invalid.- Aydelott v. Cincinnati, 11 0, C. C. 11 (1893) ; s. c, 4 C. D. 486 See Sloane v. People's, etc., Ry. Co., 7 C C 84 (1891); s. c, 3 C, D. (374; Hamilton v C & Miscellaneous Provisions. 49 street Railway Franchises, § 30 Mun. Code. H., etc., Ry. Co., 5 N. P. 457 (1898) ; ». *.•,., 8 Deo. 174. Ordinances regulating publication, etc. Where the council has enacted a general ordinance regulating publication, etc.. It may make a grant without reference to such or- dinance bv following the general statutes. — See Aydeiott v. Cincinnati, 11 0. G. C. 11 (1893) ; s. c, 4 C. D. 486; Simmons v. Toledo, 5 0. C. C. 124 (1889J ; s. c, 3 C. D. 64. Who should order publication. A grant is not invalid because the city clerk caused the application and invitation for bids ■ to be published without any action having been taken by the city council directing such publication where the council afterwards recognizes and acts upon such application. — ■ Sloane v. People's, etc., Ry. Co., 7 0. C. C. 84 (1891); s. c, 3 C. D. 674. ATandamns to compel advertisement. Mandamus will not lie upon the relation of a citizen and owner of land abutting upon a street through which a line of railroad is to pass, if constructed, to compel the city clerk to make the advertisement required of him by the ordinance when he wrongfully refuses or neglects so to do. — State ex rel. v. Henderson, 38 Oh. St. 644 (1883). Bids, acceptance. A city council may adopt reasonable regula- tions as to the form of bids and as to the time when bidding shall close, but in the absence of su6h regulations, if the application is pub- lished for the time required by the statute, and the council acting in good faith, after the expiration of that time, make the grant to the only bidder therefor, and whose bid is reason- able, the exercise of such franchise will not be enjoined on account of irregularities on the part of the council in opening and considering such bid. — Sloane v. People's, etc., Ey. Co., 7 0. C. C. 84 (1891); s. c, 3 0, D. 674. Irregularities in bids. Informalities in bids which do not go to the substance of the bid are to be disregarded. — Compton V. Johnson, 9 0. C. C. 532 (1895); s. c, 6 C. D. 110. Good faith of bidder — rules to deter- mine. See Gallagher v. Johnson, 30 W. L. B. 139 (1893); s. c, 31 W. L. B. 24; Compton v. Johnson, 9 0. C. C. 532 (1895); s. c, 6 C. D. 110. Bidder's bond — what is valid. See Gallagher v. Johnson, 30 W. L. B. 139 (1893); Compton v. Johnson, 9 O. C. C. 532 (1895); s. c, 6 C. D. 110. Bidder's bond — poiver of council. See Sloane v. People's, etc., Ry. Co., 7 0. C. C. 84 (1891); s. c, 3 C. D. 674; Simmons T. Toledo, 5 O. C. C. 124 (1889) ; s. c, 3 C. D. 64. LAW GOV. PRIV. COR. — 4. Who is lowest bidder. The grant of a, franchise to one whom the council has in good faith found and deter- mined to be the bidder offering to carry pas- sengers at the lowest rates of fare, will not be held invalid without clear proof that the coim- cil erred in its finding. — Simmons v. Toledo, 5 0, C. C. 124 (1889) ; s. c, 3 C. D. 64. Same subject. The question whether a valid contract has been. made by the city with a party for the construction and operation of a street rail- road route under this section depends upon the fact whether such party in his bid agreed to carry passengers at the lowest rates of fare. — Knorr v. Miller, 5 0. C. C. 609 (1891) ; s. c, 3 C. D. 297. AVhen ordinance inviting bids tahes effect. See Sloane v. People's, etc., Ry. Co., 7 O. C. C. 84, 93 (1891); s. c, 3 C. D. 674. Po"wer of council over bids. Simmons v. Toledo, 5 0. C. C. 124 (1889); s. c, 3 C. D. 64. Lowest rates of fare — -what are. The council is not authorized to make a grant to the company which will bid " the lowest price of commutation tickets in pack- ages," and where an ordinance contains such unauthorized provisions, and they are so con- nected with authorized provisions that their separation is impracticable, the whole or- dinance is invalid.— Cincinnati Street R. R. Co. V. Smith, 29 Oh. St. 291 (1876). Bight to fix rates of fare. Though a grant may be made fixing rates of fare, there is no power in a city after a grant is made to change the rates. — See Cleveland City Ry. Co. v. Cleveland, 94 Fed. 385 (1899). Duration of term. A city has the right to limit the life of a franchise, and the fact that the life of a corporation is . for an unlimited term does not abridge its capacity to accept a grant of a street franchise for a shorter term. — Louis- ville Trust Co. V. Cincinnati, " 76 Fed. 296 (1896); a. c, 10 0. F. D. 112; s. c, 73 Fed. 716; s. c, 8 0. F. D. 704. Grant for more than twenty-five years. When a grant is made for a period greater than twenty-five years, it will be valid to the extent of twenty-five years. — Sonimers v. Cincinnati, 8 A. L. Rec. 612 (1880). Expiration — injunction pending nego- tiations for new franchise. Where the franchise of a company has ex- pired, and it has been perpetually enjoined from operating, but the operation of the de- cree has been suspended for a time, the court will not take charge of the road and operate 50 Private Corporations in Ohio. street Railway Franchises, § 31 Mun. Code-§ 2503. it by a receiver, but vjill enjoin interference Avith the oi)eralion while the decree is sus- pended. — Cincinnati v. Cincinnati, etc., Ry. Co., 4 N. P. 187; s. c, 7 Dec. 2 (1896); s. c, 4 N. P. 57, 6 Dec. 81. Koute through priyate property — effect. See Harrison v. Mt. Auburn, etc., Ey. Co., 17 W. L. B. 265 (1887). Iiine may fork and be but one route. See Aydelott v. Cincinnati, 11 O. C, C. 11 (1893); s. c, 4 C. D. 486. Effect of § 3439 on this section. See Neare v. Mt. Auburn, etc., Ry. Co., 29 W. L. B. 171, 54 Oh. St. 153 (1896). Council cannot delegate authority. A grant of a street railway franchise must be made directly to the successful bidder, and authority to make a grant cannot be delegated to any officer or board. — State ex rel. v. Bell, 34 Oh. St. 194 (1877). Signature of mayor not necessary. See Aydelott v. Cincinnati, 11 O. C. C. 11 (1893) ; s. c, 4 C. D. 486; State ex rel. v. Hen- derson, 38 Oh. St. 644 (1883). What is release of obligation. A modification of a contract between the city and a company, made in good faith, for the better accommodation of the public, is not void by virtue of this section as a release from an obligation, although in consideration of more rapid transit at a greater rate of fare. — ■ See Cincinnati, etc., Ry. Co. v. Cincinnati, 8 N. P. 80 (1900)v; Clement v. Cincinnati, 16 W. L. B. 355 (1886) ; Cincinnati v. Cincinnati, 2 N. P. 298 (1893); s. c, 2 Dee. 4(J8; C eve- land City Ey. Co. v. Cleveland, 94 Fed. 385 (1899). Illegal contract by company irith coun- cilman. A contract with a member of a city council to assist a company in procuring a right of way over city streets is against public policy and will not be enforced. — Railroad Co. v. Morris, 10 0. C. C. 502 (1895) ; s. c, 6 C. D. 640. Cities may require companies to employ conductors. Municipal Code, §§ 8-28. Validity and effect of speed ordinances. See Lewis v. Street Ey. Co., 10 Dec. 53 (1900) ; Ulrich v. Street Ey. Co., 10 0. C. C. 635 (1895); h. c, 5 C. D. Ill; Becker v. Street Ey. Co., 1 N. P. 359 (1894); s. c, 2 Dec. 137. Rule where there is no speed ordinance. Where no speed ordinance has been enacted the speed must be reasonable in view of all the facts and circumstances. — Cincinnati Street Ry. Co. v. Lewis, 23 0. C. C. 127 (1901). Reading ordinance. See Smith v. Columbus, etc., Ey. Co.. 8 N. P. 1 (1900). Injunction to restrain citv and com- pany from carrying ordinances inta effect, urhen granted. See Eoss v. Columbus, 8 N. P. 420 (1901). Municipal Code, § 31. RIGHTS OF ABUTTING GWlfEBS; CURATIVE ACT.— Nothing herein contained shall be construed to impair the rig'hts of abutting prop- erty owners, where unnecessary or additional burdens are placed upon the streets by operation of any grants herein authorized to be made, and nothing in this act or any part thereof, shall be construed to impair or enlarge the rights of any corpora- tion now using the streets of any municipality in the state under authority of any law now or hereafter in force; but all unexpired grants of rights or franchises here- tofore made by any municipality, in accordance with the provisions of any statute or act of the General Assembly existing at the time when they were made, and which have been accepted and where money has been expended in good faith on account thereof, are hereby regranted for such unexpired portion of the respective periods of the original grants in accordance with the terms and conditions of the same- any law, or part of law, to the contrary notwithstanding. § 2503. GRADE OF STREETS WHEN STREET RAILROAD IS CONSTRUCTED — Before any street railroad shall be constructed, on any street less than sixty feet in width, with a roadway of thirty-five feet, or under, the council shall provide, that the crown of the street shall he made a nearly flat uniform curve, from curb to'ourb without ditch gutters, and in such manner as to give all wheeled vehicles the full use of the roadway up to the face of the curb, after the plan of the streets in the cities of Philadelphia and New York. And on any street, whenever the tracks of two street railroads, or of a street railroad and a steam railroad, cross each other at a convenie t grade, the crossings shall be made with crossing-frogs of the most approved pattern Miscellaneous Provisions. 51 street Railway Franchises, §§ 2504^3505. and materials and kept up and in repair at the joint expense of the companies owning said tracks. (April 20, 1881, 78 v. 296; E. S. 1880; May 7, 1867, 66 v. 217.) Duty to reneir. A compliance with the terms of this section on one occasion does not absolve the com- panies so complying from the duty of using other crossing-frogs and materials when the latter are subsequently found to be of a more approved pattern or character. — Cincinnati, etc., Ey. Co. v. Cincinnati, etc., R. R. Co., 32 W. L. B. 4 (1894). Constitutionality. This section, so far as concerns crossing- frogs, is a valid exercise of the police power of the state. — Cincinnati, etc., Ry. Co. v. Cincin- nati, etc., R. R. Co., 32 W. L. B. 4 (1894). Applicable to vrhat companies. The provisions of this section apply to all such companies, whether their lines have been constructed before or after its passage. — Cincinnati, etc., Ry. Co. v. Cincinnati, etc., R. R. Co., 32 W. L. B. 4 (1894). § 2504. PAVEMENT OF STREETS WHERE RAILROADS ARE CONSTRTJCTED; PROVISO. — The council may require any part or all of the track, between the rails of any street railroad constructed within the corporate limits, to be paved with stone, gravel, boulders, or the Nicholson or other wooden or asphaltic pavement, as may be deemed proper, but without the corporate limits, paving between the rails with stone, boulders, or the Nicholson or other wooden or asphaltic pavement shall not be required; provided, that in cities of the secojid grade of the first class, the council may require of any street railroad company to pave and keep in constant repair, six- teen feet for a double track or seven feet for a single track, all of which pavement shall be of the same material as the balance of the street is paved with. (April 21, 1890, 87 V. 246; May 7, 1867, 66 v. 217, § 414.) may be recovered. — Columbus v. Street R. R. Co., 45 Oh. St. 98 (1887). See Cincinnati, etc., Ry. Co. v. Carthage, 36 Oh. St. 631 (1881). ■ Franchises and tracbs subject to assess- ment. See Cleveland v. Cleveland, etc., R. R. Co., 1 C. L. Rep. 304 (1878). Paving in Cleveland. See Cleveland v. Cleveland, etc.. R. R. Co., 1 N. P. 413 (1894); s. c, 3 Dec. 92. Obligation to repair under ordinance conditions. When the granting ordinance provides that the company shall repair the street between rails, and that in case of default the city may do the work and recover the cost; the city is not divested of its right to control the street, and it may cause new improvements to be made and determine the kind of improvement. The company, in accepting the grant, incurs the obligation to repair, and if the company is notified to do the work any time before the work is commenced, and on, default the city does the work, the reasonable cost of the same § 2505. COUNCIL OF CITY OR VILLAGE MAY GRANT EXTENSION OF STREET RAILROAD. — The council of any city or village may grant permission, by ordinance, to any corporation, individual, or company owning, or having the right to construct, any street railroad, to extend their track, subject to the provisions of sections three thousand four hundred and thirty-seven, three thousand four hundred and thirty-eight, three thousand four hundred and thirty-nine, three thousand four hundred and forty, three thousand four hundred and forty-one, three thousand four hundred and forty-two, and three thousand four hundred and forty-three, on any street or streets where council may deem such extension beneficial to the public; and when any such extension is made, the charge for carrying passengers on any street railroad so extended, and its connections made with any other road or roads, by con- solidation under existing laws, shall not be increased by reason of such extension or consolidation. (March 9, 1880, 77 v. 43; R. S. 1880; May 7, 1869, 66 v. 140, § 1.) Publication of notice. The advertisement of the application pro- vided for in § 2502 is intended to apply only to proposed construction of new routes, and not to extension of existing routes upon which no additional fare is to be charged. — State ex rel. v. Cincinnati, etc., Ry. Co., 19 0. C. C. 79 (1899); Sommers v. Cincinnati, 8 A. L. Rec. 612 (1880). Consents for ex+enpionp. See Sommera v. Cincinnati, 8 A. L. Rec. 612 (1880). Consents — how counted. The consent of a property owner for a cer- tain designated extension cannot be made available, and counted as a consent for an- other and different extension. — Neare v. Mt. 52 Private Corporations in Ohio. street Railway Franchises, § 250Sa. Auburn, etc., Ey. Co., 29 W. L. B. 171 (1893). Consents for each street must be ob- tained. In the extension of a street railway over streets not occupied by any road, the consents of the owners of more than one-half of the feet front of the lots or lands abutting on each street to be occupied by such extension are requisite. — Mt. Auburn, etc., Ry. Co. v. Neare, 54 Oh. St. 153 (1896); s. c, 29 W. L. B. 171. A^Iiat is an extension. A prolongation of an existing street rail- road track through any street or streets within the corporation within which the council declare that the same will be beneficial to the public, no matter in what direction such prolongation may be made, is an exten- sion of an existing track within the meaning of this section, the requisites of such extension being that it shall be constructed only in such streets as are so designated by council, and that no additional fare shall be charged. — Sommers v. Cincinnati, 8 A. L. Ree. 612 (1880). PoTxrer to declare extension beneficial. When the council designates two or more streets in which they declare it beneficial to the public to have an extension located, leav- ing to the company the choice of the various routes so designated, the discretion conferred upon the council by this section has been com- pletely exercised, and no part of this discre- tion can be said to be delegated to the company.— Sommers v. Cincinnati^ 8 A. L. Eec. 612 (1880). § 2505a. POWEK TO LEASE OB PURCHASE, TO ENTER INTO BEITEFICIAL ARRANGEMENT, TO PURCHASE STOCK, ETC.; PERFECTION OF LEASE OR PURCHASE; RIGHTS OF DISSENTING STOCKHOLDERS; INCREASE OF FARE PROHIBITED. — Any corporation or company organized for street railway purposes, may lease or purchase any street railroad, or street railroads, or railroad operated as a street railroad and by electric power or inclined plane railroad or railroads, together with all the property, real, personal or mixed, and all the franchises, rights and privi- leges respecting the use and operation of such railroad or railroads, situate or exist- ing in whole or in part within this state, constructed and held by any other corpora- tion or company, corporations or companies, the latter being hereby invested with cor- responding power to let or sell upon such terms and conditions as may be agreed upon between the corporations or companies; and any two or more of such corporations or companies may enter into any agreement for their common benefit consistent with and calculated to promote the objects for which they were created. No such lease or pur- chase shall be perfected until a meeting of the stockholders of each of the companies has been called for that purpose by the directors thereof, on thirty days' notice to each stockholder, at such place, and in such manner, as is provided for annual meet- ings of the companies, and the holders of at least two-thirds of the stock of each company, in person or by proxy, at such meeting, or at any properly adjourned meet- ing, assent thereto. Provided that any stockholder who refuses to assent to such lease or sale and signifies the same by notice in writing to the lessee or purchaser within ninety days thereafter, shall be entitled to demand and receive compensation Interference by courts. The courts will interfere with the public au- thorities authorizing an extension only when fraud or bad faith is shown. — Cincinnati v. Cincinnati, etc., Ry. Co., 31 W. L. B. 308 (1894); Sims V. Street R. R. Co., 37 Oil. St. 556 (1882). The ordinance does not confer corpo- rate pow^er. The corporate power to make an extension is conferred by statutes under which the com- pany is incorporated and acting. The ordi- nance granting permission to make an exten- sion is not a grant of corporate power, but a permit to exercise poAvers already granted. — Sims V. Street R. R. Co., 37 Oh. St. 556 (1882). Extension of steam road. A steam railroad cannot be extended under this section, but only under the general rail- road act. A street railroad, operating under a cliarter authorizing a steam railroad, cannot be extended by condemnation or appropria- tion. — Cincinnati, etc., Ry. Co. v. Cincinnati, 7 N. P. 511 (1897); s. c, 5 Dec. 562. Conditions — poTJrer to impose. An extension may be granted on conditions. — See Cincinnati v. Cincinnati, etc., Ry. Co., 31 W. L. B. 308 (1894). Consents not required irhen existing tracks used. Where a company obtains pennission to ex- tend its line over existing tracks, the consents of property owners need not be obtained. — See State ex rel. v. Cincinnati, etc., Ry. Co., 19 0. C. C. 79 (1899). Miscellaneous Provisions. 53 street Railways, §§ 3505b, 2505c. in the manner provided for the compensation of stockholders in sections 3303, 3303 and 3304 of the Revised Statutes, and the said sections are adopted and made to be a part of this section. Provided, that, whenever any such lease or purchase is made as herein provided, there shall be no increase of the existing rates of fare by reason of such lease or purchase nor shall any fare be charged upon any of the separate routes so leased or purchased in excess of the fare charged over such separate routes prior to the lease or purchase thereof, and provided that when any such lease or pur- chase is made as herein provided, the fare charged for one continuous route or ride in the same general direction over all such leased or purchased lines within any municipal corporation shall not exceed the maximum fare charged over any one of said lines prior to such lease or purchase. (April 23, 1898, 93 v. 214; April 22, 1896, 92 V. 277; May 1, 1891, 88 v. 493.) excessive fares reotion than is lawful, quo warranto will lie. As to what allegations are sufficient on de- murrer, see State ex rel. v. Toledo Ey. & Light Co., 23 0. C. C. 603 (1902). Remedy when charged. When a company has made a lease or pur- chase under this section and is charging more for a continuous ride in the same general di- § 2505b. CONSOLIDATION'. — Whenever the lines or authorized lines of road of any street railroad corporations or companies meet or intersect, or can be conveni- ently operated from one power house or from a power house or power houses owned, under lease or operated by one of such street railroad corporations or companies, or whenever any such line of any street railroad corporation or company, and that of any inclined plane railway or railroad company or corporation, or any railroad operated by electricity may be conveniently connected, to be operated to mutual advantage, or whenever any such line of any street railroad corporation or company and that of any inclined plane railway or railroad company or corporation or the railway of any company operated by electricity can be conveniently operated from one power house or from a power house owned, under lease or operated by one of such street railroad corporations or companies or inclined plane railway or railroad companies or corpo- rations or by any company or corporation, the railway of which is operated by elec- tricity such corporations or companies, or any two or more of them, are hereby author- ized to consolidate themselves into a single corporation, provided they are not com- peting lines, but the provisions herein as to competing lines shall have no application to such companies or corporations whose lines are nearby or wholly situate in any city of the state of Ohio or whenever a line of road of any street railroad company or corporation organized in this state is made, or is in process of construction to the boundary line of the state, or to any point either within or without the state, such corporation or company may consolidate its capital stock with the capital stock of any corporation or company, or corporations and companies in an adjoining state, the line or lines of whose road or roads have been made or are in process of construction to the same point or points, in the same manner and with the same effect as provided for the consolidation of railroad companies in sections 3381, 3382, 3383, 3384, 3385, 3386, 3387, 3388, 3389, 3390, 3391 and 3392 of the Revised Statutes, and any and all acts amendatory and supplementary to said sections and each of them; and the said sections, including these so amended and supplemented . are adopted and made a part of this section. (May 10, 1902, 95 v. 510; April 22, 1896, 92 v. 277; April 18, 1892, 89 V. 406; May 1, 1891, 88 v. 493.) See Greene v. Woodland, etc., E. R. Co., 62 Oh. St. 67 (1900). § 2505c. XTSE OF STREET RAILWAY TRACKS FOR OPERATION OF PAS- SENGER CARS OP OTHER RAILWAY COMPANY, ETC.— Whenever any railway company is incorporated and organized under the laws of this state for the purpose of building, acquiring, owning, leasing, operating and maintaining a railroad or rail- roads to be operated by electricity or other motive power from one municipal corpora- tion or point in this state, to any other municipal corporation, municipal corporations, or point in this state, it shall have an authority to make an arrangement or agreement 54 Private Corporations in Ohio. street Kailways, § 2505e. with any street railway company or companies owning or operating any street rail- way or railways in any such, municipal corporation or corporations, and said street railway company or companies shall have authority to make and enter into such arrangement or agreement with said railway company, whereby the passenger cars of such railway company may be run and propelled over and along the track or tracks of such street railway company or companies, for such compensation and upon such terms as may be agreed upon in the sam.e manner, upon the same conditions and for the same length of time as the cars owned or operated by said street railway com- pany or companies are operated in such municipal corporation or corporations. The said cars of said railway company shall, while they are running and being operated over and along the track or tracks of such street railway company or companies in any such municipal corporation, be entitled to all the privileges and subject to all the obligations enjoyed and imposed by and upon the cars of such street railway company or companies owning or operating its cars in any such municipal corporation, and shall be operated only by the same motive power with which the cars of such street railway company or companies are or may be operated. Such arrangement and agree- ment, when authorized by not less than two-thirds in amount of the stockholders of each company proposing to enter into such arrangement and agreement, ratified by a majority of the directors and executed by the proper officers thereof, shall give to such railway company full authority to operate its said cars on the tracks of said street railway company or companies in such municipal corporation or municipal corporations. Provided that it shall not be necessary for such railway company, in case it uses in any such municipal corporation or municipal corporations, only the tracks of a street railway company or companies owning or operating a street railway or railways within such municipal corporation or municipal corporations to obtain any additional grant, franchise or right, except by said arrangement or agreement with said street railway company or companies. Provided further, that the fare charged by said railway company for transporting passengers within the municipal corporation or municipal corporations, shall not be greater than that fixed in the franchise or franchises held or owned by such street railway company or companies; and where there is a public park or cemetery on the line of such railway and within one mile of, and owned by, such municipal corporation, such company shall for such fare so transport passengers to and from said park or cemetery the same as though either was within the limits of such corporation. (May 21, 1894, 91 v. 379.) See State ex rel. v. Cineinnati, etc., Ry. Co., 19 0. C. C. 79 (1899). § 2505e. STREET RAILWAY COMPANY MAY LEASE OR PURCHASE PROP- ERTY, ETC., OF ELECTRIC LIGHT AND POWER COMPANY; STOCKHOLDERS' MEETING TO PERPECT LEASE OR PURCHASE; DISSENTING STOCKHOLDER; POWERS OP PURCHASING COMPANY; LEASE OR SALE NOT TO APPECT LIA- BILITY OP LIGHT AND POWER COMPANY.— Any corporation or company main- taining and operating a street railroad, or a railroad operated by electricity may lease or purchase all the property, real, personal and mixed, and all the franchises rights and privileges of any company organized for the purpose of supplying elec- tricity, or natural or artificial gas, or both electricity and natural or artificial gas for power, light, heat or fuel purposes, or which has been engaged in such business in whole or in part in any municipality within this state, the latter being hereby vested with corresponding power to let or sell, upon such terms and conditions as may be agreed upon between the corporation and company. No such lease or tJur- chase shall be perfected until a meeting of the stockholders of each of the companies has been called for that purpose by the directors thereof, on thirty (30) days' notice to each stockholder at such time and place and in such manner as is provided for the annual meetings of the companies and the holders of at least two-thirds of the stock of each company in person or by proxy, at such meeting, or at any properly adjourned meeting assent thereto. Provided, that any stockholder who refuses to assent to such Miscellaneous Provisions. 55 Taxation of Corporations, §§ 3734, 2735. lease or sale and so signifies by liotice in writing to the lessee or purchaser within ninety (90) days thereafter shall be entitled to demand and receive compensation in the manner provided for the compensation of stockholders in sections 3302, 3303 and 3304 of the Revised Statutes and the said sections are adopted and made a part of this section. Any such company so leasing or purchasing the property, rights and fran- chises of an electric light and power company, or natural or artificial gas company, or electric light and power and natural or artificial gas company, shall have all the rights, power and authority of the company where property rights and franchises are so leased or purchased, but the liability o£ an electric light and power company or natural or artificial gas company, or electric light and power and natural or artificial gas company, shall in no manner be affected by its lease or sale as herein provided. (May 6, 1902, 95 v. 390; April 19, 1898, 93 v. 139.) TAXATION OF CORPORATIONS. § 2734. WHO SHALL LIST PERSONAL PROPERTY.— Every person of full age and sound mind shall list the personal property of which he is the owner, and all moneys in his possession, all moneys invested, loaned or otherwise controlled by him, as agent or attorney, or on account of any other person or persons, company or corpo- ration whatsoever, and all moneys deposited subject to his order, check, or draft, and all credits due or owing from any person or persons, body corporate or politic, whether in or out of such county; all money loaned on pledge or mortgage of real estate, although a deed or other instrument may have been given for the same, if between the parties the same is considered as security merely; the property of every ward shall be listed by his guardian, of every minor child, idiot, or lunatic having no guardian, by his father, if living; if not, by his mother, if living; and if neither father nor mother be living, by the person having such property in charge; of every wife by her husband, if of sound mind, if not, by herself; of every person for whose benefit prop- erty is held in trust, by the trustees; of every estate of a deceased person, by his executor or administrator; of corporations whose assets are in the hands of receivers, by such receivers; of every company, firm, or corporation, by the president or prin- cipal accounting ofiicer, partner or agent thereof; and all surplus or undivided profits held by any society for savings or bank having no capital stock, by the president or principal accounting officer. (March 7, 1879, 76 v. 28, § 2; May 11, 1878, 75 v. 441, § 1; April 8, 1865, 62 v. 105, § 4.) § 2735. WHERE PERSONAL PROPERTY SHALL BE LISTED.— Every person required to list property on behalf of others shall list the same in the same township, city, or village in which he would be required to list it if such property were his own; but he shall list it separately from his own, specifying in each case the name of the person, estate, company, or corporation, to whom it belongs; all merchants' and manu- facturers' stock, and all personal property upon farms shall be listed in the township, city, or village in which the same may be situated; and all other personal property, moneys, credits, and investments, except as otherwise specially provided, shall be listed in the township, city, or village in which the person to be charged with taxes thereon may reside at the time of the listing thereof, if such person reside within the county where the same are listed, and if not, then in the township, city, or village where the property is when listed. (April 8, 1865,. 62 v. 105, § 4.) Where corporation resides. A corporation resides at the place of its principal office as fixed by its articles of in- corporation.^ Pelton V. Transportation Co., 37 Oh. St. 450 (1882). Removal of residence. A corporation whose principal office is lo- cated in a specified township, and without the limits of a city, may, if the city limits be so extended as to include the site of the office, remove the same to some other part of the township and thus avoid municipal taxation. — Pelton V. Transportation Co., 37 Oh. St. 450 (1882). Valuation of stocks. See § 2739. 56 Private Corporations in Ohio. Taxation of Corporations, § 2744. § 2744. CORPORATIONS GENERALLY; THEIR RETURNS.— The president, secretary, and principal accounting officer of every canal or slack-water navigation company, turnpike company, plank-road company, bridge company, insurance com- pany, telegraph company, or other joint stock company, except banking or other cor- porations whose taxation is specifically provided for, for whatever purpose they may have been created, whether incorporated by any law of this state or not, shall list for taxation, verified by the oath of the person so listing, all the personal property, which shall be held to include all such real estate as is necessary to the daily operations of the company, moneys and credits of such. company or corporation within the state, at the actual value in money, in manner following: In all cases return shall be made to the several auditors of the respective counties where such property may be situated, together with a statement of the amount of said property which is situated in each township, village, city, or ward therein. The value of all movable property shall be added to the stationary and fixed property and real estate, and apportioned to such wards, cities, villages, or townships, pro rata, in proportion to the value of the real estate and fixed property in said ward, city, village, or township, and all property so listed shall be subject to and pay the same taxes as other property listed in such ward, city, village, or township. It shall be the duty of the accounting officer aforesaid to make return to the auditor of state during the month of May of each year of the aggregate amount of all property by him returned to the several auditors' of the respective counties in which the same may be located. It shall be the duty of the auditor of each county, on or before the first Monday of May, annually, to furnish the aforesaid president, secretary, principal accounting officer, or agent, the necessary blanks for the purpose of making aforesaid returns; but no neglect or failure on the part of the county auditor to furnish such blanks shall excuse any such president, secretary, principal accountant, or agent, from making the returns within the time specified herein. If the county auditor to whom returns are made is of the opinion that false or incorrect valuations have been made, or that the property of the corpo- ration or association has not been listed at its full value, or that it has not been listed in the location where it properly belongs, or in cases where no return has been made to the county auditor, he is hereby required to proceed to have the samp valued and assessed: provided, that nothing in this section shall be so construed as to tax any stock or interest in any joint-stock company held by the state. (April 8 1876 73 V. 139, § 16.) Charitable institutions exempt. See § 2732; Cleveland, etc., Ass'n v. Pelton, 36 Oh. St. 253 (1880); Humphries v. Little Sisters, 29 Oh. St. 201 (1876); Morning Star Lodge V. Hayslip, 23 Oh. St. 144 (1872). Express, telegrapli, and telephone com- panies. See §§ 2778, 2780-17 et seq. Sleeping-car companies. See § 2780-13. Freight-line and equipment companies. See § 2780-8. Electric light, gas, natural gas, pipe line, water works, street, suburban or interurbara railroad, messenger or signal, union depot, and railroad companies. See § 2780-17 et seq. Manufacturers. See § 2742. Franchise to be property. See Exchange Bank v. Hines, 3 Oh. St. 1, 7 (1853). corporation is not Unpaid listed. See Farmers' 630 (1872). stock subscriptions must be Ins. Co. V. La Rue, 22 Oh. St. Interests in unincorporated companies. When a corporation has an interest in an unincorporated company, it is relieved from the duty of listing its interest in such unin- corporated company.— See Pomeroy Salt Co V. Davis, 21 Oh. St. 555 (1871). How value of property ascertained. bee State ex rel. v. Jones, 51 Oh St 4q5> 511 (1894). • ^•''^' Miscellaneous Provisions. 57 Taxation of Corporations — Insurance Companies, § 3745. Capital stock listed under this section. The legislature intended by the description of property in this section to embrace the capital stock of corporations; for the fund subscribed and paid in to carry out the pur- poses of the organization remains the capital stock of the company after it has been con- verted into property necessary for the business operations, and for which it was originally sub- scribed.— Jones V. Davis, 35 Oh. St. 474, 477 (1880). What listed by foreign corporation. See Hubbard v. Brush, 61 Oh. St. 252 (1899). Correction of returns. See Ohio, etc., Co. v. Hard, 59 Oh. St. 248 (1898). Returns for five years — 5 2781. See Ohio, etc., Co. v. Hard, 59 Oh. St. 248 (1898). § 2745. FOBEIGN" INSURANCE COMPANIES; ANNUAL STATEMENTS.— Every insurance company, incorporated by the authority of any other state or gov- ernment shall, in its annual statement to the superintendent of insurance, set for(th) the gross amount of premiums received by it in the state during the preceding calen- dar year, without deductions for commissions, return premiums or considerations paid for reinsurance, or any deductions whatever; and shall, also, therein set forth, in separate items, return premiums paid for cancellations and, also, considerations received from other companies for reinsurance in this state, during such year. PAYMENT OP TAX TO SUPERINTENDENT OF INSURANCE.— Every such company shall, annually, in the month of November, pay to the superintendent of insurance an amount equal to two and one-half per cent of the balance of such gross amount, after deducting such return premiums and considerations received for rein- surances, as shown by its next preceding annual statement. RETALIATORY PROVISION.— If the laws of any other state, territory or nation authorize charges for the privilege of doing business therein, or taxes against any insurance companies, which are, or may be organized in this state, exceeding the charges herein provided, the same shall be charged against all insurance com- panies of such state, territory or nation, doing business in this state, in place of the charges herein provided. PENALTY FOR FAILURE TO PAY TAX OR MAKE TRUE STATEMENT.— If any such company refuse to pay said tax, after demand therefor has been made; or, if the statement made by it, under this section is false, the superintendent of insurance shall revoke the license of such company to do business in this state. EXAMINATION OF BOOKS OF COMPANY.— If, at any time, said superintend- ent has reason to suspect the correctness of any such statement he may, at the expense of the state, make an examination of the books of such company, or of its agents, for the purpose of verifying the same. All taxes collected under the pro- visions of this section by the superintendent of insurance shall be paid by him, upon the warrant of the auditor, into the general revenue fund of the state. Insurance companies and associations, incorporated by the authority of another state or government or the superintendent of insurance, shall not be required to make returns of deposits of such companies or associations, made as required by law with such superintendent of insurance for the benefit and security of policy holders, and shall not be governed, in respect to such deposits, by the provisions of section 2744, or of section 2734 of the Revised Statutes of Ohio. (April 29, 1902, 95 v. 290; March 27, 1894, 91 V. 91; April 19, 1893, 90 v. 201; April 12, 1889, 86 v. 274; April 11, 1888, 85 V. 183; R. S. 1880; April 8, 1876, 73 v. 138.) Annual valuation of outstanding poli- cies. See § 279. When retaliatory provision efPective. This section prescribes the rate of taxation upon every foreign insurance company doing business in this state. The last clause of § 282 is operative only when it is shown that the law of the state where such company is organized taxed Ohio corporations doing busi- ness there at a rate higher than foreign com- panies are taxed by this section. In such case the foreign company, in addition to the tax 58 Private Corporations in Ohio. Taxation of Corporations — Insurance Companies, §§ 2745a, 2745b. on the gross receipts, should be taxed in such additional sum as will be sufficient to make the total equal to the amount that would be realized were the rule of the state where Ihp company was organized applied to its trans- actions in this state, but no more. — State ex rcl. V. Reinmund, 45 Oh. St. 214 (1887). Amount to be paid. Under this section a, regular foreign mutual lite insurance company, having filed a state- ment as required by § 3606 and § 3608, is required to pay to the superintendent of in- surance such sum as, added to the amounts paid to the different county treasurers, will produce an amount equal to two and one-half per cent, of the gross premium and assessment receipts of such company for the year as shown by such statements filled in the insur- ance department. — State ex rel. v. Hahn, 50 Oh. St. 714 (1893). Remedy to test amount of taxes. Mandamus is not the proper remedy to test . the amount of taxes to be paid to the super- intendent of insurance under this section, and to prevent the superintendent of insurance from revoking the license of an insurance company to do business in this state. Injunc- tion is the proper remedy. — State ex rel. v. Hahn, 50 Oh. St. 714 (1893). When license may be revoked. The power of the superintendent of insur- ance to revoke or decline to renew a license continues and may be exercised notwithstand- ing the commencement and pendency of an action brought by him against a company to recover the taxes thus assessed. — State ex rel. V. Matthews, 58 Oh. St. 1 (1898). § 2745a. INSTTEANCE POLICY ON OHIO PROPERTY WOT TO BE PLACED IN AGENCY OUTSIDE STATE; RE-INSURANCE.— It shall be unlawful for any insur- ance company or agent legally authorized to transact insurance business in the state of Ohio to write, place or cause to be written or placed, any policy, renewal of policy, contract for insurance upon property situated or located in the state of Ohio, except through a legally authorized agent in the state of Ohio, who shall countersign all policies so issued and enter the payment of the premium upon his record, and the writing, renewal, placing or causing to be written or placed any policy of insurance in any other manner or form is hereby declared to be a violation of the law providing for the payment of taxes by foreign insurance companies doing business in the state of Ohio, as set out and provided in section 2745 of an act passed by the General Assembly of the state of Ohio, April 12, 1889 (88 v. 487). And no fire insurance company or association authorized to do business in this state shall reinsure, dispose of, cede, pool, divide or in any manner or form whatsoever, reduce any portion of its risk or liability, covering property located in whole or in part in this state, in or with any f'ompany, association, person or persons whatever, incorporated or otherwise, not authorized by law to do the business of fire insurance in this state, or to reinsure, or assume as a reinsuring company or otHerwrise, in any manner or form whatsoever the whole or any part of any risk or liability, covering property located in whole or in part in this state, of or for any insurance company, association, person or persons; incorporated or otherwise, not authorized by law to do the business of fire insurance in this state. It shall be the duty of the superintendent of insurance of this state annually, and at such times as he may see fit, to require the president or other chief oflacer of each company or association, to file a statement under oath, showing the names of each fire insurance company, or association, with whom or for whom any liability for insurance on property located in whole or in part in this state has been reinsured, disposed of, ceded, pooled, divided, or in any manner or form whatsoever reduced or increased. (April 16, 1900, 94 v. 299; 88 v. 487.) I See also §§ 2745b and 2745c. \ § 2745b. REVOCATION OF LICENSE FOR VIOLATING ABOVE.— That any company or companies violating the provisions of section 2745a of this act, upon notice and satisfactory proof thereof being made to the superintendent of insurance of the state of Ohio, shall have its or their authority to transact business in the state of Ohio revoked for a period of not less than ninety days; and any insurance company whose license to do business in the state of Ohio may be so revoked by the superin- tendent of insurance of the state of Ohio, shall not be again permitted to do business Miscellaneous Provisions. 59 Taxation of Corporations, §§ 2745c-3746. Sn the state of Ohio, until all taxes and penalties due thereon shall have been paid, together with any expense that may be due under the provisions of this bill, to the superintendent of insurance of the state of Ohio; and such company shall only be re-admitted to transact business in the state of Ohio upon a complete re-compliance with the laws now in force in regard to the admission of insurance companies to do business in Ohio. (May 1, 1891, 88 v. 488.) § 2745c. STJPEEINTENDENT OP INSTJBANCE TO INSPECT COMPANY CHABGED WITH VIOLATING THE LAW.— That when notice of any violation of the first section of this act is received by the superintendent of insurance of the state of Ohio, (that) it shall forthwith be his duty in person, or by deputy, to visit the office of such company or conxpanies where such contract of insurance may have been written or made, and demand an inspection of the books and records of such company or companies; any company or companies refusing to exhibit its or their books and records for his inspection shall be deemed guilty of violating the provisions of the first* section of this act, and the penalties provided in this act shall immediately be enforced against such company or companies, by the superintendent of insurance of the state of Ohio. (May 1, 1891, 88 v. 488.) * The first section includes §§ 2745a, b, c, and d. § 2745d. EXPENSES OP INSPECTION.— The superintendent of insurance of the state of Ohio shall receive, as a compensation for the services rendered under the provisions of this act, his necessary expenses, which sum shall be charged against the company or companies so visited by him, and shall be collected from such com- pany or companies by suit in any court of competent jurisdiction. (May 1, 1891, 88 V. 488.) § 2746. IN WHOSE NAME PKOPEBTY TO BE LISTED; BUT STOCK IN COM- PANIES WHICH MAKE EETTJBN OF CAPITAL NOT TO BE LISTED BY SHAEE- HOLDEB. — Personal property of every description, moneys and credits, investments in bonds, stocks, joint stock companies, or otherwise, shall be listed in the name of the person who was the owner thereof on the day preceding the second Monday of April, in each year; but no person shall be required to list for taxation any share or shares of the capital stock of any company, the capital stock of which is taxed in the name of such company. (May 5, 1859, 56 v. 175, § 59.) Definition of investments in stocks. See § 2730. Capital stock of domestic corporations listed under § 2744. Shares need not be listed. The personal property which a corporation organized and doing business under the laws of this state is required to list under § 2744 embraces the capital stock of the corporation, and such being the case, an owner of shares of the capital stock of such company is not re- quired to list his shares for taxation. — Jones V. Davis, 35 Oh. St. 474 (1880). Meaning of capital stock. Capital stock and capital property mean practically the same thing. Primarily the capital stock is the money paid in by the stockholders in compliance with the terms of their subscriptions. It soon, however, takes the form of real estate or personal property, or both, including machinery, buildings, cred- its, rights in action, etc. So that it may be taken to mean personal property, and such real estate as may be necessary to the daily operations of the company, and its moneys and credits. The capital is thus represented by the property in which it has been invested. — Lee V. Sturges, 46 Oh. St. 153, 160 (1889); Jones V. Davis, 35 Oh. St. 474, 476 (1880). Exemption must clearly appear. An exemption from taxation must be shown to indubitably exist. At the outset every pre- sumption is against it. A well-founded doubt is fatal to the claim. It is only where the terms of the concession are too explicit to admit fairly of any other construction that the proposition can be supported. — Bee Lee V. Sturges, 46 Oh. St. 160 (1889). Hovr exemption sboxrn. A stockholder is not required to show that the corporation has listed all the property. ICe is only required to show that the corpora- tion is required to list. — See Lee v. Sturges, 46 Oh. St. 153, 175 (1889). 60 Private Corporations in Ohio. Taxation of Corporations, §§ 2747-2748. Stock in foreign corporations. Investments in stocks of foreign corpora- tions by residents of Ohio may lawfully be taxed in Ohio, and the act imposing such taxes is constitutional. — Worthington v. Sebastian, 25 Oh. St. 1 (1874); Bradley v. Bauder, 36 Oh. St. 28 (1880). Stock in foreign corporations. This section does not apply to shares of a foreign corporation, although the capital of the corporation is taxed in the state where located, and although the corporation, has sub- stantial property in Ohio on which it pays taxes here. — Lee v. Sturges, 46 Oh. St. 153 (1889). See Bradley v. Bauder, 36 Oh. St. 28 (1880); Sturges v. Carter, 114 U. S. 511 (1885). See § 148c and 148d. Same subject. Where all the business of a foreign corpora- tion is transacted in this state, and all of its property situated and taxed here, shares of its capital stock held here are exempt. — Hubbard v. Brush, 61 Oh. St. 252 (1899). Stock in consolidated companies. This section does not apply to shares of a railroad company which is formed by the consolidation of an Ohio company with com- panies of other states, notwithstanding such company pays taxes in Ohio on the portion of its property which is situated here. — Lee v. Sturges, 46 Oh. St. 153 (1889). Preferred stock. This section makes no distinction between common and preferred stock. — Miller v. Rat- terman, 47 Oh. St. 141 (1890). Scrip certificates. Issuing scrip certificates to the stockholders of a corporation, redeemable in the future in stock of the company, for surplus earnings, is not a division of the surplus in money, or a promise to pay money to the stockholders. In such case the corporation continues thereafter to be the owner of such surplus, and the stockholders have nothing more than a prom- ise to have stock in the future for the surplus; and if tue company is required to list its prop- erty in Ohio, then such scrip certificates aie not taxable. — Adams v. Shields, 17 0. C. C. 129 (1898); s. c, 9 C. D. 558; s. c, 5 N. P. 1901. See State v. Franklin, 10 Oh. 91 (1840). Pledged stock tased in name of pledcror. Shares of stock which have been pledged as collateral security for loans, with power to the pledgee to transfer the shares to his own name, and in case the loans are not paid, to sell, but which stand on the books of the com- pany in the name of tne pledgor, are propeny taxable in his name. — Katterman y. Ingalls, 48 Oh. St. 468 (1891). Constrnction of law hy officials does not bind the state. A construction, by officers having the en- forcement of the tax laws, to the effect that stock of certain companies is not taxable in Ohio, does not bind the successors of such officers, nor the state in the assessment and collection of taxes on such stock. — Lee v. Sturges, 46 Oh. St. 153 (1889). What is " false retnrn of stock." See Eatterman v. Ingalls, 48 Oh. St. 468 (1891); Ratterman v. Phipps, 7 0. C. C. 458 (1893); s c, 4 V. D. 678. Void or illegal stock not taxable. See JIcDonald v. Haggerty, 7 0. C. C. 508 (1893); s. c, 4 C. D. 702. AVhat stock not exempt. Stock held by residents of Ohio in domestic or foreign corporations is not exempt under this section except when the property of the corporation is taxed in its name in tlii=; state. — Lander v. Burke, 65 Oh. St. 532 (1902). § 2747. WHEN LISTS TO BE MADE; NOTICE AND FORMS TO BE GIVEN BY ASSESSORS. — Tlie listing of all personal property, moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise, shall be made between the second Monday of April and the third Monday of May, annually; and the assessor shall, on or before the first Monday of May, annually, leave with each person resi- dent in his township or ward, of full age, and not a married woman, or insane person or at the office, usual place of residence or business of each person, a written or printed notice, requiring' such person to make out for the assessor a statement of the property which, by law, he is required to list, accompanied with printed forms, in blank of the statement required; and the assessor shall, at the time he delivers such notice and blank forms, demand and receive such statement, unless such person shall require further time to make out the same, in which case he shall call for the same before the third Monday of May. (May 5, 1859, 56 v. 175, § 17.) §■ 2748. STATEMENTS TO BE VERIFIED BY OATH.— Every such statement shall be verified by the oath of the person making the same. (May 5 1859 56 v 17^ § 17.) ' ' °' Miscellaneous Provisions. G1 Taxation of Corporations — Banks, § 2759. § 2749. STATE AtTDITOB, TO FURNISH BLANKS; OATH OF PERSON LIST- ING PROPERTY; FIXING VALUES; COUNTY AUDITOR TO ASSEMBLE AND INSTRUCT ASSESSORS AND FURNISH BLANKS.— The auditor of the state shall, annually, on or before the first Monday of April, furnish each county auditor with a. blank form of statement for listing personal property, moneys, credits, investments in bonds, stocks, joint-stock companies, or otherwise, containing all the items required in section 2737, and such subdivisions thereof, and additional items, as he may deem necessary to secure accurate, full and honest returns, and values for taxation; and county auditors, all assessors, and parties required to list all or any of the items named in said statement, shall use true copies of said blank statement, and fill up the blanks therein with the true value in money of the several items therein named; and every person or party so listing property, or other items named in said statement, shall take and subscribe an oath or afiirmation according to law, to be actually admin- istered by the assessor, to the effect (adapting the form to the capacity in which the person making the return acts), that the statement contains, as he verily believed, a true account of all the taxable personal property, moneys, credits, and investments in bonds, stocks, joint-stock companies, annuities or other-wise, owned or controlled by such party, for his own use, or as husband, parent, guardian, trustee, executor, administrator, receiver, accounting officer, agent, factor, or otherwise, and also of all moneys, credits, investments in bonds, stocks, joint-stock companies, or otherwise, held for him, or any one residing in this state, for whom he is required by law to list, by any party residing in or out of this state, and not listed for taxation in pursuance of law in this state by such holder, and every interest and right, legal or equitable, of the party listing and of those for whom he is required by law to list in any bonds, stocks. Joint-stock companies, or otherwise, which he is required by law to list for taxation, and that the value affixed to each of said items is the value thereof as ascer- tained by the usual selling price thereof for cash, at voluntary sales thereof, at the time and place of listing; and if there be no usual selling price, then at such price as could be obtained therefor in money, at such time and place, and that he has not made any acknowledgment or agreement, or contracted any debt, without receiving an adequate consideration therefor or resorted to any device, or created any trust, or sold or exchanged or disposed of any money, property, or effects, which were taxable in this state, for United States bonds or other non-taxable securities or moneys, for the purpose of evading taxation, or diminishing the amount of his return for taxation, and that all interest that he has or owns in any credit or evidence of indebtedness, secured in any manner, upon real estate or personal property, situated outside of the county in which, he resides, or in any taxable stocks or bonds, or in any stocks or bonds of any foreign corporation, has been duly listed by him for taxation. Each county auditor shall, before tEe fifteenth day of April, annually, issue a call to all the assessors of his county, to meet at his office or some other place designated by him, at the county seat, within five days, for consultation, and said assessors shall meet as so ordered; and the auditor shall meet with said assessors, and answer such questions and give such instructions as shall tend to a uniformity in the action of the assessors in his county, and it shall be his duty to specially call their attention to the provisions of law relating to their duties, and to the listing of property, and to require of them full compliance therewith; and the auditor shall provide and deliver to said assessors blank forms and instructions, or forward them to the township clerks, immediately after the meeting of said assessors. (March 13, 1891, 88 v. 96; 62 V. 114, § 56.) § 2759. STATEMENT BY BANKS; DEDUCTIONS BY COUNTY AUDITOR.— All unincorporated banks and bankers, except as provided in § 2765, shall annually, between the first and second Mondays of May, make out and return to the auditor of the proper county, under oath of the owner or principal officer or manager thereof, a statement setting forth: First — The average amount of notes and bills receivable, discounted or pur- 62 Private Corporations in Ohio. Taxation of Corporations — Banks, §§ 2759a, 2759b. chased in the course of business, by such unincorporated bank, banker or bankers, and considered good and collectible. Second — The average amount of accounts receivable. Third — The average amount of cash and cash items in possession or in transit. Fourth — The average amount of all kinds of stocks, bonds, including United States government bonds, or evidences of indebtedness, held as an investment, or in any way representing assets. Fifth — The amount of real estate at its assessed value. Sixth — The average amount of all deposits. Seventh — The average amount of accounts payable. . Eighth — The average amount of United States government and other securities that are exempt from taxation. Ninth — The true value in money of all furniture and other property not otherwise herein enumerated. From the aggregate sum of the first five items above enumerated, the said auditor shall deduct the aggregate sum of the fifth, sixth, seventh and eighth items, and the remainder thus obtained, added to the amount of item nine, shall be deemed to be the property employed by such bank or bankers in the business of bank- ing, and shall be entered on the duplicate of the county in the name of such bank, banker or bankers, and taxes thereon shal-l be assessed and paid on the same as pro- vided for other personal property assessed and taxed in the same city, ward, or township. (April 16, 1900, 94 v. 347; April 17, 1882, 79 v. 109; K. S. 1880; April 16, 1867, 64 V. 204, § 10.) Deductions of liabilities. Private bankers cannot deduct their liabili- ties from their moneys and credits. — Ex- change Bank v. Hines, 3 Oh. St. 1 (1853) ; Ellis V. Linck, 3 Oh. St. 66 (1853). Deposits. Moneys deposited with a bank or banker (unless special deposits) become the moneys of the bank or banker, appertaining to the business of banking, and proper to be listed with the other moneys belopging to that busi- ness, and this is equally true of general deposits, whether they happen to be used in the discounting of paper, or held in reserve to pay probable current demands. — Ellis v. Linck, 3 Oh. St. 66 (1853). ■What must be averaged and returned. Under the act of April 13, 1852, § 19, all the assets and resources of a hank, whether specie or balances in other banks, should, if employed in any manner whereby the bank received a profit, be averaged for taxation. So balances § 2759a. FURTHER STATEMENT REQUIRED.— The said bank, banker or bankers shall, at the same time, make statement under oath, of the amount of capital paid in or employed in such banking business, together with the number of shares or proportional interest each shareholder or partner has in such association or partner- ship. (April 17, 1882, 79 v. 109, 110.) § 2759b. SAVINGS BANKS.— That the provisions of section 2759 shall apply to and govern savings banks incorporated under the act of April 16, 1867. (April 16 1890, 87 V. 215.) ' Constitutionality. Deposits. This section is not repugnant to either § 2 The deposits in such societies are the prop- er § 3 of article 12 of the constitution. — erty of the depositors; the societies are merely Collett V. Springfield Savings Society, 13 0. C. incorporated agencies for the depositors as C. 131 (1896) ; s. c, 7 C. t). 146. principals to receive, loan and invest the sav- upon which no profit was received were not required to he returned. — Stark County Bank V. McGregor, 6 Oh. St. 45 (1856). Constitutionality. This section is constitutional except to the extent of including the entire third item among those from which the deduction is to be made. — Treasurer v. Bank, 47 Oh. St. 503 (1890). See Patton v. Commercial Bank, 10 Dee. 321 (1900). Section cited Chapman v. First Nat. Bank, 56 Oh. St. 310, 329 (1897). Principle of taxation. The provision of the statute for oDtaining the value of the capital stock of a bank, and the provisions for obtaining the value of the capital of an unincorporated bank, are merely different methods provided by law, which is permissible, for arriving at the true value in money of each kind of property. — See Cleve- land Trust Co. v. Lander, 19' 0. C. C. 271 (1900); s. c, 10 C. D. 4.52. Miscellaneous Provisions. 63 Taxation of Corporations — Banks, §§ 2760-2763. undivided profits, real estate and furniture do not add to the taxable value of the depositor's interests, and a complete taxation of all the taxable property is effected by requiring the depositors to pay upon the value of their in- terests and the society to pay upon the sur- plus, undivided profits, real estate and furni- ture. — ■ Collett V. Springfield Savings Society, 13 0. C. C. 131 (1896). ings of the latter. — Collett v. Springfield Savings Society, 13 0. C. 0. 131 (1896). Subject of taxation. The depositors are required to return and pay taxes upon the value of their interests in the society, and the society to return and pay taxes upon the remainder of the property not the reciprocal of such interests. The surplus, § 2760. HOW AVERAGES OBTAIWED.— The averages provided for in the pre- ceding section shall be obtained by adding together the amounts of each item above specified, owned by or standing on the books of such bank, banker, or bankers, on the first Monday of each month of the year preceding the Monday of May in which the return is made, and dividing the same by the number of months in the year: pro- vided, that in cases where such bank, banker, or bankers commenced business during the preceding year, the division shall be made by the number of months elapsed after the commencement of such business. (April 16, 1867, 64 v. 304, § 11.) § 2761. PERSON'S COMMENCING THE BUSINESS OF BANKING AETER THE DAY PRECEDING THE SECOND MONDAY OF APRIL; HOW TO BE LISTED.— When any person, persons, company, or association unincorporated, shall commence or engage in the business of banking, after the day preceding the second Monday m April, in any year, the average value of whose personal property intended to be employed in such business shall not have been previously entered on the assessor's list for taxation, in said county, such person, persons, company, or association shall report to the auditor of the county the probable average value of the personal property by him or them intended to be employed in such business until the day preceding the second Monday in April thereafter, and shall pay into the treasury of such county a sum which shall bear the same proportion to the levy for all purposes, on the average value so employed, as the time from the day on which he or they shall commence or engage in such business as aforesaid, to the day preceding the second Monday in April next succeeding, shall bear to one year. (April 5, 1859, 56 v. 175, § 14.) § 2763.. SHARES TO BE LISTED.— All the shares of the stockholders in any incorporated bank or banking association, located in this state, whether now or here- after incorporated or organized under the laws of this state or of the United States, and all the shares of the stockholders in any unincorporated bank located in this state, the capital stock of which is divided into shares, shall be listed at their true value in money, and taxed in the city, ward, or village where such bank is located, and not elsewhere. (April 16, 1900, 94 v. 348; April 16, 1867, 64 v. 204, § 1.) Deduction of debts. The holder of national bank shares has no right under the statutes to deduct his legal bona fide debts from the value of such shares, , but he is legally bound to pay tax upon the I assessed value of such shares without deduc- tion. — Chapman v. First Nat. Bank, 56 Oh. St. 310 (1897); Niles v. Shaw, 50 Oh. St. 370 (1893.) ; Whitbeek v. Mercantile Nat. Bank, 127 IT. S. 193 (1888); Mercantile Nat. Bank V. Shields, 59 Fed. 952 (1894). Value of sbares. See Chapman v. First Nat. Bank, 56 Oh. St. 310 (1897). Fo^ver to tax national bank stock. The state has power to tax shares in the na- tional banks located in Ohio, subject to the limitations that such tax shall not exceed the rate imposed upon other moneyed capital of individuals, nor that imposed upon shares in state banks, as provided in the act of congress wf June 3, 1864.— Frazer v. Siebern, 16 Oh. St. 614 (1866) ; Cleveland Trust Co. t. Lander, 62 Oh. St. 266 (1900). See Mercantile Nat. Bank v. Hubbard, 98 Fed. 465 (1899). What shares taxed. Tne shares in national banks to be taxed are to be understood as' the individual prop- erty or choses of the stockholders, as contra- distinguished from aliquot parts of the capital and property of the bank, and as such may be taxed at their full value without deduction for the franchise, for real estate otherwi"" taxed or for untaxable bonds owned by the bank.— Frazer v. Siebern, 16 Oh. St. 614 (1866). 64 Private Corporations in Ohio. Taxation of Corporations — Banks, §§ 2763-3766. Remedy Tvlien tax is excessive. Where the tax on shares in national banks exceeds the rate of that imposed upon the banlvs of the state, its collection will only be enjoined upon payment of a sum which shall be a fair equivalent for the tax on state banks.— Frazer v. Siebern, 16 Oh. St. 614 (1866). § 5219, R. S. U. S. The restriction in § 5219, Revised Statutes of the United States, as to the taxation of national bank shares at a rate not greater tnan on other moneyed capitals, requires that both the rate per centum of taxation and the value of the assessment against such shares shall not be greater than on other moneyed capital in the hands of individual citizens of the state. — Cleveland Trust Co. v. Lander, 02 Oh. St. 266 (1900). Bank not liable for bach taxes. An agreement by a bank to pay the taxes > assessed on the shares of stockholders does not! make the bank liable for aHsets not returned or admitted by the bank or stockholders to b2 assessable, nor for any other than the current tax on the duplicate. Such agreement does not authorize the assessment of a back tax against the bank upon what is claimed to be newly-discovered resources not returned for back years. — Miller v. First Nat. Bank, 9 W. L. B. 353 (1883); Miller v. Fourth Xat. Bank, 12 W. L. B. 66 (1884). § 2763. TAX ON REAL ESTATE.— The real estate of any such bank or banking association shall be taxed in the place where the same may be located, the same as the real estate of individuals. (April 16, 1867, 64 v. 204, § 2.) § 2764. NAMES OF STOCKHOLDERS AND NUMBER OF SHARES HELD BY EACH. — There shall at all times be kept in the office where the business of such bank or banking association is transacted, a full and correct list of the names and residences of the stockholders therein, and the number of shares held by each, which shall be at all times during business hours open to the inspection of all officers who are or may be authorized to list or assess the value of such shares for taxation. (April 16, 1867, 64 V. 204, § 3.) § 2765. RETURN TO BE MADE BY CASHIER TO THE AUDITOR.— The cash- ier of each incorporated bank, or of each unincorporated bank whose capital stock is divided into shares held by the owners of such bank, shall make out and return to the auditor of the county in which every such bank is located, between the first and second Monday of May, annually, a report in duplicate under oath, exhibiting in detail, and under appropriate heads, the resources and liabilities of such bank, at the close of business on the Wednesday next preceding said second Monday, together with a. full statement of the names and residences of the stockholders therein, with the number of shares held by each, and the par value of each share. (April 16, 1900, 94 V. 347; April 12, 1877, 74 v. 88, § 1.) Shares must be listed in names of cwners. There is no authority in the statutes of the state, nor of the United States, for listing and valuing the shares in a national bank in the aggregate, and placing such aggregate on the tax list in the name of the bank. Such shares, when listed and valued for taxation, are required to be placed on the proper tax list in the names of the respective owners. — Miller v. First Nat. Bank, 46 Oh. St. 424 (1889). Correction of retnrn. The correction of returns made by the cash- ier of the bank to the countv auditor is pro- vided for by § 2769 and not by § 2782. E. S.— Miller v. First Nat. Bank, supra. § 2766. AUDITOR TO FIX VALUE OF BANK SHARES, AND REPORT TO BOARD OF EQUALIZATION. — Upon receiving such report the county auditor shall fix the total value of the shares of such banks according to their true value in money, and deduct froim the aggregate sum so found the value of the real estate included in the statement of resources as the same stands on the duplicate, and thereupon he shall make out and transmit to the annual state board of equalization for incorporated banks a copy of the report so made by the cashier, together with the valuation of such shares as so fixed by, the auditor. (March 9, 1883, 80 v. 54; April 13, 1880, 77 v. 191; R. S. 1880; April 12, 1877, 74 v. 88, § 2; April 16, 1867, 64 v. 204, § 5.)' Miscellaneous Provisions. 65 Taxation of Corporations — Bailroads, §§ 2770-2771. Discriminations in valuation. A petition for an injunction against a, tax on bank shares, which shows that the plain- tiff's property was valued only at eighty per cent, of its true value in money, while other property in the county was valued at only forty per cent, of its value, and avers that such valuations were unequal, unjust and illegal, does not state sufficient facts. — Wag- oner V. Loomis, 37 Oh. St. 571 (1881). See Pelton V. National Bank, 101 U. S. 143 (1879) ; Exchange Nat. Bank v. Miller, 19 Fed. 372 Bank v. Treasurer, 25 (1884); First Nat. Fed. 749 (1885). Deduction of liabilities. The holder of national bank shares has no right to deduct his legal bona fide delDts from the value of such shares, but he is bound to pay taxes on the full assessed value.— Chap- man V. First National Bank, 56 Oh. St. 310 (1897); Niles v. Shaw, 50 Oh. St. 370 (1893); Whitbeck v. Mercantile Nat. Bank, 127 U. S. 193 (1888). § 2769. PROCEEDINGS WHEN BANK FAILS TO MAKE EETUBN; PENALTY rOB, MAKING FALSE STATEMENT.— If any bank shall fail to make out and fur- nish to the county auditor the statement required, within the time herein fixed, it shall be the duty of said auditor to examine the books of said bank; also, to examine any officer or agent thereof under oath, together with such other persons as he may deem proper, and make out the statement. Any bank officer failing to make out and furnish to the county auditor the statement, or willfully making a false statement, as required in section twenty-seven hundred and sixty-five, shall be liable to a fine not exceeding one hundred dollars, together with costs and other expenses incurred by the auditor or other proper officer in obtaining such statement aforesaid; and said auditor shall have the same powers, and the probate judge of the county shall exer- cise the same powers, and perform the same duties in aid of the auditor in the perform- ance of his duties under this section, as are authorized by law in cases where the county auditor is informed, or has reason to believe, that any party has failed to make any return, or has made a false return for taxation; and the statement so made out by the auditor shall in all respects stand as the statement required to be made by the cashier. (April 16, 1867, 64 v. 204, § 9.) Correction of returns. The correction of returns made by the cash- ier of a bank is provided for by this section, and not by § 2782.— Miller v. First Nat. Bank, 46 Oh. St. 424 (1889). § 2770. BOARD OF APPRAISERS FOR RAILROAD COMPANY.— The county auditors of the several counties in this state in which any railroad company now has, or hereafter may have its track and roadway, or any part thereof, shall constitute a board of appraisers and assessors for such railroad company; any railroad company having its road, or any part thereof, in one county only, the auditor of such county shall constitute such board. (May 1, 1862, 59 v. 88, § 1.) § 2771. PRESIDENT OF BOARD; QUORUM; SECRETARY; RECORD OF VOTES; COPY OF MINUTES TO BE KEPT IN AUDITOR'S OFFICE.— The auditor of the county where such railroad company has its principal office, if such principal office is in this state, and if such principal office is not in this state, then the auditor of the county having the largest city or village upon the line of such road shall be the president of said board, whose duty it shall be to appoint the time and place for the meeting of such board, and notify the proper county auditors of the same, at least five days before the time appointed for such meeting. In the absence or inability of the president, the board shall appoint one of its members president pro tempore. In all meetings of any such board, a majority of such county auditors shall constitute a quorum, and a majority of those present at any meeting having a quorum shall decide all questions submitted. Each board shall appoint one of its number secretary, and full minutes of its proceedings shall be kept, which shall consist of a full and com- plete record of the votes of each member of said board. The valuation of the property shall be fixed only on motion made and duly seconded. On all such motions the yeas and nays shall be called, and each member's vote shall be recorded by the secretary. LAW GOV. PRIV. COR. — 5. 66 Private Corporations in Ohio. Taxation of Corporations — Railroads, §§ 2772-2773. Immediately after the board has adjourned, the secretary shall make a complete record of all the transactions of the proceedings of the board, and set forth therein the names and official capacity of the officials of the railroad present at such meeting. And a. certified copy of such proceedings, signed by the president and secretary thereof, shall be forwarded at once to the county auditor of each county constituting a member of said board, and the same shall be recorded in a book kept in the county auditor's office, subject to the inspection of any person during office hours, and the certified copy shall alike be kept on file in said county auditor's office, and for like examination. (May 1, 1862, 59 v. 88, § 2; April 30, 1891, 88 v. 417.) § 2772. BOARD OF VALUATION OF KAILBOAD TO MEET AITNTJALLY, IN MAY; DUTIES OF THE BOARD.— It shall be the duty of each board to meet in the month of May, in the present and each succeeding year, at such time as the president thereof may appoint; and if no meeting be appointed by him before the second Tues- day in May, the several county auditors shall meet on that day, in the place where the proper railroad for which said auditors constitute the board, as aforesaid, has its principal office, or in the principal city or village upon the line of such road, as the case may be, and proceed to ascertain all the personal property, which shall be held to include road bed, water and wood stations, and such other realty as is necessary to the daily running operations of the road, moneys, and credits of such company, and the undivided profits, reserved or contingent fund of said company, whether the same may be in moneys, credits, or in any manner invested, and the actual value thereof in money; and also locomotives and cars not belonging to the company, but hired for its use or run under its control on its road by a sleeping car company or other company; but as to such rolling stock not belonging to it, but under its control, the railroad company may return the same separate from its own property, and if so returned, the board shall fix the valuation of such property separated, but include the amount in the aggregate valuation. Such boards shall have power to require from the president, secretary, treasurer, receiver, and principal accounting officer of such road, a detailed statement, under oath, of all the items and particulars constituting such property, moneys, and credits, and the value thereof, and may examine the books and papers of such road, and any or all of its officers, receivers, servants, or agents, under oath, touching any matter relating to the same. Any county auditor present at such meeting is authorized and empowered to administer such oath. It shall be the duty of said board of appraisers and assessors to report annually, on or before the first Monday in the month of June, to the auditor of state, the amount assessed upon each railroad company, specifying the total sum, and amount dis- tributed to each county; which shall be by the auditor of state communicated to the general assembly, with his annual report, in tabular form. (April 5 1867 64 v 114, § 3.) ' ■ § 2773. PENALTY FOR OFFICERS, ETC., REFUSING TO COMPLY WITH REQUIREMENTS OF BOARD; CONTEMPT OF BOARD; PUNISHMENT.— Any president, secretary, receiver, accounting officer, servant, or agent, of any railroad ' company having any portion of its road-way in this state, who shall refuse to attend before the proper board of appraisers and assessors when required so to do or refuse to submit to the inspection of said board any books or papers of such railroad com- pany in his possession, custody, or control, or shall refuse to answer such questions as may be put to him by said board or its order, touching the business, property, moneys and credits, and the value thereof, of said railroad company, shall be guilty of a mis- demeanor, and, on conviction thereof, before any court of competent jurisdiction, shall be confined in the jail of the county not exceeding thirty days, and be fined in any sum not exceeding five hundred dollars and costs; and any president, secretary, receiver, accounting officer, servant, or agent, as aforesaid, so refusing, as aforesaid' shall be deemed guilty of contempt of such board, and may be confined by order of Miscellaneous Provisions. 67 Taxation of Corporations — Kailroads, §§ 2774-2776. said board in the jail of the proper county until he shall comply with such order, and pay the costs of his imprisonment. (May 1, 1862, 59 v. 88, § 4.) § 2774. APPOKTIONMENT OF VALXJATION OF RAILWAY PKOPEBTY — The value of such propertj, moneys and credits, of any railroad company, as found and determined by such ooard, shall be apportioned by said board among the several counties through which such road, or any part thereof, runs, so that to each county and to each city, village, township and district, or part thereof therein, shall be apportioned such part thereof as shall equalize the relative value of the real estate, structures, and stationary personal property of such company therein, in proportion to the whole value of the real estate, structures, and stationary personal property of such railroad company in this state; and so that the rolling stock, main track, road bed, supplies, moneys and credits of such company shall be apportioned in the same proportion that the length of such road in such county bears to the entire length thereof in all said counties or county, and to each city, village, and district, or any part thereof therein, provided that if the line of any railroad company is divided into separate divisions or branches, so much of the rolling stock of such company as belongs to or is used solely upon any one of such divisions or branches shall be appor- tioned in the same manner to the counties or county, and to each city, village, and dis- trict, or any part thereof therein, through which such branch or division runs, and tl?.e board shall certify to the county auditor of each county, and to each city, incorporated village, township and district, or any part thereof therein interested, the amount apportioned to his county, and the board shall make and forward a like certificate, together with all the reports of the various railroad officers, and other papers and evi- dence which formed the basis of their valuation, to the auditor of state, for the use of the state board of equalization of railroad property. It shall be the duty of the county auditor, upon receiving the certificate aforesaid, to apportion the amount therein stated to the cities, villages, townships, districts, or parts thereof: i->ut the auditor shall not put the same on the tax-list until he shall have been advised of the pction of said state authority, when the proper amounts shall be entered on the tax- lists. (April 27, 1885, 82 v. 160; R. S. 1880; March 16, 1867, 64 v. 58, § 1; May 1, 1862, 59 V. 88, § 5.) Validity — tax district. This section "is valid. A railroad passing through a taxing district created under the " one mile assessment pike law," it is subject to taxation in such district, in the proportion fixed under this section. — Railroad Co. v. Commissioners, 48 Oh. St. 249 (1891). Hoiv rolling stock on branches or divi- sions apportioned. See State ex rel. v. Aldridge, 47 W. L. B. 619 (1902). Telephone and telegraph companies. The principle of this section is substan- tially applied to telephone and telegraph com- panies. — State ex rel. v. Jones, 51 Oh. St. 492, 508 (1894). Construction of law in 1881. See Wabash, etc., Ey. Co. v. Kelsey, 11 W. L. B. 234 (1881). § 2775. COMPENSATION OF MEMBERS OF THE BOARD.— Each county auditor shall be' paid from the treasury of his county the sum of three dollars for each day's attendance as a member of any board aforesaid under this chapter, and five cents a mile going to and returning from its place of meeting. (May 1, 1862, 59 v. 88, § 7.) § 2776. HOW PORTION OF VALUE FOR THIS STATE FOUND WHEN PART OP ROAD IN ANOTHER. — When any railroad company has part of its road in this state and part thereof in any other state or states, the proper board shall take the value of such property, moneys, and credits of such company so found and determined, as aforesaid, and divide it in the proportion the length of such road in this state bears to the whole length of such road, and determine the principal sum for the value of such road in this state accordingly, equalizing the relative value thereof in this state, as above provided. (May 1, 1862, 59 v. 88, § 8.) 68 Private Corporations in Ohio. Taxation of Corporations — Express, Telegraph, Telephone, §§ 3777, 2778. § 2777. WHO DEEMED EXPRESS, TELEGRAPH OR TELEPHONE COMPANY. — Any person or persons, joint stock association or corporation, wherever organized or incorporated, engaged in the business of conveying to, from, or through this state, or any part thereof, money, packages, gold, silver, plate or other article by express, not including the ordinary lines of transportation of merchandise and property in this state, shall be deemed to be an express company; any person or persons, joint stock association or corporation, wherever organized or incorporated, engaged in the business of transmitting to, from, through, or in this state, telegraphic messages, shall be deemed to be a telegraph company; and any person or persons, joint stock association or corporation, wherever organized or incorporated, engaged in the busi- ness of transmitting to, from, through, or in this state, telephonic messages, shall be deemed to be a telephone company. (May 10, 1894, 91 v. 220; April 27, 1893, 90 V. 330; May 1, 1862, 59 v. 91, § 5.) Co».stitutionality. The act of 91 v. 237 relating to express companies was held constitutional. — Express Co. V. State, 55 Oh. Sf. 69 (1896); State ex rel. v. Jones, 51 Oh. St. 492 (1894) ; West- ern Union Co. v. Mayer, 28 Oh. St. 521 (1876); Adams Express Co. v. Poe, 61 Fed. 470 (1894). S 2778. ANNUAL STATEMENT TO AUDITOR OP STATE.— Every express, telegraph and telephone company defined in section 2777, doing business in this state, shall annually, between the first and thirty-first days of May, under the oath of the person constituting such company, if a person, or under the oath of the president, secretary, treasurer, superintendent or chief officer in this state of such association or corporation, if an association or corporation, make and file with the auditor of state a statement, in such form as the auditor of state may prescribe, containing the fol- lowing facts: 1. The name of the company. 2. The nature of the company, whether a person or parsons, or association or cor- poration, and under the laws of what state or country organized. 3. The location of its principal office. 4. The name and post-office address of the president, secretary, auditor, treajsurer and superintendent or general manager. 5. The name and post-office address of the chief officer or managiajg agent of the company in Ohio. 6. The number of shares of the capital stock. 7. The par value and market value, or if there be no market value, thei actual value of its shares of stock on the first day of May. 8. A detailed statement of the real estate owned by the company in Ohio, where situate, and the value thereof as assessed for taxation. 9. A full and correct inventory of the personal property, including moneys and credits, owned by the company in Ohio on the first day of May, where situate, and the value thereof. 10. The total value of the real estate owned by the company and situate outside of Ohio. 11. The total value of the personal property owned by the company and situate outside of Ohio. 12. In the case of telegraph and telephone companies, the whole length of their lines, and the length of so much of their lines as is without and is within the state of Ohio, which lines shall include what said telegraph and telephone companies control and use under lease or otherwise; also, the miles of wire in each taxing district in Ohio. 13. In the case of telegraph and express companies, the entire gross receipts of the company, from whatever source derived, for the year ending the first day of May, of business wherever done. 14. In the case of telegraph and express companies, the gross receipts for the Miscellaneous Provisions. 69 Taxation of Corporations — Express, Telegraph, Telephone, § 2778a. year ending the first day of May, from, whatever source derived, of each office within the state of Ohio, and the total gross receipts of the company for such period in Ohio. 15. In the case of express companies, the whole length of the lines of rail and water routes, over which the company did business on the first day of May, and the length of so much of said lines of land and water transportation as is without and is within Ohio, naming the lines within Ohio. 16. Such other facts and information as the auditor of state may require in the form of returns prescribed by him. Blanks for making the above statement shall be prepared, and, on application, furnished any company by the auditor of state. Express, telegraph and telephone companies shall not be required to inake returns under, and shall not be governed by the provisions of section 2744 of the Revised Statutes. (May 10, 1894, 91 v. 220; April 27, 1893, 90 v. 330; April 13, 1865, 62 v. 174, § 1.) Involuntary payment — what is. See Eatterman v. Express Co., 49 Oh. St. 608 (1892); Western Union Co. v. Mayer, 28 Oh. St. 521 (1876). When receipts from interstate com- merce taxable. Ratterman v. Express Co., 49 Oh. St. 608, 618 (1892); Western Union Co. v. Mayer, 28 Oh. St. 521 (1876); Express Co. v. State, 55 Oh. St. 69 (1896); Ratterman v. Western Union Telegraph Co., 127 U. S. 411 (1888); Adams Express Co. v. Auditor, 166 U. S. 186 (1897); Adams Express Co. v. Auditor, 165 U. S. 174 (1897); United States Express Co. V. Poe, 61 Fed. 475 (1894). § 2778a. STATE BOARD OF APPRAISERS AND ASSESSORS; ASSESSMENTS BY; CORRECTION THEREOF.— The auditor of state, treasurer of state and attor- ney-general shall constitute a board, named the state board of appraisers and assess- ors, of which board the auditor shall be ex officio president. In the absence or inability of the auditor, the board shall appoint one of its members president pro tempore. The board shall appoint a secretary and full minutes of its proceedings shall be kept. The board shall, annually, on the first Monday in June, meet in the office of the auditor of state, for the purpose of assessing the property of express, telegraph, and telephone companies in Ohio. On the meeting of the board, the auditor of state shall lay before the board the statements and schedules returned to him under sec- tion 2778. The said board shall proceed to ascertain and assess the value of the property of said express, telegraph, and telephone companies in Ohio, and in deter- mining the value of the property of said companies in this state, to be taxed within the state and assessed as herein provided, said board shall be guided by the value of said property as determined by the value of the entire capital stock of said com- panies, and such other evidence and rules as will enable said board to arrive at the true value in money of the entire property of said companies within the state of Ohio, in proportion which the same bears to the entire property of said companies, as deter- mined by the value of the capital stock thereof, and the other evidence and rules as aforesaid. The board may adjourn from time to time until the business before it is finally disposed of. In ease any company fails or refuses to make the statement required by law, or furnish the board any information requested, the board shall inform itself, as best it may, on the matters necessary to be known, in order to dis- charge its duties with respect to the assessment of the property of such company. At any time after the meeting of the board on the first Monday in June, and before the assessment of the property of any company is determined, any company or per- son interested shall have the right, on written application, to appear before the board and be heard in the matter of the valuation of the property of any company for tax- ation. After the assessment of the property of any company for taxation by the board, and before the certification by the auditor of state of the apportioned valua- tion to the several counties, as provided in section 2780, the board may, on the appli- cation of any interested person or company, or on its own motion, correct the assess- ment or valuation of the property of any company, in such manner as will, in its judg- 70 Private Corporations in- Ohio. Taxation of Corporations — Express, Telegraph, Telephone, § § 3779, 3780. ment, make the valuation thereof just and equal. The provisions of section 167 of the Revised Statutes shall apply to the correction of any error or over valuation in the assessment of property for taxation by the state board of appraisers and assessors, and to the remission of taxes and penalties illegally assessed thereon. (May 10, 1894, 91 V. 330; April 37, 1893, 90 v. 330.) See Western Union Tel. Co. v. Poe, 61 Fed. 449 (1894) ; Western Union Tel. Co. v. Poe, 64 Fed. 9 (1894). § 2779. PENALTY FOB, PAILUBE TO FILE STATEMENT; FXIBTHEB POW- EBS OF BOABD; PENALTY FOR BEFUSAL TO TESTIFY OB BEING BOOKS; STATUTES AS TO FALSE BETURNS APPLICABLE.— In case any company required to file a. statement under the provisions of section 3778, fails to make and file such statement on or before the thirty-first day of May, such company shall be subject to a penalty of five hundred dollars, and an additional penalty of one hun- dred dollars for each day's omission after the thirty-first day of May to file such statement, said penalty to be recovered by action in the name of the state, and, on collection, paid into the state treasury to the credit of the general revenue fund. The attorney-general, on the request of the state board of appraisers and assessors, shall institute such action against any company so delinquent in the court of common pleas of Franklin county. That the state board of appraisers and assessors shall have power to require the president, secretary, treasurer, receiver, superintendent or managing agent, or other ofiicer, or employe or agent, of any express, telegraph, and telephone company to attend before the board, and bring with him for the inspection of the board, any books or papers of such company in his possession, custody or control, and to testify under oath touching any matter relating to the business, property, moneys or credits and the value thereof, of such company. Any member of the board is authorized and empowered to administer such oath. Any officer, employe or agent of such company who shall refuse to attend before the board when required to do so, or shall refuse to bring with him and submit for the inspection of the board any books or papers of such company in his possession, custody or control, or shall refuse to answer any question put to him by the board or any member thereof, touching the business, property, moneys and credits and the value thereof, of such company, shall be guilty of a misdemeanor, and on conviction thereof before any court of competent jurisdiction shall be fined not more than five hundred dollars or imprisoned not more than thirty days, or both; and any officer, employe or' agent of such company so refusing, as aforesaid, shall be deemed guilty of contempt of such board, and may be confined, by order of said board, in the jail of the proper county until he shall comply with the requirement of the board and pay the costs of his imprisonment. The state board of appraisers and assessors shall have and may exercise all the powers possessed by county auditors under sections 2781 to 2785 inclusive, of the Revised Statutes; and said express, telegraph, and telephone companies shall be subject to all the pro- visions and penalties of said sections. (May 10, 1894, 91 v. 233; April 37, 1893, 90 V. 332; May 1, 1863, 59 v. 91, §§ 2, 3.) § 2780. REPORT OF BOARB; FILING OF STATEMENTS, ETC.; DEDUCTION OF VALUE OF REAL ESTATE; APPORTIONMENT AND TAXATION OF VALU- ATIONS. — ■ The state board of appraisers and assessors shall, on or before the first Monday in August, report to the auditor of state the total value of the property of express, telegraph and telephone companies in Ohio, as ascertained and assessed by the board; at the same time, the board shall file with the auditor of state the state- ments of the various companies and other papers before it. The auditor of state shall deduct from the total value of the property of each of said companies in Ohio the value, as assessed for taxation, of any real estate situate in Ohio and owned by such company. The value of the property of said companies in Ohio, after deducting the Miscellaneous Provisions. 71 Taxation of Corporations — Freight Line, Equipment, §§ 2780-7-3780-8. value of the real estate, shall be apportioned by the auditor of state among the sev- eral counties through or into which the lines of such telegraph or telephone com- panies run, so that to each county shall be apportioned such part of the entire valuation as will equalize the relative value of the property of the company therein, in propor- tion to the whole value of the property of the company in the state, and in the proportion that the length of the lines of wire owned by the company, or in the county bears to the whole length of the lines of wire in the state. The value of the property of any express company shall be apportioned by the auditor of state among the several counties in which the company does business, in the proportion that the gross receipts in each county bear to the entire gross receipts in the state. The auditor of state shall, on or after the fifteenth day of August, certify to the county auditor the amount apportioned to his county, and the county auditor, upon receiving such certificate, shall apportion the amount therein stated among the cities, villages, townships or other taxing districts, after the same method used for the apportionment of the valuation in the state among the counties; and the county auditor shall place the apportioned valuation on the tax duplicate, and taxes shall be levied and col- lected thereon at the same rate and in the same manner as taxes are levied and col- lected on other personal property in the taxing district in question. (May 10, 1894, 91 V. 223; April 27, 1893, 90 v. 332; February 24, 1863, 60 v. 11, § 1.) § 2780-7. Sec. 1. FREIGHT LIITE AND EQUIPMENT COMPANIES DEFINED. — Any person or persons, joint stock association or corporation, wherever organized or incorporated, engaged in the business of operating cars, not otherwise listed for taxation in Ohio, for the transportation of freight, whether such freight be owned by such company, or any other person or company, over any railway line or lines in whole or part within this state, such line or lines not being owned, leased or operated by such company, whether such cars be termed box, flat, coal, ore, tank, stock, gon- dola, furniture or refrigerator cars, or by some other name, shall be deemed to be a Irelght-line company; any person or persons, joint stock association or corporation, wherever organized, engaged in the business of furnishing or leasing cars, of what- soever kind or description, to be used in the operation of any railway line or lines, wholly or partially within this state, such line or lines not being owned, leased or operated by such company, and such cars not being otherwise listed for taxation in Ohio, shall be deemed to be an equipment company. (March 30, 1896, 92 v. 89.) § 2780-8. Sec. 2. ANNUAL STATEMENTS OF SAME; BLANKS; EXEMP- TIONS. — Every freight-line and equipment company defined in section one (1) (§ 2780-7) hereof, doing business or owning cars which are operated in this state shall, annually, between the first and thirty-first days of May, under the oath of the person constituting such company, if a person, or under the oath of the president, secretary, treasurer, superintendent or chief officer in this state of such association or corporation, if an association or corporation, make and file with the auditor of state a statement, in such form as the auditor of state may prescribe, containing the fol- lowing facts: 1. The name of the company. 2. The nature of the company, whether a person or persons, or association or cor- poration, and under the laws of what state or country organized. 3. The location of its principal office. 4. The name and post office address of the president, secretary, auditor, treasurer, and superintendent or general manager. 5. The name and post office address of the chief officer and managing agent of the company in Ohio. 6. The number of shares of the capital stock. 7. The par value and market value, or, if there be no market value, the actual value of the shares of stock on the first day of May, 72 Private Corporations in Ohio. Taxation of Corporations — Freight Idne, Equipment, § 2780-9. 8. A detailed statement of the real estate owned by the company in Ohio, where situate, and the value thereof as assessed for taxation. 9. The total value of the real estate owned by the company and situate outside of Ohio. 10. The whole length of the lines of railway over which the company runs its cars, and the length of so much of said lines as is without and is within the state of Ohio. 11. In the case of an equipment company, the whole number and value of the cars owned and leased by the company, classifying the cars according to kind; also, the whole length of the lines of railway, wherever located, operated by the companies (naming them), to which cars owned by such equipment (company) are leased, and the length of so much of said lines as is without and is within the state of Ohio, giv- ing the name and location of the lines wholly or partially within the state of Ohio. IS. Such other facts and information as the auditor of state may require in the form of returns prescribed by him. Blanks for making the above statement shall be prepared, and, on application, furnished any company by the auditor of state. Freight-line and equipment com- panies shall not be required to make returns, and shall not be governed by the pro- visions of section 2744 of the Revised Statutes. (March 30, 1896, 92 v. 89.) § 2780-9. Sec. 3. STATE BOAKI) OF AjePBAISERS AND ASSESSORS; MEM- BERS; OFFICERS; MINUTES; MEETING; RIGHT TO APPEAR, ETC.— The auditor of state, treasurer of state and attorney-general shall constitute a board named the state board of appraisers and assessors, of which board the auditor of state shall be ex of5.cio president. In the absence or inability of the auditor, the board shall appoint one of its members president pro tempore. The board shall appoint a secre- tary and full minutes of its proceedings shall be kept. The board shall, annually, on the first Monday in June, meet in the office of the auditor of state, for the purpose of determining the amount and value of the proportion of the capital stock of freight- line and equipment companies representing capital and property of such companies owned and used in Ohio. On the meeting of the board, the auditor of state shall lay before it the statements and schedules returned to him under section two (2) (§ 2780-8) hereof. The board shall proceed to ascertain and determine, on or before the second Monday in July, the amount and value of the proportion of the capital stock of freight-line and equipment companies, representing capital and property of such companies owned and used in Ohio, and in deteipmining the same, shall be guided in each case by the proportion of the capital stock of the company representing rolling stock, which the miles of railroad over which such company runs cars or its cars are run in Ohio bear to the entire number of miles in Ohio and elsewhere over which such company runs cars or its cars are run, and such other rules and evidence as will enable the board to determine, fairly and equitably, the amount and value of the capital stock of such company representing capital and property owned and used in the state of Ohio. The board may adjourn from time to time until the business before it is finally disposed of. In case any company fails or refuses to make the statement required by law, or furnish the board with any information requested, the board shall inform itself as best it may on the matters necessary to be known in order to dis- charge its duty under this act. At any time after the meeting of the board on the first Monday in June, and before the amount and value of the capital stock of any company representing capital and property owned and used in Ohio is determined any company or person interested shall have the right, on written application to appear before the board and be heard in the matter of determination. After fixing the amount and value of the capital stock of any company representing capital and property owned and used in Ohio, and before the certification to the auditor of state of such amount, as provided in section five (5) (§ 2780-11) hereof, the board may, on the application of any person or company interested, or on its own motion, review and Miscellaneous Provisions. 73 Taxation of Corporations — Freight Line, Equipment, §§ 2780-10-2780-11. correct its action in such manner as it may deem just and proper. (March 30, 1896, 92 V. 89.) § 2780-10. Sec. 4. PENALTY, RECOVEKY AND DISPOSITION OE SAME.— In case any comjjany required to file a statement under the provisions of section two (2) (§ 2780-8) hereof fails to make and file such statement on or before the thirty- first day of May, such company shall be subject to a penalty of five hundred dollars and an additional penalty of one hundred dollars for each day's omission after the thirty-first day of May to file such statement, said penalty to be recovered by action in the name of the state, and on collection paid into the state treasury to the credit of the general revenue fund. The attorney-general, on the request of the auditor of state, shall institute such action against any company so delinquent, in the court of common pleas at Franklin county, or of any county into or through which any rail- road line passes, over which the cars of such freight-line or equipment company are running. Service of summons may be made in the manner provided in section five (5) (§ 2780-11) of this act in suits for the collection of the tax against such company. The state board of appraisers and assessors shall have power to require the presi- dent, secretary, treasurer, receiver, superintendent or managing agent, or other officer, or employe or agent of any freight-line or equipment company, to attend before the board and bring with him, for the inspection of the board, any books or papers of such company in his possession, custody or control, and to testify under oath touching any matter relating to the organization, property and business of such company. Any member of the board is authorized and empow^ered to administer such oath. Any officer, employe or agent of such company who shall refuse to attend before the board when required to do so, or shall refuse to bring with him and submit, for the inspection of the board, any books or papers of such company in his possession, custody or control, or shall refuse to answer any question put to him by the board or any member thereof, touching the organization, business or property of such company, shall be guilty of a misdemeanor, and on conviction thereof before any court of com- petent jurisdiction, shall be fined not more than five hundred dollars or imprisoned not more than thirty days, or both; and any officer, employe or agent of such company, so refusing as aforesaid, shall be deemed guilty of contempt of such board and may be confined by order of such board, in the jail of the proper county until he shall com- ply with the requirements of the board and pay the costs of the imprisonment. (March 30, 1896, 92 v. 89.) § 2780-11. Sec. 5. ANNUAL REPOBT; ASSESSMENT AND COLLECTIONS; PENALTY. — The state board of appraisers and assessors shall, on the first Monday in August, report to the auditor of state the amounts fixed by it as the value of the capi- tal stock representing capital and property of freight-line and equipment companies employed and used in Ohio; at the same time the board shall file with the auditor of state the statements of the various companies and other papers before it. It shall be the duty of the auditor of state, in the month of November, annually, to charge and I collect from each freight-line and equipment company doing business or owning cars ' which are operated in this state, a sum, in the nature of an excise tax, to be computed by taking one per cent, of the amount fixed by the state board of appraisers and assess- I ors as the value of the proportion of the capital stock representing the capital and property of such company, owned and used in Ohio, and certified to the auditor of state, after deducting the value of the real estate of the company in Ohio, assessed and taxed locally, if any there be. All taxes collected by the auditor of state, under the provisions of this act, shall be paid into the state treasury and be credited to the general revenue fund. If any freight-line or equipment company fails or refuses to pay said tax during the month of November, the auditor of state shall add to the tax due a penalty of fifty per centum thereon, and shall forthwith proceed to collect the tax and penalty by any means provided by law for the collection of taxes by county treasurers, and for his services shall be allowed fifty per centum on the amount of 74 Private Corporations in Ohio. Taxation of Corporations — Sleeping Car, §§ 2780-12-2780-13. penalty collected, wMcli he is authorized to retain out of such amount. It shall be the duty of the attorney- general or any prosecuting attorney, on request of auditor of state, to prosecute any proceeding for the collection of such tax, which officer shall be allowed for his services five per centum on the total amount collected, to be retained and paid to him by the auditor of state. The balance of the amount col- lected shall be paid into the state treasury. Suit for the collection of such tax and penalty may be brought in the name of the state, in the county of Franklin, or in any county into or through which passes any railroad line over which the cars of such freight-line or equipment company are running; and service of summons against a freight-line or equipment company may be made upon any officer or agent of such company named in section 5044 of the Revised Statutes; or if such officer or agent can- not be found, then upon any conductor or officer, agent or employe of such company, in charge of any car owned and used by such company in any county in this state in which any railroad line over which the cars of such freight-line or equipment com- pany are running is located, or through which it passes. (March 30, 1896, 92 v. 89.) § 2780-12. Sec. 1. SLEEPING-CAR COMPANY DEFINED.— Any person or persons, joint stock association or corporation, wherever organized or incorporated, engaged in the business of operating cars, not otherwise listed for taxation in Ohio, for the transportation, accommodation, comfort, convenience or safety of passengers, on or over any railway line or lines, in whole or part within this state, such line or " lines not being owned, leased or operated by such company, whether such cars be termed sleeping, palace, parlor, chair, dining or buffet-cars, or by some other name, shall be deemed to be a sleeping car company. (May 21, 1894, 91 v. 408.) § 2780-13. Sec. 2. ANNUAL STATEMENT.— Every sleeping car company defined in section one (1) (§ 2780-12) hereof, doing business or owning cars which are operated in this state shall, annually, between the first and thirty-first days of May, under the oath of the person constituting such company, if a person, or under the oath of the president, secretary, treasurer, superintendent or chief officer in this state of such association or corporation, if an association or corporation, make and file with the auditor of state a statement, in such form as the auditor of state may prescribe, containing the following facts: 1. The name of the company. 2. The nature of the company, whether a person or persons, or association or cor- poration, and under the laws of what state or country organized. 3. The location of its principal office. 4. The name and post office address of the president, secretary, auditor, treasurer, and superintendent or general manager. 5. The name and post office address of the chief officer or managing agent of the company in Ohio. 6. The number of shares of the capital stock, and the name and post office address of each stockholder with the number of shares owned by each. 7. The par value and the market value, or, if there be no market value the actual value of the shares of stock on the first day of May. 8. A detailed statement of the real estate owned by the company in Ohio, where situate and the value thereof as assessed for taxation. 9. The total value of the real estate owned by the company and situate outside of Ohio. 10. The whole length of the lines of railway over which the company runs its cars, and the length of so much of said lines as is without and is within the state of Ohio. Blanks for making the above statement shall be prepared, and, on application furnished any company by the auditor of state. Sleeping-car companies shall not be required to make returns, and shall not be governed by the provisions of section S744 of the Revised Statutes. (May 21, 1894, 91 v. 408.) Miscellaneous Provisions. 75 Taxation of Corporations — Sleeping Car, U 2780-14^2780-15. § 2780-14. Sec. 3. STATE BOABD OF APPBAISEB.S AND ASSESSORS; MEMBERS; POWERS, ETC. — The auditor of state, treasurer of state and attorney- general shall constitute a board named the state board of appraisers and assessors, of which board the auditor of state shall be ex officio president. In the absence or inability of the auditor, the board shall appoint one of its members president pro tempore. The board shall appoint a secretary, and full minutes of its proceedings shall be kept. The board shall, annually, on the first Monday in June, meet in the office of the auditor of state, for the purpose of determining the amount and value of (the) proportion of the capital stock of sleeping-car companies representing capital and property of such companies owned and used in Ohio. On the meeting of the board, the auditor of state shall lay before it the statements and schedules returned to him under section two (2) (§ 2780-13) hereof. The board shall proceed to ascer- tain and determine, on or before the second Monday in July, the amount and value of the proportion of the capital stock of sleeping-car companies, representing capital and property of such companies, owned or used in Ohio, and in determining the same, shall be guided in each case by the proportion of the capital stock of the company repre- senting rolling-stock, which the miles of railroad over which such company runs cars in Ohio bear to the entire number of miles in Ohio and elsewhere over which such company runs cars, and such other rules and evidence as will enable the board to determine, fairly and equitably, the amount and value of the capital stock of such company representing capital and property owned and used in the state of Ohio. The board may adjourn from time to time until the business before it is finally dis- posed of. In case any company fails or refuses to make the statement required by law, or furnish the board with any information requested, the board shall inform itself as best it may on the matters necessary to be known in order to discharge its duty under this act. At any time after the meeting of the board on the first Monday in June, and before the amount and value of the capital stock of any company repre- senting capital and property owned or used in Ohio, is determined, any company or person interested shall have the right, on written application, to appear before the board and be heard in the matter of such determination. After the fixing of the amount and value of the capital stock of any company representing capital and prop- erty owned or used in Ohio, and before the certification to the auditor of state of such amount, as provided in section five (5) (§ 2780-16) hereof, the board may, on the application of any person or company interested, or on its own motion, review and correct its action in such manner as it may deem just and proper. (May 21, 1894, 91 V. 408.) § 2780-15. Sec. 4. PENALTY. — In case any company required to file a state- ment under the provisions of section two (2) (§ 2780-13) hereof, fails to make and file such statement on or before the thirty-first day of May, such company shall be subject to a penalty of five hundred dollars and an additional penalty of one hundred dollars for each day's omission after the thirty-first day of May to file such statement, said penalty to be recovered by action in the name of the state, and on collection paid into the state treasury to the credit of the general revenue fund. The attorney-gen- eral, on the request of the auditor of state, shall institute such action against any com- pany so delinquent, in the court of common pleas of Franklin county, or of any county into or through which any railroad line passes, over which such sleeping-car company is running its cars. Service of summons may be made in the manner pro- vided in section five (5) (§ 2780-16) of this act in suits for the collection of the tax against such company. The state board of appraisers and assessors shall have power to require the president, secretary, treasurer, receiver, superintendent or managing agent, or other officer, or employe or agent of any sleeping-car company, to attend before the board and bring with him, for the inspection of the board, any books or papers of such company in his possession, custody or control, and to testify under oath touching any matter relating to the organization, property and business of such 76 Private Corporations in Ohio. Taxation of Corporations — Sleeping Car, §§ 2780-16-3780-17. company. Any member of the board is authorized and empowered to administer such oath. Any officer, employe or agent of such company who shall refuse to attend before the board when required to do so, or shall refuse to bring with him and submit, for the inspection of the board any books or papers of such company in his possession, custody or control, or shall refuse to answer any question put to him by the board or any member thereof, touching the organization, business or property of such com- pany, shall be guilty of a misdemeanor, and on conviction thereof before any court of competent jurisdiction shall be fined not more than five hundred dollars or impris- oned not more than thirty days or both; and any officer, employe, or agent of such company so refusing, as aforesaid, shall be deemed guilty of contempt of such board and may be confined, by order of such board, in the jail of the proper county, until he shall comply with the requirements of the board and pay the costs of his imprison- ment. (May 21, 1894, 91 v. 408.) § 2780-16. Sec. 5. KEPOET; FILING OF STATEMENTS, ETC.; DISPOSI- TION OF TAX; SUIT TO COLLECT.— The state board of appraisers and assessors shall, on the first Monday in August, report to the auditor of state the amounts fixed by it as the value of the capital stock representing capital and property of sleeping-car companies employed and used in Ohio; at the same time, the board shall file with the auditor of state the statements of the various companies and other papers before it. It shall be the duty of the auditor of state, in the month of November, annually, to charge and collect from each sleeping-car company doing business or owning cars which are operated in this state, a sum, in the nature of an excise tax, to be com- puted by taking one per cent, of the amount fixed by the state board of appraisers and assessors as the value of the proportion of the capital stock representing the capital and property of such company, owned or used in Ohio, and certified to the auditor of state, after deducting the value of the real estate of the company in Ohio, assessed and taxed locally, if any there be. All taxes collected by the auditor of state, under the provisions of this act, shall be paid into the state treasury and be credited to the general revenue fund. If any sleeping-car company fails or refuses to pay said tax during the month of November, the auditor of state shall add to the tax due a penalty of fifty per centum thereon, and shall forthwith proceed to collect the tax and penalty by any means provided by law for the collection of taxes by county treasurers, and for his services shall be allowed five per centum on the amount of penalty collected, which he is authorized to retain out of such amount. It shall be the duty of the attorney-general or any prosecuting attorney, on request of the auditor of state, to prosecute any proceeding for the collection of such tax, which officer shall be allowed for his services, five per centum on the total amount collected, to be retained and paid to him by the auditor of state. The balance of the amount collected shall be paid into the state treasury. Suit for the collection of such tax and penalty may be brought in the name of the state, in the county of Franklin, or in any county into or through which passes any railroad line over which such sleeping-car company is run- ning its cars; and service of summons against a sleeping-car company may be made upon any officer or agent of such company named in section 5044 of the Revised Statutes, or, if such officer or agent cannot be found, then upon any conductor, or officer, agent or employe of such company, in charge of any car owned and used by such sleeping-car company in any county in this state in w^hich any railroad line over which such sleeping-car company is running its cars is located, or through which it passes. (May 21, 1894, 91 v. 408.) § 2780-17. ELECTKIC LIGHT, GAS, NATURAL GAS, PIPE-LINE, WATER- WORKS, STREET, SUBURBAN OR INTERURBAN RAILROAD, EXPRESS, TELEGRAPH, TELEPHONE, MESSENGER OR SIGNAL, UNION DEPOT, AND RAILROAD COMPANIES DEFINED. — That any person or persons, joint stock asso- ciation or corporation, wherever organized or incorporated, when engaged in the Miscellaneous Provisions. 77 Taxation of Corporations — Sleeping Car, § 2780-18. business of supplying electricity for light, heat or power purposes to consumers within this state, shall be deemed to be an electric light company; when engaged in the business of supplying artificial gas for lighting or heating purposes to consumers within this state, shall be deemed to be a gas company; when engaged in the business of supplying natural gas for lighting, heating or power purposes to consumers within this state, shall be deemed to be a natural gas company; when engaged in the busi- ness of transporting natural gas or oil through pipes or tubing, either wholly or partially, within this state, shall be deemed to be a pipe-line company; when engaged in the business of supplying water, through pipes or tubing, or in a similar manner, to consumers within this state, shall be deem.ed to be a waterworks company; when engaged in the business of operating a street, suburban or interurban railroad, either wholly or partially within this state, whether the cars used in such business be pro- pelled by animals, steam, cable, electricity, or other motor shall be deemed to be a street, suburban or interurban railroad company; when engaged in the business of conveying to, from or through this state, or any part thereof, money, packages, gold, silver, plate or other article, by express, not including the ordinary lines of transpor- tation of merchandise and property in this state, shall be deemed to be an express company; when engaged in the business of transmitting to, frona, through, or in this state, telegraphic messages, shall be deemed to be a telegraph company; when engaged in the business of transmitting to, from, through, or in this state, telephonic messages, shall be deemed to be a telephone company; when engaged in the business of supply- ing messengers or of signaling or calling by electrical apparatus, or in similar manner, for any purpose, shall be deemed to be a messenger or signal company; when engaged in the business of operating a union depot or station for railroad purposes, shall be deemed to be a union depot company; when engaged in the business of operating a railroad, either wholly or partially within this state, whether on rights of way ■acq^uired and held exclusively by such company or otherwise, shall be deemed to be a railroad company. (April 15, 1902, 95 v. 136; March 19, 1896, 92 v. 79.) § 2780-18. ANNTJAX STATEMENTS OE SAME.— Every electric light, gas, natural gas, pipe-line, waterworks, street, suburban or interiirban railroad, express, telegraph, telephone, messenger or signal, and union depot company defined in section (1) one (§ 2780-17) hereof, doing business in this state shall, annually, between the first and thirty-first days of May, and every such railroad company shall, annually, on or before the first day of September, under the oath of the person constituting such company, if a person, or under the oath of the president, secretary, treasurer, superin- tendent or chief officer in this state, of such association or corporation, if an associ- ation or corporation, make and file with the auditor of state a statement, in such form as the auditor of state may prescribe, containing the following facts: First. The name of the company. Second. The nature of the company, whether a person or persons, or association or corporation, and under the laws of what state or country organized. Third. The location of its principal office. Fourth. The name and post-office address of the president, secretary, auditor, treasurer and superintendent or general manager. Eif th. The name and post-office address of the chief officer or managing agent of the company in Ohio. Sixth. In the case of express companies the entire receipts (including all sums earned or charged, whether actually received or not) for business done within this state of each agent of such company doing business in this state (giving the name of the office) for the year then next preceding the first day of May, for and on account of such company, including its proportion of gross receipts for business done by such company within this state in connection with other companies; also, the total amount of such receipts for business done within this state. Seventh. In the case of telegraph and telephone companies, the entire gross receipts (including all sums earned or charged, whether actually received or not) for the year then next preceding the first day of May, from whatever source derived, 78 Private Corporations in Ohio. Taxation of Corporations — Sleeping Car, § 2780-19. whether message, telephone tolls, rentals, or otherwise, for business done within this state of each ofSce within this state (giving the name of the ofaoe) and the total gross receipts of the company for such period in Ohio from, business done within Ohio. Eighth. In the case of each railroad situated wholly within Ohio, the gross earn- ings from its operation, and in the case of each railroad located partly within and partly without Ohio, the gross earnings from the operation of the entire line, for the year ending the thirtieth day of June next preceding, with the miles of line within Ohio, and the miles of line without Ohio. Ninth. In the case of each street, suburban or interurban railroad situated wholly within Ohio, the gross earnings from its operation and in the case of each street, suburban or interurban railroad located partly within and partly without Ohio, the gross earnings from the operation of the entire line, for the year ending the first day of May next preceding, with the miles of line within Ohio, and the miles of line without Ohio. Tenth. In the case of companies, other than express, street, suburban and inter- urban railroads, and railroads, the entire gross receipts of the company (including all sums earned or charged, whether actually received or not) for business done within this state for the year then next preceding the first day of May, including the com- pany's proportion of gross receipts for business done by it within, this state in con- nection with other companies. Eleventh. Such other facts and information as the auditor of state may require in the form of return prescribed by him. Blanks for making the above statement shall be prepared, and, on application, furnished any electric light, gas, natural gas, pipe-line, waterworks, street, suburban or interurban railroad, express, telegraph, telephone, messenger or signal, union depot and railroad company, by the auditor of state. (April 15, 1902, 95 v. 137; March 19, 1896, 92 V. 79.) § 2780-19. STATE BOARD OE APPRAISERS AND ASSESSORS; MEMBERS; OFFICERS; MINUTES; MEETING; RIGHT TO APPEAR, ETC.— The auditor of state, treasurer of state, attorney-general and secretary of state shall constitute a board, named the state board of appraisers and assessors, of which board the auditor of state shall be ex officio president. In the absence or inability of the auditor, the board shall appoint one of its members president pro tempore. The board shall appoint a secretary and full minutes of its proceedings shall be kept. The board shall, annu- ally, on the first Monday in June, meet in the office of the auditor of state, and there- upon, or when received, the auditor of state shall lay before the board the statements and schedules returned to him under section 2780-18 of the Revised Statutes of Ohio. The reports made by railroad and telegraph companies to the commissioner of rail- roads and telegraphs may be regarded and treated by the board as reports made to it, and the board shall have power at any time to call upon such commissioner for information. The board may also consider the reports filed with the auditor of state by express, telegraph and telephone companies under the provisions of section twenty- seven hundred and seventy-eight. Revised Statutes, of Ohio. The board shall proceed to ascertain and determine, on or before the second Monday in July, the entire gross receipts of electric light, gas, natural gas, pipe-line, waterworks, express, tele- graph, telephone, messenger or signal, and union depot companies for business done within Ohio, for the year then next preceding the first day of May, and the amounts ascertained by said board shall, in such instance, be held and deemed to be " the gross receipts of such electric light, gas, natural gas, pipe-line, waterworks, express, tele- graph, telephone, messenger or signal, and union depot company, for business done within Ohio " for the year under consideration. The board shall further proceed to ascertain and determine, on or before the first Monday in October, the gross earn- ings' from its operation within Ohio of each railroad company whose line is wholly or partially within this state, for the year then next preceding the thirtieth day of Miscellaneous Provisions. 79 Taxation of Corporations — Sleeping Car, § 3780-20. June, and the amount ascertained by said board shall be held and deemed to be " the gross earnings of such railroad company from its operation within Ohio " for the year under consideration. In ascertaining the gross earnings from its operation within Ohio of a railroad company whose line lies partly within and partly without this state, the gross earnings from its operation of the entire line or system, shall be divided by the total number of miles operated to obtain the average gross earnings per mile, and the gross earnings from the operation within this state shall be taken to be the average gross earnings per mile m.ultiplied by the number of miles operated within this state. The board shall further proceed to ascertain and determine, on or before the second Monday in July, the gross earnings from its operation, within Ohio of each street, suburban or interurban railroad company whose line is wholly or partially within this state, for the year then next preceding the first day of May, and the amount so ascertained by said board shall be held and deemed to be " the gross earnings of such street, suburban or interurban railroad company from its operation within Ohio " for the year under consideration. In ascertaining the gross earnings from its operation within Ohio of a street, suburban or interurban railroad company whose line lies partly within and partly without this state, the gross earnings from its operation of the entire line or system, shall be divided by the total number of miles operated to obtain the average gross earnings per mile, and the gross earnings from the operation within this state shall be taken to be the average gross earnings per mile, multiplied by the number of miles operated within this state. The board may adjourn from time to time, until the business before it is finally disposed of. In case of failure or refusal of any company to make the statement required by law, or furnish the board any information requested by it, the board shall inform itself, as best it may, on the matters necessary to be known, in order to discharge its duties under this act. And at any time, after the meeting of the board on the first Monday in June, and before the gross receipts of any company other than street, suburban or interurban railroad or railroad, for business done within Ohio, or the gross earn- ings from its operation within Ohio, of any street, suburban or interurban railroad or railroad company are determined, any company or person interested shall have the right, on written application, to appear before the board and be heard in the matter of such determination. After the determination of the amount of the gross receipts of any company, other than railroad, for business don© within Ohio, or of the gross earnings from its operation within Ohio, of any railroad company, and before the certi- fication to the auditor of state of such amount, as provided in section five (5) (§ 2780- 21) hereof, the board may, on the application of any person or company interested or on its own motion, review and correct its finding in such manner as may seem to it to be just and proper. (April 15, 1902, 95 v. 138; March 19, 1896, 92 v. 79.) § 2780-20. PENALTY; EECOVEKY AND DISPOSITION OF SAME.— In case any company required to file a statement under the provisions of section 2780-18 of the Revised Statutes of Ohio fails to make and file such statement on or before the thirty-first day of May, such company shall be subject to a penalty of five hun- dred dollars, and an additional penalty of one hundred dollars for each day's omission after the thirty-first day of May to file such statement, said penalty to be recovered by action in the name of the state, and, on collection, paid into the state treasury to the credit of the general revenue fund. The attorney-general, on the request of the auditor of state, shall institute such action against any company so delinquent in the court of common pleas of Franklin county, or in any county in which such company does business and shall be allowed for his services five per centum on the amount collected, to be retained by him and the balance paid into the state treasury. The state board of appraisers atfd assessors shall have power to require the president, . secretary, treasurer, receiver, superintendent or managing agent, or other officer, or employe or agent, of any electric light, gas, natural gas, pipe-line, waterworks, street, suburban or interurban railroad, express, telegraph, telephone, messenger or signal, union depot and railroad company to attend before the board, and bring with him 80 Private Corporations in Ohio. Taxation of Corporations — Sleeping Car, § 2780-21. ; for the inspection of the board, any books or papers of such company in his possession ', or control, and to testify under oath touching any matter relating to the organization or business of such company. Any member of the board is authorized and empowered to administer such oath. Any oflScer, employe, or agent of such company, who shall refuse to attend before the board when requested to do so, or shall refuse to bring with him. and submit for the inspection of the board any books or papers of such company in his possession, custody or control, or shall refuse to answer any question put to him by the board or any member thereof, touching the organization or business of such company, shall be deemed guilty of a misdemeanor, and on conviction shall be fined not more than five hundred dollars or imprisoned not more than thirty days, or both, and any officer, employe or agent of such company so refusing, as aforesaid, shall be guilty of contempt of such board, and may be confined, by order of such board, in the jail of the proper county until he shall have complied with the require- ment of the board and paid the cost of his imprisonment. (April 15, 1902, 95 v. 140; March 19, 1896, 92 v. 79.) § 2780-21. ANNUAL BEPOBTS; ASSESSMENTS AND COLLECTION; PEN- ALTY. — The board of assessors and appraisers shall, on the first Monday in August, report to the auditor of state the amount of the gross receipts of electric light, gas, natural gas, pipe-line, waterworks, express, telegraph, telephone, messenger or signal and union depot companies for business done within the state of Ohio and the amount of the gross earnings from its operation within Ohio of each street, suburban or interurban railroad company, for the year then next preceding the first day of May, and on the first Monday in October, the board shall report to the auditor of state the amount of the gross earnings from its operation within Ohio of each railroad company for the year then next preceding the thirtieth day of June. At the same time the Tjoard shall file with the auditor of state the statements of the various companies and other papers before it. It shall be the duty of the auditor of state, in the month of November, annually, to charge and collect from each electric light, gas, natural gas, pipe-line, waterworks, express, telegraph, telephone, messenger or signal and union depot company doing biisiness in this state, a sum, in the nature of an excise tax, to be computed by taking one per centum of the amount fixed by the state board of appraisers and assessors as the gross receipts of such company for business done within the state of Ohio for the year then next preceding the first day of May, and certified to the auditor of state; and from each street, suburban or interurban rail- road company doing business in this state, a sum in the nature of an excise tax, to be computed by taking one per cent, of the amount fixed by the state board of appraisers and assessors as the gross earnings from its operation within Ohio of such company for the year then next preceding the first day of May and certified to the auditor of state; and from each, railroad company doing business in this state a sum in the nature of an excise tax, to be computed by taking one per cent, of the amount fixed by the state board of appraisers and assessors as the gross earnings from its operation within Ohio of such company for the year then next preceding the thirtieth day of June, and certified to the auditor of state. Provided, nothing contained in this act shall exempt or relieve electric light, gas, natural gas, pipe-line, waterworks street, suburban or interurban railroad, express, telegraph, telephone, messenger or! signal, union depot and railroad companies from the assessment and taxation of their r tangible property in the manner authorized and provided by law. All taxes collected by the auditor of state under the provisions of this act, shall be paid into the state" treasury, and be credited to the general revenue fund. If any electric light, gas natural gas, pipe-line, waterworks, street, suburban or interurban railroad, express, telegraph telephone, messenger or signal, union depot and railroad company fails or refuses to pay said tax during the month of November, the auditor of state shall add to the tax due a penalty of fifty per cent, thereon, and shall forthwith proceed to collect tax and penalty with interest at the rate of six per cent, per annum by any means provided Miscellaneous Provisions. 81 Taxation of Corporations — Banks, §§ 2808, 2809. by law for the collection of taxes by county treasurers, and for his services shall be allowed five per cent, on the total amount collected, which he is authorized to retain. It shall be the duty of the attorney-general, or any prosecuting attorney, on request of the auditor of state, to prosecute any proceedings for the collection of such tax, which officer shall be allowed for his services five per cent, on the total amount col- lected, to be retained and paid to him by the auditor of state. The balance of the amount collected shall be paid into the state treasury. Suits for collection of such tax may be brought in the name of the state in Franklin county, or in any county in which such electric light, gas, natural gas, pipe-line, waterworks, street, suburban or interurban railroad, express, telegraph, telephone, messenger or signal, union depot and railroad company is doing business or the line of such street, suburban or interurban railroad company or railroad company is located. In case the tax herein authorized to be charged and collected against any class of companies defined in the first section (§ 2780-17) of this act, engaged in any class of business men- tioned therein, shall, for any reason, be declared invalid, such invalidity shall in no wise affect the validity of the law as applicable to any other class or classes of companies defined in said section nor shall the abrogation or repeal of any section or clause of this act be held to abrogate or repeal any other section or clause thereof. (April 15, 1902, 95 v. 141; March 19, 1896, 92 v. 79.) § 2780-22. EXEMPTION OP MTJNICIPAIilTIES.— This act shall not be con- strued so as to require any municipal corporation within the state to make any return or pay any taxes under any provision of this act. (April 15, 1902, 95 v. 143; March 19, 1896, 92 v. 79.) § 2780-23. REPOETS WHERE FILED.— During the month of October of each year, the auditor of state shall file with the secretary of state a written statement containing the name of each company which has complied with the provisions of this act during the year next preceding, and such facts respecting it within his knowl- edge, which are required by law to be annually filed with the secretary of state by corporations other than those included within the provisions of this act. (April 15, 1902, 95 V. 143.) § 2808. STATE BOARD FOR BANKS; HOW CONSTITUTED.— The governor, auditor of state, and attorney-general shall constitute a board for the equalization of the shares of incorporated banks, and also the shares of unincorporated banks whose capital is divided into shares, each of which shares is an aliquot part of the capital so divided, and for this purpose they shall meet on the third Tuesday of June, annually, at the of5ce of the auditor of state, and examine the returns of said banks to the county auditors and the value of said shares as fixed by the county auditors, as the same shall have been reported by the county auditors to the state auditor. (March 26, 1902, 95 V. 71; March 9, 1883, 80 v. 54; April 13, 1880, 77 v. 191; R. S. 1880; April 12, 1877, 74 v. 88.) Constitutionality and construction. Cummings v. National Bank, 101 U. S. 153 ; Whitbeek v. Mercantile Bank, 127 U. S. 193. "PovreTS, notice, records, adjournment, remedy. See Euclid Avenue Bank v. Hubbard, 22 O. C. C. 20 (1901). § 2809. POWERS OF BOARD. — Said board shall hear complaints and equalize the value of said shares according to the rules prescribed by their title for valuing and equalizing the values of real and personal property, and if in the judgment of the board, or a majority of them, the aggregate value of all the bank property so reported to said board by the county auditors is below its true value in money, they may increase or diminish the value of said shares by such a per cent, as will equalize said shares to their true value in money; provided that said board shall not increase or LAW GOV. PRIV. COR. — 6. 82 Private Corporations in Ohio. Taxation of Corporations — Banks, §§ 2810-2842. reduce th.e grand aggregate value of bank shares as returned by tbe several county auditors by more than twenty (20) per centum. (March. 9, 1883, 80 v. 54; April 13, 1880, 77 V. 191; R. S. 1880; April 12, 1877, 74 v. 88, § 5.) § 2810. STATE ATTDITOB, TO REPOET TO COITNTY AUDITORS.— The auditor of state shall forthwith after such equalization shall have been made certify to the auditors of the proper counties the valuation, as equalized, of the shares of banks situated in such counties, which valuation shall be put on the proper tax-list. (March 9, 1883, 80 V. 54; April 13, 1880, 77 v. 191; R. S. 1880; April 12, 1877, 74 v. 88, § 6.) § 2811. HOW CONSTITUTED, AND THEIR MEETING.— The auditor of state, treasurer of state, commissioner of railroads and telegraphs and the attorney-general, shall also constitute a board of equalization of the values of the property of railroad companies as the same are fixed by the county auditors; and for this purpose they shall meet at the office of the auditor of state, on the Wednesday after the tenth day of June, annually, and examine the returns and documents sent to the auditor of state by the boards of county auditors in this behalf. (March 17, 1896, 92 v. 72; March 16, 1867, 64 v. 58, § 1.) Board of equalization. This board is not board of appraisal. — State ex rel. v. Annual Board, 65 Oh. St 544 (1902). § 2812. THEIR POWERS. — The said board shall hear complaints and equalize said values by adding to the valuation of the property of such companies as have been, undervalued, and deducting from the valuation of the property of such as have been overvalued: provided, that the board, in such equalization, shall not reduce the aggregate of the value of the property of railroad companies within the state below the amount returned by the board of county auditors. (March 16, 1867, 64 v. 58, § 1.) § 2839. LIEN ON BANK SHARES; UNLAWFUL TO TRANSFER STOCK UNTIL DELINQUENT TAXES ARE PAID. — Any taxes assessed on any shares of stock or the value thereof, of any bank or banking association, shall be and remain, a lien on such shares from the first Monday of May in each year until such taxes are paid; and in case of the non-payment of such taxes at the time required by law by any shareholder, and after notice received of the county treasurer of the non-pay- ment of such taxes, it shall be unlawful for the cashier or other officer of such bank or banking association to transfer or permit to be transferred the whole or any portion of said stock, until the delinquent taxes thereon, together with costs and penalties, shall be paid in full; and no dividend shall be paid on any stock so delinquent, so long as such taxes, penalties, and costs, or any part thereof, remain due and unpaid. (April 16, 1867, 64 v. 204, § 6.) § 2840. BANK MAY PAY TAXES AND DEDUCT AMOUNT FROM DIVIDEND. — It shall be lawful for any such bank or banking association to pay to the treasurer of the county in which such bank or banking association may be located, the taxes that may be assessed upon its shares, as aforesaid, in the hands of its shareholders, respectively, and deduct the same from any dividends that may be due or may thereafter become due on any such shares, or deduct the same from any funds in its possession belonging to any shareholder, as aforesaid. (April 16, 1867, 64 v. 204, § 7.) § 2842. AGENT OF EXPRESS OR TELEGRAPH COMPANY TO PAY TAXES OF THE COMPANY; ONE MAY PAY FOR ALL THE OFFICES OF THE COUNTY. — The agent of every express or telegraph company shall retain in his hands for such company, and pay to the county treasurer, the amount of all taxes assessed against such company, and in case of the default of payment, the treasurer shall proceed to collect the same as in other cases of delinquent personal property tax: provided that Miscellaneous Provisions. 83 nailroads — Lien, etc., on, § 3307. where there is more than one such agent of the same company in one county, the agent thereof in the principal city, town, or village of such county, may assume the payment of such tax, and upon so doing, the other agents in the same county shall not be required to retain funds to pay the same. (May 1, 1862, 59 v. 91, § 6.) § 2843. TJNLAWFUL TO ACT AS AGENT OF OK PERFORM SERVICES FOR CERTAIN COMPANIES WHEN TAXES DUE AND UNPAID FOR TWENTY DAYS; PENAIiTIES. — If the taxes assessed against any express company, telegraph com- pany, telephone company, or insurance company, in any county in this state, shall remain due and unpaid to the treasurer of such county, for the period of twenty days after the time provided by law for the payment thereof, it shall be unlawful for any person or persons, or corporation, to act as agents, or do or transact any business for such company so in default to such county, until said tax, and interest, and penalty is fully paid; any person, or agent, manager or clerk of any corporation, who shall, after such default, directly or indirectly act as agent of, or do or transact any busi- ness whatever on account of or for the benefit of such company so in default, other than the payment of said tax, shall be held to be guilty of a misdemeanor, and on conviction thereof, shall be fined in any sum not less than one hundred nor more than five hundred dollars, or punished by imprisonment in the county jail, and fed on bread and water only, not exceeding thirty days, or both, at the discretion of the court; after such default, made as aforesaid, any railroad company which shall, directly or indirectly, convey or carry for said defaulting express, telegraph, tele- phone company or insurance company, any package of money, merchandise, or other articles, or transmit any telegraphic message, after having notice of such default, shall for every such offense, forfeit and pay a sum equal to the amount of such tax due and unpaid, vrith the interest and penalty thereon, to be recovered by an action in the name of the state, in the county where such tax is assessed, with costs of suit. (March 20, 1885, 82 v. 92; R. S. 1880; May 1, 1862, 59 v. 91, § 7.) § 3207. WHAT CONTRACTS FOR RAILROAD WORK SHALL STIPULATE; CLAIMS; ORDER OF PRIORITY. — Any person, association of persons, or corpora- tion contracting for the construction of a railroad, depot buildings, water-tanks, or any part thereof, shall be liable to and shall pay to each person performing labor or furnishing materials stipulated for in the contract with the owner of the road, under a contract express or implied with the original contractor, or with any sub-contractor, for the whole or any part of the work stipulated in the original contract with the owner of the railroad; and the railroad company shall provide, in its contract with any person, association of persons, or corporation for the construction of its road, or any part thereof, that payments under its said contract shall be made in the follow- ing order of priority: First, to the persons performing labor or furnishing materials, or furnishing boarding on the order of any contractor or sub-contractor to persons employed by them, or either of them, in furnishing materials or labor for or in the construction of such railroad, without preference. Second, to any sub-contractor, any balance due under his contract after payment of his or their liabilities. to persons per- forming labor or furnishing materials or boarding, under his or their contract. Third, to any contractor, or construction company intervening between a sub-contractor and the railroad company, in the order of such intervention from such sub-contractor upward to the owner of the railroad, any balance due after payment by the company, of amounts found due in the order of priority above stipulated. (April 6, 1883, 80 v. 99; R. S. 1880; March 31, 1874, 71 v. 51, § 1.) Intent and meaning of act. The true intent and meaning of §§ 3207- 3211 is declared to be as follows: "Any per- son or persons who perform labor, or fur- nish material or boarding, under contract, express or implied, with such railroad com- pany, or any of its authorized agents, for the construction of such railroad, or any part thereof, is entitled to a lien for the payment of the same upon such railroad, as provided in § 3208 of the above recited act." — Act of April 10, 1884, 81 v. 126. Labor or liens on railroads. See § 3398a et seq. and § 3231-1 et seq. 84 Private Corporations in Ohio. Railroads — Lien, etc., on, § 3208. V. Bowman, 41 Oh. St. 37 (1884) ; Industrial, etc., Co. V. Supply Co., 1 0. F. D. 483 (1897) ; Bowman v. Springfield, etc., E. R. Co., 1 0. C. C. 04 (1885) ; s. c., 1 C. D. 39. S;e Cleveland, etc., Ey. Co. v. Trust Co., 86 Fed. 73 (1898); Industrial, etc., Co. v. Electrical, etc., Co., 58 Fed. 732 (1893). Not applicable to street railroads. Massillon Bridge Co. v. Cambria Iron Co., 59 Oh. St. 179 a898). See generally as to this law Scioto Valley Ey. Co. V. Cronin, 1 W. L. B. 315 (1876). Mortgage has priority. See Toledo, etc., E. E. Co. v. Hamilton, 134 U. S. 296, 301 ; Feike v. Railroad Co., 12 0. C. C. 362 (1892) ; s. c, 5 C. D. 640; s. c, 14 O. C. C. 186 (1897); s. c, 7 C. D. 652. Operation of act is prospective. See Feike v. Railroad Co., 12 O. C. C. 362 (1892); s. u., 5 C. D. 640. Mecliaiiics' lien on railroads and rail- road bridges under general act. See Rutherfoord v. Cincinnati, etc., E. E. Co., 35 Oh. St. 559 (1880); Smith Bridge Co. § 3208. WHAT LIEW SHALL HAVE PRECEDENCE; HOW SUCH LIEN PER- FECTED; PROCEEDINGS UNDER. — A person wh.o performs labor or furnishes materials for or in construction of any railroad, depot buildings, water-tanks, or any part thereof, and a person who furnishes boarding on the order of any contractor or sub-contractor, to persons employed by them or either of them, in furnishing mate- rials, or performing labor for or in construction of such railroad, depot buildings, water-tanks, or any part thereof, in addition to his rights under the preceding section shall have a lien for the payment of the same upon such railroad and such lien shall have and maintain precedence over any lien taken, or to be taken, and shall subsist for one year from the date of filing the attested account hereafter provided for; and if an action is brought to enforce the lien within that time, it shall continue in force until finally adjudicated. In order to perfect such lien, a person performing labor, or furnishing materials, or boarding, as herein specified, shall, within forty days from the date that such person ceased performing labor, or furnishing materials, or board- ing, on or for the railroad file with the recorder of the county where the labor w^as performed, or materials, or boarding furnished, an affidavit containing an itemized statement of the kind and amount of materials furnished, or labor performed, the time when, the contractor or sub-contractor for whom, and the section and place where, on the line of the road the labor was performed, or materials furnished, and the amount due therefor, after crediting all payments and set-ofEs; and, in case of boarding furnished, such affidavit shall have attached thereto an itemized account of such board, showing the name of the contractor or sub-contractor on whose order it was furnished, the several persons to whom the same was furnished, the weekly rate of boarding, and the several amounts unpaid by each respectively. On filing the affidavit here provided for it shall be recorded in a separate book to be provided therefor, and shall then operate as a lien on said railroad, in the manner and subject only to the limitations here provided. The claimant shall, within ten days after filing his affidavit with the recorder, serve a notice in writing upon the secretary, or other officer or authorized representative of the railroad company, by delivering or leaving a. copy thereof at his usual place of residence, or place of doing business, which notice shall contain a statement of the facts of his filing such affidavit, the county wherein filed, the amount of his claim, and whether for labor, materials or boarding furnished, and the contractor or sub-contractor for whom rendered. Pro- vided, that when the notice in writing required to be served upon the secretary or other officer or authorized representative of the railroad company, cannot be served in the county where said affidavit is filed, such notice shall be served by the recorder upon the representative of the railroad aforesaid by depositing in the post-office a letter containing such notice directed to his place of residence, or place of doing busi- ness, if known to such recorder. Any person failing to file his affidavit aforesaid and serving the notice aforesaid, within the time herein prescribed, shall be deemed Miscellaneous Provisions. 85 Railroads — Lien, etc., on, §§ 3209, 3310. and held to have waived all claim under this section, against the railroad company. (April 6, 1883, 80 v. 99; E. S. 1880; March 31, 1874, 71 v. 51, § 1.) Notice. Under this section a substantial compliance with the conditions of the statute providing for the service of vsritten notice upon the owner of the road is essential to create any obligation. — Railway Co, v. Cronin, 38 Oh. St. 122 (1882). Service of notice on director. The service of a notice under this section on a director of the company to be affected by it is sufficient. — Railway Co. v. McCoy, 42 Oh. St. 251 (1884). Mortgage covering after-acquired prop- erty not prior to lien. See Rousculp v. Ohio Southern R. R. Co., 19 0. C. C. 436 (1899) ; s. c, 10 C. D. 621. See Reed v. Ginsburg (Sup. Ct.), 45 W. L. B. 161 (1901). Effect of takins; promissory note?. Under this section the taking of a note does not waive or afTeet the right to a, lien, nor is it necessary to refer to or describe the note in taking such lien. — Rousculp v. Ohio South- ern R. R. Co., 19 0. C. C. 426 (1899) ; s. c, 10 C. D. 621. Iiien not lost by an extension of t^— "'. Carnegie v. Lancaster, etc., Ry. Co., 1 N. P. 300 (1894); s. u., 3 Dec. 343. Liien may be obtained for materials de- livered out of state. Carnegie v. Lancaster, etc., Ry. Co., 1 N. P. 300 (1894); s. c, 3 Dec. 343. Electric light plant, w^hen not part of railroad. See Industrial, etc., Co. v. Electrical, etc., Co., 58 Fed. 732 (1893). § 3209. HOW ACTION IVLAY BE BROTJGST. — Any person obtaining and hold- ing a, lien provided for in the foregoing section, may, in addition to his remedies, under section thirty-two hundred and seven, proceed by petition as in other cases of lien, against the owner of and all other persons interested, as lien-holders or other- wise, in any such railroad, and obtain such judgment as justice and equity may require; and for the purposes of such suit any number of lien-holders provided in the preceding section may join as parties plaintiffs, by separately stating and numbering their respective claims; provided, that if several liens be obtained by several persons on the same railroad under the provisions of section thirty-two hundred and eight, they shall have no priority among themselves, but payment thereon shall be made pro rata. (April 6, 1883, 80 v. 99; R. S. 1880; March 31, 1874, 71 v. 51, § 1.) Remedy is by action for accounting. Schneider v. Cincinnati, etc., Ry. Co., 20 W. L. B. 457 (1888). § 3210. CONTRACTOR TO BE NOTIFIED OF TIME OF PAYMENT; DISPUTED CLAIMS AND HOW ADJUSTED.— Each contractor or sub-contractor shall have at least five days' notice, in writing, of the time when the lien for labor, boarding or materials furnished under a contract with him will be paid, which may be served upon him personally or upon his authorized agent or foreman, by the owner of the railroad, or any officer or agent thereof, stating therein the time when such liens will be paid; and, on request of such contractor or sub-contractor he shall be permitted to examine such lien claims before they are paid, at any time after the notice has been given; provided, that if such notice cannot be served in the county where the lien is filed, the same may be given by publication in some newspaper of general circula- tion in such county for the period of two weeks, if he dispute any of the claims, the company or owner of the road shall withhold payment of the disputed claims until they are adjusted; and if the matter cannot be adjusted between the parties inter- ested, it may be submitted to the arbitration of three disinterested persons, one to be chosen by each of the parties, and one by the two thus chosen; and their decision, or that of any two of them, shall, in the absence of fraud or collusion, be' final and con- clusive on the parties. If any claim be disputed and is not settled or submitted to arbitration, the claimant shall, in such case, be required to commence an action on his claim before the proper tribunal, within forty days after notice that his claim has been disputed, and prosecute the same to final judgment without delay. And the 86 Private Corporations in Ohio. Railroads — Regulations as to Freight, §§ 3231-3223.- amount of any disputed claim thus ascertained or adjudicated shall then be paid by the railroad owner. Provided that, after notice given as above provided, if no objec- tion is filed against such claim within ten days after the expiration of the term of service of notice as above specified, then the contractor or sub-contractor shall be held to have waived all objection to such claim, and the same shall be taken to be correct as against such contractor or sub-contractor. (April 6, 1883, 80 v. 99; R. S. 1880; March 31, 1874, 71 v. 51, § 2.) Liimitation. The limitation of time applies to contro- versies arising between the contractor or sub- contractor and the person furnishing materials or work, and not to right of action on the part of the latter against the owner of the road .^ Rail wav Co. v. Cronin, 38 Oh. St. 122 (1882). § 3211. TO WHOM PRECEDING SECTIONS APPLY; THE WORD " OWNER " DEFINED. — The provisions of the four preceding sections shall apply to and include any person who furnishes grain, hay, merchandise, tools or implements, or who repairs any tools or implements, on the order of any contractor or sub-contractor, for their own use, or the use of persons employed by them or either of them, while furnishing materials or labor for or in construction of such railroad; provided, that the amount of such claim shall not exceed the wages of the person performing labor or furnishing materials, to whom furnished, or the amount found due such contractor, or sub-contractor, under the provisions of section thirty-two hundred and seven (;) and in every such case, the requirements of section thirty-two hundred and eight, as to filing affidavits and giving notices, shall be strictly complied with; and, provided further, that the aggregate of all liens taken and perfected under sections thirty-two hundred and seven, thirty-two hundred and eight, thirty-two hundred and ten and thirty-two hundred and eleven, shall not be in excess of the actual construction contract price of the railroad company. The word " owner," in these sections shall be held and considered as including any lessee, receiver, corpo- ration, company, or persons owning, operating or managing any railroad with whom or in whose behalf the contracts herein have been made. (April 6, 1883, 80 v. 99; R. S. 1880; March 31, 1874, 71 v. 51, § 3.) § 3221. NOTICE TO OWNER OF RECEIPT OF FREIGHT.— All express com- panies, transportation companies, forwarding and commission merchants, common carriers, warehousemen, wharfingers, and railroad companies, doing business in this state, shall within thirty days after the receipt of any property in their warehouse, depot, station, store or other place of deposit or doing business, when such property is plainly marked with the owner's name and place of residence, or be otherwise known, notify the owner that such property is held by them subject to charges, either by leaving such notice at the usual residence or place of business of the owner, or by depositing the same, postage prepaid, in the proper postoffice, duly addressed to such owner. (January 26, 1875, 72 v. 17, § 1.) § 3222. REGISTER OF FREIGHT. — All such persons, associations, or com- panies, shall keep a register, in which shall be entered a list or inventory of all goods, wares, merchandise, baggage, or other property, with a pertinent description thereof by marks thereon, the size and weight, and the depot, warehouse, or other place where the same is deposited, the time when the same was received, and the amount of charges claimed thereon, which may be left in the possession of such person asso- ciation or company, by reason of the owner being unknown, or when such owner's residence is not known, or when such property has been refused, or the owner has neglected to receive the same. (January 26, 1875, 72 v. 18, § 2.) § 3223. WHEN PROPERTY MAY BE SOLD.— When any such property has been conveyed to any point in this state, and remains unclaimed for the space of six months at the place to which it was consigned, and the owner fails within that time to claim the same, and to pay the proper charges, if there be any against it, such person, asso- Miscellaneous Provisions. 87 Railroads — Eegulations as to Freight, §§ 3334r-3227. ciation, or company, may sell such, freight or other property, at public auction, offer- ing each parcel separately. (February 23, 1877, 74 v. 17, § 3.) § 3224. NOTICE OF SALE OF PEOPERTY TO BE GIVEN.— Such property may be offered for sale either in the place where the office, station, depot, or warehouse in which the same has been deposited for safe keeping, is located, or at any other place where such person, association, or company may deem best to insure a prompt sale thereof; at least thirty days' notice of the time and place of sale, containing a descrip- tive list of the several articles to be sold, with names, numbers, and marks thereon, shall be given, by posting such notice at the office, station, or depot of such person, association, or company in the county where the place to which such property was consigned is situated, or, if there be no such office, station, or depot, by posting such notice in three public places in such county; and, in addition to the posting at the place of consignment, such descriptive list must be posted at the place where the prop- erty is to be sold, and thirty days' notice of the time and place of the sale must be published in a newspaper of general circulation in the county where the property is to be sold. (February 23, 1877, 74 v. 18, § 4.) § 3225. DISPOSITION OF PROCEEDS OF SALE.— Such person, association, or company, from the proceeds of the sale of such property, shall pay all the necessary costs and expenses of the sale, and all proper charges for freight and storage of the property sold, apportioning such expenses and ch%rges, as near as may be, among the articles sold, to the amount received for each, and hold the overplus, if any, sub- ject to the order of the owner thereof, at any time within one year after such sale, upon proof of ownership by affidavit of the claimant or his attorney; and after the expiration of one year, all such sums unclaimed shall be paid into the state treasury, to be placed to the credit of the common schools; but any such article remaining unsold may be again offered as above provided, until sold. (February 23, 1877, 74 V. 18, § 4.) § 3226. SUIT TO SUBJECT FREIGHT TO PAYMENT OF COSTS, ETC.— Such person, association or company may bring suit before any court of competent jurisdic- tion for the amount of the freight, storage, and legal charges thereon, and subject such freight to the payment thereof, after ten days from the giving of the notice pro- vided for in section thirty-two hundred and twenty-one unless such cost and charges are paid, if the owner or consignee is known or can be found' in the county, but if such owner or consignee is unknown, a non-resident of the county, or his place of residence is unknown, then such notice shall be published for not less than ten days in a news- paper of general circulation in such county, and in such case the suit may be brought after ten days from the first publication; and the judgment obtained shall be a lien upon the freight, to satisfy which, with costs of suit, the same shall be sold. (Feb- ruary 23, 1877, 74 v. 17, § 3.) § 3227. STORAGE AND THE LIEN THEREFOR.— Such person, association, or company, after the expiration of ten days from the receipt of goods at the place to which they are consigned, may, upon giving or depositing the notice provided in section thirty-two hundred and twenty-one, and the expiration of ten days, charge a fair and reasonable cost for storage, which shall be a lien upon the goods so stored, and such person, association, or company may, after the expiration of said ten days, deliver such goods to any warehouseman or storage merchant, at the point of destina- tion of such goods or merchandise, or in ease there be no responsible warehouseman or storage merchant at such point willing to receive the goods, then at the most con- venient point where storage can be effected, and receive from such warehouseman the freight and charges due such railroad or other company upon the same, notifying the owner or consignee of such storage, when known, in the manner provided in section 88 Private Corporations in Ohio. Railroads — Regulations as to Freigkt, §§ 3228-3231. thirty-two hundred and twenty-one, and the advances made, and all reasonable charges for storage shall be a lien upon the goods so stored. (February 23, 1877, 74 V. 17, § 3.) § 3228. COPY OF NOTICE, SALE BILL, ETC., TO BE KEPT.— Such person, association, or company shall keep a copy of the notice, a copy of the sale bill, and the expenses thereof, proportional to each article sold, and also the oath of the claim- ant of the residue of the proceeds as aforesaid, and shall furnish an inspection of the same, and, if required, copies thereof, to any one, on payment of the proper charges therefor. (January 26, 1875, 72 v. 19, § 5.) § 3229. SALE OF PERISHABLE ARTICLES.— If any perishable property be so conveyed as freight, and remain unclaimed until in danger of great depreciation, or the same be refused, or the owner thereof cannot be found, then such person, associa- tion or company may sell the same at private sale, or auction, without giving notice, for the best price it will bring, and apply the proceeds as aforesaid. (January 26, 1875, 72 v. 19, § 6.) Live stocb is perishable. Trustees v. Brighton Stock Yards Co., 27 Oh. St. 435 (1875). § 3230. WITHIN WHAT TIME PROPERTY MAY BE CLAIMED.— If the owner of any such property, at any time within five years, reclaim the same, and produce satisfactory evidence to the auditor of state of his ownership thereof, the auditor shall draw his warrant in favor of such person upon the treasurer of state for the amount paid into tue state treasury. (January 26, 1875, 72 v. 20, § 9.) § 3231. PENALTY FOR NEGLECT TO COMPLY WITH PROVISIONS.— Any such person, association or company who refuses or neglects to perform any of the duties required by this chapter, with the intent to avoid the provisions thereof, shall forfeit and pay a sum not less than one hundred dollars, nor more than five hundred dollars, at the discretion of the court, to be recovered for the use of common schools in the county in which the principal oflBce of such person, association, or company is located, and shall, moreover, be liable to any person injured thereby in double the value of the property. (January 26, 1875, 72 v. 20, § 7.) § 3231-1. [Sec. 1.] LIEN UPON RAILROAD, FOR LABOR OR MATERIAL FURNISHED. — Any person who shall have performed common or mechanical labor upon, or furnished supplies to any railroad, street railroad, or railroad operated wholly or in part by electric motor power, turn-pike, plankroad, canal or on any public structure being erected, or on any abutment, pier, culvert or foundation for same, or for any side-track, embankment, excavation, or any public work, protection, ballast- ing, delivering or placing ties, or track-laying, whether the labor is performed for, or the supplies or material is furnished to any company, corporation, contractor, or sub-contractor, construction company, or any individual, shall have a first immediate and absolute lien on the whole of the property on which said work is done, and to which said supplies have been contributed, and on any fund arising from the sale thereof or any part thereof under an order of any court, and shall hold the railroad street railroad, or railroad operated wholly or in part by electric motor power canal turnpike, plank road, or structure, to the creation or construction of which the said labor or supplies has been contributed, or so much thereof as may have been in whole or in part created by said labor or supplies, to the exclusion of any such railroads canal, turnpike, plank road, public work or structure, as to operation, occupation or use, until the claim for such labor or supplies is properly adjusted and paid in full. This act shall apply to all work now being constructed, or material now being fur- Miscellaneous Provisions. 89 Railroads — Lien, etc., on, §§ 3231-2-3231-5. nislied, and to all work hereafter constructed and material hereafter furnished. (May 12, 1902, 95 v. 608; March 20, 1889, 86 v. 120.) Construction of act. New England Engine Co. v. Railway Co., supra. Not applicable to street railroads. Massillon Bridge Co. v. Cambria Iron Co., 59 Oh. St. 179 (1898); New England Engine Co. V. Railway Co., 75 Fed. 162 (1896). § 3231-2. Sec. 2. HOW LIEN OBTAINED.— When it shall be deemed necessary for any construction company, contractor, sub-contractor, mechanic, laborer, or per- son contributing supplies or material to secure their claim against any railroad, canal, turnpike, plankroad, public work or public structure, either for work done or material furnished, they shall file a sworn itemized statement, within thirty days after said work was performed or materials furnished, of the amount of work done or material furnished, showing the balance due and claimed for labor or material furnished, with the recorder of the county or counties within which said work was done or materials furnished. And if several liens be obtained by several persons on the same job, in the manner prescribed by this act, they shall have no priority among themselves, but payments thereon shall be made pro rata. (March 20, 1889, 86 v. 120.) § 3231-3. Sec. 3. BOND; WHEN INJUNCTION MAY ISSUE.— Any construc- tion company, contractor, mechanic, laborer or person contributing supplies or mate- rial to any work named in section one (1) of this act, shall at the time of filing the sworn statement of account as provided in section two (2) of this act, file a good and sufficient bond of indemnity for an amount equal to the amount claimed, which bond shall be approved by the probate judge, and shall be so conditioned as to save and protect the defendant in any case arising under this act, and shall then be entitled to a decree of the common pleas court, enjoining and prohibiting the operation, use or occupancy of the property created in whole or in part by the party or parties asking for said injunction; and the said injunction shall not be dissolved until the court is satisfied that the claim has been adjusted and paid in full. (March 20, 1889, 86 V. 120.) § 3231-4. Sec. 4. ENGINEER TO MAKE MEASUREMENTS; ESTIMATES, ETC. — Any civil engineer who shall be employed as chief or assistant engineer in the surveying, platting or cross-sectioning of any railroad, canal, turnpike, plank road or other public road, shall, before the work is commenced, make an accurate measure- ment of the same, and shall prepare a profile of each section of one mile or less of said work, showing quantities of each and every class of work to be done on said mile or less; and shall also designate the nearest benchmark or point from which measure- ments are made, and shall drive stakes at top of slope, at foot of embankments, at sides and center of grade and around every burrow pit for each one hundred feet, showing in plain figures by feet and tenths of a foot the depths of cut or height of fill or embankment, together with a correct showing of the quantity of overhaul beyond a given number of feet, in cubic yards, for each section of a mile or less; and it shall be the duty of such chief or assistant engineer to furnish, on demand, when any work is finished, to any company, contractor, sub-contractor or person a. final statement of quantities in each class of work done or supplies of material furnished by parties interested. (March 20, 1889, 86 v. 120.) § 3231-5. Sec. 5. PENALTY. — Any civil engineer or assistant engineer, whoso duty it is to ascertain quantities from actual measurement, and on which final esti- mates are to be made, who shall knowingly give other than the true quantities, with intent to defraud the construction company, contractor, sub-contractor, laborer or per- son furnishing supplies or material, shall, if the amount of the discrepancy exceed at the contract price, thirty-five dollars, be deemed guilty of a felony, and shall be punished by a fine not less than the amount at contract price of all work done or material furnished and not included in his final estimate, or be confined in the peni- tentiary for not less than one or more than five years. (March 20, 1889, 86 v. 120.) PART III. GENERAL CORPORATION LAWS. § 3232. By what laws corporations shall be governed. § 3233. What corporations may accept the provisions of this title. § 3233-1. Special charters not accepted or acted on, repealed. § 3233-2. Loss of certificate of incorporation of religious society. § 3233-3. Prima facie evidence of incorporation of religious society. § 3234. Application of existing laws to corporations created prior to 1851. Provision as to insurance companies. § 3235. For what purpose corporations may be formed; sanitarium companies, real estate companies. § 3235a. May have common and preferred stock ; provisions. § 3236. Articles of incorporation; what to contain. § 3237. What articles must state in certain cases. § 3238. Articles acknowledged, certified, filed with secretary of state, as to same or similar name. § 3238a. Amendments, how made, proviso, record, notice, waiver, fee. § 3239. Corporation created, general powers. % 3240. First election of trustees in corporation not for profit ; term and number. § 3241. Membership in corporation not for profit, religious, secret, and benevolent societies. § 3242. Corporation for profit. To give notice of opening books for subscription; notice may be waived. § 3243. When subscriptions of stock are payable. § 3244. Certificate of subscription of stock. Notice of election of directors. % 3245. Conduct of election. Cumulative voting. Inspectors of election. § 3245a. Corporations may limit votes of stockholders. ^ 3245b. Provisions to which such corporations are subject. f 3245a. Application for appointment of inspectors of election ; notice. § 3245b. Appointment of inspectors ; vacancies. § 3245c. List of stockholders to be delivered to inspectors ; stock ownership, how ascer- tained. § 3245d. Conduct of elections by inspectors; certificate of result. § 3245e. Compensation of inspectors. § 3246. Annual and other elections for trustees and directors. § 3247. Oath and duties of trustees and directors. § 3248. Powers of directors and trustees. § 3249. Corporation may adopt regulations. % 3250. Trustees or directors may adopt by-laws. § 3251. How regulations may be adopted. % 3252. What may be provided for by regulations. § 3253. How payment of stock subscriptions enforced. % 3254. Stockholders entitled to certificate of stock ; record. § 3254^1. Ee-issuing of certificates of stock lost or destroyed. § 3254^2. How re-issue effected. § 3255. Paid-up stock is personal property. § 3256. Power to borrow money and mortgage property. § 3256a. How certain corporate mortgages recorded. § 3257. May issue convertible bonds, vote of directors. § 3258. Stockholders liable in an amount equal to their stock. ^ 3259. The term " stockholders " defined. § 3260. Where complaint for enforcement of liability filed. [90] General Corporation Law. 91 What Laws Govern, §§ 3232-3233. § 3260a. Action by court. Appointment of receiver. § 3260b. Enforcement of liability upon insolvent corporation. § 3260c. Notice to nonresident stockholders ; collection of unpaid installments of stock. § 3260d. Court to ascertain and adjudge liabilities of officers and stockholders' suits by receiver. § 3260e. Notice of creditors. § 3260f. Distribution of property and assets of insolvent corporation. § 3261. Trustees personally liable for debts contracted. § 3262. Increase of capital stock. § 3263. May increase by preferred stock. § 3264. Reduction of capital stock. § 3265. Change of bonds authorized. § 3266. Corporate property to be employed only for the objects of the corporation. § 3267. Change in number of directors. § 3268. Annual statement for stockholders. § 3269. When provisions of this chapter do not apply. § 3269-1. Corporate dividends to be paid from surplus profits only. § 3269-2. Unpaid interest due corporation not to be included in profits. § 3269-3. Surplus profits; how ascertained; prohibiting advertisement of capital not sub- scribed and paid in. § 3269-4. Penalty for violating section. § 3232. BY WHAT LAWS COBPORATIONS SHALL BE GOVEBKTED. — Corpora- tions created before the adoption of the present constitution, and which have not, by election or some other act, come to be governed by laws since passed, shall be gov- erned and controlled by the laws then in force, and the valid modifications thereof since or herein enacted; other corporations now existing or hereafter created shall be governed and controlled by the provisions of this title. Effect of general laivs. A general law of the state will affect com- panies incorporated under special acts, as to which there was a reserved power of amend- ment or repeal. — State ex rel. v. Cincinnati Gas, etc., Co., 18 Oh. St. 262 (1868). Iiavrs reducing freight rates. Railroad companies organized under the act of 1848, before the adoption of the present constitution, and which have not relinquished their right to be governed by said act, are not bound by later acts reducing the rates of freight. — Iron R. R. Co. v. Lawrence Furnace Co., 29 Oh. St. 208 (1876). Boards of Trade under act of 1866. The Association of the Tobacco Trade of Cincinnati, a corporation formed under the act of April 3, 1866 (S. & S. 182), since the repeal of that act, is under this section governed by the provisions of title 2 of the Revised Stat- utes. — State ex rel. v. Casey, 38 Oh. St. 555 (1883). § 3233. WHAT COKPOIIATIONS MAY ACCEPT THE PROVISIONS OF THIS TITLE. — A corporation created before the adoption of the present constitution, and now actually doing business, may accept any of the provisions of this title, and when a certified copy of such acceptance is filed with the secretary of state, so much of its charter as is inconsistent with the provisions of this title is hereby repealed. (May 1, 1852; 50 v. 274, § 71.) Partial acceptance. Partial or conditional acceptance of a char- ter or of an amendment of a charter is, in the absence of statute, impossible. — Marietta, etc., R. R. Co. V. Elliott, 10 Oh. St. 57, 60 (1859); Baldwin v. Hillsborough, etc., R. R. Co., 10 W. L. J. 337 (1853). Effect on railroad companies making leases. Railroad companies incorporated prior to the adoption of the constitution of 1851, and which avail themselves of the general corpora- tion act by taking or making leases of their roads, are to be regarded as thereby accepting a provision of said act, within the meaning of this section, and relinquishing all rights in- consistent with the provisions of said act. — Cincinnati, etc., R. R. Co. v. Cole, 29 Oh. St. 126 (1876). Necessity of formal acceptance. In order to work u, repeal of charter rights inconsistent with the provisions of the general 92 Private Corporations in Ohio. Special Charters — Existing Corporations, §§ 3233-1-3234. eorporation act, the filing of a certificate of acceptance with the secretary of state is not indispensable. It is the fact of acceptance which binds; the certificate being merely evi- dence, and the company cannot profit by its failure to file a certificate. — Dayton, etc., R. R. Co. V. Hatch, 1 Dis. 84 (185,5) ; Zabriskie v. Cleveland, etc., R. R. Co., 23 How. (U. S.) 381 (1860); Cincinnati, etc., R. R. Co. v. Cole, supra; Owen v. Purdy, 12 Oh. St. 73 (1861). Transfer of special rights. Special privileges conferred on a railroad company by a private charter granted under the constitution of 1802, do not so inhere in the road constructed under the charter as necessarily to pass to any corporation which may have acquired, under subsequent legisla- tion the right to operate the same. — Pitts- burg, etc., Ry. Co. v. Moore, 33 Oh. St. 384 (1878). See forms for certificate of accept- ance. § 3233-1. SPECIAL CHARTERS NOT ACCEPTED OR ACTED ON, REPEALED. — All special acts of incorporation in force in this state, which have not been accepted, or acted upon, be and the same are hereby repealed. (February 12, 1861, 58 v. 12.) A special charter, being regarded as merely an oflFer on the part of tjie state until ac- ceptance, may be revoked and repealed at any time before acceptance. — State v. Dawson, 16 Ind. 40 (1861). Judicial notice of private charters. Courts cannot take judicial notice of a pri- vate or special statute creating a eorporation, unless it be specially pleaded at least by a reference to its title and the day of its pass- age, according to § 5092. — Pittsburgh, etc., Ry. Co. V. Moore, 33 Oh. St. 384 (1878). Contra, Brown v. State, 11 Oh. 276 (1842). See Railroad Co. v. Hoffhines, 46 Oh. St. 643 (1889); Beatty v. Lessee of Knowles, 4 Pet. (U. S.) 152 (1830). See State v. Granville Society, 11 Oh. 1, 9 (1841). Effect of new constitution on unac- cepted special charters. See State ex rel. v. Roosa, 11 Oh. St. 16 (1860); Citizens' Bank v. Wright, 6 Oh. St. 318 (1856). § 3233-2. LOSS OF CERTIFICATE OF INCORPORATION OF RELIGIOUS SOCIETY. — Whenever it shall be made to appear to the satisfaction of the secretary of state that any religious society or corporation heretofore organized or incorporated under the laws of this state has lost its charter or certificate of incorporation, or that the same has been destroyed, it shall be the duty of the secretary of state to issue a new certificate of incorporation of such religious society or corporation theretofore issued, and the time as near as may be ascertained of issuing such lost or destroyed certificate as shall be made to appear to him; and thereupon all deeds, mortgages, or other instruments of writing for the conveyance of land, as well as all acts done by such religious society or corporation by virtue of such certificate or charter thereto- fore lost, shall be binding and of full force in law and in equity: Provided, that nothing in this act shall be so construed as to make valid any act not authorized under the laws of this state which heretofore have been in force. (March 25, 1878; 75 V. 77.) § 3233-3. PRIMA FACIE EVIDENCE OF INCORPORATION OF RELIGIOUS SOCIETY. — The fact that a religious society for not less than thirty years, claiming to have been duly and legally incorporated as such, and performing during such time duties and exercising rights as such, shall be prima facie evidence of the original issue of such charter or certificate of incorporation as claimed by such society. (March 25, 1878; 75 v. 77.) See Congregational Church v. Webber, 54 Mich. 571 (1884). § 3234. APPLICATION OF EXISTING LAWS TO CORPORATIONS CREATED PRIOR TO 1851. PROVISO AS TO INSURANCE COMPANIES. — Corporations cre- ated before the adoption of the present constitution, which take any action under or in pursuance of this title, shall thereby and thereafter be deemed to have consented, and shall be held to be a corporation, and to have and exercise all and singular its franchises under the present constitution and the laws passed in pursuance thereof and not otherwise; provided, that any fire insurance company so created, complying with the requirements of sections three thousand six hundred and fifty -four and three thousand six hundred and fifty-five, or of any police regulation contained in General Corporation Law. 93 Corporate Purposes, § 3235. chapter eleven of this title, or in chapter eight of title three, part first, shall not be deemed to have consented, and shall not be affected by the provisions of this section by reason of such compliance. (E. S. 1880; May 18, 1886, 83 v. 201; March 8, 1893, 89 V. 73.) Loss of rights by change of time of election. Where a corporation created before the con- stitution of 1851 had a definite time and terna fixed for the election of directors, it cannot change the time of such elections except under section 3246, and having made such change, it becomes in all respects a corporation under the present constitution and laws. — State ex rel. V. Lakamp, 4 O. C. C. 257 (1889); s. c. 2 C. D. 533. Iioss by issuing nevr policies. A fire insurance company created prior to the constitution of 1851, by issuing policies not authorized by its charter but only by the general corporation act, thereby becomes sub- ject to such act. — Knox Co. Mutual Ins. Co. V. Bowersox, 6 0. C. C. 275 (1892); s. c. 3 C. D. 451. IjOss by accepting new charter. A corporation will be deemed to have ac- cepted a charter by using the privileges therein granted. — Cincinnati, etc., R. R. Co. V. Cole, 29 Oh. St. 126 (1876) ; Shields v. State, 26 Oh. St. 86 (1875) ; Goodin v. Evans, 18 Oh. St. 150 (1868); Owen v. Purdy, 12 Oh. St. 73 (1861). Acceptance by directors. Where an amendment to a charter provides for acceptance by the corporation, the board of directors have authority to accept. — Goodin v. Evans, 18 Oh. St. 150, 167 (1868). Change by vote of majority. Whether a change in a corporate charter can be made otherwise than by unanimous vote of the stockholders must depend upon the facts of each case; the original powers of the corporation and the proposed change. — Ireland v. Palestine, etc.. Turnpike Co., 19 Oh. St. 369 (1869); Marietta, etc., R. R. Co. v. Elliott, 10 Oh. St. 57 (1859); Milford, etc.. Turnpike Co. v. Brush, 10 Oh. Ill (1840); Dayton, etc., R. R. Co. v. Hatch, 1 Disney, 84 (1855); Baldwin v. Hillsborough, etc., R. R. Co., 10 W. L. ,T. 337 (1853); Zabriskie v. Cleveland, etc., R. R. Co., 23 How. (U. S.) 381 (1859). Stockholders may become estopped. A non-assenting stockholder may become bound by his failure to resist an action of the majority in accepting an amendment and by acquiescing therein. — Owen v. Purdy, 12 Oh. St. 73 (1861); Goodin v. Evans, 18 Oh. St. 150 (1868). Acquiescence must be proved. The acquiescence of a stockholder in the ac- tion of the majority will not be presumed, but must be proved. — Ireland v. Palestine, etc., Turnpike Co., supra. Corporation acting after expiration of charter. A corporation chartered under a special statute for a certain number of years, but which, after the expiration of the time for which it was so chartered, continues to exer- cise its corporate powers, may still be treated as a corporation. — Myers v. Lucas, 16 0. C. C. 545 (1898) ; s. c. 8 C. D. 431. See note to § 3235 on real estate companies. Provision as to insurance companies. Under the provision of this section relating to insurance companies, unless a corporation created by special act is clearly granted ex- emption by its charter, it must comply with ■(he police regulations of § 3654 and § 3655. — State ex rel. v. Eagle Ins. Co., 50 Oh. St. 252 (1893); Eagle Ins. Co. v. State, 153 U. S. 446 (1894). § 3235. FOB, WHAT PURPOSES CORPORATIONS MAY BE FORMED; SANI- TORIUM COMPANIES, REAL ESTATE COMPANIES.— Corporations may be formed in the manner provided in this chapter for any purpose for which individuals may lawfully associate themselves, except for carrying on professional business; but noth- ing in this section shall prevent the formation of corporations for the purpose of erecting, owning and conducting sanitoriums for the receiving of and caring for patients and for the medical, surgical and hygienic treatment of the diseases of such patients, and for instruction of nurses in the treatment of diseases and in hygiene; provided, that the articles of incorporation formed for the purpose of buying or selling real estate shall expire by limitation in twenty-five years from the date of being issued by the secretary of state. In case any real estate owned by any such corporation is not sold or disposed of by any such corporation within twenty-four years from the date of [that] their respective articles of incorporation are issued, it shall be forthwith the duty of the board of directors of such corporation to institute action against the corporation and owners of li?ns upon or against such real estate proposed to be sold, by filing a petition in the court of common pleas in the county where such real estate is situated, praying for a sale of the real estate in the peti- 94 Private Corporations in Ohio. Corporate Purposes, § 3235. tion described; and should any of such board of directors refuse to direct any officer to institute action as hereinbefore mentioned, and should such action not be insti- tuted within sixty days after the expiration of the twenty-four years hereinbefore mentioned, it shall be the duty of the prosecuting attorney of the county wherein such real estate is situated, upon the expiration of said sixty days, to institute such action. Service of summons upon the defendants, appraisement and sale of such real estate, and distribution of the proceeds of the sale shall be made as provided in actions of foreclosure of mortgages and marshaling liens; provided, however, the court may allow the plaintiff, in case he be the prosecuting attorney, a just and proper attorney fee which shall be taxed with the costs of the action. (May 13, 1902 95 v. 623; March 22, 1900, 94 v. 65; April 6, 1894, 91 v. 126; April 20, 1893, 90 v 205- R. S. 1880.) ' Insurance companies. This section must be construed as not au- thorizing the incorporation of insurance com- panies, as the organization of such companies is speeiaJly provided for in chapters 10 and 11 of title 2.— State v. Pioneer Live Stock Co., 38 Oh. St. 347 (1882). Agricultural fair company. A company may be organized to conduct an agricultural fair for profit under this section. — State V. Long, 48 Oh. St. 509 (1891). What corporations are for profit. Corporations for profit within the meaning of the statute are those which are formed for the prosecution of business enterprises with a view to realizing gains to be distributed as dividends among the shareholders in propor- tion to their contributions to the capital stock. — Snyder v. Chamber of Commerce, 53 Oh. St. 1, 11 (1895). Corporations not for profit. It seems the secretary of state may refuse to file the articles of a corporation not for profit when they show on their face that the company is for profit. — People ex rel. v. Rose, 59 N. E. (111.) 432. Purposes not authorized. Under statutes similar to ours it has been held illegal to incorporate for the purpose of: Manufacturing articles infringing patents. — See Clemshire v. Boone Co. Bank, 53 Ark 512 (1890). Creating a lottery.— See Peltz v. Supremo Chamber, etc., 10 Atl. (N. J.) 668 (1890); Le Warne v. Meyer, 38 Fed. 191 (1889). Improperly restraining trade.— In re Rich- mond Coal Co., 20 Phila. 251 (1893)- s c 9 Pa. Co. Ct. Rep. 172. / . • •, Forming a military company of foreigners, presumably for an improper purpose.— Rus- sian American Guards Charter, 3 Pa. Dist 673 (1893); s. c, 13 Pa. Co. Ct. Rep. 148. Assisting in war against the United States. — Chieora Co. v. Crews, 6 S. C. 243 (1874); United States v. Insurance Co., 22 Wall. (U. S.) 99 (1874) ; Importing Co. v. Locke, 50 Ala. 332 (1876). Arranging marriages for compensation. — In re Mutual Aid Ass'n, 15 Phila. 625 (1881) ; In re Helping Hand Ass'n, 15 Phila. 644 (1881). Resisting temperance laws. — Detroit, etc.. Bund V. Detroit, etc' Verein, 44 Mich. 313 (1880). Manipulating stocks of other corporations and thereby creating a trust. — People ex rel. V. Gas Trust, 130 111. 268 (1889). Purchasing franchises of corporations. — Opinion of Atty.-Gen'l Watson, 24 W. L. B. 269 (1890). Promoters of corporations, duty, lia- bility, and actions. Yeiser v. U. S. Board, etc., Co. (U. S. C. C. A.), 12 0. r. D. 678 (1901); Second Nat. Bank v. Greenville, etc.. Post Co., 23 O. C. C 274 (1899). Secret intent of incorporators. The legality of the purpose of the incorpo- ration, so far as the filing of articles and the creation of tne company is concerned, can only be judged by the statements contained in the articles, and not by the possibility or secret intention of illegal user. — See State ex rel. V. Taylor, 25 Oh. St. 279 (1874); Cronin v. Potter's Co-operative Co., 29 W. L B 52 p. 55 (1892). Discretion of secretary of state. The discretion to be exercised by the secre- tary of state does not reach to the merits of an application for articles of incorporation, although it may be exercised as to matters of form. The formation of corporations in this state is regulated by general laws, and when the proposed incorporation shows compliance with those laws it is entitled to articles of incorporation; if it fails to so comply the application is to be refused upon that ground, and that is sufficient. — State ex rel. v Tay- lor, 55 Oh. St. 61 (1896). Power when purpose of, clearly illegaL It seems that. when the articles show prima facie the object of tne proposed company to be illegal, the secretary of state would have power to reluse to file them; as where the articles show the purpose to be bookmaking or gambling on races. — See In re New York Booking Co., N. Y. L. J. Apr. 29 (1892). AVharf-boat companies. Under a statute permitting corporations to be formed for the purpose of building and re- pairing steamboats and other water craft, a General Corporation Law. 95 Corporate Purposes, § 3335. company may be formed to build and repair wharf boats. — Gaff v. Flesher, 33 Oh. St. 453 (1878). Can be but one main purpose. The use of the word " purpose " and not " purposes " implies a limitation. A corpora- lion may, except where distinct provision is made, be organized for one main purpose and no more. — State ex rel. v. Taylor, 55 Oh. St. 61 (1896). Statute commented upon. Ehrman v. Union, etc., Ins. Co., 35 Oh. St. 324, 342 (1880) ; Larwell v. Hanover Savings Fund Society, 40 Oh. St. 274, 282 ( 1883 ) . Mutual protection asociations. Corporations formed under § 3630 are cor- porations not for profit under this section. — - State V. Standard Life Ass'n, 38 Oh. St. 281 (1882). Beal-estate company is for profit. Companies incorporated under this section for the purpose of dealing in real estate are necessarily for profit, and must be so organ- ized. — State ex rel. v. Home Co-op. Union, Sup. Ct. Dec. 1900. Expiration of charters of real-estate companies. Real estate companies are subject to a limi- tation of twenty-five years' existence, at the expiration of which time they are ipso facto dissolved, and must be wound up according to § 5675 et seq. — People v. Anderson, etc., Eoad Co., 76 Cal. 190 (1888); La Grange, etc., E. Co. V. Rainey, 7 Colw. (Tenn.) 420, 4,32 (1870) ; Scanlan v. Crawshaw, 5 Mo. App. 337 (1878). See Myers v. Lucas, 16 0. C. C. 545 (1898) ; s. c, 8 C. D. 431. Sale of property by directors. The directors may sell all property without a. vote of the stockholders, even if made three days before the expiration of a charter. — Stetson v. Bank, 12 Oh. St. 577 (1861). Iiimit on amount of land. There is no limit on the amount of land a real estate company may hold. — See Market ^St. Ry. Co. V. Hellman, 109 Cal. 571 (1895). Jlieases for more than twenty-five years. See Beckett Paper Co. v. Hamilton, etc., Hvdraulic Co., 18 0. C. C. 200 (1898) ; s. c, I id C. D. 57. Power of corporations to deal in land under common law, \ At common law corporations had the ca- pacity to purchase and sell lands unless re- strained bv statute. — See Lessee of Overmeyer V. Williams, 15 Oh. 31 (1846). Stock in corporation not for profit. A corporation not for profit may have a capital stock under this section. — Snyder v. Chamber of Commerce, 53 Oh. St. 1 (1895). Agreement for preference. The existing stockholders of a corporation may, for the purpose of inducing others to subscribe to the unissued stock, agree that the new subscribers shall be paid a stipulated an- nual dividend, out of the net earnings of the corporation, before any dividends are paid to stockholders then existing. — Painesville Nat. Bank v. King Varnish Co., 8 0. C. C. 563 (1894) ; s. c, 4 C. D. 511. Preferred stock may be made a lien on property. In the absence of a statute to the contrary, a corporation may issue preferrea stock which shall be a lien on its property and earnings second only to existing mortgages and entitled to preference as to capital and profits. — Ham- 'lin V. Toledo, etc., R. R. Co., 78 Fed. 664 ( 1897 ) ; Continental Trust Co. v. Toledo, etc., R. R. Co., 86 Fed. 929 (1898) ; Toledo, etc., E. R. Co. V. Continental Trust Co., 95 Fed. 497 (1899). See Continental Trust Co. v. Toledo, etc., E. R. Co., 72 Fed. 92 ( 1896) . Construction of issue of stock having; characteristics of loan. An issue of preferred stock will be construed to be what it purports and was intended to be, if possible, even though the stockholders are deprived of the right to vote, and have their dividends guaranteed and secured by a mort- gage. — Miller v. Eatterman, 47 Oh. St. 141 '( 1890) ; s. c, 22 W. L. B. 99 (1889) ; Eyan v. Miami, etc., Ev. Co., 10 A. L. E. 263 (1881). See Hamlin v.' Toledo, etc., E. E. Co., 78 Fed. 664 (1897). Preferred stock w^hen construed to be loan. An apparent issue of preferred stock will be construed to be a loan, if the statute au- thorizing the issue would otherwise be uncon- stitutional as violating the special liability clause of the constitution. — Burt v. Eattle, 31 Oh. St. 116 (1876). Preferred stock without voting power. The right to vote preferred stock may be withheld. — Miller v. Eatterman, supra ; Eyan V. Miami, etc., Ey. Co., supra. Security for dividends on preferred stock. A mortgage given to secure the payment of dividends on preferred stock is subject to the condition that dividends must be earned, although such condition may be apparently inconsistent with the mortgage. — Miller v. Eatterman, supra ; Warren v. King, 108 U. S. 389 (1883). Preferred stock, other sections with reference to. See §§ 3203, 3309, 3309b. Guaranty of dividends on preferred stock. A guaranty of dividends on preferred stock is nothing more than a guaranty of payment 96 Private Corporations in Ohio. stock — Articles of Incorporation, §§ 3235a, 3236. if dividends are earned.- man, supra. Miller v. Ratter- Enforcement of rights of one class of stockholders against others. See Port Clinton R. R. Co. v. Cleveland, etc., R. R, Co., 13 Oh. St. 544 (1862). Endonrment stock. See Bryant v. Ohio College, etc., 1 C. S. C. 67, 307 (1871). Contra, Ohio College v. Rosenthal, 45 Oh. St. 183 (1887). Contracts to form corporations. A provision of a preliminary agreement to form a corporation which is in conflict with the certificate of incorporation or charter ob- tained is deemed waived and abandoned by all parties who accept such charter and organize under it; such preliminary contract being merged into the statutory contract or charter, — Cronin v. Potter's Co-op. Co., 29 W. L. B. 52, 56 (1892). Contracts to form corporations. Where one, who is the owner of certain property, enters into a contract with a number of others whereby the parties agree to form a corporation to take over and operate the prop- erty, and the owner agrees to sell his property at a stated price, and take his pay therefor partly in cash and partly in stock of the cor- poration to be formed, and the property is thereupon turned over to the parties to the contract, who operate it, but abandon the effort to form the corporation, the contract will be treated not as one between the vendor and a corporation not formed, but between (he individuals who entered into it. — Mosier v. Parry, 60 Oh. St. 388 (1899). § 3235a. CORPORATIOlir MAY HAVE COMMON AlfD PREFEKRED STOCK. — if the organization is for profit, it must have a capital stock. Such stock may con- sist of common and preferred, or of common only, but at no time shall the amount of preferred stock exceed two-thirds of the actual capital paid in in cash or property; and if both common and preferred it may be provided in the articles of incorpora- tion that the holders of the preferred stock shall be entitled to dividends not exceed- ing eight per cent, per annum, payable quarterly, half yearly, or yearly, out of the surplus profits of the company each year in preference to all other stockholders, and such dividends may be made cumulative. Every corporation issuing both common and preferred stock may create such designations, preferences, and voting powers, or restriction or qualification thereof, as shall be stated and expressed in the cer- tificate of incorporation, and such preferred stock may, if desired, be made subject to redemption at not less than par, at a fixed time and price, to be expressed in stock certi.ficate thereof. In case of the insolvency of the corporation no holder of pre- ferred stock shall be liable for the debts of the corporation until after the remedy against the common stockholders upon their double liability, as provided by law, shall have been pursued and exhausted, and then only for such amount as remains unpaid; but such liability shall in no event exceed the liability fixed by law for the common stock of such corporation. In case of the insolvency or dissolution of the corporation, the holders of the preferred stock shall be entitled to receive from the assets remaining after paying its debts and liabilities, the full payment of the par value of the stock, before anything is paid to the comjuon stock. (May 12, 1902, 95 V. 623.) « 3236. ARTICLES OE INCORPORATION-; WHAT TO CONTAIN.— Any num- her of persons, not less than five, a majority of whom are citizens of this state, desir- ing to become incorporated, shall subscribe and acknowledge, before an officer authorized to take acknowledgments of deeds, articles of incorporation, the form of which shall be prescribed by the secretary of state, w^hich must contain: 1. The name of the corporation, which shall begip with the word " The " and end ■with the word " Company," unless the organization is not for profit. 2. The place where it is to be located, or where its principal business is to be transacted. 3. The purpose for which it is formed. 4. The amount of its capital stock, if it is to have capital stock, and the number of shares into which the stock is divided. 5. Provided, any association of five or more persons, who are residents of the General Corporation Law. 97 Articles of Incorporation, § 3236. state of Ohio, and who are associated, not for profit, and as the principal or ruling organization over subordinate organizations, associated, not for profit, and having a definite location or place of business in the state of Ohio, may be incorporated, having its location or principal place of business in the state of Ohio, and without naming, in its articles of incorporation, a permanent place where it is to be located, or where its principal business is to be transacted. But such association must name, in its articles of incorporation, the place where it is to be located, or where its principal business is to be transacted, at the time of its incorporation, with the name and place of residence of its then principal officers. And when such association changes its place where located, or the place where its principal business is transacted, it shall be the duty of its principal officer, under its seal, if it has one, countersigned by the officer acting as secretary of such association, to certify to the secretary of state of Ohio, the place then selected by such association, as its location, or where its princi- pal business is to be transacted, with the name of its principal officers, and their places of residence, which certificate the secretary of state shall record for public use in the records of his office. (April lOj 1889, 86 v. 224; April 16, 1885, 82 v. 134; Rev. Stat. 1880.) Articles must substantially comply irith lair. Mere irregularities in organizing under a charter will not deprive the officers and stock- holders of the corporation of its benefit, but on the other hand the provisions of the act of incorporation must be substantially complied with. The filing of articles of incorporation substantially complying with the law is a con- dition precedent to corporate existence. — Trust Co. V. Floyd, 47 Oh. St. 525, 541 (1890); Bartholomew v. Bentley, 1 Oh. St. 37 (1852). See Nugent v. Cincinnati, etc., R. E. Co., 2 Dis. 302, 304 (1858) ; Harris v. Mc- Gregor, 29 Cal. 124 (1865) ; State v. Beck, 81 Ind. 500, 506 (1882); Hughes v. Antietam Mfg. Co., 34 Md. 316, 324 (1870); Rogers v. Danby Society, 19 Vt. 187 (1847). Articles should be signed and ackno-wl- edged in this state. It is a well-settled rule of law that the ac- ceptance of a charter and the organization of the corporation must occur in the state creat- ing it. — See Myers v. Manhattan Bank, 20 Oh. 283 (1851); Smith v. Silver, etc., Co., 64 Md. 85 (1885) ; Freeman v. Machias, etc., Co., 38 Me. 343 (1854); Heath v. Silverthorn, etc., Co., 39 Wis. 146 (1875). What officers authorized to take ac- knowledgments. Notaries Public, § 118, § 4106; Probate Judges, § 526, § 4106; Justices of the Peace, § 583, § 4106; Police Judges, § 1787; County Surveyors, § 1175, § 4106; County Auditors, § 4106, § 1019; Mayors, § 4106; Judges and Clerks of Courts of Record, § 1247, § 4106. Ackno-wledgment under the old law. See State ex rel. v. Lee, 21 Oh. St. 662 (1871); Spinning v. Home Ass'n, 26 Oh. St. 483 (1875) ; Warner v. Callender, 20 Oh. St. 190 (1870) ; Lucas v. Building Ass'n, 22 Oh. St. 339 (1872); Griffin v. Clinton, etc.. R. R. Co., 1 W. L. M. 31 (1859) ; Clarke v. Thomas, LAW GOV. PRIV. COR. — 7. 34 Oh. St. 46, 59 (1877); Hagerman v. Build- ing Ass'n, 25 Oh. St. 186, 200 (1874). Absence of acknonrledgment. A total want of acknowledgment will render the articles void. — Doyle v. Mizner, 42 Mich. 332 (1879). Signing and acknowledgment of ar- ticles. Articles of incorporation must be signed and acknowledged in due form. — Insurance Co. v. Cram, 43 N. H. 636 (1862); Kaiser v. Law- rence Bank, 56 la. 104 (1881); Indianapolis Furnace Co. v. Herkimer, 46 Ind. 142 (1874). At least five must sign and acknoxrl- edge. Although more than five persons or cor- porators may sign and acknowledge the arti- cles, there must be at least five or they will be void. — State ex rel. v. Critchett, 37 Minn. 13 (1887) ; People v. Montecito Water Co., 97 Cal. 276 (1893). See Lorillard v. Clyde, 86 N. Y. 384 (1881). Signing by initials. Articles may be signed by initials instead of the full prsenomen.- — State ex rel. v. Beck, 81 Ind. 500 (1882). Signing blank or incomplete articles. The articles must be complete before the signing thereof, and if signed while blank, and subject to future agreement, they will not be binding upon the corporators, disaffirmance being made in due time. Each corporator's assent to each statement in the articles is essential. — Dutchess R. R. Co. v. Mabbett, 58 N. Y. 397 (1874) ; Richmond R. R. Co. v. Reed, 83 Ind. 9 (1882). Designation of principal place. The failure to describe the place designated as the principal place of business is imma- terial. — In re Spring Valley Water Works, 17 Cal. 132 (1860). 98 Private Corporations in Ohio. Articles of Incorporation, § 3236. Designation of place of business is con- clusive. The designation of a principal place of busi- ness is conclusive as to the location of such office, and is not in any way determined by the proportion of business done there. The place so fixed is the situs of the company for the purpose of taxation, commencing suits, etc. — ■ Pelton V. Transportation Co., 37 Uh. St. 450 (1882); Mercantile Trust Co. v. ^tna Iron Works, 4 0. C. C. 579, 585 (1890); s. c, 2 C. D. 718, 722. See Pomeroy Salt Co. v. Davis, 21 Oh. St. 555 (1871); Blumenthal v. Hudson River Co., 15 N. Y. Supp. 826 (1891); Booth V. Wonderly, 36 N. J. L. 250 (1873); Roth- child v. Dithridge Co., 20 N. Y. Supp. 373 (1892). Place of business for attachment in justice court. A corporation may be attached in a justice court in any county other than that of its principal place of business. — Champion Ma- chine Co. V. Huston, 24 Oh.- St. 503 (1874). See Boley v. Ohio, etc., Trust Co., 12 Oh. St. 139 (1867). Change of place of business. A corporation may change its principal place of business so long as it keeps within the limits of the designated place, otherwise a change cannot be made except by amendment of its articles. — Pelton v. Transportation Co., supra; Mercantile Trust Co. v. JEtna. Iron Works, supra. See Booth v. Wonderly, supra. See § 3855 and § 3238a, § 3311 and § 3385. Statement of capital stock. The amount and division of the capital stock, if the company is to have a capital stock, must be clearly stated; but articles will not be invalidated by a clerical error in the statement of the number or amount of the shares if the amount of the capital stock is correctly stated. — Hughes v. Antietam Mfg. Co., 34 Md. 316 (1870). Purpose must be clearly stated. The purpose for which a company is formed must be stated with clearness. The statute requires the specification of the business, and it is not a compliance with the law to state that the company is formed to do any business it may find profitable. — In re Crown Bank, L. R. 44 Ch. Div. 634 (1890). See State ex rel. V. Central, etc., Ass'n, 29 Oh. St. 399 (1876). One main purpose. Only the one main purpose may be stated as a corporation cannot be organized for two or more purposes. — State ex rel. v. Taylor, 55 Oh. St. 61 (1896). Effect of claiming more than law al- lows. If more is claimed in the articles than the law allows, the articles are only affected pro tanto. — Toledo, etc., Ry. Co. v. Toledo Elec- tric Co., 6 0. C. C. 362, 391 (1892) ; s. c, 3 C. D. 493, 507. Provisions not responsive to laiv. Any provision in the articles not responsive to some specification of general law is a null- ity. — O'Brien v. Cummings, 13 Mo. App. 197 (1883) ; People v. Chicago Gas Trust, 130 111. 268 (1889). Incidental powers not to be stated. It is improper to state under the head of the purposes of the company all the incidental powers, such as it would necessarily have by general law. — People ex rel. v. Peabody, 130 111. 268 (1889); Wendell v. State, 62 Wis. 300 (1885); In re McCrurg Gas Co., 4 Pa. Dist. Rep. 349 (1895). Mistake in articles — reformation. The articles of incorporation constitute the charter, or part of it, granted by the state, and the provisions contained therein cannot be changed, added to, or detracted from by a court because of a mistake. — Cronin v. Pot- ter's Co-op. Co., 29 W. L. B. 52 (1892). Articles not in conformity w^ith laxv. Articles not in strict conformity with law by reason of defects, omissions, etc., may be corrected under § 5867 ct seq. Previous agreements merged in articles. Where the corporators of a company exe- cute articles of incorporation they abandon and waive all provisions of previous contracts to form the corporation which are in conflict with the article as drawn. — Cronin v. Pot- ter's Co-op. Co., 29 v^. L. B. 52, 56 (1892). Secret intention of corporators. The articles are not vitiated by a secret intention on the part of the corporators to do business in a foreign state. — State ex rel. v. Taylor, 25 Oh. St. 279 (1874). ■When a corporation de facto exists. AVhere an attempt is made by colorable pro- ceedings which are followed by bona fide user, a corporation de facto exists, and its capacity can only be challenged by the state. — Society Perun v. Cleveland, 43 Oh. St. 481 (1885). See Griffin v. Clinton, etc., R. R. Co. 3 0. F. D. 441 (1858) ; s. c, 1 Mo. (U. S.) 31. No de facto existence without articles of in- corporation. — Abbott V. Omaha Smelting Co., 4 Neb. 416 (1876) ; Capps v. Hastings Co., 40 Neb. 470 (1894) ; Utely v. Union Tool Co., 11 Gray (Mass.) 139 (1858). Proof of de facto existence. The de facto existence of a coi-poration may be proved by evidence of attempted and color- able incorporation followed by bona fide user, even as against a party not estopped to deny its corporate existence. — Society Peinin v. Cleveland, supra. Possibility of de jure existence is es- sential to de facto existence. There must be authority in law for the pro- ceedings, that is, there must be a law author- General Corporation Law. 99 Articles of Incorporation, § 3237. izing the formation of corporations to exer- cise such powers as the de facto company claims.— Gaff v. Flesher, 33 Oh. St. 107 (1877); Racoon River Nav. Co. v. Eagle, 29 Oh. St. 238 (1876); Society Perun v. Cleve- land, supra. "Want of legal organization — hoiF pleaded. See Methodist Church v. Wood, 5 Oh. 283 (1831) ; Lewis v. Bank, 12 Oh. 132, 148 (1843) ; Brady v. National Supply Co., 45 W. L. B. 176 (1901). A party dealing urith a corporation is estopped to deny its existence. Second Naf. Bank v. Hall, 35 Oh. St. 158 (1878); Lattimer v. Mosaic Glass Co., 13 0. C. C. 163 (1896); s. c, 7 C. D. 430; Hatry v. Painesville, etc., Ry. Co., 1 0. C. C. 426 (1886); s. c, 1 C. D. 238; Beebe v. Thomas, 2 W. L. B. 107 (1877); Continental Trust Co. V. Toledo, etc., R. R. Co., 82 Fed. 642 (1897). A debtor of a. corporation cannot deny its existence. Peckham Iron Co. v. Harper, 41 Oh. St. 100 (1884) ; Newburg, etc., Co. v. Weare, 27 Oh. St. 343 (1875); Hagerman v. Ohio Building Ass'n, 25 Oh. St. 186, 200 (1874); Lucas v. Greenville Ass'n, 22 Oh. St. 339 (1872); Re- ceivers V. Eenick, 15 Oh. 322 (1846) ; Durrell V. Belding, 9 O. C. C. 74 (1894) ; s, c, 4 C. D. 263; Elektron Mfg. Co. v. Jones Bros. Co., 8 0. C. C. 311 (1894). The corporation is estopped to deny its legal existence. Callender v. Painesville, etc., R. R. Co., supra. § 3237. WHAT AKTICIES MUST STATE IN CEBTAIN CASES.— When the organization is for a purpose which, includes the construction of an improvement which is not to be located at a single place, the articles of incorporation must also set forth: 1. The kind of improvement intended to be constructed. 2. The termini of the improvement, and the counties in or through which it or its branches shall pass. (E. S. 1880.) Stockholders are estopped to question the existence of the corporation col- Clarke v. Thomas, 34 Oh. St. 46, 59 (1877) ; Gaff v. Flesher, 33 Oh. St. 107, 113 (1877); Callender v. Painesville, etc., R. R. Co., 11 Oh. St. 516 (1860); Voorhees v. Bank, 19 Oh. 463 (1850); Trumbull County, etc., Co. v. Horner, 17 Oh. 407 (1848); Second, etc., Bank V. LoveU, 2 C. S. C. 397 (1873) ; Benninger v. Gall, 1 C. S-. C. 331 (1871); Ryan v. Miami, etc., Ry. Co., 10 A. L. R. 2b3 (1881); Mans- field V. Woods, 29 W. L. B. Ill (1893); Farmers', etc., "Trust Co. v. Toledo, etc., Ry. Co., 67 Fed. 49 (1895); s. c, 9 0. F. D. 230. See Racoon River Nav. Co. v. Eagle, 29 Oh. St. 238 (1876). Existence of company attempting to condemn land, A company attempting to exercise the power of eminent domain must prove its legal exist- ence, and the owner of land sought to be con- demned may attack such existence. — Atlantic, etc., R. R. Co. V. Sullivant, 5 Oh. St. 276 (1855); Atkinson v. Marietta, etc., R. R. Co., 15 Oh. St. 21 (1864). Retroactive efBect of ouster. A judgment of ouster against a corporation adjudging it not to be a de jure corporation can have no retroactive effect upon the rights of the corporation, and of parties who dealt with it during its de facto existence, and stockholders do not become liable as partners. — Society Perun v. Cleveland, supra ; Row- land V. Meader Furn. Co., 38 Oh. St. 271 (1882). For Forms of Articles of Incorporation, see Appendix. Validity of designation " in or near." Articles of incorporation are not invalid because the .terminus of the proposed improve- ment is designated as " in or near the town of Lima, Allen County, State of Ohio, at a point on the Cleveland and St. Louis Rail- road;" for the words "in or near" are suffi- ciently definite for such purpose, meaning substantially " in." They authorized the building of no road not substantially in the town named. — Warner v. Callender, 20 Oh. St. 190 (1870); Central R. R. Co. v. Penn. R. R. Co., 31 N. J. Eq;. 475 (1879). Statement of county sufficient. Articles of incorporation are not void for want of certainty where they provide that the road shall " commence at some point to be hereafter designated in the township of Hud- son, in the County of Summit, passing through the County of Portage or Cuyahoga, also through the Counties of Geauga and Lake to terminate at some point to be designated in the township of Painesville, in the County of Lake."— Callender v. Painesville, etc., R R Co., 11 Oh. St. 516 (1860). Only reasonable certainty reauired. The rule only requires reasonable certainty, and the description of the termini and course may be somewhat indefinite in the articles of incorporation, if defined by location. The location must be made with reasonable com- pliance with the description in the articles of incorporation. To require a greater degree of certainty in the articles of incorporation to 100 Private Corporations in Ohio. Articles of Incorporation, § 3238. ensure validity would necessarily defeat the object of the statute in many, if not most, cases. Reasonable latitude must be allowed, for it is by force of such description that a company may send its engineers upon the lands of others to locate the route definitely. — See Callender v. Painesville, etc., R. R. Co., supra; Cleveland, etc., R. R. Go. v. Prentice, 13 Oh. St. 373, 379 (1862). Route stated in alternative. Contiguous counties may be named in the alternative and the terminus may be an undesignated point in a township. The suffi- ciency of the description depends on the cir- cumstances of each case. — See Callender v. Painesville R. R. Co., supra. Wliat description too uncertain. The description of the termini and course of a road " from a point on the Ohio and Pennsylvania State line in the County of Trumbull, in said State of Ohio, to a point on the Ohio River in same State in the County of Brown or Adams," has been held too uncer- tain to support condemnation proceedings. — - Atlantic, etc., R. R. Co. v. SuUivant, 5 Oh. St. 276 (1855). Route may be partially in foreign state. Where the termini are in the state, the arti- cles are not invalid because the described route takes in part of a foreign state. — Pied- mont, etc., Ry. Co. v. Speelman, 67 Md. 260 (1887). Indefinite descriptions — hoiir cured. Indefiniteness of descriptions in articles of incorporation may be cured by legislative recognition or by actual location, construction and operation. — Cayuga R. R. Co. v. Kyle, 5 Thomp. & C..(N. Y.) 659 (1875). Belt roads. The required statement of termini and course does not preclude the building of a cir- cular or belt road, nor a road located in but one county. — State v. Marvin, 51 Kan. 462 (1893). A \rliole road may be located in a, single city. Long Branch Com'rs v. West Line R. R. Co., 29 N. J. Eq. 566 (1878) ; National Docks R. R. Co. V. Central R. R. Co., 32 N. J. Eq. 755 (1880). § 3238. ARTICLES CERTIFIED, PILED WITH SECRETARY OF STATE, AS TO SAME OR SIMILAR NAME.— Tlie official character of the officer before whom the acknowledgment of articles of incorporation is made shall be certified by the clerk of the court of common pleas of the county in which the acknowledgment is taken, and the articles shall be filed in the office of the secretary of state who shall record the same, and a copy duly certified by him shall be prima facie evidence of the existence of such corporation, and all certificates thereafter filed in the office of the secretary of state relating to the corporation shall be recorded; but the secretary of state shall not in any case file or record any articles of incorporation in which the name of the corporation is such as is likely to mislead the public as to the character or purpose of the business authorized by its charter, or is the same as one already Description " from." A description " from " a city or other point includes any point in such city. — See § 3270; Colorado, etc., Ry. Co. v. Union Pac. Ry. Co., 41 Fed. Rep. 293 (1890); Comm. v. Erie etc., R. R. Co., 27 Pa. St. 339, 352 (1856); Chicago, etc., Ry. Co. v. Chicago, etc., Ry. Co., 112 111. 589 (1884); St. Louis, etc., Ry. Co. V. Hannibal, etc., Co., 28 S. W. Rep. (Mo.) 483 (1894). Contra, Northeastern R. R. Co, V. Payne, 8 Rich. L. (S. 0.) 117 (1855). Description " to." A description " to " a certain place is in- clusive.— See § 3270; Rio Grande R. R. Co. V. Brownsville, 45 Tex. 88 (1876); Mason v. Brooklyn, etc., R. R. Co., 35 6arb. (N. Y.) 373 (1861). See Ha try v. Painesville, etc., Ry. Co., 1 0. C. C. 426, 433 (1886); s. c, 1 C. D. 238, 242. Description " at." A description " at " a certain town is in- clusive.— See § 3270; Mohawk Bridge Co. v. Utica, etc., R. R. Co., 6 Paige Cn. (N. Y.) 554 (1837). Description " between." A description " between " certain points is inclusive. — Morris, etc., R. R. Co. v. Central, etc., R. R. Co., 31 N. J. L. 205 (1865). 'What description sufficient. Articles of association of a road corporation describe the termini of the projected road with sufficient certainty when the description can be rendered certain, as where the road is made to start at a point definitely described to run specified courses and distances to an end, the whole length of road being given. — Miller v. Wild Cat Gravel Road Co., 52 Ind. 51 (1875). Statute of limitations — effect. Where the articles of incorporation of a railroad company are defective in not specify- ing with sufficient certainty the terminus of the road, but are properly filed in the office of the secretary of state, such filing is notice to the state of such defect, and if the state neglects for five years (§ 6789, Ohio R. S.) to take advantage thereof by quo warranto or otherwise the right is lost. — State v. Bailey, 19 Ind. 452 (1862). For articles of incorporation of railroad company, see Appendix. General Corporation Law. 101 Articles of Incorporation, § 3238. adopted or appropriated by an existing corporation of this state or so similar to the name of such existing corporation as to be likely to mislead the public, unless the written consent of such prior existing corporation, signed by its president and secre- tary, be at the same time filed with such articles of incorporation. (March 31, 1902, 95 V. 76; April 27, 1896, 92 v. 320; R. S. 1880.) Time of filing. The act of filing the articles, and not the file marks made by the secretary of state, de- termine the time of filing. So if the secretary antedates the filing, the corporation cannot be injured.— State v. Toulkes, 94 Ind. 493 (1883). See King v. Penn, 43 Oh. St. 57 (1885); Haines v. Lindsey, 4 Oh. 88 (1829). Copies as evidence. Certified copies of articles cannot be used as evidence of the existence of a corporation, if they are prima facie invalid. Articles to be so used must show a substantial compliance with the law. — Doyle v. Mizner, 42 Mich. 332 (1879) ; Baptist Church v. R. R. Co., 4 Maekey (D. C.) 43 (18b6); McCallou v. Hybemia So- ciety, 70 Cal. 163 (1886) ; People v. Self- ridge, 52 Cal. 331 (1877) ; Harris v. McGregor, 29 Cal. 127 (1865). Proof of performance of conditions precedent. Where a condition precedent to the right of incorporation is prescribed by law, it is not error to reject as evidence the certificate of incorporation in due form, in the absence of testimony tending to show that the condition has been fulfilled. — Racoon River Nav. Co. v. Eagle, 29 Oh. St. 238 (1876). Articles evidence though purporting to confer unauthorized povrers. Where articles of incorporation are offered in evidence they are not objectionable because they purport to confer powers in excess of those authorized by law, for they are legal as to the powers lawfully granted. The remedy for the attempted exercise of the powers not lawfully granted is by quo warranto. — To- ledo, etc., Ey. Co. v. Toledo, etc., Ry. Co., 6 0. C. C. 362, 391 (1892); s. .;., 3 C. D. 493, 507. Evidence aliunde. Imperfect articles cannot be aided, varied or contradicted by evidence aliunde. — Attorney- General V. Lorman, 59 Mich. 157 (1886); Hallett V. narrower, 33 Barb. (N. Y.) 537 (1860). Certificate of secretary of state. The certificate of the secretary of state to a copy of the articles can only be as to the cor- rectness of the copy. He cannot certify that regular and valid steps have been taken to perfect the articles and that valid articles have been filed. — Doyle v. Mizner, 42 Mich. 332 (1879). Existence of corporation — proof by best evidence. The existence of a corporation cannot be proved by offering in evidence a pleading of such company verified by a superintendent. The best evidence should be ofi'ered. The prac- tice of making denials of corporate existence when there is good reason to believe the party is a corporation is discouraged by the courts. — Memphis, etc.. Packet Co. v. Fogarty, 9 O. C. C. Rep. 418 (1895); s. c, 6 C. D. 375. Discretion of secretary of state as to filing. The duty of the secretary of state, on pre- sentation of articles of incorporation and tender of fees, to file and record such articles, and upon request issue a duly certified copy thereof, is controlled by the statutes of the state, and not by the discretion of the officer except as to matters of form. — State ex rel. V. Taylor, 55 Oh. St. 61 (1896). Discretion of secretary of state as to name. The secretary of state must exercise his dis- cretion in determining whether a company asking of him a certificate of incorporation has adopted a name that is the same as or an imitation of that of an existing corporation, and he will not be compelled by mandamus to issue a certificate until it appears that the law has been complied with by the adoption of a name. — State ex rel. v. McGrath, 92 Mo. 355 (1887). Action of secretary of state not con- clusive. The action of the secretary of state cannot be conclusive as to another corporation hav- ing a similar name. — Cincinnati Vici Shoe Co. V. Cincinnati Shoe Co., 7 N. P. 135 (1899). Object of law to protect names. It is the evident purpose of the statute to protect to some extent the common-law rights both as to the company first adopting a name and as to the public, which may be misled. Where the names so far resemble each other that a person using that care, caution and observation which the public uses, and may be expected to use, would mistake one for the other, then the new name is to be regarded as an imitation of the former. The character of the business and the location of the two cor- porations must be considered. — State ex rel. V. McGrath, supra. Deceptive use of one's ovrn name. If a person permits a corporation to use his name as a part of its name, he cannot there- after permit another corporation to make use of his name in any way likely to deceive or confuse the public. — Thayer, etc., Co. v. Thayer Co., 6 N. P. 300 (1899); s. c, 9 Dec. 288. 102 Private Corporations in Ohio. Articles of Incorporation, § 3238a. Similarity of names. The name " The George A. Thayer Co." is an imitation of " The George A. Thayer Carpet Cleaning and Rug Manufacturing Co." — Thayer, etc., Co. v. Thayer Co., 6 N. P. 300 (1899); 9. c, 9 Dec. 288. The name " The Kansas City Real Estate Exchange " is an imitation of " The Kansas City Real Estate and Stock Exchange Co."— State ex rel. v. McGrath, supra. The name " The Holmes, Booth & Atwood Mfg. Co." is an imitation of " Holmes, Booth & Hayden." — Holmes, etc. v. Holmes, etc., Co., 37 Conn. 278 (1870). If the places of business are great distances apart, and the business will not conflict, two companies may have the same name, e. g. "The Nebraska Loan & Trust Co."— Ne- braska Loan, etc., Co. v. Nina, 27 Neb. 507 (1889). The name " United States Commercial Agency & Collecting Co." is an infringement of " United States Mercantile Reporting Co." — In re U. S. Mercantile Co., 4 N. Y. Supp. 916 (1889). See generally Newby v. Oregon, etc., Ry. Co., 1 Deady (U. S.) 609 (1869); Richardson, etc., Co. V. Richardson, etc., Co., 8 N. Y. Supp. 52 (1889); Farmers' Loan, etc., Co. v. Far- mers' Loan, etc., Co., 1 N. "i:. Supp. 44 (1888) ; Snyder Mfg. Co. v. Snyder, 54 Oh. St. 86 (1896); Ex parte Walker, 1 Tenn. Ch. 97 (1873); Lehigh Valley Coal Co. v. Hamblen, 23 Fed. 225 (1885); Adams v. Brown, 16 Oh. St. 75 (1865). When corporation is created. The making and filing, for the purpose of profit, of articles of incorporation in the office of the secretary of state, do not make an in- corporated company; such articles are simply authority to do so. No company exists within the meaning of the statute until the requisite stock has been subscribed and paid in, and the directors chosen. — State ex rel. v. Insurance Co., 49 Oh. St. 440 (1892). See § 3239, note. Forgery of charter. See § 7091. For forms of certificates, see Appendix. § 3238a. AMENDMENTS, HOW MADE, PROVISO, EECOED, NOTICE, WAIVER, FEE. — Any corporation incorporated under tlie general corporation laws of the state, may, at any meeting of its members or stockholders, of which, and of the business to come before said meeting thirty days' notice has been given by a majority of the directors or trustees of said corporation in a newspaper published and of general cir- culation in the county where the principal place of business of said corporation is located, by a vote of the owners of at least three-fifths of its capital stock then sub- scribed, in the case of corporations having a capital stock, or by a vote of at least three-fifths of its members of corporations having no capital stock, amend its articles of incorporation so as to change its corporate name, or the place where it is to be located, or where its principal business is to be transacted; or so as to modify, enlarge or diminish the objects or purposes for which it is formed; or so as to add thereto any- thing omitted from, or which might lawfully have been provided for in such articles originally; provided, however, that nothing in this supplementary section contained shall authorize a corporation, by amendment, to Increase or diminish the amount of its capital stock; nor shall any corporation, by amendment, change substantially the original purposes of its organization. When adopted, a copy of such amendment, with a certificate thereto affixed, signed by the president and secretary of the corporation, and sealed with the corporate seal, if any there be, stating the fact and date of the adoption of such amendment, and that such copy is a true copy of the original, shall be recorded in the office of the secretary of state, who shall note on the margin of the record of the original articles of incorporation of said corporation, and on the margin of the index thereto, the volume and page where such amendment is recorded; and no such amendment shall take effect until filed for record with the secretary of state as herein provided, and until the secretary of the corporation shall have given notice for three consecutive weeks, in some newspaper of general circulation in the county where the principal office of the corporation is situated, of such amendment; pro- vided, however, that any or all of the notices required by this section may be waived whenever the holders of all of the capital stock, of a corporation having a capital stock, or all the members of a corporation having no capital stock, consent thereto in writing. But no corporation shall change its name to one already appropriated, or to General Corporation Law. 103 Creation and Powers, § 3239. one likely to mislead the public; nor shall any corporation, by amendment, provide for a. purpose which is unlawful. For recording such amendments and for furnishing a certified copy, the secretary of state shall receive a fee of twenty cents a hundred words, to be in no case less than five dollars. (May 18, 1886, 83 v. 193.) Original purpose must not be changed. The authority to amend articles of incor- poration given by this section is controlled by the proviso which denies the right to change substantially the original purpose of the organization, so a company organized to furnish gas and electricity for light, heat and power cannot amend its articles so as to em- power it to own and operate a street railway for the conveyanee of passengers, freight, ex- press and mail matter. — State ex rel. v. Tay- lor, 55 Oh. St. 61 (1898). Discretion of secretary of state. The discretion to be exercised by the secre- taiy of state does not reach to the merits of an application for articles of incorporation, or of an amendment to articles, although it may be exercised as to matters of form. — State ex rel. v. Taylor, supra. Gas and electric company. A eoi"poration organized to manufacture and furnish gas to light the streets, etc., may amend its charter so as to authorize it to manufacture and furnish electricity in addi- tion to gas for the purpose of lighting, with out changing substantially the original pur- poses of its organization. — Picard v. Hughey, 58 Oh. St. 577 (1898). Validity of corporate act after change of purpose. If a corporation amends its charter under this section so as to substantially change its original purposes, any bonds it may execute and issue to further the objects of such illegal amendment will be void in the hands of hold- ers with notice.— See Picard v. Hughey, supra, p.* 595. Incidental amendments. An amendment may be said to be incidental and auxiliary when it merely grants new pow- ers or authorizes new methods and new plans for the purpose of carrying out the original plan and effecting the real object of that plan. — See Dayton, etc., K. R. Co. v. Hatch, 1 Dis. 84 (1855). When assent of all stockholders neces- sary. An amendment of the charter of a railway company authorizing it to engage in the trans- portation of passengers and goods by water is a fundamental change, and must be assented to by all the stockholders. — Marietta, etc., R. R. Co. v. Elliott, 10 Oh. St. 57 (1859). Stochholders' rights lost by laches. Assuming that the legislature has no power to authorize a company to embark in new enterprises and make fundamental changes in its charter without the consent of all its stockholders, nevertheless, before a stock- holder can be entitled to a remedy by injunc- tion against such departure from the original objects of the corporation, he must have shown himself prompt and vigilant in the assertion of his rights as such stockholder. It will not do for him to wait until the mischief is accom- plished, or he will be held to have acquiesced in the change. — Chapman v. Mad River, etc., R. R. Co., 6 Oh. St. 119 (1856); Owen v. Purdy, 12 Oh. St. 73 (1861). Effect of §§ 3866 and 3311. A mining or other company, having buUt a railroad under § 3866, can only change the office of its railroad, not its general office, under § 3311.— State v. Coal Co., 4 N. P. 115 (1897); s. c, 6 Dec. 178. Proof of change of name. The question whether the terms of a statute authorizing a change of name on the part of a railroad company upon the making of certain subscriptions authorized by the same act, has been complied with or not, is, where pertinent, a proper subject of allegation and proof, and courts will not take judicial notice of a state- ment in a report of the commissioner of rail- roads to the effect that the terms of the statute have been complied with, and the name of the company changed. — Railroad Co. V. Hoifhines, 46 Oh. St. 643 (1889). General notes on amendments. See notes to § 3234. For forms of certificate, notice and waiver, see Appendix. § 3239. COEPOEATION CREATED, GENEBAL POWEBS.— Upon such filing of the articles of incorporation, the persons who subscribe the same, their associates, successors, and assigns, by the name and style provided therein, shall thereafter be deemed a body corporate, with succession, and power to sue and be sued, contract and be contracted with, acquire and convey at pleasure all such real or personal estate as may be necessary and convenient to carry into effect the objects of the incorpora- tion, to make and use a common seal, the same to alter at pleasure, and to do all need- 104 Private Corporations in Ohio. Creation and Powers, § 3239. ful acts to carry into effect tlie. objects for which it was created. (May 1, 1852, 50 V. 274, § 3.) When corporate existence begins. As soon as articles of incorporation are duly filed the signers thereof become a body cor- porate, with power to act as pointed out in the statutes. Under the restrictions imposed, the powers fall into two classes — such as may be exercised before and such as cannot be un- til after the election of directors. The corpo- rators may receive subscriptions to stock and elect directors, but the business for the trans- action of which the company was formed can- not be done until after the election of di- rectors. Although a corporation exists from the time of filing the articles, the general effect of the filing is to give the corporators nothing more than authority to form and organize a corporation. — State ex rel. v. Ins. Co., 49 Oh. St. 441 (1892); Ashley v. Ryan, 49 Oh. St. 504, 524 (1892) ; Powers v. Hazel- ton, etc., Ry. Co., 33 Oh. St. 429 (1878); Ashtabula, etc., R. R. Co. v. Smith, 15 Oh. St. 328 (1864); State ex rel. v. Robinson, 12 W. L. B. 269 (1884). See Benninger v. Gall, 1 C. S. C. 331 (1871); Hanna v. International, etc., Co., 23 Oh. St. 622-625 (1873). Preliminary organization for purpose of incorporation does not continue as independent organization after in- corporation. Every corporation is affected after prelim- inary meetings have been held for the consid- eration of the subject in the interests of which it is desired to organize a corporation'; and it cannot be held that after such preliminary meetings have been held, articles of incorpora- tion prepared and forwarded to the secretary of state, and after such articles have been re- turned, properly certified, and adopted by the organization, that the preliminary organiza- tion continues as a separate and distinct organization from the corporation. — Muhl- hauser v. The Cleveland Hospital, 21 0. C. C. 88 (1900). Promoter may agree to secure an office in a corporation to be formed. The rule which forbids a director of a cor- poration from agreeing to secure a person an office in the corporation, does not apply to a promoter, and a recovery can be had for a breach. — Magill v. Rendigs, 12 Dee. 558 (1902). Liability of promoters for secret profits. See Yeiser v. U. S. Board, etc., Co. (XJ. S. C. C. A.), 12 0. F. D. 678 (1901). Contracts iirith corporations before ex- istence. An agreement made with a company before it is incorporated is void for want of mutual- ity. — Dayton, etc., Turnpike Co. v. Coy, 13 Oh. St. 84 (1861). Same subject, exception. Where the promoters of a corporation go forward in good faith and .contract debts which are necessary to the creation and ad- vancement of the corporation, and the cor- poration aftenvard avails itself of the benefit of those acts, it is liable. Thus it is liable for professional services in preparing its articles of incorporation. — City Bldg. Ass'n v. Zah- ner, 6 W. L. B. 389 (1881); Taussig v. St. Louis, etc., Ry. Co., 65 S. W. Rep. (Mo.) 969 (1901). Same subject, bequest to unformed corporation. See Trustees v. Zanesville, etc., Mfg. Co., 9 Oh. 203 (1839). Associates. For the meaning of the word " associates " in an act of incorporation, see State v. Sibley, 25 Minn. 387 (1879) ; Lechmere Bank v. Boyn- ton, 11 Cush. (Mass.) 369 (1853). Ponrers outside of this state. An Ohio corporation can exercise no greater powers outside of this state than it can here, for the reason that its charter is in all cases the source and limit of its powers. So a bank authorized to loan money at a fixed rate in this state cannot loan at a greater rate in an- other state, notwithstanding such greater rate may be legal there. — Ewing v. Toledo Savings- Bank, 43 Oh. St. 31 (1885). See Kit Carter Cattle Co. V. McGillin, 21 0. C. C. 210 (1901). Pollers of corporations, general rule. The general rule is to consider corporations as having such powers as are specifically granted by the act of incorporation or as are necessary for .the purpose of carrying into effect the powers expressly granted and not as having any other. — Bonham v. Tavlor, 10 Oh. 108 (1840); Bank v. Swayne, 8 Oh. 257, 286 (1838); State v. Granville, etc.. Society, 11 Oh. 1, 12 (1848); Straus v. Eagle Ins. Co., 5 Oh. St. 59 (1855); Lessee of Ovenuever v. Williams, 15 Oh. 2(i-31 (1846) ; Franklin Bank v. Commercial Bank, 36 Oh. St. 350 (1881); Columbus, etc., Ry. Co. v. Burke, 19 W. L. B. 27 (1887); Brush Electric Light Co. V. Jones Bros., etc., Co., 23 W. L. B. 329, 331 (1890); Central, etc., Fuel Co. v. Capital, etc. Dairy Co., 60 Oh. St. 96, 104 (1899); State ex rel. v. Eagle Ins. Co., 50 Oh. St. 252, 207 (1893); State v. Washington, etc., Co., 11 Oh- 96 (1841); Lessee v. Cincinnati, etc.. Turn- pike Co., 11 Oh. 392 (1842); James v. Cin- cinnati, etc., R. R. Co., 2 Dis. 201 (1858); Rv. V. Iron Co., 46 Oh. St. 44, 49 (1888); R. R. V" Hinsdale, 45 Oh. St. 556, 572 (1888). Rule of construction. An act of incorporation, like any other stat- ute, should be construed in such manner as General Corporation Law. 105 Creation and Powers, § 3339. will best answer the intention of the legisla- ture, and all its parts should, if possible, be made subservient to and in harftiony with the leading purposes and objects intended to be accomplished, and for ^'hich the corporation 18 created. To effect this, the whole must be considered and construed together, with direct reference to those purposes and objects and all its minor and incidental provisions be so used as to promote them. To dissect it into parts and to seize upon isolated portions from which to graft independent powers not in harmony with or necessary to attain the main design is, in almost every ease, to defeat the intention of the legislature. — Straus v. Eagle Ins. Co., 5 Oh. St. 59 (1855). See White's Bank v.- Toledo Ins. Co., 12 Oh. St. 601, 605 (1861); James v. Cincinnati, etc., E. K. Co., 2 Dis. 261 (1858). Same subject. Owing to the change of circumstances and the increased power of the legislature over corporations, the language of acts of incor- poration is to be construed by exactly' the same rules of interpretation as are applied to like words in any contract or statute. — Na- tional Bank v. Ins. Co., 41 Oh. St. 1, 12 (1884). Same subject. Powers cannot be implied from the want of express provision in a charter, as, for instance, where the charter of a gas company is silent as to the rates it may charge, power in the corporation to fix its own rates cannot be implied. — Zanesville v. Gas Light Co., 47 Oh. St. 1, 31 (1889). Same subject. Laws conferring corporate privileges and immunities upon corporations must be strictly construed, and any ambiguity in the terms of the charter of a corporation must operate against the corporators and in favor of the public— State v. Vanderbilt, 37 Oh. St. 590, 641 (1882); State ex rel. v. Eagle Ins. Co., 50 Oh. St. 252, 267 (1893); Debolt v. Ohio, etc., Trust Co., 1 Oh. St. 563 (1853); Matheny v. Golden, 5 Oh. St. 361, 417 (1856). See James V. Cincinnati, etc., R. R. Co., 2 Dis. 261 (1858). Modification of old rule. The line of cases resting upon the authority of Bank v. Swayne, 8 Oh. 258, and ending Iwith Kilbreih v. Bates, 38 Oh. St. 187, rest jupon their own peculiar merits; and while no 'doubt good law applicable to the situation then before the court, are not to be unre- '\ servedly applied to our modern corporations. — See Larwell v. Hanover, etc., Society, 40 Oh. St. 274, 285 (1883) ; National Bank v. Ins. Co., 41 Oh. St. 1, 11 (1884). Application of general rule. The general rule should be reasonably ap- plied with a view of promoting the legitimate objects of the corporation rather than with a strictness that would so hedge it about as to obstruct the practical attainment of the cor- porate purpose or embarrass the corporate business. Those implied powers whicji a cor- poration has, in order to carry into effect its legitimate purposes, are not limited to such as are indispensable to their accomplishment, but include all those powers that are neces- sary in the sense of appropriate, convenient and suitable, including a right of reasonable choice of means to be employed; and whether an act conies within those powers must be determined in each case from all the facts and circumstances. Acts which, if standing alone, or when engaged in as a business, would be beyond the powers of a corporation, are not necessarily ultra vires, when they are merely incidental to or form a part of an entire transaction that, in its general scope, is within the corporate purpose. The validity of transactions is to be determined from their general character, considered as a whole, rather than by segregation into individual parts, and each regarded as distinct from the others. — Central, etc.. Fuel Co. v. Capital, etc.. Dairy Co., 60 Oh. St. 96 (1899). See Central Trust Co. v. Columbus, etc., Ry. Co., 87 Fed. 815 (1898); s. c, 10 0. F. D. 328; Railroad Co. v. Furnace Co., 37 Oh. St. 321, 330 (1881). Same subject. In determining whether a corporate act is ultra vires or not, regard must be had to its effect and the real object in view. — Bank v. Flour Co., 41 Oh. St. 552, 558 (1885). Influence of circumstances. In applying the doctrine of ultra vires, re- gard must not only be had to the unauthor- ized agreement or transaction, but also to the relation which the litigating parties sustain to it. — Ehrman v. Ins. Co., 35 Oh. St. 324, 337 (1880); Central, etc.. Fuel Co. v. Capital, etc., Dairy Co., 60 Oh. St. 96, 106 (1899). Acts of stockholders, when deemed cor- porate acts. When all or a majority of the stockholders comprising a corporation do an act which is designed to affect the property and business of the company, and which, through the con- trol their numbers give them over the selec- tion and conduct of the corporate agencies, does affect the property and business of the company in the same manner as if it had been done by a formal resolution of its board of di- rectors, and the act so done is ultra vires of the corporation and against public policy, and was done by them in their individual capacity for the purpose of concealing their real pur- pose and object, the act should be regarded as that of the corporation, and may be chal- lenged by the state as such. — See paper bv F. B. Fenney, 32 W. L. B. 318; State ex rel. v. The Standard Oil Co., 49 Oh. St. 137 (1892). 106 Private Corporations in Ohio. Creation and Powers, § 3239. Purpose of corporate act — evidence. Where a corporation is organized to do an act in furtherance of its business, evidence is admissible to show the real purpose of the act, and that it was for an unauthorized object. — See White's Bank v. Toledo Ins. Co., 12 Oh. St. 601, 607 (1861); Straus v. Eagle. Ins. Co., 5 Oh. St. 59 (1855). Notice of corporate powers. The powers of a corporation are presumed to be known as matters of law to all persons interested in it or having dealings with it. — Lee V. Hartwell, 5 W. L. G. 9 (1860); James V. Cincinnati, etc., R. R. Co., 2 Dis. 273 (1858). Presumption of validity of corporate acts. It is presumed that a corporation is acting within its powers, and a contract, bill or note of a corporation will be presumed to be valid until the contrary is shown. — Straus v. Eagle Ins. Co., 5 Oh. St. 59, 62 (1855). ITltra vires acts do not dissolve per se. The powers of a corporation do not cease by the mere act of violating its charter, though there be a provision in the charter that such a consequence shall ensue. The act of viola- tion must be established by some proceeding instituted by the state. It is the right of the government (which may waive any violation) that a charter shall not be destroyed or even surrendered without its assent. — Einnell V. Burt, 2 Handy, 202 (1856); Benninger v. Gall, 1 C. S. C. 331 (1871). See Webb v. Moler, 8 Oh. 552 (1838). 'When incidental ultra vires act valid. A corporation exercising a reasonable choice of means of accomplishing an act within its general powers may incidentally do some act not authorized, as, for instance, where a cor- poration, to avoid delay and expense in ob- taining a running business, buys out the busi- ness of a partnership; it may take with the property outstanding claims, including a claim for damages caused by negligence, which it may enforce, although it would have no gen- eral power to buy claims of that nature. — Central, etc., Fuel Co. v. Capital, etc.. Dairy Co., 60 Oh. St. 96 (1899). Contracts partly ultra vires. Where a contract with a corporation is partly legal and partly ultra vires, the legal part will be enforced if it can be separated from the part which is ultra vires. — MoiTis V. Way, 16 Oh. 409 (1847). ■Who may question corporate powers? A person against whom a corporation may claim the right to exercise a power may call the power in question and require the com- pany to show the existence of the power. Even after an adjudication upon the question, the company may claim and exercise the right as to other persons until ousted by the state. — Zanesville v. Gas Light Co., 47 Oh. St. 1 (1889); Gas Light Co. v. Zanesville, 47 Oh. St. 35, 47 (1889). ) Rights of stranger to transaction. ' A stranger to an agreement or transaction, has no right to question its validity. To ob- tain a standing in a court of justice to make such inquiry a party must show that he is interested in the question, and that the execu- tion of the agreement operates to his injury or prejudice; so the maker of a note, when sued by a corporation, which acquired the note from the payee company, cannot ques- tion the powers of the companies to make the transfer. — Ehrman v. Union, etc., Ins. Co., 35 Oh. St. 324 (1880); White's Bank v. Toledo Ins. Co., 12 Oh. St. 601 (1861) ; Bank v. Mcln- tyre, 40 Oh. St. 528 (1884) ; Central, etc.. Fuel Co. V. Capital, etc., Dairy Co., GO Oh. St. 96 (1899) ; Gould V. Union, etc., Ins. Co., 8 W. L. B. 281 (1882); s. l-., 8 Dec. 525. Guaranty of ultra vires contracts. When a contract not illegal, immoral or contrary to public policy is entered into by a corporation through its officers and direct- ors, a written guaranty that such corpo- ration will perform its promise under the contract is valid and enforceable, although the contract of the corporation may be void as ultra vires. — Zerkle v. Price, 5 N. P. 480 (1898); s. c, 7 Dec. 465. Fiction of legal entity of corporation. The fiction that a corporation is a legal entity distinct from the persons who com- pose it can never be resorted to when it al- lows the persons .composing the corporation to work an injury to any one. — Sportsman Shot Co. V. American Shot, etc., Co., 30 W. L. B. 87 (1893); Cronin v. Potter's Co-op. Co., 29 W. L. B. 52 (1892); First Nat. Bank V. Trebein, .59 Oh. St. 316 (1898); State ex rel. V. Standard Oil Co.. 49 Oh. St. 137 (1892). Partnership reorganized as corporation — liability. The incorporation of partnership business without notice to creditors will not free part- ners from individual liability for debts of the company. — Perkins v. Eouss, 29 So. Rep. (Miss.) 92. liiahility of corporation taking part- nership property. Where the members of a partnership form a corporation and transfer all the property to it, it becomes liable for the partnership debts. — See Andres v. JNIorgan, 62 Oh. St. 230 (1900). When partnership obligations deemed paid. When a partnership, which has given its notes to a party, is converted into a corpo- ration and it sends its notes to take up the partnerehip obligations, the payee cannot General Corporation Law. 107 Creation and Powers, § 3239. keep both, but must choose. — See Ellis v. Ballou, 88 N. W. Eep. (Mich.) 898 (1902). Corporation used to defraud — liabili- ties. If persons with the design to defraud any one or the public generally, combine together and succeed in their purpose, they must re- spond in damages to those injured, and they cannot defend on the ground that they have been duly incorporated and acted as a cor- poration. — Bartholomew v. Bentley, 1 Oh. St. 37, 44 (1852); Bartholomew v. Bentley, 15 Oh. 659 (1846); Brundred v. Rice, 49 Oh. St. 640 (1892); Raymond v. Spring Grove, etc., Ey. Co., 21 W. L. B. 103 (1889). Same subject. Where a failing debtor forms a corporation composed of himself and members of his fam- ily, he taking substantially all the stock, and at once conveys all his property to the cor- poration in exchange for the stock by him taken, and for no other consideration, and im- mediately places all his stock except one share with certain of his creditors who have knowledge of the facts, as collateral security to their claims, and as president and general manager retains control of the property, such a conveyance and transaction is a fraud on creditors, and may be set aside. When it is made to appear that a charter is being used to defraud, and conceal the acts of the real parties, it will be dealt with as though no corporation had been formed. — First Na- tional Bank v. Trebein, 59 Oh. St. 316 (1898). See Andres v. Morgan, 62 Oh. St. 236 (1900). Personal liability for ultra vires acts. Where the entire business carried on by persons in the name of the corporation is such that the corporation is prohibited by law from -doing, they cannot interpose the corporate privileges between them and the liabilities whicli the law imposes upon individuals in the transaction of similar business without the use of a corporate name. — Medill v. Collier, 16 Oh. St. 613 (1886); Kearny v. Buttles, 1 Oh. St. 362 (1853); Rowland v. Meader Fur- niture Co., 38 Oh. St. 269 (1882); Lawler v. Walker, 18 Oh. 151 (1849); Lawler v. Burt, 7 Oh. St. 340 (1857); Ridenour v. Mayo, 40 Oh. St. 9 (1883). See Manufacturers, etc., Ass'n V. Lynchburg Drug Mills, 8 0. C. C. 112 (1893). Same subject. Where a corporation has general power to do an act or make a contract, but does the act or makes the contract to an extent, for a pur- pose or in a mode not authorized, the persons interested in the corporation are not person- ally liable as the makers of the contract or the doers of the act. — Raymond v. Spring Grove, etc., Ry. Co., 21 W. L. B. 103 (1889). Same subject. All the stockholders of a corporation are not personally responsible for the debts con- tracted in the transaction of the business the corporation is prohibited from doing. The liability is fixed upon those who engage in or sanction the business. — Medill v. Collier, 16 Oh. St. 613 (1866); Kearny v. Buttles, 1 Oh. St. 362 (1853) ; Second Nat. Bank v. Hall, 35 Oh. St. 158, 166 (1878). See Rianhard v. Hovey, 13 Oh. 300. (1844). Estoppel. A creditor is not estopped to claim against the interested parties by his having recovered judgment against the corporation or having proved his claim against it in bankruptcy proceedings, and received a dividend. — Ride- nour V. Mayo, 29 Oh. St. 138 (1876) ; Meader Furniture Co. v. Rowland, 3 W. L. B. 480 (1878). Corporation not estopped by ratifica- tion of stockholders. A corporation is not estopped from main- taining an action to set aside ultra vires acts by the fact that at the time of the act the directors owned all its capital stock, and as stockholders unanimously ratified what they as directors had done. — See Central Trust Co. v. Columbus, etc., Ry. Co., 87 Fed. 815 (1898); Columbus, etc., Ry. Co. v. Burke, 19 W. L. B. 27 (1887). Contra, and better rule, s. c, 20 W. L. B. 287. Rights of stockholders, A stockholder has the right to insist upon the confinement of corporate acts and business within the scope of its powers, but in a proper ease a, stockholder may be denied relief be- cause of his assent to or acquiescence in the acts complained of. — Hill v. Cincinnati Hotel Co., 25 W. L. B. 425 (1891) ; Goodin v. Evans, 18 Oh. St. 150 (1868); Sanderson v. JEtna, etc., Nail Co., 34 Oh. St. 442 (1878); Baldwin V. Hillsboro Ry. Co., 10 W. L. J. 337 (1853); Chapman v. Mad River, etc., R. R. Co., 6 Oh. St. 119 (1856); Zabriskie v. Cleveland, etc., R. R. Co., 64 U. S. 381 (1859). Same subject. The court of equity will not hear a stock- holder assert that he is not interested in pre- venting the law of the corporation from being violated. — Zabriskie v. Cleveland, etc., R. R. Co., 64 U. S. 381 (1859). Bights of members of corporations not for profit. Any member of a religious corporation has the right by injunction to prevent a breach of trust by the corporation or a majority of its members. — Wiswell v. First, etc.. Church, 14 Oh. St. 31, 40 (1862). liiability for assault and battery. A corporation is not liable to be sued in an action of assault and battery. — Orr v. Bank of U. S., 1 Oh. 36 (1821). See Nelson, etc.. College Co. v. Lloyd, 60 Oh. St. 448 (1889); tassenger R. R. Co. v. Young, 21 Oh. St. 518 (1871); Little Miami R. R. Co. v. Wetmore, 19 Oh. St. 110 (1869). 108 Private Corporations in Ohio. Creation and Powers, § 32B9. liiability for libel. A corporation may be sued for libel the same as an individual. — Union, etc., Ins. Co. V. Mutual, etc., Ins. Co., 2 W. L. B. 269 (1877). liiability for trespass. An action of trespass quare elausum fregit will not lie against a corporation. — Foote v. Cincinnati, 9 Oh. 31 (1839); Ward v. Toledo, etc., R. R. Co., 10 W. L. J. 365 (1853). Liability for negligence. Corporations are liable for injuries arising from .the negligence of their agents in the course of their employment in the same man- ner and to the same extent as individuals. — Cleveland, etc., R. R. Co. v. Keary, 3 Oh. St. 201 (1854). See as to charitable Institutions Conner v. Sisters of Poor, 7 N. P. 514 (1900) ; Johnson v. Lawrence Hospital, 12 Dec. 795 (1902). Fcnrer to contract. Inasmuch as neither the kind of contracts nor their subject-matter, nor the extent to which they may be made, is ascertained or defined in this section, the capacity or power to contract must have reference to and be limited by the nature of the corporate busi- nees engaged in. — Hays v. Gallon Gas Co., 29 Oh. St. 330, 338 (1876). Same subject. Unless expressly restrained by its charter, every corporation has the incidental power to make any contract and evidence it by any instrument that may be necessary and proper to accomplish the objects for which it was created. — Straus v. Eagle Ins. Co., 5 Oh. St. 59, 62 (1855). Form of contract. A company authorized to loan its money on bonds and mortgages may take and enforce a loan on a note and mortgage. — National Bank v. Ins. Co., 41 Oh. St. 1 (1884). See Andes Ins. Co. v. McCoy, 6 A. L. R. 486 (1877). Corporation may sue for slander. A corporation for profit may maintain an action for damages against a person who has injured the reputation and business of such corporation by a slander of its managing agent. — Qeveland Police Co. v. Brayton, 19 0. C. C. 47 (1899). Contract for a term of years. A corporation may, if desirable, make a contract to run a term of years. — R. R. Co. V. Furnace Co., 37 Oh. St. 321 (1881). Executed contracts. Where a contract not illegal has been exe- cuted and fully performed on the part of either the corporation or the other contract- ing party, neither will be heard to object that the contract and such performance were not within the legitimate powers of the cor- poration. — Larwell v. Hanover, etc., Society, 40 Oh. St. 274, 285 (1883); Hays v. Gallon, etc.. Gas Co., 29 Oh. St. 330, 340 (1876); Hamilton, etc.. Hydraulic Co. v. Cincinnati, etc., R. R. Co., 29 Oh. St. 341 (1876) ; Arm- strong V. Karshner, 47 Oh. St. 276, 296 (1890). See Norwalk Bank v. Norwalk, etc., Stamping Co., 6 Oh. Dec. 70 (1897); Hill v. Cincinnati Hotel Co., 25 W. L. B. 425 (1891). See contra, Simpson v. Bldg. Ass'n, 38 Oh. St. 349 (1882). PoTsrer to borroiv money. When not prohibited, a corporation may borrow money to carry on the objects of its creation, and it may evidence and secure the loan by appropriate instruments. — Larwell v. Hanover, etc.. Society, 40 Oh. St. 274, 282 (1883); Hays v. Gallon Gas, etc., Co., 29 Oh. St. 330 (1876); Raymond v. Spring Grove, etc., Ry. Co., 21 W. L. B. 103 (1889) ; Burt v. Rattle, 31 Oh. St. 116 (1876); Bosche v. To- ledo Display Horse Co., 14 0. C. C. 289 (1897) ; s. c, 7 C. D. 374. See § 3256, notes. Same subject — accommodation. A corporation has no power to become an accommodation indorser or maker of commer- cial paper, and a note so indorsed is void as against the company in the hands of one hav- ing notice of the intended use of the money. — Benedict v. Market Nat. Bank, 4 N. P. 231 (1897); s. c, 6 Dec. 320. Same subject — usurious interest. Where a corporation having power to bor- row money makes a loan at usurious rates, it cannot plead its want of power to contract for more than a legal rate, but it must stand on the same footing as a natural person. — Lar- well V. Hanover, etc.. Society, 40 Oh. St. 274 (1883). Execution of notes. Corporate notes are properly executed when they have a clause like the following: " In testimony whereof, said company have caused their corporate seal to be attached hereto and signed by their president and at- tested by their secretai-y, this 1st day, etc. JOHX JOXES, (Seal of company.) Prest. Wm. Smith, Secu-" — Hays V. Gallon Gas, etc., Co., 29 Oh. St. 330, 334 (1876). Power to purchase negotiable paper. A corporation having power to invest its funds in commercial paper has no power to buy a note for the sole purpose of assisting a third person in collecting the same by ofetain- ing a lien upon stock of the corporation owned by the maker, the corporation having a loan on its stock to secure debts to it from stock- General Corporation Law. 109 Creation and Powers, § 3239. holders. Such a transaction is void at least to the extent of releasing the stock owned by the maker of the note from any lien in favor of the company. — White's Bank v. Toledo Ins. Co., 12 Oh. St. 601 (1861). Same subject. An insurance company has no power to buy notes on credit for the purpose of setting the same off against claims against it. — Straus V. Eagle Ins. Co., 5 Oh. St. 59 (1855). Same subject. A corporation has no power to purchase negotiable paper except in the course of its legitimate business. — Cuyahoga Furnace Co. V. Lewis, C. L. Rec. 16 (1855). Poorer to charge interest. Where the charter of a company is silent as to the rate of interest to be charged by it on loans, a stipulation for a rate higher than the maximum fixed by the usury laws of the state does not invalidate the loan. The prin- cipal, and interest thereon at the legal rate, may be collected. — National Bank v. Ins. Co., 41 Oh. St. 1 (1884); Larwell v. Hanover, etc.. Society, 40 Oh. St. 274 (1883); Ewing v. Toledo Savings Bank, 43 Oh. St. 31 (1885); State ex rel. v. Urbana, etc., Ins. Co., 14 Oh. 6 (1846). Same subject. AA'Tiere a bank charter declares that it shall not take more than six per cent, interest upon loans, a contract for a greater rate of interest is totally void. — Bank v. Swayne, 8 Oh. 257 (1838); Miami Exporting Co. v. Clark, 13 Oh. 1 (1844) ; Preble County v. Russell, 1 Oh. St. 313; Bank of Wooster v. Stevens, 1 Oh. St. 233 (1853); Russell v. Failor, 1 Oh. St. 329 (1853); Union Bank v. Bell, 14 Oh. St. 209 (1863); Kilbreth v. Bates, 38 Oh. St. 187 (1882); Lee v. Hartwell, 5 W. L. G. 9 (1860). See Southern Bank v. Gassoway, 1 Dis. 207 (1856); Kilbreth v. Wright, 1 W. L. B. 6 (1876); Creed v. Commercial, etc.. Bank, 11 Oh. 489 (1842); Spaulding v. Bank, 12 Oh. 544 (1841); Dunkle v. Renick, 6 Oh. St. 527 (1856); McLean v. Lafayette, 3 McLean (U. S.) 587 (1845); a. c, 2 0. F. D. 412. Power of national banks to charge in- La Dow V. Bank, 51 Oh. St. 234 (1894); Shunk V. First Nat. Bank, 22 Oh. St. 508 (1872); Bank v. Slemmons, 34 Oh. St. 142 (1877); Hade v. McVay, 31 Oh. St. 231 (1877); Allen v. First Nat. Bank, 23 Oh. St. 97 (1872); First Nat. Bank v. Garlinghouse, 22 Oh. St. 492 (1872). Poirer to hold stock in other corpora- tions. A corporation has no power to subscribe for or become the owner of any portion of the capital stock of another corporation unless authority is clearly conferred by statute. — Franklin Bank v. Commercial Bank, 36 Oh. St. 350 (1881) ; Ry. Co. v. Iron Co., 4U Oh. St. 44 (1888); Columbus, etc., Ry. Co. v. Burke, 19 W. L. B. 27 (1887); Hafer v. N. Y.. etc., R. R. Co., 14 W. L. B. 68, 70 (1885); Easun V. Buckeye Brewing Co., 51 Fed. 156 (1892); s. c, 7 0. F. D. 188. Contra, Smith v. New- ark, etc., R. R. Co., 8 0. C. C. 583 (1894); s. c, 4 C. D. 356. Same subject — recovery of money paid. Where a corporation delivers goods or pays money in payment of a subs,cription to the stock of another company, it cannot recover the same.— Ry. Co. v. Iron Co., 46 Oh. St. 44 (1888). Same subject — prevention of loss. A corporation has the power to hold stock of another corporation if necessary to secure itself from loss. — See Armstrong v. Heran- court Brewing Co., 26 W. L. B. 39, 40 (1891). Same subject — building and loan asso- ciations. A corporation has power to subscribe for shares in a building and loan association for the purpose of making a loan. — Norwalk Bank Co. v. Norwalk, etc., Stamping Co., 14 0. C. C. 1 (1897); 7 C. D. 275. Power to deal in and hold its ow^n stock. A corporation has no power, unless specially authorized, to purchase, deal in, or hold its own stock. — Holcomb v. Gibson, 39 W. L. B. 380 (1898); Hubbard v. Riley, 3 W. L. B. 434 (1878); Shaw v. Ohio, etc.. Installation Co., 19 W. L. B. 292 (1888) ; Coppin v. Green- lees, etc., Co., 38 Oh. St. 275 (1882) ; Benedict V. Market Nat. Bank, 4 N. P. 231 (1897); s. c, 6 Dec. 320; Wills v. Reed, 5 W. L. B. 79 (1880); Merchants' Nat. Bank v. Overman Carriage Co., 17 0. C. C. 253 (1898) ; s. c, 9 C. D. 738; State ex rel. v. Oberlin, etc.. Loan Ass'n, 35 Oh. St. 258 (1879); Cleveland, etc., R. R. Co. V. Kelley, 5 Oh. St. 180, 193 (1855). See State v. Franklin Bank, 10 Oh. 91, 98 (1840). Same subject, esception. One exception to the general rule is that a corporation may have a lien on its own stock in equity if necessary to protect itself against loss, as where directors have used .corporate funds to pay personal debts secured by the pledge of their stock; in such case the com- pany may follow the funds, and if necessary have and assert a lien on the stock pledged. — Columbus, etc., Ry. Co. v. Burke, 19 W. L. B. 27 (1887). Same subject, exception. A corporation may take and hold its ovra stock if necessary to settle a dispute; as, for instance, where a corporation has exchanged stock for property, it may re-exchange if necessary to settle a dispufe as to the value or merits of the property. — See Sanderson v. 110 Private Corporations in Ohio. Creation and Powers, § 3339. ^tna Iron Co., 34 Oh. St. 442 (1878); Mor- gan V. Lewis, 46 Oh. St. 1 (1888); Beggio v. Sandheger, 8 N. P. 13, 15 (1900). Same subject, exception. A corporation may buy or take its own stock if necessary to secure itself from loss on a pre-existing debt. — Taylor v. Miami Ex- porting Co., 6 Oh. 176 (1833). See State v. Franklin Bank, 10 Oh. 91, 97 (1840). Same subject, exception. A company may expend money to take up or regain stocli which has been fraudulently issued, where there is reason to apprehend that otherwise great loss will result to it. — Cincinnati, etc., R. R. Co. v. Duckworth, 2 0. C. C. 518 (1887); s. c, 1 C. D. 618. Same subject, exception. It seems that a corporation, as a part of a contract of sale of shares of its capital stock, may agree to buy the same back at a stated time, and the contract will be enforced, there being no intervening rights of creditors. — See Zerkle v. Price, 5 N. P. 480 (1898); s. c, 7 Dec. 465; Shoemaker v. Goghen Township, 14 Oh. St. 569, 583 (1863); Weeden v. Lake Erie, etc., R. R. Co., 14 Oh. 563 (1846). See Stunt V. Newark Weldless Tube, etc., Co., 22 O. C. C. 120 (1901). Same subject, exception. A purchase of stock by a, corporation, in consideration of the retirement of the owners from the business, does not come within any of the exceptions to the general rule. — Mer- chants' Nat. Bank v. Overman Carriage Co., 17 0. C. C. 253 (1898) ; s. c, 9 C. D. 738. Same subject, exception. A surrender of stock to a corporation by the owner, in consideration of the payment to the owner of a proportion of the earnings of the corporation, does not come within tne exceptions to the general rule, and is ultra vires. — Shaw v. Ohio, etc.. Installation Co. 19 W. L. B. 292 (1888). Same subject, exception. Where an agent of a company sold its stock with the agreement that the purchaser might buy land of the company at a future day and pay for the same with the stock, the company cannot enforce part of the agreement and avoid the rest because of want of authority in the agent. It must execute the whole con- tract or refund the money. — Weeden v. Lake Erie, etc., R. R. Co., 14 Oh. 563 (1846). What is a, purchase of its own stock? Where a corporation, by resolution, author- ized the purchase of a part of its own stock by a person as trustee, to be paid for by its notes, it is a purchase of tho stock by and for the company. — Merchants' Nat, Bank v. Overman Carriage €o., 17 0. C. C. 253 (1898) ; s. c, 9 C. D. 738. Powrer to form partnership. A corporation has no power to enter into a partnership with an individual or another corporation. — Merchants" Nat. Bank v. Standard Wagon Co., 6 N. P. 264 (1899) ; s. c, 9 Dec. 380. See Pomeroy Salt Co. v. Davis, 21 Oh, St, 555, 573 (1871); Andrews, etc., Co. v. Smead, etc., Co., 7 N. P. 439 (1895) ; Geurinck V. Alcott, 66 Oh. St. 94 (1902). What joint arrangements or combina- tions can be formed. See Geurinck v. Alcott, 66 Oh, St, 94 (1902). Property rights of corporations. The property of a corporation is " private property " within the meaning of § 19 of article 1 of the constitution. — Ohio ex rel. v. Neflf, 52 Oh. St. 375 (1895). PoTver to buy land. At common law corporations had power to buy and sell land unless specially restrained. The modern rule is to allow them to buy and hold such lands as may be necessary in the transaction of their business. If necessary to obtain materials, a company may buy land. — Lessee of Overmeyer v. Williams, 15 Oh. 26 (1846). Purchase of unnecessary land. A turnpike company cannot acquire the fee of land occupied by it, and on which it has an easement sufficient for its purposes, for the purpose of preventing a railroad company from building a bridge across its road. — Wooster Turnpike Co. v. C. P. & V. E. R. Co., 15 0. C. C. 268 (1897) ; s. c, 8 C. D. 269. Same subject. Where a company purchases real estate for an unauthorized purpose, on sale by it, its vendee acquires good title, for the reason that the company's vendor and the company are estopped to plead a want of power in the com- pany.— Walsh V. Barton, 24 Oh. St. 28, 42 (1873). 'What real estate necessary to business. Where a company organized to do a safe- deposit business erects a large buildin" and uses only a trifling space for safe-deposit business, a tenant cannot plead ultra vires as a defense to an action for rent. — Rector v, Hartford Deposit Co., 60 N. E. 528 (111.) (1901). Right of third party to question title. Where property which a corporation under certain circumstances is authorized to acquire is purchased in a mode or for a purpose not authorized, the title of the corporation to the property cannot be defeated by a party who is a slraiigci- to the agreement by which the jiroperty was acquired, and who is not injured by the transfer. — Ehrman v. Union, etc, Ins Co,. 35 Oh, St. 324 (1880); Walsh v. Barton, 24 Oh, St. 28, 42 (1873). See Bank v, Mcln- General Corporation Law. Ill Creation and Powers, § 3239. tyre, 40 Oh. St. 538 (1884) ; Webb v. Moler, 8 011.548,(1838). Estoppel of licensees. Where a license to use land is obtained from a corporation, the licensee is estopped to deny the power of the corporation to own the land. — See Hamilton, etc., Hydraulic Co. v. Cincinnati, etc., R. E. Co., 29 Oh. St. 341 (1876). Purchase for unauthorized purpose. Where a, corporation purchases land and gives its notes in payment, no recovery can be had on the notes by one having knowledge of the circumstances, if the land was bought for an unauthorized purpose. — Vos v. Cedar Grove, etc., Ass'n, 9 W. L. B. 194 (1883). Estoppel of company. A corporation having bought land ordered sold in the case in which it was not a party, cannot, after acquiescing in the confirmation of the sale, set up on proceedings in error its want of power to purchase. — Bank of U. S. V. White, Wright, 574 (1834). Power of hotel, storeroom, and other companies to hold land. See § 3884a. Sale of entire property' — rescission. Where a number of companies desired to combine, and did so by transferring their property to a new corporation, which gave in payment such number of its shares as the value of the property entitled each to have, one of the companies, on becoming dissatisfied with the arrangement, cannot maintain an action for rescission of the sale on ground that the sale was in restraint of trade, unless it can tender back all the shares by it received. Sportsman Shot Co. v. American Shot, etc., Co., 30 W. L. B. 87 (1893). Privilege of banking — irhen conferred. A grant of power to a corporation to hold and dispose of real and personal estate, to contract, etc., does not authorize it to do banking business. — State v. Granville, etc., Society, 11 Oh. 1 (1841). Word " successor " not necessary to perpetual grant. Where a grant is made to a corporation ag- gregate, which may be perpetual, the word " successors " is not necessary to create a perpetuity of right, or a fee simple. — ■ Rail- way V. Bosworth, 46 Oh. St. 81 (1888). Conveyance of corporation — presump- tion. A deed of a corporation in due form caiTies with it the presumption that the executing officer had authority. — Bank v. Flour Co., 41 Oh. St. 552, 557 (1885); Cincinnati, etc., R. R. Co. V. Harter, 26 Oh. St. 426 (1875). Same subject — execution. Where an assignment of a lease in the granting clause purports to be made in the name of a person who is therein described as the treasurer of an incorporated company, and such named person, as treasurer of and in behalf of such company, sets his hand and the seal of the company to the instrument, the assignment will not be held to be the act of the company.— Norris v. Dains, 52 Oh. St. 215 (1894). Same subject. A deed signed and sealed by the president personally, and not by tne corporation, is in- effectual as a conveyance. — Lessee of Hatch V. Barr, 1 Oh. 390 (1824). Same subject. In the absence of any statutory requirement to the contrary, a deed of conveyance by a banking corporation is properly executed when its cashier, on behalf of the bank and by its authority, affixes thereto the corporate seal and subscribes his name as such cashier, and in such ease the cashier is the proper person to acknowledge the deed. — Sheehan v. Davis; 17 Oh. St. 571 (1867). Same subject — proof of execution. The signature of the president of a corpora- tion to a deed does not prove itself, nor is it proven by the seal of the corporation. The execution of the deed should be proved if ob- jected to. — Walsh V. Barton, 24 Oh. St. 28, 41 (1873). Same subject. See paper by S. H. Wilder, 9 W. L. B. 253 (1883). Stockholder may -witness deed. A stockholder of a corporation may be a witness to a deed to it. — Johnson v. Turner, 7 Oh. pt. 2, 216 (1836); Read v. Peoples, etc., Co., Lucas Probate Court (1900). Affirmed by Common Pleas Court; s. c, 23 C C 25 (1901).. Stockholder may act as notary. A stockholder of a company may officiate as notary in taking the acknowledgment to a deed to his corporation. — Norton v. Colum- bian, etc., Ass'n, 6 W. L. B. 141 (188i); Reed V. Peoples, etc., Co., Lucas Probate Court (1900). Proof of debt i a chattel mortgage. The certificate of the notary may obviate defects in the proof of debt in a chattel mort- gage to a corporation.— See Gambrinus Stock Co. V. Weber, 41 Oh. St. 689 (1885). Corporate seal. When a corporation has no seal, an arbitra- tion bond duly authorized by the directors and signed in the name of the corporation by the president with his private seal in scroll is valid against the corporation.— Western Female Seminary v. Blair, 1 Dis. 372 (1857). Same subject. The seal of a corporation is not necessary to the valid execution of a. deed of the corpora- 112 Private Corporations in Ohio. Creation and Powers, § 3239. tion in this state. — See East End, etc.. Loan Co. V. Hughcy, 16 O. C. C. 19 (1898); s. c, 8 C. D. 724. tiee Payser v. Standard Paving Brick Co. (Sup. Ct.), 46 W. L. B. 84 (1901). j Same subject. I See paper on corporate seals by Clement Bates, 3S W. L. B. 204 (1897), and by ¥. M. Coppock, 9 W. L. B. 19 (1893). Same subject — presumption. The seal of a corporation alExed to a deed is prima facie evidence that it was so affixed by the autliority of the corporation. — Sheehan V. Davis, 17 Oh. St. 571 (1867). Fonrer of alienation — exception. A corporation owing duties to the public has no power to alienate its property or fran- chises in such a way as to disable itself from perfonning its functions. — Coe v. Columbus, etc., E,y. Co., 10 Oh. St. 372 (1859) ; R. E. Co. V. Furnace Co., 37 Oh. St. 321, 331 (1881); Atkinson v. Marietta, etc., R. E. Co., 15 Oh. St. 21 (1864) ; Bank of Toledo y. Bond, 1 Oh. St. 622 (1853). FoweT to become surety. A corporation has no power to become surety on a bond in order to secure business for itself. As, for instance, a company desir- ing to sell materials to a contractor has no power to become surety for the faithful per- formance of the duties of such contractor. — Humboldt Mining Co. v. American, etc., Co., 62 Fed. 356 (1894); s. c, 9 0. F. D. 153. Contra, Glenville v. Prout, 6 N. P. 152 tl899) ; s. c, 8 Dec. 99. Same subject. A corporation has no power to pay or se- cure the debt of a third person, but where he is its creditor it may rightly pay or secure his debt when the real object and effect is to pay or secure the indebtedness of the company to him in the same amount. — Bank v. Flour Co., 41 Oh. St. 552 (1885). Foirer to become guarantor. A corporation, in selling bonds not its prop- erty, has no power in law to guarantee their payment. But the corporation may, in making the sale, enter into a contract to repurchase them at the same price on demand, and such contract will be enforced. — First Nat. Bank V. Schaeffer, 16 0. C. C. 457 (1898). Power to enter into trust agreement. A corporation has no power to enter into a " trust " agreement whereby its affairs are not managed in its interests, but primarily in the interest of holders of trust certificates. Such an agreement tending to create a monop- oly is contrary to public policy. — State ex rei. V. The Standard Oil Co., 49 Oh. St. 137 (1892). Pourer to pledge personal liability of stockholders. ' A corporation has no power by any act whatever to pledge the individual liability of its stockholders. — State ex rel. v. Sherman, 22 Oh. St. 411, 431 (1872). Pleading corporate capacity. At common law a corporation, when it sued, need not set forth its title in the declaration, but if issue be taken it must show by evidence upon trial that it was a body corporate, hav- ing the right to sue in the character and capacity in which it appears in court. The code does not require more. — Lewis v. Bank of Ky., 12 Oh. 146 (1843); Cincinnati Gas, etc., Co. V. Dodds, 29 W. L. B. 61 (1893); Brady v. Palmer, 19 0. C. C. 687 (1889) ; s. c, 10 C. D. 27 (1889) ; Smith v. Weed Sewing Machine Co., 26 Oh. St. 562 (1873). See Spence v. Ins. Co., 40 Oh. St. 517 (1884); Elektron Mfg. Co. v. Jones Bros. Co., 8 0. C. C. 311 (1894); s. c, 4 C. D. 553; Bradv v. National Supply Co., G4 Oh. St. 267 (1902). Pleading corporate existence or capac- ity necessary, -wlien. Where a corporation is made defendant and its existence or powers are material in the action, the same must be pleaded. — Brady v. National Supply Co., 64 Oh. St. 267 (1901); Streit V. Hoster Brewing Co., 12 Dec. 619 (1902). Pleading ^rant of corporate capacity. The question as to the want of corporate existence or capacity cannot be raised on a general denial. — See Elektron Mfg. Co. v. Jones Bros. Co., 8 0. C. C. 311 (1894) ; Brady V. National Supply Co., 45 W. L. B. 176 (1901). Allegation and proof of existence in criminal cases. See Murphy v. State, 36 Oh. St. 628 (1881) ; Burke v. State, 34 Oh. St. 79 (1878); Hamil- ton V. State, 34 Oh. St. 82 (1878) ; Calkins v. State, 18 Oh. St. 366 (1868); Reed v. State, 15 Oh. 217 (1846). Misnomer of corporations. Where a corporation, whose name is com- posed of several words, is sued bj' a name in which a word in the corporate name is omitted, such omission or misnomer, unless pleaded in abatement, will be disregarded by the court. — State ex rel. v. Telephone Co., 36 Oh. St. 296 (1880): Cleveland, etc., R. R. Co. V. Fredenbur, 3 0. C. C. 23 (1887) ; s. c, 2 C. D. 15. See Noblet -i . Ohio, etc., R. R. Co., 1 W. L. B. 346 (1876). Security for costs, insolvent corpora- tion must give. See § 5340 (1). Stockholders as vritnesses under old laiv. Sec Lawson v. Farmers' Bank, 1 Oh. St. 206 (1853). General Corporation Law. 113 Corporations not for Profit — Trustees, Members, §§' 3240, 3241. Corporation is a, person. The words " person " and " persona," as used in § 2485, Revised Statutes, include private corporations. — Cincinnati, etc.. Gas Co. V. Avondale, 43 Oh. St. 257 (1885). See State V. Cincinnati Fertilizer Co., 24 Oh. St. 611 (1874). PoTjrers of company formed to repair boats. See State ex rel. v. Southwestern, etc., Co., 23 Oh. St. 166 (1872). Religious, literary, or scientific society may lease theatre. See Catholic Institute v. Gibbons, 3 W. L. B. 581 (1878). § 3240. FIEST ELECTION OP TRUSTEES IN CORPOEATION NOT FOB PKOPIT; TERM AND NUMBER.— A majority of the subscribers of the articles of incorporation formed for a purpose other than profit, may elect not less than five trustees of the corporation who shall hold their office till the next annual meeting, or until their successors are elected and qualified; but in the case of religious cor- porations and institutions incorporated for the purpose of promoting education, science or art the regulations of such corporations may provide for the length of time said trustees shall hold their offices, the term thereof not to exceed in number of years the number of such trustees; provided, that lodges, societies, or bodies of any secret or benevolent order incorporated under the laws of this state, may elect such num- ber ot trustees, not less than three, as may be provided in the laws or regulations governing such lodge, society, or body, and the election of such trustees may be held at the time specified in such laws or regulations. Provided further, that the members of any corporation heretofore organized, or that may hereafter be organ- ized, for the purpose of owning and conducting a hospital for sick and disabled, persons, may provide for the election of not less than five nor more than fifteen trus- tees who shall serve during life, and also that in case of vacancy in the board of trustees of such association by death, resignation or otherwise, the remaining mem- bers of such board may fill such vacancy. In case of a corporation heretofore organ- ized for such purpose such regulations providing that the trustees shall hold office during life, may be adopted at any annual meeting, or at any special meeting of the association duly and regularly called; but notice of such proposed change in the regu- lations shall be published for three successive w^eeks in some newspaper published and of general circulation at the place where such hospital is located. (May 10, 1902, 95 V. 547; April 6, 1888, 85 v. 166; March 26, 1883, 80 v. 79; April 20, 1881, 78 v. 200; R. S. 1880.) Repeals. The act of April 20, 1881, 78 v. 200, is not repealed in express terms by the act of March 26, 1883, 80 v. 79, nor is the latter act re- pealed by the act of April 6, 1888, 85 v. 166. Tenure of office. Neither the incorporators nor the trustees first elected are authorized to adopt a by-law or regulation providing that they shall hold office during life, and in case of vacancy fill the same by appointment. — State v. Standard Life Ass'n, 38 Oh. St. 281 (1882). § 3341. MEMBERSHIP IN CORPORATION NOT FOR PROFIT, RELIGIOUS, SECRET AND BENEVOLENT SOCIETIES.— The subscribers of such articles of incorporation shall cause the same to be copied into a book which they shall provide, and which shall be the property of the corporation; and a person having the qualifi- cations prescribed by the corporation, may become a member by subscribing his name to such copy; provided, that when the incorporators of a corporation, now or hereafter formed, are, or shall be members of a. church, religious, secret or benevolent society, and have signed or shall sign articles for the purpose of enabling such church, relig- ious, secret or benevolent society to become incorporated, any person who is or shall become a member of such church, religious, secret, or benevolent society, in good standing, shall by virtue of such membership be a member of such corporation, and entitled to vote at all meetings of such corporation, for the election of officers or other LAW GOV. PRIV. COR. 8. 114 Private Corporations in Ohio. Corporations not for Profit — Trustees, Members, § 3241. purpose, anything in the preceding section to the contrary notwithstanding. 16, 1887, 84 V. 85; May 15, 1886, 83 v. 168; B. S. 1880.) (March Membership in mutual protective so- cieties. After a mutual protection association has been formed under § 3630, the members thereof are those mutually engaged in promot- ing the purposes of the organization, and who, by virtue of their relation to the corporation, are entitled to protection. — State v. Standard, etc., Ass'n, 38 Oh. St. 281 (1882). Bight to vote. Where the right to vote upon all matters touching the interests of the corporation is secured by the charter to each member, a fur- ther provision giving to pew owners the priv- ileges of membership does not restrict the right of voting to them, but it belongs to every one admitted to the society by a major- ity of the members of the congregation.— Wiswell V. First, etc.. Church, 14 Oh. St. 31 (1862). Rights of m.ajority. Where a religious society purchases land, and the title vests in it in fee as a, corpora- tion, the majority of the society have a right to control its use and occupation, of wMch they cannot be deprived by any supposed error of doctrine. — Keyser v. Stansifer, 6 Oh. 363 (1834). Secession, rights of parties. Members who secede from an organization thereby forfeit all right to any part of the church property; the question as to whether or not there has been a secession is a mixed question of law and fact, to be decided from all the circumstances. There may be an agreed separation without forfeiture. — Wis- well V. First, etc.. Church, 14 Oh. St. 31 (1862); Ex parte Shoup, 16 W. L. B. 71 (1886) ; Methodist, etc.. Church v. Wood, 5 Oh. 283 (1831). Property rights. By becoming a member of a corporation not for profit, one does not acquire a severable right to any of its property, but merely the right of a member so long as he remains a member. — Hershiser v. Williams, 24 W. L. B. 314 (1890). Inherent poorer of corporation to expel. A corporation has inherent power to re- move or expel a member for causes which are not set forth in the constitution or by-laws. One of those causes may be where the party has committed some act which tends to the injury or destruction of the corporation. — Cheney v. Ketcham, 5 N. P. 139 (1897) ; s. c, 7 Dec. 183 ; State ex rel. v. Society, 8 A. L. R. 628 (1880); s. c, 5 W. L. B. 124; State ex rel. V. German, etc., Society, 2 W. L. B. 126 (1877); Hershiser v. Williams, 24 W. L. B. 314 (1890). Proceedings to expel. No member of a corporation shall be dis- franchised without the agency of a tribunal competent to investigate the cause, and pro- nounce the sentence of loss of right. Where the charter prescribes the terms under which the power of amotion is to be exercised, they must be pursued; where the organic law is silent, the corporation itself possesses the in- herent power to ascertain and declare the for- feiture either of franchise or office, but the proceeding is essentially adversary in its char- acter, and cannot be conducted ex parte. It is essential to its validity that the parties should be duly summoned and given reasonable notice and an opportunity to be heard, and the facts investigated and a determination reached by the tribunal.— State ex rel. v. Bryce, 7 Oh. pt. 2, 82 (1836); Cheney v. Ketcham, 5 N. P. 139 (1897); s. c, 7 Dec. 183. Expulsion from corporation not for- profit having capital stock. A great many clubs and societies are organ- ized as corporations not for profit with a capital stock; in such cases the property in- terest represented by the stock is incidental to the personal interest or membership, and there may be an expulsion from membership. — Cheney v. Ketcham, 5 N. P. 139, 140 (1897) ; s. c, 7 Dec. 183. Poiver of subordinate committee. The power of expulsion from membership cannot be delegated to and exercised by a committee or subordinate branch of the cor- poration except upon clear and express author- ity fairly and reasonably exercised. — Cheney V. Ketcham, 5 N. P. 139 (1897) ; State ex rel. V. Fraternal, etc.. Circle, 9 0. C. C. 364 (1895) ; s. c, 6 C. D. 385; Blumeuthal v. Cin- cinnati, etc.. Exchange, 7 W. L. B. 327 (1882). Remedies for expulsion. The appropriate remedies for an illegal ex- pulsion are either injunction or an action for damages. Mandamus is not an appropriate remedy. — Cheney v. Ketcham, 5 N. P. 139 (1897); s. c, 7 Dec. 183; State ex rel. v. Zesch, 5 N. P. 274 (1898); s. c, 7 Dec. 298; Fraternal, etc., Circle v. State, 5 Dec. 754 (1897); Blumenthal v. Cincinnati, etc.," Exchange, 7 W. L. B. 327 (1882); State ex rel. V. Fraternal, etc.. Circle, 9 0. C. C. 364 (1895); s. c, 6 C. D. 385; s. c. (Sup. Ct.), 5 Dec. 754. "When injunction granted. An injunction to restrain wrongful expul- sion may be obtained where the benefits to be derived from the corporation are not deter- minable by any rules that could be given to the jury in fixing their money value. — State ex rel. v. Zesch, 5 N. P. 274 (1898) ; s. c, 7 Dee. 298. General Corporation Law. 115 Corporations for Profit — Subscription to Stock, § 3242. Injunction against threatened expul- sion. An injunction will not be granted to re- strain threatened expulsion from an organiza- tion for the reason that the court must pre- sume that if any proceedings are taken they will be regular, and that the complainant can obtain relief within the organization. — Her- shiser v. Williams, 6 0. C. C. 147 ; a. c, 3 C. D. 389; s. c, 53 Oh. St. 633 (1895). \(^hen peremptory isirrit not granted. Peremptory writ will not be granted to re- store a member of a corporation informally expelled to his rights as a member when he would at once be formally expelled. — State ex rel. v. Society, 8 A. L. R. 628 (1880) ; s. c, 5 W. L. B. 124; State ex rel. v. Algemeiner, etc., Verein, o W. L. B. 295 (1878). Fraud and collusion, A court of equity will set aside a judgment of a tribunal ordering the expulsion of a mem- ber if such order was brought about through fraud and collusion. — Kent v. Odd Fellows, etc., Ass'n, 14 W. L. B. 237 (1885). See Blumenthal v. Cincinnati, etc., Exchange, 7 W. L. B. 327 (1882). ' Irregularities in proceedings. A court will not interfere with proceedings to expel a member because of irregularities if there has been substantial compliance with the law. — State ex rel. v. Cincinnati, etc.. Exchange, 4 N. P. 244 (1897); s. c, 6 Dec. 363; Hershiser v. Williams, 24 W. L. B. 314 (1890); State ex rel. v. Algemeiner, etc., Verein, 3 W. L. B. 295 (1878). 'Waive? of right to order of restoration. The bringing of an action for damages for illegal expulsion from a, corporation is a waiver of the right to a writ of mandamus. — State ex rel. v. Slavonska Lipa, 28 Oh. St. 665 (1876). Waiver of rights of member, A member on trial may waive any of the provisions of the rules and regulations of the corporation. — State ex rel. v. Cincinnati, etc.. Exchange, 4 N. P. 244 (1897); s. c, 6 Dee, 363. V^hat is prejudicial conduct of mem- ber? It will be left to the organization to say what conduct is prejudicial to its interests. — Hershiser v. Williams, 24 W. L. B. 314 (1890). See State ex rel. v. German, etc.. So- ciety, 2 W. L. B. 125 (1877). Must exhaust remedies within the cor- poration. Until a member who complains of his ex- pulsion has exhausted all the judicatories of the order, society or corporation, the civil courts will not take cognizance of his case, and this is so even if the person before whom the appeal should be heard is adverse and has previously voted against the member. — State ex rel. v. Castle, 10 W. L. B. 2 (1883) ; Kent v. Odd Fellows, etc., Ass'n, 14 W. L. B. 237 (1885); Hershiser v. Williams, 6 0. C. C. 147; s. ^., 3 C. D. 389; ». i;., 53 Oh. St. 633 (1895). See Baltimore, etc., R. R. Co. v. Stankard, 56 Oh. St. 224 (1897). Same subject, exception. Where the body acting as a tribunal is without authority, or where no appeal is pro- vided for, or where the action taken is void; as, for instance, where an expulsion is ordered without trial, the courts may be resorted to without appealing within the organization. — Cheney v. Ketcham, 5 N. P. 139 (1897) ; s. c, 7 Dec. 183. § 3242. CORPORATIONS FOR PROFIT; TO GIVE NOTICE OE OPENING BOOKS FOR SUBSCRIPTION; NOTICE MAT BE WAIVED.— The persons named in the articles of incorporation of a corporation for profit, or a majority of them, shall order books to be opened for subscription to the capital stock of the corporation at such time or times and at such place or places as they may deem expedient, and of the time and place of opening of which books at least thirty days' notice shall be given by publication in a newspaper published or generally circulated in the county or counties where books of subscription are to be opened; provided, that such notice may be waived in -^yriting by all the incorporators, and such waiver shall be entered or copied in the records of such corporation. (April 6, 1891, 88 v. 280; March 5, 1883, 80 V. 42; R. S. 1880; May 1, 1853, 50 v. 274, § 9.) Publication of notice. Only one publication is required thirty days before the date set, and it need not be for thirty days successively before that date. The paper should be printed in the English lan- guage. — ■ Muskingum Turnpike Co. v. Ward, 13 Oh. 120 (1844) ; Craig v. Fox, 16 Oh. 563, 566 (1847); Cincinnati v. Purcell, 26 Oh. St. 49 (1875). Waiver of publication — proof. When the authenticity and genuineness of the records of a corporation have been proved, it is competent to prove by such records that the incorporators have waived notice by pub- lication of the opening of stock books. — To- ledo, etc., Ry. Co. v. Toledo, etc., Ry. Co., 6 0. C. C. 362, 392 (1892); s. c, 3 C. D. 493. 116 Private Corporations in Ohio. Corporations for profit — Subscription to Stock, § 3242. Verbal subscriptions not binding. A subscription to stock in a corporation must be in writing and mutually binding on both parties. A recovery cannot be had on a verbal agreement to take shares, in the ab- sence of estoppel. — Fanning v. Ins. Co., 37 Oh. St. 339 (1881). Delivery of subscription — proof. Where a subscription was delivered reading as follows: " We, the undersigned, heirs of Alex. Brown's estate, agree to take one thousand dollars in stock in the Mansfield, etc., R. R. Co. if it comes near enough to the town of Weston to suit the convenience of said town," it was held that parol evidence was admissi- ble to prove the delivery of the subscription and thus establish the mutuality of the agree- ment, and the implied agreement on the one hand to pay, and on the other to issue stock. — Mansfield, etc., R. E. Co. v. Brown, 26 Oh. St. 223 (1875). Subscription books. This section, so far as it concerns the open- ing of books, must be deemed directory, and a subscription, unexceptional in other respects, will be valid if made on a separate sheet of paper.— Ashtabula, etc., R. R. Co. v. Smith, 15 Oh. St. 328 (1864). Construction of subscriptions. The ordinary rules of construction appli- cable to contracts apply to subscriptions; for instance, all parts must be taken into consid- eration so as to make the whole consistent. — Lesher v. Karshner, 47 Oh. St. 302, 305 (1890). Statutes form a part of subscriptions. The statutes in force at the time subscrip- tions are made enter into and form a part of such subscriptions, and the subsequent exer- cise of the powers given the company will not affect the subscriptions. — Mansfield, etc., R. R. Co. V. Stout, 26 Oh. St. 241, 254 (1875); Jewett V. Valley Rv. Co., 34 Oh. St. 601 (1878); Armstrong v. Karshner, 47 Oh. St. 276 (1890); Compton v. Ry. Co., 45 Oh. St. 592, 620 (1888). Interest on subscriptions. Where interest is stipulated to be paid on the amount paid on subscriptions of ' stock until the road is completed, the interest is not payable except out of profits. — Ryan v. Miami Valley Ry. Co., 10 A. L. R. 263 (1881); Wood V. Pearee, 2 Dis. 411 (1858); Paines- ville, etc., R. R. Co. v. King, 17 Oh. St. 534 (1867). Offer to subscribe. Until some action is taken on a subscription to stock it is revocable, there being no mutual- ity, and it being merely an offer to subscribe. — Wallace v. Townsend, 43 Oh. St. 537 (1885). See Armstrong v. Karshner, 47 Oh. St. 276, 296 (1890). Same subject — revocation. An offer in writing to subscribe to the cap- ital stock of a railroad company is revocable at the option of the party making such offer at any time before its delivery to and accept- ance by such company, and his death before such delivery and acceptance works such revo- cation. — Wallace v. Townsend, 43 Oh. St. 537 (1885). Foiver to receive subscriptions payable in land or property. See Noble v. Callender, 20 Oh. St. 199 (1870); Goodin v. Evans, 18 Oh. St. 150 (1868); Gates v. Tippecanoe Stone Co., 57 Oh. St. 60, 75 (1897). Sales of stock by corporation. In the absence of express provision, the duly organized corporation has the same power of disposition over its unissued and unsubscribed capital stock as an ordinary owner has over his property. Such stock can be used in payment of debts or exchange for labor or property. — See Dayton, etc., R. R. Co. V. Hatch, 1 Dis. 84 (1855) ; Peter v. Union Mfg. Co., 56 Oh. St. 181, 197 (1897); Sims v. Street R. R. Co., 37 Oh. St. 556, 565 (1882). AVhat conditional subscriptions are contrary to public policy. Whenever a subscriber to stock of a com- pany attempts to secure in his contract of subscription by conditions, advantages or privileges not common to all other stockhold- ers or subscribers, and without their knowl- edge or consent, such conditions are contrary to public policy and can have no effect to limit in any way the contract of subscription and in so far as it attempts to do so it will be treated as a fraud on other subscribers. See Stunt v. Newark Weldless Tube, etc. Co 22 0. C. C. 120 (1901); Noble v. Callender. 20 Oh. St. 199 (1870); Henry v. Vermillion, etc., R. R. Co., 17 Oh. 187 (1848). Conditional subscription — -wken abso- lute. Corporations in this state have power to re- ceive and accept conditional subscriptions, but until the conditions in such subscriptions are performed they cannot become absolute and take full effect as stock subscriptions. — Ash- tabula, etc., R. R. Co. V. Smith, 15 Oh. St. 328 (1864); Chamberlain v. Painesville, etc R R. Co., 15 Oh. St. 225 (1864); R. R. Co. v. Hinsdale, 45 Oh. St. 556 (1888); Armstron-' V. Karshner, 47 Oh. St. 276, 296 (1890). Sm Lesher v. Karshner, 47 Oh. St. 302 (1890). Verbal conditions. _ In the absence of fraud or mistake, condi- tions to subscriptions must be in writing to General Corporation Law. 117 Corporations for Profit — Subscription to Stock, § 3343. be part of the contract. — Freeman v. Muth, 3 W. L. B. 914 (1878). Waiver of conditions. The giving of a note in payment by a sub- scriber is prima facie waiver of conditions precedent. — Dayton, etc., R. R. Co. v. Hatch, 1 Dis. 84 (1855) : Chamberlain v. Painesville, etc., R. R. Co., 15 Oh. St. 225 (1864); Four Mile R. R. Co. v. Bailey, 18 Oh. St. 208 (1868). Same subject. The payment of the first installment on a subscription and voting the stock at an elec- tion of directors, and acting as an officer of the company is a waiver of conditions con- tained in a stock subscription. — Dayton, etc., R. R. Co. V. Hatch, 1 Dis. 84 (1855). Conditions subsequent. It seems that conditions subsequent in a stock subscription should be viewed as a stipu- lation merely; and in ease of non-performance the parties should be left for redress to the ordinary remedies for breach of contract. — Chamberlain v. Painesville, etc., R. R. Co., 15 Oh. St. 225, 247 (1864). See Zerkle v. Price, 5 N. P. 480 (1898); Shoemaker v. Goshen Township, 14 Oh. St. 569, 583 (1863); Stunt V. Newark Weldless Tube, etc., Co., 22 0. C. C. 120 (1901). Conditional subscriptions — as to amount to be subscribed. A subscription to stock not to be binding until a certain amount is subscribed is a valid absolute subscription when the amount speci- fied is obtained. — Emmitt v. Springfield R. R. Co., 31 Oh. St. 23 (1876). Same subject — first-class road. Railroad companies in this state are not required to construct first-class roads before they can collect subscriptions unless the sub- scriptions contain stipulations to that efifect. — Armstrong v. Karshner, 47 Oh. St. 276 (1890). Same subject — depot to be built. Where a. subscription contained a condition as to the location of the road, and provided that a depot be located at a certain point, it was held that the clause referring to the depot was a mere stipulation, and not a con- dition precedent. — Chamberlain v. Paines- ville, etc., R. R. Co., 15 Oh. St. 225 (1864). Same subject — road to pass through — road to be built. Where the condition in a subscription was that the road was to pass through a certain place or to be built at a certain place, per- manent location of the road without its construction on the route designated is a com- pliance with the condition. — Ashtabula, etc., R. R. Co. V. Smith, 15 Oh. St. 328 (1864) ; Mansfield, etc., R. R. Co. v. Stout, 26 Oh. St. 241, 254 (1875); Warner v. Callender, 20 Oh. St. 190 (1870); Chamberlain v. Painesville, etc., R. R. Co., 15 Oh. St. 225 (1864). See Elder v. Bellaire, etc., Ry. Co., 1 0. C. C. 256 (1865); s. c, 1 C. D. 140. Same subject — road to be operated and maintained. See Port Clinton R. R. Co. v. Cleveland, etc., R. R. Co., 13 Oh. St. 544, 560 (1862). Same subject — rule of construction. In construing conditional subscriptions in the absence of words expressing a ditterent design, it will be presumed that it was the object of the parties to make the subscrip- tions available to the company as soon ae pos- sible, so as to furnish it funds to prosecute its .work. — ■ See Chamberlain v. Painesville, etc., R. R. Co., 15 Oh. St. 225 (1864). Defenses of subscribers — rights of creditors and enforcement of sub- scriptions. See notes to § 3253. § 3243. WHEN SUBSCRIPTIONS OP STOCK ABE PAYABLE.— An installment of ten per cent, on each sbtare of stock shall be payable at the time of making the subscription, and the residue thereof shall be paid in such installments, and at such times and places, and to such persons, as may be required by the directors of the corporation. (May 1, 1852, 50 v. 274, § 6; R. S. 1880.) Purpose of section, payment of first in- stallment. This section is designed to fix the time of payment of the first installment, and to pro- vide the mode for determining the time at which the residue shall become payable. It does not prescribe the form in which subscrip- tions are required to be made, nor does the want of a stipulation for the payment of the first installment invalidate the subscription. — Chamberlain v. Painesville, etc., R. R. Co., 15 Oh. St. 225 (1864) : Ashtabula, etc., R. R. Co. V. Smith, 15 Oh. St. 328 (18641. Omission to pay first installment — liability. The failure to pay the first installment does not release subscribers. — Henry v. Vermil- lion, etc., R. R. Co., 17 Oh. 187, 191 (1848). Time of making the subscription. The time of making the subscription refers to the time at which it becomes complete. In the case of conditional subscriptions the first installment becomes payable when the sub- scription becomes absolute. — Ashtabula, etc., R. R. Co. V. Smith, 15 Oh. St. 328 (1864). 118 Private Corporations in Ohio. Corporations for Profit — Subscriptions, Organization, etc., § 3244. Calls ^ before stock fully subscribed. The whole of the authorized capital stock need not be subscribed before calls are made. The .common law is modified by § 3244 and this section. — Jewett v. Valley Ry. Co., 34 Oh. St. 601 (1878). See Clarke v. Thomas, 34 Oh. St. 46 (1877). Calls — as to conditional subscriptions. General calls become applicable to condi- tional subscriptions as soon as they become absolute by performance of conditions. — Mansfield, etc., E. R. Co. v. Stout, 26 Oh. St. 2,41 (1875). Calls — ' tirliere and to ivlioin payable. Notice to pay a stock subscription to the treasurer of the company implies that the payment is to be made at his oflace, and is sufficiently definite as to place and person. — Muskingum, etc.. Turnpike Co. v. Ward, 13 Oh. 120 (1844). Calls — nrhen company insolvent. When a company becomes insolvent the method of making calls cannot be pursued; and as to creditors the debt thereafter must be treated as due without further demand. — Henry v. Vermillion, etc., R. R. Co., 17 Oh. 187 (1848). Calls — Mrbere demand notes bave been given. Where subscribers have given demand notes in payment of subscriptions, calls should be made by the directors to fix their liability for the reason that a cause of action would not accrue on such notes until a call had been made— Kilbreath v. Gaylord, 34 Oh. St. 305 (1877). Calls — pending consolidation. A general call made by a company during the pendency of consolidation proceedings will continue in force for the benefit of the con- solidated company, provided an officer author- ized to receive such payments be continued at the place named in the call. — Mansfield, etc., E. R. Co. V. Stout, 26 Oh. St. 241 (1875). 'Waiver of right of board to make call. The subscriber and the company may agree in the subscription as to the times and amounts of payments thereon, and thereby waive the right of directors to require the payment of subscriptions at such times and places as they see fit. — Mansfield, etc., R. R. Co. v. Pettis, 26 Oh. St. 259 (1875). Same subject — illustration. Where a subscription contained a condition that not more than ten per cent, shall be re- quired to be paid at any one call, nor shall calls be made more frequently than once in sixty days, it is not included in a call by the directors for the payment of ten per cent, monthly until the whole is paid. — Mansfield, etc., R. R. Co. V. Pettis, 26 Oh. St. 259 (1875). Liability of incorporators. Incorporators are liable until at least ten per cent, of the authorized capital is paid in. — See Hessler v. Cleveland Punch, etc., Co., 61 Oh. St. 621 (1899). § 3244. CERTIFICATE OP SUBSCEIPTION TO STOCK; NOTICE; ELECTION OP DIBECTOKS. — As soon as ten per cent, of the capital stock is subscribed, the subscribers of the articles of incorporation, or a majority of them, shall so certify, in writing, to the secretary of state, and thereupon shall give notice to the stockholders, as provided in section three thousand two hundred and forty-two, to meet at such time and place as they may designate, for the purpose of choosing not less than five nor more than fifteen directors, who shall continue in office until the time fixed for the annual election, and until their successors are chosen and qualified; provided, that in case all subscribers are present in person, or by proxy, such notice may be waived in writing, and the incorporators of the company shall be liable to any per- son afEected thereby, to the amount of any deficiency in the actual payment of said ten per cent., at the time of so certifying. (May 1, 1852, 50 v. 274, § 9; K. S. 1880' April 15, 1880, 77 v. 266; May 18, 1894, 91 v. 304.) Conditional subscriptions. In computing this ten per cent., no regard can be given to conditional subscriptions which have not become absolute. For this provision is for the benefit of creditors of the company, and therefore only subscriptions having a present value should be counted. — Portland, etc., R. R. Co. V. Spillman, 32 Pac. (Ore.) 688 (1893). Calls — ten per cent, must be subscribed. The subscription of ten per cent, is a con- dition precedent to the calling and enforce- ment of the subscriptions made before organ- ization, just as at common law the subserin- tion of the whole stock was a condition prece- dent. — Portland, etc., R. R. Co. v. Spillman 32 Pac. (Ore.) 688 (1893). See Jewett v' Valley R. R. Co., 34 Oh. St. 601 (1878); Em- mitt v. Springfield, etc., R. E. Co., 31 Oh St 23 (1876). Subscribers may waive subscription of ten per cent. So far as a stockholder's liability to pay calls is concerned, he may waive the right to have ten per cent, subscribed before calls are made.— Portland, etc, R. R. Co. v. SpUlman, General Corporation Law. 119 Corporations for Profit — Subscriptions, Organization, etc., § 3244. 32 Pae. (Ore.) 688 (1893). See Emmitt v. Springfield, etc., K. R. Co., 31 Oh. St. 23 (187C). Presumption of regularity of organiza- tion. Where it is alleged that pursuant to a regular notice the stockholders elected a board of directors, it will "be presumed that the steps necessary to a valid organization had been taken. — Ashtabula, etc., R. E. Co. v. Smith, 15 Oh. St. 328 (1864). Notice df meeting to elect. This section, so far as it concerns the notice of the meeting to elect directors, is directory. If the necessary amount of stock has been ob- tained, and at a meeting of the stockholders called for the purpose they elect directors, the validity of their acts cannot be questioned collaterally, on account of irregularity in the election. — Chamberlain v. Painesville, etc., E,. E. Co., 15 Oh. St. 225 (1864). Failure to give notice. An organization meeting is not a nullity because of the failure to give notice, if the parties for whom the notice was provided ac- quiesce and do business under such organiza- tion.— Meainch V. Sturgis, 72 Me. 288 (1881) ; Braintree Co. v. Inhabitants of Brain- tree, 146 Mass. 482 (1888). Proof of organization. In a proceeding to condemn land, a com- pany is obliged to prove not only its incor- poration, but the validity of its organization; and it must therefore prove the subscription of ten per cent, of the stock. — Powers v. Hazelton, etc., Ey. Co., 33 Oh. St. 429 (1878). Same subject — records. The organization of a company may be shown by its records after proving their au- thenticity and genuineness. — Toledo, etc., Ey. Co. V. Toledo, etc., Ey. Co., 6 0. C. C. 362, 392 (1892); s. c, 3 C. D. 493. Who must be directors. Where there are but five stockholders, each must be a director. — Gates v. Tippecanoe Stone Co., 9 O. C. C. 99, 103 (1894) ; s. c, 6 C. D. 23. Term of office of directors. Directors continue in office until their suc- cessors are elected and qualified. — Bartholo- mew V. Bentley, 1 Oh. St. 37, 42 (1852); State ex rel. v. Bonnell, 35 Oh. St. 10, 17 (1878). Abandonment of office. Where no directors are elected within a reasonable time after the expiration of the terms of those duly elected, and the company ceases to do business, it will be presumed that the offices have been resigned or abandoned. — Bartholomew v. Bentley, 1 Oh. St. 37, 42 (1852). Resignations. This section does not prevent resignations of directors, but, on the contrary, they are allowable as at common law. — Briggs v. Spaulding, 141 U. S. 132 (1890). Liability of directors — acting before ten per cent, is subscribed. The subscription of the necessary amount of stock (ten per cent.) to authorize the elec- tion of directors is not only a matter of sub- stance, but is essential to the organization of the corporation, and necessary to the trans- action of business by it; and persons acting as directors before the necessary ten per cent, has been subscribed are without authority to create a corporate obligation, and become per- sonally liable, although they have acted in good faith. In such a case the directors should be charged with an amount equal to the necessary stock subscriptions and the statutory liability of the stockholders. — Trust Co. v. Floyd, 47 Oh. St. 525 (1890). Organization meeting should be held in this state. It is a, well-settled rule of law that the ac- ceptance of a charter and the organization of a corporation must occur in the state creating it. — • See Myers v. Manhattan Bank, 20 Oh. 283 (1851) ; Smith v. Silver, etc., Co., 64 Md. 85 (1885); Freeman v. Machias, etc., Co., 38 Me. 343 (1854); Heath v. Silverthorn, etc., Co., 39 Wis. 149 (1875). Service of process when corporation fails to elect officers. See § 5045. liiability of incorporators — amount. The liability of incorporators under this section is for the amount of any deficiency in the actual payment of ten per cent, of the authorized capital stock of the corporation at the time of their certifying, as therein pro- vided, to the secretary of state, and not merely for one-tenth of that amount. — Hessler v. Cleveland Punch, etc., Co., 61 Oh. St. 621 (1899). Same subject — rights of creditors. This liability is a security for the creditors of the corporation, in addition to the liability of the stockholders; and it is not necessary, to entitle a creditor to its benefit, that he should have knowledge of the making of the certifi- cate, or of its contents. — Hessler v. Cleve- land Punci, etc., Co., 61 Oh. St. 621 (1899). Practice. A suit to enforce the liability of incorpora- tors should be prosecuted for the benefit of aU creditors, as in casea against the stockholders, and the liabilities of both classes may be en- forced in one action, and the attorney fees of the creditor plaintiff may be allowed out of the fund. — Hessler v. Cleveland Punch, etc., Co., 61 Oh. St. 621 (1899). 120 Private Corporations in Ohio. Election of Directors, § 3245. § 3245. CONDUCT OF ELECTION; CUMULATIVE VOTING; INSPECTORS. — At the time and place appointed, directors shall be chosen, by ballot, by the stock- holders who attend for that purpose, either in person or by lawful proxies; at such election and at all other elections of directors, every stockholder shall have the right to vote in person or by proxy the number of shares owned by him for as many persons as there are directors to be elected, or to cumulate said shares and give one candidate as many votes as the number of directors multiplied by the number of his shares of stock shall equal, or to distribute them on the same principle among as many candidates as he shall think fit; and such directors shall not be elected in any other manner. A majority of the number of shares shall be necessary for a choice, but no person shall vote on any share on which any installment is due and unpaid. " At such first election the subscribers of the articles of incorporation, or any of them as may be present, shall be inspectors of such election, and shall certify what persons are elected directors, and shall appoint the time and place for holding their first meeting. (May 1, 1852, 50 v. 274, § 9; April 23, 1898, 93 v. 230.) Cumulative voting under old law. This feeetion, before the amendment of 1898, did not confer upon stockholders the right of cumulative voting. — State ex rel. v. Stock- ley, 45 Oh. St. 304 (1887); State ex rel. v. Halloway, 1 0. C. C. 157 (1885) ; a. c, 1 C. D. 90; State ex rel. v. Fosdick, 1 0. C. C. 265 (1885); s. c, 1 C. D. 145. Cumulative voting not obligatory. Even though stockholders are entitled to vote on the cumulative plan, they are not obliged to.— Schmidt v. Mitchell, 41 S. W. (Ky.) 929 (1897). Applicability of act to existing corpo" rations. See Smith v. Atchison, etc., R. E. Co., 64 Fed. 272 (1894) ; Commonwealth v. Butter- worth, 160 Pa. St. 55 (1894); Attorney-Gen- eral v. Looker, 69 N. W. (Mich.) 929 (1897) ; Cross V. W. Va., etc., Ey. Co., 35 W. Va. 174 (1891); State v. 'Greer, 78 Mo. 188 (1883); Hays V. Commonwealth, 82 Pa. St. 518 (1876). Suggestions as to cumulative voting. Under the cumulative system of voting, the majority, in order to be safe, should abandon any idea of electing the \/hole board, but should cumulate their votes on such a propor- tion of the board as their stock bears to the whole stock, and should scatter no votes by way of compliment or otherwise. Where, for instance, there are five directors to be elected, a minority holding more than one-fifth of the stock can elect one director by cumulating their votes on such director. Majority necessary to choice. Attention is called to the fact that the old law provided that a plurality and not a ma- jority, as in the new act, was necessary to a choice. Majority of votes elects. In the election of directors of a corporation, cumulative voting beint; authorized by this section, one receiving a majority of the votes so cast is elected a director, though he does not receive the votes of the holders of a ma- jority of the shares. — Schwartz v. State. 61 Oh. St. 497 (1899). Payment of installments before elec- tion. It is clear from a reading of § 3243 and § 3244 that ten per cent, of the ten per cent, subscribed should be paid by those voting at an election under this section; but if an elec- tion is held, and persons are elected by votes on stock on which installments are due, they become de facto directors, and their acts are not subject to collateral attack. — Raymond V. Spring Grove, etc., Ey. Co., 21 W. L. B. 103 (1889). See Henderson v. Hogan, I W. L. B. 227 (1876). Votes necessary to elect. A majority of the stockholders who attend for such purpose, either in person or by proxy, is sufficient, neither a majority of aU the shares provided for in the charter of the cor- poration, nor a majority of the shares issued < is required. This does not apply when the cumulative method of voting is adopted. Lutterby v. Heraneourt Brewing Co., 12 Dec 67 (1901). Who may vote. The person in whose name stock is regis- tered, if only a. trustee, is entitled to vote upon the stock, and the officers in charge of the election cannot look into the rights of any other person in the stock. — Hafer v. N. Y etc., R. E. Co., 14 W. L. B. 68, 72 (1885). Stock held by the corporation. The voting power incident to stock in a corporation is not lost when it becomes the property of the corporation, but the with- drawal of such stock from the number of vot- ing shares is in effect an equal distribution of their voting power among the individual shareholders. — Allen v. De Lagerbero-er '^0 W. L. B. 368 (1SS8). » ' - Stock pledged by the corporation. When the directors of a corporation pledge its own stock to ?eeure a loan, they may, if It General Corporation Law. 121 stockholders— Vote of, §§ 3245a, 3245b. will secure additional consideration ' for the benefit of the corporation in the contract of loan, confer upon the pledgee the right to vote the stock. — Allen v. De Lagerberger, 20 W. L. B. 368 (1888). Duty of inspectors. It is the duty of the corporators, when act- ing as inspectors, when so requested, to deter- mine what persons are entitled to vote. Gen- erally this must be done by reference to the stock books, but it seems that the legislature intended to give them more power in Ohio, for § 3245c provides that the ownership of stock may be determined by the corporate books, stock certificates or other satisfactory proof. The inspectors may exercise a reasonable dis- cretion as to the time for closing the election, so as to expedite matters or to allow each stoelcholder a vote. — In re M. & H. R. R. Co., 19 Wend. (N. Y.) 135 (1838); In re Che- nango Ins. Co., 19 Wend. (N. Y.) 635 (1839); People V. A. & S. R. R. Co., 55 Barb. (N. Y.) 344 (1869). Same subject. When the inspectors once receive a vote, either without objection or over the objection of a stockholder, they cannot afterward re- ject it.— Hartt v. Harvey, 32 Barb. (N. Y.) 55 (1860); People v. White, 11 Abb. Prac. Rep. 168, 179 (1860). Evidence to set aside the action of in- spectors. In a legal proceeding brought to set aside the action of inspectors, only the evidence introduced before the inspectors can be used. — In re M. & H. R. R. Co., 19 Wend. (N. Y.) 135 (1838). Inspector may be candidate. An inspector may be a candidate for elec- tion. — ■ Commonwealth v. Woelper, 3 S. & R. (Pa.) 29 (1817). Certificate of election. The certificate of election is prima facie evi- dence of the facts stated therein; but when the inspectors state not only the result, but also the facts which induced their decision, such facts may show their decision tO' be erro- neous, and so nullify their certificate. — Hartt V. Harvey, 32.Barb. (N. Y.) 55 (1860). Same subject. A certificate may be used although made long after the election. — People v. Peck, 11 Wend. (N. Y.) 604 (1834). Same subject. An election is good although the inspectors fail to certify the result, or though they cer- tify falsely. — People v. Peck, 11 Wend. (N. Y.) 604 (1834); Hartt v. Harvey, 32 Barb. (N. Y.) 55 (1860); State ex rel. v. Smith, 15 Ore. 98 (1887). § 3245a. CORPORATIONS MAY LIMIT VOTES OP STOCKHOLDERS.— A cor- poration may provide in its articles of Incorporation that each stockholder, irrespect- ive of the amount of stock he may own, shall be entitled to one vote, and no more, at any election of directors, or upon any subject submitted at a stockholders' meet- ing', and when such provision is made it shall be governed thereby. (March 19, 1884, 81 V. 54, 55.) Sections numbered the same. There are two sections bearing the number 3245a, reading differently, and both in force. § 3245b. PROVISIONS TO WHICH SUCH CORPORATIONS ARE SUBJECT.— Every corporation where articles of incorporation contain the limitation mentioned in section thirty two hundred and forty-five (a), shall be. subjected to the following provisions: 1. No person shall hold or own stock in excess of one thousand dollars face value. 2. The directors shall annually within thirty days after the thirty-first day of December, make and file with the recorder of the county in which the corporation is doing business, a statement of its financial condition upon the said thirty-first day of December, plainly setting forth its assets and liabilities in detail, the amount of its paid up capital stock, the names of its stockholders, and the number of shares owned by each, and said statement shall be signed and sworn to by a majority of the direct- ors, including the treasurer, before any officer authorized to administer oaths in this state. If the board of directors fail to make the annual statements required by this section, or if they make a, false statement, they shall be personally liable for all claims and demands against such corporation. 3. By-laws for the government of the corporation, and for distribution of its net earnings among its workmen, patrons and shareholders, not inconsistent with the 122 Private Corporations in Ohio. Directors, Election of, §§ 3245a-3245c. constitution and laws of the state may be made by tbe stockholders. (March 19, 1884, 81 V. 54, 55.) Sections numbered the same. There are two sections bearing the number 3245b, reading differently, and both in force. Common-laiv rule. This section goes back to the old common- law rule that a shareholder was entitled to no more than one vote, irrespective of the num- ber of shares held by him. — See State ex rel. V. Stockley, 45 Oh. St. 304, 306 (1887). Purpose of law — evasions. The restrictions placed by this section upon the voting power of stockholders are intended to protect the minority and to place the work- men in a co-operative organization of employer and employee on a plane with persons owning a great number of shares. Iij England, un- der a similar provision, it was held possible for a person to exceed the limit placed by the law, and to increase his voting power by plac- ing his stock in the hands of third persons to hold and vote according to his directions. — In re Stranton I. & S. Co., L. R. 16 Eq. Cas. 559 (1873); Pender v. Lushington, L. R. 6 Ch. Div. 70 (1877) ; Moffat v. Farquhar, L. R. 7 Ch. Div. 591 (1877). See § 3836-3 stock notes. In other jurisdictions such evasions have not been sanctioned. — Mack v. De Bardelben Co., 90 Ala. 397 (1889); Campbell v. Poultney, 6 G. & J. (Md.) 94 (1834); Webb' v. Ridgley, 38 Md. 364 (1873). See Creed v. Lancaster Bank, 1 Oh. St. 1 (1852). Other corporations may limit stock holdings. See § 3869 and § 3836-3. § 3245a. APPLICATION FOB. APPOINTMENT OP INSPECTOES OF ELEC- TION; NOTICE. — Within fifteen days next before any meeting held for the election of directors or trustees, or for the determination of any question by the stockholders of any corporation, or by the subscribers to its stock, or by its creditors and stock- holders for its reorganization, any person or persons entitled to vote at said meeting and owning at least a one-tenth interest in its stock may apply to the court of common pleas of the county wherein said meeting is to be held, or if the court be not in ses- sion, to a judge thereof, or in case of the absence or disability of such judge then to the probate court, for the appointment of inspectors for such meeting; but no such application shall be acted upon until notice thereof has been served upon the cor- poration at its general office, and the court or judge may require such additional notice by newspaper publication, or otherwise, as may be deemed proper. (March 18, 1887, 84 V. 115. See note to preceding § 3245a.) Appointment by directors. Directors of a company have no authority to appoint inspectors of an election. — State ex rel. v. Merchant, 37 Oh. St. 251 (1881). § 3245b. APPOINTMENT OP INSPECTOES; VACANCIES.— Upon the hearing of such application the court or judge shall appoint three competent disinterested persons inspectors for such meeting, if such appointment be considered proper and right, and for good cause may thereafter vacate such appointment as to one or more of said persons and appoint another or others instead. In case of the failure of any inspector to attend said meeting, or to act thereat, the stockholders may fill the vacancy so caused. (March 18, 1887, 84 v. 115. See note to preceding § 3245b.) § 3245c. LIST OP STOCKHOLDEES TO BE DELIVEEED TO INSPECTOES; STOCK OWNEESHIP, HOW ASCEETAINED.— Before every such meeting it shall be the duty of the officer or the agent of the corporation having charge of the transfer of its stock, to make out, under oath, a list of its stockholders, showing the number and classes of shares held by each, as shown by its books, on the date fixed for closing the stock transfers before its meetings; and if no time be fixed therefor, then on the tenth day prior to the date of such meeting. Such list shall be delivered to the inspectors of the meeting, and shall be prima facie evidence of the ownership of its stock; but in case of its absence the inspectors shall ascertain the ownership of stock by the corporation books, stock certificates or other satisfactory proof. (March 18 1887, 84 V. 115, 116.) General Corporation Law. 123 Directors or Trustees — Election of, §§ 3245d-3246. § 3245d. CONDUCT OT ELECTION'S BY INSPECTORS; CERTIFICATE OP RESULT. — The inspectors so appointed, or if none be appointed, then those selected by the meeting, shall receive and count the votes cast at such meeting, or at any adjournment thereof, either upon an election, or for the decision of any question to be decided by vote, and determine the result, and their certificate of the result shall be prima facie evidence thereof. (March 18, 1887, 84 v. 115, 116.) § 3245e. COMPENSATION OF INSPECTORS.— The court or judge making the appointment of inspectors may fix their compensation, and may require the applicants for their appointment to secure its payment; but the corporation shall be liable there- for if the meeting by vote so determine. (March 18, 1887, 84 v. 115, 116 ) § 3246. ANNUAL AND OTHER ELECTIONS FOR TRUSTEES AND DIRECT- ORS. — Unless the regulations of the corporation otherwise provide, an annual election for trustees or directors shall be held on the first Monday in January of each year; if trustees or directors are, for any cause, not elected at the annual meet- ing, or other meeting called for that purpose, they may be chosen at a members' or stockholders' meeting, at which all the members or stockholders are present in person or by proxies, or at a meeting called by the trustees or directors, or any two members or stockholders, notice of which has been given, in writing, to each stockholder, or by publication in some newspaper printed in the county where the corporation is situate, or has its principal oflSce, for ten days; and trustees and directors shall continue in oflice until their successors are elected and qualified. Ecxcept that any corporation, the principal object of which is the owning and operating of a clubhouse for the use of its stockholders, the clubhouse of which is not kept open and operated for the use of its stockholders during the winter season, shall hold its annual election of direct- ors on the third Monday in July of each year, and such election shall be held at the clubhouse owned and operated by such corporation. (May 1, 1852, 50 v. 274, § 64, R. S. 1880; April 16, 1900, 94 v. 375.) Notice of general meeting. , Where a, meeting is stated and general, no- tice of the time and place of holding it, or of the business to be transacted, is, in the ab- sence of provision or regulation to the con- trary, in no ease required. — State ex rel. v. Bonnell, 35 Oh. St. 10 (1878); Wiswell v. First, etc., Church, 14 Oh. St. 31 (1862). Adjourned meetings. Any business proper to be transacted and properly commenced at a regular meeting but not completed, may be done at an ad- journed meeting without further notice to stockholders of the adjourned meeting. — State ex rel. v. Bonnell, 35 Oh. St. 10 (1878) ; Wiswell V. First, etc., Church, 14 Oh. St. 31 (1862). Notice of election. Where no notice of an election is given, persons elected directors may become de facto directors. — First, etc.. Society v. First, etc., Society, 25 Oh. St. 128, 133 (1874). Time of election. This section, so far as it concerns the time of holding elections, is merely directory and not imperative. — State ex rel. v. Lakamp, 4 O. C. C. 257 (1889) ; s. c, 2 C. D. 583. See Cham- berlain V. Painesville, etc., R. R. Co., 15 Oh. St. 225 (1864). Informalities in folloiving regulations do not invalidate election. When the election is not held on the day fixed for the annual meeting, informalities in calling and giving notice of a special election will not invalidate the same. Lutterby v. Herancourt Brewing Co., 12 Dec. 67 (1901). Right to fair election. A stockholder has a right to a fair and law- ful election of directors without regard to pecuniary injury. — Hafer v. N. Y., etc., R. R. Co., 14 W. L. B. 68, 71 (1885). What is unfair election? Where a corporation is restrained from hold- ing an election of officers, and in consequence of the injunction no meeting is held for sev- eral hours after the regular time,- when a small number of stockholders, without the knowledge of the others, meet, organize, and adjourn until the next day, at which time an election is held by a minority of the stockholders without notice to the others, who are in the vicinity for the purpose of the meeting and might have been readily notified; held, that such election is unfair and must be held invalid, whether the re- straining order did or did not bind the stock- holders. — State ex rel. v. Bonnell, 35 Oh. St. 10 (1878). 124 Private Corporations in Ohio. Directors or Trustees — Election of, § 3246. Same subject. Where at the meeting of the stockholders of a, corporation for the election of officers, by a misunderstanding as to the time of an agreed adjourned meeting the minority meet and elect officers, and thereafter the majority meet and elect officers, neither election will be held good, but the old directors will hold over. — State ex rel. v. Smalley, 7 0. C. C. 400 (1893); s. u., 4 C. D. 653. 'Who are electors? The members or stockholders of a corpora- tion are the elective and controlling body, and neither the incorporators nor the trustees first elected, are authorized to adopt a by-law or regulation providing that they shall hold office during life, and in case of vacancy, to fill the same by appointment. — State v. Standard Life Ass'n, 38 Oh. St. 281 (1882); Wiswell V. First, etc., Church, 14 Oh. St. 31 (1862). Inspectors of elections. The right to choose inspectors of an election under this section is vested in the stockhold- ers, not the directors. — State ex rel. v. Mer- chant, 37 Oh. St. 251 (1881). Election notivitbstauding receivership. The right of the stockholders of a company to elect directors is not aflfected by the sale of the property of the corporation by a receiver under an order of court. — State ex rel. v. Merchant, 37 Oh. St. 251 (1881). Sale of voting ponr^r. A sale by a stockholder of the power to vote upon his shares is illegal. — Hafer v. N. Y., etc., R. E. Co., 14 W. L. B. 68, 71 (1885). Voting agreement. An agreement by which the stockholders of a railway company confer upon a committee the power to vote upon their shares for a lawful purpose, is not illegal or against public policy, but such agreement may be revoked at any time by any one of the subscribing share- holders, notwithstanding it is in terms irrev- ocable—Griffith V. Jewett, 15 W. L. B. 419 (1886). See State ex rel. v. Standard Oil Co., 49 Oh. St. 137 (1892). Same su}iject. • Stockholders may place their stock in the hands of a depositary with direction to vote it as directed by a committee appointed by themselves and subject to their control. — Ry. Co. V. State, 49 Oh. St. 668 (1892); s. u., G 0. C. C. 415; s. c, 3 C. D. 518. Same subject. An agreement by the owners of -i majority of the capital stock of a company to elect a particular person secretary or treasurer is not illegal if not entered into for private benefit. — Mullen V. Gaffney, 8 Am. L. Rec. 102 (1879). Same subject. Where the purchaser of stock in a medical institute guarantees to the seller a, professor- ship in the institution, and it appears that the board of trustees has exclusive power to ap- point the professors, the contract is illegal as one controlling the election and conduct of the trustees for private ends. — Jones v. Scudder, 2 C. S. C. 178 (1872). Injunction against election — ivhen granted. Where there is a dispute as to whether a person is a lawful director of a company and some of the stockholders propose to elect his successor, the election will not be enjoined provided the parties agree to try the right to office by quo warranto; but the parties will be enjoined from obtaining possession of the office by force or other illegal means. — Hooe V. Hall, 9 0. C. C. 654 (1893); s. c, 4 C. D. 547. Equity cannot - determine validity of election. The legality of the election of persons as trustees of a company and their right to exercise the powers and conduct the affairs of a company are questions which cannot be judicially tested by a bill in chancery, but fall appropriately within the jurisdiction of pro- ceedings at law by quo warranto. — Hullman V. Honcamp, 5 Oh. St. 237 (1853) ; First, etc., Society v. Smithers, 12 Oh. St. 248 (1861); Bartholomew v. Lutheran Congregation, 35 Oh. St. 567 (1880) ; Messenger v. Wardens of Trinity Church, 6 W. L. B. 397 (1881). See Moses V. Tompkins, 84 Ala. 613 (1887), and Lutterby v. Herancourt Brewing Co., 12 Dec. 67 (1901), for exceptions. Election called by directors. The designation of a time for an election by the directors must be done by them as a board when lawfully convened; and a resolution by the board that an election must be held with- out fixing a time, does not authorize one of them to fix the time and give notice. A no- tice of an election required to be given by the directors is not a sufficient notice if signed by the individual names of a majority without stating that it was given by order of the board, or stating that the persons who*e names were signed were directors. — Johnston V. Jones, 23 N. J. Eq. 216 (1872). Repeating. To vote more than once at an election under this section is not a penal offense. — Lane v. State, 39 Oh. St. 312 (1883). Term of office. Directors must be elected for one year. Lutterby v. Herancourt Brewing Co., 12 Dee 67 (1901). General Corporation Law. 125 Directors or Trustees — Oath, Duties, etc., § 3247. Holding over term. Where directors have been regularly elected and enter upon the duties of the office, they will continue to be directors until their suc- cessors are elected and qualified, though they may for a time be interrupted in the discharge of their duties; and such successors must be chosen as provided in the statute. — State ex rel. V. Bonnell, 35 Oh. St. 10 (1878). Abandonment of office. Where a company is insolvent and exer- cises none of its powers for a long time, say sixteen years, directors elected before the suspension of business will not be held to have continued in office although the charter pro- vided directors should continue in office until their- successors were elected. So long a sus- pension from the performance of any official duty will be regarded as an abandonment or resignation of the ' office. — Bartholomew v. Bentley, 1 Oh. St. 37 (1852). Loss of special charter. Where a corporation operating under a special charter acts under this section by changing the time of its election, it will be held to have become a corporation under the present constitution. — State ex rel. v. La- kamp, 4 0. C. C. 257 (1889); a. c, 2 C. D. 533. Purchase of stock to increase voting poTver. See Taylor v. Miami Exporting Co., 6 Oh. 176 (1833). See further as to elections, notes to § 3244. Rights of state as a stockholder. See Harper v. Ampt, 32 Oh. St. 291 (1877). § 3247. OATH AND DUTIES OF TRUSTEES AND DIEECTOKS.— Each trustee and director shall, before entering upon his duties, take an oath faithfully to dis- charge the same; the trustees or directors chosen at any election shall, as soon there- after as may be convenient, choose one of their number to be president, and, unless the regulations otherwise provide for the election of such officers, shall appoint a secretary and treasurer of the corporation; and a majority of the trustees or directors shall form a board. (B. S. 1880.) Oath of officers. Where an officer of a corporation has not been sworn, he is nevertheless a de facto officer, and his acts as such are binding as to third parties. — ■ Simpson v. Garland, 76 Me. 2C3 (1884). Contract to secure a corporate office for another, when void. See Magill v. Rendigs, 12 Dec. 558 (1902). Majority constitutes ciuorum, A majority of the board constitutes a quorum for the transaction of business. — Wickersham v. Crittenden, 93 Cal. 17 (1892); Ex parte Willcocks, 7 Cow. (N. Y.) 402 (1827) ; St. Louis, etc., Ass'n v. Hennessy, 11 Mo. App. 555 (1882). Majority of quorum may act. Where the necessary quorum is lawfully assembled, a majority of its members may act,— Buell v. Buckingham, 16 la. 284 (1860) ; Hax V. Davis Mill Co., 39 Mo. App. 453 (1889). Acts by less than quorum. The acts of directors done at a meeting at which a quorum is not present, are voidable at the election of the corporation, but it may waive its rights by delay and acquiescence. — See U. S., etc., Co. v. Atlantic, etc., R. R. Co., 34 Oh. St. 450 (1878). Directors must act as a board. The directors must act together as a board to bind the company, the individual members have no authority. — See McCortle v. Bates, 29 Oh. St. 419 (1876) ; Young v. Taylor Street Church, 5 N. P. 378 (1898) ; s. c, 7 Dee. 449; Ohio ex rel. v. Treasurer, 22 Oh. St. 144 (1871). Directors cannot vote by proxy. A director cannot vote at a meeting of a board of directors by proxy, hence in count- ing a quorum, he cannot be regarded as pres- ent by proxy. — Ohio, etc., Bank v. Walton, etc.. Iron Co., 30 W. L. B. 382 (1893). Proof as to officers. The records of a corporation are the best evidence as to its officers, but it is competent to prove that such officers exist by the admis- sions of the corporation. Newspaper state- ments and the understanding of a witness from such sources is no evidence as to who are directors of a bank. — State ex rel. v. Buchanan, Wright, 233 (1833). Records of corporation as evidence. Where a party introduces in evidence a por- tion of an entry in the records of a, corpora- tion, the I'om.pany may introduce the re- maining portion and insist upon proper in- structions upon the whole entry by the court. — ■ Stillwater Turnpike Co. v. Coover, 25 Oh. St. 558 (1874). Same subject — sealed pages. Where certain pages of a record book are placed in evidence, and the other i ages of the book are sealed up or fastened together, it is not sufficient to entitle counsel to cross-ex- amine as to the pages so sealed, to offer to prove that they contain matter pertinent to 126 Private Corporations in Ohio. Directors or Trustees — Oath, Duties, etc., § 3247. the questions to be detemiined, when opposing counsel state that they have no relevancy to the case. To entitle to an examination of the portion so sealed, the proper action should be taken under §§ 5290, 5291.— Toledo, etc., Ey. Co. V. Toledo, etc., Ry. Co., 12 0. C. C. 367 (1893); s. c, 5 C. D. 643. Approval of minutes. The approval of the minutes of previous meetings of a board of directors is an approval of the form of statement or correctness of previous proceedings. — Ohio, etc.. Bank v. Walton Iron Co., 30 W. L. B. 382 (1893). Ambiguity in proceedings of directors — construction. Where the proceedings of the directors are ambiguous, they will be so construed, if pos- sible, as to make them consistent and har- monious. — East Cleveland, etc., Ey. Co. v. Everett, 19 0. C. C. 205 (1900). Interpretation of records. When called upon to interpret the records of directors of a corporation, the court will look to the whole record to ascertain their in- tention. — Lockwood V. Wildman, 13 Ohio, 430 (1844). Compensation of officers. Where directors of a corporation appoint one of their number secretary, he is entitled to reasonable compensation for his services where it was the intention of all the parties that he should be paid, although no express contract was made and no provision was con- tained in the by-law authorizing his compen- sation. — Dalton V. Brush Elec. Co., 13 0. C. C. 505 (1897); s. c, 7 C. D. 141; Taussig v. St. L., etc., Ry. Co., 65 S. W. Eep. (Mo.) 969 (1901). Same subject. Directors are entitled to reasonable com- pensation for their time and expense incurred in going to, attending, and returning from meetings of the board. — State ex rel. T. Peoples, etc., Ass'n, 42 Oh. St. 579 (1885). Same subject — bach pay. Directors or trustees having accepted com- pensation for services for a particular year have no power lo vote themselves back pay for services during such former year. — State ex rel. v. Peoples, etc., Ass'n, 42 Oh. St. 579 (1885). Same subject — services as agents. Where dii-ectors or trustees act for the cor- poration as secretaiy, treasurer, general or special agent, they are not entitled to com- pensation in the absence of a special agree- ment. — State ex rel. v. Peoples, etc., Ass'n, 42 Oh. St. 579 (1885) ; McMuUen v. Ritchie, 64 Fed. 253 (1894); s. c, 8 0. F. D. 314. Election of president by stockholders. Under the Colorado statutes, which pro- vide that the directors or trustees shall elect one of their number to be president, it was held that an election of president by the stockholders was a nullity, and therefore such person would have no authority to bind the corporation by signing a, promissory note. — Walsenberg Water Co. v. Moore, 5 Colo. App. 144 (1894). Power of president by virtue of office. The president pro tempore of an insolvent corporation has no authority by virtue of his office, to execute a mortgage on the property of the company or an assignment for the bene- fit of creditors. — Commercial Nat. Bank v. Cincinnati Nat. Bank, 3 0. C. C. 513, 516 (1889); s. c, 2 C. D. 295. Authority of president — presumption. A deed executed by the president of a com- pany in due form under the seal of the corpo- ration and delivered, will be presumed to have been authorized by the directors, and the mere fact that such authority is not found on their minutes will not rebut the presumption. — ■ Cincinnati, etc., E. E. Co. v. Harter, 26 Oh. St. 426 (1875). Poiver of president to bring suits. Without specific authority from the board of directors, the president of an insolvent cor- poration has authority to bring and defend actions to protect the property of the corpora- tion. — Kalb V. American Nat. Bank, 21 O. C. C. 1 (1900). Authority of president to sign notes — presumption. In the absence of statute or by-law limiting his authority, the president of a corporation, as its legal head, is presumed to be authorized to bind the corporation by his acts in its name, and notes so executed by him are pre- sumptively valid against the corporation.^ Dexter, etc.. Bank, v. Friend, 90 Fed. 703 (1898). Power of president to sign notes. Notes of a corporation signed in its name by its president and secretary, payable to its president's order, are presumptively unau- thorized, and subsequent indorsees, though for value and in good faith and before maturity, take with notice. — Arnkens v. Eouse, 26 W. L. B. 221 (1891). See Ry. Co. v. Bank, 56 Oh. St. 351 (1897). Power of president to sign cognovit notes. The president of a corporation has no power, by virtue of his office, to execute a bond and warrant of attorney, for the entry of judg- ment by confession against the corporation. Such power is vested in the board of directors only, but the president's authority may be changed beyond the powers inherent in his office by the consent and acquiescence of the directors in permitting him to take control of the business of the corporation. Where, there- fore, it appears that the president had no au- General Corporation Law. 127 Directors or Trustees — Oath, Duties, etc., § 3247. thority to sign a cognovit note for the corpo- ration, and that there was no ratification of such action by the directors or a majority of the stockholders, a judgment against the cor- poration on such cognovit note could be set aside. — Smead Foundry Co. v. Chesbrough, 18 O. C. C. 783 (1895) ; s. c, 6 C. D. 670. Authority of presidant to sign notes — liability of corporation. A negotiable note executed in the name of a corporation by an officer or agent having no authority to issue such paper in its behalf, is void; but if the officer or agent have authority to issue notes of the corporation for any pur- pose, such note is valid and enforceable against the corporation in the hands of a bona fide holder, although executed for an unauthorized purpose. — Dexter, etc., Bank v. Friend, 90 Fed. 703 (1898). Power of president. The president of a corporation to whom a bond has been delivered by the board of direct- ors in trust for sale has no right to convert such bond to his own use in payment of a claim due him from the corporation, without the consent of the board of directors. — Green- ville Gas Go. V. Reis, 54 Oh. St. 549 (1896). Authority of president and secretary to issue stock. The president and secretary are the cor- poration for the purpose of issuing and trans- ferring stock, their acts being the acts of the corporation. — Ry. Co. v. Bank, 56 Oh. St. 351, 378 (1897) ; reversing 24 W. L. B. 98, and other cases. See § 3254. Authority of secretary as to stock. See Farmers' Bank v. Deebold Safe, etc., Co., 47 W. L. B. 585 (1902). Power of president and secretary to execute mortgage. See Bosche v. Toledo Display Horse Co., 14 0. C. C. 289 (1897) ; s. c, 7 C. D. 374. Poirer of vice-president to sign notes. Where no authority is conferred upon the vice-president of a. company by its regula- tions or by-laws, and when he has not been accustomed to sign notes for it, the company is not liable on notes signed by him. — Morris .. Griffith, 34 W. L. B. 191 (1895). Duties of treasurer. Where a charter creates the office of treas- urer, it becomes one of his duties from the nature of his office to receive and account for money, and the sureties on his official bond conditioned that he shall p_erform his duties according to the regulations of the charter are responsible for money which may come into his hands as treasurer.— Portage COt Ins. Co. V. Wetmore,'17 Oh. 330 (1848). Treasurer of preliminary organization again elected for corporation — lia- bility to account to corporation. Where, at the preliminary meeting to effect the incorporation of an association not for profit, a party is elected treasurer, and after the incorporation is effected is again elected as treasurer, and all the moneys in her hands came to her practically after such new elec- tion, if she was then elected treasurer of the corporation, then the corporation is entitled to an accounting for such moneys. — Muhl- hauser v. The Cleveland Hospital, 21 O. C. C 88 (1900). Secretary is not laborer. The services performed by the secretary ol a company are not labor within § 6355, al- though he at times performed manual labor. — Green v. Weller, 6 0. C. C. 351 (1892) ; =. c, 3 C. D. 488. See In re Armleder, etc., Co., 20 0. C. C. 699 (1900). Directors are not operators. The directors of a company are not opera- tors within the statute giving operators and laborers a first lien on assets in the hands of an assignee. — Williams v. Southard, 40 W. L. B. 287 (1898). Power of attorney to make and indorse notes to his ow^n order. See, as to duty of indorsee to inquire as to authority of an agent and as to implied agency from previous acts. Holmes v. Hayes, 52 Oh. St. 617; s. c, 32 W. L. B. 346 (1894) ; Arnkens v. Rouse, 26 W. L. B. 221 (1893). liiability of officer for unauthorized acts. An officer of a company who executes nego- tiable paper in the name of the corporation is liable to a bona fide purchaser of the paper in. an action for damages for falsely representing his authority where he had no authority to issue paper for any purpose, and the notes are consequently void; but where he had author- ity to execute notes in the business of the cor- poration, although he abused his authority by executing them for an unauthorized purpose, he is not liable to the holder, as the notes are binding on the corporation as represented, and his liability is to the corporation alone.— Dexter, etc.. Bank v. Friend, 90 Fed. 703 (1898). Removal of officers for cause. See paper by W. E. Talcott, 17 W. L. B. 13a Powers of cashier of bank. The cashier of a bank cannot make for his bank a contract in regard to a subject-matter outside of the usual business of the bank, and outside of the business usually performed by cashiers. — First Nat. Bank v. Mansfield Sav- ings Bank, 10 0. C. C. 233 (1894^ 6 C. D. 452. 128 Private Corporations in Ohio. Directors and Trustees — Powers, etc., § 3248. FovreT of president of bank to borroiv money. See Armstrong v. Chemical Nat. Bank, 83 Fed. 566 (1897) ; B. c, 76 Fed. 339. Po-nrer of officers of bank fixed by ons- tom. See Armstrong v. Chemical Nat. Bank, 83 Fed. 566 (1897). § 3248. POWERS OF DIKECTOBS AND TRUSTEES.— Tlie corporate powers, business, and property of corporations formed under this title must be exercised, con- ducted, and controlled by tlie board of directors, or, where there is no capital stock, by the board of trustees; a majority of the directors must be citizens of the state; all directors and all the executive officers must be holders of stock in an amount to be fixed by the by-laws, and trustees of corporations must be members thereof; and whenever the office of director or trustee becomes vacant, the board of directors or trustees may fill the same for the unexpired term by appointment, unless the by-laws otherwise provide; and no person shall be appointed or act as a receiver of any rail- road or other corporation within this state unless he be a resident citizen of this state. Qualifications of directors. In the absence of statute requiring it, the directors need not be stockholders. — State ex rel. v. McDaniel, 22 Oh. St. 354 (1872). Same subject. Where one of the directors acting in a trans- action for a company has ceased to own stock in it, he will be recognized as a de facto oifi- cer, and the transaction held valid, although were his status not collaterally, but directly attacked, the office would be declared vacant. — Campbell P'tg. Co. v. Bellman Bros. Co., 11 O. C. C. 360 (1896) ; s. c, 5 C. D. 389. Same subject. A person who holds one share of stock in a corporation may serve as a director thereof, although he is a party to an outstanding executory contract providing that he shall, at the option of the purchaser named therein, sell his single share of stock at a price named therein. So long as that option has not been exercised, the stock is still his. — Kuhn v. Woolson Spice Co., 13 O. C. C. 547 (1897). Same subject. A director will be presumed to be a stock- holder until the contrary appears. And where there are but five stockholders, each will be presumed to be a director. — Butter- field V. Radde, 6 J. & S. (N. Y.) 1 (1874); Gates V. Tippecanoe Stone Co., 9 0. C. C. 99, 103 (1894); 8. c, 6 C. D. 23. Same subject. Where a corporation required to have resi- dent officers elected a nonresident treasurer, the court enjoined the corporation from com- pelling the resident treasurer from turning over the securities, moneys, etc., of the cor- poration to the nonresident treasurer. — Mat- thews V. Trustees, 2 Brewst. (Pa.) 541 (1868). Same subject. A person who holds and owns no stock in a corporation may be voted for and elected a director thereof, and afterward quality him- self by acquiring one or more shares as owner in good faith and in his own right. — Green- ough V. Alabama, etc., E. R. Co., 64 Fed. 22 (1894). Same subject. Where the statute requires directors to be stockholders and to reside in the state, if either qualification ceases the office ceases, and it is not a qualification if a share of stock is transferred without compensation to a di- rector merely to qualify him, he having no real interest in the stock. — Bartholomew v. Bentley, 1 Oh. St. 37 (1852). See Henderson V. Hogan, 1 W. L. B. 227 (1876) ; State ex rel. V. Bryce, 7 Oh. (pt. 2) 82 (1836). Same subject. As to residence of directors of consolidated .railroad coinpanies, see § 3385. Same subject. As soon as a director parts with all bene- ficiary interest in and control over the stock which he is required to hold, and causes the officers of the corporation to have knowledge of such fact by a request for a transfer of stock, he no longer possesses the qualifications which the statute declared to be essential, and the statute executing itself operates to divest him of title to the office which he had ceased to be qualified to hold. — Commercial Nat Bank v. Colwell, 132 N. Y. 250 (1892). Same subject. Where an association is organized under § 3686 et seq., its directors must be members. — State ex rel. v. Mfgs., etc., Ass'n, 50 Oh St 145 (1893). Same subject. Where the charter of a company provides that no director of any other company, or the partner of a director of any other company, shall be a director of that company, it applies as well to foreign as to domestic corporations. — State ex rel. v. Buchanan, Wright, 233 (1833). General Corporation Law. 129 Directors and Trustees — Powers, etc., § 3248. Same subject. Where a corporation moves all its property and business to another state, its directors, though losing their residence here, are still de facto oiRcers, and may bind the company. — Lattimer v. Mosaic Glass Co., 13 0. C. C. 163 (1896); s. c, 7 C. T>. 430. Care required of directors of corpora- tions. Directors of corporations are required to use ordinary care in the management of its affairs, to be determined in view of all the circumstances under -whieh they are placed with reference to the affairs of the company. Eobison v. Cleveland City Ry. Co., 13 Dec. 1. Rights of innocent purchasers of quali- fication shares. Where a corporation issues to one of its directors a share of stock to qualify him, he agreeing to reeonvey the same on ceasing to be a director, a. person purchasing said share in good faith, without notice, has a, superior right to that of the company. — Dueber, etc., Co. v. Dougherty, 62 Oh. St. 589 (1900). Poirer of stockholders to control the board. A contract of consolidation, which provides that no evidence of funded debt or leases imposing fixed charges shall be created with- out the consent of a majority in interest of the holders of preferred stock, does not con- flict with this section. — Burke v. Cleveland, etc., Ey. Co., 22 W. L. B. 11 (1889). Same subject. It may be well doubted whether a general meeting of the stockholders of a company can be legally held for any other purpose than the election of a board of directors. Such a meet- ing as to any other purpose or object could only be in its character advisory to the board of directors. It would have no power to take under its charge or put under the charge of others the affairs of the company. — Dayton, etc., R. R. Co. V. Hatch, 1 Dis. 84, 91 (1855). See Sims v. Street R. R. Co., 37 Oh. St. 556, 565 (1882) ; Donner v. Dayton, etc., R. R. Co., 1 C. S. C. 130, 140 (1871). Contracts depriving the board of power. It seems that a contract with a company, e. g., stock subscriptions, cannot be so made 'as to deprive the board of directors of general control of the corporate business. — See Port Clinton, etc., R. R. Co. v. Cleveland, etc., R. R. Co., 13 Oh. St. 544, 560 (1862). Acts of de facto directors. Where persons are de facto directors, their acts are entitled to the same respect as if they were lawfully elected, unless called in ques- tion in a direct proceeding. — Campbell P'tg. Co. V. Bellman Bros. Co., 11 O. C. C. 360 (1896) ; s. v;., 5 C. D. 389; Raymond v. Spring- LAW 'GOV. PRIV. COR. — Q. grove, etc., Ry. Co., 21 W. L. B. 103 (1889); Ehrman v. Union, etc., Ins. Co., 35 Oh. St. 324, 339 (1880); .Chamberlain v. Paines'ville, etc., R. R. Co., 15 Oh. St. 225 (1864); First, etc.. Society v. First, etc.. Society, 25 Oh. St. 128, 133 (1874). The urhole board must manage. The business of a corporation must be man- aged by the whole board lawfully elected. For the company to exclude three of the directors from the exercise of the duties of their office is contrary to the laws of the state, and a denial of the right given by the law to the stockholders, to have those directors elected by them serve as such. — State ex rel. v. Ohio, etc., Ry. Co., 6 O. C. C. 412; s. c, 3 C. D. 516; s. c, 49 Oh. St. 668 (1892). When vacancies cannot be filled. Where a corporation has been inactive for a long time, and its board of directors has done nothing, it will be presumed that the officers have resigned and abandoned the offices, and they cannot, by filling the vacancies in the board, reorganize the corporation. — Barthol- omew v. Bentley, 1 Oh. St. 37 (1852). Same subject. If a majority of the directors of a corpora- tion regularly elected resign or disqualify themselves by transferring their stock, the remaining directors, being a minority, have no power to fill vacancies. — Moses v. Tompkins, 84 Ala. 613 (1887). Power of board over unissued stock. The board of directors of a company has power to sell or dispose of that portion of the authorized capital stock not taken before the corporation was authorized. — Sims v. Street E. R. Co., 37 Oh. St. 556 (1882). See Dayton, etc., R. R. Co. V. Hatch, 1 Dis. 84 (1855); Peter v. Union Mfg. Co., 56 Oh. St. 181, 197 (1897); James v. Cincinnati, etc., R. R. Co., 2 Dis. 261 (1858). Same subject. Directors will not be restrained from selling a part of the unsubscribed capital stock to persons friendly to them when they do so at public sale, and at no pecuniary loss to the company. — Lomis v. Dexter, 20 W. L. B. 5 (1888). Same subject. Directors cannot issue treasury stock to themselves without the payment of a valuable consideration. — Straman v. North Baltimore Water Works Co., 8 0. C. C. 89 (1893) ; s. c, 4 C. D. 339. Po^ver to sell property. The directors of a corporation, not the stockholders, are the proper body to make sale of corporate property. — Donner v. Day- ton, etc., R. R. Co., 1 C. S. C. 130, 140 (1871). 130 Private Corporations in Ohio. Directors and Trustees — Powers, etc., § 3248. Power of trustees of religious society to sell real estate. The trustees of a religious society organized under § 3241 have no power to dispose of the society's real estate without the consent of members. — South Kenton, etc., Ass'n v. Espy, 17 0. C. C. 524 (1899); s. c, 9 C. D. 695. Pourer to institute suits. The power of commencing and disposing of the company lawsuits is in the directors. — Wadsworth v. Davis, 13 Oh. St. 123, 130 (1862). See Kalb v. American Nat. Bank, 21 0. C. C. 1 (1900). General poivers of directors. A provision in a charter " that the directors shall have power to do whatever shall appear to them to be necessary and proper to be done for the well-ordering qf the interests of the proprietors not contrary to the laws of the state," is not intended to give unlimited power, but the exercise of discretion within the scope of the authority conferred. — Beatty V. Lessee of Knowles, 4 Pet. (U. S.) 152 (1830). Duty to keep books. The powers conferred upon directors impose corresponding duty to make such by-laws and to keep such accounts and books as are neces- sary in the proper exercise of the powers. — Freon v. Carriage Co., 42 Oh. St. 30, 40 (1884). Poivers of nonresident receivers. See Caldwell v. Pittsburg, etc., E,. R. Co., 33 W. L. B. 134 (1894). See § 3415. Contract of directors ivitb tkeir corpo- rations. Because of their fiduciary relations, direct- ors of a corporation cannot purchase for their company from themselves and others their own property or property in which they are largely interested, and pay for the same with corporate funds. And if they do buy such property, and so pay for it, an action lies on behalf of the company lo compel them to ac- count for the Corporate funds even if the minority of the directors have no interest in the property sold, and if all the stockholders ratify the purchase of the property. — Colum- bus, etc., Ry. Co. v. Burke, 19 W. L. B. 27 (1887). Same subject. A contract between a corporation and its officers is not void per se, but is merely void- able at the option of the corporation, provided there is no estoppel. — Browne v. U. S., etc., Co., 6 N. P. 2.54 (1890) ; ». c, 20 0. C. C. 351. So? Sims V. Street R. R. Co., 37 Oh. St. 556, 566 (1882); Taylor v. Miami Exporting Co., 6 Oh. 176, 223 (1833); Larwill v. Burke, 19 0. C. C. 449 (1900). Same subject. The sale of stock made to one member of the board of directors with the consent of the others, and the payment of the par value thereof, when the transaction is free from fraud and is beneficial to the corporation, will not be set aside at the instance of a stock- holder when no action has been taken to with- hold such stock from subscription or sale. — Sims V. St. R. R. Co., 37 Oh. St. 556 (1882). See Taylor v. Miami Exporting Co., 6 Oh. 176, 223 (1833). Purcbase of corporate property by di- rectors. A director cannot purchase property of the corporation either directly or indirectly, ex- cept for full consideration, and a sale, if made, will be set aside upon objection made by the corporation, its stockholders, or even a bond- holder. — Secor V. Maumee Rolling Co., 1 N. P. 100 (1894) ; s. c, 1 Dec. 80. AVben directors may act for two com- panies. A contract made between two corporations through their respective boards of directors ia not voidable at the election of one of the par- ties thereto from the mere circumstance that a minority of its board of directors were also directors of the other company. — U. S., etc., Co. V. Atlantic, etc., R. R. Co., 34 Oh. St. 450 (1878). See Goodin v. Cincinnati, etc.. Canal Co., 18 Oh. St. 169, 182 (1868); Henry v. Pittsburg, etc., Ry. Co., 2 N. P. 118, 154 (1895). Directors are charged -nrith notice of board proceedings. The director of a corporation dealing in its property on his own account is chargeable with notice of the action of the board of di- 1 rectors as to such property whether he was ' present or not at the meeting which took such action.— Greenville Gas Co. v. Reis, 54 Oh St. 549 (1896). Notice to two directors will not work ratification. The fact that two directors of a company know that a person is perfonning services for the company, without authority, will not bring notice to the board of directors, nor work a ratification by the board of the con- tract of hiring. — See East Cleveland, etc. Ry. Co. V. Everett, 19 0. C. C. 205 (1900). ' When knowledge of director Imputed to corporation. A corporation may be charged with knowl- edge of a transaction through its agents in the same manner and to the same extent as pri- vate persons, but it must be while the director is engaged in the business of the corporation and is authorized to transact it. Xotioe to a director not engaged in the precise business intrusted to him is not notice to the company General Corporation Law. 131 Directors and Trustees — Powers, etc., § 3248. For instance, the knowledge of the payee of a note, who is the director of a bank, that there is a defense to the note, does not bind the bank.— Loomis v. Eagle Bank, 1 Dis. 285 (1857); s. c, 10 Oh. St. 327; Ry. Co. v. Mc- Coy, 42 Oh. St. 251 (1884). Same subject. If the position af the director is adverse to that of the corporation, such, for instance, as that of the vendor of real estate purchased by the corporation, then the knowledge had by such officer cannot be imputed to the corpora- tion.— Alt V. Weber, 20 W. L. B. 467 (1888); Antioch College v. Carroll, 25 W. L. B. 289, 294 (1890). Notice to special agent. A company is bound by notice to its special agent as to matters intrusted to him. — Mass., etc., Ins. Co. v. Eshelman, 30 Oh. St. 647 (1876). Notice nndcF § 3208. The service of a notice under § 3208 upon' the director of a railroad company is a service upon an oflRcer of the company within the meaning of that section. — Ry. Co. v. McCoy, 42 Oh. St. 251 (1884). Admissions by officers. A corporation is not bound by an admission made by an officer after a transaction to one not connected with the transaction, when the corporation is not called upon to say anything. — Slaus, etc., Co. v. Smith, 11 0. C, C. 213 (1895); s. c, 5 C. D. 79. See Ry. Co. v. Mc- Lean, 1 0. C. C. 112 (1885) ; s. c, 1 C. D. 67; Cincinnati, etc., Co. v. Cincinnati, 19 O. C. C. 607 (1899). Admissions by stockholders. Admissions of stockholders not officers are not admissible to charge the corporation. — Hogg V. Zanesville Mfg. Co., Wright, 139 (1832). Iiiability for acts of agents. A corporation is liable for the acts of its agents done within the scope of the agency conferred on them. An act, though willfully fraudulent and negligently done by an agent, is within the scope of his agency, and charges the principal as to innocent third parties where the acts done — the making of the con- tract, transfer of stock — are Avithin the pow- ers conferred on him as an agent. In other words, if the extent of the agency included the legitimate doing of an act of the kind done, then it will be liable, though the act done was a fraud as to it. — Ry. Co. v. Bank, 56 Oh. St. 351, 388 (1897); Citizens, etc.. Bank v. Blakesley, 42 Oh. St. 645 (1885). PoTO-er of agent to sign street improve- ment petition. See Minor v. Board of Control, 20 O. C. C. 4 (1899). Potpers of p (rents. A corporation is a mere fiction created by law, and must therefore act through some human agency or it cannot act at all. These agencies necessarily differ in character; many simply represent it as agents, others represent it as a corporation in what they do, and their acts are its acts as mach as the act of an individual done by himself in his own behalf. This is so as to all acts appointed by law and its own rules to be done by a particular agent or agents, and can be done by no other officer or agent of the company, as is the case in issue and transfer of stock. — Ry. Co. v. Bank, 56 Oh. St. 351, 378 (1897). Poorer of agent to sign notes. Where the managing agent of a corporation executes a note in its name to secure a debt on which it is primarily liable to the creditor, but on which, as between it and a, third per- son, signing the note, it is surety, the com- pany is liable thereon, though no express au- thority had been given the agent to so execute the note.— Andres v. Morgan, 62 Oh. St. 236 (1900). Agency implied from acquiescence. A corporation is bound in the same manner as an individual is to third persons who have dealt with the accredited agents of the com- pany in good faith, and in ignorance of the want of authority of the agent, when that au- thority depends on the proceedings of the stockholders and directors, and they have silently acquiesced in the exercise by the agent. — Armstrong v. Bank, 83 Fed. 556 (1897); Baldwin v. Hillsboro, etc., R. R. Co., 10 W. L. B. 337 (1853) ; Powell Tool Co. v. McDonald, 13 W. L. B. 64 (1885). Iiiability of agent on notes improperly executed. The agents of a corporation are personally liable where they sign notes in their own name with a mere description of office, or where the office is described in the notes and their names are signed with no description. — Eells V. Shea, 20 0. C. C. 527 (1900); Titus V. Kyle, 10 Oh. St. 444 (1859)'; Collins v. Buckeye, etc., Ins. Co., 17 Oh. St. 215 (1867); Bank v. Cook, 38 Oh. St. 442 (1882); Robin- son V. Kanawha Valley Bank, 44 Oh. St. 441 (1886). See Second, etc.. Bank v. Wilcox, 2 0. C. C. 325 (1887); s. c, 1 C. D. 511; Bam- hisel V. Comm. Bank, 14 0. C. C. 124 (1897); s. c, 7 C. D. 533; Snyder v. First Nat. Bank, 22 O. C. C. 624 (1897). Receiver is not agent of corporation. A receiver of a corporation is not its agent, and a contract made by him for supplies, as for coal for a railroad, is not binding on the company after his discharge. — Consolidated Coal, etc., Co. v. Cincinnati, etc., R. R. Co., 10 W. L. B. 42 (1883). 132 Private Corporations in Ohio. Directors and Trustees — Powers, etc., § 3248. liiability of directors for issuing false statements. Directors who issue or make false state- nrents eoneeming the condition of their com- pany are liable in an action for deceit by those who rely on the same, and are damaged; as, for instance, persons who loan money on shares of stock of the company as collateral security. — Merchants, etc., Bank v. Thorns, 28 W. L. B. 104; s. c, 31 W. L. B. 137 (1893) ; Barnes v. Pogue, 29 W. L. B. 382 (1893); Barnes v. Swift, 3 N. P. 291 (1894); s. c, 3 C. D. 688. See Cable v. Bowlus, 21 0. C. C. 54 (1900). Power of directors to divide up capital — estoppel. Where directors of a corporation undertake to divide up the entire capital of the company among the stockholders, if the company acqui- esces no action will lie against them, on the theory that the money should have been paid over to the company and divided by it. — See Larwill v. Burke, 19 0. C. C. 513 (1900). Trust relation of directors to stock- holders. A relation of trust and confidence exists be- tween stockholders and directors, out of which grow the duties of the latter to so administer the trust as will best promote the interests of the former, to pay them their appropriate dividends from time to time, and upon the termination of the corporation to distribute to them their respective shares of the corporate property after the payment of its debts and liabilities. Every authority and power pos- sessed by them must be exercised for the benefit of all alike. — Rouse v. Merchants' Nat. Bank, 46 Oh. St. 493, 502 (1889). See Lar- vrill V. Burke, 19 0. C. C. 450 (1900); s. u., 19 0. C. C. 513. See Arbuckle v. Woolson Spice Co., 21 0. C. C. 348 (1901). Duty of directors of Insolvent corpora- tion. See Cheney v. Maumee Cycle Co., 20 0. C. C. 19 (1900). Xiabllity of directors for conducting unauthorized business. The directors of a company are personally liable on contracts entered into by them in conducting a business wholly foreign to the objects and purposes of the company, al- though such contract was entered into in an associate name, which could properly be used in corporate as well as private business. — Ridenour v. Mayo, 40 Oh. St. 9 (1883). See Mfgs., etc., Ass'n v. Lynchburg Drug Mills, 8 O. C. C. 112 (1893); s. c, 4 C. D. 350. See notes to § 3239. A corporation may follow its property, A corporation may follow its property where it has been fraudulently disposed of by the directors into the hands of purchasers with notice, and assert a lien upon it. — Goodin v. Cincinnati, etc.. Canal Co., 18 Oh. St. 169 (1868). See Greenville Gas Co. v. Reis, 54 OK. St. 549 (1896); Columbus, etc., Ry. Co. V, Burke, 19 W. L. B. 27 (1887). When directors liable to stockholders. If a stockholder pledge his stock as col- lateral with directors of the corporation, and the latter enter into a conspiracy to depreci- ate the price of the stock by using their pow- ers as directors for the purpose of buying it in for less than its value, there is a wrong not against the corporation only, but against the pledgor, for which there is a direct lia- bility to him. — ■ Ritchie v. McMullen, 79 Fed. 522 (1897) ; s. c, 10 0. F. D. 699. Action by pledgee against directors, A pledgee of shares of stock in a corporation has, merely by virtue of the pledge, no right of action against the stockholders of a cor- poration to recover damages for the negligence and mismanagement of the directors whereby the estates of the company were lost and the shares in the same rendered valueless. — Barnes v. Swift, 26 W. L. B. 110 (1891). liiability for irregularities of action. Where acts of directors have been injurious to no one, either stockholders or corporation, although irregular and informal, no action will lie.— See Larwill v. Burke, 19 0. C. C, 513 (1900), liiability of directors for mismanage- ment. Directors of a corporation are personally liable if they suffer corporate funds or prop- erty to be wasted or lost by gross negligence and inattention to the duties of their trust; and an action may be maintained against them for the amount of such losses. — See Kalb v. American Nat. Bank, 21 0. C. C. 1 (1900); Meisse v. Loren, 5 N. P. 307 (1898): 3. c, 8 Dec. 448. liiability of directors of railroad com- panies. See § 3314. Stockholder's suit, limitation of action. As to when statute of limitations runs against an action against directors for mal- feasance, see Larwill v. Burke, 19 O C 450 (1900); s. c, 19 0. C. C. 513. Conversion of corporate property rights of stockholders. Where a corporation has disposed of all its property for the purpose of defrauding a stock- holder, the latter may maintain an action to annul such_ transaction, making the coi-pora- tion, its directors and other guilty persons parties.— See Dye v. Hermesch, 32 W. L B. 120 (1894); Shaw v. Ohio Edison, etc., Co., 19 W. L. B. 292 (1888). General Corporation Law. 133 Directors and Trustees — Powers, etc., § 3248. Action by stockholder. A stockholder in a corporation may main- tain a bill in equity against the corporation, the directors and other stockholders upon alle- gations of fraudulent practices for the pur- pose of obtaining an account of the stock and funds, and for the restoration of whatever may have been fraudulently withdrawn from the corporate funds. — Taylor v. Miami Ex- porting Co., 5 Oh. 162 (1831). Nature of action. The action may be equitable even if money damages only are sought. — Meisse v. Loren, 5 N. P. 307 (1898); s. c, 8 Dec. 448; s. c, 4 N. P. 100; s. c, 6 Dee. 258. Who is proper plaintiff. The liability of directors is to the corpora- tion or to the one representing its interests, as, for instance, a receiver, and it should in- stitute proceedings to compel the directors to account; but if the corporation or the receiver refuses to sue, or if the board guilty of the misdeeds complained of is still controlling the corporation, a stodcholder may sue on behalf of the corporation making it and other proper parties defendants — See Meisse v. Loren, 5 N. P. 307 (1898); s. c, 8 Dec. 448; Robinson V. .Cleve., etc., Ey. Co., 5 N. P. 293 (1898); s. c, 7 Dec. 312; Larwill v. Burke, 19 O. C. C. 450 (1900); Egbert v. Third, etc., Bldg. Ass'n, 9 Dec. 646 (1899). Same subject. An action against directors for damages to corporate property caused by negligence or mismanagement can only be brought by or on behalf of the corporation, and not by a stock- holder or one indirectly injured. — Zinn v. Baxter, 17 0. C. C. 283 (1898); s. c, 9 C. D. 731; s. c. (Sup. Ct.), 46 W. L. B. 271 (1901). Parties plaintiff. A creditor and a stockholder of a corpora- tion may join as plaintiffs and bring an action for the benefit of all the corporate creditors and stockholders where they are very numer- ous, and it is impracticable to bring them all before the court, but other creditors may come in and be made parties defendant. — Meisse v. Loren, 5 N. P. 307 (1898) ; s. c, 8 Dee, 448. Action for negligence follcws stock. Any rights a stockholder may have on ac- count of the negligence or mismanagement of directors follows his stock on its sale by him. — Zinn V. Baxter, 17 0. C. C. 283 (1898); s. c, 9 C. D. 731; s. c. (Sup. Ct.), 46 W. L. B. 271 (1901). Bights of equitable stockholders. An equitable owner of stock, being the real party in interest, may bring in his own name an action against directors. — Larwill v. Burke, 19 0. C. C. 450 (1900). Parties to stockholder's bill. The coi-poration, the directors and other stockholders are proper parties to a stock- holders' bill against directors for an account- ing. — Taylor v. Miami Exporting Co., 5 Oh. 162 (1831). See Dodge v. Woolsey, 18 How. (U. S.) 331 (1855). Stockholder's bill, motive. It is no defense to a stockholder's bill against directors that the plaintiff has some interests other than in his stock which will be benefited by the relief sought. — Henry v. Pittsburg, etc., Ry. Co., 2 N. P. 118 (1895); s. c, 5 Dec. 41. See Kuhn v. Woolson Spice Co., 13 0. C. C. 547 (1897); s. c, 7 C. D. 289; Cincinnati Volksblatt Co. v. Hoffmeister, 43 W. L. B. 142 (1900) ; Stewart v. Little Miami R. E. Co., 14 Oh. 353, 358 (1846); Sommers v. Cincinnati, 8 A. L. Rec. 612, 624 (1880). Same subject — puppet of competitor. Prima facie every stockholder may come into court as representing all the shareholders to prevent an illegal act of the directors, and the court does not require any evidence that the remaining shareholders have concurred in the filing of the bill, because if the act be illegal it is presumed to be for the benefit of all that it should be stopped; but not so when it appears that the plaintiff is not moving in his own behalf, but is set in motion by some one who undertakes to pay the costs and to indemnify him against all risk; then the ac- tion can no longer be considered as under the direction of the plaintiff bona fide, but in the hands of another, for whom the plaintiff is a puppet, and the bill will be dismissed. — Gallagher v. Johnson, 31 W. L. B. 24 (1894) ; Kuhn V. Woolson Spice Co., 13 0. C. C. 547 (1897); s. c., 7 C. D. 289. See Buning v. Cincinnati, etc., R. R. Co., 1 0. C. C. 323, 325 (1896); s. c, 1 C. D. 178. Same subject — estoppel. A decree in a suit brought by the trustee of a mortgage for the foreclosure of the same does not estop the same person suing as a stockholder. — Henrv v. Pittsburg, etc., Ry. Co., 2 N. P. 118 (1895) ; s. u., 5 Dec. 41. When stockholders not in pari delicto from illegal contract. See National Salt Co. v. United Salt Co., 12 Dee. 386 (1902). Acquiescence of stockholders. Where the directors of a company add a, new feature to the corporate business, acting in good faith, and the stockholder acquiesced in such action, they are not liable for losses sustained by the corporation. — Bond v. Coe, 12 0. C. C. 281 (1893) ; s. c, 4 C. D. 10. See Larwill v. Burke, 19 0. C. C. 513 (1900); Foster v. Railway Co., 36 Fed. 627 (1888). 134 Private Corporations in Ohio. Directors and Trustees — Powers, etc., § 3248. Nonconcurrence of stockholders. Where the complaining stocltholder repre- sents a very small fraction of the stock of th& company, it seems that the court will take into consideration the attitude of the holders of the balance of the stock. — Cincinnati, etc., R. R. Co. V. Duckworth, 2 0. C. C. 518, 523 (1887); s. c, 1 C. D. 618; Robinson v. Cleve- land, etc., Ry. Co., 5 N. P. 293, 305 (1898); s. c, 7 Dec. 312. When injunction granted. The fact that illegal or fraudulent acts have been committed by the board of directors of a, corporation will not entitle a shareholder or creditor to an injunction where there is no threatened repetition of such acts. — North Fairmount, etc., Co. v. Rehn, 6 N. P. 185 (1899) ; s. c, 8 Dec. 594. When injunction not dissolved. A temporary injunction against directors will not be dissolved where part of the officers are insolvent, the solvency of the company doubtful, and it is uncertain that they will use the corporate funds properly. — -Upson v. Rock, etc., Quarry Co., 2 C. L. Rep. 355 (1879). What breaches of trust xriSl be set aside. A director is a trustee for the company, and whenever he acts against its interests, no matter how much he thereby benefits foreign interests of the individual stocJcholders, or how many individual stockholders act with him, he is guilty of a breach of trust, and a court of equity will set his acts aside at the instance of creditors or stockholders who are damnified thereby. Any act of the directory by which they intentionally diminish the value of the stock or property of the company is a. breach of trust. — Goodin v. Cincinnati, etc.. Canal Co., 18 Oh. St. 169, 183 (1868). Same subject — illustration. Where a railroad company purchased a ma- jority of the shares of stock in a canal com- pany, and elected for the latter a board of directors who were in its interests, and then appropriated the lands and canal of the canal company as a right of way, paying therefor a price agreed upon by the directors of the two companies, but which was far below the actual value, it was held that the stockhold- ers of the canal company could compel the railroad company to account for the actual value of the property. — Goodin v. Cincinnati, etc.. Canal Co., 18 Oh. St. 169 (1868). Defenses of directors. It is no defense on demurrer that some of the defendants have been directors longer than others. The court will fix the liabilities ac- cording to the circumstances. — Meisse v. Loren, 5 N. P. 307 (1898) ; =. c, 8 Dec. 448. Settlement, trhen no defense. When an action is brought by stockholders in a company against such company, and its assignee for the benefit of creditors, to set aside a deed of assignment for fraud or want of power to make the deed, a settlement be- tween the company and its assignee, satisfac- tory to both,, will not be a settlement as against the complaining stockholders, unless they .consent to the same. — Standard, etc., Co. V. Jones, 45 W. L. B. 197 (1901) ; s. c, 64 Oh. St. 147. Numbering causes of action. An action by a depositor and stockholder of a bank on behalf of stockholders and creditors states equitable causes of action, and need not be separately stated and numbered. — Meisse V. Loren, 4 N. P. 100 (1897) ; s. c, 6 Dec. 258. Cross-petitioners. A creditor or stockholder may come in and be made a party defendant and join in the prayer of the petition. He should allege his interest in the matter as a stockholder or creditor, and he may adopt the allegations of the petition without restating the facts, or he may adopt a part and restate a part. — Meisse V. Loren, 5 N. P. 307 (1898) ; s. c, 8 Dec. 448. Action by general creditor. Quaere: Can a general creditor proceed in equity against the directors of a corporation before obtaining judgment and exhausting his remedies at law ? — Meisse v. Loren, 4 X. P. 100 (1897); s. c, 6 Dec. 258; s. c, 5 X. P. 307 (1898); s. c, 8 Dec. 448; North Fair- mount, etc., Co. V. Rehn, 6 N. P. 185 (1899); s. c, 8 Dec. 594. Trust relation of directors to creditors. See notes to § 3266. Action by stranger. One who has sold his stock or lost the same through legal proceedings cannot maintain an action against the directors of a corporation for damages resulting from the impairment of the value of his stock caused by their negli- gence. — Zinn V. Baxter, 17 O". C. C. 283 (1898); s. c, 9 C. D. 731. Stockholders' bill to enforce active duties of directors. A stockholder cannot invoke the aid of a court of equity to enforce an active duty within the powers of the directors, though he may restrain ultra vires or fraudulent acts. — Port Clinton R. R. Co. v. Cleveland, etc., R. R Co., 13 Oh. St. 544. 561 (1862). See Straman V. North Baltimore Water Works Co 8 C. C. 89, 101 (1893); ■.. c, 4 C. D. 339. Injunction against cutting price. Where two companies are competing in the same line of business, and one company lowers General Corporation Law. 135 Regulations, etc., § 3249. the price of its goods below what is considered the cost price thereof, the other company hav- ing acquired some of the shares of stock of sucli competing company, cannot go into a court of equity and ask for an injunction to restrain the managers and directors of such competing company from selling their goods at such a low price on the ground that the company is being operated in the interest of a third company. — Kuhn v. Woolson Spice Co., 13 0. C. C. 547 (1897) ; s. c, 7 C. D. 289. When equity will not interfere with directors. A court of equity will not, on the applica- tion of a stockholder, interfere with the board of directors in its management and control of a corporation when acting within the scope of its authority and in the absence of fraud or breach of trust. — Sims v. Street R. R. Co., 37 Oh. St. 556 (1882); Cincinnati, etc., E. R. Co. V. Duckworth, 2 0. C. C. 518 (1887) ; s. c, 1 C. D. 618; Baltimore v. Hillsborough, etc., R. R. Co., 10 W. L. B. 337 (1853). Same subject. A court of equity will not interfere with the internal management of a corporation un- less it becomes necessary to keep it within the scope of its powers, or to call to account some oSfieer or agent for breach of trust. — Cronin V. Potter's Co-op. Co., 29 W. L. B. 52, 58 (1892). Stockholders' application for receiver. A receiver will not be appointed on a mere showing that there is a difference of opinion as to the manner of conducting the affairs of the company. — Straman v. North Baltimore Water Works Co., 8 0. C. C. 89 (1893); s. c, 4 C. D. 339. Same subject. A receiver will not be appointed on a stock- holder's application, founded on the fraudu- lent acts of directors, unless an injunction will not afford full relief and protection. — Behrens v. Equality Bldg. Ass'n, 2 N. P. 259 (1895); s. c, 3 Dec. 275; Cincinnati, etc., R. R. Co. V. Duckworth, 2 0. C. C. 518 (1887); s. c, 1 C. D. 618; Robinson v. Cleveland, etc., Ry. Co., 5 N. P. 293 (1898) ; s. c, 7 Dec. 312; North Fairmount, etc., Co. v. Rjehn, 6 N. P. 185, 191 (1899) ; s. c, 8 Dec. 594. Appointment of receiver on application of directors. A court has no power on the application of the directors of a company as such, without any showing of individual rights in the prop- erty of the company to appoint a receiver without notice to stockholders. — Sehone v. Consolidated, etc.. Savings Co., 4 N. P. 216 (1897); s. c, 6 Dec. 246. When receiver will be appointed. . A court of equity has authority, at the suit of a stockholder, to enjoin unlawful conduct on the part of the directors; and if it be made clearly to appear to the court that the appointment of a receiver is really necessary to effect the purpose of a suit, as, for instance, if it clearly appear that, unless the property is placed in the hands of an officer of the court, it will be fraudulently ajad instantly disposed of by the directors, a receiver may be appointed ; but in the absence of such neces- sity, and where full relief may be afforded by injunction, the appointment of a receiver is an abuse of discretion. — Cincinnati, etc., R. R. Co. V. Duckworth, 2 0. C. C. 518 (1887); ». c, 1 C. D. 618. Suit in equity — multiplicity of suits. Chancery will not, at the suit of a stock- holder, take jurisdiction of distinct and sep- arate matters arid unite with them the settle- ment of the transactions of a corporation in one suit, because such single litigation may prevent a sacrifice of property, and be most beneficial to stockholders and creditors. — Merrill v. Lake, 16 Oh. 373 (1847). Suit — when one person owns all but one share. When a person owning all but one share in a corporation converts the property to his own use, the stockholder owning the one share may bring suit against him and not against the company. — Dye v. Hermeseh, 32 W. L. B. 120 (1894). Appointment of. nonresidents as re- ceivers. See § 3415. § 3249. COEPORATION MAY ADOPT EEGTJLATIONS.— Every corporation may adopt a code of regulations for its government, not inconsistent with the consti- tution and laws of the state. Term of office. Neither the incorporators nor the trustees first elected are authorized to adopt a by-law or regulation providing that they shall hold office during life, and in case of vacancy to fill the same by appointment. — State v. Standard Life Ass'n, 38 Oh. St. 281 (1882). Transfer of stoch. A corporation may regulate the mode and manner of transferring the legal title of stock issued by it. — See Nat. Bank v. Lake Shore, etc., Ry. Co., 21 Oh. St. 221, 232 (1871). Same subject. A by-law which provides that a stockholder desiring to sell his stock must sell to the com- 136 Private Corporations in Ohio. By-laws, Regulations, etc., §§ 3250, 3251. pany, is void as violating public policy. — Fassler v. Whiteley, 17 W. L. B. 141 (1887). Regulations must be reasonable. See Hagerman v. Ohio Bldg., etc., Ass'n, 25 Oh. St. 186, 202 (1874); Forest City, etc., Ass'n V. Gallagher, 25 Oh. St. 208. By-Ianrs violating tbe constitution are void. State ex rel. v. Cincinnati, 23 Oh. St. 445 (1872). Begnlations concerning treasurer. The power to appoint a treasurer is not de- rived by the coi-poration from its by-laws, but its charter. The power and duty of the treas- urer is not derived from the by-laws, but the charter. The corporation would have no power to confer authority or , impose duties upon the treasurer as such not consistent with the oflBce of treasurer. — See Portage County Ins. Co. V. Wetmore, 17 Oh. 330 (1848). Regulations concerning corporate ex- istence, A court of equity will not decree the disso- lution of the company because of a by-law limiting its life, nor will it by decree in per- sonam against the stockholders enforce a dis- solution. — Cronin v. Potters' Co-op. Co., 29 W. L. B. 52 (1892). By-laurs adopted unanimously. A by-law adopted unanimously has no greater force than it would have if it had been adopted by a majority and attested by the officers of the meeting instead of being subscribed by all the stockholders. — Wan- gerien v. Aspell, 47 Oh. St. 250, 260 (1890); Cronin v. Potters' Co-op. Co., 29 W, L. B. 52, 58 (1892). I Regulations prohibiting recourse to courts. A regulation or by-law which precludes a member from going into court to assert a right, but requiring him to submit to the tribunal provided for by the order, of which, he is a member, is void. — Mvers v. Lucas, 16 0. C. C. 545 (1898) ; s. c, 8 C. D. 431. By-laws governing expulsion. See Cheney v. Ketcham, 5 N. P. 139 (1897) ; s. c.., 7 Dee. 183; Blumenthal v. Cincinnati, etc.. Exchange, 7 W. L. B. 327 (1882). By-law established by custom. A by-law of a corporation may be created and made binding upon the members thereof by custom, where such custom is shown to be a uniform rule of action and acquiesced in by all the members. — Stafford v. Produce Ex- change Banking Co., 16 0. C. C. 50 (1898) j s. c, 8 C. D. 483. Estoppel to deny by-laws. A person acquiring membership in a corpo- ration by virtue of one of the provisions of its by-laws, is estopped to deny his obligation to be bound by rules and regulations which are a part of the same by-laws governing his- conduct as such member, on the ground that such by-laws had not been legally adopted. — Cheney v. Ketcham, 5 N. P. 139 (1897) ; s. c, 7 Dec. 183; State ex rel. v. Cincinnati, etc., Excliange, 4 N. P. 244 (1897) ; s. c, 6 Dec. 363. This section is directory. A corporation is not obliged to pass regula- tions, this section being directory. — See Pro- prietors, etc.. Bank v. Wade, 7 W. L. J. 95 (1849). § 3250. TRtrSTEES OR DIRECTORS MAY ADOPT BY-LAWS.— The trustees or directors of a. corporation may adopt a code of by-laws for their government, not inconsistent with the regulations of the corporation, or ther constitution and laws of the state, and may change the same at pleasure. Power of directors. Where the directors of a hospital are em- powered to make by-laws and regulations, a city council cannot be authorized by special act to approve or reject such by-laws. — State ex rel. v. Cincinnati, 23 Oh. St. 445 (1872). Unreasonable by-law. The directors cannot pass any unreasonable by-laws, as, for instance, one prohibiting the transfer of stock paid for by the secured note of the subscriber. — Andes Ins. Co v Waters 1 W. L. B. 172 (1876). Construction of by-laws and regula- tions. By-laws and regulations are subject to the same rules of construction as statutes.- Burke v. Home, etc., Ass'n, 7 W L B 114 (1882). § 3251. HOW REGULATIONS MAY BE ADOPTED.— Regulations may be adopted or changed by the assent thereto, in writing, of two-thirds of the stockholders or, if there is no capital stock, of the members, or by a majority of the stockholders or members, at a meeting held for that purpose, notice of which has been given by the acting president personally to each member or stockholder, or by publication in some General Corporation Law. 137 Reflations; Stock Subscriptions, §§ 3353, 3253. newspaper of general circulation in the county in whicli the corporation is located, or in the counties through which its improvement does or will pass. Amendment of regulations. The fact that the constitution and by-laws of a corporation are signed by the members does not make them any more binding, for whether signed or not, they are the law of the corporation, binding upon all of its members, until altered or amended, and the circum- stance that they were signed does not take away the right and power of amendment which is incidental to all corporations. — Wangerien v. Aspell, 47 Oh. St. 250, 260 (1890); Cronin v. Potters' Co-op. Co., 29 W. L. B. 52 (1892). Same snbjeot. The by-laws of a corporation may provide that they shall not be altered or amended Avithout the consent of all, or some fixed pro- portion of the members, in which case to be binding an amendment or alteration must secure the assent of the stipulated number. — See Wangerien v. Aspell, 47 Oh. St. 250, 260 (1890). Same subject. Where the by-laws contain no provision for amendment they are amendable under this section. — Wangerien v. Aspell, 47 Oh. St. 250, 260 (1890) ; cited in Morris v. Griffith, 34 W. L. B. 191 (1895). See notes to § 3249. Proof of by-laws. See Hagerman v. Ohio, etc., Ass'n, 25 Oh. St. 186 (1874). § 3353. WHAT MAY BE PROVIDED FOB BY BEGTJLATIOlirS.— A corpora- tion, by its regulations, when no other provision is specially made in this title, may provide for — 1. The time, place, and manner of calling and conducting its meetings. 3. The number of stockholders or members constituting a quorum. 3. The time of the annual election for trustees or directors, and the mode and manner of giving notice thereof. 4. The duties and compensation of officers. 5. The manner of election, or appointment, and the tenure of office, of all officers other than the trustees or directors. 6. The qualification of members, when the corporation is not for profit. Cbange of place of business. This section does not seem to authorize a change of the principal place of business of a corporation, but if it does, it can have no ap- plication to manufacturing companies for they are provided for by § 3855. — Mercantile Trust Co. V. Mtna Iron Works, 4 0. C. C. 579, 588 (1890); s. u., 2 C. D. 718. Treasurer — -when suit may be brought for default. Suit may be brought against the treasurer of a company as soon as he has made default and company need not wait till his successor is elected. — Marlborough Ass'n v. Peters, 60 N. E. 396 (Mass. 1901). Treasurer. See as to regulations of duties of treasurer. Portage Co. Ins. Co. v. Wetmore, ante, § 3249; as to regulations as to tenure of office and election, see Lutterby v. Heranoourt Brewing Co., 12 Dec. 67, 76 (1901). Executive committee — poxrers. Under an appointment, giving the executive committee of a corporation power to dis- charge the duties of the board of directors, but not to incur debts except for current ex- penses unless specially authorized, their au- thority to mortgage the realty of the company to pay current debts is denied. — Ohio Valley Nat. Bank v. WVton, etc.. Iron Co., 30 W. L. B. 382 (1893). See Morris v. Griffith, 34 W. L. B. 191 (1895). § 3353. HOW PAYMENT OF STOCK SUBSCRIPTIONS ENFORCED.— If an installment of stock remain unpaid for sixty days, after the time it is required to be paid, whether such stock is held by an assignee, transferee, or the original subscriber, the same may be collected by action, or the directors may sell the stock so unpaid at public auction, for the installment then due thereon, first giving thirty days' public notice of the time and place of sale, in some newspaper in general circulation in the county where the delinquent stockholder resided at the time of making the subscrip- tion, or of becoming such assignee or transferee, or of his actual residence at the time of the sale; or, if such stockholder resides out of the state, such publication shall be made in the county where the principal office of the company is located; if any resi- 138 Private Corporations in Ohio. stock Subscriptions — Enforcement of, etc., § 3253. due of money remain after paying the amount due on the stock, the same shall, on demand, be paid to the owner; and if the whole of the installment be not paid by the sale, the remainder shall be recoverable by an action against the subscriber, assignee, or transferee. (May 1, 1852, 50 v. 374, § 7; March 14, 1853, 51 v. 484, § 1.) IVIutuality of subscription. A subscription made on the opening of books by the corporation is enforceable not- withstanding the company has not been fully organized by election of directors. — Milford, etc., Turnpike Co. v. Brush, 10 Oh. Ill (1840). Abandonment of subscription. If a company does any act which amounts to an admission of the existence of a contract, it cannot claim that the subscription has been abandoned. — • Iron R. E. Co. v. Fink, 41 Oh. St. 321, 331 (1884). 'Waiver of company rights. If a company elects to waive its rights under this section, the subscriber may pay his subscription and obtain all the right of a stockholder. — Iron E. E. Co. v. Fink, 41 Oh. St. 321, 322 (1884). liability of person signing another's nazne. Where a person signs a subscription to stock in the name of another person without authority, his own name nowhere appearing in the paper, he cannot be held liable. — Cin- cinnati Hotel Co. V. Marsh, 9 W. L. B. 176 (18o3). Subscription payable in land. On a subscription payable in land, the re- covery is not the nominal value of the stock, but is the land and damages for the delay, or if there be no land, then proper compensation in damages for the loss of the land. — Dayton, etc., E. E. Co. V. Hatch, 1 Dis. 84 (1855). Payment by note. A stockholder who has paid his subscription by his note for the amount due, has the re- lation of borrower from the company, and has no other or greater rights than those who paid for their stock and borrowed nothing. — Union, etc., Ins. Co. v. Curtis, 35 Oh. St. 343 (1880); Union, etc., Ins. Co. v. Latham, 1 W. L. B. 127 (1876). Forfeiture of stock. A company cannot, without following the statute, forfeit the stock of a subscriber and appropriate the amount paid to the use of the company. — Iron E. E. Co. v. Fink, 41 Oh. St. 321, 329 (1884). Injunction against forfeiture. A forfeiture of stock by order of the direct- ors, although doubtless good between the stockholders and the corporation, may be fraudulent as to outside parties, and thei-e- fore may be enjoined at their instance. — Upson V. Eocky, etc., Quarry Co., 2 C. L. Eep. 356 (1879). W^hen right of action accrues. A right of action on a subscription to capital stocJi does not accrue until a call is . made for payment. — Gibson v. Columbia, etc.. Bridge Co., 18 Oh. St. 396 (1868); Iron E. R.-, Co. V. Fink, 41 Oh. St. 329 (1884); Warner v. Callender, 20 Oh. St. 190 (1870). Statute of limitations. An action to recover on a stock subscrip- tion being founded on an instrument in vrrit- ing, the limitation is fifteen years. — Gibson v. Columbia, etc.. Bridge Co., 18 Oh. St. 396 (1868); Iron E. E. Co. v. Fink, 41 Oh. St. 321, 329 (1884); Warner v. Callender, 20 Oh. St. 190 (1870). Same subject — demand notes. Where the subscribers to the stock of a company give notes payable on demand for the amount of their stock, such notes must be construed in connection with the nature of the corporate business, and in view of the object intended by the parties. Therefore it will be held that the notes were intended to be pay- able on the call of the directors, and hence the statute of limitations would be no more available as a defense in an action on the notes than if the action were on the subscrip- tions. — Kilbreath v. Gaylord, 34 Oh. St. 305 (1877). Pleading — calls. In an action to recover on a stock subscrip- tion, the facts of the call by the directors and notice of the same should be pleaded with convenient certainty of time and place. — Pa., etc.. Canal Co. v. Webb, 9 Oh. 136 (1839) ; Mansfield, etc., E. E. Co. v. Hall, 26 Oh. St. 310 (1875). Same subject — issue of stock. A readiness and willingness to issue and deliver certificates of stock should be alleged. — James v. Cincinnati, etc., E. R. Co 2 Dis 261 (1858). Same subject — conditional subscrip- tion. In an action on a railroad subscription con- tract, conditioned to be paid in installments as might from time to time be called for by the directors, provided the same should be expended upon a certain line of road to be thereafter located by the company, the pe- tition is defective unless it shows that the road has been constructed along the line desig- nated, or an offer and readiness to expend the money subs-cribed according to the con- dition; that the company acceded to the conditions of the subscription and facts show- ing that it had become absolute. — Trott v Sarchett, 10 Oh. St. 241 (1859). General Corporation Law. 139 stock Subscriptions — Enforcement of, etc., § 3353. Effect of misnomer. A subscription payable to the president and directors of a. company is enforceable in the name of the company. — Milford, etc., Turn- pike Co. v. Brush, 10 Oh. Ill (1840). Demand before suit. See Proprietors, etc., v. Wade, 7 W. L. J. 95 (1849). Action by receiver on dissolution. A receiver appointed to collect the assets of a company on dissolution, must commence actions at law to recover on stock subscrip- tions. It is not proper practice to join in one suit in equity all delinquent stockholders as defendants, those who reside out of the county where the suit is brought, as well as those who reside within such county, and is- sue summons to another county to obtain service upon such nonresidents; and where nonresidents are so brought in and served, a motion to set aside service will be sustained. — Smith V. Johnson, 57 Oh. St. 486 (1898). Defense — failure to pay ten per cent. It is no defense that the defendant stock- holder has failed to pay ten per cent, of his subscription at the time the same was made. — ■ Henry v. Vermilion, etc., R. R. Co., 17 Oh. 187 (1848). Same subject — act of forfeiture. It is no defense that the company has com- mitted an act which would entitle the state to forfeit its charter; as, for instance, that it failed to commence work within the time pre- scribed by its charter. — Milford, etc., Turn- pike Co. V. Brush, 10 Oh. Ill (1840). Same subject — abandonment of nrork. It is no defense that the company has failed to complete the work contemplated nor that it has abandoned a part of the same when no condition to that effect is expressed in the subscription. — Armstrong v. Karshner, 47 Oh. St. 276 (1890). Same subject. A company will not be held to have aban- doned the enterprise if it makes such progress as it can with its available means. — Gibson V. Columbia, etc.. Bridge Co., 18 Oh. St. 396 (1868). Same subject — alteration of subscrip- tion. In an action on a stock subscription which after its execution had been materially al- tered without the knowledge or consent of the maker, the plaintiff cannot recover the amount due on the original subscription with- out showing that the alteration was not fraudulently made. — Bery v. Marietta, etc., Ry. Co., 26 Oh. St. 673 (1875). Same subject — change of other sub- scription. It is no defense to an action on a subscrip- tion that another subscriber has, by secret agreement with the directors, been permitted to change his subscription by reducing the number of shares when that subscription was relied on by other subscribers, and the cir- cumstances attending the change were such as amounted to fraud upon other subscribers, and rendered the change a nullity. — Jewett V. Valley, etc., Ry. Co., 34 Oh. St. 601 (1878). Same subject — change of subscription. It is no defense that a secret agreement was made with the directors of a company allowing the subscriber to reduce the number of shares subscribed for,' the subscription be- ing held out as valid for the full amount to induce others to subscribe, such agreement being void. — Jewett v. Valley, etc., Ry. Co., 34 Oh. St. 601, 609 (1878). See Bates v. Lewis, 3 Oh. St. 459 (1854). Same subject — change of nature of stoch. If a company so changes the nature and character of its capital stock as to make it substantially a new stock and entirely dif- ferent from what the defendant agreed to re- ceive, in effect destroying the subject-matter of the contract, there can be no recovery. — James v. Cincinnati, etc., R. R. Co., 2 Dis. 261 (1858); Covington, etc., Bridge Co. v. Sar- gent, 1 C. S. C. 354 (1871). Same subject — amendments to charier. The acceptance of an amendment to its charter by the company, materially changing its business, is a defense. — Marietta, etc., R. R. Co. V. Elliott, 10 Oh. St. 57 (1859). Same subject — change of termini. It is a defense to an action on a subscrip- tion to the stock of a railroad company that the company has changed its termini. — Marietta, etc., R. R. Co. v. Elliott, 10 Oh. St. 57 (1859). Contra, Jewett v. Valley Ry. Co., 34 Oh. St. 601 (1878). Cancellation of subscriptions. A corporation may cancel a subscription on the ground of mistake. — See Biggio v. Sand- heger, 8 N. P. 13, 15 (1900). See § 3239, power to buy stocji. Same subject — change of route. An immaterial change of the route of a turnpike or railroad company is no defense.^ Milford, etc., Turnpike Co. v. Brush, 10 Oh. Ill (1840). See Pa., etc., Canal Co. v. Webb, 9 Oh. 136 (1839); Armstrong v. Karshner, 47 Oh. St. 276 (1890). See § 3272 et seq. Same subject — fraud. False representations as to the future inten- tion or expectation of the company will not defeat a recovery, especially where there is no 140 Private Corporations in Ohio. stock Subscriptions — Enforcement of, etc., § 3253. intent to deceive. — Armstrong v. Karshner, 47 Oh. St. 276 (1890); Freeman v. Muth; 3 W. L. B. 914 (1878). Defense — former judgment. See Hanes v. Dayton, etc., R. R. Co., 40 Oh. St. 95 (1883). Same subject — nul tiel corporation. See Racoon River Nav. Co. v. Eagle, 29 Oh. St. 238 (1876). Estoppel of stockholder to deny exist- ence of corporation. See § 3236, note. Rescission for fraud. A subscriber to stock may maintain an ac- tion to rescind his subscription when he was induced to subscribe through the fraudulent representations of the company. — Nugent v. Cincinnati, etc., R. R. Co., 2 Dis. 302 (1858). Set-off. See Dungan v. Safford, 41 Oh. St. 15 (1884). liiability of transferrers. Unless a special agreement is made, there is no liability by subscribers who have trans- ferred their subscriptions of stock and paid all calls to the time of transfer. — Gilmore v. Bank of Cincinnati, 8 Oh. 62, 71 (1837). Same subject. A transfer to an irresponsible party will not release a stockholder from payment. — See GaflF V. Flesher, 33 Oh. St. 107 (1877). Same subject. A transfer to a fictitious person is a nullity, and does not operate to release a subscriber. — Muskingum, etc., Turnpike Co. v. Ward, 13 Oh. 120 (1884). See Krohn v. Central, etc. Bridge Co., 4 N. P. 270 (1897) ; s. c, 6 Dee. 552. Subrogation of transferee. An original stockholder who has been com- pelled to pay calls on stock after he has as- signed it, is entitled to be subrogated to the rights of the corporation against the delin- quent assignee upon clear proof of the ac- ceptance of the transfer by the assignee. — Tripp V. Appleman, 35 Fed. 19 (1888). Iiiability of transferee. The transferee of stock impliedly assumes all the obligations which rested on the former holder, and is liable for calls to the same ex- tent as the former holder before the transfer was made. — Tumbull v. Pomeroy Salt Co., 24 W. L. B. 133 (1890) ; Gilmore v. Bank of Cin- cinnati, 8 Oh. 62, 71 (1837). Enforcement by creditors in equity. A creditor's bill will lie against a stock- holder of an incorporated company to compel him to pay over to a judgment creditor the amount of his subscription which had not leen paid to the company. — Gilmore v. Bank of Cincinnati, 8 Oh. 62, 71 (1837); Henry v. Ver- milion, etc., R. R. Co., 17 Oh. 187 (1848). Calls after insolvency. For the purposes of an action by creditors, subscriptions will either be regarded as due, or a court of equity will itself make the calls and enforce their payment. — Tumbull v. Pomeroy Salt Co., 24 W. L. B. 133 (1890); Henry v. Vermilion, etc., R. R. Co., 17 Oh. 187, 191 (1848). Action by creditor, joinder of parties. In an action by a creditor to reach unpaid subscriptions, stockholders may be called to answer in the county in which the judgment debtor has lawfully proceeded against them, though they may reside in a different county. — Ewin v. Cincinnati, etc., R. R. Co., 2 W. L. M. 42 (1859). Same subject. The assignee of the company and a judg- ment creditor and all the stockholders may be joined. Sayler v. Simpson, 12 Dec. 148 (1888). W^ant of remedy at law — pleading. If it be alleged that by reason of an assign- ment for the benefit of creditors or other cir- cumstances, the assets of the company have been put beyond the reach of process at law, it need not be alleged that judgment has been obtained and execution issued without avail. — Tumbull V. Pomeroy Salt Co., 24 W. L. B. 133 (1890) ; Peter v. Farrell, etc.. Machine Co., 53 Oh. St. 534, 557 (1895). Stockbolders cannot question creditor's judgment. A stockholder cannot defend on the ground that the judgment of the creditor plaintiff is irregular, the corporation having made a de- fense or been duly served, the judgment can- not be collaterally impeached. — Henry v. Ver- milion, etc., R. R. Co., 17 Oh. 187, 191 (1848). Action by creditor — pleading. In a suit by a creditor as against a general demurrer it is sufficient to state that the de- fendants held stock, the amounts severally held, that it was never fully paid, and that a specified amount is due from each. — Tumbull ,-. Pomeroy Salt Co., 24 W. L. B. 133 (1890). Jurisdiction. At the instance of a creditor, a court of equity will take cognizance of a suit to sub- ject unpaid subscriptions, notwithstanding an assignee may be in charge of the corporate assets. — See Painesville, etc.. Bank v. Kino- Varnish Co., 8 0. C. C. 563 (1894) ; s. c 4 C. D. 511. Statute of limitations as to creditors. Unless circumstances intervene to make it inequitable, a, creditor may file a bill to col- General Corporation Law. 141 stock Subscriptions — Enforcement of, etc., § 3253. lect stock subscriptions ^Yithin flftpeu years. — See Warner v. Callender, 20 Oh. St. 190 (1870). Same subject. The right of creditors may be lost by delay or laches. — Gilmore v. Bank of Cincinnati, 8 Oh. 62, 71 (1837). Where creditor's action is to set aside fraud- ulent payment of subscriptions. See Sayler V. Simpson, 12 Dec. 148 (1888). Joinder of actions to reacli unpaid sub- scriptions and stoclxholders' liability. See § 3260 et seq., and notes. Iiien of judgment creditor, filing cred- itors' bill. See Dunbar v. Harrison, 18 Oh. St. 24 (1868) ; Miers v. Zanesville, etc., Turnpike Co., 13 Oh. 197 (1844). Enforcement by receiver — ' contribu- tion. When a suit is brought by a receiver of an insolvent corporation against a subscriber, and judgment is rendered for the balance due on a stock subscription, the court appointing the receiver has power to so control his conduct as to direct him to collect only such part of the judgment as will be the debtor's fair pro- portion of the sum necessary to discharge the debts.— Clark v. Thomas, 34 Oh. St. 46 (1877). Injunction against directors. An injunction will be granted on the ap- plication of a creditor seeking to subject un- paid subscriptions, when it is necessary to prevent the directors from fraudulently dis- posing of the funds arising from the collec- tion of subscriptions. — Upson v. Koeky, etc.. Quarry Co., 2 C. L. Rep. 355 (1879). Defense — capacity of plaintifC. The fact that the plaintiff is a creditor as well as assignee of the company is no de- fense. — Tumbull V. Pomeroy Salt Co., 24 W. L. B. 133 (1890). Defense — ' agreement to pay in prop- erty. In an action by creditors, stockholders who have attempted to secure by agreement the privilege of paying their subscriptions in goods or otherwise except in money as con- templated by the charter, will not be allowed the benefit of such stipulations. Such an agreement will be considered as a fraud upon other stockholders, and the amount due must be paid in monev. — Henry v. Vermilion, etc., R. R. Co., 17 Oh. 187 (1848). See Noble v. Callender, 20 Oh. St. 199 (1870). Payment in property at inflated value. Where a corporation takes property in pay- ment of a subscription at an inflated valua- tion though in good faith, the transaction will be regarded as a, subscription for the full amount agreed upon, and .credit will be given for the actual value of the property. The balance left after applying this credit will be deemed a debt due from the subscriber to the corporation, and therefore corporate assets subject to claims of creditors. — Gates v. Tippecanoe Stone Co., 57 Oh. St. 75 (1897). See Lloyd v. Preston, 146 U. S. 630 (1892). Same subject. Where the members of an insolvent partner- ship convert their business into a corporation, turning over to the corporation all the assets of the partnership in payment of their stock subscriptions, but the corporation also as- suming all the liabilities of the partnership, nothing should be counted as a payment of the stock subscriptions, and the subscribers to such stock remain liable to the creditors of the corporation for their subscription. — Ford V. Lamson, 17 0. C. C. 539 (1899); s. c, 9 C. D. 374; Preston v. Cincinnati, etc., R. R. Co. 36 Fed. 54 (1888); s. c, 6 O. F. D. 127. See Sayler v. Simpson, 12 Dec. 148 (1888). Liability on stock sold beloiir par. If necessary to protect creditors who become such after the sale of stock by a corporation below par, the difference between the discount price and the par value of stock so sold may, it seems, be held as assets of the company for the benefit of creditors; that the court will consider all the equities of the case and may, in a proper case, leave such assets to be reached after stockholders' liabilitv has been exhausted.— See Peter v. Union Mfg. Co., 56 Oh. St. 181, 198 (1897); Sturges v. Stetson, 3 0. F. D. 497 (1858); Fosdick v. Sturges, 1 Biss. (U. S.) 248 (18581. Defense — fraud. A subscriber who delays to act when he has been defrauded until a creditor starts a suit to subject unpaid subscriptions, cannot, as against creditors, defend on that ground. — Painesville, etc.. Bank v. King Varnish Co. 8 0. C. C. 563 (1894) ; s. c, 4 C. D. 511. See Mansfield v. Woods, 29 W. L. B. Ill (1893); Ryan v. Miami, etc., Ry. Co., 10 A. L. R. 263 (1881). Defense — invalidity of issue of stock. A subscriber to stock who acts as a stock- holder cannot defend on the ground of the invalidity of the issue of the stock as against creditors. — Clark v. Thomas, 34 Oh. St. 46 (1877). Defense — stock in name of other party. It is no defense to a claim for unpaid sub- scriptions that the stock stands in the name of another party, as equitable holders are liable.— Lloyd v. Preston, 146 U. S. 630 (1892). Set-off. In an action by a creditor to reach stock subscriptions, a stockholder cannot set off a 142 Private Corporations in Ohio. stock Certificates, etc., § 3254. daim due him from the company. — Paines- ville, etc., Bank v. King Varnish Co., 8 0. C. C. 563 (1894); s. c, 4 C. D. 511; Union, etc., Ins. Co. V. Jones, 35 Oh. St. 351 (1880). Defense ^ illegality of corporation. A stockholder, when called upon by creditors to pay the balance due on stock subscriptions, cannot defend on the ground that the incorpo- ration was illegal, as, for instance, that the subscriptions were made before the articles were filed.— Eoyce v. Tyler, 2 0. C. C. 175 (1887) ; s. c, 1 C. D. 428. See Warner v. Cal- lender, 20 Oh. St. 190 (1870); Mansfield v. Mutual, etc., Ins. Co., 29 W. L. B. Ill (1893). Defense — ouster of corporation. Where a corporation de facto in a proceed- ing in quo warranto has been ousted from the franchise of being a corporation, such ouster is no defense to a suit by a creditor against stockholders. — Rowland v. Meader Furniture Co., 38 Oh. St. 269 (1882). Defense — notification to company of termination of liability. It is no defense as against creditors that the subscriber has notified the company that he would not be liable for debts on the as- sumption that the corporate existence was without authority of law. — Gaflf v. Flesher, 33 Oh. St. 107 (1877). Defense — subscription not to be paid. It is no defense, as against creditors, that a subscription was not to be paid, but was to be used solely "to prove to the public that the stock had been subscribed, and to prevent the control of the company from passing to other parties.— Bates v. Lewis, 3 Oh. St. 459 (1854). Agreement as to individual liability. A stipulation in a, mortgage that stock- holders should in no way be individually liable for the debts of the company does not release stockholders from liability to creditors on stock subscriptions. — Eaymond v. Spring Grove, etc., Ry. Co., 21 W. L. B. 103 (1889). See Preston v. Cincinnati, etc., R. R. Co., 36 Fed. 54 (1888). liiability of stockholders to de facto company. The stockholders in a de facto company stand in the same relation to creditors as stockholdere of a de jure corporation. — Row- land v. Meader Furniture Co., 38 Oh. St. 269 (1882). Cancellation of subscription. In an action by creditors it is no defense that certain of the defendants, under an ar- rangement with one of the promoters of the enterprise, drew up and signed a cancellation of their subscriptions. — Royce v. Tyler, 2 0. C. C. 175 (1887) ; s. c, 1 C. D. 428; Warner v. Callender, 20 Oh. St. 190, 198 (1870). Defense — ' change of subscription. An oral agreement made between a sub- scriber to the capital stock of a company and its president that another should take a cer- tain number of shares of the stock subscribed for, and pay to the corporation a proportion- ate share of the subscription, is not available as a defense to an action brought to enforce the payment of the subscription for the bene- fit of creditors. — Painesville, etc., Bank v. King Varnish Co., 8 0. C. C. 563 (1894) ; s. c, 4 C. D. 511. Creditor's action against state. No action will lie by a creditor against the state to compel the payment of stock subscrip- tions. — Miers v. Zanesville, etc.. Turnpike Co., 11 Oh. 273 (1842). § 3254. STOCKHOLDEKS ENTITLED TO CERTIFICATES OF STOCK; REC- OBD. — Stockholders sliall be entitled to receive (certificates) of their paid-up stock in the company; and the president and secretary of the company shall on demand, exe- cute and deliver to a stockholder a certificate showing the true amount of the stock held by him in the company. And it shall be the duty of the directors of such cor- poration, when organized, to keep a record of all stock subscribed and transferred, and of the secretary or recording officer of such corporation to register therein all sub- scriptions and transfers of stock. For that purpose a book shall be kept and when- ever any certificate or certificates of stock are assigned and delivered by a stockholder, the assignee thereof shall be entitled on demand to have the same duly transferred upon said book by such secretary or recording officer, whose duty it shall be at the same time to enroll therein also the name of said assignee as a stockholder, and the books and records of such corporation shall at all reasonable times be open to the inspection of every stockholder. (April 14, 1884, 81 v. 196; R. S. 1880.) Duty to issue certificate of stock. A corporation is bound under this section, through its proper officers, to issue to each subscriber, who has fully paid for his stock, a certificate truly representing his interest in the corporation. — State ex rel. v. Carpenter, 51 Oh. .St. 83 (1894); Freon 42 Oh. St. 30, 36 (1894). V. Carriage Co., Duty of company as to stock. A company is charged with a duty of ob- serving care in the issue of stock, and of General Corporation Law. 143 stock Certifica-tes, etc., § 3354. supervising their agents charged with the per- formance of the duty. It owes this duty to all persons dealing in its sto^ck, and if by reason of its negligence in this regard spurious stock is issued, it is liable in damages to any one purchasing it for value -without knowledge of its fraudulent character; and a failure of the purchaser to inquire at the office of the company is not such contributory negligence as will deprive him of the right to recover, although such inquiry would have disclosed the fraudulent character of the stock. — Cin- cinnati etc., Ry. Co. v. Citizens' Nat. Bank, 56 Oh. St. 351 (1897). See Robison v. Cleve- land, etc., Ry. Co., 13 Dec. 1. Duty Trhere stock is held by trustees. See Fuller v. Cleveland, etc., Ry. Co., 8 N. P. 605 (1901); Robison v. aeveland, etc., Ry. Co., 13 Dec. 1. Fovrer of president and secretary to issue stock. The acts of the president and secretary of a corporation in issuing stock are the acts of the corporation, for in such acts they repre- sent it as a corporation, not as ordinary agents. — Cincinnati, etc., Ry. Co. v. Citizens' Nat. Bank, 56 Oh. St. 351 (1897). See Farm- ers' Bank v. Diebold Safe, etc., Co., 47 W. L. B. 585 (1902). Form of stock records. This section does not provide in what form the records shall be kept, nor for a book of any special kind. — Freon v. Carriage Co., 42 Oh. St. 30 (1884); Harpold v. Stobart, 46 Oh. St. 397, 400 (1889). Issue of stock -nrithout surrender of outstanding certificate. Where a certificate of stock is issued in favor of an officer, and is by him pledged, any future certificates issued to evidence the same shares and pledged to the company itself are void for want of a valid transfer, the original certificate not being surrendered as required by law. Such facts are notice to the company of the rights of others. — Lee v. Citizens' Bank, 2 C. S. C. 298 (1872). Assignment in blank. StOidc may be assigned and an attorney ap- pointed in blank. — Lee v. Citizens' Bank, 2 C. S. C. 298 (1872). A certificate of stock is not classed as a negotiable instrument. Farmers' Bank v. Diebold Safe, etc., Co., 47 W. L. B. 585 (1902). See Railway Co. v. Bank, 56 Oh. St. 351, 383 (1897). Legal title to stock. The legal title to stock is in the person ap- pearing on the company books as owner, and he is entitled to vote thereon and receive divi- dends.— See Norton v. Norton, 43 Oh. St. 522 (1885); National Bank v. Lake Shore, etc., Ry. Co., 21 Oh. St. 221 (1871). Transfer of equitable title. Although a transfer on the books of the company may be necessary to pass a legal title to stock, yet an equitable title may be other- wise conveyed, and the company is bound to respect such equity from the time it receives notice of it. — Conant v. Reed, 1 Oh. St. 298 (1853); Haldeman v. Hillsborough, etc., R. R. Co., 2 Handy, 101 (1855). See Straman v. North Baltimore, etc., Co., 8 0. C. C. 89, 99 (1893); s. c, 4 C. D. 339; Armstrong v. Heraneourt Brewing Co., 26 W. L. B. 39, 40 (1891); Krebs v. Forbriger, 21 W. L. B. 313 (1889). Same subject. A certificate of stock,, being of the same nature as a chose in action, may be the sub- ject of an equitable assignment by mere deliv- ery without an indorsement or written trans- fer; and a proper transfer so as to permit the transferee to convert his equitable into a legal title may be compelled in equity as against the transferrer or his personal representative. — Lawler v. Kell, 4 N. P. 218 (1897); s. c, 6 Dec. 311. Reservation of dividends. In the transfer of stock in a company no valid reservation can be made of any portion of a future dividend. — Marble v. Van Wert Nat. Bank, 3 0. C. C. 464 (1888) ; s. c, 2 C. D. 265. Assignment \rith notice of prior as- signment. Whoever takes an assignment of stock, with notice of a prior assignment which conveyed the legal title, acquires no interest therein. — Creed v. Lancaster Bank, 1 Oh. St. 1 (1852). Transfer to trustee. A shareholder has the right, for a legitimate and proper purpose, to transfer his stock to another, as trustee for him, or for another person, and may stipulate that the trust shall continue for a specified period, or indefinitely, and that during its continuance the trustee shall have the legal title thereto and the right to vote upon it. — State ex rel. v. Ohio, etc., Ry. Co., 6 0. C. C. 415 (1892); s. c, 3 C. D. 618. Transfer to fictitious person. A transfer to a fictitious person is void, and leaves the parties as they were before the transfer. — ■ Krohn v. Central Bridge Co., 4 N. P. 270 (1897); 5 Dec. 113; Muskingum Turn- pike Co. V. Ward, 13 Oh. 120 (1844); Gaff v. Flesher, 33 Oh. St. 107 (1877). PoTver of executor to sell stock. An executor of a will has no right or power to execute a power of attorney authorizing a person to transfer, sell and indorse certificates of stock.— Allen v. Globe Ins. Co., 19 W. L. B. 198, 200 (1888); affirmed 32 W. L. B. 374. 144 Private Corporations in Ohio. stock Certificates, etc., § 3254. Person may be stockholder ivithout rertificates. Allien a subscription is made and paid by a stockholder lie becomes a stockholder. It is not necessary to issue a eertiftcate of stock. — See Henderson v. Hogan, 1 W. L. B. 227 (1870) ; Cincinnati, etc., Ry. Co. v. Third Nat. Bank, 1 0. C. C. 199; s. c, 1 C. D. 109, 207 (1885). Uvidence as to stockholders. The books of a coi-poration are admissible as evidence to show that one is not a stock- holder therein who claims to be such. — Cin- cinnati, etc., Ry. Co. v. Eawson, 16 W. L. B. 423 (1886). See Tripp v. Appleman, 35 Fed. 19 (1888); s. c, 6 O. F. D. 71. Xis xiendens as to stock. The doctrine of lis pendens does not apply to certificates of shares of stock transferable by blank indorsement and power of attorney. — Krebs v. Forbriger, 21 W. L. B. 313 (1889). FresTimption of validity of issue. There is a presumption that the issue of stock is regular and valid until the contrary is shown. — Cincinnati, etc., Ey. Co. v. Raw- son, 16 W. L. B. 423 (1886); Citizens' Nat. Bank v. Cincinnati, etc., Ry. Co., 11 W. L. B. 86 (1884); Perin v. Cincinnati, etc., Ry. Co., 18 W. L. B. 382 (1887). Proof as to invalidity of stock. Where a corporation disputes the validity of a, certificate of stock issued by the secretary, and bearing the genuine signature of the president and secretary thereof, and the cor- porate seal, the burden of proving such cer- tificate to be invalid rests upon the corpora- tion. — • Cincinnati, etc., Ry. Co. v. Rawson, 16 W. L. B. 423 (1886). Suit to annul questionable stock. Spurious certificates of stock issued under apparent authority, undistinguishable from genuine certificates, are clouds upon the title of the genuine stockholders which a court of equity will remove. The directors of the cor- poration may institute a suit for that purpose as the representatives of the genuine stock- holders and in their behalf, and if they refuse to bring such suit a stockholder may bring it, making the corporation a co-defendant. — Robison v. Cleveland, etc., Ry. Co., 5 N. P. 293 (1898); s. ^., 7 Dec. 312. Same subject. Where an officer of a corporation has wrong- fully issued stock in his own name and pledged it to secure loans, a,nd all the holders claim such certificates to be genuine, and commence actions against the company on its refusal to transfer said shares, the company may unite all holders in an action to cancel the certifi- cates so as to remove the cloud upon the title of the holders of the genuine certificates and prevent a multiplicity of suits. — Cincinnati, etc., Ry. Co. v. Citizens' Nat. Bank, 22 W. L. B. 248; s. c, 56 Oh. St. 351. ' Tr.ausfer of stock oivned by the state. See Harper v. Arapt, 32 Oh. St. 291 (1877). Stockholder as -witness under old lair.. See Little Miami R. R. Co. v. Martin, 10 W. ' L. J. 54 (1852); Methodist Church v. Wood, I .5 Oh. 283 (1831). Record of subscriptions and transfers of stock. It is not necessary that the secretary or directors of a corporation themselves keep the record of subscriptions and transfers of stock, required by § 3254, Rev. Stat. By the appointment of a transfer agent and registrar, the duties imposed by that section are de- volved upon them. Robison v. Cleveland City Ry. Co., 13 Dee. 1. Records as evidence. The record kept under this section may be used as evidence. — See Toledo, etc., Ry. Co. V. Toledo, etc., Ry. Co.. 6 O. C. C. 362, 392 (1892) ; s. c, 3 C. D. 493. Transfers as against a. lien of company on stock. See Conant v. Reed, 1 Oh. St. 298 (1853); Downer v. Zanesville Bank, Wright, 477 (1833); Bellevue Bank v. Higbee, 4 0. C. C. 222 (1889); s. c, 28 W. L. B. 336; s. c, 2 C. D. 512; Lee v. Citizens' Bank, 2 C. S. C. 298 (1872) ; Franklin Bank v. Commercial Bank, 4 A. L. R. 705 (1876) ; Towle v. Felch, 40 W. L. B. 186 (1896) ; Stafford v. Bank, 61 Oh. St. 160 (1890'). Genuineness of transfer and identity — proof. A corporation of which a transfer of stock is demanded may compel the genuineness of the transfer and the identity of the parties to be satisfactorily established; but where the evidence establishes such identity and genuine- ness the company cannot arbitrarily refuse to make the transfer. — Krohn v. Central, etc.. Bridge Co., 4 N. P. 270 (1897); =. i-., 6 Dec. 552. Duty of purchaser to inquire. In the absence of any knowledge of fraud in its issue, there is no rule of diligence that re- quires one in purchasing stock to inquire beyond the genuineness of the certificate on its face. If the signatures of the president and secretary are genuine, and the seal has been affixed, and the paper on its face is a, certifi- cate of stock, it is unnecessary to inquire fur- ther even if it is issued to the secretary. — Cincinnati, etc., Rv. Co. v. Citizens' Nat. Bank, 56 Oh. St. 351, 379 (1897). See also the following cases under the same facts: Cincinnati, etc., Ry. Co. v. Third Naf Bank, 1 0. C. C. 199 (1885); s. c, 1 C. D. 109; Citizens' Nat. Brnk "v. Cincinnati, etc., Ry. Co., II W. L. B. 86 (1884); First Nat. Bank v. Cincinnati, etc., Ey. Co., 16 W. L. B. General Corporation Law. 145 stock Certificates, etc., § 3354. 399 (1886); Cincinnati, etc., Ry. Co. v. Raw- son, 16 W. L. B. 423 (1886) ; ti. o. affirmed, 25 W. L. B. 87 ; Perin v. Cincinnati, etc., Ky. Co., 18 W. L. B. 382 (1887) ; Cincinnati, etc., Ry. Co. V. Citizens' Nat. Bank, 22 W. L. B. 248 (1889); s. c, 56 Oil. St. 351; Cincinnati, etc., Ry. Co. V. Citizens' Nat. Bank, 24 W. L. B. 198; s. c, 29 W. L. B. 15. Uxception. Where tlxe secretary of a company sold his stock to the president and transferred it by indorsement in blank and afterward crim- inally obtained possession of the certificate and pledged it, the pledgee obtained no title as against the real owner. Farmers' Bank v. Diebold Safe, etc., Co., 47 W. L. B. 585 (1902). Deceased stockholder, existence of irill, dnty of of&cers. When certificates of stock of a deceased stockholder are presented to the officers of a. corporation for transfer, and they are in- formed of the existence of a will, they are presumed to have knowledge of its contents, so far as they affect the title to the stock or the right to transfer the same. — Allen v. Globe Ins. Co., 19 W. L. B. 198, 200 (1888). Bights of assignee of delinquent sub- scriber. If an installment of stock in a, company re- main unpaid by the original subscriber, an assignee of the stock, who is willing to comply ■with the corporate regulations respecting the issue of stock certificates and the transfer of stock, may, upon making a proper tender of the unpaid installment, with the interest thereon, maintain an action in equity against the corporation to compel it to issue to him a stock certificate. — Irqn R. R. Co. v. Fink, 41 Oh. St. 321 (1884). Bemedy for refusal to transfer. When the proper officers of a private cor- poration, organized for profit, refuse, on de- mand, to issue a certificate of stock to a person entitled thereto, his appropriate remedy is by action against the corporation for damages, or to enforce the issue and delivery of such certificate in equity, either of which he may pursue at his election. Mandamus is not the proper remedy. — State ex rel. v. Carpenter, 51 Oh. St. 83 (1894); Freon v. Carriage Co 42 Oh. St. 30 (1884); Richardson v. Grand, etc.. Mining Co., 1 W. L. B. 140 (187 tj). See Allen v. Globe Ins. Co., 19 W. L. B. 198 (1888); Krohn v. Central, etc.. Bridge Co., 4 N. P. 270 (1897) ; s. c, 6 Dec. 552. Joinder of actions. , Courts of equity will not refuse to enter- tain jurisdiction when, in connection with the relief of decreeing a transfer and issue of stock, a further and essential relief is asked, which courts of equity by their procedure are best adapted to furnish. — See Arbuckle v. Woolson Spice Co., 21 0. C, C. 358 (1901); Iron R. R. Co. v. Fink, 41 Oh. St. 321 (1884). LAW GOV. PRIV. COR. — 10. Waiver of rights. The right to treat the refusal to transfer stock as a conversion may be waived. — Andes Ins. Co. V. Waters, 1 W. L. B. 172 (1876). Measure of damages. In an action for damages for the refusal to transfer shares, the damages are not limited to the market value of the stock. The meas- ure of damages is its actual value to be deter- mined under all the circumstances, such as the company's dividend-making capacity, the good-will, etc. — Freon v. Carriage Co., 42 Oh. St. 30 (1884); State ex rel. v. Carpenter, 51 Oh. St. 83, 88 (1894). Action by equitable o^rner. Where the equitable owner of shares in a company, the certificate being outstanding in the name and possession of another party claiming title, demands of the company the transfer and delivery of a certificate of such shares, and meets with refusal, he has no right of action for the value of the stock. — National Bank v. Lake Shore, etc., Ry. Co., 21 Oh. St. 221 (1871). Bight of pledgee to transfer. A pledgee of stock in a, corporation, when authorized by a blank power of attorney in- dorsed on the certificate and signed by the pledgor, may cause such shares to be trans- ferred on the books of the company into his own name, and upon the refusal of the proper officers of such company to make the transfer when duly requested, the pledgee may main- tain an action against the company for dam- ages as for a conversion of the shares to its own use, but when the action is in equity and involves an accounting, no damages for con- version can be recovered. — Cincinnati, etc., Ry. Co. V. Rawson, 16 W. L. B. 423 (1886); Dayton Nat. Bank v. Mercliants' Nat. Bank, 37 Oh. St. 208 (1881). Statute of limitations. The statute of limitations does not begin to run as against a transferee of stock seeking to compel a transfer until he has made a de- mand on the company for a transfer, and has been refused. — Iron R. R. Co. v. Fink, 41 Oh. St. 321 (1884). Same subject. An action by the transferee of a stock sub- scription to compel the issuance of a certifi- cate of stock on the tender of the balance due, is not barred because more than fifteen years previous to his demand for stock his trans- ferrer declined to pay the balance due on the subscription. — Iron R. R. Co. v. Fink, 41 Oh. St. 321 (1884). Same subject. Where stock has been transferred by in- dorsement in blank, and thereafter the com- pany, at the instance of the original holder, and on the supposition that the stock has 146 Private Corporations in Ohio. stock Certificates — Lost, Destroyed, etc., §§ 3254-1-3254-2. been lost, issues new stock to a second trans- feree of such owner, the statute of limitations does not commence to run against the first transferee until he has demanded a transfer and has been refused, or until he received notice of the transfer and issuance of stock to other parties. — Cleveland, etc., E,. R. Co. v. Robbins, 35. Oh. St. 483 (1880). By-lair prohibiting transfer. A by-law proliibiting the transfer on the books of the company of stock which has been paid by the notes and mortgages of the hold- ers is unreasonable, and will not justify a refusal to transfer. — Andes Ins. Co. v. Waters, 1 W. L. B. 172 (1876). Transfer to a corporation. Inasmuch as one corporation cannot hold stock in another, it is not entitled to a trans- fer of stock purchased by it, and there is no liability on a refusal to transfer. — Franklin Bank v. Commercial Bank, 36 Oh. St. 350 (1881). Parties. The transferrer of stock is not a necessary party to a suit to compel the transfer of stock unless such transferrer claims some interest in the stock. — Krohn v. Central etc.. Bridge Co., 4 N. P. 270 (1897); s. c, 6 Dec. 552. Sale of stocks held by cities and coun- ties. See § 2675-6 ct seq. Right to inspect books. The right to inspect the books of a corpora- tion does not depend on the motive of the stockholder, and he is entitled to inspection at any reasonable time in person or by agent, and he may take copies of entries in books and records. — Cincinnati Volksblatt Co. v. Hofl- meister, 62 Oh. St. 189 (1900); Blymer v. Blymer, 5 N. P. 71 (1898). Remedy and pleading. Injunction is the proper remedy, not man- damus, and a petition is good when it aliegea that the plaintiff is a stockholder, a request for inspection, refusal to fix reasonable time or to allow inspection. — Cincinnati Volks- blatt Co. v. Hoffmeister, 62 Oh. St. 189 (1900). Inspection of books under § 5290. See Arbuekle v. Woolson Spice Co., 21 0. C. C. 348 (1901). § 3254-1. RE-ISSUING OF CERTIFICATES OP STOCK LOST OR DESTROYED. — In case any certificate of stock in any corporation be lost or destroyed, the owner thereof may file his petition in the probate court of the county where the principal business office of such corporation is located in this state, setting forth a pertinent description of such certificate, and a full statement of the facts relating' to such destruction or loss, including the fact that he is the owner of such certificate, and was at the time of its loss or destruction, and had not assigned, transferred or disposed of the same, and that the same was not pledged to any one, or if so, stating to whom, and the facts relating thereto, and such petitioner shall make the corporation and any pledgee defendants to such proceeding, and shall serve a certified copy of such petition on some chief officer of such corporation, and on any such pledgee, on which copies the probate judge shall state over his signature when said petition will be heard, and said copies shall be so served not less than twenty days before the hearing, and such petitioner shall also publish, for three consecutive weeks, in some newspaper published and of general circulation in the county where the proceeding is pending, and in the county where the petitioner resides the notice containing the substance and prayer of such petition immediately before the day of hearing, and stating when and where the same will be heard. (April 23, 1891, 88 v. 336.) § 3254-2. HOW RE-ISSUE EFFECTED. — If the probate court, upon the hearing, find that the foregoing provisions have been complied with, and that such described certificate has been lost or destroyed, and that such petitioner at that time was and is the owner thereof, an order shall be made that such corporation issue and deliver a. new certificate of stock to such petitioner for the original amount and kind of stock and in case, at the time of such loss or destruction of such original certificate, the cer- tificate was pledged to any one, and the pledgee yet has a claim against the same then such order shall direct that such new certificate shall be delivered to such pledgee on such terms as the court may direct, and the corporation shall comply with said orders, and shall in no wise be prejudiced by complying with said orders or by paying dividends on such new certificate, so long as it is not made known to it that such original certificate is in existence and owned by some person other than said General Corporation Law. 147 stock Certificates, etc., § 3255. petitioner; and all rights and liabilities attaching to said original certificate shall attach to said re-issued certificate, while in force, but upon the production of the original certificate to such corporation by the owner or pledgee, such re-issued certifi- cate shall be cancelled and surrendered, and be void, and executors and administra- tors, on behalf of estates of deceased owners of any such lost or destroyed certificates of stock, shall be entitled to proceed under this act and have all the rights and bene- fits thereof. (April 23, 1891, 88 v. 336.) Rights of original holders. The issuing of certificates under a by-law providing for the issue of certificates in place of such as may have been lost or destroyed, does not aflfeet the liability of the company to the holder of the original certificate. The ob- ject of the by-law is to enable persons whose certificates appear to have been lost or de- stroyed to obtain others on indemnifying the company against loss in ease other parties should assert rights against the company under the original certificates, but it does not affect the rights of such original holders. — Cleveland, etc., R. E. Co. v. Eobbins, 35 Oh. St. 483 (1880). Same subject. A company issuing new certificates for shares, of which the certificates are outstand- ing, is liable to the holders of such original certificates either to replace their stock or ac- count for its value. — Cleveland, etc., E,. E. Co. V. Eobbins, 35 Oh. St. 483 (1880). Same subject — dividends. Where stock is transferred, but not entered on the books of the company, and thereafter the transferrer, representing the certificates to be lost, obtains new certificates, the com- pany is not liable to the transferee for the dividends declared and paid, for it was enti- tled to pay the dividends to the persons ap- pearing as stockholders on its books. — Cleveland, etc., E. E. Co. v. Eobbins, 35 Oh. St. 483 (1880). Remedy. Upon proof of the loss of his certificates, and upon giving bond to indemnify the com- pany against loss by the original stock turn- ing up in the hands of an innocent holder, the owner is entitled to peremptory writ of man- damus to compel the issuance of a new cer- tificate. — Hof V. Western German Bank, 6 W. L. B. 665, 697 (1881). When company loses stoch. When stock belonging to the corporation or in its possession is lost, no bond is required prior to reissue. — See Farmers' Bank v. Die- bold Safe, etc., Co., 47 W. L. B. 585 (1902). § 3255. PAID-TJP STOCK IS PERSONAL PROPEETY.— Shares of stock in any company shall be personal property, and when fully paid up shall be subject to levy and sale upon execution against the owner. (May 1, 1852, 50 v. 274, § 5.) 'What certificate represents. A certificate of stock in a private corpora- tion evidences the equitable interest the owner of such stock has in the corporate property, and fixes the proportion of any and all divi- dends to which he is entitled, and which are made while he is the owner of such certificate, the legal title to it being in the corporation until divided among shareholders. — Marble V. Van Wert Nat. Bank, 3 0. C. C. 464 (1888); s. c, 2 C. D. 265; Lee v. Sturges, 46 Oh. St. 153 (1889). See State ex re!, v. Jones, 51 Oh. St. 492, 510 (1894); State v. Franklin Bank, 10 Oh. 91, 98 (1840). Fonrer of stockholder to dispose of stock. In the absence of any law on the subject, and treated simply as property, no reason is apparent for limiting the power of disposition over corporate stock within narrower bounds than those pertaining to other species of prop- erty. — See Peter v. Union Mfg. Co., 56 Oh. St. 181, 207 (1897). Shares are personal property. Shares in a railroad company are personal property, and the widow of an owner is not entitled to dower therein.- 1 Oh. St. 350 (1853). - Johns V. Johns, Presumption of gift of stock. Where a person purchases stock and places the title in the name of a member of his own family, the presumption is that the stock was intended as a gift or advancement, but this presumption may be rebutted. — Creed v. Lan- caster Bank, 1 Oh. St. 1 (1852). General assignment for creditors in- cludes stocks. An assignment professing to convey all the real and personal estate, effects and credits of the assignor includes stocks. — Haldeman v. Hillsborough, etc., E. E. Co., 2 Handy, 101 (1855). Borrcnred stock. When by the terms of a contract borrowed stock is to be returned on demand, it is meant that an equal number of shares of stock of the same company shall be returned, and no cause of action accrues until demand is made. See generally as to rights of parties. — Fosdick v. Greene, 27 Oh. St. 485 (1875). 148 Private Corporations in Ohio. stock Certificates, etc., § 3255. Consideration of contract for sale of stock. An agreement to transfer the stock of a cor- poration, whether solvent or insolvent, im- ports that the stock is of some value, and for the purpose of making a binding contract it is not important how valuable. — Van Arsdale V. Brown, 18 0. C. C. 52 (1896); o. u., 9 C. D. 488. Bequest of stock. An unconditional beouest of dividends is a bequest of the stock itself. — Muskingum Turnpike Co. v. Ward, 13 Oh. 120 (1844;. Foxrer to exchange. Power to sell stock does not include power to exchange the same. — Cleveland v. Bank of Ohio, 16 Oh. St. 236 (1865). Illegal sale of stock. Where the purpose of the purchaser of the stock is illegal the sale is illegal and void. — Newark v. Elliott, 5 Oh. St. 113 (1855). Evidence as to sale of stock. A witness may testify that he sold shares of stock and delivered the certificates thereof to a person named without producing the certifi- cates for inspection. — Cincinnati, etc., Ey. Co. V. Eawson, 16 W. L. B. 423 (1886). Action on contract for sale of stock. An action on a contract for the sale of stock is not necessary for the plaintiff to prove an actual transfer of the stock or the execution of a- power of attorney; but that it is suffi- cient to prove an offer to transfer with the ability to perform. — Hager v. Reed, 11 Oh. St. 626 (1860). Contract of sale — rights u^hen vendee refuses performance. In a contract for the sale of stock on re- fusal of the vendee to accept the stock, the vendor may Fell the stock for the best obtain- able price, and if the proceeds of such sale are less than the amount named in such contract, together with the expense of sale, he may re- cover of the vendee such difference. — Ashley V. Walker, 15 0. C. C. 660 (1898); s. u., 8 C. D. 285. Company lien on stock for debt of holder. Where there is a custom between brokers and bankers that, on application of a broker, a bank will certify as to whether it has any lien on certain of its stock by reason of the holder thereof being indebted to it, a bank, by being asked by a broker to give such a, certifi- cate, is thereby put on inquiiy, and charged with notice, as much as though told that a loan for a certain amount had been or was to be made to the holder of the stock by a certain person. — Covington Bank v. Commercial Bank, 65 Fed. 547 (1895). Same subject. A corporation may, by express stipulation in a certificate of stock by it issued, reserve a valid lien upon the stock to secure the debts of the holder to it; and such lien may be as- serted against a transferee who receives the stock before, but does not present it for trans- fer on the stock-book of the company until after the original holder becomes indebted to the bank. — Stafford v. Produce Exchange Banking Co., 61 Oh. St. 160, 169 (1899). Interest held by pledgee. As between the pledgor and the pledgee of stock, the pledgee holds neither the equitable nor the legal title, but only a special property. — Krebs v. Forbriger, 21 W. L. B. 313 (1889). See Henkle v. Salem Mfg. Co., 39 Oh St. 547 (1883). Rights and duty of pledgee. Where stocks are transferred as collateral security, with a power to the creditor to sell the same at private sale or auction, he may, when the debt becomes due, dispose of the same, after demand of payment and notice of the time and place of sale to the debtor; but the sale must be conducted in perfect good faith; the bailee is the trustee of the bailor, and his conduct will be carefully examined by the court. If the sale has not been made in the usual mode, but at short notice, or with- out notice, it will be declared invalid.— Bates V. Wiles, 1 Handy, 532 (1855). See Lee v. Citi- zens, etc.. Bank, 2 C. S. C. 298 (1872). Illegal sale — measure of damages. The measure of damages, where stocks are sold without demand and notice, will be their highest market value any time between the day of sale and the commencement of suit — Bates V. Wiles, 1 Handy, 532 (185o;. Demand by pledgee before sale. Notice of intent to sell pledged stock is equivalent to a demand of payment Har- rison V. Friend, 1 N. P. 39 (1893); s c 1 Dee. 238. ' Sale by pledgee as against receiver. A person holding stock as a pledge for the payment of a claim may sell the stock as against a receiver of the assets of the pledgor even though the amount due is in dispute - Harrison v. Friend, 1 N. P. 39 (1893) ■ s o 1 Dec. 258. i , ■ ■, Estoppel of pledgor as against pur- chaser. Where a pledgor delivers to his pledgee, as the pledge, a certificate for shares of sto-k in a corporation, and indorses the same with words of a.ssignment in blank, and with an irrevocable poAver of attorney to transfer the same on the books of the corporation, also in General Corporation Law. 149 stock Certificates, etc., § 3255. blank, the pledgor is estopped to asaert any title to said stock against an innocent pur- chaser for value from the pledgee, although the pledgee in making such sale has violated the contract of pledge as to terms of sale.— Kreba v. Forbriger, 21 W. L. B. 313 (1889). Fledge or sale of stolen stock. Where a stock certificate is stolen and pledged, the pledgee acquires no title, though it was pledged by the apparent ovpner. — See Farmers' Bank v. Diebold Safe, etc., Co., 47 W. L. B. 585 (1902). Fledge of fraudulently acciuired stock. Where stock fraudulently, obtained is pledged to secure a pre-existing indebtedness, it may be recovered by the rightful owner. — City of Cleveland v. Bank, 16 Oh. St. 236, 269 (1865). Fledge of stock — construction of con- temporaneous contract for condi- tional sale of stock to pledgee. See Rumsey v. Lentz, 59 Oh. St. 189 (1898). Foreclosure, trial. In a. suit to foreclose a lien upon stock in an incorporated company created by pledge and for an order of sale, neither party is en- titled to a trial by jury. — Brigel v. Creed, 46 W. L. B. 31; 65 Oh. St. (1901); s. t., 8 N. P. 456. Agreement to pledge — rights of parties. A surety on a note became such on the agreement of the principal to transfer to him as security a certificate of stock he then held, within a short time. Held, that tlje surety thereby acquired an equity in the stock which he could enforce against all persons having notice.— Dueber, etc., Co. v. Daugherty, 62 Oh. St. 589 (1900). Sale on execution. Prior to the passage of this act stock could not be levied upon and aold on execution with- out the consent of the owner, and if, notwith- standing, a aale was made on execution, it would only effect an equitable assignment of the creditor's rights. — Lee v. Citizena' Nat. Bank, 2 C. S. C. 298 (1872). Stock may be reached by creditor's bill. See § 5464. Creditor's bill — motive. That a creditor who seeks to reach the stock of his debtor in a corporation is induced to do so by other stockholders, with whom he has made plans for future management of the cor- poration, is no reason for denying him the remedy of a creditor's bill. — McMullen v. Ritchie, 64 Fed. 253 (1894); s. c, 8 0. F. D. 314. Situs of stock. For the purpose of seizure and subjection to legal process, the situs of stock is the domicile of the corporation. — National Bank v. Lake Shore, etc., Ry. Co., 21 Oh. St. 221 (1871); Ashley v. Quintard, 90 Fed. 84 (1898) ; s. c, 10 0. F. D. 365. Attachment of stock. The interest of a stockholder in the property of a private corporation represented by certifi- cates of stock, registered in his name, or of which he is the equitable owner, may be reached by garnishment process served upon the corporation. — Norton v. Norton, 43 Oh. St. 509 (1885) ; National Bank v. Lake Shore, etc., Ry. Co., 21 Oh. St. 221 (1871). See Prout V. Post, 12 Dec. 141 (1900). Attachment of stock by corporation. A corporation may by garnishment process served upon itself subject the stock of one of its stockholders to the payment of debts to it. — Norton v. Norton, 43 Oh. St. 509 (1885). Attachment of pledged stock. Where stock that has been pledged is at- tached, only the surplus after the payment of the debt to the pledgee is reached by the at- tachment, and if the pledgee does not exercise his right to sell, the court may order a sale and distribution of the proceeds. — Norton v. Norton, 43 Oh. St. 509 (1885). Attachment of dividends. When stock in a corporation is attached, dividends made by the corporation and le- maining in its hands after process in attach- ment has been served, follow the stock, and are subject to the same order of distribution. --Norton v. Norton, 43 Oh. St. 509 (1885). Interest reached by attachment. Where the debtor has assigned and trans- fered stock appearing in his name on the cor- poiate books, an attachment only reaches his interest, though the transferee has made no attempt to obtain legal title. — Haldeman v. Hillsborough, etc., R. R. Co., 2 Handy, 101 (1855). See Prout v. Post, 12 Dec. 141 (1900). Attachment of stock in foreign corpo- ration. Shares of stock in a foreign' corporation cannot be attached by levying the writ upon the certificate in the handa of a resident of Ohio, although owned by a nonresident. — • Simmons Hardware Co. v. Stokes,, 16 0. C. C. 145 (1898); s. c, 8 C. D. 431. Attachment of stock in foreign corpo- ration. Though the Ohio statutes authorize the at- tachment of stocks and interests in stocks, and pennit the garnishment of a foreign cor- poration doing busineaa in the state in actions against nonresident defendants, and also re. 150 Private Corporations in Ohio. Power to borrow raoney, etc., § 3256. quire a corporation garnishee to make dis- closure of any stock held therein for the benefit of tne defendant, such statutes pre- suppose that the debts or property to be sub- jected, and to which the disclosures relate, are Avithin the dominion of the state, and do not bring within such dominion shares of stock in a foreign corporation whether the corporation as garnishee makes disclosure of their owner- ship by defendant or refuses to make such disclosure. — Ashley v. Quintard, 90 Fed. 84 (1898); s. c, 10 0. F. D. 365. Is stock not fully paid up subject to execution? As the right to levy on and sell stock is purely statutory, it would seem that stock not fully paid up could only be reached by a cred- itor's bill. Right of stockholder to prosecute error to judgment against corporation. See Dunbar v. American Casket Co., 19 O. C. C. 585 (1900). Appeal by stockholder. See Henry v. Jeanes, 47 Oh. St. 116 (1890) ; s. c, 48 Oh. St. 443. § 3256. POWER TO BOREOW MONEY.— A corporation may borrow money, not exceeding tbe amount of its capital stock, and issue its notes or coupon or registered bonds therefor, bearing any rate of interest authorized by law, and may secure the payment of the same by a mortgage of its real or personal property, or both;" and a private corporation may purchase, or otherwise acquire, and hold shares of stock in other kindred but not competing private corporations, whether domestic or foreign, but this shall not authorize the formation of any trust or combination for the pur- pose of restricting trade or competition. (May 6, 1902, 95 v. 290; April 15, 1902, 95 V. 151; E. S. 1880.) Note. — The act of May 6th has no repeal- ing clause. The act of April 15th repeals original section 3256. The most important variation between the two is the addition of the matter after the * in the act of May 6th. General power to borro\ir. When not prohibited, a corporation may borrow money to carry on thq objects of its creation, and it may evidence and secure the loan by appropriate instruments. — Larwell v. Hanover, etc., Society, 40 Oh. St. 274, 282 (1883); Hays v. Gallon Gas Co., 29 Oh. St. 330 (1876); Raymond v. Spring Grove, etc.. Ry. Co., 21 W. L. B. 103 (1889) ; Burt v. Rat- tle, 31 Oh. St. 116 (1876) ; Bosche v. Toledo Display Horse Co., 14 0. C. C. 289 (1897); s. c, 7 C. D. 374. See notes to § 3239. Defense of ultra vires. Where a corporation in the exercise of ap- parent power to borrow secures from a person a loan of money, on the faith that the power exists, it will not be permitted to deny its power to escape payment. — Hays v. Galion Gas Co., 29 Oh. St. 330 (1876). Mortgage of corporate property by stockholders. Where through a mistake a mortgage on the property of a corporation is executed by its stockholders instead of by the corporation, it will operate as an equitable prior mortgage as against a subsequent mortgage expressly made subject to it, and as against subsequent judgment creditors. — Bundy v. Iron Co., 38 Oh. St. 300 (1882). Execution in foreign state. An Ohio corporation can execute in another state a, valid mortgage on its property in Ohio, notwithstanding it is doing business in such other state. — Lattimer v. Mosaic Glass Co., 13 0. C. C. 163 (1896) ; s. c, 7 C. D. 430. Loan in excess of capital stock. A mortgage given to secure a debt in excess of the capital stock of a company is not void as to subsequent creditors with notice, if not objected to by the corporation. — Central Trust Co. V. Columbus, etc., Ry. Co., 87 Fed. 815 (1898); s. c., 10 0. F. D. 328. See Ray- mond V. Spring Grove, etc., Ry. Co., 21 W L. B. 103 (1889). Power of selling committee. A committee duly empowered by a corpora- tion to sell an issue of bonds have power to employ a broker to sell such bonds. — East Cleveland Ry. Co. v. Everett, 15 0. C. C. 181 (1897) ; s. c, 8 C. D. 210. See East Cleveland, etc., Ry. Co. v. Everett, 19 O. C. C. 205 / (1900). Compensation of broker. In the absence of special agreement a broker may recover the reasonable value of his services in selling bonds. — East Cleveland Ry. Co. V. Everett, 15 0. C. C. 181 (1897); s. c, 8 C. D. 210. Sale below par. Where the board of directors have not au- thorized the selling committee to sell for less than par, such committee has no authority to employ a broker to sell for less than par.— East Cleveland Ry. Co. v. Everett, 15 C C 181 (1897); s. c, 8 C. D. 210. Duty of creditor to inquire. A person dealing with a corporation should know that it has the legal power to make the General Corporation Law. 151 Mortgages, Bonds, etc., §§ 3256a, 3257. loan and to execute the mortgage, but he is not bound to inquire whether the board of directors has liad a meeting and passed a foimal resolution authorizing the loan and mortgage, or that the directors are legally elected, or whether the directors took an ac- tive interest in the business of the coi'ooration or not. — Bosohe v. Toledo Display Horse Co., 14 0. C. C. 289 (1897) ; s. e., 7 C. D. 374. Foiver of officers. A chattel mortgage executed by the presi- dent and secretary of a corporation, who are also members of the board of directors, to se- cure a debt of the corporation, although exe- cuted without the knowledge of the other directors at the time, is valid in the hands of the mortgagee, who is not aware of the fact. — ■ Bosche V. Toledo Display Horse Co., 14 0. C. C. 289 (1897) ; s. c, 7 C. D. 374. See, as to power of officers uo execute in- struments, notes to § 3247. Fo-nrer of president to sell bonds. See East Cleveland, etc., Ey. Co. v. Everett, 19 0. C. C. 205 (1900). Assent of stockholders. If the assent of two-thirds of the stockhold- ers is necessary to the validity of a mortgage by the law of the state creating a corporation, which assent is to be filed with the clerk of the county the property is in, such law applies to a mortgage of land in this state, and the assent is to be filed with the county recorder. A guaranty of payment of a mortgage by two- thirds of the stockholders is a substantial assent.— West v. Klotz, 37 Oh. St. 420, 428 (1881). Furcbase by director on foreclosure. Where the property of a corporation was sold under foreclosure decree to a director of the corporation for much less than its real value, the sale will be set aside on the motion of a bondholder offering adequate security that he would bid a much larger sum on the property. — Secor v. Maumee Rolling Mill Co., 1 N, P. 100 (1894) ; s. c, 1 Dec. 80. Duty of trustee in mortgage. A trustee holding bonds for a company must carry out his trust or surrender the bonds. He cannot use the bonds to pay debts of the company to him. — Greenville Gas Co. V. Reis, 54 Oh. St. 549 (1896). Right of trustee to personal judgment on guaranty. A trustee of a mortgage has no legal capac- ity as such after foreclosure and sale of the mortgaged property to maintain an action on behalf of the bondholders for a personal judg- ment against one who had promised the cor- poration to assume the bonds. — Conner v. Bramble, 6 N. P. 195 (1899) ; s. u., 9 Dec. 516. Acceptance of mortgage. A mortgage by a corporation need not be expressly accepted, but acceptance may De implied from circumstances, and a part of the mortgagees may accept, although others refuse to do so.— Bundy v. Iron Co., 38 Oh. St. 300 (1882). Mortgage by college. See President, etc., of Medical College v. Zeigler, 17 Oh. St. 52 (1866). Mortgages by railroad companies. See § 3287 et seq. Mortgages by Ohio river bridge com- panies. See § 3548a. Deficiency judgment, xrhen corporation liable. Where a loan upon a real estate mortgage is obtained by an individual, for the benefit of a corporation, and on foreclosure the proceeds of the sale are not sufficient to pay the loan, the corporation does not become liable. — See De Camp V. Levoy, 19 O. C. C. 335 (1900). § 3256a. HOW CERTAIN" CORPORATE MORTGAGES RECORDED.— Such mortgage of real and personal property when heretofore or hereafter made by a com- pany organized to operate a line or lines of telegraph, telephone, district telegraph messenger service, or for the purpose of supplying gas or electricity [or hot water] for lighting, fuel or other purposes, or hot water, or steam, for heating or fuel pur- poses, shall be held to be duly recorded if the same is recorded in the office of the recorder of deeds in tbe county and each of the counties in which the real or personal property intended to be mortgaged is situate or employed; and the mortgage so recorded shall be held to be a good and sufficient lien from the date of the filing of the same for record in each county where it is recorded as well upon the personal as the real property of the company. (May 6, 1902, 95 v. 366.) § 3257. MAY ISSUE CONVERTIBLE BONDS, VOTE OE DIRECTORS.— Upon the written assent of not less than three-fourths of the stockholders, representing at least three-fourths of the capital stock of the company actually paid, any company 152 Private Corporations in Ohio. stockholders' liability, etc., § 3258. may borrow money not exceeding one-half of the capital stock actually paid in, on such security, by way of mortgage, or otherwise, as may be agreed upon, and at a. rate of interest not exceeding that allowed by law to be contracted for, and may, in the instruments evidencing the contract, stipulate that the holders of such instruments shall have the right to convert the amount borrowed, or any part thereof, into either common or preferred stock, such stock having been provided for by the proper action and certificate of the company; any action of the directors for borrowing money, issuing bonds, or involving an expenditure of money shall be by yea and nay vote, and record thereof shall be made showing the vote of each director voting upon the question. (March 25, 1870, 67 v. 26, §§ 1, 2, 3, 4.) Iiiability of stockholders. By this section it was not intended to au- thorize the creation of additional stockhold- ers, and to exempt them from individual liability to creditors, but to enable such cor- porations, upon the terms provided in the act, to borrow money and guarantee its repay- ment, with the option on the part of the lendei-s to become stockholders. — Burt v. Rattle, 31 Oh. St. 116 (1876). AVhen stock regarded as debt. Where a company, professing to act under the provisions of this section, issued certifi- cates of preferred stock, so called, certifying that the corporation guaranteed to holders the payment of four per cent, semi-annual dividends, and the final payment of the entire amount at a specified time, with the right to convert the preferred stock into common stock, and the company at the same time exe- cuted and delivered to a trustee its bond and mortgage to secure the holders of such certifi- cates. Held, that the holders of the certifi- cates did not thereby become stockholders of the corporations, but its creditors, and that, as such, they had a lien upon the mortgaged property superior to "that of the general cred- itors of the corporation or of its assignees. — Burt V. Rattle, 31 Oh. St. 110 (1870). See as to increase of stock, §§ 3262, 3263. Contracts giving veto poTver to pre- ferred stock. A contract of consolidation which prohibits the issuance of bonds witliout the consent of a majority in interest of the preferred stock- holders seems to violate this section. — Burke V. Cleveland, etc., Ry. Co., 22 W. L. B. 11, 16 (1S89). Rigkt to conversion f elloivs bonds. A stipulation for conversion is inseparably connected with the bond on which it is in- dorsed, and is only available to the holder of the bond so long as he continues to be such holder. The holder of a bond cannot assign to another the right of action for a breach of the stipulation for conversion, and yet retain the bond for the benefit of himself and future assigns. — Denny v. Cleveland, etc., R. R. Co., 28 Oh. St. 108 (1875). Action for refusal to convert bonds — pleading. In an action for a refusal to convert bonds, the petition is fatally defective in not aver- ring that the plaintiffs were, and at the com- mencement of the action continued to be, the holders of the bonds, for the nonconversion of which they bring suit. — Denny v. Cleve- land, etc., R. R. Co., 28 Oh. St. 108 (1875). i Poiver of directors. See East Cleveland, etc., Ry. Co. 19 0. C. C. 205 (1900). Everett, § 3258. STOCKHOLDEKS LIABLE IN" AN AMOUNT EQUAL TO THEIR STOCK. — The stockholders of a corporation who are the holders of its shares at a. time when its debts and liabilities are enforcible against them, shall be deemed and held liable, equally and ratably, and not one for another, in addition of their stock, in an amount equal to the stock by them so held, to the creditors of the corporation, to secure the pa3rm.ent of such debts and liabilities; and no stockholder who shall transfer his stock in good faith, and such transfer is made on the books of the company, or on the back of the certificate of stock properly witnessed or tendered for transfer on the books of the company prior to the time when such debts and liabilities are so enforcible, shall be held to pay any portion thereof. (April 29, 1902, 95 v. 312; May 1, 1852, 50 v. 296, §§ 78-79; March 11, 1853, 51 v. 386; April 17, 1854, 52 v. 44; April 12, 1865, 62 v. 134; March 11, 1874, 69 v. 25; R. S. 1880.) § 3258. Old Lrnr. — The stockholders of a corporation iihich «mi/ be hereafter formed, and such stockholders as are noio liable wider former stattites, shall be deemed and held liable, in addition to their stock, in an amount equal to the stock by them subscribed, or other- irise acquired, to the creditors of the corpora- tion, to secure the payment of the debts and liabilities of the corporation. [E. S. 1880.] General Corporation Law. 153 stockholders' liability, etc., § 3258. Iiiability in absence of statute. The stockholders in a corporation are not individually liable for its debts unless they are expressly made so by some charter pro- vision.— Car'r V. Iglehart, 3 Oh. St. 458 (1854). Nature of liability. The liability on stock held in severalty is not joint but several, and hence the judgment is not joint, although for the equal benefit of all the creditors. — Mason v. Alexander, 44 Oh. St. 318, 333 (1886); Umsted v. Buskirk, 17 Oh. St. 113 (1866). Nature of liability. The liability of stockholders to pay the debts of the corporation is not a primary ob- ligation, but only a secondary and collateral obligation, enforceable only in case of the in- solvency of the corporation. — Swan v. Mans- field, etc., R. E. Co., 3 N. P. 225 (1896) ; s. c, 5 Dec. 297; Bronson v. Schneider, 49 Oh. St. 438 (1892) ; Younglove v. Lime Co., 49 Oh. St. 663, 666 (1892); Peter v. Union Mfg. Co., 56 Oh. St. 181, 197 (1897); Falkenback v. Pat- terson, 43 Oh. St. 359, 370 (1888). Stock in de facto corporations. Stockholders in de facto and de jure corpo- rations stand on the same footing as respects their liability to creditors, and such liability is not affected by a judgment of ouster against the corporation. — Rowland v. Meader Furni- ture Co., 38 Oh. St. 269 (1882) ; Gaff v. Flesher, 33 Oh. St. 107 (1877); Royee v. Tyler, 2 0. C. C. 175, 182 (1887); s. c, 1 C. D. 428. Corporations as stockholders. Where stock in an insolvent corporation is held by another corporation, it is liable the same as an individual holder. — Smith v. Newark, etc., R. R. Co., 8 0. C. C. 583 (1894) ; s. c, 4 C. D. 356. Liiability of pledgee. One who holds shares of stock merely as collateral security for a debt without a trans- fer thereof to him on the books of the com- pany, having merely an assignment and a power of attorney to transfer, is not liable as legal or equitable owner of the stock. — Henkle v. Salem Mfg. Co., 39 Oh. St. 547 (1883). See Norton v. Norton, 43 Oh. St. 509 523 (1885); Biggio v. Sandheger, 8 N. P. 13 (1900). Stock subscribed by infants. It seems that an infant purchasing stock and holding the same after his majority and after th« insolvency of the company is liable. — Hardman v. Cincinnati, etc., Ry. Co., 15 W. L. B. 164 ( Liability on preferred stock. Holders of preferred stock are subject to statutory liability equally with the common stockholders.— R. R. Co. v. Smith, 48 Oh. St. 219 (1891). Stock bought belo-nr par. Where a corporation in good faith sells a part of its stock below par, and afterward becomes insolvent, the difference between the discount price and the par value of the stock thus purchased should not be regarded as as- sets of the corporation, as between those stockholders who bought at a discount and those who did not. No stockholder should be permitted to assert the invalidity of such stock without consenting that its purchasers be placed in statu quo ante. The whole stock should be assessed for stockholders' liability, and then if any creditor is not paid in full, he may collect so much on the amount unpaid on the stock sold at a discount as may be necessary to satisfy claims against the cor- poration in full ; but only if he became a cred- itor after the issue of such stock and in igno- rance of the sale at a discount. — Peter v. Union Mfg. Co., 56 Oh. St. 181 (1897). Who are creditors? Whoever has a claim against a corporation which falls within the terms " dues, debts, or liabilities,'' is a creditor of such corporation within the' meaning of the section of the con- stitution.— Herrick V. Wardwell, 58 Oh. St 294, 309 (1898). A person holding a claim against the com- pany for a tort committed by it is a creditor. — Rider v. Fritehey, 49 Oh. St. 285 (1892)- s. c, 3 0. C. C. 89 (1888) ; =. c, 2 C. D. 251. A stockholder who gives his notes to cred- itors of the corporation at its request and judgment is had on them, is a creditor, though he has not paid. — Burwell v. Hazard Hame Co., 2 Cleve. L. R. 9 (1878). Control of corporation over liability. Where a. stockholder has a claim against the corporation it cannot counterclaim against him on his liabiUty as a stockholder. — Jung- kuntz v. West Liberty Association, 6 W. L. B. 428 (1881). A corporation has no power to change an obligation on which stockholders' liability is waived, into one caiTying it. — Hardman v. Cincinnati Ry. Co., 18 W. L. B. 264 (1887). The security provided by this section is for the exclusive benefit of the creditors over which the corporate authorities have no con- trol; and an attempted assignment of such lia- bility by the corporation, though for the equal benefit of all the creditors, is inoperative. So an assignee or receiver of the corporation cannot bring a suit to enforce. — Wright v. McCormack, 17 Oh. St. 86 (1866); Umsted v. 154 Private Corporations in Ohio. stockholders' liability, etc., § 3258. Buskirk, 17 Oh. St. 113 (1866); White v. In- gei-sol, 2 Clevc. L. Rep. .302 (1878). See also North Faivmount B. &. S. Co. v. Ashbrook, 12 Dec. 10 (1901). Contract to release stockholder's lia- bility is void. A stockholder is liable for losses, notwith- standing an agreement to the contrary en- tered into at the time he subscribed for his stock. — North I'airmount, etc., Co. v. Ash- brook, 12 Dec. 10 (1901). Guaranty by stockholders. Where stockholders being indirectly liable for corporation debts, in consideration of in- dorsements of company paper, agree to pro- tect such indorsers against loss, they assume the relation of principal and surety rather than guarantors. — See fully as to rights and liabilities. Wise v. Miller, 54 Oh. St. 388 (1887). Settlement agreements betireen stock- holders. An agreement entered into by solvent share- holders of an embarrassed corporation, that they will severally contribute to raise a fund to pay the corporate liabilities, creates a valid obligation; and if the share to be con- tributed by each is not expressly fixed by the terms of the agreement, each should con- tribute in the proportion that the'number of shares of stock owned by him bears to the shares held by all the contributors; and if one of the stockholders agrees to surrender and cancel, and the other stockholders perform their part of the agreement, they and the corporation may set up the settlement con- tract in bar of a recovery in an action brought upon such note. — Sterling Wrench Co. v. Amstutz, 50 Oh. St. 484 (1893). ■Waiver of liability. The liability of stockholders can be waived by any creditor. — Preston v. Cincinnati, etc., E. E. Co., 36 Fed. 54 (1888); s. c, 6 0. F. D. 127; Hardman v. Cincinnati, etc., Ry. Co., 18 W. L. B. 264 (1887). See Raymond v. Spring Grove, etc., Ry. Co., 21 W. L. B. 103 (1889) ; Hull V. Standard, etc., Co., 20 0. C. C. 533 (1900). When liability attaches. At the time the debt against the corpora- tion is created or the liability incurred, the liability attaches to all the then stockholders and to all who may thereafter become stock- holders.— Harpold v. Stobart, 46 Oh. St. 397, 404 (1889); Brown v. Hitchcock, 36 Oh. St. 667, 678 (1881); Cleveland Gas Co. v. Collins, 19 0. C. C. 247 (1899). When the liability of a corporation is on a contract, the debt will be held to have ac- crued and the liability to have attached at the time of the execution of the contract. — Herrick v. Wardwell, 58 Oh. St. 294 (1898). Voluntary payment by stockholder. Where a stockholder of an insolvent corpo- ration voluntarily pays the debts of the cor- poration, he cannot recover from another stockholder who was at the time of such payment solvent and within the jurisdiction, his pro rata share of such indebtedness. — Burr V. Bates, 3 0. C. C. 1 (1887); s. c, 1 C. D. 1. Settlement notes given by stockholders. A note given by a stockholder to a creditor of an insolvent corporation with the proviso that it shall be a credit on the maker's lia- bility as a stockholder would be without meaning, as the proviso could not affect other creditors unless it is construed as a guarantee by the creditor to hold the stockholder harm- less against any increase of liability on ac- count of payment on the note ; and a judg- ment on the note must so specify. — Beebe V. Thomas, 2 W. L. B. 107 (1877). Effect of settlement bet^veen parties upon dissenting creditor. Where the stockholders of a company, in full settlement of their liability, paid all the creditors but one a certain per cent, of their claims, that one creditor cannot thereafter recover from the stockholders more than he would have recovered had the suit been prose- cuted to a final decree and the liability paid in full and divided pro rata among the cred- itors. — Ryan v. Miami, etc., R. R. Co., 16 C. C. 530 (1898) ; s. c, 9 C. D. 401. ■When right of action accrues. Ordinarily, and when a corporation has property and continues to do business, a right of action accrues when a judgment has been recovered against it and execution has been returned unsatisfied, in part or whole. — Younglove v. Lime Co., 49 Oh. St. 663 (1892) Bronson v. Schneider, 49 Oh. St. 438 (1892) Barrick v. GiflFord, 47 Oh. St. 180 (1890) Cowles V. Bartell, 3 W. L. M. 41 (1860). A right of action does not accrue when the corporation becomes insolvent in the sense simply that its property is insufficient for the payment of its liabilities. — Younglove v. Lime Co., 49 Oh. St. 663 (1892); Bronson V. Schneider, 49 Oh. St. 438 (1892) ; BaiTick v. Gifford, 47 Oh. St. 180 (1890). See Baldwin V. Atwater Coal Co., 8 W. L. B. 296 (1882); Hardman v. Cincinnati, etc., Ev. Co. 15 W L. B. 164 (1886). The right of action does not accrue on the appointment of a receiver merely to carry on the business or to subserve some purpose of the stockholders or directors, and not on ac- count of the insolvency of the company.— Younglove v. Lime Co., 49 Oh. St. 663 (1892). A creditor's right of action is complete when the corporation has done, or suflfered to be done, any act which would render judgment and process against it impossible or of no avail and nugatory, as where its propertv has been placed in the hands of an assignee General Corporation Law. 155 stockholders' liability, etc., § 3258. in insolvency or bankruptcy, or by the ap- pointment of a receiver or dissolution of the corporation or by some other legal proceed- ing, its property has been put in process of application to the payment of its debts, so that creditors may proceed against the stock- holders without first putting their claims in judgment against the corporation. — Young love V. Lime Co., 49 Oh. St. 663 (1892); Bronson v. Schneider, 49 Oh. St. 438 (1892) ; Barrick v. Giflford, 47 Oh. St. 180 (1890) ; King Y. Armstrong, 50 Oh. St. 222, 238 (1893); Peter v. Farrell Foundry, etc., Co., 53 Oh. St. 534, 557 (1895); Morgan v. Lewis, 46 Oh. St. 1 (1888) ; Hardman v. Cincinnati, etc., Ry. Co., 15 W. L. B. 164 (1886) ; Turnbull v. Pome- roy Salt Co., 24 W. L. B. 133 (1890). See De Camp v. Levoy, 19 0. C. C. 335 (1900). When the assets of the company "Eire beyond the reaci of process, as in the hands of an assignee or receiver for insolvency, creditors need not await final settlement or distribu- tion by such officers, but may at once com- mence proceedings. — See Younglove v. Lime Co., 49 Oh. St. 663 (1892); Turnbull v. Pomeroy Salt Co., 24 W. L. B. 133 (1890). Quere. Will a right of action accrue when, although denying in good faith its insolvency, a corpo- ration has commenced to wind up its affairs under § 5687. — See Fairmount, etc., Co. v. Eehn, 6 N. P. 185, 189 (1899) ; s. c, 8 Dee. 594. When action accrues against executor. See Bevitt v. Diehl, 12 Dee. 383 (1901) ; s. c, 12 Dec. 315. Transfer of stock. A stockholder cannot, by a sale and trans- fer of his stock, defeat the ultimate right of existing creditors to profieed against him on account of such shares, if a resori^to his lia- bility becomes necessary for their protection. — Peter v. Union Mfg. Co., 56 Oh. St. 181, 204 (1897); Rider v. Fritchey, 49 Oh. St. 285, 295 (1892) ; Brown v. Hitchcock, 36 Oh. St. 667, 680 (1881). A stockholder is not liable for debts created after a bona fide transfer of stock. — Peter v. Union Mfg. Co., 56 Oh. St. 181 (1897); Taylor V. West Liberty Wheel Co., 9 Am. L. Reo. 28 (1880). A stockholder's liability as to future cred- itors is cut off by a transfer of his stock on the books of the company, although the stock was sold or given away to an insolvent person for the purpose of escaping liability, if the sale or gift is made in good faith and is ab- solute. If the transaction was not bona fide, but was a mere ruse or device by which he sought to hold himself out as divested of his owner- ship, while by some understanding or agree- ment, expressed or implied, the transferee held it for him, he would remain an equitable stockholder and so liable. — Peter v. Union Mfg. Co., 56 Oh. St. 181 (1897). A transfer of stock to a fictitious person, being void, does not aff'ect the liability of tlie owner. — Muskingum Valley Turnpike Co. V. Ward, 13 Oh. 120 (1844). A transfer of stock in which the notes of the company are used in the purchase is void, and the transferrers remain liable as stock- holders.— Willis V. Reed, 5 W. L. B. 79 (1880). Liability of assignees. Assignees of shares of stock in a corporation are liable to the .creditors by reason of their purchase of the stock, and they also stand in tlie relation of indemnitors to the assignors as to the liability of the latter on debts con- tracted while thev held the stock. — Wheeler V. Faurot, 37 Oh. St. 26, 28 (1881); Brown v. Hitchcock, 36 Oh. St. 667, 680 (1881). Liability of assignors. A stockholder who has in good faith sold and assigned his stock to one who becomes a nonresident or insolvent is liable to creditors of the coi-poration for such portion only of the debts existing while he held the stock and remaining due (not in excess of the amount of stock assigned), as will be equal to the proportion which the capital stock assigned by him bears to the entire capital stock held by solvent stockholders liable for the same debts who are within the jurisdiction, to be ascertained at the time judgment is rendered. — Harpold v. Stobart, 46 Oh. St. 397 (1889); Brown v. Hitchcock, 36 Oh. St. 667, 681 (1881); Mason v. Alexander, 44 Oh. St. 318 (1886); Taylor v. West Liberty Wheel Co., 9 Am. L. Rec. 28 (1880). Order of liability. The stockholders at the time the suit is commenced are first liable, and after them, those who have assigned stock to insolvent or nonresident parties. — Brown v. Hitchcock, 36 Oh. St. 667 (1881). Application of corporate assets. The proceeds of the sale of assets of the corporation should be applied to reduce the aggregate of all debts, so that all stockhold- ers, past and present, may be benefited. — Taylor v. West Liberty Wheel Co., 9 Am. L. Rec. 28 (1880). Liability of transferrers; right of cred- itors. Where the holder of stock has transferred the same in good faith to one who is insolv- ent at the time stockholder's liability is sub- jected to payment of corporate debts, the transferrer becomes liable on debts contracted while he held stock, in case a sufficient fund is not raised by assessment on solvent stock- holders to satisfy creditors. In such case the fund created by assessments on solvent per- sons who are stockholders at the time of the decree, should be applied pro rata upon all the debts of the corporation, and funds aris- ing from assessments on persons who had been 156 Private Corporations in Ohio. stockholders' liability, etc., § 3258. stockholders, but had assigned their stock, should be applied to the residue, if any. owing to those who were creditors at the time such stock AA'as assigned. — Wick Nat. Bank v. Union Bank, 62 Oh. St. 446 (1900). Equities between corporation and cred- itors, y Where some of the defendant stockholders claim to be creditors, and ask an adjustment of their rights, and a reply of the corporation alleging that they had agreed to manage the company for a time and pay specified debts, and asking an accounting and damages for breach of the agreement, is not to be dis- missed, as not proper to be settled in the case. — Morris v. Collamer, etc., R. R. Co., 2 C. L. R. 346 (1878). It seems that when the assets of an insolv- ent corporation are not in a condition to be converted into money, creditors may assert their claims against the individual liability of stockholders without awaiting the distribution of corporate assets which are not subject to execution, but which, when reduced to money, should be applied to reimburse payments on individual liability. — See Morris v. Collamer, etc., R. R. Co., 2 C. L. R. 347 (1878) ; Young- love V. Lime Co., 49 Oh. St. 663 (1892) ; Turn- bull v. Pomeroy Salt Co., 24 W. L. B. 133 (1890); Cowles v. Bartell, 3 "W. L. M. 41 (1860). Contribution between stockholders. Each stockholder sought to be made liable has, in order that his liability may be con- fined to his just proportion, the right to insist that all stockholders within the jurisdic- tion and solvent wlio stand in the same rela- tion to the debts with himself, shall be brought in and be held to their proportional liability in common with him; and such rights are enforceable in the original action.—. Harpold v. Stobart, 46 Oh. St. 397, 404 (1889) ; Wheeler v. Faurot, 37 Oh. St. 26, 29 (1881); Umsted v. Buskirk, 17 Oh. St. 113 (1866). When a suit is brought a stockholder has the right to bring in other stockholders ajid compel them to corttribute their pro rata share of the indebtedness; but the right to contribution does not exist in the ordinary legal sense, or so as to make the stockholders bear the relation of sureties to each other. — Burr V. Bates, 3 0. C. C. 1, 6 (1887) ; s. c, 2 C. D. 1. Entry of transfer on stock books. A written contract of , sale without entry on the stock books will not relieve a stock- holder from liability for debts contracted by the corporation before transfer. — Biles v. Looker Co., 17 0. C. C. 538 (1889); s. c, 9 C. D. 685. Where, bj' reason of a defective entry on the company's stock books, the vendor of stock remains liable to creditors, he is entitled to a judgment against his vendee equal in amount to the judgment against him. — Har- pold V. Stobart,' 40 Oh. St. 397, 401 (1889). The creditors have the right to resort to and rely upon the proper book of the company as showing who the stockholders are and the amount of stock held by each, and they are presiimed to have relied on such records. While it is not necessary that a book of any special kind be adopted for that purpose, yet when one is selected and used, that becomes the stock book; and transfers to be valid must be made upon that. When the stock book shows that a party is the owner of shares of stock, he is estopped as between himself and creditors to contradict the record provided (the entry was placed in the stock book originally by his consent; and his consent will be presumed where the entry was correct when made. — Harpold v. Sto- bart, 46 Oh. St. 401 (1889). See Wehrman v. Eeakirt, 1 C. S. C. R. 230 (1871). Where the vendor of stock causes an entry of transfer to be made by the secretary of the company in a book then present at the office of the company other than the stock book, with the expectation that it will be entered in another book then at the residence of the secretary, but no transfer is made in the stock book and at the time the debts accrued and at the time of trial such vendor appears by the stock book to be the owner of the shares, such entry of transfer is not sufficient to relieve the vendor of liability, notwith- standing the sale was made in good faith and for value, and that the vendor believed he had done all that was necessary to effect a trans- fer of the stock, and the further fact that the company thereafter treated the vendor as the owner of the stock. — Harpold v. Stobart, 46 Oh. St. 397 (1889). The stockholders of a corporation whose names appear on the stock book, or in the absence of such book, on the stubs of stock certificates as the holders of stock, are sub- ject to a stockholder's liability for debts in- curred by the corporation while sucli names are allowed to so remain. To avoid such lia- bility it must appear on the stock book in the one case or on the stub of the stock certifi cate in the other, that the stock has been transferred to some one else. It is not suffi- cient if the stubs of new stock show it to have been issued from the original stock. The stubs of such original stock must shov the transfer. — Herrick v. Wardwell, 58 Oh. St. 294 (1898). Defenses of stockkolders. A stockholder who transfers his stock after a corporate debt has been created is not re- lieved from his statutory liability for such debt by an agreement for an extension of tlie time for its payment, although sucli agree- ment be made by the corporation "and creditor after such transfer and without the knowledge or consent of the transferrer. — Boice V. Hodge, 51 Oh. St. 236 (1894); Painesville Xat. Bank v. King Varnish Co 8 0. C. C. 563 (1894); s. c., 4 C. d'.' 511. See Wheeler v. Faurot, 37 Oh. St. 28- General Corporation Law. 157 stockholders' liability, etc., § 3258. Harpold v. Stobart, 46 Oh. St. 397; Taylor v. West Liberty Wheel Co., 9 Amer. L. Rec. 28 (1880); Hauenschild v. Standard Coffin Co., 8 N. P. 124 (1900). It is no defense that a stockholder has sold and disposed of his stock with an indemnity against loss. His remedy is to bring in the indemnitor on a cross-petition and have the whole matter settled. — Hardman v. Cincin- nati, etc., Ry. Co., 15 W. L. B. 164 (1886). When the creditor plaintiffs have not re- duced their claims to judgment, the stock- holders can only interpose such defenses to them as are available to the corporation. — Hardman v. Cincinnati, etc., Ry. Co., 18 W. L. B. 264 (1887) ; Stewart v. Triumph Ins. Co., 1 W. L. B. 103 (1876); R. R. Co. v. Smith, 48 Oh. St. 219 (1891). Stockholders can plead any defense to judg- ment claims against the corporation that are personal and peculiar to stockholders, and which the company could not plead. — See Gaw V. Glassboro, etc., Co., 20 0. C. C. 416 (1900) ; Hardman v. Cincinnati, etc., Ry. Co., 18 W. L. B. 264 (1887). Where the claims of the creditors consist of notes given by the corporation for amounts agreed upon on settlement of accounts and transactions between it and its creditors, and the stockholders by their answer seek to open up, surcharge and falsify the settlement for fraud of which they had knowledge more than four years before the commencement of the action, the statute of limitations is a good plea in bar to the relief sought by the stock- holders.— R. R. Co. V. Smith, 48 Oh. St. 219 (1891). Where the defendant stockholder alleges that the notes of the corporation on which his liability is based have been paid by a new note of the corporation after he transferred his stock, it is a good defense on demurrer. — Wheeler v. Faurot, 37 Oh. St. 26 (1881). Defendants, who were stockholders at the time of the commencement of a creditors' suit to enforce their liability, cannot defend on the ground that they became stockholders after the liability of the corporation to the creditors was incurred. — See Bonewitz v. Van Wert Co. Bank, 41 Oh. St. 78 (1884); R. R. Co. V. Smith, 48 Oh. St. 219 (1891) ; Barrick v. Gifford, 47 Oh. St. 180 (1890). It is no defense that the subscriptions to stock were made prior to the filing of the articles of the corporation when the records of the corporation show they were made sub- sequent to the filing of the articles. — Royce V. Tyler, 2 0. C. C. 175 (1887); s. c, 1 C. D. 428. It is no fietense that an arrangement was made with one of the directors of the corpo- ration for a cancellation of certain si'bscrip- tions, and that such cancellation was pre- pared and signed. — Royce v. Tyler, 2 0. C. C. 175 (1887) ; s. c, 1 C. D. 428. It is no defense that a certificate of stock has never been issued. — Royce v. Tyler, 2 O. C. C. 175 (1887); s. c, 1 C. D. 428. It is no defense that a creditor has settled his claims against the company, or that he has filed his claim and claimed a lien in another case. Payment of such claims should be al- leged. — Hardman v. Cincinnati, etc., Ry. Co., 15 W. L. B. 164 (1886). Where a subscription to stock was made three years before the corporation became in- solvent, it is too late to introduce the defense to an action by a creditor of the corporation that the subscription was procured by fraud. — Painesville Nat. Bank v. King Varnish Co., 8 0. C. C. 563; s. c, 4 C. D. 511; Ryan v. Miami Valley Ry. Co., 10 A. L. R. 263 (1881). Interest. Interest may be included in the judgment rendered from the date of the beginning of the suit, although the amount of the recovery may exceed the stockholders' liability, when it is apparent at the beginning of the suit that the stockholders must be assessed the full amount of their liability. — Mason v. Alexander, 44 Oh. St. 318 (1886); Taylor v. West Liberty Wheel Co., 9 Amer. L. Rec. 28 (1880); Wehrman v. Reakirt, 1 C. S. C. R. 230 (1871), If before the commencement of a suit it is not known that the stockholders must be as- sessed in the maximum amount, and that fact is not ascertained until the report of the referee comes in, interest can be charged against the stockholders only from the date of the confirmation of the referee's report. — Berger v. Commercial Bank, 5 N. P. 170 (1897); s. c, 5 Dec. 277. Unless the petition contains a prayer for- interest under § 5060, interest can only be charged against stockholders from the time of the decree. — Berger v. Commercial Bank, 5 N. P. 176, 179 (1897); s. c, 5 Dec. 277. Enforcement of liability in foreign corporations. Where the statutes of a foreign state pro- vide a special remedy for the enforcement of the statutory liability of stockholders, our lOurts will not enforce it on the ground of comity. — Wyatt v. Moorehead, 4 N. P. 435 (1897) ; s. c, 7 Dec. 380. Statutory liability in foreign corporations will only be enforced when it can be done under our procedure in like cases, or when the matter has been heard by a court of compe- tent jurisdiction and the liabilities fixed pro rata on each stockholder. — Wyatt v. Moore- head, 4 N. P. 435 (1897) ; s. c, 7 Dec 3S0. See Judson V. Stewart, 7 N. P. 160 (1897). Enforcement of Kansas latr in Ohio. See Kulp v. Fleming, 65 Oh. St. 321. 47 W. L. B. 67 (1902) ; Blair v. Newbegin, 65 Oh. i^t. — , 47 O. L. B. 77 (1902). liiability on increased stock under act of 1865. See Turnbull v. Pomeroy Salt Co., 24 W. L. B. 133 (1890). 158 Private Corporations in Ohio. stockholders' liability — Enforcement, etc., §§ 3258a-3260a. Bond against liability. As to the rights of a creditor under a bond given by a jmrehaser of property to stock- holders to protect them against liability, see Hatry v. Painesville, etc., Ey. Co., 1 0. C. C. 426 (1886); s. c, 1 C D. 238; affirmed in 32 W. L. B. 281. Iiiability in turnpike companies under act of May 3, 1852. See Palestine, etc.. Turnpike Co. v. Wooden. 13 Oh. St. 395 (1862); Ireland v. Pa'estine, etc., Turnpike Co., 19 Oh. St. 369 (1869). § 3258a. LIMITATION OP ACTION.— An action upon the liability of stock- holders can only be brought within eighteen months after the debt or obligation shall become enforcible against stockholders. (April 29, 1902, 95 v. 313.) See notes under § 3260g. § 3259. THE TEBM " STOCKHOLDEKS " DEFINED.— The term " stock- holders," as used in the preceding section, shall apply not only to such persons as appear by the books of the corporation to be such, but to any equitable owner of stock, although the stock appears on the books in the name of another. (E. S. 1880.) Who are stockholders? — I/iability of trusteed. The general rule is that the person in whose name the stock stands is the legal owner, and is liable whether he is a mere trustee for an- other or a pledgee holding the stock as col- lateral security. He is liable as a stockholder, and must look to his cestui que trust or pledgor for indemnity or reimbursement. — Holcomb V. Gibson, 39 W. L. B. 380 (1898) (Sup. Ct.) ; Henkle v. Salem Mfg. Co., 39 Oh. St. 547, 552 (1883); Stewart v. Triumph Ins. Co., 1 W. L. B. 103 (1876). See Biggio v. Sandheger, 8 N. P. 13 (1900). Where a bank took its own stock in payment . of a debt to it, and entered it on its books in the name of a stockholder as " trustee of the Citizens' Savings Bank," such stockholder, on the failure of the bank, is liable to the credit- ors as the legal owner of the stock. — Holcomb V. Gibson, 39 W. L. B. 380 (1898). If a, transfer of stock is not bona fide, but is a mere ruse or device by which the stock- holder seeks to hold himself out to the world as divested of his ownership, while by some understanding or agreement, express or im- plied, the transferee held it for him, he would remain the equitable owner, and liable under the statute. — See Peter v. Union Mfg. Co., 56 Oh. St. 181, 208 (1897). If a sale and transfer is absolute, and made in good faith, the former owner does not thereafter remain the equitable owner by reason of the fact that the worthless stock passed either by gift or sale into the owner- ship of an insolvent transferee, and that the sole object of the former holder in entering into the transaction was to escape liability for future debts of the corporation. — Peter v. Union Mfg. Co., 56 Oh. St. 181, 208 (1897). 'When legatee of stock liable. One who receives a bequest of stock, which is not thereafter transferred on the books, and there is no evidence of his acceptance of the bequest, cannot be held liable as a stock- holder. The estate is liable. — See De Camp V. Levoy, 19 0. C. C. 335 (1900); Biggio v. Sandheger, 8 N. P. 13 (1900). This section cited in Cincinnati, etc., Ry. Co. V. Third Nat. Bank, 1 0. C. C. 199, 207 (1885); s. c, 1 C. D. 109; Freon v. Carriage Co., 42 Oh. St. 30, 36 (1884). Cumulative remedy. The object of this section is to give a cumu- lative remedy so that, when the person in whose name the stock stands on the books is financially irresponsible, the creditors may in- quire further and pursue the equitable 6^^'ner. — Holcomb V. Gibson, 39 W. L. B. 380 (1898). § 3260. WHERE COMPLAINT FOR ENEORCEMENT OP LIABILITY PILED.- Whenever any creditor of a corporation seeks to charge the directors, trustees or other superintending officers of a corporation, or the stockholders thereof, on account of any liability created by law, he may file his complaint for that purpose in any common pleas court which possesses jurisdiction to enforce such liability. (April 16 1900, 94 V. 359; 91 v. 88; R. S. 1880.) ' See notes under § 3260f. § 3260a. ACTION BY COURT; APPOINTMENT OF RECEIVER.— The court shall proceed thereon, as in other cases, and, when necessary, shall cause an account to be taken of the property and obligations due to and from such corporation, and may appoint one or more receivers. (April 16, 1900, 94 v. 360.) General Corporation Law. 159 stockholders' liability — Enforcement, etc., §§ 3260TD-3260f. § 3260b. ENFOKCEICENT OF LIABILITY UPON INSOLVENT COKPORA- TION. — If, on the coming in of the answer or upon the taking of such account, it appears that such corporation is insolvent, and has not sufficient property or effects to satisfy such creditor, the court may proceed to ascertain the respective liabilities of the directors, ofa.cers and stockholders, and enforce the same by its judgment, as in other cases. (April 16, 1900, 94 v. 360.) § 3260c. NOTICE TO NON-RESIDENT STOCKHOLDERS; COLLECTION OF UNPAID INSTALLMENTS OF STOCK.— In all cases in which the directors or other officers of a corporation, or the stockholders thereof, are made parties to an action in which a judgment is rendered, if the property of such corporation is insufficient to dis- charge its debts, the court shall give notice to non-resident stockholders as provided in sections 5048, 5049, 5050, 5051 or 5052 of the Revised Statutes, and shall first proceed to compel each stockholder to pay in the amount due and remaining unpaid on the shares of stock held by him, or so much thereof as is necessary to satisfy the debts of the company. (April 16, 1900, 94 v. 360.) § 3260d. COURT TO ASCERTAIN AND ADJUDGE LIABILITIES OF OFFI- CERS AND STOCKHOLDERS; PROSECUTION BY RECEIVER.— If the debts of the company remain unsatisfied, the court shall proceed to ascertain the respective liabilities of the directors or other officers and of the stockholders, and to adjudge the amount payable by each, and enforce the judgment, as in other cases. The court may authorize and direct the receiver to prosecute such action in his own name as receiver, as may be necessary, in other jurisdictions to collect the amount found due from any officer or stockholder. (April 16, 1900, 94 v. 360.) § 3260e. NOTICE TO CREDITORS.— Whenever any action is brought against any corporation, its directors or other superintending officers, or stockholders, accord- ing to the provisions of this chapter, the court, whenever it appears necessary pr proper, may order notice to be published, in such manner as it shall direct, requiring all the creditors of such corporation to exhibit their claims and become parties to the action, within a reasonable time, not less than six months from the first publication of such order, and, in default thereof, to be precluded from all benefit of the judgment which shall be rendered in such action, and from any distribution which shall be made under such judgment. (April 16, 1900, 94 v. 360.) § 3260f. DISTRIBUTION OF PROPERTY AND ASSETS OF INSOLVENT COR- PORATION. — Upon a final judgment in any such action against an insolvent corpora- tion, the court shall cause a just and fair distribution of the property and assets of such corporation or the proceeds thereof to be made among its creditors. (April 16, 1900, 94 V. 360.) Note. — ■ The following cases apply to the provisions of § 3260 et seq. Similarity to Minnesota and 'Wisconsin statutes. Statutes, Wisconsin, 1898, Booth V. Deer, 96 Wis. 516 See Revised § 3223 et seq. (1897). See General Statutes, Minnesota, 1891, § .5563 et seq.; Hanson v. Davison, 76 N. W. 254 (1898) ; Bank v. Real Estate Co., 63 N. W. Eep. 1068 (1895); Spooner v. Bay St. Louis Syndicate, 51 N. W. Eep. 377 (1892); Nelson V. Jenks, 51 Minn. 108 (1892) ; Clarke v. Opera House Co., 58 Minn. 16 (1894); Johnson v. Fischer, 30 Minn. 173 (1883) ; Arthur v. Wil- lins, 44 Minn. 409; Hale v. Hardon, 95 Fed. 747 (1899). Old section. The old section was merely a codification of the equity principles laid down by the courts, with the addition that the right to commence the suit was given to a stockholder. — See Hamilton v. Home Ins. Co., 1 N. P. 329 (1895) ; s. c, 3 Dec. 389; Burr v. Bates, 3 O. C. C. 1, 8 (1887); s. c, 2 C. D. 1 ; Swan v. Mansfield, etc., R. R. Co., 3 N. P. 225, 229 (1896) ; s. c, 5 Dec. 297. Action cannot be maintained for trivial amount. See Carr v. Iglehart, 3 Oh. St. 457 (1854). 160 Private Corporations in Ohio. stockholders' liability — Enforcement, etc., § 3260f. Nature of action. The suit is in equity, and the equities and liabilities of the parties as between them- selves may be marshaled in accordance with the rules of equity, and adjusted in the final judgment.— R. R. Co. v. Smith, 48 Oh. St. 219 (1891); Bullock v. Kilgour, 39 Oh. St. 543, 546 (1883) ; Wheeler v. Faurot, 37 Oh. St. 26, 29 (1881); Brown v. Hitchcock, 36 Oh. St. 667, 681 (1881). See Ryan v. Miami, etc., R. R. Co., 16 O. C. C. 530 (1898) ; s. c, 9 C. D. 401; Morris v. CoUamer, etc., R. R. Co., 2 Cleve. L. Kee. 347 (1878); Wehrman v. Reakirt, 1 C. S. C. R. 230 (1871). The action is an equitable one, and the court may withhold final judgment until the exact amount each stockholder should pay can be ascertained, or so mold its decree as to re- quire the several stockholders to pay their proper proportion of the liabilities after the exhaustion of the corporate assets, and retain control over the caAise and the parties until their ultimate rights shall be determined and adjusted. — See Younglove v. Lime Co., 49 Oh. St. 663, 667 (1892). The suit is in equity for the benefit of all the creditors, and when a part of the creditors institute a suit on behalf of all, no creditor can acquire priority or institute a separate suit in his own behalf. — Wright v. McCor- mack, 17 Oh. St. 86 (1866); TJmsted v. Bus- kirk, 17 Oh. St. 113 (1866); Lamont v. Home Ins. Co., 10 W. L. B. 413 (1883); Johnson v. Carpenter, 21 0. C. C. 168 (1900). Joinder of actions. The statutory liability of stockholders and the payment of unpaid stock subscriptions may be enforced in the same action by a cred- itor, notwithstanding the corporation has made an assignment for the benefit of its creditors, the assignee being before the court and consenting that both issues may be tried, or even if the person who is assignee, being also a creditor of the company, brings the actions. — Painesville Nat. Bank v. King Varnish Co., 8 0. C. C. 563 (1894) ; s. c, 4 C. D. 511 ; TurnbuU v. Pomeroy Salt Co., 24 W. L. B. 133 (1890). A judgment creditor may join an action to compel the payment of unpaid subscriptions, and an action to enforce the individual lia- bility of the stockholders of his debtor.— Warner v. Callender, 20 Oh. St. 190 (1870)._ When a corporation is insolvent, and its assets in the hands of a receiver, a creditor may, by cross-petition, seek the enforcement of the statutory liability of the stockholders, although his claim has not been reduced to judgment. — Peter v. Farrell Foundry, etc., Co., 53 Oh. St. 534 (1895). An action against a corporation on a claim and an action against the stockholders of a corporation on their individual liability can- not be joined. — Lee v. Fraternal, etc., Ins. Co., 1 Handy, 217 (1S54). In an action under chapter 5 of division 7 of title 1 of the Revised Statutes, a creditor may intervene and join in his cross-petition a. cause of action for money payable to the cor- poration by a stockholder thereof on account of stock issued to him, with a, cause of action against all the stockholders to enforce pay- ment of their statutory liability. See Peter v. Farrell Foundry, etc., Co., 53 Oh. St. 534, 551 (1895). ) An action to enforce the liability of incor- porators under § 3244 may be joined with an action under this section. — Hessler v. Cleve- land Punch, etc., Co., 61 Oh. St. 621 (1899). Under § 3260 as amended and supplemented, 94 O. L. 359, a creditor may join a cause of action to compel payment of unpaid subscrip- tions for stock, and a claim to enforce the statutory liability of its stockholders for the satisfaction of his debt in the same manner as he could before the passage of such act. Nor does it make any difference that his claim is not reduced to judgment. — Lilley v. Kinnear, 13 Dec. 65. Parties. All the stockholders at the time of the com- mencement of the suit, and all persons ulti- mately liable as stockholders, viz., persons who have assigned their stock after the crea- tion of corporate debts, are necessary parties. — Bonewitz v. Van Wert Co. Bank, 41 Oh. St. 78, 80; Bullock v. Kilgour, 39 Oh. St. 543, 546 (1883); Wheeler v. Faurot, 37 Oh. St. 26. It is error to proceed with the cause until all of the stockholders within the jurisdiction are brought in. — Bonewitz v. Van Wert Co. Bank, 41 Oh." St. 78, 80; Lemar v. Stephens, 27 W. L. B. 301 (1892). The suit being for the benefit of all cred- itors, all the stockholders must be parties. — Brown v. Hitchcock, 36 Oh. St. 667, 681 (1881); Younglove v. Lime Co., 49 Oh. St. 663, 667 (1892) ; Smith v. Newark, etc., R. R. Co., 8 0. C. C. 583 (1894) ; s. c, 4 C. D. 356. In an action by a creditor of a corporation on behalf of all the creditors against the stockholders to collect the statutory liability, it is not necessary or proper to make the other creditors parties to the action, either in the court of common pleas or in a higher court, on appeal or on error. In such cases the action is prosecuted by the plaintiff for the common benefit of all the creditors for the creation of a fund for pro rata distribution among them, and whatever the plaintiff does in good faith in that behalf inures to the com- mon benefit of all, and binds all. — Herrick v. Wardwell, 58 Oh. St. 294 (1898). See John- son V. Carpenter, 21 0. C. C. 168 (1900). Dnty of creditor plaintiff. It would seem that where a creditor plain- tiff on behalf of all creditors was acting in bad faith, or without due regard to the inter- ests of the case, it would be within the dis- cretion of the court to turn the case over to some other creditor, or the case should be turned over in case the plaintiff creditor ef- fects a settlement with the stockholders, nr dismiss the same. — See Johnson v Car- penter, 21 0. C. C. 168 (1900). General. Corporation Law. 161 stockholders' liability — Enforcement, etc., § 3360f. If the plaintiff fails to bring in all the par- ties, the defendants may take steps to make them parties. — Burr v. Bates, 3 0. C. C. 1, 4 (1887); s. c, 2 C. D. 1. Hight to dismiss action. It seems that before other interested parties intervene, the plaintiff in a representative suit may dismiss the same. — See Dreidame v. Germania Investment Co., 8 N. P. 405 (1901). Parties. Creditors may sue such stockholders as they see fit, and recover from them their pro rata proportion of the indebtedness, the defendant stockholders only having the right to bring in other stockholders for the purpose of contri- bution, and if the plaintiffs are vrilling to re- linquish the amount the stockholders not parties would have to contribute, the defend- ajits could not complain. — Sturges v. Mans- field, etc., E. R. Co., C. C. Richland Co.; af- firmed Penna. Co. v. Sturges, 56 Oh. St. 733 (1897). The corporation is a necessary party. — Umsted v. Buskirk, 17 Oh. St. 113 (1866). Parties to appeals. When there is an issue and a determination of the same between the vendor and vendee of stock as to their respective liability, an ap- peal taken to the circuit court by the vendor carries up the case as to the vendee, whether he appeals in his own right or not. — Harpold v. Stobart, 46 Oh. St. 397 (1889). Statute of limitations. The action is on a liability created by stat- ute, and must be commenced within six years from the time it accrues.— Younglove v. Lime Co., 49 Oh. St. 663 (1892); Bronson v. Schneider, 49 Oh. St. 438 (1892); Barrick v. Gifford, 47 Oh. St. 180, 183 (1890); Hawkins V. Furnace Co., 40 Oh. St. 507 (1884). Each creditor's claim is distinct, and a bar to one is no bar to the action. — Hardman v. Cincinnati, etc., Ey. Co., 15 W. L. B. 164 (1886). A suit commenced by one creditor on behalf of himself and all other creditors of an in- solvent corporation is in the nature of a de- mand for all, and saves the running of the statute of limitations as against all creditors who may come in and assert their claims be- fore the final determination of the action. — Barrick v. Gifford, 47 Oh. St. 180 (1890). A plaintiff who negligently fails to make solvent stockholders within the jurisdiction parties until the right of action against them is barred, will not be permitted to increase the assessment against solvent stockholders duly served by reason of such deficiency, but all solvent stockholders within the jurisdic- tion, whether served or not, will be treated as in court for the purpose of the assessment, and the loss must fall upon the plaintiff and other creditors of the corporation. — Smith v. Newark, etc., R. R. Co., 8 O. C. C. 583 (1894) ; B. c, 4 C. D. 356. LAW GOV. PRIV. COR. — II. It does not begin to run against the right of creditors of a corporation to enforce the liability of persons who have assigned stock held by them when the debts were incurred until failure by reason of their insolvency to collect from the assignees of such stock. — Kilgour V. Pendleton, 8 W. L. B. 23 (1882); s. c, 11 Am. L. Rec. 38 (1882). See Bul- lock V. Kilgour, 39 Oh. St. 543 (1883). The statute does not begin to run as to a due but disputed claim until it is settled and adjusted. — Hardman v. Cincinnati, etc., Ry. Co., 15 W. L. B. 164, 165 (1886). The statute does not begin to run as against creditors until their claims are due, though a right of action may have previously accrued as to others. — Hardman v. Cincinnati, etc., Ry. Co., 15 W. L. B. 164, 165 (1886). A stipulation in a policy of insurance limit- ing the time within which an action may be brought thereon has reference to the time within which suit is to be brought on the policy against the corporation; and where judgment has been obtained against the cor- poration in a suit brought within the time limited by such stipulation, it is no defense for a stockholder, when sued on a statutory liability, that the suit against him was not commenced within the time so specified. — Davis V. Stewart, 26 Oh. St. 643 (1875); Stewart v. Triumph Ins. Co., 1 W. L. B. 103 (1876). Limitation in action against execator or heirs of deceased stockholder. See Bevitt v. Diehl, 12 Dec. 383 (1901); s. c, 12 Dec. 315. Pleading. Where a suit is brought with a view of hav- ing it referred to a master in chancery to re- port who are and have been stockholders, with a view of further relief, it is in the first in- stance sufficient if the petition shows that the plaintiff has brought in all who were stock- holders when the corporation became insol- vent and at the time suit was begun, or given valid reasons for not so doing, although per- sons may be found who, by reason of once having been stockholders, must be made par- ties before a final decree will be entered. — Tumbull V. Pomeroy Salt Co., 24 W. L. B. 133 (1890). A petition which avers that each of the defendants except the corporation is the holder of a, specified number of shares of the capital stock of the corporation, contains a sufficient allegation that the defendants are stockholders. It need not be averred in terms • that the defendants are owners of the stock held by them.— R. R. Co. v. Smith, 48 Oh. St. 219 (1891). In an action against an insolvent street railroad company, an averment that the " company is a corporation duly incorporated under the laws of the state of Ohio " is a sufficient averment that it was incorporated under a law enacted since the adoption of the 162 Private Corporations in Ohio. stockholders' liability — Enforcement, etc., § 3!360f. present constitution, for the court will judi- cially notice that no statute existed prior to the present constitution authorizing the in- corporation of a street railroad corporation; and if incorporated since the adoption of the constitution, it must be subject to the lia- bility.— Eider V. Fritchey, 49 Oh. St. 285 (1892). If a petition contains the necessary aver- ments to charge the defendant stockholders, it is not demurrable because, for aught that appears, the plaintiff is the only creditor and the defendants the only stockholders. — Um- sted V. Buskirk, 17 Oh. St. 113 (1866). See Hall V. Standard Coal Co., 7 N. P. 157 (1897). A petition is bad unless it alleges that the defendants held their stock at the time the debts were incurred. — Hooker v. Kilgour, 2 C. S. C. R. 350 (1873). The answer of a defendant is not sufficient if it only denies that he was a stockholder at the time the note sued on was given or the judgment rendered. Such an answer implies that the defendant was a stockholder at some time. — Hardman v. Cincinnati, etc., Ey. Co., 14 W. L. B. 346 (1885). An answer is not sufficient if it merely de- nies that the defendant ever had any stock in his possession, for the reason that such answer is evasive. — Hardman v. Cincinnati, etc., Ry. Co., 14 W. L. B. 346 (1885). An answer containing a defense on the ground that there are stociholders who have not been made parties should disclose the names of such parties, although this question should be raised on the hearing before the referee. — Hardman v. Cincinnati, etc., Ry. Co., 15 W. L. B. 164 (1886). If a defendant claims he made a donation to the company and did not take stock, he should make such proof under a denial. It is a matter of evidence which should not be pleaded. — Hardman v. Cincinnati, etc., Ry. Co., 15 W. L. B. 164 (1886). An answer of a defendant alleged to be a stockholder will be ordered to be made more definite and certain where he denies the alle- gations of the petition for want of knowledge. He should admit or deny positively the alle- gations as to his liability as a stockholder. — Hardman v. Cincinnati, etc., Ry. Co., 14 W. L. B. 346 (1885). Where action must be brought. An action cannot be rightly brought in a county within the meaning of § 5038 and § 5030 when none of the defendants reside there, although one of them entered his ap- pearance on a summons mailed to him in an- other countv. — Lament v. Home Ins. Co., 10 W. L. B. 413 (1883). An action to enforce a liability of stockhold- ers in an insurance company is not an action against the insurance company within the meaning of § 5026, and if it were, the cause of action being the insolvency of the company, it arose at the main office of the company. — Lament v. Home Ins. Co., 10 W. L. B. 413 (1883). Same subject. The action may be brought in any county in which any defendant may be rightly sued and served, and process may be issued to other counties for other defendants, including the insolvent corporation. — See Swan v. Rail- road Co., 4 Dec. 71 (1895); Hull v. Standard Coal Co., 7 N. P. 157 (1897). Appointment of receiver. In an action to enforce payment of stock- holders' liability a receiver may be appointed after judgment to collect and distribute the fund, and such receiver may, by authority of the court appointing him, prosecute actions in his own name as such receiver to enforce payment of judgment rendered for such statu- tory liability. — Clarke v. Thomas, 34 Oh. St. 46 (1877); Zieveriuk v. Kemper, 50 Oh. St. 208 (1893). Actions by receivers. See as to proof of admission of judgments against stockholders in actions by receivers, Zieverink v. Kemper, 50 Oh. St. 208 (1893). Attachment. An action to enforce statutory liability is an action upon a demand arising upon con- tract within the meaning of § 5521, relating to attachments on the ground of nonresidence. — Dabney v. Pappenheimer Co., 41 W. L. B. 329 (1889); s. c, 20 0. C. C. 707; Northern Nat. Bank v. Maumee Rolling Mill Co., 2 N. P. 260 (1894); s. c, 2 Dec. 67; Cleveland Gas Co. V. Collins, 19 O. C. C. 247 (1899) ; s. c, 6 N. P. 218. Where the writ of atta. 652; Coe v. Columbus, etc., R. R. Co., 10 Oh. St. 372 (1859); Coe v. Peacock, 14 Oh. St. 187 (1863); Ludlow v. Hurd, 1 Dis. 552 (18.57); Hatry v. Painesville, etc., Ry. Co., 1 0. C. C. 426 (1886); s. c, 1 C. D. 238; Louisville Trust Co. V. Cincinnati, etc., Ry. Co., 91 Fed. 699 (1897); s. c, 10 0. F. D. 646; Compton V. Jesup, 68 Fed. 263 (1895) ; s. c, 8 0. F. D. 452. Vrhat is after-acquired property. A railway company gave a mortgage to se- cure its coupon bonds, conveying all the prop- erty which it then possessed or should thereafter acquire, and subsequently executed a lease, to which the mortgagee was not a. party, whereby the lessee agreed to pay the coupons at maturity, in the event the net earnings of the demised road should not be suflBeient to protect the interest on the bonds. In a suit to foreclose the mortgage, held, that the lease was not after-acquired property within the meaning of the mortgage. — Moran V. Pittsburg, etc., Ry. Co., 32 Fed. 878 (1887) ; s. c, 5 0. P. D. 712. Franchise to be a corporation cannot be mortgaged. A railroad company has no power to mort- gage or sell its corporate franchise to be a corporation, and a judicial sale upon mort- gages executed by it would not invest the pur- chaser with any corporate capacity whatever. — Atkinson v. Marietta, etc., R. R. Co , 15 Oh. St. 21 (1864); Coe v. Columbus, etc., R. R. Co., 10 Oh. St. 372 (1859). What property mortgage does not cover. A mortgage executed by a railroad company on " the road " of the company, " whether made or to be made, acquired or to be ac- quired," and all property, real or personal, " of the company, whether now owned or here- after to be acquired, used or appropriated for the operating or maintaining the said road," is not a lien upon the real estate of the com- pany then owned or afterward acquired which has not been used or appropriated for operat- ing or maintaining the road. — Walsh v. Bar- ton, 24 Oh. St. 28 (1873); Hatry v. Paines- ville, etc., Ry. Co., 1 0. C. C. 426 (1886) ; 6. c, 1 C. D. 238. Railroad Corporations. 197 Bonds, etc., § 3286, Scrap — cast-off articles. ■" I The cast-off articles, fragments, and old "^ materials, once forming part of the road, or j^used in its operation, still continue under the v^ mortgage, if a proper and judicious manage- lAment of the road requires that they should be recast or exchanged for new articles, for the ' uses of the road. — Coopers v. Wolf, 15 Oh. St. 523 (1864). Extra-territorial force of mortgage on rolling stock, A mortgage covers rolling stock, though tebiporarily out of the state, and a receiver may, under comity between states by an action brought in the foreign state in his own name, assert his right to the possession thereof where such right is not in conflict with the rights of citizens of such foreign state nor against the policy of its laws. — Bank v. Mc- Leod, 38 Oh. St. 174 (1882) ; Winslow v. Troy Iron, etc., Co., 1 Dis. 229 (1856). Fraud in issue — action by trustee. A trustee, holding bonds for the benefit of others, cannot maintain an action of deceit to recover damages suffered by his cestuis que trustent by reason of a deception practiced upon them in connection with their purchase of the bonds, nor can he maintain an equitable action on the ground of fraud in such ease. — Raymond v. Spring Grove, etc., Ky. Co., 21 W. L. B. 103 (1889). Iiease subsequent to mortgage — rights of mortgagee. Where a lease is executed by a mortgagor subsequent to the mortgage, and there is no privity of estate or contract thereby created between the mortgagee and lessee, and there is no attornment by lessee to mortgagee, the mortgagee cannot, either before or after the mortgagor's default, demand the benefits of the lease without the consent of the lessee. — Moran v. Pittsburg, etc., Ry. Co., 32 Fed. 878 (1887); s. c, 5 0. F. D. 712. Notice to mortgagees of rights of ven- dors. Where a party contracts to sell land to a railway company, but retains the legal title pending payment, it is sufficient to put subse- quent mortgagees of the road upon mquiry as to his rights. — Dayton, etc., R. R. Co. v. Lewton, 20 Oh. St. 401 (1870). Action to compel the issuance of bonds — mandamus. A writ of mandamus will not be allowed to compel a corporation to issue its bonds to one of its creditors in order to obtain the benefit of a mortgage security, where the right of the I creditor to such security is doubtful, and the ' property sought to be affected has passed into the hands of third parties as purchasers. The remedy in such case should be by a suit brought in equity against the parties whose Interest it is sought to affect. — Ham v. To- ledo, etc.. Ry. Co., 29 Oh. St. 174 (1876). Proceeds of bond are trust fund. Where money is held by a corporation or its directors, arising from a sale of its mortgage bonds, and the purposes for which the bonds or their pi;oceeds are to be used by the corpora- tion are set forth in the mortgage, and are such as are authorized by statute, it is a trust fund to be used in good faith by the corpora- tion for the purposes stated in the mortgage. — Columbus, etc., Ry. Co. v. Burke, 19 W. L. B. 27 (1887); Central Trust Co. v. Burke, 1 N. P. 169 (1895); s. c, 2 Dec. 96. Same subject — injunction against mis- use. Upon a, proper showing the bondholders of a company are entitled to an injunction to restrain a misuse of tne funds arising from the sale of bonds. — Columbus, etc., Ry. Co. v. Burke, 19 W. L. B. 27 (1887). Clause exempting stockholders from individual liability. Where a mortgage to secure certain bonds contains a, clause limiting the effect of the contract contained in the' bond, as to matters not pertinent to the mortgage, a holder of sucn bonds will not be presumed to have no- tice of such clause merely by reason of a general reference to the " terms and condi- tions " of tne.mortgage contained in the bonds. — Raymond v. Spring Grove, etc., Ry. Co., 21 W. L. B. 103 (1889). Same subject — does not cover liability on subscriptions. See Raymond v. Spring Grove, etc., Ry. Co., 21 W. L. B. 103 (1889). Money advanced to pay interest not entitled to equitable lien. A claim against a railroad company for money advanced to pay interest and taxes is entitled to no equitable claim upon the prop- erty of the company as against mortgagees. — Coe V. Columbus, etc., R. R. Co., 10 Oh. St. 372 (1859). Interest coupons — negotiability. An interest coupon, not having a payee designated therein, is not a promissory note, nor negotiable in law. — Wright v. Ohio, etc., R. R. Co., 1 Dis. 465 (1857). Interest — semi-annual payment. Where bonds are issued bearing interest a^ seven per cent, per annum, payable semi-an- nually, and it was claimed that the corpora- tion had no power to contract for the payment of interest either semi-annuaFy or at any other time before the money tell due, it was held that the payment of the interest could be regulated according to the usual course of dealing in borrowing money and paying the price or compensation for its use. — Coe v. Columbus, etc., R. R. Co., 10 Oh. St. 372, 336 (1859). Interest. See Hillsborough, etc., R. R. Co. v. Cincin- nati, 2 A. L. R. 724 (1873). 198 Private Corporations in Ohio. Bonds, etc., § 3286, Estoppel to deny validity of issue. Where a company pays interest and prin- cipal on bonds for several years, it may be estopped to deny the validity of the issue of the bonds. — Shoemaker v. Dayton, etc., E. E,. Co., 19 W. L. B. 322 (1888). Interpretation and construction. A mortgage given by a railroad company, to secure the payment of dividends to the holders of certificates of preferred stock, "is an incident to the principal obligation, and the terms and purport of the certificates will be held to express the real intent of the par- ties, even though some of the stipulations of the mortgage may be apparently inconsistent with the intent as expressed by the certifi- eates. — Miller v. Eatterman, 47 Oh. St. 141 (1890). Same subject. Wnere the words or terms of a bond are equivocal or not entirely clear, the court may consider the deed of trust in connection with the bond in order .to ascertain the real con- tract between the corporation and the bond- holder. — Shoemaker v. Dayton, etc., R. E. Co., 18 W. L. B. 43 (1887). Convertible bonds, dividends. Where convertible bonds are issued, and the holders thereof have regularly been paid in- terest, they are entitled to convert their bonds into stock, but only to receive an amount of stock equal to the amount of the principal sum of the bonds, but no extra allowance of stock or money for dividends on the stock, not being entitled to both interest and divi- dends. — Sutliffe V. Cleveland, etc., E. R. Co., 24 Oh. St. 147 (1873). Convertible bonds, action for refusal to convert — pleading. A petition is fatally defective in not aver- ring that the plaintiffs were, and at the com- mencement of their action .continued to be, the holders of the bonds, for the nonconver- sion of which they bring suit. — Denney v. aeveland, etc., R. R. Co., 28 Oh. St. 108 (1875). Convertible bonds — rigbt of action for refusal to convert cannot be assigned. The holder of a convertible bond cannot assign to another the right of action for a breach of the stipulation for conversion, and yet retain the bond for the benefit of himself and his future assignees. — Denney v. Cleve- land, etc., E. R. Co., 28 Oh. St. 108 (1875). Convertible bonds, stipulation avail- able only to holder. A stipulation making bonds convertible into stock is inseparably connected with the bond on which it is indorsed, and is only available to the holder of the bond, and so long only as he .continues to be such holder. — Denney v. Cleveland, etc., R. R. Co., 28 Oh. St. 108 (1875). Convertible bonds — fraud. Where a company has power to issue bonds for the purpose of raising money, it may allow the holders of the bonds to convert them into stock. But if this should be done, not in good faith, but for the purpose of keeping the control of the company in the hands of a board of directors, a court of equity would interfere on the ground of its being a fraud. — Baldwin v. Hillsborough E. E. Co., 10 W. L. J. 356 (1853). Effect of state judgment prior to fed- eral foreclosure .— xcrbat such jn4g" ment lien includes. A judgment recovered in a, state court against the railroad company prior to the commencement of the foreclosure suit by a creditor who was not made a party, remains unaffected by the decree and sale, such judg- ment becomes a lien on the real property owned by the company at the time of its re- covery, in the county where rendered, includ- ing lands acquired for the roadway, right of way, depots and other purposes of the com- pany, and continues to be so against the prop- erty in the hands of tne purchaser at the foreclosure sale. — Stewart v. Railway Co., 53 Oh. St. 151 (1895). Enforcement of lien by such judgment creditor — subrogation of purchaser to rights of mortgagee — application of proceeds. See Stewart v. Railway, 53 Oh. St. 151 (1895). Foreclosure in federal court — notice. A suit brought in a federal court to fore- close a mortgage on the property of a railroad corporation, operates as constructive notice throughout the district, and all persons ac- quiring an interest in or lien on any part of the property during the pendency of the suit will be bound by the decree and sale made thereunder; the purchaser will take the prop- erty discharged from all such liens and inter- ests; though the persons obtaining them be not parties to the suit, they must seek satis- faction from the proceeds of the sale, to reach which they should become parties, and bring their claims to the attention of the court by appropriate pleadings. — Stewart v. Railway- Co., 53 Oh. St. 151 (1895). Sale of part of road to pay interest. Where the mortgage so stipulates, the trus- tees may cause to be sold so much of the road as is necessary to pay arrearages of interest, though no part of the principal has become due. — Goodman v. Cincinnati, etc., R. R. Co., 2 Dis. 176 (1858). Action by one bondholder on behalf of all. An action brought ty one bondholder to en- force an equitable lien based on railroad equipment bonds, alleging that the suit is filed " in his own behalf as well as in behalf of all those in like interest who may come in and contribute to the expenses of and join in the Railroad Corporations. 199 Narrow Gauge Roads, Powers of, § 3286-1. prosecution of the suit, is binding only on those who are made or become parties to the suit; the parties who are not named are not parties to the suit, and are not bound by the proceedings therein unless they elect to come in and claim as such and bear their propor- tion of the expenses; or unless, after having had notice and an opportunity to come in, they refuse or neglect to do so. — Adelbert College V. Toledo, etc., Ry. Co., 3 N. P. 15 (1896); s. c, 5 Dec. 14; Carpenter v. Canal Co., 35 Oh. St. 307 (1880). T'oreclosure. The holder of a bond may enforce his lien on behalf of his own interest or on behalf of any person to whom he has transferred certain ■of his, interest coupons, but the holder of non- negotiable coupons cannot maintain an action in his own name to compel the trustees to foreclose. — See Wright v. Ohio, etc., R. R. Co., 1 Dis. 465 (1857). 'PoxreT of mortgagee to take possession. A power inserted in a mortgage authoriz- ing the mortgagee, upon default of payment, to take possession of the railroad and other prop- erty connected therewith, and to use or sell the same, must be exerted upon all the prop- erty mortgaged; and does not authorize the mortgagee to detach portions thereof, either from the possession of the company or an officer succeeding to its rights by a valid levy. — Coe V. Peacock, 14 Oh. St. 187 (1863). "Undelivered bonds not subject to exe- cution. Railroad mortgage bonds held by the com- pany or its agents, for the use of the company before delivery, are not subject to execution as property of the company, nor can they be subjected to sale by proceedings in aid of exe- cution. — Means v. Cincinnati, etc., R. R. Co., 2 Dis. 465 (1859). Exemption from execution. The execution of a mortgage by a railroad company can give no exemption to its per- sonal property from liability for its debts that the execution of a like mortgage by an individual would not create. — Coe v. Colum- bus, etc., R. R. Co., 10 Oh. St. 372 (1859) ; Coe V. Knox County Bank, 10 Oh. St. 412 (1859). See Carey v. Pittsburg, etc., R. R. Co., 1 W. L. M. 338 (1859). Injunction against sale on execution. An injunction may be allov.'ed restraining the removal and sale on execution of portions of the mortgaged property of a railroad com- pany on the application of the mortgagees, when the whole of the property is admitted to be inadequate security for the payment of the mortgage debts. — Lane v. Baughman, 17 Oh. St. 642 (1867); Ludlow v. Hurd, 1 Dis. 552 (1857). Refusal of sheriff to levy — damages. Where the amount of mortgages exceeds the entire value of the mortgaged property, only nominal damages can be recovered against the sheriff for refusing to levy upon and sell the property on executions against the company. — Coopers v. Wolf, 15 Oh. St. 523 (1864). See Coe v. Peacock, 14 Oh. St. 187 (1863). Remedy of judgment creditor in equity. When the property is inadequate security for the payment of mortgage debts, a judg- ment creditor's remedy is in equity, to subject the interest of the mortgagor to the payment of his judgment, or where the nature of his claim is such as to entitle him to have it paid out of the earnings of the company, by pro- ceedings to appropriate so niuch thereof as may be necessary to the payment of the judg- ment. — Lane v. Baughman, 17 Oh. St. 642 (1867). See Carev v. Pittsburg, etc., R. R. Co., 1 W. L. M. 338 (1859). Execution against property in use. See State v. Brinson, 46 W. L. B. 275 (1901). Other sections. See § 3309a. § 3286-1. POWER OF NARROW GAUGE ROADS.— Any railroad company iaving a gauge not exceeding three feet, known as a narrow gauge road, heretofore or that may be hereafter Incorporated under the laws of this state, and having at least fifty miles of completed road, and not exceeding six thousand dollars per mile of first mortgage bonds issued for each mile of completed road, for the purpose of fund- ing its floating debt, or for the completion of its unfinished proposed line of road, or ior the purchase of rolling stock, or for the erection of repair-shops, or for the pur- chase of supplies necessary for the operation of said road, or for any or all of said purposes, shall be and the same is hereby authorized to issue its second mortgage honds, bearing a rate of interest not exceeding seven per cent, per annum, secured by a second mortgage upon its entire property, real and personal, and its franchise, for any amount not exceeding two-thirds of the amount of its authorized capital stock, and sell the same at such time and places, within or without the state, and at such rate as the directors of said railway company may deem for its best interest: provided, said issue of bonds and mortgage shall be authorized by a vote, either in person or by proxy, of the majority of the holders of paid up stock; and provided, that previous to -taking said vote thirty days' notice shall be given to the stockholders of said railway company, hy publication in a newspaper of general circulation in each and every county through which the line of road is operated. (April 10, 1880, 77 v. 164.) 200 Private Corporations in Ohio. Power to Borrow Money — Mortgage for, etc., §§ 3287-3289. § 3287. INTEREST, SECUBITY, EXTENT OE POWER.— A company may borrow money at a rate not exceeding seven per centum per annum, for any purpose that the same may be needed in its business, and execute bonds or promissory notes therefor in sums of not less than one hundred dollars; and it may secure the payment of such bonds and notes by a pledge of its property and income; but the aggregate indebtedness authorized by this and the preceding section shall not exceed the amount of the capital stock of the company. (May 1, 1852, 50 v. 274, § 14.) What income can be pledged. The income which railway corporations are authorized to pledge is their net income, not their gross earnings. It is therefore the right and duty of these companies to apply their earnings, first, to pay for all services rendered by laborers, agents and officers; for taxes, machinery, fuel, expenses of maintaining and operating their roads, and for liabilities grow- ing thereout. Second, to pay interest on mort- gages. Third, to pay liens in the order of priority. — Carey v. Pittsburg, etc., R. R. Co., 1 W. L. M. 338 (1859). See McCormaek v. Central Ohio R.R. Co., 3 W. L. G. 218 (18.59) ; , Darst V. Pittsburg, etc., R. R. Co., 4 W. L. G. 377 (1859). Injunction to restrain diversion of funds for payment of interest. A court of equity, upon application of an income bondholder for himself and others, should take cognizance of the trust, and re- strain the corporation from diverting the funds, to Avhich alone he and his associates may look for the payment of their interest. — Shoemaker v. Dayton, etc., R. R. Co., 18 W. L. B. 43 (1887) ; s. c, 3 0. C. C. 473; Carey v. Pittsburg, etc., R. R. Co., 1 W. L. M. 338 (1859). See Darst v. Pittsburg, etc., R. R. Co., 4 W. L. G. 377 (1859). "When is interest cumulative. See Shoemaker v. Dayton, etc., R. R. Co., 18 W. L. B. 43 (1887); s. c, 3 0. C. C. 473 (1888) ; =. c, 2 C. D. 270. Amount of loans authorized. One lien may be put on the property after another until bonds are executed to the amount authorized and the power exhausted. — See Coe v. Columbus, etc., R. R. Co., 10 Oh. St. 372, 400 (1859). Amount of issue — recovery from stock- holders. Railway companies have general power to issue bonds secured by mortgage, and where such bonds are issued in excess of the amount allowed by law, there can be no recovery on the bonds against the individual stockholders and directors who caused the issue. — Ray- mond V. Spring Grove, etc., Ry. Co., 21 W. L. B. 103 (1889). Estoppel to deny validity of issue. Where the stock of a railway company is irregularly increased, and bonds are issued based upon such increase in stock, both the corporation and the stockholders are estopped to deny the validity of the issue after they have acquiesced in the same for three years. ■ — - Farmers Trust Co. v. Toledo, etc., Ry. Co., 67 Fed. 49 (1895) ; s. c, 9 0. F. D. 230. Street railroads. This section, together with §§ 3288, 3289, are applicable to street railroad companies. — See § 3309a. § 3288. NATURE OF MORTGAGE. — Such mortgage or pledge may be made by the company executing a deed of mortgage, or other instrument in writing, for the purpose of securing the payment of the loan of money made, or the notes, bonds, or other evidences of indebtedness issued by the company, which mortgage may include the personal as well as the real property of the company. (February 9, 1853, 51 v. 332, § 1.) § 3289. RECORD OF MORTGAGE. — It shall be held to be a sufficient record of any such mortgage, heretofore or hereafter made, if the same is recorded in the office of the recorder of deeds in each of the counties in which the real or personal property is situate or employed, and the mortgage so recorded shall be held to be a good and substantial lien, from the date of the record of the same, in each county where it is recorded, as well upon the personal as the real property of the company. (February 9, 1853, 51 V. 332, § 2.) Priority of mortgage. A recorded mortgage given by a railroad company on its road bed and other property, creates a lien whose priority cannot be dis- placed thereafter either directly by a mort- gage given by the company, or indirectly by a contract between the company and a third party for the erection of li\iildinc-s or other works of original constniction. — Toledo, etc., R. R. Co. V. Hamilton, 134 U. S. 296 (1890)-' s. c, 6 0. F. D. 537, Railroad Corporations. 201 Bonds, Power to Sell, § 3290. Defective mortgages — rights of general creditors. A creditor having been permitted to levy an execution upon a part of the personal prop- erty, including a portion acquired subse- quently to the date of both second and third mortgages, but this levy having been made after the action to foreclose was brought, and while the property was in the hands of a re- ceiver appointed in the case, he is not entitled to a preference over the equitable second mort- gage. — Coe v. Columbus, etc., R. R. Co., 10 Oh. St. 372 (1859). Defective mortgage — rights as against subsequent mortgages. AVhere a mortgage is defective in its execu- tion, and therefore void under our laws, it is good as against a subsequent mortgage which is made subject to it. — Coe v. Columbus, etc., R. R. Co., 10 Oh. St. 372 (1859). § 3290. POWER OP DIRECTORS TO SELL BONDS. — The directors of the com- pany may sell, negotiate, mortg'age, or pledge such bonds or notes, as well as any notes, bonds, scrip, or certificates for the payment of money or property which the company may have theretofore received, or shall hereafter receive, as donations, or in payment of subscriptions to the capital stock, or for other dues of the company, at such times and in such places, either within or without the state, and at such rates and for such prices at not less than seventy-five cents on the dollar, as in the opinion of the directors will best advance the interests of the company; and if such notes or bonds are thus sold at a discount, without fraud, the sale shall be as valid in every respect, and the securities as binding for the respective amounts thereof, as if they were sold at their par value. (December 15, 1852, 51 v. 286, § 1; March 14, 1876, 73 V. 25, § 5.) Character of issue — sale or loan. The giving of a guaranty of bonds is to be loolied to in determining whether the real transaction is a bona fide sale or a disguised loan. If a sale, the guaranty passes as an in- cident, and is, in equity, assignable to subse- quent purchasers of the bonds. — Bank of Ashland v. Jones, 16 Oh. St. 145 (1865). See Junction R. R. Co. v. Bank, 12 Wallace (U. S.) 226 (1870). Sale of bonds not made a loan by a per- sonal guaranty. When a transaction would otherwise be a sale by a railroad corporation of its own bonds, the fact that their payment is guar- anteed by the directors in their individual capacities does not necessarily make the transaction a loan. — Bank of Ashland v. Jones, 16 Oh. St. 145 (1865). Sale of bonds — usury. Before a sale of bonds can be declared in- valid, as in contravention of the settled policy of the state where made, the repugnancy must be plain and substantial. The fact that bonds sold here bear a higher rate of interest than may be prescribed for similar bonds issued under the authority of this state, but which are authorized to be sold at any price, creates no repugnancy. — Bank of Ashland v. Jones, 16 Oh. St. 145 (1865). Power to sell bonds at less than par. A company having power to sell its bonds at less than par may exchange them for iron rails. — Coe v. Columbus, etc., R. R. Co., 10 Oh. St. 372 (1859). Sale of bonds in foreign state. A corporation of a state, authorized to raise money by the sale of its bonds, may itself sell the bonds directly, either within or with- out the state, and such transaction will not be regarded as a loan. — Bank of Ashland v. Jones, 16 Oh. St. 145 (1865). Application to foreign corporations. This section applies only to domestic cor- porations, and a sale of bonds by a foreign corporation at less than par is usurious. — McGregor v. Covington, etc., R. R. Co., 1 Dis. 509 (1857). Applies to foreign corporations. The law of Ohio authorizing railroad com- panies to sell their own bonds and notes at such prices as they may deem expedient, is extended by comity to the companies of other states authorized to transact business in Ohio. — Junction R. R. Co. v. Bank, 12 Wal- lace (U. S.) 226 (1870). Repeal of usury lamrs. In so far as sections 3290 and 3287 permit railroad companies to borrow money at a rate of interest exceeding 8 per cent., their effect is to repeal the usury laws as to such com- panies, and that notes or lease warrants exe- cuted by a railroad company for deferred pay- ments on equipment purchased conditionally, and which were payable monthly as rental, the title to the equipment to vest in the com- pany on their full payment are not usurious, though their amount is greater than the stated value of the equipment with 8 per cent, interest until maturity, but not greater than would have been required if they had borne 7 per cent, interest, and had been discounted at 75 per cent of par. — iletropolitan Trust Co. V. Columbus, etc., R. R. Co., 93 Fed. 702 (1899). When sale is for seventy-five per cent. Where one K. contracted to perform certain services in the reorganization of a railway 202 Private Corporations in Ohio. Officers, Classification of Directors, etc., §§ 3291-3296. company, for which he was to receive certain amounts of bonds and stock in the reorganized company, it being claimed that the bonds were issued for less than 75 per cent, of their par value, and were therefore void under this sec- tion, held, that the stock should be taken at its actual, and not at its par, value, in com- puting the amount received by the company for the bonds. — Continental Trust Co. v. To- ledo, etc., R. R. Co., 80 Fed. 929 (1898); ». c, 95 Fed. 497 (1899); s. c, 82 Fed. 642 (1897). § 3291. TRANSFER BOOKS IN FOREIGN STATES. — The directors of any company, when they deem it expedient for the interest or convenience of the com- pany, may open transfer books in any of the states of the United States, for the pur- pose of transferring stock which may be purchased or held by persons out of this state; and they may employ suitable agents to keep such transfer books, whose acts, done under the authority of this section, shall be binding on the company. (March 21, 1850, 48 V. 51, § 1.) § 3292. VICE-PRESIDENT. — The directors may elect from their number a vice- president, whenever, in their opinion, the interests or convenience of the company requires it; and in case of the absence, death, resignation, or other disability of the president, the vice-president so elected shall exercise the same powers and discharge the same duties as properly and legally belong to the office of president, until such vacancy is filled by a new election, or such disability removed. (March 29, 1856, 53 V. 36, § 1.) Duties. The office of vice-resident may be made ac- tive and independent. — Colman v. West Vir- ginia, etc., Co., 25 W. Va. 148 (1884) ; Chicago, etc., Co. V. James, 22 Wis. 194 (1867) ; s. c, 24 Wis. 388 (1869); Richards v. Osceola, 79 la. 707 (1890). See § 3247 and notes. § 3293. TREASURER. — The directors may, whenever, in their opinion, the interests or convenience of the company will be promoted thereby, elect any suitable person as treasurer of the company, to be subject to such rules and regulations as they or the company may prescribe. (April 7, 1857, 54 v. 103, § 1.) § 3294. CHANGE OF NUMBER OF DIRECTORS. — A company may, by a vote or a majority of its stock at any regular annual meeting of the company, increase the number of directors to any number not greater than fifteen, or decrease the number before or after such increase to any number not below seven. (January 14, 1875, 72 V. 17, § 3.) May be done by majority. A decrease or increase in the number of di- rectors is not such a fundamental change but that it mav bo done by the majority. Mower v. Staples, 32 Minii. 284 (1884). § 3295. CLASSIFICATION OF DIRECTORS. — The stockholders of a company, whether organized under general or special laws, whose railroad is wholly or partly within this state, may, at any regular meeting of its stockholders, or a special meet- ing of which at least thirty days notice has been given by publication, by an affirma- tive vote of the stockholders owning a majority of the stock of the company, direct its board of directors to so classify the members thereof, by lot or otherwise, that one- fhird thereof shall terminate their official term at the first annual election thereafter, one-third at the next annual election thereafter, and the remainder at the next suc- ceeding annual election thereafter; at the first regular election succeeding such classification, when the term of the directors of the first class expires, and at each succeeding annual election thereafter, the stockholders shall elect directors for three years, to take the place of those retiring, and no more; and all vacancies which other- w^ise occur in the board shall be filled in the manner prescribed by law. (April 30, 1869, 66 V. 77, § 1.) § 3296. CLASSIFICATION OF DIRECTORS — VOTING. — The stockholders cf a company whose road is wholly or partly within this state, may, at any re<^ular Railroad Corporations. 203 Conditional Subscriptions — Exemption from Execution, etc., §§ 3298, 3299. annual election of directors thereof, so classify and elect such directors that one-third thereof shall serve for one year, one-third for two years, and the remainder for three years; at each succeeding annual election thereafter the stockholders shall elect directors to take the place of those whose terms so expire; no person shall be allowed to vote for directors as aforesaid unless he has been a registered stockholder of such company at least thirty days prior to such election; and the registry of such stock shall be made in the books kept at the principal office of the company. (April 30, 1869, 66 V. 77, § 2.) § 3297. CLASSIFICATION OE DIRECTOES — RIGHTS OF CREDITOKS. — The provisions of the two preceding sections shall also apply to companies whose bond- holders or other creditors share with the stockholders in the election of directors; and in such case the vote necessary to direct the classification provided for in said sec- tions shall be the same as is required to elect directors of such company. (April 30, 1869, 66 V. 77, § 3.) § 3298. SUBSCRIPTIONS CONDITIONEP ON COMPLETION OF ROAD. — The directors of a company which has expended in the construction of its road ten per centum of its authorized capital, and has obtained actual bona fide subscriptions to its capital stock to the amount of at least twenty per centum thereof, may receive subscriptions to its capital stock, payable in such installments, dependent upon the completion of the whole or any part of its road so that cars may pass over the same, as its directors may deem expedient, and upon full payment thereof may issue cer- tificates of stock therefor; but no subscriber to the stock hereby authorized shall be entitled to any of the privileges of a stockholder until his subscription is fully paid, nor shall he, for any purpose, be deemed a. stockholder until the happening of the contingency upon which the installments on his subscription are made dependent. (April 15, 1857, 54 v. 133, § 3.) Conditional subscriptions taken before twenty per cent, is subscribed. If at the time a subscription is made it is unauthorized by this section, it may be a continuing offer to subscribe and become ab- solute when its eonditions have been com- plied with, though it may be withdrawn at any time before such performance. — Arm- strong V. Karshner, 47 Oh. St. 276 (1890). Condition of partial completion. Where a subscription is conditioned upon the completion and operation of the road be- tween speciiied points, it is not necessary that the whole road should be completed before the subscription can be enforced. — Lesher v. Karshner, 47 Oh. St. 302 (1890). Effect of words " paid as donation." The addition of the Aiords " paid as dona- tion " do not convert a conditional subscrip- tion to an agreement for a gift. — Lesher v. Karshner, 47 Oh. St. 302 (1890). Bight of conditional subscriber to vote. A subscriber to stock is entitled to no priv- ileges until his subscription is fully paid, for instance, he cannot vote if action is to be taken under § 3300. — Railroad Co. v. Hins- dale, 4.5 Oh. St. 556 (1888). Conditional subscriptions generally. See § 3242, notes. § 3299. WHEN PROPERTY EXEMPT FROM EXECUTION. — A company which has beguai and partly built its road, but is unable to finish and operate the same for want of means, may take subscriptions conditioned that the proceeds thereof shall not be used or applied upon the debts of the company; and all money or material col- lected uppn such subscriptions, and all material or implements purchased with such money for the construction of the track, houses, depots, and rolling stock of the com- pany, shall be exempt from execution, or other process or proceedings for the pay- ment of the debts of the company so long as such money, material, or implements are used or designed for the construction of such track, houses, depots, and rolling stock. (April 16, 1867, 64 v. 192, § 1.) Executions against railroad property. See § 3286, notes. 204 Private Corporations in Ohio. Purchase, Lease, etc., of Other Boads, § 3300. § 3300. AID, LEASE OR PURCHASE OF OTHER ROADS.— Any company may aid another in the construction of its road, by means of subscription to the capital stock of such company, or otherwise, for the purpose of forming a connection of the roads of the companies, -when the road of the company so aided does not and will not, when constructed, form a. competing line; any company may lease or purchase any part or all of a railroad constructed, or in course of construction by another company, if the lines of road of such companies are continuous or connected, and not competing, upon such terms as may be agreed upon between th? companies; and after such pur- chase the purchasing company shall be vested of all the rights and powers in respect to the location, construction, completion and operation of such railroad, and of branches thereto of the company from which it purchased said railroad, including the power to acquire and appropriate property therefor, and shall be subject to all the duties, obligations and restrictions of said company; and any two or more companies whose lines are connected and not competing, may enter into any arrangement for their common benefit consistent with, and calculated to promote the objects for which they were created. (March 14, 1883, 79 v. 35; R. S. 1880, § 3300; April 15, 1873, 70 V. 129, § 24.) PoYPer of foreign corporations to lease. A foreign corporation having no charter from the state of Ohio, authorizing it to con- struct and operate a raih'oad in this state, cannot, by a transfer of a portion of a rail- road already constructed in the state by legal authority, acquire a right to use and operate such railroad within this state. — Ohio, etc., R. R. Co. V. Indianapolis, etc., R. R. Co., 5 A. L. Reg. (N. S.) 733 )1866). What roads are competing. The lines of two railroad companies which are in their general features parallel and com- peting, cannot be connected under this sec- tion. — State V. Vanderbilt, 37 Oh. St. 590 (1882). See Chapman v. Mad River, etc., R. R. Co., 6 Oh. St. 119 (1856). AVhat roads not competing. Roads running at right angles from point of connection cannot be said to be competing " in their general features or from a geo- graphical standpoint; " although there may be incidental competition on through or sea- board business. — See Burke v. Cleveland, etc., Ry. Co., 22 W. L. B. 11 (1889). Roads may be competing though they reach competing points by trackage arrangements ix-ith other lines. Hafer v. Cincinnati, etc., R. "R. Co., 29 W. L. B. 68 (1893). Roads may be competing though not actually cutting rates. Hafer v. Cincinnati, etc., R. R. Co., 29 W. L B. 68 (1893). What roads are connected. Two railroad companies owning lines of rail- road connected only by other railroads, which such railroads hold by lease, are not connected. — See State v. Vanderbilt, 37 Oh. St. 590 (1882). Roads joined by tracks of union com- pany are connected. Where roads are connected by the tracks of a union depot and terminal company, in which each has a proprietary interest, they are con- necting lines within the statute. — See Burke v. Cleveland, etc., Ry. Co., 22 W. L. B. 11 (1889). Aid by traffic guaranty and purchase of bonds. Aid may be extended by a traffic guaranty and purchase of bonds. — 0. & M. R. R. Co. v. Short, 3 W. L. B. 1143 (1879). Purchase of stock from stockholders of another company. A purchase of stock in a completed railroad company by another company from the stock- holders of such company is not authorized by this section. — Columbus, etc., Ry. Co. v. Burke, 19 W. L. B. 27 (1887). Purchase of stock in other companies. A purchase of all the stock of a mining com- pany by a railroad company can by no con- struction be brought within this section; for this section covers only subscriptions to stock of railroads in aid of construction. — Colum- bus,, etc., Rv. Co. y. Burke, 19 W. L. B. 27 (1887). Statute of frauds. A lease extending over three years must be acknowledged according to the statute of frauds. — Ohio, etc., R. R. Co. v. Indianapolis, etc.', R. R. Co., 5 A. L. Reg. (X. S.) 733 (1866). Covenant to pay interest. Where the lessee agreed to advance the money neeessaiy to pay the coupons on the bonds of the lessor, such advance to be paid out of subsequent earnings and not otherwise, the agreement will not be held to be harsh, opres.sive or inequitable, and not to be an agreement to loan money to an insolvent cor- poration, -iN hicli the court will not enforce. — Henry >'. Pittsburg, etc., Ry. Co., 2 N. P. 118 (1895); s. c, 5 Dec. 41. Rescission of lease. A lease can only be rescinded by the same consent of stockholders required to authorize a lease. — Henry v. Pittsburg, etc., Ry. Co., 2 N. P. 118 (1895) ; s. c, 5 Dec. 41. Railroad Corporations. 205 Leases, etc., of Other Roads, § 3300. Right of receiver to abrogate lease or contract. See New York, etc., R. R. Co. v. Railway Co., 58 Fed. 268 (1893); Investment Co. v. Railway Co., 41 Fed. 378 (1889). Specific performance. The specific performance of a lease will not be compelled by a court. — Henry v. Pitts- burg, etc., Ry. Co., 2 N. P. 118 (1895); s. c, 5 Dec. 41. See Port Clinton, etc., R. R. Co. v. Cleveland, etc., R. R. Co., 13 Oh. St. 544 (1862). Effect of lease or purchase on rights of original companies. Where the railroad of one company is pur- chased by another railroad company in pur- suance of this section, in the absence of any provision of law to the contrary, the road passes to the purchasing company subject to the same restrictions and limitations as to rates chargeable for transportation as at- tached to it in the hands of the vendor. — Campbell v. Marietta, etc., R. R. Co., 23 Oh. St. 168 (1872); Railway Co. v. Moore, 33 Oh. St. 384 (1878). Damages to landoirners. Where a railroad company has received from private parties, donations of lands, subscrip- tions of stock, and payments in money, in consideration that it should locate its road at a particular place, and allow private side track and warehouse privileges in connection therewith, the company will not be permitted to effectuate a change in fact (though not in name) of the line of its road away from such place, by getting up a new corporation and constructing a new road parallel with its old one, under a different charter, and permitting its old line to go to decay, without compen- sating the parties with whom it has con- tracted as aforesaid. — Chapman v. Mad River, etc., R. R. Co., 6 Oh. St. 119 (1856). Sale of stock subscriptions. This section does not confer authority to sell stock subscriptions. — See Railroad Co. v. Hinsdale, 45 Oh. St. 556 (1888). Release of stock subscriptions. When this section is in force at the time a subscription is made to the capital stock of a company, it becomes a part of the contract, and a sale theieafter made by the company of a part of its road under this section, does not release the subscriber, except when and as provided for by statute, unless by the sale the company has made the performance of the conditions of the subscription impossible. — Armstrong v. Karshner, 47 Oh. St. 276 (1890). Liability for personal injury. Where the defendant made an arrangement with the D. company whereby it gave to the latter company the right to construct a track on the side of defendant's roadbed for the purpose of connecting thp road of the D. com- pany with defendant's road, the connecting track passing over a bridge previously con- structed by defendant for its track, and which foot-passengers had been permitted to use for the purpose of transit. The plaintiff, in pass- ing on foot, fell through the same, between the rails of the connecting track, and was in- jured by reason of the defective covering; held, the defendant having no interest in or control over the track, cannot he held liable. — Gwathney v. Little Miami R. R. Co., 12 Oh. St. 92 (1861). Liability of lessor to rebuild. At common law, in the absence of express covenant in a lease, the lessor is not bound to make repairs, additions, or improvements to the leased property, or to rebuild struc- tures thereon which have become unfit for use, nor is there any implied covenant that the property is fit for the purpose for which it is leased. The fact that the demised property is a railroad does not affect the application of those principles. — Felton v. City of Cincin- nati, 95 Fed. 336 (1899). Voting pool of stockholders to effect arrangement under this section. An agreement of stockholders for putting I heir stock into the hands of a depositoiy to vote it as directed by a committee appointed by themselves, the purpose being to pass the control of the road to another company, is not illegal under this act. — State v. Ohio, etc., R. R. Co., 6 0. C. C. 415; =. c, 3 C. D. 518; s. c, 49 Oh. St. 668 (1892). Void conditions subsequent. Where the lease contains a condition pi-o- hibiting the lessee from receiving for trans- portation property from certain connecting roads, it is a condition subsequent which is void as against public policy. — Metropolitan Trust Co. V. Columbus, etc., Ev. Co., 95 Fed. 18 (1899). Corporations created prior to 1851. Railroad companies incorporated prior to the adoption of the constitution of 1851, and which avail themselves of this section either by taking or making leases, are to be regarded as thereby relinquishing all rights inconsistent with title 2 according to the provisions of § 3233. — Cincinnati, etc., E. R. Co. v. Cole, 29 Oh. St. 126 (1876). What roads could be leased under old act. Prior to the act of March 14, 1882, only constructed roads could be leased or purchased under this act. — See Railroad Co. v. Hins- dale, 45 Oh. St. .556 (1888). Traffic agreement not an " appurte- nance" of the road so as to be included in sale by receiver. See Cincinnati, etc., R. R. Co. v. Cincinnati, etc., Ry. Co., 6 N. P. 427 (1899); s. c, 9 Dec. 493. 206 Private Corporations in Ohio. Leases, etc., of Other Roads, §§ 3301-3303. When injunction granted to enforce traiEc agreement. See Railroad Co. v. Railroad Co., 1 0. C. C. 100 (188.5). Traiiic arrangement charges. A company can only charge a reasonable price for use of tracks. — See Toledo, etc., R. K. Co. V. Railway Co., 7 N. P. 376 (1894). § 3301. ASSENT OF STOCKHOLDERS — RENT. — No such aid shall be fur- nished, nor any purchase or lease perfected, until a meeting of the stockholders of each of the companies has been called for that purpose by the directors thereof, on thirty- days' notice to each stockholder, at such place and in such manner as is provided for the annual meetings of the companies, and the holders of at least two-thirds of the stock of each company, in person or by proxy, at such meeting, assent thereto; and in case of the lease of any railroad situate in whole or in part within this state, the rental reserved and secured for the leased road shall be equal, at least, to the net earnings of the same for the fiscal year next preceding the one in which the lease is made. (April 17, 1892, 79 v. Ill; Rev. Stat. 1880; April 15, 1873, 70 v. 129, § 24 [§ 1].)- Waiver of assent. Where a lease is made without the stock- holders' assent, their acquiescence in the lease for a long period will be held to be a waiver of the requirement of the statute. — See St. X/ouis, etc., R. R. Co. v. Terre Haute, etc., R. R. Co., 33 Fed. 440 (1888) ; s. c, 145 U. S. 393; Zabriskie v. Cleveland, etc., R. R. Co., 64 U. S. 381 (1859). Validity of assent obtained ontside of meeting. In construing a Nebraska statute similar to this section the court said : " The stockhold- ers' meeting, and the vote in such, meeting on the question of assenting to the proposed lease, are matters of essence, of substance, and not of mere form, and their assent individually obtained outside of such meeting, and in the absence of deliberation, would bind no one. — Peters v. Lincoln, ate, R. R. Co., 12 Fed. 513 (1881). Form of assent. The statute does not require the assent to be in any particular form, and the circum- stances will be looked to for light on that question. — See Humphreys v. St. Louis, etc., Ry. Co., 37 Fed. 307 (1889). § 3302. RIGHTS OF NON-ASSENTING STOCKHOLDERS. — A stockholder who refuses his assent to such sale, lease, or aid by subscription, and signifies the same by notice, in writing, to the purchaser or lessee, within sixty days thereafter, shall be •entitled to demand and receive from such purchaser or lessee, previous to the con- summation of such sale or lease, the average market value of his stock for six months next preceding the day of the meeting of the companies at which the sale or lease is approved, on the surrender of his stock; and if the stockholder and the purchaser or lessee cannot agree as to the value of the stock, the parties may submit the question to arbitration, which shall be conducted in accordance with the provisions of law regu- lating arbitrations, so far as the same may be applicable, by three disinterested per- sons, to be appointed upon the motion of either of the parties, by the judge of the court of common pleas of the county in which the owner of the stock resides, or, in case he is a non-resident of the state, or of any county through or into which the road passes, then in the county in which the principal office of the company is kept. (April 15, 1873, 70 v. 129, § 24 [§ 2].) Arbitration. See as to arbitration under a similar sec- tion. Railway Co. v. Garrett, 50 Oh. St. 405 (1893). Application to street railroad com- panies. See §§ 2505a and 2505z. § 3303. ARBITRATION. — If any such stockholder refuse to submit the ques- tion to arbitration, the proper judge shall, upon the application of a director of either of the companies parties to the contract, appoint the arbitrators, who shall proceed to ascertain the value of the stock in the same manner as if the question had been sub- mitted by consent of both parties; and if the party owning the stock refuse to receive the amount awarded in any case, the company may deposit the same with the clerk of the court of common pleas of the county in which the arbitration is held, which Railroad Corporations. 207 Leases, etc., of Other Roads, §§ 3304-3305. deposit shall operate the same as if payment were made to the owner of the stock. (April 15, 1873, 70 v. 129, § 24 [§ 2].) Eailway Co. v. Garrett, 50 Oh. St. 405 (1893). Application to street railroad com- panies. See §§ 2505a and 2505c. § 3304. NOTICE OP ARBITRATION. — In all cases of arbitration under the two preceding sections, the party desiring such arbitration shall give the opposite party at least ten days' notice of his intention to apply to the judge for the appointment of arbitrators, which notice shall be served in the same manner as is provided for the service of a summons, and shall specify the time and place of the hearing of the appli- cation; but in cases of non-residents the notice shall be by publication for four con- secutive weeks, in some newspaper printed in the county. (April 15, 1873, 70 v. 129, §24[§3].) Application to street railroad companies. See §§ 2505a and 2505c. § 3305. SECURITY FOR RENT — LIABILITIES. — No company shall lease its road, or any part thereof, to any other company, whether of this or any other state, as hereinbefore provided, unless the lessor receive full and adequate security for the payment of the rental and for the preservation of the property of the lessor, in as good condition as on entering into possession, and if the lessee fail to pay. such rental promptly when due, such lease shall be void, at the option of the lessor; and the com- pany to whom any railroad is leased, if a corporation of any other state, shall be sub- ject to all the restrictions, disabilities, and duties of a railroad company incorporated within this state; and notwithstanding such lease the corporation of this state lessor therein, shall remain liable as if it operated the road itself, and both the lessor and lessee shall be jointly liable upon all rights of action accruing to any person for any negligence or default growing out of the operation and maintenance of such railroad, or in any wise connected therewith, and may be jointly sued in any of the courts of this state of proper jurisdiction, and prosecuted to final judgment therein as in other cases of joint liability; and provided that service may be had upon said companies, or either of them, by the service of process upon any officer or agent of either of said companies. (April 13, 1883, 80 v. 116; Rev. Stat. 1880; April 15, 1873, 70 v. 129, § 24 [§ 4] . Order cancelling lease — appeal by stockholder. A judgment ordering the cancellation of a railroad lease may be appealed from by u, stockholder of the lessor under § 5226 as a person directly aflfected thereby when there is reason to believe that the officers of the lessor are acting in the interest of the plain- tiff.— Henry V. Jeanes, 47 Oh. St. 116 (1890) ; s. c., 48 Oh. St. 443. Liability of lessor for acts of employees of receiver of lessee. This section does not operate to give a right of action against a lessor companj' for negli- gent acts of the employees of a receiver who is operating the road as receiver of the lessee. — Chamberlain v. New York, etc., R. R. Co., 36 W. L. B. SI (1890), 71 Fed. 636. See Cald- well V. Pittsburg, etc., R. R. Co., 33 W. L. B. 134 (1894). Liability of lessor under old law. See Cincinnati, etc.; Ry. Co. v. Sleeper, 3 A. L. R. 464 (1874). Liability of lessor at common laiv. See Fisher v. Baltimore, etc., R. R. Co., 3 N. P. 283 (1890) ; s. c, 6 Dec. 67. Miami R. R. Co., 12: Gwathney v. Little Oh. St. 92 (1861). Lessor liable for fires. Where damage is caused by a fire originat- ing from the negligence of the lessee, both lessor and lessee are liable. — Fisher v. Balti- more, etc., R. R. Co., 3 N. P. 283 (1896) ; s. c, 6 Dec. 67. Service of process. See Collins v. Baltimore, etc., R. R. Co., T N, P, 270 (1898) ; s. c, 7 Dec, 445. Liability is joint and severable. This section does not require both com- panies to be sued, as they are jointly and severally liable. — Stoltz v. Baltimore, etc, R, R, Co,, 7 N, P, 120 (1897), See as to re- moval to court, Spangler v. R. R. Co., 42' Fed, 305 (1890), Statute of limitations. Commencing suit against one company will not save the running of the statute against the other, — Stoltz v, Baltimore, etc, R, R. Co,, 7 X, P, 129 (1897). 208 Private Corporations in Ohio. Extension of Line, Increase of Stock, §§ 3306-3308. § 3306. EXTENSION OF LINE. — When a company desires to extend the line of its road beyond either of its previously designated termini, the president and directors of the company may submit the question of such extension and change of termini to a meeting of its stockholders, to be called for that purpose, by notice pub- lished for four consecutive weeks in some newspaper in general circulation in each county through or into which it passes; and if the holders of the majority of the stock, in person or by proxy, so determine, the president and directors, or a majority of them, shall make a certificate of the fact, naming the places of the new terminus or termini of the road, and the county or counties through or into which the extended line will pass, and file it in the ofla.ce of the secretary of state, and such certificate and extension shall be considered and held to be a part of the original line of the road. (March 20, 1875, 72 v. 70, § 2.) Extension — effect of mortgage. There is nothing in the statute of Ohio re- lating to the extension of lines of railroad which has the effect of extending a railroad mortgage, by operation of law, to cover after- acquired property which would not be included by the terms of the mortgage, construed by the rules of the common law. — Louisville Trust Co. V. Cincinnati, etc., Ry. Co., 91 Fed. 699 (1897) ; s. c, 10 0. F. D. 646. § 3307. INCREASE OP STOCK. — A company may increase its capital stock, as hereinafter provided, whenever in the opinion of the directors the same is insuflicient for the construction of its road, or it becomes necessary for the speedy and convenient transaction of its business to construct a second additional track, extend its line or construct branches thereof, increase its machinery, rolling stock, depots, or other fix- tures, or for the purpose of paying any bonds issued or guaranteed by it, or for the purchase of any railroad vithin this state which has been or may hereafter be sold by a judicial order or decree, or for completing its line of road, or liquidating or paying off any unfunded or floating debt, or other liabilities incurred in the construction or equipment of its road, or for the purpose of extending the same or constructing branches as authorized, or for either or all the purposes aforesaid. (May 5, 1873, 70 V. 289, § 1; March 29, 1875, 72 v. 91, § 1.) Stock dividends. Where a railroad, having power to increase its stock, paid a stock dividend, a, holder of bonds convertible into stock., who has been paid interest on the bonds, cannot on convert- ing his bonds into stock claim the stock divi- dend. — Sutliff V. Cleveland, etc., R. R, Co., 24 Oh. St. 147 (1873). What is not an increase. Where the authorized stock of a company has not been subscribed, though the company has been in existence for some time, an issue of such stock by the directors is not an in- crease of the stock so as to require the direct- ors to offer the stock to the stockholders. — Sims V. Street R. R. Co., 37 Oh St 5-56 (1882). Irregularities in increase. Irregularities in the proceedings to increase the stock, e. g., that no notice of the meet- ing of stockholders was given, will not defeat an action to recover on a subscription for such increased stock for the purpose of paying debts, where such subscriber having knowl- edge of the facts, acquiesced until the company became insolvent. — Clarke v. Thomas, 34 Oh. St. 46 (1877); Turnbull v. Pomeroy Salt Co., 24 W. L. B. 133 (1890). See Farmers' Loom, etc., Co. V. Toledo, etc., Ry. Co., 67 Fed. 49 (1895); s. u., 9 0. F. D. 242.' See generally § 3262 and notes. § 3308. STOCKHOLDERS' MEETING, NOTICE, VOTE.— Before any stock shall be issued under the last section a majority of the directors shall call a meeting of the stockholders, designating distinctly the time, place, and purpose of the meeting, and the amount of stock required, which meeting shall be held at the principal busi- ness office of the company in this state, and notice of which shall be given for at least thirty days previous, by continued publication in at least two newspapers pub- lished and of general circulation in the state, and by a like notice, mailed thirty days previous to the time named for the meeting, to each stockholder whose residence is known; and if at such meeting the consent of the holders of a majority of the stock upon which they would be entitled to vote at an election of directors of the company Railroad Corporations. 209 Common or Preferred Stock — Bond Issues, §§ 3309-3309a. Ibe given, the stock of the company may be increased to such amount as may be decided necessary or requisite for the purposes named in the preceding section. (March 14, 1876, 73 v. 25, § 2.) "Who may vote. See § 3296. § 3309. COMHON OR PREFERRED STOCK; CONDITIONS. — The increased stock may be " common " or " preferred," as shall be designated in the call for the 3neeting of the stockholders; if preferred stock be issued, the company may guarantee ■to the holders thereof semi-annual or quarterly dividends, to an amount not exceed- ing six per centum per annum, payable at its ofSce, or at such other place as the directors may designate; the stock may be sold at such time and place, either within or without the state, as may be deemed advisable and the proceeds thereof applied to -the purposes for which it is issued; the unpref erred stock of the company shall be ■entitled to dividends only out of the surplus of the profits, after setting apart a sum sufficient to pay the dividends upon the preferred stock, and the company which issues such preferred stock shall reserve the privilege of redeeming and cancelling the same at par, at any time after three years from the date of its issue; and the preferred stock herein provided for may be convertible into bonds of the company at the option of the parties. (May 5, 1873, 70 v. 289, § 3.) See generally §§ 323.5, 3263, and notes. § 3309a. BOND ISSUES BY CONSOLIDATED AND OTHER COMPANIES. — Any railroad company now or hereafter organized under the laws of this state, and any such company which now is or shall hereafter be consolidated with other ■companies, as provided in sections thirty-three hundred and seventy-nine, thirty-three iundred and eighty, thirty-three hundred and eighty-one and thirty-three hundred and eighty-two of the Revised Statutes, niay, at a meeting of its stockholders, called as provided in section thirty-three hundred and eight, in lieu of issuing preferred stock as provided in section thirty-three hundred and nine, provide for borrowing Tnoney to locate, construct and equip its proposed line of railway, or for the purpose of leasing or purchasing and equipping branch or connecting roads constructed or in pro- <:ess of construction, not exceeding ten miles in length, or for redeeming or exchanging any part or all of its previously issued bonds, or for funding its floating debt, or for any or all of said purposes, in such an amount as it may deem necessary, not exceeding Its authorized capital stock, but companies formed by consolidation of one or more companies of this state or of this state with one or more companies of other states as provided in sections 3379 and 3380, may issue bonds in excess of such capital stock and at such rates of interest as may be agreed upon between the respective parties, not exceeding seven per cent, per annum, payable semi-annually or quarterly, as they may direct, and may execute and issue securities therefor, and to secure the payment thereof may pledge the entire property and net income of such company by mortgage or otherwise, and any railroad company formed by the consolidation of two or more Tailroad companies existing under the laws of this state or any railroad company iormed by the consolidation of one or more companies created by or existing under the laws of this state and any other state or states, with a railroad company or companies of this state or any other state, may, from time to time, if authorized by the vote in 3)erson or proxy of holders of two-thirds (2-3) of the full paid-up stock of such con- solidated railroad company present and voting at meetings of stockholders, called as aforesaid, issue its bonds, convertible or otherwise, into stock, bearing a rate of inter- «st not exceeding six per centum per annum, for one or more of the following pur- poses: Paying, redeeming or funding debts or obligations assumed, incurred or created by it or either of its predecessors or constituent companies, compromising claims made against it or either of its predecessors or constituent companies, purchas- ing the whole or any part of any railroad held by it under lease to, or operating con- I,AW GOV. PRIV. COR. — 14. 210 Private Corporations in Ohio. Classification of Stock — Electricity, §§ 3309b-3310-l. tract with it or either of its predecessors or constituent companies acquiring the whole or any part of the stock or bonds of any railroad company owning a railroad held by such consolidated railroad company under lease or operating contract, acquiring the whole or any part of the bonds, notes or other obligations of any other railroad com- pany of this or any other state, the whole or a majority of whose capital stock shall be held by such consolidated railroad company, completing, extending, improving, main- taining or operating its road, branches or lines, held under lease or contract, laying double or additional track, purchasing rolling stock, building depots, elevators or shops, and generally for any purpose needed in its business, and may, if the directors shall so determine, secure such issue or issues of bonds by mortgage or pledge of any or all of its real or personal estate or franchise or income. Said securities may be expressed in dollars or in the currency of the country where disposed of and may be disposed of upon such terms and at such prices as may be agreed upon between the respective par- ties not inconsistent with the laws of this state. The proceeds of sale of such securities shall be applied only as now required by law; provided, that nothing in this section or in the sections of the Revised Statutes relating to railroad companies, prior to sec- tion thirty-four hundred and thirty-seven, other than in sections thirty-two hundred and eighty-seven, thirty-two hundred and eighty-eight, and thirty-two hundred and eighty-nine shall be construed as affecting street railroads. (April 14, 1880, 77 v. ,206; April 19, 1881, 78 v. 230; March 13, 1883, 80 v. 55; March 20, 1884, 81 v. 57; April H, 1890, 87 v. 181; March 10, 1892, 89 v. 82; April 27, 1896, 92 v. 415.) Street railroads — application of stat- utes. By this section §§ 3207 and 3211 and § 3231-1 have no application to street rail- roads, but see §§ 2o05a, 2505b, 250,5z. — Mas- silon Bridge Co. v. Cambria Iron Co., 59 Oh. St. 179 (1898). § 3309b. CLASSIFICATION" OF STOCK.— Any railroad company hereafter formed may, in its article of incorporation, provide for the division of its capital stock into common stock and classes of preferred stock by stating therein the amount of each kind and class of stock, the par value of the respective shares thereof, and the vote which shares of each class shall have. And it may further provide in such, articles, terms and conditions of such preferred stock in addition to and not incon- sistent with the provisions of section 3309. (April 2, 1891, 88 v. 267.) See generally § 3235 and notes. § 3310. FACTS TO BE CEETIFIED TO SECRETARY OF STATE.— Within ten. days after such meeting the president and secretary of the company shall make an abstract, stating the whole amount of pre-existing capital stock, the amount author- ized, the number of shares of stock upon which all the installments called for by tha board of directorc have been paid, and the vote at the meeting, and add a, certificate that the provisions of the two preceding sections have been fully complied with; and. they shall make affidavit to such abstract and statement, and file the same in the office of the secretary of state, who shall cause the same to be recorded. (March 14, 1876, 73 V. 25, § 4.) § 3310-1. ELECTRICITY AS MOTIVE POWER.— Upon any railroad heretofore or hei-eafter constructed in this state, electricity may be used as a motive power in the propulsion of cars; provided, however, that before any line of poles and wires shall be constructed through or along the streets, alleys or public grounds of any municipal corporation, plans of such construction shall be submitted to and approved by the council of such municipal corporation. (May 21, 1894, 91 v. 397.) Hamlet trustees included. Trustees of a hamlet are included in the word 78 (1897); s. c, 8 C. D. 24. ' council." — In re Newburgh, 15 0. C. C. Railroad Corporations. 211 Principal Office — Liability of Directors, etc., §§ 3311-3314. § 3311. PRINCIPAL OFFICE, WHERE ESTABLISHED.— Each company shall, as soon as convenient after its organization, establish a principal or (general) office at some point on the line of its road (or on the line of any road within this state with which it connects or has running arrangements), and may change the same at pleas- ure, and shall give public notice of such establishment or change in some newspaper published on its line within this state; and the office of the president, secretary and treasurer of the company shall be kept at such principal or general office, or at some other point on the line of the road of the company within this state, and a record kept there of all the proceedings of the company, to be open at reasonable hours to the inspection of any stockholders of the company. (April 9, 1880, 77 v. 153; R. S. 1880; May 1, 1852, 50 v. 274, § 17.) Forfeiture of franchise for failure to maintain office. See Simmons v. Norfolk, etc., Co., 11.3 N. C. 147 (1893); State v. Milwaukee, etc., R. R. Co., 45 Wis. 579 (1878); People v. Kingston Co., 23 Wend. (N. Y.) 193 (1840); State v. Soutk Pae. Co., 24 Tex. 80 (1859). Inspection of books. See § 3254 and notes. Application of section to mining com- panies. Where a mining company has built a rail- road under § 3866, it can only change the principal office of its railroad under this sec- tion, and its principal - place of business can only be changed under § 3238a. — State v. Coal Co., 4 N. P. 115 (1897) ; s. c, 6 Dec. ITS; Snow Fork, etc., Co. v. Hocking, etc., R. R. Co., 7 N. P. 191 (1897) ; s. c, 6 Dec. 178. § 3313. SECURITIES SOLD TO DIRECTORS UNDER PAR, VOID.— All capital stock, bonds, notes, or other securities of a company, purchased of a company by a director thereof, either directly or indirectly, for less than the par value thereof, shall be null and void. (April 27, 1872, 69 v. 173, § 2.) Purchase from third persons. The purchase by a director of a corporation of bonds already sold in good faith to a third party, although such purchase be at less than par, does not fall within this section. — Con- tinental Trust Co. V. Toledo, etc., R. R. Co., 86 Fed. 929 (1898); Toledo, etc., R. R. Co. v. Continental Trust Co., 95 Fed. 497 (1899). Return of amount paid. Where bonds have been purchased by a di- rector for less than par, and the company has paid interest regularly for a long time, it can- not repudiate the transaction without return- ing to the director the consideration paid. — Shoemaker v. Dayton, etc., R. R. Co., 19 W. L. B. 322 (1888). Mortgage is void. The issue and delivery by a railroad cor- poration of fifty millions of dollars of paid-up stock and fifteen millions of dollars of bonds secured by a mortgage on the railroad, in con- sideration of eighteen millions of dollars cash paid to the corporation by a syndicate, of which the directors are members, is unlawful, contrary to public policy and to this section, and such stocks and bonds are void, although the bonds may be enforceable by bona fide holders of the same, yet the mortgage is not negotiable, and it is void, although owned by a bona fide holder. — Union Trust Co. v. New York, etc., R. R. Co., 17 W. L. B. 176 (1887). Duty of directors with reference to stock. It is the duty of directors to use their best efforts to advance the value of the stock of their company, to restore, if lost, confidence therein, and to advise holders of the stock of its real value; and not by combinations and arrangements place themselves in a position of using their superior knowledge of its value to depress such value and purchase large quantities of stock at prices far below its real value. — See Cincinnati, etc., R. R. Co. v. Duckworth, 2 0. C. C. 518 (1887); a. c, 1 C. D. 618. § 3314. LIABILITY OP DIRECTORS FOR IVaSMANAGEMENT.— The directors shall be liable in their individual capacity to the stockholders for any damage sus- tained by the stockholders by reason of the negligence, mismanagement, or unfaith- fulness in the discharge of their duties; but a director may exonerate himself by entering his protest upon the record against any act done without his concurrence from which injury is feared, and forthwith publishing the same for three weeks in some newspaper printed and of general circulation in the county in which is the prin- cipal office of the company. (May 1, 1854, 52 v. 91, § 3.) See § 3248 and notes, and notice the liability imposed by this section is not to the cor- poration, but to the stockholders. 212 Private Corporations in Ohio. Eligibility to Office — Bridging Navigable "Waters, etc., §§ 3315-3317. § 3315. CERTAIN PERSONS INELIGIBLE TO OFFICE.— No person who is a stockholder, owner, or pari owner of any express, despatch, fast freight, or trans- portation company, whethei' incorporated or not, which has for its object, or one of its objects, the shipment of freight or the transportation of persons over any railroad in the United States, or who is in any way pecuniarily interested in any company or part- nership formed for any such or like purpose, shall perform the duties of, or be elected or appointed to, any office of profit or trust in any railroad company, or employed as freight or ticket agent thereof; and all such persons shall be ineligible to any such office or appointment. (April 6, 1866, 63 v. 156, § 1.) JSimilar acts in other states. See laws of Pennsylvania, Wisconsin, and Missouri. § 3316. ACTS OP SUCH DIRECTORS VOID, PENALTIES.— If any person be elected to an office, or appointed to a position, or perform duties, in violation of the preceding s",ction, all his official acts shall be null and void; and for every day that he exercisjs or attempts to exercise the functions of such office or appointment, he shall forfeit and pay the sum of fifty dollars, to be recovered at the suit of any stock- holder of the company, in the name of the company, one-half of which shall go into the treasury of the company, and the other to the stockholder prosecuting. (April 6, 1866, 63 V. 156, § 2.) § 3317. HOW AUTHORITY OBTAINED TO BRIDGE CANALS OR NAVIGABLE WATERS. — When the line of the road of a company crosses a canal or any navigable water, the company shall file with the board of public works, or with the acting com- missioner thereof having charge of the public works where such crossing is proposed, the plan of the bridge, and other fixtures for crossing such canal or navigable water, which shall designate the place of crossing; if the board or acting commissioner approve such plan, he shall notify the company, in writing, of such approval; but if. the board or acting commissioner disapprove such plan, or fail to approve the same within twenty days from the filing thereof, the company may apply to the court of common pleas, or a judge thereof in vacation, and upon reasonable notice being given to the members of the board of public works, or said acting commissioner, the court or judge shall, upon good cause shown, appoint a competent, disinterested engineer, not a resident of any county through which the road passes, to examine such crossing, and prescribe the plan and condition thereof, so as not to impede navigation; such engineer shall, within twenty days from his appointment, make his return to the court of common pleas of the county wherein such crossing is to be made, subject to exception by either party; thereupon the court shall, at the next term after the filing of the return, proceed to examine the return, and approve and confirm the same, unless good cause be shown against such approval; and such order of confirmation shall be sufficient authority for the erection, use, and occupancy of such bridge, in accordance with such plan; but no company shall construct over any canal any per- manent bridge less than ten feet in the clear above the top water-line of the canal; and the piers and abutments of such bridge shall be placed so as not in any manner to contract the width of the canal, or interfere with free passage on the tow-path; but this section shall not be construed to prevent the construction or continuance of draw-bridges which do not interrupt navigation. (May 1, 1852, 50 v. 274, 8 20; 30 V. 205, §§ 4, 5.) ■What plans cannot be approved. The court has no powpr to approve the plan for the construction of a bridge where the bridge is to be less than ten feet above the top water-line of the eanal, or where the piers or abutments interfere with navigation. — State ex rel. v. Eailway Co., 37 Oh. St. 157, 173 (1881). Powers of acting commissioner. This section gives the same power to the acting* commissioner as to the whole board, consequently they act independentlv of each other. The board cannot control, modify or reverse a deeision of the acting commissioner. — Works V. .Timction E. R. Co., 5 JIcLain (U. S.) 42,5 (1853) : b. c, 3 0. F. D. 101. Railroad Corporations. 213 Bridges, etc.— When Passenger Trains Must Stop, §§ 3318-3330. Charter must give right to cross. The right to cross a navigable water by a railroad bridge must be given by the sovereign power, by special or general act. Where this is not done, neither the board of public works nor an acting commissioner can approve the plan of a proposed bridge. The board has no power to grant leave to cross the navigable water. — Works v. Junction E. R. Co., 5 Mc- Lain (U. S.) 425 (1853) ; s. c, 3 0. F. D. 101. Jurisdiction of commissioner. " Having charge of the public works, where such crossing is proposed," means that such place shall be within the territorial jurisdic- tion of the commissioner. — Works v. Junc- tion R. R. Co.. 5 McLain (U. S.) 425 (1853) ; s. c, 3 0. F. D. 101. What are navigable ivaters. The words " navigable waters " are used in no restricted sense ; they embrace all waters within the state, which are navigable by the works of art or nature. — Works v. Junction R. R. Co., 5 McLain (U. S.) 425 (1853) ; s. c, 3 0. F. D. 101. PoTver of congress. Under the power to regulate commerce, con- gress has power to prevent the obstruction of any navigable river, which is a, means of com- merce between any two or more states. The exercise of this great public right is not in- compatible with the enjoyment of local rights. The public right consists in an unobstructed use of a navigable water connecting two or more states. The local right is to cross such water. The general commercial right is para- mount to all state authority. — See Lake Shore, etc., Ry. Co. v. Ohio, 165 U. S. 365 (1897) ; Works v. Junction R. R. Co., 5 Mc- Lain (U. S.) 425 (1853) ; s. c, 3 0. F. D. 101. Remedy. See as to quo warranto in circuit court. — Lake Shore, etc., Rv. Co. v. State, (Sup. Ct.) 33 W. L. B. 169 (1894). § 3318. ESTABLISHED BRIDGES. — All railroad bridges erected prior to May 1, 1852, over any navigable canal, feeder, slack-water improvement, river, stream, lake, or reservoir, not less than ten feet in the clear above the top water line, shall remain undisturbed by the board of public works. (May 1, 1852y 50 v. 305, § 4.) § 3319. ENFORCEMENT BY ATTORNEY-GENEBAL.— If a company refuse to comply with any of the provisions of section thirty-three hundred and seventeen the attorney-general, on being notified thereof, shall immediately institute proper legal proceedings, in the name of the state, against such company, for the purpose of enforcing the provisions thereof. (May 1, 1852, 50 v. 305, § 5.) § 3330. PASSENGER TRAINS MUST STOP AT CERTAIN STATIONS.— Each company shall cause three, each way, of its regular trains carrying passengers, if so ipany are run daily, Sundays excepted, to stop at a station, city, or village, containing over three thousand inhabitants, for a time sufficient to receive and let ofE passengers; if a company, or any agent or employe thereof, violate, or cause or permit to be vio- lated, this provision, such company, agent, or employe shall be liable to a forfeiture of not more than one hundred nor less than twenty-five dollars, to be recovered in an action in the name of the state, upon the complaint of any person, before a justice of the peace of the county in which the violation occurs, for the benefit of the general fund of the county; and in all cases in which a forfeiture occurs under the provisions of this section, the company whose agent or employe caused or permitted such viola- tion shall be liable for the amount of the forfeiture, and the conductor in charge of such train shall be kald, prima faeie, to have caused the violation. (April 13, 1889 86 V. 391; April 13, 1867, 64 v. 143, § 36.) PoTver of company to malce regulations. In the absence of statutory provision to the contrary, a railroad company may adopt a regulation that a certain train or trains of passenger cars running regularly on its road shall not stop at designated stations or places ; and one traveling as a passenger on such road is bound to inquire whether the train upon which he takes passage stops at the station or place to which he is going. A passenger who is on a, train not stopping at the station he desires may be put off if he is unwilling to pay the regular fare to a station at which the train does stop. — Pennsylvania Co. v. Wentz 37 Oh. St. 333 (1881). Regulations subject to statutes. The power of a railway company to adopt and enforce regulations that certain trains shall not stop at all places is subject to legis- lative control, and by this section is taken away as to cities of three thousand inhabit- ants.— Pennsylvania Co. V. Wentz, 37 Oh. St. 333 (1881). Where the laws make provision for the stopping of trains at certain places, all tickets 214 Private Corporations in Ohio. Taxes, Time of Trains, Waiting Booms, §§ 3321-3331-3. and contracts must be construed with refer- ence to such laws, and a contract recognizing the validity of a regulation disregarding such laws is invalid. — Pennsylvania Co. v. Wentz, 37 Oh. St. 333 (1881). Constitutionality. This section is a valid exercise of the police power of the state, and does not violate the interstate commerce clause of the constitution of the United States, and is valid until con- gress passes an act inconsistent with it. — Lake Shore, etc., Ry. Co. v. State ex rel. Law- rence, 8 0. C. C. Rep. 220 (1894) ; s. c, 4 C. D. 406; s. c, 37 W. L. B. 196; Lake Shore, etc., Ry. Co. v. State ex rel. Lawrence, 173 U. S. 285 (1899). Not conflicting with federal statutes. This section is not inconsistent with § 5258, Rev. Stat. U. S. — Lake Shore, etc., Ry. Co. v. State ex rel. Lawrence, 8 0. C. C. 220 (1894) ; e. c, 4 C. D. 406. § 3321. TAXES ON LAND OCCUPIED AS RIGHT OF WAY. — Each company owning and occupying any right of way or easement in lands, either by agreement with the owners, or by virtue of any appropriation proceeding, shall present to the auditor of the county in which such land is situate a statement of the quantity of land embraced within such right of way or easement, and such quantity shall be deducted by the auditor from the land on the tax duplicate, so that the owners thereof shall not be required to pay taxes thereon; a company hereafter becoming the owner and occupant of any such right of way or easement shall, within six months there- after, present such statement to the auditor; and upon the failure of the company to make such statement, the owner of the land may make the same. (March 23, 1875, 72 V. 71, § 8.) §3321-1. § 1. POSTING TIME OP ARRIVAL OF TRAINS. — Every company or person operating a railroad within this state, shall immediately after the taking effect of this act, cause to be placed in a conspicuous place in each passenger depot of such company, located at any station in this state at which there is a telegraph office, a, blackboard, at least four feet in length and two feet in width, upon which board such company or person shall cause to be written, at least ten minutes before the schedule time for the arrival of each passenger train stopping regularly upon such road at such station, the fact whether such train is on schedule time or not, and if' late, how much. (May 8, 1886, 83 v. 118.) Constitutionality. The discrimination in this section between stations having telegraph offices and those without such offices does not render the section unconstitutional. — Pennsylvania Co. v. State, 142 Ind. 428 (1895). § 3321-2. § 2. PENALTIES FOR VIOLATION. — That for each violation of the provisions of this act, such company or person so neglecting or refusing to comply with the provisions of this act, shall forfeit and pay the sum of ten dollars ($10,00) to be recovered in a civil action in the name of the state of Ohio, one-half of which shall go to the party commencing proceedings, and the remainder shall be paid over to the treasurer of the township, village or city in which such proceedings are had. (May 8, 1886, 83 v. 118.) No penalty for each failure to post. This section does not provide a penalty for the refusal or neglect to comply with any of its provisions, as, for instance, the refusal to schedule the train, etc., but for the refusal or neglect to comply with the entire provisions of the act, or each violation of the entire pro- visions of the section. A failure to erect a blackboard at a proper station is a violation of the section. A penalty of ten dollars only can be recovered for failure to provide a black- board, or to register the arrival of trains at a station, within the terms of the section, with- out any reference to the violation of each or any of the separate provisions of the section. — 'state ex rel. McClurg v. Railroad Co., 8 O. G. C. 604 (1894) ; s. c, 4 C. D. 372. Jurisdiction. The action to recover a penalty under this section can only be brought before a justice of the peace or a maj'or. — State ex rel. McClurg V. Railroad Co., S 0. C. C. 604 (1894) ; s. e., 4 C. D. 372. § 3321-3. § 1. WAITING ROOMS AT RAILROAD STATIONS. — That every person, firm or corporation operating a. steam railroad wholly, or in part, within the state of Ohio, be required to provide a suitable waiting room at each station where Railroad Corporations. 215 Waiting Rooms; Eight of Way; Road Crossings, §§ 3321-4-3323. passenger trains or any of them^ of such road, are regularly scheduled to stop, for the use of the traveling public. Said waiting rooms to be maintained and kept as to be conducive to the health and comfort of the patrons of such railroad. (April 16, 1900, 94 V. 231.) § 3321-4. § 2. DUTY OP COMMISSIONER OP RAILROADS.— Upon the writ- ten complaint of ten or more citizens of the state of Ohio being filed with the said commissioner that any of the provisions of this act are being violated, at such sta- tion, the said commissioner shall forthwith make investigation of the same; and if upon such investigation it be found that such violation exists, he shall issue an order to the person, firm or corporation guilty of such violation, setting forth the nature of the improvement required and directing that the same be completed within a time to be specified therein. (April 16, 1900, 94 v. 231.) § 3321-5. § 3. PENALTY AND ENFORCEMENT.— Any person, firm or cor- poration failing to comply with an order of said commissioner, or any of the provi- sions, of this act, shall, upon conviction therefor before a court of common pleas of the county in which such violation shall occur, forfeit and pay any sum not less than one hundred dollars. Such forfeiture or penalty to be recovered in a civil action in the name of the state of Ohio, for the benefit of the county in which such failure or violation shall occur; such action to be brought by the prosecuting attorney of the county in which the violation of this act occurs, at the instance of the commissioner of railroads and telegraphs, as provided in other cases for the recovery of penalties and forfeitures against railroad companies. Said prosecuting attorney shall receive, for his services ten per cent, of all fines and costs recovered under the provisions of this act. (April 16, 1900, 94 v. 231.) § 3322. RIGHT OP WAY PAPERS TO BE RECORDED.— When the grant of such right of way or easement is not in the form of a lawfully executed deed or lease, the recorder of the county where the land is situate shall, upon the request of the company owning such right of way or easement, record such grant in the record book of leases, and index the same; and such record, or a copy thereof duly certified by the recorder, shall be received in evidence in all courts and places, in the same manner and to the same effect as the original; but the correctness of such record or copy may be impeached by any interested party, by competent proof; and the recorder shall be entitled to the usual fee for recording such grants, and certifying copies thereof. (March 23, 1875, 72 v. 71, § 8.) § 3322a. TAXATION OP RIGHT OP WAY.— Any company using or occupying any land as a right of way, without paper title or contract of record therefor, shall within six months after the passage of this act present a correct survey and plat of such land, exhibiting the quantity in such right of way taken from the lands of an owner abutting on such right of way, as it then stands on the tax duplicate of such county, to the auditor of the county in which such land is situate, who shall charge such land on his duplicate to such company, so used or occupied by any such com- pany and such relative quantity shall be deducted by the auditor from the land on the tax duplicate, so that the abutting owners thereof shall not be required to pay the taxes thereon; and all costs of such survey, plat and transfer shall be paid by the company. Upon the failure of any company to have made such survey plat and transfer the owner or owners of such abutting land may have the same made and recover the costs thereof in an action against such company before any court having jurisdiction thereof. (April 1, 1902, 95 v. 73.) § 3323. MUST ERECT SIGN-BOARDS AT ROAD CROSSINGS.— Each com- pany shall erect, at all points where its road crosses a public road, at a sufficient eleva- 216 Private Corporations in Ohio. Fences, Crossings, Cattle-guards, etc., § 3334. tion from such, public road to admit of the free passage of vehicles of every kind, a. sign, with large and distinct letters placed thereon, to give notice of the proximity of the railroad, and warn persons to be on the look-out for the locomotive; and a com- pany which neglects or refuses to comply with this provision shall be liable in dam- ages for all injuries which occur to persons or property from such neglect or refusal. (May 1, 1852, 50 v. 274, § 18.) AVhen evidence as to sign-board admis- sible. In an action by a traveler on a pub'io liigh- way against a railroad company, to recover for injuries by collision with a passing train at a public crossing, alleged to have been caused by negligence in the management of the train, where the evidence tends to show that he did not exercise proper care and cau- tion to avoid the injury, it is competent for him to show that there was no sign-board up, as required by law, as reflecting upon the question of his want of care, although the want of such sign-board is not alleged as a ground of recovery. — Baltimore, etc., R. R. Co. V. Whitacre, 35 Oh. St. 627 (1880). Same subject. Unless it is averred as a ground of negli- gence that a sign was omitted, he cannot in- sist upon it as a substantive cause of action. If a party is acquainted with the crossing the absence of the warning post is not available as a proof of negligence. — New York, etc., R. R. Co. V. Kistler, 16 0. C. C. 316 (1894); s. c, 9 C. D. 277; C. C. & I. Ry. Co. v. Reiss, 13 0. C. C. 405 (1889) ; s. c, 7 C. D. 450. See Baltimore, etc., R. R. Co. v. Whitacre, 35 Oh. St. 627 (1880); Lang v. Holiday, etc., Mining Co., 49 la. 469 (1878). I^iability imposed. A violation of this section does not render the company absolutely liable for injuries to persons or property while attempting to cross- the track. Evidence of such omission mere'y establishes the negligence of the company,, and if it appear that the plaintiff's negligence contributed to the injury, he cannot recover. Dodge V. Burlington, etc., R. R. Co., 34 la. 276 (1872). § 3324. FENCES ALONG TKACKS, CROSSINGS, CATTLE-GXTARDS, CON- STRTJCTION BY LANDOWNERS AT EXPENSE OF COMPANY.— A company or person having control or management of a railroad shall construct, or cause to be constructed, and maintain in good repair on each side of such road, along the line of the lands of the company owning or operating the same, a fence sufficient to turn, stock; and when such fence is constructed out of barbed wire, or separate lateral strands not connected by interwoven wire, or cross perpendicular wire not more than fifteen inches apart, there shall be securely fastened to the posts, at the top of the same, at right angles thereto, at least one board, not less than one and one-eighth, inches thick and five inches wide, and extending the entire length thereof; and before operating, such road shall cause to be maintained at every point where any public road, street, lane or highway used by the public, crosses such railroad, safe and sufficient crossings, and on each side of such crossings cattle-guards sufficient to prevent domestic animals from going upon such railroad; and such company or per- son shall be liable for all damages sustained in person or property in any manner by reason of the want or insufficiency of any such fence, crossing or cattle-guard, or any neglect or carelessness in the construction thereof, or in keeping the same in repair. That provided, where any road now in process of construction, or any proposed road, passes through any inclosed land, that the company or person having control of any such road shall, during the construction of the same, provide suitable crossings for the owner or occupant of each farm, and make and keep in repair fences along the line of such road through such inclosed fields, and protect any crops growing thereon; and further provided, that where the company or person agrees, with the owner of the lands through which any railroad passes, that said owner shall build and keep in repair any portion of the fencing, and should said fencing be destroyed or damaged by fire from passing trains, said company or person owning or operating such road shall rebuild or repair said fence, provided the property-holder should demand it; and provided, that if any railroad company shall fall or refuse to construct any fence in the manner hereinbefore provided, within six months after the passage of this act, and after having received written notice so to do from the owner or occupant of any lands through which the road may pass, (that) then said owner or occupant may. Railroad Corporations. 217 Eences, Crossings, Cattle-guards, etc., § 3324. after thirty days from the time of serving such notice upon the agent of such company nearest said lands, proceed to construct the same, and the company shall be liable to such person for the cost thereof. This act shall apply to all fences now built, as well as those hereafter constructed. (April 18, 1874, 71 v. 85, § 1; R. S. 1880; April 20, 1887, 78 V. 199; April 8, 1891, 88 v. 295; May 18, 1894, 01 v. 297.) Construction of section. This section is to be reasonably construed, and where damage results from defects (oc- curring without the fault or neglect of such companies) in an otherwise sufficient fence, there is no liabilitj'. — Railroad Co. v. Schultz, 43 Oh. St. 270 (1885). Constitutionality. This section is constitutional, founded in a sound public policy, and equally obligatory on railroad companies whether organized under charters granted prior or laws enacted since the constitution of 1851 went, into effect. — Railroad Co. v. Infirmary, 32 Oh. St. 566, 570 (1877). No duty to fence at common laxr. See Seymour v. Railway Co., 44 Oh. St. 12, 19 (1886); Kerwhacker v. Cleveland, etc.. R. R. Co., 3 Oh. St. 172 (1854). Duty to public. The obligation to construct and maintain fences upon both sides of railroads, imposed by this act, is not limited to owners and occu- piers of adjoining lands, but extends to the public generally. — Marietta, etc., R. R. Co. v. Stephenson, 24 Oh. St. 48 (1873); Railway Co. V. Allen, 40 Oh. St. 206 (1883); Gill v. Atlantic, etc., Ry. Co., 27 Oh. St. 240 (1875); Railroad Co. v. Scudder, 40 Oh. St. 173, 175 (1883). Company cannot relieve itself of its duty and shift duty to contractor. The duty of a railroad company is not dis- charged by contracting with another party to perform it, when the performance itself is in- sufficient. — Gill V. Atlantic, etc., Ry. Co., 27 Oh. St. 240 (1875); Railway Co. v. Allen, 40 Oh. St. 206 (1883). Duty to fence as to persons. If a track is not inclosed by a fence and proper guard, a, higher degree of care is im- posed upon the company for the protection of children than otherwise would be required.— Devereaux v. 'ihornton, 4 W. L. B. 355 (1879) ; s. c, 2 Cleve. L. Rep. 177; 10 W. L. B. 266. Fence across private roads. Where a private road extends across the track and right of way of a railroad company and connects with a public highway, the com- pany is required to maintain across such pri- vate road suitable fences, or provide other protection against injuries which may result from animals passing from such highway through the private road on or along the railroad track. — Railroad Co. v. Cunnington,, 39 Oh. St. 327 (1883). Eifect of repairs by company when it is landowner's duty to repair. Occasional repairs by a company to fences, which by contract it was the duty of the land- owner to repair, does not release the land- owner from his duty to maintain and repair. — Railway Co. v. Heiskell, 38 Oh. St. 666. (1883). Railroads must have separate inclos- ures. Inclosures of railroads under this act must be separate and distinct from the inclosures of adjoining proprietors. — ilarietta, etc., R. R. Co. v. Stephenson, 24 Oh. St. 48 (1873). Fences in toivns. This section requires the construction and maintenance of fences within the limits of citi3g and villages where the^ do not obstruct streets, highways or other public grounds.— Cleveland, etc., R. R. Co. v. McConnell, 26 Oh. St. 57 (1875). Joint liability of roads running over same trach. See Berchold v. Lake Shore, etc., R. R. Co., 1 Cleve. L. Rep. 314 (1878). Statute of limitations. An action against a railroad company to re- cover damages for killing or injuring a do- mestic animal which had strayed upon its tracks, and was killed or injured without fault or negligence of the railroad company in operating its train, but solely by the neglect to fence the road as required by law, is founded upon " a liability created by stat- ute, other than a forfeiture or penalty,'' and is barred in six years. — Seymour v. Railway Co., 44 Oh. St. 12 (1886). Pleading. The facts upon which the company's liabil- ity depends must be stated in the petition, and, if not admitted, must be established by proof. An allegation- that the defendant was, by law, bound to fence and inclose its raD- road, tenders an immaterial issue, and is not to be taken as true because not denied. — Baltimore, etc., R. R. Co. v. Wilson, 31 Oh. St. 555 (1877). Negligence must be proved. In an action against a railroad company tc> recover damages for killing live stock, the plaintiif must prove affirmatively that want of ordinary care on the part of the company 218 Private Corporations in Ohio. Fences, Crossings, Cattle-guards, etc., § 3324. or its employees caused the injury. Such ref- erence does not arise from the mere fact that the animal was killed. — Railroad Co. v. Mc- Millan, 37 Oh. St. 554 (1882) ; Railway Co. v. Heiskell, 38 Oh. St. 666 (1883); Bellefon- taine, etc., R. R. Co. v. Bailey, 11 Oh. St. 333 (1860). Facts justifying verdict. The fact that an insufficient fence has for several weeks been maintained by a railroad company along its right of way is sufficient to justify a jury in finding it guilty of negli- gence; and the fact that the plaintiff's stock had, during all such time, been kept in a field adjoining the right of way, without escaping through such fence and passing upon the rail- road track, is not sufficient to excuse the com- pany from such neglect. Where the immedi- ate means or cause of such stock passing over such fence and upon the railroad track is that, recently prior thereto, a board or rail had become detached and fallen from the fence, without the knowledge of the company, such company is not excused from liability where there is evidence to justify the jury in finding that such special defect was attributable to the generally defective condition of the fence. — Railroad Co. v. Schultz, 43 Oh. St. 270 (1885). Expert testimony. Where one of the issues in an action is whether a fence is sufficient to turn stock, it is error to permit witnesses, who show no other qualifications than that they had seen the fence, to give to the jui-y their opinions as to the sufficiency of the fence to turn stock. — Railroad Co. v. Schultz, 43 Oh. St. 270 (1885). Xxpert testimony. An expert may testify whether, in view of the distance between the cattle and the en- gine, it was possible to avoid injury. — Belle- fontaine, etc., R. R. Co. v. Bailey, 11 Oh. St. 333 (1860). Cattle running at large on track — duty of company. If the owners of cattle permit them to run at large in the vicinity of an uninclosed rail- road track, and do not choose to avoid danger to their cattle by keeping them within their own inclosures, they can ask no more than that the agents of the railroad company, in the legitimate conduct of its business, ninning its trains with a speed regulated by the grade of its road, the capacity of its locomotive power, and the safety of persons and property carried, shall, with due regard to the safety of persons and property in their charge, being the paramount consideration, exercise, what, " in that peculiar business," would be ordinary and reasonable care to avoid unnecessary in- jury to animals casually coming upon their uninclosed railroad. The company is not bound to take into consideration the possibil- ity of cattle being on the track. — Central Ohio R. R. Co. v. Lawrence, 13 Oh. St. 66 (1861); Cleveland, etc., R. R. Co. v. Elliott, 4 Oh. St. 474 (1855); Kerwhacker v. Cleve- land, etc., R. R. Co., 3 Oh. St. 172 (1854); Bellefontaine, etc., R. R. Co. v. Schruyhart, 10 Oh. St. 116 (1859); Bellefontaine, etc., Co. v. Bailey, 11 Oh. St. 333 (1860); Didman v. Michigan, etc., R. R. Co., 31 W. L. B. 240 (1894); Cranston v. Cincinnati, etc., R. R. Co., 1 Handy, 193 (1854). Cattle running at large — contributory negligence. Suffering domestic animals to run at large, by means whereof they stray upon an unin- closed railway track, where they are killed by a train, is not, in general, a proximate cause of the loss, and hence, although there may have been some negligence in the owner's per- mitting the animals to go at large, such negli- gence being only a remote cause of the loss, it will not prevent his recovering from the com- pany, if the immediate cause of their death was negligence of the company's servants in conducting the train. — Cleveland, etc., R. R. Co. V. Elliott, 4 Oh. St. 474 (1855). Cattle at large on track — presumption. The mere fact that cattle have strayed, with- out right, en the track of a railroad, neither , establishes that character of negligence which precludes a claim for injury done by running the locomotive against them, nor justifies a want of proper care to save and preseri-e them from destruction. — Cranston v. Cincinnati, etc., R. R. Co., 1 Handy, 193 (1854). Cattle running at large. In an action under this section, it is a suffi- cient answer to allege that the plaintifif did not live along the line of the railway, nor were his cattle grazing in any inclosed field adjacent thereto. That said plaintiff know- ingly, willfully and unlawfully permitted his cattle to run at large on the highways and uninclosed lands adjacent to defendant's said railroad, whereby said cattle went upon said road and were accidentally killed. — Pittsburg, etc., Ry. Co. v. Methaven, 21 Oh. St. 586 (1871). See Railway Co. v. Wood, 47 Oh. St. 431, 436 (1890). Cattle running at large. Where cattle are running at large without the fault of the owner, he is not guilty of contributory negligence in case they are in- jured. — Marietta, etc., E,. R. Co. v, Stephen- son, 24 Oh. St. 48 (1873). Duty of company — animals on track. Where domestic animals are injured by a railroad train while trespassing upon the track of the company, and the owner of the animals is free from negligence contributing to their injury, the company will be liable for a failure on the part of those operating the train to exercise ordinary care to avoid in- jury.— Lake Erie, etc., R. R. Co. v. Weisel, 55 Railroad Corporations. 219 Fences, Crossings, Cattle-guards, etc., § 3324. Oh. St. 155 (1896); Cincinnati, etc., E. R. Co. V. Smith, 22 Oh. St. 227 (1871); Lake Shore, etc., Ry. Co. v. Slater, 24 W. L. B. 2 (1890). Same subject — road nnf enoed. If the road is properly fenced the company is held to the exercise of ordinary care only in the running of trains to prevent the killing of animals. Where the road is not properly fenced, a higher degree of care is required. — Gill V. Atlantic, etc., Ry. Co., 27 Oh. St. 240 (1875). Same subject — plaintiff negligent in failing to build fences. Where the owner of land through whicli a railroad runs agrees with the railroad com- pany, for a valuable consideration, to build and keep up good and sufficient fences, and fails to do so, and on account of the insuffi- ciency of such fences his animals stray upon the track and are injured, he is not entitled to recover for such injury, although the in- sufficiency of the fences was caused by casu- alty and without negligence on his part, un- less such injury is shown to have been inten- tional, or the result of gross carelessness on the part of the agents and servants of the company.^ Lake Erie, etc., R. R. Co. v. Wei- sel, 55 Oh. St. 155 (1896); Pittsburg, etc., Ry. Co. v. Smith, 26 Oh. St. 124 (1875); Cincin- nati, etc., R. R. Co. V. Waterson, 4 Oh. St. 424 (1854); Railway Co. v. Heiskell, 38 Oh. St. 666 (1883). See Easter v. Little Miami R. R. Co., 14 Oh. St. 48 (1862). Contributory negligence of landowner. It is not contributory negligence for a land- owner to turn his stock into a field insufS- ciently fenced where it is the duty of the company to fence. — Railway Co. v. Smith, 38 Oh. bt. 410 (1882); Railroad Co. v. Scudder, 40 Oh. St. 173 (1883). See Pittsburg, etc., Ry. Co. V. Methven, 21 Oh. St. 586 (1871). See under old partition fence act, Railroad Co. V. Infirmary, 32 Oh. St. 566 (1877); San- dusky, etc., R. El. Co. v. Sloan, 27 Oh. St. 341 (1875). Want of notice of condition of fence. It has never been decided that it was no defense for a company to show that it had no notice of the condition of a fence. — See Rail- way Co. V. Smith, 38 Oh. St. 410 (1882); Railroad Co. v. Shultz, 43 Oh. St. 270, 273 (1885); Baltimore, etc., R. R. Co. v. Reamer, 24 W. L. B. 222 (1890). Breachy and unruly animals. An owner of breachy and unruly animals may recover for their injury or loss provided the animals were at large without his fault, and he has used that reasonable care and pre- caution in restraining them which a prudent and cautious man would use under like cir- cumstances. — Railway Co. v. Howard, 40 Oh. St. 6 (1883). Covenant to build or repair, when runs tiritli land. Where a railroad company makes a deed poll of land in fee along which its right of way is located, " subject to the condition that said grantee, his heirs and assigns, shall make and maintain good and sufficient fences on each side of the right of way of the railroad as now located and built, . . . which con- dition and obligation shall be perpetually- binding on the owners of the land," the grantee, by accepting the deed, will be deemed to have entered into an express undertaking to perform the condition contained in the deed, and such undertaking will run with the land and become obligatory upon a subsequent owner by purchase from the grantee of the company. — Hickey v. Railway Co., 51 Oh. St. 40 (1894). Same subject — purchaser -without no- tice. A written agreement by the grantor of the right of way to a railway company to fence it on each side through his lands will not affect the right of a subsequent purchaser to require the company to fence its road, where the pur- chase was made without actual or construct- ive notice of the existence of such agreement. Such agreement not being recorded, the mere use and occupation of the right of way by the company and its successors for the purpose of a railroad will not constitute constructive notice of the existence of such agreement.^ Railway v. Bosworth, 46 Oh. St. 81 (1888). Same subject — when does not run -with land. Where it is stipulated in a deed poll that the grantee, his heirs and assigns, shall build and perpetually maintain a fence on the line between the land granted and other lands owned by the grantor, and the parties to such deed, at the time of its execution, contemplate the subdivision of the granted premises into building or town lots, and their subsequent sale, the burden of maintaining such fence will not attach to or run with lots which do not abut on the line of the proposed fence. — Walsh V. Barton, 24 Oh. St. 28 (1873). Same subject. Where the covenant runs with the land the grantee of the original owner, whose duty it was to fence, cannot recover the cost of fenc- ing. — -Warner v. Baltimore, etc., R. R. Co., 31 Oh. St. 265 (1877). Same subject. Where in proceedings to condemn la«d the parties enter into an agreement of record whereby the company bound itself to build rnd maintain fences, the agreement is valid and binding, and runs with the land so as to be binding on the assignees or grantees oJ both parties. — • Huston v. Cincinnati, etc., R. R. Co., 21 Oh. St. 235 (1871). 220 Private Corporations in Ohio. Fences, Crossings, Cattle-guards, etc., § 3334. Same subject. Where a landowner by duly recorded deed conveyed a right of way and covenanted for himself, his heirs and assigns, to erect and maintain a fence on each side of such way, a lessee of his grantee would be so far bound by the covenant that he could not claim from the railroad company a higher degree of care to avoid injury to a horse than if the covenant had been kept. — Easter v. Little Miami R. R. Co., 14 Oh. St. 48 (1862). Same subject — grantee not liable. When the deed is drawn as stated in the preceding note, the company will not have a right of action against the grantee for failure to repair, after \\e has ceased to be the owner of the land by conveying it to another. — Hickey v. Railway Co., 51 Oh. St. 40 (1894). Failure to construct fence — remedy. If a railway company fails to construct a fence as required by this section, an abutting landowner may construct such fence and re- cover of the company the reasonable cost and expense thereof, together with the value of the use and occupation of his premises during the time such fence is being constructed or re- paired, but he must do all he can to confine his loss to the minimum, and he cannot re- cover for damages he might have avoided. — Millhouse v. Railway Co., 7 0. C. C. 466 (1893); s. c, 4 C. D. 682; s. c, 36 W. L. B. 358. Remedy for failure of company to fence or build crossings according to contract. Where the owner of land, by his written contract, agreed to give to a railroad com- pany the perpetual right of way through the same, at a stipulated price, which was paid to him, with a provision in the contract that when the road should be completed the com- pany should fence the same, held, that after the road is completed, the owner of the land cannot, upon failure to put up the fence, eject the company from the land. — Homback v. Cincinnati, etc., R. R. Co., 20 Oh. St. 81 (1870). Same subject. Where a landowner agreed to release a right of way in consideration of a certain sum of money and the construction of road crossings and cattle-guards, and the company took pos- session before receiving a deed or constructing the crossings or guards, the landowner has an equitable lien upon the property sold, as well for damages for not constructing the crossings and guards as for the unpaid purchase money, and the landowner may have a remedy by compelling specific performance or by enforc- ing his lien. — Dayton, etc., R. R. Co. v. Lew- ton, 20 Oh. St. 401 (1870). Breach of covenant to build and repair — damages. In an action by the vendee of the original owner against the vendee of the company, for failure to build fences and crossings, the rule of damages is the amount of injury to the use and enjoyment of the adjoining land, occa- sioned by the want of such fences and cross- ings during the time the railroad or right of way ivas owned by the defendant. — Huston V. Cincinnati, etc., R. R. Co., 21 Oh. St. 235 (1871). Gates left open. Where gates to permit passage to and from fields across the track are constructed at the request of the landowner, and where he uses them exclusively, the company owes him no duty to see that they are kept closed. — Did- man v. Michigan, etc., R. R. Co., 31 W. L. B. 240 (1894). Gates — duty to close. Where a company puts in a private crossing with gates, and stock wanders through the gate upon the company's track and is killed, the duty of keeping the same closed devolves primarily upon the landowner, and not upon the company, and evidence showing a gate was carelessly left open is not admissible on the issue as to the condition of the fence. — Megrue v. Lennox, 59 Oh. St. 479 (1878). Same subject. The same rula applies to a third person Avhose cattle break into a field which has gates which nave been left open. — See Balti- more, etc., R. R. Co. V. Reamer, 24 W. L. B. 222 (1890). Partition fences under old act. See Railroad Co. v. Miami County Infirmary, 32 Oh. St. 566 (1877); Sandusky, etc., R. E. Co. V. Sloan, 27 Oh. St. 341 (1875) ; Haxton v. Pittsburg Ry. Co., 26 Oh. St. 214 (1875). When fences must be built after pas- sage of act. See Baltimore, etc., R. R. Co. v. McElroy, 35 Oh. St. 147 (1878). Barbed vrire fence lair. See § 4239a (95 v. 470). Same subject. The allowance of six months to comply with the statute is not a vested right which cannot be divested by repeal. The effect of a repeal of the six months' limitation is to require compliance within a reasonable time. — Rail- road Co. V. Shultz, 43 Oh. St. 270, 274 (1885). Crossings — inclines. Where the grade of the track is higher than that of the road the approaches need not be built by the lailroad company so far on both sides of the crossing that there would be prac- Railroad Corporations. 221 Fences, Construction and Kepair, §§ 3325, 3326. tically no incline on the approaches, so that the approaches are brought practically to a level with the railway crossing. They had a right to make inclines, and where the inclines are made safe and sufficient for ordinary and regular purposes of travel, that is a sufficient compliance with the statutes. — Lake Shore, etc., E. R. Co. V. Brazzill, 13 0. C. C. 622 (1895); s. c, 6 C. D. 363. Crossing defined. Under this section the company is liable for all damages sustained in person or property in any manner by reason of the want or in- sufficiency of a crossing over its tracks. The word " crossing " is used in a limited or re- stricted sense, and includes only that part of the structure immediately over and across the tracks, and sufficient space on either side to make a sufficient and safe way over such tracks. — See Lynch v. Railway to., 20 0. C. C. 248 (la99). Crossings over roads and streets. See § 3284 and notes. Cattle-guards at private crossings. The company should provide cattle-guards at private as well as public crossings. — See Railroad Co. v. Cunnington, 39 Oh. St. 327 (1883). Cattle-guards in towns and station yards. This section, so far as it relates to cattle- guards, may be construed as allowing excep- tions, required by public necessity and con- venience, and the proper use of a station yard by the company, but when the company is thus relieved, it is its duty to construct the guards at the first point where they will not interfere with the needs of the public and the company; and in an action against the com- pany for damages, the question whether the guards are properly located and placed is for the jury. — Railroad Co. v. Newbrander, 40 Oh. St. 1.5 (1883); Railroad Co. v. Cunning- ton, 39 Oh. St. 327 (1883) ; Pierce v. Andrews, 13 0. C. C. 513 (1896); s. c, 7 C. D. 105. Company not entitled to compensation for putting in cattle-guards. A railroad companj' exercising its powers subject to the provisions of the present con- stitution, and required bj' this act passed since its incorporation to construct and maintain cattle-guards at places on its road where pub- lic highways are or may be constructed across its track, is not entitled to compensation for making or maintaining cattle-guards. — Rail- way Co. V. Sharpe, 38 Oh. St. 150 (1882). § 3325. WHEN LANDOWNERS MAY CONSTKUCT FENCE AT COMPANY'S EXPENSE. — If such, company or person neglect or refuse to construct such fence, as provided, in the preceding section, the owner of any land abutting on the line of the land of the railroad may construct the fence therein provided for, so far as his land abuts on the railroad lands; and when he has completed the same, he may present for payment, to the agent of the company for receiving and shipping freight at the station nearest to the tract of land so fenced, an itemized account of the expense thereof, including materials and labor; and if such company or person neglect or refuse, for thirty days, to pay such account, such landowner may recover the reason- able cost of such fence from the owner of, the road, in any court having jurisdiction of the same. (April 18, 1874, 71 v. 85, § 1.) See notes to preceding section. § 3326. COMPANY TO KEEP FENCE IN REPAIR.— When the fence is com- pleted the company shall keep it in good repair; and if any such company or person permit any part of the fence on the line of its road to get out of repair so that it will not turn stock, the owner of the land abutting on the railroad lands where the fence is out of repair, may notify the agent of the company for receiving and shipping freight at the station on the road nearest to the place where the fence is out of repair that a portion of the fence on the line of the road is out of repair, stating where, how and the probable cost of repairing the same; and if such company or person fail for twenty-four hours thereafter, to repair the fence so that it will turn stock, the owner of the land may furnish materials and repair the same, and present to such agent for payment, an itemized account of the expense thereof, including materials and labor and if the same be not paid within thirty days thereafter, such landowner may recover from the owner of the road the reasonable expense of such repairs, before any court having jurisdiction thereof. (April 18, 1874, 71 v. 85, § 1.) See notes to section 3324. 222 Private Corporations in Ohio. Private Crossings, §§ 3327, 3328. § 3327. WHEN PBIVATE CROSSINGS MUST BE BUILT.— A person owning fifteen or more acres of land in one body through which any such railroad passes, and which is so situate that he can not use a crossing in a public street, road, lane, or highway, in passing from, his land on one side of the railroad to that on the other side without great inconvenience, the company or person operating the road shall, at the request of the landowner, within four months after such request, at the expense of such company or person, construct a good and sufficient private crossing across the railroad and the lands occupied by the company, between the two pieces of land of the landowner, to enable him to pass with a loaded team, and over which he shall have the privilege of passing at all times when such company or person is not using the railroad at the crossing, or so near thereto as to render crossing thereat dangerous. (April 18, 1874, 71 v. 85, § 1.) Rights when railroad ivas constructed before enactment of this section. The owner of land through which a railroad passes has a right to a private crossing, al- though the right of ivay was appropriated, and the railroad constructed before the pas- sage of this section. — Mitchell v. Wabash R. ^ R. Co., 3 N. P. 231 (1896); s. c, 6 Dec. 135. Who entitled to crossing. The omission of the word "farmer," implies an intent to provide generally for private crossings. — jMitchell v. Wabash R. R. Co., 3 N. P. 231 (1896); s. c, 6 Dec. 135. Becords as to compensation for cross- ings. Where the record in proceedings in which the land was appropriated is not in evidence, even though the land was condemned befove the passage of this section, it will, not be held that compensation for crossings was given. — Mitchell V. Wabash R. R. Co., 3 N. P. 231 (1896); s.'c, 6 Dec. 135. Constitutionality. The section is constitutional as a valid ex- ercise of the police power. — Jlitchell v. Wa- bash R. R. Co., 3 N. P. 231 (1896) ; s. c, 6 Dec. 135. 'What determines right to crossing. The right to a private crossing depends upon the fact that the public crossing cannot be used '' without great inconvenience," and that such private crossing shall be used only when not dangerous; a crossing, therefore, should be constructed at the point most con- venient and least dangerous. — Mitchell v. Wabash R. R. Co., 3 N. P. 231 (1896); s. c, 6 Dec. 135. When court trill fix location. Where the matter is before a court of equity, if the parties cannot agree as to the location, the court will fix it by means of en- gineers and referees. — Mitchell v. Wabash R. R. Co., 3 N. P. 231 (1896); s. c, 6 Dec. 135. Injunction against interference -with crossing. Where a landowner has complied with these sections, and the railroad company has de- clared its intention of preventing the con- stiij(;tion of the crossing, an injunction may be allowed to prevent such interference. — Mitchell v. Wabash R. R. Co., 3 X. P. 231 (1896); s. c., 6 Dee. 135. See generally Jones, etc., Co. v. C. C. C. T. &, S. Ry. Co., 7 N. P. 245 (1894). Gates at private crossings. See notes to § 3324. Contract for private crossing, remedies for breach. See Bell v. Dayton, etc., R. R. Co., 3 0. C. C. 31 (1887); s. e., 2 C. D. 19; Davton, etc., R. R. Co. V. Lewcon, 20 Oh. St. 40l' (1870). § 3328. WHEN LANDOWNER MAY BUILD AT COMPANY'S EXPENSE.— If such company or person neglect, for four months, after request by any such land- owner for that purpose, to construct a good and sufficient private crossing as pro- vided in the preceding section, such landowner may, after having given reasonable notice to the agent of the company for receiving and shipping freight at the station on the railroad nearest to the land where it is proposed to construct such private crossing, of the time when such landowner will proceed to construct such crossing, enter upon the lands of the company, at any point he may desire between the two pieces of his land, and construct a good and sufficient private crossing; and such company or person shall be liable to him for all the reasonable expense thereof, not exceeding the sum of fifty dollars, and he may recover the same in an action against such company or person, before any court having jurisdiction thereof. (April 18, 1874, 71 V. 85, § 1.) Referred to in 30 W. L. B. 206. Railroad Corporations. 223 Fences, Crossings, etc., §§ 3329-3331. § 3329. WHEN FIVE PRECEDING SECTIONS DO NOT APPLY.— The provi- sions of the five preceding sections relating to fences and private crossings shall not apply to any case in which compensation for building a fence or a private crossing has been or may hereafter be taken into consideration, and estimated as a part of the ' consideration to be paid for the right of way, so far as the fence, or right to private crossing, has been or may be settled or paid for; nor shall said sections be held to affect, in any manner, any contract or agreement between any railroad company, or person having the control and management of a railroad, and the proprietors or occu- pants of lands adjoining, for the construction and maintenance of fences, cattle- guards, and railroad crossings. (March 25, 1859, 56 v. 62, § 4; April 18, 1874, 71 V. 85, § 1.) W^here compensation has been made. Where compensation for building a fence or private crossing was taken into consideration when the right of way wps acquired, the com- pany is not liable either to the landowner or the public for failure to fence or for insuffici- ent fences. — ■ Railway Co. v. Wood, 47 Oh. St., 431 (1890). Parties affected. The effect of this provision is limited by its terms to the parties maKing the agreement, though the agreement may be made to run with the land. — Railway Co. v. Bosworth, 46 Oh. St. 81 (1888). Records of compensation must be made. Where the defense of the company is that it has made compensation for fencing under this section, and the records of the condemna- tion proceedings are silent upon the subject, no presumption arises that the matter of fences was considered, even if the proceedings were had prior to the passage of this act. — Railroad Co. v. Hoffhines, 46 Oh. St. 643 (1888); Mitchell, etc., Co. v. Wabash E. R. Co., 3 N. P. 231 (1896); s. c, 6 Dec. 135. Effect of agreements of record. See Huston v. Cincinnati, etc., R. E. Co., 21 Oh. St. 235 (1877). See generally as to effect of agreements as to fences, § 3324, notes. § 3330. WHEN COMPANY MAY BUILD FENCE AT LANDOWNER'S EX- PENSE. — If an owner of lands abutting on the line of the lands of a company, who is legally bound in any manner to build or repair the fence dividing his lands from the lands of the company, neglect or refuse to build or repair such fence within the time in which he is bound to build or repair the same, the company may build or repair such fence, and present an itemized account of the cost of labor and materials expended in such construction or repair, to the person bound to build or repair the fence, for payment; and if the same be not settled or paid within thirty days there- after, the company may recover from such person the reasonable cost of such labor and materials, before any court having jurisdiction thereof. (April 18, 1874, 71 v. 85, § 1.) § 3331. PENALTY FOR NOT CONSTRTJCTING FENCES.— A company or per- son having the control and management of a railroad neglecting or refusing to con- struct fences, cattle-guards, or public crossings, or to keep the same in repair, as prescribed in section thirty-three hundred and twenty-four after thirty previous days notice or request to do the same, made in writing by any person, shall forfeit and pay for each and every day such company or person so refuses or neglects, any sum not exceeding fifty dollars per day, to be recovered in a civil action, in the name of the state, for the use of the county in which the suit is brought. (March 25, 1859, 56 V. 62, § 5.) An Act to Provide for One Steam Railroad Crossing Another Steam Railroad. Be it enacted by the General Assembly of the State of Ohio: § 1. COMMON PLEAS COURT GIVEN JURISDICTION TO ASCERTAIN AND DEFINE MANNER IN WHICH ONE RAILROAD SHALL CROSS ANOTHER.— That where it becomes necessary for the track of one railroad company to cross the 224 Private Corporations in Ohio. Cattle Ways, Crossings over Railroads, §§ 3332, 3333. track of another railroad company, unless the manner of m.aking such crossings shall be agreed to between such companies, it shall be the duty of the court of com- mon pleas of the county wherein such crossing is located, or a judge thereof in vacation, on application of either party to ascertain and define by its decree the mode of such crossing which will inflict the least practical injury upon the rights of the company owning the road which is intended to be crossed; and if in the judgment of such court or such judge thereof it is reasonable and practicable to avoid a grade crossing, it shall by its process prevent a crossing at grade. (May 10, 1903, 95 v. 530.) ^§ 2. This act shall take effect and be in force from and after its passage. 10, 1902, 95 V. 530.) (May § 3332. USE OF CULVERT FOR CATTLE WAY.— Any owner of land through ■which a railroad is constructed, and upon which there is a culvert, waterway, or open- ing through the embankment of the railroad, of suflacient height for such purpose, may use such culvert, waterway, or opening, for the purpose of a stock or cattle way, •under the track of the road, so as to permit stock to pass and re-pass; but the land- owner shall build and maintain all necessary fences on both sides of said opening, and shall not, by use, or otherwise, permit the foundations of any structures about such opening to be injured or interfered with. (R. S. 1880.) Contract for cattle pass. See Lowe v. W. & L. E. R. R. Co., 12 0. C. C. 743 (1894); s. c, 4 C. E. 85. Contract for ivaterivay, specific per- formance. See Bell v. Dayton, etc., R. R. Co., 3 C. C. 31 (1887); s. c, 2 C. D. 19. § 3333. RAILROAD CROSSINGS, HOW MADE; CROSSING OP TRAINS, REGU- LATIONS. — When the tracks of two railroads cross each other, or in any way connect at a common grade, the crossings shall be made and kept in repair, and watchmen maintained thereat, at the joint expense of the companies owning the tracks; all trains or engines passing over such tracks shall come to a full stop not nearer than two hundred feet, nor further than eight hundred feet from the crossing, and shall not cross until signaled so to do by the watchman, nor until the way is clear, and when two passenger or freight trains approach the crossing at the same time, the train on the road first built shall have precedence if the tracks are both main tracks over which all passengers and freights on the road are transported; but if only one track is such main track, and the other is a side or depot track, the train on the main track shall take precedence; and if one of the trains is a passenger train and the other a freight train, the former shall take precedence, and regular trains on time shall take precedence over trains of the same grade not on time, and engines with cars attached, not on time, shall take precedence of engines without cars attached not on time; provided, however, and in case such two railroads crossing each other, or in any way connecting at a common grade, shall by any works or fixtures to be erected by them render it safe to pass over said crossing without stopping, and such works and fixtures shall first be approved by the commissioner of railroads and telegraphs, and the plan of said works and fixtures for such crossing, designating the plan of crossing shall have been filed with such commissioner of railroads and telegraphs, then, and in that case, the provisions of said section thirty-three hundred and thirty- three, and the provisions of sections thirty-three hundred and thirty-four, thirty- three hundred and thirty-five, shall not apply; but if such commissioner of railroads and telegraphs shall disapprove such plan, or fail to approve the same within twenty days from the filing thereof, such companies may apply in the county where said crossing is situated, to the court of common pleas, or to a judge thereof in vacation, in the manner provided in section thirty-three hundred and seventeen, and the same Railroad Corporations. 225 Crossings over Railroads, § 3333. proceedings shall be had, and with the same effect as provided in said last named sec- tion. (April 14, 1882, 79 v. 95; B. S. 1880; March 24, 1860, 57 v. 106, § 1.) See also as to appliances, § 247d. liessee is oxrner. A railroad company which has possession and control of a railroad in this state as lessee thereof is one " owning the tracks " of such railroad within the meaning of this section. — Baltimore, etc., R. R. Co. v. Walker, 45 Oh. St. 577 (1888). Duty of lessee. The necessity for keeping the crossing in repair, and maintaining watchmen thereat, grows out of the use and operation of the rail- roads crossing each other at a, common grade, and the benefits thereof accrue to the com- panies using and operating the roads; and as a lessee company, while operating its road, receives the benefit and security resulting from a safe crossing and the services of the watchmen, it takes them subject to the burden of their expense, as provided by the statute. — Baltimore, etc., R. R. Co. v. Walker, 45 Oh. St. 577 (1888). Joint duty, expense. This section imposes a joint duty and obli- gation of making and maintaining the cross- ings and keeping watchmen thereat, and requires the expense to be borne by the com- panies jointly. The burden is common to both companies, and where either performs the whole duty and pays the whole expense it is entitled to recover from the other its equal proportion thereof. — Baltimore, etc., E. R. Co. V. Walker, 45 Oh. St. 577 (1888). Expense of crossing. This section imposes on both companies the expense of making and keeping up such cross- ing as is required, without regard to the date of their respective charters, or the location or construction of their respective roads. — Lake Shore, etc., Ry. Co. v. Cincinnati, etc., Ry. Co., 30 Oh. St. 604 (1876). Apportionment of expense. Whether in a case under this section the expense should be apportioned according to the use of the crossing, or otherwise than equally, qusere. — Baltimore, etc., R. R. Co. v. Walker, 45 Oh. St. 577 (1888). Constitutionality. This act is a valid exercise of the police power of the state, and is a reasonable regula- tion of the manner in which railroad trains shall be run so as to avoid danger to the lives and property of people using a railroad. — Lake Shore, etc., Ry. Co. v. Cincinnati, etc., Ry. Co., 30 Oh. St. 604 (1876). Alt railroads subject to police po'wer. Every railroad company in this state ac- cepts its charter and maintains and operates LAW GOV. PRIV. COR. — IS. corporate property as a railroad, subject to the inherent power of the state to adopt such police regulations as this, whenever public necessity requires them. — Lake Shore, etc., Ry. Co. V. Cincinnati, etc., Ry. Co., 30 Oh. St. 604 (1876). Right to cross tracks. Such corporate charters and franchises are subject to the power of the state to authorize the construction of other railroads across their tracks whenever the public welfare may re- quire. Neither the priority of one charter over the other, nor the prior location or con- struction of a, railroad thereunder, affects this right.— Lake Shore, etc., Ry. Co. v. Cincin- nati, etc., Ry. Co., 30 Oh. St. 604 (1876). Same subject. The right of one railroad corporation to cross the track of another in constructing and operating its road is derived by grant of the franchise so to do from the state, and not by purchase or appropriation from the road first located and constructed. The latter has no vested exclusive right to such crossing for its use against the right of the public to a cross- ing, provided compensation is made. — Lake Shore, etc., Ry. Co. v. Cincinnati, etc., Ry. Co., 30 Oh. St. 604 (1876). Consequential damages. In a proceeding under the statute by a rail- road corporation to appropriate a strip of land across the track of another, to be used in common by each as a railroad crossing, at a common grade, the owner of such track has no right to recover as consequential damages the additional expense rendered necessary in operating its road caused by complying with the provisions of this section. — Lake Shore, etc., Ry. Co. v. Cincinnati, etc., Ry. Co., 30 Oh. St. 604 (1876). Measure of damages. In such condemnation proceeding the com- pany whose tracks it is sought to cross is enti- tled to compensation for the property or interest in its right of way and tracks actu- ally appropriated, and for such consequential damages, not provided for by this section, as are the direct and proximate consequence of such appropriation. — Lake Shore, etc., Ry. Co. V. Cincinnati, etc., Ry. Co., 30 Oh. St. 604 (1876). Same subject. The jury in such condemnation proceeding cannot include the additional expenses pro- vided for by this section, nor take into ac- count the detention of trains, loss of future business, nor additional expenses incident to the future exercise of their corporate powers. — Lake Shore, etc., Ry. Co. v. Cincinnati, etc., Ry. Co., 30 Oh. St. 604 (1876). 226 Private Corporations in Ohio. Crossings over Railroads, §§ 3334^3336. Negligence in operating crossing. For a charge to a jury in a negligence case involving this section, see Moulder v. Cleve- land, etc., R. R. Co., 1 N. P. 361 (1894); s. c, 5 Dec. 664. Specific performance of contract to maintain crossing. See Columbus, etc., Ey. Co. v. Ohio South- ern Ry. Co., 1 0. C. C. 275; s. c, 1 C. D. 15L (1885). See generally § 247d, § 3443-5. § 3334. UTILES TO BE MADE AND PUBLISHED.— The managing agent or superintendent of every railroad shall establish, and publish to all the employes on the road, such rules and regulations as shall, in all cases, secure strict compliance with the provisions of the foregoing section, and shall republish such rules and regu- lations on each time table or card issued to the employes on the road; if such manag- ing agent or superintendent fail or neglect to establish and publish such rules and regulations, or to re-publish the same on each time table or card issued to the employes on the road, he shall be personally liable, for every such neglect or refusal, to a penalty of ons hundred dollars, to be recovered, together with costs, in an action against him in favor of the state, to be brought in the court of common pleas of any county wherein any such crossing is; and such agent or superintendent, and the com- pany of which he is agent or superintendent, shall also be liable in damages to any person or company injured in person or property by an accident arising from such failure or neglect. (March 24, 1860, 57 v. 106, § 2.) § 3335. PENALTIES EOR VIOLATIONS OF § 3333.— Every engineer or person in charge of an engine who wilfully fails to comply with the provisions of section thirty-three hundred and thirty-three or fails to bring the engine of which he is in charge, with the train, if any, thereto attached, to a full stop at least two hundred feet before arriving at any railroad crossing or connection, or crosses the same before signaled so to do by the watchman, or before the way is clear, shall be personally liable to any person injured by reason of such failure to a penalty of one hundred, dollars to be recovered by civil action, at the suit of the state, in the court of com- mon pleas of any county wherein such crossing or connection is; and the company in whose employ such engineer or person in charge of an engine is, as well as the person himself, shall be liable in damages to any person or company injured in per- son or property by such neglect or act of suoh engineer or person. (March 31, 1874, 71 V. 50, § 3.) § 3336. SIGNALS AT EAILBOAD CROSSINGS.— Every company shall hava attached to each locomotive engine passing upon its road, a bell of the ordinary size in use on such engine, and a steam whistle; and the engineer or person in charge of an engine in motion and approaching a turnpike, highway, toward (town road) cross- I ing or private crossing where the view of said private crossing is obstructed by embankment, trees, curve or any other obstruction to view, upon the same line there- with, and in like manner where the road crosses any other traveled place, by bridge or otherwise, shall sound such whistle at a distance of at least eighty and not further than one hundred rods from the place of such crossing, and ring such bell continu- ously until the engine passes such crossing; but the provisions of this section shall not interfere with the proper observance of any ordinance passed by any city or vil- lage council regulating the management of railroads, locomotives and steam whistles thereon, within the limits of such city or village. (April 16, 1892, 89 v. 331; May 13, 1886, 83 V. 153; R. S. 1880; March 35, 1872, 69 v. 49, § 1.) Duty of person about to cross tracks. Ordinary prudence requires that a person in the full enjoyment of the faculties of hear- ing and seeing, before attempting to pass over a known railroad crossing, should use them for the purpose of discovering and avoiding danger from an approaching train; and the omission to do so without a reasonable excuse therefor is negligence, and will defeat a re- covery. — Pennsylvania Co. v. Rathgeb, 32 Oh. St. 66 (1877)'; Belief ontaine Ry. Co. v. Snyder, 24 Oh. St. 670 (1874); Cleveland, Railroad Corporations. 227 Crossings over Bailroads, § 3337. ptc, R. E. Co. V. Crawford, 24 Oh. St. 631 (1874); Cleveland, etc., Ry. Co. v. Elliott, 28 Oh. St. 340 (1876); Lake Shore, etc., Ry. Co. V. Gaffney, 9 0. C. C. 32 (1894) ; s. c, 6 C. D. 94; Lake Shore, etc., Ry. Co. v. Schade, 15 0. C. C. 424 (1895) ; s. e., 8 C. D. 316; Railway V. Schneider, 45 Oh. St. 678 (1888); Lake Shore, etc., Ry. Co. v. Geiger, 8 0. C. C. 41 (1893); s. c, 4 C. D. 307; New York, etc., Ry. Co. V. Swartout, 14 0. C. C. 582 (1895); s. c, 6 C. D. 768; C. C. & 1. Ry. Co. v. Reiss, 13 0. C. C. 405 (1889) ; s. u., 7 C. D. 450. AVhere turnpihe is crossed by bridge. This section requires the engineer having in charge an engine in motion to ring the bell and sound the whistle on approaching a place where the road crosses any highway or trav- eled place by a bridge or other structure. — Railway v. Jump, 50 Oh. St. 651 (1893). Duty to persons on track. This section is intended for the protection of such persons only as are crossing the track or are about to do so ; and does not inure to the benefit of persons who are on the track but not at a crossing. — Cleveland, etc., Ry. Co. v. Workman, 66 Oh. St. 509 (1902). See Dick V. Railroad Co., 38 Oh. St. 389 (1882); Railroad Co. v. Depew, 40 Oh. St. 121, 126 (1883). Power of mnnicipalties to regulate. The most that can be claimed for the latter part of this section is that it by implication confers powers upon municipal coi-porations to regulate the management of locomotives and steam whistles and bells with reference to crossings in such municipalities. It does not enable municipalities to compel railroads to employ watchmen. — Ravena v. Pennsylvania Co., 45 Oh. St. 118, 125 (1887). Evidence. Though there is positive evidence that the whistle was blown before the train reached the crossing, the court cannot direct a verdict for defendant where some of the witnesses testify •that the whistle was blown more than 2,000 feet from the crossing instead of within 80 or 100 rods of it, as required by this' section. — GriflSth V. Baltimore, etc., R. R. Co., 44 Fed. 574 (1890); s. c., 6 0. F. D. 666. W^hat is positive testimony as to nrhistle and bell. The testimony of witnesses who testify that they were walking on the track, knew the train was coming, were giving their attention to the train, and that they heard no whistle or bell, is not negative, but positive testimony. — Lake Shore, etc., R. R. Co. v. Schade, 15 O. C. C. 424 (1895); s. c, 8 C. D. 316. Affirmative and negative testimony — \(reight. Other things being equal, the testimony of the engineer and fireman of the train that the whistle was blown and the bell rung as it ap- proached the crossing is entitled to more weight than the negative testimony of other witnesses that they did not hear either or both.— Griffith v. Baltimore, etc., R. R. Co., 44 Fed. 574 (1900) ; s. c, 6 0. F. D. 666. When failure not proximate cause. Where it appears that the plaintiff was struck several hundred feet from a crossing, the failure to give signals for the crossing cannot be regarded as the proximate cause of the accident. — Lake Shore, etc., R. R. Co. v. Harris, 23 0. C. C. 400 (1891). § 3337. PENALTIES FOE VIOLATION OE PRECEDING SECTION.— Every engineer or person in charge of any such engine who fails to comply with the provi- sions of the preceding section shall be personally liable to a penalty of not less than fifty nor more than one hundred dollars, to be recovered by civil action, at the suit of the state, in the court of common pleas of any county wherein any such crossing is; and the company in whose employ such engineer or person in charge of an engine is, as well as the person himself, shall be liable in damages to any person or company injured in person or property by such neglect or act of such engineer or person. (March 25, 1872, 69 v. 49, § 2.) Contributory negligence. The omission to ring the bell or sound the whistle at public crossings is not of itself suf- ficient grou'-d to authorize a recovery, if the party, notwithstanding such omission, might, by the exercise of ordinary care, have avoided the accident. — Cleveland, etc., Ry. Co. v. El- liott, 28 Oh. St. 340 (1876); Pennsylvania Co. V. Rathgeb, .32 Oh. St. 66, 72 (1877); New York, etc., Ry. Co. v. Swartout, 14 0. C. C. ii82. (1895) ; s. c. 6 C. D. 768: Baltimore, etc., R. R. Co. V. Griffith. 1.59 U. 8. 603. 607 (1895) ; s. e., 8 0. P. D. 573; Horn v. Baltimore, etc.. R. R. Co., 54 Fed. 301 (1893) ; Pennsylvania Co. v. Alburn, 23 0. C. C. 130 (1901). Proximate cause. It is evident from the language of this sec- tion that the failure to give signals must have occasioned the accident, that is, must have been the proximate cause of it, before a, re- coverv can be had. — Pennsylvania Co. v. Rathgeb. 32 Oh. St. 66. 72 (1877); Cincinnati, etc., R. R. Co, V. Murphv. 18 O. C. C. 298 (1899) ; s. c, 10 C. D. 195; Horn v. Baltimore, etc., R. R. Co., 54 Fed. 301 (1893). 228 Private Corporations in Ohio. street and Highway Crossings, etc., §§ 3337-1-3337-4. § 3337-1. Sec. 1. RAILBOAD BRIDGES OVER STREETS.— It shall be unlaw- ful for any person, company or corporation owning, or operating any railroad, cross- ing, or that may hereafter cross, over and above any street, less than seventy feet in width, in any city in this state, at an elevation above such street, sufficient to permit persons to pass and repass along such street beneath such railroad crossing, to place or cause to be placed, or to suffer or permit to be or remain in such street, beneath such railroad crossing or bridge, any pier or other stay or support for such crossing or bridge, or to suffer or permit any such railroad crossing or bridge to be or remain in such condition, that any iron, coal or other hard substance, or any fluid or noisome matter, may fall or drop from or through any such crossing or bridge, upon per- sons traveling or passing beneath the same; and any such person, company or cor- poration owning or operating any such railroad, failing to comply with the require- ments of, or violating any of the provisions of this section, shall, for each and every day during the continuance of such failure or violation, and on account thereof, for- feit and pay to such city the sum of one hundred dollars, which may be recovered in a civil action, in the name of such city, against the owner or operator of such railroad, or both, as the city may elect, and thereafter like recovery may be had in like man- ner, for subsequent failures and violations aforesaid. (April 3, 1889, 86 v. 197.) § 3337-2. COTJNCrL MAY PROHIBIT SWITCHING, ETC., ON SUCH BRIDGES. — That the city council of any city may prohibit the switching of freight engines, trains, or cars, over or on said crossing or bridge, the sounding of locomotive steam whistles, on or near the same, and the standing or stopping of any railroad engine over or on the same, and may, by ordinance, constitute the same an offense, and provide for the punishment of any person committing such offense. (April 3, 1889, 86 V. 197.) § 3337-3. HIGHWAY AND STREET CROSSINGS MUST BE BUILT AND REPAIRED BY COMPANY. — All railway or railroad companies operating a line or lines of railway in this state, shall build or cause to be built, and keep in repair good and sufficient crossings over, or approaches to such line or lines of railway, its tracks, side-tracks and switches, at all points where any public highway, street, lane, avenue, alley, road or pike is now or may hereafter be intersected by such lines of railway, its tracks, side-tracks, or switches. And also good and sufficient sidewalks on both sides of streets intersected by their roads, the full width of the right of way owned, claimed or occupied by them; and as to crossings and approaches outside of municipal corporations, the township trustees shall have power to fix and determine the kind and extent thereof, and the time *nd manner of constructing the same; and as to crossings, approaches and sidewalks within municipal corporations, the munici- pal councils shall have and exercise the same powers as trustees concerning crossways and approaches outside of municipalities, and such crossways, approaches and side- walks shall be constructed, repaired and maintained by the railroad companies as so ordered. (April 2, 1891, 88 v. 261.) See generally § 3324 and notes, § 3284 and notes. Crossing defined. See Lynch v. Railway Co., 20 0. C. C. 243 (1899). Constitutionality. See Lake Shore, etc., Et. Co. v. Cincinnati, etc., Ry. Co., 30 Oh. St 604 (1876). § 3337-4. SERVICE OF NOTICE ON RAILROAD COMPANIES.— It shall be the duty of the officer or officers having charge of any public highway, street or alley intersected by any line of railway, to serve a written notice upon the nearest station agent or section foreman having charge of that portion of the railway where such intersection occurs, that such crossing, approach or sidewalk as herein described shall Railroad Corporations. 229 street and Highway Crossings, etc., §§ 3337-5-3337-9. be built or repaired, setting forth the kind and extent thereof, and time and manner of constructing the same, as ordered by the council or trustees. (April 2, 1891, 88 V. 261.) * § 3337-5. WHEN CKOSSINGS, ETC., MUST BE BUILT.— It shall be the duty of any railway company so notified, to comply with said notice within a period of thirty (30) days from and after receiving such notice, and on failure so to do, the township trustees, or council as the case may be, may cause such crossing, approach or sidewalk to be constructed or repaired as before ordered, and may recover the cost of so doing with interest thereon, in a. civil action against the railroad company, in the name of the trustees or municipality as the case may be, before any court of com- petent jurisdiction. (April 2, 1891, 88 v. 261.) § 3337-6. CBOSSINGS MUST BE KEPT CLEAR OF SNOW.— It shall be the duty of all railway companies owning or operating any line of railway within the limits of the state of Ohio to, at all times, keep all public highways now or here- after crossing such line of railroad, clear of snow, so that the same shall at all times be in a safe and convenient condition for travel for a distance of fifty (50) feet each way from the center of said railroad along such highway. (April 2, 1891, 88 v. 261.) Not negligence per se to fail to remove snow. The company is only bound to use such care as a reasonable person would use under like circumstances. — Cincinnati, etc., R. E. Co. v. Dagner, 39 W. L. B. 19 (1898). § 3337-7. PENALTIES.— Any railroad company which shall neglect to comply with the terms of this act, shall be liable to pay damage to the city, village, town or township in which the highway is situated in the sum of thirty ($30) dollars for such neglect, and a further sum of ten ($10) dollars per day for each and every day such railroad company fails or neglects to comply with the terms of this act, the same to be recovered in an action brought in the name of the city, village, town or town- ship as the case may be. It is hereby made the duty of the prosecuting attorney of the county to prosecute to judgment any claim arising under the foregoing provi- sions, without any charge to the said city, village, town or township. (April 2, 1891, 88 V. 261.) § 3337-8. MANNER OE ALTERING OR ABOLISHING GRADE OR OTHER CROSSINGS. — If the council or board of legislation of any municipal corporation in which any railroad or railroads, and a street or other public highway cross each other at grade (or) otherwise, or the commissioners of any county in which, outside of any municipal corporation, a railroad or railroads and any public road or highway cross each other at grade, and the directors of the railroad company or companies are of the opinion that the security and convenience of the public require that alterations shall be made in such crossing, or in the approaches thereto, or in the location of the rail- road or railroads or the public way, or any grades thereof, so as to avoid a, crossing at grade, or that such crossing should be discontinued with or without building a new way in substitution therefor, and if they agree as to the alterations which should be made, such alterations may be made in the following manner. (April 27, 1893, 90 V. 359.) § 3337-9. RESOLUTION AS TO ALTERATION, ETC.; PUBLICATION OF NOTICE. — When it is deemed necessary by any municipality or by any county to join with any railroad company or companies in the alteration or abolition of any grade or other crossing, the council or board of legislation of the municipality, by a two-thirds vote of all the members elected thereto, or the commissioners of the county, by a unanimous vote of all the members thereof, shall, by resolution, declare such necessity and intent, and shall state in such resolution the manner in which the 230 Private Corporations in Ohio. street and Highway Crossings, etc., §§ 3337-10-3337-13. alterations in the crossing are to be made, giving the method of constructing the new crossing with the grades for the railroad or railroads and the public way or ways; also what land or other property it is necessary to appropriate, and how the cost thereof shall be apportioned between the municipality or county and the railroad company or companies; also by whom the work of construction is to be done and how the cost thereof shall be apportioned between the municipality or county and the railroad company or companies. Such resolution shall be published and notice of its passage given to owners of property abutting on the proposed improvement in the manner provided in section 2304 of the Revised Statutes, and all claims for dam- ages by reason of such improvement, must be filed in the manner and within the time provided by section 2315 of the Bevised Statutes. (April 27, 1893, 90 v. 359.) § 3337-10. ORDINANCE UPON DECISION TO PROCEED; AGREEMENT BETWEEN MUNICIPALITY AND RAILROAD COMPANY.— In not less than thirty nor more than ninety days after the passage of the resolution provided for in section two (2) (§ 3337-9) hereof, the council, board of legislation or commissioners shall determine whether it or they will proceed with the proposed improvement or not; if it is decided to proceed therewith, an ordinance by the council or resolution by the commissioners shall be passed, which ordinance or resolution shall contain, in addi- tion to the terms and conditions stated in the resolution under section two (3) (§ 3337-9) hereof, the plans and specifications of the proposed alteration and improve- ment, also a statement of the damages claimed or likely to accrue by reason thereof, and how the payment thereof shall be apportioned between the municipality or county and the railroad company or companies; also who shall supervise the work of con- struction. Upon the acceptance of this resolution or ordinance by resolution by the railroad company or companies through the directors thereof, the same shall consti- tute an agreement which shall be valid and binding on the municipality or county and the railroad company or companies respectively; provided, however, that such agreement shall be thereupon filed in the court of common pleas of the county in which the crossing is located, for entry upon the records thereof; whereupon it shall have the same force and effect as a decree of the court. (April 27, 1893, 90 v. 359.) § 3337-11. PURCHASE OR APPROPRIATION OP NECESSARY LAND OR PROPERTY. — The land or property required to make the alteration in the street or highway necessitated by the proposed improvement, shall be purchased or appropri- ated by the municipality or county after the manner provided by law for the appro- priation of private property for public use, and the land or property required to make the alteration in the railroad or railroads necessitated by the proposed improvement, shall be purchased or appropriated by the railroad company or companies after the manner provided for the appropriation of private property by such corporation. (April 27, 1893, 90 v. 359.) § 3337-12. APPORTIONMENT OP COST.— The cost of the construction of the improvement in the crossing, including the cost of land or property purchased or appropriated, and the payment of damages to abutting property shall be apportioned as follows: The railroad company or companies (if several railroads cross a public way at or near the same point) shall pay not less than 65 per centum of such cost, and the municipality or county shall pay not more than 35 per centum of such cost. Within these limits the apportionment may be fixed by the agreement under section three (3) (§ 3337-10) hereof. (April 27, 1893, 90 v. 359.) § 3337-13. REPAIRS.— After the completion of the work, the crossing and its approaches shall be kept in repair as follows: When the public way crosses the rail- road by an overhead bridge, the framework of the bridge and its abutments shall be Railroad Corporations. 231 street and Highway Crossings, etc., §§ 3337-14^3337-17. maintained and kept in repair by the railroad company, and the surface of the bridge and its approaches shall be maintained and kept in repair by the municipality or county in which the same are situated. When the public way passes under the rail- road, the bridge and its abutments shall be maintained and kept in repair by the rail- road company, and the public way and its approaches shall be maintained and kept in repair by the municipality or county in which they are situated. (April 27, 1893, 90 V. 359.) § 3337-14. BONDS AND TAX.— For the purpose of raising the money to pay the proportion of the cost of such improvement, payable by the municipality or the county, the bonds of the municipality or the county may be issued to the necessary amount, which bonds shall be of such denomination and payable at such place and -times as the council or board of legislation, or the commissioners may determine, and shall bear interest not exceeding five per cent, per annum, and shall not be sold for less than their par value. A tax on the taxable property of the municipality or «ounty not exceeding one-half mill in each year may be levied to pay the principal and interest of the bonds as the same may mature. After the completion of the improvement, a tax may be levied by the municipality or county to pay the cost of ^naintaining and keeping in repair that part of the -saork required to be maintained and kept in repair by it. (April 27, 1893, 90 v. 359.) § 3337-15. ASSESSMENT AND DETERMINATION OF DAMAGES.— All claims for damages, by reason of such improvement, filed in accordance with the provisions •of section two (2) (§ 3337-9) hereof, shall be assessed and determined in accordance -with the provisions of sections 2316 to 2326, inclusive, of the Revised Statutes, and «ither before commencing or after the completion of the proposed im^provement, as "the council or board of legislation or commissioners may decide at the time it is deter- 3nined to proceed with the proposed improvement. (April 27, 1891?, 90 v. 359.) § 3337-16. PENALTY. — In case the railroad company fails to comply with any provisions of any agreement entered of record in a court of common pleas, under this act, such court, upon the application of a city solicitor or prosecuting attorney, stating the nature of such non-compliance, may make such orders and decrees as it may deem proper and just to enforce the terms of the agreement and the requirements of this act on the part of the railroad company, and to secure its compliance therewith, and tor such purpose may, if it deem the same necessary, restrain and enjoin the railroad company from the use of its track and the operation of its railroad on and over the crossing in question, until it shall have complied with the order and decree of the •court; provided that nothing in this act shall be construed to exempt railroad com- panies from any obligations or liabilities vinder existing statutes. (April 27, 1893, 90 V. 359.) § 3337-17. GRADE CROSSING ON COUNTY LINE ROAD.— "When any grade •crossing is on a county line road, the commissioners of each county in which such crossing is situated may join in all the proceedings necessary for the abolition of such grade crossing as provided in this act, and that part of the cost of making such •change in the crossing and of keeping the same in repair which is not agreed to be paid by the railroad company or companies, shall be paid by the counties in equal proportions, and the money for such purpose shall be raised in accordance with sec- tion seven (7) (§ 3337-14) of this act. (April 27, 1893, 90 v. 359.) An Act to Abolish Grade Crossings in Municipal Corporations. :Be it enacted by the General Assembly of the State of Ohio: § 1. GRADE CROSSINGS IN MUNICIPALITIES; MUNICIPALITIES MAT ABOLISH. — Any municipal corporation may raise or lower, or cause to be raised or lowered, the grade of any street or way above or below any railroad tracks therein. 232 Private Corporations in Ohio. Grade Crossings in Municipalities — Abolishing, § 2. and may require any railroad company operating a railroad in such, municipality to raise or lower the grade of its tracks and may construct ways or crossings above the tracks of any railroad, or require the railroad company to construct ways or- crossings that are to be passed under its tracks, whenever, in the opinion of the council, board of legislation or other legislative body the raising or lowering of the grade of any such railroad tracks, or the raising or lowering or construction of such ways or crossing may be necessary, upon the terms and conditions hereinafter set forth in this act. (May 2, 1902, 95 v. 356.) § 2. PREPARATION OP PLANS AND SPECIPICATIONS BY RAILROAD COMPANY AND CITY ENGINEER.— The council, board of legislation or other legis- lative body of any such municipality, for the purpose of making or causing any such improvement to be made, may, by ordinance, require the railroad company, in co- operation with the engineer of such municipality, or the engineer designated in said ordinance by the council, board of legislation, or other legislative body, to prepare and submit to said council, board of legislation or other legislative body, within six; months, unless longer time is mutually agreed upon, plans and specifications for such improvement, specifying the grades to be established for the streets, and the height, character and estimate cost of any viaduct or any way above or below any , railroad tracks, and the change of grade required to be made of such track, including side tracks and switches; but in changing the grade of any railroad, no grade shall be required to exceed the established maximum or ruling grade governing the opera- tions by engines of that division or part of the railroad on which the improvement is to be made, without the consent of the railroad company, nor shall the railroad company's tracks be required to be placed below high water mark. PREPARATION OP SUCH PLANS AND SPECIFICATIONS BY CITY ENGI- NEER UPON REFUSAL OP RAILROAD COMPANY TO COOPERATE IN PRE- PARATION. — If at the expiration of said six months the railroad company shall have refused or failed to cooperate in the preparation of said plans and specifications, the engineer of such municipality, or the engineer designated by said council, board of legislation or other legislative body, is hereby empowered to prepare and submit same to said council, board of legislation or other legislative body, and if said plans and specifications are not satisfactory to said council, board of legislation or other legislative body and said railroad company, and cannot be made so by mutual agree- ment within a further period of three months, and in the event that either the municipality or the railroad company shall not consent to the making of such im- provements according to the plans and specifications submitted, then and in that case said plans and specifications, together with the points of difference between the council, board of legislation or other legislative body and the railroad company- may be submitted by either party to the circuit court having jurisdiction in the covmty in which said municipality is situated, which court shall, after examination of such plans and specifications, and after hearing the evidence, make a. finding as to whether or not the public safety requires such improvement to be made, and whether or not said plans and specifications are reasonable and practicable; and if such, court finds such improvement is necessary to the public safety, and that the plans are reasonable and practicable, the municipality shall be required to make such im- provements to its streets as may be necessary, and the railroad company be required, to make the changes necessary to its tracks and road bed, in order to comply with the rulings of the court; but if the court finds that the improvement is not necessary to the public safety, or that the plans and specifications are not reasonable and prac- ticable, then the improvement shall not be made upon said plans. And if more than one railroad company owns tracks on the crossing in question, then the said circuit court shall apportion the part of the expense payable by the railroad com- panies between or among the said railroad companies. The word " company " in Railroad Corporations. 233 Grade Crossings in Municipalities — Abolishing, §§ 3-7. this act is intended to include also the words " company or companies." (May 2, 1902, 95 V. 357.) § 3. APPORTIONMENT OP COST BETWEEN CITY AND RAILROAD COM- , PANY. — The cost of the construction of the improvement authorized, including the making of ways, crossings or viaducts, above or below the railroad tracks, and also including the raising or lowering of the grades of the railroad tracks and side tracks for such distance as may be required by such municipality and made necessary by such improvement, together with the cost of any land or property purchased or appropriated, and damages to owners of abutting property, or other property, shall be borne one-half by any such municipality and one-half by any such railroad com- pany or companies; and any such municipality shall have the right of action against any such railroad company for the recovery of the one-half of such costs payable by such railroad company with interest from the time they become due; [and] any such municipality and railroad company may agree as to what part of such work shall be done by such railroad company, and also fix the amount which shall be allowed or credited to such railroad company for doing such work; and such railroad company shall be entitled to deduct from half of the cost of such improvement the expense and costs incurred by it in the change of its grade required by such munici- pality or made necessary by such improvement under such specifications, but only in case the amount of such cost and expense has been agreed upon in writing between, the municipality and the railroad company, and if the amount of work that may be done by the railroad company, or made necessary by reason of such change of grade on lowering or raising its tracks, exceeds one-half of the cost of the improvement, then such railroad company shall have the right to recover the amount with interest in excess of one-half the costs and expenses, in an action at law against such munici- pality. (May 2, 1902, 95 v. 358.) § 4. HEIGHT OF VIADUCTS. — Any way, crossing or viaduct so constructed over any railroad track or tracks in any municipality shall be of such height as not to be less than twenty-one feet in the clear from the top surface of the rails of tho railroad track to the lowest point or projection of such overhead way, crossing or via- duct, unless such company shall consent to or the circuit court order a less height, but in no event shall said circuit court order a less height than 16 feet and three inches. (May 2, 1902, 95 v. 358.) § 5. HOW NECESSARY LAND ACQUIRED.— The land or property required to make any alterations in the street or highway necessitated by the proposed improve- ment shall be purchased or appropriated by the municipality or company after the manner provided by law for the appropriation of private property for public use, and the land or property required to make any alteration in the railroad or railroads necessitated by the proposed improvement shall be purchased or appropriated by the railroad company or companies after the manner provided for the appropriation of private property by such corporation; but the municipality shall not appropriate land held or owned by any railroad company necessary for the use of such railroad company in maintaining and operating its road. (May 2, 1902, 95 v. 358.) § 6. COST OP MAINTENANCE, HOW BORNE.— After the completion of the work the crossings and the approaches shall be kept in repair as follows: When the public way crosses a railroad by an overhead bridge, the cost of maintenance shall be borne by the municipality. When the public way passes under the rail- road the bridge and its abutments shall be kept and maintained by the railroad company, and the public way and its approaches shall be maintained and kept in repair by the municipality in which they are situated. (May 2, 1902, 95 v. 359.) § 7. BOND ISSUE TO PAY CITY'S SHARE OP SUCH IMPROVEMENT.— Por the purpose of raising the money to pay the proportion of the cost of such improve- 234 Private Corporations in Ohio. Grade Crossings in Municipalities, etc., §§ 8-3337-18. ment payable by tlie municipality, the bonds of the municipality may be issued to the necessary amount, which bonds shall be of such denomination and payable at such place and times as the council, board of legislation or other legislative body may determine, and shall bear interest not exceeding four per cent per annum, and shall not be sold for le"s than their par value. A tax on the taxable property of the municipality in addition to all other levies now allowed by law may be levied to pay the principal and interest of the bonds as the same may mature. After the com- pletion of the improvement a tax in addition to all other levies allowed by law may bo levied by the municipality to pay the cost of maintaining and keeping in repair that part of the work required to be maintained and kept in repair by said munici- pality. (May 2, 1902, 95 v. 359.) § 8. STBEET RAILWAY COMPANIES TO BEAR SHARE OF EXPENSE OE MAKING SUCH IMPROVEMENTS.— In case the track or tracks of any street rail- Tvay company or companies within the limits of any municipality where the improve- ments authorized by this act are made shall cross at grade or otherwise a public street or the right of .way of any railroad company or companies at a point where, under the plans and specifications provided for in this act, it has been determined to construct the said improvements, the municipality shall have power by ordinance to require such street railway company or companies to bear a fair and reasonable proportion of the cost assumed by said municipality in the making of said improve- ment, not exceeding one-half the portion payable by said municipality; provided however, that said street railway company or companies shall keep in repair at its or their own expense all tracks affected by such improvement and all construction work of whatever character which may be necessary to support such tracks. (May 2, 1902, 95 V. 359.) § 9. REPEALS. — All acts and parts of acts in conflict or inconsistent with this act are hereby repealed. (May 2, 1902, 95 v. 359.) § 10. This act shall take effect and be in force from and after its passage. (May 2, 1902, 95 V. 356.) § 3337-18. REQUIRED HEIGHT OE BRIDGES, ETC., OVER RAILROAD TRACKS — COST. — All bridges, viaducts, overhead roadways or foot-bridges, wire or other structure hereafter constructed over the track or tracks of any railroad or railroads within the state of Ohio, by any county, municipality, township, railroad company, or other private corporation or person shall be of such height as to be not less than twenty-one feet in the clear from the top of the rails of said track or tracks, to said wire and other structure or to the bottom of the lowest sill, girder or cross- Ijeam, and the lowest downward projection on such bridge, viaduct, overhead road- way or foot-bridge, except in cases where the commissioner of railroads and telegraphs shall find such construction is impracticable, and in every such case said commis- sioner shall file a written statement in his office setting forth the facts relied upon by him in making such finding. But this provision shall not apply to any main track. Provided, that where any bridge, viaduct, overhead roadway or foot-bridge over a railroad track or tracks is rebuilt, it shall be brought under the provisions of this act, and in such case, if said structure is at, or in line of, a public street or highway, and is thus erected above the grade of any such street or highway and any cross-street or streets, the cost of making such street or streets or highway or highways conform to such new grade, and all damages to owners of property abutting on such street or streets, highway or highways, because of such change of grade, shall be ascertained and determined, and paid as follows: Said or any railroad company or its assigns shall pay all costs or damages resulting as aforesaid, from the raising or building of any of its bridges or structures, as aforesaid, in the line of any street or highway at Railroad Corporations. 235 Bridges, etc., over Railroads — Tracks, etc., §§ 3337-19-3340. a greater height than, before the passage hereof; and if such company is only part owner of any such structure it shall pay its proportionate share of the cost of such change of grade and damages. Should a railroad company, or its assigns, raise the grade of its track or tracks under any of said structures not owned by it after the passage of this act, thereby causing any said bridge or structure to be put at a higher grade when rebuilt, said company shall pay all costs and damages as afore- said made necessary thereby. (May 21, 1894, 91 v. 365; April 16, 1900, 94 v. 297.) Jurisdiction of commissioner of rail- roads. The jurisdiction of the commissioner of rail- roads extends under this act to regulating the overhead structures in city street railway crossings, independent of any interlocking de- vice connected therewith. — Opinion of Atty.- Gen., 39 W. L. B, 115 (1898). Duty of railroad to employees. iSee Lake Shore, etc., Ry. Co. v. Shook, 0. C. C. 665 (1895) ; s. c, 9 C. D. 9. 16 § 3337-19. ENFOBCEIVIENT OF ACT; PENALTY; INJUNCTIOBT.— It is hereby made the duty of the commissioner of railroads (and) telegraphs to see that the provisions of this act are carried into effect; and every railroad company in the state of Ohio, public or private corporation, or person building, or permitting to be built, any bridge, viaduct, overhead roadway or foot-bridge, or wire and other struc- ture as specified in section one (§ 3337-18) of this act, shall file with the said com- missioner plans and specifications, and first receive from him a permit before being allowed to proceed with said structure and the erection of said wire. Any person, corporation, public or private, violating the provisions of this act, upon conviction before a court of competent jurisdiction, shall be fined any sum not less than one hundred nor more than one thousand dollars; and every day that said structure or wire, not in conformity with the provisions of this act, is permitted to remain, shall constitute a separate offense. The observance of the provisions of this act may be enforced by injunction on complaint of any person, corporation or board interested therein. (May 21, 1894, 91 v. 365.) § 3338. WHOLE TRACK TO BE OF UNLFORlSr GAUGE, CONNECTIONS.— Every company shall make every railroad constructed or controlled by it of one uni- form gauge or width of track from end to end; when any road connects with or crosses any other road, the companies owning or controlling such roads may adopt such uni- form gauge or width of track as will enable each company to pass its cars over the road of the other; and in case roads so connecting or crossing are constructed of dif- ferent gauges or widths of track, the companies controlling the same may lay down and miaintain, upon the whole or any portion of such road or roads, an additional rail or rails, so as to admit the passage of the same cars over both roads, and may also maintain and operate either or both of such roads, upon the track or tracks originally constructed, as may be deemed expedient by the company or companies owning or controlling either or both of the roads. (April 3, 1866, 63 v. 88, § 1.) § 3339. WHEN TRACKS MUST BE USED IN COMMON.— When two or more companies have, in the same street, alley, public way, or opening, two or more tracks of the same gauge, through a city or village, the council of such city or village may require such companies to use such tracks in common, and to pass their locomotives and cars over each track in one direction only. (April 15, 1857, 54 v. 133, § 4.) § 3340. WHEN CONNECTIONS MUST BE MADE.— When the track of a com- pany crosses, connects or intersects the track of the same gauge of another company, either company may connect the tracks of the two roads so crossing, connecting or intersecting so as to admit the passage of cars from one road to another with facility, and avoid the necessity of transferring freights from said car. And when the tracks of one company lie contiguous to coal mines, stone quarries, manufacturing establish- 236 Private Corporations in Ohio. Transporting Cars of Other Companies — Water-ways, §§ 3341-3343. ments, elevators, warehouses, navigable waters or side tracks, suitable for loading or unloading, it shall be the duty of such company to switch the cars of other com- panies, at the request of such companies, or the shippers, over and upon the tracks so lying by such coal mines, stone quarries, manufacturing establishm.ents, elevators, warehouses, navigable waters or side tracks, for the purpose of unloading or loading grain or other freight into or from, such elevators, warehouses, boats upon said navi- gable waters, or side tracks, without demurrage for forty-eight hours. (April 15, 1857, 54 V. 133, § 5; February 24, 1891, 88 v. 45.) Penalty. A penalty for violating this act is imposed by § 3376.— Chicago, etc., R. R. Co. v. Suffern, 129 111. 274 (1889). Enforcement of duty. See Chicago, etc., E. R. Co. v. 111. 274 (1889). Suffern, 129 § 3341. "WHEN COMPANIES MUST TRANSPOBT CARS 0^E OTHER COM- PANIES; KATES EOE. SWITCHING CARS.— When the tracks of two companies are connected as aforesaid, either company shall, when required, transport over its road to its destination thereon, any freight offered, in the cars in which it is offered, at its local rates per mile as set forth in the company's freight tariff for the distance most nearly corresponding, and (to) return the cars, with or without freight, without unnecessary delay; and any company owning a track or tracks lying contiguous to coal mines, stone quarries, manufacturing establishments, elevators, warehouses, navigable waters or side-tracks as aforesaid, and within the proper terminal limits of or about any city or village, shall be entitled to receive from the company whose cars are so switched, loaded and unloaded at such coal mines, stone quarries, manufactur- ing establishments, elevators, warehouses, navigable waters or side-tracks, no m.ore than one dollar per car for switching one-half mile or less on such tracks; for all dis- tances over one-half mile, and not exceeding two and one-half miles, such charge shall not exceed one dollar and fifty cents per car; and for all distances over two and one-half miles and not exceeding five miles, the charge shall not be more than two dollars per car; and for all distances of more than five miles the charge shall not be more than three dollars per car; and when such service is on the roads of two or more companies, then the aforesaid charges shall be divided between said companies in proportion to the distances of each road; provided, however, that each company shall be entitled to at least one dollar for such service, regardless of distance, and there shall be no charge for returning empty cars from said coal mines, stone quarries, manufacturing establishments, elevators, warehouses, navigable waters or side-tracks; and any such company shall be entitled to perform the service or do the switching work, herein provided for, in the daytime; and whatever private side-tracks are now, or may hereafter be constructed, it shall be the duty of the company to switch cars thereon at the rates herein specified; and the distance provided for in this section shall be computed from the general freight warehouse in such city or village, and from the siding used for the storage of cars nearest to where they may be required, outside municipalities; provided further, that nothing herein contained shall require any railway or railroad company now in operation to furnish its terminals and facili- ties at the rates herein named, to any similar company for any railroad to be built by it hereafter which shall not afford similar terminals and reciprocal facilities. (April 15, 1857, 54 v. 133, § 7; February 24, 1891, 88 v. 45; April 18, 1892, 89 V. 369.) Penalty. A penalty for violating this act is imposed by 3376. § 3342. WATS FOE WATER MUST BE PROVIDED.— There shall be con- structed and kept open, along the road-bed of every railroad, except where the road extends through or by swamp land, by the company or person operating the road, Railroad Corporations. 237 Water-ways along Boad, etc., §§ 3343-3346. ditches or drains of sufficient depth, width, and grade to conduct to some proper out- let the water which accumulates along the sides of such road-bed from the construc- tion or operation of such road. (May 7, 1869, 66 v. 335, § 1.) Ditch assessments. Only the company owning the railroad, and not the lessees thereof, can be subjected to ditch assessments. — Baltimore, etc., R. R. Co. V. Pausch, 35 W. L. B. 1 (1896). Agreement to maintain ditch. 8ee Madden v. Railway Co., 36 Oh. St. 46 (1880). Specific performance of contract for Tvaterwray. See Bell v. Dayton, etc., R. R. Co., 3 0. C. C. 31 (1887); s. c, 2 C. D. 19. § 3343. PROCEEDINGS TO EWEOBCE PBECEDING SECTION.— If , after ten days' notice or request to any ticket or other agent of the company or person operat- ing a railroad, to provide such drain or ditch, preferred by the person authorized to institute the proceedings hereinafter provided for, the provisions of the foregoing section be not complied with, any owner or tenant of laud contiguous to such railroad feeling aggrieved by such neglect may give notice of the fact, in writing, to the pro- bate judge of the county in which such neglect occurs, designating in such notice the place or places on such road where such drains or ditches have not been made; and upon the receipt of such notice the probate judge shall appoint a commission, of three disinterested freeholders of such county, who together with the county surveyor, shall proceed to the place designated in the notice, and, if upon inspection, it is found that the provisions of the preceding section are not complied with, the commission or a majority thereof, shall report the same to such probate judge, who shall keep a record of such proceedings; and the probate judge shall designate a time within which such ditches or drains shall be made or opened and shall forthwith notify the company or person operating such road, in writing, whose duty it shall be to make or open such ditches or drains within the time specified. (May 7, 1869, 66 v. 335, § 2.) § 3344. WHEN THE PROBATE JUDGE MAY LET THE WORK.— If such company or person neglect to comply with the notification of the probate judge, he shall forthwith, by advertisement for three consecutive weeks, in one or more of the weekly newspapers published in such county, give notice that the work of making or opening the ditches or drains will be let to the lowest bidder at such time and place as shall be designated in the advertisement. (May 7, 1869, 66 v. 335, § 3.) § 3345. SALE OP THE WORK, AND PROCEEDINGS THEREON.— The pro- bate judge shall, at the time and place specified in the advertisement, sell the job or jobs of making or opening such ditches or drains to the lowest bidder, and take from such bidder a sufficient bond, with surety, for the performance thereof, and upon the completion thereof to the satisfaction of the probate judge, he shall give the bidder a certificate therefor, stating the amount due for the work; and upon presentation of the certificate to the auditor of the county, he shall place the amount so certified forthwith upon the tax duplicate of the county, against the company, together with all the costs and expenses for inspection by the commission and surveyor, notices, advertisements, sale of work, making contract therefor, approval of the work, and other costs, and interest on the amount certified to be due for the work from the time the work is approved until the amount can be collected by the treasurer of the county; and such tax shall be collected as other taxes, and be paid to the persons entitled thereto on the warrant of the county auditor on the county treasurer. (May 7, 1869, 66 V. 335, § 4.) § 3346. PEES OP OFFICERS IN SUCH CASES.— The probate judge, commis- sioners, and surveyor shall be entitled to receive for their services such costs, fees 238 Private Corporations in Ohio. Begulations as to Passenger Cars, §§ 3347-3354. and expenses as are provided by law for costs, fees, and expenses of county commis- sioners and others under proceedings relating to ditches. (May 7, 1869, 66 v. 335, § 5.) § 3347. MOVABLE BBIDGE BETWEEN PASSENaEB CABS BEQUIEBD.— Every company conveying passengers shall provide the passenger cars in its trains with a flexible or movable bridge or apron, of the full width of the opening between the railings attached to the platforms of such cars, with side-boards or net-work of strap iron or- large wire, or other suitable material, at each side of the bridge or a,pron, of at least equal height with the ordinary railings upon the platforms, or some other apparatus or arrangement equally efficient to enable passengers to pass from car to car with safety. (March 10, 1871, 68 v. 35, § 1.) § 3348. PENALTIES FOE VIOLATION OF PBECEDING SECTION.— A com- pany which fails to comply with the provisions of the preceding section shall be sub- ject to a penalty of one hundred dollars for each and every day of such failure, to be recovered in a civil action, in the name of the state, and paid into the state treasury. (March 10, 1871, 68 v. 35, § 2.) § 3349. WHEN TWO PBECEDING SECTIONS DO NOT APPLY.— Nothing con- tained in the two preceding sections shall require any company to provide an apron or bridge between the platform of a. freight car and the platform of the passenger car attached to a freight train. (March 10, 1871, 68 v. 35, § 3.) § 3350. COMMISSIONEE OF BAILBOADS MUST ENFOECE CEBTAIN SEC- TIONS. — The commissioner of railroads and telegraphs shall see that the provisions of sections thirty-three hundred and forty-seven and thirty-three hundred and forty- eight are enforced. (March 10, 1871, 68 v. 35, § 4.) § 3S51. HEATING APPAEATUS FOE CABS.- Each railroad company in this state shall, when necessary to heat any of its cars for carrying passengers, mall , baggage or express matter, do so by a stove or heater so constructed and protected as to most effectually guard the passengers against the danger by fire, in case of accident by collision, or the cars being overturned or thrown from the track, and it shall be unlawful for any such company to permit any other person or corporation to use cars carrying passengers, mail, baggage or express matter over its road unless the heating apparatus thereof shall conform to the requirements of this section. (May 4, 1869, 66 v. 94, § 1; E. S. 1880; April 14, 1880, 77 v. 202.) Penalty. Constitutionality. See § 3354. See People v. New York, etc., E. R. Co., 55 Hun (ISr. Y.), 409 (1890). § 3353. HOW PASSENGEE CABS TO BE LIGHTED.— No passenger cars on any railroad shall be lighted, by naphtha, or any illuminating oil fluid made in part from naphtha, or wholly or in part from coal or petroleum, or other substance or material which will ignite at a temperature of less than three hundred degrees Fahrenheit; and the commissioner of railroads and telegraphs, by himself or agent, may, at any time, enter the cars running on any railroad and take from any lamp therein samples of the oil found there, for the purpose of testing the same, and if it proves of a lower grade than is required by the provisions of this section, he shall bring suit for the' penalty provided in section thirty-three hundred and fifty-four. (May 7, 1877, 74 v. 207, § 2.) § 3354. PENALTIES FOE VIOLATING CEBTAIN SECTIONS.— Any railroad company refusing or neglecting to comply with the provisions of section three thou- sand three hundred and fifty-one, shall be liable to a penalty of not less than one hundred, nor over five hundred dollars, to be recovered in a civil action in any court Railroad Corporations. 239 Regulations as to Station. Platforms, Passenger Cars, etc., §§ 3354-1-3354-4. of record in any county through, which such road shall pass, in the name of the state of Ohio for the benefit of the common schools of the state, to be prosecuted by the prosecuting attorney of the proper county, at the instance of the prosecuting attorney or at the instance of the railroad commissioner, as provided by law (sec. 263, Rev. St.) in other cases for the recovery of penalties and forfeitures against railroad com- panies, after due notice given by such railroad commissioner to the president or man- aging officer of such delinquent railroad company, and its neglect thereafter for a period of thirty days to comply with the provisions of said section; the prosecuting attorney to receive twenty-five (25) per cent, of all fines and costs collected under the provisions of this act. (April 14, 1880, 77 v. 202; R. S. 1880; May 4, 1869, 66 V. 94, § 4.) i ',\ § 3354-1. REGITLATING DISTANCE PROM STATION PLATFORM TO TOP OP LOWEST STEP ON" PASSENGER CARS; PENALTY.— It shall be the duty of all railroad companies, and of all persons operating a railroad in this state, on and after October 1st, after the passage of this act, to so regulate the rise from the station floor or platform to the top of the lowest step on passenger cars that it shall not be necessary to rise more than twelve inches in one step. Where the rise in one step now exceeds twelve inches, the relation between said car step and the station platform or floor must be changed not to exceed twelve inches or safe portable or stationary steps provided that will make said rise within the required limit. Any railroad failing to comply with the provisions of this act shall pay a penalty not less than $50.00 nor more than $500 for each and every violation; and it is hereby made the duty of the prosecuting attorney of the county in which the violation occurs, to immediately com- mence suit against the railroad violating the same, upon the written complaint of any citizen; and in case personal injury results from the violation of this act, in addition to the liability for damages, the party in charge of the operation and management of the road shall be deemed to be guilty of a misdemeanor, and shall be fined not less than fifty dollars nor more than five hundred dollars. (April 16, 1892, 89 v. 347.) § 3354-2. EQUIPMENT OP PASSENGER-TRAINS WITH PIRE-EXTIN- GXTISHERS; COST. — Every person, company or corporation, operating a railroad, or railroads, in whole or in part in this state, shall be required, within one year from the passage of this act, to carry, on every passenger-train operated within and throughout this state, as a part of the equipment of said train, at least one portable chemical fire-extinguisher for the purpose of protecting the lives of its passengers and employes from fire, and that one portable chemical fire-extinguisher shall be added each year thereafter to every train operated until every passenger-coach com- prising the train of passenger cars run on any of the railroads of this state shall be supplied with a portable chemical fire-extinguisher as a part of the equipment of said cars; provided that said extinguishers can be procured at a cost not exceeding fifteen dollars each. (April 27, 1896, 92 v. 396.) § 3354-3. SIZE, ETC., OP EXTINGUISHERS.— That the said fire-extinguishers shall be of sufficint size, durability, mechanical construction and able to withstand such pressure as will make it an efficient fire-extinguisher, provided that such extin- guisher shall first be approved by the commissioner of railroads and telegraphs and such different makes of extinguishers, as shall come within the requirements of this act, shall be approved by him, and his discretion relative to the approval thereof, shall be exercised in such a. way as to invite and encourage the most extended com- petition. (April 27, 1896, 92 v. 396.) § 3354-4. DESIGNATION OP CARS ON WHICH EXTINGUISHERS TO BE PLACED, AND PLACE AND MANNER OF ATTACHMENT; PENALTY.— It shall be the duty of the commissioner of railroads and telegraphs of this state to designate 240 Private Corporations in Ohio. Telegraph Line, etc.— Private Freight-ways, §§ 3354-5-3355. on which car of ^very passenger-train the first, and every subsequent extinguisher shall be placed, until each coach of every train shall be fully supplied according to the provisions of this act. It shall be the duty of said commissioner of railroads and telegraphs to determine where, in such coach said extinguisher shall be placed and how attached, but in all cases, it shall be so attached as to be easy of access in case of emergency or necessity. It is hereby made the duty of said commissioner of railroads and telegraphs to see that the provisions of this act are carried into effect. Any per- son, company or corporation mentioned in section 1 of this act, violating any of the provisions of this act, upon conviction in any court of competent jurisdiction shall be fined not less than twenty-five dollars nor more than one hundred dollars, and every day that said above named persons, company or corporation run their trains in vio- lation of the provisions of this act shall be construed to constitute a separate offense. (April 27, 1896, 92 v. 396.) § 3354-5. § 1. EAILEOAD COMPANIES TO ERECT AND MAINTAIN TELE- GRAPH OR TELEPHONE WIRES. — Every steam railway company operating ten miles or more of its railroad for the carrying or transportation of passengers and freight over its road within this state, shall erect and maintain or cause to be erected and maintained in complete working order, for use and operation along the line of its road used for the carrying and transportation of passengers or freight, a telegraph or telephone wire, with an office and proper means for communication by said wire at each of its principal railway stations. ■UNLAWFUL FOR COMPANY TO ASK OR RECEIVE COMPENSATION UN- LESS WIRES MAINTAINED. — And it shall be unlawful for any steam railway company operating ten miles or more of its railroad aforesaid having no telegraph or telephone wire along the line of its railroad, as provided herein, to ask, demand or receive any compensation whatever for the carrying or transportation of passengers or freight over its said railroad. (April 7, 1898, 93 v. 88.) § 3354-6. § 2. FORFEITURE OF CHARTER.— The charter of any steam rail- way or steam railroad company mentioned and provided for in the first section of this act, failing or neglecting to comply with the conditions of this act, shall be declared forfeited and shall be annulled upon or for a civil action brought for that purpose in the name of the state of Ohio, by the prosecuting attorney of any county in this state, in or through which any steam railroad is operated; PENALTY. — and any officer, agent or other person acting for or in behalf of any such steam railway company, who shall order, direct, advise, ask, demand or receive any compensation whatever for the carrying or transportation of passengers or freight over its railroad by any steam railway company mentioned, designated, described or provided for in this act, shall be fined in any sum not less than one hundred dollars, nor more than five hundred dollars, or imprisoned in the county jail or workhouse not less than thirty days, nor more than ninety days, or both. (April 7, 1898, 93 V. 89.) § 3355. WHEN AND HOW FREIGHT- WAYS MAY BE CONSTRUCTED.— A person owning or operating a coal or iron-ore mine, stone quarry, rolling mill, or machine shop within this state, who, as a means of removing the product thereof, uses or desires to use a railway, may construct such railway, and run cars thereon, over or under any railroad or public highway, the consent of the owner of the fee in the land at such crossing first having been obtained; but such railway shall be so constructed as in no wise to impede or interfere with the running of cars or the travel upon such railroad or highway, or in any manner to injure or impair such railroad or highway, or any switch, building, or appurtenance connected therewith or belonging ■thereto; and wben such freight-way is constructed over a railroad, it shall be at the Railroad Corporations. 241 Private Freight-ways — Scrap Metals, §§ 3356-3361. ieight of at least eighteen and one-half feet in the clear above the rails of the same. (May 1, 1873, 70 v. 194, § 1.) § 3356. WHEN PLAN OF FREIGHT-WAY MUST BE APPROVED BY COM- JVEISSIONEB. — Before any person shall construct such railway across a railroad he shall submit the plan of construction to the commissioner of railroads and telegraphs for his approval, who shall at the cost of such person for traveling expenses or other- ■wise, see that the structure shall, in all respects, conform to the requirements of the jpreoeding sectibn. (May 1, 1873, 70 v. 194, § 2.) § 3357. HOW RAILROAD SCRAP METAL SHALL BE SOLD.— No officer, agent, or employe of a company operating a railroad, except the superintendent, general managing agent,- or the receiver of the com^pany, shall sell or dispose of worn or scrap jnetal, or any iron, brass, or other metal owned by the company, and all sales and "barter of such scraps or other metals owned by a company, made by any other officer, .agent, or employe than such superintendent, general managing agent, or receiver, -shall be null and void; and no such superintendent, general managing agent, or Teceiver shall sell or dispose of any such scrap or other metals in quantities less than one ton, nor without delivering to the purchaser a bill of sale thereof, a copy of -which shall be retained and filed in the office of such superintendent, managing agent, or receiver. (April 12, 1876, 73 v. 227, § 1.) § 3358. PENALTIES FOR VIOLATIONS OF LAST SECTION.— If a superin- -tendent, general managing agent, or receiver of any company sell or dispose of any Tailroad scrap metal in quantities less than one ton, or sell or dispose of such metal dn kny quantity without delivering a bill of sale thereof to the purchaser, the com- pany which he represents shall not thereafter be entitled to the benefit of the three succeeding sections. (April 12, 1876, 73 v. 227, § 2.) § 3359. WHAT IS THE EVIDENCE OF TITLE TO SUCH SCRAP.— The per- son, company, or firm to whom is offered for sale, pledge, or trade, any worn or used links, pins, journal-bearings, or other worn or used and detached appendages of rail- road equipment, or any scrap metal of iron, brass, or steel appertaining to such «quipment, or to a railroad track shall, before purchasing or dealing in the same, ascertain whether the ownership thereof is lawfully derived, by bill of sale or other- "wise, from a company, or from the superintendent, managing cgent, or receiver thereof; and in any action in which the right or title to such article of metal is drawn in question, the person, company, or firm dealing therein, or Ms or its assignee, party "to such action, shall be bound to establish and prove, prima facie, the title and owner- ship derived as aforesaid. (April 12, 1876, 73 v. 227, § 3.) § 3360. WHEN A MIXTURE OF SUCH SCRAP DEEMED A CONFUSION OF GOODS. — If, in such action, it appear, prima facie, from the evidence on the trial, -that any of the articles or metals in controversy were stolen, or unlawfully obtained, and mixed or confused with other scrap metal, it shall be deemed a confusion of goods, unless the party claiming against the title of the company establish, prima facie, a lawful title to the residue from or through a railroad company. (April 12, 1876, 73 -V. 227, § 4.) § 3361. COMPANY MAY REPLEVY SCRAP; PROCEEDINGS IN THE AC- TION. — A company, by its proper officer or agent, or the receiver thereof, may claim "to be the general owner of, and may replevy, any of the metals or articles mentioned In section thirty-three hundred and fifty-nine, and any metals with which they may Tiave been confused as aforesaid, wherever found in the possession of any person, ■firm, or company, whenever there is good reason to believe that such metals or articles LAW GOV. PRIV. COR. — 16. 242 Private Corporations in Ohio. Laying of Tracks — Bridges over Streams, §§ 3362-3365. have been stolen or unlawfully taken from a railroad company or its receiver; and, instead of the usual averment as to ownership, in the affidavit for a writ of replevin, it shall be sufficient for the officer or agent of such company, or the receiver, to aver that he believes such metals or articles to have been unlawfully taken from such company or some other company; and the person, firm or company claiming in such action, or any other action, the right or title to any such metals or articles, shall be required to establish and prove, prima facie, a right or title thereto, lawfully derived as provided in the preceding sections; in the absence of such proof, the com- pany or receiver claiming such metals or articles shall be held and considered to be the general owner thereof; but any other company or receiver, upon showing that any part of such metals or articles was unlawfully taken from it or him, shall be entitled to such part, upon payment of a proper share of the cost and expenses of the replevy thereof; and if any company, or its receiver, replevy any property under the provisions of this section without good and reasonable cause to believe that the same was unlawfully taken from some company or its receiver, such company or receiver shall be liable to the party entitled thereto, in any sum not exceeding double the amount of the value of the property so replevied, in addition to such damages as such party sustains thereby. (April 12, 1876, 73 v. 227, § 5.) § 3362. PENALTIES FOR OBSTKXJCTING THE LAYING OF A TRACK.— No person or corporation shall willfully interfere with or obstruct any company engaged in laying the track of its road across any other railroad, if such company has fully complied with the law, and obtained the right to so lay its track; nor shall any per- son or corporation obstruct the full operation of any road so constructed; and the per- son or corporation violating the provisions of this section shall pay, for each day of such interference or obstruction, one thousand dollars, to be recovered by action in the name of the state, one-half of the recovery to go to the company so interfered with, and the other half to the county in which the interference occurs, and shall also be liable for. damages to the party injured. (April, 1876, 73 v. 160, §§ 1, 2.) § 3363. WHEN AND HOW A COMPANY MAY DISSOLVE.— Any company- which has been in existence for a period of three years, and has not commenced to build the road described in its articles of incorporation, or whose road having been, commenced, has been abandoned for three years, may be dissolved by a vote of two- thirds of its stockholders, at a meeting called for that purpose by its president, notice of which must be published in each county through or into which the line of the pro- posed road passes at least thirty days before such meeting is held. (April 27, 1872, 69 V. 171, §§ 1, 2.) § 3364. WHEN COMPANIES MUST CROSS STREAMS ON SAME BRIDGE.— When it becomes necessary for two or more railroads to cross any of the navigable waters of this state at or near the same point, by draw or swing bridge, the com- panies or persons owning or controlling such roads shall, if practicable, use one and the same bridge, and approaches thereto; and the right to use any such bridge and its approaches, or other similar structure, so situate and used as to make it necessary for the companies or persons owning or operating tw^o or more roads to agree upon a common use thereof, in order to comply with the provisions of this section, may, when such companies or persons can not so agree, be appropriated by the company or persons owning or operating a road for which such use is desired, in accordance with the provisions of law authorizing the appropriation of private property to the use of corporations. (February 10, 1860, 57 v. 10, § 1.) § 3365. PROCEEDINGS TO APPROPRIATE JOINT USE OF BRIDGE.— The statement to be filed in such appropriation proceedings shall, as near as may be, set forth the regulations according to which the joint use of such bridge and approaches. Railroad Corporations. 243 Spark Arresters, § 3365-1. or other structure, shall be regulated; and if the reasonableness of the same, or any part thereof, be denied by the defendant in the proceedings, the court sha^ hear and determine the issue, and enter on record its finding and order there'on, confirming or ' altering the regulations, as it may deem just and reasonable, subject to exceptions and reversal for error by the court of common pleas, on petition filed for that purpose; the order of the court fixing the regulations shall be made before the jury is empan- eled to assess the amount of compensation for the right sought to be appropriated; and such compensation shall be a sum equal to the annual value of such use, to be paid quarterly each year, in advance, while the same continues. (February 10, 1860, 57 V. 10, § 2.) § 3365-1. REQUIRING RAILROADS TO USE SPARK ARRESTER.— Every railroad company operating a railroad or any portion of a railroad, wholly or partly within the state of Ohio, shall place, or cause to be placed, on every locomotive engine used in operating such railroads, or constructing or repairing the same, some device or contrivance that will most effectually guard against the emission of fire, and sparks which would otherwise be thrown out by such engines, and such railroad com- panies shall keep such device or contrivance in good repair: Provided, that such railroad companies shall not be required to use such devices during the months of December, January and February. (April 9, 1885, 82 v. 118.) Jurisdiction of justice of peace. An action under any of these sections in- volves title to real estate, and a justice of the peace has no jurisdiction. — Erie E. R. Co. v. Furry, 18 0. C. C. 880 (1894) ; s. c, 31 W. L. B. 282. Failure to comply — negligence per se. A failure to comply with this section would be regarded as negligence per se. — Continental Trust Co. V. Toledo, etc., R. R. Co., 89 Fed. 637, 40 W. L. B. 379 (1898). Duty from December to February. The exception in this section does not re- lieve a company from the ordinary legal duty to observe proper care to avoid injuring the property of others by fire. — Toledo, etc., Ry. Co. V. Wickenden, 11 0. C. C. 378 (1896) ; s. c, 5 C. D. 171. V/^hat arrester must be used. A company is not obliged to use the best and latest invented spark arrester, but only the best in general use. — See Lake Side, etc., R. E. Co. V. Kelly, 10 0. C. C. 322 (1895) ; s. c, 6 C. D. 5.55; Cleveland, etc., R. R. Co. v. Fred- enbur, 3 0. C, C. 23 (1887); o. c, 2 C. D. 15. Inspection and repair. The inspection of the locomotive and appli- ances before sending it upon the road, and finding it then in good order, is not sufficient to avoid liability; they must be kept in good order on the line of road. — Cleveland, etc., R. R. Co. V. Fredenbur, 3 0. C. C. 23 (1887) ; s. c, 2 C. D. 15. Spark arresters in use on other roads. To show that a certain netting or arrester is in general use in the United States, the company cannot show its use on particular roads. — Lake Side, etc., R. R. Co. v. Kelly, 10 0. C. C. 322 (1895); s. c, 6 C. D. 555; Cleveland, etc., E. E. Co. v. Fredenbur, 3 O. C. C. 23 (1887); s. c, 2 C. D. 15. Hisb ivinds increasing draft. The fact that a high wind caused a greater draft and fire to escape is no defense . unless it appears that a locomotive properly con- structed with suitable appliances necessarily emits fire during a high wind. — Cleveland, etc., R. E. Co. V. Fredenbur, 3 0. C. C. 23 (1887) ; s. c, 2 C. D. 15; s. c, 23 W. L. B. 434. Burden of proof. In an action against a railroad company for damages by fire emitted from the smoke- stack, when it is shown by the evidence that a locomotive properly constructed and equipped with the best appliances in general use, will not emit sparks, and that the fire was caused by sparks from the company's lo- comotive, the burden of proof is upon the company to prove that its locomotive and ap- pliances were properly constructed and in good order. — Cleveland, etc., E. E. Co. v. Freden- bur, 3 0. C. C. 23 (1887) ; s. c, 2 C. D. 15. Expert testimony. It is not competent to ask a witness to ex- amine the spark arrester complained of and to state whether it was the most efticient in preventing fires. The proper way is to get all the knowledge the expert has upon the diiler- ent kinds of netting used, the different classes of spark arresters, their efficiency, etc., and to submit to the jury the question as to the efficiency of the arresters. — Cleveland, etc., Rv. Co. V. McKelvey, 12 0. C. C. 420 (1895); s.'c, 5 C. D. 561. Expert testimony. The testimony of expert witnesses is com- petent to show the different kinds of netting 244 Private Corporations in Ohio. Spark Arresters — Fires, etc., §§ 3365-2, 3365-3. that were used by different roads, to enable the jury to say whether the appliance used was proper. An expert may testify as to de- fects in the mode of attaching a spark ar- rester, and as to the effect of sparks and their vitality, and the distance they will carry and still start a fire. — Cleveland, etc., Ry. Co. v. McKelvey, 12 0. 'C. C. 426 (1895); s. c., 5 C. B. 561. Expert testimony. Expert testimony is admissible to prove that a properly constructed locomotive will not throw sparks a long distance, although the fact that the witness has not been in the em- ploy of a railroad for a long time may affect the weight of his testimony. — Martz v. Cin- cinnati, etc., E. R. Co., 12 0. C. C. 144 (1896) ; ». c, 5 C. D. 561. Proof of fires set by other engines. Where it is alleged that the appliances were defective and the management negligent, it is only competent to show that other engines of the company emitted sparks and coal on other occasions, when such evidence is limited and confined to a time and place not remote from the fire, and not until evidence has first been given tending to exclude the probability that the fire was communicated by any other means. — Pennsylvania Co. v. Rossman, 13 0. C. C. Ill (1896); 6. c, 7 C. D. 119. Proof of fire. It is competent to show that the fire started in the grass along the track soon after the passage of the engine, and that about that time and immediately after the passage of the locomotive other fires occurred in the neighborhood. — Lake Side, etc., R. R. Co. v. Kelly, 10 0. C. C. 322 (1895); s. c, 6 C. D. 555. ■Where engine cannot be traced. Where the particular locomotive that is claimed to have set the fire is not traceable, it may be shown that the railway company was reckless in this particular, and it would be competent to show that every one of the company's locomotives emitted fire. — Lake Side, etc., R. R. Co. v. Kelly, 10 0. C. C. 322 (1895) ; s. c., 6 C. D. 555; s. c, 56 Oh. St. 785; Martz V. Cincinnati, etc., R. R. Co., 12 O. C. C. 144 (1896); s. c., 5 C. D. 451. Specimens of wire as evidence. Specimens of wire netting cannot be used as showing the netting used by the defendant, unless it is shown when it was used. — Cleve- land, etc., Ry. Co. v. McKelvey, 12 0. C. C. 426 (1895); s. c, 5 C. D. 561. Cinders as evidence. If it is clearly established that sparks picked up and produced in evidence came from the engine, it would be competent to admit them in evidence. — Cleveland, etc., Ry. Co. v. McKelvey, 12 0. C. C. 426 (1895); s. c, 5 C. D. 561. Charge to jury. It is proper to charge a jury in a case under this section that " railroad companies are in no sense insurers, but in this state are re- quired by statute in the use of their engines, to prevent loss or damage by fire, to place on their locomotives or engines, and keep in repair, some device or contrivance that will most effectually guard against the emission of fire and sparks which would otherwise be thrown out by such engine, having regard to the enterprise in which they are engaged, and the objects to be accomplished. And the law- places no higher or further duty upon them than this in this particular, and when they have performed that duty they are not re- sponsible for accidental fires caused by the escape of sparks from their engines. — Lake Side, etc., R. R. Co. v. Kelly, 10 0. C. C. 322 (1895); s. c, 6 C. D. 555. § 3365-2. PENALTIES. — Any railroad company or corporation violating the pro- visions of this act shall, upon conviction thereof in any court of competent jurisdic- tion, forfeit and pay for each and every such violation any sum not exceeding one hundred dollars; and in addition thereto the court of common pleas, in and for any county through which such railroads are, or may hereafter be constructed and operated, may enjoin such railroad companies or corporations from operating on such railroads, any locomotive not provided with the device as required by section one (3365-1). (April 9, 1885, 82 v. 118.) § 3365-3. RAILROAD COMPANIES MUST KEEP RIGHT OF WAY FREE FROM COMBUSTIBLE MATERIAL.— Every railroad company, or every person in charge of a railroad as manager or receiver, shall be required to keep the right of way of such company clear and free from weeds, high grass, (and) decayed timber, which from their nature and condition are combustible material, liable to take and communicate fire(s) from passing locomotives to abutting or adjacent property. And such company shall be liable for all damage sustained by the owner or occupant of Railroad Corporations. 245 Fires, Damages by, etc., §§ 3365-4, 3365-5. abutting property from any carelessness or neglect to keep such, right of way clear of combustible material as herein provided. (March 24, 1890, 87 v. 99.) Origin or fire immaterial. Whether the Are was negligently allowed to escape or not is immaterial. — Indiana, etc., Ry. Co. v. Overman, 110 Ind. 538 (188t) ; Louisville, etc., Ry. Co. v. Nitche, 126 Ind. 229 (1890); Galveston, etc., R. R. Co. v. Polk, 28 S. W: (Tex.) 353 (1894). See Pittsburg, etc., Ry. Co. v. Hixon, 79 Ind. Ill (1881). Right of way must be cleared whole ividth. See Blue v. Aberdeen, etc., R. R. Co., 23 S. E. (N. C.) 275 (1895). Elevator is not combustible material. An allegation that a company violated this section by having a. grain elevator on its right of way, will be stricken out on motion. Such an elevator is not " combustible ma- terial " of the character contemplated by the statute. — Martz v. Cincinnati, etc., R. R. Co., 12 0. C. C. 144 (1896); s. c, 5 C. D. 451. Russian thistles. See § 4732d. § 3365-4. WHEN ABUTTING PROPERTY OWNER MAY REMOVE.— Any person owning or controlling property abutting or adjacent to such railroad right of way, in case of failure to comply with the provisions of this act after twenty days' notice in writing, the default still continuing, may cau£,s to be removed all combus- tible material from the right of way from (of) such railroad along or by such abutting or adjacent property and upon presentation of a reasonable account for the same to the agent at the nearest station of such company or receiver, and if such company or receiver refuse to pay the same within thirty days, the amount may be recovered by law, before any court having jurisdiction thereof. (March 24, 1890, 87 v. 99.) § 3365-5. LIABILITY OF RAILROAD COMPANY FOR LOSS OR DAMAGE BY FIRE; RECOVERY; EVIDENCE OF CAUSE.— Every railroad company operating a railroad or any portion of a railroad wholly or partially within the the state of Ohio, shall be liable for all loss or damage by fire originating upon the land belonging to such railroad company caused by operating such railroad. Such railroad company shall be further liable for all loss or damage by fires originating on lands adjacent to such railroad company's land caused in whole or in part by sparks from an engine passing over the line of such railroad, to be recovered before any court of competent jurisdiction within the county in which the lands on which such loss or damage occur are situated, and the existence of such fires upon such railroad company's lands shall be prima facie evidence that such fire was caused by operating such railroad. (April 26, 1894, 91 V. 187.) Constitutionality. This act and the next section are constitu- tional. — Baltimore, etc., Ry. Co. v. Kreager, 61 Oh. St. 312 (1899); Martz v. Cincinnati, etc., R. R. Co., 12 0. C. C. 144 (1896) ; s. c, 5 C. D. 451. Laiv prior to this act. Before the passage of this act it was held that negligence could not be inferred from the mere fact that an injury to adjacent property was caused by sparks emitted from locomo- tives. — Ruffner v. Cincinnati, etc., R. R. Co., 34 Oh. St. 96 (1877). See Cleveland, etc.. R. R. Co. V. Fredenbur, 3 O. C. C. 23 (1888); s. c, 2 C. D. 15. Rule -when fire- starts on right of way. -This section imposes upon every railroad company operating a railroad in this state an absolute liability for loss or damage by fire, originating on its land, caused by operatinfj the road, and the fact that the fire originated on the land of the company is made prima facie evidence that it was caused by operating the road. In an action for loss or damage, it is not necessary to allege or prove negligence on the part of the company; nor is the ab- sence of such negligence a defense.— Balti- more, etc., Ry. Co. v? Kreager, 61 Oh. St. 312 (1899) ; Lake Erie, etc., R. R. Co. v. Falk, 62 Oh. St. 297 (1900). Same subject. The plaintiff having made out a prima facie case, the company can only show that the fire did not start on its land, or that if it did so it was from some cause beyond its control. The negligence is presumed and cannot be re- butted.— Martz V. Cincinnati, etc., R, R. Co., 12 0. C. 144 (1896); s. c, 5 C. D. 451. Proof of identity of defendant. It is not necessary to show ownership of the tracks. If the proof shows the defendant was the owner, and operated the engine that 246 Private Corporations in Ohio. Fires — Evidence as to Negligence, etc., § 3365-6. caused the fire, it is sufficient to make a case if the defendant was negligent. — Toledo, etc., Ey. Co. V. Wales, 11 0. C. C. 371 (1896). Application xphen right of way ac- quired by deed and company in ex- istence before passage of act. See Baltimore, etc., Ry. Co. v. Kreager, 61 Oh. St. 312 (1899). Measure of damages. The measure of damages is the actual value of the property, and not what it would have cost to reconstruct or replace the same, with, deductions for wear and tear. Under such a rule the damages might far exceed the actual value of the property and the actual loss to the plaintiffs. Where property totally de- stroyed has a market value, that market value is the measure of compensation for the loss. — Cleveland, etc., Ry. Co. v. McKelvey, 12 0. C C. 426 (1895) ; s. c, 5 C. D. 561. § 3365-6. EVIDENCE AS TO NEGLIGENCE.— That in all actions against any person or incorporated company for the recovery of damages on account of any injury to any property, whether real or personal, occasioned by fire communicated by any locomotive engine, while upon or passing along any railroad in this state, the fact that such fire was so communicated, shall be taken as prima facie evidence to charge with negligence the corporation, or person or persons who shall, at the time of such injury by fire, be in the use and occupation of such railroad, either as owners, lessees or mortgagees, and also those who shall at such time have the care and management of such engine; and it shall not, in any case, be considered as negligence on the part of the owner or occupant of the property injured, that he has used the same in the manner, or permitted the same to be used or remained, had no railroad passed through or near the property so injured, except in cases of injury to personal property, which shall be at the time upon the property occupied by such railroad. (April 26, 1894, 91 V. 187.) Same subject. When the property destroyed under circum- stances which make the company liable there- for is insured, the right of the owner as against the railroad company and the insurer is limited to indemnity for his loss. — Lake Erie, etc., R. R. Co. v. Falk, 62 Oh. St, 297 (1900). Subrogation nrhen property insured. See Lake Erie, etc., R. R. Co. v. Falk, 02 Oh. St. 297 (1900). Jurisdiction of justice of peace. A justice of the peace has no jurisdiction for the reason that the action involves the title or possession to real estate, and not an action of trespass. — Furry v. Erie R. R. Co., 31 W. L. B. 282 (1894) ; s. c, 18 0. C. C. 880. See § 3365-6 and notes. Bule when fire starts on land adjacent to right of w^ay. A different rule of liability and of evidence is provided by the act where the loss or dam- age is caused by fire originating on land ad- jacent to the land of the railroad company. In such cases the company is liable only when the fire was caused in whole o: in part by sparks from an engine on or passing over the road; and the fact that the fire was so caused is made prima facie evidence of negligence on the part of the company! or person operating the road. But this prima facie ease of negli- gence may be overcome by proof, under a proper pleading, that the company exercised due care, the burden being on the company to show that it was free from negligence. — Baltimore, etc., Ry. Co. v. Kreager, 01 Oh. St. 312 (1899). See Continental Trust Co. v. Toledo, etc., R. R. Co., 89 Fed. 637 (1898). Pleading. A petition which alleges that the plaintiff's loss was caused by flre that originated on land adjacent to the land of the railroad com- pany, and that the fire was caused in whole or in part by sparks from an engine upon or passing over the railroad while the defendant was ■ operating it, is not subject to demurrer on the ground that it fails to charge the de- fendant with negligence. Though it does not in terms charge such negligence, it states facts which in law make a prima facie ease of negligence, and show a complete cause of ac- tion. — Baltimore, etc., Ry. Co. v. Kreager, 61 Oh. St. 312 (1899). What is prima facie case. A prima facie case is made out under this statute when evidence is offered tending to prove the facts set out in the statute, the fire, the loss of property, and that the fire was caused by sparks coming from an engine belonging to the defendant. — Toledo, etc., Ry. Co. V. Wales, 11 0. C. C. 371 (1896) ; s. c, 5 C. D. 168. Evidence in rebuttal. A party may rest his ease when he has made out a prima facie case under this statute, but he cannot withhold evidence confirmatory of such prima facie case and offer it in re- buttal, unless that evidence would also actu- ally be rebutting evidence. — Toledo, etc., Ry. Co. v. Wales, 11 0. C. C. 371 (1896) ; s. c, 5 C. D. 168. See § 3365-5 and notes. Railroad Corporations. 247 Regulations as to Employees, etc., §§ 3365-7-3365-11. Proof necessary. In an action under this section, it is neces- sary to go further than to show a mere possi- bility or conjecture that the fire was com- municated by an engine. — Minneapolis, etc., Co. V. Greait Northern Ry. Co., 86 N. W. 750 (1901) (Minn.), 21 Am. &. E. Rep. 750. § 3365-7. ATTORNEY'S FEE, AS TO.— In case either party appeal from the judgment of the court in which an action under this act is originally begun, or may carry the case to a higher court on error, the party in whose favor judgment is finally rendered shall have included in his bill of costs against the adverse party, an attor- ney fee of fifty dollars ($50) in case the appeal or error is not carried beyond the circuit court, and in case such appeal or error is carried to the supreme court of this state, there shall be an attorney fee of one hundred dollars ($100) included in his said bill of cost. (April 26, 1894, 91 v. 187.) Constitutionality. Whether this section is constitutional, quaere? But if not, it is severable from the remaining provisions, and does not aflfect their validity. — Baltimore, etc., Ry. Co. \. Kreager, 61 Oh. St. 312 (1899). See Coal Co. V. Rosser, 53 Oh. St. 12 (1895). § 3365-8. APPLICATION OE SECTION TWO.— Section two of this act (§ 3365-6) shall apply to all cases now pending, as well as to those hereafter to be commenced. (April 26, 1894, 91 v. 187.) § 3365-9. EMPLOYMENT OP COLOR-BLIND PERSONS BY RAILROAD COMPANIES FORBIDDEN, EXCEPT; EXAMINATION.— Said act be so amended as to read as follows: That no railroad company shall hereafter contract to employ any person in a position which requires him to distinguish form or color signals, unless such person within two years next preceding has been examined for color- blindness in the distinct colors in actual use by such railroad company by some com- petent person employed and paid by the railroad company, and has received a cer- tificate that he is not disqualified for such position by color-blindness in the colors used by a railroad company. Every railroad company shall require such employe to be re-examined at least once within every two years at the expense of the railroad company; provided, that nothing in this section shall prevent any railroad com- pany from continuing in its employment any employe having defective sight, in all cases where such defective sight can be fully remedied by the use of glasses, or by other means, satisfactory to the person making such examinations. (February 19, 1885, 82 V. 65; March 3, 1888, 85 v. 58.) Constitutionality. This act is constitutional in all respects, and does not affect interstate commerce. — ■ Nashville, etc., Ry. Co. v. Alabama, 128 U. S. 96 (1888); Smith v. Alabama, 124 U. S. 465 (1888). § 3365-10. PENALTY.— A railroad company shall be liable to a fine of one hundred dollars for each violation of the preceding section. (February 19, 1885, 83 V. 65; March 3, 1888, 85 v. 58.) § 3365-11. REQUIREMENTS OF CONDUCTORS, LOCOMOTIVE ENGINEERS AND FLAGMEN; AS TO FLAGMEN; SAVING CLAUSE.— That it shall be unlaw- ful for any railroad company or corporation running or operating a steam railroad in the state of Ohio, thirty miles in length or more, and the same having been run and operated for three years or more, to employ any person in the capacity of con- ductor of passenger train or trains, unless such person has had at least two years' experience in the position of conductor of either passenger, freight or construction train, within six years next preceding the time of such employment. It shall also be unlawful for any such railroad company or corporation to employ any person in the capacity of freight conductor, or conductor of a construction train, unless such 248 Private Corporations in Ohio. Begulations as to Employees, Hours of Service, etc., §§ 3365-1^3365-14. person has had at least two years' previous experience as conductor, for a term of two years, or has been employed as a brakeman for at least two years on either passenger, freight, or construction trains within five years next preceding the time of such, employment. It shall be unlawful for any such railroad company to employ any per- son in the capacity of locomotive engineer unless such person has had at least three years' experience as locomotive fireman. It shall be unlawful for any such railroad company to employ any person in the capacity of flagman of any train or trains, unless such person shall have had at least two years' experience as a brakeman on passenger, freight or construction trains, within five years next preceding the time of such employment; and all persons employed in the capacity of flagman of either freight, passenger or construction trains, shall be held equally responsible with the conductor for any injury resulting from any act of negligence or carelessness of such flagman while in the discharge of his duty. But nothing in this act shall be so construed as to prevent any such railroad company or corporation from retaining conductors, engineers or flagmen in its employ at the time of its passage. (April 17, 1891, 88 V. 320; January 31, 1893, 90 v. 20.) nals, torpedoes, et cetera, to prevent rear-end collisions, is the superior of all train and en- gine men excepting the conductor. Constitutionality. See notes to § 3365-9. Flagman not fellow-servant of other employees. It seems that this act makes the flagman, ■n-hose duty it is to attend to rear flags, sig- § 3365-12. PENALTIES. — Any railroad company or corporation knowingly vio- lating the provisions of this act, shall be fined, for the first offense, not less than five hundred nor more than one thousand dollars, and for any subsequent offense shall be fined not less than one thousand nor more than fifteen hundred dollars, which shall be recovered in a civil action in the name of the state. (April 17, 1891, 88 v. 320.) § 3365-13. DUTY OP KAILEOAD COMMISSIONEB,.— It is hereby made the duty of the railroad commissioner of this state to enforce the provisions of this act. (April 17, 1891, 88 v. 320.) § 3365-14. HOUBS OF SERVICE OF CBKTAIN RAILROAD EMPLOYES LIM- ITED; EXCEPTION; DAY'S WORK, ETC.— Any company operating a railroad, over thirty miles in length, in whole or in part within the state, shall not permit or require any conductor, engineer, fireman, brakeman or any trainman on any train, or any telegraph operator who has worked in his respective capacity for fifteen con- secutive hours, to again be required to go on duty or perform any work until he has had at least eight hours' rest, except in cases of detention caused by accident, unavoid- able or otherwise. Ten hours shall constitute a day's work, and for every hour that any conductor, engineer, fireman, brakeman or any trainman, or any telegraph opera- tor of any company who works under the direction of a superior, or at the request of the company, shall be paid for such extra services in addition to his per diem. (March 26, 1890, 87 v. 112; April 23, 1891, 88 v. 344; April 15, 1892, 89 v. 311.) Construction of act. It is apparent the legislature intended to re-enact the words " in excess of said ten hours' work " after the words " and for evei-y hour," and the words " shall be required or permitted to work, he," after the words " or at the request of the company," in the origi- nal section, which, by some inadvertence, are not in the amended sections. — Wheeling, etc., Rv. Co. V. Gilmore, 8 0. C. C. G58 (1894) ; s. c. 4 C. D. 366. Constitutionality, The provisions in this act for eight hours rest is a constitutional police regulation, but the act is unconstitutional so far as it ar- tempts to fix ten hours as a day's work. — A^'heeling, etc., Ry. Co. v, Gilmore, 8 C C 658 (1894); s. c, 4 C. D. 366. Railroad Corporations. 249 Regulations £is to Employees — Blocking Frogs, etc., §§ 3365-15-3365-18. § 3365-15. PENALTY. — Any railroad company or corporation knowingly vio- lating any of the provisions of this act shall be liable to a penalty of not less than five hundred dollars ($500), nor more than one thousand dollars ($1,000) for the first offense, and for any subsequent offense, of not less than one thousand dollars ($1,000) nor more than fifteen hundred dollars ($1,500), which shall be recovered in a civil action in the name of the state. (March 26, 1890, 87 v. 112; April 15, 1892, 89 v. 311.) § 3365-16. DUTY OF BAILEOAB COMMISSIONEK.— It is hereby made the duty of the railroad commissioner of this state to enforce the provisions of this act when complaint is properly filed in his office. (April 15, 1892, 89 v. 312.) § 3365-17. ENGINEERS ADDICTED TO DRINK NOT TO BE EMPLOYED. — It shall be unlawful for any person, company or corporation operating a railroad in whole or in part in this state, knowingly to suffer or permit, either directly, or by, or through, any representative, any person to run or operate in any capacity a rail- road locomotive on any part of his, their or its road in this state who is intoxicated, or in the habit of becoming intoxicated or to knowingly continue the employment of any person in any such capacity, after he becomes or is intoxicated, while in charge of such locomotive, and for every violation of this section, such company, person or cor- porating operating such road, shall forfeit and pay to the state of Ohio two hundred dollars to be recovered in the name of the state in a civil action to be prosecuted in any county through which the road runs, by the prosecuting attorney thereof, and he shall be entitled to twenty-five per cent, of the recovery and the balance shall b» paid into the county treasury. (April 20, 1891, 88 v. 429.) Intoxicated employees — personal injuries. See Baltimore, etc., Ry. Co. v. Henthorne, 36 W. L. B. 62, 73 Fed. 634 (1896). § 3365-18. BLOCKING OF RAILWAY FROGS, GUARD-RAILS, ETC.— That every railroad corporation operating a railroad or part of a railroad in this state, shall on or before the first day of June, 1899, adjust, fill or block, all angles in frogs, switches and crossings on their roads in all yards, divisional and terminal stations where trains are made up, with the best known sheet steel spring guard or wrought iron appliances approved by the commissioner of railroads and telegraphs. (March. 23, 1888, 85 v. 105; April 25, 1898, 93 v. 342.) Penalty not exclusive. The remedy of fine provided in this section is not exclusive, and an employee injured by reason of the failure of the company to com- ply with this section may maintain an action for damages. — Narramore v. C. C. C. & St. L. Ry. Co., 42 W. L. B. 246 (1899) ; New York, etc., R. R. Co. V. Lambright, 5 0. C. C. 433 (1891); s. c, 3 C. D. 213; s. c, 29 W. L. B. 359. Applies to trestles. This act applies to trestles, although bridges are excepted, and the question whether a structure is a bridge or a trestle is for the jury. — Johns v. Cleveland, etc., Ry. Co., 7 N. P. 592 (1900) ; s. c, 10 Dec. 348. Felloir-serTant rule. The employee of the company charged with the duty of blocking the guard-rails, frogs, and switches is not a fellow-servant of the other employees of the company. In such a case the acts of the servant are those of the master. — New York, etc., R. R. Co. v. Lam- bright, 5 0. C. C. 433 (1891) ; s. c, 3 C. D. 213. W^ho are employees. Where two railway companies receive cars from each other over a delivery track at a certain point, a person employed by one of them to take the number of its cars and to inspect their seals, as trains were made up at such place by the other, is an employee of the latter within the meaning of this section. — Atkyn v. Wabash, etc., Ry. Co., 41 Fed. 193, 23 W. L. B. 151 (1890); s. c, 6 0. F. D. 395. Assumption of risk and contributory negligence. It is against public policy to permit a com- pany to defend on the ground of assumption of risk, although it may defend on the ground of contributory negligence. — Railroad Co. v. UUom, 20 0. C. C. 512 (1898); Narramore v. C. C. C. & St. L. Ry. Co., 42 W. L. B. 246 (1899). See Lake Shore, etc., Ry. Co. v. Wins- low, 10 0. C. C. 193 (1894) ; s. c, 4 C. D. 242;. 250 Private Corporations in Ohio. Begulations as to Employees, etc., §§ 3365-19, 3365-20. Lake Erie, etc., Ey. Co. v. Craig, 73 Fed. 642 (1896); s. c, 9 0. F. D. 589. Contra, Johna V. Cleveland, etc., Ey. Co., 7 N. P. 592 (1900) ; s. c, 10 Dec. 348; a. c, 23 0. C. C. 442 (1902). Presumption that frogs are blocked. A person crossing a railroad track has the right to assume that the company has obeyed the law, unless, in the exercise of ordinary care, he learns or ought to learn that the contrary is true. — Pittsburg, etc., Ey. Co. v. Burroughs, 6 N. P. 37 (1899) ; s. c, 9 Dec. 324. Practicability of blocking. In a ease under this act, the question whether it was practicable to block the frog or switch is for the jury. — Lake Shore, etc., Ey. Co. V. Winslow, 10 0. C. C. 193 (1894); s. c, 4 C. D. 242. Evidence, blocking frog after injury. Evidence that after an accident a sufficient block was placed in the guard-rail without endangering trains is admissible to show that such block could be used with safety. — Cin- cinnati, etc., E. E. Co. V. Van Home, 34 W. L. B. 183 (1895). Proof of operation by company. See Wheeling Ey. Co. v. Lewis, 33 W. L. B. 159 (1894). During construction. Frogs need not be blocked in a new switch while it is being constructed. — See Hauss v. Lake Erie, etc., E. E. Co., 12 0. F. Dec. 613 (1901). § 3365-19. PENALTY FOB, FAILURE SO TO DO.— Any railroad corporation, failing to comply witli the provisions of this act, shall be punished by a fine of not less than one hundred dollars nor more than one thousand dollars. (March 23, 1888, 85 V. 105.) § 3365-20. CEBTAIN REGULATIONS FOR PROTECTION OP RAILROAD EMPLOYES.— It shall be unlawful for any railroad or railway corporation or com- pany owning and operating, or operating, or that may hereafter own or operate a railroad in whole or in part in this state, to adopt or promulgate any rule or regu- lation for the government of its servants or employes, or make or enter into any contract or agreement with any person engaged in or about to engage in its service, in which, or by the terms of which, such employe in any manner, directly or indirectly, promises or agrees to hold such corporation or company harmless, on account of any injury he may receive by reason of any accident to, breakage, defect or insufficiency in the cars or machinery and attachments thereto belonging, upon any cars so owned and operated, or being run and operated by such corporation, or company being defect- ive, and any such rule, regulation, contract or agreement shall be of no effect. It shall be unlawful for any corporation to compel or require directly or indirectly an employe to join any company association whatsoever, or to withhold any part of an employe's wages or his salary for the payment of dues or assessments in any society or organization whatsoever, or demand or require either as a condition precedent to securing employment or being employed, and said railroad or railway company shall not discharge any employe because he refuses or neglects to become a member of any society or organization. And if any employe is discharged he may, at any time within ten days after receiving a notice of his discharge, demand the reason of said discharge, and said railway or railroad company thereupon shall furnish said reason to said discharged employe in writing. And no railroad company, insurance society or association, or other person shall demand, accept, require, or enter into any con- tract, agreement, stipulation with, any person about to enter, or in the employ of any railroad company whereby such person stipulates or agrees to surrender or waive any right to damages against any railroad company, thereafter arising for personal injury or death, or whereby he agrees to surrender or waive in case he asserts the same, any other right whatsoever, and all such stipulations and agreements shall be void, and every corporation, association or person violating or aiding or abetting in the violation of this section shall for each offense forfeit and pay to the person wronged or deprived of his rights hereunder the sum not less than fifty dollars ($50) nor more than five hundred dollars ($500) to be recovered in a civil action. (April 2, 1890, 87 V. 149.) Railroad Corporations. 251 Defective Machinery, § 3365-21. Coj»stitTitioiiality. This act is unconstitutional, as a violation of art. 2, § 30, of the Ohio Constitution, and art. 1 of amendment 14 of the United States Constitution. — Farrow v. Railway Co., 7 N. P. 606, 5 Dee. 582 (1895); Shaver v. Penn- sylvania Co., 71 Fed. 931 (1896); s. c, 9 0. F. D. 221. See Pierce v. Van Dusen (U. S. C. C. A.), 46 W. L. B. 102 (1901). Certain contracts void. It is against public, policy for a railroad company to stipulate with its employees as a part of their contract of employment, that liability shall not attach to it for injuries caused to its servants by the careless- ness of other employees who are placed in authority and control over them. — Railwaj' Co. V. Spangler, 44 Oh. St. 471 (1866). Object of section. This section has three objects: 1. To prevent contracts cutting off liability. 2. To prevent employment or discharge of men on condition of joining or refusing to joint relief association, and to compel com- panies to state reasons of discharge. 3. Preventing relief associations from stipu- lating for waiver of liability. Relief association contracts giving option to take benefits or damages. A relief department contract which does not stipulate that all claims for damages are %9aived, but requires the beneficiary to elect whether he will accept benefits from the relief fund, or rely on his right to sue the company for damages, is not interdicted by this section, nor is it against public policy. — Pittsburg, etc.. By. Co. v. Cox, 55 Oh. St. 497 (1896); Shaver v. Pennsylvania Co., 71 Fed. 931 (1896); ». i:., 9 0. F. D. 221. Same subject. Such a contract does not lack mutuality or consideration where the company as a part of the relief agreement stipulates that it will make up deficiencies in the fund and assume the management of the fund, and do other things along that line. — Pittsburg, etc., E.y. Co. V. Cox, 55 Oh. St. 497 (1896). Acceptance of benefits by ividow. Where the widow of a deceased member of a relief association, being the beneficiary named by him, accepts benefits from the association. she is not barred from bringing an action as administratrix for wrongful death, although the amount she should receive in the probate court on final distribution may be affected by her acceptance. — Baltimore, etc., E. R. Co. v. McCamey, 12 0. C. C. 543 (1896) ; s. c, 5 C. D. 631. See Cullison v. Baltimore, etc., R. R. Co., 4 N. P. 360 (1897); s. c, 7 Dec. 269. Validity of release of damages. Where a member of a relief department ac- cepts benefits and signs a release of all dam- ages, his right of action against the company will be defeated, if at the time he signed the release he was able to read and write, and was in no manner prevented from reading the release, and was capable of understanding the effect of the same. — Farrow v. Railway Co., 5 Dee. 582 (1895); Baltimore, etc., R. R. Co. V. Bryant, 9 0. C. C. 332 (1895) ; s. c, 6 C. D. 418. When member of relief department can resort to state courts. See Baltimore, etc., R. R. Co. v. Stankard, 56 Oh. St. 224 (1897). I-. Railroad Co., 38 Oh. St. 389 (1882). Fellow-servant mle — contract of em- ployment governed by laiFS of state where made. Alexander v. Pennsylvania Co., 48 Oh. St. 623 (1891); Pittsburg, etc., Ey. Co. v. Bishop, 13 0. C. C. 380 (1896); s. c, 7 C. D. 73. Engineer superior of fireman. Jenkins v. Little Miami R. E. Co., 2 Dis. 49 (1858). Engineer. An engineer is the fellow-servant of an em- ployee working on a gravel train. — Ivumler V. Junction R. E. Co., 33 Oh. bt. 150 (1877). Engineer. An engineer is the fellow-servant of a brakeman on the same train. — Railway Co. V. Ranney, 37 Oh. St. 665 (1882); Pittsburg, etc., Ey. Co. v. Lewis, 33 Oh. St. 196 (1877); Hill V. Lake Shore, etc., Ey. Co., 22 0. C. C. 291 (1901). Railroad Corporations. 255 Automatic Couplers — Air-brakes, etc., §§ 3365-23-3365-23b. Foreman of repair gang, A ear repairer is not the fellow-servant of the foreman of the repair gang as concerns giving notice of dangers to those working xinder cars. — Lake Shore, etc., Ry. Co. v. *Lavalley, 36 Oh. St. 221 (1880). Conductor superior of engineer. Little. Miami R. R. Co. v. Stevens, 20 Oh. 415 (1851); Lake Shore, etc., Ry. Co. v. Hunter, 13 0. C. C. 441 (1897); s. c, 7 U. D. 206; Cleveland etc., Ry, Co. v.' Hudsor, 22 0. C. C. 586 (1898). Conductor superior to brakeman. Railway Co. v. Spangler, 44 Oh. St. 471 (1886); Cleveland, etc., R. R. Co. v. Keary, 3 Oh. St. 201 (1854); Cleveland, etc., Ry. Co. V. Hudson, 22 0. C. C. 586 (1898). Section hand and fireman fellotr-ser- vants, Whaalen v. Mad River, etc., R. R. Co., 8 Oh. St. 249 (1858). Inspectors and brakemen fellow-ser- vants. Railroad Co. v. Fitzpatrick, 42 Oh. St. 318 (1884); Columbus, etc., R. R. Co. v. Webb, 12 Oh. St. 475 (1861). See Lake Shore, etc., Ry. Co. V. Gilday, 16 0. C. C. 649 (1890); s. c, 9 C. D. 27. Brakemen fellovr-servants. Hawks V. Lake Shore, etc., Ry. Co., 16 O. C. C. 377 (1896); s. c, 8 C. D. 414. Section boss. Company cannot be held for failure of sec- tion boss to look up and have knowledge of time of trains so as to avoid collisions with section handcar. — Railway Co. v. Leech, 41 Oh. St. 388 (1884). Conductor and car repairer fello'w-ser- vants. Johnson v. Cleveland, etc., Ry. Co., 11 0. C. C. 553 (1896); s. c, 5 C. D. 290. § 3365-23. EQUIPMENT AND OPEKATION OF BAILEOAD CABS WITH AUTOMATIC COUPLERS AND AIE-BEAKES.— Tliat every railroad corporation, operating a railroad or part of a railroad in this state, shall, on or before the first day of August, A. D. 1900, equip and furnish all cars, owned and leased, used in its ser- vice in this state with automatic couplers, coupling automatically, and which can. be uncoupled without the necessity of men going between the ends of the cars; and shall equip, furnish and operate all cars in its passenger service, and not less than thirty per cent, of the cars in its freight service with air-brakes; and no freight train shall, after such date, be run by any such railroad corporation over any part of its road lying within this state unless at least twenty-five per cent, of the cars composing such freight train are so equipped, furnished and operated with perfectly acting air- brakes and so as to enable the engineer to control the speed of the train without the use of hand-brakes; provided, that on or before January 1, 1900, twenty-five (25) per cent, of all the automatic couplers and air-brakes hereinbefore provided to be put upon cars shall be so furnished on or before January 1, 1900. (February 27, 1900, 94 V. 25; April 25, 1898, 93 v. 286; April 14, 1893, 90 v. 184.) § 3365-23a. SEMI-ANNUAL BEPOBT TO BE MADE BY RAILBOAD COM- PANIES. — • And it shall be the duty of any railroad corporation operating a railroad or part of a railroad within this state, to report to the commissioner of railroads every six months after the passage of this act, and until the first day of August, A. D. 1900, the number and class of cars in their service equipped with such automatic couplers and air-brakes, and the number of cars not so equipped; to report upon blanks furnished by such commissioner. (February 27, 1900, 94 v. 25; April 25, 1898, 93 V. 286.) § 3365-23b. INSPECTOR OF AUTOMATIC COUPLERS, ETC.; APPOINTMENT, TERM, VACANCY, ETC.— An inspector of automatic couplers, air brakes and auto- matic power brakes on railroad cars, tenders and engines shall be appointed by the commissioner of railroads and telegraphs within thirty days after this act goes into effect, who shall hold oface for two years, unless sooner removed for cause, and until his successor is appointed and qualified. At any time a vacancy occurs in the ofllce, the commissioner of railroads and telegraphs shall immediately fill the vacancy by appointment. 256 Private Corporations in Ohio. Automatic Couplers, Air-brakes, etc.— Inspector of, §§ 3365-23c-3365-33f. QUALIFICATIONS. — No person is eligible to the oflace who is an oflacer or employe of a railroad company or owns or is interested, directly or indirectly, in the stocks or bonds of any railroad company, or who has not had at least seven years' experience in the transportation department on some line of railroad of more than thirty miles in length, operated in the state of Ohio. (May 13, 1902, 95 v. 658.) § 3365-230. BOND AND OATH.— Before entering on his duties, the inspector shall give bond to the state of Ohio in the sum of three thousand dollars, with two or more sureties, or a bond and security company, acceptable to the commissioner of railroads and telegraphs, conditioned for the faithful performance of his duties, and shall also take the usual oath of office, which oath and bond with the approval of tho commissioner endorsed thereon, shall be deposited with the secretary of state. (May 12, 1902, 95 v. 659.) § 3365-23d. SALARY AND EXPENSES.— Said inspector shall be paid a. salary of fifteen hundred dollars per year, and all necessary expenses, not to exceed one thousand dollars in any one year, which shall be paid in the manner now provided hy section 250-2 for the salary and expenses of the department of railroads and tele- graphs. Provided, that in addition to the fifteen thousand dollars ($15,000) now authorized by said section for said department of railroads and telegraphs, there shall he assessed yearly in the manner and upon the corporations as provided in said sec- tion, the sum of two thousand, five hundred dollars ($2,500) to pay the salary and expenses provided for in this act. Provided further, that for the purpose of paying the salary and expenses provided for in this act until the assessments herein pro- vided for are available, there is hereby appropriated out of any m.oney in the state treasury to the credit of the general revenue fund and not otherwise appropriated, the sum of three thousand dollars, and that for the purpose of paying the salary and expenses provided for in this act from the first day of August, nineteen hundred and three to the fifteenth day of February, nineteen hundred and four, there is hereby appropriated the sum of one thousand, six hundred and five dollars, or so muchi thereof as may be paid into the state treasury pursuant to the provisions of this act. He shall have his office in the state house in the office of the commissioner of railroads and telegraphs, and shall be under the supervision of said commissioner. Such inspector shall have the right of passing in the performance of his duties upon all the railroads within the state, and upon all trains, and any part thereof free of charge. (May 12, 1902, 95 v. 659.) [3365-23e] § 3565-23e. DUTIES OF INSPECTOR.— It shall be the duty of the inspector to inspect the couplers, air brakes and automatic power brakes found on any road in Ohio, and make weekly reports of his inspection to the commissioner of railroads and telegraphs, reporting all cars, tenders and engines, giving number of same, road on which they are found, and the road owning same, if known, which is found to have a defective coupler or brake, describing the defect. He shall also on discovering a defective coupler or brake, immediately report the same to the super- intendent of -ae road on which it is found and to the agent thereof at the nearest station, describing the defect. (May 12, 1902, 95 v. 659.) [3365-23f] § 3565-23f. PENALTY AGAINST COMPANY FOE. FAILING TO MAKE KEPAmS UPON NOTICE.— Any road whose superintendent or station agent shall receive such notice of a defective coupler or brake Shall cause the same fo be immediately repaired; and shall be liable in damages to any person injured by reason of such defective coupler or brake, for any injury received after the expiration of twenty-four hours after receiving the notice; and any such company shall be liable in damages by reason of any such defective appliance, for any injury received. But Railroad Corporations. 257 Automatic Couplers, Air-brakes, etc., §§ 3365-33g-3365-27. nothing herein shall be construed to diminish the existing legal liability of rail- roads for injuries to persons or property. (May 12, 1902, 95 v. 660.) [3365-23g] § 3565-23g. POWER OF INSPECTOR TO CONDEMN CAR, TENDER OR ENGINE. — Said inspector may, on the discovery of a defective coupler or brake on any car, tender or engine, condemn said car, tender or engine, and order the same out of service until repaired and put in good working order. On receiving from the inspector an order condemning any car, tender or engine, the employes of the road in charge of said car, tender or engine shall put the same out of service at the first freight division terminal. (May 12, 1902, 95 v. 660.) § 3365-23h. PENALTY EOR FAILURE TO COMPLY WITH THIS ACT.— Anj railroad ivhich fails to comply with any of the provisions of this act shall forfeit and pay to the state of Ohio, the sum of twenty-five ($25.00) dollars for each day 6uch defective coupler or brake is kept in use contrary to the provisions hereof, to be collected in a civil suit in any county in the state where service of process can be had on said road. It is hereby made the duty of the attorney general or the prosecut- ing attorney of any county in which such company has a line of railroad, and such officer shall, on request from the inspector, immediately commence and prosecute, without unnecessary delay, proceedings to collect said sum, and the sum so collected, less 10 per cent, fees for collecting same, due such officer, shall be paid to the gen- eral revenue fund of the state. (May 12, 1902, 95 v. 660.) § 3365-231. PENALTY AGAINST OFFICERS OF COMPANY FOR NON- COMPLIANCE. — Any superintendent conductor or other officer or employe of any road who shall wilfully refuse or neglect to comply with any of the provisions of this act shall be guilty of a misdemeanor, and on conviction thereof fined any sum not less than twenty-five or more than five hundred dollars, and be personally liable for any injuries resulting to any employes therefrona. (May 12, 1902, 95 v. 660.) § 3365-24. AS TO CARS CONSTRUCTED OR REPAIRED AFTER JULY 1, 1893. — Every railroad corporation operating a railroad or part of a railroad in this state, shall, after the first day of July, A. D. 1893, equip and furnish all of its cars constructed after such date with automatic couplers and air-brakes, and all cars taken to its shops for general repairs after such date shall be equipped and furnished with automatic couplers and air-brakes. Provided that nothing herein shall require railroad companies to equip more than thirty per cent, of the cars in its freight service with air-brakes, unless a larger per cent, is necessary to provide at least twenty-five per cent, of all the cars in each freight train with such air-brakes and as aforesaid. (April 14, 1893, 90 v. 184.) § 3365-25. EQUIPMENT OF ENGINES WITH POWER-BRAKES.— Every rail- road corporation operating a railroad or part of a railroad in this state, shall, after the first day of July, A. D. 1894, equip and furnish each of its engines used in the trans- portation of trains in this state with a power-brake. (April 14, 1893, 90 v. 184.) § 3365-26. REPORT.— And it shall be the duty of any railroad corporation operating a railroad or part of a railroad in this state, to report to the commissioner of railroads at the earliest practical date after the passage of this act, the number and class of cars in their service equipped with such automatic couplers and air- brakes, and the number of cars not so equipped. (April 14, 1893, 90 v. 184.) § 3365-27. PENALTY.— Any railroad corporation which shall fail to comply with any of the provisions of this act, shall forfeit and pay to the state of Ohio not LAW GOV. PRIV. COR. — 17. 258 Private Corporations in Ohio. Overhead Wires — Freight Train — Bates, etc., §§ 3365-28-3366. less than one thousand dollars nor more than five thousand dollars, to be recovered in an action to be brought by the attorney- general in the name of the state of Ohio,^ and which shall be prosecuted in accordance with the provisions of section 210 of the Revised Statutes. (April 14, 1893, 90 v. 184.) § 3365-28. CONSTRUCTION OF OVERHEAD WIRES.— Hereafter all telegraph, telephone, electric light or other wires of any kind constructed over the line of any steam railroad within the state of Ohio shall be put upon good substantial poles of a size not less than twelve inches in diameter at the bottom and not less than six inches in diameter at the top and that they be set in the earth not less than one- sixth of their length and well tamped. Double cross-arms shall be used in all cases and all wires shall be insulated with glass or porcelain insulators, and securely fastened to both cross-arms. All wires to clear the top of the rails at least twenty-five feet, except in cases of trolley wire crossings, when such height, as may be agreed upon, is approved by the commissioner of railroads and telegraphs shall govern. Where there is side-strain, poles shall be well guyed or braced. (April 21, 1898, 93 v. 154.) See § 3337-18 and notes. § 3365-29. DUTY OF COMMISSIONER OF RAILROADS AND TELEGRAPHS. — It shall be the duty of the commissioner of railroads and telegraphs to see that the provisions of this act are enforced and he shall have the power to cause the removal of any such telegraph, telephone, electric light or other wires hereafter constructed over any railroad within the state of Ohio, not constructed according to the provi- sions of this act. (April 21, 1898, 93 v. 154.) An Act to Better Protect the Lives of Railway Employes cmd the Travel- ing Public, and to Repeal an Act Therein 'Named. Be it enacted by the General Assembly of the State of Ohio: § 1. UNLAWFUL FOR RAILROAD COMPANY TO RUN FREIGHT TRAIN WITH LESS THAN FULL TRAIN CREW.— That it shall be unlawful for any rail- road company in the state of Ohio, that runs more than four freight trains in every twenty-four hours, to run over their road, or any part thereof, outside of yard limits, any through freight train with less than a full train crew, consisting of five persons; one engineer, one fireman, one conductor, and two brakemen except that a light engine without cars shall have the following crew: One engineer, one fireman, and one conductor or flagman when running a distance of more than twenty-five miles from starting point. (May 10, 1902, 95 v. 522; May 2, 1902, 95 v. 343.) § 2. PENALTY. — That any superintendent or his assistants or other oflacer, or employe of any railroad company doing business in the state of Ohio, who shall send out on the road, or cause to be sent out on any road, that runs more than four freight trains in twenty-four hours, any through freight train whose crew consists of less than those named in section one of this act, shall be guilty of a misdemeanor, and shall be fined not less than twenty-five dollars for each offense, the probate courts of the several counties of this state shall have final jurisdiction of ofEenses under this act. (May 10, 1902, 95 v. 522; May 2, 1902, 95 v. 343.) § 3. COMMISSIONER OF RAILROADS AND TELEGRAPHS TO ENFORCE THIS ACT. — It shall be the duty of the commissioners of railroads and telegraphs to enforce this act. (May 10, 1902, 95 v. 522; May 2, 1902, 95 v. 343.) § 3366. FREIGHT RATES TO OR FROM POINTS COMPETING WITH THE PUBLIC WORKS.— Every company whose line of road extends to any place in the Railroad Corporations. 259 Tariff Rates, etc., § 3367. vicinity of, or to a point of intersection with, any of the navigable canals or other works of internal improvement belonging to the state, shall fix and establish a tariff of rates for the transportation of merchandise, produce, and other property consigned to or from such place or point of intersection, and shall not charge or receive any higher rate for transporting similar merchandise, produce, or property over a shorter distance of its road, than is charged or received according to such fixed tariff for transportation to and from such place of intersection. (May 1, 1852, 50 v. 205, § 1.) Bight to equal rates. Where a, lower rate is given by a, common carrier to a favored shipper, which is intended to give and necessarily gives an exclusive monopoly to the favored shipper, affecting the business and destroying the trade of other shippers, the latter have the right to require an equal rate for all under like circumstances. An injunction may be obtained to prevent dis- crimination. — Soofield V. Railway Co., 43 Oh. St. 571 (1885). Bights of shippers furnishing small shipments. Where a railway company, as a common carrier, in consideration of the fact that a shipper furnished a greater quantity of freights than other shippers during a given term, agrees to make a rebate from the pub- lished tariff on such freights to the prejudice of the other shippers of like freights under the same circumstances, the contract so made is an vmlawful discrimination in favor of the larger shipper, tending to create monopoly, destroy competition, injure, if not destroy, the business of smaller operators, contrary to public policy, and will be declared void at the instance of parties injured thereby. And such a contract cannot be upheld sim- ply because the favored shipper may furnish for shipment during the year a larger freight- age in the aggi-egate than any other shipper, or more than all others combined. A discrim- ination resting exclusively on such a basis will not be sustained. And such a contract will not be upheld simply because the busi- ness to be done under it is " largely profit- able " to the company. — Scofield v. Railway Co., 43 Oh. St. 571 (1885). Same subject. A railroad company is not warranted in making a contract whereby it binds itself to carry for one shipper crude petroleum, or other article, at half the rate it agrees to charge all others for the same service, at the same time, and as part of the agreement, bind- ing itself to charge all others double the amount as a fixed open rate, and to pay such favored shipper one-half of it when collected, in consideration of his agreeing to establish and maintain a system of pipe lines to its road. Money so paid by a shipper, in igno- rance of the agreement, and received by the favored shipper, may be recovered back in an action for money had and received by the former against the latter. — Brundred v. Rice, 49 Oh. St. 640 (1892). Bemedy by quo warranto. A corporation created by this state, and en- gaged in carrying goods for hire as a common ean-ier, has no franchise, privilege, or right to discriminate in its freight rates in favor of one shipper, even when it is necessary to do so to secure his custom, if the discriminating rate will tend to create a monopoly by exclud- ing from their proper markets the products of the competitors of the favored shipper. — State ex rel. v. Railway, 47 Oh. St. 130 (1890). Action to enforce rebate. A railroad company whose line extends to a point of intersection with a canal of the state cannot make a valid contract to repay to a shipper a portion of the freight paid by him, it being the regular rate posted by the com- pany and received from other shippers, such contract being prohibited by this section. An action cannot be maintained to enforce a prom- ise of such repayment. — Baltimore, etc., R. R. Co. V. Diamond Coal Co., 61 Oh. St. 242' (1899). Purpose of act. The intent of the statute was not to restrain companies subject to its provisions from charging the maximum rates allowed by their charters, but only to prevent them from fixing rates for longer distances below the maximum and below the rates fixed for shorter distances, either to the prejudice of the canals belonging to the state, or of the public, whose shipments might be for the shorter distances. — See Campbell v. Marietta, etc., R. R. Co., 23 Oh. St. 168, 191 (1872). Bights of shiprper when agent fraud- ulently overcharges. See Maple v. Railroad Co., 40 Oh. St. 313 (1883). When consignee cannot sue. Consignee cannot sue when he has a deliv- ered price on the goods. — Thompson v. Cleve- land, etc., Ry. Co., 11 W. L. B. 211 (1884). § 3367. TARIFF OF RATES TO BE PUBLISHED, AND HOW CHANGED.— Every such company shall publish its tariff of rates so established, on property con- signed to and from such places or points of intersection, and cause the same to be 260 Private Corporations in Ohio. Tariff Rates — Discrimination as to Freight, etc., §§ 3368-3371. kept conspicuously posted at the several business stations on its road; no such com- pany, its oflacers or agents, shall charge or receive, directly or indirectly, for trans- porting any property consigned as aforesaid, any less rate than is designated on such printed card, until such rate is changed by an order of the board of directors of such company and at least ten days' notice of such change given by bill or card to be posted as aforesaid; and no such company, its officers, or agents, shall evade, or attempt to evade, by drawback, free warehousing, or in any other manner, the payment of full freightage, according to the printed tariff of rates, as herein provided. (May 1, 1853, 50 V. 205, § 2.) Constitutionality. This section is valid as an exercise of the police power of the state. — See Railroad Co. v. Fuller, 17 Wall. (U. S.) 560 (1873). § 3368. CERTAIN CONTB.ACTS INHIBITED.— A company whose road forms part of any line of railway between points common to any other line, shall not con- tract or agree with any person, or with any other railroad company or companies, having a road or line of roads, or forming a part of any line of roads, between the same points, not to carry freight or passengers to or from such common points, nor shall it refuse to receive or carry any freight or passengers brought to it to be so carried. (April 11, 1861, 58 v. 74, § 1.) See Metropolitan Trust Co. v. Columbus, etc., Ry. Co., 95 Fed. 18 (1899). § 3369. WHEN TRUNK ROADS MUST NOT DISCRIMINATE BETWEEN OTHER ROADS. — When any railroad is a trunk road, or in the nature of a trunk road, and at or near the same place connects with or is intersected by two or more other railroads tributary to or competing lines for business to or from such trunk road, or to or from points on or beyond the same, any company or person operating or using such trunk road shall transport passengers and freight going to or coming from such tributary or competing roads without making any discrimination in the charges therefor, directly or indirectly, for or against either of such roads; and the company or person owning or controlling any such trunk road shall not, by lease or otherwise, permit the same to be used or operated in any manner contrary to the foregoing provision. (April 11, 1861, 58 v. 74, § 2.) § 3370. MUST FORWARD FREIGHT BY LINE NAMED BY SHIPPER.— Every company shall ship all freight that comes within its control by the railroads over which it is ordered to be conveyed by the shipper; and any company whose agent knowingly diverts, or permits to be diverted, any freight that comes under his control from the railroad over which the same is ordered to be conveyed, shall forfeit and pay to the company from which such freight is diverted three times the amount received for transporting the same, and such agent shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not more than one hundred dollars, or imprisoned in the county jail not more than thirty days, or both. (April 11, 1861, 58 V. 74, § 3.) Recovery at commoii laTv. A contract between a shipper and the de- fendant common carrier, whereby the defend- ant was to carry goods to its terminal point and there deliver them to the plaintiff, also a common carrier, for transportation to the point of destination, was not a contraot made by other parties for the plaintiff''s benefit, but only embodied an incidental advantage which the plaintiff might derive from earnings for part of the transportation: and no right of action accrued to the plaintiff against the defendant for a violation of the contract in giving the extended transportation to a car- rier other than the plaintiff. — St. Louis, etc., Co, V. Missouri, etc., Ry. Co., 35 Mo. App. 272 (1889). § 3371. PRECEDING SECTIONS MAY BE ENFORCED BY INJUNCTION.— On complaint of the violation of any of the provisions of the three preceding sections, Railroad Corporations. 261 Freight Traffic — Discrimination in, §§ 3372-3373-2. by petition as in other actions, the observance of the same may be enforced by injunction, and the party violating the same, or any of them, shall be liable in dam- ages to the person or company injured, for the injury sustained in consequence ■thereof. (April 11, 1861, 58 v. 74, § 4.) '■^ § 3372. NOT TO DISCRIMINATE BETWEEN WAY AND THROUGH TEEIGHT. — Every company whose line of road, or any part thereof, is within this state, shall so employ its rolling stock used for the transportation of freight as to afEord as ample facilities for the transportation of local and way freight, delivered to or discharged by it along its line of road, as it affords for the transportation of through freight, in proportion to the amount of its rolling stock, and shall not give facilities for transportation to either class of freight in preference to the other. (April 14, 1863, 60 V. 93, § 1.) Discrimination betTsreen long an«l sliort hpiil. See Campbell v. Marietta, etc., R. R. Co., 23 Oh. St. 168 (1872). § 3373. NOB AGAINST POINTS IN THE STATE.— No company or person owning, controlling, or operating a railroad, in whole or in part, within this state, shall charge or receive for transportation of freight for any distance within this state a larger sum than is charged by the same company or person for the transpor- tation in the same direction, of freight of the same class or kind, for an equal or greater distance over the same railroad and connecting lines of railroad; and every such company or person who violates, or permits to be violated, the provisions of this section, shall forfeit and pay to the party aggrieved a sum equal to double the amount of the over-charge, but in no case less than twenty-five dollars, and shall also for every such unlawful act, forfeit and pay to the state a penalty- of not less than one hundred nor more than one thousand dollars, to be recovered in a civil action, brought in the name of the state, by the prosecuting attorney of the county wherein such ofEense was committed, as part of his official duties, whenever com- plaint is made to him, and he is satisfied that the provisions of this section have been violated. (March 11, 1872, 69 v. 27, § 1.) See § 3366. § 3373-1. RAILROAD COMPANIES MUST FURNISH EQUAL FACILITIES TO SHIPPERS OF SAME CLASS; DAMAGES.— It shall be the duty of all railroad companies and of all persons operating a railroad, to secure and extend to all per- sons, companies and corporations, the same and equal opportunities and facilities for receiving and shipping freights of all kinds, of the same class (and the same and equal opportunities and facilities for receiving and shipping freights of all kinds of the same class), that such railroad company or the person operating such railroad, extends to, has used or enjoys, of and concerning freights owned by such railroad com- pany, or the person operating such road or any of the officers or stockholders therein, or in which it, they or either of them have any interest and any railroad company or person operating any railroad failing to comply with or observe the provisions or requirements of this section, shall be liable in a civil action to the party injured for the damages sustained, but for any violation of this section the recovery in any such action shall be not less than five hundred dollars. (April 29, 1891, 88 v. 429.) § 3373-2. MESSAGE FOR PASSENGER DELAYED BY ACCIDENT OR COL- LISION MUST BE SENT.— That in case of any accident to or collision between any railroad train or trains, by reason of which any passenger is delayed, it shall be unlawful for any telegraph operator, at any office on the line of such railroad, whether he is employed by a railroad company or a telegraph company, or both, or whether 262 Private Corporations in Ohio. Passenger Fare, Rates of, § 3374. the office or station of which he has charge is a general commercial office, a railroad telegraph office only, or otherwise, to fail, neglect, or refuse on tender of the usual or regular charge at regular commercial offices, to receive from any persons so delayed, any telegram tendered during that time for transmission, or to send the same direct, to the person and point designated forthwith, and without any alteration, revision or approval of any person, and any such telegraph operator failing to observe or violat- ing any of the provisions of this section, shall be fined not less than fifty dollars ($50.00), nor more than five hundred dollars ($500.00), and stand committed until the fine and costs are paid, and if such violation arose from observing any order or rule of his employer, his employer shall repay to him such fine and costs, and the same may be recovered in a civil action. (April 29, 1891, 88 v. 429.) § 3374. RATES OF PASSENGER FARE PRESCRIBED. — A company operating a railroad, in whole or in part, in this state, may demand and receive for the trans- portation of passengers on its road not exceeding three cents per mile, for a distance of more than eight miles; but the fare shall always be made that multiple of five nearest reached by multiplying the rate by the distance. (April 6, 1876, 73 v. 102, § 13.) What multiple may be charged. A railroad company may charge as fare that multiple of five which is nearest to the product produced by multiplying the rate of three cents per mile by the distance, whether such multiple is above or below such product. If" such product should be equi-distant from the multiple below and the one above, the company may charge as fare either multiple. — C. C" C. & St. L. Ky. Co. v. Wells, 61 Oh. St. 268 (1899). See Railroad Co. v. Skillman, 39 Oh. St. 444 (1883); Heaton v. Cincinnati, etc., R. R. Co., 1 N. P. 433 (1894); s. c, 2 Dee. 47. Bight to establish ticket rate and car rate. A railroad company may charge a higher price for carrying passengers when the fare is paid on the train than it does at its ticket offices, provided the price thus charged is reasonable, and the fare charged on the train does not exceed the maximum allowed by law. — Railroad Co. v. Skillman, 39 Oh. St. 444 (1883). See Smith v. Pittsburg, etc., Ry. Co., 23 Oh. St. 10 (1872). Duty of passenger when more than legal rate is demanded. If a railroad company fix two rates of pas- senger fare, to wit, a ticket rate and a, rar rate, the former within and the latter beyond the limits of its authority, and the conductor of the train, under the direction of the com- pany, refuse to accept from the passenger less than the illegal and unauthorized rate, it is not necessary, to entitle the passenger to re- main on the train, to tender more than the ticket rate, although the company might have fixed such ticket rate at a higher sum. Quaere, whether any tender is necessary in such case. — Smith V. Pittsburg, etc., Ry. Co., 23 Oh. St. 10 (1872). Distance less than eight miles — nrhat is reasonable. Whether the rate of passenger fare fixed by a company under this section for distances less than eight miles is reasonable or not is a question of fact for the jury, to be determined under such instructions by the court as the circumstances of the particular case may re- quire. — Smith V. Pittsburg, etc., Ry. Co., 23 Oh. St. 10 (1872); Railroad Co. v. Skillman, 39 Oh. St. 444 (1883). See Peters v. Railroad Co., 42 Oh. St. 27S (1884); Campbell v. Mari- etta, etc., R. R. Co., 23 Oh. St. 168, 190 (1872). Unit of measurement. The unit of measurement provided by this section is one mile and fractions of a mile are not to be counted. The words " more than eight miles " are equivalent to nine miles. — See Cleveland, etc., Ry. Co. v. Wells, 65 Oh. St. 313 (1901). Bights acquired under special charter. Special privileges conferred on a railroad company by a private charter, gi'anted under the constitution of 1802, do not so inhere in the road constructed under such charter as necessarily to pass to any corporation Avhich may have acquired, under subsequent legisla- tion, the right to operate the same. — Shields V. State, 26 Oh. St. Sfi (18751; s. c. 95 V. S. 319; Pittsburg, etc., R. E. Co. v. Moore, 33 Oh. St. 384 (1878). Same subject. Railroad eonipanies incorporated before 1851, which avail themselves of the general corporation act by becoming parties to leases, are to be regarded as thereby accepting a pro- vision of said act within the meaning of § 3233. thereby relinquishing all rights under their charters inconsistent with the general Railroad Corporations. 263 Passenger Fare, Rates of, § 3374. corporation law. The right to demand and take fare free from legislative control is one of the rights thus relinquished. — Cincinnati, «te., R. R. Co. V. Cole, 29 Oh. St. 126 (1876). "What is a ticket. A ticket is a -convenient symbol to represent the fact that the bearer has paid to the com- pany the agreed price for his conveyance upon the road to the place therein designated. — See Frank v. Ingalls, 41 Oh. St. 560, 563 (1885). Xost tickets, rights of oivner. The purchaser of a nontransferable com- mutation ticket, vfho has lost it, and refuses, on account of such loss, to pay his fare upon ■a train, cannot maintain , an action against the company for being ejected from the train. — ■ Crawford v. Cincinnati, etc., E,. R. Co., 26 Oh. St. 580 (1875). Slight of holder of fraudulently ob- tained ticket. When the possession of a railroad passenger "ticket, which entitles the holder to a first- ■class passage between points named therein, las been fraudulently obtained from the com- pany, a person purchasing such ticket from the holder thereof, although for value and without notice of equities, acquires no title thereto.— Frank v. Ingalls, 41 Oh. St. 560 (1885). Hemoval from cars on refusal to pay. A railway company has the right to require passengers to pay fare, and a rule directing its -conductors to remove from the cars those who refuse to comply with the requirement is reasonable. — Shelton v. Lake Shore, etc., Ry. Co., 29 Oh. St. 214 (1876). See § 3434, notes; Crawford v. Cincinnati, etc., R. R. Co., 26 Oh. St. 580 (1875); Railroad Co. v. Skillraan, 39 Oh. St. 444 (1883); Corry v. Cincinnati, etc., E. R. Co., 3 Gaz. 90 (1859). Pleasure of damages for ejectment on refusal to pay illegal rate. A person is only entitled to compensatory ■damages where his object in taking passage on the train was to be ejected and to bring suit against the company. — See Cincinnati, etc., R. R. Co. V. Cole, 29 Oh. St. 126 (1876). Time, manner, and place of expulsion from train. See Railroad Co. v. Skillman, 39 Oh. St. 444 (1883); Crawford v. Cincinnati, etc., R. R. €o., 26 Oh. St. 580 (1875). Contract is for continuous passage. In the absence of any agreement or rule or regulation to the contrary, the obligation created by a sale of the ticket was for one •continuous passage, and if the passenger vol- untarily left the train at an intermediate ■station while the carrier was engaged in the performance of its contract, he thereby re- leased it from further performance, and had no right to demand such performance on. an- other train at another time. — Hatten v. Rail- road Co., 39 Oh. St. 375 (1883); Cleveland, etc., R. R. Co. v. Bartrain, 11 Oh. St. 457 (1860). Rights of passenger taking wrong train. Where a person has a ticket, purchased from a company, entitling him to be carried from u, certain station to another on the line of its road, and is good only on trains stop- ping at his destination, is, by the fault of the company's station agent, induced to take a train that does not, under the schedule stop at such place, and as a consequence is ejected by the conductor on calling for his ticket, and before reaching his destination, such facts show a right in the passenger against the company to recover as for a tort, and not merely for breach of contract. — Pittsburg, etc., Ey. Co. v. Reynolds, 55 Oh. Stj 370 (1896). See Pennsylvania Co. v. Wentz, 37 Oh. St. 333 (1881); Haskins v. Lake Shore, etc., Ry. Co., 4 W. L. B. 951 (1879). Free pass — liability for negligence. The validity of a stipulation exempting a carrier from liability for negligence must be determined by the law of the place where made. — Knowlton v. Erie Ry. Co., 19 Oh. St. 260 (1869). Drover's ticket — liability for negli- gence. A stipulation in a drover's ticket exempting the companj' from liability for negligence is void. — Cleveland, etc., R. R. Co. v. Curran, 19 Oh. St. 1 (1869). Tender, when not good. An offer to pay the fare to an employee on the train unauthorized to receive the same is not an offer to the company, and does not entitle the person to passage. — Cleveland, etc., R. R. Co. V. Bartrain, 11 Oh. St. 457 (1800). When tender of fare must be made. A person refusing to pay fare acquires no right to remain on the train by offering to pay the usual fare after the train has been stopped for the purpose of ejecting him. — Railroad Co. v. Skillman, 39 Oh. St. 444 (1883). Authority of agent to sell tickets. . An agent authorized to sell tickets, and stamp and deliver the same upon receiving pay therefor, cannot bind his company by stamping and delivering such tickets, without the knowledge or consent of its proper offi- cers, to a third person, to be sold by ' him, and to be paid for when sold. — Frank v. Ingalls, 41 Oh. St. 560 (1885). Duty to pay fare. The fact that a ticket has been purchased by a passenger, which was afterward wrong- 264 Private Corporations in Ohio. Rates of Freight, § 3375. fully taken up by a conductor of one of the defendant's trains, will not relieve the pas- senger from the duty of providing himself with a, ticket or paying fare on another train of the defendant in which he may be a pas- senger. In such case the right of action of the passenger would be for the wrongful tak- ing up of the ticket, and not for having been removed from a train by another conductor for refusing to pay fare. — Shelton v. Lake Shore, etc., Ry. Co., 29 Oh. St. 214 (1876). Tickets limited in time. Where a railroad company sold a ticket, which entitled the purchaser to ride upon its ears a certain number of times within a given period, for a price below the usual rate of fare, which ticket specified upon its face that it was only good during such period, the pur- chaser, having failed to ride the specified number of times within the period named, is not entitled to ride upon such ticket after the expiration of the period. — Powell v. Pitts- burg,fetc., E. R. Co., 25 Oh. St. 70 (1874); > Pennsylvania Co. v. Hine, 41 Oh. St. 276 (1884). Failure to provide seat. A passenger failing to get a seat may re- fuse to ride, and bring suit, but if he rides he must give up his ticket or pay. — Close v. Cooper, 34 Oh. St. 98 (1877). See Railway Co. V. McLean, 1 0. C. C. 112 (1885); s. c, 1 0. D. 67; s. e., 19 W. L. B. 217. Passage on freight trains. A railroad company has the right to pre- scribe reasonable conditions for the admit- tance of way passengers upon its freight trains; and payment of fare to its office agents, or procuring a ticket prior to taking' passage on such trains, is not an unreasonable condition. — Cleveland, etc., R. R. Co. v. Bart- rain, 11 Oh. St. 457 (1860), Mileage .— 'nraiver of conditions. A company may waive any of the conditions- usually attached to its mileage, for example, the signature of the ticket holder to the con- ditions. — Kent V. Railroad Co., 45 Oh. St. 284 (1887). Mileage ticket — right to take np. A railroad company has no right to take up a mileage ticket in the hands of a person, other than the purchaser. — Morton v. Lake Erie, etc., Ry. Co., 35 W. L. B. 359 (1896). § 3375. RATES OF FREIGHT PRESCRIBED. — Such company may receive for transportation of property not exceeding five cents per ton per mile, when the same is transported a distance of thirty miles or more, and in case the quantity transported, is less thsm one ton in weight, or any quantity is transported a less distance than. thirty miles, such reasonable rate as may be from time to time fixed by the corpora- tion or prescribed by law; but until a tarifE of specific rates is established by law for the transportation of property of such bulk that a quantity equal to the tonnage capacity of the car can not be carried in it, the corporation may contract for space in the car sufficient to secure the safe transportation of such property, at a rate which, shall not exceed five cents per ton per mile if such car were loaded to its tonnage capacity; and for the transportation of coal, pig-iron, limestone, iron ore, or undressed, stone or lumber, not more than five cents per ton per mile shall be charged for any distance of ten miles or more, and in case the same be transported a less distance than ten miles, such reasonable rates as may from time to time be fixed by the cor- poration or prescribed by law; and the corporation may charge on such freight ju reasonable rate for loading and unloading, when the same is in fact done by the corporation. (April 6, 1876, 73 v. 102, § 13.) ■What companies not bound by this act. The provision in the twelfth section of the act of Feb. 11, 1848, that no reduction shall be made in the rates of fare and charges for freight allowed to companies organized under said act, unless where their net profits for the previous ten years amount to ten per cent, on their capital, is in the nature of a contract, and bindiii;: on the state, and companies which have not lost their rights under said act and have not realized ten per cent, profit, are not bound by later acts reducing freight rates. — Iron R. R. Co. v. Lawrence Furnace Co., 29 Oh. Pt. 208 (1876); Railway Co. v. Furnace Co., 49 Oh. St. 102 (1892). Rights under special charters. See Campbell v. Marietta, etc., R. R. Co., 23 Oh. St. 168 (1872). Charges for less than thirty miles. Wliere a company is authorized to charge for the transportation of goods for less than thirty miles such reasonable rates as it may fix from time to time, it is unreasonable, as a matter of law, to fl.x a greater sum for a dis- tance less than thirty miles than the maxi- mum for full thirty miles. — Petei-s v. Railroad Co., 42 Oh. St. 27.5 (18S41 : Campbell v. Mari- etta, etc., R. R. Co., 23 Oh. St. 168 (1872). Railroad Corporations. 265 Freight and Freight Trains, Regulations as to, §§ 3375a-3376. Same subject. Whether a freight rate fixed by a company for distances less than thirty miles is reason- able or not is a question of fact for the juiy, to be determined under such instructions by the court as the circumstances of the par- ticular ease mav require. — Peters v. Railroad Co., 42 Oh. St. 275 (1884). See Smith v. Pitts- burg, etc., Ry. Co., 23 Oh. St. 10 (1872). Recovery of ovei-cliarges. A shipper has the right to have his goods transported at legal rates over the usual line of a common carrier of such goods; and if, to procure the services of such carrier, the ship- per is compelled to pay illegal rates, the pay- ment is not such a voluntary payment as will preclude recovering back the illegal charge, nor will it preclude such recover}-, if payments, by arrangement of parties, are made at the end of each month. — Peters v. Railroad Co., 42 Oh. St. 275 (1884). Contracts for freight. The board of directors of a railroad com- pany may, within the limit of the maximum rate authorized by law, make contracts for transportation for a fixed future period. Such a, contract, if otherwise valid, is not ultra vires and void, for the reason that it binds the company for a fixed time. — Railroad Co. V. Furnace Co., 37 Oh. St. 321 (1882); Himrod Furnace Co. v. Cleveland, etc., R. R. Co., 22 Oh. St. 451 (1872). § 3375a. RIDING ON FREIGHT TRAINS.— Physicians in the discharge of their professional duties and sheriffs, and deputy sheriffs, in the performance of their official duties, and officers and guards of the Ohio penitentiary and the Ohio state reformatory, in pursuit of escaped prisoners or returning them to their respect- ive institutions, shall be permited to ride at their own risk, and take a prisoner or prisoners upon freight trains, between stations where such trains stop, paying there- for the regular passenger fare. (April 15, 190S, 95 v. 153; April 13, 1892, 89 v. 275; April 23, 1891, 88 v. 381.) Betiveen what points can passage be taken. To give a sherifif the right to ride on freight trains in the performance of his official du- ties, " between stations where such trains stop," it is not necessary that such trains should regularly stop at such station, or be scheduled to stop there ; it is sufficient, if they are in fact stopping there at the time the sheriff gets aboard. It is not neeessai-y to allege that the train stopped regularly at the point the sheriff came aboard. — Allen v. Lake Shore, etc., Ry. Co., 57 Oh. St. 79 (1897). 'When sheriff may ride. The right of a sheriff to ride upon a freight train is not confined to cases in which a prisoner is taken upon such train; but the right exists whenever the sheriff is in the per- formance of any official duty, and complies in other respects with the statute. — Allen v. Lake Shore, etc., Ry. Co., 57 Oh. St. 79 (1897). § 3376. PENALTIES FOR VIOLATION OF TWO PRECEDING SECTIONS, OR OF SECTIONS 3340 AND 3341. — That any such company which violates or permits to be violated any of the provisions of the two preceding sections, or of sections 3340 and 3341, or which demands or receives a greater sum of money for the transpor- tation of passengers or property, or for the service provided for in either of said sec- tions, 3340 and 3341, than the sum allowed by law, shall pay to the party aggrieved for every such overcharge, a sum equal to double the amount of the overcharge; and any officer, employe, or agent of any such company who violates, or permits to be violated, any of such provisions, or demands or receives such sum of money, shall be subject to the like penalty to the party aggrieved; but in no case shall the amount to be paid be less than one hundred and fifty dollars to any bona fide claimant using the road of such company, or demanding or receiving any of the service provided for in said sections 3340 and 3341 in due course of business. Provided that a sep- arate action shall be brought for each overcharge, unless the party aggrieved give notice in writing at the time of such overcharge, except the first one, to the officer, agent or employe of such railway making or receiving such overcharge, of his inten- tion to bring such action; and no judgment shall be rendered in any action for the penalties herein provided, for more than one overcharge, unless such written notice shall have been given by the party aggrieved. (April 6, 1876, 73 v. 102, § 13; March 17, 1892, 89 v. 117; April 14, 1900, 94 v. 220.) 266 Private Corporations in Ohio. Ireight, etc. — Conditional Sales of Equipment, etc., §§ 3377-3378a. Constitutionality. This act is not uncongtitutional. — Cincin- nati, etc., R. R. Co. V. Cook, 37 Oh. St. 265 (1881). Pleading. Under an old act (71 v. 146) it was not necessary to allege that the purchaser of the ticket was, in fact, transported on the ticket for whic-i e.xcessive fare was exacted nor that the excessive fare was paid in the due course of business. As to latter averment, see sec- tion. — ■ Cincinnati, etc., R. R. Co. v. Cook, 37 Oh. St. 265 (1881). Jury to assess damages. Where such action stands for judgment on the petition, it is not error to refuse to im- panel a jury to assess damages. — Cincinnati, etc., R. R. Co. V. Cook, 37 Oh. St. 265 (1881). Penalties charged in each case. See Pittsburg, etc., Ry. Co. v. Moore, 33 Oh. St. 384 (1878). Interest. Before judgment, the penalty allowed by the act of March 30, 1875, for overcharges does not bear interest. — Railway Co. v. Fur- nace Co., 49 Oh. St. 102 (1892). Joinder of actions. See Cincinnati, etc., R. R. Co. v. Cook, 37 Oh. St. 265 (1881). Constitutionality of repeal as to pend- ing suits. See Cleveland, etc., Ry. Co. v. Wells, 65 Oh. St. 313 (1901). § 3377. WHEN THREE PRECEDING SECTIONS DO NOT APPLY.— The pro- visions of the three next preceding sections shall not apply to any railroad in. course of construction and the gross earnings of which are less than four thousand dollars per mile per annum, when such railroad is not owned or operated by companies oper- ating another railroad; provided, that such exemption shall not continue longer than five years after cars are run for the transportation of freight and passengers on said road. (April 6, 1876, 73 v. 102, § 13.) § 3378. BATES OF EARE AND FREIGHT ON BRANCH ROADS.— A company may demand and receive for the transportation of passengers on a branch road a fare not exceeding six cents per mile, and for transportation of property such reasonable rate as may be from time to time fixed by the company or prescribed by law; but if the length of such branch exceeds ten miles, the charge for passengers and freight upon the excess shall be the same as provided by law for main lines. (April 29, 1872, 69 V. 203, § 4.) § 3378a. CERTAIN CONTRACTS FOR SALE OF RAILROAD PROPERTY DfOT VALID AGAINST CREDITORS OR INNOCENT PURCHASERS UNLESS RECORDED, OR COPY FILED WITH SECRETARY OF STATE.— No contract of, or for the sale of railroad equipment, rolling stock, or other personal property (to be used in or about the operation of any railroad), by the terms of which the purchase money, in whole or in part, is to be paid in the future, and wherein it is stipulated qr conditioned that the title to the property so sold shall not vest in the vendee, but shall remain in the vendor until the purchase money shall have been fully paid, shall be valid against creditors or innocent purchasers for value, unless recorded in the ofiice of the secretary of state, or a copy thereof filed in the ofl&ce of said secretary of state, and when said contract is so recorded, or a copy thereof so filed as aforesaid, the title to the property so sold, or contracted to be sold, shall not vest in the vendee, but shall remain in the vendor until the purchase money shall have been fully paid, and such stipulation or condition shall be and remain valid, notwithstanding the delivery of the property to, and its possession by such vendee. (March 16, 1882, 79 V. 45.) "What contract 'nrithin this section. Where the agreement states that the prop- erty described is leased at a fixed rental, and that title to the property shall not vest in the railroad company, but shall remain in said trustees until the terms of the agreement shall be fully complied with, it comes within this section as a lease or a contract of sale, or a contract for the sale of railroad equipment. — Union Trust Co. v. New York, etc., R. R. Co., 17 W. L. B. 176, 180 (1887). Railroad Corporations. 267 Conaitional Sales of Equipments, etc.— Storage Certificates, §§ 3378b-3378-l. Insolvency of railroads, etc. Where the court appoints receivers of the property of a railroad company, and directs them to join the company in the execution of a, lease, consolidating former leases of rolling stock, the terms of which have not yet ex- pired, the purpose and provisions of which consolidated lease are to provide a lower monthly rental and extend the period of the leases — but leaving the title to the rolling stock in the lessors, with conditions of for- feiture for nonpayment of the rentals and other breaches of the covenants, such con- solidated lease is not a sale of the rolling stock to the receivers, and the lessors are en- titled to a, preference over the bonded in- debtedness of the railroad company, only for the rentals which accrue after execution of such consolidated lease and during the ex- istence of the receivership. — Central Trust Co. V. Ohio Southern R. E. Co., 17 0. C. C, 633 (1898); s. c, 9 C. D. 317. § 3378b. IN WRITTEN CONTRACTS FOR LEASING SUCH PROPERTY, PAR- TIES MAY PROVIDE FOR CONDITIONAL SALE OF SAME; PARTIES MAY PROVIDE THAT THE PROPERTY SHALL REMAIN IN THE LESSOR OR VENDOR UNTIL PURCHASE MONEY PAID.— In any written contract for the renting, leasing, or hiring of such property (to be used as aforesaid), it shall be lawful to stipulate or provide for a conditional sale of such property at the termina- tion of such renting, leasing, or hiring, and to stipulate or provide that the rental reserved shall, as paid, or when paid in full, be applied to an(j. treated as purchase money; and in such contract it shall be lawful to stipulate or provide that the title to such property shall remain in the lessor or vendor until the purchase money shall have been fully paid, notwithstanding delivery to and possession by the other party; subject, however, to the requirement as to recording or filing contained in the fore- going section of this act. (March 16, 1882, 79 v. 45.) § 3378c. SECRETARY OF STATE TO FILE CONTRACTS: HIS FEES, ETC.— The secretary of state, when so requested, and upon being paid the proper fees, shall record any such contract, and shall file in his ofBce a copy of any such contract, when the same shall be delivered to him for that purpose, and for every such copy so filed he shall be entitled to receive one dollar. (March 16, 1882, 79 v. 45.) § 3378d. CONSTRUING APPLICATION OF FOREGOING SECTIONS.— The provisions of the foregoing sections three thousand three hundred and seventy- eight (a), three thousand three hundred and seventy-eight (b) and three thousand three hundred and seventy-eight (c), shall extend and apply, not only to contracts made with a railroad company, as vendee or lessee, but also to all contracts which may be made with any corporation, company, or person, as vendee or lessee, by which any such corporation, company, or person shall undertake to purchase, rent, lease, or hire any railroad equipment, cars, rolling stock, or other personal property, designed for use on, or in connection with, a railroad or railroads, in this or other states. (April 12, 1889, 86 v. 255.) § 3378-1. AUTHORIZING RAILWAY COMPANIES TO ISSUE STORAGE OR WAREHOUSE CERTIFICATES. — Any railway company, organized under the laws of this state, upon the receipt of iron ore or grain or other merchandise from any vessel, water-craft or other source for storage and deposit, duly consigned to said company may, upon the request or demand of the owner or owners of said ore, grain or other merchandise, and with the written consent of the consignee, issue to the owner or owners of said ore, grain or other merchandise, a certificate, receipt or voucher, which certificate, receipt or voucher, shall name the railway company by whom said ore or grain or other merchandise is held at the time said certificate, receipt or voucher is issued, to whom said ore, grain or other merchandise was con- signed, the quantity held by said company, and so near as may be the quality or grade thereof, but not incurring any liability for the grade or quality, which certificate, receipt or voucher, shall be signed by the president or vice-president of said com- pany, and countersigned by the general agent of said company appointed for that purpose, or such other officers as may be appointed by said railway company, and shall be transferable and negotiable by indorsement thereon, by the person or per- 268 Private Corporations in Ohio. Baggage — Bills of Lading — Consolidation, §§ 3378-2-3379. sons to whose order the same is made payable. That on the presentation of said cer- tificate, receipt or voucher, so indorsed to said railway company at its general offices, (by) the holder or holders thereof and on demand, the said railway company shall deliver to said holder or holders, the iron ore or grain or other merchandise so described therein, on the payment by such person or persons to said railway company (of) all proper charges thereon. (February 33, 1889, 86 v. 53.) False Tirarehouse receipts — crime. See § 7086. § 3378-3. BICYCLE AS BAGGAGE.— That hereafter for the purposes herein specified, bicycles, with or without lanterns or tool boxes attached, are declared to be baggage, and shall be transported as baggage for passengers, by all railroad com- panies operating in this state, and be subject to the same charges and liabilities as other baggage, and no passenger shall be required to crate, cover, or otherwise pro- tect any such bicycle; provided, however, that a railroad corporation shall not be required to transport, under the provisions of this act, more than one bicycle for a single person. (March 3, 1898, 93 v. 34; April 27, 1896, 92 v. 373.) §§ 3378-3. RAILROAD COMPANIES REQUIRED TO FURNISH BILLS OF LAD- ING; EFFECT OF SUCH RECEIPT. — All railroad companies operating any line of railway in the state of Ohio, upon demand of any person or corporation desiring to ship goods or merchandise of any kind in car lots, at any railway station or shipping point in the state of Ohio, shall count or check the packages composing each lot or car load, and furnish to the shipper of such goods a receipt or bill of lading, speci- fying the number of packages shipped in each car; and such receipt shall bind the railroad company so executing the same to deliver the same number of packages so specified, at the place of destination named in such bill of lading. (May 8, 1894, 91 V. 307.) EfEect of bill of lading when goods TFere never received. Prior to the enactment of this section it was held in an action by a shipper against the owners of a steamboat engaged in the business of common carriers, to recover for the nondelivery of goods as per bill of lading, the defendants were liable onl}' for so much of the goods as was actually received on the boat or delivered to some one authorized to receive freight on her account. — Dean v. King, 22 Oh. St. 118 (1871). See Little Miami, etc., R. R. Co. V. Dodds, 1 C. S. C. 47 (1870). Parol evidence. In such action, parol evidence is admissible for the purpose of explaining or contradicting the terms of the bill of lading, in so far as it purports to be a receipt for freight delivered ■Dean v. King, 22 Oh. St. 118 to the boat.- (1871). Scope of agency. The mere employment of an officer or agent for such boat does not clothe him with ap- parent authority to issue bills of lading for goods not on board, or not delivered to one authorized to receive freight on account of the boat ; and in case such officer or agent does carelessly or fraudulently issue a bill of lading acknowledging the receipt of freight, the owners are not estopped to deny the re- ceipt thereof. — Dean v. King. 22 Oh. St. 118 (1871). See Second National Bank v. Wal- hvidge, If) Oh. St. 419 (1SG9); Wood v. Perry, Wright, 240 (1833). False bill of lading — crime. See § 708,5. § 3378-4. PENALTY. — Any railroad company, or any agent or officer thereof, refusing to comply with the provisions of this act shall be liable to a penalty of fifty dollars, to be recovered by civil action against the railroad company by which such agent or officer is employed, or to which company such goods are offered for ship- ment. (May 8, 1894, 91 v. 207.) § 3379. WHEN COMPANIES WHOSE ROADS ARE IN THE STATE MAY CONSOLIDATE. — When the lines of road of any railroad companies in this state or any portion of such lines, have been or are being so constructed as to admit the pas- sage of burthen or passenger cars over any two or more of such roads continuously, Railroad Corporations. 269 Consolidation — Domestic and Foreign Companies, § 3380. ■without break or interruption, such companies may consolidate themselves into a. single company. (March 30, 1877, 74 v. 71, § 1.) Foiver of state to impose conditions. A state in granting a corporate privilege to its own citizens, or what is equivalent, in per- mitting a foreign corporation to become one of the constituent elements of a, consolidated company, may impose such conditions as it seems proper, and that the acceptance of the franchise in either case implies a submission to the conditions without which the franchise could not have been obtained. — Ashley v. Eyan, 153 U. S. 436, 443 (1893) ; s. c, 8 0. F. D. 215; s. c, 49 Oh. St. 504, 527. Consolidated companies subject to gen- eral laivs. Consolidated railroad companies organized in pursuance of the consolidation act are cor- porations formed under a general law, within the meaning of the constitution, and as such subject to the limitations and reservations of the constitution; and the general assembly has power to alter and regulate rates of fare chargeable by such companies. — Shields v. State, 26 Oh. St. 86 (1875); s. c, 95 U. S. 319; s. c, 4 0. F. D. 471. Foxrers of corporations pending con- solidation. Corporations, which are parties to an agree- ment to consolidate, continue in the full en- joyment of their powers and franchises re- spectively, and may accept subscriptions to their capital stock at any time before con- solidation is consummated by filing the agree- ment of consolidation with the secretary of state. — Mansfield, etc., R. R. Co. v. Brown, 26 Oh. St. 223 (1875). What companies are connected. Two railroad companies owning lines of railroad connected only by other railroads, which such companies hold by lease, are not authorized to consolidate into one corporation under this section. — State v. Vanderbilt, 37 Oh. St. 590 (1881). Same subject. Companies connected by the lines of a union depot and terminal company, in which each has an interest, may consolidate. — Burke v. Cleveland, etc., Ry. Co., 22 W. L. B. 11 (1889). See § 3300 and notes. AVhat lines are competing. The lines of two railroad companies, which are in their general features parallel and competing, cannot be connected for the car- riage of freight and passengers over both " continuously " within the meaning of this section, and hence cannot consolidate. — State v. Vanderbilt, 37 Oh. St. 590 (1881); Burke V. Cleveland, etc., Ry. Co., 22 W. L. B. 11 (1889). See § 3300 and notes. Subscriptions to stock. Subscriptions to capital stock are to be construed with reference to consolidation stat- utes in force, and subscribers are bound thereby as if the statutes were a part of the contracts of subscription. — Mansfield, etc., R. R. Co. V. Brown, 26 Oh. St. 223 (1875). Bight of stockholders of constituent companies to enforce operation of roads. See Port Clinton, etc., R. R. Co. v. Cleve- land, etc., R. R. Co., 13 Oh. St. 544, 560 (1862). § 3380. CONSOLIDATION OF DOMESTIC WITH FOEEIGN RAILWAY COR- PORATION. — A company organized in this state for the purpose of constructing, owning and operating a line of railway, or whose line of road is made or is in process of construction to the boundary line of this state, or to any point either in or out of the state, may consolidate its capital stock with the capital stock of any company in an adjoining state, organized for a like purpose, and whose line of road has been projected, constructed or is in process of construction to the same point, where the several roads so united and constructed will form a continuous line for the passage of cars, and roads running or to be constructed to the bank of a river which is not bridged, or to the tracks and property of a union depot company, the use of which is enjoyed by either of the companies so proposed to be consolidated, shall be held to be continuous under this section. (April 18, 1890, 87 v. 219; April 22, 1885, 82 V. 150; March 30, 1877, 74 v. 71, § 1.) Status of company formed under this section. The result is that by consolidation, whether between Ohio companies or between an Ohio company and companies of another state, a new company is formed by the extinguishment of the old ones. Many difficulties have been suggested, as arising if a company formed by the consoli- dation of an Ohio company with a company of another state should be held to be a new corporation. We would have, it is claimed, the anomaly of a corporation with a capital stock, without the individual liability of the stockholders. The fallacy consists in the assumption, for such would not be the case. There has been some diversity of opinion as to the status of a corporation formed by the 270 Private Corporations in Ohio. Consolidation of Consolidated Companies, § 3380a. consolidation of eonipaniea under the laws of different states. But it seems' pretty well settled, upon principle at least, that where formed under co-operative legislation of the different states, it becomes a corporation in each state where its road is located. It is a legal entity residing and doing business in different states, with a status in each, derived from and determined by the laws of that state. If by the laws of one of these states an indi- vidual liability attaches to the holder of stock in an incorporated company, the same liability will attach to its stockholders. The liability will in this regard depend upon the laws of the state where it is used. The stockholders of the company in the other states must be presumed to know what the Ohio law is in this regard; and by agree- ing to consolidate with an Ohio company must be presumed to assent to the individual liabil- ity attached by Ohio law to the ownership of stock in an Ohio company. — Ashley v. Ryan, 49 Oh. St. 504, 529 (1892). See Ohio, etc., R. R. Co. V. Wheeler, 1 Black (U. S.) 286 (1861). Adjoining state — meaning. This act may as properly be construed to mean the state adjoining the state in which the first company has its line of road, as the state adjoining the state in which the first company is incorporated, so as to enable, for example, an Ohio company to consolidate with Indiana and Illinois companies. — Adelbert College V. Toledo, etc., Ry. Co., 3 N. P. 15 (1894) ; s. c, 5 Dec. 14. See Union Trust Co. V. New York, etc., R. R. Co., 17 W. L. B. 176. 177 (1887); Continental Trust Co. v. Toledo, etc., R. R. Co., 82 Fed. 642 (1897); s. c, 9 0. r. D. 321; Toledo, etc., R. R. Co. v. Con- tinental Trust Co., 95 Fed. 497 (1899). Removal of causes. Notwithstanding the consolidation of two railroad corporations of different states, each retains its identity as a corporation of the state in which it was originally created; and in a, suit against the consolidated corporation brought in one of such states, it cannot ob- tain a removal to the federal courts on the ground that it is a citizen of the other state, although the consolidation was had under the laws of the latter. — Paul v. Baltimore, etc., R. R. Co., 44 Fed. 513 (1890); Ohio, etc., R. R. Co. V. Wheeler, 1 Black (U. S.) 286 (1861). Roads connected by union companies. Where two railway companies owning lines of railroad, seeking consolidation, are con- nected by the tracks of a " union " company organized by several railway companies to secure union depot and terminal facilities, and where by law the interest of each com- pany in the union company, in its capital stock, and in its property and effects of every kind, are deemed an appurtenance to the railroad of such proprietary company, and are not alienable except with and as part of the railroad of such proprietary company it will be held that the companies do unite and form a continuous line within the mean- ing of this section. — Burke v. Cleveland, etc., Ry. Co., 22 W. L. B. 11 (1889). De facto consolidation. Where two roads not coming under this sec- tion attempt and apparently complete con- solidation by colorable proceedings in a formal way to the approval of the proper state offi- cers, the certificate of incorporation, duly certified, being admitted to record in the oflSce of the secretary of state, and its rights as a corporation having never been challenged by the state, it will be entitled to be considered at least a corporation de facto with power to mortgage its property, after it has acquired and disposed of valuable property and in- curred numerous obligations. — Union Trust Co. V. New York, etc., R. R. Co., 17 W. L. B 176 (1887). See Toledo, etc., R. R. Co. v. Continental Trust Co., 95 Fed. 497 (1899). Estoppel. A railroad company having possession of and operating property obtained through con- solidation and foreclosures in which the con- solidation was recognized as valid, is estopped to question the validity of the consolidation. — Adelbert College v. Toledo, etc., Ry. Co., 3 N. P. 15 (1894); s. c, 5 Dec. 14; Farmers''Loan Co. V. Toledo, etc., Ry. Co., 67 Fed. 50 (1895) ■ s. c, 8 0. F. D. 435, 9 0. F. D. 230. Under old acts road ivas required to be in process of construction. See Mansfield, etc., R. R. Co. v. Stout, 26 Oh. St. 241 (1875); Union Trust Co. v. New York, etc., R. R. Co., 17 W. L. B. 176 (1887). § 3380a. CONSOLIDATED COMPANIES MAY CONSOLIDATE.— Any railroad company formed by the consolidation of a company or companies of this state vith a company or companies of another state or states, may make a further consolidation with a company or companies of another state or states owning a continuous and connected, but not parallel or competing lines. The constituent companies shall have power to fix by the agreement for such consolidation the terms and conditions upon which the same shall be made, which terms and conditions may include the payment or retirement of the preferred stock of either or any of the constituent com- panies, if they have such; and in case the new company shall issue preferred stock, the par value of the shares thereof may be fixed by the agreement of consolidation. Railroad Corporations. 271 Consolidation — Proceedings for, § 3381. or by the resolution for the issue thereof without regard to the par value of shares of the common stock of such company. (May 2, 1902, 95 v. 354.) § 3381. PROCEEDINGS TO EFFECT SUCH COWSOLIDATIOIT.— The consoli- dations shall be made under the conditions and restrictions following: 1. The directors of the several companies may enter into a joint agreement, under the corporate seal of each company, for the consolidation of the companies, and prescribing the terms and conditions thereof, the mode of carrying the same into effect, the name of the new company, the number of directors and other officers thereof, and their places of residence, the amount of the capital stock of the new company agreed upon, the number of shares of capital stock, the amount of each share and the manner of converting the capital stock of each of the constituent companies into that of the new company, with such other details as they may deem necessary to perfect the new organization and the consolidation of the companies. 2. Tlie agreement shall be submitted to the stockholders of each of the companies, at a. meeting thereof called separately for the purpose of taking the same into con- sideration; due notice of the time and place of holding such meeting, and the object thereof, shall be given by written or printed notices addressed to each of the persons in whose names the capital stock of the companies stands on the books thereof, and also by a like notice published in some newspaper in the city or town w^here such com- pany has its principal office or place of business; provided, that in case all the stock- holders are present at such meeting, in person or by proxy, such notice may be waived in writing. At the meeting of stockholders the agreement of the directors shall be considered, and a vote by ballot taken for the adoption or rejection of the same, each share of stock on which has been paid all the installments called for by the board of directors, entitling the holder thereof to one vote; the ballots shall be cast in person or by proxy, and if two-thirds of all the votes cast at the meeting be for the adoption of the agreement, that fact shall be certified thereon by the secre- tary of each of the companies, and the agreement so adopted, or a certified copy thereof shall be filed in the office of the secretary of state. And all consolidation agreements heretofore entered into and ratified by such companies substantially in manner as in. this section prescribed, shall be as valid as if entered into and ratified by virtue of this section. (April 22, 1885, 82 v. 150; B. S. 1880; March 30, 1877, 74 v. 71, § 2.) Preliminary agreement for consolida- tion of corporations. A preliminary agreement appointing parties named as agents and proxies to carry out an agreement and perfect the consolidation of corporations, authorizing them to attend any and all meetings of the corporation, called for the purpose of carrying out the terms of the agreement, and to vote the stock in such manner as they shall find necessary to carry out the purposes of the agreement, and agreeing to deliver to such parties stock of the consolidating companies, with the fur- ther provision that the shares of the consoli- dated company shall be delivered to the con- stituent .companies, apparently contemplating delivery to such companies in their corporate capacity, becomes merged in the contract of consolidation, and does not fix the rights of the parties; it has no legal effect in and of itself, but is purely preliminary. — Robison v. Cleveland City Ry. Co., 13 Dec. 1. Number and residence of directors. The agreement of the directors of the con- solidating companies is fatally defective if it does not state the number and residence of the new directors. This provision of the stat- ute is mandatory. — State v. Vanderbilt, 37" Oh. St. 590, 654 (1882). See Trester v. Mo. Pac. R. R. Co., 33 Neb. 171 (1891). Constituent companies after consolida- tion. Upon the instant of the consolidation of the corporations the consolidating companies cease to exist except as to creditors, and they survive then, under § 3384, Rev. Stat., for the mere purpose of enabling creditors to collect their debts against them. — Robison v. Cleveland City Ry. Co., 13 Dec. 1. Powers of constituent companies. Under this section the parties to a consoli- dation agreement continue in the full exer- cise of their franchises and powers, and may accept subscriptions to their capital stock at any time before consolidation is consummated by filing the agreement of consolidation with the secretary of state. — Mansfield, etc., R. R. Co. V. Brown, 26 Oh. St. 223 (1875). 272 Private Corporations in Ohio. Consolidation — Proceedings for, § 3381. Amount and nature of capital stock. The companies may agree upon the number and amount of shares of the proposed con- solidation company, may classify such new stock into " common " and " preferred," and maj' issue a greater or less number of shares than that of the aggregate of the constituent companies to secure a just and equitable divi- sion of property between the shareholders of the companies. — Burke v. Cleveland, etc., Ry. Co., 22 W. L. B. U (1889). Contract giving veto po\irer to pre- ferred stockholders. Where a contract of consolidation provided: " The consolidated company shall not issue any evidences of funded debt, or execute any lease of railway property which may entail fixed charges, except by the consent of a ma- jority in interest of the holders of the said preferred stock, to be expressed in writing under their signatures respectively," etc., it was held that it did not conflict with § 3248 or § 3257. — Burke v. Cleveland, etc., Ry. Co., 22 W. L. B. 11, 15 (1889). Delivery of nevr stock to old company or its officers, etc. A delivery of stock of a consolidated com- - pany to constituent companies, as such, could not be made, inasmuch as, after the consoli- dation, such companies do not remain in existence, for any such purpose; such com- panies could not surrender the old stock without consent of the holders nor are they authorized to receive the new. — Robison v. Cleveland City Ry. Co., 13 Dec. 1. Nor could the stock of a consolidated com- pany be delivered to the officers of the con- stituent companies, as such, for the reason that when the consolidation goes into effect, such officers cease to have any official rela- tion to the old company, except so far as is necessary for the protection of creditors. — Robison v. Cleveland City Ry. Co., 13 Dec. 1. Blanket certificates representing the total amount of stock belonging to holders of stock in constituent companies after consolidation, executed by the vice-president and secretary of the consolidated company upon represen- tation of the transfer agent, and by advice of general counsel that it would be all right, that the same were to be used simply for bo'okkeeping purposes, and that individual certificates subsequently issued would be charged against them, cannot be ^regarded as ix delivery of the constituent companies' stock. — Robison v. Cleveland City Ry. Co., 13 Dec, 1. Valid issue of stock of consolidated company. In order to constitute a valid issue of cer- tificates of stock of a corporation formed by the consolidation of other corporations, cer- tificates of the stock of the constituent com- panies should be surrendered and canceled. — Robison v. Cleveland City Ry. Co., 13 Dec. 1. Trust relation as to distribution of stock. AATiere several companies are consolidated into one company, the new company sustains a trust relation to the holders of the stocK: in the constituent companies with reference to the new stock and its distribution to them.— Fuller v. Cleveland, etc., Ry. Co., 8 N. P. 605 (1901); Qeveland, etc., Ry. Co. v. First Nat. Bank, 22 0. C. C. 165 (1901). Issue of stock, statute of limitations. In an action against a consolidated com- pany by one entitled to a portion of the new stock the statute of limitations does not begin to run until there is a demand of the stock, and refusal to deliver.— Fuller v. Cleveland, etc., Ry. Co., 8 N. P. 605 (1901). IVrongful diversion of stock of con- solidated company. Where negligence, under ordinary eircum- stances^ will not in and of itself constitute an estoppel, but inasmuch as the law casts upon a director the duty of exercising or- dinary care, with reference to the concerns of the company, and failure to do so makes the director liable for such wrongs as follow from his negligence, if he is directly concerned with the wrongful diversion of stock, and his neg- ligence was the proximate cause thereof, it would bar his recovery for losses which he might sustain thereby.— Robison v. Cleveland City Ry. Co., 13 Dec. 1. Where it appears that the transfer agent of a corporation formed by the consolidation of other corporations was permitted by the registrar and executive officers of the cor- poration to issue certificates of stock in the consolidated companies without surrender of the stock in the constituent companies, whereby all the stock of the consolidated company was issued and in part wrongfully diverted, leaving about $800,000 of the stock of a constituent company unpaid and uncan- celed, the majority of which was owned by the vice-president (a director, but not a sal- aried or active officer), the proximate cause of the loss was in permitting new stock to be issued vrithout a surrender of the old, and the corporation is liable to the vice- president stockholder for his losses. — Robison v. Cleveland City Ry. Co., 13 Dec. 1. Where it appears that the officer and stock- holder in question had no actual knowledge that the transfer agent, a man of high busi- ness standing, was wrongfully diverting the stock, and had no reason to distrust him, the mere fact that he was guilty of negli- gence generally, in that he failed to insist upon having the contract of consolidation, which contemplated an exchange of stock within a reasonable time, promptly executed, is not sufficient to defeat his recovery, in Railroad Corporations. 273 Consolidation — EfEects of; Defects in, §§ 3382, 3382-1. view of the commissive negligence of execu- tive officers in permitting the stock to be "wrongfully issued. — Eobison v, Cleveland City Ky. Co., 13 Dec. 1. The measure of damages in such case is the amount of plaintiff's stock, less his share of the indebtedness of the constituent company. The fact that since the consolidation the in- •debtedness has been paid, does not entitle ■ plaintiff to recover his stock free from debts where it does appear that his money con- tributed to the payment of such debts. — Eobison v. Cleveland City Ry. Co., 13 Dec. 1. Duties and liabilities to pledgee of stock of constituent company. The consolidated company has no right to issue its stock in lieu of stock of one of the constituent companies which was pledged to secure a debt of the owner. If such issue is made, it is liable to the pledgee. — Cleveland City Ky. Co. v. First Nat. Bank, 22 0. C. C. 165 (1901). Duty -where old stock is deposited with trustee for transfer. See Fuller v. Cleveland, etc., Ry. Co., 8 2Sr. P. 605 (1901). Contract partly illegal. Where one clause of the contract of con- solidation is illegal, and can be separated from the legal parts, the consolidation will not be enjoined, and the parties will be left to litigate the question as to legality of the clause when occasion requires it. — Burke v. Cleveland, etc., Ry. Co., 22 W. L. B. 11, 16 (1889). Agreement to protect bonds. Where bonds were issued by a company, which afterward was consolidated with an- other under a stipulation that said bonds should be protected by the new company, the holders of such bonds have a lien on the prop- erty of the company. — See Compton v. Rail- way Co., 45 Oh. St. 592 (1888). Application to street railroad com- panies. For the application of §§ 3381 to 3392 to street railroad companies, see § 2505b. Application to other corporations. See §§ 3804 and 3865. § 3382. EITECT OF THE AGKBEMENT TO CONSOLIDATE.— Wlien tlie agree- ment is made and perfected, as provided in tlie preceding section, and the same or a ■copy thereof filed with the secretary of state, the several companies parties thereto shall be deemed and taken to be one company, possessing within this state all the Tights, privileges, and franchises, and subject to all the restrictions, disabilities, and ■duties, of a railroad company. (April 10, 1856, 53 v. 143, § 3.) Hevr company is formed. By the consolidation of companies, whether of Ohio companies, or Ohio and foreign com- panies, a new corporation is formed which succeeds to all the- property of the original •companies and assumes their liabilities. — Ashley v. Ryan, 49 Oh. St. 504, 529 (1892); Wabash, etc., Ry. Co. v. Ham, 114 U. S. 587, 595 (1884); Shields v. Ohio, 95 U. S. 319 (1880); s. c, 4 0. F. D. 471; Lee v. Sturges, 46 Oh. St. 153, 169 (1889); Robison v. Cleve- land, etc., Ry. Co., 5 N. P. 293, 301 (1898) ; a. c, 7 Dec. 312. "When old companies deemed in exist- ence. So far as concerns unpaid dissenting stock- holders, the old companies may be deemed in existence after the filing of the agreement. — Railway Co. v. Garrett, 50 Oh. St. 405, 417 (1893). Decree against company. A decree against a company formed by the consolidation of companies of several states may be made against the whole road, and not merelj' against so much as is in the state. — Scofieid V. Railway Co., 43 Oh. St. 571, 621 (1885). § 3382-1. DEFECTS IN CONSOLIDATION AGREEMENTS; HOW CURED; TROVISO. — In all cases where the agreement for the consolidation of railroad com- panies heretofore filed in the office of the secretary of state is defective by reason of -the omission of a statement either of the number of the directors or other officers, or their places of residence, or the number of shares of capital stock as required in such agreement by the laws of this state, such defect may be cured by filing in the office of the secretary of state a certificate signed by the president and the secretary of the consolidated company named in such agreement under its corporate seal, setting forth such omitted statements, which shall thereupon be considered a part of the agree- ment of consolidation, the same as if originally incorporated therein, and said agree- ment and all rights, remedies, powers, duties, and acts thereunder be construed ac- LAW GOV. PEIV. COR. 274 Private Corporations in Ohio. Consolidation — DeiecLs in Agreements, §§ 3382-2, 3382-3. cordingly, and the said agreement and certificate, and copies thereof, duly certified by the secretary of state, shall be held and received in all courts and other places as con- stituting the agreement of the consolidation of such companies to all intents and purposes, as if no such omission or defect had ever existed in such agreement; pro- vided, that nothing in this act shall impair the rights of any person or corporation acquired prior to the passage of this act. (April 17, 1882, 79 v. 126). § 3382-2. AUTHORIZING TEE CURING OF DEFECTS IN THE CONSOLIDA- TION OF CERTAIN RAILWAY CJMPANIES; PROVISO.— In all cases where the agreement or certified copy thereof for the consolidation of railroad companies, here- tofore filed in the office of the secretary of state, is defective by reason of the omission of a statement of the place of residence of the directors, and the number and places of residence of the other ofiicers, as required in such agreement by the laws of this state, but when in pursuance to such agreement an election of directors has been had, and other officers have been elected or appointed, all such defects in said agreement, and any defect in the certificates thereon, may be cured by filing in the office of the secretary of state a copy of the proceedings of said election, duly certified by the sec- retary of said company to be such copy under the corporate seal of such company, and a certificate signed by the president and secretary of the consolidated company named in such agreement under its corporate seal, setting out the places of residences respectively of the directors first elected, and of the officers first elected or appointed, at the time they were so first elected or appointed, as well as their residences respec- tively at the time of the filing of the certificates last above mentioned, which shall thereupon be considered a part of the agreement of consolidation, the same as if originally incorporated therein; and upon filing said certified copy of said proceedings and certificate, all such defects existing prior to the filing of said certified copy of said proceedings and certificates shall be cured, and the several acts of said company shall be held valid, and the said agreement and all rights, remedies, powers, duties, and acts thereunder be construed accordingly, and the said agreement, proceedings and certificates and copies thereof, duly certified by the secretary of state, shall be held and received in all courts and other places as constituting the agreement of con- solidation of such companies, to all intents and purposes as if no omission had ever existed in such agreement or the certificate thereto. Provided, that nothing in this act shall impair the rights of any person, firm or corporation acquired prior to the passage of this act. (January 20, 1887, 84 v. 3.) § 3382-3. AUTHORIZING THE CURING OF DEFECTS IN CERTAIN RAIL- WAY CONSOLIDATION AGREEMENTS; PROVISO.— In all cases where the agree- ment or a. certified copy thereof for the consolidation of railroad companies heretofore filed in the office of the secretary of state, states the number of shares of the capital stock of the new company, and the amount of each share, but is defective by reason of the omission of a statement of the amount of the capital stock of the new company agreed upon as required by the laws of this state in such agreement, such defect may be cured by filing in the office of the secretary of state a certificate signed by the secretary of said consolidated company, under its corporate seal, setting out the amount of the capital stock of the new company agreed upon, which shall be ascer- tained by multiplying the number of shares of capital stock named m, said agree- ment by the amount of each share named in said agreement in dollars, as shown in the original agreement or the certified copy thereof filed in the office of the secretary of state, and which said certificate shall thereupon be considered a part of the agree- ment of consolidation the sam^e as if originally incorporated therein; and upon filing said certificate such defect shall be cured and such consolidation and the several acta of said company shall be held valid, and the said agreement and all rights, remedies, powers, duties, and acts thereunder be construed accordingly; and certified copies of Railroad Corporations. 275 Consolidation — Directors; Title to Property, §§ 3383, 3384. the said certificate and the agreement of consolidation, duly certified by the secretary of state, shall be held and received in all courts and other places as constituting the agreement of consolidation of such companies, to all intents and purposes, as if no omission or defect had ever existed in such agreement. Provided, that nothing in this act shall impair the rights of any person, firm or corporation acquired prior to the passage of this act. (February 18, 1887, 84 v. 29.) § 3383. ELECTION OP DIEECTOB.S.— The stockholders at the meeting called to take into consideration the agreement, shall, after the adoption of the same, appoint a time and place for the election of the directors and other officers of the new company, notice of which shall be given by the secretary of each of the companies in some newspaper printed, or of general circulation at the place of the principal ofiice of each company, at least three weeks previous thereto; provided, that if at such meeting all the stockholders of the constituent companies are present, either in person or by proxy, they may, in writing or by resolution, waive such notice, and consent to hold such meeting and election at any time, which election shall be conducted in such manner as may be prescribed by the stockholders at such meeting. (April 23, 1885, 82 V. 150; 53 v. 143, § 4.) Enjoined election — receiver. At the meeting provided for by this section the stockholders have no corporate duty to perform; therefore, the fact that some of the stockholders have been enjoined from partici- pating in such a meeting does not constitute a ground for the appointment of a receiver of either of the consolidating companies, for such persons could act only in the capacity of stockholders. — ■ Railway Co. v. Jevpett, 37 Oh. 8t. 649 (1882). When election may be held — powrer of old companies. The election of directors under this section is unauthorized until the agreement has been filed with the secretary of state. The con- solidating. companies continue for the purpose of holding and controlling all rights and fran- chises until the election is had. The divesting of the old and the investing of the new cor- porations are simultaneous. — Mansfield, etc., E. R. Co. V. Brown, 26 Oh. St. i;23 (1875). § 3384. PROPERTY OF THE OLD COMPANIES VESTS IN THE NEW.— Upon the election of the first board of directors of the company created by the agreement of consolidation, all and singular the rights, privileges, and franchises of each of the companies to the agreement, and all the property, real, personal, and mixed, and debts due on account of subscriptions of stock, or other things in action, shall be deemed to be transferred to and vested in such new company, without further act or deed; all property, rights of way, and other interests, shall be as effectually the property of the new company as they were of the companies parties to the agreement; the title to real estate, either by deed, gift, grant, or by appropriations under the laws of this state, shall not be deemed to revert or ta impaired by reason of the consolidation; but all rights of creditors, and all liens upon the property of either of such companies, shall be preserved unimpaired, and the respective companies may be deemed to be in existence to preserve the same; and all debts, liabilities, and duties of either of said companies, shall thenceforth attach to the new company, and be enforced against it to the same extent as if such debts, liabilities, and duties had been contracted by it. (April 10, 1856, 53 v. 143, § 5.) Equitable lien for debts of old company. On the consolidation of companies under this act the new company takes the property in its own right, subject only to the payment of the debts of the constituent companies. This liability is created by statute, and an equitable lien results as a consequence. — Compton V. Railway Co., 45 Oh. St. 592 (1888). See Continental Trust Co. v. Toledo, etc., R. R. Co., 86 Fed. 929 (1898). Notice of equitable lien. This equitable lien is a result of the pro- ceedings under which the new companv ac- quired its title to the propei-ty, and of it the creditors of the new company have, in law, the same notice they have of prior mortgages on'the same property. — Compton v. Railway Co., 45 Oh. St. 592 (1888). Agreement to protect debts. AVhere the consolidation agreement under- takes to protect certain unsecured debts of 276 Private Corporations in Ohio. Consolidation — stock, Bonds, etc., §§ 3384a, 3384b. one of the constituent companies an equitable lien is established on the property of the old company to the extent of the debt. — Compton V. Itailway Co., 45 Oh. St. 592 (1888). See Wabash, etc., R. E. Co. v. Ham, 114 U. S. 595 (1884); Compton v. Jesup, 68 Fed. 263 (1895); Tysen v. Wabash Ry. Co., 15 Fed. 763 (1883). Claim of dissenting stockholder. A dissenting stockholder may 'prosecute his claim against the new company which takes the property of the old company charged with the payment of its debts. — Railway Co. v. Garrett, 50 Oh. St. 405, 417 (1893). Property of old companies not held in trust. A corporation formed by the consolidation of two or more companies holds its property acquired by such consolidation in its own right, and not in trust for the constituent companies, and such property cannot be reached by creditor's bill. — Greene v. Wood- land, etc., R. R. Co., 62 Oh. St. 67 (1900). Iiiability of new company for torts. The new consolidated company is liable for the torts of the original company. — Cincin- nati, etc., Ry. Co. v. Fullbright, 7 W. L. B. 18/ (1882). See Indianapolis, etc., R. R. Co. V. Jones, 29 Ind. 465 (1868). Subscriptions to capital stock. See Mansfield, etc., R. R. Co. v. Brown,. 26 Oh. St. 223 (1875); Mansfield, etc., R. R. Oo. V. Stout, 26 Oh. St. 241 (1875). Execution against property for debt of old company. See State of Ohio v. Brimson, 46 W. L. B. 275 (1901). Statute of limitations. An action to enforce a lien upon the prop- erty of a consolidated railroad company, based upon an amount alleged to be due on equip- ment bonds issued by a constituent company, is an action not upon a liability created by statute, nor upon a written agreement, but is solely for equitable relief, and the period of limitation of such actions is ten years from the date when the cause of action accrues, and the cause of action accrues as to each install- ment when the same matures; the right to enforce the lien as to subsequently accruing installments of interest, or as to the principal of the bonds, cannot be said to have accrued prior to the time when such installments and principal respectively matured. — Adelbert College V, Toledo, etc., Ry. Co., 3 N. P. 15 (1894); s. c, 5 Dec. 14. § 3384a. CONSOLIDATED COMPANIES MAY DISPOSE DP STOCK AND BONDS ACQUIRED BY CONSOLIDATION. — That any consolidated railroad com- pany formed by the consolidation of a railroad company or companies created by or existing under the la'ws of this state and any other state or states, with a railroad company or companies of this state or of any other state, may take, hold, pledge or otherwise dispose of under such tei-ms and agreements as the board of directors of such consolidated railroad company may prescribe, the stock and bonds of any other company acquired upon consolidation or received by virtue of any purchase or lease or operating contract heretofore or hereafter made or executed, and may maintain and operate any railroad purchased under authority of law, and may lease or contract to operate any part or all of a railroad constructed or in the course of construction by another company of this state or of any other state, if the line of road covered by such lease or operating contract is connected with the line of road of such consolidated railroad company, upon such terms as may be agreed upon between the companies. (April 11, 1890, 87 v. 183.) § 3384b. CONSOLIDATED COMPANY MAY ISSUE ITS OWN STOCK IN LIEU OP PURCHASE MONEY; RIGHTS, FRANCHISES, ETC., OF RAILROAD ACQUIRED BY PURCHASE VESTED IN CONSOLIDATED COMPANY.— When- ever any consolidated railroad company described in the next preceding section of this act, is in possession of or operating in connection with or extension of its own rail- road line or lines, any other railroads or railroad in this state or in any other state or states under any purchase, conveyance, lease, contract, or agreement, such con- solidated railroad company may talje a surrender or transfer of the whole or any part of the capital stock of the company conveying, leasing, or owning such railroad, from any one or more stockholder of stockholders, and issue in exchange therefor the like additional amount of its own capital stock at par, or on such other terms and conditions as may be agreed upon by the directors of the consolidated railroad com- Railroad Corporations. 277 Consolidation — Principal Office; Action; Taxation, §§ 3385-3387. pany; and whenever the whole of the said capital stock shall have been so sur- rendered or transferred, and a certificate thereof filed in the office of the secretary of state, under the common seal of the consolidated railroad company to whom such surrender or transfer shall have been made, the estate, property, rights, privileges, and franchises of the said company whose stock shall have been so surrendered or transferred, shall thereupon vest in and be held and enjoyed by the said consolidated railroad company to whom such surrender or transfer shall have been made, as fully and entirely, and without change or diminution, as the same were before held and enjoyed, and be managed and controlled by the board of directors of the said con- solidated railroad company to whom such surrender or transfer of the said stock shall have been made, and the two companies shall thenceforth be consolidated and be one company under the corporate name of such consolidated railroad company, without any other formalities or proceedings whatever; but nothing herein contained shall relieve the said consolidated company from paying the fee specified in paragraphs two (2) and three (3) of section 148a of the Revised Statutes, as amended February 12, 1889. The rights of any stockholder not so surrendering or transferring his stock, shall not be in any way affected hereby, nor shall existing liabilities or the rights of creditors of the company, where stock shall have been so surrendered or transferred be in any way affected or impaired by the provisions of this section. (April 11, 1890, 87 v. 183.) Constitutiojiality. This section, in requiring the consolidated company to pay a, percentage fee on the cap- ital stock acquired, is constitutional. — See Ashl«y V. Eyan, 153 U. S. 436; s. c, 8 0. F. D. 215; s. c, 49 Oh. St. 504 (1892). § 3385. PRINCIPAL OPFICE TO BE ESTABLISHED; AS TO DIRECTORS AND GENERAL OFFICE. — The new company shall as soon as convenient after the con- solidation, establish a principal office at some point in this state on the line of its road, and may change the same at pleasure; but public notice of such establishment or change shall be given in some newspaper. But this section and the other laws of this state respecting the residence of directors of corporations and the ke'feping of a princi- pal or general office and the records of corporations, shall not apply to consolidated railroad companies formed by the consolidation of a railroad company or companies created by or existing under the laws of this state and any other state or states, with a railroad company or companies of this state or of any other state; and the election for directors of such consolidated railroad companies may be held at the principal office of the company, whether located in this state, or in any other state under the laws of which the said consolidated railroad company may have been created; pro- vided, however, that at least two of the directors of such consolidated railroad com- pany shall be residents pf this state, and that a, general office of the company shall be maintained at some place within this state, of which notice shall be given as aforesaid. (April 11, 1890, 87 v. 184; April 10, 1856, 53 v. 143, § 6.) See § 3311. § 3386. ACTIONS AGAINST NEW COMPANY.— Suits may be brought and maintained against the new company in the courts of this state, for all causes of action, in the same manner as against otner companies. (April 10, 1856, 53 v. 143, § 7.) § 3387. TAXATION OF ROAD PARTLY IN STATE.— That portion of the road of such consolidated company in this state, and all its real and personal property, shall be listed for taxation and taxed in the same manner as the road and property of other railroad companies in this state; and to ascertain the proportion of the rolling machinery subject to taxation In this state, the officer listing the same shall ascer- tain the value of all the rolling machinery of the company, and return a sum bearing 278 Private Corporations in Ohio. Consolidation — Dissenting Stockholders, §§ 3388-3390. such, proportion to the value of the whole, as the length of the line of such road in this state bears to the length of the whole line. (April 10, 1856, 53 v. 143, § 8.) See § 2744. § 3388. STOCKHOLDEB, REFUSING TO CONSOLIDATE TO BE PAID HIGHEST MARKET PRICE OR MUST ARBITRATE.— A stockholder who refuses to convert his stock into the stock of the consolidated company, shall be paid the highest market value of such stock at any time within two years next preceding the time of the making of such agreement for consolidation by the directors, if, previous to such consolidation, he so require; and if a stockholder so refusing to consolidate, and the board of directors of the company desiring to consolidate, can not agree as to the value of such stock, the parties may submit the question to arbitration, which arbitration shall be conducted in accordance with the law regulating arbitrations, so far as the same may be applicable, by three disinterested persons, to be appointed upon the motion of either of the parties by the judge of the probate court of the county in which the person owning the stock resides, or, in case he is a. non-resident of any county through or into which the road passes, then in the county in which the prin- cipal office of the company is kept. If the person so refusing to convert his stock refuses to submit the question to arbitration, the probate judge, upon the application of either of the companies desiring to consolidate, shall appoint the arbitrators, who shall proceed to ascertain the value of the stock, the same as if the question had been submitted by the consent of both parties; and if the party owning the stock refuses to receive the amount awarded in any case, the company may deposit the same with the probate court of the county in which the arbitration is held, which deposit shall authorize the parties to proceed to consolidate without further payment to such stock- holder. Provided, however, if the agreement of consolidation provide that the pre- ferred stock of the consolidated companies, or either of them, shall become and be the preferred stock of the consolidated company upon the same terms and conditions as those upon which it was issued, then this section shall not apply thereto. (March 15, 1892, 89 V. 88; April 4, 1890, 87 v. 159; April 10, 1856, 53 v. 143, § 10.) Arbitration. For ruling on arbitration proceedings under act of April 4, 1890, 87 v. 159, see Railway Co. V. Garrett, 50 Oh. St. 405 (1893). Right of dissentins; stockliolder. The right to consolidate on the vote of two- thirds of the stock is a, part of the contract of each stockholder and the company and other stockholders, and if a stockholder does not assent he must sell his shares as provided by statute. — Burke v, Cleveland, etc., Ry. Co., 22 W. L. B. 11, 16 (1889). § 3388a. LAST SECTION APPLIES ONLY TO DOMESTIC CORPORATIONS.— In all cases of consolidation provided for in section 3330 of the Revised Statutes, the provisions of the section hereby supplemented shall apply only to stockholders of companies created and organized under the laws of this state, and not to stockholders of any corporation organized or existing under the laws of any other state or states, it being the intension that the rights of stockholders of such companies shall be de- termined by the law of such other state or states. (March 15, 189k5, 89 v. 88.) § 3390. NOTICE TO BE GIVEN OF APPLICATION FOR SUCH APPOINT- MENT. — In all such cases of arbitration the party desiring the arbitration shall give the opposite party at least ten days' notice of his intention to apply to the judge for the appointment of arbitrators, which notice shall be served in the same manner as is provided for the service of a summons, and shall specify the time and place of the hearing of the application; and in cases of non-residents the notice shall be by publication, for four consecutive weeks, in some newspaper printed in the county. (April 10, 1856, 53 v. 148, § 11.) Railroad Corporations. 279 Consolidation — Joint Ownership, etc., §§ 3391-3392-2. § 3391. EFFECT OF THE AGREEMENT OF CONSOLIDATION AS EVIDENCE. — A copy of the agreement and act of consolidation, duly certified by the secretary of state, shall be received in the courts of this state as prima facie evidence of the existence of the several companies parties to the agreement, prior to and at the time of the execution of the agreement, of the consolidation of the companies, as specified in the agreement, that such consolidation was authorized by the laws of the several states within which the several companies were chartered, and into which the con- solidated road extends, and of all and singular the facts, statements, and covenants set forth and recited in the agreement and act of consolidation, and in the certificates indorsed thereon. (February 19, 1858, 55 v. 8, § 1.) § 3392. IN ACTIONS AGAINST NEW COMPANY CERTAIN PROOF DIS- PENSED WITH. — It shall not be necessary to produce or prove the charters of the companies parties to such consolidation, the laws of the several states under and by virtue of which such consolidation was effected, or the original articles of consolida- tion, in any suit brought to charge such consolidated company with any liability of either of the companies parties to the act of consolidation, any law or custom to the contrary notwithstanding. (February 19, 1858, 55 v. 8, § 2.) § 3392-1. TWO OR MORE COMPANIES OWNING A RAILROAD MAY MAKE DIVISION OF INTERESTS AND DISPOSE OF SAME.— In case two or more rail- road companies, being the owners in common of the whole or any part of a railroad situated within this state, and by reason of inequality in the amount of business done thereon by each company, require a different degree and extent of improvement and development of the same, it shall be lawful for such companies to enter into any arrangement that may be agreed upon between them for enlarging, improving, de- veloping or increasing the facilities of such railroad or any part thereof; and in pursuance of such agreement, or otherwise, to make such division of the railroad and appurtenances so owned in common, and to execute and deliver each to the other, or to any other railroad company having authority to purchase the same, such deed or deeds of conveyance for the whole or any part of such railroad, as may be agreed upon between such companies; provided, nothing herein contained shall impair the lawful lien of any creditor upon the railroad which may be conveyed as aforesaid. (April 11, 1883, 80 v. 111.) § 3392-2. PROCEEDINGS WHEN SUCH COMPANIES CAN NOT AGREE UPON DIVISION. — In case such companies shall be unable to agree upon an equita- ble plan for improving and developing, or for the division and sale of the railroad and appurtenances or any part thereof so owned in common, it shall be lawful for either company from time to time to file with the commissioner of railroads and telegraphs a statement, under the seal of such company, of the character and estimated cost of any addition to, or change in the nature of the road-bed, the right of way, main or side track or tracks, bridges, culverts, buildings, structures, fixtures, or appurtenances, or either or any part thereof, of said railroad, or part of railroad, desired by such com- pany, and of its inability to agree with the other joint owner or owners in respect to the making of such additions or improvements. Upon the receipt of such statement the commissioner of railroads and telegraphs shall, within thirty days of the filing of such statement, appoint a time when the owners of such railroad or part of rail- road, may be heard respecting the reasonableness and necessity of such proposed additions or improvements, and give due notice in writing of the time and place of such hearing to each of the owners aforesaid, and it shall be lawful for such commis- sioner to make such order in respect to the reasonableness or necessity of the whole or any part of such additions or improvements, as well as the manner in which the same shall be made, and the periods within which the same shall be paid for, as to 280 Private Corporations in Ohio. Joint Ownership — Reorganization, §§ 3392-3-3393. him shall seem proper, and his decision in the matter shall be final. (April 11, 1883, 80 V. 111.) § 3392-3. THE COST OF ADDITIONS OR IMPROVEMENTS; HOW PAID.— The cost of such additions or improvements shall in all cases, unless otherwise agreed between the joint owners, be paid by them in proportion to their ownership in the joint property, irrespective of the amount of traffic which each owner may then have passing over such railroad. If either owner shall fail or refuse to pay the share of such cost as may be due from it on the basis herein fixed, or within the period or periods which may be fixed by the commissioner of railroads and telegraphs, as afore- said, suit may be entered and judgment taken against the party so in default, and the judgment so entered shall be a valid lien upon the interest of the party in default in. said railroad or part of railroad owned jointly as aforesaid, and such interest, may be sold at public sale as in other cases upon execution, and it shall be lawful for any rail- road company having authority to own or operate a railroad in this state to purchase such interest at such sale, and to enjoy and exercise in respect to the interest so pur- chased, all the rights, privileges and franchises which were exercised or enjoyed by the company owning the same at the time of said sale. Provided, that the compul- sory power of enforcing additions or improvements provided for in this and the pre- ceding section shall not extend to local cr terminal depot or shop grounds or facilities, the joint use of which shall not be needed by all the joint owners. (April 11, 1883, 80 V. 111.) Cited in St«wart v. Ra-ilway Co., 53 Oh. St. 151 (1895). § 3392-4. PARTITION NOT TO BE COMPULSORY.— Nothing contained in this act shall be held to imply or confer a. right or power of compulsory partition of the joint property against the will of either of the joint owners; but the same may be sold upon execution as herein provided. (April 11, 1883, 80 v. 111.) § 3392-5. COMPANY SELLING INTEREST IN ROAD MAY PURCHASE OR CONDEMN LAND ALONG CHARTERED ROUTE.— In case either company shall, pursuant to the agreement or to the proceedings aforesaid, sell or convey, or suffer to be sold or conveyed, its interest in the railroad or part thereof so owned in common, it shall be lawful for such company to acquire by purchase or condemnation, such land as may be needed to enable it to construct and maintain and operate a railroad along and adjacent to such portion of its chartered route as may have been sold or conveyed aforesaid, and such company shall have and enjoy all rights and franchises in respect to such newly acquired railroad as were held and enjoyed in respect to said, railroad sold or conveyed as aforesaid. (April 11, 1883, 80 v. 111.) § 3392-6. TO WHICH COMPANIES THIS ACT- APPLIES.— This act shall apply in case one or more companies, owners in common as aforesaid, shall have leased its interest in the portion of railroad so owned in common, and the lessee of such interest may unite with the lessor in the agreement provided for in section one (§ 3392-1) of this act, or may with such lessor and owner be compelled to make or pay for the addition and improvements contemplated in this act. (April 11, 1883, 80 v. 111.) § 3393. WHEN PROCEEDINGS FOR REORGANIZATION MAY BE HAD.— When proceedings are pending in any court for the sale of the road of a company, under a mortgage or deed of trust, and two-thirds in interest of the creditors and two-thirds in interest of the stockholders of the company agree, in writing, upon a plan for the readjustment or capitalization of the debt and stock of the company, the court shall render judgment against the company for the amount due and in arrear Railroad Corporations. 281 Reorganization — Meetings, etc., for, §§ 3394, 3395. upon such, securities, which judgment shall, from its rendition, become a lien on all the property embraced in such securities, and upon all the franchises and powers of the company, including its franchise to be and act as a corporation, conferred by the charter and the amendments to the charter of the company; fwid upon a sale had under such judgment, and a purchase at such sale by trustees, on behalf of the parties to such agreementj appointed by the agreemeiit, all the property so b'^und by the judgment, including said franchises, shall vest in such trustees; but every such, agreement shall provide that the unsecured debts of the company, incurred for repairs or running expenses, shall be paid in money, or bonds of the reorganized company of the highest class issued, as hereinafter provided; and a copy of the agreement shall be filed In such court, before the rendition of the judgment. (April 11, 1861, 58 V. 70, § 1.) Act of 1863 — constitutionality. See Mather v. Cincinnati, etc., Ry. Co., 3 0. C. C. 284 (1888); s. c, 2 C. D. 161. Construction of agreement. See Hatry v. Painesville, etc., E,y. Co., I'O. C. C. 426 (1886); a. c, 1 C. D. 238. § 3394. MEETING OF CREDITORS, AND PROCEEDIBTGS THEREAT.— The trustees shall, as soon as practicable after the sale, call a meeting of the parties to the agreement by a notice signed by a majority of the trustees, or of their survivors, and published not less than once a week, for four consecutive weeks, in a newspaper printed in the cities of New York and Philadelphia, and in a newspaper printed in each county on the line of the railroad, specifying the day, place, and object of such meeting — the place to be on the line of the i"oad; at such meeting each of the parties to the agreement shall be entitled to vote according to the provisions thereof, but not exceeding one vote for every fifty dollars of the par value of the debt or stock of such party, according to a list of voters and of their respective interests, which shall b& prepared by the majority of the trustees, who are empowered to act as judges of the election; such meeting, by a majority in interest of the persons present, in person or by proxy, shall be competent to retain or change the name of the company, to decide, for the time being, the amount of its capital, and the number of shares into which. such capital shall be divided, to fix the number of directors, and their term of ofllce, to elect such directors, a majority of whom shall be residents of the state or states in which such railroad is situate, and to do all things necessary or proper to reorganize the company; but any creditor shall be entitled to become a party to the agreement aforesaid, either at or any time before the meeting in this section provided for, and any stockholder shall be entitled to become a party to such agreement at any time within one year after such meeting. (April 11, 1861, 58 v. 70, § 3.) When bondholder may vote. Where a railroad corporation reorganizes under the act of April 11, 1861, and, in the agreement therefor, it is stipulated that cer- tain bonds of the original company shall be assumed by the new eompanj', and the holder thereof entitled to vote at all meetings of stockholders, upon conditions specified, which he performs, the new company becomes liable to pay the bonds, and the holders thereof enti- tled to vote, without further action on the part of the new company. — State v. Me- Daniel, 22 Oh. St. 354 (1872). Directors. In a corporation reorganized imder this act, it is not necessary that the directors should be stockholders. The statute only requires them to be residents of the state, and in the absence of a statute requiring it, the discre- tion of the stockholders in electing directors is not limited to stockholders. — State v. Mc- Daniel, 22 Oh. St. 354 (1872). § 3395. WHAT MUST BE CERTIFIED TO THE SECRETARY OF STATE. — A certificate, under the common seal of the company, specifying its name, and the railroad which it is to hold, maintain, and operate, shall be filed in the office of the secretary of state; and a copy of such certificate duly certified shall, in all courts and places, be evidence of a compliance with all the conditions and provisions of the two 282 Private Corporations in Ohio. Reorganization — Powers of New Company, §§ 3396, 3397. preceding sections, and of the due reorganization and existence of the company. (April 11, 1861, 58 v. 70, § 3.) § 3396. THE PROPEKTY AND POWERS OF THE NEW COMPANY.— Upon such reorganization, and a, conveyance by the trustees, or of such of them as shall be vested with the legal title, or their survivors, all the railroad and other property and franchises and things purchased as aforesaid, and all the franchises, powers, faculties, privileges, and immunities which were possessed or enjoyed by the original company, or by any company with which it had been consolidated, shall pass to and be vested in the company as reorganized; and the same, and all property and things which the reorganized company shall thereafter acquire, except as hereinafter provided, shall be taken, held, and disposed of for the use and benefit of the creditors and stockholders of the company, who shall have become such upon and after such reorganization, according to their respective rights, but subject to the powers of the company, and shall be in no wise chargeable in respect to any debt, liability, or claim of any creditor or stockholder which subsisted prior to the sale and reorganization herein provided for, but all property of the original company not embraced in the sale shall, upon the reorganization, be vested in the company as reorganized, in trust for all parties interested therein as creditors, stockholders, or otherwise. (April 11, 1861, 58 v. 70, § 4.) § 3397. EXJB.THEE POWERS OF THE NEW COMPANY.— Such company shall likewise have power, at any time within six months after the organization, to assume such debts or liabilities of the original company, and to make such adjustments or exchanges with any bondholder of the original company, and, within one year, with any stockholder, as it may deem expedient, and may use for such purpose any bonds or stock which it may be authorized to issue or create; and it may make and issue such bonds, payable at such times and places, and bearing such rates of interest not exceeding six per centum per annum, as it may deem expedient, and may secure the payment of any bonds which it may issue or assume to pay, by mortgages or deeds of trust of its railroad, or any other of its property, real or personal, and may include therein with its road all its cars and other rolling-stock and equipments, and any irtachinery, tools, implements, fuel, materials, and all other things then held or there- after acquired for constructing, operating, or repairing the road, or for repairing or replacing any of its equipments or appurtenances, as part and parcel of the road, and as constituting with the road one property, and may include in such mortgages or deeds of trust all franchises held by the company, and connected with or related to the road, and all other corporate franchises of the company, all which franchises, includ- ing the franchise to be a corporation, in case of sale by virtue of any such mortgage or deed of trust, or of any judgment specified in the next section, are hereby declared to pass to the purchasers, so as to enable them to reorganize the company in the manner hereinbefore provided; and such company may issue capital stock to such aggregate amount as it may deem proper, not exceeding any limit which may be fixed by agreement with the trustees purchasing as aforesaid, and may establish preferences in respect to dividends, in favor of any class of the stock, in such order and manner as it may deem expedient, not exceeding such limit as may be fixed by agreement as aforesaid; and may, if authorized by the agreement, confer on holders of any bonds which it may issue or assume to pay, such rights to vote at all meetings of stockholders, not exceeding one vote for every fifty dollars of the par amount of the bonds, as may have been provided for in the agreement, which rights, when once fixed, shall attach to and pass with such bonds, under such regulations as the by-laws may prescribe, to the successive holders thereof, but shall not subject the holder to any assessment by the company, or to any liability for its debts, or entitle any holder to dividends. (April 11, 1861, 58 v. 70, § 5.) Railroad Corporations. 283 stocks and Securities — Liens for Labor, 3397a-3398a. § 3397a. ISSUE OF STOCK OK SECUKITIES BY COMPANIES ORGANIZED OS KEOBGANIZED UNDER AGREEMENTS; TERMS OE SUCH AGREEMENTS TO APPEAR ON STOCK AND SECURITIES ISSUED; RIGHTS OE HOLDERS.— In all cases of railroad companies heretofore or hereafter organized or reorganized under the laws of Ohio, wherein the organization or reorganization agreement pro- vides and stipulates that any class of creditors, bondholders or stockholders of the original company, shall in any wise be restricted or limited, in participation in profits or dividends, or in respect to liens or the right to vote as the holders of stock or securities in said reorganized company, the said reorganized company, its directors and officers, shall issue the certificates of stock or securities into which the original stock, securities or debt may be convertible, bearing upon the face of each, plainly and distinctly set forth, such restrictions or limitations, so that purchasers may be advised of the terms thereof, and all holders of stock or securities created under such reorganization agreements, shall hereafter have only such restricted or limited rights, liens, participation in profits, dividends and right to vote thereon, as may be in such agreements, certificate of stock or securities provided and set forth. (March 19, 1887, 84 V. 142.) § 3398. LIEN OP MORTGAGES, ETC. — The lien of the mortgages and deeds of trust authorized to be made by the preceding section shall be postponed to the lien of judgments recovered against the company, after its reorganization, for labor there- after performed for it, or for materials or supplies thereafter furnished to it, or for damages, losses, or injuries thereafter suffered or sustained by the misconduct of its agents, or in any action founded on its contracts or liability as a common carrier thereafter made or incurred. (April 11, 1861, 58 v. 70, § 6.) Cited in Stewart v. Railway Co., 53 Oh St. 151, 172 (1895). Applicable to foreign companies. Sec King v. Thompson, 46 W. L. B. 210 (1901). Construction. This section should be fairly construed (not strictly) so as to effect the purpose for which it was enacted. — Farmers' Loan, etc., Co. v. Cincinnati, etc., R. E. Co., 21 W. L. B. 275 (1889). Constitutionality. See King v. Thompson, 46 W. L. B. 210 (1901). Burden of proof. Where the holder of a judgment for materials and supplies claims a priority over mortgages existing before the supplies were furnished, the burden of proof is on such claimant to show that he has obtained a judg- ment and that the cause of action upon whicli it was obtained was such as to come within the terms of this section. — Farmers' Loan, etc., Co. V. Cincinnati, etc., R. E.. Co., 21 W. L. B. 275 (1889). Parties to action for judgment. In an original action to obtain a, judgment for the value or price of the supplies fur- nished, other lienholders are not necessary or proper parties. The question of p^-iority can be properly determined in a subsequent action to marshal liens. — ■ Farmers' Loan, etc., Co. V. Cincinnati, etc., E. E. Co., 2i W. L. B. 275 (1889). Assignment of claims. Claims for supplies furnished under this section may be assigned and judgment thereon taken by the assignee, who thereupon obtains all the rights of the original claimant. — Farmers' Loan, etc., Co. v. Cincinnati, etc., E. E. Co., 21 W. L. B. 275 (1889). § 3398a. LIEN FOR LABOR PERFORMED FOR RAILROAD COMPANY.— That in all actions now pending or hereafter commenced in any of the courts of this state, either as original actions, or as proceedings in error against any railroad cor- poration now existing or hereafter created, or any foreign railroad company operating and carrying on business in this state, when such action is for the purpose of recover- ing judgment against said corporation, for labor performed for it, or for materials or supplies furnished to it, or for damages or losses, or injuries suffered or sustained by the misconduct of its agents, or in any action founded on its contracts or liabilities as a common carrier made or incurred, which action, by virtue of statutory enact- 284 Private Corporations in Ohio. Liens for Labor, etc., §§ 3398b-3399. ment, or upon principles of equity, would, when reduced to judgment, become a lien, upon the property of such corporation prior in law or equity to the lien of any mort- gage or deed of trust authorized to be made by any of the statutes of this state, such judgment shall be and remain a prior lien upon such railroad property, notwith- standing any sale or conveyance of such property by virtue of any judgment or decree of foreclosure founded upon a breach of the terms and conditions of any such mort- gage or deed of trust. (February 17, 1882, 79 v. 11.) See § 3207 et seq., and § 3231-1 et seq. § 3398b. HOW SUCH LIEN ENFORCED.— That the party prosecuting such action in order to avail himself of the provisions of section three thousand three hun- dred and ninety-eight (a) of this act, shall, before the day fixed for the sale of the property of any such railroad under any judgment or decree of foreclosure and sale, file with the clerk of the court wherein such judgment or decree of foreclosure and sale was rendered, a notice in writing, setting forth the title of his action, the court wherein pending, the amount of his claim, the date from which he claims interest thereon, the probable amount of costs, and that he claims that the judgment by him sought to be recovered would, when obtained, become a lien prior in law or equity to the lien of the judgment or decree of foreclosure and sale. That he shall also before the day of sale, or at the time thereof, serve a certified copy of such notice upon the officer or other person making such sale, who shall, before offering said property for sale, read such notice publicly at the time and place of sale, and shall, with his return of such sale, return such certified copy of notice with the endorsement of his proceedings thereunder upon the same, to the court. (February 17, 1882, 79 v. 11.) § 3398c. IN CASE OF SALE, COTJBT TO RETAIN AMOUNT OF LIEN.— That the court, on the return of the oflicer or other person making such sale, before con- firming the same and ordering distribution of the funds arising therefrom, shall retain in its custody or under its control, a sufficiency of such proceeds applicable to distribution to the claimants under the liens of the mortgage or deed of trust, to satisfy any judgment which may be recovered in the action provided for in section three thousand three hundred and ninety-eight (a) of this act, when ended and deter- mined. (February 17, 1882, 79 v. 11.) § 3398d. WHAT TO BE DONE IN CASE JUDGMENT RECOVERED.- That within sixty days after the determination of the action referred to in section three thousand three hundred and niney-eight (a), the party claiming such priority of lien, if he shall have recovered judgment against said railroad company, shall file his answer and cross-petition in the action pending in the court holding the fund as provided in section three thousand three hundred and ninety-eight (a) setting forth his legal and equitable claim thereto, and such court shall make the proper orders necessary to the determination of the questions of priorities and distribution of the retained fund, as in section three thousand three hundred and ninety-eight (c) pro- vided. (February 17, 1882, 79 v. 11.) § 3399. THESE PROVISIONS APPLICABLE TO OTHER CORPORATIONS — FOREIGN CORPORATIONS.— The provisions of the seven preceding and the next succeeding sections shall extend and apply to companies whose railroads are partly within and partly without this state; a company of this state, possessing such a rail- road, shall have capacity to exercise without this state all its powers, privileges, faculties, and franchises; a corporation of another state possessing a railroad which is partly in such other state and partly within this state, may exercise and enjoy within this state all its powers, privileges, faculties, and franchises, for the purpose of such railroad and its business, not inconsistent with the laws of this state; and all Railroad Corporations. 285 Sale and Reorganization under Mortgage, etc., §§ 3400-3403. mortgages and deeds of trust made by such corporation upon its railroad, equipments, or other property within this state, shall operate in the same manner and with the like effect as hereinbefore provided with respect to companies so reorganized; but such part of the railroad as is within this state shall be subject to taxation, and to all regulations of law, in the same manner as railroads of this state in like cases, and the corporation owning the same shall be subject to all duties in respect thereto imposed by law, and may sue and be sued in all Cases and in the same manner as a company of this state might sue or be sued. (April 11, 1861, 58 v. 70, § 7.) Power to condemn land. There is not only no law of Ohio prohibit- ing the ownership and use of railroads in the state by foreign corporations, and no public policy of the state to be contravened thereby, but there is abundant legislation directly to the contrary. Where the act incorporating a foreign corporation gives it the power to con- demn and appropriate private property, if its road is partly in this state and partly "in a foreign state, it may exercise and enjoy within this state all its powers, privileges, faculties, and franchises, for the purpose of said rail- road and its business not inconsistent with the laws of this state. This section clearly gives the right to condemn and appropriate private property in Ohio to all railroad cor- porations of other states, which have the power of condemnation and appropriation given them in their charters of incorporation, where their roads lie partly within this state, — State V. Sherman, 22 Oh. St. 411, 434 (1872). Foreign corporation does not become a domestic corporation by leasing road. Baltimore, etc., R. R. Co. v. Gary, 28 Oh. St. 208 (1876); Railway Co. v. Stringer, 32 Oh. St. 468 (1877). § 3400. THE PROPEBTY MORTGAGED MAY BE SOLD WITHOUT AP- PKAISEMEWT. — Railroads, and other property mortgaged therewith by such com- pany may, if the court deems it expedient, be sold without appraisement, at judicial sales under judgments upon such mortgage; but in such case, in order to prevent sac- rifices, and protect the interests of all concerned, the court shall fix a minimum sum below which no such sale shall be made; and, in order to fix that amount, the court m.ay if it deems it expedient to do so, refer the subject to a master, with instructions to take testimony, and report the sum. (April 11, 1861, 58 v. 70, § 8.) § 3401. WHEN CREDITORS OP COMPANIES MAY AGREE ON CAPITALIZA- TION. — When judicial proceedings are pending in any court sitting in this state for the sale of any railroad, and the same is in the hands of a receiver appointed by such court, two-thirds in interest of each class of mortgagees, or holders of the bonds issued tinder a mortgage, and two-thirds in interest of all other classes of creditors of such company, and the owners of two-thirds of the shares of the stock thereof, may agree in writing upon a plan for the adjustment of such indebtedness, by capitalization or otherwise. (April 7, 1863, 60 v. 55, § 1.) Constitutionality. In so far as this section applies to debts created before its passage, it is unconstitu- tional. — Mather v. Cincinnati Rv. Co., C. C. 284 (1888); s. c, 2 C. D. 161. 3 0. § 3402. SECRETARY OF STATE TO PUBLISH NOTICE OF THE AGREEMENT. — When such agreement is made, and filed in the office of the secretary of state, he shall cause public notice thereof to be given in a newspaper of general circulation pub- lished in each of the cities of Columbus, Cincinnati, and Cleveland, and also in a news- paper of general circulation published in each of the counties through or in which the road is located, which publication shall be made immediately after the agreement Is filed, and be continued for six consecutive weeks, and the cost thereof shall be paid by the company. (April 7, 1863, 60 v. 53, § 3.) § 3403. OTHER CREDITORS MAY SIGN THE AGREEMENT.— A duplicate of the agreement shall be kept at the principal office of the company; and all persons in interest, not parties thereto, shall be at liberty, for the period of four months from and after the date of the first publication, to appear and become a party to such 286 Private Corporations in Ohio. Sale and Reorganization under Mortgage, etc., §§ 3404^3408. agreement, either in person or by proxy, by signing the same, and thereby secure the benefits thereof. (April 7, 1863, 60 v. 55, § 3.) § 3404. RIGHT OF THOSE WHO DO NOT SIGN.— All persons in interest who fail to become parties to the agreement within the time aforesaid shall thereafter be entitled to the same rights, interest, and estate, remedy, liens, and action, and none other which parties in interest of like class and amount who signed the agreement obtained by, through, and under the agreement; but if any person in interest neglect and fail for the period of six years after the publication of the notice mentioned in section three thousand four hundred and two, to apply at the principal office of the company, either in person or by proxy, to become a party in interest in the agreement, such person, unless an infant, a married woman, or insane shall be barred of all inter- est, claim, right, or action under the agreement, or otherwise; and in case of such dis- ability the rights above enumerated shall be extended for the period of two years after the termination of the disability. (April 7, 1863, 60 v. 55, § 4.) § 3405. WHEN THE COURT TO MAKE ORDER TOUCHING COSTS.— When the agreement is made, filed, and notice thereof given, and proof thereof made, or offered to be made, in the court in which the proceedings are pending the court shall dismiss the proceedings; but the court may make such order or decree touching the costs and expenses thereof as it may deem just and proper. (April 7, 1863, 60 V. 55, § 5.) § 3406. AGREEMENT MAY BE BETWEEN EACH INTEREST AND THE COM- PANY. — The agreement shall not be required to be between the several interests hereinbefore specified, but may be between each interest separately, and the railroad company. (April 7, 1863, 60 v. 55, § 7.) § 3407. WHEN THE ROAD IS USED BY TWO COMPANIES.— If the railroad involved in such judicial proceedings is used, in whole or in part, by such company in common with any other railroad company, on the same track, between any points on the line common to both, and within the limits of the termini established by the charters of both companies, the company owning the railroad, if the same can be done without impairing the usefulness thereof to it, may lease for a period of years, for an annual rent, or sell for a fixed sum, to the company to which the line of road, in whole or in part, is common, an undivided interest in the same, upon such terms and conditions as may be agreed upon; and such lease or sale shall be reported to and approved by the court, and when so made and approved, the lessee or vendee thereof shall hold the same free from any previous lien which had been put thereon. (April 7, 1863, 60 V. 55, § 8.) Partition. Where by the purchase of an undivided in- terest under this section, a, tenancy in com- mon becomes established, partition cannot be compelled by either party under the statutes in relation to partition or in equity. — Kail- way Co. V. Railroad Co., 38 Oh. St. 614 (1883). § 3408. WHEN STOCK OR BONDS ARE HELD IN A FIDUCIARY CAPACITY. — When any portion of the stock or bonds of a company is held by the state, or a county, township, city, village, or other municipal corporation, or by an executor, administrator, or a guardian, or otherwise in a fiduciary capacity, the governor, county commissioners, township trustees, council, or other authority of the municipal corporation, or person holding in a fiduciary capacity, may become parties to any agreement for the reorganization of such company, and may control, exchange, or manage such stock or bonds according to the terms of the agreement, and take and receive new stock or bonds to be issued in lieu of the original stock or bonds which. Railroad Corporations. 287 Sals of Road-bed, Regulation as to, §§ 3409-3413. shall be held on the same terms, and subject to all liens, which attached to the orig- inal stock or bonds. (April 11, 1861, 58 v. 70, § 9; April 7, 1863, 60 v. 55, § 6.) § 3409. WHEN A COMPANY MAY SELL ITS ROAD-BED, ETC.— A company, owning in whole or in part any road-bed and right of way for a railroad within this state, including those acquired by purchase at judicial sale, which, from lack of- means, or other cause, is unable to complete the construction of its proposed line of road thereon, may sell, assign, and transfer the same, or any part thereof, to any other company incorporated under the laws of this state, with authority to construct and operate a railroad over the same route, or any part thereof, which transfer shall' include all work done upon such line of road, together with all material furnished therefor, not exempted by the terms of the grant, with all right(s), privileges, and easements, as fully as the same are or may be possessed by the company making the same, and shall to the same extent, vest' the title of and the right to enjoy the same in such grantee. (May 5, 1868, 65 v. 142, § 1; May 7, 1869, 66 v. 334, §§ 1, 2.) No poiirer to sell stock subscriptions. This section confers no authority on rail- way companies to sell subscriptions to their stock along with their roads when they find it impossible to complete the same, from lack of means. And if it were attempted to trans- fer a conditional subscription to the company purchasing the road, such company could not by performing the condition precedent fix the liability of the subscriber. — Railroad Co. V. Hinsdale, 45 Oh. St. 556 (1888). Subscriber not released by sale of road. This section is a part of every subscription to stock, and a sale by the company of a part of its road under this section does not release the subscriber except when, and as, provision is made therefor by statute. — Armstrong v. Karshner, 47 Oh. St. 276 (1890). Rights of conditional subscriber. See Armstrong v. Karshner, 47 Oh. St. 276,. 29S (1890). Power of railroad comxiany to sell property. See Donner v. Dayton, etc., K. E. Co., 1 C. S. C. 13C.(1871). § 3410. THE TRANSFER TO BE BY DEED.— Such transfer shall be by deed, duly executed by the president of the company grantor, in the manner provided by law for the conveyance of real estate, and shall be for such consideration as the parties may agree upon. (May 5, 1868, 65 v. 142, § 2.) § 3411. TWO-THIRDS IN INTEREST OE STOCKHOLDERS MUST CONSENT. — Before any such transfer shall be made, the president of the company shall call a. meeting of the stockholders of the company, at some convenient point on the line, or at a terminus of the road, of whch he shall cause at least thirty days' notice to be published, in some newspaper printed or in general circulation in each county in which such road-bed and right of way are situate; such meeting may, by a concur- rent vote of two-thirds in interest of the stock represented thereat by the owners thereof, in person, or by proxy, declare by resolution the inability of such company to complete its line of road, prescribe the terms of the proposed transfer of its road- bed and right of way, and direct the president of the company to execute the deed; and all such proceedings, resolutions, and directions shall be duly recorded in the proper record book of the company, and a copy thereof delivered to the grantee, and they shall also be recited in the deed. (May 5, 1868, 65 v. 142, § 3.) § 3412. WHAT INTEREST DISSENTING STOCKHOLDER MAY RETAIN.— Wo transfer shall be made against the dissent of any stockholder, expressly declared and filed in writing at such meeting, without the guaranty of the company grantee that it will cause to be issued to him certificates of its capital stock, equal in amount 288 Private Corporations in Ohio. Road-bed, etc.; Sale and Forfeiture of — Receiver, Action by, etc., §§ 3413-3415. to his pro rata interest as a stockholder of the grantor, in the amount for which the property is sold. (May 5, 1868, 65 v. 142, § 4.) Bights of conditional subscribers. Conditional subscribers to capital stock do not acquire any rights urraer this section until the happening of the contingency upon which payments on the subscription are made de- pendent.— See Railroad Co. v. Hinsdale, 45 Oh. St. 573 (1888); Armstrong v. Karshner, 47 Oh. St. 276, 299 (1890); R. S. § 3298. § 3413. TITLE TO PROPERTY VESTS IN GRANTEE.— The title to the prop- erty so transferred, together with the right to use, occupy, and enjoy the property, ,f or any and all purposes proper for the construction, maintenance, and operation of a railroad thereon, shall pass to and vest in the company grantee, by the execution of the deed, to the same extent as the granting company might or could use, occupy, and enjoy the same. (May 5, 1868, 65 v. 142, § 5; May 3, 1873, 70 v. 245, § 1.) § 3414. CERTAIN RIGHTS OE "WAY FOREEITED.— Where, upon an unfinished road, a right of way, or any part thereof, remains for ten years unused for railroad purposes, it shall be held forfeited, and shall revert to the owner of the land, unless at least twenty miles of the road have been completed by the company during that period, or unless an average of one thousand dollars per mile has been expended for construction before the expiration of said period of ten years. (May 5, 1868, 65 v. 142, § 6; April 22, 1898, 93 v. 207.) Abandonment of easement. See § 3281, notes. § 3415. MAY SUE AND BE SUED WITHOUT LEAVE OF COURT.— When a line of railroad, the whole or any part of which lies within the limits of this state, has been placed, by order of court, in the hands of a receiver, who has taken charge of and is operating the same for the purpose of carrying passengers and freight, and doing such other things as ordinarily belong to the running and management of rail- Toads, such receiver may, in his official capacity, sue or be sued in the courts of this state without leave previously granted; provided, however, that no person shall act as such receiver unless he be a resident citizen of this state. (March 12, 1872, 69 V. 31, § 1.) Suits against receivers, effect of section. This section authorizes suits to be brought against the receiver of a raih-oad.. and the same prosecuted to final judgment without leave of court; in other words, such suits stand upon the same. footing and entitle those bringing them to the same rights and priv- ileges as if leave had been granted, and no more. But this section does not authorize a levy or sale of property in possession of the receiver without leave of court. — Crov v. Mar- shall, 3 0. C. C. 489 (1888) ; s. c., 2 C. D. 280. Ditch proceedings. A receiver of a railroad company is a com- petent party plaintiff in a suit to restrain ditch proceedings against the company, com- menced and prosecuted after his appointment as such receiver. — Caldwell v. Trustees, 2 0. C. C. 10 (1886); s. c, 1 C. D. 332. Property urrongfully in hands of re- ceiver. If a creditor claims that properly is im- properly in the hands of a receiver, he must apply to the court appointing the receiver to release the same so he may lew upon it. — Croy V. Marshall, 3 0. C. C' 489 '(1888) ; s. c, 2 C. D. 280. Judgments against companies in re- ceiver's hands. Where a plaintiff in an action against a railroad company, whose property is then in the hands of a receiver (appointed by the same court) to which action such receiver is not a parly, recovers against the company a money judgment, the same is not void or in- valid on the ground that the coiu't had no jurisdiction. Such judgment is valid as against the company, and operates as a lien on its lands, and may be enforced after the discharge of the receiver. — Mather v. Cincinnati, etc., Ev. Co.. 3 0. C. C. 2S4 (1888); s. c, 2 C. D. 161. Effect of section on U. S. courts. Tliis section cannot affect the power or au- thority of a federal court to pass on a motion for leave to sue a receiver appointed by it.^ Haves v, Columbus, etc., Ev. Co., 34 W'. L. B. 2 (1895). Railroad Corporations. 289 Receiver, Eegulations as to — Purchaser of Roads, §§ 3416-3419. Xiiability of receiver for negligence. See Meara v. Receivers, 20 Oh. St. 137 (1870); Potter v. Bunnell, 20 Oh. St. 150 (1870). Powers of nonresident receivers of Ohio roads. See Caldwell v. Pittsburg, etc., E. R. Co., 33 W. L. B. 134 (1894). Powers of foreign receivers — right to sue in Ohio. See Bank v. McLeod, 38 Oh. St. 174 (1882). Section cited. See Cleveland, etc., R. R. Co. v. Orme, 1 0. C. C. 511 (1885); s. c, 1 C. D. 285. Receiver not agent of company. See Consolidated Coal Co. v. Cincinnati, etc., E. R. Co., 10 W. L. B. 42 (1883). Collection of taxes from receiver. See Treasurer v. Dale, 00 Oh. St. 180 (1899). Appointment of nonresidents. See Bayne v. Brewer Pottery Co., 82 Fed. 390 (1897). See § 3248. § 3416. WHERE ACTION MAY BE BROUGHT, AND SERVICE.— Actions may "be brought against the receiver of a railroad in any county through or into which the road is constructed, and service of summons may be had upon the receiver, or upon the superintendent of the road, or upon any ticket or freight agent who is in the employ- m.ent of or acting for the receiver; but no service made upon the ticket or freight agent shall be valid, unless the office or place of business of such agent is in the county where suit is brought. (March 12, 1872, 69 v. 31, § 2.) Section cited. See Railroad Co. v. Orme' 1 0. C. (1885); s. c, 1 C. D. 285. C. 513 Service upon receivers. See §§ 4988, 4991, 5044a. § 3417. APPLICATION OF EUNDS, AND LIEN THEREON.— The earnings of a railroad in the hands of a receiver, and all other money which comes into his hands as such receiver, shall be applied first to pay costs and expenses of the suit in which he was appointed, and the expenses of operating and managing the road, including all materials and supplies procured by him therefor, and liabilities incurred by him in such operation and management; and all judgments recovered against the receiver of a railroad for injuries to person or property, or for wages of employes or work done or materials furnished while he is operating or managing the road, shall be a lien on the funds in his hands as receiver, but shall affect him only in his trust capacity, and not individually. (March 12, 1872, 69 v. 31, § 3.) Judgments against receivers. Satisfaction on a judgment rendered against a receiver in an action for the recovery of damage for personal injuries can only be ob- tained out of the fund in his hands, as may be directed by the court appointing him. — Meara v. Receivers, 20 Oh. St. 137 (1870). Ris;hts of state — taxes. The state is not included in this section, but the superiority of its claim for taxes is not thereby affected. — Treasurer v. Dale, 60 Oh. St. 180 (1899). § 3418. WHERE RECEIVER MUST DEPOSIT MONEY.— When the line of (a) railroad operated by a receiver lies wholly within this state, all money which comes into the hands of the receiver, whether arising from operating the road or otherwise, shall be kept and deposited in such place within this state as the court may direct, until properly disbursed; but if any portion of the road lies in another state, the receiver shall be required to deposit in this state at least such share of the funds in his hands as is proportioned to the value of the property of the company within this state. (March 12, 1872, 69 v. 31, § 4.) § 3419. HOW PURCHASER OP RAILROAD MAY ACQUIRE FRANCHISE.— The purchaser of a railroad, situate wholly or partly within this state, which has been or may hereafter be sold pursuant to judicial proceedings, may acquire the franchise to be a corporation originally vested in the company which held the road prior to such sale, by grant of such company, under such terms and conditions as may be agreed upon by the directors of the company, with the consent of the stockholders LAW GOV. PRIV. COR. — IQ. 290 Private Corporations in Ohio. Judicial Sale, etc., §§ 3420-3422. owning two-thirds of the stock; which grant shall be in the same form as is required by law to convey real estate, and shall pass such franchise to the persons or company becoming the owner, by purchase as aforesaid, of such railroad; but no such grant shall be made unless provision be made for granting to the stockholders in the orig- inal company stock in the reorganized company, upon equal terms with the stock- holders thereof, and as shall be acceptable to the directors making such grant. (April 13, 1865, 62 v. 169, § 1.) New charter granted. The efiFeet of a transfer under this section is a surrender or abandonment of the old charter by the corporators, and a grant de novo of a similar charter to the so-called transferees or purchasers.^ Ohio v. Sherman, 22 Oh. St. 411, 428 (1872). Constitutionality, This section is a general law within the meaning of article 1, section 2 of the constitu- tion.— Ohio V. Sherman, 22 Oh. St. 411 (1872). Repeals and amendments of charters. Where a special charter, not subject to re- peal or amendment, is transferred under this section, the new charter granted by implica- tion, being granted under the present consti- tution, would be subject to alteration and repeal.— Ohio v. Sherman, 22 Oh. St. 411 (1872). Stockholder's liability. Where a special charter, providing for no double liability of stockholders according to the present constitution, is transferred, the transferees do not become a corporation or do not acquire the charter so attempted to be transferred for the reason that the legislature has no power to create a corporation without provisions for at least double liability of stockholders, and the company accepting a transfer under this section has no power to bind its stockholders to double liability by the act of acceptance. — Ohio v. Sherman, 22 Oh. St. 411 (1872). Legality of corporation, estoppel. In an action brought to determine the priority of liens on, and for the sale of, a rail- road, neither lienholders nor general creditors can question the legality of the incorporation of the railway company, or the validity of mortgages of such company upon the ground of such illegality. — Hatry v. Painesville, etc., Ky. Co., 1 0. 0. C. 426 (1886); b. c, 1 C. D. 238. Charter cannot be sold in absence of statute. See Atkinson v. Marietta, etc., K. R. Co., 15 Oh. St. 21 (1864). § 3420. CEKTAIN ROADS MAY BE SOLD AT JUDICIAL SALE.— The real and personal property, road-bed, right of way, fixtures, and franchises of a company in this state which has not completed, nor conveyed by deed of trust, or mortgage, any part of its road, and which is insolvent, and whose property is in the hands of a receiver appointed by a court of competent jurisdiction, may be sold at judicial sale; and the title thereto, with all the rights, liberties, faculties, and franchises, shall pass by such sale, and vest in the purchaser thereof, as fully as the same had been pos- sessed, exercised, and enjoyed by such company. (May 14, 1868, 65 v. 192, § 1.) § 3421. THE RECEIVER MUST PETITION THEREFOR.— Before any such, sale shall be ordered the receiver shall file in such court his petition therefor, in which he shall set forth the names of the creditors of the company, with the sums due to each, as nearly as can be ascertained, a statement of its assets, exclusive of its road-bed, rights of way, and franchises, and a pertinent description, in general terms, of the road-bed, right of way, and property so sought to be sold, and shall cause notice thereof to be published, for six consecutive weeks, in some newspaper printed and of general circulation in each of the counties in which any part of the road-bed is situ- ate; and any creditor shall, at any time before the distribution of the proceeds of the sale, have the right to appear and set up his claim by answer, and have it deter- mined by the court, if it is omitted from or inaccurately stated in the petition. (May 14, 1868, 65 V. 192, § 2.) § 3422. ORDER FOR APPRAISEMENT OP ROAD.— The court, on proof of the publication of such notice, and on being satisfied that a sale is necessary for the pay- ment of the indebtedness of the company, shall order the sale of such road, roadrbed. Railroad Corporations. 291 Judicial Sale, etc., §§ 3423-3426,, rights of way, property, and franchises, upon such terms of payment asj;he court may deem proper, and shall issue its order to the receiver, commanding him that he cause the same to be appraised by commissioners, to be selected by the court, skilled in the construction and value of such road-beds as they may be called upon to appraise, hav- ing the qualifications of a freeholder, not less than three in number, and consisting of at least one from each county in which any part of the road-bed is situate; and such proceedings shall be had under such order as are provided by law in case of sales of real estate made by order of court in other cases, so far as the same may be appli- cable. (May 14, 1868, 65 v. 192, § 3.) § 3423. NOTICE OF SALE TO BE PUBLISHED.— Before any such sale shall be made, notice thereof shall be given by publication, for six consecutive weeks, in some newspaper published and of general circulation in each of the counties through or in which such road is located, and also in some newspaper published and of general cir- culation in each of the cities of New York and Cincinnati, for at least thirty days prior to the day of sale; but the sale shall not be made for less than two-thirds of the appraised value of the property and rights, unless, upon the same having been twice offered and not sold the court, in its discretion, order a reappraisement. (May 14, 1868, 65 V. 192, § 4.) Deposits ivith bids. Deposits filed with bids should be returned to the bidder in case he does not buy the property. — Feike v. Cincinnati, etc., Ry. Co., 3 0. C.C. 72 (1887) ; s. c, 2 C. D. 41; «. o., 27 W. L. B. 75. § 3424. CONFIHMATION OE SALE, AND DEED.— When a sale is made, and reported to the court, if the court is satisfied that the same was fairly and properly conducted, in all respects, according to law and the order of the court, it shall cause the sale to be confirmed, and shall order the receiver to execute and deliver to the purchaser a deed of conveyance for the road, road-bed, rights of way, real estate, fix- tures, and franchises so sold. (May 14, 1868, 65 v. 192, § 5.) § 3425. HOW PROCEEDS OP SALE DISTRIBUTED.— The proceeds of the sale, after paying the costs and expenses thereof and the unpaid expenses of the trust against the company, shall be distributed pro rata among all the creditors of the company. (May 14, 1868, 65 v. 192, § 6.) § 3426. WHO MAY PURCHASE SUCH PROPERTY.— A company organized under the laws of this state may become the purchaser of such property; and any number of persons, not less than five may become the purchasers of such road, road- bed, rights of way, property, and franchises, at such sale, and upon filing a tran- script of the decree of confirmation in the office of the secretary of state, shall become a corporation of this state, amenable to its process, and,jwith perpetual succession by such name as they may assume to themselves, subject to the laws of this state regu- lating corporations, and shall hold the property, rights, and franchises so purchased, free and discharged from all liability for the debts of the original corporation. (May 14, 1868, 65 V. 192, § 7.) § 3426a. PURCHASER OF RAILROAD AT JUDICIAL SALE MAY SELL SAME; GRANT TO BE RECORDED.— The purchaser or purchasers of the real and personal property, road-beds, rights of way, fixtures and franchises of any railroad company in the state of Ohio, and situated wholly or in part in this state that have been or shall hereafter be sold pursuant to judicial order, judgment, or decree, and which sale has been confirmed by the court making the order of sale, may sell the same, or any portion thereof; and the title thereto, with all the rights, liberties, faculties, and 292 Private Corporations in Ohio. Judicial Sale, etc.— Railroad Police, §§ 3426b, 3427. franchises shall pass by such, sale and vest in the purchaser or purchasers thereof, as fully as if the same had been possessed, exercised and enjoyed by such railroad com- pany, and which passed by said judicial sale; which grant, being in the same form as by law required to pass real estate, shall be recorded in the record of deeds of the county or counties in which said real or personal property is situated, and said rights and franchises are or may be exercised. (March 11, 1880, 77 v. 60.) § 3426b. RAILROAD COMPANY, AND ANY NUMBER OF PERSONS, MAY BECOME PURCHASERS; PURCHASERS MAY BECOME INCORPORATED, AND MAY PAY IN STOCKS AND BONDS.— That any railroad company organized or existing under the laws of this state may become the purchasers of such property, as provided in the first section (3426a) of this act, and any number of persons may become the purchasers of such road, road-beds, rights of way, property and franchises, as provided herein, either directly at such judicial sale or by grant from the pur- chasers at such sale, whether the same shall have been heretofore or may hereafter be made; and upon filing a copy of said deed or grant in the office of the secretary of state with articles of incorporation executed in accordance with sections thirty-two hundred and t-hirty-six and thirty-two hundred and thirty-seven of the Revised Stat- utes of Ohio, they and such persons as they may associate with them, not less than five in number, shall become a corporation, with perpetual succession, by such name as they may assume to themselves, with full capacity to maintain and operate such railroads, whether located wholly within this state, or partly within this state and partly within another state or states, and with authority to provide for the purchase price of the railroad and other property so purchased, by the issue of its capital stock, preferred or common, and bonds secured by mortgage or otherwise, bearing interest at a rate not exceeding seven per cent, per annum, and stock and bonds heretofore or hereafter issued as such purchase price, in whatever amounts the incorporators, in good faith, may have agreed on, shall be valid and taken as fully paid for by the transfer to said corporation of such railroad and property, and also by such issue of stock or bonds, to raise the necessary means suitable to improve such railroad prop- erty and equipment for the uses and purposes for which it is employed; and in the operation and maintenance of such railroad, the said corporation shall be entitled to all the rights, and be subject to all the obligations and restrictions imposed upon railroad companies by the general laws of this state. (April 24, 1890, 87 v. 270; March 11, 1880, 77 v. 60.) § 3427. APPOINTMENT OP RAILROAD POLICE; THEIR QUAIIPICATIONS, TERM OF OFFICE, AND REVOCATION OF COMMISSION.— The governor, upon the application of a company owning or using any railroad in this state, shall appoint and commission such persons as the company may designate, or as many thereof as he may deem proper, to act a^ policemen for and upon the premises of such railroad or elsewhere, when directly in the discharge of their duties for such railroad; and all policemen so appointed shall be citizens of the state of Ohio, and men of good char- acter, and said policemen shall hold their office for three years, unless their commis- sions be revoked by the governor for good cause shown, or by the railroad company as provided by section three thousand four hundred and thirty-two of the Revised Stat- utes, and all commissions heretofore issued by the governor of this state, under and by virtue of section three thousand four hundred and twenty-seven of the Revised Statutes of Ohio, as passed March 18, 1867, shall expire, and the authority under and by virtue of the same shall be revoked on and after the first day of June, 1885. (February 18, 1885, 82 v. 51; R. S. 1880; March 18, 1867, 64 v. 60, §§ 1, 2.) ' Police regulations — constitutionality. See Railway Co. v. Railroad Co., 30 Oh. St. 604 (1877). Railroad Corporations. 293' Railroad Police, etc., §§ 3428-3434. § 3428. OATH; RECOED OF COMMISSION; POWERS AND LIABILITIES OF SUCH POLICE. — Each policeman so appointed shall, before entering upon the duties of his office, take and subscribe an oath of office, which shall be endorsed upon his commission; a certified copy of such commission, with the oath, shall be recorded in the office of the clerk of the court of common pleas in every county through or into ' which the railroad for which such policeman is appointed runs, and for which it is intended he shall act; and policemen so appointed and commissioned shall severally possess and exercise all the powers, and be subject to all the liabilities of policemen of cities of the first class, in the several counties in which they are authorized to act while in the discharge of their duties for which they are appointed. (February 18, 1885, 82 V. 51; R. S. 1880; March 18, 1867, 64 v. 60,* § 3.) § 3429. POWER OF SUCH POLICE TO ENFORCE REGULATIONS OF ROAD AND MAKE ARRESTS. — A company which avails itself of the provisions of the two preceding sections may make needful regulations to promote the public conven- ience and safety in and about its depots, stations, and grounds, not inconsistent with the laws of the state, and cause the same to be printed, and posted conspicuously upon its depots or station buildings, and such policemen may enforce and compel obedience to the same; and the keeper of jails, lock-ups, or station-hoiises in any of such counties shall receive all persons arrested by such policemen, for the commis- sion of any offense against such regulations or the laws of the state, upon or along the railroad or premises of any such company to be dealt with according to law. (March 18, 1867, 64 v. 60, § 3.) § 3430. SUCH POLICE TO WEAR BADGES, WHEN.— Each policeman so appointed and commissioned, shall wear in plain view, when on duty, as heretofore specified, a metallic shield with the word " Police," and the name of the railroad for which he is appointed inscribed thereon, except while acting as detective in the dis- charge of his duties for such railroad. (February 18, 1885, 82 v. 51; R. S. 1880; March 18, 1867, 64 v. 60, § 4.) § 3431. COMPENSATION OF POLICE. — The compensation of such policemen shall be paid by the company for which they are respectively appointed, and at such rates as may be agreed upon by the parties. (March 18, 1867, 64 v. 60, § 5.) § 3432. WHEN POWERS CEASE.— When a company no longer requires tho services of a policeman so appointed, it may file a notice to that effect, under its cor- porate seal, attested by its secretary, in the several offices where the commission of such policeman is recorded, which shall be noted by the clerk upon the margin of the record where the commission is recorded, and thereupon the power of such policeman shall cease and determine. (March 18, 1867, 64 v. 60, § 6.) § 3433. WHEN A PASSENGER CONDUCTOR IS A POLICEMAN.— The con- ductor of every train carrying passengers within this state is hereby invested with all the powers, duties, and responsibilities of police officers, while on duty on his train. (April 11, 1876, 73 v. 166, § 1.) § 3434. WHEN CONDUCTOR MAY EJECT A PASSENGER.— When a passen- ger is guilty of disorderly conduct, or uses any obscene language, or plays any game of cards or chance for money or any other thing of value, upon any passenger train, the conductor of such train shall stop his train at the place where such offense is t, committed, or at the next stopping place of such train, and eject such passenger from the train, using only such force as may be necessary to accomplish such removal; and the conductor may command the assistance of the employes of the company and of the passengers on such train to assist in such removal; but before doing so he 294 Private Corporations in Ohio. Bailroad Police, etc., §§ 3435, 3436. shall tender to such passenger such proportion of the fare he paid as the distance he then is from the place to which he has paid fare bears to the whole distance for which his fare is paid. (April 11, 1876, 73 v. 166, § 2.) Place of removal. The expulsion of a person may be at a place other than a railroad depot, or usual stopping place, provided care is taken not to expose him to serious injury or danger. — Railroad Co. v. Skillman, 39 Oh. St. 445 (1883). Damages. Where a person is wrongfully ejected, it is error to charge that he can only recover the price of the ticket, and for the labor of walk- ing to the place of destination. The jury may in such a case take into consideration the place where the plaintiff was left, the circumstances under which it was done, the humiliation, dis- grace, and injury to his feelings, in having the train stopped and being compelled to leave the coach and train in a public manner. — Lake Shore, etc., Ey. Co. v. Teed, 14 0. C. C. 356 (1895); s. c, 6 C. D. 339, Exemplary damages. A corporation by the malicious misconduct of its agents or servants acting within the scope of their employment, may render itself liable to exemplary or punitive damages; but this doctrine being capable of great practical abuse, the giving it in charge to the jury in a case clearly not warranting its application, tends to mislead them; and where, in such a case, a verdict for damages is obviously ex- orbitant, it is error in the court to refuse to set it aside, and award a new trial. — Pitts- burg, etc., R. R. Co. V. Slusser, 19 Oh. St. 157 (1869). See Atlantic, etc., Ry. Co. v. Dunn, 19 Oh. St. 170 (1869). ^V]leIl force amounts to nranton assault. When the force used to eject amounts to wanton assault, the fact as to whether the plaintiff was rightfully or wrongfully upon the train is not an element in the question of mere recovery. — Toledo, etc., Ry. Co. v. Marsh, 17 0. C. C. 379 (1898); s. c, 9 C. D. ,548; Cincinnati, etc., R. R. Co. v. Boyer, 18 0. C. C. 327 (1897); s. c, 10 C. D. 199. "Wlieii action in tort. Where one is wrongfully ejected from a railway train, even in the absence of use of excessive force by the servants of the railroad company, and whether or not the relation of the parties originated in contract, he may seek his remedy as for tort. — Toledo, etc., Ry. Co. V. Marsh, 17 0. C. C. 379 (1898) ; s. c, 9 C. D. 548. See Pittsburg, etc., Ry. Co. v. Reynolds, 55 Oh. St. 370 (1896). Car in motion — question of negligence. Whether it is due and proper care to at- tempt to remove a person from a ear, while the same is in motion, is a question of fact for the jury, and not of law for the court. — Healey v. City, etc., R. R. Co., 28 Oh. St. 23 (1875). See § 3374, notes. § 3435. WHEN HE MAY AKREST A PASSENGER.— When a passenger is guilty of any offense upon a passenger train, the conductor of such train may arrest him and take him before any magistrate having cognizance of such offense, in any county in this state in which such train runs, and file an aflldavit before such magis- trate, charging him with such offense; but in no case shall the liability of a railroad company for damages caused by the conduct of its conductor be affected by the pro- visions of this and the next preceding section. (April 11, 1876, 73 v. 166, § 3.) § 3436. PENALTIES AGAINST CONDUCTORS POR .VIOLATIONS OP CER- TAIN SECTIONS. — A conductor having charge of a passenger train within this state, who willfully neglects his duty as required by the two preceding sections, or fails to use all the means in his power to carry out the requirements of such sections, shall be deemed guilty of negligence of official duty, and on conviction thereof, before any court having competent jurisdiction, shall be fined not less than five nor more than twenty-five dollars. (April 11, 1876, 73 v. 166, § 4.) PART V. STREET RAILROAD CORPORATIONS. S 3437. Where street railway may be constructed. § 3439. Written consent of owners of more than one-half of feet front necessary. I 3439a. When consents cannot be withdrawn. § 3440. When property may be appropriated for such railways, Toledo, Cuyahoga county. § 3441. The authority controlling the public road must consent. S 3442. Form of oath in appropriation proceedings. § 3443. Council, etc., may fix terms and conditions. § 3443a. Watchman at street crossings, intersection and corners. § 3443-1. Street railroad route in Cincinnati made valid. 13443-2. Authorizing municipal authorities to grant permission to extend tracks, etc.; fare must not be increased. § 3443-3. Screens for mortorman. J 3443-4. Penalty; duty of prosecuting attorney. I 3443-5. Repair of crossings at intersecting street railroads ; stopping of cars at crossing. :§ 3443-6. Full stop when approaching intersecting steam railway, etc. J 3443-7. Penalties. S 3443-8. Construction, etc., of street railroads outside of municipalities. •§ 3443-9. Occupancy and use of public highways. ^ 3443-10. Interurban roads given right of eminent domain. § 3443-11. Leases, purchases, and traffic arrangements. % 3443-12. Consolidation. S 3443-13. Regulations and powers. I 3443-14. Street railroad in Mansfield may operate a light and power plant. J 3444. Powers of inclined plane railway companies. S 3445. How street crossings to be made. § 3437. WHERE STREET RAILWAYS MAY BE CONSTRTJCTED.— Street rail- Trays, with single or double tracks, side-tracks, and turn-outs, may be constructed or extended within or without, or partly within and partly without, any municipal cor- poration or unincorporated village; and of&ces, depots, and other necessary buildings for such railways may also be constructed. (February 10, 1870, 67 v. 10, § 1.) Other statutes. See § 2502 et seq. "What proTisions of railroad act appli- cable to street railroads. Nothing in § 3309a or in the sections of the Revised Statutes relating to railroad com- panies, prior to § 3437, other than in §§ 3287, 3288, and 3289, shall be construed as affecting street railroads. See § 3309a. Street railroad company may borrow money. See §§ 3287, 3288, and 3289. Power to morteage property. See Louisville Trust Co. v. Cincinnati, etc., Ey. Co., 91 Fed. 699 (1897). What determines character of road. When a road is laid in a, street, on the sur- face of the street, because it is a street, and to facilitate the use of the street by the pub- lic, it is a street railroad, whatever the means used to propel cars over it. It is the nature of the use, not the motive power, which deter- mines whether a road belongs to one class or the other, and a change from horse power to electric or cable power does not change the character of the road and make it other than a street railroad. — Clement v. Cincinnati, 16 W. L. B. 355 (1886); Sells v. Columbus, etc., Ry. Co., 28 W. L. B. 172 (1892) ; Pelton v. East Cleveland R. R. Co., 22 W. L. B. 67 (1889); Sanfleet v. Toledo, 10 0. C. C. 460 (1893) ; s. c, 8 C. D. 711; Simmons v. Toledo. 8 0. C. C. 535 (1890) ; s. c, 4 C. D. 69; Oviatt v. Akron, [3951 296 Private Corporations in Ohio. Grants for Railways, § 3437. etc., R. R. Co., 2 N. P. 84 (1895) ; s. c, 3 Dec. 252; Harrison v. Mt. Auburn, etc., Ry. Co., 17 W. L. E. 265 (1887). Power to make grant. Authority to lay down the necessary struc- ture for a street railway, in a common high- way or street, and to run cars thereon for the carriage of passengers for hire, may be law- fully granted to a company incorporated for that purpose, when no private right of ad- joining landowners is thereby impaired, but the property rights of such landov/ners cannot be impaired without first making compensa- tion. — Cincinnati, etc., Ry. Co. v. Cummins- ville, 14 Oh. St. 523 (1863). See Cincinnati, etc., Ry. Co. v. Snell, 54 Oh. St. 206 (1896). Insulation of xrires. The act of March 12, 1886, 83 v. 143, does not apply to the use of wires in the streets of a city for conducting electricity to operate street railway cars. — Simmons v. Toledo, 5 O. C. C. 124 (1889) ; s. r., 3 C. D. 64. Blight to use ground circuit. A telephone company does not obtain an ex- clusive right to use a ground circuit by reason of having its poles, wires, etc., installed first or before a street railroad company makes use of a ground circuit which interferes with the telephone business. — Railway Co. v Telegraph Co., 48 Oh. St. 390 (1891). Electrolysis — liability — remedy. See Dayton v. City Ry. Co., 12 Dec. 258 (1902). Fewer to carry freight. A company organized under the general law for the purpose of operating a street railway has, in the absence of a statute prescribing its power, corporate power to carry freight as well as passengers. — State ex rel. v. Dayton Traction Co., 18 0. C. C. 490 (1899); s. c., 10 Dee. 212; affirmed by Supreme Court March, 1901, 45 W. L. B. 225. A steam railroad is an additional burden. See Lawrence R. R. Co. v. Williams, 35 Oh. St. 168 (1878); Cincinnati, etc., Ry. Co. v. Cumminsville, 14 Oh. St. .523 (1863); Taphorn V. Cincinnati, etc., R. R. Co., 8 Am. L. R. 490 (1880). Toreclosure, subrogation. See Mill Creek, etc., Ry. Co. v. Carthage, 18 0. C. C. 210 (1899). Nuisance — laying tracks urithout grant. The placing of tracks in a highway, without authority, is generally held to constitute a nuisance, and it is also generally held that the right to complain rests solely with the public, and not with any individual, unless he suffers a special injury, and abutting owners do not, in contemplation of law, from the mere fact that they are abutters suffer special injury. — ■ See Glidden v. Cincinnati, 30 W. L. B. 213 (1893). Fovrer of commissioners to grant fran- chise in hamlet. The county commissioners have no power to grant a franchise to a street railway company over the streets and roads in a 1 amlet, and cannot maintain an action to enjoin the con- struction of the road in violation of the terms thereof. The trustees of the hamlet have jurisdiction by virtue of § 1651. — Verera v. A. B. & C. R. R. Co., 11 C. D. 664 (1896). A grant is a contract nrithin the mean- ing of § 1777. Contracts made by the council granting to street railroad companies easements in the streets of the city, are contracts made in be- half of the city which may be attacked under § 1777 et seq. — Cincinnati, etc., R. R. Co. v. Smith, 29 Oh. St. 291 (1876). Exclusive rights cannot be granted. Municipal corporations have no power to grant an exclusive right to any street railway company to use the streets of the municipality for railway purposes. — Toledo, etc., Ry. Co. v. Toledo, etc., Ry. Co., 6 0. C. C. 362 (1892); s. >;., 3 C. D. 493; Kinsman Street R. R. Co. v. Broadway Street R. R. Co., 36 Oh. St. 239 (1880); Cincinnati Street R. R. Co. v. Smith, 29 Oh. St. 291 (1876). Grant strictly construed. A grant to a street railway of the right to construct and operate a street railroad is to be strictly construed against the company and in favor of the city. The company can claim only such rights and privileges as are con- ferred by express words or by necessaiy im- plications. Words of general description fol- lowing words of particular description are to be restricted in meaning to objects of like kind and use with those specilied. The words " other appliances " in an ordinance granting the right to construct a street railroad and "all necessary side-tracks, curves, and switches and other appliances for the proper and suc- cessful operation of the road,'' must be re- stricted in meaning to appliances of the kind and use as side-tracks, curves, and switches, and would not include ti house in the middle of a street to be used as a shelter for pas- sengers. — Hamilton, etc., Transit Co. v. Ham- ilton, 1 N. P. 366 (1894) ; s. c, 4 Dec. 10. Acceptance of grant constitutes con- tract. Under §§ 2501, 2502, 3438, and 3439, the ac- ceptance of a grant made by a city council or by county commissioners constitutes a con- tract.— State ex rel. v. Cleveland, etc., Ry. Co., 15 0. C. C. 200 (1897) ; s. c, 8 C. D. 474. Grant to trustee. A grant is not rendered invalid by reason of the fact that the gi;antee is designated in the Street Railroad Corporations. 297 Grants for Kailways, § 3437. ordinance as a " trustee.'' — Simmons v. To- ledo, 5 0. C. C. 124 (1889) ; s. c., 3 C. T>. 64. When part of route has mot necessary consents, rights. Wliere-a portion of a street railway route fails for lack of proper consents, the city may make a new grant as to that portion of the route, when the necessary consents have been obtained; and such grant is valid under the original application, notice, and bids. — San- fleet V. Toledo, 10 0. C. C. 460 (1893) ; s. u., 8 C. D. 711. Grant of only part of application. The grant by a city council of the right to construct and operate a street railway is not necessarily invalid by reason of its covering only a part of the route specified in the origi- nal application. — ■ Simmons v. Toledo, 5 0. C. C. 124 (1889) ; s. c, 3 C. D. 64. Grant of use of park for street railivay purposes. See Mathers v. Cincinnati, 3 W. L. B. 709 (1878); Cleveland, etc., Ry. Co. v. Barriss, 33 W. L. B. 314 (189.5). Effect of section on rights of county commissraners. An ordinance passed by the council of a city only permits the company to extend its rail- way beyond the limits of the corporation, the control of the county commissioners over the state road is not affected thereby, nor the rights of abutting landowners extinguished; and such city ordinance is no defense to an action by the commissioners to recover dam- ages for an injury to said road caused by the company. — Commissioners v. Citizens, etc., Co., 9 0. C. C. 183 (1895); s. c., 6 C. D. 290; s. c, 31 W. L. B. 103. Bridge in city built by county, right to use. See State ex rel. v. Cincinnati, etc., Ey. Co., 19 0. C. C. 79 (1899). Joint use of tracks — power of council. The council of a municipal corporation, in the exercise of its discretion, and acting in good faith, may grant to one street railway company the right to use, to a limited extent, the tracks of another company, on provision being made for the payment of reasonable compensation for such use. But the council possesses no power to take from one company a portion of its tracks, or railway system, and hand it over, absolutely to another company to the exclusion of the former. — Toledo-, etc., Ey. Co. V. Toledo, etc., Ey. Co.,-6 0. C. C. 362 (1892); a. c, 3 C. D. 493. Computation of one-eighth of track- age, interurban companies. Where an interurban company obtains the right to use existing tracks in a city, the part of its railway outside of, as well as inside of, the city should be considered in determining what amounts to one-eighth of its trackage. — ■ State ex rel. v. Cincinnati, etc., Ey. Co., 19 0. C. C. 79 (1899). Fonrer of court to order t^po companies to build tracks jointly. Where two companies have franchises for the same street, a court in the exercise of its equity jurisdiction has no right to require the companies to unite in the building of two tracks, however reasonable and proper, and to the advantage of both companies it may seem to be. Such provisions can only be made by the municipal authorities at the proper time, and the courts can only protect and en- force the rights of parties under the grants made. — Hamilton, etc., Ey. Co. v. Hamilton Transit Co., 5 0. C. C. 319 (1890); s. c, 3 C. D. 64. One company cannot straddle the tracks of another. See Parrish v. Hamilton, etc., Co., 23 0. C. C. 527 (1902). One company may restrain another from injuring its tracks. Where, before grants are made to two com- panies, the city had by ordinance granted to another street railroad company the right to place its tracks in the center of the street, which had been done, the other companies wili be restrained from occupying the center of said s'treet with tracks to the injury of the company having possession. — Hamilton, etc., Electric Co. v. Hamilton, etc.. Transit Co., 5 0. C. C. 319 (1890) ; s. c, 3 C. D. 64. Use of tracks of another company — rights of abutter. An abutting owner will not be heard in an objection to a street railway company being granted the right to occupy and use street railway tracks laid by another company, that being a matter between the companies. — Sanfieet v. Toledo, 10 0. C. C. 460 (1893); s. c, 8 C. D. 711. Invalid grant — rights of taxpayer. Upon the refusal of the solicitor a taxpayer may maintain an action to enjoin the exer- cise of a franchise illegally granted. — Haskins V. Cincinnati, etc., E."e. Co., 4 W. L. B. 1126 (1880). Defective grant — rights of taxpayer. If a grant is illegal for any reason other than that the abutting owners have not con- sented, it is the duty of the public officers to enjoin the execution of the same, and that if, upon the request of a taxpayer that they proceed to enjoin, they refuse so to do, the taxpayer himself has the right to proceed upon behalf of the city. — Glidden v. Cincin- nati, 30 W. L. B. 213 (1893).; Knorr v. :\Iiller, 5 0. C. C. 609 (1891); s. c, 3 C. D. 297. 298 Private Corporations in Ohio. Grants for Eailways, § 3437. Same subject. Where an action is brought by a taxpayer, not living on or owning any property abutting on the line of a, street railroad, to enjoin its use, on the ground that the grant is illegal and void, it is not error in the court to dis- miss the case, the petition not averring, and the evidence not showing that expense will be put on him by taxation or otherwise, the pe- tition having been filed after the road was completed and in operation. — See Buning v. Cincinnati, etc., Ey. Co., 1 0. C. C. 323 (1886) ; s. L-., 1 C. D. 178; Sloan v. Peoples, etc., Ry. Co., 7 0. C. C. 84 (1891) ; 3. c, 3 C. D. 674. Bights of taxpayer mrhen mere puppet. When a taxpayer is not acting in his own interest, but has been indemnified against costs, and is a mere puppet, he cannot main- tain an action. — Gallagher v. Johnson, 31 W. L. B. 24 (1893). Defective grant — rights of abutting owner. An abutting owner, as such, cannot com- plain of defects in a grant other than that of the absence of the required consents of abut- ting owners. — Glidden v. Cincinnati, 30 W. L. B. 213 (1893) ; Barney v. Mt. Adams, etc., Ey. Co., 30 W. L. B. 286 (1893). Percentage of earnings payable to city — construction of ordinance. See Cincinnati v. Mt. Auburn, etc., Ey. Co., 28 W. L. B. 276 (1892); Cincinnati v.. Cincin- nati Ey. Co., 6 N. P. 140 (1899) ; s. c, 9 Dec. 235; s. c, 8 N. P. 80. Bepayment by company of assessments for improving street, tvho entitled thereto. Where a franchise is granted on condition that the company repays to the landowners assessments paid by them for improvements, the landowner at the time of repayment is entitled to the money. — Harkness v. Schiely, 13 0. C. C. 177 (1896); s. c, 7 C. D. 108. Assessments for paving — hoTir paid. It seems that a street-car company has the same right to pay paving assessments in in- stallments as abutting owners of property. — Editorial, 35 W. L. B. 345 (1896). Xicense fee per car — construction of ordinance. See Cincinnati v. Mt. Auburn, etc., Ey. Co., 28 W. L. B. 276 (1892) ; Cincinnati v. Cincin- nati, etc., Ey. Co., 6 N. P. 140 (1899); s. c, 9 Dee. 235; s. c, 8 N. P. 80. Abandonment of franchise. The failure for over twenty years to operate a railway on certain streets included in a franchise granted, raises a presumption of an abandonment of the grant so far as concerns those streets. — Louisville Trust Co. v. Cin- cinnati, 76 Fed. 296 (1896); s. c, 10 0. F. D. 112. Bescission of grant. An ordinance passed repealing the granting ordinance can have no effect without the as- sent of the company. — Cincinnati, etc., Ry. Co. V. Carthage, 36 Oh. St. 631 (1881) ; Cleve- land City Ey. Co. v. Cleveland, 94 Fed. 385 (1899). Estoppel of city ~ rescission. Where a village, through its council, invited and induced a street railway company to enter its corporate limits and occupy its streets with tracks for the purpose of opening a street railway, and the company thereupon built and equipped a railway in its streets, and made large expenditures in so doing, the village cannot thereafter repudiate the action of its council on the ground their proceedings were irregular. — Mill Creek, etc., Ry. Co. v. Carthage, 18 0. C. C. 216 (1899) ; s. c, 9 C. D. 833. Forfeiture — poTver of city to remove tracks. Under certain circumstances amounting to a forfeiture, the city may cause the tracks and equipment to be removed from the street without any judicial determination as to the rights of the parties. — Stewart v. Ashtabula, 36 W. L. B. 46 (1896). See Cleveland, etc., Ey. Co. V. Cleveland. 4 N. P. 21 (1897) ; s. c, 6 Dec. 33; Akron, etc., E. R. Co. v. Village, 6 N. P. 276 (1899); s. c, 8 Dec. 142; Mill Creek, etc., Ey. Co. v. Carthage, 18 0. C. C. 216 (1899); s. c, 9 0. C. D. 833 (1899); Stewart V. Ashtabula (U. S. C. C. A.), 46 W. L. B. 137 (1901). Forfeiture — Tvho may take advantage of. The city authorities may waive the for- feiture of a, franchise, and neither an abut- ting owner nor a competitive company can enjoin the exercise of the franchise, and thus prevent the city from, exercising its right of waiver. — Barney v. Mt. Adams, etc., Ey. Co., 30 W. L. B. 286 (1893); Hamilton, etc.. Elec- tric Co. V. Hamilton, etc., Ey. Co., 5 0. C. C. 319 (1890); s. c, 3 C. D. 158. Befnsal to run cars, mandamus not the remedy. Mandamus will not lie to compel a company to operate cars under a franchise accepted by it. The remedy is under § 1777. — State ex rel. V. Cleveland, etc., Rv. Co., 15 0. C, C. 200 (1897); s. c, 8 C. D. 474. Adverse possession of streets. The right to operate a street railroad can be acquired by adverse possession for twenty years. — Cincinnati v. Columbia, etc., Ev. Co., 17 W. L. B. 192 (1886). Conditions — what invalid. The council of a city may refuse pei-mission . to a street railway company to construct its road in its streets, but if it grants permission, Street Railroad Corporations. 299 Grants for Eailway — Consents, § 3439. it may not do so upon the condition that the company does not exercise one of its corporate powers, and, therefore, a condition or regula- tion that the company shall not carry freight is void.— State ex rel. v. Dayton Traction Co., 18 0. C. C, 490 (1899) ; s, c., 10 0. C. U. 212. Effect of ordinance requiring conduc- tors not to allow certain passengers to alight vrhen car in motion. East Cleveland R. E. Co. v. Eosecrans, 24 W. L. B. 220 (1890). § 3439. WRITTEN CONSENT OF OWNERS OF MORE THAN ONE-HALF OF FEET FRONT NECESSARY.— No such grant shall be made until there is produced to council, or the commissioners, as the case may be, the written consent of the owners of more than one-half of the feet front of the lots and lands abutting on the street or public way, along which it is proposed to construct such railway or extension thereof; and the provisions of sections two thousand five hundred and one and of two thousand five hundred and three to two thousand five hundred and five, inclu- sive, so far as they are applicable, shall be observed in all respects, whether the rail- way proposed is an extension of an old or the granting of a new route; provided, that this aqt shall not apply to any county containing a city of the second grade of the second class. (April 18, 1883, 80 v. 173; R. S. 1880; April 29, 1868, 65 v. 112, § 3.) Want of consents — injunction. Where a franchise is granted without the consent of property-owners, the construction of the road may be enjoined at the suit of nonconsenting property-owners. — Roberts v. Easton, 19 Oh. St. 78 (1869). Same subject. Abutting owners of property upon one street are, as a general rule, restricted in their complaint as to the absence of consents to the street upon which their property abuts. If, however, the consents as to one street were given upon the condition that the required consents should be secured upon the other streets, qusere. — Glidden v. Cincinnati, 30 W. L. B. 213 (1893). See Simmons v. Toledo, 5 0. C. C. 124 (1889); s. c, 3 C. D. 64; Harrison v. Mt. Auburn, etc., Ry. Co., 17 W. L. B. 265 (1887). Bights of nonconsenting abutters. Nonconsenting abutting owners cannot be heard to complain of the violations by the grantee of conditions imposed by those who consented when such consenting owners do not themselves complain of such violations. — Barney v. Mt. Adams, etc., Ry. Co., 30 W. L. B. 286 (1893). What is interference \rith access. Tracks which leave a space of ten feet be- tween the nearest track and the curb do not interfere with the access to abutting property. — See Barney v. Mt. Ad,ams, etc., Ry. Co., 30 W. L. B. 286, 288 (1893). Same subject. The construction of a double track street railway in the middle of a street so located that the space between the exterior and the sidewalk is not sufficient to permit wagons with teams attached to stand transversely be- tween the curb lines and passing cars, is not per se a perversion of the street to private uses, or an unlawful infringement of street easements appurtenant to abutting property. — Sells V. Columbus, etc., Rv. Co., 28 W. L. B. 172 (1892). See Schaaff v. Cleveland, etc., Ry. Co., 16 0. C. C, 252 (1898) ; s. c, 8 C. D. 688; Bellaire. etc., Ry. Co. v. Smith, 41 W. L. B. 212 (1899); Oviatt v. Akron, 'etc., R. R. Co., 2 N. P. 84 (1895) ; s. c, 3 Dec. 252. Same subject — ' trolley poles. See Mt. Adams, etc., Ry. Co. v. Winslow, 3 0. C. C. 425 (1888); s. c, 2 C. D. 240. Interference with market, rights of abutter. See Sells v. Columbus, etc., Ry. Co., 28 W. L. B. 172 (1893). Iiiability for injuries to access or to trees in street. See Keefe v. Cleveland City R. R. Co., 8 N. P. 466 (1901); Akron, etc., R. R. Co. v. Keck, 23 0. C. C. 57 (1901). Suit by abutting ow^ners, joinder of parties. One or more property-owners on a street may join on behalf of others situated on the same street, without alleging that at the time the action is brought each and every member of the class is actually participating in bring- ing and prosecuting the action. In such at- tack property-o-wners on one street do not belong to the same class as those on another street, and therefore they cannot unite in the same action. — Glidden v. Cincinnati, 30 W. L. B. 213 (1893). Temporary interference with access. The temporary interference with the access which results to abutting owners of property by the opening of a street for the construction of a line of street railway, is a necessary inci- dent to the right to construct the railway, and cannot be complained of by such abutting owners. — Glidden v. Cincinnati, 30 W. L. B. 213 a893). 300 Private Corporations in Ohio. Grants for Kailway — Consents, § 3439. Contest as to consents — bnrden of proof. A property owner may contest the question whetlier or not the council has the requisite number of consents to give it jurisdiction, but the presumption of law is in favor of the action of the council, and the burden of proof lies upon the plaintiflF, the property owner, to show that sufficient consents were not given. — Simmons v. Toledo, 8 0. C. C. 535 (1890); s. u., 4 C. D. 69. See Cincinnati College v. Nesmith, 2 C. S. E. 24 (1870); Roberts v. Easton, 19 Oh. St. 78 (18G9). Absence of consents — rights of tax- payer. A taxpayer, as such, cannot institute pro- ceedings to have a street railway grant de- clared void because of the absence of the necessary consents of the abutting property owners. Such action can only be brought by an abutting owner. — Glidden v. Cincinnati, ,S0 Oh. St. 213 (1893) ; Sommers v. Cincinnati, 8 A. L. Eec. 612 (18S0) ; Harrison v. Mt. Auburn, etc., Ev. Co., 17 W. L. B. 265 (1887) ; Hamilton v. C. & H.. etc., E. E. Co., 5 N. P. 457 (1898); s. c., 8 Dec. 174. Onrner must consent. Consents must be in writing signed by the owner of the property or his duly authorized agent. A signature and consent signed by the husband in his own name, where the wife owns the property and does not consent, is insuffi- cient and should not be received or counted. — Simmons v. Toledo, 8 0. C. C. 535 (1890); s. c, 4 C. D. 69. Consent and remainderman and life tenant. The signature of the owner of the remainder in fee, without the signature of the party holding the life estate, is sufficient, and should be counted as a proper consent under certain circumstances. — Simmons v. Toledo, 8 0. C. C. 535 (1890) ; s. c, 4 C. D. 69. Consent of co-tenants. Less than the whole number of joint ten- ants in abutting lands cannot give consent to the construction of a street railway track in a street under § 2502. — Eonnebaum v. Mt. Auburn, etc., Ey. Co., 29 W. L. B. 338 (1893). Same subject. A tenant in common, who may desire to vote adversely to his cotenants, has a right to have such vote counted, and will be allowed to vote the number of feet front which his undivided interest in the land proportionately represents. — Simmons v. Toledo, 8 0. C. C. 535 (1890); s. c, 4 C. D. 69. Consents — entry on records. It is not necessary that the consent of prop- erty owners be entered on the records of the council. It is sufficient if they are produced or furnished to the council. — Sanfleet v. To- ledo, 10 0. C. C. 460 (1893) ; s. c, 8 C. D. 711. Consents for each street must be ob- tained. See Mt. Auburn, etc., Ey. Co. v. Neare, 54 Oh. St. 153 (1896) ; s. u., 29 W. L. B. 171; Eapp V. Storrs, etc., E. E. Co., 12 W. L. B. 119 (1884). Effect of § 2502 on this section. See Neare v. Mt. Auburn, etc., Ry. Co., 29 W. L. B. 171; s. c, 54 Oh. St. 153 (1 Consents as to mode of operation, etc. It is not necessary that they stipulate the mode and manner of constniction and opera- tion.— Sloane v. Peoples, etc., Ey. Co., 7 0. C. C. 84 (1891); 8. c, 3 C. D. 674. Additional sxritches. A street railway company, having located and constructed its railway under the proper municipal authority, with all the switches or turnouts which were then deemed necessary by the company, cannot afterward construct additional switches or extend those already constructed, without first obtaining the writ- ten consent of a majority of the property holders, represented by the feet front, of the property abutting on 'that part of the street where such additional switches or extensions are proposed to be constructed, and obtaining the right to do so from the proper municipal authority. — ■ Hamer v. Columbus, etc., Ry. Co., 29 W. L. B. 387 (1893). Consent as to double track. Where a single track street railroad has been lawfully constructed, the consent of any of the property owners cannot be counted 'as an assent to the constniction of the second track.— Eoberts v. Easton, 19 Oh. St. 78 (1869). Road to run on tracks of another com- pany — consents. . The consents of property owners must be had, notwithstanding the company does not intend to construct a new track, but to use the tracks already laid. — Sanfleet v. Toledo, 10 0. C. C. 400 (1893) ; s. c, 8 C. D. 711. See State ex rel. v. Cincinnati, etc., Ey. Co., 19 0. C. C. 79 (1899). Consents as to county property. The board of county commissioners is the proper source from which to obtain a consent as to county property, and the action of the board is valid although not entered on the journal, and may be proved by parol. — Wear- ing v. Toledo, etc., Ev. Co., 9 0. C. C. 593 (1893) ; s. c, 6 C. D. 664. Ratification of unauthorized consents. A written consent given by an unauthorized person, a stranger to the title, and not pur- porting to be the consent of the real owner, afterward ratified by such owner and adopted as his own act, but not until after the passage of the ordinance granting permission to con- struct, cannot be counted as the written con- sent of the owner within the meaning of the Street Railroad Corporations. 301 Grants for Kailway — Consents, § 3439a. statute. — Sommers v. Cincinnati, 8 A. L. Rec. 612 (18S0). Consents inure to benefit of Icw^sst bidder. The consents of abutting owners to the con- struction and operation of a street railroad route, by whomsoever obtained, inure to the benefit of the lowest bidder, to permit the abutting owners to dictate to which of the holders their consent shall inure, would be to permit them to absolutely control the award of the contract, which the statute (§ 2502) requires shall be settled by competition in rates of fare only. — Knorr v. Miller, 5 0. C. C. 609 (1891); s.'.c., 3 C. D. 297; s. c, 25 W. L. B. 128; Mathers v. Cincinnati, 3 W. L. B. 551 ; s. c, 3 W. L. B. 709 (1878) ; State ex rel. V. Bell, 34 Oh. St. 194 (1877). Consents are condition precedent to grant. Under the provisions of §§ 2501 and 2505, inclusive, and §§ 3437 to 3443, inclusive, the consent of a majority in number of the prop- erty owners upon the streets upon which such road is to pass, filed in writing, is a condition precedent to the power of the city council to .make a grant. — Sommers v. Cincinnati, 8 A. L. Rec. 612 (1880). Conditional consents. A consent given upon the condition that the construction of the railway shall be com- menced and completed within a certain time is a condition subsequent, and its effect lies as between the party who signed the paper and the party who built the road; so far as the city council is concerned, such condition should not preclude that body from acting upon the consent. — Simmons v. Toledo, 8 0. C. C. 535 (1890); s. c, 4 C. D. 69. Conditional consents, nonperformance. Where consents are conditioned upon the adoption of a specified motive power, even if the result is not a mere covenant, but a con- dition, its violation does not ipso facto render the consents void, but only voidable at the option of parties giving them. — Barney v. Mt. Adams, etc.. By. Co., 30 W. L. B. 286 (1893). AVhen consents should be obtained. It is not necessary to the validity o2 a grant that the number of consents of abutting own- ers should have been obtained prior to the publication of the notice inviting bids. — Sloane v. Peoples, etc., Ry. Co., 7 0. C. C. 84 (1891); s. c, 3 C. D. 674. Consents — how long valid. Consents of abutting owners for a street railway, and not withdrawn, may be counted for the railway at the time of obtaining a second ordinance grant, the first being in- valid.— Sanfleet v, Toledo, 10 0. C. C. 460 (1893); s. c, 8 C. D. 711. AVithdrawal of consent. A property-owner may withdraw his or her consent at any time before the council has acted upon it and passed the ordinance. — Simmons v. Toledo, 8 0.*C. C. 535 (1890); s. c, 4 C. D. 69; Pari'ish v. Hamilton, etc., Co., 23 0. C. C. 527 (1902). Right to grant temporary use of streets ixrithout consents. See Mathers v. Cincinnati, 3 W. L. B. 709 (1878); s. r,., 3 W. L. B. 551. Purchased consents are invalid. The purpose of this section is to protect the owners of property from arbitrary action by city authorities, and each owner is entitled to an honest, fair, and unbiased expression from other owners, therefore consents ob- tained by money or other considerations in- uring to one person are void and cannot be counted. — Hamilton, etc., Transit Co. v. Ham- ilton, etc., Traction Co., 12 Dec. 1 (1901); Parrish v. Hamilton, etc., Co., 23 0. C. C. 527 (1902). Same subject. A third party interested in defeating the proposed grant may buy and a landowner may for money or other consideration agree to withdraw or withhold his consent. — Cleve- land V. Cleveland Citv Rv. Co., 23 0. C. C. 373 (1902); s. c, 12 Dec. 624. Estoppel cannot cure Txrajit of consents. See Parrish v. Hamilton, etc., Co., 23 0. C. C. 527 (1902). § 3439a. WHEN CONSENTS CANNOT BE WITHDRAWN.— Nothing contained in sections 2502 and 3439 shall permit any persons owning property abutting on any street along, in or over which a street railroad is about to be constructed, to withdraw his or their consent after an ordinance granting the right to construct and operate a street railroad shall have been read the second time; provided, a period of at least thirty days has elapsed since the first reading of said ordinance in the council or other body authorized to make the grant. And where an abutting property holder has been heretofore compensated for his consent, or has heretofore withdrawn his consent, not- withstanding thirty days has not elapsed since the first reading of the ordinance after an ordinance granting the right to construct and operate a street railroad has been read the second time in the council or other body authorized to make the grant 302 Private Corporations in Ohio. Appropriation of Property for Railway, § 3440. and a. grant has been made by the council or other public body to n, company or indi- vidual, pursuant to such consents, the grant shall not be held invalid by reason thereof. (May 10, 1903, 95 v. 475.) Fnrcliased consents cannot be used. As tho policy of the law is to protect abut- ting owners from the exercise of arbitrary power by city authorities, consents unfairly obtained, as hj purchase, cannot be used. — Hamilton, etc., Transit Co. v. Hamilton, etc.. Traction Co., 12 Dec. 1 (1901). § 3440. WHEN PROPERTY MAY BE APPROPRIATED FOR SUCH RAIL- WAYS; TOLEDO; CUYAHOGA COUNTY. — When the council or commissioners make such grant, the company or person to whom the grant is made may appropriate any property necessary therefor when the owner fails to expressly waive his claim to damages by reason of the construction and operation of the railway; and in any city of the third grade of the first class any person, persons or company which is authorized to construct and operate and has constructed and is operating a street rail- way, may appropriate any property necessary for the purpose of occupying and using under section 3438Pany existing street railway track or tracks, subject to the limita- tions of said section, and for not more than one-eighth of the entire distance between the termini of the route as actually constructed, operated and run over, of the appro- priating company or person at the time appropriation proceedings are begun, such appropriation to be made in the mode and manner provided for the appropriation of property in part third, title 2, chapter 8, of the Revised Statutes; and in counties containing a city of the second grade of the first class the power to appropriate may be exercised, as hereinbefore provided, for the purpose of constructing a street rail- way along a highway occupied by a turnpike or plank road company when the person, persons or company authorized to construct such street railway cannot agree with such turnpike or plank road company upon the terms and conditions upon which such highway may be occupied, and when such appropriation will not unnecessarily inter- fere with the reasonable use of such highway by such turnpike or plank road com- pany; provided, nothing herein contained shall afEect the rights of the property owners to give or withhold their consent concerning the right of way for street rail- roads upon any street or road. (April 16, 1892, 89 v. 349; April 11, 1890, 87 v. 178; March 27, 1866, 63 v. 55, § 4; March 24, 1864, 61 v. 53, § 1.) Constitutionality. The provisions contained in this section prior to the amendment of April 11, 1890, 87 V. 178, are constitutional; whether those added Ijy that amendment are constitutional, quaere? but if unconstitutional, they are dis- tinct and separable from those of the original section, and do not affect their validity. — Street Ry. Co. v. Street Ry. Co., 50 Oh. St. 603 (1893). Injunction by one company against an- other. To entitle one street railway company to an injunction to prevent the operation of an- other company's cars over tracks in the street in which it has appropriated a right of use, it must appear not only that the plaintiff was not made a party to the proceedings, but that also it has a real interest in the tracks. It has no such interest when it has sold all its right of use. — Metropolitan, etc., Ry. Co. v. Toledo, etc., Ev. Co., 9 0, C. C. 664; s. c, 6 C D. 733 (1893). See Toledo, etc., Ry. Co. V. Toledo, etc., Ry. Co., 7 N. P. 211 (1894); 1 Dec. 33. Appropriation of existing tracks. A street railway company, to which the council of a city has granted the right to occupy a part of the track of another com- pany in accordance with § 3438, is authorized by this section, without the aid of the amend- atory provisions of April 11, 1890, to appro- priate the track according to the grant, when the companies are unable to agree upon the compensation, sind the appropriation proceed- ing may he prosecuted under chapter 8 of title 2 of part third of the Revised Statutes. — Street Ry. Co. %. Street Rv. Co., 50 Oh. St. C03 (1893). Tracks must be condemned. Although a company may not have an ex- clusive right in a street, this does not conflict with its right of private property in the material of which its road is constructed. Such material in place is as strictly the pri- vate property of the corporation as it was before it was placed, save in this only, that having been placed in a public street, it was thereby dedicated to the ordinary use of the public; but as a railroad such material re- Street Railroad Corporations. 303 Appropriation of Property for Railway, § 3440. mains the private property of the company, and for such purpose it is subject to the use and control of the owner exclusively. When, therefore, a right of way for street railroad purposes is granted over the same route to another company by the luunieipal author- ities, the private property of the former can- not be appropriated by the latter company until compensation is first made by the latter to the former company. — Kinsman Street R. E. Co. V. Broadway Street E. E. Co., 36 Oh. St. 239 (1S80). Crossing of tracks. A street track crossing is a burden incident to the right to operate a street railway in a public street, and cannot be enjoined pending appropriation. — Metropolitan, etc., Ey. Co. v. Toledo, etc., Ey. Co., 9 0. C. C. 664; s. c, 6 C. D. 733 (1893). Time use of property is required — pleadiug. It is not necessaiy, in an appropriation pro- ceeding, for the petition to state the length of time the use of the property sought to be appropriated will be required by the appro- priating company. — Toledo, etc., Ey. Co. v. Toledo, etc., Ey. Co., 12 0. C. C. 367 ,1893) ; s. c. 5 C. D. 643. Necessity for use of tracks. Where a city council has duly authorized the construction and operation of a line of street railway upon certain streets of the city, and the use by the grantee of such fran- chise of a portion of existing tracks of an- other company, the question of the necessity of such use cannot, except for the reason be- low stated, be inquired into in appropriation proceedings. In the absence of evidence im- peaching the action of the council for fraud, the probate court is concluded thereby. — Toledo, etc., Ey. Co. v. Toledo, etc., Ey. Co., 6 0. C. C. 362 (1892) ; s. c, 3 C. D. 493. Appropriation of part. Where one company has appropriated the right to use a portion of the tracks of another company under the power conferred upon it by the legislature and city, it will not be pre- cluded thereby from prosecuting another appropriation proceeding to condemn the right to use more of the tracks until it has obtained an additional grant from the city. — Toledo, etc., Ey. Co. v. Toledo, etc., Ry. Co., 12 0. 0. C. 367 (1893); s. c, 5 C. D. 643. Proof of application, notice, and con- sents. In »■■ proceeding to condemn tracks or prop- erty under this section, it is not necessary to prove that application to the council for the franchise was made, and notice thereof given, or that the consents of abutting property own- ers were obtained. — Toledo, etc., Ey. Co. v. Toledo, etc., Ev. Co., 6 0. C. C. 362 (1892); s. e., 3 C. D. 493. Proceedings to appropriate tracks — proof. See Toledo, etc., Rv. Co. v. Toledo, etc., Ey. Co., 26 W. L. B. 172 (1891); Consolidated, etc., Ev. Co. V. Toledo, etc., Ey. Co., 6 N. P. 5:!7: s. c, S Dec. 268 (1893); s. c, 12 0. C. C. 367; s. 0., .5 C. D. U43. Hoiv line must be constructed before condemnation of tracks can be had. Under the terms of this section it is suffi- cient to show that at the time the proceedings to appropriate were commenced, the required proportion of railway had been constructed, and was being operated. — Toledo, etc., Ey. Co. V. Toledo, etc.,. Ey. Co., 6 0. C. C. 362 (1892) ; s. c, 3 C. D. 493; Toledo, etc., Ey. Co. V. Toledo, etc., Ev. Co., 12 0. C. C. 367 (1893) j s. c, 5 C. D. 643. Rights acquired by appropriation. Where a street railway company, has regu- larly appropriated, by proceedings under the statute, the right to run and operate its rail- way cars over and upon certain designated portions of the line of street railway of an- other company, it does not thereby acquire such an interest in the property of the latter company as to entitle it to demand from an- other company, which has subsequently ac- quired, by contract with the company owning the railway, the right to use its tracks, com- pensation for such use. — Toledo, etc., Ey. Co. V. Toledo, etc., Ey. Co., 10 0. C. C. 168 (1895); s. c, 6 C. D. 578. When council may fix compensation. When the council, in making a grant of a. franchise, reserves the right to fix the com- pensation for property taken in case it grants the right to another company, the council may fix the compensation to be paid, and the courts Avill not interfere in the absence of fraud or unreasonableness. — Kinsman Street E. E. Co. V. Broadway Street E. E. Co., 36 Oh. St. 239 (1880). Measure of compensation. The jury should take into consideration the value of so much of the railway structure and materials in place, of the defendant company, as is sought to be appropriated, including the cost of the paving constructed by the defend- ant in conformity with the city ordinances; also the damages, if any, which such structure will sustain in adapting it to the uses of the appropi-iating company. But the defendant company is not entitled to compensation for any supposed depreciation in value of its fran- chise to operate its line of railway in the streets of the city caused by the proposed joint use and occupancy of its tracks, nor for the loss of fares which may be occasioned thereby, nor for the inconvenience and inter- ruptions to business which may be caused thereby, nor for the consequential diminution in value of other portions of the line forming part of its street railway system. The com- pensation should be limited to the value of 304 Private Corporations in Ohio. Consent of Owners of Road — Condition of Grants, etc., §§ 3441-3443. the use of the tracks during the unexpired term of the franchise granted such company by the city council. Whether there should also be included a just proportion of the prob- able expense of future repairs and mainte- nance of the railway system and future taxes, or whether these expenses should be provided for by the respective companies as they ac- crue, quaere. — Toledo, etc., Ry. Co. v. Toledo, etc., Ry. Co., 6 0. C. C. 362 (1892); s. c, 3 C. D. 493 ; Toledo, etc., Ry. Go. v. Toledo, etc., Ey. Co., 12 0. C. C. 367 (1893) ; s. c, 5 C. D. 643. Agreement betxreen companies — con- struction. Where one company contracts with another whereby it permits the ears of such other com- pany to run over its track, such other com- pany cannot under such contract run the cars of the third company over the tracks of such first company. — ■ Toledo, etc., R. R. Co. v. Toledo Traction Co., 17 0. C. C. 22 (1898); s. c, 9 C. D. 828. See Toledo, etc., R. R. Co. V. Toledo Traction Co., 15 0. C. C. 190 (1897) ; a c, 8 C. D. 204. Appropriation of property — evidence. See Lorain Street Ry. Co. v. Sinning, 17 O. C. C. 649 (1895) ; s. c, 6 C. D. 753. Injunction to prevent entry on private property — estoppel. See Detwiler v. Toledo, etc., Ry. Co., 6 N. P. 485 (1895); 8 Dec. 166. PoTweT to condemn county road. See Citizens, etc., R. R. Co. v. Commission- ers, 56 Oh. »t. 1, 8 (1897). Bight of interurban roads to condemn. See § 3443-10. § 3441. THE AUTHOEITY CONTKOLLING THE PUBLIC ROAD MTJST CON- SENT.— If the public road along which the railway is to be constructed is owned by a person or company, or is within the control or management of the board of public works or other public oflcer, such person, company, or officer may agree with the per- son or company constructing the railway as to the terms and conditions upon which the road may be occupied. (February 19, 1870, 67 v. 10, § 1.) State and county roads included. Citizens, etc., R. R. Co. v. Commissioners, 56 Oh. St. 1, 7 (1897). " OfBoer," meaning. The term "oflBcer" includes a board of county commissioners. — ■ Citizens, etc., R. R. Co. v. Commissioners, 56 Oh. St. 1, 7 (1897). Section cited. State ex rel. v. Taylor, 55 Oh. St. 61, 66 (1896). § 3442. rORM OP OATH IN APPROPRIATION PROCEEDINGS.— In case of appropriation of property for such purpose, the oath to be administered to the jury shall be as follows: " You and each of you do solemnly swear that you will justly and impartially assess, according to your best judgment, the amount of compensation which is due to (here name the owner or owners), by reason of the appropriation of the street or avenue (as in the statement described), irrespective of any benefit from any improvement proposed by said (here name the company, individual, or company of individuals), and that you will in assessing any damages that may accrue to (here name the owner or owners), by reason of the appropriation, other than the compen- sation, further ascertain how much less valuable the lot or lots of said (here name the owner or owners), will be in consequence of such appropriation." And the jury, in ascertaining such compensation or damages, shall determine the amount thereof without reference to the distinction between a public and a private nuisance, and the effect of such distinction upon the right of such owner or owners to claim compensa- tion or damages, and the court shall, if requested, so direct the jury. (March 27, 1866, 63 V. 55, § 5.) § 3443. COITNCIL, ETC., MAY PIX TERMS AND CONDITIONS.— Council, or the commissioners, as the case may be, shall have the power to fix the terms and con- ditions upon which such railways may be constructed, operated, extended, and r.on- solidated. (February 19, 1870, 67 v. 10, § 1; May 7, 1869, 66 v. 140, § 1.) See §§ 2502, 3438. Street Railroad Corporations. 305 Regulations as to, §§ 3443a-3443-3. § 3443a. WATCHMEN AT STREET CROSSINGS, INTERSECTIONS AND CORNERS. — Whenever any street railways are operated by electricity, cable, com- pressed air, or any motive power other than horses or mules, in any municipality, the board of legislation or council of such municipalities shall have the power by ordinance to require the owners or operators of any such street railways to place watchmen at any street crossings, intersections or corners which such board of legis- lation or council may deem dangerous; and to provide for the proper enforcement of Buch ordinances by penalties in the way of fine or imprisonment, or both, which may be imposed upon the owner, oflElcer, or operator of such street railways or by a penalty of not exceeding $100 per day, which may be recovered by such municipalities in a civil suit against the owners or operators of any such street railw^ay failing to place such watchman as may be required. (April 16, 1892, 89 v. 346.) § 3443-1. STREET RAILROAD ROUTE IN CINCINNATI MADE VALID.— That in all cases where in cities of the first grade of the first class the council has heretofore, by ordinance, established any street railroad route and declared the condi- tions upon which a street railroad should be constructed and operated upon and along such route, and due publication of a notice has been made calling for proposals to construct and operate such street railroad to be awarded to the corporation, individual or individuals that should agree to carry passengers thereon at the lowest rates of fare, aud the proposal of a bidder who obtained and filed the written consents of "the owners of the majority of the feet front of property on each street on the line of the route has been accepted thereon, and an ordinance passed granting to such bidder the franchise to construct and operate such street railroad, and such bidder has accepted the sam.> and entered into a written contract with such municipal corporation to con- struct and operate such street railroad, such ordinance, grant, contract and franchise shall be deemed and held, in all respects, to be valid and binding; notwithstanding the submission of another bid at such letting by a bidder proposing to carry passen- gers on such route at a lower rate of fare, who failed and neglected to obtain and file "the written consent of any of the property owners on the line of said route, (April 10, 1891, 88 V. 303.) Constitutionality. See Knorr v. Miller, 5 0. C. C. 609, 623 (1891); s. c, 3 C. D. 297; Cincinnati v. Cincinnati, •etc., Ey. Co... 31 W. L. B. 308 (1894). § 3443-2. AUTHORIZING MUNICIPAL AUTHORITIES TO GRANT PERMIS- SION TO EXTEND TRACKS, ETC.; FARE MUST NOT BE INCREASED.— In cities of the first grade of the first class the board of city affairs or board of public improve- ments, or their successors in office, may, by resolution, grant permission to any cor- poration, individual or company owning or having the right to construct any street railroad, to extend their tracks and route subject to such provisions of sections 3437, 3438,' 3439, 3440, 3441, 3442 and 3443 of the Revised Statutes as are applicable and not in conflict herewith, on any street or streets when such board may deem such extension beneficial to the public; and when any such extension is made, the charge for carrying passengers on any street railroad so extended, and its connections made with any other road or roads by consolidation under existing laws, shall not be increased by reason of such extension or consolidation. (April 10, 1891, 88 v. 303.) Constitutionality. See Cincinnati v. Cincinnati, etc., Ey. Co., 31 W. L. B. 308 (1894). See generally as to extensions, § 2505, notes. § 3443-3. SCREENS FOR MOTORMEN.— Every electric street car other than trail cars which are attached to motor cars, shall be provided during the months of November, December, January, February and March of each year, at the forward end LAW GOV. PRIV. COR. — 20. 306 Private Corporations in Ohio. Railroad Crossings, etc. — Regulations as to, §§ 3443-4^-34:43-6. witli a. screen constructed of glass or other material, which shall fully and completely protect the driver, or motorman, or gripman, or other person stationed on such forward end and guiding and directing the motor power by which they are propelled, from, wind and storm. (April 30, 1893, 90 v. 220.) § 3443-4. PENALTY; DUTY 01" PROSECUTIITG^ ATTORNEY.— Any person, agent or officer of any association or corporation violating the provisions of this act shall, upon conviction, be fined in any sum not less than $25 nor more than $100 for each day each car belonging to and used by any such person, association or corpora- tion is directed or permitted to remain unprovided with the screen required in sec- tion one (§ 3443-3) of this act; and it is hereby made the duty of the prosecuting attorney of each county in this state to institute the necessary proceedings to enforce che provisions of this act. (April 20, 1893, 90 v. 220.) Constitutionality. This act is not in conflict with either the Ohio or United States Constitutions. — State v. Nelson, 52 Oh. St. 88 (1894). § 3443-5. REPAIR OF CEOSSIWGS AT INTERSECTING STREET RAILROADS; STOPPING OF CARS AT CROSSING. — Where the tracks of two street railroads cross each other or in any way connect at a common grade, when one or both such street railroads use other than horse power for propelling their street cars, the crossings shall be made and kept in repair at the joint expense of the companies owning the tracks, and all such cars used on said street railroads shall come to a full stop, not nearer than ten feet nor further than fifty feet from the crossing, and shall not cross until the way is clear; and when two or more cars approach the crossing at the same time the car or cars on the road first built shall have precedence. (May 4, 1891, 8S V. 581.) § 3443-6. FULL STOP WHEN APPROACHING INTERSECTING STEAM RAIL- WAY, ETC. — That whenever the tracks of any street railroads in this state cross the tracks of any steam railway at grade, the street railway company operating said lino of cars shall cause their street-cars to come to a full stop not nearer than ten feet nor further than fifty feet from the crossing, and before proceeding to cross said steam railway tracks, shall cause some person in their employ to go ahead of said car or cars and ascertain if the way is clear and free from danger for the passage of said street-cars, and said street railroad cars shall not proceed to cross until signaled so to do by such person so employed as aforesaid, or said way is clear for their passage over said tracks. (May 4, 1891, 88 v. 581.) Joint liability. Where the car is not stopped and the gate- keeper is negligent, the railroad company and the street-car company are both liable.— To- ledo, etc., Ry. Co. v. Fuller, 17 0. C. C. 562 (1894); s. c, 8 C. D. 134. Horses and car considered as one. Under this act the car and the horses at- tached to it are to be considered as one in calculating the distance from the railroad track at which the street car is required to stop.— Toledo, etc., Ry. Co. v. Fuller, 17 0. 0. C. 562 (1894) ; s. c, 8 C. D. 134. Collision — prima facie case. The fact of a collision puts the company prima facie in the wrong, and the burden is on it to show that the injury was the result of an accident, and that it could not have been prevented by the exercise of reasonable care.— Toledo, etc., Ry. Co., v. Fuller, 17 0- C. C. 562 (1894) ; s. i;., 8 C. D. 134. Duty to look out for persons getting off or on oar at such stop. Where a car is stopped in compliance with this section, the operators of the car are not required as a matter of law to look before the ear is started to see whether any one is getting oflf or on the ear. — Packard v. Toledo Traction Co., 22 0. C. C. 587 (1901). Failure to lower gates. Failure of the steam railway to lower the safety gates does not relieve the street railway company from the duty of sending a man ahead to see if the crossing can be safely made. Street Railroad Corporations. 307 Railways Outside of Municipalities, etc., §§ 3443-7-3443-10. — Cincinnati, etc., Ry. Co. v. Murray, 9 0. C. C. 291 (1895); s. c, 6 C. D. 413; a. c, 53 Oh. St. 570 (1895). Proximate cause. < Tha injury must have been directly caused by the negligence. — Cincinnati, etc., Ry. Co. V. Murray, 53 Oh. St. 570 (1895). Questions for court and jury. See Cincinnati, etc., Ry. Co. v. Murray, 53 Oh. St. 570 (1895). Duty xrlien only one man on car. See Cincinnati, etc., Ry. Co. v. Murray, 53 Oh. St. 570 (1895)i § 3443-7. PENALTIES. — Every person in charge of any street-car or oars wh.0 willfully fails to comply with the provisions of this act, and fails to bring said car or cars which he has in charge to a full stop, or causes the same before the way is clear, or signaled so to do to cross said steam railroad tracks, shall be personally liable to any person injured by reason of such failure as aforesaid, to a penalty of one hundred dollars, to be recovered by civil action at the suit of the state of Ohio, in the court of common pleas of any county wherein such crossing or connection is, and the company in whose employ such person having charge of said car or cars is, as well as the person himself shall be liable in damages to any person or persons injured in person or property (having charge of such car or cars) as aforesaid. (May 4, 1891, 88 V. 581.) , § 3443-8. CONSTBTTCTION, ETC., OP STBEET BAILROADS OUTSIDE OP MUNICIPALITIES.— Companies incorporated under section 3236 of the Revised Statutes of Ohio for such purpose may construct, maintain and operate electric street railroads or street railroads using other than animal power as a motive power for the transportation of passengers, packages, express matter. United States mail, bag- gage and freight upon the highways in the state outside of municipalities or upon private rights of way. (May 10, 1902, 95 v. 539; May 17, 1894, 91 v. 285.) Bight to run in city. This section does not modify, limit or repeal §§ 3437 and 3438, nor define a different kind of street railroad. A street railroad corpora- tion having a charter to construct a street railroad within and without a city or village may, under a grant from the city or village, build its line in and through the city or vil- lage. — Hamilton v. C. & H., etc., Ry. Co., 5 N. P. 457 (1898); s. c, 8 Deo. 174. Constitutionality. See Dietz v. C. & M. Traction Co., 4 N. P. 399 (1897); s. c, 6 Dec. 513. ConBtrnction of section. See opinion of Attorney-General, 39 W. L. B. 113. § 3443-9. OCCUPANCY AND USE OP PUBLIC HIGHWAYS.— All such com- panies shall have power to occupy and use for their tracks, oars and necessary fix- tures and appliances, the public highways outside of cities and villages with the con- sent of the public authorities in charge of or controlling such highways, and with the written consent of a majority, measured by the front foot, of the property holders abutting on each of such highways. (May 17, 1894, 91 v. 285.) Turnpike company cannot consent. See McMaken v. C. & H. R. R. Co., 5 N. P. 367 (1898) ; s. c, 5 Dee. 358. When railroad is additional servitude. The construction of an interurban railroad of T rails on one side of a, highway creates an additional burden similar to that created by a steam road, and an abutting owner is entitled to an injunction pending appropria- tion. — Sehaaf v. Cleveland, etc., Ry. Co., 66 Oh. St. 215 (1902). See Akron, etc., R. R. Co. v. Keck, 23 O. C. C. 57 (1901); Dietz v. C. & M. Traction Co., 4 N. P. 399 (1897); s. c.; 6 Dec. 513; McMaken v. C. & H. Ry. Co., 5 N. P. 367 (1899); s. c, 5 Dee. 358. § 3443-10. INTEEUBBAN EAILBOADS GIVEN BIGHT OP EMINENT DOMAIN. — All companies organized for the construction and operation of inter- urban railroads, using any motive power other than animal power, shall, when necessary to enter upon and use private property in such construction and operation outside of municipalities, have the same power and right of eminent domain as is 308 Private Corporations in Ohio. Consolidation — Inclined Plane Companies, etc., §§ 3443-11-3445. now possessed by steam railroad companies. (May 10, 1902, 95 v. 538; May 17, 1894, 91 V. 285.) Note. — Prior to the passage of this act it was held in several probate courts that these companies could not appropiiate private lands, except where it was impossible to use a high- way. — Columbus, etc., Ry.* Co. v. Cole, 47 W."L. B. 547 (1902); Columbus, etc., Ry. Co. V. Marriott, 47 W. L. B. 3S7 (1902); Toledo, etc., Ry. Co. v. Griffin (Lucas Co. Probate Court) (1902). Extent of poiver. This section does not confer unlimited power on street railroad companies. — See Columbus, etc., Ry. Co. v. Cole, 47 W. L. B. 06 (1902). Pleading and proof. See Columbus, etc., Ry. Co. v. Cole, 47 W. L. B. 66 (1902). § 3443-11. LEASES, PURCHASES AND TKAEFIC ARBANGEMENTS.— Sucli companies shall have power to lease, purchase or make traffic arrangements with any other street railroad company as to so much of its tracks and other property as may be necessary or desirable to enable them to enter or pass through any city or village, upon the same terms and conditions applicable to other street railroads. And any existing street railroad company owning or operating a street railroad shall receive the cars, freight, packages or passengers of any other road, upon the same terms and conditions as they carry for the general public. (May 17, 1894,, 91 v. 285.) State ex rel. v. Cincinnati, etc., Ry. Co., 19 0. C. C. 79 (1899). Right to appropriate trackage. A company operating under this act has the right to appropriate trackage under § 3440. — § 3443-12. CONSOLIDATION. — Such street railroad companies may consolidate on the terms and conditions applicable to the consolidation of railroad companies; provided, however, no increase of fare shall be allowed on any street railroad route by reason of such consolidation. (May 17, 1894, 91 v. 285.) § 3443-13. REGULATIONS AND POWERS. — Such companies shall be subject to the same regulations now provided for street railroads, in so far as the same are applicable, and shall have all the powers, in so far as they are applicable, that other street railroad companies have. (May 17, 1894, 91 v. 285.) § 3443-14. STREET RAILROAD IN MANSFIELD MAY OPERATE A LIGHT AND POWER PLANT. — The council of any city which at the last federal census had or which at any subsequent federal census may have a population of not less than 13,400 nor more than 13,600 may grant permission to any corporation, indi- vidual or individuals to construct and operate an electric power and light plant in connection with any street railroad operated by them, and may prescribe the terms of constructing and operating the same, and such cities may renew any such grants at their expiration upon such conditions as may be considered conducive to the public interests. (April 29, 1891, 88 v. 447.) § 3444. POWERS OF INCLINED PLANE RAILWAY COMPANIES.— An inclined plane railway company may construct, operate, and maintain an inclined plane railway, for the conveyance of passengers and freight, or either, with such offices, depots, and other buildings as it may deem necessary, and may establish and maintain a park or pleasure-grounds, and for such purpose may acquire and hold real estate. (April 12, 1876, 73 v. 229, § 2.) Acts construed. Cincinnati v. Cincinnati, etc., Ry. Co., 30 W. L. B. 321 (1893); Louisville Trust Co. v. Cincinnati, 73 Fed. 716 (1896); s. c, 8 0. F. D. 704; Louisville Trust Co. v. Cincinnati, 76 Fed. 290 (1896) ; s. l-., 10 0. F. D. 112. § 3445. HOW STREET CROSSINGS TO BE MADE.— When the part of the railway of such company which is operated by steam power crosses a public street or highway, it must pass either over or under such street or highway, and shall be con- structed in such manner, and at such distance above or below the same as not to obstruct the ordinary use of such street or highway. (April 12, 1876, 73 v. 229, § 10.) PART VI. SHIP CANAL CORPORATIONS. § 3445-1. Power to construct, etc., and operate ship canal. § 3445-2. Change of line, etc., into or through adjoining state. § 3445-3. Rights of companies. § 3445-4. Occupancy and use of stream ; appropriation of necessary lands. § 3445-5. Occupancy and use of public way or public grounds. § 3445-6. Compensation for land taken. § 3445-7. Issuing of bonds. § 3445-8. Borrowing money. § 3445-9. Mortgage or pledge securing loans. §3445-10. Increase of capital stock; limit. § 3445-11. Principal ofKce. § 3445-12. Securities sold to, and liability of directors. § 3445-13. Consolidations. § 3445-14. Provisions governing consolidations. § 3445-15. Application of laws for protection of property, and relation to officers, agents, employees, and police. § 3445-1. Sec. 1. POWER TO CONSTKUCT, ETC., AND OPERATE SHIP-CANAL AND NECESSARY APPTJRTENANOES. — A ship-canal company, now existing or hereafter created, may lay out, construct, maintain, and operate with any kind of motive power a ship-canal, together with all such locks, dams, tow-paths, branches, basins, tunnels, aqueducts, feeders to supply water from any lakes or rivers, reser- voirs, cuttings, apparatus, appliances, and machinery as it may deem necessary, be- tween the points named in the articles of incorporation, and when a terminus named in the articles of incorporation is upon the boundary line of the state, section 3271 of the Revised Statutes shall apply to said company. (April 27, 1896, 92 v. 410.) § 3445-2. Sec. 2. CHANGE OF LINE, ETC., INTO AND THROUGH ADJOINING STATE. — Any such company may change the line or grade of its canal and branches thereof, and either of the proposed termini of such canal and branches, in the manner and subject to the provisions, conditions and limitations contained in sections 3272, 3273, 3274, 3275, 3276, 3277, and 3278 of the Revised Statutes, which said sections are hereby made applicable to ship-canal companies, and may extend its canal and branches thereof into and through any adjoining state, under the regulations which may be prescribed by such adjoining state; and the rights, powers and privileges of such company over such extension, in the construction and use of such canal and branches, and in controlling the property and applying the money and assets thereon, shall be the same as if such canal and branches were built wholly in this state. (April 27, 1896, 92 v. 410.) § 3445-3. Sec. 3. RIGHTS OF COMPANY.— Any such company shall have the right to enter upon any land for the purpose of examining and surveying the lines of its canal and branches; to acquire — by purchase, appropriation, or otherwise, all such lands as are necessary ajjd propef for the making, preserving, maintaining, operating and using the canals, and other works and appliances of the company; to make, maintain and alter any places or passages over, under, or through, the said canal or any of its branches and connections; to relocate, alter, move, divert, rebuild, or change the grade of any bridge, street, highway, turnpike, road, tramway, rail- [309] 310 Private Corporations in Ohio. Ship Canal Companies, § 3445-3. road, pipe line, conduit, or other avenue of transportation, either public or private; or any electric telegraph or telephone line, or electric wire, main, or conduit, or any water, gas, or steam-pipe, or sewer, drain, culvert, or tunnel, the present location of which may be or lie in, upon, across, under, or contiguous to the company's intended canal or works, and which may obstruct, prevent or interfere with the proper con- struction, maintenance, and operation thereof; to acquire, by purchase, appropriation, or otherwise, any and all lands necessary for relocating and moving any of the struc- tures aforesaid; to obtain by purchase, appropriation, or otherwise, and use, during the construction and operation of said canal and its branches, from the rivers, lakes, brooks, streams, watercourses, reservoirs, and other sources of water-supply, adjacent or near to any such canal, or its branches, water sufficient for the purpose of con- structing, maintaining, operating and using such canal and its branches and works, and sufficient to establish and maintain a. current at the average rate of three miles per hour throughout the navigable channels of such canal; to control and regulate the fluctuations of the lakes, rivers, and creeks by regulating and overflow dams and weirs; to raise and lower the water-surface in the lakes and rivers; to control and regulate the flood-waters of rivers and creeks adjacent to such canal or its branches, by directing or impounding them as may be necessary; to divert or alter, either temporarily or permanently, the course of any river, stream, creek, brook, or water- course where the same is necessary to the making, maintaining, and operating of such canal and its branches; to erect, maintain and operate dams, regulating dams, weirs, conduits, channels, diversion channels, cuttings, ditches, trenches, tunnels, reservoirs, basins, aqueducts, and other works necessary to the purposes of such company; to condemn, appropriate, purchase, acquire, and remove any dam, pier, wharf, bridge, causeway, trestle, wall, embankment, or other artificial work or natural obstacle which obstructs, interferes with, or threatens the free navigation, or use and operation and maintenance of such company's canal and branches, and the safe and easy entrance and exit of vessels to and from the same; to construct, maintain and operate, use, lease or otherwise dispose of terminals, harbors, wharves, piers, docks, ' elevators and warehouses upon said canal, or upon lakes, adjoining or near the same or connected therewith by waterways, natural or artificial; to lay out and lease, or otherwise dispose of water-lots, and use, lease, sell or otherwise dispose of water brought by or for the said canal, and produce, lease, and supply, or otherwise dispose of hydraulic, electric, or other kinds of power in connection with the works of such company; to acquire and use and dispose of steamers, tugs, boats, barges, and other vessels for the purposes of said canal, and propel vessels of all kinds, in and through the said canal by any kind of power and force; to erect, maintain and operate such structures, machinery and appliances as are necessary to produce the force and power required to operate such canal and branches; to open, cut and erect such ponds and basins for the laying up and turning of vessels, boats, or rafts using the canal, and at such portions thereof as they may deem expedient; to build and erect such dry- docks, slips and machinery therewith for the hauling out and repairing of such ves- sels as they think proper, and make and provide apparatus and appliances for the raising and clearing away of wrecked or sunken vessels and for the floating of sunken and grounded vessels, and lease and hire the same on such terms as they deem expe- dient, or operate the same by their servants and agents; to construct, or acquire and maintain and operate electric telegraph and telephone lines, and electric light poles, wires, machinery and apparatus for the purpose of the economic and convenient con- struction and operation of such canal and branches; to acquire, by license, purchase, or otherwise, the right to use any patented invention for the purpose of constructing and operating such canal and branches, and to again dispose of the same; to con- struct, make and do all such matters and things nectssary or proper for the making, completing and properly maintaining and operating such canal and branches, and carrying out in other respects the objects of such company. Provided, that whenever such company shall find it necessary to relocate, alter, move, divert, rebuild or in any manner change any bridge, street, highway, turnpike, or other avenue of travel or Powers. 311 Ship Canal Companies, §§ 3445-4-3445-8. transportation, either public or private; or of any electric telegraph or telephone line, or electric wire, main, or conduit, or any water, gas, or steam.-pipe, or sewer, drain, culvert or tunnel it shall cause the same to be properly reconstructed forth- with, at its own expense, and on the most favorable location procurable, and with the least possible interruption to the convenient use of such structure. (April 27, 1896, 92 V. 410.) FoTirer of appropriation, A company incorporated to construct a line of canal is engaged in making a public work, for which private property may be taken as in the case of other public uses. — Willyard V. Hamilton, 7 Ohio (2nd part) 112 (1835). Authorizing abandonment of corporate power, constitutional. A special act, authorizing a canal company to abandon a. portion of its canal, is permis- sion to surrender corporate power^ not an at- tempt by special legislation to confer cor- porate power, and is therefore not in conflict with section 1, article 13, of the constitution. — Penna. Canal Co. v. Commissioners, 27 Oh. St. 14 (1875). Abandonment releases from liability. Under Its charter, it was the duty of the company to repair over highways. Held, that after such abandonment it was released from this liability. — Penna. Canal Co. v. Commis- sioners, 27 Oh. St. 14 (1875). § 3445-4. Sec. 4. OCCUPANCY AND USE OF STREAM; APPROPRIATION OF NECESSARY LANDS. — Such company may enter upon and into and occupy and use any part or all of any river, creek or stream upon and along the route of its canal and branches, and may enter upon lands on the route adjoining or in the neigh- borhood of its canal and branches, and appropriate so much thereof as may be deemed necessary for such canal and branches, including all buildings and improvements mentioned in section 3 (§ 3445-3) of this act, materials for construction, and rights of way sufficient to enable it to construct and repair its canal and branches. (April 27, 1896, 92 v. 410.) § 3445-5. Sec. 5. OCCUPANCY AND USE OF PUBLIC WAY OR PUBLIC GROUND. — If it be necessary in the location of a canal, or branches thereof, to occupy any public road, street, alley way or public ground of any kind or any part thereof, the right to occupy and use the same may be acquired in the manner and under the conditions and subject to the restrictions and obligations provided and con- tained in section 3283 of the Revised Statutes, which is hereby made applicable to ship-canal companies. (April 27, 1896, 92 v. 410.) § 3445-6. Sec. 6. COMPENSATION FOR LAND TAKEN, ETC. — No appropria- tion of property to the use of such company, shall be made until full compensation therefor is made in money, or secured by deposit of money, to the owner, to be assessed by a jury without deduction for benefits to any property-owner, as pre- scribed by law. Such appropriation of property shall be made according to the pro- visions of title two (2) chapter eight (8) of the Revised Statutes, and the acts amendatory thereof and supplementary thereto. (April 27, 1896, 92 v. 410.) § 3445-7. Sec. 7. ISSUING OF BONDS. — A company may issue bonds, con- vertible or otherwise, bearing a rate of interest not exceeding seven per centum per annum, to an amount not exceeding the amount of its capital stock actually sub- scribed, for one or more of the following purposes: Completing or extending its canal, constructing branch canals, constructing necessary buildings or improvements, enlarging or deepening its canal or branches, paying its unfunded debts, or redeem- ing its bonds; and it may secure the bonds issued for such purposes by mortgage on its property, or otherwise, by complying with the provisions of section 3286 of the Revised Statutes, which is hereby made applicable to ship-canal companies and to ship-canals. (April 27, 1896, 92 v. 410.) § 3445-8. Sec. 8. BORROWING MONEY. — A company may borrow money on terms, for the purposes and subject to the conditions and restrictions contained in section 3287 of the Revised Statutes. (April 27, 1896, 92 v. 410.) 312 Private Corporations in Ohio. Ship Canal Companies, §§ 3445-9-3445-15. § 3445-9. Sec. 9. MOKTAGE OB PLEDGE SECURING LOANS. — Snch. mort- gage or pledge may be made in the manner provided by section 3288 of the Revised Statutes, and when made may be recorded as provided in section 3289 of the Revised Statutes, and when so recorded shall constitute a lien as in said section 3289 provided. (April 27, 1896, 92 v. 410.) § 3445-10. Sec. 10. INCREASE OF CAPITAL STOCK; LIMIT. — A company may increase its capital stock whenever in the opinion of the directors such increase is desirable and necessary to the purposes of the company, by complying with the provisions of section 3308 of the Revised Statutes, and such increased stock may be " common " or " preferred," as provided by and under the conditions and restrictions named and contained in sections 3309 and 3309b of the Revised Statutes. Provided, that the aggregate amount of the capital stock and bonded indebtedness of the com- pany shall never exceed the sum of six hundred thousand dollars per mile of its main and branch canals. (April 27, 1896, 92 v. 410.) § 3445-11. Sec. 11. PIRINCIPAL OFFICE. — Each company shall, as soon as con- venient after its organization, establish a principal or general office on (at) some point on the line of its canal, and may change the same at pleasure, and shall give public notice of such establishment or change, in some newspaper published on its line, within this state; and the office of the president, secretary and treasurer of the com- pany shall be kept at such principal or general office, or at some other point on the line of the canal within the state, and a record kept there of all the proceedings of the company, to be open at reasonable hours to the inspection of any stockholders of the company. (April 27, 1896, 92 v. 410.) § 3445-12. Sec. 12. SECURITIES SOLD TO, AND LIABILITY OF, DIRECT- ORS. — The provisions of sections 3313 and 3314 of the Revised Statutes shall apply to ship-canal companies. (April 27, 1896, 92 v. 410.) § 3445-13. Sec. 13. CONSOLIDATIONS. — When the canals of any ship-canal companies in this state are so constructed as to permit the passage of ships, boats or vessels into and through any two or more of such canals continuously, without break or interruption, such companies may consolidate themselves into a single company; and any company organized in this state for the purpose of constructing, owning, maintaining and operating a ship-canal^ to the boundary line of the state, or to any point either in or out of the state, may consolidate its capital stock with the capital stock of any company in an adjoining state, organized for a like purpose, and whose canal has been projected to the same point, where the several canals when constructed will form a continuou" canal. (April 27, 1896, 92 v. 410.) § 3445-14. Sec. 14. PROVISIONS GOVERNING CONSOLIDATIONS.— The consolidations shall be made in accordance with the provisions of sections 3381, 3382 and 3383 of the Revised Statutes, and the consolidated companies shall be entitled to all the rights and benefits, and be subject to all the requirements and restrictions imposed by sections 3384, 3385, 3386, 3388, 3388a, 3390, 3391, and 3392 of the Revised Statutes, all the above sections are hereby made applicable to ship-canal companies. (April 27, 1896, 92 v. 410.) § 3445-15. Sec. 15. APPLICABILITY OF" LAWS FOR PROTECTION OP PROPERTY, AND RELATING TO OFFICERS, AGENTS, EMPLOYES AND POLICE. — All laws for the protection of railroads and their property, and relating to or enforc- ing the duties and obligations of officers, agents and employes of railroad companies, and relating to the appointment, powers and duties of railroad police, shall be appli- cable to the canals, property, officers, agents and employes of ship-canal companies (April 27, 1896, 92 v. 410.) PART VII. UNION DEPOT CORPORATIONS. § 3446. Who may file articles of incorporation. § 3447. The articles of incorporation. §3448. Stock owned in equal proportion; powers. § 3449. Who to be directors of the company. § 3450. By-laws, rules, and regulations. § 3451. Liability of the several companies. § 3452. Certain laws applicable to such companies. § 3453. Power to borrow money and issue, secure, and sell notes or bonds. § 3446. WHO MAY PILE ARTICLES OF INCOEPOEATION. — The presidents of two or more railroad companies running railroads to the same city, town, or village, may, by the consent and under the direction of their respective boards of directors, file articles of incorporation in the ofiice of the secretary of state, for the purpose of purchasing depot grounds, and locating, constructing, and maintaining a common or union station-house and passenger depot, and a union railroad by two or more tracks connecting the railroads of such companies for business purposes. (April 3, 1868, 65 V. 63, § 1; S. & S. 122.) § 3447. THE ARTICLES OF INCORPOBATIOlSr. — The articles of incorporation, shall specify — 1. The name assumed by such company. 2. The names of the companies, and the city, village, or town where such depot and connection tracks are proposed to be constructed. 3. The amount of capital stock necessary to obtain a site and construct and main- tain such depot and tracks. The articles, signed by the presidents in behalf of the companies, with the cor- porate seals of the companies annexed thereto, shall be forwarded to the secretary of state, who shall record and preserve the same in his office; a copy thereof, duly cer- tified by the secretary of state, shall be evidence of the existence of such company; and thereafter such company may contract and be contracted with, sue and be sued, locate and take releases of right of way and depot grounds, and appropriate so much, land as may be necessary for such depot and tracks. (April 3, 1868, 65 v. 63, § If S. & S. 122.) § 3448. STOCK OWBTED IN EQUAL PROPORTION; POWERS. — The com- panies whose boards of directors authorize the filing of the articles of incorporation, or assent thereto, shall each be held to own and be liable to pay an equal proportion of the capital stock; and the provisions of section three thousand two hundred and eighty-one, shall be applicable to such company. (April 3, 1868, 65 v. 63, § 2; S. & S. 122.) § 3449. WHO TO BE DIRECTORS OF THE COMPANY. — The president of each company which enters into such arrangement shall, ex ofiicio, be a director in the union company, unless the board of directors of such company appoint some other person as director; all questions which affect pecuniary liabilities and expenditures shall require the concurrence of two-thirds of all the directors; all officers, agents, and employes of the union company shall be appointed by the concurrence of all the menrbers of the board, and may be discharged by any two members thereof, and the [313] 314 Private Corporations in Ohio. Union Depot Companies, §§ 3450-3453. board shall keep a record of its proceedings, -whicli shall be open to the inspection of the stockholders and directors of the companies. (April 3, 1868, 65 v. 63, § 3; S. & S. 122.) § 3450. BY-LAWS, EXILES, AND REGULATIONS. — The board may pass by- laws, rules, and regulations, not inconsistent with the charters of the companies, for its government, and for the regulation of the depot, depot grounds, and the business thereof, and shall appoint such officers and agents as may be necessary; it shall adopt, and post conspicuously in the passenger house, such rules and regulations as will control the conduct of all runners, solicitors, hackmen, and drivers of vehicles; and the officers and agents of the company shall have the same authority to arrest and bring to justice pickpockets, thieves, and persons who violate the public peace, and persons who violate any such rules and regulations so posted, and persons who commit crimes and misdemeanors while on the depot grounds, as constables have by law within their respective townships. (April 3, 1868, 65 v. 63, § 3; S. & S. 122.) May grant exclusive right to transfer company, A union depot company may grant to a transfer company the exclusive privilege of standing its vehicles upon its depot grounds and soliciting customers thereon; and a regu- lation excluding therefrom all others engaged in a similar business^ excepting only for the purpose of delivering passengers or of calling for persons that have previously engaged them, is reasonable. — Snyder v. Union Depot Co., 19 C. C. 369 (1899); s. c, 10 C. D. 645; reversing 7 N. P. 64, where all the cases are reviewed; dismissed in Supreme Court, 42 Bull. 310 (1899). Ordinance prohibiting soliciting at depot. A city ordinance prohibiting hackmen from soliciting patronage on any railroad platform or railroad ground is a reasonable and proper regulation. — Moerder v. Fremont, 19 C. C. 394 (1899) ; a. i-., 10 C. D. .501. See also State v. Brown, 7 N. P. 133 (1899) ; s. c, 10 Dee. 28. § 3451. LIABILITY OF THE SEVEBAL COMPANIES. — The several companies represented by the union company shall be jointly liable to the public, and all per- sons who contract with the union company, for all contracts made and damages caused by the union company; and, as between themselves, shall be liable to each other in the proportion of the interest of each in the union property, and for all damages, costs and expenses which arise from the fault or neglect of their respective officers and employes. (April 3, 1868, 65 v. 63, § 4; S. & S. 123.) § 3452. CERTAIN LAWS APPLICABLE TO SUCH COMPANIES. — All laws for the protection of railroads and their property, and relating to or enforcing the duties and obligations of officers, agents, and employes of railroad companies to the public and to railroad companies, or to either, shall be applicable to the railroad tracks, property, officers, agents, and employes of such union company. (April 3, 1868, 65 V. 63, § 5; S. & S. 123.) § 3453. POWER TO BORROW MONEY AND ISSUE, SECURE AND SELL NOTES OR BONDS. — Any such company shall have power to borrow money for the purpose of raising means to carry out the powers conferred by the act authorizing the incorporation of union depots without reference to the amount of stock of such com- pany, and may issue coupon or other bonds payable to bearer, bearing interest not exceeding the highest contract rate of interest which may be allowable in this state, at the time; such interest to be payable semi-annually, and such company may also m.ortgage its franchises, property, and revenues of every kind, then owned or subse- quently to be acquired, to secure the payment of such loan and interest, or of such bonds and interest; and the stockholders of such company may guarantee the pay- ment of any notes or bonds the company lawfully issues, and it may dispose of the same at such rate of premium or discount, as the directors may deem best for its interests. (April 3, 1896, 92 v. 118; May 13, 1868, 65 v. 191, § 1; S. & S. 123.). PART Vfll. TELEGRAPH AND TELEPHONE CORPORATIONS. § 3454. Powers of companies. §3455. Power of telegraph companies; unlawful to contract for exclusive right of way. § 3456. May enter upon any appropriate land. § 3457. Limitation upon such authority. § 3458. When the land to be appropriated is held by a corporation. § 3459. When such land is held by a railroad company. § 3460. When the lands lie in more than one covinty. § 346L How right to use public ground acquired. § 3461-1. Lines of electric telegraphs may be constructed any place so they do not incommode the public. § 3461-2. County commissioners to appoint three appraisers for damages. § 3461-3. Pay of appraisers. § 3461-4. Fine and punishment for injuring the lines. § 3461-5. Mode of prosecution. §3461-6. Legislature may alter act; taxation. § 3462. Must receive and transmit dispatches for other lines. § 3463. When to forward messages by mail. § 3464. Agent must endorse dispatch, when. § 3465. Penalties for not transmitting or delivering message. § 3466. Penalties against persons connected with companies. § 3467. Penalties for knowingly transmitting dispatches forged, etc. § 3467a. Penalty for unlawfully interfering, etc., with telegraphic or telephonic messages or with electric light of electric street railway property. § 3468. When and how telegraph structures may be removed. § 3469. How and when repair of structures enforced. § 3470. How and when telegraijh companies may consolidate. § 3471. Chapter applies to telephone companies. § 3471a. Electric light companies and power and automatic package carrier companies; con- sent of municipality, etc. § 3471-1. Subways for telephone and telegraph wires in cities; erection of poles; penalties. § 3471-2. By whom consent given. § 3471-3. Powers of electric light and power companies. § 3471-4. Contracts ^^•ith municipalities. § 3471-4a. Contracts with municipalities for furnishing light and water; lease. ? 3471-5. Validity of prior contracts. § 3471-6. Subways and conduits for electric wires, etc., in Cincinnati. § 3471-7. Permission for construction of, etc., by whom granted and rules governing con- struction. § 3471-8. Bond for restoration of streets, etc., board of improvements to fix rental. § 3454. POWERS OP COMPABTIES.— A magnetic telegraph company hereto- fore or hereafter created may construct telegraph lines, from point to point, along and upon any public road, by the erection of the necessary fixtures, including posts, piers, and abutments necessary for the wires; but the same shall not Incommode the public in the use of such road. (May 1, 1852, 50 v. 274, § 47; S. & S. 299.) No injunction against additional iirires. A pole and eight wires had been continu- ously used by a telegraph companv for a period of nine years in front of plaintiff's premises. Held, that an injunction would not be granted restraining the companv from stringing additional wires, but plaintiff must resort to his i-emedy for damages. — Wirth v. Postal Tel. Co., 7 C. C. 290 (1893); s. c, 4 C. D. 601. [315] 316 Private Corporations in Ohio. Powers — Exclusive Eight of Way, § 3455. Grant to string unlimited number of xrires gives right to license others to nse poles. A grant to a corporation to erect poles and string an unlimited number of wires carries with it the right to license an individual to string wires on such poles, and the wires strung by such individual are not such an ob- struction as will constitute a nuisance. — Newman v. Avondale, 31 W. L. B. 123. But see Tel. Co. v. Toledo, 44 W. L. B. 238 (1900). Condition of road, etc., to be observed — liability for negligence. Mouahon v. Telephone Co., 7 N. P. 95 (1898); a. c, 9 Dec. 532. Telephone poles in city not additional servitude. Reasonable use of streets of a city for tele- phone poles and wires is not a new burden, entitling the abutting owner to compensation. — Auerbach v. Telephone Co., 7 N. P. 633 (1900^; s. c, 9 Dec. 389; reviewing decisions and modifying Smith v. Teleg. Co., 2 C. C. 259 (1886); s. c, 1 C. D. 457; McLean v. El. Light Co., 9 W. L. B. 65 (1883). Poles and ^vires create additional ser- vitude. See Callen v. Columbus, etc., Co., 66 Oh. St. 166 (1902) ; Schaaf v. Qeveland, etc., Ry. Co., 66 Oh. St. 215 (1902). As to compensation to municipality. See Zanesville Telegraph & Tel. Co. v. Zanes- vUle, 45 W. L. B. 59 (1901). Telephone poles on highway, additional servitude. The construction of a telegraph or telephone line upon a highway is a new and additional servitude, entitling the owner to compensa- tion.— Smith V. Tel. Co., 2 C. C. 259 (1886) ; B. c, 1 C. D. 457; Denver v. Telephone Co., 10 Dec. 273 (1900). See, also, McLean v. El. Light Co., 9 W. L. B. 65 (1883). Poles unlaivfully erected to be re- moved. When a company constructs a line during the pendency of an action to enjoin them from so doing, against the objection of the owner, a court of equity will order the same to be removed.— Smith v. Tel. Co., 2 C. C. 259 (1886); s. c, 1 C. D. 457; Denver v. Tel. Co., 10 Dec. 273 (1900). Instruction to servants admissible in mitigation of damages. In an action for wrongful cutting of shade trees on a highway which passes through a farm, an oral license from a teni-nt, though unauthorized, and the instructions of the com- pany to its servants with respect to the man- ner of trimming trees along its line, are competent to defeat exemplary damages, though incompetent to prevent recovery of full compensation.— Western Union Tel. Co. v. Smith, 45 W. L, .B. 60 (1900). Conflicting rights of telephone and street-car companies. The dominant purpose for which streets in a municipality are dedicated is to facilitate public travel and transportation, and a fran- chise granted to a telephone company to operate its lines along such street is subordi- nate to the rights of the public for the pur- poses of travel and transportation. — Railway Co. V. Telegraph Ass'n, 48 Oh. St. 390 (1891). Rights of telephone company subordi- nate. The facts that a telephone company oper- ated its lines upon certain streets, prior to the operation of an electri-e street railway thereon, will not give the telephone company a right paramount to that of the public to adopt and use the most approved mode of travel thereon; and if the operation of the electric railway disturbs the. working of the telephone system, the remedy of the latter will be to readjust its methods so as to meet the conditions created by the operation of such electric railway. — Railway Co. v. Tele- graph Ass'n, 48 Oh.' St. 390 (1891). Right to string ivires includes right to trim trees. The right of a telephone company to string wires in a highway includes the right to do the tiecessary trimming of trees in the high- way, in a proper manner, without first giving the landowner an opportunity to do it. — Wyant v. Tel. Co., 44 W. L. B. 110 (1900). Company cannot confer use of streets upon another company. A company having a permit to use streets and alleys cannot, under cover of its fran- chise, confer the right to use such streets and alleys upon a separate company without con- sent of the city.— Tel. Co. i . Toledo, 44 W. L. B. 238 (1900). But see Newman v. Avondale, 31 W. L. B. 123 (1893). As to cutting trees vrithin the high'nray but ourned by abutting owner. Daily et al. v. State, 51 Oh. St. 348 (1894). See note to State ex rel. v. Telephone Co., 36 Oh. St. 297. under § 3471. See note under § 3456. § 3455. POWERS OF TELEGRAPH COMPANIES; TINLAWFTJL TO CONTRACT FOR EXCLUSIVE RIGHT OF WAY. — Any such company may construct, own, use and maintain any line or lines of magnetic telegraph whether described in its original articles of incorporation or not, and whether such line or lines are wholly within or Telegraph and Telephone Corporations. 317 Appropriation of Property, §§ 3456-3459. partly beyond the limits of this state, and may join with any other company or asso- ciation in conducting, leasing, owning, using or maintaining such line or lines upon such terms as may be agreed upon between the directors or managers of the respective companies; and such companies may own and hold any interest in any such line or lines or may become lessees of such line or lines, upon such terms as may be agreed upon; but it shall be unlawful for any such company or companies, and the owner or owners of rights of way to contract for the exclusive use thereof for telegraphic purposes. (April 15, 1880, 77 v. 264; R. S. 1880; March 31, 1865, 62 v. 72, § 6; S. & S. 154.) § 3456. MAY ENTER UPON ANY APPEOPBIATE LANB.— Any such com- pany may enter upon any land, whether held by an individual or a corporation, and whether acquired by purchase or appropriation, or in virtue of any provision in its charter, for the purpose of making preliminary examinations and surveys, with a view to the location and erection of lines of magnetic telegraph, and may appropriate so much thereof as may be deemed necessary for the erection and maintenance of its telegraph poles, piers, abutments, wires, and other necessary fixtures, and for sta- tions, and the right of way over such lands and adjacent lands sufficient to enable it to construct and repair its lines (March 31, 1865, 62 v. 72, § 1; S. & S. 153.) See Smith v. Cent. Diat. Tel. Co., 2 C. C. 259 (18S6) ; s. c, 1 C. D. 475. Appropriation along right of Tvay of railroad; damages. Nominal damages only will be allowed for the condemnation of a right to erect poles and wires along the right of way of a railroad company. — Ohio Postal Tel. Co. et al. v. C. C. C. & St. L. R. R. Co. et al., 8 N. P. 121 (1900). See § 6881-1. Proceedings in error, time for taking, See C. C. C. & St. L. Ey. Co. v. Postal Tel. Co., 22 0. C. C. 555 (1901). § 3457. LIMITATION UPON SUCH AUTHORITY.— No such company shall, without the consent of the owner thereof, in writing, enter a building or edifice, or use or appropriate any part thereof, or erect any telegraph pole, pier, or abutment in any yard or inclosure within which an edifice is situate, nor, in cases not provided for in section three thousand four hundred and sixty-one, erect any telegraph pole, pier, abutment, wires, or other fixtures, so near to any edifice as to occasion injury thereto, or risk of injury, in case such pole, pier, or abutment be overthrown, nor injure or destroy any fruit or ornamental tree. (March 31, 1865, 62 v. 72, § 1; S. & S. 153.) See Smith v. Cent. Dist. Tel. Co., 2 C. C. 259 (1886) ; s. c, 1 'c. D. 475. See § 6881-1. § 3458. WHEN THE LAND TO BE APPROPRIATED IS HELD BY A COR- PORATION. — When lands sought to be appropriated for lines of magnetic telegraph are held by a corporation incorporated under any law of this state, whether held by purchase or in virtue of any appropriation authorized by its charter or by any law of this state, the right of the company to appropriate such lands shall be limited to such use of the same as shall not, in any raaterial degree, interfere with the prac- tical uses to which the company is authorized to put such lands under its charter; and no such company shall erect poles, piers, abutments, wires, or other necessary fixtures, in such close proximity to any other line of magnetic telegraph authorized by law to be constructed as to interfere mechanically with the practical working of such telegraph. (March 31, 1865, 62 v. 72, § 2; S. & S. 153.) rated, Ohio Postal Tel. Co. et al. v. C. C. C. & St. L. R. R. Co. et al., 8 N. P. 121 (1900). § 3459. WHEN SUCH LAND IS HELD BY A RAILROAD COMPANY.— The right of such company to use lands held by a railroad company, for the permanent structures of such telegraph, shall be limited to the land which lies within five feet 318 Private Corporations in Ohio. Appropriation of Property, §§ 3460, 3461. of the outer limits of the right of way of the railroad company, where it is practicable to erect the line within those limits; when the company seeks to appropriate lands that lie beyond those limits, its petition must set forth the facts showing that it is impracticable to erect such line within said limits, and designate, either by a survey and map, or by reference to monuments, or by other means of easy identification, the place or places where the company seeks to establish the line; the probate court shall, in all instances, determine, if it be controverted by the railroad company, whether the erection of the line at the place or places designated will, in any material degree, interfere with the practical uses to which such railroad company is authorized to put such land; and if the court is satisfied that it will so interfere, it shall reject the petition, or require the structure to be erected at such other place or places as the court shall direct; but nothing in this chapter shall be so construed as to authorize any company to appropriate the use of the track or rolling-stock of any railroad com- pany for the purpose of transporting poles, materials, or the employes of such tele- graph company, or for any other purpose whatever. (March 31, 1865, 62 v. 72, § 3; S. & S. 154.) § 3460. WHEN THE LANDS LIE IN MORE THAN ONE COUNTY.— Proceed- ings to appropriate lands to the use of a, company, against a defendant whose adjoin- ing or continuous lands lie in more than one county, may be instituted in any county in which any part of such lands lie, and the damages shall be assessed, in one pro- ceeding, in respect of all such lands of the defendant sought to be appropriated, whether lying in the county wherein the court is sitting, or in other counties. (March 31, 1865, 62 v. 72, § 4; S. & S. 154.) Cited, Ohio Postal Tel. Co. et al. v. C. C. C. & St. L. R. E. Co. et al.,, 8 N. P. 121 (1900). § 3461. HOW RIGHT TO USE PUBLIC GROUND ACQUIRED.— When any lands authorized to be appropriated to the use of a company are subject to the ease- ment of a street, alley, public way, or other public use, within the limits of any city or village, the mode of use shall be such as shall be agreed upon between the m^unici- pal authorities of the city or village and the company; and if they can not agree, or the municipal authorities unreasonably delay to enter into any agreement, the pro- bate court of the county, in a proceeding instituted for the purpose, shall direct in what mode such telegraph line shall be constructed along such street, alley, or public way, so as not to incommode the public in the use of the same; but nothing in this sec- tion shall be so construed as to authorize any municipal corporation to demand or receive any compensation for the use of a street, alley, or public way, beyond what may be necessary to restore the pavement to its former state of usefulness. (March 31, 1865, 62 v. 72, § 5; S. & S. 154.) Not applicable to electric-light com- panies. Brush V. Jones Bros. Co., 5 C. C. 340, 345 (1891); s. c, 3 C. D. 168. Right of occupation ceases on expira- tion of agreement. The right to occupy the streets of a city by a telephone company is conditional upon its atfreeinpr with the municipal authorities as to the mode of use; or, failing so to agree, upon the direction of the probate court as to the mode of use, in a proceeding instituted for that purpose ; and such agreement or direction is inseparable from such right, and such right terminates with such agreement or direction. — State ex rel. v. Telephone Co., 11 C. C. 55 (1895); 8. u., 5 C. D. 311. Constitutional. Zanesville Telegraph Co. v. Zanes^ille, 64 Oh. St. 67 (1901). See also Fitzsimmons v. Cincinnati, 47 W. L. B. 171 (1901). Municipality not entitled to compensa- tion exceeding cost of repair, etc. Municipality, though holding fee in its streets, has no proprietaiy interests in them, which entitle it to compensation, when sub- jected to an authorized additional burden by the erection of a telephone line. But it is entitled to compensation sufficient to make repairs rendered necessary by such additional burden.— Zanesville Telegraph & Tel. Co. v. Zanesville, 64 Oh. St. 67 (1901). Power of court to enter a transfer of franchise. See Fitzsimmons v. Cincinnati, 47 W. L. B. 171 (1901). Telegraph and Telephone Corporations. 319 Lines of — Damages from, etc., §§ 3461-1-3461-5. City cannot fix rentals. A city cannot, in making an agreement as to such use of its streets, fix the rentals to be charged the patrons of the company for its instruments; a refusal of the company to assent to such agreement is justifiable, and its refusal is not a failure to agree within the meaning of the statute. — State ex rel. v. Central Union Tel. Co., 14 C. C. 273 (1897); s. c, 7 C. D. 536. Cited, Smith v. Cent. Dt. Tel. Co., 2 C. C. 259, 262 (1886); a. <;., 1 C. D. 475. No ouster until failure to agree. Where an agreement between the city and a telephone company as to the mode of use of its streets has expired by limitation, the city cannot oust the company from the occupancy of the streets until it is made to appear that no agreement can be made, and that the com- pany, after such failure to agree, delays un- reasonably to apply to the probate court to fix the mode of use of such streets. — State ex rel. v. Central Union Tel. Co., 14 C. C. 273 (1897); ». i;., 7 C. D. 536. § 3461-1. Sec. 1. LINES OF ELECTRIC TELEGKAi'HS MAY BE COW- STBUCTED IN ANY PLACE SO THEY DO NOT INCOMMODE THE PUBLIC.— Any person or persons may be and are hereby authorized to construct lines of electric telegraphs, from point to point, upon and along any of the public roads and high- ways, and across any of the waters within the limits of this state, by the erection of the necessary fixtures, including posts, piers, or abutments for sustaining the cords or wires of such lines; provided, that the same shall not in any instance be so con- structed as to incommode the public in the use of said roads or highways, or endanger or injuriously Interrupt the navigation of said waters; nor shall this act be so con- strued as to authorize the erection of any bridge across any of the waters of this state. (Eebruary 8, 1847, 45 v. 34.) § 3461-2. Sec. 2. COUNTY COMMISSIONERS TO APPOINT THREE AP- PRAISERS EOR DAMAGES?. — If any person over whose land said lines shall pa-s, upon which such posts, piers, or abutments shall be placed, shall consider himself aggrieved or damaged thereby it shall be the duty of the county commissioners of the county in which such lands are, on application of such person, to be made within three months after the erection of such posts, piers, or abutments on his lands, to appoint three discreet, disinterested persons as appraisers, who shall, before they enter upon the duties of their appointment, severally take an oath or affirmation, before some person authorized to administer oaths, faithfully and impartially to per- form the trust and duties required of them by this act; and it shall be the duty of said appraisers, or a majority of them, on view, to make a just and equitable ap- praisal of all the loss or damage sustained by the applicant, by reason of said lines, piers, posts, and abutments; duplicates of which appraisal shall be reduced to writing and signed by said appraisers, or a majority of them, one copy of which shall be de- livered to the applicant, and the other to the owners or agent of said electric tele- graph lines, on demand. And in case said appraisers shall assess any damages to said applicant, the said owners shall pay to said applicant the amount thereof, together with the costs of said appraisers; but if said appraisers shall award that said appli- cant has sustained no damages or loss, the said applicant shall pay the costs of said appraisers. (February 8, 1847, 45 v. 34.) § 3461-3. Sec. 3. PAY OF APPRAISERS.— The appraisers aforesaid shall each be entitled to have and receive, for their services, two dollars for each and every- day when so actually employed. (February 8, 1847, 45 v. 34.) § 3461-4. Sec. 4. FINE AND PUNISHMENT FOR INJURING THE LINES.— Any person who shall unlawfully and intentionally injure, molest, and destroy any of said lines, posts, abutments, or the materials or property belonging thereto, shall,, on conviction thereof, be deemed guilty of a misdemeanor, and be punished by flne,^ not exceeding five hundred dollars, or imprisonment in the penitentiary not exceed- ing one year, or both, at the discretion of the court having cognizance thereof. (Feb- ruary 8, 1S47, 45 V. 34.) § 3461-5. Sec. 5. MODE OF PROSECUTION.— Prosecutions, under the preced- ing section, shall be by indictment in the court of common pleas. (February 8, 1847, 45 V. 34.) 320 Private Corporations in Ohio. Messages, Regulations as to, §§ 3461-6-3463. § 3461-6. Sec. 6. LEGISLATTJKE MAY ALTEK ACT; TAXATION.— The leg- islature may at any time alter, modify, or repeal this act, and the stock or value invested in said liifes of electric telegraph shall be subject to taxation, like other property in this state. (February 8, 1847, 45 v. 34.) § 3462. MUST RECEIVE AND TRANSMIT DISPATCHES FOR OTHER LINES. — Every company, incorporated or vmincorporated, operating a telegraph line in this state, shall receive dispatches from and for other telegraph lines; and from or for any individual; and on payment of its usual charges for transmitting dispatches as established by the rules and regulations of the company, shall transmit the same with impartiality and good faith, under a penalty of one hundred dollars for each case of neglect or refusal so to do, to be recovered with cost of suit, by civil action in the name and for the benefit of the person or company sending or forwarding or desir- ing to send or forward the dispatch. (April 15, 1880, 77 v. 264; R. S. 1880; March 31, 1865, 62 V. 73, § 8; S. & S. 155.) As to telephones, see note to § 3471. Cannot provide against damages re- sulting from negligence. While a telegraph company may, by special agreement or by reasonable rules and regula- tions, limit its liability to damages for errors or mistakes in the transmission and delivery of messages, it cannot stipulate or provide for immunity from liability, where the error re- sults from its own negligence; such a stipula- tion is contrary to public policy and void. — Telegraph Co. v. Griswold, 37 Oh. St. 301 (1881); Hord v. Telegraph Co., a W. L. B. 147 (1878). Burden on company to shoiv absence of negligence. ' Where, in an action against the company for damages resulting from an inaccurate transmission of a message, such inaccuracy is made to appear, the burden of proof is upon the company to show that the mistake re- sulted without fault or negligence on its part. — Telephone Co. v. Griswold, 37 Oh. St. 301 (1881). Xiability to addressee for nondelivery, See Barra'ck v. Postal Tel. Co., 12 Dec. 78 (1899). Sections 3462 and 3463 construed. Sections 3462 and 3463 are penal, and must be strictly construed. The sender is the per- son whose name is signed to the message; the one desiring to send is the one presenting the same for transmission; the one forwarding has reference to the telegraph company who forwards it upon its delivery from another company. — Kester v. Telegraph Co., 8 C. C. 236 (1894); s. c, 4 C. D. 410. No damages for mental suffering alone. Damages cannot be recovered for mental pain and suffering, because of negligence in failing to transmit a message, unless accom- panied with pecuniary loss or phvsical injury. — Kline v. Tel. Co., 3 N. P. 143 "(1806); s. c, 4 Dec. 224; Morton v. Tel. Co., 53 Oh. St. 431 (1895) ; Kester v. Tel. Co., 8 C. C. 236 (1894). See, also, decision by Taft, J., U. S. C. C. 29 W. L. B. 259 (1893); s. c, 55 Fed. 603; 70 i\ D. 545, to the same effect. See note to § 3465. Mere delay not writhin this section. A recovery for mere delay is not authorized by this section or § 3265 providmg for trans- mission of messages with impartiality and good faith and in the order in which they are received. — Hearn v. Western Union Tel. Co., 73 N. Y. Supp. 1077 (1901). § 3463. WHEN TO FORWARD MESSAGES. — When the person who sends a dispatch desires to have it forwarded over the lines of other telegraph companies, whose termini are respectively within the limits of the usual delivery of such com- panies, to the place of final destination, and tenders to the first company the amount of the usual charges for the dispatch to the place of final delivery, the company shall receive the same, and, without delaying the dispatch, shall pay to the succeeding line the necessary charges for the remaining distance; and the succeeding line shall accept the same, and forward the dispatch in the same manner as if the sender had applied to it in person, and paid the usual charges, and for the omission so to do it shall be liable to a like penalty, as provided in the last section. (March 31, 1865, 62 V. 72, § 8; S. & S. 155.) See note to preceding section. Telegraph and Telephone Corporations. 321 Messages, Regulations as to, §§ 3464^-3466. § 3464. AGENT MUST INDORSE DISPATCH, WHEW.— When application is made to any such company to send a, dispatch, the officer, agent, clerk, or servant appointed by the company to receive dispatches at that station shall inform the pppli- cant, and, if required by him, write upon the dispatch, that the line is not in work- ing order, or that the dispatches on hand for transmission will occupy the time so that the dispatch ofEered can not be transmitted within the time required, if the facts are so; and for an omission so to do, or for intentionally giving false information to the applicant in relation to the time within which the dispatch ofEered mry be sent, such officer, agent, clerk, or servant, and the company by which he is employed, shall incur the penalty provided in section thirty-four hundred and sixty-two. (March 31, 1865, 62 V. 72, § 8; S. & S. 155.) § 3465. PENALTIES FOR WOT TEANSMITTIWG OR DELIVERING MES- SAGE. — Every telegraph company, incorporated or unincorporated, operating any telegraph line in this state, shall transmit and deliver all dispatches in the order in which they are received for transmission or delivery, under the like penalty of one hundred dollars, as provided in section thirty-four hundred and sixty-two; but ar- rangements may be made with the proprietors or publishers of newspapers for the transmission, for the purpose of publication, of intelligence of general and public interest, out of its regular order, and dispatches by officers of the state or the United States, on public business, may have preference over all private business, when the public interest requires such preference; no company shall be required to deliver dis- patches at a greater distance from the station at which they are received than its published regulations require; and if an applicant direct a dispatch to be mailed at the place of delivery, and offer to pay the necessary postage thereon, the company shall affix the necessary postage stamp, and mail the dispatch in time for the first mail that departs after such dispatch is received at the office of delivery, and for the omission so to do the company shall be liable to a like penalty as provided in section thirty-four hundred and sixty-two. (March 31, 1865, 62 v. 72, § 9; S. & S. 155 ) Failure to deliver — measure of dam- ages. In case of failure to deliver a telegraphic message, the company ia only liable for such damages as naturally flow from the breach of contract, or such as may faii-ly be supposed to have been within the contemplation of the parties at the time the contract was made. — Bank v. Tel. Co., 30 Oh. St. 555 (1876); Elden v. Tel. Co., 10 W. L. B. 28 (1883). Proximate cause. If the company is in default, but its default is m^ie mischievous to a. plaintiff only by the operation of some other intervening cause, such as the dishonesty of a third person, the rule, " causa proxima non remota spectatur," applies, and the company cannot be made re- § 3466. PENALTIES AGAIWST PERSONS CONNECTED WITH COMPANIES. Any person connected with a telegraph or messenger company, incorporated or unincorporated, operating a line of telegraph, or engaged in the business of receiving and delivering messages in this state, in any capacity, who wilfully divulges the con- tents, or the nature of the contents of a private communication entrusted to him for transmission or delivery, or who wilfully refuses or neglects to transmit or deliver the same, or wilfully delays the transmission or delivery of the same, or who vilfully forges the name of the intended receiver to any receipt for any such message or com- munication, or article of value entrusted to him by said company with a view to injure, deceive or defraud the sender or intended receiver thereof, or any such tele- LAW GOV. PRIV. COR. — 21. sponsible for the loss occasioned by the act of such third party. — Bank v. Tel. Co., 30 Oh. St. 555 (1876). Company is liable iirliere message indi- cates on its face importance of prompt delivery. Western Union Tel. Co. v. Porter, 33 W. L. B. 300 (1895). See 26 W. L. B. 138, where authorities on subject are collected. Must transmit, ^pithout preference. Messages must be transmitted in the order of time they are received, and where messages are willfully delayed, and preference given to another, liberal damages will be allowed. — •Davis V. Tel. Co., 1 Cin. Sup. Ct. 100 (1870). See note to § 3462. 322 Private Corporations in Ohio. Messages — Electric Wires, Disturbing, etc., §§ 3467, 3467a. graph or messenger company, or to benefit himself or any other person, shall be Imprisoned in the county jail not exceeding three months, or fined not exceeding five hundred dollars, at the discretion of the court. (April 14, 1900, 94 v. 209; March 31, 1865, 63 V. 72, § 10; S. & S. 156.) § 3467. PENALTIES FOR KNOWINGLY TRANSMITTING DISPATCHES FORGED, ETC. — A person who knowingly transmits by a telegraph line any false communication or intelligence, with intent to injure any person, or to speculate in any article of merchandise, commerce, or trade, or with intent that another may do so, or knowingly sends or delivers a dispatch that is forged, or not authorized by the person whose name purports to be signed thereto, shall be liable to the same penalty as is provided in section thirty-four hundred and sixty-two. (March 31, 1865, 62 V. 72, § 11; S. & S. 156.) § 3467a. PENALTY FOR UNLAWFULLY INTERFERING, ETC., WITH TELE- GRAPHIC OR TELEPHONIC MESSAGES OR WITH ELECTRIC LIGHT OR ELEC- TRIC STREET RAILWAY PROPERTY.— Whoever shall wilfully and maliciously cut, break, tap, or make any connection with, or read, or copy by the use of telegraph or telephone instruments or otherwise in any unauthorized manner, any telegraphic message or communication from any telegraph or telephone line, wire or cable, so unlawfully cut or tapped in this state, or make unauthorized use of the same, or who shall wilfully and maliciously prevent, obstruct, or delay, by any means or contriv- ance whatsoever the sending, conveyance, or delivery, in this state, of any unauthor- ized telegraphic message or communication by or through any telegraph or telephone line, cable or wire under the control of any telegraph or telephone company doing business in this state; or who shall wilfully or maliciously injure or destroy or in- tentionally permit to be injured or destroyed, or disconnect, displace, cut, break, tap, ground or make any connection with or in any way wilfully and maliciously inter- fere with any of the poles, cable or wires legally erected, put or strung, electrical apparatus, applicance or machinery of any kind, used in the construction of or in the operating of any electrical street railway, or electric light plant, or plant used in. the producing or generating electric power in this state; or who shall wilfully or mali- ciously injure or destroy or intentionally permit to be injured or destroyed any meter, pipe, conduit, wire, line, post, lamp, burner, heater, machine, motor or other appliance or apparatus whatsoever belonging to a company engaged in the manufacture or sale of electricity for light, heat, power or other purposes, or who shall wilfully or ma- liciously prevent by any means or device whatsoever, any electric meter belonging^ to any corporation furnishing electric current for light, heat, power or other purposes from duly registering the quantity of electricity supplied by said company or in any way interferes with the proper action or just registration by said meter in register- ing the quantity of electricity passing through said meter or alter the index in such meter or, without the consent of such company, wilfully or maliciously divert any electric current from any wire of such company, or otherwise wilfully or maliciously uses or causes to be used without the consent of such company any electricity manu- factured or distributed by such company; or whoever, being a customer of said elec- tric light company and having in his possession or under his control, a, meter belong- ing to said company, wilfully permits any other person, unlawfully and without con- sent of said company, to disconnect, change, alter or interfere with the wires run- ning into said meter, so as to divert the electric current and prevent said meter from duly registering the quantity of electricity supplied by said company; or who shall wilfully or maliciously aid, agree with, employ or conspire with any other person or persons to do any of the aforementioned unlawful acts shall be deemed guilty of felony and shall be punishable by a fine of no more than $1,000 nor less than $50, or by an imprisonment in the penitentiary for a period of not less than one year nor more than three years, or by both fine and imprisonment within the limits herein- before specified, at the discretion of the court. Prosecutions under this act shall Telegraph and Telephone Corporations. 323 Repairs — Consolidation — Other Electric Companies, §§ 3468-34'('la. be by indictment in any court having criminal jurisdiction. (April 4, 101; April 27, 1893, 90 v. 346; March 15, 1892, 89 v. 100, 52.) 1903, 95 V. § 3468. WHEN AND HOW TELEGRAPH STRUCTURES MAY BE REMOVED. — If, at any time after the erection of a line of magnetic telegraph upon lands held by a corporation, the corporation have occasion to use the land upon which a tele- graph pole, pier, abutment, or other fixture has been erected, for any of the purposes authorized by its charter, the company shall remove such pole, pier, abutment, or fixture, to such convenient place as may be designated by the corporation requiring the use" of the ground, upon reasonable notice, given in writing, and erect the same in such new place, so as not to interfere with the practical uses to which the corpora- tion is authorized to put such land; and if it is impracticable to erect a line of mag- netic telegraph upon the lands of such corporation, in consequence of the uses to which the corporation put the lands, the telegraph company may appropriate adjoin- ing lands, by a separate proceeding for that purpose. (March 31, 1865, 62 v. 72, § 12; S. & S. 156.) ated, Ohio Postal Tel. Co. et jil. v. C. C. C. & St. L. Ry. Co. et al., 8 N. P. 121 (1900). § 3469. HOW AND WHEN REPAIR OP STRUCTURES ENFORCED.— If , at any time after the erection of such telegraph line on the lands of a corporation, the corporation apprehend danger, or risk of danger, to its works or practical operations, in consequence of decay or defect in the mode of structure of any of the works of the telegraph company, it may require the company, upon five days' notice, in writing, to repair such decayed or defective works; or if the danger is imminent, so as not to admit of delay, the corporation may, without notice, repair the defect, and recover the reasonable expense thereof, with costs of suit, before any court of competent jurisdic- tion. (March 31, 1865, 62 v. 72, § 13; S. & S. 157.) § 3470. HOW AND WHEN TELEGRAPH COMPANIES MAY CONSOLIDATE. — • Where two or more telegraph companies whose several lines are not parallel or in competition with each other and when so united will form a continuous line for receiv- ing and transmitting dispatches, desire to consolidate into a single corporation, they may do so in the manner, and subject to the rules provided in chapter two for the consolidation of railroad companies. (February 4, 1881, 78 v. 26; K. S. 1880; May 1, 1852, 50 V. 274, § 48; S. & C. 299.) § 3471. CHAPTER APPLIES TO TELEPHONE COMPANIES.— The provisions of this chapter shall apply also to any company organized to construct any line or lines of telephone; and every such company shall have the same powers and be subject to the same restrictions, as are herein prescribed for magnetic telegraph companies. (R. S. 1880.) Contract shoving discrimination, void. A telephone company is required to receive dispatches without discrimination, and a eon- tract favoring one telegraph company as against another is void on grounds of public policy.— State ex rel. v. Tel. Co., 36 Oh. St. 29G (1880). Patented article subject to regulation. The use of patented property, when devoted to public use, is subject to state control, whenever the public welfare requires it. — State ex rel. v. Tel. Co., 36 Oh. St. 296 (1880). Telegraph includes telephone. The term " telegraph " is sufficiently com- prehensive to einbrace the telephone. — Rail- way V. Tel. Ass'n. 48 Oh. St. 390. 423 (1891); and see note thereto under § 3454. Remedy to secure telephone service. Mandamus is the proper remedy to compel a company to furnish the proper instruments and service. — State v. Telephone Co., 36 Oh. St. 296 (1880); State v. Telephone Co., 13 W. L. B. (Neb.) 185 (1884). See note to Smith V. Tel. Co., 2 C. C. 259; s. c, 1 C. D. 475, under § 3454. § 3471a. ELECTRIC LIGHT COMPANIES, AND POWER AND AUTOMATIC PACKAGE CARRIER COMPANIES; CONSENT OF MUNICIPALITY, ETC.— The provisions of this chapter, so far as the same may be applicable, except section three thousand four hundred and sixty-one, shall apply also to any company organized for 324 Private Corporations in Ohio. Subways — Electric Light, etc., Companies, §§ 3471-1-3471-3. the purpose of supplying the public and private buildings, manufacturing establish- ments, streets, alleys, lanes, lands, squares and public places with electric light and power, or automatic package carrier; and every such company shall have the same powers, except those given by said section three thousand four hundred and sixty- one, and be subject to the same restrictions, as are herein prescribed for magnetic telegraph companies. Provided, however, that in order to subject the same to munici- pal control alone, no person or company shall place, string, construct or maintain any line, wire fixture or appliance of any kind for conductingielectricity for lighting, heating or power purposes through any street, alley, lane, square, place or land of any city, village or town, without the consent of such m.unicipality; and this inhibi- tion shall extend to all levels above and below the surface of any such public ways, grounds or places, as well as along the surface thereof; but this inhibition shall not be applicable to any rights which have heretofore been received and exercised through proceedings of any probate court. Any person or company violating any portion of the inhibition aforesaid shall be deemed guilty of a misdemeanor, and shall upon con- viction thereof be fined in any sum not less than one hundred and not more than five hundred dollars. The means thus created for enforcing said inhibition shall be held to be only cumulative to any other lawful means open to the municipality by way of injunction or otherwise; and this act shall apply to actions and causes of action or proceeding named in section seventy-nine of the Revised Statutes, except such as may be pending on error, and not on appeal, in any circuit court of the state. (April 21, 1896, 92 V. 204; January 26, 1887, 84 v. 7.) Additional servitude. Consent of abutting property owner neces- sary for erection of poles. — McLean v. El. Light Co., 9 W. L: B. 65 (1886) ; but see Auer- baeh r. Tel. Co., 7 N. P. 633 ; s. u., 9 Dec. 389, under § 3454; Sehaaf v. Cleveland, etc., Rv. Co., 66 Oh. St. 215 (1902); Callen v. Electric Light Co., 66 Oh. St. 160 (1902). § 3471-1. Sec. 1. SUBWAYS FOR TELEPHONE AND TELEGRAPH WIllES IN CITIES; ERECTION OP POLES; PENALTY.— Any company organized under the laws of this or any other state, and owning and operating a telephone exchange, or doing a telegraph business, in any city in this state, may construct and maintain underground wires and pipes, or conduits and other fixtures for containing, protecting and operating such wires in the streets and public ways of said city, when the con- sent of such city has been obtained therefor, and it shall be unlawful for any corpora- tion, company or individual to erect any telephone or telegraph pole or poles within that portion of any city in this state where subways have been constructed, except such poles as may be required for the purpose of distributing wires from said subways so subscribers, stations, and all such poles shall, so far as possible, be located in alleys; provided that this section shall not apply to existing telegraph companies until such companies shall have authority and sufficient time to construct subways; and whoever violates any of the provisions of this section, shall be punished by a fine of not more than two hundred and not less than fifty dollars. (May 8, 1894, 91 v. 205; April 8, 1891, 88 v. 296.) For an act authorizing the construction of subways, etc., in cities of the first grade, first class, see 94 v. 664. § 3471-2. Sec. 2. BY WHOM CONSENT GIVEN.— Such consent shall be given by the board of city commissioners, board of public improvements, board of public works, or board of administration of such city, or their respective successors in office, or by the city council in cities where no such board exists. (April 8, 1891, 88 v. 296.) § 3471-3. Sec. 1. POWERS OF ELECTRIC LIGHT AND POWER COMPANIES. — A company organized for the purpose of supplying electricity for power purposes, and for lighting the streets and public and private buildings of a city, village or town, may manufacture, sell and furnish the electric light and power required therein for such and other purposes, and such companies may construct lines for conducting Telegraph and Telephone Corporations. 325 Subways for Electric "Wires, etc., §§ 3471-5-3471-7. electricity for power and light purposes through the streets, alleys, lanes, lands, squares and public places of such city, village or town, by the erection of the neces- sary fixtures, including posts, piers and abutmrnts necessary for the wires, with the consent of the municipal authorities of the city, village or town, and under such reasonable regulations as they may prescribe. Provided, that all wires erected and operated under the provisions of this act shall be covered with t, v7ater-proof insula- tion, and said poles, piers, abutments and wires shall be so located and arranged as not to interfere with the successful operation of existing telegraph and telephone wires. (May 12, 1886, 83 v. 143.) City's right to regulate poles, etc. See Brush Co. v. Jones et al., 5 C. C. 340 (1891); s. c., 3 C. D. 168; El. St. Ey. Co. v. Electric Co., 10 C. C. 531 (1895) ; s. c, 4 C. D. 43; Hauss El. Co. v. Electric Co., 23 W. L. B. 137 (1889). § 3471-5. Sec. 3. VALIDITY OF PRIOE. CONTRACTS.— That in all cases where contracts such as are provided for in section 2 of this act have been entered into prior to its passage and there may have been any omission or error arising out of a want of conformity to the statutes of this state but which contracts have been made as required by this act and where it is just and equitable by reason of the expendi- ture of money or labor in the performance of said contracts or on any other account to fully execute said contracts, then and in all such cases the courts of this state are hereby authorized and empowered to uphold such contracts as valid and binding on all parties to the same and to enforce and carry them into effect in all respects as though no such defect, omission or error existed, any law of this state to the con- trary notwithstanding. (April 22, 1896, 92 v. 290.) § 3471-6. Sec. 1. SUBWAYS AND CONDUITS FOE ELECTRIC WIRES, ETC., IN CINCINNATI. — Any company organized for the purpose of constructing sub- ways, laying pipes and operating underground conduits in any city of the first grads of the first class, in which to place and maintain electric cables, wires and other con- ductors for conveying electric currents for any purpose, may construct such subways and under-ground conduits through the streets, avenues, sidewalks, alleys, lanes, lands, squares and public places of such city, and maintain such subways and con- duits, together with necessary man-holes, junction boxes, connection-boxes, feeders, pipes and connections to and from such subways and conduits, and all such other necessary fixtures and appliances for placing and safely carrying electricity or elec- trical conductors beneath the surface of the streets, avenues, sidewalks, alleys, lanes, lands, squares and public places of any such city. (April 25, 1891, 88 v. 390.) § 3471-7. Sec. 2. PERMISSION EOR CONSTRUCTION OF, ETC.; BY WHOM GRANTED, AND RULES GOVERNING CONSTRUCTION.— In cities of the first grade of the fij'st class, the board of public improvements and their successors in oflice of any such city shall have authority in case such city should not construct its own system of subways (and in the event it does, the board of public improvements or their successors in office shall have power to contract for the construction of the same), to grant to any person, company or corporation organized for the purpose of constructing subways, laying pipes and operating under-ground conduits in which to place and maintain electric cables, wires and other necessary appliances for con- veying electric currents, permission and authority to construct and operate such sub- ways and under-ground conduits through the streets, avenues, sidewalks, alleys, lands, squares and public places of such city, with the necessary man-holes, junction- boxes, connecting-boxes, feeders, pipes and other connections and appliances; and it shall be unlawful for any such company to enter upon the construction of any such work, or to open or take up the pavements of the streets, or to make any excavations in any of said streets, avenues, sidewalks or other public ways of said city until it has first obtained authority so to do from the board' of public improvements or their successors in ofiace in cities of the first grade of the first class; and any such person, 326 Private Corporations in Ohio. Subways for Electric Wires, § 3471-8. company or corporation operating or maintaining the same shall be subject to such reasonable regulations as the board of public improvements or their successors in office in cities of the first grade of the first class shall make concerning the construc- tion and use of said subways and conduits, and the time, manner and mode of plac- ing wires, cables and other electrical conductors therein. And it is hereby made the duty of the board of public improvements or their successors in office to adopt and enforce such rules and regulations so as to secure the construction of said subways and under-ground conduits in the most approved manner, for the safety of persons and property adjacent to and connected with said subways and under-ground con- duits(;) such construction shall be under the control and subject to the approval of the chief engineer of the board of public improvements or their successors in office and the fact that such approved and safe construction has actually taken place, shall be certified to in writing by the said engineer before any use shall be made of the sam.e. Provided, however, that no such permission and authority hereinbefore referred (to) shall be granted by said board of city affairs to any such company until said board shall have advertised in some paper of general circulation in such city on at least one day of each week, for four consecutive weeks, for bids for the grant of such permis- sion and authority, and no such grant shall be made except to the highest bidder, nor for a less compensation to the city than the annual sum of one per cent, of the gross proceeds resulting from the operation of said subways, to be paid for such grant and for the purpose of keeping in repair the streets, sidewalks and other places wherein such subways are constructed and operated; and but one such company shall be authorized, in any case to open up the streets for such purpose or to construct, own and. operate subways in which to place electric wires, and all such wires except tele- graph and telephone wires shall be required to be laid in one general subway con- structed for the purpose; and said board shall have the right to reject any and all bids. Provided, that nothing in this act contained shall be constructed (construed) so as to authorize or require the placing of telegraph or telephone wires or conduc- tors in the same conduit or conduits with electric light, power or railway wires, or conductors, or so as to prevent the granting by municipalities of the power to place telephone or telegraph wires or conductors in a separate conduit in the streets to be constructed for that purpose. And provided further, that nothing herein contained shall be so construed as to conflict with any orders made by the probate court of any county, containing a city of the first grade of the first class, for maintaining over- head or under-ground wires or conduits, for furnishing electric light, heat or power, where investments are made on the faith of the same; but all such orders of the court shall be valid and binding upon all parties thereto and their successors and assigns. (April 25, 1891, 88 v. 390.) § 3471-8. Sec. 3. BOND FOR EESTORATION OF STREETS, ETC.; BOAiHD OF IMPROVEMENTS TO FIX RENTAL. — Nothing herein contained, however, shall authorize any person, company or corporation to construct such subways or conduits or to excavate any portion of any street, sidewalk or other public way of any such city, until such person, company or corporation has first executed a bond in the sum of two hundred and fifty thousand dollars, conditioned to restore such streets, side- walks and other public ways to their original state of usefulness, and to keep the same in repair to the satisfaction of the board of public improvements or their suc- cessors in office, and its chief engineer for a period of five years from and after such restoration thereof. The board of public improvements or their successors in office in cities of the first grade of t^e first class in which such subways may be con- structed, shall have power to fix the rental to be charged by persons, companies or corporations owning or operating such subways for the use and occupation of such subways or conduits by electric companies or companies using or supplying electricity for any purpose, and shall estimate the same upon a percentage based on the amount invested in the construction, maintenance and operation of said subways and under- ground conduits. (April 25, 1891, 88 v. 390.) PART IX. TURNPIKE^ PLANK-ROAD, AND AVENUE CORPORATIONS. § 3472. Powers of companies. § 3473. Supplemental articles, etc. § 3474. May use stone, gravel, or plank. § 3475. May enter upon and appropriate lands. § 3476. How right to use bridge of street acquired. § 3477. Width and grade. § 3478. How authority to take toll acquired. ^ 3478a. Extension of ttu-npike road to other improved road, § 3479. Penalties for evading the gates. § 3480. Mile stones to be put up. § 3481. Rates of 'toll. § 3482. Repair of roads within municipality. § 3483. Proceedings to enforce repair. § 3484. Repair of roads outside of municipalities. § 3485. Appeals in such cases. § 3486. Penalties against toll gatherings for detaining travelers. § 3487. Penalties for fast riding or driving over bridges. § 3488. Penalties for obstructing roads. § 3489. How penalties to be recovered. § 3490. Penalty for obstructing travel on roads. § 3491. When municipal limits are extended beyond a tollgate. § 3492. May sell bridge or road in such limits to city or village. § 3493. Foreclosures of mortgages on roads. § 3494. Appraisers ; the purchaser takes the franchise. § 3495. How road surrendered to county. § 3496. How such transfer to ba evidenced. § 3497. Private sale of roads. § 3498. When and how a road may be sold to county commissioners. § 3498a. County commissioners may purchase toll roads when petitioned to do so; question of purchase to be submitted to vote. § 3499. How toll roads voted to be purchased by counties appraised. § 3500. The purchase by the commissioners, and effect thereof. § 3501. The issue of bonds for purchase and the tax for their redemption. § 3501a. Taxes and assessments for construction of free turnpikes may be refunded. § 3502. Fees of appraisers, county auditor, and treasurer. I 3503. Sale of road in one county does not affect portion of road in another. § 3504. Transfers do not effect creditors. § 3505. Additional stock authorized. I 3506. Two or more companies may consolidate. § 3507. May assist a road which is an extension. § 3508. May assist in an intersecting free turnpike. § 350S. Accounts each company must keep. § 3510. The books a company must keep. § 3511. Toll-gate keepers must report. § 3512. Directors' annual report to stockholders. § 3513. Treasurer to hold no other office in company. § 3514. Toll-gate keeper to be deemed the agent of the company. [327] 328 Private Corporations in Ohio. Turnpike and Avenue Companies, §§ 3472-3474. S 3515. How obstructing fences may be removed. j 3516. Company may assess stockholders. ! 3517. Notice of meeting for that purpose. i 3518. Proceedings thereat. ! 3519. Collection of assessments. ! 3520. Those assessed for improved roads may become incorporated. ! 3521. Who to be stockholders. ! 3522. Certificat3S of stock to be issued. • 5 3523. Powers of such companies. ! 3524. When such company may increase capital stock. i 3525. Proceedings for such purpose. ! 3526. Company may divide its road. j 3527. Proceedings to eflFeet subdivision. ! 3528. Reorganization of separate companies. ! 3529. Names of new companies. J 3530. Roads may be sold on execution. § 3531. The levy and appraisement. 5 3532. When an order for appraisement may be made. I 3533. The purchaser takes the franchise. 5 3534. Transcript to be filed with secretary of state. I 3535. When right to take toll may be sold on execution. 5 3536. Certificate of such sale, and its eflfect. § 3536-1. Avenue companies may be incorporated in certain counties. May appropriate lands. § 3536-2. Erection of toll gates of certain avenues in Montgomery county. § 3472. POWERS OF COMPANIES. — A turnpike or plankroad company may- construct a turnpike or plankroad, as shall be named in its articles of incorporation, between the termini named therein, and when it is so designated in the articles of incorporation, may improve and hold more than one road, when such roads diverge from one point, or branch from each other in the course of their routes. (May 1, 1852, 50 V. 274, § 32; March 4, 1853, 51 v. 484, § 2; S. & C. 293; S. & C. 319.) No poTver to hold fee. A turnpike company has no right to acquire and hold land in fee simple, when not neces- sarv for the purposes of the company. — Turn- pike Co. V. Railroad Co., 15 C. C. 268 (1898) ; s. c, S C. D. 269. City cannot lay water pipes without compensation. A city cannot lay its water pipes under the surface of a turnpilce without compensation therefore. — Cincinnati Turn. Co. v. Avondale, 17 W, L. B. 294 (1887). As to rights of individual to lay pipes. Ave. Co. V. Village, 1 N. P. 85 (1894); s. v;., 1 Dec. 99. Cannot grant greater easement thar it possesses. McMaken v. Railway Co., 5 N, P. 367 (1897) ; s. c, 5 Dec. 358; Compton v. Railway Co., 5 N. P. 367 (1897): s. c, 5 Dec. 358: Avenue Co. v. St. Bernard, 1 N. P. 85 (1894) : s. c, 1 Dec. 99. § 3473. SUPPLEMENTAL AETICLES, ETC. — Any such company may file sup- plementary articles, for the specification and designation of an additional branch road connected with any previous work constructed by it, and may unite with any other turnpike or plankroad company in maintaining and holding any road in common between them and divide the proceeds thereof in proportion to their interest. (March 4, 1853, 51 V. 484, § 3; S. & C. 319.) § 3474. MAY USE STONE, GRAVEL, OR PLANK. — Any turnpike or plank- road company, in the construction or repair of its road, may make or construct any part thereof with either stone, gravel, or plank, as one or the other material may be most convenient for such part of the road; when plank is used it must be two and one-half inches thick, send cover sufficient of the road for the accommodation of Right to Use Lands. 329 Turnpike and Avenue Companies, §§ 3475-3477. teams, and may be placed in the center or on either side of the road; and a change of material must not impair the utility of the road, or render it less valuable to the trav- eling public. (May 1, 1852, 50 v. S74, § 33; March 12, 1853, 51 v. 395, § 2; April 3, 1854, 52 V. 24, § 1; S. & C. 295; S. & C. 334; S. & C. 370.) § 3475. MAY ENTER UPON AND APPROPRIATE LANDS. — Any such com- pany, or its agents, may lay out, locate, survey, and make the turnpike or plankroad for the making of which it is incorporated, through any improved or unimproved lands, on the best route between the points or places, designated in the articles of incorporation, contracting for and paying the owners of the land over which the road passes the damage done thereto by laying out and making the road, and for materials taken therefrom for constructing or repairing the same; when the company and the owner can not agree as to the amount of compensation, or when the owner is unknown or incapable of contracting, then such damages shall be assessed and paid in the manner prescribed by law; and when any part of the road is rendered unsafe for travel by the current of any river, water-course, or other unavoidable cause, the company may change the location of the road at such place so far as may be neces- sary, and may appropriate land therefor in the manner aforesaid. (May 1, 1852, 50 V. 274, § 32; March 8, 1865, 62 v. 36, § 1; S. & C. 293; S. & S. 116.) Public easement may be assigned. The interest of the public in the highways, consisting of a perpetual easement in the land covered by them for the needs of public travel, may, at the discretion of the legislature, be transferred to a plank-road company. The company is the assignee of the public and possessed of the same interest the public had. — C. F. & C. Plankroad Co. v. Cane et al., 2 Oh. St. 419 (18.53). May build toll-house. After a company has appropriated land sixty feet wide for the purposes of its road, and the resulting damages to the owners have been ascertained, it may, within the sixty feet, build a toll-house and dig a well for the ac- commodation of the toll gatherer. — Ward v. Turnpike Co., 6 Oh. St. 16 (1856). IBrror in assessing damages. Whether the freeholders, in assessing dam- ages, formed erroneous conclusions as to the extent of injury by failing to estimate the detriment which a toll-house might occasion, (jannot, in the absence of any showing in the record of the basis of their award, be consid- ered by the court. An action of trespass against the company will not lie for errors made in assessing damages. — Ward v. Turn- pike Co., 6 Oh. St. 16 (1856). § 3476. HOW RIGHT TO USE BRIDGE OR STREET ACQUIRED. — Whenever a company deems it expedient or necessary, in laying out or building a turnpike or plankroad, for which it has become incorporated, to enter upon and take possession of any road, street, alley, or bridge, it shall present to the commissioners of the county in which such road, street, alley, or bridge is situate, a petition, signed by at least twelve citizens living upon or being interested in such road, street, alley, or bridge, and shall cause a notice to be published in some newspaper of general circu- lation in the county, for four consecutive weeks, of the object and prayer of such peti- tion, that remonstrances may be made thereto; and the commissioners, at their next meeting after the presentation of such petition, notice having been given as aforesaid, shall hear and determine the same; and if it appear that it will be for the interest of the community using such road, street, alley, or bi'idge, to have the same taken and used for the purpose of constructing such turnpike or plankroad thereon, the commissioners shall grant a permit, in writing, to the company to take and use the same on such terms as they may deem fit for the interest of the community; and the company shall thereby acquire an exclusive right of way in such road, street, alley, or bridge; but nothing in this section shall be so construed as to extend to roads, streets, alleys, or bridges within the limits of a city or village in this state, nor to any macadamized road. (March 29, 1866, 63 v. 61, § 4; S. & S. 141.) § 3477. WIDTH AND GRADE. — All turnpikes and plank-roads shall be opened not exceeding sixty feet wide, thirty feet of which shall be cleared of brush and logs, and at least sixteen feet shall be made an artificial road, composed of stone, gravel. 330 Private Corporations in Ohio. Turnpike and Avenue Companies, §§ 3478-3479. ■wood, or other convenient material, well compacted together in such manner as to secure a firm, even, and substantial road, and in no case shall the ascent in any such Toad be greater than five degrees; but when a company has been licensed by the county commissioners as directed by law, and has collected tolls on its road for ten years or upward, it may demand and receive such tolls thereon as are authorized by law, when the grade does not exceed seven degrees. (April 12, 1869, 66 v. 46, § 1; April 4, 1878, 75 v. 90, § 34; S. & C. 295.) § 3478. HOW AUTHORITY TO TAKE TOLL ACQXJIEED. — A company when it has completed its road, or any part thereof not less than three miles and when, from time to time thereafter, it has completed any further or continuous portion thereof, may apply to the commissioners of the county in which the finished road or part thereof lies, or in case the same lies in two or more counties, to the commissioners of either of the counties, and the commissioners shall appoint three judicious, dis- interested freeholders, who shall, on oath, examine the same, and report their opinion to the commissioners, in writing; if they report that the road, or such part thereof is completed agreeably to the provisions of this chapter, the commissioners shall by license in writing, authorize the company to erect gates, at suitable distances, and demand and receive, of persons traveling such road, the tolls allowed by law; if any such commissioner is a stockholder in the company making the application, the duties required of the commissioners shall devolve upon the probate judge of the county or counties aforesaid; and if any such probate judge is a stockholder in the company, such duties shall devolve upon the common pleas judge of the district in which such road lies, or the judge of any of the districts within which such roac lies, in case the same lies in two or more districts. (April 18, 1870, 67 v. 94, § 1; May 1, 1852, 50 v. 274, § 35; March 12, 1853, 51 v. 395, § 3; March 4, 1853, 51 v. 484, § 4; April 29, 1872, 69 v. 196, § 1; S. & C. 295; S. & C. 334; S. & C. 320.) !Reservation by o'wner of land. A reservation by the owner of land in grant- ing a right of way for a toll road, that she and her descendants shall have the right to pass without payment of toll, does not create an estate running with the land. — Turpin v. Pike Co., 7 N. P. 12 (1899) ; s. c, 9 Dec. 668. Demand not necessary. A demand for the toll is not necessary. The liability arises from passing the gate without payment. — State v. iNleil et al., 7 Ohio (1 pt.) 132 (1823). Taking toll is franchise. The right of taking toll is a franchise. — Spvinour v. Turnpike Co., 10 Oh. 477, 480 (1841). § 3478a. EXTENSION OF TURNPIKE ROAD TO OTHER IMPROVED ROAD. — That any turnpike company, whose beginning point is in a turnpike road, and having completed more than two and one-half miles, but less than three miles, and connecting its said road with an improved graveled road, or with another turnpike road, shall have all the privileges, and shall in all other respects conform to the requirements of said original section three thousand four hundred and seventy-eight; provided, that the county commissioners shall first authorize said privilege by a vote entered upon their journal. (April 17, 1882, 79 v. 144.) § 3479. PENALTIES FOR EVADING THE GATES. — A person using any such road, who, with intent to defraud any such company, or to evade the pajrment of toll, passes through any private gate or bars, or along any other ground near a turnpike or plank-road gate erected in pursuance of law, or practices any fraudulent or forcible means with intent to evade or lessen the payment of such toll, shall, for every such offense, forfeit and pay a fine of five dollars, to be recovered with cost of suit and amount of toll due for passing through any such gate, before any justice of the peace of the county in which such offense was committed without stay of execution. And the fine or fines when collected for such offense, shall be paid into the common school fund in the township in which such offense was committed, but nothing herein Toll. 331 Turnpike and Avenue Companies, §§ 3480-3481. shall be so construed as to prevent persons using any such roads between gates for common purpose. (March 22, 1881, 78 v. 77; Bev. Stat. 1880; May 1, 1862, 59 v. 101, § 37; S. & S. 149; S. & C. 296.) Bights of abutting oiirner. May erect a bridge over ditch constructed by turnpike company for drainage purposes, in order to enter turnpike from his premises ; but cannot connect bridge with a private way and allow the public to use it as a " shun- pike " to evade payment of toll. — Avenue Co. V. Bates, 2 C. C. 376 (1887) ; s. c. 1 C. D. 540. Owner of land not abutting on turnpike, but on such private way, over which he has no right, has no right to erect such bridge. — Avenue Co. v. Bates, 2 C. C. 376 (1887) ; s. c, 1 C. D. 540. Owner of abutting property has right to lay water pipes under surface of turnpike, but company is entitled to compensation there- fore. — Ave. Co. V. Village, 1 N. P. 85 (1894); s. c, 1 Dec. 99. Right of city to lay ivater pipes. Cincinnati Turn. Co. v. Avondale, 17 W. L. B. 294 (1887). § 3480. MILE-STONES TO BE PUT UP. — Each company shall put up a post or stone at the end of each mile, with the number of miles from some noted point or place, at one end of the road, fairly cut or painted thereon, and shall place near each gate a board, with the rates of toll painted thereon; and no toll shall be demanded unless such boards are kept up. (May 1, 1852, 50 v. 274, § 38; S. & C. 296.) § 3481. RATES OF TOLL. — Every company entitled by the laws of this state to charge tolls may receive from persons traveling on or using its road, the follow- ing tolls, and no more, for every ten (10) miles travel on such road, and in the same proportion for any less distance, to-wit: Eor every four-wheeled carriage or other vehicle, drawn by one horse or other animal, fifteen cents, and for each additional animal, five cents; for every sled or sleigh drawn by one horse or other animal, five cents, and for each additional animal, five cents; for every horse, or mule and rider, five cents; for every horse, mule or ass, six months old or upwards, three cents; for every head of neat cattle, six month(s) old or upwards, one cent; for every head of sheep or hogs, one-half cent; for every stage coach or omnibus, drawn by two horses or other animals, thirty cents, and for each additional animal, ten cents; for every two-wheeled carriage drawn by one horse or other animal, ten cents, and for each additional animal, five cents; and for every engine wagon or other vehicle, drawn or propelled by steam or otherwise than herein provided, such companies may charge and receive such rates of toll as their directors or boards of managers may from time to time direct, but not to exceed five (5) cents per mile; but on all turnpike roads constructed of and kept in repair with two-thirds broken limestone the com- panies operating the same may charge and receive for each ten miles travel on such road, and in the same proportion for any less distance, to-wit: For every four- wheeled carriage or other vehicle drawn by one horse or other animal, twenty cents, and for each additional animal, ten cents; for every sled or sleigh drawn by one horse or other animal, ten cents, and for each additional animal, five cents; for every horse or mule and rider, ten cents; for every horse, mule or ass, six months old or upwards, five cents; for every head of neat cattle, six months old or upwards, one and one-half cents; for every head of hogs, three-fourths of a cent; for every head of sheep, one-half cent; for every stage-coach or omnibus, drawn by two horses or other animals, forty cents, and for each additional, ten cents; for every two-wheeled carriage drawn by one horse, fifteen cents; and for every engine, wagon or other vehicle, drawn or propelled by steam or otherwise than herein provided, such com- panies may charge and receive such rates of toll as their directors or boards of man- agers may from time to time direct, but not to exceed five (5) cents per mile; but persons going to and from their regular place of worship on the Sabbath, or to and from funerals, militia musters, or elections, jurymen going to and returning from their attendance at court, and the troops and armies of the United States, and of this state, may pass on any such road free of toll; and a company incorporated for the purpose of constructing a turnpike or plankroad from a mine or quarry to a railroad. 332 Private Corporations in Ohio. Turnpike and Avenue Companies, §§ 3482-3484. canal, slack-water navigation or navigable water, macadamized road or place within or upon the borders of this state, may, when such road is completed, charge and col- lect such amount of toll for teams, hauling the products of such mines or quarries on its road as its directors may determine, not exceeding four cents per mile for two- horse teams, and an increase of two cents per mile for each additional horse; but such rates shall not be charged for teams hauling the products of such mines or quarries for more than eight miles, nor shall other travelers on such roads be charged more than the ordinary rate of toll per mile as allowed by section thirty-four hundred and eighty-one. (February 13, 1891, 88 v. 33; March 22, 1889, 86 v. 133; April 17, 1882, 79 V. 147; February 24, 1881, 78 v. 35; Eev. Stat. 1880; March 27, 1875, 72 V. 85, § 1; June 12, 1879, 76 v. 153, § 1; March 16, 1866, 62 v. 143, § 1; S. & S. 148; S. & C. 296.) Classification uniform and constitu- tional. The acts of March 27, 1875 (72 v. 85) and of June 12, 1879 (76 v. 153), amendatory of the act of March 16, 1875 (S. & S. 147), dividing all turnpike companies within the state into separate and distinct classes, have a uniform operation upon all the members of each class, and are not in conflict with article 2, section 26, of the constitution. — State ex rel. V. Turnpike Co., 37 Oh. St. 481 (1882). § 3482. REPAIR OF ROADS WITHIN MUNICIPALITIES. — If a company fail to keep any part of its road within the limits of a municipal corporation in repair for five days successively, the proper authority of such municipal corporation may pass a resolution requiring such company to repair the same within ten days after the service of a copy of such resolution on the gate-keeper nearest such municipal corpora- tion, and the company shall declare its intention to abandon or repair the same; in case of a failure or refusal so to do within thirty days, or in case of a failure or refusal to repair in ninety days, the municipal corporation may file a complaint in writing, with a copy of the resolution, in the court of common pleas of the county, describing the portion of the road required to be repaired, and the court, or any judge thereof, shall appoint two disinterested persons as inspectors, who shall view the portion of the road complained of, and retur;i their finding thereon, under oath, to the court, within ten days; and if they find the complaint to be true, such portion of the road shall be declared abandoned by the company, and the municipal corporation may improve or repair the same, and assess and collect the costs of such improvement or repairs in the same way as is provided by law in relation to the improvement of streets. (March 14, 1853, 51 v. 464, § 1; S. & C. 333.) See Madisonville v. Turnpike Co., 17 W. L. B. 30 (1886). § 3483. PROCEEDINGS TO ENFORCE REPAIR. — Notice of the complaint, and of the appointment and time of meeting of the inspectors, shall be served on the presi- dent or other ofiicer of the company, or at its principal office, five days before the meeting of the inspectors; and if such service be made by any person other than the sheriff, it shall be verified by the oath of the person making the same; no toll shall be received at the gates for the portion of the road so declared abandoned; and if the keeper of any gate demand and receive toll for the same, he shall be liable to pay the sum of five dollars to the party injured, to be recovered by civil action before any justice of the peace 'having jurisdiction; (and) the costs of the proceeding on the complaint shall be paid by the company, if the action be sustained, but if not sus- tained they shall be paid by the municipal corporation, and execution, shall issue therefor as in other cases. (March 14, 1853, 51 v. 464, § 2; S. & C. 334.) § 3484. REPAIR OF ROADS OUTSIDE OF MUNICIPALITIES. — If any com- pany fail to keep in repair its road outside the limits of a municipal corporation for five days successively, or fail to build or rebuild any of the bridges or culverts across any or all of the streams crossing its road for a period of six months, any person may Toll-Gatherers. 333 Turnpike and Avenue Companies, §§ 3485-3486. file a complaint, in writing, before any justice of the peace of the county, setting forth the nature and extent of the defect complained of, and designating the place or places in the road where it exists; the justice, upon at least three days' notice, to be given to the gate-keeper nearest the place complained of, shall appoint two disinter- ested persons as inspectors, to meet at the place complained of within five days, and of the time and place of which meeting reasonable notice shall be given to such gate- keeper; the inspectors shall then examine into the truth of the matter complained of, and if they find the complaint to be true, they shall file with the justice a. report of their finding, in writing, and send a certified copy of the complaint, and of their finding thereon, to the keeper of each of the gates between which the defective place or bridge is located, and thereafter no toll shall be received at such gates for the intermediate distance until the parts of the road found defective by the inspectors are fully repaired, or an appeal is taken as hereinafter provided; if the keeper of any such gate demand and receive toll contrary to the provisions of this section he shall be liable to pay the sum of five dollars to the party injured, to be recovered by action before any justice of the peace having jurisdiction; the company shall be liable to any person injured, for the damages sustained by reason of such road or bridge being suffered to remain out of repair by the neglect of the company; the justice shall record the complaint, and the report of the inspectors; and the inspectors and justice shall be entitled to receive one dollar per day for their services, which shall be paid by the company, if the complaint be sustained, and if it fail, then by the complain- ant; and to the amount so taxed shall be added the expense of sending the notice to the gate-keepers, as required by this section, which shall be paid as aforesaid, and for which the justice shall render judgment against the party liable for the payment thereof. (April 9, 1878, 75 v. 106, § 1; March 11, 1867, 64 v. 51, § 1; [S. & S. 150, 151; S. & C. 335].) County commissioners cannot compel repair. The county commissioners have no such in- terest as to entitle them to a right of man- damus to compel a turnpike company to repair a bridge forming a part of such com- pany's road. — State ex rel. v. Turnpike Road Co., 16 Oh. St. 308 (1865). Supervisor has no poiver. A supervisor of highways has no power over plank roads constructed by incorporated com- panies and placed by law under their control ; nor could he justify interference with such roads, although directed by the township trus- tees. — C. F. & C. Plankroad Co. v. Cane et al., 2 Oh. St. 419 (1853). § 3485. APPEALS IN SUCH CASES. — If the sum necessary to make such repairs exceed twenty dollars, the company may appeal the proceeding, and from the report and judgment as to costs, to the court of common pleas of the county, on filing affi- davit as to cost of repairs, and giving bail as in other cases of appeal, within ten days after the service of the certified copy of the report of the inspectors; the condition of the appeal bond shall be to abide by and perform the order of the court of common pleas; and the court of common pleas shall hear and determine as to the truth of the complaint and report, and make such order as to the collection of tolls while the pro- ceeding is pending as the court may deem just; and if, upon the final hearing, the court find the complaint and report true, in whole or in part, it shall make such order as to such repairs, and as to the collection of tolls, as it may deem just. (April 9, 1878, 75 V. 106, § 1; March 11, 1867, 64 v. 51, § 2; S. & S. 151.) Sections 3484 and 3485 cited in Turnpike Co. v. Parks et al., 50 Oh. St. 568, 575 (1893). Authority to declare turnpike aban- doned, unconstitutional. Sections 4914, 4916 and 4918, so far as they authorize probate courts to declare a turn- pike road abandoned, without the right to jury or the right of appeal, are unconstitu- tional. — Turnpike Co. v. Parks et al., 50 Oh. St. 568 (1893) ; Turnpike Co. v. Gay et al., 50 Oh. St. 583 (1893). § 3486. PENALTIES AGAINST TOLL-GATHEEEKS FOE DETAINING TRAV- ELEBS. — If a toll-gatherer on a turnpike or plankroad unreasonably detain a pas- senger after the toll has been paid or tendered, or demand or receive greater toll than 334 Private Corporations in Ohio. Turnpike and Avenue Companies, §§ 3487-3491. is allowed by law on such road, he shall forfeit and pay a sum not exceeding twenty dollars, to be recovered, with costs of suit, before any justice of the peace having- jurisdiction thereof, without stay of execution; but no suit shall be commenced against a toll-gatherer for an offense committed or penalty incurred under this sec- tion, unless the same be commenced within twenty days from the time the offense is committed or the penalty incurred. (May 1, 1852, 50 v. 274, § 39; S. & C. 297.) § 3487. FEKTALTIES FOB FAST KIDING OR DRIVING OVER BRIDGES.— No person shall carry fire across any wooden bridge, on any turnpike or plankroad in this state, except in a lantern or close vessel, under a penalty of five dollars; and no person shall ride or drive a horse, or drive a stage-coach or other vehicle, over any such bridge, faster than a walk, under a penalty of two dollars; but United States express mail shall not be subject to such penalty. (39 v. 36, § 3; S. & C. 336.) § 3488. PENALTIES FOR OBSTRUCTING ROADS.— Whoever deposits any wood, stone, or other kind of material, on any part of a turnpike or plankroad inside of the ditches of such road, or outside of the ditches, but so near thereto as to cause the banks thereof to break into the same, or causes the accumulation of rubbish, or any kind of obstruction, shall forfeit and pay the sum of five dollars. (39 v. 36, § 5; S. & C. 336.) § 3489. HOW PENALTIES TO BE RECOVERED.— All penalties and forfeitures incurred under the provisions of this chapter shall be recoverable, with costs of suit, before any justice of the peace having jurisdiction of the same, and shall be paid into the treasury of the proper county, as in other cases. (39 v. 36, § 6; S, & C. 336.) § 3490. PENALTY FOR OBSTRUCTING TRAVEL ON ROADS.— All persons driving carriages or vehicles of any description, on any public turnpike, road or high- way of this state, shall, on meeting carriages or vehicles of any description keep to the right so as to leave half of the road free, and all persons riding on horseback, or on bicycle, tricycle, tandem bicycle, locomobile or automobile on meeting carriages or vehicles of any description, keep to the right so as to leave two-thirds of the road free, and if any person purposely and wilfully neglects or refuses to comply with the pro- visions of this section, or in any other manner wilfully hinder or purposely obstruct any person in the free passage of any such road or highway, or shall ride a bicycle, tricycle or tandem bicycle on the sidewalk or foot-path of any unincorporated hamlet or village, he shall, on conviction thereof, before any justice of the peace or other court having jurisdiction, for every such offense be fined in any sum not less than five dollars, nor more than twenty-five dollars, for the use of the common schools of the county in which the prosecution is had. (April 25, 1902, 95 v. 261; April 26, 1898, 93 V. 303; March 12, 1886, 83 v. 30; R. S. 1880; 36 v. 104, § 16; S. & C. 336.) § 3491. WHEN MUNICIPAL LIMITS ARE EXTENDED BEYOND A TOLL- GATE. — No company shall hereafter erect a toll-gate and collect tolls within the limits of any city or village, or within eighty rods of such limits; and where by the creation of a village, or the extension of the limits of a, city or village, a toll-gate is brought within such limits, or within eighcy rods thereof, the company shall remove the toll-gate to a point on its road not nearer to such limits than eighty rods, and so much of its road as is included within the limits of such city or village shall become a public street, and be kept in repair as other public streets, but no toll shall be taken thereon; but compensation shall be made to the company for the damages it will sustain by reason of such removal of its toll-gate, and surrender of such part of its road, and if the company and the proper authorities of the city or village do not agree thereon, the damages shall be-ascertained in proceedings which the municipal authori- ties shall commence, to appropriate such property to the use aforesaid, in the manner provided by law for the appropriation of property by municipal corporations, or, in default of such agreement, or the institution of such appropriation proceedings, the Mortgages. 335 Turnpike and Avenue Companies, §§ 3492-3494. company, at any time after the removal of the toll-gate, may recover the same from the city or village, by civil action. (March 23, 1869, 66 v. 36, § 1; April 4, 1878, 75 V. 90, § 34; S. & S. 841; S. & C. 339.) Refers only to location of gate — does not limit right to toll. A toll-gate properly located outside the pre- scribed boundaries may charge and collect toll not only for the eighty rods leading to the city liiTiits, but also for such part of the road SIS is lawfully within the city limits. — Turn- pike Co. V. Springfleld, 27 Oh. St. 584 (1875). But see Turnpike Co. v. Kelley, 41 Oh. St. 144 (1885), holding that it is unlawful to collect toll at a gate on a turnpike road brought within the municipal limits by the extension thereof bej^ond it. See Madisonville v. Turnpike Co., 17 W. L. B. 30 (1886), for a review of the decisions. Must condemn \rhole. Municipality cannot condemn less than the whole of a turnpike within its limits. — Turn- pike Co. V. Cincinnati, 2 W. L. B. 126 (1877). See, also. Rood Co. v. Riverside, 25 Oh. St. 658 (1874). Nature of proceedings. Tremainsville Co. v. Toledo, 31 Oh. St. 588 (1877). No removal prior to compensation. Where, by the extension of the municipality, a turnpike having a toll-gate thereon is em- braced within the city limits, such toll-gate need not be removed until compensation is made to the company. — Cincinnati v. Scarbor- ough, 5 W. L. B. 77 (1880) ; Gates v. Turn- pike Co., 4 N. P. (1897) 6 Dec. 337. Measure of damages. Turnpike Co. v, Cincinnati, 6 N. P. 233 (1890) ; s. c, 9 Dec. 259; Cincinnati v. Scar- borough, 5 W. L. B. 77 (1880); Avondale v. Turnpike Co., 18 W. L. B. 308 (1887). No injunction at suit of individual. An injunction against a turnpike maintain- ing a toll-gate within eighty rods of the city limits will not be granted at the suit of a private individual not injured differently from the general public. — Kelley v. Turnpike Co., 1 W. L. B. 132 (1876); Gates v. Turn- pike Co., 4 N. P. 235 (1897) ; s. c, 6 Dec. 337. Mandamus proper remedy. Where a turnpike is maintained within eighty rods of the city limits, the remedy is mandamus against city to institute appropria- tion proceedings. — Gates v. Turnpike Co., 4 N. P. 235 (1897) ; s. c, 6 Dec. 337. § 3492. MAY SELL BRIDGE OR ROAD IN SUCH LIMITS TO CITY OR VIL- LAGE. — A company, any part of whose road or bridge is, or hereafter becomes, embraced within the corporate limits of a city or village may contract with the proper authorities of such city or village, or of the township or county in which the same is situate, for the disposal, release, and abandonment of such part of its road or bridge, for such compensation and upon such terms as may be agreed upon between the com- pany and such authorities; and any such contract heretofore made shall be as good and valid as if made under and by virtue of this section. (April 11, 1856, 53 v. 180, § 1; S. & C. 338.) § 3493. FORECLOSURE OF MORTGAGES ON ROADS. — When a company exe- cutes a mortgage, upon its road, or any part thereof, the mortgagee or the assignee thereof, may, at any time after the money secured by the mortgage becomes due, foreclose the mortgage in the same manner as if it were upon real estate, and the sale so made shall be held to pass to the purchaser the corporate franchises of such com- pany as fully as the mortgagor held the same at the time of executing the mortgage; and the laws relating to the foreclosure of mortgages upon real estate shall be appli- cable to the foreclosure of mortgages upon turnpikes or plankroads. (April 16, 1857, 54 V. 179, § 1; S. & C. 339.) Bight to take toll is property. This section and the next show that the franchise of taking tolls is property in the enlarged sense of the term. — Turnpike Co. v. Parks, 50 Oh. St. 568, 575 (1893). § 3494. APPRAISERS: THE PURCHASER TAKES THE FRANCHISES. — In. such proceeding the court shall appoint the appraisers, and when the road runs into or through more than one county it may order the same to be appraised and sold entire or in parcels as to it may seem expedient; and the purchaser of any such road 336 Private Corporations in Ohio. Turnpike and Avenue Companies, §§ 3495-3498. or part thereof shall be entitled to exercise all the corporate franchises purchased as fully as they belonged to such company before such sale, in any name that may be assumed by such purchaser. (April 16, 1857, 54 v. 179, § 2; S. & C. 339.) See note under § 3493. § 3495. HOW EOAD SURRENDERED TO COUNTY. — Any company having its road located or constructed, or having the corporate right to construct any such road, through or into any county or counties of this state, may, with the consent of three- fourths of the stockholders, and with the like consent of all of the commissioners of such county or counties, relinquish and transfer to the commissioners of such county or counties the whole or any part of its road, together with all rights and privileges appertaining thereto; but any such transfer to such commissioners shall be limited to the part of such road within the boundaries of such counties respectively, and the transfer shall be without consideration, and no tolls shall be collected on such road within such county or counties. (March 11, 1853, 51 v. 405, § 1; January 25, 1861, 58v. 5, § 1; S. & C. 333; S. & S. 678.) Commissioners' assent necessary. No valid transfer can be made to the com- missioners of the county without the assent of such commissioners. — State ex rel. Turnpike Co., 16 Oh. St. 308 (1S65). § 3496. HOW SUCH TBANSEER TO BE EVIDENCED. — Such transfer shall be evidenced by the execution of a written declaration, signed by the president or other principal officer, and the secretary or other recording officer, and under the seal of the company, and shall take effect and have full force when there is deposited with the auditor of the county within which the relinquished road lies the written declara- tion, or a copy threof, and an entry is made upon the journal of the commissioners of such county, of an acceptance, signed by all the commissioners, of such relinquish- ment or transfer; which written declaration, so deposited, shall be entered by the auditor upon his record of roads, and thereafter such road, or part of road, shall be under the control of the commissioners of the county in which the same lies, who shall, by a, proper order, provide that the same shall be a public highway, and that no tolls be collected thereon within the limits of such county. (January 25, 1861, 58 V. 5, § 2; S. & S. 678.) § 3497. PRIVATE SALE OF ROADS. — Any such company may, with the con- sent of three-fourths of the stockholders, relinquish and transfer, by sale or other- wise, to any person or persons other than commissioners of counties, the whole or any part of its road, together with all rights and privileges appertaining thereto, which sale or relinquishment shall be evidenced by a written deed of conveyance, under the seal of such company, signed by the president or other principal officer of such com- pany, and the secretary or other recording officer thereof, which shall, before it shall have any validity or effect, be recorded in the official records of deeds of each county w^ithin which the road or any part thereof which has been so sold and conveyed lies, or be left for record in the office containing such official records; but such sale or transfer may be made upon the consent of the holders of three-fourths of the entire stock of the company, the holders of the stock so consenting in that case to be liable in their individual capacity to any stockholder not assenting, for such loss or injury as such non-assenting stockholder may sustain by reason of such sale or transfer. (April 17, 1857, 54 v. 198, § 3; S. & C. 340.) § 3498. WHEN AND HOW A ROAD MAY BE SOLD TO COUNTY COMMIS- SIONERS. — The board of directors of any company, when authorized so to do by a vote of the holders of a majority of the stock of the company, represented at a meet- ing of the stockholders called for that purpose by either (of) the board of directors or Purchase by Counties. 337 Turnpike and Avenue Companies, §§ 3498a-3500. ten stockholders of the company, of which at least twenty days' puhlic notice has been given by advertisement in not more than two newspapers published in the county where such road or part thereof is situate, shall sell and convey the whole or any part of its road to the commissioners of the county, together with all rights and privileges appertaining thereto, which sale or relinquishment shall be evidenced by a written deed of conveyance, under the seal of such company, signed by the president or other principal officer of such company, and the secretary or other recording officer thereof, w^hich shall, before it shall have any validity or effect, be recorded in the official records of deeds of each county within which the road or any part thereof which has been so sold and conveyed lies, or be left for record in the office containing such official records. (S. & C. 339.) § 3498a. COUNTY COMMISSIONERS MAY PURCHASE TOLL-KOADS WHEN PETITIONED TO DO SO; QUESTION OF PURCHASE TO BE SUBMITTED TO "VOTE. — The county commissioners of any county in the state, when petitioned to do so by at least fifty freeholders, citizens of the counties, shall and they are hereby authorized and required to purchase any or all of the toll roads or parts of toll-roads ■within said counties, as hereinafter provided; provided however that before such purchase is made the commissioners of the county in which the people shall vote in favor of purchasing the toll roads, shall make an order to that effect on their journals and submit the purchase to the voters of said county either before or after an appraise- ment of the value of the roads has been had, at any regular spring or fall election, giving at least ten days' notice thereof, in at least two newspapers published in the county; and at such election the voters who are in favor of such purchase shall inscribe on their ballots. Purchase of toll roads, Yes; and those opposed thereto shall inscribe on the ballots Purchase of toll roads, No; and if, at any such election, a majority of those voting on said question are in favor of such purchase, the said commissioners may make such purchase, but not otherwise. The vote on said ques- tion shall be returned by the judges of election to the clerk of the court of common pleas, who shall open, count, and declare the same, as in an election for county officers, and certify the same to the county commissioners. (March 25, 1880, 77 v. 83.) Cited in Turnpike Co. v. Parks, 50 Oh. St. 5G8, 582 (1893) ; Warden v. Commissioners, S8 Oh. St. 639, 640 (1883). § 3499. HOW TOLL-ROADS VOTED TO BE PURCHASED BY COUNTIES APPRAISED. — In any county where, heretofore or hereafter, an affirmative vote has been or may be given at any general election, in favor of purchasing any or all the toll-roads, or parts thereof, lying within such county, at a price to be fixed by three disinterested appraisers, who shall be appointed as follows: One by the court of com- mon pleas of the county, or a judge of said court resident of the subdivision in which the county is situate; one by the probate judge of the county, and one by the com- missioners of the county; said appraisers, after being sworn faithfully and honestly to discharge their duties in that behalf, shall personally inspect the road or roads, or parts thereof, so far as the same may be within such county, and make and return in w^riting, to the commissioners, a valuation of each of the roads or parts thereof; and if the commissioners, from any cause, fail to purchase any road or part thereof, other appraisers may be appointed in the same manner. But nothing herein con- tained shall prevent the commissioners from making or receiving propositions, and to purchase at any time within two years after an appraisement has been had at the appraised price; any law heretofore passed to the contrary, notwithstanding. (April 15, 1881, 78 V. 149; April 12, 1880, 77 v. 187; Rev. Stat. 1880.) § 3500. THE PURCHASE BY THE COMMISSIONERS, AND EFFECT THEREOF. — If the report is satisfactory, and the commissioners, or a majority of them, indorse their approval thereon as to all or any of the roads, or parts thereof, they shall cause LAW GOV. PRIV. COE. — 22. 338 Private Corporations in Ohio. Turnpike and Avenue Companies, §§ 3501-3502. an entry to be made to that effect on their journal, and thereupon they may purchase the same at a price not exceeding such appraisal, and pay such company or companies, in money or in bonds to be issued as hereinafter specified, and thereupon such roads or parts thereof so purchased, shall cease to be toll-roads, and become free roads, to be kept in repair in the manner prescribed in chapter 10, title 7, part 2. § 3501. THE ISSUE OP BONDS FOB PURCHASE, AND THE TAX FOB THEIB EEDEMPTION. — For the purpose of paying for such roads or parts thereof, the commissioners shall issue bonds payable at such times, and in such amounts as will be as near as practicable equal to the semi-annual collection of taxes levied for that purpose, which bonds shall bear interest at a rate not exceeding six per centum, pay- able semi-annually, which bonds may be delivered to such companies in payment for such roads, or parts thereof, or sold for money at not less than their par value, but such bonds shall not run more than eight years from date, and for the payment thereof the commissioners shall levy, annually, on all the taxable property of such counties, in addition to the taxes they are otherwise authorized to levy, such sum as will fully pay such bonds and the interest thereon. (April 15, 1881, 78 v. 149; Bev. Stat. 1880.) Constitutional. The levying 'of taxes for the purchase of toll roadSj in order to make them free to the public, is a constitutional exercise of the tax- ing power. — Warder v. Commissioners, 38 Oh. St. 639 (1883). § 3501a. TAXES AND ASSESSMENTS FOB CONSTEUCTION OF FBEE TUBNPIKES MAY BE BEFUNDED. — The commissioners of the counties are hereby authorized and directed to refund to all persons residents of their respective counties, who have paid or may be required to pay, any tax or assessment for the construction of any free turnpike road or roads under the acts of March 29, 1867, April 15, 1867, March 29, 1875, and part second, title seven, chapter seven of the Eevised Statutes of Ohio, or the acts amendatory thereof, or supplementary thereto, which road has not been converted into a toll-road; for the purpose of adjusting this refunding of assessments, the auditors of such counties shall prepare a book of such assessments paid in the counties, in which shall be noted all amounts so refunded, and in no instance shall the amount so refunded exceed the amount they have paid or may be required to pay towards the purchase of toll-roads or parts of toll-roads in their respective counties; provided, that all persons who shall demand or accept the refunding of the assessments paid by them, or any part thereof, shall thereby release all right to have the road or roads, to the construction of which they have contributed, to be converted into a toll-road or roads; and in any attempt to convert such road or roads into toll-roads, the names of such persons and the assessments by them con- tributed, shall be counted against the conversion of such road or roads, or parts thereof, into toll-roads; and for the purpose of refunding such assessments the com- missioners are authorized to issue bonds in such amounts as will be necessary, which bonds may run not to exceed eight years, and bear not to exceed six per cent, interest, payable semi-annually; for the payment of such bonds the commissioners are required to levy on all the taxable property of the county such sum, annually, as will fully pay said bonds and the interest thereon, in addition to the taxes they are otherwise authorized to levy. (April 26, 1890, 87 v. 335; April 15, 1881, 78 v. 149.) Constitutional. The levying of a tax to refund assessments is constitutional. - ers, 38 Oh. St. 639 (1883). - Warder v. Commission- § 3502. FEES OF APPBAISERS, COUNTY AUDITOE, AND TREASUBEB. — Such appraisers shall be paid by the county, upon the allowance of the commissioners, three dollars per day and their necessary expenses, for the time actually employed in the business of their appointment; and the coiinty auditor and county treasurer, for Consolidation. 339 Turnpike and Avenue Companies, §§ 3503-3510. their services under the preceding section, shall be entitled to one-half of the lowest rate of fees now allowed to them by law for like services. § 3503. SALE OF ROAD IN ONE COUNTY DOES NOT AFFECT PORTION OF V BOAD IN ANOTHER. — The sale by any company owning a toll road or such part of such road as lies within any county, shall not affect its organization or right, as to such part or parts of its road as may be situate outside of such county. § 3504. TRANSFER NOT TO AFFECT CREDITORS. — No relinquishment, sale, or transfer herein provided for shall prejudice or afEect, in any way the claim of any creditor of the company which makes the same, nor shall the provisions of the three preceding sections extend or be applicable to any road in which the state is interested as a stockholder. (April 17, 1857, 54 v. 198, § 4; S. & C. 340.) § 3505. ADDITIONAL STOCK AUTHORIZED. — The directors of any company may open books of subscription along the line of its road for the purpose of raising additional stock for the completion, extension, planking, or otherwise improving or repairing its road. (March 12, 1853, 51 v. 395, § 1; S. & C. 334.) § 3506. TWO OR MORE COMPANIES MAY CONSOLIDATE. — When two or more turnpike or plankroad companies desire to consolidate themselves into a single corporation, they may do so in the manner and subject to the rules provided in this title for the consolidation of railroad companies. (May 1, 1852, 50 v. 274, § 43; S. & C. 298.) § 3507. MAY ASSIST A ROAD WHICH IS AN EXTENSION. — The directors of any such company may subscribe and pay such sums of money as the majority of the stockholders instruct them to subscribe, to build and keep in repair any turnpike or plankroad that is a continuation or an extension of its road; but such subscription shall not exceed the net revenue of its road. (April 12, 1858, 55 v. 160, § 1; S. & C. 340.) § 3508. MAY ASSIST AN INTERSECTING FREE TURNPIKE. — The directors of any company may subscribe and pay such sums of money as they may think advis- able to build and keep in repair any free turnpike road that intersects their road; but such subscription shall not exceed the dividends of their company, and three- fourths of the stockholders of the company must consent to the subscription. (May 1, 1854, 52 V. 131, § 1; S. & C. 370.) § 3509. ACCOUNTS EACH COMPANY MUST KEEP. — Every company shall cause to be kept a fair and accurate account of the whole expense of making its road, with the expense of toll-gatherers, and all other necessary agents or officers whom the company may find it convenient to employ, and a fair and accurate account of the amount of toll received; the books of every company shall always be open for the inspection of the com:missioners of any county through or into which is passes, oi' of the agent of the general assembly of the state and of any stockholder; and if any company refuse or neglect to exhibit its accounts, agreeably to the provisions of this section, when required to exhibit them by such commissioners or agent, all the rights granted by this chapter, and its right to be a corporation, shall cease and deter- mine. (May 1, 1852, 50 v. 274, § 40; S. & C. 297.) § 3510. THE BOOKS A COMPANY MUST KEEP. — The directors of each com- pany shall cause books to be kept, in which shall be entered all the transactions of the company, with the dates of such transactions; also stock books, in which shal^ be entered tlie names of the stockholders, the number of shares of stock owned by each, 340 Private Corporations in Ohio. Turnpike and Avenue Companies, §§ 3511-3515. and all transfers of stock made during each year, and by and to whom made; on the first Monday of January of each year the directors shall cause a statement to be made in such stock books, showiiig the names of the owners of the stock of the company, ani the respective number of shares held by each; and all books herein provided for shall, at all proper times, be open to the inspection of any stockholder. (April 17, 1868, 65 V. 89, § 1; S. & S. 146.) § 3511. TOLL-GATE KEEPERS MUST REPORT. — A keeper of a toll-gate shall, on the first Monday of January of each year, and at such other times as may be required by the company, make a report in writing, under oath, showing the amount of toll received at each gate respectively for the preceding year, the amounts paid to the company from time to time, the amounts retained on account of salaries of gate- keepers, the amount of tolls outstanding and uncollected, and also who and to what amount persons have passed through such gates without paying tolls, and by whose orders such persons have so passed; and all such statements shall be submitted to the stockholders at their annual meeting on the second Monday of January of each year. (April 17, 1868, 65 v. 89, § 2; S. & S. 147.) § 351S. DIRECTORS' ANNUAL REPORT TO STOCKHOLDERS. — The directors of each company shall cause to be made, in writing, and submitted to the stockholders of the company, at the regular meeting of the stockholders on the second Monday of January of each year — notice of which meeting shall be given by the directors, by publication for four consecutive weeks, in a newspaper printed and of general circu- lation in each county in which any part of the road is situate — a report of the trans- actions of the company for the year next preceding, which report shall show the amount of revenue received by the company from all sources during the year, and the amount of tolls received at each gate respectively, also a statement in detail of all the items of expenditure of the company for all purposes, including the amount expended on each mile of the road respectively; the amount paid to each officer of the company for his services, the amount paid to gate-keepers for salaries or otherwise, and the amount of money on hand after paying expenses of the company; also a state- ment of the outstanding liabilities of the company and to whom owing, and of the amounts due to the company, and by whom owing, and how secured; and the direct- ors shall order a dividend to be made of the money then on hand, unless otherwise ordered by a majority of persons present at such meeting owning stock in the com- pany. (April 17, 1868, 65 v. 89, §§ 3, 5; S. & S. 147.) § 3513. TREASURER TO HOLD NO OTHER OFFICE IN COMPANY. — The treasurer of a company shall hold no other office in the company, and when appointed, and before assuming the duties of his office, he shall take an oath of office, and give bond, with security to the satisfaction of the board of directors, conditioned for the faithful performance of his duties according to law. (April 17, 1868, 65 v. 89, § 4; S. & S. 147.) § 3514. TOLL-GATE KEEPER TO BE DEEMED THE AGENT OF THE COM- PANY. — The keeper of a gate on any turnpike or plankroad shall be deemed and held to be the agent of the company or person owning the road; and judgment obtained against any such gate-keeper for a violation of this chapter, shall be con- sidered and held to be a, judgment against the company or person owning the road, and execution may issue thereon accordingly against the gate-keeper and such com- pany or person. (May 1, 1862, 59 v. 101, § 4; S. & S. 150.) § 3515. HOW OBSTRUCTING FENCES MAY BE REMOVED. — If a person whose fence is upon, or who erects a fence upon, the limits of a turnpike or plankroad, or who places within the limits of such road any wood, stone, or other obstruction Assessment Against Stockholders. 341 Turnpike and Avenue Companies, §§ 3516-3520. other than permanent buildings already constructed, so as to interfere with the public travel upon such road, or prevents or interferes with the free passage of water in the side drains or ditches of such road, upon being notified by the president, a director, or the superintendent of such road to remove such fence or other obstruction, neglect or refuse to comply with such requirements within ten days from the service of such notice, he shall forfeit and pay to and for the benefit of the company owning such load a sum not less than one nor more than ten dollars for each and every day he per- mits such fence or obstruction to remain upon such road after the expiration of ten days from the service of such notice; which sum shall be recoverable by action in the name of the company, before any justice of the peace of the township w^iere the fence is situate or the obstruction placed. (March 28, 1861, 58 v. 43, § 1; S. & S. 150.) § 3516. COMPANY MAY ASSESS STOCKHOLDERS. — When the stockholders of a turnpike or plankroad company are individually liable for the liabilities of such company, the proportion that each stockholder shall be required to pay to meet exist- ing liabilities may be determined and collected in the manner hereinafter provided. (April 8, 1856, 53 v. 99, § 1; S. & C. 338.) § 3517. NOTICE OF MEETING FOB, THAT PURPOSE. — The directors of any such company, desiring to take such action, m^y give notice to the stockholders by publication for at least thirty days in at least two newspapers published in the counties in which the road is located, for a meeting of the stockholders, specifying the time and place of meeting, and the object thereof. (April 8, 1856, 53 v. 99, §§ 2, 7; S. & C. 338.) § 3518. PEOCEEDINOS THEREAT. — At such meeting a detailed statement shall be submitted, showing the assets and indebtedness of the company; and a. majority of the stockholders may there determine upon the basis for assessing the stockholders to meet the indebtedness of such company, and fix the time or times, and the mode, for the payment of the amount assessed against each individual or cor- poration. (April 8, 1856, 53 v. 99, §§ 3, 4; S. & C. 338.) § 3519. COLLECTION OF ASSESSMENTS. — No stockholder shall be liable beyond the sum fixed by the charter of such company, and all assessments, when paid, shall be a credit on his liability; and a stockholder who fails to pay, as required, the amount so assessed, shall be liable to an action in the name of the company for the recovery thereof, as in other cases of indebtedness. (April 8, 1856, 53 v. 99, §§ 5, 6; S. & C. 338.) § 3520. THOSE ASSESSED FOR IMPROVED ROADS MAY BECOME INCOR- PORATED. — When a majority of the landholders whose lands have been or hereafter may be assessed to construct a road by virtue of proceedings had under the act of March 29, 1867, and the acts supplementary thereto and amendatory thereof desire to incorporate themselves into a turnpike company, they may proceed in the manner provided in chapter one; but in their articles of incorporation they shall also state that the road has already been constructed under and by virtue of said act, and the amount of capital stock of the company shall be, as near as the same can be arrived at, the amount expended in the construction of the road; and there shall be annexed to the articles of incorporation a petition, asking for the incorporation of the persons named in the articles of incorporation, for the purposes therein named, which petition must be signed by a majority of the landholders whose lands have been taxed for the making of the improvement, accompanied by a certificate of the auditor of the county in which the road is located, to the efEect that the petition contains the signatures of a majority of the landholders whose lands have been so taxed. (May 7, 1869, 66 v. 131, § 16.) 342 Private Corporations in Ohio. Turnpike and Avenue Companies, §§ 3521-3527. § 3521. "WHO TO BE STOCKHOLDERS. — No stock book shall be opened, and no subscriptions received to the stock of such company; the auditor of the county in ■which any road is located shall, on demand, furnish to the corporators a certified list of the landholders whose lands have been taxed for the construction or improvement of the road; and at the first election of directors and officers of the company, each person whose lands have been so assessed shall be entitled to one vote, and no more. (May 7, 1869, 66 v. 131, § 17.) § 3522. CEKTIFICATES OF STOCK TO BE ISSUED. — After the company is organized its- president and secretary shall issue certificates of stock to each land- holder for the number of shares of the stock, of the sum which may be designated by the directors, and fractions of a share, as shall amount to the sum assessed upon his lands, and which he has already paid for making the improvement; and they shall also, from time to time, after the assessment on each landholder each year is paid, issue like certificates for the amount of the assessments so paid; but any person whose lands have been assessed, and whose assessments have been paid; may, at any time after the organization of the company, become a stockholder therein, by produc- ing and exhibiting to the secretary of the company, the certificate of the auditor and treasurer of the county, showing the amount of the assessment on the lands of such person for the improvement, and that the same has been paid, and thereupon the president and secretary shall issue certificates of stock to him for the amount so paid. (March 30, 1875, 72 v. 172, § 18.) § 3523. POWERS OF STJCH COMPANIES. — A company so incorporated shall have the same powers and be subject to the same liabilities as other turnpike com- panies incorporated under the laws of the state. (May 7, 1869, 66 v. 131, § 19.) § 3524. WEEN SUCH COMPANY MAY INCREASE CAPITAL STOCK. — A company organized as provided in section thirty-five hundred and twenty, may, with the assent of the holders of a majority of its stock, and the consent of the county commissioners, increase its capital stock to such an amount as may be deemed neces- sary to extend its road or to build a branch road, not exceeding five miles in length, to form a. connection with any other similarly improved road in an adjoining county or state. (April 29, 1872, 69 v. 191, § 1.) * § 3525. PROCEEDINGS FOR SUCH PURPOSE. — For the purpose of increasing the capital stock of the company for the objects heretofore stated, books may be opened for subscriptions, under the direction and at the office of the auditor of the county in which the company is located, upon giving thirty days' previous notice in some newspaper published and of general circulation in the county, and all persons, whether original stockholders or otherwise, may become subscribers to the capital stock of the company; but the aggregate of such subscriptions shall not exceed the amount necessary to construct or build such road or branch; and if a company so organized refuse its assent to such extension, or to the construction of such branch road, for the purposes stated, or refuse, by the vote of the holders of a majority of its stock, to increase its capital stock for such purposes, a stock company may be organ- ized under chapter one, which may build such extension or branch, and erect toll- gates, as provided in this chapter. (April 29, 1872, 69 v. 191, § 1.) § 3526. COMPANY MAY DIVIDE ITS ROAD. — A company whose road extends into two or more counties may subdivide its road into as many divisions as it may determine, as hereinafter provided, and may reorganize the company, so as to have a separate corporation for each of the subdivisions. (May 13, 1878, 75 v. 527, § 1.) § 3527. PROCEEDINGS TO EFFECT SUBDIVISION. — For the purpose of mak- ing such subdivision there shall be a meeting of the stockliolders of the company, at the usual place of meeting, on a notice of at least four weeks, and if at such meeting Levy on Roads. 343 Turnpike and Avenue Companies, §§ 3528-3534. the ownsrs of at least two-thirds of the stock of the company assent thereto, in writ- ing, the subdivision shall be made, and the stock of the entire corporation shall be apportioned among the several new corporations as previously agreed upon; each subdivision shall be liable for its proportion of the debts of the original corporation, in proportion to its stock; and the action of the stockholders' meeting shall be duly recorded, and, when attested by the president and secretary of the meeting, a copy thereof, duly certified by the president and secretary, shall be filed with the secretary of state, and shall become the articles of incorporation for each of the subdivided companies, and shall be recorded as other articles of incorporation are recorded. (May 13, 1878, 75 v. 527, § 2.) § 3528. EEORGANIZATION OF SEPARATE COMPANIES. — After the certifi- cate is filed with the secretary of state each of the subdivisions shall become a sepa- rate corporation, and reorganize as such by the election of a board of directors as other turnpike companies, and thenceforth each of the companies shall have the same powers, and be conducted in all respects, as other companies; and the rights of stock- holders in each subdivision to their stock and property shall remain and continue therein as if they had been the sole stockholders in the subdivision prior to the sub- division, subject, however, to the same liabilities of stockholders for debts of the cor- poration and legislative control as other companies. (May 13, 1878, 75 v. 527, § 3.) § 3529. NAMES OF NEW COMPANIES. — The name of each of the companies of such subdivided corporations shall be such as may be assumed and designated in the certificate of incorporation. (May 13, 1878, 75 v. 527, § 4.) § 3530. ROADS MAY BE SOLD ON EXECUTION. — All turnpikes and plank- roads under the control of individuals or corporations, and held as property or as a franchise, shall be liable to sale upon execution, in the same manner as other prop- erty. (May 5, 1868, 65 v. 136, § 1; S. & S. 238.) Cited in Turnpike Co. v. Parks, 50 Oh. St. 568, 575 (1893). § 3531. THE LEVY AND APPRAISEMENT. — All such property shall be levied upon, appraised, and sold as real estate is appraised and sold; and the appraisement shall be made with reference to the value thereof for the purposes for which it is or may be used, and shall include the value of the franchise therewith connected. (May 5, 1868, 65 v. 136, § 2; S. & S. 238.) § 3532. WHEN AN ORDER FOR APPRAISEMENT MAY BE MADE. — When any such property is levied upon and not appraised, and when portions of such prop- erty are situate in two or more counties, the court in which the judgment was rendered may, upon application of the creditor, order the same to be appraised, appoint appraisers, and have the same sold entire, or in such parcels as the court may deem most advantageous to the debtor; but if no such application be made the sheriff shall proceed as in other cases. (May 5, 1868, 65 v. 136, § 3; S. & S. 238.) § 3533. THE PURCHASER TAKES THE FRANCHISE. — The purchaser of any such road shall, upon the confirmation of the sale, be entitled to hold and exercise all the corporate franchises purchased at such sale, as fully as the same were held and exercised by the debtor before such sale, in any name assumed by the purchaser. (May 5, 1868, 65 v. 136, § 4; S. & S. 238.) Cited in Turnpike Co. v. Parks, 50 Oh. St. 568, 575 (1893). § 3534. TRANSCRIPT TO BE FILED WITH SECRETARY OF STATE. — Upon the filing with the secretary of state of a duly attested copy of the sale, confirmation, and conveyance of any franchise as is herein provided for, such transfer shall be 344 Private Corporations in Ohio. Turnpike and Avenue Companies, §§ 3535-3536-S. recorded in the same manner that original articles of incorporation are recorded; and thereupon the franchise shall vest absolutely in the purchaser, in the same manner as franchises vest in original corporators upon the recording of the certificate of incor- poration. (May 5, 1868, 65 v. 136, § 5; S. & S. 238.) § 3535. WHEW RiaHT TO TAKE TOLL MAY BE SOLD ON EXECUTION. — When a judgment has been heretofore or is hereafter rendered against any turnpike, plankroad, or bridge company, and remains unsatisfied for ten days after the rendi- tion thereof, execution may issue thereon against the goods and chattels of the com- pany, which shall be levied upon and sold as in other cases; if sufficient goods and chattels can not be found to satisfy such execution, the officer holding the same may, if the judgment creditor so direct, levy upon the right of the company to take toll at any of its gates within the jurisdiction of the officer, which right the officer shall advertise and sell as personal property; and the person who will pay the amount due upon the execution for the right of using such gate or gates, and of taking toll at the same, for the shortest time, shall be the purchaser; but nothing herein contained shall be so construed as to deprive the company of the same right to give bail for stay of execution, within the same time after the rendition of a judgment that an individual might have. (March 31, 1879, 76 v. 49, § 1; S. & C. 337.) Cited in Turnpike Co. v. Parks, 50 Oh. St. 5G8, 576 (1893). § 3536. CERTIEICATE OE SUCH SALE, AND ITS EFFECT. — The officer who makes sale of the right to take toll at any gate as aforesaid, shall give to the pur- chaser a certificate thereof, which certificate shall be sufficient to authorize him to take possession of such gate, and to hold the same during the time for which the same was sold; the purchaser shall have the full right to demand and receive the same tolls of and from all passengers passing through such gate as have been established and posted up by such company according to law; and during the possession thereof the purchaser, or his agent, shall conform to all rules, regulations, and contracts of the company, in the same manner as acquired of the gatherers of toll of the company, except that he shall hold for his own use all tolls collected at such gate for and during the time for which he purchased the same, and shall keep such part of the road in as good repair, so long as he holds the same under such contract, as when possession, was taken thereof, ordinary wear and travel excepted. (March 31, 1879, 76 v. 49,. § 2; S. & C. 337.) § 3536-1. Sec. 1. AVENUE COMPANIES MAY BE INCORPORATED IN CER- TAIN COUNTIES; MAY APPROPRIATE LANDS. — In each county containing a city of the second grade of the second class companies may be incorporated for the purpose of constructing avenues, in the counties where they are organized; such avenues shall be opened not more than one hundred feet in width, at least sixty feet of which shall be cleared of all obstructions, and not less than thirty feet shall be made an artificial road, composed of stone, gravel, or other suitable material, well compacted together, in such manner as to secure a firm and substantial road, and shall not be less than one mile in length, and they may enter upon and appropriate any lands for the use of such avenue, according to the provisions of the statutes for the appropriation of private property by corporations. (March 31, 1879, 78 v. 103.) § 3536-2. Sec. 2. ERECTION OF TOLL-GATES ON CERTAIN AVENUES IN MONTGOMERY COUNTY. — When any such company completes not less than one mile of any such avenue to the acceptance of the county commissioners, or when the whole of any such avenue is completed to such acceptance by any such company, the company may erect a toll-gate thereon at, or at any point outside of, the corporation line of such city for the collection of such tolls as tui-npike companies are allowed by law to collect. (May 1, 1885, 82 v. 209; April 6, 1881, 78 v. 103.) PART X. BRIDGE CORPORATIONS. § 3537. Powers of bridge companies. § 3538. Must post rates of toll. § 3539. Rates of toll allowed. § 3540. May make and enforce regulations. § 3541. Powers of Ohio river bridge companies. § 3542. Further powers of Ohio river bridge companies. § 3543. Rates of toll prescribed. § 3544. May lay railway tracks on bridge. § 3545. Mortgage of franchises and sale of obligations. § 3546. Railroad companies may subscribe to stock. § 3547. Consolidation of companies. § 3548. May change span or height of bridge. § 3548a. May borrow to consti-uct or maintain avenues or approaches. § 3549. May own and run certain ferries; rates of ferriage. § 3537. POWEKS OF BRIDGE COMPANIES. — A company incorporated to con- struct a bridge over any stream of water in this state shall either own the bank on each side of the stream where it is proposed to erect its bridge, or obtain the consent of the owner or owners thereof, in writing, to occupy the same; it may purchase, or appropriate in the manner provided by law, and hold, such real estate as will be required for the site of the bridge, and suitable avenues or approaches leading thereto, may use so much of any public street, road, or avenue as is necessary for landings and abutments, and may appropriate in the manner provided by law any rights or fran- chises necessary in the construction of the bridge; and the provisions of section thirty- four hundred and ninety-two shall be applicable to such companies. (April 29, 1872, 69 V. 185, § 55; April 11, 1856, 53 v. 180, § 1; S. & C. 338.) May hold necessary real estate, in fee or otherwise. A bridge company is authorized to pvir- ehase, appropriate and hold any interest in real estate, whether an estate in fee simple or a less estate, which in the opinion of the directors will be required for the site of the bridge and of suitable approaches leading thereto. — Covington Bridge Co. v. Magruder et al., 45 W. L. B. 66 (1900). § 3538. MUST POST RATES OF TOLL. — Such company, previous to receiving tolls upon its bridge, shall set up and keep in a conspicuous place thereon a board, on which shall be written, painted, or printed, in a plain and legible manner, the rates of toll which are charged thereat; and if its charter provides that such rates shall be prescribed by the court of common pleas of the proper county, and the com- pany demand and receive any greater rate of tolls than the rate so prescribed, it shall be subject to a fine of ten dollars. (May 1, 1852, 50 v. 274, § 61; S. & C. 301.) Rates of toll must be posted. To post the rates of toll at each end of the bi'idge, is a condition precedent to the riyht to exact tolls, and until performed the collec- tion of toll is unlaM'ful. — Bonham v. Taylor et al., 10 Ohio, 108 (1840). What will excuse posting of tolls. Any casual interruption in keeping of the rates of toll, caused by violence or otherwise and for a short period, would not deprive the company of any right, provided it had once performed its duty and there was not un- leasonable delay in complying with the law. — Bonham v. Taylor, 10 Ohio", 108 (1840). § 3539. RATES OF TOLL ALLOWED. — Any company authorized by its charter to take tolls above the rates hereinafter provided may charge and receive the fol-« [345] 346 Private Corporations in Ohio. Bridge Companies, §§ 3540-3542. lowing rates of tolls, and no more; For each foot passenger one cent; for each horse, mule, or ass, one year old and upwards, three cents; for each horse and rider ten cents; for every chase, chariot, gig, or other two or four-wheeled pleasure-carriage, drawn by one horse, fifteen cents; for every such vehicle drawn by two horses twenty- five cents, and if drawn by four horses thirty cents; for every sled or sleigh drawn by one horse or other animal ten cents, and for each animal in addition three cents; for every wagon drawn by one horse or other animal ten cents, and for each animal in addition three cents; for every wagon drawn by two horses or other animals fif- teen cents, and for each animal in addition three cents; for each head of neat cattle, six months old or upward, one cent; and for each head of sheep, goats, or hogs, one- half cent; but this section shall not be construed to affect any company in whose charter special rates are provided, and no power is given to the legislature to alter or amend the same. (April 15, 1857, 54 v. 177, § 1; S. & C. 352.) § 3540. MAY MAKE AND ENFORCE REGULATIONS. — All bridge companies and owners are invested with full power and authority to make and enforce any rule or regulation deemed necessary or requisite to preserve and protect their property and collect their tolls, and may prevent any person from crossing any bridge owned by them on foot, or by riding, or driving any team or vehicle, or from driving any stock thereon, who fails to pay the regular fare when demanded; and the police or watchman of any such bridge shall have all the power and authority of policemen of cities, and may arrest any person who violates the law, or the rules of the com- pany or person owning the bridge, without warrant, at or upon such bridge, and take him before the proper civil authority to be dealt with according to law. (April 12, 1867, 64 V. 128, § 5; S. & S. 57.) § 3541. POWERS OF OHIO RIVER BRIDGE COMPANIES. — A company organ- ized to construct a bridge over the Ohio river may construct and maintain such bridge, with suitable avenues or approaches leading thereto, and with either a single span or a draw, as the company may determine; but in either case, in order that the bridge may not obstruct the navigation of the river, the same shall be built in accord- ance with the provisions of an act of congress approved July 14, 1862, entitled " an act to establish certain post-roads," or of any act of congress subsequently passed on the subject. (April 3, 1868, 65 v. 55, § 4; S. & S. 203.) Paramount power in congress. The paramount power of regulating bridges tliat affect the navigation of the navigable waters of the Vnited States is in congress. — Bridge Co. v. United States, 105 U. S. 475 (1881). Withdraival of assent equivalent to prohibition. The withdrawal of congress of its assent to the maintenance of the bridge, when properly made, is equivalent to a positive enactment, that from the time of such withdrawal the further maintenance of the bridge shall be unlawful notwithstanding the legislation of the several states upon the subject. — Bridge Co. V. U. S., 105 U. S. 479 (1881). May \iritlidraTr assent nrhenever deemed necessary. Congress could withdraw its assent ■ when- e^'er it determined that in regard to the con- struction of the bridge, other requirements than those originally prescribed were essential to secure due protection to the navigation of the river. Congress, by requiring change and modification, to which the company con- formed, incurred no liability to the latter on account of the increased cost. — Bridge Co. v. v. S,, 105 U. S. 480, 484 (1881). § 3542. FURTHER POWERS OF OHIO RIVER BRIDGE COMPANIES. — Such company may purchase, or appropriate in the manner provided by law, and hold such real estate as, in the opinion of its directors, will be required for the site of the bridge, and of suitable avenues or approaches leading thereto, and may locate the same on, or construct the same over, any public street, road, avenue, or alley; provided, that in constructing the same over any public street, road, avenue or alley, the said bridge shall be constructed at such height as not to interfere with travel passing on, over or along the sama; and provided further, that no pier, or other obstruction, shall be constructed or built upon such street, road, avenue or alley, without the consent of the Ohio River Companies. 34-7 Bridge Companies, §§ 3543-3547. municipal or other authorities having charge or control of the same. And the com- pany shall be responsible for injuries done to private property, adjacent or near to such bridge, by its elevation and construction, which may be recovered in a civil action brought by the owner, at any time within two years from the completion thereof. (February 8, 1889, 86 v. 25; Kev. Stat. 1880; April 3, 1868, 65 v. 55, § 5; S. & S. 203.) May hold necessary real estate, in fee or otlierivise. A bridge company is authorized to pur- chase, appropriate and hold any interest in real estate^ whether in fee simple or a less oHtate, which in the opinion of the directors will be required for the site of the bridge and of suitable approaches thereto. — Covington Bridge Co. v. Magruder et al., 45 W. L. B. 66 (1900). § 3543. KATES OP TOLL PEESCRIBED. — The company may fix and collect reasonable rates of toll for all persons, animals, vehicles, and property passing or transported over the bridge, but such rates shall at no time exceed those collected at the Covington and Cincinnati bridge; and the company shall set up and keep in a conspicuous place, at each end of the bridge, a board on which the rate shall be written, painted, or printed in a plain and legible manner. (April 3, 1868, 65 v. 55, § 6; S. & S. 203.) § 3544. MAY LAY EAILWAY TRACKS ON BRIDGE. — The company may lay down a railway track or tracks upon the bridge and its approaches, and may contract at any agreed sum or rate, with any railroad company organized in this state in accordance with law, or any railroad company organized in any other state of the United States, for the use of the bridge, for the purposes of such railroad company; and any such railroad company organized in this state may enter into such contract with the bridge company; but the bridge company shall not have the right to charge or collect from the railroad company for the use of the bridge in the transportation over the same of cars, railroad passengers, and freights, a greater toll than the fol- lowing: Eor each ton (two thousand pounds) of freight not exceeding fifteen cents; for each passenger not exceeding fifteen cents; for each passenger, baggage, mail, or express car not exceeding one dollar; for each eight- wheeled freight car fifty cents; and for each four-wheeled freight car not exceeding twenty-five cents. (April 3, 1868, 65 V. 55, § 7; S. & S. 203.) § 3545. MORTGAGE OE ERANCHISES AND SALE OE OBLIGATIONS. — The company may include all its rights, income, profits, and franchises in any mortgage it may lawfully make, and upon a foreclosure of a mortgage of its bridge, land, and franchises, and a sale thereof, such sale shall pass to the purchaser the corporate franchises of the company as fully as the company had them at the time the mort- gage was executed; and the company may dispose of any evidence of indebtedness it may lawfully issue as is provided in section thirty-two hundred and ninety. (April 3, 1868, 65 V. 55, § 8; S. & S. 204.) § 3546. RAILROAD COMPANIES MAY SUBSCRIBE TO STOCK. — Any rail- road company or other private corporation organized under a law of this state, may become a subscriber to the capital stock of such bridge company, to an amount not exceeding one-third of such stock, or may purchase, or take by way of pledge, any of the bonds or other evidences of indebtedness issued by it. (April 3, 1868, 65 v. 55, § 9; S. & S. 204.) § 3547. CONSOLIDATION OE COMPANIES. — Such bridge company shall have the right to consolidate its capital stock with the capital stock of any bridge company in an adjoining state authorized to construct a bridge across the Ohio river, in the manner prescribed for the consolidation of railroad companies, and the two companies shall thereupon be merged into one corporation, possessing within this state all the 348 Private Corporations in Ohio. Bridge Companies, §§ 3548-3549. rights, privileges, and franchises, and subject to all the restrictions, disabilities, and duties of such corporation of this state so consolidated. (April 3, 1868, 65 v. 55, § 10; S. & S. 204.) § 3548. MAY CHANGE SPAN OR HEIGHT OF BRIDGE. — Such company may fix or change the span and altitude of any bridge which it may erect and construct, but the span shall not be less than three hundred feet in the clear over the main, channel, and not less than two hundred and twenty feet in the clear in one of the next adjoining spans, and the height of the bridge in the center of the span over the main channel shall not be less than one hundred feet above the surface of the water at low water-mark, measuring for such elevation to the bottom chord of the bridge, and such height above extreme high water-mark as may be provided in any act of congress now in force or hereafter passed; but this section shall not apply to any bridge built with a draw in accordance with the provisions of an act of congress approved July 14, 1862, entitled " an act to establish certain post roads," or any act of congress subsequently passed on the subject. (April 3, 1868, 65 v. 55, § 11; S. & S. 204.) § 3548a. MAY BORROW TO CONSTRUCT OR MAINTAIN AVENUES OR APPROACHES. — Any company which has heretofore constructed any bridge across the Ohio river, may construct, extend and maintain avenues or approaches thereto beyond the point where the same are now, or are by law authorized to be constructed, and, in the construction and maintenance of such avenues and approaches, may exercise all the rights, powers and privileges now conferred on bridge companies by the laws of the state of Ohio, and may borrow money and secure the payment of same as is provided in section 3256 of the Revised Statutes. (May 16, 1894, 91 v. 279.) § 3549. MAY OWN AND RUN CERTAIN FERRIES; RATES OF FERRIAGE. — Such companies may purchase, hold, and receive grants for, and run ferries within one-half mile of such bridges across said river, and do and perform all the necessary acts in relation thereto, but the rates of ferriage shall be subject to the control of the authorities as in case of ferries owned and run by individuals. (May 7, 1869, 66 v. 136, § 2.) PART XI. GAS AND WATER COMPANIES. § 3450. Powers of ga§ and water companies. § 3550a. In Cincinnati, gas company has powers of electric liglit company, § 3551. May contract with public authorities. § 3552. Gas company may extend pipes beyond city. § 3553. Standard measure for gas. § 3554. Meter must be sealed and stamped. § 3555. Gas companies to furnish certain apparatus. § 3556. How and wlien meters in use to be tested. § 3557. What is merchantable gas. § 3558. Agents of company may enter premises to inspect meter. § 3559. Wlren company may shut off the gas. § 3560. Penalties for tampering with meters. § 3561. Each company to provide certain apparatus. § 3561a. Laws made applicable to natural-gas companies in certain cities. § 3550. POWEES OF GAS AND WATER COMPANIES. — A company organized for the purpose of supplying gas for lighting the streets and public and private build- ings of a city, village, town, or township, may manufacture, sell, and furnish the gas required therein for such or other purposes, and a company organized for the purpose of supplying the inhabitants of a city, village, town, or township with water may sell and furnish any quantity of water required therein for such or other purposes; and such companies may lay conductors for conducting gas or water through the streets, lands, alleys, and squares in such city, village, town, or township, v/ith the consent of the municipal authorities of the city, village, or town, or with the consent of the trustees of the township, and under such reasonable regulations as they may prescribe. (April 17, 1867, 64 v. 255, § 53; S. & S. 157.) May borrow^ money and give mortgage. May borrow money to carry out the objects of its creation^ and may secure the payment of the same, by note and mortgage. — Hays v. Gallon Gas Co., 29 Oh. St. 330 (1876) ; Burt V. Rattle, 31 Oh. St. 116 (1876). Special charter, subject to control. A corporation, acting under special charter, and invested with franchises to be exercised to subserve the public interest, is, in the dis- charge of such duties, subject to legislative supervision and control, unless it clearly ap- pears from the terms of its charter that it was the intention to exempt it from such interference. — State ex rel. v. Gas Light Co., 34 Oh. St. 572 (1878); approved Zanesville v. Gas Light Co., 57 Oh. St. 1 (1889). Held, that a company holding such special charter was subject to the provisions of the act of March 9, 1867 (S. & S. 60), restricting the price to be charged for the use of maters. — State ex rel. v. Gas Light Co., 34 Oh. St. 572 (1878). No exclusive or vested right. Tills section does not grant an exclusive right to any one company to lay its con- ductors through streets. — State ex rel. v. Hamilton, 47 Oh. St. 52, 70, 71 (1890), and U. S. Sup. Ct.. See same case, (U. S. Cir. Ct.) 21 W. L. B. 94; 146 U. S. 258. City may erect own plant. Upon the termination of a contract between a gas company and the city for lighting the same, the latter refused to enter into a new contract, but built its own gas plant. Held, that no vested rights of the company were violated. — State ex rel. v. Hamilton, 47 Oh. St. 52, 72 73 (1800); approved 146 U. S. 258. May employ electricity. Corporations furnishing gas for lighting purposes may amend their charters, by-virtue of § 3238a, so as to employ both gas and elec- tricitv. — Pickard v. Hughey et al., 58 Oh. St. 577 (1898). [349] 350 Private Corporations in Ohio. Contracts with Municipalities, §§ 3550a, 3551. Permit of council — nrhen necessary. The right to operate gas works is a fran- I ehise granted by the legislature. Municipal authorities cannot arbitrarily declare it a nuisance or prohibit it in a certain district. Consent to use streets for pipes is necessary. — Defiance v. Defiance Gas, etc., Co., 12 Dec. 424 (1901). I Consent to use streets is irrevocable. See Defiance v. Defiance Gas, etc., Co., 12 Dec. 424 (1901). liighting companies cannot use natural gas. Gas companies organized under the statutes in force in 1874. " to manufacture and furnish illuminating gas," etc., are not authorized to luse natural gas to furnish light and heat. — jGas Light Co. v. Findlay, 2 C. C. 237 (1887); Is. c, 1 C. D. 463. iLiigliting companies cannot operate railTvay. Company furnishing light and heat by .means of gas and electricity cannot amend its charter so as to operate a street railway. — I State ex rel. v. Taylor, 55 Oh. St. 61 (1896). Council cannot grant exclusive right. The city council cannot, without clear legis- lative authority, grant to any one an ex- clusive right to the use of streets and alleys of the city. — State ex rel. v. Cincinnati Gas Co., 18 Oh. St. 262 (1868); approved, 115 U. S. 659, 118 U. S. 371; Street Railway Co. v. Smith et al., 29 Oh. St. 291 (1876); State ex rel. V. Hamilton, 47 Oh. St. 52 (1890) ; Gas Co. V. Newark, 7 N. P. 76 (1806) ; s. u., 8 Dec. 418. See Hamilton v. Hamilton Gas, etc., Co., 8 N. P. 510 (1901). City's regulation of price. See Cleveland Gas Co. v. Cleveland (U. S. Cir. Ct.), 35 W. L. B. 155 (1891); s. c, 71 Fed. 181; State v. Gas Co., 18 Oh. St. 262 (1808); State v. Ironton Gas Co., 37 Oh. St. 45 (1881); Cincinnati Gas Co. v. Avondale, 43 Oh. St. 257 (1885); Zanesville v. Gas Light Co., 47 Oh. St. 1 (1889); Toledo v. Gas Co., 6 N. p. 531 (1898); s. c, 8 Dec. 277; Manhat- tan Trust Co. V. Dayton Gas Co., 55 Fed. 181 (1893). For construction of contract stipulat- ing for " average price." Cincinnati v. Gas Co., 53 Oh. St. 278 (1895). Council may require report. Council having authority to regulate price of gas may require gas companies to file an- nual report, showing cost of gas, etc. Such ordinance must be of civil nature only. — Cline V. Springfield, 7 N. P. 626 (1899); s. c, 10 Dee. '389. Injury to pipe by change of grade. A gas company laying its pipes in the street does so subject to the right of the city to change the then existing grade; and in the absence of negligence the city is not liable for damages occasioned by the necessity of taking up and relaying of the pipes. — Gas Co. v. Columbus, 50 Oh. St. 66 (1893). Cannot appropriate property. A water company has no right to appro- priate land by virtue of this section or sections 3551 and 3552.— State v. Salem Water Co., 5 C. C. 58, 62 (1891); s. c, 3 C. D. 30. Iiaying of pipes for natural gas in city streets is an additional servitude. Webb et al. v. Ohio Gas Co., 16 W. L. B. 121 (1886). Construction of §§ 3550 and 3551. Brush El. Co. v. Jones EI. Co. and Brush El. Co. V. Queen City El. Co., 23 W. L. B. 329 (1890) and 5 0. C. C. 340, affirmed without report 29 W. L. B. 72 (1893). See further on subject of regulation of gas companies, etc., §§ 2478 to 2491 and notes thereto. § 3550a. IN CINCINNATI, GAS COMPANY HAS POWERS OF ELECTRIC LIGHT COMPANY. — In cities of the first grade of the first class gas companies and gas light and coke companies organized under the laws of this state for the purpose of manufacturing and supplying gas for lighting the streets and public and private buildings and places, shall have, in addition to the powers already conferred, all the powers, privileges and franchises of electric light companies to construct, maintain and operate electric light plants and stations, with all fixtures and appliances neces- sary for furnishing electric light, heat and power to such cities and the inhabitants thereof; and such companies may lease or purchase, maintain and operate existing electric light plants and stations, together with all the fixtures, appliances, equip- ments and other property thereunto belonging, including the capital stock, rights and franchises of any existing company or companies, person or persons, owning the same. (April 25, 1893, 90 v. 291.) § 3551. MAY CONTRACT WITH PUBLIC AUTHORITIES.— The municipal authority of any city or village, or the trustees of any township, in which any gas or ■water company is organized, may contract with any such company for lighting or Gas and Water Companies. 351 Regulations as to Pipes, Meters, etc., §§ 3552-3555. supplying with water the streets, lands, lanes, squares, and public places in such city, village, town, or township; but no such company shall go into operation in any city or village where such a corporation has been already formed, or is hereafter formed, until after the question of authorizing such operation has been submitted to the qualified voters of such city or village, and authorized by ordinance. (April 18, 1874, 71 V. 93, § 54; S. & S. 158; S. & C. 300.) Cited, State v. Salem Water Co., 5 C. C. 58, 63 (1891) ; s. c, 3 C. D. 30; State v. Hamilton, 47 Oh. St. 52, 09 (1890). Construction of §§ 3550 and 3551. Brush El. Co. v. Jones El. Co. and Brush El. Co. V. Queen City El. Co., 23 W. L. B. 329 (1890) and 5 0. C. C. 340, affirmed without report 29 W. L. B. 72 (1893). May be compelled to furnish gas. "Where it is the duty of a gas company to furnish gas to a city at the rates fixed by an ordinance of the city council, it may, if it re- fuse, be compelled by a mandatory injunction so to do, so long as it continues to exercise and enjoy its franchise as a gas company. — Gas Light Co. v. Zanesville, 47 Oh. St. 35 (1889). Submission to vote, necessary for for- mation only, A gas-light company (in operation) duly organized and authorized by the voters of a city to erect gas works, etc., can make legal contracts with the city to furnish gas with- out another vote of the people. This section applies only to the formation of another com- pany.— Gas Co. V. Lima, 4 C. C. 22 (1890); s. i;., 2 C. D. 396. § 3552. GAS COMPANY MAY EXTEND PIPES BEYOND CITY.— A gas com- pany in any city or village may extend its pipes used for conveying gas to the various localities and inhabitants of such city or village, to any point or place in the vicinity of such city or village outside the corporate limits thereof; but the right of way must be obtained from the corporate or other authorities, or person having control of the places to be affected by such extension. (March 30, 1859, 56 v. 92, § 1; S. & C. 351.) Extension equivalent to location of plant. Where a gas company, under the provisions of this section, extends into a village its pipes used for conveying gas, and is vested with the right of way where such pipes are laid, and uses such pipes to oonvey to the village lamps, gas manufactured outside of such village, and uses such manufactory and pipes as one plant, such company may be regarded as es- tablished in such village, within the meaning of section 2478; and such extension of pipes may be regarded as the extension of gas works for supplying the village with gas, within the meaning of section 2485. — Cincin- nati Gas Co. V. Avondale, 43 Oh. St. 257 (1885). § 3553. STANDARD MEASURE FOR GAS.— The standard or unit of measure for the sale of illuminating gas by meter shall be the cubic foot, containing sixty-two and three hundred twenty-one one-thousandth pounds avoirdupois weight of distilled or rain water, weighed in air, of the temperature of sixty-twd degrees Fahrenheit's scale, the barometer being at twenty-nine and one-half inches. (April 6, 1866, 63 V. 164, § 5; S. cfe S. 159.) § 3554. METER MUST BE SEALED AND STAMPED.— No meter shall be set unless it is tested by a meter-prover, sealed and stamped as provided in section thirty- five hundred and fifty-six, and any company authorizing the setting of a meter, or allowing the same to be used by any consumer of gas, without being so sealed and stamped, shall forfeit and pay not less than twenty-five nor more than one hundred dollars, to be recovered upon the complaint of any such consumer, in the name of the state, before any court of competent jurisdiction. (March 9, 1867, 64 v. 39, § 6; B. & S. 161.) § 3555. GAS COMPANIES TO FURNISH CERTAIN APPARATUS.— There shall be provided, at the expense of the gas companies of this state, by the state sealer of weights and measures, at the Ohio state university, a standard measure of the 352 Private Corporations in Ohio. Meters, Inspection of Gas, etc., §§ 3556-3560. cubic foot, and sucli other apparatus as in his judgment shall be necessary for the performance of tis duties under this chapter. (March 17, 1891, 88 v. 123; April 6, 1866, 63 V. 164, § 7; S. & S. 159.) § 3556. HOW AND WHEN METERS IN USE TO BE TESTED.— Meters in use shall be tested on the request of th3 consumer, in his presence, if desired, with a meter-prover tested and sealed as provided in section thirty-five hundred and sixty- one, by an officer or servant of the company; if the meter be found to be correct, the party requesting the inspection shall pay a fee of twenty-five cents, and the expense of removing the sam^e for the purpose of being tested, and the re-inspection shall be stamped on the meter; if proved incorrect, no fees or expense shall be paid by the consumer, and the company shall furnish a new meter without any charge to the con- sumer; and no gas company shall have the right to charge rent for meters. (March 9, 1867, 64 V. 39, § 9; S. & S. 161.) § 3557. WHAT IS MERCHANTABLE GAS.— Illuminating gas shall not be merchantable in this state which has a minimum value of less than twelve candles — that is, a burner consuming five cubic feet per hour shall give a light, as measured by the photometric apparatus in ordinary use, of not less than twelve standard sperm candles, each consuming one hundred and twenty grains per hour; and every gas- meter must be tested with the burner, and under the pressure best adapted to it, and the result shall be calculated at a temperature of sixty degrees Fahrenheit. (March 9, 1867, 64 V. 39, § 10; S. & S. 162.) § 3558. AGENTS OF COMPANY MAY ENTER PREMISES TO INSPECT METER. — An officer or servant of a gas company, duly authorized in writing by the president, treasurer, agent, or secretary of the company, may, at any reasonable time, enter any premises lighted with gas supplied by such company, for the purpose of examining or removing the meters, and of ascertaining the quantity of gas consumed or supplied; and if any person, at any time, directly or indirectly, prevent or hinder any such officer or servant from so entering any such premises, or from making such examination or removal, such officer or servant may make, complaint under oath, to any justice of the peace of the county wherein such premises are situate, stating the facts in the case, so far as he has knowledge thereof, and the justice may thereupon Issue a warrant, directed to any constable of the city or town where such company is located, commanding him to take sufficient aid, and repair to such premises, accom- panied by such officer or servant, who shall examine such meters and ascertain the quantity of gas consumed or supplied therein, and, if required, remove any meters belonging to the company. (April 6, 1866, 63 v. 164, § 11; S. & S. 159.) § 3559. WHEN COMPANY MAY SHUT OFF THE GAS.— If any person so sup- plied with gas neglect or refuse to pay the amount due for the same, or for the rent cf the meter, or other articles hired by him of the company, the company may stop the gas from entering the premises of such person; in such cases the officers, servants, or workmen of the gas company may, after twenty -four hours' notice, enter the prem- ises of such parties, between the hours of eight in the forenoon and four in the after- noon, and take away such meter, or other property of the company, and may discon- nect any meter from the mains or pipes of the company; and no gas company shall bave the right to refuse to furnish gas on account of any arrearages due the company for gas furnished to former occupants of the same premises. (April 6, 1866, 63 v. 164, § 12; S. & S. 160.) § 3560. PENALTIES FOR TAMPERING WITH METERS.— Every person who •willfully or fraudulently injures, or suffers to be injured, any meter belonging to any gas company, or prevents any meter from duly registering the quantity of gas stip- Gas and Water Companies. 353 Testing Apparatus — Natural Gas Companies, §§ 3561, 3561a. plied through the same, or in any way hinders or interferes with its proper action or just registration, or attaches any pipe to any main or pipe belonging to such company, or otherwise burns or uses or causes to be used, any gas supplied by such company, without the written consent of an of&cer thereof, unless the same passes through a meter set by the company, or fraudulently burns the gas of the company, or waste(s) the same, shall for every such offense, forfeit and pay to the company not more than one hundred dollars, to be recovered in an action brought by the company against such offender, and in addition thereto, shall pay the company the amount of damage by it sustained by reason of such injury, prevention, waste, consumption or hindrance. (April 6, 1866, 63 v. 164, §§ 13, 14; S. & S. 160.) § 3561. EACH COMPANY TO PROVIDE CiEBTAIN APPARATUS.— All gas companies supplying the public with illuminating gas which are not supplied with such apparatus, shall forthwith provide for their use a meter-prover, the holder of which shall contain not less than five feet, the same to be tested, stamped, and sealed by the state sealer of weights and measures, at the Ohio state university, before being used, and a photometer for the comparison of the lights of gases and candles by means of a disk. (March 17, 1891, 88 v. 123; April 12, 1876, 73 v. 227, § 3; S. & S. 159.) § 3561a. LAWS MADE APPLICABLE TO NATURAL GAS COMPANIES IN CERTAIN CITIES. — The provisions of this chapter, so far as the same may be applicable, shall apply also to any company organized for the purpose of supplying the public and private buildings and manufacturing establishments of all cities of the third grade of the second class, having a population not exceeding 16,000 at (the) federal census of A. D. 1880, with natural gas for fuel; but said company shall be liable for any damage that may result from the transportation of the same, provided the township trustees shall not assent to the laying down of any line of pipes in any township of this state, as provided in sections three thousand five hundred and fifty and three thousand five hundred and fifty-one, until the company or corporation pro- posing to lay the same shall obtain the assent, in writing of a majority of the land- owners whose lands may be adjacent to the road or highway upon which said line of t)ipes or conductors are to be laid. (May 1, 1885, 82 v. 213.) Company liable, iirithont negligence. This section imposes a duty on the company of keeping natural gas under its control, while transporting the same, and the company is liable for any damages that may result from such transportation, although not negligent LAW GOV. PRIV. COR. — 23. in regard thereto. — Gas Fuel Co. v. Andrews, 50 Oh. St. 695 (1893). Laying of pipes for natural gas in city streets is an additional servitude. Webb et al. v. Ohio Gas Co., 16 W, L. B. 121 (1886). PART XII. HYDRAULIC CORPORATIONS. § 3562. May enter upon land for survey. § 3563. When and for what purpose may appropriate land. § 3564. Certain companies released from cause of forfeiture. § 3565. May borrow money and make mortgage. § 3566. Companies may consolidate. § 3567. Notice of meeting for such purpose. § 3568. Proceedings at the meeting. § 3569. When water may be drawn from canals. § 3570. Certain provisions of chapter five applicable. § 3562. MAY ENTER UPON LAND FOR SURVEY. — A company incorporated tinder the laws of this state for hydraulic or manufacturing purposes, to which the board of public works, for a stipulated revenue, has leased and granted, or may here- after lease and grant, the right to use and employ the surplus water of any of the public canals of this state, for propelling the machinery of such company, may enter upon any land upon or across which it may be desired to build, excavate, or construct its hydraulic canal, race-ways, or water-channel, for conveying and discharging such surplus water to and from the point at which it is desired to employ the same, and survey the route thereof. (April 5, 1866, 63 v. 147, § 1; S. & S. 172.) § 3563. WHEN AND EOR WHAT PURPOSE MAY APPROPRIATE LAND. — Such company may appropriate so much of the land as it may deem necessary for its canal, race-way, or water-channel, with the necessary culverts, waste-weirs, aque- ducts, water-gates, abutments, and fixtures, and the right of way over adjacent lands sufficient to enable it to construct and repair the same, if the probate court, in tha proceedings instituted for that purpose, find that the erection and operation of its proposed works will be subservient to the public welfare. (April 5, 1866, 63 v. 147, §§ 2, 3, 4; S. & S. 173, 173.) § 3564. CERTAIN COMPANIES RELEASED FROM CAUSE OF FORFEITURE. — All hydraulic companies incorporated and organized before March 23, 1866, which became liable to a judgment of ouster from their corporate franchises, by reason of a non-user thereof for five or more years, but against which no proceeding to obtain such judgment had been commenced, and which had resumed and were then in the bona fide exercise of their franchises, are relieved from such cause of forfeiture, and no judgment for that cause shall be rendered against them, or either of them. (March 23, 1866, 63 v. 50, § 1; S. & S. 173.) § 3565. MAY BORROW MONEY AND MAKE MORTGAGE. — Any hydraulic company may, for the purpose of repairing, completing, or extending its works, bor- row money to an amount not exceeding one-half of its capital stock actually paid in, and may secure the payment of the money so borrowed by the issue of bonds or notes, bearing interest not to exceed the rate authorized by law, and secured by mortgage on its real estate, or any part thereof; but such bonds or notes shall not be issued without the assent in writing of the holders of a majority of the stock in the company. (April 25, 1873, 70 v. 160, § 1.) [354] Consolidation. 355 Hydraulic Companies, §§ 3566-3570. § 3566. COMPANIES MAY COliTSOLIDATE. — Any hydraulic company now or hereafter organized under the laws of this state, may consolidate with any other hydraulic company in this or any adjoining state, when the works of such companies are connected or proposed to be connected, which consolidation shall be by an agree- ment of the corporations, duly ratified by a vote of the holders of two-thirds of the stock of each of the companies; when so consolidated the companies shall constitute one company, and take such name as the agreement shall designate; if both are organ- ized under the laws of this state, the consolidated company shall possess all the rights, privileges, and franchises of each of the corporations parties in the agree- ment, and if one is organized under the laws of any other state, the consolidated com- pany shall possess a]l the rights, privileges, and franchises of the company organized under the laws of this state, and in either case the consolidated company shall possess and hold all the property and rights of action, subject to all liens upon the respective property of each of the companies; and all debts, liabilities, and duties of either of the companies shall henceforth attach to the new company, and may be enforced against it. (April 27, 1872, 69 v. 177, § 1.) § 3567. NOTICE OF MEETING FOR SUCH PUBPOSE. — The notice of a meet- ing to take into consideration the agreement to consolidate, shall be given to the stockholders of such companies, by the secretaries of the respective companies, by publication in a newspaper printed and published in the county where such corpora- tion is located, thirty days previous to such meeting, stating the object of the meet- ing; a printed copy of such notice shall be sent by the secretary of each company, by mail, to any stockholder whose residence is out of the county; and the publication and sending of such notice must be certified by the secretaries on their respective record books. (April 27, 1872, 69 v. 177, § 2.) § 3568. PKOCEEDINGS AT THE MEETING. — The stockholders at the meeting so called shall take into consideration the agreement to consolidate, and, after the adoption of the same, shall appoint the time and place for the election of directors and other ofiicers of the new corporation provided for in the agreement, a certified copy of which, and of the proceedings and vote on the consolidation, shall be certified by the officers of such meeting, under their seals, and be acknowledged by them before an officer authorized by law to take acknowledgment of deeds, and shall be forthwith filed in the" office of the secretary of state; and a copy of the agreement and act of consolidation so filed in the office of the secretary of state, duly certified by him, shall be evidence of the existence of such consolidated company. (April 27, 1872, 69 V. 177, § 3.) § 3569. WHEN WATEK MAY BE DRAWN FROM CANALS.— All canal com- panies and persons having oversight of any canal are prohibited from hereafter draw- ing off the water from such canal for the purpose of cleaning out the same, or making the general annual repairs thereof, and from allowing the water to remain out of the same, at any time between the thirtieth day of June and the thirtieth day of Sep- tember in any year; and if any such company or person violate the provisions of this section, such company or person shall forfeit and pay to the state not less than five hundred nor more than three thousand dollars, to be recovered in a civil action, before any court having jurisdiction thereof. (January 31, 1845, 43 v. 17, § 1; S. & C. 225.) § 3570. CERTAIN PROVISIONS OF CHAPTER FIVE APPLICABLE.— The provisions of chapter five for the foreclosure of a mortgage of a turnpike or plank- road, and the sale thereof upon B>ach mortgage or upon execution, shall apply to the foreclosure of a mortgage of the canal of any company, and to the sale thereof on such proceedings or on execution. (Apri' 16, 1857, 54 v. 179, §§ 1, 2; S. & C. 339.) PART XIII. CEMETERY ASSOCIATIONS. § 3571. May acquire land not exceeding one hundred acres. § 3572. Certain associations may acquire additional land. § 3573. Appropriation of land by cemetery associations; exceptions. § 3574. How receipts and income to be applied. §3574-1. Additional land for entrance; how secured. § 3575. Sale of lots. § 3576. Plat of grounds ; regulations. § 3577. County commissioners may purchase road to cemetery. § 3578. Exemptions of burial grounds. § 3579. May act as soldiers' monumental association. § 3580. Officers of cemetery association may appoint policemen. § 3581. Powers of association in certain counties. § 3581a. Acquisition of sale of one and in county containing city of the second class; ex- emptions; taxation. § 3582. How receipts and income to be applied. § 3583. May except and execute certain trusts. § 3584. When such corporation may hold land in village. § 3585. Powers of certain corporations. § 3586. Rights of lot owners assured. § 3586a. Rights and powers of cemetery associations. § 3586-1. Authorizing sale of certain cemeteries; application of proceeds. § 3586-2. Notice of application ; order of sale. § 3586-3. Cemetery associations may create sinking fund. § 3586-4. How such funds may be invested. § 3586-5. How expended. § 3571. MAY ACQTTIEE LAND NOT EXCEEDING ONE HXJNDBED ACRES. — A company or association incorporated for cemetery purposes may purchase, appro- priate, or take by gift or devise, and hold, not exceeding one hundred acres of land, which shall be exempt from execution, from taxation, and from being appropriated to any other public purpose, if used exclusively for burial purposes, and in no wise with a. view to profit. (March 29, 1875, 72 v. 113, § 5.) Does not exempt from assessments. The exemption from taxation does not in- clude exemption from assessment for local im- provements. — Lima v. Cemetery Ass'n, 42 Oh. St. 128 (1884). Assessment can be enforced. While the lands, so far as exempted, cannot be sold, an assessment may be enforced by such remedies as the statutes and courts of equity afford. — Lima v. Cemeterv Ass'n, 42 Oh. St. 128 (1884) ; Gilmour v. Pelton, 2 W. L. B. 158 (1877). § 3572. CERTAIN ASSOCIATIONS MAY ACQUIRE ADDITIONAL LAND. — &.ny such company or association which is limited to the ownership, by appropriation dr otherwise, of a designated number of acres of land for such purpose, may purchase, according to law, additional lands to the extent necessary for such purposes; but not more than fifty acres shall be purchased in any year, and not more in the aggregate shall be so purchased and held by any such company or association than one hundred acres. (March 20, 1877, 74 v. 60, § 1.) [356] Appropriation of Land. 357 Cemetery Associations, §§ 3573-3574-1. § 3573. APPROPRIATION OF LAND BY CEMETERY ASSOCIATIONS; EX- I CEPTIONS. — If it be necessary to acquire any lands by appropriation, such proceed- ings shall be taken therefor as are provided for the appropriation of property to the use of corporations; but no lands shall be so appropriated until the probate court is I satisfied that suitable premises can not be obtained by contract upon reasonable terms, and no lands shall be appropriated upon which there is any dwelling-house, barn, stable or other farm-buildings, or upon which there is any orchard or nursery, or any I valuable mineral or other medicinal spring, or any well actually yielding oil, or salt water, unless the same shall adjoin a cemetery already located and used, on the same or opposite side of a. public highway; nor shall any land be appropriated nor any cemetery located, whether it is being established by an association incorporated for cemetery purposes or by benevolent or religious societies, within two hundred yards of any dwelling house, unless the owner of such dwelling house gives his consent, or unless the entire tract be so appropriated as a necessary addition to or enlargement of a cemetery already located and used; provided, however, that the limit shall not be less than one hundred yards where it is sought to appropriate for cemetery purposes property adjoining a cemetery already located and used, when such dwelling house has been, erected subsequently to the laying out and establishing of such cemetery; but in cities of the third and fourth grade of the second class, where the cemetery lies within a municipal corporation, the association may, without such consent, appro- priate property within one hundred feet, or the width of a street, of any dwelling house. The provisions of this section shall not be applicable to a corporation or cemetery association, owning a cemetery of less dimensions than five acres and situate within one mile of the corporate limits of any city of the first grade of the first class. (March 23, 1893, 90 v. 103; April 2, 1886, 83 v. 63; May 1, 1885, 82 v. 217; March 6, 1880, 77 V. 41; Rev. Stat. 1880; March 29, 1875, 72 v. 113, § 5; 76 v. 137, § 5.) § 3574. HOW RECEIPTS AND INCOME TO BE APPLIED. — After paying for such land all future receipts and incomes of such company or association, whether from sale of lots, donations, or otherwise, shall be applied exclusively to laying out, preserving, protecting, and embellishing the cemetery, and the avenues leading thereto, the erection of such buildings as may be necessary for the cemetery purposes, and to paying the necessary expenses of the cemetery company or association; no debts shall be contracted in anticipation of future receipts, except for original pur- chasing, laying out, inclosing, and embellishing the ground and avenues, for which a debt or debts may be contracted not exceeding ten thousand dollars in the whole, to be paid out of future receipts; and such company or association may adopt such rules and regulations as it may deem expedient for disposing of and conveying burial lots; but any person not already the owner of a lot in the cemetery shall have the right to purchase any lot not before sold by the company or association, and have it conveyed to him by the company or association, upon tender of the usual price asked therefor by it. (March 29, 1875, 72 v. 113, § 5.) §3574-1. ADDITIONAL LAND FOR ENTRANCE; HOW SECURED. — When- ever in the judgment of the officers of any cemetery association within this state, it is necessary to secure additional land for the purpose of making an entrance to its grounds, or to improve an entrance already made, said officers may make application to the county commissioners of the county in which said cemetery is located for the appointment of appraisers; the county commissioners shall, upon such application being made to them, appoint three disinterested free-holders of the county as apprais- ers, whose duty it shall be to view the land sought to be obtained, and appraise its value, and make due return of said appraisement to the county commissioners; and when said cemetery association shall have made payment of the amount of said appraisement, together with the cost thereof, then the title to said land shall vest in said association; an appeal may be taken from the appraisement made by such 358 Private Corporations in Ohio. Cemetery Associations, §§ 3575-3580. appraisers to the probate court of the county in which such cemetery or such entrance may be located in manner provided in chapter 4, title 6, of the Revised Statutes. (April 6, 1893, 90 v. 153.) § 3575. SALE OF LOTS. — Burial-lots sold by such company or association shall be for the sole ptirpose of interments, shall be subject to the rules prescribed by the company or association, and shall be exempt from taxation, execution, attachment, or any other claim, lien, or process whatever, if used exclusively for burial purposes, and in no wise with a view to profit. (February 24, 1848, 46 v. 97, § 6; S. & C. 227.) § 3576. PLAT OF GaOtrNDS; REGULATIONS.— Every such company or asso- ciation shall cause a plat of its grounds and of the lots by it laid out, to be made and recorded, or filed in the recorder's office of the county in which situated; the lots to bs numbered by regular consecutive numbers; it may inclose, improve and adorn the grounds and avenues, erect buildings for its use, prescribe rules for inclosing and adorning lots, and for erecting monuments in the cem.etery, and prohibit any use, division, improvement, or adornment of a lot which it deems improper; and an annual exhibit shall be made of the affairs of the company or association. (March 8, 1888, 85 V. 76; R. S. 1880; February 24, 1848, 46 v. 97, § 7; S. & C. 227.) § 3577. COXJNTY COMMISSIONERS MAY PURCHASE ROAD TO CEMETERY. — The county commissioners of the several counties may, on petition for that purpose by any turnpike road company, purchase so much of any turnpike road as lies between any city or village and any cemetery or public burying-ground, and make the sam^e a free road to such cemetery or burying-ground, the cost of the same to be paid out of the county bridge fund; and so much of such road as is so purchased by the county commissioners shall be kept in repair by them, and the cost of such repairs shall be paid for out of the county general fund. (March 17, 1877, 74 v. 40, § 1.) § 3578. EXEMPTIONS OF BURIAL GROUNDS.— Lands appropriated and set apart as burial grounds, either for public or private use, and so recorded or filed in the recorder's office of the county where the same are situate, or any burial ground that has been used as such for fifteen years, shall not be subject to sale on execution on any judgment, to taxation to dower, nor to compulsory participation (partition); but land so appropriated and set apart as a private burial ground shall not be so exempt if it exceed in value the sum of fifty dollars. (March 8, 1888, 85 v. 76; R. S. 1880; 33 v. 11, § 11, (§ 1); S. & C. 227.) See note under § 3571. § 3579. MAY ACT AS SOLDIERS' MONUMENTAL ASSOCIATION.— Any such company or association may act either as a soldiers' monumental or as a cemetery association, and may, as it shall elect, take charge of the management of cemetery grounds, or monuments especially erected in honor of soldiers or seamen who have died in the service of the state, or of the United States, or both; and monuments, and the surroundings thereof, erected in honor of deceased soldiers or seamen, shall be protected by and under the penalties prescribed in the statutes for the protection of cemeteries and burial-grounds. (March 16, 1865, 62 v. 44, § 1; S. & C. 68.) § 3580. OFFICERS OF CEMETERY ASSOCIATION MAY APPOINT POLICE- MEN. — The trustees, directors, or other officers of any cemetery company or associa- tion, whether incorporated or unincorporated, and township trustees having charge of township cemeteries, may appoint as many day and night watchmen of their grounds as they deem expedient. Such watchmen, and all superintendents, gardeners and agents of such company or association or of said township trustees, stationed on the grounds, may take and subscribe, before any mayor or justice of the peace in the town- Receipts and Income. 359 Cemetery Associations, §§ 3581-3582. ship where such grounds are situate, an oath of office similar to the oath required by law of constables, and upon taking such oath, such watchmen, superintendents, gardeners, or agents shall have, exercise and possess all the powers of police officers within and adjacent to the cemetery grounds, and any person violating the by-laws, rules and regulations adopted by such trustees, directors or other officers, or the laws of this state in reference to the protection, good order, care and preservation of ceme- teries, and the trees, shrubbery, structures, and adornments therein, shall be guilty of a misdemeanor, and fined in any sum not more than fifty dollars nor less than five dollars; and such watchmen, superintendents, gardeners and agents may arrest, on view, all persons found violating the provisions of this section, and bring such per- sons so offending before the mayor or justice of the peace within such township, to be dealt with according to law. (April 12, 1889, 86 v. 254; Bev. Stat. 1880; April 6, 1869, 66 V. 48, § 2; S. & S. 69.) § 3581. POWERS OF ASSOCIATION IN CERTAIN COUNTIES. — The trustees of any cemetery company or association, in any county containing a city of the first class, may purchase, or take by gift or devise, land for the sole and exclusive use of a cemetery, not exceeding five hundred acres in extent, and hold the same exempt from execution, and from appropriation for public purposes, three hundred acres of which shall be exempt from all taxation; and the trustees, whenever in their opinion any portion of their lands is unsuitable for burial purposes, may sell such portion, and apply the proceeds thereof to the general purposes of the company or association; but upon such sales being made, the lands so sold shall be returned by the trustees to the auditor of the proper county, to be by him placed upon the grand duplicate for taxation. (April 3, 1866, 63 v. 88, § 1; April 6, 1870, 67 v. 25, § 1; S. & S. 69.) Must be in actual use as cemetery. The mere purchase of additional ground, on which some -work has been done in preparing it for burial purposes, but which has not been platted, and in which no interments have been made, does not exempt it from tax. — German Cemetery v. Brooks, 8 C. C. 439 (1894); s. u., 4 C. D. 478. § 3581a. ACQUISITION OB SALE OF LAND IN COUNTY CONTAINING CITY OF THE SECOND CLASS; EXEMPTIONS; TAXATION. — The trustees of any cemetery company or association in any county containing a city of the second class, may purchase or take by gifts or devise, land for the sole and exclusive use of a cemetery, not exceeding three hundred acres in extent, and hold the same exempt from execution, and from appropriation for public purposes, two hundred acres of which shall be exempt from all taxation; and the trustees whenever in their opinion any portion of their lands is unsuitable for burial purposes, may sell such portions, and apply the proceeds thereof to the general purposes of the company or association; but upon such sales being made, the lands so sold shall be returned by the trustees to the auditor of the proper county, to be by him placed upon the grand duplicate for taxation. (April 1, 1896, 92 v. 114.) § 3582. HOW RECEIPTS AND INCOME TO BE APPLIED. — The receipts and income of such company or association, whether derived from the sale of lots, from donations, or otherwise, shall be applied to the payment of the purchase of such lands, to the laying out, preservation, protection, and establishment of the cemetery, and Ihe avenues within the same, to the erection of such buildings as may be necessary, and to the general purposes of such company or association; no debts shall be con- tracted in anticipation of future receipts, except for the original purchase of the land, and laying out, inclosing, and embellishing the grounds, and avenues therein; and no part of the proceeds of land sold, or any of the funds of any such company or asso- ciation, shall ever be divided to its stockholders or lot-owners, but all its funds shall be used exclusively for the purpose of the company or association, as herein above specified, or invested in a. fund the income of which shall be. used and appropriated as aforesaid. (April 6, 1870, 67 v. 35, § 2.) 360 Private Corporations in Ohio. Cemetery Associations, §§ 3583-3586-1. § 3583. MAY ACCEPT AND EXECUTE CERTAIN TRUSTS. — Every cemetery company or association shall have full power and capacity to take, hold, possess, use, enjoy, and occupy such property of any kind as may be hereafter legally given, granted, or devised to it, for the purpose of building or repairing fences, graves, vaults, monuments, walks, cemetery lots, drives, or avenues in its cemetery, or for the purpose of building or repairing therein any particular fence, cemetery lot, grave, vault, monument, walk, drive, or avenue, and to appropriate such property, or the proceeds thereof, to any of the foregoing purposes, according to the terms of the trust for which the same may be given, granted, or devised as aforesaid. (April 11, 1876, 73 V. 210, § 1.) § 3584. WHEN SUCH CORPORATION MAY HOLD LAND IN VILLAGE.— Any association of persons who have been and are acting as a cemetery association, and have purchased and improved land for cemetery purposes, paid for by subscrip- tions of lot-holders and the sale of lots, and who are acting through a board of trus- tees chosen by members of the association, may, when the lands thus occupied for cemetery purposes have been brought or held within the corporate limits of any vil- lage subsequently to the time of their purchase and improvement, become incorporated for cemetery purposes, as though the lands held by the association were outside of such corporate limits. (May 7, 1878, 75 v. 132, § 1.) § 3585. POWERS OE CERTAIN CORPORATIONS. — Any association organized under the preceding section may, as the successor of the original association, through and by the concurrence of the original association, take possession of, hold, and use for cemetery purposes, all the property belonging to and held by the original asso- ciation for such purposes, with full power to sell and convey lots, and to do all and singular the things necessary in the proper arrangement of the affairs of such asso- ciation. (May 7, 1878, 75 v. 132, § 2.) § 3586. RIGHTS OE LOT-OWNERS ASSURED. — All rights of present lot- owners in the cemetery grounds of the original association are reserved and assured to them, and made valid, without reference to the form of conveyance issued to them by the trustees of the original association. (May 7, 1878, 75 v. 132, § 3.) § 3586a. RIGHTS AND POWERS OF CREMATORY ASSOCIATIONS. — Any company or association incorporated for the purpose of the erection and maintenance of a crematory or other place or building for cremating the dead, may exercise all the rights and powers conferred by this chapter, subject to the same conditions; pro- vided, however, that no building shall be erected for any such purpose by any com- pany, association, person or persons within two hundred yards of any dwelling-house, unless the owner of such dwelling-house give his consent, and it shall be unlawful for any person or persons, company, association or firm to establish a morgue on any street or part of a street upon which are dwelling-houses, unless the owner or occu- pants of such dwelling-houses within two hundred yards (200 yards) of said proposed morgue give their written consent thereto; provided that this act shall not apply to any crematory already built, or morgue already established. (April 3, 1900, 94 v. 95; April 11, 1893, 90 v. 161.) § 3586-1. Sec. 1. AUTHORIZING SALE OF CERTAIN CEMETERIES; APPLI- CATION OF PROCEEDS. — The trustees of any cemetery association, whose cemetery . is within the limits of any city or village, interments in which have b.een prohibited by ordinance of such municipal corporation, or whose cemetery has been abandoned as a place for the burial of the dead, or which association is involved in debt which it is unable to pay, may apply by petition to the court of common pleas, of the county wherein such cemetery is located, for the sale of the whole or a portion of said ceme- tery grounds, and the court may order the same to be sold, either the whole or such Sinking Fund. 361 Cemetery Associations, §§ 3586-3-3586-5, portion thereof as the court may direct, and the money derived from such sale shall, under the direction of the court, be applied to the costs and expenses of the removal and reinterment of the remains of the dead therein, and to the payment of the debts, if there be any, of such cemetery association, and the surplus, if any, shall be invested upon interest, and the income therefrom applied to keeping in repair the unsold por- tion thereof, or if the entire premises be sold, then the surplus shall be divided pro- rata along the lot-owners, and the court shall grant such time for the removal of the dead, after the confirmation of such sale, as it may desm necessary. (February 1, 1888, 85 V. 7; April 29, 1885, 82 v. 164.) §3586-2. Sec. 2. NOTICE OF APPLICATION; ORDER OF SALE. — Notice of the filing of such application shall be given by publication in some newspaper of gen- eral circulation in the county where it is filed, for four consecutive weeks, setting forth the object and prayer thereof, and that any person claiming an interest in the subject-matter of such petition may appear and file an answer therein; and the court shall, on final hearing of the case, make such order or decree as will best secure the rights of the persons having an interest in such cemetery. (April 29, 1885, 82 v. 164.) § 3586-3. Sec. 1. CEMETERY ASSOCIATIONS MAY CREATE SINKINO FUND. — Any cemetery association which has been organized under any general or special law of this state is hereby fully authorized and empowered to create a sink- ing fund, out of any surplus money they may have on hand, or which may have been given to said association by will, deed or otherwise. (April 3, 1883, 80 v. 91.) § 3586-4. HOW SUCH FUNDS MAY BE INVESTED. — That it shall be lawful for any cemetery association so organized to invest any sum of money appropriated to said sinking fund in any bonds of the United States, state of Ohio or of any city of the state of Ohio, or to loan it upon first mortgage of real estate in the state of Ohio worth double the loan, or upon collateral of any of the above securities of equal face value with the loan; provided, however, that it shall not be lawful to loan any- such money to any member of said cemetery board. (April 3, 1883, 80 v. 91.) § 3586-5. Sec. 3. HOW EXPENDED. — That all moneys thus appropriated to any sinking fund, and all interest derived thereon shall be held exclusively for the enlargement of cemetery grovinds, their improvement, repair or adornment, or for, constructing or keeping in repair any buildings, monuments or other structures deemed necessary or appropriate for cemetery grounds, and shall not be appropriated or used for any other purpose whatever. (April 3, 1883, 80 v. 91.) PART XIV. LIFE INSURANCE COMPANIES. § 3587. For what purposes companies may be formed. §3588. Articles of incorporation; what to contain. § 3589. Articles must be approved by the attorney-general. § 3590. Notice of opening books of subscription. I 3591. The whole capital must be paid in, and invested. § 3592. A company may increase its capital stock. § 3593. Deposit of secureties to be made with superintendent. § 3594. Company may change such deposits, and collect interest. § 3595. When company may commence business. § 3596. What kind of business such company may do. § 3597. Definitions. Consolidation and reinsurance. Petition to superintendent of insur- ance. Notice to policy holders. Commission to hear and determine petition. Costs. Penalties. § 3598. How home companies may invest accumulations. § 3599. What real estate may acquire. § 3600. When real estate must be sold. § 3601. Certain actions authorized. § 3602. What dividends may be paid. § 3603. Home companies must make annual reports to superintendent. § 3604. Companies organized by congress or in other state must procure license. § 3605. Deposit with superintendent of insurance or other officer. I 3606. Must file copy of charter, and a statement. § 3607. Must also file a waiver. § 3608. Must file annual statement as to tontine companies. § 3609. Renewal certificate of authority. I 3610. Foreign companies must make deposit, and appoint agent for service. § 3611. Annual and other statement to be filed. .§3612. Supplementary statement. § 3613. ReneAval certificates of authority. § 3614. Certificate of authority to act as agent. g 3615. Penalties for failure to make statement. § 3616. Duration of licenses. § 3617. When foreign companies must appoint agents to receive service. I 3618. Who are agents to receive service. § 3619. Companies may change securities, and collect interest. § 3620. Authority to be withdrawn in certain case. ^ 3621. Policy holders entitled to copies of applications. § 3622. Effect of failure to deliver copies. § 3623. C'opies of applications to accompany policies issued. ^ 3624. Applications, etc., in cipher void. § 3625. When a false answer is material. f 3626. Wiien companies estopped from certain defenses. § 3627. This chapter applies to companies heretofore organized. § 3628. Husband may insure for benefit of wife and children. Insurance exempt from claims of creditor. Premiums paid in fraud inures to creditor. When company liable to creditor. § 3629. Wife may insure life of husband. [3621 Life Insurance Companies. 363 §3630. Mutual protection associations; powers; accumulations; certilicates; by-laws. § 3630a. Mutual aid associations annually to file with superintendent of insurance sworn statement of its transactions; what such statements to contain. § 3630b. To make such report to superintendent within ninety days. S 3630c. Failure to file statement to work forfeiture of franchise; attorney -general to in- stitute proceedings. § 3630d. Superintendent of insurance may cause examination to be made. § 3630e. Rules under which foreign associations may do business in this state; certificate; revocation; annual statement; obligations similar to those of other states. § 3630f. When action against such association may be brought. § 3630g. Mutual protection associations and their agents; how restricted in the issue of policies; penalty; accident companies. § 3630h. Expenses; how paid. § 36301. Against personal injury and loss of life ; against expenses and loss of time occa- sioned by injury or sickness; expenses, how met; expense, loss, and guaranty funds; separation of such funds; notice to persons assessed; bond required of only purely accident companies. % 3630J. Foreign casualty companies, admission. § 3631. No agent to collect dues without giving bond; bond of treasurer of association. J 3631a. Mutual benefit, etc., societies excepted. When associations become subject to in- surance laws. Bond of treasurer. § 3631-1. Insurance companies forbidden to discriminate against persons of African descent in premiums. § 3631-2. What shall be done when application of persons of color is refused. § 3631-3. Penalty for violating this act. § 3631-4. Premiums for life or endowment insurance; unlawful to discriminate. § .3631-5. Penalty for violation by corporation of provisions of this act. § 3631-6. Violation by officer or agent of corporation. § 3631-7. Revocation of license for violation. § 3631-8. Certain incorporated companies may purchase and own stock in other companies. § 3631-9. To be liable in corporate capacity same as individuals. § 3631-10. Directors; when and how elected. Feateenal Oedees. § 3631-11. Fraternal beneficiary association defined; as to benefits in detail. § 3631-12. Conditions upon which society, order, or association which has been operating, may continue. § 3631-13. Conditions upon which foreign association admitted. I 3631-14. Annual report of associations. § .3631-15. As to process. § 3631-16. Permit to do business; fee; annual fee thereafter. § 3631-17. Procedure and requirements in formation of association; annual meeting for election of managers or trustees. I 3631-18. Benefits not liable to attachment, seizure, etc. § 3631-19. Legislative. § 3631-20. Penalty for false or fraudulent statement or representation. §3631-21. Exclusion of association; proceedings in injunction; reinstatement. § 3631-22. Who subject to penalty provided in preceding section. §3631-23. Conflicting or inconsistent laws repealed; lodges, etc., to which act is applicable. Stipulated Peemii'm Plan. § 3631-24. Incorporation of companies for life insurance on the stipulated premium plan. § 3631-25. Completion of organization. Deposit of securities. §3631-26. Life insurance on stipulated premium plan defined; corporations subject to pro- visions of act; existing statutes. 364 Private Corporations in Ohio. Life Insurance Companies, Fomiation, etc., §§ 3587-3588. §3631-27. Existing coi'porations, etc., may accept provisions of act; how. Existing contract / § 3631-28. § 3631-29. § 3631-30. § 3631-31. § 3631-32. § 3631-33, § 3631-34. § 3631-35. § 3631-36. § 3631-37. § 3631-38. or liability of corporation not affected by its reincorporation or acceptance. Peiading action or rights unaffected. Alinimum premiums. Reserve fund. Impairment of fund remedied. Duty of superintendent in case of failure to remedy impairment. Limited payment policies. Cash values. Distribution of surplus. What policy shall set forth. Obligation of company to beneficiaries or insured. Refusal or failure to pay. Foreign corporations must procure certificate of authority. Renewal certificates. Superintendent may refuse certificate. Obligations similar to those of either states. Foreign company to furnish evidence to entitle it to license. Discrimination prohibited. Contracts by agents. Rebate of premium prohibited. Policy holder not personalty liable for losses of corporation. Withdrawal of securities upon relinquishment of business. Taxes. § 3587. FOR WHAT PTJBPOSES COMPANIES MAY BE FORMEB. — Any num- ber of persons, not less than thirteen, may associate and form a company to make insurance upon the lives of individuals, and every insurance appertaining thereto or connected therewith, on the mutual or stock plan, and grant, purchase, or dispose of annuities. (April 27, 1872, 69 v. 150, § 1.) Must deposit security. Companies organized under this section must furnish security for th^ assured, as pro- vided in § 3593. — State v. Moore, 38 Oh. St. 7, 11 (1882). Classification of companies. Life insurance companies, other than fra- ternal, are divided into two classes, first those companies that have a capital stock, or, at least, capital; and, second, those that have neither capital stock nor capital. The general powers of the former are granted by § 3587 ; those of the latter by § 3630. — Ohio ex rel. V. Ins. Co., 58 Oh. St. 1 (1898). PoTver of each class. The first class is limited to insuring on the " mutual or stock " plan, the other class, to insuring " on the assessment " plan. It fol- lows then, that while Ohio corporations com- ing under the first class have no power to do business under the assessment plan, yet a foreign corporation having such power under its charter, should be allowed to do business in this state. — Ohio ex rel. v. Ins. Co., 58 Oh. St. 1 (1898). Incidental ponrers. Unless restrained, corporations have inci- dental powers to make any contract. But such contracts must not be contrary to the objects for which the corporation is created. — Strauss v. Ins. Co., 5 Oh. St. 59 (1856); White's Bank v. Ins. Co., 12 Ohio St. 601 (1861). Insurance business may lawfully be confined to corporations. Commonweath v. Yrooman, 164 Pa. 306 (1894). Policy Issued to minor not void. A policy issued on the life of a minor is not absolutely void, nor are notes given by him for premium void, although the assured has power to elect to avoid both on arriving at majority. — Ins. Co. v. Hillard, Admr., 44 W. L. B. 353 (1900). § 3588. ARTICLES OF INCORPORATION; WHAT TO CONTAIN.— Such per- sons shall file in the office of the secretary of state articles of incorporation, signed by them, setting forth their intention to form a company for the purposes named in this chapter, which articles shall comprise a copy of the charter they propose to adopt; and the charter shall set forth the name of the company, which shall not be the cor- porate naide or title used to designate any fire, life, marine, or other insurance com- pany already existing under the laws of this state, the place where it is to be located, the kind of business to be undertaken, the manner in which the corporate powers of the company are to be exercised, the number of directors or trustees, who must be stockholders, or members, and which number may be increased, at the will of the stockholders representing a majority of the stock, or of a majority of the members, to any number not exceeding twenty-one, the manner of electing trustees or directors and other officers, a majority of whom shall be citizens of this state, and the time of such Life Insurance Companies. 365 Articles — Capital StocJi, etc., §§ 3589-3591. election, the manner of filling vacancies, tbs amount of capital to be employed, and such other particulars as may be necessary to explain and make manifest the objects and purposes of the company, and the manner in which it is to be conducted. (April ■27, 1872, 69 v. 150, § 4; April 11, 1863, 60 v. 75, § 1; May 14, 1878, 7j v. 557, § 1; S. & S. 217; S. & S. 219.) § 3589. ARTICLES MUST BE APPKOVED BY THE ATTOBWEY-GENBRAL.— When such articles are filed in the oflace of the secretary of state, and the name assumed by the company is not so nearly similar to the name of any other company organized in this state as to lead to confusion or uncertainty on the part of the public, the secretary of state shall submit the same to the attorney-general for examination, and if found by him to be in accordance with the provisions of this chapter, and not inconsistent with the constitution and laws of the United States and of this state, he shall certify to and deliver the same to the secretary of state, who shall cause the same, with the certificate of the attorney-general, to be recorded in a book to be kept for that purpose, and upon application of the signers thereof the secretary of state shall furnish to them a certified copy of such articles and certificate. (April 27, 1872, 69 V. 150, § 5; May 14, 1878, 75 v. 557, § 1; S. & S. 219.) the auditor) in determining the name under which the association may do business is not eonelusive as to another association claiming a prior right to the use of same or similar name. — Grand Lodge v. Graham, 65 N. W. 837 (III.) (1896). See generally American Order, etc., v. Mer- rill, 151 Mass. 558 (1890); High Court, etc., V. Commissioner, 73 N. W. 326 (1897). Similarity of names. The power vested in the superintendent of insurance to reject any name or title applied for by any company if it is too similar to one already appropriated, is limited to domestic coi-porations. — Ins. Co. v. Van Cleave, 47 L. E. A. (111.) 795 (1898). Same subject; action of officer not con- clusive. The action of the proper officer (in this case § 3590. NOTICE OF OPENING OF BOOKS OF SUBSCRIPTION.— When the signers of the articles of incorporation receive from the secretary of state a certified copy thereof, and desire to organize such company, they shall publish their intention in a paper published and having general circulation in the county in which the com- pany is to be organized; and when such publication has been made in such newspaper for six weeks, they may open books to receive subscriptions to the capital stock, keep such books open until the amount required by this chapter is subscribed, distribute the stock among the subscribers, if more than the necessary amount is subscribed, collect the capital, and complete the organization of the company. (April 27, 1872, 69 V. 150, § 6; S. & S. 219.) § 3591. THE WHOLE CAPITAL MUST BE PAID IN, AND INVESTED.— No joint stock company shall be organized under this chapter with a less capital than one hundred thousand dollars, and the whole capital shall, before proceeding to business, be paid in and invested in treasury notes, in stocks or bonds of the United States, in stocks or bonds of the state of Ohio, or of any municipality or county thereof, or in mortgages on unincumbered real estate within the state of Ohio worth double the amount loaned thereon. If the amount loaned shall exceed one-half the value of the land mortgaged, exclusive of structures thereon, such structures shall be insured in an authorized fire insurance company in any amount not less than the difference between one-half the value of such land exclusive of structures, and the amount leaned, and the policy assigned to the mortgagee. (March 5, 1902, 95 v. 38; April 27, 1894, 91 V. 39; April 9, 1873, 70 v. 118, § 7; S. & S. 219.) Note and mortgage given for stock, how regarded. Where one executes to the company his note and mortgage in part payment of stock sub- scriptions, the stock will be regarded as paid in, and the note and mortgage given for money loaned or invested by the company. Such stockholder's liability on his note and mort- gage is no less than that of any other bor- rower, nor are his rights superior to a non- borrowing stockholder. — Union Cent. Ins. Co. V. Curtis, 35 Oh. St. 343, 350 (1880). As to investments, see Ehrraan v. Ins. Co., 35 Oh. St. 324 (1880); Ins. Co. v. Jones, 35 Oh. St. 351 (1880); Ins. Co. v. Curtis, 35 Oh. St. 343 (1880). See notes under § 3598. 366 Private Corporations in Ohio. Capital Stock — Comxaenoing Business, etc., §§ 3592-3596. § 3592. A COMPANY MAY INCREASE ITS CAPITAL STOCK.— When a com- pany organized under any law of this state requires, in the opinion of the board of directors thereof, a larger amount of capital than that fixed by its articles of incor- poration, they shall, if authorized by the holders of two-thirds of the stock, file with the secretary of state a certificate setting forth the amount of such desired increase, and thereafter such company shall be entitled to have the increased amount of capital fixed by the certificate, and the same shall be invested as required by the preceding section. (April 27, 1872, 69 v. 150, § 6.) § 3593. DEPOSIT OF SECTJKITIES TO BE MADE WITH SUPERINTENDENT. — Any company may invest its capital in the stocks, bonds, or mortgages mentioned in section thirty-five hundred and ninety-one, F^d change and invest the same, or any part thereof in like manner, at pleasure; but no company shall commence business until it has deposited with the superintendent of insurance at least one hundred thou- sand dollars in the stocks, bonds, and mortgages aforesaid, or one or more of them, duly made or assigned to the superintendent in trust for the purposes mentioned in this chapter; and when any mortgage of real estate is assigned to the superintendent, the assignment shall be immediately entered in the records of the county in which the real estate is situate, the fee for the recording of which shall be paid by the com- pany. (April 27, 1872, 69 v. 150, § 8; S. & S. 219.) to the company, for the purpose of being de- posited with the superintendent, upon the insolvency of the company, such securities are subject to the claims of the policy holders; but as against general creditors, the same defenses may. be invoked as against the com- pany. The makers of such aecommodatioD securities, as against policy holders. a'*e estopped to deny the existence of the cor- poration and its powers to issue such policies. — Falkenbach v. Patterson, 43 Oh. St. 359 (188,5). See Cooke v. Warner, 56 Conn. 234 (1888). Deposit primarily for benefit of policy holders. The deposit is solely for the security of policy holders, and not for the security of general creditors, and before resort can be had to this fund, there must be shown some spe- cific amount due, or that may become due, on account of such policy holders. — Falkenbach V. Patterson, 43 Oh. St. 359 (1885). Accommodation securities accrue to policy holders, not to general cred- itors. Where accommodation securities are given § 3594. COMPANY MAY CHANGE SUCH DEPOSITS, AND COLLECT INTER- EST. — The superintendent of insurance shall hold such securities as security for policyholders in the company; but so long as any company so depositing continues solvent he shall permit it to collect the interest or dividends on its securities so deposited, and from time to time to withdraw such securities, or any part thereof, on depositing with him other securities of the kinds heretofore named, and of equal value with those withdrawn. (April 27, 1872, 69 v. 150, § 9; S. & S. 220.) § 3595. WHEN COMPANY MAY COMMENCE BUSINESS.— When the company is fully organized, and has deposited the requisite amount of securities as aforesaid, the superintendent shall, unless he find the name assumed by the company so nearly similar to the name of another company organized in this state as to lead to confusion or uncertainty on the part of the public, furnish the company with a certificate of such deposit, which, with a certified copy of the papers required by this chapter, when filed in the county recorder's office of the county wherein such company is located, shall be the authority to commence business and to issue policies, and the same may be used in evidence for and against the company in all actions. (April 27, 1872, 09 v. 150, § 10; May 14, 1878, 75 v. 557, § 2; S. & S. 220.) § 3596. WHAT KIND OP BUSINESS SUCH COMPANIES MAY DO.— No com- pany, organized under the laws of this state, shall undertake any business or risk, except as herein provided, and no company, partnership or association, organized or incorporated by act of congress, or under the laws of this or any other state of the United States, or by any foreign government, transacting the business of life insur- ance in this state, shall be permitted or allowed to take any other kind of risks, except Life Insurance Companies. 367 Consolidation — Re-insurance, etc., § 3597. those connected with, or appertaining to making insurance on life or against acci- dents to persons, or sickness, temporary or permanent physical disability, and grant- ing, purchasing and disposing of annuities; nor shall the business of life insurance, or life and accident insurance, in this state be in any wise conducted or transacted by any company, partnership or association which in this state, or any other state or country, makes insurance on marine, fire, inland, or any other risk, or does a banking or any other kind of business in connection with insurance. (May 2, 1902, 95 V. 355; March 27, 1888, 85 v. 119; R. S. 1880; AprU 4, 1872, 69 v. 150, § 3; February 20, 1874, 71 v. 12, § 2; S. & S. 218.) Ijoan on note and mortgage, not bank- ing. The loaning of money, secured by note and mortgage, is not the doing " of a banking, or other kind of business." — National Bank v. Ins. Co., 41 Oh. St. 1 (1885); Hall v. Kum- mero et al., 7' N. P. 394 (1897) ; s. c, 5 Dec. 176. Purchase of bill of exchange, legal. A company authorized to loan its funds, but prohibited from using the same in the business of exchange or money broker, may lawfully purchase a bill of exchange. — White's Bank v. Ins. Co., 12 Oh. St. 601 (1861). § 3597. INSURANOE COMPAITIES; DEFINITION; CONSOLIDATION AND RE-INSURANCE; PETITION TO SUPERINTENDENT; NOTICE TO POLICY HOLDERS; HEARING OF PETITION BY COMMISSION; COSTS; PENALTY.— The word company or companies when used in this act shall mean any corporation or association authorized to do the business of life, accident or health insurance, either on the stock, mutual, stipulated premiums, assessment or fraternal plan. No company organized under the laws of this state to do the business of life, accident or health insurance, either on stock, mutual, stipulated premiums, assessment or fraternal plan, shall consolidate with any other company, or reinsure its risks, or any part thereof with any other company, or assume or reinsure the whole of (or) any portion of the risks of any other company, except as hereinafter provided; but no"thing herein con- tained shall prevent any such company from reinsuring a fractional part, not exceed- ing one-half, of any single risk. When any such company shall propose to consolidate with any other company, or enter into any contract of reinsurance, it shall present its petition 'to the superintendent of the insurance department of this state, setting forth the terms and conditions of such proposed consolidation or rein- surance, and praying for the approval or of any modification thereof, which the com- mission hereinafter provided for may approve. The superintendent shall thereupon issue an order of notice, requiring notice to be given by mail to the policy-holders of such company, of the pendency of such petition, and the time and place at which the same will be heard, and the publication of said order of notice and said petition, in five daily newspapers designated by the superintendent, at least one of which shall be published in the city of Columbus, for at least two weeks before the time appointed for the hearing upon said petition. The governor of the state, or in event of his inability to act, some competent person resident of the state to be appointed by him, the attorney-general of the state, and the superintendent of insurance of the state, shall constitute a commission to hear and determine upon said petition. At the time and place fixed in said notice, or at such time and place as shall be fixed by adjourn- ment, said commission shall proceed with said hearing, and may make such examina- tion into the affairs and condition of said company as it may deem proper. The superintendent of the insurance department of this state shall have the power to summon and compel the attendance and testimony of witnesses and the production of books and papers before said commission. Any policy holder or stockholder of the above-named company or companies may appear before said commission and be heard in reference to said petition. Said commission, if satisfied, that the interests of the policy holders of such company or companies are properly protected, and that no reasonable objection exists thereto, may approve and authorize the proposed con- solidation or reinsurance, or of such modification thereof as may seem to it best for the interests of the policy holders, and said commission may make such order with reference to the distribution and disposition of the surplus assets of any such company 368 Private Corporations in Ohio. Investmer.ts — Real Estate, §§ 3598, 3599. thereafter remaining, as shall be just and equitable. Such consolidation or reinsur- ance shall only be approved by the consent of all the members of said commission, and it shall be the duty of said commission to guard the interests of the policy holders of any such company or companies proposing to consolidate or reinsure. All expenses and costs incident to proceedings under this section shall be paid by the company or companies bringing said petition. Any officer, director or stockholder of any such company or companies violating or consenting to the violation of this section shall be punished by fine of not less than ten thousand dollars, and by imprisonment in a county or city jail for not less than one year. (April 6, 1900, 94 v. 103; April 15, 1880, 77 V. 267; April 27, 1872, 69 v. 150, § 2; S. & S. 218.) See § 3691-13. § 3598. HOW HOME COMPANIES MAY INVEST ACCtTMULATIONS.— A company organized under the laws of this state may invest its accumulations as fol- lows, and may sell, change, or re-invest the same, or any part thereof, at pleasure: 1. In United States, state, county, or city bonds, if the market value of the "bonds at the date of purchase, is at least eighty per cent, of their par value. 2. In bonds and mortgages upon unincumbered real estate, the market value of which real estate is at least double the amount loaned thereon, at the date of the in- vestment. If the amount loaned shall exceed one-half the value of the land mortgaged, exclusive of structures thereon, such structures shall be insured in an authorized fire insurance company in an amount not less than the difference between one-half the value of such laud, exclusive of structures, and the amount loaned, and the policy assigned to the mortgagee; and the value of such real estate shall be determined by a valuation, made under oath, by two real estate owners, residents of tho county where the real estate is located. 3. In loans upon the pledge of such bonds or mortgages, if the ctirrent market value of the bonds or mortgages is at least twenty-five per cent, more than the amount loaned thereon. 4. In loans upon its own policies, not exceeding the reserve or present value thereof computed according to the American experience table of mortality, with interest at four per cent., the same being the amount of debts of life insurance com- panies by reason of their outstanding policies in gross. This section shall not prohibit any company from accepting any other assets than herein enumerated in payment of debts due the company, in order to protect its interests, or from acquiring real estate for its own use, or by foreclosure in accordance with the laws of the state. (March 5, 1902, 95 v. 39; May 14, 1878, 75 v. 576, « 11; S. & S. 220.) Title of property acquired in an unau- thorized manner. Where property which a corporation, under certain circumstances, is authorized to ac- quire, is purchased in a mode or for a pur- pose not authorized, the title of the corpora- tion to the property cannot be defeated by a party, who is a stranger to the agreement by which the property was acquired, and who is not injured by the transfer. — Ehrman v. Ins. Co., 35 Oh. St. 324 (1880). Loans made contrary to statute, void. A loan made in contravention of subdivi- sion 4 of this section cannot be enforced, and all agreements connected therewith are void. — Hoover v. Life Ins. Co.. 7 N. P. 369: s. t., 6 Dec. 432; modified, 61 Oh. St. 656 (1899). Substantial compliance sufficient. 1 A loan made on a promissory note and mortgage instead of bond and mortgage is a. substantial compliance, and valid. (Held, as to foreign corporation.) — National Bank v. Ins. Co., 41 Oh. St. 1 (1885). See notes under § 3591. § 3599. WHAT BEAL ESTATE THEY MAY ACQUIRE.— No company organ- ized under the laws of this state shall purchase, hold, or convey real estate, except for the purposes and in the manner herein set forth, to wit: 1. Such as is requisite for its immediate accommodation in the transaction of its business; or, 2. Such as has been mortgaged to it in good faith, by way of security for loans previously contracted, or for money due; or. Life Insurance Companies. 369 Dividends, Reports, §§ 3600-3603. 3. Such as has been conveyed to it in satisfaction of debts previously contracted in the course of its dealings; or, 4. Such as it has purchased at sales upon judgments, decrees, or mortgages obtained or made for such debts. (April 27, 1872, 69 v. 150, § 12; S. & S. 220.) See note to Ehrman v. Ins. Co., under § 3598. § 3600. WHEN REAL ESTATE MUST BE SOLD. — All such real estate acquired as aforesaid, and which is not necessary for the accommodation of a company in the convenient transaction of its business, shall be sold and disposed of within two years after the company acquires title to the same; and the company shall not hold such real estate for a longer period than herein mentioned, unless it procure a certificate from the superintendent of insurance that the interests of the company will suffer materially by a forced sale of such real estate, in which event the time for the sale may be extended to such time as the superintendent shall direct in the certificate. (April 27, 1872, 69 v. 150, § 13; S. & S. 221.) § 3601. CERTAIN ACTIONS AUTHORIZED. — Actions may be maintained by any company formed under the laws of this state, against any of its members, otB.- cers, policyholders, or stockholders, for any cause relating to the business of the company; and actions may be prosecuted and maintained by any member, stock- Tiolder, or policyholder, or the heirs or legal representative of either, against the com- pany, for losses which accrue on any risk, if payment be withheld more than two months after the losses become due. (April 27, 1872, 69 v. 150, § 15; S. & S. 221.) As to limitations in policy as to time of bringing suit. See Metropolitan Ins. Co. v. Gierl, 16 O. C. C. 294, affirmed 57 Oh. St. 671 (1898); Pru- dential Ins. Co. V. Howies, 19 0. C. C. 621 (1900); Corn City Ins. Co. v. Schwan, 1 0. C. C. 192 (1885); United Firemen's Ins. Co. v. Kukral, 7 0. C. C. 356 (1893); Kirk v. Ohio Valley Ins. Co., 6 W. L. B. 200 (1881), affirmed 11 W. L. B. 228 (1884); Minerick v. Ins. Co., 1 Clev. Rep. 134; s. c, 1 Clev. Rep. 217 (1878) ; compare, Meyer v. Ins. Co., 6 N. P. 34 (1898). § 3602. WHEN DIVIDENDS MAY BE PAID. — The directors, managers, or officers of any company organized under the laws of this state shall not, directly or indirectly, make or pay any dividend, or pay any interest, bonus, or other allowances in lieu of dividend, to its stockholders, except from the surplus funds, after reserving therefrom an amount sufficient to re-insure all its outstanding risks and policies, estimating the value thereof by the table known as the American experience table, with interest at four per cent, per annum. (April 27, 1872, 69 v. 150, § 16.) § 3603. HOME COMPANIES MUST MAKE ANNUAL REPORTS TO SUPER- INTENDENT. — The president or vice-president, and secretary or actuary, or a majority of the directors, of each company organized under the laws of this state, shall, annually, on the first day of January, or within sixty days thereafter, prepare, under oath, and deposit in the office of the superintendent of insurance, a statement showing the condition of the company on the thirty-first day of December then next preceding, exhibiting the following facts and items, in the following form, to wit: 1. The number of policies issued during the year. 2. The amount of insurance effected thereby. 3. The amount of premiums received during the year. 4. The amount of interest, and all other receipts, specifying the items. 5. The amount paid to policyholders of the company for losses during the year. 6. The amount of all other expenditures and disbursements of the company, specifying such items as the superintendent may call for. 7. Amount of losses unpaid. 8. Whole number of policies in force. 9. Amount insured thereby. 10. Amount required to re-insure all policies in force, estimating the same by LAW GOV. PRIV. COR. — 24. 370 Private Corporatioxs in Ohio. Foreign Companies, § 3604. the table known as the American experience table of mortality, with interest at four per cent, per annum. 11. Amount of capital stock, specifying amount paid and unpaid. 12. Amount of dividends unpaid; also amount of all other liabilities. 13. A detailed statement of all the assets of the company, and the manner of their investment. 14. An exhibit of the policy obligations of the company, which shall include, in the first annual statement, a schedule showing the number, date, age, when insured, amount insured, term of policy, and term of premium, of all policies then in force, and in every succeeding annual statement a schedule of the foregoing items as to all policies issued during the year, and a similar schedule as to policies which have ceased to be in force during the year. (April 9, 1873, 70 v. 118, § 17; S. & S. 221.) § 3604. COMPANIES ORGANIZED BY CONGRESS OR IN OTHER STATE MUST PROCURE LICENSE. — No company organized by act of congress, or under the laws of any other state of the United States, shall transact any business of insur- ance in this state until it procures from the superintendent of insurance a certificate of authority so to do; nor shall any person or corporation, directly or indirectly act as agent in this state for any such company, either in procuring applications for insurance, taking risks, or in any manner transacting the business of insurance, until such person or corporation procures from the superintendent of insurance a. license so to do, in which the superintendent shall state that the company has com- plied with all the requirements of this chapter applicable to such company, and deposits a certified copy of such license in the office of the recorder of the county in which the office or place of business of such agent is established; nor shall any such company take risks or transact any business of insurance in this state, unless pos- sessed of the amount of actual capital required of similar companies organized in this state under the provisions of this chapter, nor unless the entire capital stock of the company is fully paid up, and invested as required by the laws of the state where organized; but if the company is a mutual company, actual cash assets of the same amount and description, invested and deposited as required by the laws of the state where it was organized, shall be accepted in lieu of capital stock. (May 15, 1878, 75 V. 572, § 18; S. & S. 223.) See § 3630e and § 3656, and notes thereto. Applicable to incorporated, and unin- corporated associations. Foreign companies and associations, whether incorporated or not, are required to procure a license.' — State ex rel. Ackerman et al., 51 Oh. St. 163 (1894). This decision was based on the theory that the association was attempting corporate acts and hence came within the provisions of the statute. On the question as to discrimina- tions against individuals or partnerships of other states in favor of resident individuals or partnerships. — See Hoadley et al. v. Insurance Board, 37 Fla. 564 (1896); Hoadley v. Puri- foy, 30 L. R. A. (Al.) 351 (1895); Fort v. State, 23 L. R. A. (Ga.) 86 (1893); Common- wealth V. Reinoehl, 25 L. R. A. (Penn.) 247 (1894). Insurance business may lawfully be confined to corporations. Commonwealth v. Vrooman, 164 Pa. 306 (1894). Failure to procure license, etc.; does not render policy void. The failure of a foreign company to comply with the provisions of the act of April 16, 1867 (64 v. 192), will not make void a policy issued by such company. — Union Ins. Co. v. McMillen, 24 Oh. St. 67 (1873); Ins. Co. v. Way, 62 N. H. 622 (1883) ; Clark v. Middleton, 19 Mo. 53 (1854); Ins. Co. v. Walsh, 18 Mo. 229 (1853). See also Columbia Ins. Co. v. Kinyon, 37 N. J. L. 33 (1874); Ins. Co. v. Brinkley et al., 29 L. R. A. (Ark.) 712 (1895). Same subject; ivill not excuse payment of premium. In an action brought against the company, on the policy, such failure will not excuse the policy holder from payment of premiums or complying with other conditions and terms of the policy. — Union Ins. Co. v. McMillen, 24 Oh. St. 67 (1873), and cases under preceding note. Same subject; company cannot sue to recover premiums or assessments — neither can receiver bring such ac- tion. Stewart v. Ins. Co., 38 X. J. L. 436 (1876); Lycoming Ins. Co. v. AVright, 55 Ver. 526 (1883) ; Rose v. Kimberly, 89 Wis. 545 (1895) ; Seamans v. Zimmerman, 59 N. W. 290 (la.) (1894); Seamans v. Temple, 63 N. W. 408 Life Insurance Companies. 371 Foreign Companies, § 3605. (Mich.) (1895) ; Barker v. Lamb, 68 N. W. 686 n (la.) (1896). Same subject; assured may maintain , action against company. > Union Ins. Co. v. McMillen, 24 Ohio St. 67 (1873) ; Phcenix Ins. Co. v. Pennsylvania Co., 20 L. R. A. (Ind.) 406 (1893) ; Knight Tem- plars' Ins. Co. V. Berry, 50 Fed. 439 (1892) ; Swan V. Ins. Co., 96 Pa. 37 (1880) ; Ins. Co. V. Rust, 141 111. 85 (1892); Pennypacker v. Ins. Co., 80 la. 56 (1890). Conipany can recover premiums in this state on property located in foreign state, thougli not permitted to do business in latter. Eureka Ins. Co. v. Parks, 1 Cin. Sup. Ct. 574 (1871); Seamans v. Knapp, 89 Wis. 171 (1895). Same subject; company may sue on bond or mortgage. Ins. Co. V. Sa%vyer, 44 Wis. 387 (1878); Hards v. Ins. Co., 8 Biss. 234 (1878). Failure to procure certificate; no de- fense to action on agent's bond. Failure to comply "with regulations creates no defense to an action brought against an agent of such company and his sureties on a bond given for the faithful performance of duties. — Ins. Co. v. Ellis, 32 Oh. St. 388 (1877). Same subject; will not invalidate acts of agent. The acts of an agent, within the scope of the authority conferred upon him, are valid and binding, not only in favor of third per- sons, but as between principal and agent, not- withstanding the failure to procure and file the certificate required. — Ins. Co. v. Ellis, 32 Oh. St. 388 (1877). No arbitrary povirer to refuse license. Where a foreign company, tendering com- pliance with our laws, applies for authority to do business within this state, the superin- tendent of insurance has no mere arbitrary discretion to refuse such admission. — State ex rel. v. Moore, 42 Oh. St. 104 (1884). May use discretion, exercised in good faith. Superintendent may inquire into the finan- cial soundness of a company seeking admis- sion, and if exercised in good faith, he is in- vested with discretion to refuse admission, which exercise of discretion will not be eon- trolled by mandamus. — State ex rel. v. Moore, 42 Oh. St. 104 (1884). » Duration of license. The license continues in force until the first day of April of the year after the date of issue, and no longer. — State ex rel. v. Ins. Co., 47 Oh. St. 167, 178 (1800). See § 3616. liicense no bar to quo uT^arranto. License merely protects the company in the transaction of its business, but it does not bar ousting the company on quo warranto. — State ex rel. v. Ins. Co., 49 Oh. St. 440 (1892) ; State ex rel. v. Ackerman, 51 Oh. St. 163 (1894). Exercise of unlawful privileges, tested by quo "nrarranto. A foreign company, exercising in this state franchises and privileges without authority of law, may be ousted therefrom by quo war- ranto. — State ex rel. v. Ins. Co., 47 Oh. St. 167 (1890) ; State ex rel. v. Ins. Co., 49 Oh. St. 440 (1892) ; State ex rel. v. Ackerman, 51 Oh.' St. 163 (1894) ; State ex rel. v. Casualty Co., 39 Minn. 538 (1888). Granting license ministerial act. Issuing of license to foreign insurance com- pany is a ministerial and not a judicial act. — State ex rel. v. Ins. Co., 49 Oh. St. 440 (1892) ; State ex rel. v. Casualty Co., 39 Minn. 538 (1888). Remedy to prevent revocation of li- cense. Mandamus will not lie to prevent the super- intendent from revoking the license of a com- pany to do business in this state. Injunction is the proper remedy. — State ex rel. v. Hahn, 50 Oh. St. 714 (1893); overruling State ex rel. V. Reinmund, 45 Oh. St. 214. Noncompliance by company; assured may sue on policy. Ins. Co. V. McMillen, 24 Oh. St. 67 (1873) ; Clark V. Middleton, 19 Mo. 53 (1854). § 3605. DEPOSIT WITH SUPERINTENDENT OF INSURANCE OR OTHER OFFICER. — No such company shall transact any business of insurance in this state unless at least one hundred thousand dollars of its assets are invested in the interest paying bonds or stocks of the United States, or of this state or of any municipality or county thereof, or the interest paying state bonds or stocks of some other state of the United States, of the market value of one hundred thousand dollars in the city of New York, or in bonds and mortgages on unincumbered real estate in this state, or in the state under the laws of which it was organized, of at least double the value of the amount loaned thereon, and such bonds and mortgages are deposited with the super- intendent of insurance of this state, or the chief financial or other officer of the state in which such company was organized, designated by the laws of such state to 372 Private Corporations in Ohio. Foreign Companies, §§ 3606-3608. receive the same; and if such bonds and mortgages are deposited with the superin- tendent of insurance or other officer of another state, the superintendent of insur- ance of this state shall be furnished with the certificate of such state officer, under his hand and official seal, that he, as such officer, holds in trust and on deposit, for the benefit of the policy-holders of such company, the securities above mentioned, giving the items of such securities, and stating that he is satisfied such securities are worth at least one hundred thousand dollars. (February 27, 1894, 91 v. 40; May 15, 1878, 75 V. 572, § 18; S. & S. 223.) « § 3606. MUST FILE COPY OF CHARTER, AND A STATEMENT. — Such com- pany shall also file with the superintendent a certified copy of its charter, or deed of settlement, together with a statement, under the oath of the president, vice-president, or other chief officer or manager, and the secretary of such company, stating the name of the company, the place where it is located, and the amount of its capital, with a detailed statement of all the facts required in the annual statement required of com- panies organized under this chapter, except as to statement required by item four- teen, section thirty-six hundred and three, which statement shall be filed by such company only when required by the superintendent of insurance for purposes of actual valuation, as provided by the insurance laws of this state; also, a copy of its last annual report, if any was made. (May 15, 1878, 75 v. 572, § 18.) Cited in State v. Hahn, 50 Oh. St. 714 (1893). § 3607. MUST ALSO FILE A WAIVER. — Any such co.npany desiring to trans- act any such business in this state by an agent, shall file with the superintendent of insurance a. written instrument, duly signed and sealed, authorizing any agent of such company in this state to ackno'wledge service of process for and in behalf of the company in this state, and consenting that the service of process, mesne or final, upon any such agent, shall be taken and held to be as valid as if served upon the company according to the laws of this or any other state or government, and waiving all claims or right of error by reason of such acknowledgment of service, and that if suit bebrought against it after it ceases to do business in this state, and it has no agent in the county in which suit is brought upon whom service of process can be had, as provided in section thirty-six hundred and seventeen, service upon it shall be had by ' the sheriff mailing a copy of the summons or other process, postage prepaid, addressed to it at the place of its principal office located in the state where it was organized, or, if it is a foreign insurance company, to such company at the place of its principal office in the United States, at least thirty days prior to the date of taking judgment in the suit; but the sheriff's return shall show the time and manner of such service. May 15, 1878, 75 v. 572, § 18.) For purpose of suit, regarded as domes- tic corporations. Companies doing business under license ob- tained become, in a suit brought against them in this state, personally amenable to the juris- diction of the courts of this state, and are to be treated, for purposes of suit, as corpora- tions of this state. — Ins. Co. v. Best, 23 Oh. St. 105 (1872). § 3608. MUST FILE ANNUAL STATEMENT AS TO TONTINE COMPANIES. — Every such company doing business in this state shall, annually, file a statement of its condition and affairs in the office of the superintendent of insurance, and in the form and manner required of similar companies organized under the laws of this state; provided, that in such statement no such item as '• all other expenditures," or " incidentals," shall be allowed or recognized; but that every item of disbursement or expenditure shall be clearly and distinctly stated and classified when required by the superintendent of insurance, and for the protection of the interests of policy-holders in this state, as provided by the laws of this state, and any such company issuing policies on tontine or semi-tontine plan, or which claims to be mutual as to its profits Life Insurance Companies. 373 Foreign Companies, §§ 3609-3611. to residents of this state, shall, after the payment of the first premium thereon, and not more than sixty days and not less than ten days prior to the maturity of each and every premium, thereafter in writing notify every such policy-holder, namely the person whose life is insured or the assignee of said policy, if said company has been notified of said assignment, and the address of said assignee given residing in this state, of the time of payment of such premium, and proof of the depositing of said notice to said policy-holder or assignee in the post-ofa.ce by said company or its agent, postage prepaid to the last address as given by said policy-holder or said assignee to said company shall be conclusive proof of the serving of said notice, and shall set forth fully in said notice the amount of dividend belonging to said policy, when requested by the policy-holder if the same be a participating policy, and at the end of the tontine or semi-tontine period of each policy, the company issuing the same shall make a statement to the policy-holder of all the dividends and profits accruing to said policy, and from what sources the same has been derived. (April 17, 1891, 88 V. 307; April 27, 1872, 69 v. 150, § 20; S. & S. 223.) Cited in State v. Hahn, 50 Oh. St. 714 (1893). Effect of failure to give notice. Smith V. Ins. Co., 1 W. L. B. 285, affirmed 44 Oh. St. 156 (1886). See also Ins. Co. v. Pottker, 33 Oh. St. 459 (1878). § 3609. RENEWAL CEETIEICATES OF AUTHORITY. — If such annual state- ment be satisfactory evidence to the superintendent of insurance of the solvency and ability of the company to meet all its engagements at maturity, and that the deposit is maintained as above required and provided, he shall issue renewal certificates of authority to the agents of the company, certified copies of which shall be filed in the recorder's office of the county wherein the agency is located, and which renewal certificates shall be the authority of such agents to issue new policies in this state for the ensuing year. (April 27, 1872, 69 v. 150, § 21; S. & S. 223.) See notes to § 3614. § 3610. FOBEIGN COMPANIES MUST MAKE DEPOSIT, AND APPOINT AGENT POR SERVICE. — No person shall act in this state, as agent or otherwise, in receiving or procuring applications for life insurance, nor in any manner aid in transacting the business of any company, partnership, or association, incorporated by or organized under the laws of any foreign government, until such company, part- nership, or association deposits with the superintendent of insurance, for the benefit of the policyholders of the company, partnership, or association, who are citizens or residents of the United States, securities to the amount of one hundred thousand dol- lars, of the kind required for similar companies of this state, executes a waiver as provided in section thirty-six hundred and seven, and appoints an agent or attorney, in each county in this state in which the company establishes an agency, on whom process of law can be served, and files with the superintendent of insurance a duly certified copy of its charter, or deed of settlement, and also a duplicate original copy of the letter or power of attorney of such company, partnership, or association, appointing the attorney thereof, which appointment shall continue until another attorney is substituted. (April 27, 1872, 69 v. 150, § 22; S. & S. 222.) See notes to § 3614. § 3611. ANNUAL AND OTHER STATEMENT TO BE FILED. — Such company, partnership, or association shall also file a statement of its condition and affairs in the office of the superintendent of insurance, in the form and manner required for the annual statements of similar companies organized under the laws of this state, and shall, annually, on the first day of January, or within sixty days thereafter, file with the superintendent of insurance a statement of all its affairs, in the manner and form 374 Private Corporations in Ohio. Foreign Companies, §§ 3612-3615. required of similar companies of this state, except as to the requirements of schedule of item fourteen, section thirty-six hundred and three, which schedule shall be filed only when required by the superintendent for purposes of actual valuation, as pro- vided by the laws of this state. (April 27, 1872, 69 v. 150, § 24; S. & S. 224.) § 3612. SUPPLEMENTARY STATEMENTS.— Such annual statement shall be accompanied by a supplementary statement, duly verified by the attorney or general agent of the company, partnership, or association in this state, giving a detailed description of the policies issued, and those which have ceased to be in force, during the year, the amount of premiums received, and claims and taxes paid in this state and the United States, for the year ending on the thirty-first day of December; and the supplementary statement shall also contain a, description of the investments of the company, partnership, or association in this country, and such other information as may be required by the superintendent of insurance. (April 27, 1872, 69 v. 150, §§ 25, 26; S. & S. 224.) § 3613. RENEWAL CERTIFICATES OF AUTHORITY.— If the annual state- ment be satisfactory evidence to the superintendent of the solvency and ability of the company, partnership, or association to meet all its engagements at maturity, he shall issue renewal certificates of authority to the agents of the company, partnership, or association, certified copies of which shall be filed by such agents in the recorder's office of the county where the agency is located, and which renewal certificates shall be the authority of such agents to issue new policies in this state for the ensuing year. (April 27, 1872, 69 v. 150, § 26; S. & S. 224.) § 3614. CERTIFICATES OF AUTHORITY TO ACT AS AGENT.— No person, company, or corporation shall, directly or indirectly, act as agent for any such com- pany, partnership, or association, either in procuring applications for insurance, tak- ing risks, or in any manner aiding in the transaction of the business of life insurance in this state, until it procures from the superintendent a. certificate of authority, which shall be renewable annually, stating that the requirements of this chapter as to such company, partnership or association have been complied with, and setting forth the name of the attorney for such company, partnership, or association a. certi- fied copy of which certificate shall be filed in the recorder's office of the county where the agency is to be established, and which shall be the authority of such company, partnership, or association, and its agent, to do business in this state. (April 27, 1872, 69 V. 150, § 27; S. & S. 223.) Agent's duty to procure certificate. A personal duty is imposed on the agent to procure such cevtifieate and file it with the recorder, and a, violation of this dvity subjects him to a penalty. — Ins. Co. v. Ellis, 32 Oh. St. 388 (1877). Begnlations for benefit of policy hold- ers. Such regulations are for the benefit of pol- icy holders and others doing business with the company.— Ins. Co. v. Ellis, 32 Oh. St. 388 (1877). Agent's acts binding, without certifi- cate. The acts of an agent, within the scope of the authority conferred upon him by the com- pany, are valid and binding, not only in favor of third persons, but as between principal and agent, notwithstanding his failure to procure and file such certificate. — Ins. Co. v. Ellis, 32 Oh. St. 388 (1877). Failure to procure certificate, no de- fense in favor of sureties. In an action against such agent and his sureties on a bond given for the faithful per- formance of his diities, his failure to comply with this section is no defen«e in favor of such sureties.— Ins. Co. v. Ellis, 32 Oh. St. 388 (1877). Authority of agents. See Kehm v. German Mutual Ins. Co., 8 N. P. .'■i42 (1901). § 3615. PENALTIES FOR FAILURE TO MAKE STATEMENTS.— If any com- pany, partnership, or association, organized without this state, neglect or refuse to make such annual statements, all persons acting in this state as its agents, or other- wise, in transacting the business of insurance, shall be subject to the penalties pro- Life Insurance Companies. 375 Foreign Companies, §§ 3616-3620. / vided by law in case of the failure of an insurance company organized under the laws of this state to make an annual statement. (April 27, 1872, 69 v. 150, § 28; S. & S. 225.) § 3616. DURATION OF LICENSES. — All licenses granted by the superintend- ent of insurance in pursuance of this chapter shall continue in force, unless suspended or revoked, until the first day of April of the year next after the date of their issue. (April 27, 1872, 69 v. 150, § 19.) Applied in State ex rel. v. Ins. Co., 47 Oh. St. 1G7, 178 (1890). § 3617. WHEN FOREIGN COMPANIES MUST APPOINT AGENTS TO RE- CEIVE SERVICE. — If any company, partnership, or association, organized under the laws of any other state or government, cease to do business in this state according to law, it shall appoint, in the manner herein provided for, in every county wherein an agency existed at the date of such discontinuance, one or more agents for the pur- pose of receiving service of process in all actions upon policies of insurance issued to tlie citizens of this state while it was lawfully transacting the business of insurance in this state, and service of process upon such agents, in such actions, shall be held to be as valid as actual service upon the company, partnership, or association; and in every case where no such agent is appointed, the agent last designated and acting for the company, partnership, or association shall be deemed and taken to be duly author- ized by it to receive service of process as aforesaid; but the officer who serves such process shall also send a copy of the process served on the agent, by mail, to the address of such company, partnership, or association, at the place of its principal or home office at the time it ceased to do business in this state, and the return of such officer upon such process shall distinctly show that such copy was mailed as afore- said at least thirty days before any judgment shall be rendered in such action. (April 27, 18.72, 69 v. 150, § 19.) § 3618. WHO ARE AGENTS TO RECEIVE SERVICE. — If any such company, partnership, or association cease to transact business in this state according to the laws thereof, the agents last designated, or acting as such for it, shall be deemed to continue agents for it, for the purpose of serving process, and for commencing actions upon any policy or liability issued or contracted while it transacted business in this state; and service of such process upon any such agent, for the causes aforesaid, shall be deemed A valid service upon the company, partnership, or association. (April 27, 1872, 69 V. 150, § 23; S. & S. 223.) § 3619. COMPANIES MAY CHANGE SECURITIES, AND COLLECT INTER- EST. — Nothing in this chapter contained shall be construed to prevent the company, partnership, or association from collecting the interest on any securities deposited by it, so long as it continues solvent, and complies with all the provisions of this chapter applicable to it, nor from exchanging them for other securities of equal value, and of the kind hereinbefore named, with the officers having them in trust as aforesaid. (May 15, 1878, 75 v. 572, § 18.) § 3620. AUTHORITY TO BE WITHDRAWN IN CERTAIN CASE. — If any company, partnership, or association organized without the limits of this state, and doing business within this state, make an application for a change of venue, or to remove any suit or action to which it is a party, heretofore or hereafter commenced in any court of this state, to the United States district or circuit court, or to any federal court, the superintendent of insurance shall forthwith revoke and recall the license or authority to such company, partnership, or association to do or transact business within this state; and no renewal or authority shall be granted to such company, partnership, or association for three years after such revocation, and it shall there- after be prohibited from transacting any business in this state until again duly licensed and authorized. (May 15, 1878, 75 v. 572, § 18.) LAW GOV. PRIV. COR. — 23. 376 Private Corporations in Ohio. Copies of Policies, §§ 3621-3623. A former statute compelled all foreign com- panies, as a condition precedent to doing busi- ness in this state, to waive all claim to remov- ing causes against them to the United States courts. This statute was held constitutional in Ins. Co. v. Best, 23 Oh. St. 105 (1872), but was declared invalid in Railway Assurance Co. V. Pierce, 27 Oh. St. 155 (1875), on the authority of Home Ins. Co. v. Morse, 20 Wall. 445 (1875). See Rowland v. Ins. Co., 2 W. L. B. 57. Section constitutional. Constitution of United States secures to citizens of another state than that in which suit is brought an absolute right to remove their cases to the federal court. The statute obstructing such right is illegal and void. Agreement of company filed in pursuance to such statute is void, but revocation of license is valid, as state may make such conditions as it sees fit. — Ins. Co. v. Morse, 20 Wall. 445 (1875). Same subject. State has a right to impose conditions not in conflict with constitution of United States to the transaction of business within its ter- ritory by a foreign insurance company, or, having granted a license, to revoke it, with or without cause. The right to exclude existing, the means by which exclusion is caused is not the subject of judicial inquiry. — Doyle v. Ins. Co., 94 U. S. 535 (1876). § 3621. POLICYHOLDERS ENTITLED TO COPIES OF APPLICATIONS.— Every person holding a policy of insurance issued by any company on the life of any person shall be entitled to be furnished by such company with a copy of any applica- tion or document, either written or printed, or both, held by such company, upon which such policy was issued, or which may affect the validity or (of) the same; and the company, upon demand made for such copy, by the holder of such policy, or by any person upon whose life such policy was so issued, shall make, and forthwith fur- nish to such person, a certified copy of all such applications or friends' certificates, under the hand of the president, secretary, or other proper of&cer of the company, and under its seal. (May 5, 1877, 74 v. 181, §§ 1, 3.) Copy must be delivered during lifetime of assured. Where it is provided that the answers made to a medical examiner by the assured are to become a part of the policy, copies of such answers must be delivered to the assured dur- ing his lifetime, and failing so to do, the company, in an action on the policy, is estopped from denying the truth of any of the answers. — Dickmeier, Admr.j v. Ins. Co., 4 N. P. 13 (1896); s. c, 6 Dec. 161. See §§ 3622, 3623, 3624, 3625, and notes thereto. § 3622. EFEECT OF FAILTJEE TO DELIVER COPIES. — If such company neg- lect or fail for thirty days from the time of such demand to furnish to such person a copy of all such papers as are mentioned in the preceding section, and as provided therein, it shall thereafter be forever barred from setting up, by way of defense to any suit on such policy of insurance, any error or incorrectness, or fraud or misrepresenta- tion of the person making the same, or any mistake therein whatever; and such appli- cation or other paper or document shall thereafter be taken and held, so far as the same may affect any claim under such policy, or any fund secured thereby, to be in all respects true and correct. (May 5, 1877, 74 v. 181, § 2.) § 3623. COPIES OF APPLICATION TO ACCOMPANY POLICIES ISSUED. — Every company doing business in this state shall return with, and as part of any policy issued by it, to any person taking such policy, a full and complete copy of each application or other document held by it which is intended in any manner to affect the force or validity of such policy, and any company which neglects so to do shall, so long as it is in default for such copy, be estopped from denying the truth of any such application or other document; and in case such company neglect, for thirty days after demand made therefor, to furnish such copies, it shall be forever barred from setting up, as a defense to any suit on such policy, any incorrectness or want of truth of such application or other document. (May 5, 1877, 74 v. 181, § 3.) See notes under § 3625. Application filled up by agent, not binding on assured. Where answers in the application are filled up by the agent from his own knowledge, the fact that a copy of the application is attached to the policy will not bind the assured as to statements thus made. — Donnelly v. Ins. Co., 70 la. 693 (1886). Life Insurance Companies. 377 Applications, §§ 3624-3635. § 3624. APPLICATIONS, ETC., IN CIPHER VOID. — No company doing busi- ness in this state shall take any application, medical certificate, or other document, for insurance upon the life of any person, in cipher, or by character of any sort other than ordnary written or printed language; and any such application, medical cer- tificate, or other document taken in violation of this section shall be held to be void and of no effect as against any person claiming under any policy of insurance issued thereon. (May 5, 1877, 74 v. 181, § 4.) § 3625. WHEN A FALSE ANSWER IS MATERIAL. — No answer to any inter- rogatory made by an applicant, in his or her application for a policy, shall bar the right to recover upon any policy issued upon such application, or be used in evidence upon any trial to recover upon such policy, unless it be clearly proved that such answer is wilfully false and was fraudulently made, that it is material, and induced the company to issue the policy, and that but for such answer the policy would not have been issued; and, moreover, that the agent or company had no knowledge of the falsity or fraud of such answer. (May 15, 1878, 75 v. 572, § 18.) « Is constitutional. This provision is constitutional and not in conflict with the fourteenth amendment of the federal constitution. — Ins. Co. v. Block et al., 12 C. C. 224, 233 (1893) ; s. c, 6 C. D. 166; Ins. Co. V. Brobst, .56 Oh. St. 728 (1897); Ins. Co. V. Warren, 59 Oh. St. 53 (1898). Soliciting agent is agent of company. In filling up the application for a policy, the soliciting agent is the agent of the com- pany and not the assured. — Ins. Co. v. Wil- liams, 39 Oh. St. 584 (1883). When policy never attaches. Where statements are made in the applica- tion, which is made part of the policy, are untrue, but are made without fraud and under misapprehension, and the policy by its terms is thereby made void, the contract of insurance never attached and the assured may recover premiums paid. — Ins. Co. v. Pyle, 44 Oh. St. 20 (1886). Decided prior to enactment of this section. — See Ins. Co. v. Warren, 59 Oh. St. 53, for effect of this section, and also note to Ins. Co. v. Howie, infra. Section does not apply to conditions in policy. Section applies to false answers to inter- rogatories in application only, and does no apply to conditions in the policy itself. — Ins. Co. V. Howie, 62 Oh. St. 204 (1900). Assured must be furnished w^ith copy. Application not admissible as evidence until it is shown that assured has been furnished with copy of same. — Andrews, Admr., v. Ins. Co., 7 N. P. 322 (1897) ; s. c, 7 Dec. 307. Application forged by agent; no defense to recovery. An action on a policy cannot be defeated by the company showing that its agent, taking the genuine application, imposed . upon the company a spurious application, which the company believed to be genuine. — Ins. Co. v. Eshelman, 30 Oh. St. 648 (1876). Same subject; company cannot rescind. In such a ease the company cannot rescind its contract and cancel the policy by tendering the executors of the deceased policy holder the premium received, with interest, as soon as Die fraud was discovered. — Ins. Co. v. Eshel- man, 30 Oh. St. 648 (1870). False representations of agent; assured may rescind. Where a person has been induced to take a policy by the fraudulent representations of the agent of the company, the assured may have the policy declared void and recover bacK the premiums paid. — Ins. Co. v. Wright, 33 Oh. St. 533 (1878); Martin v. Ins. Co., (Sup. Ct. Tenn.) 3 W. L. B. 646 (1877). See Ins. Co. V. Pottker, 33 Oh. St. 459 (1878). Collusion between agent and assured; no defense to recovery. The company is liable where the false answers are known to its agent, notwithstand- ing that the agent and assured acted in col- lusion. — Prudential Ins. Co. v. Kilbane, 15 C. C. 62 (1897); a. c, 8 C. D. 790. Interest of beneficiary in return pre- miums. In case of rescission by the assured, the bene- ficiaries of the policy, if they are different from the assured, are not necessary or proper parties. — Martin v. Ins., (Tenn.) 3 W. L. B. 646 (1877). What is meant by " good health " or " Eound health " in application. Ohio Mutual Ins. Co. v. Draddv. 8 N". P. 140 (1900); Ins. Co. v. Howie, 62 Oh. St. 204 (1900). What constitutes a defense. To constitute a defense to a policy by reason of false answers to questions in the applica- tion, it must be clearly shown that the answers to such questions were willfully false and were fraudulently made, that the same were material and induced the company to 378 Private Corporations in Ohio. Beneficiaries, Claims of Creditors, §§ 3626-3638. Mutual Ins. Co. v. Draddv. 8 N. P. 180 (1900). See notes to §§ 3621 and 3626. No application to fraternal beneficiary associations. This section does not apply to associations organized under § 3631-11. Grand Lodge, etc., v. Bunkers, 23 0. C. C. •187 (1902). Burden of proof. North American Ins. Co. v. Sickles, 23 0. C. C. 594 (1902). Section fixes liability notwithstanding terms of policy. North American Ins. Co. v. Sickles^ 23 0. C. C. 594 (1902). § 3626. WHEN COMPANIES ESTOPPED FROM CERTAIN DEFENSES.— All companies, after having received three anntial premiums on any policy issued on the life of any person in this state, are estopped from defending, upon any other ground than fraud, against any claim arising upon such policy by reason of any errors, omis- sions, or misstatements of the assured in any application made by such assured on -which the policy was issued, except as to age. (69 v. 150, § 33.) issue the policy, and that but for such an- swers the policy would not have been issued, and that neither the company nor its agents had knowledge of the falsity or fraud of such answers. — ■ Ins. Co. v. Wan-en, 50 Oh. St. 45 (1898); Ins. Co. v. Howie, U2 Oh. St. 204 (1900). See Northwestern, etc., Ins. Co. v. Eisley, 22 0. C. C. 160 (1901). Section commented upon and compared with ? 3643, relating to fire insurance. — Ins. Co. V. Webster, 7 C. C. 511; s. c, 4 C. D. 704; aflBrmed, 53 Oh. St. 558 (1895). Construction of application. It is policy of the law to construe certifi- cates of health furnished to a life insurance company favorably to the applicant. — Ohio tenns of N. Y. Laws 1892, chapter 690, section 92, providing that " no life insurance company doing business in this state shall declare a policy forfeited without having given pre- scribed notice." — Ins. Co. v. Dingley, 100 Fed. 408 (1900). Suicide as defense. Does not preclude the defense that assured committed suicide. — Stark v. Ins. Co., 24 W. L. B. 416 (1890) ; Ins. Co. v. Maguire, 19 C. C. 502 (1900); Pagenhard v. Ins. Co., 4 N. P. 169 (1897)-. Premiums on policy fraudulently is- sued. Company is not liable for premiums paid upon a policy wrongfully issued by one of its agents, without knowledge of the insured and under false representations of the agent. — Brokamp v. Ins. Co., 16 C. C. 630 (1898); s. c, 9 C. D. 412. See Shaddinger v. Ins. Co., 30 W. L. B. 337 (1893); Lowe v. Ins. Co., 41 Oh. St. 273 (1884) ; also notes to §§ 3U21 and 36-25. § 3627. THIS CHAPTER APPLIES TO COMPANIES HERETOFORE ORGAN- IZED. — All companies organized under any la-w of this state shall continue corpora- tions for the purpose for -nrhich they were chartered, but subject to all the provisions, requirements, and penalties imposed on companies organized under this chapter, and entitled to all the benefits and privileges of this chapter. (April 27, 1872, 69 v. 150, § 29.) Cited in Ins. Co. v, Webster ct al., 7 C. C. 511, 535 (1893) ; s. c, 4 C. D. 704. § 3628. HUSBAND MAY INSURE FOR BENEFIT OF WIFE AND CHILDREN. — Any person may effect an insurance on his life, for any definite period of time, or for the term of his natural life, to inure to the sole benefit of his widow and children, or of either, as he may cause to be appointed and provided in the policy; INSURANCE EXEMPT FROM CLAIMS OF CREDITOR.— and the sum or net amount of insurance becoming due and payable by the terms of insurance, shall be Constitutional. .Is constitutional and does not violate the fourteenth amendment of the constitution of the United States. — • Ins. Co. v. Block et al., 12 C. C. 224, 234 (1893). Applies to policy in foreign company. In an action by the beneficiaries under the policy, this provision will be applied notwith- standing that the policy stipulates that it shall be regarded as made under the laws of the state where the company resides. — Ins. Co. V. Block et al., 12 C. C. 224 (1893) ; s. c, 6 C. D. 166. Cannot be evaded by contract. The provision was enacted on grounds of public policy, and cannot be evaded by any agreement between the insured and the com- pany.— Ins. Co. V. Block et al., 12 C. C. 224 (1893); =. c, 6 C. D. 166. New York company's policy subject to New York laiv. Policies issued and delivered by a New York company in another state are subject to the Life Insurance Companies. 379 Beneficiaries, Claims of Creditors, § 3628. payable to his widow, or to his children, for their own use, as provided in the policy, exempt from all claims by the representatives and creditors of such person; PREMIUMS PAID IN TBATID INURES TO CREDITOR.— provided, that, sub- ject to the statute of limitations, the amount of any premiums for said insurance paid in fraud of creditors with interest thereon, shall inure to their benefit from the pro- ceeds of the policy; WHEN COMPANY LIABLE TO CREDITOR.— but the company issuing the policy shall be discharged of all liability thereon by payment of its proceeds in accord- ance with its terms, unless, before such payment notice shall be given the company by a creditor specifying the amount of his claim and the premiums which he alleges have been so fraudulently paid. (April 19, 1898, 93 v. 130; February 8, 1847, 45 V. 53, § 1; S. & C. 737.) This section foi-merly limited the amount of premiums to be annually paid for such exempt insurance to one hundred and fifty dollars; and in case of excess there should be paid to the beneficiaries named in the policy such por- tion of the insurance as one hundred and fifty dollars will bear to the whole annual pre- mivini, and the residue to the representatives of the deceased. It will be noted that there is now no limitation to the amount of premium which the insured may expend, and that the creditors can only reach the amount of any premiums and interest on the same which have been paid in fraud of their rights, and subject to the statute of limitations. In this respect §§ 3628 and 3629 are now alike. "When a wife regarded feme sole. When a husband, acting as agent for his wife, takes out in her name, and for her sole use, a policy on his life, the wife as to such policy must be regarded as a feme sole. — Jacob V. Ins. Co., 1 Cin. Sup. Ct. 519 (1871); Ins. Co. V. Applegate, 7 Oh. St. 293 (1857). Husband's representations subsequent to application not admissible. When in such case the husband, in his ap- plication for the policy, has made certain rep- resentations as to his health, which rep- resentations are made a part of the policy, his subsequent declarations, made pending his un- authorized negotiations for the surrender of the policy, and tending to show the false or fraud- ulent character of the representations in the application, are not competent evidence in an action brought by the wife upon the policy. — Ins. Co. V. Applegate, 7 Oh. St. 293 (1857). Husband's representations prior to ap- plication not admissible. So in an action by the wife, on a policy issued upon her and her husband's joint appli- cation, and for her sole benefit, the declara- tions of her husband made prior to the application, and showing that certain state- ments therein are untrue, are not admissible. — Ins. Co. V. Clieever, 36 Oh. St. 201 (1881). AVhen failure to send notice ■will excuse payment of premium. Where by the terms of the policy the pre- mium on the same is reduced, by reason of the participation by the beneficiary in the earn- ings of the company, and it has been the uniform practice of the company to notify the beneficiary of the amount of premium due, and by reason of the neglect to give such notice a premium is not paid at the time specified in the policy, such failure to pay will not bar a, recovery upon the policy, although by its terms the same is to be forfeited in ease of failure to pay premiums upon the specified dates. — Ins. Co. v. Smith, 44 Oh. St. 156 (1886). See Ins. Co. v. Pottker, 33 Oh. St. 459 (1878); Ins. Co. v. Troy, 20 C. C. 644 (1900). See § 3608. When husband ceases to become wife's agent. Where the company has uniformly sent no- tices of the amount of premium due to the insured (the husband of the beneficiary), and he has regularly paid the same, he will be regarded, in making such payments, as agent for the wife; but where the company has been notified by the husband, shortly after notice sent, that he and the wife have separated, the company is not justified in treating him as her agent, for the purpose either of receiving notice for her or of making surrender of the policy.— Ins. Co. v. Smith, 44 Oh. St. 156 (1886). Husband merely as such cannot sur- render policy payable to wife. In such case the attempt by the husband, without knowledge of the wife, to surrender the policy to the company is inoperative, and does not impair the rights of the wife. — Ins. Co. V. Smith, 44 Oh. St. 156 (1886). Beneficiaries' rights cannot be modified. Where a husband procures a policy payable to his wife, and after paying several premiums gives a premium note containing a more onerous forfeiture clause than the policy, such clause will not avail the company as against the wife. — Union Cent. Ins. Co. v. Buxer, 62 Oh. St. 385 (1900); Fuss v. Kroner, 24 W. L. B. 400 (1890). See, as to rights of beneficiary of certifi- cate in mutual benefit association, notes un- der § 3630. Divorce by beneficiary. Where a policy on the life of the husband is payable to the wife, she is entitled to the same, notwithstanding a divorce obtained by her. — Overhiser, Admx. v. Overhiser et al., 44 W. L. B. 81 (1900); In re Insurance Pol- icy, 7 N. P. 527 (1897); s. c, 5 Dec. 561; Supreme Commandery v. Everding et al., 20 C. C. 689 (1893); s. c, 11 C. D. 419. 380 Private Corporations in Ohio. Wife May Insure Life of Husband, § 3629. Upon death of beneficiary, policy re- verts to assured. In case all the beneficiaries named in the policy die before the death of the assured, such policy reverts to the assured, and upon his death becomes part of his personal estate. — Ryan v. Rothweiler, 50 Oh. St. 5:)5 (1893) ; Frank, Admr., v. Bauman, 3.5 W. L. B. o'x (1896); Richmond v. Johnson, 7 W. L. B. 224 (1881). Policies of mutual protective associa- tion not subject to section. Policies issued by a company for the mu- tual protection of its members, on the assess- ment plan, as provided in section 3630, are not subject to sections 3628 or 3629. — In re Estate of C. F. Andress, 5 iST. P. 253 (1897) ; s. c, 6 Dec. 174. Section applies to foreign companies. Section applies as well to a policy issued by a company organized and conducted outside the limits of Ohio as to a policy issued by a company of this state. — Cross v. Armstrong, 44 Oh. St. 614 (1887). Sections 3628 and 3629 construed. Section 3628 applies where the insurance is effected by the person whose life is insured, for the benefit of his widow and childreUj or either. The policy is a chose in action be- longing to the husband, subject to the limita- tions of this section. Section 3629 applies where the insurance is effected by the wife on the life of her husband, and although the premiums may have been paid by him, the policy is yet the wife's sep- arate property, upon which the husband's creditors have no claim, unless the payment of premiums by him has had the effect of with- drawing funds to which the creditors were entitled. As to creditors whose claims ex- isted when such payments were made, fraud might be presumed; as to subsequent creditors it would be necessary to show that there was fraudulent intent. — Weber, Loper & Co. v. Paxton et al., 48 Oh. St. 266, 271 (1891). Policy secured by wife on life of hus- band not affected by this section. A policy purporting on its face to have been effected by a married woman on the life of her husband, wherein the company agrees to pay such insurance to her, and if not liviiig, then to her children, is prima facie the sole prop- erty of the wife, and as such is not affected by section 3628. — Weber, Loper cSt Go. v. Pax- ton et al., 48 Oh. St. 271 (1891). Premiums paid by husband, not suffi- cient to defeat ivife's rights. The fact that the premiums have been paid by the husband is not 'Buflicient, of itself, to overcome the legal effect of the terms of the contract. — Weber, Loper & Co. v. Paxton et al., 48 Oh. St. 266, 271 (1891). Creditors must shovr insolvency and fraud. Where creditors of the husband seek to reach the proceeds of such policy, they must establish not only that the husband was in- solvent at the time of his decease, but that such payments, or some of them, were made in fraud of e.xisting creditors. — Weber, Loper & Co. V. Paxton et al., 48 Oh. St. 266, Z/1 (1891). Decisions under old Isivr note. The decisions following construe the law as it was before the amendment of April 19 1898, 93 V. 131. Merely fixes exemptions of Tvife and children. Merely fixes exemption rights of wife and children in the benefit fund; also fixes rights of creditors, and does not give any insurance interest to wife and children. — In re Estate Andress, 5 N. P. 253 (1897) ; s. c, 6 Dec. 174. Premium on each policy taken by itself. The premium on each policy must be taken by itself and not that of several policies added together. — Hinch, Admr., v. d'Ctassy, 1 Dec. 372. Assignment of policy to ivife, void as to creditors. The assignment by a husband to his wife of a policy payable to himself, and upon which he has paid the premiums, is voidable as to creditors if made Avith intent to defraud them. Section 3629 must be construed with §§ 3628 and 6344, and was not intenaed to dispense with the uona fides of the transaction. — Chiid V. Graham et al., 7 \Y. L. B. 43 (1882) ; Bank V. McLean, 25 W. L. B. (Mich. Sup. Ct.) 235 (1891). Amount creditors \Fill receive. When such assignment is set aside, the en- tire proceeds of the policy inure to the credit- ors, when the insurance permitted by § 3628 has been received by the wife. — Child v. Graham et al., 7 W. L. B. 43 (1882). Administrator need not interplead in foreign court as to excess insurance. In an action on a policy, payable to the widow, where the amount of annual premiums exceeds one hundred and fifty dollars, brought by her in the state where the company is lo- cated, the administrator of the deceased, a resident of this state, cannot be compelled to interplead, and a judgment of such foreign court cannot bar his rights against the widow as to such excess insurance. — Cross v. Arm- strong, 44 Oh. St. 614 (1887). Soo 38 W. L. B. 239, and notes to § 3629, also § 3631-18 and § 5427. § 3629. WIFE MAY INSXJBE LIFE OF HUSBAND. — Any married woman may, by herself, and in her own name, or in the name of any third person, with his assent as her trustee, cause to be insured the life of her husband, for her sole use, for any Life Insurance Companies. 381 Mutual Protective Associations, i§ 3630. definite period, or for the term of his natural life, and if she survive such period or term, the amount of insurance becoming due and payable by the terms of the insur- ance shall be payable to her, to and for her own use, free from the claims of the repre- sentatives of the husband, or any of his creditors; a policy of insurance on the life of any person, duly assigned, transferred, or made payable to any married woman, or to any person in trust for her or for her benefit, whether such transfer is made by her husband or other person, shall inure to her separate use and benefit, and that of her children, independently of her husband or his creditors, or of the person effecting or transferring the same, or his creditors; and the amount of the insurance provided for in the preceding section, or this section, may be made payable, in case of the death of the wife before the period at which it becomes due, to his, her, or their children, for their use, as shall be provided in the policy of insurance, or to their guardian, if under age; but if there are no children upon the death of the wife, such policy shall revert to and become the property of the party whose life is insured, unless it has been transferred as hereinafter provided; and if by its terms, or a transfer thereof, a policy is payable to a married woman solely for her use, she may sell, assign, or surrender the same, but the party whose life is insured shall concur in and become a party to the transfer ; but if a policy be procured by any person with intent to defraud his creditors, an amount equal to the premium paid thereon, with interest, shall inure to the benefit of his creditors, subject, however, to the statute of limitations. (April 27, 1872, 69 v. 150, § 30; February 8, 1847, 45 v. 53, §§ 2, 3; June 12, 1879, 76 v. 160, § 1; S. & C. 737.) Policies of mutual protective associa- tion, not subject to section. Policies issued by a company for the mutual protection of its members, on the assessment plan, as provided in § 3630, are not subject to § 3628 or 3629. — In re Estate of Andress, 5 N. P. 253 (1897) ; s. c, 6 Dec. 174. See note^ to Weber, Loper & Co. v. Paxton, and Ryan v. Rothweiler, under preceding sec- tion. See, also, Ins. Co. v. Hamilton, 41 Oh. St. 274 (1885). § 3630. MUTUAL PROTECTION ASSOCIATIONS; POWERS; ACCUMULA- TIONS; CERTIFICATES; BY-LAWS. — A company or association may be organ- ized to transact the business of life or accident or life and accident insurance on the assessment plan, for the purpose of mutual protection and relief of its members, and for the payment of stipulated sums of money to the families, heirs, executors, admin- istrators, or assigns of the deceased members of such company or association, as the member may direct, in such manner as may be provided in the by-laws, and may receive money either by voluntary donation or contribution, or collect the same by assessments on its members, and may accumulate, invest, distribute and appropriate the same in such manner as it may deem proper; that all accumulations and accre- tions thereon shall be held and used as the property of the members and in the inter- est of the members, and shall not be loaned to, used, appropriated, or invested for the benefit of any officer or manager of such company or association; and provided, that no company or association shall issue a certificate for a greater amount than such company or association shall be able to pay from the proceeds of one assessment; and such company or association shall not be subject to the preceding sections of this chapter. Associations organized under this section (3630) may change or amend their constitution or by-laws by the assent thereto in writing of a majority of the members, or by a majority of those present, in person or by proxy, at a meeting held for that purpose, thirty days' notice of such meeting having been given with the proposed changes in full by the acting president personally or by letter mailed to each member, provided, however, that such change shall not take effect or be in force until the same has been submitted to, and approved by the superintendent of insur- ance. Such associations may provide in their by-laws that there shall be not less than five nor more than fifteen trustees, whose term of ofiice shall not be more than three years. If the term be made more than one year, the by-laws may provide for electing at the first election a portion of them for one year, a portion of them for two 382 Private Corporation's in Ohio. Mutual Protective Associations, § 3630. years and a. portion of them for three years, and thereafter elections shall be for a term of three years. Such associations by their regulations or by-laws may provide for — 1. The time, place and manner of calling and conducting their meetings. 2. The number of members constituting a quorum. 3. The time of the annual election for trustees and the mode and manner of giv- ing notice thereof. 4. The duties and compensation of officers. 5. The manner of election, or appointment, and tenure of office of all officers; the tenure of the trustees shall not be for more than three years, one-third of whom may be elected annually. The provisions of sections 3251 and 3252 shall not apply to associations organized under section 3630. 6. Provided, however, that nothing herein shall be construed to affect or impair the powers or franchises of corporations, companies or associations heretofore organ- ized under the provisions of original section 3630, or under the said section as hereto- fore amended; and provided also, that such companies or associations may avail themselves of the provisions of this act by amendment of their articles of incorpora- tion as provided in section 3238a. (March 31, 1891, 88 v. 251; May 14, 1886, 83 v. 161; Rev. Stat. 1880; February 3, 1875, 72 v. 23, § 3.) Construction of section before amendment (88 V. 251). — State v. Ins. Co., 47 Oh. St. 167 (1890). Not suljject to preceding sections of this chapter. A company organized for the purposes spe- cified in this section, whether incorporated before or after the amendment of Feb. 3, 1875 (72 V. 23, § 3), is not subject to the laws of this state relating to life insurance com- panies. — State V. Mutual Protection Ass'n, 26 Oh. St. 19 (1875) ; State v. Standard Life Ass'n, 38 Oh. St. 281 (1882) ; In re Estate of Andress, 5 N. P. 253 (1897) ; s. c, 6 Dec. 174. Subject to general law governing cor- porations not for profit. Corporations organized under this section, though not subject to the provisions relating to life insurance companies on the mutual or stock plan, are subject to the general pro- visions of chapter 1, title 2, which apply to corporations formed for purposes other than profit. — State v. Standard Life Ass'n, 38 Oh. St. 281 (1882). Cannot guarantee £sed amount. Associations have no power to issue policies guaranteeing any fixed amount, except such fixed amount shall be conditioned upon the same being realized from the assessments made on members to meet it. — State ex rel. v. Ins. Co., 47 Oh. St. 107 (1882). Limitation as to beneficiary. Associations organized under this section are not authorized to provide for the payment of stipulated sums to persons other than the family or heirs of a deceased member. (Amended [88 v. 251] to extend to families, heirs, executors, administrators or assigns of deceased members. Section of this section provides for the amendment of previously organized as' ociations.) — State v. Mutual Benefit Ass'n, 42 Oh. St. 579 (1885); Xa- tional Mutual Aid Ass'n v. Gonser, 43 Oh. St. 1 (1885); State ex rel. v. Mutual Relief Ass'n, 29 Oh. St. 399 (1876) ; State v. Stand- ard Life Ass'n, 38 Oh. St. 281, 296 (1882). Foreign mutual companies may do as- sessment business. While life insurance companies organized in this state to transact business on the mutual •plan have no authority to do business on the assessment plan, yet such a foreign corpora- tion having such power should be allowed to do business in this state under § 3630e. — Ohio ex rel. v. Matthews, 58 Oh. St. 1 (1898). Regulations of association govern rights of members. The laws and regulations of such an asso- ciation determine the rights of the members; and a fund raised by the association in pur- suance of such laws and regulations, to be paid to the family or heirs of a deceased member, in the manner therein specified, un- less otherwise directed by such member dur- ing his lifetime, will, on failure to give such direction, be controlled by such laws and regulations. — Arthur et al. v. Odd Fellows Benef. Ass'n et al., 29 Oh. St. .557 (1S76); Charch v. Charoh, Exr., et al., 57 Oh. St. 561 (1898). Same subject; applies to foreign as ^vell as domestic associations. Charoh v. Charch, Exr., et al., 57 Oh. St. 561 (1898). Rules of association govern as to change of beneficiary. Change of beneficiary can only be made in the manner provided by the rules of the asso- ciation. Where a certificate of such associa- tion is payable to the wife, and by the rules a change of beneficiary can only be made by the surrender and issue of a new certificate, such Life Insurance Companies. 383 Mutual Protective Associations, § 3630. change cannot be made (the wife being in life) by will. — Chareh v. Charch, Exr., et al., 57 Oh. St. 561 (1898); Stephenson v. Stephen- son, 64 la. 534 (1884). But see Vance v. Park, 15 C. C. 713 (1898) ; s. c, 8 C. D. 425. What rules govern change of bene- ficiary. Method of changing beneficiary depends on rules in force at time of change, not when certificate was issued. — Supreme Council v. Feanke, 34 111. App. 651 (1890). Exceptions to rule that heneficiary must be changed in prescribed man- ner. I. If association has waived a strict com- pliance with its rules. — Thesing v. Knights et al., 24 W. L. B. 401 (1890) ; Knights of Honor v. Watson, 64 N. H. 517 ( 1888) ; Mayer V. Reserve Fund, 49 Hun, 336 (1888) ; Martin V. Stubbings, 126 111. 387 (1888). a. But company cannot waive charter pro- visions. — Duvall v. Goodson, 79 Ky. 224 (1880) ; Presbyterian Fund v. Allen, 106 Ind. 593 (1886); Supreme Counpil v. Perry, 140 Mass. 580 (1886). II. If it be beyond the power of the insured to comply literally with the regulations, u, court of equity will treat the change as hav- ing been made. III. If the assured has pursued the course pointed out by the laws of the association, and has done all in his power to change the beneficiary, but before the new certificate is actually issued he dies, a court of equity will decree that to be done which ought to be done. — Ancient Order v. Noll, 15 L. R. A. (Mich.) 350 (1892); Clark v. Hirschl, 81 la. 200 (1890); Spawn v. Chew, 60 Texas, 532 (1883) ; Nat'l Ass'n v. Kirgin, 28 Mo. Ap. 80 (1887) ; Marsh v. Supreme Council, 149 Mass. 512 (1889) ; Supreme Conclave v. Cappela, 41 Fed. 1 (1890). V^hat constitutes direction as to pay- ment of fund. Where by such regulations the fund is to be paid " to the widow, children, mother, sister, father or brother of a deceased member, and in the order named, if not otherwise directed by the member," the relatives will take the fund in the order named, unless the member otherwise directed during his lifetime; and the will of a member, who dipd seized of both real and personal property, devising to his children " my estate and property, real, per- sonal and mixed," is not such an execution of the power of direction as will control the fund. — Arthur et al. v. Benent Ass'n, 29 Ohio St. 557 (1876); Stephenson v. Stephen- son, 64 la. 534 (1884). But see Vance v. Park, 15 C. C. 713 (1898) ; s. c, 8 C. D. 425. Beneficiary funds form no part of tes- tator's estate. In re Estate of Andress, 5 N. P. 253 ( 1896) ; 6 Dee. 174; Odd Fellows Benef. Ass'n v. Die- bert, 2 C. C. 462 (1887) ; =. c, 1 C. D. 238; Arthur et al. v. Odd Fellows Benef. Ass'n, 29 Oh. St. 557 (1879). Relationship need only exist ivhen cer- tificate issued. It is sufficient that at the time of the issu- ance of the certificate there was a relation existing which entitled the party to be a beneficiary, and nothing occurring afterwards will terminate his interest (in this ease divorce and remarriage). — Supreme Com- mandery v. Everding et al., 20 C. C. 689 (1893) ; a. c, 11 C. D. 419. ^Vho are members. The members of such corporatian are those mutually engaged in promoting the purposes of the organization, and who, by virtue of their relation to the corporation, are entitled to the mutual protection and relief provided, or whose family or heirs are, in case of death, entitled to the specific relief provided. — State v. Standard Life Ass'n, 38 Oh. St. 281 (1882) . Members may adopt by-laws and regu- lations. Such members are the elective and controll- ing body authorized to elect trustees and pre- scribe regulations for the government of the same, not inconsistent with the laws of the state. Neither the incorporators nor the trustees first elected are authorized to adopt a by-law providing that they shall hold office during life, and in case of vacancy to fill same by appointment. — State v. Standard Life Ass'n, 38 Oh. St. 281 (1882). Po\ver of trustees. Trustees are charged with the duty of faith- fully executing the trust which the law and regulations impose on them. They are enti- tled to reasonable compensation; but any plan by which money is collected from members by assessment or otherwise, with a view to their individual profit, and beyond what is neces- sary to defray the reasonable expenses of the trust, is a breach of such trust. — State v. Standard Life Ass'n, 38 Oh. St. 281 (1882). See notes to State v. Mut. Benef. Ass'n, infra, under this section. ' What constitutes insurance contract. A certificate of membership in such a cor- poration, in which the holder agrees to pay a membership fee, annual dues and pro rata assessments in consideration of the company's stipulation to pay to his family or heirs a sum of money, is a contract of life insurance. — State V. Standard Life Ass'n, 38 Oh. St. 281 (1882). Compensation of trustees. Trustees having accepted designated sums, as compensation for their services for par- ticular years, have no power in subsequent years to vote themselves further compensa- tion for services of previous years. Such trustees, unless especially invested with the additional authority of officers or agents, are limited to such compensation as will reasonably pay for their time and ex- 384 Private Corporations in Ohio. Mutual Protective Associations, § 3630. penses in going to, attending and returning from their official meetings, and for services while in session. — State v. Mutual Benefit Ass'n, 42 Oh. St. 579 (1885). Trustees cannot act individually. Trustees have no authority to act for or bind the association except in their aggregate capacity as a board; and where they assume, by virtue of their trusteeship, to act in the individual capacity as officers or agents of the corporation, they cannot thereby create against it a legal liability to compensate them as trustees for such sei-vices. — State v. Mutual Benefit Ass'n, 42 Oh. St. 579 (1885). See also State v. Standard Life Ass'n, supra, under this section. Invalid assignment of certificate. " D.," a member of an association, in con- sideration of a loan, assigned his certificate of membership to a person in no way related to him, with the agreement that the assignee should pay all future assessments, and upon " D.'s " death to receive the sum due on the certificate. The assignee, in good faith and in reliance of the assignment, paid such assess- ments until " D.'s " death. " D." left h, widow. The rules of the association provided that the certificate should be payable to the widow, children, mother, sister, father or brother of the deceased member, and in the order named, unless otherwise directed by the member pre- vious to his death. Held: 1. That the assignment was void. 2. That a member cannot direct the pay- ment of the beneficiary fund to any other per- son than those named in the rules of the association, and that the words " unless other- wise directed " simply empower the member to designate who, of such persons named, shall receive the fund in disregard of the order in such rules. 3. That the fund being in court for distri- bution, it will be ordered paid, (a) the costs; (b) to the assignee, the assessments paid sub- sequent to the assignment, with interest thereon; (c) the balance to the widow. 4. That the fund became no part of the estate, and that as to' such loan the assignee had no claim upon the fund. — Odd Fellows Benef. Ass'n v. Diebert et al., 2 C. C. 462 (1887); o. c, 1 C. D. 589. Charter limitation as to beneficiary cannot be changed. Where the charter of an association limits it to the payment of its protective funds to certain designated persons, a member of such association can by no act of his own, name any other beneficiary than those designated in the charter. — Odd Fellows Benef. Ass'n v. Diebert et al., 2 C. C. 462 (1887); 1 C. D. 589; Mutual Aid Ass'n v. Gonser, 43 Oh. St. 1 (1S85); Supreme Council v. McGinness, 59 Oh. St. 531 (1899). Who are " legal heirs " as beneficiaries. " Legal heirs," as beneficiaries in a policy issued on the assessment plan to one having no wife and children, means next of kin as distributees under statute of descent, and the insurance money is not subject to claims of creditors of estate. — In re Estate of Audress, 5 N. P. 253 (1897); s. c, 6 Dec. 174; Mutual Life Ass'n v. Pollard et al., 3 C. C. 577 (1888); s. c, 2 C. D. 333; Mutual Aid Ass'n v. Gonser, 43 Oh. St. 1 (1885); Jamieson v. Knights' Aid Ass'n, 12 W. L. B. 272 (1884). Have inherent power of expulsion. State ex rel. v. Relief Society, 2 W. L. B. 125 (1877); Bishop v. Chamber of Commerce, 5 N. P. 365 (1887); s. c, 5 Dec. 356; Cheney V. Ketcham, 5 N. P. 139 (1898); ». c, 7 Dee. 183. Exercise of ponrer of expulsion. The power of expulsion from membership and benefits cannot be exercisea by a com- mittee or subordinate branch, except upon clear and express authority, fairly and reason- ably exercised. — State v. Fraternal Mystic Circle, 9 C. C. 364 (1895) ; s. c, 6 C. D. 385, 61 Oh. St. 628; Cheney v. Ketcham, 5 N. P. 139 (1898); s. c, 7 Dee. 183. Unlaurful expulsion; remedy. Mandamus will not be granted for the pur- pose of restoring to membership one though unlawfully expelled from an association. Proper remedy, injunction or damages. — Fraternal Mystic Circle v. State, 61 Oh. St. 628 (1899); Cheney v. Ketcham, 5 N. P. 139 (1898); s. c, 7 Dec. 183; State v. Zesc-h, 5 X. P. 274 (1898); s. c, 7 Dec. 298. Contra, Lavelle v. Societe, etc., 17 R. I. fiSO (1892). As to remedies of order. See notes to § 3631-11. Damages for ivrongful expulsion. Ludowski V. Benefit Society, 29 Mo. App. 337 (1888); Lavelle v. Societe, etc., 17 R. I. 680 (1892); Peyre v. Relief Society^ 90 Cal. 240 (1891). Action for damages bar to action to re- store membership. State V. Lipa, 28 Oh. St. 665 (1876). Valid expulsion destroys insurance rights. Order of" Red Men. v. Murbach, 13 Md. 91 (1858); Woolsey v. Odd Fellows, 61 la. 492 (1883) ; Ellerbe v. Faust, 119 Mo. 653 (1894) ; Supreme Council v. Connema, 3 0. C. C. 130 (1888). See also Dimmer v. Supreme Council, etc., 22 0. C. C. 366 (1901). Designation of improper beneficiary; effect. Designation of a person not included within the class to be benefited under rules of the association does not relieve it from payment to the proper person. — Parke v. Welsh, 33 111. App. 188 (1889) ; Supreme Council v. Mc- Ginness, 59 Oh. St. 531 (1899). But see Knights, etc. v. Watson, 64 N. H. 518 (1888). Life Insurance Companies. 385 Mutual Aid Associations, § 3630a. Interest in policy, reserving right to change beneiiciary, A policy issued in favor of the wife of the assured, which reserves to the latter the right to change the beneficiary, confers upon the wife no right which can pass to her estate in case of her death prior to that of her husband. Tafel, Adnir., v. Knights of the Golden Rule, 12 W. L. B. 35 (1884). Seneflciary of certificate has no vested rights. Thesing v. Knights et al., 24 W. L. B. 401 <1890); Martin v. Stubbings, 126 111. 387 (1888); Knights of America v. Franke, 34 111. App. 651 (1890) ; Knights v. Watson, 64 N. H. 518 (1888). See Pellazino v. Society, 16 W. L. B. 27 (1886). See as to rights of beneficiary of ordi- nary life policy. Ins. Co. V. Smith, 44 Oh. St. 156 (1886); Union Cent. Ins. Co. v. Buxer, 62 Oh. St. 385 (1900). Tailure to pay certificate or make as- sessment — remedy and measure of damages. Hall V. Live Stock Ass'n, 25 W. L. B. 79 (1891); Lueders v. Ins. Co., 12 Fed. 465 (1882); Jackson v. Relief Ass'n, 2 L. R. A. (Wis.) 786 (1889); Relief Ass'n v. Houghton, 103 Ind. 286 (IfiSf)) ; Kansas Prot. Union v. Whitt, 36 Kan. 760 (1887). But see Newman V. Ass'n, 18 W. L. B. 263 (1886) ; Van Houten V. Pine, 36 N. J. Eq. 133 (1882). Same subject; necessary averment in petition. Earnshaw v. Mutual Aid Society, 68 Md. 465 (1888); Relief Ass'n v. Houghton, 103 Ind. 286 (1885); Burland v. Life Ass'n, 47 Mich. 424 (1882); Taylor v. Relief Ass'n, 94 Mo. 35 (1887); Courtney v. Ass'n, 53 N. W. (la.) 238 (1892). Who may be beneficiary. Mother, though not living with family. — Life Ass'n v. Harrison, 23 W. L. B. 360 (1890). 'Who is dependent. One engaged to be married to the insured is not a dependent within the meaning of a stat- ute limiting beneficiaries to the family or " dependent." — American Legion v. Perry, 15 W. L. B. (Mass.) 3t)7 (1886); Parke v. Welch, 33 111. App. 188 (1889). See Supreme Council v. AIcGinness, 59 Oh. St. 531 (1899). For liability on assessments, rules govern- ing same, etc., see notes under § 3650. § 3630a. MUTUAL AID ASSOCIATION ANNUALLY TO FILE WITH SUPER- INTENDENT OF INSURAKTCE SWORN STATEMENT OF ITS TRANSACTIONS; WHAT SUCH STATEMENTS TO CONTAIN.— That each oorpoiation, company, or association now organized, or that may hereafter be organized, in pursuance of sec- tions three thousand two hundred and thirty-six and three thousand two hundred and thlrty-eig'ht of the act to revise and consolidate the general statutes of Ohio, passed June 20, 1879, or under any other law of this state, for the purpose of doing business under the provisions of section three thousand six hundred and thirty of said act, or for the purpose of doing such business as is contemplated by said section, shall, on the first day of January, each year, or within sixty days thereafter, deposit in the office of the superintendent of insurance, a statement, under oath, of all its transac- tions for the year next preceding said first day of January, and the condition of its business at the close of said year, according to printed blanks, which shall be pre- pared and furnished by the superintendent of insurance, showing, in detail, the trans- actions of each company or association, exhibiting the following facts and items, in the following form, to wit: 1. Number of certificates or policies issued during the year. 2. The amount of the indemnity effected thereby. 3. Number of death losses during the year. 4. Number of death losses paid during the year. 5. Total amount received from death assessments during the year. 6. Total amount paid to certificate-holders or policy-holders for losses during the year. 7. Number of death claims not due, but for which assessments have been made. 8. Number of losses for which assessments have not yet been issued. 9. Number of death claims compromised or resisted during the year, and reasons for such compromise or resistance. 10. Does the association or company charge annual dues? 11. How much are the dues for one thousand dollars ($1,000.00) of indemnityP LAW GOV. PRIV. COR. — 2$. 386 Private Corporations in Ohio. Mutual Aid Associations, §§ 3630b, 3630c. 12. Does tlie association or company use the death assessments to meet its expenses, in whole or in partP 13. Amount of death assessments used to meet expenses during the year. 14. Do the certificates or policies issued by association or company guarantee a fixed amount to be paid, regardless of amount realized from assessments made to meet the sameP 15. If so, state how the amount is guaranteed. 16. What security for such guarantee? 17. Does the association or company issue endowment certificates or policies, or undertake and promise to pay to members during life any sum of money or thing of value? 18. If so, how are these payments or promises provided for? 19. If by reserve, state the amount of reserve. 20. Prom what source is the reserve fund obtained? 21. How invested? 22. What guarantee or security have the certificate-holders for this reserve? 23. How many classes or divisions of endowment certificates or policies have the association or company? 24. How many years required for maturity of first class or division? How many years required for maturity of second class or division? How many years required for maturity of third class or division? How many years required for maturity of fourth class or division? 25. Number of certificates or policies in force in first class or division. Number of certificates or policies in force in second class or division. Number of certificates or policies in force in third class or division. Number of certificates or policies in force in fourth class or division. 26. Date of organization of association or company. 27. Number of certificates or policies lapsed during the year. 28. Whole number of certificates or policies in force at the beginning and end of the year. 29. The aggregate amount of certificates in force at the beginning of the year. 30. The aggregate amount of certificates lapsed during the year. 31. The aggregate amount of certificates in force at the end of the year. 32. Maximum, minimum, and average age of members received during the year. 33. Has the association or company any agents who have not given bonds? 34. In what state la the association doing business? (April 12, 1880, 77 v. 178.) This act does not enlarge the class of companies provided for in the preceding section. — State V. Moore, 38 Oh. St. 7 (1882). § 3630b. TO MAKE BEPOE.T TO SUPERINTENDENT WITHIN NINETY DAYS. — Within ninety days after the passage of this act, each corporation, company, or association doing business in pursuance of said section three thousand six hundred and thirty, shall report, under oath, to the superintendent of insurance its transac- tions for the year 1879, on the form required to be furnished in the first section of this act. (April 13, 1880, 77 v. 178, 180.) § 3630c. FAILURE TO FILE STATEMENT TO WORK FORFEITURE 01* FRANCHISE; ATTORNEY-GENERAL TO INSTITUTE PROCEEDINGS.— Any such corporation, company, or association which shall fail or refuse to file a state- ment or report, or whose treasurer fails to file a bond as required by this act, shall forfeit its right to do business, which forfeiture the superintendent of insurance shall enforce by proceedings in quo warranto; and it is hereby made the duty of the attorney-general of the state to institute such proceedings, upon his request, in writ- ing. No such corporation, company, or association issuing endowments, certificates or policies, or undertaking, or promising to pay to members during life any sum of Life Insurance Companies. 387 Mutual Aid Associations, §§ 3630d, 3630e. money, or thing of value, or certificate, or policy guaranteeing any fixed amount to be paid at death, except such fixed amount or endowments shall be conditioned upon the same being realized from the assessments made on members to meet them, shall be permitted to do business in this state, until they shall comply with the laws regulat- ing regular mutual life insurance companies. (April 12, 1880, 77 v. 178, 180.) See State ex rel. v. Ins. Co., 47 Oh. St. 167, 171 (1890). § 3630d. SUPERINTENDENT OF INSUBANCE MAT CAUSE EXAMINATION TO BE MADE. — The superintendent of insurance may, whenever he has good reason to believe that the business of any such corporation, company or association is not being legally and honestly conducted, or that such corporation, company or associa- tion is exercising powers or franchises not conferred by law, cause an examination of its affairs to be made; and, if upon such examination, it shall appear that such cor- poration, company or association is exercising powers or franchises contrary to law, the superintendent of insurance shall institute proceedings in quo warranto against the same, in the manner provided in section 3630c of the Revised Statutes of Ohio; and the expenses of all examinations of all companies, made under authority of this chapter, shall be paid by the state treasurer on the warrant of the state auditor upon the certificate of the superintendent of insurance; provided that the expenses of any examination, made upon the demand of the company, shall be paid by the company making such demand; and provided further, that, when, by the laws of any other state, district, territory or nation, examinations of companies or associations of this state are required or permitted to be made by the insurance department or other authority of such state, district, territory or nation at the expense of such companies, then the expenses of all examinations, made by the insurance department of this state of companies of such state, district, territory or nation, shall be charged to and collected from the companies so examined respectively. (May 12, 1902, 95 v. 549; April 12, 1880, 77 v. 178, 180.) § 3630e. RULES UNDER WHICH FOREIGN ASSOCIATIONS MAY DO BUSI- NESS IN THIS STATE; CERTIFICATE; REVOCATION; ANNUAL STATEMENT; OBLIGATIONS SIMILAR TO THOSE OP OTHER STATES.— Any corporation, com- pany or association organized under the laws of any other state of the United States to transact the business of life or accident or life and accident insurance on the assess- ment plan, shall, as a condition precedent to transacting business in this state, comply with the following conditions, to-wit: Deposit with the superintendent of insurance (1) a certified copy of its charter or articles of incorporation; (2) a, certificate from the insurance commissioner, or superintendent of its own state showing its authority to do such business; (3) a certificate from said commissioner or superintendent or other like authority of its own state that corporations, companies or associations of this state engaged in life or accident insurance on the assessment plan as the case may be, are, upon complying with the laws of said state, legally entitled to do busi- ness in such state; (4) a statement under the oath of its president and secretary or like officers, in the form by the superintendent of insurance required, of its business for the preceding year; (5) a certificate under the oath of its president and secretary, or like officers, that such corporation, company or association is paying, and for the twelve months next preceding has paid the maximum amount named in its policies or certificates; (6) a copy of its policy or certificate, application and by-laws, which must ahow that the liabilities of the assured or members are not limited" to fixed or artificial premiums; (7) evidence satisfactory to said superintendent that such cor- poration, company or association has accumulated and maintained a fund securely invested in securities permitted by the law of its incorporation, not less in amount than the proceeds of one periodical payment by, or an assessment on all certificate or policv holders thereof, and that such fund is held solely for the benefit of certificate or policy holders and can only be used for the purposes provided in the laws of the 388 Private Corporations in Ohio. Mutual Aid Associations, § 3630e. state where incorporated; provided, that said fund in the case of accident companies or accident associations shall not be less than five thousand dollars, and need not be more than ten thousand dollars; (8) that such corporation, company or association, except it be an accident insurance corporation, company or association, does not issue certificates or policies upon the life of any person more than sixty-five years of age, or upon any life in which the beneficiary named has not a legal insurable interest; provided, license to do business in this state shall not be delivered to any such corpora- tion, company or association until it shall have filed with the superintendent of insur- ance an appointment of an attorney within this state upon whom service of process may be had. The superintendent of insurance shall thereupon issue to such corpora- tion, company or association a certificate of authority to transact its business in the state of Ohio, which said certificate of authority must be renewed annually, and it shall be the duty of the superintendent of insurance to refuse such certificate to any such corporation, company or association, when in his judgment such refusal will best promote the public interest; provided, that all decisions by him made shall be subject to review by courts of competent jurisdiction. And said^ authority shall be revoked whenever the superintendent of insurance on investigation or examination finds that such corporation, company or association is not paying the maximum amount named in its policies or certificates in full; that said corporation, company or association is transacting business fraudulently or illegally, or that the statement of its condition and affairs required under the provisions of this section are false and fraudulent, or for failure to file the annual statement; and upon such revocation, the superintendent shall cause notice thereof to be published for four weeks in some newspaper published in the county of Franklin, and no new insurance shall Thereafter be written by such corporation, company or association or any of its agents in this state; provided, that it shall be unlawful for any agent of such corporation, company or association to transact business in this state without being first regularly appointed thereby and being licensed by a certificate of authority issued by the superintendent of insurance. Each such corporation, company or association shall, annually thereafter, and on or before the first day of March, make and file in the office of the superintendent of insurance a. statement in the form by said superintendent required of its business for the twelve months next preceding the thirty-first day of December. The fees to be paid by each such corporation, company or association to the superintendent for the authority to such corporation, company or association and its agents under the license granted by him to each corporation, company or association, to transact business in the state of Ohio, shall be as follows: For filing copy of charter or articles of incor- poration, twenty -five dollars; for filing each annual statement, twenty dollars; for issuing certificate of authority or license to company or association, one dollar; for issuing license to each agent, one dollar; for affixing seal and certifying any paper, one dollar. Provided, that any company or association may pay to the superintendent the sum of twenty-five dollars for licenses to its agents for the year, and by so doing shall be entitled without further charge to licenses for as many agents as it may choose to appoint; provided, also, that when any other state or country shall impose any obligations in excess of those imposed by this act upon any such corporation of this state, a like obligation shall be imposed on similar corporations, and their agents, of such state or country doing business in this state; and provided, also, that such corporation, company or association in transacting business in this state shall be sub- ject only to section 3630 of the Revised Statutes and the section(s) supplementary thereto; and provided further, that such corporation, company or association shall be authorized to transact in this state the business of life or accident or life and acci- dent insurance on the assessment plan, for the purpose of mutual protection and relief of its members, and for the payment of stipulated sums of money to the families, heirs, executors, administrators or assigns of the deceased members of such corpora- tion, company or association as the member may direct, notwithstanding such corpora- tion, company or association may have been organized on the assessment plan and Life Insurance Companies. 389 Mutual Aid Associations, §§ 3630f, 3630g. authorized by the laws governing it to issue policies insuring lives on the plan of assessment upon surviving members without limitation. Whenever any officer or agent of any such corporation, company or association shall fail or neglect to oom.ply with or violate any of the provisions of this act, he shall be deemed guilty of a mis- demeanor, and upon conviction thereof, shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in a county jail for not more than thirty days or both, at the discretion of the court. (March 31, 1891, 88 v. 258; April 18, 1883, 80 v. 179, 180; April 12, 1880, 77 v. 178, 181.) See § 3631-13. See § 3604 and notes thereto. For consti-uction of section before amend- ment (88 V. 252), see State v. Ins. Co., 47 Oh. St. 167 (1890), and note thereto under § 3630. See note to State v. Moore, 38 Oh. St. 7 (1882), under §§ 3630 and 3630a. Rights of companies to admission. Under the amendment of April 18, 1883 (80 V. 180), the insurance commissioner can- not be compelled to issue a license to a for- eign corporation, doing business on the as- sessment plan, where by the laws of such other states, Ohio companies of a like charac- ter are not as a matter of right entitled to do business therein. — Ohio ex rel. v. Moore, 39 Oh. St. 486 (18S3). Foreign mutual company may do as- sessment business. While life insurance companies organized in this state to do business on the mutual plan have no authority to do business on the assessment plan, yet such foreign corporation having such power should be allowed to do business in this state. — Ohio ex rel. v. Mat- thews, 58 Oh. St. 1 (1898). 'What constitutes assessment insurance. What constitutes the business of life insur- ance " on the assessment plan," within the meaning of that term, as used in this section (3630e), should be determined by the laws of this state; and that phrase should be held to contemplate a scheme of insurance conducted for the sole benefit of the policy holders, the principal source of revenue to arise from post- § 3630f. WHEN ACTION AGAINST SUCH ASSOCIATION MAY BE BEOTJGrHT. — An action may be brought against any such corporation, company, or association, organized under the laws of Ohio, or agajnst any such foreign corpora- tion, company, or association doing business in Ohio, in any county of this state where such cause of action arises, and summons may be issued and service had as provided in chapter six, sub-divisions one and two, title one, part third of the Revised Statutes of Ohio, the provisions of which chapter are hereby made applicable in such cases. (April 12, 1880, 77 v. 187, 181.) Note. — Chapter six, subdivisions one and two, title one, part third referred to in this section is now chapter five, sections 5032 to 5053 of the Revised Statutes. I § 3630g. MTJTTJAIi PROTECTION ASSOCIATIONS AND THEIR AGENTS; HOW RESTRICTED IN THE ISSUE OE POLICIES; PENALTY; ACCIDENT COM- PANIES. — No such corporation, 'company or association shall issue a certificate or policy to anj^ person, until such person has been first subjected to a thorough medi- mortem assessments intended to liquidate specific losses. — Ohio ex rel. v. llatthews, 58 Oh. St. 1 (1898). See note to this case under § 3587. Rights of Ohio associations in Michigan, see State ex rel. v. Ins. Co., 47 Oh. St. 167 (1890). Xiimitation as to foreign companies. A company of another state organized for " insuring lives on the plan of assessment upon surviving members," without limitation, does not come within the class of companies provided in this section. The section does not embrace companies insuring the lives of mem- bers for the benefit of other than their fam- ilies and heirs. — State v. Moore, 38 Oh. St. 7 (18S2) ; Ohio ex rel. v. Moore, 39 Oh. St. 486 (1883) ; State v. Ins. Co., 47 Oh. St. 167 (1890). See note, supra, to State v. Mutual Benefit Ass'n, 42 Oh. St. 579 (1885), under § 3630. Also note amendment to this section " and provided further, that such corporation, com- pany, or association, shall be authorized to transact in this state, etc., notwithstanding such corporation may have been organized on the assessment plan and authorized by the laws governing it to issue policies insuring lives on the plan of assessment upon surviv- ing members without limitation." (88 v. 252.) Comity betw^een states. The. law of comity is fully satisfied, when foreign companies are permitted to do busi- ness in this state upon the terms prescribed for domestic companies. — State v. Moore, 38 Oh. St. 7, 11 (1882). 390 Private Corporations in Ohio. Mutual Protection and Accident Companies, §§ 3630h, 3630i. cal examination by a regularly educated physician and found to be a good risk, nor to any person above tlie age of sixty-five years, nor under the age of fifteen years. Any trustees, officer, agent or employe of any such corporation, company or associ- ation, who shall knowingly insure or cause or permit to be insured any person with- out that person's knowledge or consent, or any fictitious person or any person over sixty-five or under fifteen years of age, or any sickly or infirm person, or who shall issue a certificate or policy of insurance for any such corporation, company or association which has not complied with the laws of this state and received from the superintendent of insurance a. certificate of such compliance, or who shall know- ingly violate any of the provisions of section thirty-six hundred and thirty. Revised Statutes, or the sections supplementary thereto, and any physician or other person who shall knowingly aid in or abet in any manner any such trustee, officer, agent or employe in effecting such insurance, or insurance on his own life, shall be fined not more than one thousand dollars, nor less than one hundred dollars, or imprisoned not more than six months, or both. But the provisions of this supplementary section in respect to the age and medical examination of persons to whom certificates or policies shall issue, shall not apply to such corporations, companies or associations doing a purely accident business. (April 17, 1885, 82 v. 138; 80 v. 179.) § 3630h. EXPENSES: HOW PAID.— The expenses of such corporations, com- panies or associations shall be met by fixed annual payments, or by assessments made and designated to be for such expenses; but such assessments shall, in no case, be made or become a part of, any assessments to pay a loss by death; and no part of the mortuary fund shall in any case be used to pay expenses. (April 18, 1883, 80 v. 179.) § 3630i. AGAINST PERSONAL INJURY AND LOSS OP LIFE; AGAINST EXPENSES AND LOSS OP TIME OCCASIONED BY INJURY OR SICKNESS; EX- PENSES, HOW MET; EXPENSE, LOSS, AND GUARANTY PUNDS: SEPARATION OF SUCH FUNDS; NOTICE TO PERSONS ASSESSED; BOND REQUIRED ONLY OF PURELY ACCIDENT COMPANIES.— Companies consisting of five or more citizens of Ohio may be organized under this chapter and section for the special pur- pose of insuring against accidental personal injury and loss of life, sustained while traveling by railroad, steamboat or other mode of conveyance, and making all and every insurance connected with accidental loss of life and personal injury, sustained by accident, of every description v/hatever, and against expenses and loss of time occasioned by injury or sickness, and on such terms and conditions, and for such periods of time, and confined to such countries and localities, and to such persons as from time to time may be provided in the by-laws of the company; and the expenses of such corporations, companies or associations, shall be met by fixed annual pay- ments, payable quarterly or otherwise, or by assessments on the members, payable as may be provided in the by-laws; and on either plan there may be included in such payments or assessments, a certain per cent, thereof, to be fixed by the by-laws, which when collected, shall be credited on the books of the company to the expense fund, and the residue thereof shall be so credited to the fund to pay losses and create a reserve or guarantee fund for the payment of losses and liabilities, and said funds shall be kept separate, and shall never be interchanged or used for purposes other than those for which they were respectively collected as aforesaid; provided, that the f'-ssessed shall be notified at the time of the collection of each payment the per cent, thereof that is collected to pay expenses, and the per cent, thereof that is collected to pay losses and create a guarantee fund; but nothing herein shall prevent the com- pany from distributing to certificate-holders the surplus in the accident fund and the surplus arising from the reserve on lapsed and canceled certificates as provided in the by-laws of the company; and provided, that companies organized under the provi- sions of this section shall, before engaging in business as provided in this section, Life Insurance Companies. 391 Accident Companies, Foreign, § 3630j. execute a bond in the sum of one hundred thousand dollars to the state of Ohio, with security to the acceptance and approval of the superintendent of insurance, for the "use and benefit of all persons holding policies or certificates in such company, condi- tioned that such company shall credit upon the books of said company, all moneys leceived by them under the provisions of this section, keep the funds separate and n.ot use or interchange them for purposes (other) than those for which they were respectively collected, and that they will apply and pay out said funds to and for the purposes provided for in this section, which bond, when so executed and approved, shall be deposited with and held by the superintendent of insurance. Provided further, that any corporation, company or association, organized for the purpose of doing a purely accident insurance business, and which corporation, company or asso- ciation, creates a reserve or guarantee fund from the premiums collected by assess- ments or otherwise, as provided in the by-laws of the corporation, company or asso- ciation, shall not be subject to the preceding part of fus section, relating to the deposit of a bond in the sum of one hundred thousand dollars; but the treasurer of all such corporations, companies or associations shall, before commencing business, deposit with the superintendent of insurance a. bond with approved securities, to the acceptance of said superintendent in the sum of ten thousand dollars, for the use and purposes provided in the preceding portion of this section; and every such corporation, company or association shall invest, as provided in section 3598 of the Revised Stat- utes of Ohio, so much of the reserve or guarantee fund, in excess of ten thousand dol- lars, as shall equal at least two and one-half per cent, of all premiums or assessments collected from policies or certificates in force, on the last day of June and December of each year, until said reserve or guarantee fund shall be equal to two dollars for every five thousand dollars of insurance in force; securities for said reserve, as herein provided, shall be deposited with the superintendent of insurance on the last day of June and December of each year, or within thirty days thereafter, to be held by said superintendent for the benefit and protection of policy or certificate holders. Pro- vided, that if such corporation, company or association shall at any time cause all of its unexpired policies or certificates to be paid, canceled or reinsured, and all its lia- bilities under such policies or certificates thereby to be extinguished, or to be assumed by some other responsible company authorized to do business in this state, the super- intendent of insurance shall, on application of such company, verified by the oath of its president or secretary, and on being satisfied by an examination of its books and of its officers, under oath, that all of its policies or certificates are so paid, can- celed, extinguished or reinsured, deliver up to it such security. Any corporation, company or association, or officer thereof, violating any of the provisions of this sec- tion, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not less than one hundred dollars nor more than one thousand dol- lars, or imprisoned in the county jail where said officer resides, for not less than thirty days nor more than one year, or both, at the discretion of the court. (May 19, 1894, 91 V. 332; March 19, 1887, 84 v. 130.) § 3630J. FOREIGN ACCIDENT, ETC., COMPANIES; ADMISSION TO DO BUSI- NESS. — Companies and associations organized under the laws of the United States and of other states, territories and nations, and doing the business of insuring against accidental personal injury and loss of life, sustained while traveling by raiU Toad, steamboat or other mode of conveyance, and making all and every insurance connected with accidental loss of life and personal injury, sustained by accident of every description whatever, and against expenses and loss of time occasioned by injury or sickness, and on such terms and conditions, and for such periods of time, and confined to such countries and localities, and to such persons as from time to time may be provided in the by-laws of the company; and where payments and ex- penses are met by fixed annual payments, payable quarterly or otherwise or by assessment on the members, payable as may be provided in the by-laws, or as pro- 392 Private Corporations in Ohio. Mutual Protection Associations — Bonds of Agents, etc. § 3631. vided in section 3630J of the Revised Statutes of OJiio, shall be admitted to do and transact such business in the state of Ohio, but shall, as a condition precedent to trans- acting business in the state, comply with the following conditions, to-wit: Deposit with the superintendent (of) insurance (1) a certified copy of its charter or articles of incorporation; (2) a certificate from the insurance commissioner, or superintendent of its own state, showing its authority to do such business; (3) a certificate from said commissioner or superintendent or other like authority of its own state that corpora- tion(s), companies or associations of this state engaged in the same or similar busi- ness, or engaged in the business of paying benefits in the case of sickness or disability, to be derived from assessments collected from the members, are, upon complying with the laws of said state, legally entitled to do business in such state; (4) a statement under the oath of its president and secretary or like officers, in the form by the su- perintendent of insurance required, of its business, for the preceding year; (5) a certificate under the oath of its president and secretary, or like officers, that such corporation, company or association is paying, and for the twelve months next pre- ceding has paid the maximum amount named in its policies or certificates; (6) a copy of its policy or certificate, application and by-laws, which must show that the liabili- ties of the assured members are not limited or fixed or artificial premiums; (7) evi- dence satisfactory to said superintendent that such corporation, company or associa- .tion has accumulated and maintained a fund, seciirely invested in securities permitted by the laws of its corporation, not less in amount than the proceeds of one periodical payment by, or an assessment on all certificate or policy holders thereof, and that such fund is held solely for the benefit or (of) certificate or policy holders and can only be used for the /purposes provided in the laws of the state where incorporated; pro- vided, that said fund shall not be less than five thousand dollars, and need not be more than ten thousand dollars; provided, the license to do business in this state shall not be delivered to any such corporation, company, or association, until it shall have filed with the superintendent of insurance an appointment of an attorney within the state upon whom service of process may be had. The superintendent of insurance shall thereupon issue to such corporation, company or association a certi- ficate of authority to transact its business in the state of Ohio, which said certificate of authority must be renewed annually, and it shall be the duty of the superintend- ent of insurance to refuse such certificate to any such corporation, company or associ- ation, when in his judgment such refusal will best promote the public interest; pro- vided, that all decisions by him made shall be subject to review by courts of com- petent jurisdiction. (May 10, 1902, 95 v. 520.) § 3631. NO AGENT TO COLLECT DUES "WITHOUT GIVING BOND; BOND OF TRSASUBER OF ASSOCIATION. — No agent or officer of any such corporation, com- pany or association shall be permitted to collect or receive any dues, assessments, or donations for or on account of the same, until he executes jointly, with two respon- sible sureties, a bond to the corporation, company, or association, to the approval of the trustees thereof, in such sum as they shall prescribe, conditioned for the payment of all such dues, assessments, and donations over to the proper officer of the com- pany; and all receipts of any such company or association shall be paid into the hands of the treasurer thereof, who shall, before assuming the duties of his office, give bond in the sum of not less than ten thousand nor more than fifty thousand dollars, as the said superintendent may determine, with not less than three sureties to be approved by the superintendent of insurance, and conditioned for the faithful accounting for, and proper payment and disbursement to the legitimate purposes of the company or association of all the money thereof, which comes into his hands. Said bond of the treasurer shall be examined, as to its sufficiency, annually, and shall be renewed when- ever the superintendent of insurance shall require, and, with the approval of the superintendent of insurance indorsed thereon, shall be filed with the secretary of state. (April 12, 1880, 77 v. 178, 181; February 3, 1875, 72 v. 23, § 4.) LiiFE Insurance Companies. 393 Mutual Benefit Societies — Discrimination, etc., §§ 3631a, 3631-1. § 3631a. MUTUAL BENEFIT, ETC., SOCIETIES EXCEPTED.— TMs act (viz.: sees. 3630a, 3630b, 3630c, 3630d, 3630e, 3630f, 3631) shall not apply to any asso- ciation or (of) religious or secret societies or to any class of mechanics, express, tele- graph or railroad employes, or ex-union soldiers, formed for the mutual benefit of the members thereof, and their families or blood relatives exclusively, or for purely chari- table purposes; provided, that any such association or class which may [desire to] become subject to the provisions of sections 363Da, 3630c and 3630d of the Revised Statutes of Ohio, may file with the superintendent of insurance notice in writing of such desire, signed by the president of such association or class, and attested by the secretary thereof; and thereupon such association or class shall become subject to all the terms and provisions of said sections 3630a, 3630c and 3630d of said Bevised Statutes; the superintendent of insurance shall thereupon immediately provide such association or class with proper blanks for furnishing the statement of the condition of such association or class, as provided in said section 3630a, and .such association or- class shall make such report within sixty days thereafter, and thenceforward, annu- ally, as in case of other insurance companies, which report shall be included by said superintendent of insurance in his annual tabulated report, in the same manner as the reports of other companies and subject to the fees prescribed in section 282 of the Revised Statutes of Ohio; provided further, that the treasurer of any association or class which shall avail itself of the benefits of this enactment shall be required t» give bond in the same manner as is provided in section 3631, Revised Statutes of Ohio; said bond to be conditional, approved and renewed as provided in said section. (April 16, 1900, 94 v. 354; April 11, 1890, 87 v. 170; March 14, 1889, 86 v. 89; April 12, 1880, 77 V. 178, § 8.) Railway relief association. An association created by a, railway com- pany for the relief of its employees is gov- erned by th's section — Gearen v. -B. & 0. Ry. Co.,' 19 W. L. B. 293 (1888). Acceptance of benefits no bar to action for damages. A raihraj' employee, being a member of the company's relief association, was killed; widow accepted the benefits of the associa- tion; held not to be a bar to an action by her as administratrix for damages. — Baltimore & Ohio R. R. Co. V. MeCamly, 12 C. C. 543 (1896). Rule prohibiting appeal to court, not valid. One of the rules in the relief department of a railroad provided that the decicion of an advisory committee as to claims to benefits should be final ; held, that upon the rejection by the committee of a valid claim, the bene- ficiary could maintain an action. — R. R. Co- V. Stankard et al., 56 Oh. St. 224 (1897). But see notes under § 3631-11. Certificate payable to father before marriage; after marriage, 'widoiv en- titled to same. A member of the Brotherhood of Loco- motive Firemen held, before marriage, a certi- ficate payable to his father. The son after- ward mai-ried; held, the certificate should be payable to the widow. — Lett v. Brother- hood of Locomotive Firemen, 44 W. L. B. 160' (1900). § 3631-1. Sec. 1. INSURAirCB COMPANIES FORBIDDEN TO DISCRIMI- NATE AGAINST PERSONS OP AFRICAN DESCENT IN PREMIUMS.— No life insurance company now organized or doing business, or that may hereafter be organ- ized and do business within this state, shall make any distinction or discrimination between white persons and colored, wholly or partially of African descent, as to pre- miums or rates charged for policies upon the lives of such persons; nor shall any such company demand or require greater premiums from such colored persons than are at that time required by such company from white persons of the same age, sex, general condition of health and hope of longevity; nor shall any such company make or require any rebate, diminution or discount upon the sum to be paid on such policy in case of the death of such colored person insured, nor insert in the policy any con- dition, nor make any stipulation whereby such person insured shall bind himself or his heirs, executors, administrators and assigns to accept any sum less than the full value or amount of such policy in case of a claim accruing thereon by reason of the 394 Private Corporations in Ohio. Discrimination as to Insurants, §§ 3631-3-3631-6. death of such person insured, other than such as are imposed upon white persons in similar cases; and any such stipulation or condition so made or inserted shall toe void. (March 28, 1889, 86 v. 163.) § 3631-2. Sec. 2. WHAT SHALL BE DONE WHEN APPLICATION OF PER- SONS OF COLOR IS REFUSED. — Any such company which shall refuse the applica- tion of any such colored person for insurance upon such person's life, shall furnish such person with the certificate of som.e regular examining physician of such com- pany who has made examination of such person, stating that such person's applica- tion has been refused, not because such person is a person of color, but solely upon such grounds of the general health and hope of longevity of such person as would be applicable to white persons of the same age and sex. (March 28, 1889, 86 v. 163, 164.) §3631-3. Sec. "3. PENALTY FOR VIOLATING THIS ACT.— Any corporation, or the officer or agent of any corporation, violating any of the provisions of this act, either by demanding or receiving from such colored person such different or greater prem.ium, or by allowing any discount or rebate upon the premium paid or to be paid by white persons of the same age, sex, general condition of health and hope of lon- gevity, or by making or requiring any rebate, diminution or discount upon the sum to be paid upon a policy in case of the death of such colored person insured, or by failing to furnish the certificate required by section second, shall for each offense be fined not less than one hundred nor more than two hundred dollars. But nothing in this act shall be so construed as to require any agent or company to take or receive the application for insurance of any person. (March 28, 1889, 86 v. 163, 164.) § 3631-4. Sec. 1. PREMIUMS FOR LIFE OR ENDOWMENT INSURANCE; UNLAWFUL TO DISCRIMINATE. — No life insurance company doing business in Ohio, shall make or permit any distinction or discrimination in favor of individuals between insurants of the same class and equal expectation of life in the amount or payment of premiums, or rates charged for policies of life or endowment insurance, or in the dividends or other benefits payable thereon, or in any other of the terms and conditions of the contract it makes; nor shall any such company, or any agent thereof, make any contract of insurance, or agreement as to such contract, other than is plainly expressed in the policy issued thereon; nor shall any such company or agent pay or allow, or offer to pay or allow, as inducement to insurance, any rebate cf premium payable on the policy, or any special favor or advantage in the dividends or other benefits to accrue thereon, or any valuable consideration or inducement what- ever not specified in the policy contract of insurance. (April 27, 1893, 90 v. 345; .April 10, 1889, 86 v. 220.) § 3631-5. Sec. 2. PENALTY FOR VIOLATION BY CORPORATION OF PRO- VISIONS OF THIS ACT. — Every corporation which shall violate any of the provi- sions of this act shall be fined in any sum not less than one hundred dollars nor exceeding five hundred dollars, to be recovered by action in the name of the state, and the amount so recovered shall be paid into the county treasury for the benefit of the common school fund. (April 27, 1893, 90 v. 345; April 10, 1889, 86 v. 220.) § 3631-6. Sec. 3. VIOLATION BY OFFICER OR AGENT OF CORPORATION. — Every officer or agent of any such corporation who shall violate any of the provi- sions of this act, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined in any sum not less than one hundred dollars nor exceeding five hundred dollars, or imprisonment in the jail of the county not exceeding thirty days, or both, at the discretion of the court, and shall pay the costs of prosecution. (April 27, 1893, 90 v. 345.) Life Insurance Companies. 395 stock in other Companies — Fraternal Companies, etc., §§ 3631-7-3631-11. § 3631-7. Sec. 4. EEVOCATION OF LICENSE FOE VIOLATION.— It shall be the duty of the superintendent of insurance, upon being satisfied that any such cor- poration, or any agent thereof, has violated any of the provisions of this act, to revoke the license of the company, or agent, so offending, and no license shall be granted to such company, or agent, for one year after such revocation. (April 27, 1893, 90 V. 345.) § 3631-8. Sec. 1. CERTAIN INCORPOKATED COMPANIES MAY PX7B.CHASE AND OWN STOCK IN OTHER COMPANIES.— Whenever any incorporated com- pany organized under the laws of the state of Ohio, and having a. capital stock in- cluding corporations organized as provided in section thirty-eight hundred and sixty- eight. Revised Statutes, and the acts amendatory and supplementary thereto, is or- ganized for the purpose of erecting and maintaining a building, any portion of which is intended for or to be occupied by two or more incorporated companies not having a capital stock, including religious, scientific, and beneficial associations heretofore incorporated under the provisions of sections sixty-six to seventy of " an act to provide fer the creation and regulation of incorporated companies in the state of Ohio," passed May 1, 1852, and the several acts supplementary and amendatory thereto, as a lodge-room, chapel, or regular place of meeting for their members, the said incor- porated companies, societies or benevolent associations may each subscribe for, pur- chase or become the owner or owners, by donation or otherwise, of the whole or any portion of the capital stock of said incorporated company organized for the purpose of erecting and maintaining such building aforesaid. (April 18, 1883, 80 v. 177.) § 3631-9. Sec. 2. TO BE LIABLE IN CORPORATE CAPACITY SAME AS INDIVIDUALS. — That each of said incorporated companies, societies and associa- tions shall be liable in its corporate capacity for and on their respective shares of said capital stock so subscribed, purchased, and owned by it the same as if the same were held and owned by an individual. (April 18, 1883, 80 v. 177.) § 3631-10. Sec. 3. DIRECTORS; WHEN AND HOW ELECTED.— That when- ever two or more of such incorporated companies, societies, or benevolent associations shall subscribe, purchase or own all the capital stock of said incorporated company organized for the purpose of erecting and maintaining such building, each of said incorporated companies, societies or benevolent associations, shall elect three mem- bers of its company, society or association to act as directors of said incorporated company as soon as all the stock is subscribed and ten per cent, is paid, and shall thereafter at its first stated meeting in January of each year, elect three such direct- ors. That the directors so elected and their successors in office shall comprise the board of directors of said incorporated company, and have all the powers conferred by law on the directors of incorporated companies having a capital stock, and said directors need not be the owners or holders of any of the capital stock of said cor- poration. (April 18, 1883, 80 v. 177.) § 3631-11. Sec. 1. FRATERNAL BENEFICIARY ASSOCIATION DEFINED; AS TO BENEFITS IN DETAIL.— A fraternal beneficiary association is hereby declared to be a corporation, society or voluntary association, formed or organized and carried on for the sole benefit of its members (and) their beneficiaries. "Each associa- tion shall have a lodge system, with ritualistic form of work and representative form of government, and may make provision for the payment of benefits in case of death, sickness, temporary or permanent physical disability, either as the result of disease, accident or old age, provided the period of life at which payment of physical dis- ability benefits on account of old age commences, shall not be under seventy (70) years. Each association or order may also make provision for withdrawal of those of its members unable or unwilling to continue their payments at any time after two years of membership, provided, however, that such withdrawal benefits shall not 396 Private Corporations in Ohio. Fraternal Beneficiary Associations, § 3631-12. exceed the amount contributed by such members, and it may also make provisions for the payment of filial benefits, at any time after ten years of membership, as m.ay be provided by its constitutional laws. The fund from which the payment of such benefits shall be made,, and the fund from which the expenses of any such association shall be defrayed shall be derived from assessments, dues or other payments col- lected from its members. Payments of death benefits shall be to the families, heirs, blood relatives, afiianced husband or affianced wife of, or to persons dependent upon the members. Such associations shall be governed by this act, and shall be exempt from the provisions of the insurance laws of this state, and no law hereafter passed shall apply to them unless they be expressly designated therein. Any such society, order or association may create, maintain and disburse a reserve fund in accordance with its constitutional by-laws. Such reserve fund (if any), shall represent certain prescribed accumulations or percentages retained for the benefit of the members or their beneficiaries, and no part thereof shall be used for expenses. (April 27, 1896, 92 V. 360.) Limitation as to bene^'ciary. An association, whose charter provides that it may provide aid for its members and their dependents, is not authorized to issue a cer- tificate payable to one not dependent upon a member. — Jlfftunness v. Supreme Council, 59 Oh. St. 531 (1898). Not an insuraince compaiiy. I A benefit association is not an insurance company.— McGunness v. Supreme Council, 59 Oh. St. 531-537 (1898); ilartiu v. Stub- bings, 126 111, 387 (1888). Must exhaust remedies of order. Member must exhaust his remedies in the order before he can have recourse to courts. — Cincinnati Lodge v. Littlebury, 6 W. L. B. 237 (1880); State v.' Knights Golden Rule, 10 W. L. B. 2 (1883) ; Myers v. Jenkins, 44 W. L. B. 212 (1900); Schryver v. Columbian Lodge, 3 C. C. 422 (1888). Determination of order conclusive. The determination of the matter in contro- versy by the lodge and its tribunals, in sub- stantial accordance with the laws of the order, will be final and conclusive, — Mvers et al. v. Jenkins, 44 W. L. B. 212 (1900)"; Cincinnati Lodge v. Littlebury, 6 W, L, B, 237 (1880); Pyre v. Relief Ass'n, 90 Cal. 240 (1891)^ Schrj'ver v. Columbia Lodge, 3 C. C, 422 (1888). But see R. R, Co, v, Stankard et al., under § 3631a; Steuve v. Grand Lodge, 5 C, C, 471 (1891); s. c, 3 C, D, 231, Refusal of order to determine demand. Upon the refusal or neglect of the order to have tne right to benefits determined in sub- stantial accordance with the laws of the order, § 3631-12. Sec. 2. CONDITIONS UPON WHICH SOCIETY, ORDER OB ASSO- CIATION, WHICH HAS BEEN OPERATING, MAY CONTINUE.— Any society, order or association of this, or any other state, province or territory, now operating in this state, and having lodges, councils or branches duly established or organized in this state, may continue their business, provided that they hereafter comply with the provisions of this act regulating annual reports and the designation of the super- intendent of insurance as the person upon whom process may be served as herein- after provided. (April 27, 1896, 92 v. 360.) or upon refusal to pay after the same have been awarded, then an action may be main- tained. — Mvers et al. v. Jenkins, Admr., 44 W. L. B. 212 (1900). AVaiver of appeal to courts, void, A contract in advance to renounce and waive one's right to appeal to the courts is void and of no effect. — Myers et al. v. Jen- kins, Admr,, 44 W. L, B. 212 (1900); Balti- more, etc., R. R. Co. V. Stankard, 56 Oh. St. 224 (1897); Myers v. Lucas, 16 C. C. 546 (1898); s. c, 8 C. D. 431. Members' rights subject to rules of order. Member becomes subject to rules of order and cannot apply to courts for relief unless there has been some invasion of some prop- erty right of his, as by some breach of con- tract made with him, or by some action done without authority. — Steuve v. Grand Lodge.. 5 C. C. 471 (1891); s. c, 3 C, D. 231. Distribution of funds upon dissolution, or insolvency. Schroeder v. Iron Hall, 7 N. P. 243 (1895) ; s. c, 1 Dec, 408; Mutual Aid Ass'n, In re dis- solution, 3 N. P. 145 (1895) ; s. c, 4 Dec. 272; Collier v. Benf. Ass'n. 1 W, L, B, IS (1876), See two recent cases, one denying, the other affirming, the right to resort to courts — Hemheau v. Maccabees, 49 L, R, (ilich,) 592 (1900); Order of Select Friends v. Raymond, 49 L. R. A. (Kan.) 3i3 (1900). As to power of expulsion, i-emedy for wrong- ful e.xpulsion. etc., see notes co § 3630. See generally notes to § 3630; Steuve v. Grand Lodge, 5 C. C. 471; 3, c, 3 C. D. 231, and 10 W. L. B. 365. Life Insurance Companies. 397 Fraternal Beneficiary Associations, §§ 3631-13, 3631-14. § 3631-13. Sec. 3. CONDITIONS UPON WHICH FOREIGN ASSOCIATION ADMITTED. — Any association operating within the description as set forth in sec- tion 3631-11 of the Revised Statutes of Ohio, organized under the laws of any other state, province or territory, and not now doing business in this state, shall be admitted to do business within this state when it shall have filed with the superin- tendent of insurance a duly certified copy of its charter and articles of association and a copy of its constitution or laws, certified to by its secretary or corresponding officer, together with an appointment of the superintendent of insurance of this state, as the person upon whom process may be served as hereinafter provided; and provided that such association shall be shown by certificate to be authorized to do business in the state, province or territory in which it is incorporated or organized in case the laws of such state, province or territory shall provide for such authorization and in case the laws of such state, province or territory do not provide for any formal au- thorization, to do business on the part of any association, then such association shall he shown to be conducting its business in accordance with the provisions of this act, for which purpose the superintendent of insurance of this state may personally, or by some person to be designated by him, examine into the condition, affairs, character and business methods, accounts, books and investments of such association at its home office, which examination shall be made within thirty days after demand there- for, and the expense of such examination and of all examinations of associations of this or any other state shall be paid by the state treasurer on the warrant of the state auditor upon the certificate of the superintendent of insurance; provided, that the expenses of any examination made upon the demand of an association shall be paid by it; and provided, also, that, when the laws of any other state or district require or permit examinations of associations of this state to be made by the insur- ance department or any other authority of such state or district at the expense of such association, then the expense of all examinations made by the insurance depart- ment of this state of associations of such other state or district shall be charged to and collected from such associations. (May 12, 1902, 95 v. 606; April 27, 1896, 92 V. 360.) Failure to comply -writli conditions does not render certificate void. Klinckhammer Brewing Co. v. Cassman et al., 21 C. C. 465 (1900), reversing 9 Dec. 599; dismissed in Supreme Court, 44 W. L. B. 186. §3631-14. Sec. 4. ANNUAL REPORT OF ASSOCIATIONS.— Every such asso- ciation doing business in this state shall, on or before the first day of March of each year, make and file with the superintendent of insurance of this state, a report of its affairs and operation during the year ending on the thirty-first day of December im- mediately preceding, which annual report shall be in lieu of all other reports required by any other law. Such report shall be upon blank forms, to be provided' by the superintendent of insurance, or may be printed in pamphlet form, and shall be veri- fied under oath by the duly authorized officers of such association, and shall be pub- lished, or the substance thereof, in the annual report of the superintendent of insur- ance, under a separate part, entitled " fraternal beneficial associations," and shall contain answers to the following questions: I. INCOME DURING THE YEAR. Amount received for assessments ^ Rents, interest and dividends on stocks and bonds All other sources, viz Total amount received during the year 398 Private Corporations in Ohio. Fraternal Beneficiary Associations, § 3631-15. II. EXPENDITimES DURING THE YEAR. Benefits, losses and claims paid Sick benefits paid Salaries and otliSr compensation of officers and for clerical force. . . . Paid for rent Paid for office expenses, lodge supplies, organization of lodges or brandies; of building up the same, printing, advertising and all other expenditures Total amount of expenditures during the year III. ASSETS. Bonds and stocks Loans on mortgages, evidenced by notes and otherwise . Loans on other collateral and security Real estate Cash in bank Securities deposited in different states, if any Total other assets, viz Total assets IV. LIABILITIES. Losses and claims due and unpaid No. - Losses and claims reported but not due No. Salaries due and unpaid Due for borrowed money. All othsr liabilities, viz , Total liabilities V. EXHIBIT OP MEMBERSHIP. Membership and amount in force at the end of the year preceding, for which this report is made No $ Give number of members and amount of certificates issued during the year No Total during the year No Deduct members and amount of certificates retiring by withdrawal or suspension during the year No Deduct members who have died during the year, and face amount of certificates paid No • Total members in good standing Dec. 31, 189 . . No (April 27, 1896, 92 v. 360.) § 3631-15. Sec. 5. AS TO PROCESS.— Each such association now doing, or here- after admitted to do business within this state and not having its principal office within this state, and not being organized under the laws of this state, shall appoint in writing the superintendent of insurance or his successors in office, to be its true and lawful attorney, upon whom all lawful process in any action or proceeding against it may be served, and in such writing shall agree that any lawful process against it, which is served on said attorney, shall be of the same legal force and validity as if served upon the association, and that authority shall continue in force so long as any liability remains outstanding in this state. Copies of such certifi- cate, certified by said superintendent of insurance, shall be deemed sufficient evi- dence thereof and shall be admitted in evidence with the same force and effect as the Life Insurance Companies. 399 Fraternal Beneficiary Associations, §§ 3631-16, 3631-17. original thereof might be admitted. Service upon such attorney shall be deemed sufficient service upon such association. When legal process against any such asso- ciation is served upon said superintendent of insurance, he shall immediately notify the association of such service by letter, prepaid and directed to its secretary or cor- responding officer, and he shall, within two days after such service, forward in the same manner, a copy of the process served on him to such officer. The plaintiff in such process so served shall pay to the superintendent of insurance, at the time of such service, a fee of two dollars ($2), which shall be recovered by him as a part of the taxable costs, if he prevails in the suit. Superintendent of insurance shall keep a record of all processes served upon him, which record shall show the day and hour when such service was made, and by whom made. (April 27, 1896, 92 v. 360.) 1 § 3631-16. Sec. 6. PERMIT TO DO BUSINESS; FEE; ANNUAL FEE THEBE- AFTEK. — Superintendent of insurance of this state shall, upon the application of any association having a right to do business within this state, as provided by this act, issued to such association, a permit in writing, authorizing such association to do business within this state, for which certificate and all proceedings in connEction therewith, such association shall pay to said superintendent a fee of twenty-five dol- lars ($25). This fee shall be paid annually thereafter when report is filed. (April 27, 1896, 92 v. 360.) § 3631-17. Sec. 7. PBOCEDURE AND REQUIREMENTS IN FORMATION OF ASSOCIATION; ANNUAL MEETINGS FOR ELECTION OF MANAGERS OR TRUSTEES. — Seven or more persons, citizens of the. United States, and a majority of whom are citizens of this state, who may desire to form a fraternal ben3ficiary association, as defined by this act, may make, sign, seal and acknowledge before some officer competent to take the acknowledgment of deeds, a certificate in writing in which shall be stated: (A) The names and places of residence of applicants. (B) Proposed corporate name of the association, which shall not too closely resemble the name of any other similar organization. (C) The object or purpose for which the incorporation is sought, which shall not include more liberal powers than are granted by this act. (D) Location of the principal office of the corporation. (E) Number of trustees, directors, or similar officers and their names, who sha]l manage the concerns of the corporation for the first year, or until the ensuing annuel meetings. Meetings for the election of managers or trustees shall be held annually, and as far as possible during the month of January of each year, according to the regula- tions of the constitution and laws of the association. When the said certificate has been duly signed and acknowledged by the incorporators thereof, it shall be sub- mitted to the attorney-general for his approval in conformity with this act, and after the said approval shall have been indorsed thereon, shall be duly recorded in the county in which the home office of the corporation is located, and a certified copy thereof immediately forwarded to the superintendent of insurance with a certified list of officers in charge of the association, with their residences and the location of the home office. In addition to this proof, satisfactory to said superintendent of insurance, shall be furnished by two of the officers of the said association, that at least one hundred subscribers for certificates of membership have been secured in said association, and that there has been deposited to the credit of said association for the payment of death and other claims, and which amount can not be used for expenses, the sum of five thousand dollars, which sum, if advanced by the trustees, officers or directors, may be repaid to them from, time to time from the proceeds of an expense fund to be created for this purpose. Associations of this state of similar 400 Private Corporations in Ohio. Fraternal Beneficiary Associations, §§ 3631-18-3631-30. character to those defined by this act, may by resolution of their present board of managers or trustees, incorporate under this act, as herein provided, and the corporate existence of which shall then and there continue as if such association had been originally incorporated under the same. (April 27, 1896, 92 v. 360.) § 3631-18. Sec. 8. BENEFITS NOT LIABLE TO ATTACHMENT, SEJZUBE, ETC. — The money or other benefit, charity, relief or aid to be paid, provided or rendered by any association authorized to do business under this act shall not be liable to attachment by a trustee, garnishee, or other process, and shall not be seized, taken, appropriated or applied by any legal or equitable process, or by operation of law, to pay any debt or liability of a certificate holder, or of any beneficiary named in a certificate, or any person who may have any rights thereunder. (April 27, 1896, 92 V. 360.) Construction of statute. The exemption provided in this section is to prevent the appropriation of the funds for the payment of debts of the holder of a certificate or of any person who may have a right there- under. But after the money comes into the possession of the person entitled to it, such person has only the same right of exemption as to such funds, which he has as to other property. — Klinckhammer Brewing Co. v. Cassman et al., 21 C. C. 465 (1900), reversing 8 Dec. 599 ; dismissed in supreme court, 44 W. L. B. 186. Creditor's bills to subject certificate, brought before payment, is premature. An action, in the nature of a creditor's bill, to subject the certificate to the payment of creditor's claim brought before the money due on the certificate reaches the beneficiary, is improperly brought and such creditor obtains no rights thereby over other creditors. In such a case payment into court will not be regarded as payment to the beneficiary. — Klinckhammer Brewing Co. v. Cassman et al.. 21 C. C. 465 (1900), reversing 9 Dec. 599; dis- missed in supreme court, 44 W. L. B. 186. Benefits from certain societies not ex- empt. See Hildreth v. Endowment Rank, 8 N. P. 540 (1901). TTnconstitntional. This section is unconstitutional because in conflict with section 2 of article I of the constitution. — Williams v. Donough, 65 Oh. St. 499 (1902). § 3631-19. Sec. 9. LEGISLATIVE. — Any such association organized under the laws of this state, may provide for the meetings of its legislative or governing body in any other state, province or territory, wherein such association shall have subordi- nate lodges, and all business transacted at such meetings shall be valid, in all respects, as if such meetings were held within this state, and where the laws of any associations provide for the election of its officers by votes to be cast in its subordi- nate lodges, the votes so cast in its subordinate bodies in any other state, province or territory, shall be valid, as if cast within this state. (April 27, 1896, 92 v. 360.) § 3631-20. Sec. 10. PENALTY FOE. FALSE OB, FRAUDTILENT STATEMENT OK REPRESENTATION. — Any person, officer, member or examining physician who shall knowingly or willfully make any false or fraudulent statement or repre- sentation, in or with reference to any application for membership, or for the purpose cf obtaining any money or benefit in any association transacting business under this act, shall be guilty of a misdemeanor, and upon conviction shall be punished by a' fine of not less than one hundred dollars nor more than five hundred dollars, or imprisonment in the county jail for not less than thirty days, or more than one year, or both, in the discretion of the court; and any person who shall willfully make a false statement of any material fact or thing in a sworn statement as to the death or disability of a certificate-holder in any such association for the purpose of procuring payment of a benefit named in the certificate of such holder, and any person who shall willfully make any false statement in any verified report or declaration under oath required or authorized by this act, shall be guilty of perjury, and shall be proceeded against and punished as provided by statute of this state in relation to the crime of perjury. (April 27, 1896, 92 v. 360.) Life Insurance Companies. 401 I'raternal Beneficiary Associations — Stipulated Premium Plan, §§ 3631-31-3631-24. § 3631-21. Sec. 11. EXCLUSION OF ASSOCIATION; PBOCEEDINGS IN INJUNCTION; REINSTATEMENT.— Any such association refusing or neglecting to make the report as provided in this act shall be excluded from doing business in this state. Said superintendent of insurance must within sixty days after failure to make such report, or in case any such association shall exceed its powers or shall conduct its business fraudulently, or shall fail to comply with any of the provisions of this act, give notice in writing to the attorney-general, who shall immediately com- mence an action against such association to enjoin the same from issuing any new business. And no injunction against any such association shall be granted by any court, except on application by the attorney-general at the request of the superin- tendent of insurance. No association so enjoined shall have authority to continue to do the business of soliciting new members until such report shall be made or overt act or violations complained of shall have been corrected, nor until the costs of such action be paid by it, provided the court shall find that such association was in default as charged, whereupon the superintendent of insurance shall reinstate such associa- tion, and not until then shall such association be allowed to secure new members in this state. Any officer, agent or person acting for any association or subordinate body thereof, within the state, while such association shall be so enjoined or prohibited from doin'g business pursuant to this act, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not less than twenty -five dollars or more than one hundred dollars. (April 27, 1896, 92 v. 360.) § 3631-22. Sec. 12. WHO SUBJECT TO PENALTY PROVIDED IN PRECED- ING SECTION. — Any person who shall act within this state as an officer, agent, or otherwise, for any association, which shall have failed, neglected or refused to comply ■with, or shall have violated any of the provisions of this act, or shall have failed, or neglected to procure from the superintendent of insurance a proper certificate of authority to transact business as provided for by this act, shall be subject to the penalty provided in the last preceding section for the misdemeanor therein specified. (April 27, 1896, 92 v. 360.) § 3631-23. CONFLICTING OR INCONSISTENT LAWS REPEALED; LODGES, ETC., TO WHICH ACT IS APPLICABLE.— All laws or part(s) of laws in confiict with or inconsistent with this act are and the same are hereby repealed, and nothing in this act shall be held to affect or apply to grand or subordinate lodges of Masons, Knights of Pythias, Odd Fellows or similar orders that do not have as their principal object the issuance of insurance certificates of membership. Nor shall anything therein contained apply to lodges or orders of a purely religious, charitable or benevo- lent description, paying exclusively sick, funeral or death benefits to members, their families or blood relatives, or dependents, or for purely charitable purposes, and not operating with a view to profit, nor shall any such organization be required to make any report under this or any other section of the insurance laws, and provided further, ^that no society, lodge or body of any secret or fraternal society or organiza- tion of employes of any particular trade, firm or corporation paying only sick bene- fits not exceeding two hundred and fifty dollars ($250) in the aggregate to any person in any one year, or a funeral benefit to those dependent on a member not exceeding three hundred and fifty dollars ($350), shall be required to make any report thereof Tinder this article, or under other articles of the insurance laws. (April 16, 1900 94 V. 356; April 27, 1896, 92 v. 360.) § 3631-24. Sec. 1. INCORPORATION OF COMPANIES FOR LIFE INSUR- ANCE ON THE STIPULATED PREMIUM PLAN.— Five or more persons may, in the maimer and according to the forms and requirements for the incorporation of insurance companies mentioned in sections 3588 and 3589 of the Revised Statutes and in this act, become an incorporated company for the purpose of making insur- LAW GOV. PRIV. COR. — 26. 402 Private Corporations in Ohio. Companies on Stipulated Premium Plan, §§ 3631-25-3631-27. ance upon the lives and health of individuals, and every insurance appertaining thereto or connected therewith, on the stipulated prem.ium plan as defined and regu- lated herein. (93 v. 343.) Liability of trustees. See Kelly v. Bender, 22 0. C. C. 144 (1901). § 3631-25. Sec. 2. COMPLETION OF ORGANIZATION.— No such corporation, company or association shall commence the business of life insurance until at least two hundred persons eligible under the proposed plan of the organization shall have subscribed in writing to be insured therein in the aggregate amount of at least five hundred thousand dollars, and shall have each paid or becom^e obligated to pay the amount of one annual stipulated net premium for their age at entry on the amount of insurance severally subscribed for, and which shall be held in trust for the bene- fit of the members of said corporation or their beneficiaries; nor until the superin- tendent of insurance shall have further certified that it has complied with the provisions of this act and is authorized to transact the business of insurance. DEPOSIT OF SECUmTIES. — Provided, however, that every corporation incor- porating or reincorporating under the provisions of this act, shall deposit with the superintendent of insurance in such securities as are required by law to be deposited by insurance companies, the sum of five thousand dollars within one year after date of such incorporation or reincorporation, and such corporation shall each year there- after, upon filing its annual statement, deposit in like securities with the superin- tendent of insurance, the sum of two thousand dollars on each million of insurance in force for the last calendar year, as shown by its said annual statement, until the sum of one hundred thousand dollars shall have been deposited. The securities deposited with the insurance department pursuant to this section shall be held by the superintendent in trust for the benefit and protection of and as security for the pol'cy holders of such corporation, their legal representatives and beneficiaries. (April 25, 1898, 93 V. 343.) § 3631-26. Sec. 3. LIFE INSURANCE ON STIPULATED PREMIUM PLAN DEFINED; CORPORATIONS SUBJECT TO PROVISION OF ACT; EXISTING STATUTES. — Any corporation, company or association which issues any policy, cer- tificate or other evidence of interest to, or makes any promise or agreement with its members whereby any money or other benefit is to be paid to a. member, or upon his decease to his legal representative or the beneficiary designated by him, which money or benefit is derived from stipulated premiums collected from its members, or members of a class therein, or from interest or accumulations, and wherein the money or other benefits so realized is applied to, or accumulated for the use and purposes of such corporation as herein specified, and the expenses of its management and prose- cution of its business, shall be deemed to be engaged in the business of life insurancs upon the stipulated premium plan, and shall be subject only to the provisions of this act, excepting that the provisions of chapter 8, title 3, part 1, and of chapter 10, title 2, part 2, of the Revised Statutes shall be applicable so far as the same are not inconsistent with the provisions of this act. (April 25, 1898, 93 v. 344.) § 3631-27. Sec. 4. EXISTING CORPORATIONS, ETC., MAY ACCEPT PRO- VISIONS OF ACT; HOW. — Any domestic corporation, company, association or society existing or doing business under the provisions of chapter 10, title 2, part 2, of the Revised Statutes, at the time this act takes effect, may, by a vote of a majority of its board of directors or trustees, and upon obtaining the consent of the superintendent of insurance thereto, in writing, accept the provisions of this act, and amend its articles of incorporation to conform with the same, so as to cover and enjoy any and Life Insurance Companies. 403 Companies on Stipulated Premium Plan, §§ 3631-28, 3631-29. all the provisions or privileges of this act, which might have been included and enjoyed, if it had been originally incorporated hereunder; and it shall file such amendment of its articles of incorporation and the consent required by this section, in the office of the secretary of state, and shall thereafter perpetually enjoy the same and be deemed to have been incorporated under this act. EXISTING CONTRACT OE. LIABILITY OF CORPORATION NOT APFEOTED BY ITS REINCORPORATION OR ACCEPTANCE.— The reincorporating or qualify- ing of any existing domestic or foreign corporation under the provisions of this act shall in no way annul, modify or change any existing contract, contracts or liabilities of such existing corporation, and any and all such contracts and liabilities shall con- tinue in full force and effect the same as though such corporation had not reincor- porated or qualified under this act. PENDING ACTIONS OR RIGHTS TJNAEEECTED.— Neither shall the reincor- porating or qualifying of any such corporations under the provisions of this act, in any way prejudice, impede, or impair any pendng action or proceeding, or any rights previously accrued. (April 25, 1898, 93 v. 344.) § 3631-28. Sec. 5. MINIMXJM: PREMIUMS.— Every such corporation, company or association doing business under the provisions of this act shall charge at least a net premium calculated upon the combined experience or actuaries' table of mortality, with interest at the rate of four per centum per annum, equal to that of a yearly term insurance at the age of entry. Such premium shall be increased by a loading of not less than twenty-five per centum, and may be paid annually, semi-annually, quarterly or bimonthly in advance. (April 25, 1898, 93 v. 345.) § 3631-29. Sec. 6. RESERVE FUND.— Every such corporation, company or association shall accumulate and at all times maintain a reserve fund not less than the net premium, according to the term of premium payment of each policy, upon all its outstanding policies, which net premium shall equal the amount called for by the combined experience or actuaries' table of mortality at the attained age of the insured, computed as specified in section 5 of this act. IMPAIRMENT OF FUND REMEDIED.— If the amount of such reserve fund is at any time reduced to less than such net premium upon all its outstanding policies at the attained age of the insured, or to less than the reserve required by the terms and conditions thereof, such deficiency shall be made up and restored to said fund within three months thereafter. DUTY OF SUPERINTENDENT IN CASE OF FAILURE TO REMEDY IM- PAIRMENT. — Should such impairment of the reserve fund not be made good within three months, then the superintendent of insurance shall require the officers of such corporation to forthwith notify its raembers to pay, within thirty days from the mailing of such notice, an extra premium sufficient to meet such deficiency appor- tioned equitably, and any such extra premium shall not be less than the difference between the actual net premium paid, and the net premium at attained age. If any member fails to pay such extra premium within the time named, the corporation shall scale down the policy of each and every member so failing to pay to such an amount as is necessary to make the reserve fund to his credit equal to said unearned premium on his insurance remaining in force, which amount shall be the maximum for which the corporation shall be liable under said policy. Said thirty days' notice shall clearly state the proportionate amount of the impairment due from the insured and shall contain the further statement that in the event of failure to pay the same within thirty days after the mailing of such notice, said policy will be scaled down as aforesaid. (April 25, 1898, 93 v. 345.) 404 Private Corporations in Ohio. Companies on Stipulated Premium Plan, §§ 3631-30-3631-33. § 3631-30. Sec. 7. LIMITED PAYMENT POLICIES.— Any corporation, com- pany or association doing business under this act may issue limited payment policies; provided such policies hereafter issued distinctly state the portion of each of the premiums to be held by, and charged against such corporation for the purpose of sus- taining such policies after expiration of the term of years in which the premiums are to (be) paid, which shall not be less than the legal reserve annually according to the actuaries' or combined experience table of mortality with interest at 4 per cant, per annum and which portion at the expiration of such term of years, together with the interest accredited thereto, shall not then nor thereafter be less than the single net premium at the attained age, according to the actuaries' or combined experience table of mortality, with interest at four per centum per annum; and if any such corpo- ration doing business under this act shall not state in its limited payment policies the portion of each of the premiums to be held by it for the purpose of sustaining the insurance after the term of years during which the premiums are to be paid, or if any such corporation shall issue any form of investment policies, then such limited payment or other form of investment policies hereafter issued shall be valued on the basis of the actuaries' or combined experience table of mortality, and interest at four per centum per annum, as provided and contemplated in section 279 of the Revised Statutes. (April 25, 1898, 93 v. 345.) § 3631-31. Sec. 8. CASH VALUES. — Any corporation, company or association authorized to do business hereunder, may pay fixed cash values, provided the amount of reserve computed and to be set apart for such cash value is plainly stated in the policy, and provided further that such cash value shall not be in excess of the portion of the premium with interest accretions thereon, collected for such purpose. (April 25, 1898, 93 v. 346.) § 3631-32. Sec. 9. DISTEIBITTION OF STJE,PLI7S.— If the cash and invested assets of the corporation, company or association, exceed the reserve fund required by this act, or under the terms and conditions of its policy contracts, and the actual liabilities of said corporation to an amount in excess of ten per centum of such reserve fund, then the amount of such excess may, if the policy contract so provides, be ' apportioned by the corporation as a dividend to members, in reduction of premiums, in the purchase of paid up or extended insurance, or may be drawn in cash; or such , dividend or dividends may be paid to the beneficiary of a deceased member in addi- tion to the face of the policy. (April 25, 1898, 93 v. 346.) j § 3631-33. Sec. 10. WHAT POLICY SHALL SET EOKTH.— Every policy here- after issued by any corporation, company or association doing business under this act and promising any payment to be made upon a contingency provided for in this act, shall specify the sum of money which it promises to pay upon each contingency insured against, and the number of days after satisfactory proof of the happening of same on which such payment shall be made. OBLIGATION OF COMPANY TO BENEEICIABIES OR INSURED.— Upon the occurrence of such contingency, unless the contract shall have been avoided by fraud or breach of its conditions, the corporation shall be obligated to the beneficiaries or insured for such payment at the time and to the maximum amount due undsr the policy. REFUSAL OR FAILURE TO PAY. — If the superintendent of insurance shall be satisfied, upon investigation, that any such corporation has refused or failed, after proper demand, to make such payment for sixty days after final judgment has been obtained upon such claim, he shall notify the corporation to issue no new policies Life Insurance Companies. 405 Companies on Stipulated Premium Plan, §§ 3631-34, 3631-35. until such indebtedness is fully paid; and no officer or agent of the corporation shall make, sign or issue any policy of insurance while such notice is in force. (April 25, 1898, 93 V. 346.) § 3631-34. Sec. 11. FOKEIGN COBPORATIONS MUST PBOCUBE CEBTIT"!- CATE OF AUTHORITY. — No corporation, company, association or society organ- ized under the laws of any other state or territory of the United States or the District of Columbia or foreign country, shall transact business under the provisions of this act until it has received from the superintendent of insurance a certificate of authority to do business in this state, a duplicate of which shall be filed in his office. RENEWAL CERTIEICATES.— The superintendent shall annually issue to such foreign corporation, company, association, or society, renewal certificates of authority to continue business, if it shall have fully complied with the provisions of this act, and if the superintendent shall be of the opinion that any such corporation, company, association or society is not entitled to a renewal of a certificate of authority, he may in his discretion cite the same to appear, giving reasons therefor, and show cause why the certificate of authority should not be renewed; and unless the certificate of authority shall be renewed within ten days after such hearing, such foreign corpora- tion, company, association or society shall cease to do business in this state. SUPERINTENDENT MAY REFUSE CERTIFICATE.— The superintendent may refuse a certificate of authority or renewal of the same to any such foreign corpora- tion, company, association or society, when such refusal will best promote the public interests. OBLIGATIONS SIMILAR TO THOSE OF OTHER STATES.— When any state, territory or foreign country shall impose any obligations upon any such corporation of this state, or their agents, transacting business in such other state, territory or foreign country, the like obligations are hereby imposed upon similar corporations of such other state, territory or foreign country, and their agents or representatives transacting business in this state; and such corporation, company, association or society of such other state, territory or foreign country, and its agents and represen- tatives, shall pay all licenses, fees or penalties to and make deposits with the super- intendent of insurance imposed by the laws of such other state, territory or foreign country upon any corporation of this state doing business therein; and in case of failure to pay the same, the superintendent shall refuse the certificate of authority herein provided for or cancel such certificate if one shall have been previously issued. FOREIGN COMPANY TO FURNISH EVIDENCE TO ENTITLE IT TO LICENSE. — No foreign corporation, company, association or society shall be authorized to transact any business authorized by this act within this state, unless it furnishes evidence satisfactory to the superintendent of insurance that it has a reserve fund equal in amount to that required by this act, and that the same is held for the bene- fit of policy holders only, and invested as required by the insurance laws of this state. Neither shall any foreign corporation, company, association or society be authorized to do business in this state unless it collects in advance for the benefit of its policy holders a net premium equal to at least that provided for by the terms of this act. (April 25, 1898, 93 v. 346.) § 3631-35. Sec. 12. DISCRIMINATION PROHIBITED.— No life insurance corporation, company or association subject to the provisions of this act shall make any discriminations in favor of individuals of the same class or of the same expecta- tion of life, either in the amount of premiums charged or in any return of premiums, dividends or other advantages. 406 Private Corporations in Ohio. Companies on Stipulated Premium Plan, §§ 3631-36-3631-38. CONTRACTS BY AGENTS. — No agent of such corporation shall make any con- tract for insurance or agreement as to such contract other than that which is plainly expressed in the policy issued. REBATE OF PREMIUM PROHIBITED.— No such corporation or agent thereof shall pay or allow, or offer to pay or allow, as an inducement to any person to insure, any rebate of premium, or any special favor or advantage whatever in dividends to accrue thereon, or any inducement whatever not specified in the policy. If it shall appear to the satisfaction of the superintendent of insurance, after a. hearing by him upon due notice, that any corporation is issuing policies or making contracts that are in violation of this section, he shall upon the written approval of the attorney-general, require such corporation and its pflScers and agents to refrain, within twenty days, from making any such policy or contract. If any such corporation or officer or agent thereof shall fail to comply with the provisions of this section the superintendent shall institute such proceedings at law as may be necessary to restrain such viola- tion of this section. (April 25, 1898, 93 v. 347.) Rebate of premium agreed to by sub- | Afterward a check dated ahead was given in agent; transaction void. place of the note. Held, both void. — Tilling- ' H.," a sub-agfent, agreed with assured to make a rebate on the premiunij the latter giving his note for the premium, less rebate. hast et al. v. Craig, 17 C. C. 531 (1893) ; s. c, 9 C. D. 459. Note amendment to this section (93 v. 347). § 3631-36. Sec. 13. POLICY HOLDER NOT PERSONALLY LIABLE FOR LOSSES OF CORPORATION. — No person shall incur any personal liability for the losses or liabilities of any corporation, company or association organized or doing business under this act by reason of being a policy holder in such corporation. (April 28, 1S98, 93 V. 348.) § 3631-37. Sec. 14. WITHDRAWAL OF SECURITIES UPON RELINQUISH- MENT OF BUSINESS. — When any such corporation, company or association shall desire to relinquish its business the superintendent shall, on application of such cor- poration under the oath of its president or principal officer and secretary or actuary, give notice of such intention at least twice a week for six months in a newspaper of general circulation published at Columbus. After such publication he shall deliver up to said corporation the securities held by him belonging to it upon being satisfied by an exhibition of the books and papers belonging to such corporation, and on exam- ination by himself or by some competent person to be appointed examiner by him, and upon the oath of the president or principal officer and the secretary or actuary of said corporation, that all its debts and liabilities of every kind are paid and extin- guished that are due or may become due upon any contract or agreement made by said corporation or its assignee any portion of such securities on being satisfied in the manner and form hereinbefore required, or upon any other competent proof, that all the debts and liabilities of every kind that are due or may become due are less than the amount or proportion of such securities which he shall still retain. (April 28, 1898, 93 v. 348.) § 3631-38. Sec. 15. TAXES. — Every corporation doing business under the pro- visions of this act shall be liable for and pay such taxes as other life insurance com- panies are liable for. (April 28, 1898, 93 v. 348.) For .in act authorizing companips to insure against burglary, see 94 v. 350. For an act creating the office of fire marshal, etc., see 94 v. 386. PART XV. INSURANCE COMPANIES OTHER THAN LIFE. § 3632. § 3633. § 3634. § 3635. § 3636. § 3637. J 3638. § 3639. § 3640. § 3641. § 3641a. § 3641b. § 3641e. § 3642. ? 3643. § 3644. § 3645. § 3646. § 3647. J 3648. § 3649. S 3650. § 3651. § 3652. § 3653. 5 3654. § 3655. 5 3656. § 3657. § 3658. ^ 3659. § 3660. S 3661. § 3661a. « 3661b. « 3662. § 3663. other bonds. by-laws and regulations. Articles of incorporation to be approved by attorney-general. To be recorded by secretary of state, and copy deposited with superintendent. Capital of joint stock companies. Amount and character of subscription in mutual fire companies necessary. Annual cash premiums collectible in advance by mutual companies. Contingent mutual liability for losses and expenses. Mutual fire association not included. Books of subscription to stock. Election of directors. How company must invest its capital. How may invest its accumulations. Limitation on the powers of investment. Examination by the superintendent. Powers of companies; limitation; guaranty companies must make deposit; cor- porate power cannot be denied. Fire insurance companies may insure against lightning, explosion, and tornadoes. Accident and guaranty companies may insure against accidents to employees, etc.; deposit. Sufficiency of bonds, etc., executed by companies; Directors of insurance companies to elect officers; Extent of liability under policy of insurance. When solicitor held to be agent of insurer. How contracts to be evidenced. Transfers of stock. How stock may be increased. Dividends to be payable from surplus profits only ; reservations therefrom ; penalty for violations of this section; scrip dividends by participating or mutual com- panies ; interpretation of words " year " and " profits ; " accumulation of a, per- manent fund; rights of policy holder after determination of policy. What real estate company may hold. Liability of members of mutual companies to assessment; assessments, how made; for what purpose a debt may be created. Enforcement of assessments; partial payment of loss. How assessments and notice proved. What kind of policies company to issue. Annual reports of companies; mutual insurance companies. Special report required of certain insurance companies; penalty. Foreign companies must obtain license of superintendent. The Avaiver companies must file. Must also file statement. Revocation of license of foreign insurance company other than life. Certain companies must make deposit. All foreign companies must make annual statements. Fire insurance company to include in advertisement only assets admitted by the superintendent of insurance. Penalty. Companies must apply dividends to stock notes. Lien of mutual companies for premium notes. [407] 408 Private Corporations in Ohio. § 3664. Insured may require fire policy to be canceled. § 3665. Rates for cancellation of cash policies. § 3666. Rates for policies of mutual companies. § 3667. Rates when premium is pp.id in installments. § 3668. Premium notes not negotiable. § 3669. Superintendent to enforce certain provisions. § 3670. Accident insurance companies authorized; deposit of securities for the purpose of doing business in another state. § 3671. How companies may consolidate. § 3672. Distribution of the stock of consolidated company. § 3673. Election of directors. § 3674. Capital stock limited. S 3675. Certificate of consolidation must be filed with the secretary of state. § 3683. Examination of mutual fife companies. § 3684. Persons refusing to appear and testify are in contempt. § 3685. Certain bonds may be approved by probate judge. § 3686. Mutual protection associations authorized. § 3687. Certificate of organization. § 3688. AVhen certificate to be filed. § 3689. Election of officers; powers. § 3690. Certain insurance companies must adopt constitution and by-laws; official state- ment to be made to superintendent of insurance. § 3690-1. Mutual fire insurance associations authorized to organize as companies. § 3690-2. Rights of policy holders; how affected. § 3690-3. Policies ; by-laws, etc. § 3691. Cellar and foundation not considered part of structure in settling loss. An Act. To provide for the organization of corporations for the purpose of disaovering fires and saving life and property. Mutual Insurance of Animals. f 3691-1. Mutual protective association. § 3691-2. Certificate of organization. § 3691-3. Certificate to be filed with secretary of state. § 3691-4. Election of officers. § 3691-5. Constitution and by-laws; annual statement to commissioner of insurance, § 3691-6. Examination by commissioner of insurance. i 3691-7. Amount of applications for insurance required before commencing business. § 3691-8. When company may commence business. S 3691-9. When charter may be forfeited. I 3691-10. Bond of secretary and treasurer. § 3691-11. Directors. § 3691-12. Statement of secretary and bond of treasurer to be filed with eommissioner of insurance. Re-insuhaxce. § 3691-13. Companies may re-insure their risks. Credit Guaranty Companies. §3691-14. Credit guaranty companies; organization. § 3691-15. Capital stock. § 3691-16. Increase of capital stock. §3691-17. Investment of capital; deposit. § 3691-18. Certificate of deposit; right to transact business. § 3691-19. Power of companies. § 3691-20. Annual statements. Insurance Companies Other Than Life. 409 Articles of Incorporation — Capital Stock, §§ 3632-3634. § 3691-21. Requirements of companies of other states. § 3691-22. When company from other state exempted from making deposit. § 3691-23. Forfeiture of right to do business. § 3691-24. Examination. BUEGLARY ANB ROBBEKY INSURANCE COMPANIES. § 3691-24a. Licensing of companies org'anized for insurance against burglary, robbery, etc. § 3691-24b. Requisites for beginning business. § 3691-24C. Copy of charter, and statement to be filed with the superintendent of insurance; what statement shall contain. Foreign company to file last annual report; agent forbidden to transact business A^hen companj''s reserve is impaired. Agent to procure certificate from superintendent of insurance. ■ § 3691-24d. Character of business to be conducted in this state. Reinsiirance reserve. § 3691-24e. Liability of policy holders. § 3691-24f. Appointment of attorney. Service of process. § 3691-24g. Annual statements. Revocation of authority of company. § 3632. ARTICLES OF INCOKPORATIOlSr TO BE APPROVED BY ATTORNEY- GENERAL. — The articles of incorporation of a company formed for the purpose of insurance, other than life insurance, must be forwarded to the secretary of state, who shall submit -the same to the attorney-general for examination, and if found by him. to be in accordance with the provisions of this chapter, and not inconsistent with the constitution and laws of this state and of the United States, shall certify and deliver back the same to the secretary, who may reject any name or title of any company applied for when he deems the same similar to one already appropriated, or likely to mislead the public. (April 37, 1872, 69 v. 140, § 1; S. & S. 205.) Similarity of names. See note under § 3589. § 3633. TO BE RECORDED BY SECRETARY OF STATE, AND COPY DEPOS- ITED WITH SUPERINTENDENT.— Upon the approval of the articles by the attor- ney-general and the secretary of state, the secretary shall cause the same to be recorded and copied in the same manner as is provided in the preceding chapter, and a copy thereof to be deposited with the superintendent of insurance, who shall with- hold from the company the certificate of authority if its name is so similar to the name of any other company as to mislead the public. (April 27, 1872, 69 v. 140, § 2; May 14, 'l878, 75 v. 557, §§ 1, 2.) § 3634. CAPITAL OP JOINT STOCK COMPANIES; AMOUNT AND CHAR- ACTER OF SUBSCRIPTION IN MUTUAL FIRE COMPANY NECESSARY; SUB- SCRIPTIONS TO INSURANCE IN MUTUAL COMPANIES; ANNUAL CASH PRE- MIUMS COLLECTIBLE IN ADVANCE BY MUTUAL COMPANIES; CONTINGENT MUTUAL LIABILITY FOR LOSSES AND EXPENSES; MUTUAL FIRE ASSOCIA- TIONS NOT INCLUDED. — Except as hereinafter provided, no joint stock insurance company shall be organized under this chapter, or permitted to do business in this state, with a less capital than one hundred thousand dollars, which must be fully paid up before the company shall be entitled to transact business, except, that but twenty-five per cent, of the capital stock of a live stock company must be paid up before the same shall have the right to do business; nor shall any company on the plan of mutual f re insurance be incorporated until not less than five hundred thousand dollars of insur- ance, in not less than two hundred separate risks, no one of which shall exceed $5,000, have be (been) subscribed, and the premium thereon, for one year, paid in cash, ag- gregating not less than $10,000 in cash, each subscriber agreeing, in writing, to assume a liability to be named in the policy, subject to call by the board of directors in a sum not less than three nor more than five annual premiums. And the same 410 Private Corporations ix Ohio. stock Subscriptions — Directors, §§ 3635, 3636. liability shall also be agreed to in writing by each, subsequent subscriber or applicant for insurance ■who is not a merchant or manufacturer. And each subscription before incorporation shall be accompanied by a certificate of a justice of the peace of the township or city where such subscriber resides, that the subscriber is, in his opinion, pecuniarily good and responsible to the extent of the contingent liability agrfeed to be assumed. Mutual fire insurance companies organized under this act may there- after charge and collect in advance upon their policies a full annual premium in cash, but such policies shall not compel subscribers, insured or assured, to renew any policy nor pay a second or further annual or term premium. Any such company must in its by-laws, and must in its policies, fix by a uniform rule the contingent mutual liability of its members for the payment of losses and expenses; and such contingent liabilities shall not be less than three nor more than five annual cash premiums as written in the policy; but such liability shall cease with the expiration of the time . for which a cash premium has been paid in advance, except for liability incurred during said time; but nothing in this section shall apply to associations for the mutual protection of their members against loss by fire heretofore or hereafter organ- ized as provided in section 3686 of the Revised Statutes. (April 16, 1900, 94 v. 301; March 16, 1891, 88 v. 102; April 18, 1890, 87 v. 224; April 14, 1888, 85 v. 273; B. S. 1880; May 14, 1878, 75 v. 561, § 3; S. & S. 205.) embody the contingent liability in the policy a3 herein provided ; and said ctriginal sections . 3634, 3648, 3651, 3652, 3654 and 3663 are hereby repealed. Provided that said section shall remain in force as to all mutual com- panies now doing business, which do not elect to reorganize under said sections as amended Distinction betnreen mutual companies and mutual protective associations doing business under § 3686 to § 3690. See State v. Mutual Fire Ass'n, 50 Oh. St. 145, 150 (1893) Richards, Rec'r, v. Swain & McCormick Co. et al., 7 N. P. 68 (1900) ; s. c, 9 Dec. 70. See § 3663. Section 2 of the act of. 1888, April 14 (85 v. 273), amending sections 3634, 3648, 3650, 3651, 3652, 3654, and 3663, reads as follows: " Sec. 2. (Companies doing business on the 'premium note plan,' repeal; section to remain in force as to certain mutual companies.) This act shall not affect companies now doing unless by this act." " Sec. 3. This act shall take effect and be in force on and after July 1st, 1888." Taxation, vrhat are legal bona fide debts. See French v. German Mutual Ing. Co., 12 Dec. 183 (1901). business on the premium note plan, they elect to dispense with said notes and § 3635. BOOKS OF SUBSCRIPTION TO STOCK.— Ths persons named in the articles of incorporation, or a majority of them, shall be commissioners to open books for the subscription of stock in the company, at such times and places as .they deem convenient and proper, and shall keep the same open until the full amount specified in the articles is subscribed. (April 27, 1872, 69 v. 140, § 4; S. & S. 206.) Recovery by company on verbal prom- See § 3242 and notes thereto. Contract to take shares must be in u?ritiiig. To entitle a person to become a member of an insurance company organized under this act his contract to take shares therein must be in writing and be mutually binding on both parties.— Fanning v. Ins. Co., 37 Oh. St. 339 (1881). A verbal promise to take shares, while the stock is being subscribed, which is necessary to authorize an organization, does not con- stitute the promisor a stockholder or a mem- ber of such corporation, and a promise to pay for such shares is without sufficient considera-l tion. A recovery on such promise cannot be had. in the absence of facts showing that the promisor is estopped from setting up such want of consideration. — Fanning v. Ins. Co., 37 Oh. St. 339 (1881). § 3636. ELECTION OP DIRECTORS. — Within one month after the subscription books are filled, and the articles of incorporation filed with the secretary of state, a majority of subscribers to the stock shall hold a. meeting for the election of not less than five nor more than twenty-one directors, who must be stockholders or members, and the number thereof may at any time thereafter be increased or diminished Insurance Companies Other Than Life. 411 Capital, etc., Investment of, §§ 3637-3639. between the same limits, at the will of the stockholders representing a majority of the stock or a majority of tlie members; each member of a mutual company shall be entitled to one vote, and each stockholder in other companies shall be entitled to one vote for each share of stock he holds; and mutual companies may, if they so provide in their by-laws, elect directors for the term of three years, the term of office of one- third of the number elected to expire each year, and those who receive the highest number of votes at the first election to serve for the longest term. (April 28, 1873, 70 V. 180, § 5; April 10, 1863, 60 v. 75, § 1; S. & S. 817; S. & S. 206.) § 3637. HOW COMPANY MUST INVEST ITS CAPITAL. — No company organ- ized under this chapter, or incorporated under any law of this state, for the purposes provided in section thirty-six hundred and thirty-two, shall invest its capital or any part thereof, otherwise than in: 1. United States bonds; 2. Ohio state bonds; 3. Bonds of a county, township, or municipal corporation in this state, issued in conformity with law; 4. Bonds and mortgages on unincumbered real estate w^ithin this state, worth double the amount loaned thereon; if the amount loaned shall exceed one-half the value of the land mortgaged exclusive of structures thereon, such structures shall be insured in an authorized fire insurance company other than the company making such loan in an amount not less than the difference between one-half the value of such land exclusive of structures, and the amount loaned, and the policy assigned to the mortgagee; 5. The stock of any national bank located in this state, organized under the provisions of an act of congress entitled " An act to provide a national currency, secured by the pledge of United States stocks, and to provide for the circulation and redemption thereof," approved February 25, 1863, and acts amendatory thereof and supplementary thereto; or, 6. First mortgage bonds of railroads w^ithin this state, upon which default in the payment of the interest coupons has not been made within three years previous to the purchase thereof. (March 19, 1902, 95 v. 59; April 22, 1873, 70 v. 147, § 6; S. & S. 206.) See § 3591 and notes thereto. § 3638. HOW IT MAY INVEST ITS ACCUMULATIONS. — Funds accumulated in the course of business, or surplus money over and above the capital stock of a company, may be loaned on or invested in the above named securities, or, 1. Bonds and mortgages on unincumbered real estate within the state, worth fifty per cent, more than the sum loaned thereon, exclusive of buildings, unless such buildings are insured in some company authorized to do business in this state, and the policy is transferred to a company making the investment; 2. Bonds of any state of the United States; 3. Stocks, bonds, or other evidences of indebtedness of any solvent, dividend- paying institution incorporated under the laws of this or any other state, or of the United States, except its own stock; or, 4. Negotiable promissory notes maturing in not more than six months from the date thereof, secured by collateral security through the transfer of any of the classes of securities above described in this or the preceding section, with absolute power of sale within twenty days after default in payment at maturity. (April 22, 1873, 70 v. 147, § 6.) credit the note of one insured by the com- pany, and entitled to indemnity for a loss, for the purpose of setting off such note against the claim. The company cannot hold the legal title to such note.^ — Straus v. Eagle Ins. Co., 5 Oh. St. 60 (1856). See notes to § 3598. tnvestinents must be authorized. A company authorized by its charter to in- vest its funds as should be deemed best by the directors, has no power to purchase upon § 3639. LIMITATION ON THE POWERS OF INVESTMENT. — No company shall own more than one-fourth of the capital stock of any national bank, nor invest in nor loan on the stocks and bonds, both included, of any railroad company, to an extent exceeding one-tenth of its own capital, nor in the aggregate shall the invest- ment in and loan on all railroad property exceed one-fourth of its capital; not more 412 Private Corporations in Ohio. Examinations;' Powers of Companies, etc., §§ 3640, 3641. than one-half of its capital shall be loaned on mortgage of real estate, as above pro- vided for the investment of capital, and not more than one-tenth of the capital actu- ally existing of any company shall be invested in a single mortgage; the current market value of all such stocks, bonds, or other evidences of indebtedness as above mentioned, in which the accumulations or surplus money over and above the capital stock of any insurance company may be loaned or invested, shall be at all times dur- ing the continuance of such loans at least twenty per cent, more than the sum loanid thereon; and if any investment or loan be made in a manner not authorized by this chapter, the directors who make or authorize the same shall be personally liable to the stockholders for any loss occasioned thereby; but insurance companies organ- ized under the laws of this state, now doing business, shall not be compelled to change any investment made in accordance with the acts heretofore passed regulating such companies. (April 22, 1873, 70 v. 147, § 6.) § 3640. EXAMINATION BY THE SUPEEINTENDENT.— When a company notifies the superintendent of insurance that the proceedings required by the preced- ing sections have been had, he shall make an examination of the condition of the company, and if he find that the capital required of the company has been paid in and is possessed by it in money, or in such stocks, bonds, and mortgages as are required by this chapter, he shall so certify; or he may cause such examination to be made by some disinterested person specially appointed by him for the purpose, who shall certify his finding to the superintendent under oath; the signers of the articles of incorporation, or the ofScers of the company, shall also certify, under oath, that the capital exhibited is, bona fide, the property of the company; such certificates shall be filed in the office of the superintendent, who shall thereupon deliver to such com.pany a certified copy thereof, which, on being placed on record in the office of the recorder of the county wherein the company is to be located, in a book provided for that purpose by him, shall be its authority to commence business and issue policies; and such certified copy of the certificates may be used in evidence for or against the company, with the same effect as the original. (April 27, 1872, 69 v. 140, § 7; S. & S. 207.) § 3641. POWERS OF COMPANIES; LIMITATION; GUARANTY COMPANIES MUST MAKE DEPOSIT; CORPORATE POWER CANNOT BE DENIED. — A com- pany organized under this chapter may: 1. Insure houses, buildings and all other kinds of property against loss or dam- age by fire and lightning and tornadoes, in and out of the state, and make all kinds of insurance on goods, merchandise and other property in the course of transporta- tion, whether on land or water, or on any vessel or boat wherever the same may be. 2. Make insurance on the health of individuals and against personal injury, dis- ablement or death, resulting from traveling or general accidents by land and water; make insurance against loss or damage resulting from accident to property, from cause other than fire or lightning; guarantee the fidelity of persons holding places of public or private trust, who may be required to, or do, in their trust capacity, receive, hold, control, disburse public or private moneys or property; guarantee the perform- ance of contracts other than insurance policies, guarantee the validity of titles to real property, and execute and guarantee bonds and undertakings required or permitted in all actions or proceedings, or by law allowed. 3. Make insurance on the lives of horses, cattle or other live stock against loss by death caused by accident, disease, fire or lightning, and against loss by theft and damage by accident; provided, that such company shall have a capital of one hundred thousand dollars, with at least twenty-five (25) per cent, of the capital stock paid up. 4. Receive on deposit and insure the safe-keeping of books, papers, moneys, stocks, bonds and all kinds of personal property; lend money on bottomry or respon- Insurance Companies Other Than Life. 413 Insurance against Lightning, Explosions, etc., §§ 3641a, 3641b. dentia, and cause itself to be insured against any loss or risk it may have incurred in the course of its business, and upon the interest which it may have in any property by means of any loan which it may have made on mortgages, bottomry or respon- dentia, and generally to do and perforin all other matters and things proper to pro- mote these objects; but no company shall be organized to issue policies of insurance for more than one of the above four mentioned purposes, and no company organized for either one of said purposes shall issue policies of insurance of any other; provided, however, that no company, organized under the laws of the state to transact the busi- ness of guaranteeing the fidelity of persons holding places of public or private trust, or of executing or guaranteeing bonds or undertakings, as aforesaid, shall commence business until it has deposited with the superintendent of insurance two hundred thousand dollars in securities permitted by sections 3637 and 3638 of the Bevised Statutes, which shall be held by said superintendent for the benefit and security of all the policy holders of the company, and which shall not be received by the said superintendent at a rate above their par value; nor shall a company, organized under the laws of another state, be licensed to transact any such business in this state unless at least two hundred thousand dollars of its assets are invested in securities permitted by sections 3637 and 3638 of the Revised Statutes of this state, and such securities are deposited with the superintendent of insurance of this state, or the superintendent of insurance or other officer of the state in which such company was organized, desig- nated by the laws of such state to receive the same; and if such securities are depos- ited with the superintendent of insurance or other officer of another state, the superintendent of insurance of this state shall be furnished with the certificate of such state officer under his hand and official seal that he, as such officer, holds in trust on deposit for the benefit of all the policy holders of such company the securities above mentioned, giving the items of such securities, and stating that he is satisfied such securities are worth at least two hundred thousand dollars; the securities so deposited with the superintendent of insurance may be exchanged from time to time for other like securities, and so long as the corporation depositing the securities shall continU3 solvent and comply with the laws of this state it shall be permitted by the superin- tendent of insurance to collect the interest or dividend on such deposit; provided, also, that any company which shall execute any bond as surety under the prov'sions of this act shall be estopped in any proceeding to enforce the liability which it shall iave assumed to incur, to deny its corporate power to execute such instrument or assume such liability; and the superintendent of insurance and other officers of this state having the control or custody of any deposit of $30,000 in securities here^^of ore required to be raade by companies of other states under section 3641 of the Eeviasd Statutes of Ohio shall deliver the same to the depositors thereof and said officers shall "be and are hereby relieved from further custody control or liability for or in respect of the same or the surrender thereof from and after the passage of this act. (April 1, 1902, 95 V. 81; April 21, 1898, 93 v. 170; April 13, 1894, 91 v. 138; April 11, 1893, 90 V. 157; March 16, 1891, 88 v. 102; AprU 30, 1885, 82 v. 185; R. S. 1880; April 14, 1874, 71 v. 65, § 8; S. & S. 299.) See § 3593 and notes thereto. § 3641a. FIRE INSXJRAWCE COMPANIES MAY INSURE AGAINST LIGHT- TIING, EXPLOSION AND TORNADOES. — All companies heretofore organized, or that may hereafter be organized, for the purpose of insuring against loss or damage "by fire, may insure against loss or damage by lightning, explosions from gas, dyna- mite, gunpowder, and other like explosions and tornadoes. (April 9, 1891, 88 v. 304; March 27, 1884, 81 v. 93; April 18, 1883, 80 v. 170.) , § 3641b. ACCIDENT AND GUARANTY COMPANIES MAY INSURE AGAINST ACCIDENTS TO EMPLOYES, ETC.; DEPOSIT. — A company heretofore organized 414 Private Corporations in Ohio. Guaranty Companies, Bonds of, etc., § 3641c. or tliat may hereafter be organized to do business under clause 2 of section 3641b,* chapter 11, title 2 of the Revised Statutes of Ohio, may make insurance to indemnify employers against loss or damage for personal injury or death, resulting from acci- dents to employes, or persons other than employes, subject, however, to the restric- tions in said section provided; and, provided, that any company incorporated by or organized under the laws of any other state, or of a foreign government that is now doing business in this state by virtue of original section three thousand six hundred and forty-one b,* shall, on or before the nrst day of April after the passage of this act, and any company incorporated by or organized under the laws of any other state or government that may desire to do business in this state, shall, before being author- ized to transact such business, deposit with the superintendent of insurance, for the benefit and security of the policy-holders residing in this state, a sum not less than fifty thousand dollars, in bonds of the United States or the state of Ohio, or of any city, county, township or other municipality in the state of Ohio, which shall not be received by the superintendent at a rate above their par value; the securities so deposited may be exchanged from time to time for other like securities; so long as the company so depositing continues solvent and complies with the laws of this state, it shall be permitted by the superintendent to collect the interest or dividends on such deposits. Said deposit shall be held by the superintendent of insurance for the bene- fit, security and protection of the policy-holders of the company residing within this state; and it shall be stipulated by the company that such deposit is made, and such sum set aside from the general assets for that purpose, the same to be held until all (claims of policy-holders within this state are adjusted. Provided further, that the provisions of chapter two, title two of the Revised Statutes of Ohio, so far as the same may be applicable and not inconsistent with the provisions of this section shall apply to such companies organized under or incorporated by the laws of another state or government. (April 13, 1894, 91 v. 352; April 9, 1891, 88 v. 304.) ' * ■' Section 3641b " should be " section 3641 " as Avill be manifest by referring to original ■ § 3641b in 88 v. 304. See § 3593 and notes thereto. Immediate notice; jto^seT of agent. In a policy which insures against liability for injuries, a stipulation requiring immediate notice and information is of the essence of the contract, and cannot be waived by an agent without authority therefor. — Travelers' Ins. Co. V. Myers et al., 44 W. L. B. 17 (1900). Agent's knowledge is not notice. That the agent who had taken the insur- ance had heard of the accident is not such no- tice as the policv requires. — American Acc'dt. Co. V. Card, 13 C. C. 154 (1897) ; a. c, 7 C. D. 504; aflfd. without report, 60 Oh. St. 583 (1899). What is " immediate notice." This term in the policy means written no- tice within a reasonable time, under the cir- cumstances of the case ; and where the facts are not disputed, what ia reasonable time is a question of law. — Travelers' Ins. Co. v. Myers, 44 W. L. B. 17 (1900) ; American Aoc'dt. Co. V. Card, 13 C. C. 154 (1897); s. c, 7 C. T>. 504, afid. without report, 60 Ohio St. 45 (1899); Crane v. Standard Life Assn., 3 X. P. 318 (1890), 4 N. P. 309 (1896); affd. no re- port, 59 Oh. St. 617 (1898). Ignorance as to happening of accident or existence of policy, as to affecting notice to company. American Aee'dt. Co. v. Card, 13 C. C. 154 (1897) ; s. c, 7 C. D. 504, affd. no report, 60 Oh. St. 583 (1899); Crane v. Standard Life Assn., 3 iSr. P. 318 (1896), 4 N. P. 309 (1896) ; affd. no report, 59 Oh. St. 617 (1898); Cold- ham V. Ins. Co., 2 N. P. 358 (1895). Notice of agent's authority. A\ hen such policy contains a stipulation that '' no agent has avithority to waive or alter anything In the policy contained," and the same is accepted by the assured, it is both notice to and an agreement by the insured that an ajrent has no authority to waive or alter anything contained in the policy. — Travelers' Ins. Co. v. Myers, 44 W. L. B. 17 (1900). See as to powers of agent, notes to § 3644. § 3641c. SUFFICIENCY OF BONDS, ETC., EXECUTED BY COMPANIES; OTHER BONDS. — In all cases in which any bond, recognizance or undertaking is now, or hereafter may be required or permitted by law, with one or more sureties, Insurance Companies Other Than Life. 415 Directors — By-laws — Liability under Policy, §§ 3642, 3643. the execution of the same or the guaranteeing thereof, as the case may be, as sols surety, shall be sufficient by a company authorized to guarantee the fidelity of per- sons holding places of public or private trust, to guarantee the performance of con- tracts other than insurance policies, and to execute and guarantee bonds and under- takings in actions or proceedings or by law allowed; and when so executed and guaran- teed, shall be in all respects, a. full and complete compliance with every requirement of law, ordinance, rule or regulation tha* such bond, undertaking or recognizance shall be executed and guaranteed by one surety or two or m.ore sureties, or that such sureties shall be residents or house-holders or freeholders; and any judge, court or officer, whose duty it is to pass upon the account of any assignee, trustee, receiver, guardian, executor, administrator or other fiduciary, required by law to give bond as such, and whenever any such assignee, receiver, trustee, guardian, executor, adminis- trator or other fiduciary, has given bond with a surety company as surety thereon, shall allow, in the settlement of the account of such assignee, receiver, trustee, guard- ian, executor, administrator or other fiduciary, a. reasonable sum paid a company authorized under the laws of this state so to do, for becoming his surety on such bond, not exceeding, however, one-half of one per cent, per annum on the amount of such bond; unless such bond shall be in double the amount of the liability of such fiduciary, when the sum so allowed shall not exceed the sum of one-fourth of one per cent, per annum; provided, however, that such company has complied and continued to comply with the laws of this state relative to such companies, and with such requirements as to justification, as may be prescribed by the head of the department, court, judge, or officer required to approve or accept the same, and provided that such bond, recog- nizance or undertaking be approved by the head of the department, court, judge or officer required to approve or accept the same. This section shall apply to and authorize any surety company above defined to become surety upon the bond required by law of any state officer, (except the superintendent of insurance,) and of any county, township or municipal officer. Such surety company may be accepted by the officer or officers required to approve such bond, in lieu of the sureties now required by law. (April 27, 1896, 93 v. 320; April 11, 1893, 90 v. 157; February 3, 1891, 88 V. 14.) Applies to cases existing at the time statute "oras passed. Commercial Bank Assignment, 3 N. P. 286 (1895) ; a. u., 4 Dec. 228. § 3642. DIRECTORS OF INSURANCE COMPANY TO ELECT OFFICERS; BY-LAWS AND REGULATIONS. — The directors shall choose from their own num- ber by ballot, a president, and shall fill all vacancies that may arise in the board, or in the presidency thereof; the board of directors, or a. majority of them, when con- vened at the office of the company, m^y appoint a secretary and any other officers or agents necessary for transacting the business of the company, and pay such salaries and take such securities as they may judge reasonable; they may orda'n and establish by-laws and regulations not inconsistent with the constitution and laws of this stats and of the United States, as shall appear to them necessary for regulating and con- ducting the business of the company; but no new by-laws or regulations shall take effect until the same has been approved by the state commissioner of insurance ard a copy thereof has been filed in the office of said commissioner, and they shall keep full and correct records of their transactions, which shall, at all times, be open to the inspection of the members or stockholders. (March 5, 1883, 80 v. 41; R. S. 1880; April 23, 1872, 69 v. 140, § 10; S. & S. 208.) § 3643. EXTENT OF LIABILITY UNDER POLICY OF INSURANCE. — Any person, company, or association, hereafter insuring any building or structure against loss or damage by fire or lightning, by a renewal of a policy heretofore issued, or otherwise, shall cause such building or structure to be examined by an agent of the 416 Private Corporations in Ohio. Liability under Policies, § 3643. insurer, and a full description thereof to be made, and the insurable value thereof to he fixed by such agent; in. the absence of any change increasing the risk without the consent of the insurers, and also of intentional fraud on the part of the insured, in case of total loss, the whole amount mentioned in the policy or renewal upon which the insurers receive a premium shall be paid, and in case of a partial loss the full amount of the partial loss shall be paid; and in case there are two or more policies npon the property, each policy shall contribute to the payment of the whole or the partial loss in proportion to the amount of insurance mentioned in each policy; but in no case shall the insurer be required to pay more than the amount mentioned in its policy. (March 5, 1879, 76 v. 26, § 1.) See § 3691. To ivhat policies applicable. Section applies to all policies issued since it went into effect, i. e., July 1, 1879, insuring any building or structure in this state, against loss by fire. — Ins. Co. v. Leslie, 47 Oh. St. 409 (1890). Cannot be xraived by agreement. Founded on grounds of public policy and the neglect of company's agent to make the required examination and fix the insurable value, cannot defeat the operation of the statute. It cannot be regarded as conferring upon the assured a mere personal privilege, ■which can be waived by agreement. — Pennsyl- vania Ins. Co. V. Draekett, 44 \V. L. B. 71 (1900) ; Ins. Co. v. Leslie, 47 Oh. St. 409, 417 (1890) ; Ins. Co. v. Luce, II C. C. 476 (1896) ; Seyk v. Ins. Co., 74 Wis. 67 (I88U). Rebuilding clause repugnant to this section and void. See Milwaukee Ins. Co. v. Russell, 65 Oli. St. 230 (1901). Conditions in policy inconsistent with section. Conditions in policy providing for a differ- ent measure of liability are qualified by this section. Such are. Submission to appraisers to decide loss. Phoenix Ins. Co. v. Port Clinton, etc., Co., 14 C. C. 160, 167 (1898); s. c, 7 C. D. 468; affirmed, 01 Oh. St. 643; Ins. Co. v. Leslie, 47 Oh. St. 409, 417 (1890) ; Ins. Co. v. Luce, II C. C. 476 (1896) ; s. c., 5 C. D. 210; Seyk v. Ins. €o., 74 Wis. 67 (1889). Arbitration clause invalid even as to partial loss. Brown v. Hartford Fire Ins. Co., 12 Dec. 358 <1902). That loss shall be estimated according to actual value at time of fire. Ins. Co. v. Leslie, 47 Oh. St. 409, 417 (1890) ; Thompson v. Ins. Co., 45 Wis. 388 (1878). That loss shall be estimated according to cost of replacing property de- stroyed. Ins. Co. V. Leslie, 47 Oh. St. 417 (1890). That policy shall be void for nonoccn- pancy. Moody V. Ins. Co., 52 Oh. St. 12, 23 (1894). That company shall have right to re- build. Russell V. Ins. Co., 6 N. P. 325 (1899) ; s. c, 8 Dec^ 613. There must be increased risk or fraud. In the absence of any increase in the risk or intentional fraud, the measure of liability in case of total loss is the full amount named in the policy. — Ins. Co. v. Leslie, 47 Oh. St. 409 (1890); Ins. Co. v. Hull, 51 Oh. St. 270, 278 (1894) ; Sun Mutual Ins. Co. v. Hock, 8 C. C. 341 (1894) ; s. e., 4 C. D. 553; Moody v. Ins. Co., 52 Oh. St. 12, 23 (1894) ; German Ins. Co. V. Mirick, 38 W. L. B. 172 (1897) ; Hubbard v. Executor et al.. 6 N. P. 249 (1899); s. c, 8 Dec. Ill; Hilliard v. Ins. Co., 7 X. P. 561 (1895); s. c, 5 Dec. 576. A condition of premises reasonably ap- parent, no defense. Where there has been no intentional fraud, a, condition of the property at the time of in- surance, which the agent by making the re- quired examination could have reasonably discovered, cannot prevail to defeat recoveiy on the policy. — Ins. Co. v. Leslie, 47 Oh. St. 409 (1890) ; United, etc., Ins. Co. v. Ivukral et al., 7 C. C. 356 (1893) ; s. c, 4 C. D. 633. Value of property or statements re- garding it, immaterial. Where there is no intentional fraud, it is not competent for the company to prove that the value of the property is less than the amount of the policy, and statements of the assured in the application, in reference to the value of the property and its condition, are immaterial. — Ins. Co. v. Leslie, 47 Oh. St 409 (1890) ; United Ins. Co. v. ICukral et al., 7 C. C. 350 (1893) ; s. c, 4 C. D. 633; Schilds v. Ins. Co., 6 N. r. 134 (1899) ; s. e., 8 Dee. 45: Hilliard v. Ins. Co., 7 N. P. 561 (1895) ; s. c, 5 Deo. 570; Hubbard v. Executor et al., 6 N. P. 249 (1899) ; s. c. 8 Dec. 111. But see Farm- ers' Ins. Co. V. McCIuekin, 40 Oh. St. 42, infra. As to election to rebuild and com- promise with portion of companies upon liability of others. Good V. Ins. Co., 43 Oh. St. 394 (1885). Insurance Companies Other Than Life. 417 Liability under Policies, § 3643. Sxamination required relates to physi- cal condition. The examination required to be made re- lates to the physical condition of the prem- ises, such as an inspection would disclose. " The change " mentioned in statute relates to some physical change. — Webster et al. v. Ins. Co., 53 Oh. St. 558; affirming 7 C. C. 511 (1895); s. c, 4 C. D. 704. Has no relation to incumbrances or title. The examination required does not relate to incumbrances or to the title of the premi- ses. Nor does the " change " have reference to a change in incumbrances. — Webster et al. V. Ins. Co., 53 Oh. St. 558 ; affirming 7 C. C. 511 (1895); s. c, 4 C. D. 704. United, etc., Ins. Co. v. Kukral et al., 7 C. C. 35d; s. e., 4 C. D. 633, and Peoples, etc., Ins. Co. V. Bowersox, Ree'r, 5 C. C. 444; s. c, 3 C. D. 218, would seem, in the decisions of the cir- cuit court, to present the doctrines that the statute applies to incumbrances. These deci- sions were affirmed without report in 51 Oh. St. 609 (1894), and 51 Oh. St. 567 (1894), respectively. However, in Webster et al. v. Ins. Co., supra, the court says, p. 569, that its decision in this case is not in conflict with the two former cases. An explanation for this seeming conflict may be found in Ins. Co. V. Bowersox, supra, where it is held that a judgment of cognovit is not an in- cumbrance; and in Sun Fire Office v. Clark, 53 Oh. St. 414 (1895), in which it is held: ''A policy containing a provision, that if any change takes place in the title, interest, or possession of the property, by sale, trans- fer, or conveyance, without the consent of the insurer, the policy shall become void, is not invalidated by the making of a mortgage." See also Henderson v. Ins. Co., 2 N. P. 17 (1894) ; s. c, 2 Dec. 189, in which it was held that the statute relates to incumbrances. Additional insurance is increase in risk. Additional insurance increases the risk as a matter of law, hence a condition against it does not come within the statute. — Sun Fire Office V. Clark, 53 Oh. St. 414, 427 (1895). Submission to appraisal after loss, not binding. Voluntarily submitting value of property destroyed to appraisal, or an agreement to arbitrate, does not waive the right to insist upon full payment of the policy. — Ins. Co. v. Luce, 11 C. C. 476 (1896); s. c, 5 C. D. 210; Pennsylvania Ins. Co. v. Leslie, 47 Oh. St. 409, 417 (1890) ; Ins. Co. v. Drackett, 44 W. L. B. 71 (1900) ; Seyk v. Ins. Co., 74 Wis. 67 (1889). Claim for less amount not an estoppel. A claim for less amount than that to which assured is entitled will not estop assured from claiming full amount; nor will any estimate of value made by assured in his proof of loss LAW GOV. PRIV. COR.' — 2/. aflfect his- right to the full amount. — Schild v. Insurance Co., 6 N. P. 134 (1899); s. c, 8 Dec. 45. Applies though concurrent insurance. In case of total loss, the full amount of the policy must be paid, notwithstanding there is concurrent insurance in other companies. — Phoenix Ins. Co. v. Port Clinton, etc., Co., 14 C. C. 160; s. c, 7 C. D. 468; affirmed, 61 Oh. St. 643 (1899) ; overruling Cincinnati Coffin Co. V. Ins. Co., 7 W. L. B. 342; Havens v. Ins. Co., 123 Mo. 403 (1894); Oshkosh Co. v. Ins. Co., 71 Wis. 454 (1888). Extent of loss for jury. Phoenix Ins. Co. v. Port Clinton, etc., Co., 14 C. C. 160; s. c, 7 C. D. 468; affirmed, 61 Oh. St. 643 (1899). ^Vhat constitutes total loss. , Phoenix Ins. Co. v. Port Clinton, etc., Co.,' 14 C. C. 160; s. c, 7 C. D. 468; s. c, 61 Oh. St. 643 (1899) ; Pennsylvania Ins. Co. v. Drackett, 44 W. L. B. 71 (1900); German Ins. Co. v. Eddy, 36 Neb. 461 (1883); Ins. Co. v. Mc- Intyre, 90 Texas, 170 (1896); Corbett v. Ins. Co., 155 N. Y. 389 (1898); Havens v. Ins. Co., 123 Mo. 403 (1894); Lindner v. Ins. Co., 93 Wis. 526 (1896); Williams v. Ins. Co., 54 Cal. 442 (1880). W^hat constitutes structure. A boiler and engine may constitute a struc- ture.— Ins. Co. V. Luce, 11 C. C. 476 (1896); s. o., 5 C. D. 210. Judgment on cognovit not an incum- brance. A judgment on cognovit does not consf.tute an incumbrance within the meaning of a con- dition which avoids the policy, if the assured suffers an incumbrance to be placed on the property .1 — People's Ins. Co. v. Bowersox, Rec'r, 51 Oh. St. 567; affirlning 5 C. C. 444 (1894); 8. c, 3 C. D. 218. What constitutes occupancy. Moody V. Ins. Co., 52 Oh. St. 12 (1894); Eureka Ins. Co. v. Baldwin, 62 Oh. St. 368 (1900); reversing 17 C. C. 143; s. c, 9 C. D. 118; Ins. Co. V. Tucker, 92 111. 64 (1879). Insurance of risk is for jury. Eureka Ins. Co. v. Baldwin, 62 Oh. St. 368 (1900) ; Henderson v. Ins. Co., 2 N. P. 17 (1894); s. c, 2 Dec. 51. Apparently conflicting decision. In an application for insurance which was made a part of the policy, the assured cove- nanted that the insurance asked for on his dwelling did not exceed two-thirds of its value. In an action on the policy, issue was joined on the averment of the company that the covenant was untrue, as the anulicant well knew when he made it. Conflicting evi- dence was before the jury on this point, but 418 Private Corporations in Ohio. Solicitors — Policies, how Evidenced, §§ 3644, 3645. the court directed a verdict for the plaintiff for " the value of the property destroyed by fire covered by the policy, not exceeding the amount of insurance upon the part thus de- stroyed," and refused to give any instruction applicable to the issue on the covenant. Held, this was error. — Farmers' Ins. Co. v. Mc- Clucklin, 40 Oh. St. 42 (1884). (This case was decided at the January, 1883, term, but there is no reference made to this section, nor to the date of the policy oa which the action was brought.) Action, misjoinder. Where arbitration is had on several policies, an action must be brought on each to recover the pro rata part of the award. All the com- panies cannot be joined in an action for the whole award. — Margolis v. London, etc., Ins. Co., 12 Dec. 166 (1902). § 3644. WHEM- SOLICITOR HELD TO BE AGEITT OE INSTIKEE,. — A person, ■who solicits insurance and procures the application therefor, shall be held to be the agent of the party hereafter issuing a policy upon such application or a renewal thereof, anything in the application or policy to the contrary notwithstanding. (March 5, 1879, 76 v. 26, § 2.) Responsible for mistake of agent. A soliciting agent, procuring for a company risks and applications on which policies are issued, is, in filling up such application, the agent of the company, and not the assured; and if the agent makes a mistake in wrongly stating facts which were correctly given him by the insured, the company is bound by and responsible for such mistake. — Ins. Co. v. Williams, 39 Oh. St. 584 (1883); Phoenix Ins. Co. V. Bowersox, 6 C. C. 2 (1892); s. c, 3 C. D. 321; Hilliard v. Ins. Co., 7 N. P. 561 (1895) ; s. c, 5 Dec. 576; Union Ins. Co. v. Mc- Gookey, 33 Oh. St. 555, 566 (1878); Phillips v. Ins. Co., 13 C. C. 679 (1894); o. c, 6 C. D. 266. Company bound though agent act be- yond authority. Union Ins. Co. v. McGookey, 33 Oh. St. 555, 566 (1878) ; Ohio Farmers' Ins. Co. v. Danison, 38 W. L. B. 163 (1897). But see Eureka Ins. Co. V. Baldwin, 62 Oh. St. 368 (1900). As to poxrer to appoint sub-agents. See Krumm v. Jefferson Fire Ins. Co., 40 Oh. St. 225 (1883). Acts of sub-agent. A sub-agent duly appointed is the agent of the company, and his acts in this capacity are binding upon the company. — Krumm v. Ins. Co., 40 Oh. St. 225 (1883). Agent may ivaive payment. An agent authorized to make contracts of insurance and issue policies may waive pay- ment in cash of the premiums and give time for their payments, unless restricted by his authority, of which the assured has notice.— Machine Co. v. Ins. Co., 50 Oh. St. 549 (1893). ■Whether statements were correctly stated by assured, question for jury- Phillips V. Ins. Co., 13 C. C. 679 (1894) ; s. c, 6 C. D. 266. Condition in policy cannot waive statute. Where statute makes agent the agent of the company, no condition in the policy can make him the agent of the assured. — Brew- ing Co. V. Ins. Co., 63 N. W. 565 (1895); Ins. Co. V. Chamberlain, 132 U. S. 304 (1889). Agent applying to another agent for policy, both considered agents of company. Central Ohio Ins. Co. v. Provision Co., 13 C. C. 661 (1894); s. o., 7 C. D. 562. Poiver of agent. See Dayton Ins. Co. v. Kelley, 24 Oh. St. 34& (1873) ; Union Central Ins. Co. v. Hook, 62 Oh. St. 256 (1900) ; Eureka Ins. Co. v. Baldwin, 62 Oh. St. 368 (1900) ; Travelers' Ins. Co.- v. Jlyers et al., 44 W. L. B. 17 (1900); Gei-mania "ins. Co. V. Shoemaker, 22 W. L. B. 315 (1889), and cases under this section. Foiver of agent to accept cancellation. There is no presumption that an insurance agent authorized by a person to secure in- surance' has authority, after he has secured the policy, to receive notice of cancellation of the policy. — Johnson v. North British, etc., Ins. Co., 66 Oh. St. 6 (1902). § 3645. HOW CONTRACTS TO BE EVIDENCED. — All policies or contracts of insurance made or entered into by the company may be made either with or without the seal of the company; and they shall be subscribed by the president or such other officer as may be designated by the directors for that purpose, and shall be attested by the secretary, and, when so subscribed and attested, they shall be obligatory on the company. (April 27, 1872, 69 v. 140, § 11; S. & S. 208.> Insurance Companies Other Than Life. 419 stock — Branches of; Transfer of, §§ 3646, 3647. Does not limit mode of creating lia- bility, merely prescribes final execu- tion. Where the charter of a. company confers upon it power " generally to do and perform all things relative to the object of the asso- ciation," and provides in a subsequent section that " all policies or contracts of insurance shall be subscribed by the president or some other officer designated by the board of direct- ors for that purpose," the latter provision does not disable the company from binding itself by contracts for policies and immediate insurance executed in other modes and by other agents, but merely prescribes the man- ner in which the final contract or policy shall be executed. — Da,yton Ins. Co. v. Kelley, 24 Oh. St. 345, 364 (1873); Franklin Ins. Co. v. Colt, 87 U. S. 560 (1874). Parol contract valid. In Cockerill v. Ins. Co., 16 Ohio, 148 (1847), it was held " that a policy of insurance must be in writing," and " that a verbal forfeiture of a policy is not binding." But see Amazon Ins. Co. V. Wall, 31 Oh. St. 628 (1877), where, on p. 633, Okey, J., says: " Cockerill v. Ins. Co. is virtually overruled in Ins. Co. v. Kelley, supra." See, also. Palm v. Ins. Co., 20 Ohio, 529 (185i), and note p. 537; Ins. Co. v. Shaw, 94 U. S. 574 (1876), and Machine Co. v. Ins. Co., 50 Oh. St. 549 (1893), where it is held: "A valid contract of insurance may be made by parol, when not forbidden by statute or a provision of the company's charter, which has been brought to the knowledge of the other contracting party." — Ins. Co. v. Adler, 71 Ala. 516 (1882); Strohm v. Ins. Co., 33 Wis. 650 (1873); Walker v. Ins. Co., 56 Me. 371 (1868). Same effect. Walker v. Ins. Co., 56 Me. 371 (1868). Policy may be altered by parol. Halliday v. Ins. Co., 1 W. L. B. 286 (1876). Policy may be renewed by parol. MeCabe v. Ins. Co., 47 L. R. A. (N. D.) 641 (1898). Not Tpithin statute of frauds. Ins. Co. V. Spiers, 87 Ky. 286 (1888); born V. Ins. Co., 16 Gray, 448 (1860). San- If terms of contract are complete, its delivery is immaterial. When the terms of an executed policy have been unconditionally accepted by the assured, and it has thereafter been treated as in force by the parties, its delivery will be regarded as complete, though it remain in the hands of the insurer's agent. — Machine Co. v. Ins. Co., 50 Oh. St. 549, 557 (1893); Connecticut Ins. Co. V. Bennett, 1 N. P. 71; affirmed, 56 Oh. St. 749 (1897). Policy only evidence of contract. Policy only evidence of contract, and the latter may be shown by parol, unless re- stricted by statute. — Machine Co. v. Ins. Co., 50 Oh. St. 549, 555 (1893). When risk commences. When a contract of insurance has been com- pleted by the party applying for insurance doing all that is required on his part, al- though the agent acting for the company has no power to issue the policy, the risk com- mences from the time of making such con- tract. Where such contract is mailed to the office of the company, from which the policy is to issue, the company is liable, although the loss occurs before the arrival of the contract. — Palm, Admr., v. Ins. Co., 20 Oh. 529 (1851); Krumm v. Ins. Co., 40 Oh. St. 225 (1883). See, also. Machine Co. v. Ins. Co., 50 Oh. St. 549 (1893). Approval not necessary. If such contract be fair and strictly within the rules of the company, such liability will exist, although there be printed on the blank application the qualification that the policy ^^•ill issue " if approved " by the company. Such qualification only saves the company the right to object to an unfair contract. — Palm, Admr., v. Ins. Co., 20 Oh. 529 (1851). Equity -will compel issuance of policy where valid agreement has been en- tered into for it. Ins. Co. V. Taylor, 52 Miss. 441 (1876). § 3646. TRANSFERS OF STOCK. — Transfers of stock may be made on the bocks of the company by any shareholder, or his legal representative, subject to such reason- able restrictions as the directors may, from time to time, make in their by-laws, and subject, also, to any provisions of the laws of this state relating to' such transfers. (April 27, 1872, 69 v. 140, § 12; S. & S. 208.) § 3647. HOW STOCK MAY BE INCREASED. — When a company organized under this chapter requires, in the opinion of the directors thereof, an increased amount of capital, they shall, if authorized by the holders of two-thirds of the stock, file with the secretary of state a certificate setting forth the amount of such desired increase, and thereafter such company shall be entitled to have the increased amount of capital fixed by such certificate; and the examination of securities composing the 420 Private Corporations in Ohio. Dividends, etc., § 3648. capital stock thus increased shall be made in the same manner as is provided in sec- tion thirty-six hundred and forty for capital stock originally paid in. (April 27, 1872, 69 V. 140, § 13; S. & S. 209.) § 3648. DIVIDENDS TO BE PAYABLE FROM SURPLUS PROFITS ONLY; RESERVATIONS THEREFROM; PENALTY FOR VIOLATIONS OF THIS SEC- TION; SCRIP DIVIDENDS BY PARTICIPATING OR MUTUAL COMPANIES; INTERPRETATION OF WORDS " YEAR " AND " PROFITS; " ACCUMULATION OF A PERMANENT FUND; RIGHTS OF POLICY HOLDER AFTER DETER- MINATION OF POLICY. — No fire insurance company organized under any law of this state shall make any dividend except from the surplus profits arising from its business; and in estimating such profits there shall be reserved therefrom: First. A sum equal to fifty per cent, of the whole amount of premiums on unex- pired risks and policies, which is hereby declared to be unearned premiums. Second. All sums due the company on bonds and mortgages, bonds, stocks, and book accounts, of which no part of the principal nor the interest thereon has been paid during the preceding year, and on which an action has not been commenced, or which, after judgment obtained thereon, has remained more than two years unsatis- fied, and on which interest has not been paid; and Third. All interest due or accrued, and remaining unpaid, for which the company does not hold securities as hereinbefore provided. Any dividend made contrary to the provisions of this section shall subject the company which makes the same to a forfeiture of its charter, and each stockholder who receives it to a, liability to the creditors of the company to the extent of the dividend received, besides the other pen- alties and punishments prescribed by law; but this section shall not prevent the declaration of scrip dividends by participating or mutual companies, yet no such scrip dividend shall be declared to an amount in excess of or be paid except from profits, after reserving all sums above provided, including the whole amount of premiums on unexpired risks; and the word " year " wherever used in this section shall be con- strued to mean the calendar year, and the " profits " of a mutual insurance company are that portion of its cash funds not required for payment of losses and expenses nor set apart for any purpose required by law. Any such company may in its by-laws, provide for the accumulation of a permanent fund, by reserving a portion of the net profits, to be invested and be a reserve for the security of the insured. When the business of such company is confined to the state of Ohio, such reservation shall not exceed twenty-five per cent, of said net profits; and when the sum so accumulated amounts to two per cent, of the sum insured by all policies in force, the whole of the net profits thereafter shall be divided among the insured at the expiration of their policies. But, any such company doing business outside the state of Ohio may set aside and thereafter maintain a permanent fund equal to the minimum amount of net cash assets or capital required to do business in any other state or states, accord- ing to the insurance laws thereof. The permanent fund so accumulated shall be used for the payment of losses and expenses, whenever the cash funds of the company in excess of an amount equal to its liabilities are exhausted; and whenever the said fund is drawn upon, the reservation of profits as aforesaid shall be renewed or continued until the limits. of accumulation as herein provided is reached, but within a reason- able time after the determination of any policy the owner thereof shall be entitled to receive, and shall be paid his pro rata share of all net profits not included in the aforesaid permanent fund, and a scrip dividend for his contribution to said fund. (April 10, 1900, 94 v. 121; April 14, 1888, 85 v. 273, 274; R. S. 1880; 70 v. 147, § 14; S. & S. 209.) Unearned premium not a debt. The sum set aside as unearned premiums, as provided by this section, is not a debt within the meaning of § 2730. Ins. Co. v. Cap- pelar, 38 Oh. St. 560, 568 (1883). See § 3634. Insurance Companies Other Than Life. 421 Real Estate — Municipal Companies, §§ 3649, 3650. § 3649. WHAT REAL ESTATE COMPANY MAY HOLD. — Wo company organ- ized under this chapter shall purchase, hold, or convey real estate, except for the purposes and in the manner herein set forth, to wit: 1. Such as is requisite for its convenient accommodation in the transaction of its business; or, 2. Such as is mortgaged to it in good faith, by way of security for loans pre- viously contracted, or for money due; or, 3. Such as is conveyed to it in satisfaction of debts previously contracted in its legitimate business, or for money due; or, 4. Such as is purchased at sales upon judgment, decree, or mortgages obtained or made for such debts. No such company shall purchase, hold, or convey real estate in any other case, or for any other purpose; and all such real estate as may be acquired as aforesaid, and which is not necessary for the accommodation of the company in the transaction of its business, shall be sold and disposed of within two years after title thereto is acquired, unless the company procure a certificate from the superintendent of insurance that its interests will suffer materially by a forced sale thereof, when the sale may bs postponed for such period as the superintendent shall direct in such certificate. (April 27, 1872, 69 v. 140, § 15; S. & S. 209.) § 3650. LIABILITY OF MEMBERS OE MTTTUAL COMPANIES TO ASSESS- MENT; ASSESSMENTS, HOW MADE; POR WHAT PURPOSES A DEBT MAY BE CREATED. — Every person who effects insurance in a mutual company, and con- tinues to be insured, and his heirs, executors, administrators, and assigns shall thereby become members of the company during the period of insurance, shall be bound to pay for losses and such necessary expenses as accrue in and to the company in proportion to the original amount of his deposit note or contingent liability; and the directors shall, as often as they deem necessary, settle and determine the sum to be paid by the several members thereof, and publish the same in such manner as they may choose, or as the by-laws prescribe, and the sum to be paid by each member shall always be in proportion to the original amount of such liability, and shall te paid to the officers of the company within thirty days next after the publication cf such notice; provided, that whenever such company is not possessed of cash funds above its reinsurance reserve sufficient for the payment of incurred losses and expenses, it shall be deemed to have impaired its capital, and when such impairment shall exceed twenty-five per cent, of the reinsurance reserve required to be maintained, it shall make an assessment for the amount needed to pay such losses and expenses upon its members liable to assessment therefor in proportion to their several liabilities and to make good the reinsurance reserve; and no such company shall borrow money or create a debt unless for the purpose of necessary office buildings, to continue beyond the period when such assessment may be collected and applied to the payment thereof, and no member shall be assessed for liabilities incurred prior to his membership. (Passed April 14, 1888; took effect July 1, 1888; 85 v. 273, 275; April 15, 1882, 79 v. 133; R. S. 1880; April 27, 1872, 69 v. 140, § 16.) No application to mutual protective as- sociations. Hag no application to mutual associations organized under §§ 3686 to 3690.— Richards, Reer., v. Swain et al., 7 N. P. 68 (1899) ; s. u., 9 Dec. 70. No authority to cancel note; liability thereunder. There is no statute authorizing the direct- ors of a mutual company to cancel the policy and premium note once executed, on the ground that the risk Is undesirable, if the policy does not reserve such right. But where it has been done in good faith, and the assured has accepted the returned premium note, he is relieved from liability for assessments on such note by the receiver of the insurance company. — Mansfield et al. v. Franklin Furn. Co., 12 C. C. 222 (1896) ; s. u., 4 C. D. 473; affirmed, 54 Oh. St. 653; Wadsworth et al. v. Davis, 13 Oh. St. 123 (1862). 422 Private Corporations in Ohio. Mutual Companies, Assessments of, § 3651. liiability under canceled note; juris- diction. A policy holder, whose policy and premium note has been canceled, is not excused from liability incurred during the life of the pol- icy ; yet his relation to the company is not such that he is represented by the receiver of the company, and the court did not thereby acquire jurisdiction of his person in a pro- ceeding to wind up the affairs of the company. — Wilhelm v. Parker, Recr., 17 C. C. 234 (1898); 9 C. D. 724. Iioss and payment of same by company does not extinguisli assured's con- tingent liability. Trustees v. Houston, 35 W. L. B. 182 (1896); Ins. Co. v. Society et al., 117 Mass. 199 (1875); Machine Co. v. Partridge, 25 N. H. 369 (1852). Extent of liability. No member is liable to pay assessments to pay losses occurring before he became a mem- ber, or which may have occurred after ceasing to be a member. — State ex rel. v. Fire Ass'n, 42 Oh. St. 555 (1885). Failure to pay assessments, works for- feiture. Where a holder of a policy leaves the pay- ment of assessments to his bookkeeper, who proves a defaulter and fails to pay them, such act is not an unavoidable accident or mistake, for which a court will grant relief against forfeiture. — Graveson v. Cincinnati Life Ass'n, 8 C. C. 172 (1894); s. c, 6 C. D. 327. See Ins. Co. v. Troy, 20 C. C. 644 (1900); s. c., 10 C. D. 761. ■Waiver of forfeiture. The fact that the lorfeiture of the policy was not declared sooner by the association than it was as it had a right to do, does not amount to a waiver of its right to forfeit the policy. — Graveson v. Cin. Life Ass'n, 8 C. C. 172 (1894) ; s. c, 6 C. D. 327; Phoenix Ins. Co. V. Hoflfler, 2 C. C. 131 (1890); s. c, 1 C. D. 403; reversed, 23 W. L. B. 108. Member's default Tvill not terminate liability. American Ins. Co. v. Sorter, 1 Clev. Rep. 133 (1878); Susquehanna Ins. Co. v. Le.avy, 136 Pa. St. 499 (1890); Huntley v. Perry, 38 Barb. 569 (1860). Insolvency or termination of company no defense. Corey v. Sherman, 32 L. R. A. (la.) 490 (1894) ; Comm. V. Ins. Co., 112 Mass. 116 (1873). Directors may compromise liability on assessments. Wadsworth et al. v. Davis, 13 Oh. St. 123 (1862). ^ Assessments can only be made by au- tliorized officers. Assessments can only be made by officers thereto authorized, and the failure to pay any < assessment otherwise made is not ground of forfeiture.— Bates v. Benef. Ass'n, 51 Mich. 587 (1883); Ins. Co. v. Chase, 56 N. H. 341 (1876). Assessments must be borne equally. Assessments must be borne by the members with substantial equality. It seems that only those who are insolvent can be excused from paying. If others refuse to pay, the company must enforce payment by suit. — Planters' Ins. Co. V. Comfort, 50 Miss. 662 (1874). Directors may exercise discretion as to amount. Directors may exercise reasonable discretion in fixing amount of assessment. But if they make assessments in anticipation of future losses they are invalid. — Rosenberger v. Ins. Co., 87 Pa. St. (1878); Ins. Co. v. Circuit Judges, 100 Mieh. 606 (1894). ■What is unequal assessment. David v. Parcher et al., 82 Wis. 488, 492 (1892). ' 1 Statute of limitations runs from date of levy. ' Statute of limitations as to assessments or deposit note does not run until levy made by the directors. — Lycoming Ins. Co. v. Batch- j eller, 62 Vt. , 148 (1890); Smith v. Bell, 107 1 Pa. St. 352 (1884); Wardle v. Hudson, 96, Mieh. 432 (1893). But runs immediately if deposit note is intended to make up required capital. ' Rowland v. Edmonds, 24 N. Y. 307 (1862). Misrepresentations of agent as to lia- bility on policy. It is no defense to an action to enforce the contingent liability of the assured that the policy was represented as a stock policy, that there would be no assessments and no further liabilitv,— Mansfield v. Ice Co., 28 W. L. B. 113 (1892) ; Mansfield v. Randall, 28 W. L. B. 114 (1892); American Ins. Co. v. Sorter, 1 Clev. Rep. 133 (1878). See §§ 3634, 36,51, 3652 and 3686, and notes thereto. § 3651. ENTOBCEMENT OE ASSESSMENTS; PARTIAL PAYMENT OF LOSS. — If a member neglect or refuse, for the space of thirty days after the publication of such notice, and after demand for payment, to pay the sum assessed upon him in (as his) proportion of any loss as aforesaid, the directors may sue for and recover the whole amount of contingent liability, with cost of suit; but execution shall only Insurance Companies Other Than Life. 423 Mutual Companies, Assessments — Policies — Reports, §§ 3652-3654. issue for assessments and costs as they accrue, and every such execution shall be accompanied by a list of losses for which the assessment is made; and if the whole amount of such liability be insufficient to pay the loss occasioned by any fire or fires, "the sufferers insured by the company shall receive, toward making good their respec- tive losses a proportional share of the whole amount of such liability, according to the sums by them respectively insured; but no mem.ber shall ever be required to pay lor any loss occasioned by fire, or inland navigation, more than the whole amount of such liability. (Passed April 14, 1888; took effect July 1, 1888; 85 v. 273, 275; E. S. 1880; April 27, 1872, 69 v. 140, § 16.) Noncompliance of corporators 'witli charter, no defense. A member of a mutual fire insurance com- pany, when sued upon an assessment upon his ■deposit note to pay a loss occasioned by fire. cannot set up as a defense that he and his associate corporators have neglected to comply ^\'ith the requirements of their charter. — Trumbull Mutual Ins. Co. v. Homer, 17 Oh. 407 (1848). See, also, Richards, Reer., v. Swaine & McCormiek Co. et al., 7 N. P. 68 (1898) : s. c, 9 Dec. 70. See notes to § 3650. § 3652, HOW ASSESSMENTS AND NOTICE PROVED. — In actions for the re- covery of assessments duly levied by the directors of any mutual fire insurance com- pany of this state, or for money due on the liability of the members of any such company, the official statement of the president or secretary of such company, under seal, and sworn to, shall be received in court as evidence of the facts essential for making the same, and that such assessment, for the non-payment of which any such action is commenced, has been duly levied, and notice thereof given. (Passed April, 14, 1888; took effect July 1, 1888; 85 v. 273,_ 276; B. S. 1880; 39 v. 35, § 1; S. & C. 352.) Parol proof not admissible to sho'w as- sessment. Phcenix Ins. Co. v. Bowersox, Recr., 6 C. C. 1 (1892); 3. c, 3 C. D. 321. If notice properly sent, immaterial as to its receipt. If notice of an assessment is given in the prescribed manner^ it is immaterial whether the person assessed received ■ it or not. — ■Greeley v. Ins. Co., 50 la. 86 (1878). Waiver of presoTibed manner of giving notice. If notice is actually received by the insured, and he does not object to the manner in which he received it, though it was not served as the by-laws required, he will be deemed to have waived the informality. — HoUister v. Ins. Co., 118 Mass. 478 (1875). § 3653. WHAT KIND OF POLICIES COMPANY TO ISSUE. — Every mutual company shall embody the word " mutual " in its title which shall appear upon the first page of every policy and renewal receipt, and every stock company shall express, upon the face of every policy and renewal receipt, in some suitable manner, that such policy or receipt is a stock policy or receipt; but neither class of companies doing busi- ness in this state, shall issue any policy other than that appropriate to its class, except that any mutual company now doing business in this state, having net assets not less than two hundred thousand dollars invested as provided in section thirty-six hun- dred and thirty-seven, may issue policies either upon the mutual or stock plan, and ^ may continue to do such kind of business so long as its assets continue so invested, ^ and may expose itself to loss on any risk or hazard, either by one or more policies, to an amount not exceeding five per cent, thereof. (April 27, 1872, 69 v. 140, § 17.) Cited Mansfield v. Ice Co., 28 W. L. B. 113,115 (1892). See Ohio Farmers' Ids. Co.'V. Maloney, 33 W. L. B. 147 (1895). § 3654. ANNUAL REPORTS OP COMPANIES; MUTUAL INSURANCE COM- TANIES. — The president or vice-president and secretary of such (each) insurance company organized under any law of this or any other state, and doing business in this state, shall, annually, on the first day of January, or within thirty days there- after, prepare, under oath, and deposit in the office of the superintendent of insurance 424 Private Corporations in Ohio. Reports, etc., § 3654. a statement of the condition of such company on the thirty-first day of December then next preceding, exhibiting the following facts and items, and in the following form, namely: First. — The amount of the capital stock of the company, specifying the amount paid and unpaid. Second. — The property or assets held by the company, specifying: 1. The value of the real estate owned by such company, where it is situated and the value of buildings thereon. ■ 2. The amount of cash on hand and deposited in banks to the credit of the com- pany, specifying in what banks the same is deposited. 3. The amount of cash in the hands of agents and in course of transmission. 4. The amount of loans secured by bonds and mortgages, which are first lien on. real estate, and on which there is less than one year's interest due. 5. The amount of loans on which interest has not been paid within one year. 6. The amount due the company on which judgments have been obtained and the cash value thereof. 7. The amount of stocks in this state, the United States, of any city of this state, and of any other stocks owned by the company, specifying the amount, number of shares, and the par and market value of each kind of stock. 8. The amount of stock held as collateral security for loans, with the amount loaned on, and the par and market value of each kind of stock. 9. The amount of unpaid assessments on stock, premium notes or contingent liabilities. 10. The amount of interest due and unpaid and the amount of interest accrued but not due. 11. The amount of premium notes or contingent liabilities on which policies are issued. 12. The number of policies in force. 13. The amount insured under all policies in force. 14. The amount of premiums received thereon. 15. The amount and description of all other assets. Third. — The liabilities of the company, specifying: 1. The amount of losses due and unpaid. 2. The amount of claims for losses resisted by the company. 3. The amount of losses incurred during the year, including those claimed and not due, and those reported to the company upon which no action has been taken. 4. The amount of dividends declared and due and remaining unpaid. 5. The amount of dividends, either cash or scrip, declared but not due. 6. The amount of money borrowed and the security given for the payment thereof. 7. The amount required for reinsurance, being in stock companies, a sum equal to fifty per cent, of the whole amount of premiums on unexpired risks and policies; and in mutual companies a sum equal to fifty per cent, of the cash premiums received on unexpired risks and policies. 8. The amount of all other existing claims against the company. Fourth. — The income of the company during the preceding year, specifying: 1. The amount of cash premiums received. 2. The amount of notes or contingent assets received for premiums. 3. The amount of interest money received. 4. The amount of income received from other sources. Insurance Companies Other Than Life. 425 Beports, etc., § 3655. Fifth,. — The expenditure during the preceding year, specifying: 1. The amount of losses paid during the year, stating how much of the same ac- crued prior and how much subsequent to the date of the preceding statement, and the amount at which losses were estimated in each preceding statement. 2. The amount of dividends paid during the year. 3. The amount of expenses paid during the year, including commissions and fees to agents and officers of the company. 4. The amount paid for taxes. 5. The amount of all payments and expenditures. 6. Amount of scrip dividend declared. Every mutual fire insurance company created by or organized under any general or special law or act, and doing business in Ohio under any law of this state, upon or without the premium note plan, which shall, by its policy, by-laws or published statements of its financial affairs, claim the benefit of the guarantee fund, or the con- tingent liability of its policy-holders, as provided for in section 3634 of the Revised Statutes, as now in force, shall be held as having organized under the laws of this state as now in force, and be governed by all the provisions thereof as applicable to such companies; and every such mutual fire insurance company that shall neglect or refuse to make and forward to the superintendent of insurance such annual report of its affairs as is required by law, or shall refuse to allow or permit the superin- tendent of insurance free access to its books and papers, and investigate the financial standing of such company, the charter of every such company organized under the laws of this state as aforesaid, and so neglecting and refusing, shall thereby become forfeited, and the said superintendent of insurance shall proceed without delay to bring the affairs of such company to a close. (May 9, 1894, 91 v. 211; April 11, 1893, 90 V. 159; April 17, 1891, 88 v. 308; April 14, 1888, 85 v. 273, 276; R. S. 1880, 70 V. 147, § 18; S. & S. 211.) Special charter does not exempt. A company organized under a special char- ter, before the adoption of the present consti- tution, is subject to such reasonable regula- tions as the legislature may prescribe, which regulations serve to secure the ends for which the company was created, and not being re- pugnant to the franchises and privileges granted in the charter, such a company will not be exempt from a compliance with § 3654 and § 3655, unless such exemption appears to have been clearly granted by its charter. — State ex rel. v. Eagle Ins. Co., 50 Oh. St. 252 (1893); Ins. Co. v. Ohio, 153 U. S. 446, 453 (1894). See §§ 3634 and 3691-5. § 3655. SPECIAL REPORT REQUIRED OE CERTAIN IITSTIRANCE COM- PANIES; PENALTY. — The statement of any such company, the capital of which is composed in whole or in part of notes, shall, in addition to the foregoing, exhibit the amount of notes which originally formed the capital, and also what proportion of Such notes is still held by the company and considered capital; and every company organized under any law of this state which fails to make and deposit such state- ment, or to reply to any inquiry of the superintendent, with respect to such state- ment, shall be subject to a penalty of five hundred dollars, and an additional five hundred dollars for every month that it continues thereafter to transact any business of insurance, to be recovered by action in the name of the state, and, on collection, paid into the state treasury for the benefit of the state common school fund; and the attorney-general, on the request of the superintendent of insurance, shall institute such action against any company so delinquent, in the court of appropriate jurisdic- tion in Eranklin county, or in the court of appropriate jurisdiction of the county in which said company is located or has its principal place of business, as he prefers. (January 21, 1887, 84 v. 5; May 11, 1886, 83 v. 416; R. S. 1880; April 27, 1872, 69 V. 140, § 19; S. & S. 212.) See note, §' 3654. 426 Private Corporations in Ohio. Foreign Companies, License of, § 3656. § 3656. FOREIGN COMPANIES MUST OBTAIN LICENSE OF SUPEBINTEND- ENT. — No company, association or partnership, incorporated, organized or associ- ated under tlie laws of any other state of the United States, or of any foreign government, for any of the purposes mentioned in this chapter, which does a bank- ing or any other kind of business in connection with insurance, shall, directly or indirectly, transact any business of insurance in this state, nor shall any such com- pany, association or partnership do any such business in this state until it procures from, the superintendent a certificate of authority so to do; nor shall any person or corporation act as agent in this state for any such company, association or partner- ship, directly or indirectly, either in procuring applications for insurance, taking risks or in any manner transacting the business of insurance, until it procures from the superintendent a license so to do, stating that the company, association or part- nership has complied with all the requirements of this chapter applicable to such com- pany, and depositing a certified copy of such license in the office of the recorder of the county in which the office or place of business of such agent or agents is established; nor shall any company, association or partnership organized under the laws of any other state, take risks or transact business of insurance in this state, directly or indi- rectly, unless possessed of the amount of actual capital required by similar companies formed under the provisions of this chapter, nor unless the capital stock of the com- pany is paid up and invested as required by the laws of the state where it was organ- ized, and if a live stock insurance company has deposited in such state or in this state, for the benefit of its policy-holders, securities approved by the insurance department of such state in an amount equal to one-fourth of its entire capital stock; but if the company is a mutual fire insurance company, it shall have actual cash assets of the same amount and description as is required of mutual fire insurance companies of this state, after organization, invested as required by the law of the state where such com- pany was organized, and such companies must have either premium notes or con- tingent liability of the same amount as is required of similar fire insurance companies of this state, which contingent liability may be either in writing or be expressed in the policies issued by such company.. (May 9, 1894, 91 v. 139; April 17, 1891, 88 v. 340; May 15, 1878, 75 v. 572, § 30; April 24, 1873, 70 v. 147, § 1.) What is sufficient capital. A mutual fire insurance company organized under the laws of another state, but similar to domestic companies, which has at least $50,000 in premium notes, on which at least $10,000 in cash has been paid before commenc- ing the business of insuring, may, so far as capital is concerned, be admitted to do busi- ness in this state. — State ex rel. v. Moore, 42 Oh. St. 103 (1884). Superintendent's discretion not subject to mandamus. , In consiHering the application of such in- surance company for admission to do business in this state, the superintendent may inquire into its financial soundness, and if upon such inquiry, made in good faith, he is not satis- fied, he is invested with discretion to refuse such admission, and his exercise of such dis- cretion will not be controlled by mandamus. — State ex rel. v. Moore, 42 Oh. St. 103 (1884). Cannot exercise discretion arbitrarily. Superintendent has no power, however,^ in the exercise of a mere arbitrary discretion. to refuse such admission. — State ex rel. v. Moore, 42 Oh. St. 103 (1884). Incorporated as nrell as unincorporated associations must obtain license. State ex rel. v. Ackerman et al., 51 Oh. St. 163 (1894). Lloyd's policy — liability several. Under a Lloyd's policy, under-written by fourteen parties, acting by their agent, each for a, stipulated sum, the liability of the underwriters is several, not joint. — Gilchrist f. Transportation Co., 21 0. 0. C. 19 (1900). Quo Tvarranto proper remedy against company doing business ^pitliout li- cense. State ex rel. v. Ackerman, 51 Oh. St. 163 (1894). Loan on note and mortgage not bank- ing business. Bank v. Ins. Co., 41 Oh. St. 1 (1885) ; Hall V. Kummero et al., 7 N. P. 394 (1898) ; s. c, 5 Dec. 176. See § 3604 and notes thereto. Insurance Companies Other Than Life. 427 Toreign Companies — Waivers, Statements, License, §§ 3657-3659. § 3657. THE "WAIVER COMPANIES MUST FILE. — Any such company desir- ing to transact any business by an agent in this state, shall file with the superin- tendent a written instrument, duly signed and sealed, authorizing any agent of the company in this state to acknowledge service of process in this state for and in behalf of the company, consenting that service of process, mesne or final, upon any such agent, shall be taken and held to be as valid as if served upon the company accord- ing to the laws of this or any other state or country, waiving all claim or right of error by reason of such acknowledgment of service, and consenting that suit may be brought against it in the county where the property insured was situate, or where the same was insured, and that service of process made therein by the sherifE of such county, by sending a copy thereof by mail, addressed to the company at the place of its principal office located in the state where it was organized, or, if it is a foreign company, to such company at the place of its principal office in the United States, at least thirty days prior to taking judgment in such suit, shall be as valid as if per- sonally made upon the company according to the laws of this state, or any other state or government, and that if suit be brought against it after it ceases to do busi- ness in this state as aforesaid, and there be no agent of the company in the county in which suit is brought upon whom service of process can be had, service upon it may be had by the sheriff sending a copy thereof, mailed as aforesaid, and within the time aforesaid; but the sheriff's return shall show the time and manner of such service. (May 15, 1878, 75 v. 572, § 20.) See § 3607 and notes. Service by mailing as above provided, sufficient. Mohr V. Ins. Co., 10 W. L. B. 82 (1883). See, also, Handy v. Ins. Co., 37 Oh. St. 371 (1881). § 3658. MUST ALSO FILE STATEMENT. — Every such company, association, or partnership shall also file with the superintendent a. certified copy of its charter, or deed of settlement, together with a statement, under the oath of its president or vice-president, or other chief officer, and the secretary of the company, stating the name of the company, the place where it is located, and the amount of its capital, with a detailed statement of the facts and items required from the companies organ- ized under the laws of this state by sections thirty-six hundred and fifty-three* and thirty-six hundred and fifty-four;* and they shall also file with the superintendent a copy of their last annual report, if any was made, under any law of the state by which it was incorporated. (May 15, 1878, 75 v. 572, § 20; E. S. 1880.) * Sections 3653, 3654 should be sections 3654, I tions and the original act in 75 v. 572. 3655, as will be seen by examining these sec- | § 3659. REVOCATION OF LICENSE OF FOREIGN INSURANCE COMPANY OTHER TSAN LIFE. — If any such company, association or partnership doing busi- ness within this state makes an application for a. change of venue, or to remove any suit or action wherein such company has been sued by a citizen of this state, now pending, or hereafter commenced in any court of this state, to the United States dis- trict or circuit court, or to any federal court, or shall enter into any compact or com- bination with other insurance companies, or shall require their agents to enter into any compact or combination with other insurance agents or companies, for the pur- pose of governing or controlling the rates charged for fire insurance on any property within this state, or for the purpose of governing or controlling the rates per centum or amount of commission or compensation to be allowed agents for procuring^ contracts for fire insurance on any property within this state (provided that nothing herein shall prohibit one or more of such companies from employing a common agent or agents to supervise and advise of defective structures, suggest improvements to 428 Private Corporations in Ohio. Foreign Companies — Deposit, Reports, §§ 3660, 3661. lessen the fire hazard, and to advise as to the relative value of risks), the superin- tendent of insurance shall forthwith revoke and recall the license or authority to it to do or transact business within this state, and no renewal of authority shall be granted to it for three years after such revocation; and it shall thereafter be pro- hibited from transacting any business in this state until again duly licensed and authorized. (April 14, 1900, 94 v. 165; May 1, 1891, 88 v. 485; May 4, 1885, 82 v. 231; B. S. 1880; May 15, 1878, 75 v. 572, § 20.) See notes to § 3620. See Runck v. Cloud, 8 N. P. 436 (1901). § 3660. CERTAIN COMPANIES MUST- MAKE DEPOSIT.— A company incor- porated by or organized under the laws of a foreign government shall deposit with the superintendent of insurance, for the benefit and security of the policy-holders residing in this state, a sum not less than one hundred thousand dollars in stock or bonds of the United States, or the state of Ohio or any municipality or county thereof, which shall not be received by the superintendent at a rate above their par value; the stocks and securities so deposited may be exchanged from time to time for other like securities; so long as the company so depositing continues solvent and complies with the laws of this state, it shall be permitted by the superintendent to collect the interest or dividends on such deposits; and for the purpose of this chapter the capital of any foreign company doing fire insurance business in this state shall be deemed to be the aggregate value of its deposits with the insurance or other departments of this state and of the other states of the TJhited States, for the benefit of policy-holders in this state or in the United States, and its assets and investments in the United States certified according to the provisions of this chapter; but such assets and investments must be held within the United States, and invested in and held by trus- tees, who must be citizens of the United States, appointed by the board of directors of the company and approved by the insurance commissioner of the state where invested, ;for the benefit of the policy-holders and creditors in the United States; and the trustees so chosen may take, hold and convey real and personal property for the pur- pose of the trust, subject to the same restrictions as companies of this state. (Febru- ary 27, 1894, 94 v. 40; April 24, 1873, 70 v. 147, § 21; S. & S. 212.) See § 3593. § 3661. ALL FOREIGN COMPANIES MUST MAKE ANNUAL STATEMENTS. — Every company, other than a life company, organized by act of congress, or under the laws of any other state or government, shall, annually, at the time, and in the form and manner, required of similar companies organized under the laws of this state, file a statement of its condition and affairs in the office of the superintendent of insurance; any company organized under or incorporated by any foreign government shall also furnish a supplementary statement for the year ending on the preceding thirty-first day of December, verified by the oath of the manager of such company residing in the United States, which shall comprise a report of its business and affairs in the United States, as required from companies organized in this state, together with any other information that may be required by the superintendent of insurance, and if such annual statement be satisfactory evidence to the superintend- ent of insurance of the solvency and ability of such company to meet all its engage- ments at maturity, and that the deposit is maintained as hereinbefore provided, he shall issue renewal certificates of authority to the agents of the company, certified copies of which shall be filed in the recorder's office of each county wherein an agency is located, during the month of January in each year, or within sixty days thereafter, which certificates shall be the authority of such agents to issue new policies in this state for the ensuing year. (April 27, 1872, 69 v. 140, § 22; S. & S. 213.) Insurance Companies Other Than Life. 429 Advertisements — Dividends — Cancellations, etc., §§ 3661a-3664. § 3661a. FIKE INSURANCE COMPANY TO INCLUDE IN ADVERTISEMENT ONLY ASSETS ADMITTED BY SUPERINTENDENT OF INSURANCE.— (No) fire insurance company, organized under the laws of this state, or admitted to do business in this state, shall, in any public advertisement, card, or circular, include in any statement of assets, any item of value, of a class or character not admitted by the superintendent of insurance of this state in the annual reports of said companies. And every such advertisement, card, or circular, containing a statement of assets, shall, in all cases contain also a full statement of all the liabilities of said company, including the reinsurance reserve, which in no case shall be less than fifty per cent, on the gross premiums received on all unpaid (unexpired) risks. (April 12, 1880, 77 V. 185.) § 3661b. PENALTY. — Any violation of this act, after the second notice from the superintendent of insurance of this state, shall render such company liable to a fine of one thousand dollars ($1,000), and each subsequent violation to a similar fine, to be recovered for the benefit of the common school fund of the county, in an action to be instituted by the prosecuting attorney in the name of the state of Ohio, against said company. (April 12, 1880, 77 v. 185, 186.) § 3662. COMPANIES MUST APPLY DIVIDENDS TO STOCK NOTES. — Every company heretofore organized under any law of this state, for any of the purposes mentioned in this chapter, which has not called in the whole amount of its subscribed capital stock, whether the unpaid balance of such capital is secured by indorsed notes or otherwise, shall retain from each and every dividend declared to its stockholders, their heirs or assigns, fifty per cent, of such dividend, and apply the amount so with- held as a credit upon the balance remaining unpaid on the shares of such stockholders, until such balance shall be fully paid; and the dividends, from time to time so cred- ited, with the capital previously paid in, shall be invested by the company in the manner required by section thirty-six hundred and thirty-seven; but if the divi- dends so credited did not, by the first of January, 1878, equal such balance in full, such company shall hereafter retain the whole amoulit of any and every dividend declared to its stockholders, their heirs or assigns, and shall credit and invest the same as aforesaid, until the whole subscribed capital, not less in any case than one hundred thousand dollars, shall be paid up and invested, and any company which violates any of the provisions of this section shall thereby forfeit its charter. (April 24, 1873, 70 V. 147, § 23.) § 3663. LIEN OF MUTUAL COMPANIES FOR PREMIUM NOTES. — All build- ings insured by any mutual company shall be pledged to such company, together with the right and title of the assured in the lands upon which they are situate, to the am.ount of the premium note or contingent liability, and the company shall have a lien thereon to the amount of such note or liability, but the lien of the company shall not take effect until the company files with the recorder of the county in which the property insured is situate, a certificate, stating the date, number, and amount of premium note, or contingent liability, and such a description of the property insured as will enable any person readily to identify the same; the recorder shall record and index the certificate in his book of liens, for which he shall receive the sum of fifty cents; and all liens heretofore acquired by any such company shall continue in force under this chapter. (Passed April 14, 1888; took effect July 1, 1888, 85 v. 373, 278; R. S. 1880; April 27, 1872, 69 v. 140, § 24.) See § 3634. § 3664. INSURED MAY REQUIRE FIRE POLICY TO BE CANCELED. — Any fire insurance company doing business under the laws of this state which hereafter issues policies of insurance covering any property located in this state, and on such 430 Private Corporations. in Ohio. Policies — Cancellation, Rates, etc., §§ 3665-3668. policies receives from the persons insured either cash payments of premium, or notes subject to assessment for payment of losses, or notes for the installments of premium, shall be required to insert in every policy so issued an obligation to cancel the policy at any time, upon the written request of the person insured, on conditions as provided in the following five sections. (April 4, 1878, 75 v. 88, § 1.) Does not apply to cancellation by com- pany. Sections 3664 to 3667 apply only to cases in which the policy is canceled at the request of the insured, and not to cancellation by the company itself. — Ins. Co. v. Brecheisen, 50 Oh. St. 542 (1893). Duty to cancel does not create legal bona fide debts under § 2730. Debts to be deducted under § 2730 are actual debts and the obligation to refund under this section is contingent until the in- sured exercises his option. — French v. Ger- man Mutual Ins. Co., 12 JDee. 183 (1901). Cancellation by company may be fixed by contract. The parties to a policy are free to fix the terms and conditions upon which a policy may be canceled by the company; but when the insurance is terminated upon the request of the assured, the parties must comply with §§ 3664 to 3667.— Ins. Co. v. Brecheisen, 50 Oh. St. 542 (1893). Cited in Ins. Co. v. Cappelar, 38 Oh. St. 560, 570 (1883). § 3665. RATES FOE CANCELLATIOIT OF CASH POLICIES. — When a policy issued on the cash plan is canceled, in accordance with the provisions of the preceding section, the companies so issuing may retain customary short rates, as now estab- lished and charged by companies doing a cash business, for the time the policy has been in force, and return to the insured the unearned premium on the policy for unexpired time. (April 4, 1878, 75 v. 88, § 2.) See § 3664 and notes. Cited Ins. Co. v. Cappelar, 38 Oh. St. 560, 571 (1883). § 3666. RATES FOR POLICIES OF MUTUAL COMPANIES.— When policies issued on the mutual plan are canceled, as provided in section thirty-six hundred and sixty-four, the companies so issuing must surrender to the insured the note or notes received from the insured for premium or payment of losses; such policies shall first be sent to the secretary or agent of the company, and within sixty days after the receipt thereof for cancellation the premium npte shall be returned; but the assured must first pay his proportion of all losses which have actually occurred up to the date when the policy was received for cancellation, and the company shall not be liable for any loss under any such policy after it is returned for cancellation. (April 4, 1878, 75 V. 88, § 3.) See § 3664 and notes. § 3667. RATES WHEIT PREMIUM IS PAID IN INSTALLMENTS. — When policies issued on the installment plan are canceled, in accordance with the provisions of section thirty-six hundred and sixty-four, the companies so issuing may collect and receive of the insured customary short rates for the time the policy has been in force, to be computed on the full term of insurance mentioned in the policies as charged by such companies, and on receipt of such short rates must return all install- ment notes then unpaid, and refund to the insured any premium collected in excess of such short rates. (April 4, 1878, 75 v. 88, § .4.) See § 3664 and notes. § 3668. PREMIUM NOTES NOT NEGOTIABLE.— When companies doing busi- ness under the laws of this state receive notes in consideration of premiums on their policies, they shall be required to insert on the face of each note the following words, to wit: " It is hereby understood and agreed that this note is not transferable." (April 4, 1878, 75 v. 88, § 5.) Insurance Companies Other Than Life. 431 Accident Companies — Consolidations, §§ 3669-3671. § 3669. SUPERINTENDENT TO ENEOKCE CEKTAIN PROVISIONS. — When, it conies to the knowledge of the superintendent of insurance, or any ofBcer having charge of the insurance department of this state, that any provision of the five preceding sections has been violated, he shall at once proceed to make a thorough investigation, and, upon receiving sufficient proof of such violation shall revoke the certificate of authority of the company guilty of such violation. (April 4, 1878, 75 V. 88, § 6.) § 3670. ACCIDENT INSURANCE COMPANIES AUTHORIZED; DEPOSIT OF SECURITIES FOR THE PURPOSE OP DOING BUSINESS IN ANOTHER STATE Companies may be organized for the special purpose of insuring persons against accidental personal injury or loss of life sustained while traveling by railroad, steam- boat or other mode of conveyance, and making all and every insurance connected with the accidental loss of life, or personal injury sustained by accident, of every descrip- tion whatever, and against expenses and loss of time occasioned by sickness or other disability, and on such terms and conditions, and for such periods of time, and con- fined to such countries and localities, and to such persons, as shall from time to time be provided for in the by-laws of the company; and when any company so organized desires to do business in any other state, by the laws of which to qualify it therefor, it is required to make a deposit of securities assigned in trust for the benefit of its policy-holders with an officer of this state, it shall be, and hereby is made the duty of the state treasurer to receive such deposit, and issue therefor to such company his receipt, giving a pertinent description of said securities and a certificate of the market value of the same, and he shall also issue a like certificate to the superintendent of insurance, who shall place the same on file in his office. Such company shall have the right to exchange said securities for other like securities, in whole or in part, as far as its business may require, and to wholly withdraw the same should it discontinue business in such other state; but all such changes or withdrawals of securities shall be at once duly certified by the treasurer to the superintendent of insurance. (May 1, 1885, 82 V. 210; R. S. 1880; February 7, 1865, 63 v. 12, § 1; S. & S. 230.) § 3671. HOW COMPANIES MAY CONSOLIDATE. — When any joint stock fire and marine insurance company of this state, heretofore organized, or that may here- after be organized, determines by a vote of the holders of two-thirds of its stock to consolidate and make joint stock with any other like company or companies engaged in or incorporated for like business, and each of such companies agrees, by the vote aforesaid, to such consolidation, such companies may, by a vote of the holders of a majority of the stock so consolidated, choose and determine under which corporate organization or articles of association of the consolidating companies, and under what name, their future business shall be conducted; upon filing with the superin- tendent of insurance a certificate of such consolidation, the companies shall from thenceforth become and be consolidated under the corporate organization or articles of association and corporate name thus chosen; and thereupon all franchises, rights, equities, property, and estate, of whatever name or nature, belonging to or vested in either of the consolidating companies, shall immediately, upon and by the act of such consolidation, become the property and estate of and be vested in such consolidated company, and the corporate existence of the consolidating companies shall cease, and be merged in the consolidation from thenceforth; and such consolidated company shall have the exclusive right and power to demand, sue for, collect, convey, and dis- pose of the rights, equities, property, and estate aforesaid, or any part thereof, under its own name chosen as aforesaid, and all debts, liabilities, and obligations of the consolidating companies shall be assumed and paid by the consolidated company. (January 31, 1873, 70 v. 19, § 1.) 432 Private Corporations in Ohio. Consolidations — Mutual Companies, §§ 3672-3684. § 3672. DISTRIBUTION OF THE STOCK OF CONSOLIDATED COMPANY.— Upon such consolidation of companies the just and true value of each outstanding share of the capital stock of each of the consolidating companies shall, by their lespective directors, be ascertained through a suitable valuation of all the assets and liabilities thereof at the time of the consolidation, and new shares of the consolidated company shall be apportioned to each stockholder, equal to the sum so ascertained to be the just and true value of his shares in each or either of the consolidating com- panies, and the shares thus apportioned shall be substituted for his original shares, and all certificates of shares in the consolidating companies shall be surrendered when the new certificates of the shares so apportioned are issued; but any stock- holder in either of the companies so consolidating who refuses to agree to such con- solidation shall be entitled to receive for the stock by him owned the just market value of the same at the time of such consolidation, to be paid to him previous to such consolidation. (January 31, 1873, 70 v. 19, § 2.) § 3673. ELECTION OF DIEECTORS.— Immediately upon the consideration (consolidation) of such companies the directors of the several companies so consolidat- ing shall proceed to elect, from their members, the directors for the consolidated company, who shall serve until their successors are elected and qualified- (January 31, 1873, 70 V. 19, § 3.) § 3674. CAPITAL STOCK LIMITED.— The capital stock of such consolidated company may be equal to, but shall not, by virtue of such consolidation, exceed, the aggregate authorized capital of the consolidating companies. (January 31, 1873, 70 V. 19, § 4.) § 3675. CERTIFICATE OF CONSOLIDATION MUST BE FILED WITH SECRE- TARY OF STATE. — Within thirty days after such consolidation a certificate, setting , forth the fact of the consolidation, and the name and organization adopted thereby, shall be filed in the office of the secretary of state. (January 31, 1873, 70 v. 19, § 5.) § 3683. EXAMINATION OF MUTUAL FIRE COMPANIES.— The court of common pleas in each county in which the office of any mutual fire insurance com- pany is situate shall, on the application of any three or more persons interested, appoint one or more suitable persons, resident in such county, to make a thorough and careful examination into the affairs and conditions of such company; the persons so appointed shall have power to require the production of all books and papers "belonging to such company, or pertaining to its business, and to examine under oath all the officers, servants, or agents of the company, or any other person, touching its affairs and condition, which oath may be administered by any person appointed to make the examination, and they shall report thereon to the court, at its next regu- lar term, in which they shall set forth in full the condition of the company, and transmit a copy of such report to the superintendent of insurance forthwith; and such examiners shall each receive two dollars per day for the time actually employed in making the examination and report, to be paid out of the treasury of the company examined; but such examination shall not be had oftener than once in six months.' (March 10, 1859, 56 v. 37, § 1; S. & C. 353.) ■ § 3684. PERSONS REFUSING TO APPEAR AND TESTIFY ARE IN CON- TEMPT. — If any such officer, servant, agent, or other person, fall or refuse to appear before such examiners, or refuse to testify, or to produce before them any book or papers in his possession, and required to be produced, such failure or refusal shall be deemed a contempt, and shall forthwith be reported to such court, which shall punish the person in contempt in the same manner and to the same extent as though such contempt had been committed against the court. (March 10, 1859, 56 v. 37, § 2; S. & C. 353.) Insurance Companies Other Than Life. 433 Bonds, Approval — Mutual Protective Associations, §§ 3685, 3686. § 3685. CEETAIN BONDS MAY BE APPROVED BY PROBATE JUDGE.— Any insurance company wliicli, by th.e terms of its charter, is required to have its o£a.cial bonds approved by a judge of the court of common pleas, may, at its option, have the same approved by the probate judge of the county in which the office of the company is located. (February 2, 1857, 54 v. 17, § 1; S. & C. 363.) § 3686. MUTUAL PROTECTION ASSOCIATIONS AUTHORIZED.— Any num- Tjer of persons of lawful age, residents of this state, or residents of an adjoining state and owning insurable property in this state, not less than ten in number, may asso- ciate themselves together for the purpose of insuring each other against loss by flre and lightning, cyclones, tornadoes or windstorms on property in this state; and may make, assess and collect upon and from each other such sums of money, from, time to time, as may be necessary to pay losses which occur by fire and lightning, cyclones, tornadoes or windstorms to any members of such association, and the assess- ment and collection of such sums of money shall be regulated by the constitution and by-laws of the association. An association formed for the purpose of insuring against loss by fire and lightning, cyclones, tornadoes or windstorms may insure farm buildings, detached dwellings, school houses, churches, township buildings, grange buildings, farm implements, farm products, household goods and furniture in such buildings, and other property not classed as extra hazardous. (April 25, 1898, 93 V. 335; April 15, 1889, 86 v. 377, 380; February 27, 1885, 82 v. 71; April 14, 1884, 81 v. 185; R. S. 1880; March 30, 1877, 74 v. 66, § 1.) Tievr scheme of insurance. This section contemplates a new system of fire insurance before unknown in this state. Eiehards v. Swaine & McCormick et al.. 7 N. P. 68 (1900) ; s. c, 9 Dee. 70; State ex rel. v. Kre Ass'n, 42 Oh. St. 555, 563 (1885). Authority of such associations. Such associations are empowered to make and enforce their members' contracts of in- demnity, by which the members agree to be assessed specifically for such amounts as may be necessary to pay losses occurring to the members, and also to pay incidental expenses. — State ex rel. v. Fire Ass'n, 42 Oh. St. 555 (1885). Xiability of members. Members are liable to assessments only for losses occurring during their membership, and are not liable for losses occurring before or after such membership. — State ex rel. v. Tire Ass'n, 42 Oh. St. 555 (1885). Cannot contract for specific sum in lieu of assessment. A contract cannot be made with members by which they, upon an advance payment of an agreed annual amount, shall be exempt . from assessments during the ensuing year, nor can a member's liability to assessment be lim- ited, without regard to the amount that may be necessary to pay losses. — State ex rel. v. Fire Ass'n, 42 Oh. St. 555 (1885). 'What is not an assessment. Such advance payment, based upon the haz- ards of the risk, without reference to the amount necessary to pay losses, is in fact a LAW GOV. PRIV. COR. — 28. premium, and not a specific assessment au- thorized by this statute. — State ex rel. v. Fire Ass'n, 42 Oh. St. 555 (1885). Does not authorize profits to be made. This section does not authorize a corpora- tion for profit either to its officers or members, and any scheme by which profits are made is unauthorized. — State ex rel. v. Fire Ass'n, 42 Oh. St. 555 (1885). Assessments are trust funds; misappli- cation. Funds derived from assessments to pay losses are in their nature trust funds to be applied to such losses; hence the application of such assessments or advance payments, in lieu of assessments, to the purchase of the asset of a like coi"poration, including real estate not necessary to its business or to the payment of losses to members of such other corporation, is a misapplication of such funds. — State ex rel. v. Fire Ass'n, 42 Oh. St. 555 (1885). Nonresidents not eligible. Nonresidents of this state cannot become members of such association, and persons who are not members cannot become directors. — State ex rel. v. Mutual Fire Ass'n, 50 Oh. St. 145 (1893). ■ Note amendment to this section (" or resi- dents of an adjoining state owning insurable property in this state." 93 v. 335.) Cannot do business on stock or mutual plan. Such association is not authorized to do business on the " joint stock " nor on the 434 Private Corporations in Ohio. Mutual Protective Associations, §§ 3687-3690. " contingent liability " plan, as defined in § 3634, but must confine itself to insuring its members, who agree to be assessed specifically to pay losses and incidental expenses. — State ex rel. v. Fire Ass'n, 42 Oh. St. 555 ( 1885 ) ; Richards, Rec'r, v. 8\vaim et al., 7 N. P. 68 (1900); s. c, 9 Dec. 70; State ex rel. v. Mutual Fire Ass'n, 50 Oh. St. 145 (1893). Trustees not liable for loss. The loss is not a debt for which the trustees are personally liable, even though the certifi- cate be in part ultra vires, if issued in good faith. — Manufacturers' Fire Ass'n v. l3rug Mills, 8 C. C. 112 (1894) ; s. c, 4 C. D. 350. See §§ 3634, 3650 and 3690, and notes. See State ex rel. v. Live Stock Co., 38 Oh. St. 347 (1882). § 3687. CERTIFICATE OF ORGANIZATION.— Such persons shall make and subscribe a. certificate setting forth, therein: First. The name by which the association shall be known. Second. The place which shall be regarded as its center or business office. Third. The object of the association, which shall only be to enable its members to insure each other against loss by fire and lightning, cyclones, tornadoes, or wind- storms, and other casualtidk, and to enforce any contract which may be by them entered into, by which those entering therein shall agree to be assessed specifically for incidental purposes and for the payment of losses which occur to its members. (April 15, 1889, 86 v. 377, 380; February 27, 1885, 82 v. 71, 72; April 14, 1884, 81 V. 185; R. S. 1880; March 30, 1877, 74 v. 66, § 2.) See notes to § 3686. § 3688. WHEN CERTIFICATE TO BE FILED.— The certificate shall be filed in the office of the secretary of state, and a copy thereof, duly certified by the secretary of state, shall be evidence of the existence and due incorporation of the association for the purposes therein named. (March 30, 1877, 74 v. 66, § 3.) § 3689. ELECTION OF OFFICERS; POWERS.— When such certificate is so filed, and a copy thereof so certified forwarded to the association,the persons named therein shall elect their directors, and a president, secretary, and treasurer, and such other officers as may be necessary for the complete performance of all the business and objects of the association herein provided, to serve for one year; and such officers shall thereafter be chosen in such manner, and at such time as shall be fixed upon in the constitution; but directors shall not be chosen for a longer period than three years; and such association so organized shall be known and held to be a body cor- porate for all the purposes aforesaid, and may sue and be sued, and plead and be impleaded, in all courts of law and equity, but in no instance shall the power to insure against losses by fire or tornadoes be exercised to other than members of the association. (April 30, 1886, 83 v. 106, 107; R. S. 1880; March 30, 1877, 74 v. 66, § 4.) Persons not members cannot become directors. State ex rel. v. Mutual Fire Ass'n, 50 Oh. St. 145 (1893). See note to same case under § 3686. § 3690. CERTAIN INSURANCE COMPANIES MUST ADOPT CONSTITUTION AND BY-LAWS; OFFICIAL STATEMENT TO BE MADE TO SUPERINTENDENT OF INSURANCE. — Every such association shall adopt such constitution and by-laws not inconsistent with the constitution and laws of this state or the United States as will, in the judgment of its members, best subserve the interests and purposes of the association; and all persons who sign such constitution shall be considered and held to be members of the association, and shall be held in law to comply with all the pro- visions and requirements of the association; and the president or vice-president and secretary of every such association shall annually on the first day of January, or within thirty days thereafter, prepare under oath and deposit in the office of the superintendent of insurance a statement of the condition of such association on the Insurance Companies Other Than Life. 435 Mutual Fire Insurance Associations, § 3690-1. thirty-first day of December tlien next preceding, exhibiting such facts as are enu- merated in section thirty-six hundred and fifty-four (3654), and applicable to such associations, and such other information necessary to reveal the financial condition of such associations as the superintendent may require, in a printed form to be by him ^supplied to such association for that purpose, and every such association which fails to make and deposit such statement or to reply to any inquiry of the superintendent, shall be subject to a penalty of five hundred dollars, and an additional five hundred dollars for every month that it continues thereafter to transact any business of insur- ance. (April 19, 1883, 80 v. 197; K. S. 1880; March 30, 1877, 74 v. 66, § 5.) Stipulated sum in lieu of ' assessment unauthorized. This section does not authorize a regulation by which n policy may be declared forfeited, for the nonpayment in advance of an annual deposit or premium, whether an assessment to pay losses during such period should be necessary or not.— State v. Monitor Fire Ass'n, 42 Oh. St. 555 (1885). See § 3686 and notes thereto. Member must sign constitution. To become a member of such association, the person must sign his name to the constitu- tion. — State ex rel. v. Mutual Fire Ass'n, 50 Oh. St. 145, 149 (1893); Richards, Rec'r, v. Swaim et al., 7 N. P. 68 (1900); s. c, 9 Dec. 70. Section 3650 has no application. Section 3650 has no application to persons obtaining Insurance of such association, and such persons can become legal members of the association only by signing its constitution. — Richards, Rec'r, v. Swaim et al., 7 N. P. 68 (1900); s. c, 9 Dec. 70. Members presumed to kno^v rules and regulations. See Crandall v. Farmers, etc., Ass'n, 8 N. P. 632 (1891). Waiver of regulations by agent. See Crandall v. Farmers, etc., Ass'n, 8 N. P. 632 (1891). Assessments. See Crandall v. Farmers, etc., Ass'n, 8 N. P. 632 (1891). Liability of persons not signing con- stitution. A person who takes out a policy in such association, but who does not sign its consti- tution, is estopped in equity from denying his liability to pay assessments, made either by the directors or by the court on proeeeamgs to dissolve the association, for the purpose of faying debts or losses occurring during the continuance of such policy. — Richards, Rec'r, V. Swaim et al., 7 N. P. 68 (1900); s. c, 9 Dec. 70. V^ho may change constitution. A change In the constitution and by-laws of such association can only be made by a ma- jority of the members of the association itself, and not by the directors merely, although the constitution provides for the latter method. — Farmers' Ins. Co. v. Bachman, 39 W. L. B. 324 (1S98). See § 3634. § 3690-1. MUTUAL PIRE INSUKANCE ASSOCIATIONS AUTHOBIZED TO OBGANIZE AS COMPANIES. — Any mutual fire insurance association organized under section 3686, now doing business and now having the number of policies and amount of insurance in force and the amount of assets required in order to organize a mutual fire insurance company, may reorganize as such mutual fire insurance com- pany in the following manner: The board of trustees of such association shall give notice, by publication in a newspaper of general circulation, and published in the county wherein its principal office is situated, at least three consecutive weeks before such application be made, of their intention to so organize; and shall thereupon make application to the superintendent of insurance respecting their desire to assume the requirements of all the laws governing mutual fire insurance companies organized and doing business under the laws of Ohio, setting forth the amount of insurance car- ried, the number of policies in force, the amount of its assets and liabilities; and if said superintendent of insurance shall be satisfied, by an examination, or otherwise, of the condition of such association, that at the date of the passage of this act it pos- sessed the required amount of assets, and the number and amount of policies in force required to organize a mutual fire insurance company, he shall so certify, upon a cer- tificate of incorporation, containing the requisite statements required to incorporate a mutual fire insurance company, which certificate, after having been duly executed, shall be delivered to the secretary of state, who shall record the same, and issue his 436 Private Corporations in Ohio. Mutual Fire Association — Salvage Companies, etc., § 3690-2-§ 1. certificate of incorporation as in other cases for change of name, capital or location of an incorporated company, charging only such fees therefor as authorized by law in other cases for change in capital or location of company. (March 24, 1890, 87 V. 88.) § 3690-3. EIGHTS OP POLICY-HOLDEBS: HOW AFFECTED.— Thereafter the business of such fire insurance association shall be conducted as and be subject to all laws governing mutual fire insurance companies; and all members of said asso- ciation shall be members of said mutual fire insurance company, to the time of the expiration of (or) cancellation of their policies, and entitled to all the benefits as such, precisely as if original members of such company, without exchanging policies or contracts, and entitled to all the benefits as members of said company precisely as if original members of said company. (March 24, 1890, 87 v. 88.) § 3690-3. POLICIES; BY-LAWS, ETC.— After such change in the plan of insur- ance by such association, and the organization of such mutual fire insurance company, all policies thereafter issued shall be in the name and by the authority of such mutual fire insurance company, and the policies theretofore in force, and the by-laws, rules and regulations of such association, if not in conflict with the laws governing mutual fire insurance companies, shall be and remain in full force and effect until the same shall have terminated or been lawfully changed by said company or its board of directors, as authorized by law. (March 24, 1890, 87 v. 88.) § 3691. CELLAR AND FOUNDATION NOT CONSIDERED PART OF STRTJC- TXJRE IN SETTLING LOSS. — The cellar and foundation walls shall not be included or considered a part of the building or structure in settling losses, any thing in the application or policy to the contrary notwithstanding. A boiler and engine may be b, structnre. ' Ins. Co. V. Luce, 11 C. C. 476 (189tj) ; s. c, 5 C. D. 210. See § 3643 and notes thereto. An Act to Provide for the Organization of Corporations for the Purpose of Discovering and Preventing Fires and of Saving Property and Life From Conflagration. Be it enacted by the General Assembly of the State of Ohio: § 1. CORPORATIONS MAY BE CREATED FOR THE PURPOSE OF DIS- COVERING AND PREVENTING FIRES AND OF SAVING PROPERTY AND LIFE FROM CONFLAGRATION. — That corporations, not for profit, may be organized under the general corporation laws of this state, and in accordance with the pro- visions of this act, for the purpose of discovering and preventing fires and of saving property and life from conflagration, with power to provide a patrol of men and a competent person to act as superintendent to discover and prevent fires, with suitable apparatus and equipment to save and preserve property and life at and after fires; and to enable them so to act with promptness and efficiency, full power is hereby given to such superintendent and patrol to enter any building at any time for the purpose of inspection and any building on fire or which may be exposed to or in danger of taking fire from other burning buildings, for the purpose of protecting and saving said building and the property therein, or of removing such property or any part thereof during the fire or from the ruins after the fire; provided, however, that nothing in this act shall be so construed as will in any degree lessen, impair or interfere with the powers, privileges, duties or authority of any regular or volunteer fire department organized and maintained by any public authority within the state, but the said superintendent and the members of said patrol, while on duty at a fire, shall in all respects be subordinate to and under the control of the public authority having charge of the extinguishment and prevention of fires; and provided further Insurance Companies Other Than Life. 437 Salvage Companies, etc., §§ 2-4. tliat no act of the superintendent or tlie patrol of men shall justify any owner of any building or property in abandoning such building or property. (April 29, 1902, 95 V. 334.) § 2. POWERS OP SUCH CORPOKATIONS.— In the articles of incorporation of any such corporation shall be set forth the municipality or other subdivision of the state within which such corporation shall prosecute its business, as provided herein, and thereafter such corporation shall be confined to the municipality or other sub- division, as set forth in said articles; and for the purpose of carrying into efEect the powers herein granted, any such corporation shall have authority to provide suitable rooms for the transaction of its business and to that end is hereby authorized to purchase, lease or otherwise acquire and hold such real estate and personal prop- erty as may be necessary to fulfill the purposes of its organization. All such cor- porations shall have power to elect such officers and make such needful by-laws as may not be contrary to the provisions of this act or the constitution or laws of this state or of the United States; and except as herein provided, shall be subject to the general corporation laws of this state. (April 29, 1902, 95 v. 324.) § 3. BIENNIAL MEETING OF CORPORATION AND REPRESENTATIVES OF PIRE INSURANCE COMPANIES.— Before any corporation organized under the terms of this act shall commence business, and in the month of March of every second year thereafter, there shall be held a meeting of such corporation, of which ten (10) days' previous notice shall be given by inserting the same in at least two newspapers published or of general circulation in the municipality or other sub- division of the state in which the said corporation is organized and established, if there be such newspapers, and if not, by posting notices thereof, at which meeting each insurance company, corporation, association, underwriter, person or persons doing a. fire insurance business in said municipality or other subdivision of the state in which the corporation is organized and established, whether members of said cor- poration or not, shall have the right to be represented and shall be entitled to one vote. A majority of the whole number so represented shall have power to decide upon the question of sustaining the fire patrol organized by the corporation under the terms of this act and shall fix the maximum amount of expenses which shall be incurred therefor during the fiscal years next to ensue and until the next meeting, as herein provided, which amount shall in no case exceed two (2^) per centum of the aggregate premiums returned as received, as hereinafter provided in this act, and the whole of such amount, or so much thereof as may be necessary, may be assessed upon all insurance companies, corporations, underwriters, agents, person or persons who assume risks and accept premiums for fire insurance in said municipality or other subdivision, as hereinbefore mentioned, whether members of said corporation or not, in proportion to the several amounts of premiums returned as received by each, as hereinbefore provided, and such assessments shall be collectible by and in the name of the said corporation in any court of law in this state having jurisdiction thereof in such manner and at such time or times as the said corporation may deter- mine. (April 29, 1902, 95 v. 325.) § 4. QUARTERLY STATEMENT SHOWING AGGREGATE AMOUNT OF PREMIUMS RECEIVED TO BE FILED BY INSURANCE COMPANIES WITH CORPORATION. — To insure the collection of the assessments hereinbefore provided and in order to provide for the payment of the persons employed by said corporation and to maintain suitable rooms therefor and for the purchase, lease or acquisition of such real and personal property as may be necessary, the same to be determined at the meetings hereinbefore provided, the said corpbration is empowered to require a statement to be furnished quarterly by all insurance companies, corporations, associa- 438 Private Corporations in Ohio. Salvage Companies — Mutual Live Stock Insurance Association, §§ 5-3691-1. tions, underwriters, agents, person or persons of the aggregate amount of premiums received by each for insuring property in the municipality or other subdivision of the state where the said corporation is organized and established for and during the three (3) months next preceding the 31st day of March, the 30th day of June, the 30th day of September and the 31st day of December of each year, which statement shall be sworn to by the president and secretary of the corporation or association, or by the agent or person so acting or efEecting such insurance in said municipality or other subdivision, and shall be given to the secretary of the corporation created under the provisions of this act, within ten (10) days after the first days of April, July, October and January of each year. (April 29, 1902, 95 v. 325.) § 5. WRITTEN DEMAND TO BE MADE UPON FIRE INSURANCE COM- PANIES FOB THE STATEMENT ABOVE PROVIDED FOR.— The treasurer or other appointed officer of any corporation organized under this act shall within the ten (10) days aforesaid, by written or printed demand, signed by him, require from every such insurance company, corporation, organization, underwriter, agent or person engaged in the business of fire insurance in the municipality or other subdivision of the state where said corporation is organized and established, the statement here- inbefore provided for. Such demand may be delivered personally at the office of such insurance company, corporation, association, underwriter, agent or person within such municipality or other subdivision, as hereinbefore provided, or at the residence of any officer of such corporation or association, underwriter, agent or person. Any insurance company, corporation or association, or any officer thereof, and any under- writer, agent or person within the municipality or other subdivision in which the said corporation is organized and established, engaged in the business of fire insur- ance, or of assuming risks and accepting premiums for fire insurance, who fails to comply with the provisions of this act by furnishing the statement herein provided for, shall forfeit for the use of the corporation herein provided the sum of twenty -five ($25.00) dollars for every day he shall so neglect to furnish the same, which amount shall be recovered by the corporation in any court in the state having jurisdiction thereof. (April 29, 1902, 95 v. 326.) § 6. This act shall take effect and be in force from and after its passage. (April 29, 1902, 95 V. 326.) Constitutionality. Attorney-General J. 'M. Sheets, in an opin- ion rendered to superintendent of insurance, September 6, 1902, declared this law unconsti- tutional as violating §§1 and 2 of article 1 of the Ohio constitution and the fourteenth amendment of the United States constitution. § 3691-1. Sec. 1. MUTUAL PROTECTIVE ASSOCIATION.— Be it enacted by the General Assembly of the State of Ohio, That any number of persons of lawful age, residents of this state, not less than five, may associate themselves together for the purpose of becoming a. body corporate, and may insure themselves, and any person becoming a member of such incorporation, in accordance with the rules and regula- tions of such corporation, against loss, from death, of domestic animals, and may assess and collect, upon and from each other, such sums of money, from time to time, as may be necessary to pay losses which occur, from death of domestic animals, to any member of such incorporation; and incidental expenses, and the assessments and collections of such sums of money shall be regulated by the constitution and by-laws of the corporation. (April 15, 1889, 86 v. 377.) Remedy upon failure to pay certificate. In case of failure to pay certificate, the holder need not seek specific performance to levy assessments, but may sue at law for the sum stipulated in certificate. — Hall v. Live Stock Ass'n, 25 W. L. B. 79 (1891). And see notes under § 3630. Insurance Companies Other Than Life. 439 Mutual Live Stock Insurance Association, §§ 3691-2-3691-5. § 3691-2. Sec. 2. CEETIFICATE OF OBGAKTIZATION.— Such persons shall make and subscribe a certificate, setting forth, therein — 1st The name by which the corporation shall be known. 2nd The place which shall be chosen as its principal office. 3rd The object of the corporation, which shall only be to enable its members to insure each other against loss from death of domestic animals, and to enforce any contract which may be by them entered into, whereby they specifically agree to be assessed for the payment of losses and incidental expenses. 4th Shall acknowledge the signing of such certificate before a notary public, or other officer authorized to take the acknowledgments of deeds and mortgages. (April 15, 1889, 86 V. 377, 378.) § 3691-3. Sec. 3. CERTIFICATE TO BE FILED WITH SECRETARY OF STATE. — The certificate shall be filed in the office of the secretary of state, and a copy thereof, duly certified by the secretary of state, shall be evidence of the existence and due incorporation of such company for the purposes therein named. (April 15,1 1889, 86 V. 377, 378.) I J § 3691-4. Sec. 4. ELECTION OF OFFICERS.— When such certificate is so filed, and a copy thereof, so certified, forwarded to the company, the persons named therein shall elect their directors, and a president, secretary and treasurer, and such other officers as may be necessary for the complete performance of all the business and objects of the company herein provided for, to serve for one year, or until their suc- cessors are duly elected and qualified. Such officers shall thereafter be elected annually, by the members of the association, at such time as shall be fixed upon in the constitution; and such company so organized shall be known and held to be a body corporate, for the purpose aforesaid, and may sue and be sued, and plead and be impleaded, in all courts of law and equity; but in no instance shall the power to insure against loss by death of domestic animals be exercised to others than the mem- bers of the company; and no such company shall receive applications nor issue poli- cies to persons not bona fide residents of Ohio. (April 15, 1889, 86 v. 377, 378.) § 3691-5. Sec. 5. CONSTITUTION AND BY-LAWS; ANNUAL STATEMENT TO COMMISSIONER OF INSURANCE.— Every such company shall adopt such constitution and by-laws, not inconsistent with the constitution and laws of this state and the United States, as will, in the judgment of its members, best subserve the interest and purposes of the company; and all persons who obtain insurance in such company shall thereby become members thereof, with power to vote at all regular meetings of such members, upon all subjects, and shall be held, in law, to comply with all the provisions and requirements of the company; and the president, or vice-presi- dent, and secretary of every such company, shall annually, on the first day of Janu- ary, or within thirty days thereafter, prepare, under oath, and deposit in the office of superintendent of insurance, a statement of the condition of such company on the thirty-first day of December then next preceding, exhibiting such facts as are enu- merated in section thirty-six hundred and fifty-four of the Revised Statutes of Ohio, and applicable to such companies, and such other information as is necessary to reveal the financial condition and general management of such company, as the superin- tendent of insurance may require in printed form, to be, by him, supplied to such companies for that purpose; and every such company failing to make and deposit such statement, or to reply to any inquiry of the superintendent, shall be subject to a penalty of five hundred dollars, and an additional five hundred dollars for every month that it continues thereafter to transact any business of insurance, and shall 440 Private Corporations in Ohio. Mutual Live Stock Insurance Association, §§ 3691-6-3691-10. forfeit its right to do the business contemplated by this act, which forfeiture the superintendent shall enforce by proceedings in quo warranto. (April 15, 1889, 86 v. 377, 378.) § 3691-6. Sec. 6. EXAMINATIONS BY COMMISSIONER OF INSUBANCE.— The superintendent of insurance may, whenever he may deem it advisable, cause an examination of the affairs of such company or corporation to be made by one or more disinterested persons, at the expense of the company, such expense not to exceed five dollars per day for each person so employed; and if, upon such examination, it shall appear that such company or corporation is exercising powers or franchises contrary to law, the superintendent of insurance shall institute proceedings in quo warranto against the same, and if it be found, in such proceedings, that such company or cor- poration has exercised powers or franchises contrary to law, a forfeiture of its right to do business shall be declared. (April 15, 1889, 86 v. 377, 379.) § 3691-7. Sec. 7. AMOUNT OE APPLICATIONS FOR INSURANCE REQUIREB BEFORE COMMENCING BUSINESS.— No company organized under this act shall issue any certificate or policy of insurance until bona fide applications for insurance to the amount of fifty thousand dollars shall have been filed with the secretary of such company, and a. statement of such fact sworn to by such secretary and president of such company, filed with and approved by the superintendent of insurance. Nor shall the treasurer of such company receive any money, as such treasurer, until he shall have filed with the superintendent of insurance, payable to the state of Ohio, for the benefit of the members of such company, his bond, in the sum of ten thousand dollars, with security, to be approved by the superintendent. Such bond shall be conditional for the faithful application of all money coming into his hands as such treasurer. (April 15, 1889, 86 v. 377, 379.) § 3691-8. Sec. 8. WHEN COMPANY MAY COMMENCE BUSINESS.— When, the statement of the secretary and the president, and the bond of the treasurer, pro- vided for by the preceding section, shall have been filed and approved by the super- intendent of insurance, the superintendent shall issue, to such company, his certifi- cate, certifying such fact, and such certificate shall constitute the authority of such company to commence business. (April 15, 1889, 86 v. 377, 379.) § 3691-9. Sec. 9. WHEN CHARTER MAY BE FORFEITED.— Should the amount at risk in such company, at any time, become reduced below fifty thousand dollars, such company shall issue no more certificates or policies of insurance until bona fide applications, sufficient to restore such insurance to said amount, shall have been secured, and a sworn statement of such fact shall have been filed with and approved by the superintendent of insurance, and by him certified to the company; and should such company fail to so restore such amount, for the period of six months, then such company shall forfeit its right to do (the) business contemplated by this act; and when the liabilities of such company shall exceed three per cent, of the amount of risk in force, as determined by the last preceding assessment, such com- pany shall be deemed to be insolvent, and to have forfeited its charter; and such for- feiture shall be enforced by the superintendent of insurance by proceedings in quo warranto. (April 15, 1889, 86 v. 377, 380.) § 3691-10. Sec. 10. BOND OF SECRETARY AND TREASURER. —The treas- urer and secretary of such companies shall give bond for the faithful performance of their duties, to the directors or trustees of the company, in such sum and with such security as shall be prescribed in the by-laws of the company, the security to be approved by such directors or trustees. (April 15, 1889, 86 v. 377, 380.) Insurance Companies Other Than Life. 44T Re-insurance — Credit Guaranty Companies, etc., §§ 3691-11-3691-18. § 3691-11. Sec. 11. DIKECTORS. — The directors or trustees of suoli company shall, before qualified, take an oath, to be administered by any officer authorized to take acknowledgments of deeds, to faithfully perform the duties required of them as such officers. (April 15, 1889, 86 v. 377, 380.) § 3691-12. Sec. 12. STATEIMEN'T OF SECRETARY AND BOND OE TREAS- URER TO BE FILED WITH COMMISSIONER OF INSURANCE. — Any company or association, organized under sections three thousand six hundred and eighty-six and three thousand six hundred and eighty-seven of the Revised Statutes of Ohio, as amended February 27, 1885, for the purpose of insuring its members against loss from death of domestic animals, and still doing business, shall, within ninety days after the passage of this act, file the statement, and the treasurer shall file his bond as provided in section seven of this act, and, failing so to do, shall forfeit the right +0 do the business contemplated by this act. (April 15, 1889, 86 v. 377.) § 3691-13. Sec. 1. COMPANIES MAY RE-INSURE THEIR RISKS. —Be it enacted by the General Assembly of the State of Ohio, That any fire, marine, fidelity, accident, plate glass, boiler, or other insurance company, now or hereafter organized or existing, under or by virtue of the laws of Ohio, shall have authority by and with the consent and approval of the commissioner of insurance, to re-insure any and all risks undertaken by it, in any company authorized by law to transact a sim'ilar class of insurance business in this state. (April 14, 1884, 81 v. 179.) See §§ 3597 and 2745a. § 3691-14. Sec. 2. CREDIT GUARANTY COMPANIES; ORGANIZATION. — Any number of persons, not less than five, may associate and form a company to guarantee and indemnify merchants, manufacturers, traders and those engaged in business, and giving credit from loss and damage by reason of giving and extending credit to their customers and those dealing with them, by making, acknowledging^ and filing articles of incorporation pursuant to, and by complying with section 3588, 3589 and 3590 of the Revised Statutes of Ohio. (May 2, 1902, 95 v. 345; May 21, 1894, 91 V. 415.) § 3691-15. Sec. 3. CAPITAL STOCK. — No such company shall be organized with a less capital than one hundred thousand dollars ($100,000), and the whole capital shall, before proceeding to business, be paid in and invested in treasury notes, in stocks or bonds of the United States, in stocks or bonds of the state of Ohio, or of any municipality or county thereof or in mortgages on unincumbered real estate within the state of Ohio, worth double the amount loaned thereon at the time such loan is made. (May 2, 1902, 95 v. 345; May 21, 1894, 91 v. 415.) § 3691-16. Sec. 4. INCREASE OF CAPITAL STOCK.— Any such company may increase its capital stock as provided in section 3592 of the Revised Statutes of Ohio. (May 2, 1902, 95 v. 345; May 21, 1894, 91 v. 415.) § 3691-17. Sec. 5. INVESTMENT OP CAPITAL; DEPOSIT. — Any such com- pany may invest its capital stock and change such investment as provided in section 3593 of the Revised Statutes of Ohio; but no such company shall commence business until it has made the deposit of securities provided for in said section, which shall be held and controlled by the superintendent of insurance for the purpose and in the manner provided in said section 3593 and in section 3594 of the Revised Statutes of Ohio. (May 2, 1902, 95 v. 345; May 21, 1894, 91 v. 415.) § 3691-18. Sec. 6. CERTIFICATE OF DEPOSIT; RIGHT TO TRANSACT BUSI- NESS. — When such company is fully organized and has deposited the requisite amount of securities as hereinbefore provided, together with a certified copy of the 442 Private Corporatioxs ix Ohio. -Credit Guaranty Companies, §§ 3691-19, 3691-20. papers required by this act, the superintendent of insurance shall, unless he find the aiame assumed by such company so nearly similar to the name of another company organized in this state as to lead to uncertainty or confusion on the part of the public, furnish such company with a certificate of such deposit and of authority to commence and transact business. (May 2, 1902, 95 v. 345; May 21, 1894, 91 v. 415.) § 3691-19. Sec. 7. POWEBS OF COMPANIES.— No such company shall under- take any business or risk except as provided in clause 2 of section 3641 and 3641b of the Revised Statutes of Ohio, -and as herein provided, and such companies shall have the right, power and authority to agree to pay to merchants, manufacturers, dealers and persons engaged in business and giving credit, the debt or debts, or such part thereof as may be agreed upon, owing to them, or which may be thereafter owing to them, and to indemnify them from loss on account thereof in such an amount or per cent, as may be agreed upon, and to charge and receive therefor such a. sum or per cent, as the consideration for such an agreement, guaranty or indemnity, as shall be agreed upon between such corporation and the person guaranteed or indemnified, and to buy, hold, own and take an assignment of any and all claims, accounts and demands so guaranteed, and to hold, own and collect the same, and to enforce the col- lection thereof by action the same as the original holder and owner thereof might or could do; and such corporation may also guarantee the payment of money for per- sonal services under contract of hiring. Any such corporation may use its capital stock or its funds accumulated in the course of its business to purchase or pay for any claim or demand, the payment of which it has guaranteed; or against the loss of ■which it has indemnified the holder; and such of its capital stock or accumulated funds as may not be so used shall be invested in the same classes of securities in which the deposit to be made with the superintendent of insurance is required by the provisions of this act to be invested; provided, that when, on account of losses or otherwise, the amount of the funds of any such corporation shall fall below such sum as is required to be deposited by this act, no further guaranty of indemnity shall 1)6 issued until the deficiency has been made good. (May 2, 1902, 95 v. 345; May 21, 1894, 91 V. 415.) § 3691-20. Sec. 8. ANNUAL STATEMENTS. — The president or vice-president of each company organized under this act, or under the laws of any other state, or the general manager for the United States of any company organized for like pur- poses under the laws of a foreign government, and doing business in this state, shall, annually, on the first day of January, or within thirty days thereafter, prepare under oath and deposit in the office of the superintendent of insurance a statement of the condition of such company on the thirty-first day of December then next preceding, exhibiting the following facts and items, and in the following form, to wit: First. The amount of the capital stock of the company, specifying the amount paid and unpaid. Second. The property or assets held by the company, specifying: 1. The value of the real estate owned by such company, where it is situated, and the value of the buildings thereon. 2. The amount of cash on hand and deposited in banks to the credit of the com- pany, specifying in what banks the same is deposited. 3. The amount of cash in the hands of agents and in course of transmission. 4. The amount of loans secured by bonds and mortgages which are first liens on real estate and on which there is less than one year's interest due. 5. The amount of loans on which interest has not been paid within one year. 6. The amount due the company on which judgments have been obtained, and the cash value thereof. IxsuRANCE Companies Other Than Life. 443 Credit Guaranty Companies, § 3691-21. 7. The amount of stocks in this state, the United States, of any city in this state, and of any other stocks owned by the company, specifying the amount, number of shares, and the par and market value of each kind of stocks. 8. The amount of stock held as collateral security for loans, with the amount loaned on, and the par and market value of each kind of stock. 9. The amount of unpaid assessments on stock, premium notes or contingent liabilities. 10. The amount of interest due and unpaid, and the amount of interest accrued but not due. 11. The amount of premium notes or contingent liabilities on which policies or bonds of guaranty or indemnity are issued. 12. The number of policies or bonds of guaranty or indemnity in force. 13. The amount of premiums received thereon. 14. The amount and description of all other assets. 15. The amount guaranteed under all policies in force. Third. The liabilities of the company, specifying: 1. The amount of losses due and unpaid. 2. The amount of claims for losses resisted by the company. 3. Gross losses in process of adjustment or in suspense, including all reported and supposed losses. 4. The amount of dividends declared and due and remaining unpaid. 5. The amount of dividends, either cash or scrip, declared, but not due. 6. The amount of money borrowed, and the security for the payment thereof. 7. The amount of all other existing claims against the company. Fourth. The income of the company during the preceding year, specifying: 1. The amount of cash premiums received. 2. The amount of notes or contingent assets received for premiums. ; 3. The amount of interest money received. 4. The amount of income received from other sources. Fifth. The expenditure during the preseding year, specifying: 1. The amount of losses paid during the year, stating how much of the same accrued prior and how much subsequent to the date of the preceding statement, and the amount at which losses were estimated in such preceding statement. 2. The amount of dividends paid during the year. 3. The amount of expenses paid during the year, including commissions and fees to agents and officers of the company. 4. Tho amount paid for taxes. 5. The amount of all payments and expenditures. 6. The amount of scrip dividend declared. (May 2, 1902, 95 v. 346; May 21, 1894, 91 V. 415.) § 3691-21. Sec. 9. REQUIREMENTS OF COMPANIES OF OTHER STATES.— Any corporation, company or association organized under the laws of any other state of the United States or of a foreign government to transact a like business as that provided for in this act, may be admitted and licensed to do business in this state; but as a condition precedent to being admitted to, and transacting business in this state, shall comply with the following conditions, to wit: Deposit with the superin- tendent of insurance (1) a certified copy of its charter or articles of incorporation; (2) if the applicant be a corporation, company or association organized under the laws of any other state of the United States, a certificate from the insurance commission. 444 Private Corporations in Ohio. Credit Guaranty Companies — Burglary Insurance, §§ 3691-22-3691-24a. commissioner or superintendent of insurance of its own s-tate showing its authority to do such, business; also a certificate from said commissioner or superintendent or like authority of its own state, that corporations, companies or associations of this state engaged in a like business, are, upon complying with the laws of said state legally entitled to do business in such state; (3) a statement under oath of its presi- dent and secretary, or like officers, or of the general manager for the United States of. a. company organized under the laws of a foreign government, in the form pro- vided for in this act of its business for the preceding year; (4) a copy of its policy, bond or guaranty, application and by-laws; (5) if the applicant be a corporation, company or association organized under the laws of any other state of the United States, a certificate from the insurance commissioner, superintendent of Insurance or other proper officer of its own state, that such company has invested at least one hundred thousand dollars of its assets in the interest-paying bonds or stocks of the United States or of this state, or of some other state of the United States, of the market value of one hundred thousand dollars in the city of New York, or in bonds and mortgages on unincumbered real estate in this state, or in the state under the laws of which it is organized, of at least double the value of the amount loaned thereon; that such securities are held under the laws of such state by such officer for the benefit of all its policy, bond or guaranty-holders; and such certificate shall also state the character of the securities held by such officer and their value; (6) a duly certified copy of the resolution of its board of directors or authority, duly acknowl- edged before a notary public by the general manager for the United States of a com- pany organized under the laws of a foreign government, appointing an attorney in this state upon whom service of summons or other process in all actions begun in this state may be made. (May 2, 1902, 95 v. 348; May 21, 1894, 91 v. 415.) § 3691-22. Sec. 10. WHEN COMPANY FROM OTHER STATE EXEMPTED FROM MAKING DEPOSIT. — No deposit in this state shall be required of any cor- poration, company or association of another state, if such company, corporation or association has made the deposit in its own state, referred to in the last preceding section, and has filed with the superintendent of insurance of this state the certifi- cate mentioned in the last preceding section, as evidence of such deposit. Provided, however, that any corporation doing the credit guaranty business in this state, which is incorporated by or organized under the laws of a foreign government, shall make the deposit with the superintendent of insurance of such securities, and in such amount and for the purpose required by section 3660 of the Revised Statutes of Ohio. (May 2, 1902, 95 v. 349; May 21, 1894, 91 v. 415.) § 3691-23. Sec. 11. EORPEITURE OP RIGHT TO DO BUSINESS. — Any cor- poration organized under this act, or doing business in this state hereunder, which shall fail or refuse to file a statement or report, shall forfeit its right to do business under this act, which forfeiture the superintendent shall enforce by proceedings in quo warranto; and it is hereby made the duty of the attorney-general of the state to institute such proceedings upon his request in writing. (May 3, 1902, 95 v. 349; May 21, 1894, 91 v. 415.) § 3691-24. Sec. 12. EXAMINATION. — Any such corporation, association or company shall be subject to examination by the superintendent of insurance of this state under and pursuant to the provisions of the laws of this state relative to the examination of life insurance companies. (May 2, 1902, 95 v. 349; May 21, 1894, 91 V. 415.) § 3691 -24a. Sec. 1. LICENSING OP COMPANIES ORGANIZED POR INSUR- ING AGAINST BURGLARY, ROBBERY, ETC. — That any insurance company or- ganized or incorporated on the mutual plan under the laws of this state (or any Insurance Companies Other Than Life. 445 Burglary Insurance Companies, §§ 3691-24b-3691-34d. otter state) for the purpose of insuring against loss or damage from burglary and robbery or attempt thereat, and securing against the loss of money and securities in course of transportation shall be authorized, admitted and licensed to do business in this state, as hereinafter provided. (April 16, 1900, 94 v. 350.) § 3691-24b. Sec. 2. REQUISITES FOB, BEGINNING BUSINESS. — Before any such company shall be authorized to transact business in this state, except to solicit and receive applications for insurance and portions and premiums thereof, as here- inafter provided, it shall have in force five hundred or more policies on which pre- miums shall have been paid in cash, or shall be evidence(d) by the written contracts or (of) the policy holders, on which not less than one-fifth of the amount shall have been paid in cash, the cash and contracts for premiums shall amount in the aggregate to a sum not less than one hundred thousand dollars. The premium contracts so held shall constitute a. part of the valid assets of the company. (April 16, 1900, 94 V. 351.) § 3691-24C. Sec. 3. COPY OF CHABTEB, AND STATEMENT TO BE FILED WITH SUPERINTENDENT OF INSURANCE; WHAT STATEMENT SHALL CON- TAIN. — And every such company, association or partnership shall also file a certified copy of its charter, articles of incorporation or deed of settlement, together with a statement under the oath of the president or vice-president and secretary of the com- pany for which he or they may act, stating the name of the company and the place where located, a detailed statement of its assets, showing the number of policy holders, aggregate amount of premium contracts, the amount of cash on hand, in bank, or in the hands of agents, the amount of real estate, and how the same is incumbered by mortgage, the number of shares of stock of every kind owned by the company, the par and market value of the same, amount loaned on bond and mort- gage, the amount loaned on other securities, stating the kind and amount loaned on each, and the estimated value of the whole amount of such securities, and other assets or property of the company; also stating the indebtedness of the company, the amount of losses adjusted and unpaid, the amount incurred and in process of adjust- ment, the amount resisted by the company as illegal and fraudulent, and all other claims existing against the comptiny; and for a company organized under the laws of any other state, a copy of the last annual report, if any, made under any law of the state by which such company was incorporated and no agent shall be allowed to transact business for any such company who(se) reinsurance reserve, as required by this act, as (is) impaired to the extent of twenty per cent, thereof, while such deficiency shall continue. Nor shall it be lawful for any agent or agents to act for any company or companies referred to in this act, directly or indirectly, in taking risks or transacting the business of burglary and robbery insurance or the insurance of the safe shipment of money and securities, without procuring from the superin- tendent of insurance a certificate of authority, stating that such company has com- plied with all the requirements of this act which apply to such companies, and as to companies organized under the laws of any other state there shall be added the name of the attorney appointed to act for the company. (April 16, 1900, 94 v. 351.) § 3691-24d. Sec. 4. CHARACTER OF BUSINESS TO BE CONDUCTED IN THIS STATE. — Any company organized, admitted and licensed to transact business in this state under this act shall confine its line of business to that stated in the first section of this act, and shall confine its business in this state to banks, bankers, loan companies, trust companies, city and county treasurers, and shall not issue any policy or policies to (any) person, firm or corporation in this state other than banks, bankers, loan companies, trust companies, city and county treasurers. Every such company shall set aside a reinsurance reserve of fifty per cent, of its premiums for 446 Private Corporations in Ohio. Burglary Insurance Companies, §§ 3691-24e-3691-24g. unexpired term, whether collected in cash or represented by the obligations of the policy holders, as written in its policies. (April 16, 1900, 94 v. 351.) § 3691-24e. Sec. 5. LIABILITY OF POLICY-HOLDERS.— Policy-holders of any company organized and admitted to transact business in this state under this act, shall be held liable to pay the membership fee and premium on their insurance as paid or contracted to be paid at the time the policy is taken out, and shall not be held liable for any further or other assessment or claims on the part of the company ,or its policy-holders. The membership fees and premiums agreed upon may be collected in cash at the time the policy is issued or evidenced by written obligation of the policy-holder, as may be agreed upon by the company and the policy-holder. Such payment or obligation shall be the limit of the liability of the policy-holder to the company for premium on their insurance. (April 16, 1900, 94 v. 352.) § S691-24f. Sec. 6. APPOINTMENT OF ATTORNEY. — It shall not be lawful for any insurance company, association or partnership incorporated by or organized under the laws of another state of the Tlnited States for any of the purposes specified in this act, directly or indirectly, to take risks or transact any business of insurance in this state by any agent or agents in this state, until it shall first appoint an attorney in this state, who shall be the superintendent of insurance on whom process of law can be served, and file in the office of the superintendent of insurance a written instrument duly signed and sealed, certifying such appointment, and any process issued by any court of record in this state, and served upon such attorney by the proper officer of the county in which such attorney may reside or be found, shall be deemed a sufficient service of the process upon such company. (April 16, 1900, 94 V. 352.) § 3691-24g. Sec. 7. ANNUAL STATEMENTS. — Th© statement and evidence of membership assets and investments required by section three of this act, shall be renewed from year to year in such a manner and form as may be required by said superintendent of insurance with an additional statement of the amount of premiums received in this state during the preceding year, so long as such agency continues, and the said superintendent of insurance, on being satisfied that the membership, assets, securities and investments remain secure, as hereinbefore mentioned, shall furnish a renewal of the certificate as aforesaid. Any corporation organized under this act doing business in this state hereunder, which shall violate any of the pro- visions of this act, the superintendent of insurance shall revoke its authority to do business in this state, and no renewal of authority shall be granted to it for a period of one year after such revocation. (April 16, 1900, 94 v. 352.) PART XVI. AGRICULTUEAL CORPORATIONS. § 3691-25. Incorporation. §3691-26. Number of board; quorum. S 3691-27. Names of members. § 3692. Annual meeting of board. Election of members; term. § 3693. Annual report of board to general assembly. §3694. State board of agi-iculture ; real estate acquired by; auditing of expenses; annual report; legal adviser- § 3695. How state agricultural fund at disposal of board. § 3696. Secretary of state authorized to furnish stationery to board of agriculture. § 3697. Organization of district or county agricultural societies; Cuyahoga county. § 3698. For what premiums may be offered by agricultural societies. § 3699. Must publish a lisi of awards, etc. § 3700. County societies erected into a corporation. § 3701. Conveyances to such societies declared valid. § 3702. Commissioners may assist agricultural societies in purchasing, etc., sites for fairs; levy of tax. § 3702-1. Submission of question of issuing bonds to liquidate debt of agricultural society. § 3702-2. Bonds. Levy. § 3702-3. Proceeds used in liquidation of debt. § 3702-4. Money raised for county agricultural societies applied to purposes intended by act though life of act expired. § 3702a. Commissioners in certain counties may assist agricultural societies in purchasing, leasing, or improving sites for fairs. § 3702b. Commissioners may levy tax for encouragement of agricultural fairs. Payment in anticipation of levy. § 3703. County commissioners may purchase fair grounds. § 3704. The tax must be submitted to the electors. § 3705. When real estate vests in the county. § 3705a. Insurance on fair ground property. § 3705-1. Franklin county fair grounds. § 3705—2. Park commission to be appointed by county commissioners. § 3705-3. Authorizing Franklin park improvement. § 3705-4. Council may borrow money. § 3705-5. Bonds. § 3705-6. Levy. § 3705-7. Qualification of park commissioners. § 3705-8. Meetings, duties, etc., of commissioners. § 3705-9. May appoint superintendent and otiier employees. § 3705-10. Franklin park commission may purchase certain property. An Act. To authorize agricultural societies to dispose of real estate. § 3705-11. Corporations for the apprehension and conviction of criminals, etc. § 3705-12. Seal ; constitution ; officers ; oath of office ; certificate of appointment or election ; powers of officers and members. § 3705-13. Assessments ; indemnity for losses ; expenditures. § 3705-14. Reimbursement of expense by county. § 3706. Societies may sell, and purchase other sites. [447] 448 Private Corporations in Ohio. state Board of Agriculture, §§ 3691-25-3692. S 3706a. V/hen county commissionera shall complete and carry out societies' contracts. ■§ 3706b. Provision for payment for such lease or purchase of lands. § 3706c. Control and management of lands where title is vested in county commissioners. S 3707. How conveyances to be executed. I 3708. Society may not incumber its grounds. § 3709. Incorporation of township societies. § 3709a. Authorizing township .societies to incorporate for the detection of horse thieves and other criminals and for mutual protection of property against such. § 3710. Justice of peace may appoint special constables. ^ 3711. Powers of such constables. § 3712. Duties of certain ofRcers to suppress sale of liquor at fairs. § 3713. How articles seized to be disposed of. § 3713-1. When farmers' institute society deemed body corporate. I 3713-2. Number, times, and places of annual meetings. § 3713-3. County payments to societies and state board of agriculture. §3713-4. Society's statement of expenses; what secretary's certificate to indicate. § 3713-5. Lecturers at annual meetings. § 3713-6. Publication and distribution of lectures and papers. § 3713-7. Trespass. « 3713-8. Penalty. $ 3713-9. Prosecutions hereunder. § 3713-10. Proceedings for appropriation of lands for enlargement of fair grounds. § 3713-11. Board of directors to prosecute proceedings. § 3691-25. INCOBPORATION. — That Michael L. Sullivant, * * •* be and they are hereby created a. body corporate, with, perpetual succession, in the manner hereafter described, under the name and style of the " Ohio .state board of agricul- ture." (S. & C. 63; February 28, 1846, 44 v. 70.) § 3691-26. Sec. 1. NUMBER OF BOARD; QUORUM. — The Ohio state board of agriciilture shall consist of ten members, five of whom shall constitute a quorum. {February 8, 1841, 45 v. 49.) § 3691-27. Sec. 2. NAMES OF MEMBERS. — That Allen Trimble, M. L. Sulli- Tant, Samuel Medary, Darius Lapham, A. E. Strickle, Arthur Watts, M. B. Bateham, John Codding, Jared P. Kirtland, and Isaac Moore, be continued members of the hoard; their term of service and the mode of appointing their successors to remain •unaltered by this act. (February 8, 1847, 45 v. 49.) § 3692. ANNUAL MEETING OF BOARD. — There shall be held in the city of Columbus on the first Thursday after the second Monday in January, an annual meet- ing of the Ohio state board of agriculture, together with the president of each county agricultural society or the duly authorized delegate therefrom who shall for the time being be ex-offlcio members of the state board of agriculture for the purpose of deliberation and consultation as to the wants, prospects and conditions of agriculture throughout the state; and at such meeting the several reports from the societies shall be delivered to the president of the state board of agriculture; provided that in any county having no agricultural society, the presidents of the farmers' institutes of the county, and holding meetings under the auspices and by the direction of the state board of agriculture, or a majority thereof, are hereby authorized and em- powered to choose a representative to the annual meeting, who shall upon presenta- tion of the proper certificates be entitled to all the privileges conferred on ex-oflacio members by this section. Agricultural Corporations. 449 state Board — County and District Societies, §§ 3693-C697. ELECTION OF OFFICERS. — At this annual meeting there shall be elected two members of the state board of agriculture whose term shall be five years and until their successors are elected. Only the presidents of county agricultural societies or the duly authorized delegates therefrom, and representatives chosen by the president of farmers' institutes not members of the board shall be entitled to vote for members of the board. (April 23, 1902, 95 v. 243; January 13, 1898, 93 v. 3; April 24, 1890, 87 V. 258; April 5, 1882, 79 v. 70; R. S. 1880; February 20, 1861, 58 v. 22, § 2; S. & S. 4.) § 3693. ANNUAL BEPORT OF BOARD TO GENERAL ASSEMBLY.— The board may elect such officers as may by it be deemed necessary. It shall hold an annual exhibition of the agricultural and general productive industries of the state; shall make an annual report to the general assembly, embracing its proceedings for the past year, and an abstract of the proceedings of the several county agricultural societies, as well as a general view of the condition of agriculture throughout the state, accompanied by such recommendations as it may deem interesting and useful. (April 5, 1882, 79 v. 70; R. S. 1880; February 28, 1846, 44 v. 70, § 7; S. & S. 64.) § 3694. STATE BOARD OF AGRICTJLTTJRE: REAL ESTATE ACQUIRED BY; AUDITING OF EXPENSES; ANNUAL REPORT; LEGAL ADVISER. — The board may hold in fee simple such real estate as it may have heretofore purchased, or may hereafter purchase, as sites whereon to hold its annual fairs, and all such lands held by the board for said purpose shall be exempt from taxation, but when any such real estate as may have heretofore been purchased or may hereafter be purchased, shall cease to be used by the board as sites whereon .to hold such annual fairs, then such real estate with the improvements thereon, belonging to the board, shall revert to the state of Ohio; and no portion of any such real estate shall be disposed of except by act of the legislature. The board shall have the power to audit and pay its ordinary expenses, including the necessary personal expenses of the members in their attend- ance on the meetings of ths board, out of any funds in its possession or out of the state agricultural fund, and shall, in its annual report, make a complete showing of its financial transactions; and the attorney-general shall act as the legal adviser of the board, the same as for other state departments. (May 4, 1885, 82 v. 248; March 25, 1884, 81 V. 82; R. S. 1880; February 18, 1848, 46 v. 53, § 1; S. & C. 66.) § 3695. HOW STATE AGRICULTURAL FUND AT DISPOSAL OF BOARD. — The state agricultural fund shall be at the disposal of the board for the improvement of the agricultural interests of the state; and when escheated property is legally reclaimed by any heir, it shall be held subject to the payment, to the purchaser of the state, of so much of the original purchase money as it received, and legal interest to the time of such reclamation. (February 8, 1847, 45 v. 43, § 6; S. & C. 65.) § 3696. SECRETARY OF STATE AUTHORIZED TO FURNISH STATIONERY TO BOARD OF AGRICULURE. —The secretary of state is authorized to furnish the board with such stationery as may be requisite to the proper discharge of its duties, together with such blank books as may be necessary to keep the records of the trans- actions of the board. (February 11, 1885, 82 v. 64; R. S. 1880; March 30, 1864, 61 V. 83, § 1; S. & S. 5.) > § 3697. ORGANIZATION OF DISTRICT OR COUNTY AGRICULTURAL SOCIETIES; CUYAHOGA COUNTY. — When thirty or more persons, residents of any county of the state, or of a district embracing one or more counties, organize themselves into an agricultural society, and adopt a constitution and by-laws and select the usual and proper officers, and otherwise conducts its affairs in conformity to the statutes of Ohio and to the rules of the state board of agriculture, and when such county or district agricultural society shall have held an annual exhibition. LAW GOV. PRIV. COR. — 2g. 450 Private Corporatio'ns in Ohio. County and District Agricultural Societies, §§ 3698, 3699. in accordance with section 3698 of the Revised Statutes of Ohio, and made proper report to the state board of agriculture, then, upon presentation to the county auditor, of a certificate from the president of the state board of agriculture, attested by the secretary of said board, that the laws of the state and the rules of the state board of agriculture have been complied with, the county auditor of each county wherein, such agricultural societies are organized, shall annually draw an order on the treas- urer of the county in favor of the president of the county or district agricultural society for a sum equal to two cents to each inhabitant of the county, upon the basis of the last previous national census, but the total am.ount thereof shall not exceed in any county the sum of eight hundred dollars ($800); and the treasurer of the county shall pay the same. Provided, that where in any county containing a. city of the second grade of the first class, the site for holding county fairs is situated so far from the geographical center of said county that, in the opinion of the commis- sioners of said county the "agricultural interests of said county will best be promoted by the establishment of another and additional society and site whereon to hold fairs; upon the organization of such additional society in the manner provided herein, said additional society shall be entitled to receive out of the county treasury the sum. provided in this section and also be entitled to the provisions of other sections of the statutes in reference to county agricultural societies. (May 6, 1902, 95 v. 403; April 16, 1900, 94 V. 395; April 21, 1896, 92 v. 205; April 13, 1893, 90 v. 173; April 16, 1886, 80 V. 142; K. S. 1880; February 28, 1846, 44 v. 70, § 1; S. & C. 61.) Iiiable for negligence. A society organized under this section is liable for damages at the suit of one who Is injured in consequence of the negligent con- stmction of its seats. — Dunn v. Agricultural Society,- 46 Oh. St. 93 (1888). § 3698. FOK "WHAT PREMIUMS MAY BE OEFEEED BY AGRICTTLTirRAIr SOCIETIES. — The several county or district societies which may be formed under the provisions of the preceding section shall, annually, ofEer and award premiums for the improvement of soils, tillage, crops, manures, implements, stock, articles of domestic industry, and such other articles, productions, and improvements, as they deeia proper, and may perform all such acts as they deem best calculated to promote the agricultural and household manufacturing interests of th? district and of the state, and shall regulate the amount of premiums, and the difEerent grades of the same, so that it shall be competent for small as well as large farmers to have an op- portunity to compete therefor; and in making their awards special reference shall be had to the profits which accrue, or are likely to accrue, from the improved mode of raising the crop, or of improving the soil, or stock, or of the fabrication of the articles thus offered, so that the premium shall be given for the most economical mode of improvement; and all persons offering to compete for premiums on improved modes of tillage, or the production of any crops or other articles, shall be required, before such premium is adjudged to deliver to the awarding committee a full and correct statement of the process of such mode of tillage or production, and the expense and value of the same, with a view of showing accurately the profits derived or expected to be derived therefrom. Provided, that during any year, when the state board of agriculture shall hold its fair upon the grounds of any county or district agricultural society, such society shall be excused if its board of directors so decides from comply- ing with the provisions of this section, and shall incur no forfeiture of its rights as such agricultural society, by reason of not holding such fair. (April 9, 1880, 77 v. 143; B. S. 1880; February 28, 1846, 44 v. 70, § 2; S. & C. 63.) § 3699. MTJST PUBLISH A LIST OP A"WAEDS, ETC.— County and district societies shall publish, annually, a list of awards, and an abstract of the treasurer's account, in a newspaper of the district, and make a report of their proceedings during the year, and a synopsis of the awards for improvements in agriculture and house- Agricultural Corporations. 451 County Agricultural Societies, §§ 3700-3702-1. hold manufactures, together with an abstract of the several descriptions of these improvements, and also make a report of the condition of agriculture in their county or district, which report shall be made in accordance with the rules and regulations; of the state board of agriculture, and shall be forwarded to the state board at its annual meeting in January in each year; and no subsequent payment shall be made from the county treasury unless a certificate be presented to the auditor, from the president of the state board, showing that such reports have been made. (February 20, 1861, 58 V. 22, § 1; S. & S. 4; S. & C. 63.) § 3700. COUlirTY SOCIETIES EBECTED INTO COEPOBATIONS.— All county societies which have been or may hereafter be organized are declared bodies corporate and politic, and as such shall be capable of suing and being sued, and of holding in fee simple such real estate as they have heretofore purchased or may hereafter pur- chase as sites whereon to hold their fairs. (February 15, 1853, 51 v. 333, § 1; S. & C. 66.) § 3701. CONVEYANCES TO SUCH SOCIETIES DECLABED VALID.— All deeds, conveyances, and agreements in writing, made to and by such county societies, for the purchase of real estate as sites whereon to hold their fairs, shall be good and valid in law and equity, and shall vest a title in fee simple in such societies to the real estate, without words of inheritance. (February 15, 1853, 51 v. 333, § 2; S. & C. 67.) § 3702. COMMISSIONERS MAY ASSIST AGRICULTURAL SOCIETIES IN PURCHASING, ETC., SITES FOR FAIRS; LEVY OF TAX.— When a county society has purchased, or leased for a term of not less than twenty years, real estate as a site whereon to hold fairs, or where the title to the grounds is vested in fee in the county, but the society has the control and management of the lands and build- ings, the county commissioners may, if they think it for the interests of the county, and society, pay out of the county treasury the same amount of money for the pur- chase or lease and improvement of such site as is paid by such agricultural society or individuals for such purpose; and such commissioners may levy a tax upon all the taxable property of the county sufficient to meet the provisions of this section. (March 21, 1887, 84 v. 230; R. S. 1880; March 30, 1871, 68 v. 50, § 3; S. & S. 6.) § 3702-1 Sec. 1. SUBMISSION OF QUESTION OF ISSUING BONDS TO LIQUIDATE DEBT OF COUNTY AGRICULTURAL SOCIETY.— In all counties in which there may be a county agricultural society which has purchased a site whereon to hold fairs, or where the title to such grounds is vested in fee in the county, and such society has become indebted to an extent of not less than fifteen thousand dol- lars upon the presentation of a petition signed by not less than five hundred resident electors of the county praying for the submission to the electors of the county of the question whether or not the bonds of the county shall be issued and sold for the pur- pose of liquidating the indebtedness of such society, it shall be the duty of such county commissioners within ten days thereafter, by resolution, to fix a date which shall be within thirty days, upon which the question of issuing and selling such bonds, in amount and denomination such as may be necessary for the purpose in view, shall be submitted to the electors of the county, and shall cause a copy of such resolu- tion to be certified to the deputy state supervisors of elections of the county, and such deputy state supervisors of elections shall, within ten days thereafter, proceed to prepare the ballots and make all other necessary arrangements for the submission of such question to the electors of such county, at the time fixed by such resolution. Such election shall be held at the regular places of voting in such county and shall 452 Private Corporations in Ohio. County Agricultural Societies, §§ 3702-2-3702a. be conducted, canvassed and certified in the same manner, except as otherwise pro- vided by law, as elections for the election of county officers. Fifteen days' notice of the submission shall by the deputy state supervisors of election, be given by publi- cation in one or more newspapers published in the county once a week for two con- secutive weeks, stating the amount of bonds to be issued, the purpose for which they are to be issued and the time and places of holding such election; and if the majority of the voters voting upon the question of issuing the bonds vote in favor thereof, then and not otherwise the bonds shall be issued, and the tax hereinafter mentioned shall be levied. Those who vote in favor of the proposition shall have written or printed on their ballots " for the issue of bonds " and those who vote against the same shall have written or printed on their ballots " against the issue of bonds." (April 25, 1898, 93 v. 358.) § 3702-3. Sec. 2. BONDS.— In the event that a majority of the voters of such county voting upon the question of issuing the bonds vote in favor thereof, it shall be the duty of the board of county commissioners, for the purpose of liquidating such indebtedness, to issue and sell the bonds of the county according to law, in such amount as may be necessary, and bearing interest not to exceed six per cent, per annum, payable semi-annually; LEVY. — Said bonds to be issued for a period of not less than ten nor more than twenty years; and such county commissioners shall thereupon levy a tax upon all the taxable property upon the duplicate of the county to pay such bonds as they may mature and the interest thereon, at such rate and for such length of time as may be necessary for the purpose. (April 25, 1898, 93 v. 359.) § 3702-3. Sec. 3. PROCEEDS USED IN LIQUIDATION OF DEBT.— The county commissioners, upon the sale of such bonds, shall, from the proceeds arising from such sale, pay ofE and liquidate the indebtedness for which they were so sold. (April 25, 1898, 93 v. 359.) § 3702-4. Sec. 1. MONEY RAISED FOR COUNTY AGRICULTURAL SOCIE- TIES APPLIED TO PURPOSES INTENDED BY ACT THOUGH LIFE OF ACT EXPIRED. — Where money has been raised by taxation in any county for the pur- pose of leasing lands for county fairs, or for the purpose of erecting buildings for county fair purposes, or for making any improvements on county fair grounds, or for any purpose connected with the use of county fair ground or the management thereof by any county agricultural society, shall be used for such purpose only, not- withstanding the law under which money was raised by taxation may have expired by limitation; such moneys shall be used for the purposes intended by the act under which such moneys were levied and collected by taxation. (April 25, 1898, 93 V. 316.) § 3702a. COMMISSIONERS IN CERTAIN COUNTIES MAY ASSIST AGRI- CULTURAL SOCIETIES IN PURCHASING, LEASING OR IMPROVING SITES FOR FAIRS. — When a county society in a county containing a city of second grade of the first class has purchased or leased for a term of not less than twenty years, real estate as a site whereon to hold fairs, or when the title to the grounds is vested in fee in the county, but the society has the control and management of the lands and buildings the county commissioners may if they think it for the interests of the county and society, pay out of the county treasury the same amount of money for the purchase or lease and improvement of such site or either of them as is paid by such agricultural society or individuals for such purpose or either of them, and sucb Agricultural Corporations. 453 County Agricultural Societies, §§ 3702b-3705. commissioners may levy a tax upon all the taxable property of the county sufficient to meet the provisions of this section. (March 8, 1889, 86 v. 69.) '^ § 3702b. COMMISSIONERS MAY LEVY TAX EOE, ENCOITBAGEMENT OF -JaGRICTJLTTJEAL PAXES.— When a county has purchased or leased for a term of not less than twenty years, real estate as a site whereon to hold fairs, or where the title to the grounds is vested in fee in the county agricultural society, or in the county the agricultural society has the control and management of the lands and build- ings, or when such lands and buildings are held by, lease from any such society by another society, association or incorporated company, the county commissioners are authorized for the purpose of encouraging agricultural fairs, to annually levy taxes of not exceeding one-tenth of one mill upon all the taxable property of the county, for the purpose of raising not to exceed one thousand dollars in any county, which sum shall be paid by the treasurer of the county to the treasurer of the agricultural society, except in case of such lease by such society when such sum shall be paid to the treasurer of such lessee society, association, or incorporated company upon an order from the county auditor duly issued therefor; PAYMENT IN ANTICIPATION OP LEVY.— And the county commissioners, prior to the levy of any such tax, may, if they think it for the interest of the county and society, pay out of the treasury any sum not exceeding one thousand dollars, as herein provided, out of the money in the general fund not otherwise appropriated. (April 10, 1902, 95 v. 122; April 25, 1898, 93 v. 292.) § 3703. COUNTY COMMISSIONERS MAY PURCHASE PAIR GROUNDS.— If a county society and the county commissioners decide that the interests of the society and county demand an appropriation from the county treasury for the pur- chase and improvement of county fair grounds greater than that authorized by the preceding section, or without any action of or purchase by the society, the commis- sioners naay levy a tax upon all the taxable property of the county, the amount of which shall be fixed by the commissioners, but shall in no event exceed one-half of one mill on the dollar of the taxable property of the county in addition to the amount authorized in the last section to be paid for such purpose. (March 30, 1871, 68 v. 50, § 3.) § 3704. THE TAX MUST BE SUBMITTED TO THE ELECTORS.— No such additional tax shall be levied until the question as to the amount to be levied has been submitted by the commissioners to the qualified electors of the county at some general election, and a notice of which, specifying the amount to be levied, has beerf given at least thirty days previous to such election, in one or more newspapers pub- lished and of general circulation in the county; those voting at such election in favor of such tax shall have written or printed on their ballots "Agricultural tax. Yes," and those voting against the same, "Agricultural tax. No," and if a majority of the votes cast be in favor of paying such tax, the same may be levied and collected as other taxes; and when such tax is collected by the county treasurer, the auditor shall issue his order for the ambunt so collected to the treasurer of the county agricultural society, on his filing with the auditor an undertaking, in double the amount so col- lected, with good and sufficient sureties to be approved by the auditor, conditioned for the faithful paying over and accounting to such society for such funds. (March 30, 1871, 68 V. 50, § 3.) J § 3705. WHEN REAL ESTATE VESTS IN THE COUNTY.— When a society is dissolved or ceases to exist, in any county where payments have been made for real estate, or improvements upon such real estate, or for the liquidation of indebted- 454 Private Corporations in Ohio. County Agricultural Societies — Parks, etc., §§ 3705a-3705-4. ness, for the use of such society, all such real estate and improvements shall vest in fee simple in the county by which such payments were n3.ade. (April 25, 1898, 93 v. 360; February 15, 1853, 51 v. 333, § 4; S. & C. 67.) § 3705a. INSITBANCE ON FAIR GROUND PROPERTY.— That the county commissioners of any county are hereby authorized to keep insured all buildings owned by the county agricultural society, or by the county, for the benefit of the county agricultural society^ or the county, as the case may be, if deemed proper by said commissioners. (April 10, 1902, 95 v. 123; March 10, 1898, 93 v. 40.) § 3705-1. Sec. 1. FRANKLIN COUNTY FAIR GROUNDS.— In counties in which there are located cities of the first grade of the second class, when agricultural societies are dissolved or cease to exist, when payments have been made for real estate, or improvements upon such real estate, for the use of such societies by such counties, such real estate and improvements may vest in fee simple in the counties by which such payments were made, and such real estate shall be held for the use of a public park for the people of said county, anything in section three thousand seven hundred and five, to the contrary notwithstanding. (March 17, 1886, 83 v. 192.) § 3705-2. Sec. 2. PARK COMMISSION TO BE APPOINTED BY COUNTY COM- MISSIONERS. — Such real estate so held shall be under the supervision and control of a park commission, consisting of five persons, two of whom shall be appointed from the country by the county commissioners, and two from the city to be appointed by the m^ayor. Said commissioners shall be appointed for the term of three years, and shall serve until their successors, who shall be appointed in the same manner, shall be appointed. The mayor shall be ex-officio a member of said commission and entitled to vote on all questions coming before it. Any fund under the control of said agricul- tural society, when it shall cease to exist as aforesaid, shall be turned over to such park commissioners. (March 23, 1891, 88 v. 372; March 17, 1886, 83 v. 192.) § 3705-3. Sec. 1. AUTHORIZING FRANKLIN PARK IMPROVEMENT.— When real estate which has heretofore been purchased by any county, and improve- ments made thereon, for the use of a county agricultural society, and such real estate is situate within the corporate limits of a city, and has been abandoned for such use, and, by authority of the act to which this act is supplementary, the title to such real estate is vested in fee simple in such county, and the premises devoted to the pur- poses of a public park for the use of the people of the county and of such city, and the supervision and control of the same vested in a park commission, consisting in part of residents of such city, and in part of persons who reside in the county but are not residents of such city, and their successors in office, and the city council of such city deems it advisable to enlarge such park by the purchase of land adjoining it, such council may, by ordinance, duly passed, provide for the investment of not more than nine thousand five hundred dollars for such purpose of enlargement; provided, that when any land is purchased by such city for the purpose aforesaid, the title thereto shall vest in the city, and it shall be controlled and managed by the park commis- sion aforesaid for public park purposes, in connection with the other premises under its control and supervision for the same purposes; and the care, improvement and embellishment of such park shall be at the expense of such city. (April 12, 1889, 86 V. 252) § 3705-4. Sec. 2. COUNCIL MAY BORROW MONEY.— That for the purpose of providing the money with which to pay for any real estate that may be purchased in pursuance of the preceding section, and the care, improvement and embellishment mentioned therein, the city council of any such city is hereby authorized and empow- Agricultural Corporations. 455 County Agricultural Societies — Parks, etc., §§ 3705-5-3705-9. €red to borrow such sum of money, not exceeding twenty-five thousand dollars, as it jn.ay deem necessary, at a rate of interest not exceeding six per cent, per annum; and after paying for the land so purchased, the remainder of the money so borrowed shall be placed in the custody of the treasurer of the city, and be disbursed as other money of the city, but for the purposes mentioned in this section only. (April 12, 1889, 86 V. 252.) § 3705-5. Sec. 3. BONDS. — That for any money so borrowed the city council shall issue bonds of the city, which shall be signed by its president and attested by the city clerk, who shall keep a record thereof, and also of the coupons attached thereto. Such bonds shall be in sums of not less than one hundred dollars each, and be payable to bearer, at such place as the council may designate therein; and they shall specify distinctly the purpose for which they are issued. The payment of the principal of such bonds shall not be deferred beyond a period of ten years, and shall iDe payable at the pleasure of the city council after five years. Such bonds shall not be sold for less than their par value, and the interest thereon shall be payable semi- annually. (April 12, 1889, 86 v. 252.) § 3705-6. Sec. 4. LEVY. — The city council of any city which borrows money and issues bonds for the purposes aforesaid shall levy annually for park purposes, and for the purpose of paying the principal of the outstanding bonds issued under the authority of this act, and the interest thereon as it shall become due, a tax of not more than one-tenth of one mill on the dollar. (April 12, 1889, 86 v. 252.) § 3705-7. Sec. 5. QTTALIFICATION OF PAEK COMMISSIONERS.— The mem- Tjers of any such park commission as is referred to in this act, or the act to which this is supplementary, except the member ex-officio, shall each, before entering upon the duties of his ofBce, take and subscribe an oath, before some ofiicer authorized by law to administer oaths, that he will honestly and faithfully discharge the duties of his oflBce, and also give a bond, payable to such city, with at least two good and sufficient sureties, in the sum of ten thousand dollars, to be approved by the mayor of the city, and conditioned for the faithful performance of his duties as a member of such com- mission; and if any person who has been or may hereafter be appointed a member of any such commission fail or neglect for ten days to qualify as herein provided, his office shall be deemed vacant, and another suitable person shall be appointed in his stead. (April 12, 1889, 86 v. 252.) § 3705-8. Sec. 6. MEETINGS, DUTIES, ETC., OE COMMISSIONERS.— Such park commission shall hold meetings as often as once a month, and adopt all neces- sary rules for the regulation of its business. It shall elect a president and a secre- tary; it shall keep a complete record of all its proceedings, which record, or a copy thereof, duly certified by its ^secretary, shall be competent evidence of its transac- tions in all the courts of this state; and the yeas and nays shall be taken upon the passage of every resolution or order, and entered upon the journal. Three members of the board shall constitute a quorum for the transaction of all business; but no Tesolution or order shall be adopted unless three members vote in its favor. (April 12, 1889, 86 V. 252.) § 3705-9. Sec. 7. MAY APPOINT SUPERINTENDENT AND OTHER EM- PLOYES.— Such park commission shall adopt rules for the care, protection and gov- ernment of any park under its charge; and it may appoint or employ such superin- tendent and employes as it may deem necessary, and fix their salaries or com- pensation, and may remove any of such persons at any time. It shall annually make a full report to the county commissioners bf such county, and to the city council of 456 Private Corporations in Ohio. County Agricultural Societies — Protection Against Criminals, §§ 3705-10-3705-11. sucli city, in respect to such park, with a detailed account of its receipts and expendi- tures. (April 12, 1889, 86 v. 252.) § 3705-10. FRANKLIN PARK COMMISSION MAY PURCHASE CERTAIN PROPERTY. — When real estate, which has heretofore been purchased by any county and improvements made thereon for the use of a county agricultural society, and such real estate is situate within the corporate limits of the city and has been abandoned for such use, and, by authority of the act of which said act of April 12, 1889, was supplementary, the title to such real estate is vested in fee simple in such county, and the premises devoted to the purposes of a public park for the use of the people of the county and of such city, and the supervision and the control of the same vested in a park commission, consisting in part of the residents of such city, and in part of persons who reside in the county, but not residents of said city, and their successors in office, and the council of such city has deemed it advisable to enlarge such park by the purchase of land adjoining it and has provided for the investment of money therefor by ordinance duly passed, and when such council for the purpose of providing money with which to pay for such real estate and for the care, improvement and embellishment of such park, and when a court of record of this state by decree has found any person owning an estate in any of the real estate composing such park, said park commission is hereby authorized to purchase such estate, the title whereof shall vest in such city; and the treasurer of said city be and he is hereby authorized out of the moneys so borrowed to pay upon warrants properly drawn therefor, any sum of money not exceeding four thousand ($4,000) dollars for the purpose of pur- chasing such estate and to pay claims arising by the reason of the purchase of land adjoining said park under and by virtue of such ordinance. (March 16, 1891, 88 V. 104.) An Act to Authorize Agricultural Societies to Dispose of Real Estate to be Used for the Purpose of Erecting and Maintaining Thereon an En- gine or Hosehouse. Be it er acted by the General Assembly of the State of Ohio: Section 1. COUNTY AGTRICULTURAL SOCIETY MAY DONATE LAND TO MU- NICIPALITY FOR CERTAIN PURPOSES. — When a county agricultural society has purchased real estate, as a site whereon to hold fairs, or where the title to the grounds is vested in fee simple, in the county, but the society has the control and manage- ment of the lands and buildings; and all or a. part of said real estate is situated within the corporate limits of any city or village, such agricultural society may, with the consent and approval of the county commissioners, give to such city or village, by deed, a lot or strip of ground, not more than fifty feet in width by two hundred feet in length, to be held by such city or village, in fee simple, for the pur- pose of erecting and maintaining thereon a fire engine or hose house, to be used in connection with the fire department of such city or village. The lot, so donated, shall abut on a. public street or highway and shall be located in such part of the fair grounds as the society may direct. (February 4, 1902, 95 v. 6.) § 2. This act shall take effect from and after its passage. (February 4, 1902, 95 V. 6.) § 3705-11. Sec. 1. CORPORATIONS FOR THE APPREHENSION AND CON- VICTION OF CRIMINALS, ETC.— That any number of persons, not less than fif- teen, a majority of whom shall be residents of the state of Ohio, are hereby authorized to become incorporated for the purpose of apprehending and convicting any person or persons accused of either felony or misdemeanor. (April 29, 1902, 95 v. 299; March 21, 1887, 84 v. 169.) Agricultural Corporations. 457 Company to Protect Against Criminals, etc., §§ 3705-12-3705-14. § 3705-12. Sec. 2. SEAL; CONSTITXJTION; OSTICEBS; OAiTH OF OFFICE; CERTIFICATE OF APPOINTMEITT OR ELECTION; POWERS OF OFFICERS AND MEMBERS. — Any association so incorporated may make and use a common seal with the name of the corporation thereon. A" majority of the members of such asso- ciation shall have the power to adopt a constitution and by-laws for their govern- ment; and may elect or appoint such officers as they may deem proper, who shall hold their office during the term provided, by the constitution and by-laws thereof, and who shall perform the duties required of them by said constitution and by-laws, and the provisions of this act; and the presiding officer of any such association or cor- poration m^ay administer the proper oaths of office to any of its officers or members, and certify the appointment or election thereof under the seal of said corporation. The presiding officer may also appoint deputies, not exceeding one in each township, in any county or counties where such corporation is located, who may administer said oath of office or membership, and certify the appointment or election thereof, which shall be valid when approved by said presiding officer under the seal of said corpora- tion, and the officers or members of said association or corporation, upon the proper certificate of the presiding officer thereof, when so elected or appointed, shall have full power and authority, when a felony has been committed, to pursue and arrest, without warrant, any person or persons whom they believe or have reasonable cause to believe guilty of the offense, and arrest and detain such alleged criminal or criminals in any county in the state to which they have fled, and return such accused person or persons to any officer of the county in which the offense was committed, and there detain such accused person or persons until a. legal warrant can be obtained for his or their arrest. And any officer or member of any such association or cor- poration, may under the certificate of authority aforesaid, apply for and obtain a warrant for the arrest of any person or persons accused of felony or misdemeanor, which shall be issued to said member of any such association or corporation by any justice of the peace or police magistrate of any city or village under the same con- ditions as warrants, are now issued to constables, and under said warrant any such officer or member shall have the same powers to arrest and detain offenders as is now vested in constable. (April 29, 1902, 95 v. 299; April 28, 1890, 87 v. 339; March 21, 1887, 84 V. 169.) § 3705-13. Sec. 3. ASSESSMENTS; INDEMNITY FOR LOSSES; EXPENDI- TURES. — Any association may make and collect from its members such assess- ments as may be authorized by its constitution or by-laws, and may if so provided in its constitution, indemnify its members for losses caused by horse thieves or other felons, and expend such moneys as may be deemed necessary in the pursuit and arrest, and procuring the conviction of felons. (April 29, 1902, 95 v. 299; April 28, 1890, 87 V. 340; March 21, 1887, 84 v. 169.) § 3705-14. Sec. 4. REIMBURSEMENT OF EXPENSES BY COUNTY. — Upon the apprehension and conviction of any person or persons charged with felony by any such associations or corporation, the commissioners of the county in which the crime was committed, may reimburse said associatipn in any sum not exceeding one hun- dred dollars, for necessary expenses, not otherwise provided for by law, incurred in the apprehension and conviction of any such criminal; and upon the apprehen- sion and conviction by such association of any person or persons accused of misde- raieanor, the commissioners of the county in which the crime was committed may reimburse said association in any sum not exceeding seventy-five dollars for necessary expenses incurred, not otherwise provided for by law, in the apprehension and con- viction of such criminals. (April 29, 1902, 95 v. 300; April 28, 1890, 87 v. 340; March 21, 1887, 84 v. 169.) 458 Private Corporations in Ohio. County Agricultural Societies, §§ 3706-3706b. § 3706. SOCIETIES MAY SELL, AND PURCHASE OTHER SITES. — When a county society desires to sell its site for holding county fairs, for the purpose of pur- chasing another site, it may sell or lease the same in such manner and on such terms as it may deem proper, and the money arising from the sale or lease shall be paid by the purchaser to the county treasurer, who shall pay it out only upon the certifi- cate of the president and secretary of the society that the same is to be used in the purchase, lease or improvement of another site, which site the certificate shall show to have been leased or purchased, and in cases where the county has paid any portion of the purchase money for the site proposed to be sold or leased, the written consent of the county commissioners shall first be given to such sale or lease. That whenever the site for holding county fairs belonging to or occupied by any agricultural society organized under the laws of this state, shall have for any reason become unfit or inefficient for the purpose for which it is intended and used, and the board of directors of such agricultural society shall, at a regular meeting thereof, by a vote of at least a majority of all the members of said board, upon a call of the yeas and nays, pass a resolution for the purpose of securing the benefits of this act, declaring that such site has become unfit and inefficient as aforesaid, and that it is necessary, for the best interests of such agricultural society and such county, that such site be sold or leased, and a new site purchased or leased, for holding county fairs in such county, it shall be lawful for such agricultural society to sell or lease such unfit or inefficient site for holding county fairs, and to purchase or lease a new site as hereinafter pro- vided. Within thirty days after the passage of such resolution said board of direct- ors shall give notice in writing to the county commissioners of such county of the passage and adoption of said resolution, declaring the necessity of selling or leasing such site and of purchasing or leasing a new site, which notice shall contain or have annexed thereto a certified copy of said resolution, signed by the president and secre- tary of said board of directors. (May 10, 1902, 95 v. 503; March 28, 1859, 56 v. 76, « 1; S. & C. 69.) § 3706a. WHEN COUNTY COMMISSIONERS SHALL COMPLETE AND CARRY OUT CONTRACTS BY SUCH SOCIETY. — That whenever such agricultural society shall have given notice to the county commissioners as above provided, and shall have selected, or secured options for the purchase or lease of a new site for holding county fairs in such county, the board of directors of such society shall immediately give notice of all of such facts to the county commissioners, which said notice shall, in the event such old site is sold or leased before the purchase or lease of the new site, state the amount for which such old site was sold or leased, and shall also state the amount of money necessary to acquire by purchase or lease such new site, and the terms and conditions of the purchase or lease thereof, together with a full description of the tracts or parcels of land and improvements thereon, included in such new site. After the filing of the several notices herein provided for, the county commissioners shall proceed to complete and carry into effect any contract or con- tracts which such agricultural society may have made for the purchase or lease of said new site. (May 10, 1902, 95 v. 504.) § 3706b. PROVISION FOR PAYMENT EOR SUCH PURCHASE OR LEASE OF IiANDS. — That the payment for the purchase or lease of the parcels or tracts of land included in such new site, and the improvements, buildings and structures thereon, shall be made by the county commissioners from any unappropriated funds in the county treasury at the time said payments are to be made, and if no such funds are in the county treasury at such times, then the county commissioners are hereby authorized to issue the bonds of the county for such amounts as may be necessary for the purchase or lease of said land and the improvements thereon; provided, that in the event such old site is sold or leased before such new site is purchased or leased, said agricultural society shall, in making said payments, first apply the moneys real- Agricultural Corporations. 459 County Agricultural Societies, etc., §§ 3706c, 3707. Ized from the sale or lease of such old site to the purchase or lease of new site; and in the event such old site is sold or leased after the purchase or lease of such new site, the amounts realized from such sale or lease shall be placed to the credit of the sinking fund for the redemption of the bonds to be issued as hereinafter provided. Such bonds shall bear interest at a rate not to exceed three and one-half (3 1-2) per cent, per annum, payable semi-annually, and shall not be sold at less than their par value, and shall be payable at such place as said county commissioners shall deter- mine, not less than ten years from the date thereof; and to provide for the payment of said bonds and the interest thereon the said county commissioners are hereby authorized to levy such annual taxes on all the taxable property of the county, as may be necessary to create and provide a, sinking fund for the redemption of such Tjonds at maturity and the interest accruing thereon. Said levy shall be collected and accounted for to the county treasurer of the county in the manner provided for "the collection of other taxes. Before issuing such bonds, the commissioners shall, by resolution, submit to the qualified electors of the county at the next general election for county officers held not less than thirty days after receiving from such agricul- tural society the notice provided for in section 3706, the question of issuing and selling such bonds, in amount and denomination as may be necessary for the purpose in view, and shall cause a copy of such resolution to be certified to the deputy state supervisors of elections of the county, and such deputy state supervisors of elections shall place the question of issuing and selling such bonds upon the ballot and make all other necessary arrangement for the submission of such question to the qualified electors of such county, at the time fixed by the resolution. " The votes cast upon such question shall be counted, canvassed and certified in the same manner, except as otherwise provided by law, as votes cast for county officers. Fifteen days' notice of such submission shall be given by the deputy state supervisors of elections, by pub- lication once a week for two consecutive weeks in two or more newspapers published in the county, stating the amount of bonds to be issued, the purpose for which they are to be issued, and the time and plaices of holding such elections. Said question shall be stated on the ballot as follows: " For the issue of county fair bonds, yes;" " For the issue of county fair bonds, no," and if the majority of the voters voting upon the question of issuing the bonds in favor thereof, then and not otherwise shall such bonds be issued, and the tax hereinbefore mentioned be levied. (May 10, 1902, 85 V. 504.) § 3706c. CONTROL AND MANAGEMENT OF LANDS WHERE TITLE IS VESTED IN COUNTY COMMISSIONERS. — That where the title to the grounds and improvements occupied by agricultural societies is vested in the county commission- ers, the control and management of such lands and improvements shall be vested in the board of directors of such agricultural society so long as the same shall be occu- pied and used by such society for holding agricultural fairs, and all moneys realized by said agricultural society in the holding of county fairs and derived from renting or leasing said grounds and buildings, or portions thereof, in the conduct of said county fairs or otherwise, over and above the necessary expenses thereof, shall be paid into the county treasury of said society to be used as a fund for keeping said grounds and buildings in good order and repair, and in making such other improve- ments as may from time to time be deemed necessary by the directors of said society. (May 10, 1902, 95 v. 505.) § 3707. HOW CONVEYANCES TO BE EXECUTED. — Conveyances of grounds sold under the preceding section, which are owned exclusively by any society, may be executed by the president of the society as such president; and grounds owned partly by the society and partly by the county may be conveyed by deed executed by the president of the society, as such president, and by the county commissioners. (March 28, 1859, 56 v. 76, § 2; S. & C. 69.) 460 Private Corporations in Ohio. Township Agricultural Societies — Fairs, Regulations as to, §§ 3708-371S. § 3708. SOCIETY CAN NOT HTCtTMBEB ITS GROUNDS. — When the com- missioners of any county have paid, or hereafter pay, any money out of the county treasury for the purchase of real estate as a site for any agricultural society whereon to hold its fairs, such society shall not incumber such real estats with any debt, by mortgage or otherwise, without the consent of the commissioners. (February 26, 1875, 7a V. 42, § 1.) § 3709. INCORPORATION OP TOWNSHIP SOCIETIES. — When any number of natural persons of any township form a society for the promotion of agriculture in such township, and under their hands and seals make a certificate, and acknowledge the same before a. justice of the peace, in which shall be specified the name of the society, the objects of its formation, and the township in which it shall be located, and file the same in the office of the secretary of state, such society shall be deemed a body corporate, with succession, and with power to sue and be sued, defend and be defended, and contract and be contracted with, may make and use a common seal, and the same alter at pleasure, and may purchase, and hold in fee simple, or rent or lease, such real estate as may be required as a site for holding fairs, not exceeding forty acres, and establish all necessary rules and regulations for the management of such fairs and the legitimate business of the society. (February H, 1877, 74 v. 80, § 1; S. & S. 5.) § 3709a. AUTHORIZING TOWNSHIP SOCIETIES TO INCORPORATE FOR DETECTION OF HORSE .THIEVES AND OTHER CRIMINALS AND FOR MUTUAL PROTECTION OF PROPERTY AGAINST SUCH. — When any number of natural per- sons of any township, form a society, for the detection and arrest of horse thieves and other criminals, and for the mutual protection of the property of its members, si'ch society may become a body corporate in the manner prescribed in section thirty-seven hundred and nine of the Revised Statutes, to which this is supplementary, with the right of succession, and the right to make and use a common seal, and with power to sue and be sued, to contract and be contracted with, to levy and collect, by suit, if necessary, such assessments not exceeding three dollars annually from each member, as may be required to carry out the objects of the society, and to make for such society needful rules and regulations not in conflict with the laws of this state. (February 10, 1885, 82 V. 63.) § 3710. JUSTICES OF THE PEACE MAY APPOINT SPECIAL CONSTABLES.— A justice of the peace may, on the application of a state, county, township, or an inde- pendent agricultural society, or industrial association, appoint a. suitable number of special constables to assist in keeping the peace during the time when such society is holding its annual fair, and shall make an entry in his docket of the number and names of all such persons so appointed. (April 11, 1836, 53 v. 141, § 1; S. & C. 67.) § 3711. POWERS OP SUCH CONSTABLES. — Constables so appointed shall have all the power of constables to suppress riots, disturbances, and breaches of the peace; they may, upon view, arrest any person guilty of a violation of any of the laws of the state, and may pursue and arrest any person fleeing from justice in any part of the state; and they may apprehend any person in the act of committing an offense, and, upon reasonable information, supported by affidavit, procure process for the arrest of any person charged with a. breach of the peace, and forthwith bring such person before the competent authority, and enforce all the laws for the preservation of good order. (April 11, 1856, 53 v. 141, § 2; S. & C. 68.) § 3712. DUTIES OF CERTAIN OFFICERS TO SUPPRESS SALE OF LIQUOR AT FAIRS. — A judge of any court, sheriff, coroner, justice of the peace of the proper county, a constable of the proper township, or the constables specially appointed, shall, upon view or information, without warrant, apprehend any person selling Agricultural Corporations. 461 Fairs, Regulations as to — Farmers' Institutes, §§ 3713-3713-3. intoxicating liquors in violation of law at or within two miles of the place where an agricultural fair is being hald, and seize the booth, tent, wagon, carriage, stand, vessel, or boat at or from which such liquors are being sold, and convey the same to a place of safe keeping, and take the person so offending before some officer having competent jurisdiction, together with an inventory of the things so seized, and the officer before whom such offender is brought shall proceed forthwith to inquire into the truth of the accusation, and proceed as provided by law. (April 11, 1856, 53 v. 141, § 4; S. & C. 68.) See § 6946 provid'ng for arrest for sale of intoxicating liquor within two miles of agri- cultural fair, and the following cases applicable thereto.— Heck v. State, 44 Oh. St. 536 (1886) ; Theis V. State, 54 Oh. St. 245 (1896); State v. Long, 48 Oh. St. 509 (1891). § 3713. HOW AETICLES SEIZED TO BE DISPOSED OF. — The articles so seized shall be bound for the payment of all fines and costs assessed against the accused in the proceeding, including the necessary expenses of seizing and detaining the same, and shall remain in the possession of the officer who makes the seizure until the determination of the prosecution, and may be sold on process issued therein against the accused. (April 11, 1856, 53 v. 141, §§ 5, 6; S. & 0. 68.) § 3713-1. Sec. 1. WHEN FARMEES' INSTITUTE SOCIETY DEEMED BODY CORPORATE. — That when twenty or more persons, residents of any county in the state, organize themselves into a farmers' institute society, for the purpose of teach- ing better methods of farming, stock raising, fruit culture and all branches of busi- ness connected with the industry of agriculture, and adopt a constitution and by-laws agreeable to rules and regulations furnished by the state board of agriculture; and when such society shall have elected proper officers and performed such other acts as may be required by the rules of the state board of agriculture, such society shall be deemed a body corporate. (April 27, 1896, 93 v. 330.) § 3713-2. Sec. 2. NUMBER, TIMES AND PLACES OF ANNUAL MEETINGS.— Not to exceed four farmers' institute societies organized under the provisions of this act, shall hold annual meetings under the auspices of the state board of agriculture in any one county in the state, and the state board of agriculture shall have power to determine the number and name the times and places for holding such institute meetings. (April 27, 1896, 92 v. 330.) § 3713-3. Sec. 3. COUNTY PAYMENTS TO SOCIETIES AND STATE BOARD OP AGRICULTURE. — When a society organized under the provisions of this act shall have held an annual farmers' institute meeting in accordance with the rules of the state board of agriculture, the secretary of said board shall issue certificates, one to the president of the farmers' institute society and one to the president of the state board of agriculture, setting forth these facts and, on the presentation of these certifi- cates to the county auditor, he shall each year draw orders on the treasurer of the county as follows: Based on the last previous national census, a sum equal to three mills for each inhabitant of the county in favor of the president of the state board of agriculture, and a sum equal to three mills for each inhabitant of the county in favor of the president of the farmers' institute society, where but one society is organized, but in counties where there are more than one farmers' institute society organized under the provisions of this act, and holding meetings under the auspices and by direction of the state board of agriculture, the said three mills for each inhabitant shall be equally apportioned among such societies, and warrants in the proper amounts issued to the respective presidents, and the treasurer of the county shall pay the same from the county fund; provided that in no county shall the total annual sum exceed two hundred and fifty dollars; and provided further, that the payment to any insti- tute society shall not exceed the expenses, as per detailed statement, provided in sec- tion four (§ 3713-4) of this act. (April 27, 1896, 92 v. 330.) 462 Private Corporations in Ohio. Farmers' Institutes — Trespassing on Pair Grounds, §§ 3713-4^3713-8. § 3713-4. Sec. 4. SOCIETY'S STATEMENT OF EXPENSES; WBAT SECEE- TAKY'S CERTIFICATE TO INDICATE.— With each certificate of the secretary of the state board of agriculture to the county auditor, which certificate shall indicate the number of societies organized in the county and holding meetings by direction of the state board of agriculture, and before the auditor issues his order upon the treasurer there shall be filed with the auditor a detailed statement of the expenses of the insti- tute for the current year, no part of which shall be for salaries of officers of the insti- tute society; but this provision shall not apply to the order in favor of the president of the stats board of agriculture, which board shall issue statement as required in. section six (§ 3713-6) of this act. (April 27, 1896, 92 v. 330.) § 3713-5. Sec. 5. LECTURERS AT ANNUAL MEETINGS. — At the annual farmers' institute meetings, held under the provisions of this act and under the auspices of the state board of agriculture, the said board shall furnish lecturers or speakers whose compensation and expense shall be paid by the board. (April 27, 1896, 92 V. 330.) § 3713-6. Sec. 6. PUBLICATION AND DISTRIBUTION OF LECTURES AND PAPERS. — At the close of each season's institute work, the state board of agricul- ture shall publish in pamphlet or book form, such lectures end papers delivered at the several institute meetings, as may seem of general interest and importance to the farmers, stock breeders and horticulturists of the state, copies of which shall be fur- nished the secretary of each institute society, and the balance issued to be for general distribution; the cost of preparing the matter and the distribution of the pamphlet or book to be paid by the state board of agriculture. Said board shall also publish, in such pamphlet or book, a detailed statement of its receipts under the provisions of this act and the disbursements on account of institute work. (April 27, 1896, 92 v. 330.) § 3713-7. Sec. 1. TRESPASS. — That whenever any person or persons, corpora- tion or association, whether incorporated or otherwise, shall be possessed of, as own- ers, or shall have the lawful custody of any tract or parcel of land within this state, for the purpose of an agricultural or other fair grounds, or for the purpose of meetings of pioneers, or for public or private entertainments or other lawful assemblages, or for the protection of trees, plants and shrubs, or either of them, or the fruits and products thereof, or for any one or all of said purposes, it shall be unlawful for any person or persons to enter or go upon said grounds, either through or over any fence, or in any manner, without the consent and permission of the owner or owners thereof, or other person having lawful control of the same, or in violation of the regulations of the same; and in case of the holding a state, county, township, or independent fair, it shall be unlawful for any person or persons to injure, molest, remove or in any way to disturb any exhibits or property of any kind contrary to the rules of the state, county, township or independent board or society, or industrial association, under the control and management of which said fair may be held. (April 23, 1902, 95 v. 241; April 15, 1889, 86 v. 302; May 1, 1885, 82 v. 208.) § 3713-8. Sec. 2. PENALTY. — Whoever shall willfully, and in violation of the provisions of section 3713-7 of the Revised Statutes of Ohio, enter or go upon any lands referred to in said section, or shall injure or destroy any tree, plant, shrub or other property thereon, or shall take or carry away £iny fruit, nut or other thing of value, or shall willfully damage or destroy any fence enclosing said lands, or shall injure, molest, remove or in any way disturb any exhibit or property of any kind contrary to rules, shall on conviction thereof be fined in any sum not exceeding three hundred dollars nor less than five dollars, or be imprisoned in the jail of the proper county, or in any city, town, or village prison or lockup (when the offense shall have been committed within the corporate limits thereof) for any period not exceeding Agricultural Corporations. 463 Pair Grounds, Trespassing on; Appropriations for, §§ 3713-9-3713-11. three months, and until said fine and costs are paid, or both fine and imprisonment, at the discretion of the court; and shall moreover be liable, in a civil action to the party damaged thereby, in double the value of the property taken, carried away or destroyed, and in double the amount of the damage thereto, to be recovered before a justice of the peace or other court of competent jurisdiction. (April 33, 1902, 95 v. 242; April 15, 1889, 86 v. 302; May 1, 1885, 82 v. 208.) § 3713-9. Sec. 3. PEOSECTJTIONS HEKBUWDZE..— Prosecutions under and by virtue of this act, may be by indictment in the court of common pleas in the county where the ofEense shall have been committed, or before a justice of the peace of such county, or before the mayor of a city, town, or village, when the ofEense shall have been committed within the corporate limits of the same. (May 1, 1885, 82 v. 208.) § 3713-10. Sec. 1. PKOCEEDrN"GS FOE. APPEOPEIATION OF LANDS FOB ENLAEGEMENT OI? FAIE GROUUDS. —When it shall be deemed necessary by the board of directors of any county agricultural society to enlarge the fair grounds under the control of such society, and the owner or owners of the proposed addition to said grounds and the said board of directors are unable from any cause to agree upon the sale and purchase of said additional grounds, the board shall make an accu- rate plat and description of the land which it desires for said purpose and file the same with the probate judge of the proper county; and thereupon the same proceed- ings of appropriation shall be had which are provided for the appropriation of private property by municipal corporations, said board to act for such society therein as the council would for the municipal corporation. (March 2, 1892, 89 v. 52; April 8, 1880, 77 V. 128.) § 3713-11. Sec. 2. BOAED OF DIEECTOES TO PEOSECUTE PEOCEEDINGB. — That if, under any existing law, it is made the duty of the county commissioners to purchase any such additional grounds for the use of any such society, said board of directors shall prosecute the said proceedings of appropriation to their final con- clusion, except so far as relates to payment, or any part of the purchase money, before said commissioners shall be called upon to act in the matter. All such payments or deposits, not exceeding fifteen thousand dollars ($15,000) in amount, shall be made by said commissioners when required so to do by said board of directors, or by the court, and no delay on the part of said commissioners shall defeat or prevent the pur- chase or appropriation aforesaid. (April 8, 1880, 77 v. 128.) PART XVII. HUMANE SOCIETIES. § 3714. § 3715. § 3716. § 3717. § 3718. § 3718a. « 3719. § 3719a. S 3720. § 3721. § 3722. § 3723. § 3724. § 3725. § 3725a. § 3725-1. § 3725-2. "Ohio Humane Society;" powers, etc.; representatives; the objects of; power to acquire property; board for management of bequests, etc.; officers and rules; agents; powers of agents; branch societies; societies now organized may become branches. Other societies authorized. How incorporated. May elect officers, and make regulation's. Societies to prevent cruelty to animals may appoint agents to enforce law. In prosecutions for adulteration of food, etc.; for cruelty to animals; judicial pro- ceedings in such cases before justices; costs, how paid; as to attorney. Magistrate may authorize certain inspections. Duties of police officer; penalty. Police powers of officers and agents. Interpretation of certain words. i Members may require police officer to act. A person guilty is liable in damages. Conviction of agent no liar to action against principal. Any person may protect an animal from neglect. Animal may be ordered killed. Removal of child from possession of parent by officer of humane society. Notice. Order of probate court making general agent of society guardian of child. Guardian may provide home for child. § 3714. "OHIO HUMANE SOCIETY" POWERS, ETC., REPRESENTATIVES; THE OBJECTS OE; POWER TO ACQUIRE PROPERTY; BOARD FOR MANAGE- MENT OP BEQUESTS, ETC.; OFFICERS AND RUXES; AGENTS; POWERS OF AGENTS; BRANCH SOCIETIES; SOCIETIES NOW ORGANIZED MAY BECOME BRANCHES. — The Ohio state society for the prevention of cruelty to animals, here- tofore incorporated, shall be and remain a body corporate, under the name of " the Ohio humane society " with all the powers, privileges, immunities, and duties here- tofore possessed by said Ohio state society for prevention of cruelty to animals, here- inafter specified, as to county associations, and may appoint any person, in any county in this state where there is no such active association, to represent the state society, and to receive and account for all funds coming to the society, from fines or otherwise. The objects of said society and all societies heretofore, or hereafter organ- ized under sections three thousand seven hundred and fifteen and three thousand seven hundred and sixteen of the Revised Statutes shall be the inculcation of bumane principles, and to secure the enforcement of laws for the prevention of cruelty, espe- cially to children and animals, to promote which objects the said societies may respectively acquire property, real and personal, by purchase or gift. All property acquired by gift, devise, or bequest, for special purposes shall be vested in a board of trustees consisting of three members elected by the society, which board shall manage said property, and apply the same in accordance with the terms of the gift, devise, or bequest, with power to sell the same and re-invest the proceeds. Said society may elect such officers, and make such rules and regulations and by-laws as may be deemed necessary or expedient by their members for their own government and the proper management of their affairs. Said society may appoint agents in any county [464] Humane Societies. 465 Iiocal Societies, Incorporation, etc., of, §§ 3715-3718. of this state, where no active society exists under sections three thousand seven hun- dred and fifteen and three thousand seven hundred and sixteen of the Revised Stat- utes to represent the society, and receive and account for all funds coming to the society from fines or otherwise, and may also appoint agents at large to prosecute the work of said society throughout the state. The agents of said society and of all societies heretofore or hereafter organized under sections three thousand seven hun- dred and fifteen and three thousand seven hundred and sixteen of the Revised Stat- utes whose ai)pointment has been approved as hereinafter provided, shall have power to arrest any person found' violating any law for the protection of persons or animals, or the prevention of cruelty thereto, and upon making such arrest shall forthwith convey the person arrested before some court or magistrate having jurisdiction of the offense, and there make complaint against them, but said agents shall not be authorized to make such arrests within any municipal corporation unless their ap- pointment has been approved by the mayor thereof, nor within any county beyond the limits of a municipal corporation, unless their appointment has been approved by the probate judge of said county, and the mayor or probate judge shall keep a record of all such appointments. Branches of the society consisting of not less than ten members may be organized in any part of the state to prosecute the work of the societies in their several localities, under rules and regulations prescribed by the society. Societies for the prevention of acts of cruelty to animals organized in any county under section three thousand seven hundred and fifteen may become branches of said society by resolution adopted at a meeting thereof called for that purpose, a copy of which resolution shall be forwarded to the secretary of state. (March 21, 1887, 84 V. 207; B. S. 1880; March 29, 1875, 72 v. 129, § 21.) § 3715. OTHER SOCIETIES AUTHORIZED. — Societies for the prevention of acts of cruelty to animals may be organized in any county, by the association of not less than seven persons, and the members thereof shall, at a meeting called for the purpose, elect not less than three of their members directors, who shall continue in oflice until their successors are duly chosen.- (March 29, 1875, 72 v. 129, § 12.) § 3716. HOW INCORPORATED. — The secretary or clerk of the meeting shall make a true record of the proceedings thereat, which he shall certify, and forward to the secretary of state, who shall record the same; the record shall contain the name toy which such association shall have determined to be known, and from and after the filing of the same the directors and associates, and their successors, shall be invested with the powers, privileges, and immunities incident to incorporated companies; and a copy of the record, duly certified by the secretary of state, shall be deemed and taken, in all courts and places in this state, as evidence that such association is a duly organized and incorporated body. (March 29, 1875, 72 v. 129, § 13.) 5 3717. MAY ELECT OITICERS, AND MAKE REGULATIONS. — Such associa- tions may elect such officers, and make such rules, regulations, and by-laws, as may be deeiaed necessary or expedient by their members for their own government, and the proper management of their afEairs. (March 29, 1875, 72 v. 129, § 15.) § 3718. SOCIETIES TO PREVENT CRUELTY TO ANIMALS MAY APPOINT AGENTS TO ENFORCE LAW. — Such associations may appoint agents for the pur- pose of prosecuting any person guilty of any act of cruelty to persons or animals within this state, who shall have power to arrest any person found violating any of the provisions of this chapter, or any other law for the purpose of protecting persons or animals, or preventing any act of cruelty thereto; and, upon making such arrest, such agent shall convey the person so arrested before some court or magistrate having jurisdiction of the offense, within the municipal corporation or county wherein the offense was committed, and there forthwith make complaint, on oath or affirmation, LAW GOV. PRIV. COR. — 30. 466 Private Corporations in Ohio. Humane Societies, Suits by, etc., § 3718a. of the offense; but all appointments by such associations under this section must have the approval of the mayor of the city or village in which the association exists, and if it exists outside of any city or village the appointment must be approved by the probate judge of the county; and the mayor or probate judge shall keep a record of all such appointments. (April 14, 1884, 81 v. 181; R. S. 1880; March 39, 1875, 72 V. 129, § 6 [§ 16].) 5 3718a. JTJRISDICTIOIT OF JUSTICES, POLICE JITDGES AND TVCAYOES IN" PBOSEOTTTIONS FOB. ADULTERATION OF FOOD, ETC., AND FOE CRUELTY TO ANIMALS OR CHILDREN. — Any justice of the peace, police judge, or mayor of any- city or village, shall each have jurisdiction within his county, in all cases of viola- tion of the laws to prevent the adulteration of food and drink, the adulteration or deception in the sale of dairy products, or any other foods, and drugs and medicines, and any violation of the law for the prevention of cruelty to animals or children, or under section 3140-2, 4364-24, 4364-25, 6984, 6984a of the Revised Statutes of Ohio. JUDICIAL PROCEEDINGS IN SUCH CASES BEFORE JUSTICES. — In any such prosecution where imprisonment may be a part of the punishment, if a trial by jury be not waived, the said justice of the peace shall, not less than three nor mora than five days before the time fixed for trial, certify to the clerk of the court of common pleas of his county that such prosecution is pending before him. Thereupon, said clerk shall proceed to draw, in the presence of representatives of both parties, from the jury wheel or box containing the names of persons selected to serve as petit jurors in the court of common pleas in said county, twenty ballots or names, which shall be drawn and counted in the same manner as for jurors in said court of common pleas. Said clerk shall forthwith certify the names so drawn to said justice of the peace, who, upon receipt thereof, shall issue to any constable of the county a venire containing such names to serve as jurors to try such case and make due return thereof. The jurors shall be subject to the same challenges as jurors are subject to in criminal cases, except capital cases, in the court of common pleas. If the venire of twenty names be exhausted without obtaining the required number to fill the panel, the jus- tice shall fill the panel with talesmen in the manner provided for criminal cases in said court of common pleas. COSTS. — In all cases prosecuted under the provisions of this act, no costs shall be required to be advanced or be secured by any person or persons authorized under the law to prosecute such cases; and if the defendant be acquitted or discharged from, custody, by nolle or otherwise, or if he be convicted and committed in default of pay- ing fine and costs, all costs of such case shall be certified by said justice of the peaco under oath to the county auditor, who, after correcting any errors in the same, shall issue a warrant on the county treasury, in favor of the person or persons to whom, such costs and fees shall be paid. ATTORNEY IN PROSECUTING FOR CRUELTY TO ANIMALS OR CHILDREN. — And in cases brought for any violation of law for the prevention of cruelty to ani- mals or children, or under section 3140-2, 6984, 6984a or (7017-3) Revised Statutes of Ohio, any humane society or their agents may employ an attorney to prosecute the same, who shall be paid for his services out of the county treasury in such sum as any judge of the court of common pleas or probate judge, within said county, or the county commissioners, may approve as just and reasonable. JURISDICTION AND POWEE OF CONSTABLE IN SUCH CASES; FEES. —In pursuing or arresting any defendant and in subpoenaing the witnesses, the jurisdic- tion and powers of the constable or other court ofBcer acting in such capacity, in all such cases, shall be the same as that of the sheriff of the county in criminal cases in the common pleas court, and he shall receive the same fees therefor as are allowed said sheriff. Humane Societies. 467 Police Powers, etc., §§ 3719, 3719a. FEES OF JTJKOKS ANB WITNESSES. — Jurors in all such cases and witnesses H subpoenaed in all such oases shall be entitled to like mileage and fees, as are allowed fin criminal cases in the court of common pleas, and in all other respects, in so far ^?as the same may be applicable, the procedure provided for in criminal cases in the Ijcommon pleas court not otherwise inconsistent herewith, shall be followed. • AFFIDAVIT; WHAT TO CONTTAIN'. — And provided further, that where, in any such laws, after the first offense, a different punishment is provided for subsequent offenses, the information or aflSdavit, in order to avail the state of the benefit of such additional punishment, shall so charge that it is the second or subsequent offense, and unless such special charge is so made, the punishment shall in all cases be as of the first offense. All costs and moneys which are to be paid by the county treasurer as herein provided, shall be paid out of the general revenue fund of said county. NEW TKIAL. — And in any case prosecuted under the provisions of this section, a new trial, after a verdict of conviction, may be gtanted, for any of the reasons enumerated in section seventy-three hundred and fifty of the Revised Statutes', upon the written application of the defendant, filed within three days after the rendition of the verdict; provided that the causes enumerated in subdivision two, three and five of said section must be sustained by affidavits or other evidence showing their truth and may be controverted by like evidence. (May 10, 1902, 95 v. 517; April 3, 1900, 94 V. 92; May 21, 1894, 91 v. 412; April 27, 1893, 90 v. 335; April 31, 1888, 85 v. 144; April 14, 1884, 81 v. 181.) Jury need not be 'waived in xrritlng. It is not necessary that the accused should waive a trial by jury in writing to give the magistrate jurisdiction to proceed to final judgment without a jury. — Martindale v. State, 2 C. C. 2 (1896); s. c, 1 C. D. 328. Section 7147, R. S., does not apply to prosecntions under this statute. Martindale v. State, 2 C. C. 2 (1896) ; s. c, 1 C. D. 328. Sections 3718a and 7147, R. S., are not in pari materia. Martindale v. State, 2 C. C. 2 (1896); s. c, 1 C. D. 328. Jurisdiction in coloring oleomargarine. Justices have jurisdiction in prosecutions for the introduction of coloring matter Into oleomargarine. — State v. Ruedy, 57 Oh. St. 224 (1897).. Prosecuting attorney may file excep- tions. A decision of the common pleas court revers- ing a sentence by a justice of the peace may be the subject of an exception by the prose- cuting attorney under section 7305, R. S. — State v. Ruedy, 57 Oh. St. 224 (1897). Cited, State ex rel. v. Adkins, 18 C. C. 20, 21 (1899); s. c, 9 C. D. 373. See Marvin v. Ohio, 5 N. P. 209 (1897). § 3719. MAGISTRATES MAY AUTHORIZE CERTAIN INSPECTIONS. — When complaint is made, on oath or affirmation, to a magistrate or court authorized to issue warrants in criminal cases, that the complainant believes that any of the provisions of law relating to or affecting animals are being or are about to be violated in any particular building or place, such magistrate or court shall issue and deliver immedi- ately, a warrant directed to any sheriff, constable, police officer, or agent of such association, authorizing him to enter and search such building or place, and to arrest any person there present violating, or attempting to violate, any such law, and to bring such person before some court or magistrate of competent jurisdiction within the city, village, or county within which such offense has been committed, to be dealt with according to law, and such attempt shall be held to be a violation of such law, and shall subject the person charged therewith, if found guilty, to the penalties pro- vided therein. (March 29, 1875, 72 v. 129, § 17.) § 3719a. DUTIES OF POLICE OFFICER; PENALTY. — When a sheriff, con- stable, marshal, police officer, or any agent for any duly incorporated society for the prevention of cruelty to animals, has reason to believe that any person within his jurisdiction is about to violate the provisions of section sixty-nine hundred and fifty- two, of the Revised Statutes, he shall forthwith arrest such person, and take him i 468 Private Corporations in Ohio. Police Powers; Prosecution, etc., §§ 3720-3724. before a magistrate named in section seventy-one hundred and six; upon the proper affidavit being filed, such officer shall hear the witnesses produced, on oath, and if he find the complaint true, order the accused to enter into a recognizance, with sufficient sureties, in a sum not less than ore hundred dollars nor more than five hundred dol- "'' lars, that he will not violate the provisions of said section sixty-nine hundred and fifty-two, within one year thereafter, within this state, and in default of such recog- nizance the officer shall commit the accused to jail, there to remain until such order is complied with, or he is otherwise discharged by due course of law, or until he shall make and subscribe an oath, in the presence of two witnesses, that he will not violate the provisions of said section six thousand nine hundred and fifty-two of the Kevised Statutes of Ohio, nor aid or abet in so doing within said year. Upon conviction of such person for a subsequent violation of the provisions of said section within said year, he shall be fined not less than twenty-five dollars ($25) nor more than five hun- dred dollars ($500), or imprieoned not less than thirty days nor more than ninety days, cr both, in the discretion of the court. (April 14, 1884, 81 v. 181, 182.) § 3720. POLICE POWERS OF OEFICEBS AND AGENTS.— An officer, agent, or member of any such association may interfere to prevent the perpetration of any act of cruelty to animals in his presence, and may use such force as may be necessary to prevent the same, and to that end may summon to his aid any bystanders. (March 89, 1875, 72 v. 129, § 18.) § 3721. INTEKPEETATION OE CERTAIN WORDS. — In this chapter, and iin every law of the state relating to or in any manner affecting animals, the word " animal " shall be held to include every living dumb creature; the words " torture," " torment," and " cruelty," shall be held to include every act, omission, or neglect whereby unnecessary or unjustifiable pain or suffering is caused, permitted, or allowed to continue, when there is a reasonable remedy or relief; and the words "owner" and "person" shall be held to include corporations; and the knowledge and acts of agents and employees of corporations, in regard to animals transported, owned, employed by, or in the custody of a corporation, shall be held to be the act of such corporation. (March 29, 1875, 72 v. 129, § 19.) i I § 3722. MEMBER MAY REQUIRE POLICE OFFICER TO ACT. — A member of any such association may require the sheriff of any county, the constable of any town- ship, the marshal or policeman of any city or village, or the agent of any such asso- ciation, to arrest any person found violating the laws in relation to cruelty to persons or animals, and to take possession of any animal cruelly treated, in their respective counties, cities or villages, and deliver the same to the proper officers of such associa- tions; and for such service, and for all services rendered in carrying out the provi- sions of this chapter, such officers, and the officers and agents of the association, shall be allowed and paid such fees as they are allowed for like services in other cases, which shall be charged as costs, and reimbursed to the association by the person con- victed. (April 14, 1884, 81 v. 181, 183; R. S. 1880; March 29, 1875, 72 v. 129, § 20.) § 3723. A PERSON GUILTY IS LIABLE IN DAMAGES. — A person guilty of cruelty to an animal, the property of another, shall be liable to the owner thereof in damages, in addition to the penalties prescribed by law. (March 29, 1875, 72 •». 129, § 11.) § 3724. CONVICTION OF AGENT NO BAR TO ACTION AGAINST PRINCI- PAL. — The conviction of an agent or employe shall not bar an action for cruelty to animals against an employer for allowing a state of facts to exist which will induce cruelty to animals on the part of such agent or employer. (March 29, 1875, 72 v. 129, § 9.) Humane Societies. 469 Protection, etc., of Animals and Children, §§ 3725-3725-2. § 3725. ANY PERSON MAY PKOTECT AN ANIMAL FEOM NEGLECT.— Whenever it may be necessary, in order to protect any animal from neglect, any per- son may take possession of the same; and whenever an animal is impounded, yarded or confined, and continues without necessary food, water, or proper attention for more than fifteen successive hours, any person may, from time to time, and as often as it may be necessary, enter into and upon any place in which such animal is so im.- pounded, yarded, or confined, and supply it with necessary food or water and atten- tion, so long as it there remains, or m^ay, if necessary or convenient, remove such animal, and shall not be liable to any action for such entry; in all cases the owner or custodian of such animal, if known, shall be immediately notified of such action, by the person taking possession of such animal; if the owner or custodian be unknown, and cannot be ascertained with reasonable effort, such animal shall be held to be an estray, and shall be dealt with as such; the necsssary expense for food and attention given to any animal under the provisions of this section, may be collected of the owner of such animal, and the animal shall not be exempt from levy and sale upon execution issued upon a judgment therefor. (April 14, 1884, 81 v. 181, 183; B. S. 1880; March S9, 1875, 72 v. 129, § 3.) § 3725a. ANIMAL MAY BE ORDEKED KILLED. — Any sheriff, constable, marshal, policeman, or agent, of any society for the prevention of cruelty to animals, may kill, or cause to be killed any animal found neglected or abandoned, and which in the opinion of three reputable citizens, is injured or diseased, past recovery or by p.ge has become useless. (April 14, 1884, 81 v. 181, 183.) Section unconstitutional. This section is unconstitutional, since it provides for the taking of property without due process of law. — Brill v. Ohio Humane Society, 4 C. C: 358 (1890) ; s. c, 2 C. D. 594. Ordinance providing for sale, unconsti- tutional. A city ordinance providing for the sale of dogs found running at large without a license cheek, and which does not give due notice of such sale, is unconstitutional. — Archer v. Baertchi, 8 C. C. 12 (1892) ; s. c, 4 C. D. 416. § 3725-1. Sec. 1. REMOVAL OP CIHILD FROM POSSESSION OP PARENT BY OPPICER OF HUMANE SOCIETY. — Whenever any officer or agent of a society in this state, organized under title 2, chapter 13, of the Revised Statutes, shall deem it for the best interest of any child, either by reason of cruelty inflicted upon said child or by reason of the surroundings of the child, that said child be removed from the pos- session and control of the parents or other person or persons having charge thereof, said officer or agent may take possession of said child summarily; NOTICE. — and shall cause a notice to be personally served upon the person hav- ing control or possession of said child, and upon the parent or parents of said child, if within the state, that the said society will apply to the probate court of the county in which said society is situated, at a time and place named in such notice, for an order as hereinafter set forth. (April 25, 1898, 93 v. 296.) § 3725-2. Sec. 2. ORDER OF PROBATE COURT MAKING GENERAL AGENT OF SOCIETY GUARDIAN OF CHILD. — At the time set forth in said notice, if it shall appear to the satisfaction of the probate judge, that it is for the best interest of said child that possession and control thereof be taken from said parent or other person having control or possession thereof, said probate judge shall make an order conferring upon the general agent of said society the powers of a guardian as to such child; GUARDIAN TO PROVIDE HOME FOR CHILD.— and, as such guardian, said general agent may, with the approval of the probate judge, provide a suitable home for such child until said child reaches the age of majority or until such time as the probate judge may be satisfied that the parent or parents of said child are in a posi- tion to properly provide and care for said child. (April 25, 1898, 93 v. 296.) ; PART XVIII. COLLEGES AND INSTITUTIONS OF LEARNING. § 3726. Certain corporations may appoint a faculty and confer degrees. § 3727. May hold donated property in trust. § 3728. Who constitute the faculty ; its powers. § 3729. May teach mechanics and agriculture. § 3730. May change stock into scholarships. § 3731. Location may Be changed, and how. § 3732. When and how college endowment fund diverted. § 3733. How vacancies in board filled in certain cases. § 3734. Certain corporations may increase their property; bonds. § 3735. Statement to be made and filed. § 3736. How certain boards may be constituted and governed. § 3737. Trustees to be divided into classes. § 3738. Terms of office of trustees; how vacancies filled. § 3739. When board to be enlarged. § 3740. When the number in a class is to be reduced. § 3741. A conference may become a patron by consent of other bodies. § 3742. Patronizing bodies may appoint visitors. § 3743. When the right of representation shall cease. § 3744. WTiat action the board must first take. § 3745. Quorum; how constituted. § 3746. Certain corporations may have benefit of subsequent provisions. § 3747. Alumni may elect trustees and appoint visitors. § 3748. Conduct of election. § 3749. Eeturns of election, and certificates. § 3750. Endowment fund corporations. § 3751. How certain board may be constituted and governed. § 3751a. Increase in number of trustees of certain corporations. § 3751b. Incorporation of colleges under ecclesiastical patronage; what contain. § 3751c. Existing corporations may avail themselves of provisions of act, ha acceptance of provisio.a to be filed with secretary of state. § 3752. Classes and election of trustees; president ex officio a vacancies; increase in board. § 3753. Assessments may be made against stockholders. § 3754. Meeting of stockholders, and notice thereof. § 3755. Meeting may fix the amount of assessment. § 3756. How much may be assessed, and collection thereof. § 3757. The board of military academies ; how constituted, etc. § 3758. Board of visitors; how constituted. § 3759. Duties of board of visitors. § 3760. How the term of office of directors and trustees may be fixed. § 3761. Certain corporations may change location. § 3762. Sale and distribution of vhe property .of certain corporations. § 3762a. Certain colleges, whose articles of incorporation are not on file in the office of the secretary of state, may file same there and amend. § 3762b. Colleges may change name and purpose, when; procedure; fees. [470] articles shall Copy of member of board; term; Colleges and Institutions of Learning. 471 Faculty — Degrees — Property, §§.3726, 3727. § 3763. Restrictions under which medical colleges and teachers may receive bodies for dis- section. Bodies to be delivered to claimant. Interment of body after examina- tion or dissection. Notification to relatives of deceased person. Penalty for refusal to deliver body or acceptance of consideration for same. Body of stranger or traveler. Unlawful to have unauthorized body in possession; penalty. ? 3764. Penalty for having unlawful possession of corpse. 5 3767. Organic rules which may be prescribed in certain articles of incorporation. J 3768. May add to the objects of the corporation; acceptance of statutory provisions. S 3768-1. Authorizing certain mechanics' institutes to borrow money; liability of directors and trustees. § 3768-2. Directors not personally liable. § 3769. Accounts of receipts and disbursements. § 3770. Trustees ineligible to other office. ^ 3771. Attorney-general may, by action, enforce duties of officers. ' § 3771a. How number of trustees of certain colleges increased. ! An Act. To provide for regulation and government of Chautauqua assemblies. ' An Act. To provide for administration of educational or charitable institutions in certain! cases. I § 3726. CERTAIN COEPOEATIONS MAY APPOINT A FACULTY AND CON- PEB DEG-EEES. — The trustees of a college, university, or other institution of learn- ing incorporated for the. purpose of promoting education, religion, morality, or the fine arts, which has acquired real or personal property of the value of five thousand dollars, and which has filed in the office of the secretary of state a schedule of the kind and value of such property, verified by the oaths of the trustees, may appoint a president, professors, and tutors, and any other necessary agents and officers, and fix the compensation of each, and may enact such by-laws, not inconsistent with the laws of this state or of the United States, for the government of the institution, and for conducting the affairs of the corporation, as they may deem necessary; and may, on the recommendation of the faculty, confer all such degrees and honors as are con- ferred by colleges and universities of the United States, and such others having reference to the course of study, and the accomplishments of the student, as they may deem proper. (April 9, 1852, 50 v. 128, § 1; March 11, 1853, 51 v. 403, §§ 2 3; S. & C. 266; S. & C. 270.) Cited, State ex rel. v. Medical College, 60 Oh. St. 122 (1899). Conferring degrees ivithout merit, grounds for ousting corporation. When the trustees of an educational institu- tion sign diplomas in blank, and leave them within the control of one of its officers, who sells them, and thus confers degrees without regard to merit, there is such misuser as re- quires the dissolution of the corporation. — State ex rel. v. Mt. Hope College Co., 44 W. L. B. 339 (1900). § 3727. MAY HOLD DONATED PROPERTY IN TRUST.— Any university, col- lege, or academy, or the trustees thereof, may hold in trust any property devised, bequeathed, or donated to such institution, upon any specific trust consistent with the objects of the corporation. (April 9, 1852, 50 v. 128, § 5; S. & C. 267.) If no liability incurred, not enforce- able. If no liability is incurred on the faith of a gratuitous subscription, it cannot be enforced. —Sutton, Admr., v. Trustees, 7 C. C. 343 (1893); s. c, 4 C. D. 627. If liability incurred, subscription en- forceable. Subscriptions promising to pay money for the endowment of an educational institution are enforceable where work was done and ex- penditures made in reliance upon such prom- ises. — ■ Ohio Weslevan College v. Higgins, Exr., 16 Oh. St. 20 (186.5); Sturges et al. v. Colby et al., 3 W. L. B. 643 (1878) : Irwin, Admr., v. Webster et al., 7 C. C. 269 (1893); s. c, 4 C. D. 590; Dun-el v. Belding, 9 C. C. 74 (1894) ; s. c, 4 C. D. 263, What constitutes new liability. The creation of a fund with which to pay an existing indebtedness is not a consider- ation for a promise to contribute to such fund.— Johnson v. University, 41 Oh. St. 527 (1885). 472 Private Corporations in Ohio. Paculty — Curriculum — Scholarships — Location, §§ 3728-3731. University receiving no state aid is a private corporation. University that has received its charter from the state, and is exempt from paying taxes, but has received no other benefits from the state, is a private corporation. The charity it administers may be public, but the corporation is private. — Koblitz v. Western Reserve University et al., 21 C. C. 144 (1901). § 3728. WHO CONSTITUTES THE FACULTY; ITS POWERS. — The president and professors shall constitute the faculty of any incorporated literary college or uni- versity, and may enforce the rules and regulations enacted by its trustees for the government and discipline of the students, and suspend and expel offenders, as may be deemed necessary. (April 9, 1852, 50 v. 128, § 6; S. & C. 267.) Right of state to exercise visitorial poTirer. Where the corporation is private, and is not administering funds contributed to it by the state, the state will not exercise visitorial power over its domestic affairs, and will not interfere with its management unless there has been unjust and oppressive treatment of its students, or there has been a breach of trust by the managing officers. — Koblitz v. Western Reserve University et al., 21 C. C. 144 (1901). Dismissal of student for violation of rules. A student, though paying a tuition fee, as- sumes the performance of certain obligations, and the lailure to perform the same may be of such a nature that the university will be justified in dismissing him. — Koblitz v. West- em Reserve University et al., Zi C. C. 144 (1901). Disciplining student; ivhat sufficient^ hearing. In administering the discipline of the insti- tution, the authorities should afford a fair opportunity of presenting evidence as to inno- cence, but are not under obligation to afford all the formalities of a court of justice. — Koblitz V. Western Reserve University et al., 21 C. C. 144 (1901). Poorer of faculty to espel. Where a student has been guilty of various breaches of duty, and the faculty have af- forded him opportunity to make explanation and present evidence of his innocence, and where the faculty, after examination of his conduct, have found his acts to be injurious to the university, it is justified in expelling him. — Koblitz v. Western Reserve University et al., 21 C. C. 144 (1901). See note to same case under preceding section. § 3729. MAY TEACH MECHANICS AND AGBICULTURE.— Any incorporated university, college, or academy may connect therewith, to be used as a part of its course of education, any mechanical shops and machinery, or lands for agricultural purposes not exceeding three hundred acres, to which may be attached all necessary buildings for carrying on the mechanical or agricultural operations of such institu- tion. (April 9, 1852, 50 v. 128, § 8; S. & C. 267.) 3730. MAY CHANGE STOCK INTO SCHOLARSHIPS.— Any company formed in pursuance of this title, or which now exists by virtue of any special act of incor- poration, the property of which is held as stock, and not derived by donation, gift, devise, or gratuitous subscription, may change its capital stock into scholarships, when it becomes necessary for the purpose of carrying out the object for which it was formed, in the manner provided in section thirty-two hundred and sixty-two. (April 9, 1852, 50 V. 128, §§ 9, 10; S. & C. 268.) May issue scholarships. A college corporation has the power in re- ceive a subscription for which the donor is to receive instruction for one pupil perpetually free of tuition. — College v. Gary, 35 Oh. St. 648 (1880). § 3731. LOCATION MAY BE CHANGED, AND HOW. — A college, university, or other institution of learning, now existing by virtue of any act of incorporation, or that may hereafter become incorporated for any of the purposes specified in this chapter, may, if three-fourths of the trustees or directors thereof deem the same proper, or if the institution is owned in shares, or by stock subscribed or taken, by a vote of the holders of three-fourths of the stock or shares, change the loqation of such institution, convey its real estate, and transfer the effects thereof, and invest the same Colleges and Institutions of Learning. 473 Endowments, etc. — Trustee — Statements, etc., §§ 3732-3735. at the place to which, such institution may b'6 removed; but no removal shall be ordered, and no vote taken thereon, until after publication in the manner provided in the last section, in which notice shall be fully set forth the place to which it is proposed to remove such institution, and, in case of removal, a copy of the proceedings of such meeting shall be filed with the secretary of state. (April 29, 1854, 52 v. 77, § 12; S. & C. 268.) § 3732. WHEN AND HOW COLLEGE ENDOWMENT FUND DIVERTED. — The trustees of a corporation incorporated for the purpose of creating, holding, and man- aging a. college endowment fund, the articles of incorporation of which provide that the fund may be applied to any object not inconsistent with the purposes of education different from that particularly specified therein, may apply to the court of common pleas in the county where the corporation is located for permission to make such change, designating particularly the purposes to which it is proposed to apply the fund; and the court, on being satisfied that such change is not inconsistent with the object of the original creation and institution of the fund, shall authorize and sanc- tion the change. (March 12, 1853, 51 v. 393, § 2; S. & C. 269.) The property of a private eleemosynary corporation, although charged with the main- tenance of a college or other " public charity " is private property,' within the meaning and protection of section 19, article 1 of the con- stitution.— Ohio ex rel. v. Xeflf, 52 Oh. St. 375 (1895). § 3733. HOW VACANCIES IN BOAEDS FILLED IN CERTAIN CASES. — When- ever there occurs a. vacancy, in whole or in part, in the board of trustees of an incor- porated college, seminary, or academy, by reason of an amendment of the charter in such corporation, or from any other cause, and there is no provision of law for filling such vacancy, the governor shall, within three months after receiving information thereof, appoint the required number of trustees, one-third thereof to serve for one year, one-third to serve for two years, and one-third for three years. (March 1, 1878, 75 V. 25, § 2.) § 3734. CERTAIN CORPORATIONS MAY INCREASE THEIR PROPERTY; BONDS. — A college, university, academy, seminary, or other institution devoted to the promotion of education, now existing by virtue of any special act of incorporation, or organized under the provisions of any law, whose property is derived and held by donation, gift, purchase, devise, or gratuitous subscription, and the amount of which, or the income arising therefrom, is limited by such special act, or by the articles of association adopted by such institution, may receive, acquire, possess and hold here- after any amount of property, real, personal or mixed, which its board of directors or trustees shall deem it advisable for the institution to accept, and may, by its trustees, sell, dispose of and convey the same, but such property shall not be diverted from the express will of the donor, devisor or subscriber. The board of trustees of any such college, university, academy, seminary, or other institution devoted to the promotion of education, in anticipation of donations to be received and collections to be made, may, for the purpose of constructing, enlarging or adding to any college buildings or improvements, borrow such sum of money as they may determine necessary for such purpose, and may issue bonds therefor and secure the same by a mortgage upon the property upon which such improvement is to be made, provided such property is not held by them under some specific trust. (March 8, 1893, 90 v. 71; April 9, 1856, 53 v. 170, § 1; S. & C. 368.) § 3735. STATEMENT TO BE MADE AND FILED.— Before any such institution shall be authorized to acquire and hold such additional property, the trustees thereof, at a regular meeting of their board, or at a. special meeting called for that purpose, shall from time to time, make and sign a statement specifying the amount of such 474 Private Corporations in Ohio. Trustees, Board of, etc., §§ 3736-3739. additional property which they seek to acquire and hold, and shall set forth therein the purposes to which it is to he devoted, which statement shall be entered at large upon the record book of the trustees and be filed in the office of the secretary of state. (March 8, 1893, 90 v. 72; April 9, 1856, 53 v. 170, § 2; S. & C. 368.) § 3736. HOW CERTAIN BOARDS MAY BE CONSTITUTED AND GOVERNED. — The board of trustees of any university or college heretofore incorporated, and now under the patronage of four or more conferences or other religious bodies of any religious denomination, may accept the provisions of this and the nine succeeding sections, by resolution adopted at any regular meeting of the board, and entered upon the record of its proceedings; and after such acceptance the board shall in all respects be organized, constituted, regulated, and perpetuated, pursuant to and under said provisions; but no right acquired by any such board, or any such university or col- lege, under its charter, or any law of this state, shall in any way, be affected by said provisions. (May 13, 1868, 65 v. 188, § 1; S. & C. 106.) § 3737. TRUSTEES TO BE DIVIDED INTO CLASSES. — At a meeting of such board held after a vacancy occurs therein it shall fill such vacancy, or if more than one vacancy has occurred, then one of them, by appointing the president of the university or college a trustee, and the president of such university or college shall, ex officio, be a trustee perpetually thereafter; the board shall also, at such meeting, divide its number, excluding the said president, and including all vacancies except the one he is so appointed to fill, into classes, corresponding in number to the number of con- ferences or other religious bodies at the time patronizing such university or college, such classes to have in each an equal number of trustees, as near as may be; and the board shall assign one of such classes to each of the conferences or other religious bodies, and thereafter each may fill any and all vacancies in the class so assigned to it. (May 13, 1868, 65 v. 188, § 2; S. & C. 106.) I §3738. THE TERM OE OFFICE OF TRUSTEES; HOW VACANCIES PILLED.— When the classes of trustees are formed, as provided in the preceding section, the term of office of one of the trustees in each of the classes, to be selected by lot in open session of the board of trustees, shall expire each year, and the persons thereafter elected as trustees shall act as such for a, term of years equal in number to the num- ber of trustees in any class, except as hereinafter provided; but the term of office of a trustee shall not expire during any meeting of the board which does not continue for more than two weeks; and vacancies which occur in any class of trustees other- wise than by the expiration of term of office shallj be filled only for the remainder of the term. (May 13, 1868, 65 v. 188, § 3; April 24, 1873, 70 v. 157, § 1; S. & C. 107.) § 3739. WHEN THE BOARD IS TO BE ENLARGED. — If the number of the conferences or other religious bodies patronizing any such university or college, the board of trustees of which has been divided into classes as hereinbefore provided, be increased to not exceeding six, the board of trustees shall be enlarged to the extent of one additional class of trustees for each of such additional conferences or other religious bodies, such additional classes to have in each a number of trustees equal to the number in any one of the former classes; and each of such additional conferences or other religious bodies may elect, as members of the board, the number in its class, one for one year, one for two years and one for three years, and so on to the extent of the number; and each of such additional conferences or other religious bodies may fill any vacancy in its class. And such board of trustees composed according to the foregoing provisions and the provisions of section thirty-seven hundred and forty- seven of this chapter, without regard to the number of members so composing it, may increase its own numbers by the election of trustees at large, not exceeding the num- ber of conferences or other religious bodies cooperating with or patronizing such uni- Colleges and Institutions of Learning. 4-7'5 Trustees, Board of, etc., §§ 3740-3746. versity or college, and may divide such trustees at large into classes, at its discretion. (March 17, 1892, 89 v. 119; May 13, 1868, 65 v. 188, § 4; S. & S. 107.) § 3740. WHEN THE NUMBER IN A CLASS IS TO BE REDUCED. — If the number of such patronizing conferences or other religious bodies at any time exceed six, the representation of each shall be reduced by lot, in open session of the board of trustees, to a class of three trustees, if they exceed that number, who shall there- after be elected to serve as trustees for the term of six years, and in that case the term of office of one trustee in each class shall expire every second year. (May 13, 1868, 65 V. 188, § 5; S. & S. 107.) § 3741. A CONFERENCE MAY BECOME A PATRON BY CONSENT OF OTHER BODIES. — Any conference or other religious body, not patronizing any particular university or college, may become such patronizing conference or religious body, by and with the consent of the conference or other religious bodies at the time patroniz- ing such university or college. (May 13, 1868, 65 v. 183, § 6; S. & S. 107.) § 3742. PATRONIZING BODIES MAY APPOINT VISITORS. — Each conference or other religious body patronizing any particular university or college may, annu- ally, appoint two visitors, and the board of trustees of a college or university may provide, at the time of its organization, by resolution adopted and entered on its records, for the appointment of two visitors by each conference or other religious body patronizing such college or university; and such visitors shall attend the meet- ings of the board of trustees of such university or college, and, with the trustees, con- stitute a joint board for the appointment and removal of all officers, professors, and instructors of the university or college. (April 8, 1876, 73 v. 163, § 7; S. & S. ICY.) § 3743. WHEN THE RIGHT OP REPRESENTATION SHALL CEASE. — If a conference or other religious body patronizing any university or college, and having a representation in its board of trustees, cease to exist, or cease to patronize such uni- versity or college, the right of such conference or other religious body to such repre- sentation shall cease, and its board of trustees shall be thereby and to that extent reduced in numbers. (May 13, 1868, 65 v. 188, § 8; April 8, 1876, 73 v. 163; S. & S. 107.) § 3744. WHAT ACTION THE BOARD MUST FIRST TAKE. — Before a confer- ence or other religious body not represented in the board of trustees of any university or. college shall be entitled to be represented therein, and before any conference or other religious body represented therein shall be deprived of such representation as provided in the preceding section, the board shall declare, and cause to be entered in the record of its proceedings, that the conditions and contingencies hereinbefore pro- vided for in that behalf have taken place. (May 13, 1868, 65 v. 188, § 9; S. & S. 107.) § 3745. QUORUM: HOW CONSTITUTED. — Eleven trustees shall constitute a quorum of the board of any such university or college, whatever the number of trus- tees constituting the board is or may become, if the number is more than twenty; and if the number is twenty or less, a majority thereof shall constitute a quorum. (May 13, 1868, 65 v. 188, § 10; S. & S. 108.) § 3746. CERTAIN CORPORATIONS MAY HAVE BENEFIT OF SUBSEQUENT PROVISIONS. — The board of trustees of any university or college which has accepted or hereafter accepts the provisions of the ten preceding sections, may accept the pro- visions of the three succeeding sections by resolution adopted at any regular meeting of the board, and entered upon the record of its proceedings, and thereafter the board, and the university or college, shall be subject to (the) provisions thereof. (April 12, 1872, 69 v. 71, § 1.) 476 Private Corporations in Ohio. Trustees, Board of — Endowment Pund Companies, §§ 3747-3750. § 3747. ALUMNI MAY ELECT TRUSTEES AND APPOINT VISITOKS. — After such acceptance by the board of any university or college, the alumni thereof (com- posing the alumnal association thereof) may elect as members of the board of trustees of such college or university, members of such alumnal association, in numbers equal- ing the numbers of the conferences cooperating with or patronizing such university or college, and may divide such alumnal trustees into classes, and perpetuate the samej and such alumni may, at the same time, elect as visitors members of their association equaling in numbers one^half of the numbers of the conferences or other religious bodies cooperating with or patronizing such university or college, and such Visitors shall have the same powers and duties as visitors appointed by any conference or other religious body aforesaid; provided, that when women are members of the alumnal association so electing, they shall be eligible as visitors; provided, further, that the board of trustees shall be judge of the validity of the election and the returns thereof, of trustees and visitors elected under this section. (March 17, 1892, 89 v. 120; 81 V. 174; R. S. 1880; April 12, 1872, 69 v. 71, § 2; May 13, 1879, 76 v. 87, § 1.) § 3748. CONDUCT OF ELECTION. — The election of trustees and visitors by the alumni shall be by ballot, and held each year, beginning the year after such accept- ance, on the secular day next before the day of commencement of such university or college, at such place in n, building on its grounds as may designated by the president of the alumnal association by written notice posted the day Before the election in at least two public places on such grounds; and the polls shall be opened at the hour named in said notice, which shall not be later than three o'clock p. m., and shall be kept open two hours thereafter. The election shall be conducted by three judges and two clerks, who shall be members of the association and be chosen by the members present at the place of voting at the time for opening the polls, and they chall certify to the board of trustees the result of such election, with a list of the members voting thereat; each ballot shall contain the names of the persons voted for, and the office which each is to fill and a designation of the term for which he is to serve. At such election all members of the alumnal association of such university or college shall be entitled to vote, and members not in attendance may exercise their right by sending ballots conformable to the foregoing provisions, with their names thereon indorsed, and addressed under seal to the president of such association. (March 17, 1898, 89 V. 120; April 12, 1872, 69 v. 71, § 3.) § 3749. RETURNS OF THE ELECTION, AND CERTIFICATES. — After the polls are closed the result shall be ascertained and certified to by the judges and clerks, and the person or persons, not exceeding the number to be elected as trustees, having received the highest number of votes for trustee or trustees, shall be declared elected as trustee or trustees as designated on the ballot, and the two persons who receive the highest number of votes for visitors shall be declared elected, but their term of office shall not begin until after the final adjournment of the regular meeting of the trustees for that year; if any two or more persons receive an equal number of votes for the same office of trustee or visitor, one of them, as may be determined by lot by the judges, in the presence of all the electors who may wish to be present, shall be the trustee or visitor, and shall be so declared; and duplicate certificates of elec- tion shall be signed by the judges and clerks, and delivered by them, one to each of the persons elected, and the other, with the poll-books duly certified by the judges and clerks, to the secretary of the board of trustees of the university or college, the next day after the election, which certificate he shall enter of record in the book containing the proceedings of the board of trustees. (April 12, 1872, 69 v. 71, § 3.) § 3750. ENDOWMENT FUND CORPORATIONS. — The trustees of a corpora- tion incorporated for the purpose of creating a fund, the income of which is to bo applied to the promotion of education, may receive subcriptions for membership in Colleges and Institutions of Learning. 477 Trustees, Board of — Institutions Under Patronage, §§ 375 1-375 lb. the corporation, and they, or a majority of them, by giving ten days' notice, by publi- cation in the county where the corporation is located, may call a meeting of members to adopt by-laws, and elect not more than nine directors; each member shall have a vote for every amount by him subscribed equal to that in the articles of incorporation specified as necessary for membership, which may be cast in person or by proxy, but at no subsequent meeting may a member vote for or be eligible as a director who is in arrears to the corporation; and the trustees shall control the funds and disburse the income of the corporation as may be provided by its by-laws. (April 27, 1872, 69 V. 173, §§ 1, 2, 3, 4, 5.) § 3751. HOW CEBTAIN BOARD MAY BE CONSTITUTED AND GOVERNED.— The board of trustees of any university, college or other institution of learning, incor- porated, and acting under the patronage of one annual conference or other religious body of any religious denomination, may accept the provisions of this and the suc- ceeding section, by resolution adopted at any meeting of the board, and entered upon the record or journal of its proceedings; and after such acceptance the board shall be organized, constituted, regulated, and perpetuated as therein provided; but no right acquired by any such board, university, or other institution of learning, under its charter, or any law of this state, shall in any way be impaired or affected thereby. (April 27, 1872, 69 v. 180, § 1.) § 3751a. INCREASE IN NUMBERS OF TRUSTEES OE CERTAIN CORPORA- TIONS. — The board of trustees of any university or college heretofore incorporated, and now under the patronage of one annual conference or synod or other religious body of any religious denomination, may increase the number of its trustees, not exceeding six; said additional trustees to be nominated by the collegiate alumni of such university or college from the collegiate alumni of three years' standing, for appointment or election by such patronizing conference or synod, under such regula- tions as may be prescribed by such board of trustees; provided, that the board of trustees of such university or college shall so determine to increase the number of its trustees and adopt such regulations for their nomination, by resolution adopted at any regular meeting of such board and duly entered on the record of its proceedings; and, provided further, that such patronizing or governing conference or synod shall consent to such increase of said board of trustees and the rules and regulations for the nomination of the same. And after such board of trustees is so increased by the election of any additional trustees, not exceeding six, the board of trustees shall in all respects be organized, constituted, regulated and perpetuated pursuant to and under the provisions of the charter and said provisions; but no rights acquired by any such board or any such university or college, under its charter or any law of this state, shall in any way be affected or impaired thereby. (April 19, 1894, 91 v. 155.) § 3751b. INCORPORATION OF COLLEGES UNDER ECCLESIAS-TICAIi PATRONAGE; WHAT ARTICLES SHALL CONTAIN. — A corporation may be formed for the promotion of academic, collegiate or university education, under reli- gious influences, and is hereby authorized and empowered to set forth in its articles, or certificate of corporation, as a part of the same, the name of the religious sect, association or denomination with which it proposes to be connected, and it is further authorized and empowered to grant any ecclesiastical body of such religious sect, association or denomination, whether the same be a conference, association, presby- tery, synod, general assembly, convocation or otherwise, the right to appoint its trustees or directors, or any number thereof; and it is further authorized and empow- ered to set forth in its articles or certificate of corporation, such other rights as to the administration of the purpose for which it is organized, and not inconsistent with the laws of this state or of the United States, as said incorporation may desire to confer upon said ecclesiastical body of such religious sect, association or denomination and 478 Private Corporations in Ohio. Institutions Under Patronage, etc. — Trustees — Assessment, §§ 3751c-3753. the said ecclesiastical body of such religious sect, association or denomination shall possess and exercise all rights and powers so set forth in said articles, or certificate of corporation. (April 16, 1900, 94 v. 331.) § 3751c. EXISTING COBPOKATIONS MAY AVAIL THEMSELVES OF PKE- CEDING SECTIOIT; HOW. — Any corporation formed for the promotion of academic, collegiate or university education, under religious influences, which has been incor- porated under the laws of this state, whether by special act of the legislature or other- wise, may avail itself of the provisions of the preceding section, as a part of its articles or certificate of incorporation, and may confer on any ecclesiastical body of such religious sect, association or denomination, as it is now, or proposes to be con- nected with, whether the same be a conference, association, presbytery, synod, gen- eral assembly, convocation or otherwise, any or all of the rights, powers or privileges provided by the preceding section to be conferred on corporations hereafter organized, and may accept the provisions of such preceding section by a vote of the majority of the trustees of such corporation at any regular meeting; and when so accepted, a copy of said acceptance, certified by the secretary or clerk of its board of trustees or direct- ors, shall be sent to the ecclesiastical body with which it is now or proposes to be connected; if such ecclesiastical body agree to accept the powers proposed to be con- ferred upon it, it shall certify its approval upon such certified copy sent to it, and the same shall thereupon be filed in the office of the secretary of state; and, when so filed, the same shall become and be a part of the charter of said corporation; and said ecclesiastical body of such religious sect, association or denomination, whether the same be a conference, association, presbytery, synod, general assembly, convocation or otherwise, shall possess and exercise all the rights and powers so set forth in said articles or certificate of corporation. (April 16, 1900, 94 v. 331.) § 3752. CLASSES ADD ELECTION OP TRTTSTEES; PRESIDENT EX-OFFICIO A MEMBER OP BOARD; TERM; VACANCIES; INCREASE IN BO ARD. — After such acceptance the board shall certify the same to the patronizing conference or other religious body having the right to elect or appoint trustees of such university or other institution of learning, at the next meeting of such conference or other religious body; and thereafter the board shall consist of twenty-one trustees elected or appointed, and the president of such university or other institution of learning, who shall be ex-officio a member of the board; such elected or appointed trustees shall be divided into three classes of seven members each. At the first election or appointment after such accept- ance, one of such classes shall be elected or appointed for one year, one for two years and one for three years, and in all subsequent elections or appointments each of the classes of trustees shall be elected or appointed for three years, but no term of office of any such trustee shall expire during any meeting of the board which does not con- tinue more than two weeks. Ten members of the board shall constitute a quorum, and all vacancies which occur in any class of trustees otherwise than by expiration of the term of office shall be filled only for the remainder of the term; provided, that any such university or other institution of learning having heretofore accepted the provisions of original sections three thousand seven hundred and fifty-one and three thousand seven hundred and fifty-two may increase its board of trustees by electing or appointing two additional members in each of the classes of trustees herein pro- vided for. (March 30, 1888. 85 v. 140. 141; R. S. 1880; April 27, 1872, 69 v. 180, §§ 2, 3; 70 v. 157, § l.J § 3753. ASSESSMENTS MAY BE MADE AGAINST STOCKHOLDERS. — The proportion that each stockholder of any college, academy, university, seminary, or other institution for the promotion of education, shall be required to pay to meet the debts and liabilities of the corporation, may be determined and collected in the man- Colleges and Institutions of Learning. 479 Assessments — Military Academies, etc., §§ 3754-3760. ner provided by the three succeeding sections. (February 20, 1861, 58 v. 20, § Ij S. & S. 108.) I § 3754. MEETING OP THE STOCKHOLDERS, AND NOTICE THEBEOE. — The trustees of any such corporation desiring to avail themselves of such provisions shall call a meeting of the stockholders .for the purpose of determining what amount of the indebtedness of the corporation shall be paid by each stockholder; and they shall give thirty days' notice to the stockholders, in writing, or by publication in some newspaper of general circulation in the county where the corporation is located, of the time, place, and purpose of the meeting, at which the trustees shall submit a detailed statement showing the assets and indebtedness of the corporation. (February 20, 1861, 58 V. 20, §§ 2, 3; S. & S. 108.) § 3755. MEETING MAY FIX AMOUNT OF ASSESSMENT. — A majority in interest of the stockholders present at such meeting may determine what amount of the indebtedness of the corporation shall be paid by each stockholder, and fix the time or times, and the mode, for the payment of the amount of money assessed against each stockholder; but these provisions shall not interfere with or abridge the right of any creditor of the corporation to institute any proceedings authorized by law to enforce the liability of stockholders. (February 20, 1861, 58 v. 20, § 4; S. & S. 108.) § 3756. HOW MUCH MAY BE ASSESSED, AND COLLECTION THEREOF. — The assessment shall be pro rata upon the stock subscribed or otherwise acquired by each stockholder, and in no case shall exceed the amount for which each stockholder is or may be liable by law; and a. stockholder who fails to pay, as required by the assessment, the amount so assessed against him, shall be liable in a civil action, to be brought in the name of the corporation, for the recovery thereof, as in other cases of indebtedness. (February 20, 1861, 58 v. 20, §§ 5, 6; S. & S. 108, 109.) § 3757. THE BOARD OF MILITARY ACADEMIES; HOW CONSTITUTED, ETC. — The academic board of an institution incorporated for military and poly- technical education shall consist of the superintendent of the institution, the com- mandant of cadets, and the professors, and may make and enforce rules and regulations for the government of cadets; but such rules and regulations must be first submitted to and approved by the governor of the state. (April 16, 1867, 64 v. 239, §§ 1, 2; S. & S. 109.) § 3758. BOARD OF VISITORS: HOW CONSTITUTED.— The board of visitors of such institution shall consist of the governor, who shall be ex-officio a member and the president of the board, of two other persons to be named by the governor, and such other persons as the superintendent of the institution may appoint. (April 16, 1867, 64 V. 239, § 3; S. & S. 110.) § 3759. DUTIES OF BOARD OF VISITORS. — The board of visitors shall meet annually at the institution, on the first day of the annual commencement exercises, and examine into the condition of the classes, quarters, and commons, and the disci- pline, drill, records of standing in study, and conduct of the cadets, and shall report on the same to the legislature at its next annual session; but the board of visitors, or any member thereof, may visit and inspect the institution at any time. (April 16, 1867, 64 V. 239, § 4; S. & S. 110.) § 3760. HOW THE TERM OF OFFICE OF DIRECTORS OR TRUSTEES MAY BE FIXED. — At a regular meeting for the election of directors or trustees of any college or other institution of learning, the authorized voters may determine, by vote, whether the election of directors or trustees shall be held annually, if the term of 480 Private Corporations in Ohio. Location — Sale of Property — Articles, Filing, etc., §§ 3761-3762a. their election is for a longer period than one year, and also what proportion of the entire board shall be elected annually; at the first election held under the provisions of this section the voters shall designate upon their ballots who shall serve for one year, who for two years, and who for three years; and vacancies caused by expira- tion of term of office shall be filled by election annually thereafter. (April 11, 1873, 70 V. 125, § 1.) § 3761. CERTAIN CORPORATIONS MAY CHANGE LOCATION. — The trustees of colleges and other institutions of learning not endowed by voluntary contributions, which have been established under special acts of incorporation, and which by the provisions of such acts are located at particular places, may change the location thereof to such other places as they may deem proper, and erect and maintain acade- mies and other schools auxiliary thereto. (April 11, 1873, 70 v. 248, § 1.) i 3762. SALE AND DISTRIBUTION OF THE PROPERTY OF CERTAIN COR- PORATIONS. — The trustees of any university, college, or other institution of learn- ing, incorporated by the authority of this state under special charter, owned in shares or stock subscribed or taken, may dispose of its property at public sale, upon such terms as to payment as the stockholders thereof, by a vote of three-fourths of the shares or stock of the institution, may direct, after giving public notice of the same, by publication, for six consecutive weeks in some newspaper published in the county where the institution is located, if one is published therein, and if not, then in some newspaper published in this state, and of general circulation in such county, which notice shall contain a. full statement of the' terms, time, and place of sale, and the action of the trustees as aforesaid; and the trustees may close up the corporate exist- ence of such institution, and make an equitable division and distribution of the pro- ceeds of the sale among all the holders of shares or stock, after the pajrment of the just debts of the corporation. (March 22, 1870, 67 v. 24, § 1.) § 3762a. CERTAIN COLLE&ES, WHOSE ARTICLES OF INCORPORATION ARE NOT ON FILE IN THE OFFICE OF THE SECRETARY OF STATE, MAY FILE SAME THERE AND AMEND. — The trustees of any university, college or institu- tion of learning, incorporated by the authority of this state, or under the general cor- poration laws thereof, owned in shares of stock subscribed and paid up in full, by a majority of the owners of such stock, for the sole purpose of promoting education, religion and morality, or the fine arts, exclusively among males or females, may, on the written petition of the owners of a majority of such stock filed before them, or on the vote of the owners of the majority of such shares of paid up stock at any gen- eral meeting of the stockholders called for such purpose, after thirty days' notice published in some newspaper published and of general circulation in the county, by the board of trustees, may change the name and enlarge the purposes and objects of any such university, college or institutions, by amendments to its charter, approved by the owners of the majority of such stock for the change of the name and the enlargement of the purpose and object of such university, college or institution of learning, so that all the educational rights and privileges thereof may be bestowed in the co-equal and co-ordinate education of both sexes. When such amendment is adopted and the original articles of incorporation of said corporation have not been filed and recorded in the office of the secretary of state, a copy of such amendment and a copy of the original articles of incorporation of said corporation, with a cer- tificate to each of them thereto affixed, signed by the president and secretary of said corporation, and sealed with the corporate seal, if any there be, stating the fact and date of the adoption of such amendment, and that such copy of said amendment, and that such copy of said original articles of incorporation of said corporation are and is a true copy of the originals, shall be recorded in the office of the secretary of state, and when so recorded, and not until then, said amendment shall become and be in Colleges and Institutions of Learning. 481 Name and Purposes — Medical CoUeg'es, Bodies for, §§ 3763b, 3763. law the sole articles of incoi-poration of said corporation; and all the property, real and personal, and the title thereunto, and all the rights and credits, shares of stock, and rights of stockholders, corporate franchises, and all endowment fund or funds, or gift or bequest, or legacies or mortgage securities and promissory notes, and rights of every kind belonging to, vested in or claimed, or possessed by the said original corporation, shall by said amendment pass to, be assigned and transferred and vested in and held, enjoyed and exercised by the said corporation named, created and organ- ized by said amendment for the promotion of all the objects and purposes of its cre- ation and organization. For recording such amendments and copies of such original articles of incorporation, and for furnishing a certified copy or copies thereof, the sec- retary of state shall receive a fee of twenty cents per hundred words, to be in no case less than five dollars. (April 14, 1888, 85 v. 270.) § 3762b. COLLEGES MAY CHANGE NAME AND PURPOSE, WHEN; PBO- CEDTJIIE; FEES. — That the board of trustees of any university, college or institu- tion of learning, incorporated by the authority of this state, or under the general ' corporation laws thereof, for the sole purpose of promoting education, religion andj morality, or the fine arts, niay, at any regular or special meeting of such board ot' trustees, called for such purpose, after thirty days' actual notice to each and all of such trustees, change the name and enlarge the purposes and objects of any such uni- versity, college or institution of learning, by amendment to its charter, approved by a majority of such board of trustees at such regular or special meeting, so called and so notified, for the change of such name and the enlargement of the purposes and objects of such university, college or institution of learning. When such amendment is so adopted by the board of trustees of any university, college or institution of learning, already incorporated by the authority of this state, or under the general corporation laws thereof, a copy thereof, with a. certificate thereto affixed, signed by the president and secretary of s'uch board of trustees, and sealed with the corporate seal, if any there be, stating the fact and date of such amendment, and that such copy is a true copy of the original amendment, shall be filed and recorded in the office of the secretary of state, and when so filed and recorded, and not until then, said amend- m.ent shall become and be in law an integral part of the articles of incorporation of said corporation, and all the property, real and personal, the title thereto, and all the rights and credits, corporate powers and franchises, and all endowment fund or funds, gifts and bequests, legacies, mortgage securities and promissory notes, and all powers, rights and privileges of every kind belonging to, vested in, claimed or possessed by said original corporation shall, by said amendment, pass to, be assigned, transferred and vested in, and held, enjoyed and exercised by the said corporation, named, cre- ated and organized by said amendment for the promotion of all (the) objects of its creation and organization. And said new corporation shall be liable for and perform all the lawful obligations, contracts and undertakings of said original corporation. For recording such amendment and furnishing a certified copy or copies thereof, the secretary of state shall receive a fee of twenty cents per hundred words, to be in no case less than five dollars. (February 10, 1890, 87 v. 8.) § 3763. BESTEICTIONS UNDER WHICH MEDICAL COLLEGES AND TEACH- ERS MAY RECEIVE BODIES FOR DISSECTION. — All superintendents of city hospitals, directors or superintendents of city or county infirmaries, directors or super- intendents of work-houses, directors or superintendents of asylums for the insane, or other charitable institutions founded and supported in whole or in part at public expense, the directors or warden of the penitentiary, township trustees, sherifEs, or coroners, in possession of bodies not claimed or identified, or which must be buried at the expense of the county or township, shall, before burial, hold such bodies not less than thirty-six hours and shall notify the professor of anatomy in any college which by its charter is empowered to teach anatomy, or the president of any county medical LAW GOV. PRIV. COR. — 31- 482 Private Corporations in Ohio. I_ Medical Colleges, Bodies for — Organic Rules, §§ 3764^3767. ' society of the fact that such bodies are being so held and shall, before or after burial, by such said superintendent, director, or other officer, on the written application of [ the professor of anatomy, the president of any county medical society, deliver to such , said professor, or president for the purpose of medical or surgical study or dissection, the body of any person who has died in either of said institutions from any disease, not infectious, if such body has not been requested for interment by any person at his own expense; , BODY TO BE DELIVERED TO CLAIMANT.— if the body of any deceased per- son so delivered, be subsequently claimed, in writing, by any relative or other person for private interment, at his own expense, it shall be given up to such claimant; INTERMENT OF BODY AFTER EXAMINATION OR DISSECTION. — after such bodies shall have been subjected to such me'dical or surgical examination or dis- section, the remains thereof shall be interred in som.e suitable place at the expense of the party or parties in whose keeping said corpse has been placed. NOTIFICATION TO RELATIVES OF DECEASED PERSON. —In all cases It shall be the duty of the officer having such body under his control to notify or cause to be notified, in writing, the relatives or friends of such deceased person; PENALTY FOR REFUSAL TO DELIVER BODY, OR ACCEPTANCE OF CON- SIDERATION FOR SAME. — and any superintendent, coroner, or Infirmary director, sheriff, or township trustee, failing or refusing to deliver such bodies when applied for, as herein provided, or who shall charge, receive, or accept money, or other valu- able consideration for the same, shall be fined in any sum not exceeding one hundred dollars, and not less than twenty-five dollars, or be imprisoned in the county jail not exceeding six months; provided, however, that in no case shall the body of any such deceased person be delivered until twenty-four hours after death. BODY OF STRANGER OR TRAVELER. — The bodies of strangers or travelers, who die in any of the institutions herein named, sh^U not be delivered for the pur- pose of dissection, except said stranger or traveler belong to that class commonly known as tramps; and all bodies delivered as herein provided shall be used for medi- cal, surgical and anatomical study only, and within this state, XTNLAWFTTL TO HAVE XJNAXJTHORIZED BODY IN POSSESSION; PENALTY. — and the possession of the body of any deceased person for the above purposes, and not authorized under this section, shall be unlawful, and the detention of the body of any deceased person, claimed by relatives or friends for interment at their expense, shall also be unlawful, and the person so detaining said body unlawfully, shall ba fined in any sum not exceeding one hundred dollars, nor less than twenty-five dollars, or be imprisoned in the county jail not exceeding six months. (April 5, 1898, 93 v. 84; February 19, 1881, 78 v. 33; R. S. 1880; March 25, 1870, 67 v. 25, § 1.) § 3764. PENALTY FOR HAVING TJNLAWFITL POSSESSION OF CORPSE. — Any person, association, or company, having unlawful possession of the body of any deceased person shall be jointly and severally liable with any and all other persons, associations, and companies that had or have had unlawful possession of such corpse in any sum not less than five hundred dollars and not more than five thousand dollars, to be recovered at the suit of the personal representatives of the deceased in any court of competent jurisdiction, for the benefit of the next of kin of deceased. 'When section applicable. See Carter v. Zanesville, 59 Oh. St. 170 (1898). § 3767. ORGANIC RULES WHICH MAY BE PRESCRIBED IN CERTAIN ARTICLES OF INCORPORATION. — An association incorporated for the purpose of receiving gifts, devises or trust funds to erect, establish, or maintain an academy in any department of fine arts or a gallery for the exhibition of paintings, or sculpture or works of art, or a museum of natural or other curiosities, or specimens of art or Colleges and Institutions of Learning. 483 Objects — Mechanics' Institutes — Accounts, etc., §§ 3768-3770. nature promotive of knowledge, or a law or other library, or courses of lectures upon science, art, philosophy, natural history, or law, and to open the same to the public on reasonable terms, or an industrial training school, or a mechanics' institute for advancing the best interest(s) of mechanics, manufacturers and artisans, by the more general diffusion of useful knowledge in those classes of the community, or homes for indigent and aged widows and unmarried women and whose directors or trustees may be of either sex, may in its articles of incorporation prescribe the tenure of office of the trustees or directors, the mode of appointing or electing successors, the admin- istration and management of the property, and trust and other funds of the corpora- tion, and such other organic rules as may be deemed expedient or acceptable to donors which shall be and remain the permanent organic law of the corporation. (February 21, 1887, 84 V. 31; March 26, 1886, 83 v. 40; R. S. 1880; 75 v. 135, §§ 1, 3.) § 3768. MAY ADD TO THE OBJECTS OF THE COKPOKATION; ACCEPTANCE OF STATUTORY PROVISIONS. — Such corporations may by certiiicate, duly acknowledged by the trustees or directors, and filed in the office of the secretary of state, add to the original objects and purposes of the corporation any of the several objects and purposes, mentioned in the preceding section which were not provided for by the articles of incorporation, and any such corporation heretofore incorporated under the laws of the state may by certificate, reciting the organic rules adopted by such corporation as its permanent organic law, and duly acknowledged by the trustees or directors, and lodged in the office of the secretary of state, accept the provisions of the preceding section. (March 26, 1886, 83 v. 41; May 7, 1878, 75 v. 135, § 3.) § 3768-1. Sec. 1. AUTHORIZING CERTAIN MECHANICS' INSTITUTES TO BORROW MONEY; LIABILITY OF DIRECTORS AND TRUSTEES. — Any mechan- ics' institute, incorporated under the laws of this state prior to the year eighteen hun- dred and fifty-one (1851), be and it is hereby authorized and empowered to borrow money, issue bonds or notes therefor, at no more than the legal rate of interest, and secure the same by mortgage upon its real estate. (April 9, 1885, 82 v. 118.) § 3768-2. Sec. 2. DIRECTORS NOT PERSONALLY LIABLE. —The directors and trustees of such corporation shall not be personally liable for debts contracted by virtue of this act. (April 9, 1885, 82 v. 118.) § 3769. ACCOUNTS OF RECEIPTS AND DISBURSEMENTS. — The officers of the corporation charged or intrusted with the receipts and disbursements of its funds or property shall make and keep like accurate and detailed accounts of such funds, and the receipts and disbursements thereof, as are required to be kept by the fund com- m.issioners of the state; the trustees shall, on or before the third Monday in January of each year, file with the clerk of the court of common pleas of the county in which the corporation is located an abstract of their account, which abstract shall correspond in date, amount, person to whom paid, and from whom received, and on what account, with the voucher taken or given on account of such receipts and disbursements; they shall at the same time, annually, file in such clerk's office a report of the names of the donors, the kind, amount, or value of gifts of each, and a brief statement of the con- ditions and purposes of the gifts; and the filing of such abstract and report, and the supplying of any omission in either, may be enforced by order and attachment of the court of common pleas of the proper county, against the trustees, on motion of any respectable citizen. (May 7, 1878, 75 v. 135, § 4.) § 3770. TRUSTEES INELIGIBLE TO OTHER OFFICE. — No trustees shall be eligible to any office or agency of the corporation to which any salary or emolument is attached, nor shall the trustees be allowed any salary, emoluments, or perquisites, except the right of free ingress to th« grounds, rooms, and buildings of the corpora- tion. (May 7, 1878, 75 v. 135, § 5.) 484 Private Corporations in Ohio. Oflacers, Duties of — Trustees — Charitable Trusts, §§ 3771-1. § 3771. ATTOBNEY-GENERAL MAY, BY ACTION, ENFORCE DT7TIES OF OFFICERS. — On application to the attorney-general of five citizens of the proper county, in writing, verified by the oath or affirmation of one of them, setting forth specific charges against any of the fiscal or other agents or trustees of such corpora- tion, involving a breach of trust or duty, he shall give notice thereof to the trustees or agents complained of, and inquire into the truth of such charges, and for this pur- pose he may receive affidavits, or enforce, by process from the court of common pleas of Franklin county, the production of papers and the attendance of witnesses before him; and if, on testimony or other evidence, he believes the charges, or any of them, to be true, he shall proceed, by action in that court, in the name of the state, against the delinquent trustee or trustees, fiscal agent or agents, and, on the hearing, the court may direct the performance of any duty, or the removal of all or any of the agents or trustees, and decree such other and further relief as may be equitable. (May 7, 1878, 75 v. 135, § 6.) § 3771a. HOW NUMBER OF TRUSTEES OF CERTAIN COLLEGES IN- CREASED. — The board of trustees of any university or college heretofore incorpo- rated, but not under the patronage of conferences or other ecclesiastical bodies of any religious denomination, as described in section 3736, may increase the number of such trustees to twenty-four, exclusive of the president, or a less number, and may divide said trustees into six classes, each class to serve six years, and one class to be chosen each year, for said term; but one trustee of each class may be chosen by the votes of the alumni of such university or college, if the board of trustees shall so provide by by-laws, in which case it shall also be the duty of the board of trustees to provide, by such by-laws, a method of nominating and electing such appointee of the alumni. The president of such university or college shall, ex officio, be a trustee perpetually,! and shall not be included in the classes going out in rotation. If it shall be necessary, in the first enlargement of the board of trustees, under this section, to distribute new members to the several classes, whose terms shall expire by rotation, the distribution may be made in such manner as the board may direct, so that no trustee shall be elected for a longer term than six years. (April 11, 1890, 87 v. 188; April 15, 1889, 86 V. 341.) An Act to Provide for the Regulation and Government of Chatauqua As- semblies, So-Called, or Other Institutions or Gatherings Held for the Purpose of Dissemination or Encouragement of Religion, Art, Sci- ence, Literature, etc.. Where The Grounds or the Premises are in Two or More Adjoining Counties, hy Empowering Such Organi-ation to Adopt Rules; Providing What Shall he Violations Thereof, Giving Justices of the Peace, Mayors, etc., Jui-isd iction of Such Offetices, and Authorizing the Appointment of Special Policemen. (April 14, 1902, 95 V. 133.) Note. — On a,ccount of its length the text of this act is omitted, a mere reference is deemed sufficient. An Act to Provide for the Administration of Gharitaile Trusts in Certain Cases. Be it enacted by the General Assembly of the State of Ohio: Section 1. ADMINISTRATION OF CHARITABLE TRUSTS IN CERTAIN CASES. — Whenever, by the last will and testament of any person which has hereto- fore been, or shall hereafter be, duly adm.itted to probate in this state or elsewhere, any decedent has devised or bequeathed, or may devise or bequeath, his or her prop- erty, or any portion thereof, for charitable uses within this state, or for the estab- lishment and m.aintenance of any industrial or educational school or institution to Colleges and Institutions of Learning. 485 Charitable Trusts, Corporation to Hold, etc., §§ 2-4. be located at any place within this state; and whenever, in any such will and testa- fnient it has been, or may be, provided that the executor or executors thereof shall organize a corporation under the laws of this state for the purpose of receiving the .."property so devised or bequeathed, and carrying out the charitable purposes in such l|will expressed, or establishing and maintaining the institution or school therein pro- vided for, and such will further provides for the management of such corporation by a board of trustees or directors, consisting, in part, of of&cials of this state, of the county in which such charities are to be administered or such institution or school located, the officials of any municipal incorporation in said county, and the member of congress for the district of which said county forms a part, or any of such officials, and names any other person or persons to be associated with said officials or any of them, and provides for the appointment of a successor or successors to the person or persons so appointed to act with such officials in any manner specified in said will, such executor or executors, or his or their successors in office, and the persons here- inafter named, may constitute themselves a body corporate, with the general power of benevolent incorporations. (March 19, 1902, 95 v. 61.) § 2. ARTICLES OF INCOKPOBATION TO BE FILED. — Such executor or execu- tors, or his or their successors, shall associate with himself or themselves not more than two citizens and residents, other than the persons named in said will, of the county in which such charities are to be administered, or such institution or school located, and he or they and such associates shall execute and acknowledge and file with the secretary of state of the state of Ohio, articles of incorporation; or, in case he or they do not file such articles within sixty days from and after the passage of this act, or, in case of any will which may hereafter be so probated, within six months of such probate, then a minority of the officials for the time being named :"_i any such will or testament may execute, acknowledge and file such articles, which shall in either case set forth: 1. WHAT SHALL BE SET FORTH THEREIN. —A copy of the will or testa- ment for the carrying out of whose provisions the incorporation is organized. 2. The name of the corporation, which shall include the name of the maker of such will, unless otherwise therein provided; and 3. The location of such corporation. (March 19, 1902, 95 t. 61.) § 3. WHO MEMBERS ABTD DIRECTORS OF CORPORATION.— The officers or officials named in such will or testament, together with the persons therein named, and in case the articles are filed by the executor or executors as hereinbefore pro- vided, the citizens of said county, not exceeding two in number, who execute and acknowledge the same with such executor or executors, shall thereupon become the members and directors of such corporation; and as the term of any official expires, his successor shall thereupon, by virtue of his office, become one of the members and directors of such corporation, so that the officials named in said will shall, for the time being and from time to time, be directors of said incorporation. Upon the death or resignation of the person or persons named in such will as directors associated with such officials, his or their successor or successors shall from time to time be appointed in the manner provided in such will or testament, if provision therefor be made, otherwise by the board of directors, and he or they shall thereupon become members and directors of such incorporation. Upon the death or resignation of the two citizens of the county, or either of them, who have becom^e directors by reason of joining in said articles of incorporation, his or their successor or successors shall from time to time be chosen by the board (of) directors, and he or they shall thereupon become members and directors of such incorporation. (March 19, 1902, 95 v. 62.) § 4. ATTORNEY GENERAL GIVEN POWER TO BEING PROCEEDINGS TO ENFORCE SUCH DEVISE OR BEQUEST. — The attorney general of the state of Ohio shall in his official capacity have power to bring proceedings in any court of record 486 Private Corporations in Ohio. Charitable Trusts, Corporations T:o Hold, etc., §§ 5-8. to enforce any such devise or bequest, whenever he deems such action necessary for the protection and carrying out of the purposes named in said last will and testa- ment, without waiting for the organization of such corporation. (March 19, 1903, 95 V. 62.) § 5. OFFICEKS OF CORPORATION'. — The ofScers of such corporation shall consist of a president, secretary and treasurer, and such other officers as the board of directors may deem necessary. The president shall be a member of the board of directors. (March 19, 1902, 95 v. 62.) § 6. CONSTITUTION AND BY-LAWS. — The board of directors may adopt, and from time to timie change, such organic rules, regulations and by-laws as they may deem expedient, not inconsistent with the constitution and laws of this state. (March 19, 1902, 95 V. 62.) § 7. DIRECTORS TO MEET WHERE. — Until the estate shall be finally settled, the board of directors may meet in the state of the domicile of the testator. (March 19, 1902, 95 V. 62.) § 8. This act shall take effect and be in force from and after its passage. (March 19, 1902, 95 V. 62.) Bequest to unformed corporation. See Trustees v. Zanesville, etc., Mfg. Co., 9 Oh. 203 (1839) .— Thomp. on Corporations, § 5829. PART XIX. RELIGIOUS AND OTHER SOCIETIES. § 3772. When language of church service may be changed. § 3773. When and how religious or educational corporation may sell cemeteiy grounds. § 3773-1. Conveyance of public burying ground from religious or benevolent societies to town- ship using name. § 3774. When trustees may apply to court for order to sell property. 5 3775. Notice by publication, and judgment.' §3776. When trustees may convey church sites to congregation; church site subject to payment of judgment. § 3776-1. How efifected. § 3777. Consolidation of religious corporations. § 3778. Record of proceedings to be certified, etc. J 3779. Articles of incorporation, and filing of same. § 3779-1. Lands to descend in trust. S 3779-2. Trustees may sue and be sued. § 3779-3. Legal title to religious societies' lands. § 3780. Property passes to new corporation. § 3781. Transfer of property after union of corporations. f 3782. Notice of application therefor. § 3783. Associations for holding donations and bequests. § 3784. Endowment fund corporations. § 3785. Power of trustees of such corporations. § 3786. Powers of trustees of religious society; real estate liable for judgments for labor preformed, etc. § 3787. When and how property of extinct corporations may be sold. § 3787a. Trustees of extinct parish, congregations, etc.; duty as to money received from sale of property. § 3787b. Funds arising from such sale to be under control of presbyteiy, synod, etc. § 3788. Who to be parties to proceedings for sale. § 3789. How printing and publishing houses incorporated. § 3790. Expired corporations may have benefit of last section. § 3791. Fiscal trustees of women's benevolent associations. § 3792. Powers and duties of fiscal trustees. I 3793. Other associations may accept these provisions. § 3793a. Consolidation of charitable or benevolent associations. Agreement submitted to members of separate organizations. § 3793b. Record of ratification of agreement. § 3793c. Each member of separate associations entitled to vote; approval of proceedings, etc. Agreement filed with secretary of state. § 3793d. Unperformed acts at first meeting may be perfected subsequently. § 3793e. Recording of certificate of agreement. Evidence of corporate existence. § 3793f. Constitution, by-laws, and rules. § 3793g. Rights, etc., of new corporation. § 3793h. Property held in trust to be governed by original terms. § 3793J. Petition for conveyance of real estate; order of court; decree to serve as convey- ance. Defendants. I 3793J. Notice of petition. § 3793k. Subsequent union of associations, etc., with corporation. [487] 488 Private Corporations in Ohio. Language of Church Service — Sale of Cemetery, §§ 3772-3773. § .379-i. How charitable or religiovis societies may sell, incumber, etc., realty. § 3794a. Inteiconveyance of property. § 3794b. Title to certain transfers of real estate guaranteed. Preamble. § 3794-1. Women's christian associations empowered to procvire homes for children. § 3795. Notice of the pendency of the petition. § 3790. Sales to be confirmed by court. § 3796a. Secret benevolent societies empowered to invest reserve funds. § 3706b. May elect trustees to take charge of such funds. § 3706c. Society to fix terms of trustees and define their duties, powers, etc. § 3796d. May sue and be sued. § 3796e. Society may accept donations; may pay endowment not exceeding $5,000. § 3772. WHEN LANGUAGE OF CHURCH SERVICE MAY BE CHANGED. — Any religious society incorporated under a general or special law of this state, and which act of incorporation prescribes that the public religious services of such society shall be conducted in any other than the English language, may (at) any time, by a vote of a majority of its adult members, in good and regular standing, who speak such prescribed language, decide whether its public religious services may, at any time, be conducted in any other than such prescribed language. (May 8, 1868, 65 v. 163, § 1; S. & S. 162.) § 3773. WHEN AND HOW RELIGIOUS OR EDUCATIONAL CORPORATION MAY SELL CEMETERY GROUNDS. — When a religious or educational corporation or society holds any lands within the limits of any city or village which has (have) been used as a cemetery, and interments in which have been prohibited by the ordi- nances of such municipal corporation, the trustees, wardens, vestry, or other officers intrusted with the management of the property of such corporation or society, may file a petition in the court of common pleas of the county where such property is situ- ated, setting forth therein a description of the property, the existence of such ordi- nance, and the names of all persons holding burial privileges in such cemetery, so far as known to them, and if such privileges are held by persons whose names are unknown to them, the facts as to same, shall also be stated, and asking that the value, if any, of such burial privileges shall be determined by the court, and (the) direction of the court as to the removal of the bodies interred in such cemetery to other ceme- teries, and for an order to sell such property free from such burial privileges. Notice of the filing of such petition shall be given by publication in some newspaper, printed and of general circulation in the county where it is filed, for four consecutive weeks, setting forth the object and prayer thereof, and that any persons claiming an interest in the subject matter of the petition, or burial privileges in such cemetery, may appear and file an answer therein, within six weeks from the date of the first publication of such notice, and after which, such case shall stand for hearing; and if, upon final hearing of the case, it shall be made to appear that such cemetery is as above described, the court shall proceed, with or without the aid of a jury, as the parties appearing may elect, and hear and determine the value, if any, of such burial privi- leges, and order that the corporation or society shall pay any amount so ascertained to the holder of such privilege, and the court may order said cemetery property sold, free from such burial privileges, and may direct a subdivision of same into lots for the purpose of sale, and shall direct the application of the money arising therefrom, to such uses of such corporation or society, for pious or educational purposes, as the trustees, wardens, vestry, or other officers conceive to be most for the interest of the corporation or society to which the cemetery so sold belonged; but such sale shall not be made until the bodies interred therein are removed to other cemeteries, as directed by the court on the final hearing of the case; provided, that any holder of such burial privilege who may not have appeared in such proceedings, and who has not waived his right to receive compensation for same, may assert his right to receive from such Religious and Other Societies. 489 Cemeteries, etc.— Sale of Property, §§ 3773-1-3775. society or corporation, compensation therefor, within five years after the final entry to such proceedings. (April 11, 1890, 87 v. 189; April 13, 1889, 86 v. 294; B. S. 1880; April 3, 1867, 64 v. 103, § 1; S. & S. 164.) I § 3773-1. CONVEYANCE OF PUBLIC BURYING GROUND PROM RELIGIOUS OR BENEVOLENT SOCIETIES TO TOWNSHIPS USING SAME. — Whenever any public burying-ground is located on or near a township lino, and is used by the people of two or more townships for burying purposes, the title of which is vested in any religious or benevolent society, such religious or benevolent society, or the trustees thereof, may convey the same to the trustees of such townships so using the same, and their successors in office, jointly; and the trustees of such township shall accept the same and sTiall jointly take possession of the same, and take care and keep the same in repair, as required as to public burial-grounds in and belonging to the respec- tive townships, and each township shall bear an equal share of the expense thereof; and the trustees of each township shall levy needful taxes in that behalf, not exceed- ing in any one year more than one-fourth of one' per cent. (April 6, 1893, 90 v. 151.) § 3774. WHEN TRUSTEES MAY APPLY TO COURT EOR ORDER TO SELL PROPERTY. — When the title to any real estate is vested in trustees for the use of churches, or congregations of churches, and, owing to the peculiar situation of such real estate, or the nature of the trust or conditions upon which it is held, it has not been for twenty years claimed by or appropriated to the use of churches or congrega- tions, as originally contemplated, and such trustees are in doubt as to what disposi- tion to make of such unappropriated church property, and when any public church- site and meeting house has been abandoned by the public as a place of worship, and the trustees invested with the title of such property have sold the same, and are in doubt as to what disposition to make of the proceeds thereof, such trustees may file a petition in the court of common pleas of the county where the property is situate, setting forth all the facts in the case, and asking the direction of the court as to the proper disposition of such unappropriated property or proceeds. (April 10, 1868, 65 V. 84, § 1; S. & S. 164.) Trustees must act as a body, A religious corporation can only be bound by its board of trustees acting as a body, and a contract made by members of the board of trustees, constituting a majority of the board, but acting separately and not collectively as a board, at a meeting regularly called, will not bind the corporation. — Young & Fulton Co. V. Methodist Church, 5 N. P. 378 (1898). As to poKrers of trustees and members of church corporations. See Wiswell v. Cong. Church, 14 Oh. St. 31 (1863); Mannix, Assignee, v. Purcell et al., 46 Oh. St. 102 (1883); Rike et al. v. Floyd et al., 6 C. C. 80 (1891) ; Miller et al. v. Elder et al., 7 C. C. 97 (1893); s. c, 3 C. D. 681. As to rights of seceders. Members who secede from a church organ- ization thereby forfeit all right to any part of the church property. — Wiswell v. Congrega- tional Church, 14 Oh. St. 31 (1863) ; Rike et al. V. Floyd et al., 6 C. C. 80 (1891). What constitutes secession? Wiswell V. Congregational Church, 14 Oh. St. 31 (1863); Rike et al. v. Floyd et al., 6 C. C. (1891). See § 3794 and notes thereto. § 3775. NOTICE BY PUBLICATION, AND JUDGMENT. — Notice of the filing of such petition shall be given by publication in some newspaper printed and of gen- eral circulation in the county where it is filed, for four consecutive weeks, setting^ forth the object and prayer thereof, and that any person, church, or congregation, claiming an interest in the subject matter of such petition, may appear and file an answer therein; and the court, on final hearing of the case, shall make such' order or decree therein as will best secure the rights of the churches or congregations, or per- sons having an interest therein, and as will best promote the interests of religion, having regard, as near as may be, to the nature and terms of the original trust or purpose with which such property or proceeds is charged, and shall tax the costs of the proceeding, as justice and equity require. (April 10, 1868, 65 v. 84, § 2; S. & S. 165.) 490 Private Corporations in Ohio. Cliurcli Sites, etc.— Consolidations, §§ 3776-3778. § 3776. WHEN TRUSTEES MAY CONVEY CHURCH SITES TO CONGREGA- TION; CHURCH SITE SUBJECT TO PAYMENT OF JUDGMENT. — When any real estate has been purchased by or conveyed to trustees for the use of churches or con- gregations, as sites for meeting-houses to be erected thereon, and such churches or congregations have erected houses of worship thereon, but no power is possessed by such trustees to convey such real estate to such congregations, or to the trustees thereof, such trustees may convey such improved sites to the trustees of such con- gregations; provided, however, that where an incorporated religious congregation, society, association, sect, or denomination use or occupy as and for a place of worship, real estate which is held in trust for such religious congregation, society, association, sect, or denomination, or the members thereof, as and for a place of worship, and a judgment has been, or may be, recovered against such incorporation, the said real estate, together with such edifice and improvements thereon, shall, by a civil action for that purpose, be subjected to the payment of such judgment and costs. (March 7, 1883, 80 V. 51; R. S. 1880; April 10, 1868, 65 v. 84, § 3; S. & S. 165.) § 3776-1. HOW EEFECTED. — Any ecclesiastical society incorporated under the laws of this state connected with a church of Christ in this state, may by a three- fourths vote of its adult members present and voting at a meeting warned and held lor that purpose, assign, transfer and convey to the church with which it is con- cerned, and which is incorporated under the laws of this state, all the property and ■estate, real and personal, and trust funds of said society to be held by said corpora- tion under the trusts and for the same uses upon which the same had heretofore been held by such society, and the society committee or trustees are fully authorized to make, pursuant to such vote, any and all conveyances necessary to complete such assignment and transfer; but, before the same shall be effectual a certificate of the fact of such assignment and transfer shall be filed in the office of the secretary of state, and in the office of the clerk of the county in which the property is located. (April 8, 1891, 88 v. 298; March 12, 1890, 87 v. 56.) § 3777. CONSOLIDATION OF RELIGIOUS CORPORATIONS. — When two or more religious societies, churches, or associations, recognizing the same ecclesiastical jurisdiction, form of faith, government, order, and discipline, and incorporated by or under any law of this state, desire to be consolidated or united as a single corporation, the elders, trustees, deacons, directors, or other known and legal representatives of such societies, churches, or associations, may enter into an agreement for such union or consolidation, and prescribe the terms and conditions thereof, the corporate name of such united society, church, or association, the time and place for the first meeting of the new corporation, the number of members of each separate branch or organiza- tion who shall be chosen as directors, trustees, elders, or other officers for the new corporation, to succeed to the rights, trusts, duties, and obligations of those officers who, in the separate organizations, held in trust the estate, real and personal, of such separate churches, societies, or associations, with such other estates as they may deem iiecessary to complete the new corporation; but an agreement so made shall not be valid until it has been submitted to a separate meeting of the members of each organ- ization, of whicli due and full notice has been given, according to the form and usage for calling church, congregation, or society meetings, and ratified by a two-thirds vote of all present at such meeting, in person or by proxy, and entitled to vote according to the laws, regulations, or usages of such church, society, or corporation. (67 v. 30, § 1.) § 3778. RECORD OP PROCEEDINGS TO BE CERTIFIED, ETC. —When the agreement has been ratified by each church, society, or association which is a party to the proposed united organization, the clerk or secretary of each meeting shall cer- tify the record of the proceedings thereof, and deliver the same to the clerk or secre- Religious and Other Societies. 491 Consolidations, etc., §§ 3779-3780. tary of the first meeting of the united churches, societies, or organizations, as herein- before provided, and as specified in the terms of agreement. (April 3, 1870, 67 v. 30, § 2.) § 3779. ARTICLES OF INCORPORATION, AND FILING OF SAME.— If, at the first meeting of the united corporations, the proceedings and acts of the several churches, societies, and parties thereto are submitted to and approved by the meeting, and a board of trustees, directors, or other officers are chosen in accordance with the terms of agreement, the clerk or secretary of the meeting shall certify such approved agreement or terms of union, and file the sam.e in the o£Blce of the secretary of state, ■whereupon the several churches, societies, or associations, parties thereto, shall be deemed and taken to be one corporation, possessing within this state all the rights, privileges, and franchises, and subject to all the restrictions, disabilities, and duties, of such new corporation. (April 2, 1870, 67 v. 30, § 3.) § 3779-1. LANDS TO DESCEND IN THUST.— All lands and tenements not exceeding twenty acres that have been or hereafter may be conveyed by devise, pur- chase or otherwise to any person or persons as trustee or trustees in trust for the use of any religious society within this state, either for a meeting house, burying ground or residence for their preacher, shall descend, with the improvement and appurte- nances, in perpetual succession, in trust to such trustee or trustees as shall from time to time be elected or appointed by any such religious society, according to the rules, customs, usages and regulations of such society respectively. (March 20, 1894, 91 v. 79; 23 V. 9; Chase, p. 1460; Curwen, p. 2347.) See Mannix, Assignee, v. Purcell, 46 Oh. St. 102, 148 (1883). § 3779-2. Sec. 2. TRUSTEES MAY SUE AND BE SUED. — That the trustee or trustees, for the time being, of any religious society aforesaid, shall have the same power to defend and prosecute suits at law, or in equity, and do all other acts for the protection, improvement and preservation of said property, as individuals may do in relation to their individual property. (23 v. 9; Chase, p. 1460; Curwen, p. 2347.) See Mannix, Assignee, v. Purcell, 46 Oh. St. 102, 148 (1883). § 3779-3. LEGAL TITLE TO RELIGIOUS SOCIETIES' LANDS. — Whenever any property has been, or may be, conveyed in trust for the use of any religious society, church or association, whether incorporated or not, the property so conveyed shall be held by the trustee or trustees, so appointed, and their successors, appointed as provided in the instrument creating such trust, or in case no provision is ,?nade in such instrument, then by such successor or successors, as may be appointed by any competent court; but no person shall be elected or appointed by such society, church or association, to act as trustees, to the exclusion of any trustee or trustees, appointed as aforesaid. (March 23, 1850, 48 v. 71; Curwen, p. 1554.) See note to Methodist Church v. Wood, under § 3786. § 3780. PROPERTY PASSES TO NEW CORPORATION. — The new corporation, with its officers and chosen representatives, shall succeed to, and be invested with, all and singular, the right, title, and interest in and to every species of property, real, personal, or mixed, and all and singular the rights, privileges, and franchises of each of the churches, societies or associations parties to the agreement, without any other act, conveyance, or transfer; and such new corporation shall hold and enjoy the same, with all the rights pertaining to such property, franchises, and trusts, and shall be subject to all the debts, liabilities, and obligations, in the same manner and to the same extent as any or either of the churches or societies parties to the new corporation. (April 2, 1870, 67 v. 30, § 4.) 492 Private Corporations in Ohio. Consolidations — Endowment Fund Companies, §§ 3781-3784. § 3781. TEANSFER OE PBOPERTY AFTER UNION OF CORPORATIONS. — When any two or more religious societies, denominations, or ecclesiastical corporations in this state hereafter unanimously form a union, or which have heretofore unani- mously formed a union, and become united or consolidated under and by virtue of any rules and regulations of such societies, denominations, or corporations, or laws of this state, the trustees, deacons, directors, or other proper officers of such new society, denomination, or corporation may, at the request of a majority of the members of either of such societies, denominations, or corporations, petition the court of common pleas of the proper county, setting forth the fact of such union, and the court may, in its discretion, make an order requiring such officers, at the time of such union, to convey to such new organization the real estate owned and held by the parties to the union, as the court may direct; and if any of such officers refuse or neglect to obey such order, the decree of the court shall serve as such conveyance; but such order shall in no case be inconsistent with the original terms upon which such real estate became vested in or intrusted to the parties to the union; and in all cases the grantors of such real estate to such parties, or their heirs, shall be made parties to the petition, and such grantors or their heirs who make no defense shall not be subject to costs. (April 11, 1876, 73 V. 225, § 1.) § 3782. NOTICE OF APPLICATION THEREFOR. — Notice of the pendency of such petition shall be given by publication in a newspaper published in the county where the petition is filed, for four consecutive weeks, setting forth the object and prayer of the petition, and if no newspaper is printed in such county, publication shall be made in the newspaper published nearest to such county. (April 11, 1876, 73 v. 225, § 2.) § 3783. ASSOCIATIONS FOR HOLDING DONATIONS AND BEQUESTS. — An association incorporated for the purpose of receiving and holding donations and bequests, and funds arising from other sources, and disbursing the interest and income arising therefrom as in this section provided, shall hold all such principal sums as a permanent fund; and the interest arising from such fund, and the annual income arising from all personal and real property held by such association, shall be applied and distributed annually as follows: First. To the payment of the necessary expenses of such association. Second. The balance shall be paid to the board of stewards, or any officer that may be designated by any conference, synod, assembly, or association within the bounds of which the principal office is located at the time of such organization, to be distributed by the board of stewards or such officer annually, to such persons as may be designated by such conference, synod, presbytery, assembly, or association. (April 20, 1874, 71 V. 110, §§ 1, 2, 3, 4.) Conflicting beneficiaries. Where a trust is created for the benefit of an incorporated religious society, and there are two such bodies, each claiming to be such society, a court of equity may require the claimants to interplead and proceed to ascer- tain the true benefieiaiy, without compelling either party to establish its corporate rights at law, — Presbyterian Society v. Presbyte- rian Society, 25 Oh. St. 128 (1874). § 3784. ENDOWMENT FUND CORPORATIONS. —When a presbytery, cynod, conference, diocesan convention or other representative body of any religious denomi- nation in this state, or when an assembly, synod, conference, convention or other gen- eral ecclesiastical body of any religious denomination held in the United States desires to create a board of trustees for any endowment fund or other property of the denomination represented by such body, and, at any regular meeting of such presby- tery, synod, conference, diocesan convention or other representative body of such denomination in this state, or such assembly, synod, conference, convention or other general ecclesiastical body in the United States, elects not less than five mem- Religious and Other Societies. 493 Endowme:jt Fund Companies; Trustees, Powers of, §§ 3785, 3786. bers of such, denomination, one of whom shall be a resident freeholder in this state, to serve as trustees, and makes and files in the office of the secretary of state a statement, giving the names of such trustees, the character of the endowment fund or other property to be intrusted to their care, and the uses to which it is to be applied, signed by the proper presiding officer and the secretary or clerk of such body, acknowledged before a clerk of a court of record, notary public or a judicial officer having a seal, and the signing of the same is duly attested by such officer, and the statement thus authenticated is recorded in the office of the secretary of state, the persons named in such statement as trustees shall, thereupon, with their successors in office, become a body corporate and politic for the purpose in such statement speci- fied; and a copy of such record, duly certified by the secretary of state, shall be evi- dence of the existence of such corporation. (March 21, 1894, 91 v. 83; April 21, 1890, 87 V. 243; April 20, 1874, 71 v. 118, § 1.) § 3785. POWER OF TRUSTEES OF SUCH CORPORATIONS. — Such trustees, if chosen to take charge of any endowment fund, may invest, manage, and dispose of the same in accordance with the purpose for which it was created, subject to such regulations as the body by which they were elected may from time to time prescribe. (April 20, 1874, 71 v. 118, § 3.) § 3786. POWERS OF TRUSTEES OF RELIGIOUS SOCIETY; REAL ESTATE LIABLE FOR JUDGMENTS FOR LABOR PERFORMED, ETC. — If the trustees are chosen to take charge of and manage any other property that may be owned or in any manner acquired by such religious denomination, they shall have full power to hold, invest, control, and manage the same for the benefit of the denomination within the presbytery, synod, conference, diocese, or other ecclesiastical territorial limits repre- sented by the trustees, subject to the direction of the proper representative body of such denomination within such territorial limits as aforesaid; and if a parish or con- gregation connected with the denomination represented by the trustees become extinct, by reason of the death or dispersion of its members, the trustees may take possession of the church property of such parish, congregation, or society, whether real or per- sonal, and rent, lease, sell, invest, or otherwise dispose of the same, for the benefit of the denomination represented by them, within the territorial limits represented by the body by which they were appointed, and subject to such regulations as such body may prescribe; but all property held by such trustees, and the proceeds thereof, shall be applied to the use and benefit of the proper denomination within this state; provided, however, that the real estate held by or in trust for any religious society or congre- gation as a place of worship, or otherwise, shall be liable for and may by civil action be subjected to the payment of any judgment which has been or shall be recovered against the trustees or any committee of such society or congregation, in their indi- vidual capacity, or otherwise, for labor performed, materials furnished, or damages sustained, under any contract with them for the erection of any church edifice or other building or improvement made thereon. (February 23, 1882, 79 v. 14; R. S. 1880; April 24, 1877, 74 v. 110, § 1.) Trustees hold for corporation. Where conveyances are made to individual trustees instead of the corporation, such in- dividual grantees are trustees for the corpo- ration, and on sale receive the proceeds to its use. — Methodist Church v. Wood, 5 Ohio, 283 (1856). Officers illegally elected; de facto trus- tees. See Hullman v. Honcamp^ 5 Oh. St. 238. 242 (1856) ; Presbyterian Society v. Smithers, 12 Oh. St. 248 ("1861) ; Presbyterian Society v. Presbyterian Society, 25 Oh. St. 128, 133 (1874); Bartholomew v. Congregation, 35 Oh. St. 567 (1880) ; Messinger v. Wardens et al., 6 W. L. B. 397 (1881). See §§ 3774 and 3794 and notes thereto. See also In re Shoup, 16 W. L. B. 71 (1886). May Trithdraw from synod. Bartholomew v. Lutheran Church, 35 Oh. St. 567 (1880). Judgment cannot be taken against an unincorporated church. Males V. Murray et al., 7 N. P. 615 (1900); a. c, 10 Dec. 373. 494 Private Corporations in Ohio. Extinct Parishes — Publishing Houses, §§ 3787-3789. § 3787. WHEN AND HOW PEOPEETY OF EXTINCT CORPOKATIONS MAY BE SOXiB. — When any parish, congregation, or society becomes extinct, as mentioned in the last section, the court of common pleas of the county in which any real prop- erty of such extinct parish, congregation, or society is situate, may, upon the petition of the trustees of the denomination to which such extinct parish, congregation, or society belonged, make an order for the sale of such property, whether the same has been built upon, or otherwise improved, or not, the proceeds of such sale to go to, and be for the benefit of, the denomination represented by such trustees, within the terri- torial limits represented by the body by which they were appointed, and the pur- chaser thereof shall be vested with as full and complete a title to the property as the character of the original grant to such parish, congregation, or society will allow; but this section shall not be so construed as to limit, or in any degree restrict, the powers conferred by the two preceding sections upon such trustees. (April !a4, 1877, 74 v. 110, § 2.). § 3787a. TRUSTEES OF EXTINCT PARISH, CONGREGATIONS, ETC., DUTY AS TO MONEY RECEIVED FROM SALE OP PROPERTY. — All money derived from the sale of any property under the provisions of original section and section three thousand seven hundred and eighty-seven, shall be placed in the custody of the trustees of the presbytery, synod, conference, diocese, or other ecclesiastical body hav- ing jurisdiction in the territorial limits in which said property may have been located, and they shall hold the same in trust for the period of ten years, or for such period as may be prescribed by the law of the denomination. If within that time another parish, congregation or society of the same denomination shall be organized in the same locality, then the court authorizing the sale of said property, may, upon proper application and evidence, authorize the return of said money to the trustees of the new organization. Otherwise such money shall become a part of the funds of the presbytery, synod, conference, diocese, or other ecclesiastical body having jurisdiction. (March 22, 1889, 86 v. 132, 133.) § 3787b. FUNDS ARISING FROM SUCH SALE TO BE UNDER CONTROL OF PRESBYTERY, SYNOD, ETC. — Be it further enacted, that all sums of money aris- ing from the sale of property formerly belonging to any extinct parish, congregation or society, and which are now held by special trustees appointed by the courts author- izing sale of such property, shall be, from and after the passage of this act, under the control of the trustees of the presbytery, synod, conference, or other ecclesiastical body to which said extinct parish, congregation or society may have belonged, and shall be held by them subject to the conditions and provisions of this act; and said trustees are hereby authorized to take such steps, legal or otherwise, necessary to obtain possession of such money. (March 22, 1889, 86 v. 132, 133.) § 3788. WHO TO BE PARTIES TO PROCEEDINGS FOR SALE. — When a peti- tion is filed, as provided for in the preceding section, all persons who may have a. vested, contingent, or reversionary interest in such real estate, shall be made parties thereto, and be notified of the filing and pendency thereof, in the manner provided by law in cases of the partition of real estate; but the court may make such order as to costs as may be deemed just and proper. (April 24, 1877, 74 v. 110, §3.) § 3789. HOW PRINTING AND PUBLISHING HOUSES INCORPORATED.— When a conference, presbytery, assembly, association, or other general ecclesiastical body held in the United States, elects, in conformity with the rules and regulations prescribed by such body, any number of persons, not less than three, as trustees or directors of a printing and publishing house, to hold their office until their successors are elected by such body, and a certificate of the election of such persons, and setting forth the name by which the corporation is to be known, signed by the clerk, secre- Religious and Other Societies. 495 Publishing Houses — Fiscal Trustees, §§ 3790-3792. tary, or other like ofiicer of such body, together with the written acceptance of such offices by the persons so elected thereto, is filed in the office of the secretary of state, such trustees shall be deemed and held to be duly incorporated, by the name set forth in such certificate. (March 18, 1871, 68 v. 43, § 1.) § 3790. EXPIRED COKPOEATIONS MAY HAVE BENEFIT OF LAST SEC- TION. — Any corporation which has heretofore been established by special act of the legislature for the purpose named in the preceding section, and whose charter has expired, or hereafter expires, may be renewed by a compliance with the provisions of the preceding section on the part of the religious sect, association, or denomination to which such corporation belonged, or under the direction of which it was carried on; and the title to all property belonging to such former corporation at the date of the expiration of its charter, whether the same is real, personal, or mixed, shall pass to and be vested in the corporation so established. (March 18, 1871, 68 v. 43, § 2.) § 3791. FISCAL TRUSTEES OF WOMEN'S BENEVOLENT ASSOCIATIONS. — Any benevolent or charitable association incorporated by or under the laws of this state, and of which women are or may be trustees, managers, or directors, may vest the custody, control, and management of all its endowment or capital, funds, and property in three male trustees, to be styled fiscal trustees, who shall be appointed from time to time, as follows: One by the court of common pleas of the county where such association is located, one by the probate court of such county, and one by the vote of a majority of the members of such association present at a regular meeting duly convoked; such trustees shall hold their office for three years, except the first appointed, who shall hold their office respectively for one, two, and three years; they shall meet in the presence of the probate judge, and, by agreement, or by lot if they cannot agree, allot themselves accordingly, and the judge shall give to each a certifi- cate of the term so allotted to him; and upon the death, resignation, incapacity, or removal from the county, of either of such trustees, the vacancy shall be filled for the unexpired term by the same appointing power; but trustees shall not be appointed except upon the written request of the association, filed in the probate court, in ac- cordance with a resolution adopted by the association, at a regular meeting thereof, duly convoked; and until such appointment the association at a regular meeting, may elect any number of such trustees, not less than three with the power and subject to the duties aforesaid, who shall hold their office for such time not more than three years, as the association may by its by-laws determine. (May 13, 1878, 75 v. 524, § 1; S. & S. 51.) § 3792. POWERS AND DUTIES OF FISCAL TRUSTEES.— The trustees shall have the exclusive right, power, and authority, in the name and behalf of such asso- ciation, to demand, take, and possess all the endowment or capital, funds, or property which such association may have or be entitled to have, and the same securely man- age, invest, change, and dispose of at their will, for the use and benefit of the associa- tion, so as to yield a regular income; they shall, every three months, or oftener if necessary and convenient, give account of all such funds, property, and income, to the proper board of trustees, managers, or directors of the association, and shall collect at such times, and pay over to them or their order, all the net income of such invest- ments, after deducting the actual and necessary expenses of the trust; but no charge or allowance for their services shall be made or permitted; and such trustees may, for the purposes (of) aforesaid, in the name of the association, contract and be con- tracted with, prosecute and defend suits, and receive, hold, and dispose of, all money and property which the association may have or acquire, or be entitled to have by gift, purchase, or otherwise, for its endtiwnient, and when necessary for the purposes aforesaid may use the common seal of the corporation; but they shall not have or exercise any power, authority, or control over the institution or affairs of such cor- 496 Private Corporations in Ohio. Fiscal Trustees — Consolidation of Charitable, etc., Associations, §§ 3793-3793c. poration, other than its fiscal affairs as hereinbefore limited, nor be liable for its debts, or for anything but their own acts or negligence. (Harch 30, 1864, 61 v. 87, § 2; S. & S. 52.) § 3793. OTHER ASSOCIATIONS MAY ACCEPT THESE PROVISIONS. — Any benevolent or charitable association hereafter formed, coming within the purview of section thirty-seven hundred and ninety-one, may make the provisions of the two preceding sections part of its articles of incorporation, and any such association now incorporated, by or under any general or special law, may accept such provisions, by a vote of the majority of the mem.bers present at a regular meeting, and when so accepted, and a certified copy of such acceptance filed in the office of the secretary of state, the provisions of the two preceding sections shall become and be a part of its charter. (March 30, 1864, 61 v. 87, § 3; S. & S. 52.) § 3793a. CONSOLIDATION OF CHARITABLE OR BENEVOLENT ASSOCIA- TIONS. — When two or more charitable or benevolent associations, societies or organizations now or hereafter formed or incorporated by or under any law of this state for charitable or benevolent purposes, desire to be consolidated or united as a single corporation, or when two or more charitable or benevolent associations, socie- ties or organizations, one or more of which is, or may hereafter be, incorporated under the law of this state for charitable or benevolent purposes, desire to be consolidated or united as a single corporation, the trustees, directors or other known and legal representatives, or governing body or bodies, of such associations, societies or organi- zations may enter into an agreement for such union or consolidation and •prescribe the terms and conditions thereof, the corporate name of such united association, society or organization, which may be the name of either one of them, or an entirely new name, the time and place for the first meeting of the new corporation, the number of members of one or more or of each separate branch or organization who shall be ! chosen as directors, trustees, or other officers of the new corporation to succeed to the Tights, trusts, duties and obligations of those officers who in either or any of the separate organizations held in trust the estate, real and personal, of such separate association, society or oi-ganization, with such other estates as they may deem neces- sary to complete the new corporation; AGREEMENT SUBMITTED TO MEMBERS OF SEPARATE ORGANIZATIONS. — But an agreement so made shall not be valid until it has been submitted to a sepa- rate meeting of the members of each of said associations, societies or organizations, of which due and full notice has been given according to the form and usage for call- ing meetings of each of said associations, societies or organizations, and ratified by a two-thirds vote of all the members present at such meeting, in person or by proxy, and entitled to vote according to the laws, regulations or usages of such associations, societies, organizations or corporations, respectively. (April 19, 1898, 93 v. 136.) § 3793b. RECORD OF RATIFICATION OF AGREEMENT. — When such agree- ment has been ratified by each association, society, organization or corporation which is a party to the proposed united organization, the clerk or secretary of each meeting shall certify the record of the proceedings thereof, and deliver the same to the clerk or secretary of the first meeting of the united association, society, organization or corporation, as herein provided and as specified in the terms of agreement. (April 19, 1898, 93 V. 137.) § 3793c. EACH MEMBER OF SEPARATE ASSOCIATION ENTITLED TO VOTE; APPROVAL OF PROCEEDINGS, ETC. — A"t the first meeting of the united associa- tion, society, organization or corporation, each member of each of said associations, societies, organizations or corporations shall be entitled to vote, and, if at such meet- Religious and Other Societies. 497 Consolidation of Charitable, etc., Associations, §§ 3793d-37931i. ing the proceedings and acts of the several associations, societies, organizations or corporations, parties thereto, are submitted to and approved by the meeting, and a board of trustees, directors or other officers are chosen, in accordance with the terms of agreement, AGKEEMENT EILSD WITH SECRETARY OF STATE.— the clerk or secretary of the meeting shall certify such approved agreement or terms of union and file the same in the office of the secretary of state, whereupon the several associations, socie- ties, organizations or corporations, parties thereto, shall be deemed and taken to be one corporation under the name by it adopted, possessing within this state all the rights, privileges and franchises, and subject to all the restrictions, disabilities and duties of such new corporation. (April 19, 1898, 93 v. 137.) § 3793d. UNPERFORMED ACTS AT FIRST MEETING MAY BE PERFECTED SUBSEQUENTLY. — Any of the acts p;rovided for by section 3793c which shall not be performed or perfected at such first meeting may be performed and perfected at any subsequent or adjourned meeting of such united corporation. (April 19, 1898, 93 v. 137.) § 3793e. RECORDING OF CERTIFICATE OF AGREEMENT. — The certificate to the secretary of state provided for by section 3793c shall be by him recorded, and a copy duly certified by him shall be recorded in the office of the recorder of deeds of the county where such corporation exists and may be recorded in the office of the recorder of deeds of any county where any real estate lies belonging to any of said associations, societies, organizations or corporations entering into said union, EVIDENCE OF CORPORATE EXISTENCE. — and a certified copy by the recorder of either county in whose office the same is recorded, or a copy certified by the secretary of state of the record in his office, shall be prima facie evidence of the existence of such corporation. (April 19, 1898, 93 v. 137.) § 3793f. CONSTITUTION, BY-LAWS AND RULES. — Such united corporation shall be authorized to adopt a constitution, by-laws and rules not inconsistent with the laws of the state of Ohio, and to amend the same from time to time under such provisions for such amendment as it may at any time adopt. (April 19, 1898, 93 v. 137.) § 3793g. RIGHTS, ETC., OF NEW CORPORATION. — All the varioua associa- tions,, societies, organizations or corporations entering into such union shall be merged in said united body and the new corporation with its officers and chosen directors, trustees or other representatives shall succeed to, and be vested with, all and singular, the right, title and interest in and to every species of property, real, personal and mixed, and all and singular the rights, privileges and franchises held by or vested in each of the said associations, societies, organizations or corporations, ' parties to the agreement, without any other act, conveyance or transfer, and such mew corporation shall hold and enjoy the same with all the rights pertaining to such property, franchises and trusts, and shall be subject to all the debts, liabilities and obligations in the same manner and to the same extent as any or either of the asso- ciations, societies, organizations or corporations, parties to the new corporation. ,ock actually paid in and remaining undiminished by losses or otherwise, nor shall the directors be so liable by the by-laws of such company, adopted by its stockholders to regulate such liabilities; and it shall be the duty of the auditor, treasurer, and secretary of state, or a majority of them, as often as once in each year, to appoint some suitable person in the vicinity of each banking company, who shall not be a stockholder in any bank of this state, who shall have power to make a, thorough examination into all the afEairs of the bank which he may be appointed to examine; and, in so doing, to examine any of the officers and agents of such bank, on. oath; and such agent shall make a. detailed report of the condition of such bank to the auditor of state; and the banking companies herein authorized shall be subject to any other visitorial powers authorized by law; and every agent appointed, as in this section provided, shall receive for his services at the rate of two dollars for each day by him employed in such examination, and two dollars for every twenty-five miles he shall necessarily travel, in the performance of his duty, which shall be paid by the banking company by him exam^ined. (March 21, 1851, 49 v. 41.) § 3831-88. Sec. 1. BANKING COMPANIES AUTHOKIZED TO DEMAND EELINQUISHMFNT OF SECURITIES; REDEMPTION OF CIRCULATION NOT EXCUSED BEFORE 1880. — All independent and free banking companies, and the State Bank of Ohio and its branches, and their assignees and successors, respectively, organized under the provisions of an act entitled " an act to incorporate the State Bank of Ohio and other banking companies," and an act entitled " an act to authorize free banking," and having complied with the provisions for relinquishing business required by the above recited acts, and having redeemed at least ninety-five per cent, of their authorized circulation, may, on or after the first day of January, eighteen hundred and eighty (1880), demand of the auditor of state, and said auditor is hereby authorized and required to relinquish to such companies on such demand any bonds or securities he may hold as security for the redemption of any outstanding circulat- ing notes of such companies, and thereafter the afEairs of such companies shall be considered closed: provided, that nothing herein shall be so construed as to excuse the redemption of all of said circulation that may be presented for redemption prior to the first day of January, 1880. (March 15, 1875, 72 v. 54.) UNKNOWN DEPOSITORS. § 3821-89. Sec. 1. ANNUAL REPORT TO PROBATE JUDGE OF UNKNOWN BANKING DEPOSITORS, ETC. — Every incorporated bank or banking association located in this state, whether now or hereafter incorporated or organized under the laws of this state, or of the United States, and every company, association, or person, who shall in this state keep an office or other place of business, and engage in the business of lending money, receiving money on deposit, buying and selling bullion, or bills of exchange, notes, bonds, stocks, or other evidence of indebtedness, with a view to profit, shall, annually, between the first and second Mondays of January, make out and return to the probate judge of the county in which said bank, office, or other place of business is located, under oath of the owner, or principal offirer or manager thereof, a true and complete statement, setting forth, in alphabetical order, the names of all unknown depositors with said bank, company, association or person, together with the amount due to every such unknown depositor, including accrued interest and dividends. (March 6, 1888, 85 v. 65.) § 3821-90. Sec. 2. WHO ARE TO BE DEEMED " UNKNOWN DEPOSITORS." — Every corporation, company, association, or person, in whose name a deposit of any 544 Private Corporations in Ohio. Unknown Depositors, §§ 3821-91-3821-94. money, bullion, bill of e^cchange, note, stock, bond or other evidence of indebtedness has been made with any bank, company, association, or person, designated in the first section (§ 3821-89) hereof, shall be deemed an unknown depositor within the meaning of this act, when the date of the last bona fide item of debt or credit to the account of such depositor on the books of said bank shall be more than seven years prior to the time fixed by the first section (§ 3821-89) hereof for the filing of said statement with the probate court of the proper county; provided, that in fixing the date of the last item of credit to the account of any depositor, reference shall not be had to any item of credit for interest or dividends accrued on such deposit, unless the same shall be entered upon a pass book presented by and returned to the depositor, or unless the depositor be a minor. (March 6, 1888, 85 v. 65.) § 3821-91. Sec. 3. RECOKD OF UNCLAIMED DEPOSITS TO BE KEPT BY PBOBATE JUDGE. — The probate judge of each county shall, on or before the third Monday of January, annually, cause to be recorded in a book kept for that purpose, entitled " record of unclaimed deposits in banks, county, Ohio," and which shall at all times be open to public inspection, all statements returned to him for the preceding year under the provisions of this act, and said probate judge shall desig- nate in said book at the head of each statement recorded therein, the name of the hank, company, association or person by whom said statement is returned. The original statement returned to said probate judge shall be kept on file and preserved in his oflice. (March 6, 1888, 85 v. 65.) § 3821-92. Sec. 4. HIS PEES POB MAKING SUCH BECOED; HOW PAID. — There shall be allowed and paid to the probate judge of each county, the sum of eight cents per hundred words, for all statements recorded by said probate judge under the provisions of this act; provided, that the cost of recording the names and amounts due to any depositors, by whom deposits shall be made as aforesaid after the passage of this act, and. who shall thereafter become unknown within the meaning of this act, shall be paid to said probate judge by the bank, company, association, or person, designated in section one (§ 3821-89) hereof, at the time such annual statement is returned, and shall be by such bank, company, association, or person, deducted from the amount due such unknown depositor. (March 6, 1888, 85 v. 65.) § 3831-93. Sec. 5. UNKNOWN DEPOSITS TO BE PAID INTO COUNTY TBEASUBY, WHEN; SUCH PAYMENT RELEASES THE BANK'S LIABILITY.— T-hat whenever any corporation, company, association, or person, in whose name any deposit is hereafter made with any bank, company, association, or person designated in section one (§ 3821-89) hereof shall become unknown within the definition and meaning of this act, the amount due to such depositor shall be by such bank, com- pany, association or person, paid to the treasurer of the county in which such bank, company association is located, and shall be by said treasurer credited to the general fund of said county; provided, that such deposit shall not be paid to said treasurer until after the expiration of eight years from the date of the first statement, in which the name and amount due such unknown depositor shall be returned to the probate judge as hereinbefore provided; and the bank, corporation, association or person so making such payment shall thereby be released from any claim, demand or liability to pay the same or any part thereof to the depositor, his administrators, executors or assign(s). (March 6, 1888, 85 v. 65.) § 3821-94. Sec. 6. HOW AND BY WHOM SUCH DEPOSITS MAY BE RECLAIMED. — If at any time thereafter proof is made to the satisfaction of the pro- bate court, or the county commissioners, of the right of any person or persons, by Inheritance or otherwise, to said funds or any part of the same, or paid to the treas- urer under the provisions of the preceding section, said court or commissioners shall Banks and Banking. 545 Unknown Depositors, §§ 3821-95-3821-97. certify the same to the county auditor, who shall thereupon draw a warrant on the treasurer of the county in favor of such claimant or claimants, or the legal representa- tive or duly authorized agent of such claimant or claimants for the sum. so paid into the treasury; provided, if any such person or persons become aggrieved by the deci- sion, finding or action of the probate court or the county commissioners, such person or persons may appeal to the court of common pleas, by virtue of the provisions of the Revised Statutes of 1883, sections eight hundred and ninety-six, six thousand four hundred and seven, six thousand four hundred and eight, six thousand four hundred and nine, and six thousand four hundred and ten, respectively, and all acts amenda- tory and supplementary thereto, and said sections shall, so far as applicable, govern proceedings had under the provisions of this act. (March 6, 1888, 85 v. 65.) § 3821-95. Sec. 7. PENALTY TOE, BANK'S REFUSAL OR NEGLECT TO COM- PLY WITH THIS ACT. — That every bank, company, association, or person desig- nated in section one (§ 3821-89) of this act, who shall neglect or refuse to comply with the provisions of this act, shall forfeit and pay five hundred dollars for every such offense. (March 6, 1888, 85 v. 65.) § 3821-96. Sec. 8. RECOVERY AND DISPOSITION OF PENALTIES. — The penalty imposed by this act shall be recovered by action in the name of the state of Ohio, before any court of competent jurisdiction; and all penalties incurred under this act, when collected, shall be paid to the treasurer of the county in which the judg- ment is recovered for the same, and one-half thereof shall be by said treasurer cred- ited to the general fund of said county, and one-half thereof shall be by him held for the use of the state of Ohio. (March 6, 1888, 85 v. 65.) § 3821-97. Sec. 9. "WHO MAY SUE; DUTY OF PROSECUTING ATTORNEY. — The action provided by the eighth section (§ 3821-96) hereof, for the recovery of penalties incurred under the provisions of this act, may be instituted and prosecuted to judgment by any citizen of the state of Ohio; and it is hereby made the duty of the prosecuting attorney of such county to institute and prosecute such action against every bank, company, association or person designated In the first section (§ 3821-89) hereof, and located in said county, who shall fail to comply with the provisions of this act. (March 6, 1888, 85 v. 65.) PART XXII. PO^VERS OF CERTAIN CORPORATIONS. § 3822. Avenue companies in certain counties. § 3823. Otlier turnpilce companies. § 3824. When company may take tools. § 3825. When consent of authorities necessary. § 3826. Authorities may surrender roads to company. § 3826a. Power to condemn avenues belonging to avenue companies within corporate limits. § 3826b. Issue and sale of bonds. § 3827. Officers of board of trade, chamber of commerce, etc. § 3828. Maj' appoint committees of arbitration. § 3829. May require bonds from officers. § 3830. May appoint inspectors, etc. § 3830a. Inspectors, gangers, etc., may appoint deputies. § 3831. Other like associations may have benefit of these provisions. § 3832. May purchase or lease grounds and erect buildings; issuing of bonds. Building and Loan Associations. §3836-1. Building and loan associations; domestic; foreign. §3836-2. Capital; when may begin business. Directors terms. § 3836-3. Deposits. Stock. Dues, fines, interest, and premiums. Withdrawals. Cancella- tions. Stock of minors. Real estate and personal property. Borrowing money. Loans. Cancellation of loans. Reserve fund. Dividends. Increase or decrease of capital or face value of shares. Dissolution. Constitution and by-laws. General powers. §3836-4. Deposit in bank and cheeks thereon; treasurer's bank book; expenditures. Bonds of officers; directors ineligible and personally liable. § 3836-5. Fund for contingent losses. § 3836-6. Earnings ; application of. Dividends. Losses assessed proportionately. § 3836-7. Undrawn shares listed as credits. i 3836-8. Bureau of building and loan associations. §3836-9. Inspector; compensation; bond; oath. Deputies; clerks. § 3836-10. Offices and expense. § 3836-11. Inspector must enforce laws. § 3836-12, Laws governing; authority procured by deposit; by filing copy of charter, and by- providing for summons in actions. § 3836-13. Certificate of authority to do business. § 3836-14. Collection of interest and exchange of securities. § 3836-15. Securities liable for claims. §3836-16. To be filed annually; copy of constitution and by-laws. §3836-17. Form; oath, and attastation; filing; posting abstract. §3836-18. When to examine; expense thereof. Revocation of charter for illegal practices. Dissolution if condition unsound. §3836-19. Examiners; power of. § 3836-20. Inspector may publish result. § 3830-21. May cancel authority of foreign associations. § 3836-22. Fees to be paid to inspector. § 3836-23. Securities to be deposited in state treasury. § 3836-24. Penalties against associations. [546] Powers of Certain Corporations. 547 §3836-25. Penalties and civil liability of officers, agents, and others; forbidden acts. g 3830-26. Annual report of inspector. § 3830-27. Dissolution or consolidation of building and loan associations. Other Companies. § 3837. Co-operative trade associations. § 3838. Common carrier companies. § 3830. Any company may subscribe to its stock. § 3840. Dock companies. § 3841. Klevator companies. § 3842. When railroad company may take stock in such company. § 3843. Farm laborers' associations. § 3844. What investment it may make. § 3845. Must report to attorney-general. I 3840. Consolidation of two associations. § 3847. Attorney-general to report annually. § 3848. May maintain libraries, etc. § 384:). Feriy companies. § 3850. Firemen's relief associations. § 3851. Certain povpers of such associations. § 3852. Their power to acquire and dispose of property. § 3853. Fishery companies. § 3854. Companies for the improvement of navigable streams. § 3855. Manufacturing companies must keep certain accounts. § 3856. May extend their operations. § 3857. Company to manufacture iron may make steel. § 3858. Market-house companies. § 3859. Powers of such companies. § 3800. May keep streets unobstructed. § 3861. May construct sewers. § 3862. Powers of mining and manufacturing corporations. § 3863. May subscribe for stock in transportation companies. § 3864. Certain companies may consolidate. § 3865. Certain conveyances must be made. § 3866. May build a railroad. § 3867. Mining companies may acquire additional powers. § 3868. Museum, park, pond, and rink companies. § 3869. May provide for reversion of stock, etc. § 3870. Penalties for trespasses upon property of such companies. § 3871. Sewerage companies. § 3872. When municipality must buy out company. § 3873. Municipality may contract with company. § 3874. Company may prescribe rates. § 3875. Powers of municipalities not limited. § 3876. Stock -yard companies. § 3877. Transporation companies. § 3878. Companies for transportation of natural gas, oil, or water; right of eminent domain. How right acquired. Right to public way; how acquired. Filling of excavations. Common carrier. § 3879. 'May hold certain property. § 3880. Further powers of such company. § 3881. Homes for aged and indigent women. §3881-1. Contract for care and maintenance of indigent deaf and dumb. State board of charities may order removal of such indigent or infirm persons to home. § 3882. Wrecking companies. 548 Private Corporations in Ohio. Avenue and Turnpike Companies, §§ 3822-3824. § 3883. Fruit companies. ' § 3884. Companies for protecting and preserving dead bodies. § 3884a. Authorizing certain corporations to purchase or lease real estate. §3884^1. Cincinnati orphan asylum; increase in number of managers; same to be classified; annual election; power to require increased or diminished number of managers. §3884-2. Membership; eligibility to oflSce; life and honorary memberships. § 3884-3. Eights to own property ; to receive and administer in other states. § 3884-4. Placing of children in such asylum. § 3884^5. Agreement between the trustees and county commissioners for the administration of certain trusts. § 3884-6. Adoption and binding out of orphan children. §4211-19. Driving of cattle from certain states forbidden during certain months; conveyance by railroad forbidden, except. § 4211-20. Unloading of certain cattle in certain months forbidden, except. §4211-21. Penalty. §4211-22. Duty of transportation companies; penalty for violation of such duty. § 4211-23. Prosecution for offenses hereunder. § 4495. Commission may require any bridge or culvert to be enlarged. § 4748. Obstruction of road by railroad agents. § 4749. Company liable for fines against employees. § 4939. Joint county and railroad bridges. § 3822. AVENUE COMPANIES IN CERTAIN COUNTIES. — Companies may be incorporated in any county having' not less than one hundred thousand inhabitants, for the purpose of constructing avenues in the counties where they are organized;] such avenues shall be opened not more than one hundred feet in width, at least sixty feet of which shall be cleared of all obstructions", and not less than thirty feet shall be made an artificial road composed of stone, gravel, or other suitable material, well compacted together in such manner as to secure a firm and substantial road, and shall not be less than five miles in length; and they may enter upon and appropriate any lands for the use of such avenue after having obtained the written consent of a majority of the persons owning, the lands sought to be appropriated, which consent shall be entered upon their records. (April 3, 1856, 53 v. 47, § 12.) § 3823. OTHER TURNPIKE COMPANIES. — A corporation created for the pur- pose of constructing and maintaining a free public avenue shall construct and main- tai^i its avenue not less than fifty nor more than one hundred feet wide, of such materials as it may deem proper, and shall not charge toll of any kind for the use of its avenue by the public, but may make and enforce all necessary and reasonable regulations for the use and preservation of the same; and if in laying out such avenue, it be necessary to enter upon and appropriate any lands or premises, the pro- ceedings therefor shall be instituted and carried on in all respects as is provided by law for the appropriation of private property by municipal corporations. (April 16, 1879, 76 V. 62, §§ 1, 2.) Montgomery county. See § 3536-1 et seq. » S824. WHEN COMPANY MAY TAKE TOLLS. — When any such company puts under contract five consecutive miles of any such avenue, and completes not less than two consecutive miles thereof to the acceptance of the county commissioners, or when the whole of any such avenue is completed to such acceptance by any aach company, the company may erect a toll-gate thereon for the collection of such tolls as turnpike and plankroad companies are allowed by law to collect; and when a company com- pletes to such acceptance five consecutive miles of an avenue, it may erect thereon Powers of Certain Corporations. 549 Avenue and Turnpike Companies, §§ 3825-3826 b. two toll-gates, at suet places as in the opinion of the directors will best subserve the interest of the company, for the collection of tolls as above provided. (April 3, 1856, 53 V. 46, § 3.) • '• § 3825. WEEN CONSENT OP AUTHORITIES NECESSARY. — When in laying out any such avenue it becomes necessary to run through or along the line of any village, the board of directors of the avenue company shall obtain the consent of the council of such village to the laying out of sXich avenue through or along the terri- tory over which they have supervision or control. (April 3, 1856, 53 v. 46, § 4.) § 3826. AtTTHOBITIES MAY STJUEENDER ROADS TO COMPANY. — If , on application being made to the council of a village, they are of opinion that the public good demands the laying out of such avenue, they may give their written consent to the laying out and construction of the same, which shall have the force and effect of a full and complete release of all authority over the avenue within their corporate jurisdiction, and the directors may lay out and construct the avenue through the terri- tory of such village, and control the same in all respects as though the village did not exist. (April 3, 1856, 53 v. 46, § 5.) § 3826a. POWER TO CONDEMN AVENUES BELONGING TO AVENUE COM- PANIES WITHIN CORPORATE LIMITS. — Where avenue companies have been or may hereafter be organized, and have constructed and operated, or may hereafter construct and operate an avenue or avenues in a county containing a city of the first grade of the first class, the board of public improvements of such city of the first grade of the first class, may, by resolution, declare it essential or necessary to the interest of said city that so much of any such avenue as may be within the corporate limits of the city should belong to the city for the purpose of a public street; and thereupon if the company owning such avenue and the board of public improvements of the city are unable to agree upon the amount of compensation to be paid for so much of said avenue as lies within the city, the board of public improvements of such city and the company owning such avenue may submit the question of the amount to be paid for so much of such avenue as lies within the limits of such city to arbi- tration in the following manner, to wit: The board of public improvements of such city to select one disinterested person, the company owning such avenue to select another disinterested person, and these two (2) select the third disinterested person to act as arbitrators and all such arbitrators shall be resident freeholders of such city; and the amount agreed upon by all these three abritrators shall be binding on both such city and such company; and in case the arbitrator appointed by the board of public improvements of such city and the arbitrator appointed by such company cannot agree upon a third arbitrator, or all three of such arbitrators fail to agree on the amount to be paid for so much of such avenue as lies within the city limits, or in case the board of public improvements of such city, or the company owning such avenue refuse to submit to arbitration the question of the amount to be paid for such part of such avenue as lies within the limits of such city, then the board of public improvements of such city may proceed to condemn and appropriate so much of such avenue as lies within the city limits, for public purposes, in the same manner in which other property is condemned and appropriated by municipal corporations, except that the resolution of such board of public improvements deeming it necessary to condemn shall take the place and stand in lieu of the resolution of council required by sections 2234, 2235 and 2236, Revised Statutes of Ohio. (April 4, 1888, 85 v. •152; April 20, 1890, 87 v. 241.) J § 3826b. ISSUE AND SALE OP BONDS. — When the amount of compensation to be paid for such avenue appropriated under the preceding section shall have been ascertained either by agreement of the parties, by decision of the arbitrators or by 550 Private Corporations in Ohio. Chambers of Commerce, etc., §§ 3827, 3829. the verdict of a jury in the proceedings instituted for the purpose, a fund shall be provided for the payment of such compensation together -with the costs and expenses of such proceedings as may have been had, by issuing the bonds of such city for the amount thus ascertained; and it shall be the duty of the board of public improve- ments of such city to issue said bonds. Said bonds shall be made payable at such time and shall bear interest at such rate not to exceed four (4) per centum per annum as said board of public improvements shall determine; said bonds shall be signed by the president of the board of public improvements and the mayor of such city, and be attested by the comptroller of such city, and shall be secured by a pledge of the faith of sucli city and a tax, which it shall be the duty of the council of such city annually to levy upon the taxable property of such city, and certify the same to the county auditor, upon a certificate to that effect from the trustees of the sinking fund of such city, as to the amount necessary to pay the interest thereon and to provide a sinking fund for the final redemption of said bonds. Said tax shall be in addition to the amount now authorized to be levied for municipal purposes. Said bonds shall be sold to the highest bidder by said board of public improvements at not less than their par value, after advertising the same for not less than four consecutive weeks, on the same day of the week, in some newspaper of general circulation in such city. (April 4, 1888, 85 v. 152; April 20, 1890, 87 v. 241.) § 3827. OFFICERS OF BOARD OF TRADE, CHAMBER OF COMMERCE, ETC. — The oflacers of an incorporated board of trade, chamber of commerce or merchants' exchange or other kindred association, shall consist of a president, two vice-presi- dents, treasurer, secretary, and not less than ten directors, all of whom shall be mem- bers of the association, and be engaged in business at, or residents of the city or town where it is established; they shall be elected by ballot at the annual meeting of the association, and shall hold their office for one year, unless said association shall, by its by-laws, provide a longer term for all or any of said officers, and until their successors are elected and qualified; the officers thus elected, together -with said directors, shall constitute the board of directors of such association; provided, how- ever, that any such association may provide for the election of not less than ten directors, as aforesaid, and by its by-laws authorize said directors to elect a presi- dent, two vice-presidents, a treasurer and a secretary, and such additional directors as may be necessary to complete the maximum membership of the board, all of whom shall be members of said association; the officers thus elected, together with said directors, shall constitute the board of directors of such association; and all other officers, agents or committees deemed necessary for the interest of the association, shall be elected or appointed in such manner and with such powers as may be provided by the by-laws of the association. And in like manner said association may have the power to provide for the trial, suspension, fine or expulsion of any of its members by the board of directors constituted as hereinbefore provided. And said association may make provision for the relief and support of the families and dependents of deceased members. (January 24, 1876, 73 v. 3 § 4; R. S. 1880; March 5, 1883, 80 V. 40; April 4, 1894, 91 v. 108.) Appointment of inspectors. Under this section the Association of the Tobacco Trade of Cineinnaii is authorized to appoint an inspector of leaf tobacco, whose duties are to be prescribed by the by-laws and rules of the association, and the performance of his duties, at the instance of members of the association, is not a usurpation of the duties required of the inspectors appointed under § 4340.— State ex rel. v. Casey, 38 Oh. St. 555 (1883). § 3828. MAY APPOINT COMMITTEES OF ARBITRATION. — Such corporations may constitute and appoint committees of reference and arbitration, and committees of appeals, who shall be governed by such rules and regulations as may be prescribed in rules or by-laws for the settlement of such matters of reference as may be volun- Powers of Certain Corporations. 551 Cliambers of Commerce, etc. — Building and Loan Associations, §§ 3829-3836-1. tarily submitted for arbitration, by members of the association, or by other persons not members thereof. (April 3, 1866, 63 v. 89, § 5.) S 3829. MAY KEQUIRE BONDS PROM OFFICERS. — Such corporations may receive and require of and from their ofScers, whether elected or appointed, good and sufficient bonds for the faithful discharge of their duties and trusts, which bonds shall be conditioned and made payable as prescribed by the by-laws of the corpora- tions, and may toe sued (on), and the money collected and held for the use of the party injured, or such other use as may be determined upon by the corporation; and the president, a vice-president, or the secretary of any such corporation, may administer such oaths of office as may be prescribed in its by-laws. (April 3, 1866, 63 v. 89, § 6.) § 3830. MAY APPOINT INSPECTORS, ETC. —Every inspector, ganger, -weigher, or measurer appointed by any such association shall be recognized as a legally appointed officer, for the duties pertaining tO' his position, in the city and county wherein the association is located, and shall be subject to all the provisions and penalties of the laws relating to such officers; and the certificate of such appointee as to his official acts shall be evidence, and binding upon the persons interested. (April 3, 1866, 63 v. 89, § 9.) § 3830a. INSPECTORS, GAUGERS, ETC., MAY APPOINT DEPUTIES. — Every inspector, ganger, weigher or measurer appointed by any board of trade or chamber of commerce heretofore or hereafter organized in this state may appoint one or more deputies to be approved by the board of directors or board of officers of such board of trade or chamber of commerce, and the said inspector, ganger, weigher or meas= Tirer may take from his deputy «, bond, with sureties, conditioned for the faithful performance of the duties of the appointment, but in all cases said inspector, ganger, weigher or measurer shall be responsible for his deputy's neglect of duty or miscon- duct in office. (April 6, 1883, 80 v. 98.) § 3831. OTHER LIKE ASSOCIATIONS MAY HAVE BENEFIT OF THESE PROVISIONS. — Any board of trade or chamber of commerce heretofore organized in this state may avail itself of the privileges and powers, in whole or in part, con- ferred by the three preceding sections, by making a certificate of its adoption thereof, nnder its seal, and attested by the signature of its president and secretary, which shall be filed in the office of the secretary of state, and when so filed shall confer all the privileges and powers so defined. (April 3, 1866, 63 v. 89, § 11.) § 3832. MAY PURCHASE OR LEASE GROUNDS AND ERECT BUILDINGS; ISSUING OF BONDS. — Any such incorporated association may purchase or lease suitable grounds and erect thereon such buildings as the board of directors deem proper, for the interest of the association, and such association may lease any portion of such building, that is not occupied by or needed for its immediate use. And such incorporated association shall have power, for the purposes mentioned in this section to borrow money and execute and sell or otherwise dispose of its bonds or other obli- gations secured by a mortgage of its property or otherwise. (April 3, 1877, 74 v. 145, § 1; R. S. 1880; February 21, 1887, 84 v. 33.) § 3836-1. BUILDING AND LOAN ASSOCIATIONS; DOMESTIC; FOREIGN. — A corporation for the purpose of raising money to be loaned among its members shall be known in this act as a building and loan association. Associations organ- ized under the laws of this state shall be known in this act as " domestic " associa- tions, and those organized under the laws of other states or territories, as " foreign " associations. Associations may be organized and conducted under the general laws 552 Private Corporations in Ohio. Building and Loan Associations, §§ 3836-2-3836-3. of Ohio relating to corporations, except as otherwise provided in this act. (May 1, 1891, 88 V. 469.) General laws. i poration, and its members are to be decided Building associations are corporations | according to the statutes of Ohio relating to formed for profit, having a capital stock and I such corporations. — Hinman v. Kyan, 3 0. the respective povyers and duties of the cor- | C. C. 529 (1888) ; s. c, 2 C. D. 305. § 3836-2. CAPITAL; WHEN MAY BEGIN BUSINESS. — The capital stock named in the articles of incorporation shall be deemed to refer to the authorized capital, and the organization may be completed and business commenced when five per cent, thereof is subscribed. DIRECTORS' TERMS. — Directors may be elected for any term, not less thaa one year nor longer than three years, but if such term be longer than one year, it shall be so arranged that the term of office of an equal number of directors, as nearly as may be, will expire each year. (May 1, 1891, 88 v. 469.) § 3836-3. Such corporation shall have power: DEPOSITS. — To receive money on deposit from time to time to the extent neces- sary to meet the demands made on it by its members and depositors, but shall not pay interest thereon, exceeding the legal rate. Bights of depositors. The rules governing the rights of deposit- ors in building and loan associations diflFer from those governing the rights of depositors in banks or other companies where the depos- itor is a stranger to the companv. — Sachs v. Duckworth, etc., Ass'n, 4 N. P. "214 (1897) j s. c, 6 Dec. 484. STOCK. — To issue stock to members on such terms and conditions as the consti- tution and by-laws may provide; but no person shall vote more than twenty shares in any such corporation in his own right. Holding stock in excess of limit. An association cannot, by its action, author- ize or permit a member to hold more than twenty shares of its stock in his own right. — State ex rel. v. Greenville, etc., Ass'n, 29 Oh. St. 92 (1876). Same subject. An executory contract between a building association and one of its members, in respect to shares claimed by him in his own right and in excess of twenty shares, is ultra vires, and cannot be enforced by action. — Simpson v. Building, etc., Ass'n, 38 Oh. St. 349 (1882). Holding more shares than rules allour — effect. The fact that a member is permitted to hold in his own right a number of shares greater than the maximum prescribed by the by-laws of the company, but not in excess of the number limited by statute, is not a matter of defense by such member against the claims of the company against such shares. The association may waive its rule. — Hagerman v. Ohio, etc., Ass'n, 25 Oh. St. 186. Taking shares in another's name to ob- tain more than limit — estoppel. Where one signs a mortgage given to secure a loan taken in his name by another for the purpose of evading this section, he is estopped to plead this as a defense. — See Ohio, etc., Ass'n V. Leyden, 1 W. L. B. 126 (1876); Victoria, etc., Ass'n v. Arbeiter Bund, 6 W. L. B. 823 (1882). Transfer fees — not chargeable to equi- table oivner. See Northwestern, etc., Ass'n v. Henderson, 3 W. L. B. 386 (1878). Injunction to prevent transfer. See Fox v. Baldwin, 0. D. (Dayton) 132. DUES, FINES, INTEREST AND PREMIUM. — To asses and collect from mem- bers and depositors such dues, fines, interest and premium on loans made, or other assessments, as may be provided for in the constitution and by-laws. Such dues, fines, premiums or other assessments shall not be deemed usury, although in excess of the legal rate of interest. Constitutionality. This section, in exempting associations from the operation of the usury laws, is in violation of §§ 1 and 2 of the Bill of Rights, and is void. — Mykrantz v. Globe, etc., Ass'n, 19 O. 0. C. 51 (1899); s. c, 10 C. D. 250. See opinion of A. T. Brewer, contra, 42 W. L. B. 330. Powers of Certain Corporations. 553 Building and Loan Associations, § 3836-3. Interest payable to receiver. Although the association is in the hands of a receiver, and dues have stopped by common consent, a loan continues to draw interest, without any order of court, it being no de- fense to show that this interest is unneces- sary to equalize the members, and the re- ceiver is entitled to a decree for accrued and unpaid interest without prejudice to future action. — Hinman v. Ryan, 3 0. C. C. 529 (lSo8); s. c, 2 U. D. 305. Premiums — hcnr fixed under old law. Premiums could only be fixed by competitive bidding, and the association had no power to fix the premium as a condition of making the loan. — State ex rel. v. Oberlin, etc., Ass'n, b5 Oh. St. 258 (1879); State ex rel. v. Greenville, eic, Ass'n, 29 Oh. St. 92 (1876); Bates v. Peoples, etc., Ass'n, 42 Oh. St. 655 (1885). 'When premium cannot be collected. Where the premium is fixed by a rate per cent., the association cannot recover the pre- mium for a longer period than that fix;d in the contract of loan. If the time of payment of the loan is extended either by a renewal of the note or mere forbearance to collect, no premium can be collected after the maturity of the note and mortgage*. — Peoples, etc., Ass'n V. Stevens, 3 W. L. B. 112 (1878). Extortionate premiums. See Home, etc., Ass'n v. Boning, 7 W. L. B. 174 (1882). Interest on premiums. Associations are not authorized to charge interest on the premiums allowed for prece- dence in taking loans. The money actually advanced is the basis for the computation of interest. — Forest City, etc., Ass'n v. Gal- lagher, 25 Oh. St. 208 (1874). See Ohio, etc., Ass'n V. Leyden, 1 W. L. B. 126 (1876). Dues in insolvent associations. When an association is insolvent, and is in the hands of a court for liquidation, dues will only be payable as ordered by the court for the purpose of paying debts and equalizing stockholders among themselves — Hinman v. Ryan, 3 0. C. C. 529 (1888) ; s. u., 2 C. D. 305. Dues are payments on stock. Where the dues are to be paid until the amount of capital is paid in full, such pay- ments are analogous to called payments of installments on stock subscriptions in other corporations. — Hinman v. Ryan, 3 0. C. C. 529 (1888) ; s. c, 2 C. D. 305. Power to assess fines. An association may, by its by-laws, assess and collect a reasonable fine for default in the payment of a stated due, but cannot assess or collect more than one fine for the nonpayment of the same stated due. There is no power in the association to levy, assess or collect a fine for any default in the payment of interest on loans andvanced. — Hagerman v. Ohio, etc., Ass'n, 25 Oh. St. 186 (1874); Forest City etc., Ass'n v. Gallagher, 25 Oh. St. 208 (1874). Security for payment of fines. Where a loan is advanced to a member on his stock, it is within the capacity of the association to take security from such mem- ber by mortgage or otherwise for the payment of fines, as well as dues, which may be law- fully assessed on account of such stock. — Hagerman v. Ohio, etc., Ass'n, 25 Oh. St. 186 (1874). Fines collectible to time of decree for sale, but not afternrard. See Hutchinson v. Straub, 16 0. C. C. 452 (1879); s. c, 9 C. D. 171; Wlndisch v. Kor- man, 5 W. L. B. 364 (1880). Usury, The various charges in excess of the legal rate of interest are not usurious. — Lucas v. Greenville, etc., Ass'n, 22 Oh. St. 339 (1872). Usury — premium not. Since the amendments to the original act, the association has the right to fix the pre- mium, though such sum, when added to the interest, exceeds the legal rate of interest allowed by the statutes in other eases, and such excess is not usurious. — Peoples, etc., Ass'n V. Roberts, 5 N. P. 86 (1898) ; s. c, 5 Dec. 489. See Bates v. Peoples, etc., Ass'n, 42 Oh. St. 655 (1885) ; Mykrantz v. Globe, etc., Ass'n, 19 0. C. C. 51 (1899); s. c, 10 C. D. 250; opinion of A. T. Brewer, 42 W. L. B. 330. Attorney fee. Where a mortgagor has not defaulted on any of the conditions of his mortgage, he can- not be fined or assessed any sum as an attor- ney fee. — Resting v. Donahoe, 13 0. C. C. 653 (1895); s. c, 6 C. D. 262. Time and place of payiipent. No shareholder is entitled to credit for pay- ments made except those made in cash at the usual place of business of the association at the hour fixed by the by-laws for the receipt of dues, and made according to rules. Pay- ments otherwise made are good, if the money actually comes into the hands of the associa- tion. — Sachs V. Duckworth, etc., Ass'n, 4 N. P. 214 (1897); s. c, 6 Dec. 254. In Tvhat nayments to be made. Where the constitution of an association provided that payments should be made in money, payments of dues must be made in cash, and the giving of checks is not pay- ment, and if a check is taken the officers are fictirg as the fi.cents of the member in the matter of the collection of the check, unless it can be shown that the stockholders, by acqui- 554 Private Corporations in Ohio. Building and Loan Associations, § 3836-3. escence in custom or otherwise, authorized a departure from the rules requiring cash pay- ments.— Mueller V. Cohen, 27 W. L. B. 353 (lh92) ; Sachs v. Duckworth, etc., Ass'n, 4 N. P. 214 (1897); s. c, 6 Dec. 254. Default — stoppage of payment — con- sent. Where, the, company being mistaken as to its basis of business, by common consent all stopped paying dues, although the stock was not paid in full, there is no default because WITHDRAWALS. — To permit members to withdraw all or part of their stock deposits at such times and upon such terms as the constitution and by-laws may pro- vide. Any member, however, who withdraws his entire stock or whose stock has matured, shall be entitled to receive all dues paid in and dividends declared, less all fines or other assessments, and less a pro rata share of all losses, if any have occurred. of such common consent. — Hinman v. Ryan, 3 O. C. C. 529 (1888); s. c, 2 C. D. 305. Controversy as to payment — burden of proof. The burden of proof is upon the claimants to show payment made according to law, and this burden is not sustained by the mere in- troduction of the pass-book, showing credits to the amount claimed. — Sachs v. Duckworth, etc., Ass'n, 4 N. P. 214 (1897); s. c, 6 Dec. 2,54. Fo'weT to compromise. An association has power to compromise with a member and release him from further obligation to the corporation, whether the in- debtedness arose from a loan or on a sub- scription for stock. And where the parties to the compromise have acted in good faith, the transaction will not be rescinded because the released member was paid a greater sum oi mojiey than he would have received upon a pro rata distribution of the assets of the con- cern. — Wangerien v. Aspell, 47 Oh. St. 2.50 (1890). See State ex rel. v. Oberlin, etc., Ass'n, 35 Oh. St. 258 (1879); Eversmann v. Sohmitt, 53 Oh. St. 174, 189 (1895); Main Street, etc., Co. v. Richter, 16 0. C. C. 191 (1898); s. c, 9 C. D. 74. Ineciuitable compromise. A compromise which is unfair and inequi- table is not binding and conclusive in an action to adjust liabilities and pay debts. — Main Street, etc.. Co. v. Richter, 16 0. C. C. 191 (1898) ; s. c, 9 C. D. 74. See ilcKeon v. Irish, etc., Ass'n, 5 W. L. B. 52 (1880). Payment of debts to association, irith.- drawal claims. Where the constitution of an association provided that withdrawal claims could only be paid in the order of filing, a mortgagor, having purchased the withdrawal claim of a nonborrowing member which was not yet pay- able, cannot compel the association to cancel his mortgage by tendering in payment the withdrawal claim. — Ward v. North Fair- mount, etc., Co., 5 N. P. 133 (1897); a. c, 8 Dee. 489. Seductions for possible losses. As the settlement of the liability of stock- holders is a matter between creditors and stockholders, the association cannot make deductions in allowing withdrawals to pro- vide for possible losses. — Jungkuntz v. West Liberty, etc., Ass'n, 6 W. L. B. 428 (1881). Notice of , \iritbdraDFal does not change stockholder or member into creditor. See Rehn v. North Fairmount, etc., Co., 5 IT. P. 314; s. c, 7 Dec. 398; s. c, 6 N. P. 185 (1S99); s. c, 8 Dec. 594. CANCELLATIONS. — To cancel shares of stock upon which all payments have been withdrawn, or upon which loans have been canceled, and re-issue them as new stock. STOCK OP MINORS. — To issue stock to minors and permit the same to be with- drawn as other stock, and the receipt of such minor shall be a valid acquittance, if his rights have been fully secured to him. REAL ESTATE AND PERSONAL PROPERTY. — To acquire, hold, encumber and convey such real estate and personal property as may be necessary for the trans- action of its business or necessary to enforce or protect its securities. are void in the hands of holders with notice. — Vos V. Cedar Grove, etc., Ass'n, 9 W. L. B. 194 (1883). Cannot buy real estate for allotment. A building association has no power to pur- chase land on credit to be allotted among its members, and its notes given in part payment BORROWING MONEY. — To borrow money, not exceeding twenty per cent, of the assets, and issue its evidences of indebtedness therefor. Purposes for ivhich money may be borroTved. See State ex rel. v. Oberlin, etc., Ass'n, 35 Oh. St. 258 (1879). Powers of Certain Corporations. 555 Building and Loan Associationa, § 3836-3. LOANS. — To make loans to members and depositors on such terms, conditions, and securities as may be provided in the constitution and by-laws. Not a grant of banking pourers. This act is not an act granting " banking powers" within the meaning of § 7, art. 13, of the constitution. — Bates v. Peoples, etc., Ass'n, 42 Oh. St. 655 (1885). General banking business. An association has no power to make loans and discounts except as provided, and hence no power to do general banking. — See State ex rel. v. Greenville, etc., Ass'n, 29 Oh. St. 92 (1876). Corporation may become borrowing member. Notwithstanding the general law, that one company cannot become a shareholder in an- other, a corporation for the purpose of borrow- ing money may become a member of a loan association. — Nonvalk Savings Bank Co. v. Norwalk Metal, etc., Co., 14 0. C. C. 1 (1897); s. c, 7 C. D. 275. lioans to nonmembers. An association cannot loan money to per- sons who are not members. — State ex rel. v. Oberlin, etc., Ass'n, 35 Oh. St. 258, 262 (1879) ; State ex rel. v. Greenville, etc., Ass'n, 29 Oh. St. 92 (1876). Wko is depositor. A person who applies to a, building and loan association for a loan of money, and deposits therewith a sum of money, however small, for the purpose of making himself eligible as a borrower, and thereby receives a loan, is estopped, when sued for the money by the association, from denying that he was in fact a depositor. — Bates v. Peoples, etc., Ass'n, 42 Oh. St. 655 (1885). Same subject. A loan to a depositor is not invalid, though he made a deposit the day the loan was made, and drew it out the day after. — Lockwood v. Eobbins, 1 C. L. Rep. 101 (1878). Refusal to loan to members — ouster. See State ex rel. v. Oberlin, etc., Ass'n, 35 Oh. St. 258 (1879). Purpose of loan — inquiry. Associations are not required to ascertain the use to which a member, who obtains a loan on his stock, intends to apply the money. The borrower may use the money for the pay- ment of debts generally, or in his general busi- ness, or for any other purpose. — Hagerman V. Ohio, etc., Ass'n, 25 Oh. St. 186 (1874). Foreclosure — distribution — computa- tion. Where the mortgage is given to secure dues, fines and interest, the computation in an order of distribution is made by adding (1) amount found due by order of sale, (2) interest on that amount to confirmation, (3) dues and interest from order of sale to eonfiimation, (4) average interest on that amount, (5) present value of future dues and interest from date of confirmation. — Windisch v. Korman, 5 W. L. B. 364 (1880); Monitor, etc., Ass'n V. Eggen, 5 W. L. B. 752 (1880). See Cincin- nati, etc., Ass'n v. Flaeh, 1 C. S. C. 468 (1871) ; Central, etc., Ass'n v. O'Connor, 5 W. L. B. 853 (1880). Same subject — permanent association. Where the association is a permanent one, the time is to be estimated according to what would be required for paying the particular shares. Future profits must also be estimated and credited, and where the by-laws so pro- vide a balance struck at the end of each year, and computations made on that basis. — Alle- mania, etc., Ass'n \ . Mueller, 8 W. L. B. 97 (1882). Breach of condition of mortgage — de- cree. After breach of the condition of a mortgage given to secure the payment of stated dues, interest on loans advanced, and fines, the de- cree in an action to foreclose should be con- fined to the amount of such dues, interest and fines then due and unpaid. — Hagerman v. Ohio, etc., Ass'n, 25 Oh. St. 186 (1874). Se • Ohio, etc., Ass'n v. Leyden, 1 W. L. B. 126 (1876); Risk v. Delphos, etc., Ass'n, 31 Oh. St. 517 (1877). Suit brought prematurely. Where the constitution and by-laws of an association provide that suit may be brought on a loan where the borrowing member is three months in arrears in the payment of his dues, an action brought before such three months have elapsed is prematurely brought. — Home, etc., Co. v. Tenney, 7 N. P. 130 (1898); s. c, 8 Dec. 391. Taxes on property given as security — rights of association. See Bates v. Peoples, etc., Ass'n, 42 Oh. St. 655 (1885). CANCELLATION OF LOANS. — To cancel such loans and release the securities on such terms as the board of directors may provide. But any member may have bis loan canceled upon the following terras, to wit: After the premium for one year has been paid, and also the interest and premium up to the date of cancellation, the bor- rower shall pay the sum actually borrowed, less the dues paid and dividends credited. 556 Private Corporations in Ohio. Building and Loan Associations, § 3836-3. He shall pay also any fines or otlier assessments required by the constitution or by-laws. Power to traffic in stock. An association cannot purchase its own shares of stock for the purpose of disposing of them to persons not intending to become members of the association, with a view of making such share the basis of loans to such persons. — State ex rel. v. Oberlin, etc., Ass'n, 35 Oh. St. 258 (1879). 'When cancellation should be made. A borrowing member is one who receives in advance the par value of his shares, and agrees, in consideration of such advance, to pay dues on the shares and interest on the loan until the dues paid and the dividend de- clared are equal to the par value of his shares. He then ceases to be a member, and is entitled to a cancellation of the mortgage given to secure the obligations arising from the loan. — Eversmann v. Schmitt, 53 Oh. St. 174 (1895); Home, etc., Co. v. Tenney, 7 N. P. 130 (1898); s. u., 8 Dee. 391. Cancellation by heirs or legal repre- sentatives. Where an association provides by its by- laws that in case a shareholder who has re- ceived a loan shall die, " his or her heirs or legal representatives may return the same to the association " and receive the value of the stock as fixed by the by-laws, or they may continue the loan, held, that if they elect to return the loan, the amount to be returned is the money actually received plus the premium bid for precedence. — Licking, etc., Ass'n v. Bebout, 29 Oh. St. 252 (1876) Payment of premium. See Windhorst v. Germania, etc., Ass'n, 7 W. L. B. 29 (1882). RESERVE ETJWD. — To accumulate from the earnings and invest as the board of directors may determine, a reserve fund, for the payment of contingent losses. DIVIDENDS. — To make such annual or semi-annual distribution of the earn- ings (after paying expenses and setting aside a sum for the reserve fund as herein- after provided), as the constitution and by-laws may prescribe. INCREASE OR DECREASE OP CAPITAL OR PACE VALUE OF SHARES. — To increase or decrease its authorized capital or the face value of its shares at any time, by a majority vote of its board of directors; and a certificate of such action shall be made by the president and secretary, and duly filed with the secretary of state. DISSOLUTION. — To dissolve the corporation when its continuance shall be deemed, by a majority vote of its members, to be no longer desirable, subject, how- ever, to the vested rights of members. See § 3836-27. Dissolution of corporations. In re Home, etc., Ass'n, 3 N. P. 145 (1896) ; § 5687. See North Fairmount, etc., Co. v. s. c, 4 Dec. 272. Eehn, 6 N. P. 185 (1899) ; s. c, 8 Dec. 594; CONSTITUTION AND BY-LAWS. — To provide, by constitution adopted by its members, and by-laws adopted by its board of directors, for the proper exercise of the powers herein granted, and the conduct and management of its affairs. Amendments. By-laws may be amended notwithstanding the fact that they contain no provision for amendments, and though they may be signed by all the members, — Wangerien v. Aspell, 47 Oh. St. 250, 260 (1890). Amendments must except existing con- tracts. The mortgage contracts between borrowing members and building associations create vested rights as to reoate of interest, etc., which the association cannot change without their consent. A threatened change may be enjoined.— Betz v. Fulton, etc., Ass'n. 1 N. P. 42 (1894); s. c. 1 Dec. 58 See Burke v. Home, etc., Ass'n, 7 \\. L. B. 114 (1882); Home, etc., Ass'n v. Boning, 7 W. L. B. 174 (1882). Changes in constitution cannot affect existing contracts. See Wvatt v. Workingmen's, etc., Co., 12 Dec. 526' (1902). Proof of by-laws. It is not necessary to prove the adoption of by-laws by a formal vote of the membei-s or directors. The adoption of by-laws is suffi- ciently proved by showing that they appear upon the records of the corporation, and have been uniformly acted upon and enforced as the by-laws of the association. — Hagerman v. Ohio, etc., Ass'n, i,5 Jh. St. 186 (18'<4). Powers of Certain Corporations. 557 Building and Loan Associations, §§ 3836-4, 3836-5. Estoppel to deny legality of constitu- tion. Where a member has long acquiesced in operations of the company according to its constitution, and many rights of third per- sons have intervened so that the acts cannot be undone or statu quo restored, such member is estopped from claiming such operations were contrary to statute. — • See Ruehlman v. Atlantic, etc., Co., 6 0. C. C. 285 (1892) ; s. c, 3 C. D. 456; Delringer v. Carlisle, etc., Ass'n, 2 Dec. 543 (1893). By-laws — duty to insure. Where the by-laws of a company provide that in case a borrower fails to insure the mortgaged property, the company shall cause the same to be insured; the company after in- suring property must attend to renewals and in case it fails to do so and the property is destroyed, it is liable for the loss. — Geswine V, Star Building, etc., Co., 23 0. C. C. 477 (1902). GENERAL POWERS. — All such other powers as are necessary and proper to enable such corporation to carry out the purpose of its organization. (May 1,' 1891, 88 V. 469.) Not banking poTirers. The advancing of money by a building asso- ciation to its members is not the exercise of banking powers. — Forest City, etc., Ass'n v. Gallagher, 25 Oh. St. 208 (1874). Agents. A representative of the company authorized to transact most of its business does not be- come the agent of a borrower by receiving a commission for making a loan. — See Mc- MuUen v. Griggs, 23 O. C. C. 417 (1902). § 3836-4. DEPOSIT IN BANK AND CHECKS THEREON; TREASURER'S BANK BOOK; EXPENDITURES. —The board of directors shall designate a bank or banks in which the treasurer shall deposit all funds in the name of such corporation. Such funds can then be withdrawn only by check signed by the president and financial secretary, or such other officers as the board of directors may designate. The treas- urer's bank book shall be open to the inspection of any director at any time. No president or secretary or other officer shall sign any check unless the expenditure has been authorized by the board of directors. BONDS OP OFPICERS; DIRECTORS INELIGIBLE AND PERSONALLY LIABLE. — All officers of such association who have charge or possession of money, securities, or property, shall give bond before entering upon their duties to the satis- faction of the board of directors, for the faithful performance of the same, and the safe-keeping and proper application of all moneys or property coming into their hands. All officers of such corporations on being re-elected to office shall renew their bonds. The bond may be increased or additional sureties required at any time by the board of directors. Directors shall not be eligible as bondsmen, and shall be individually liable for any loss to members, caused by their neglect to comply with the provisions of this section. (May 1, 1891, 88 v. 469.) Official bonds. See Building Ass'n v. Cummings, 45 Oh. St. 664 (1888). Bond of attorney. An attorney for an association is not an oflicer, and his bond is not an official bond. See further as to liability of sureties, New German, etc., Co. v. Kuehnert, 7 N. P. 264 (1896); s. c, 6 Dec. 502. Set-ofF. In an action by a withdrawing shareholder of a building association for the amount of his paid-up installments, with dividends, the assocation may plead, by way of set-off and affirmative relief, any claim which the associa- tion may have against such withdravring shareholder by reason of moneys wrongfully and unlawfully paid out to him while acting as treasurer of such association. — Gelhaus v. Allemania, etc.. Ass'n, 4 N. P. 255 (1897); s. c, 6 Dec. 443. § 3836-5. TUND FOR CONTINGENT LOSSES. —The amount to be set aside to the fund for contingent losses shall be determined by the board of directors, but in all permanent or perpetual associations, at least five per cent, of the net earnings shall be set aside each year to such fund until it reaches at least five per cent, of the out- standing loans. All losses shall be paid out of such fund until the same is exhausted, and whenever the amount in said fund falls below five per cent, of the loans as afore- 558 Private Corporations in Ohio. Building and Loan Associations, §§ 3836-6, 3836-7. said, it shall be replenished by annual appropriations of at least five per cent, of the net earnings as hereinbefore provided until it again reaches said amount. (May 1, 1891, 88 V. 469.) Who interested in reserve. All members, whether borrowers or not, have a pro rata interest in the reserve fund. — Seibel v. Building Ass'n, 43 Oh. St. (1885). 371 § 3836-6. EARNINGS; APPLICATION OF. — All expenses of such associations shall be paid out of the earnings only, and so much of the earnings as may be neces- sary shall be set aside each year for such purpose. But charges incident to a loan, if paid by the borrower, shall not be deemed a part of the current expenses. DIVIDENDS. — A portion of the earnings, to be determined by the board of directftrs, shall also be reserved annually or semi-annually, for the payment of con- tingent losses, as provided in section five (§ 3836-5) of this act, and the residue of such earnings shall be transferred as a dividend annually, or semi-annually, in such proportion to the credit of all members, as the corporation by its constitution and by-laws may provide, to be paid to them at such time and in such manner in con- formity with this act as the corporation by its constitution and by-laws may provide. Estoppel as to dividends. Where one on borrowing is fully advised as to how dividends are declared, and received them several years on that basis, and allowed other members to be dealt with in the same way, and it is impossible to recast accounts, he will be estopped to deny the legality of the division. — Ruehlman v. Atlantic, etc., Co., 6 0. C. C. 285 (1892); s. c, 3 C. D. 456. See Deiringer v. Carlisle, etc., Ass'n, 2 Dec. 543 (1893); s. c, 36 W. L. B. 328; Atlantic, etc.. Co. V. Vogeler, 7 N. P. 605 (1895); s. c, 5 Dec. 581. Dividends nnder prior act. See Seibel v. Building Ass'n, 43 Oh. St. 371 (1885) ; Ruehlman v. Atlantic, etc.. Co., 6 0. C. C. 285 (1892); s. c, 3 C. D. 456; Turner, etc., Verein v. Woodbum, 27 W. L. B. 409 (1892); Deiringer v. Carlisle, etc., Ass'n, 2 Dec. 643 (1893). LOSSES. — All losses shall be assessed in the same proportion and manner on all members after the amount in the reserve fund has been applied to the payment of the same. (IVtay 1, 1891, 88 v. 469.) Losses shared by all members. The members of a building association, whether borrowers or nonborrowers, must as- sist alike in bearing losses. Where a borrow- ing member's mortgage secured the pajrment of assessments, it secures an assessment made by a receiver against all members to equalize losses. — Eversmann v. Schmitt, 53 Oh. St. 174 (1895). See McKeon v. Irish, etc., Ass'n, 5 W. L. B. 52 (1880). Basis of assessment. The proper basis of assessment upon the stock of an insolvent association to pay its debts and equalize losses, both in case of bor- rowing and nonborrowing members, is dues and earnings which should stand to the credit of his stock. — Main Street, etc., Co. v. Rich- ter, 16 0. C. C. 191 (1898) ; s. c, 9 C. D. 74. See In re Building Ass'n, 7 N. P. 518 (1897) ; a. c, 5 Dee. 556. Notice of vithdranral does not cut off liability. The notice to withdraw by a building asso- ciation stockholdei', depositor or member does not save him from liability in the loss which the association may suffer before he succeeds in withdrawing. — Harrison, etc., Ass'n v. Howell, 39 W. L. B. 386 (1898); s. c, 5 N. P. 273; s. c, 7 Dec. 353. Mortgage not satisfied till losses pro- rated. Though a certificate of stock may provide for full payment in a certain time, a mortgage given to secure an advance will not oe satis- fied until losses are prorated. — Havnes v. Peoples, etc., Ass'n, 2 N. P. 181 (1895") ; s. c, 3 Dec. 228. § 3836-7. TJNDEAWN SHARES LISTED AS CREDITS. — The shares and loans, advanced to its members, shall be exempt from taxation, except shares of stock upon which no loans have been made or money advanced by the colnpany, shall be consid- ered and held as credits, and the said members individually shall list for taxation the number of shares held by them, and the true value thereof in money, on the day pre- Powers of Certain Corporations. 559 Building and Loan Associations, §§ 3836-8-3836-12. ceding the second Monday in April in eacli year, and the same shall be assessed at such valuation for taxation and taxes as other property. (May 1, 1891, 88 v. 469.) § 3836-8. BXTEEATJ OP BUILDING AND LOAN ASSOCIATIONS. —There is hereby established in the department of insurance a bureau to be known as the bureau of building and loan associations, which shall be charged with the execution of the laws of this state relating to building and loan associations. (May 1, 1891, 88 v. 469.) Duties as to bond and investment companies. — See § 3821r et seq. § 3836-9. INSPECTOR; COMPENSATION; BOND; OATH. —The chief officer of said bureau shall be known as the inspector of building and loan associations; the superintendent of insurance, shall, ex-officio, be also the inspector of building and loan associations, and as compensation for his services as such inspector he shall be entitled to receive the sum of one thousand dollars per annum. Before entering upon his duties, he shall give bond to the state of Ohio in the sum of ten thousand dollars, to be approved by the governor, conditioned for the faithful discharge of his duties, and the bond, with his oath of office and the approval of the governor indorsed thereon, shall be filed with the secretary of state. DEPUTIES; CLEBJCS. — The inspector may appoint a deputy, who shall be authorized to perform the duties attached by law to the office of inspector, during his absence or disability, and shall receive a salary 'of eighteen hundred dollars per year. He shall also appoint such other clerks or examiners as may be provided for by law. (May 1, 1891, 88 v. 469.) § 3836-10. OFFICES AND EXPENSE. — The adjutant-general shall provide suitable accommodations for the conduct of the business of the bureau in the office of the superintendent of insurance and furnish the necessary furniture, etc., and the expense for the same shall be paid out of the state treasury, on the certificate of the inspector and the warrant of the adjutant-general. (May 1, 1891, 88 v. 469.) § 3836-11. INSPECTOR MUST ENFORCE LAWS. —It shall be the duty of the inspector to see that all the laws of this state, relating to building and loan associa- tions, are -faithfully executed. (May 1, 1891, 88 v. 469.) § 3836-12. LAWS GOVERNING; AUTHORITY PROCURED BY DEPOSIT; BY FILING COPY OF CHARTER, AND BY PROVIDING FOR SUMMONS IN ACTIONS. — Foreign building and loan associations doing business in this state, shall conduct the same in accordance with the laws of the state governing domestic associations, and no such association shall do any business in this state until it procures from the inspector a certificate of authority to do so. To procure such authority, such associa- tion shall comply with the following provisions: First. It shall deposit with the inspector one hundred thousand dollars, either in cash or bonds of the United States or of the state of Ohio, or of any county or munici- pal corporation in the state of Ohio, satisfactory to the inspector. Second. It shall file with the inspector a certified copy of its charter, constitution and by-laws, and other rules and regulations showing its manner of conducting busi- ness together with a statement such as is required annually from all associations. Third. It shall also file with the inspector a written instrument, duly executed, agreeing that a summons may issue against it from any county in this state directed to the sheriff of the county in which the office of inspector is situate, commanding him to serve the same by certified copy personally upon the inspector or by leaving a copy thereof at his office. The inspector shall, however, mail a copy of any papers 560 Private Corporations in Ohio. Building and Loan Associations, §§ 3836-13-3836-18. served on him, postage prepaid, to the home office of such association. (May 1, 1891, 88 V. 469.) Exemption from laws governing foreign corporations. — See §§ 148c and 148d. § 3836-13. CERTIFICATE OF AUTHORITY TO DO BUSINESS. — Whenever such association has complied -with the provisions of this act, and the inspector is satisfied that such association is doing business according to the laws of this state, and is in sound financial condition, he shall issue his certificate of authority to such association to do business in this state. Annually thereafter, upon the filing of the annual statement herein provided for, if the inspector shall be satisfied as aforesaid, he shall issue a. renewal of such certificate of authority. (May 1, 1891, 88 v. 469.) § 3836-14. COLLECTION OF INTEREST AND EXCHANGE OF SECURITIES.— Such foreign association may collect and use the interest on any securities so deposited, so long as it fulfills its obligations and complies with the provisions of this act. It may also exchange them for other securities of equal value and satisfactory to the inspector. (May 1, 1891, 88 v. 469.) § 3836-15. SECURITIES LIABLE FOR CLAIMS. — The deposit made with the inspector shall be held as a security for all claims of residents of this state against said association, and shall be liable for all judgments or decrees thereon, and sub- jected to the payment of the same iir the same manner as the property of other non- residents. Should any association cease to do business in this state, the inspector may release securities in his discretion, retaining sufficient to satisfy all outstanding lia- "bilities. (May 1, 1891, 88 v. 469.) I § 3836-16. TO BE FILED ANNUALLY; COPY OF CONSTITUTION AND BY-LAWS. — Every building and loan association doing business in this state shall, annually, at the end of each fiscal year, or within forty days thereafter, make a full and detailed report in writing of the affairs and business of the association for the preceding year, and showing its financial condition at the end of said fiscal year. With the first report made by any association it shall also file a certified copy of its constitution and by-laws, or other rules and regulations, showing its manner of doing business. (May 1, 1891, 88 v. 469.) § 3836-17. FORM; OATH AND ATTESTATION; FILING; POSTING ABSTRACT. — The statement shall be in such form and contain such information as may be pre- scribed by the inspector of building associations. It shall be sworn to by the secre- tary, and its correctness attested by at least three directors, or an auditing committee appointed by the board. The original shall be filed with the inspector of building associations within forty days after the close of the fiscal year, and such an abstract thereof as the inspector may require shall be posted for sixty days in the office or meeting place of such association, and also published in some paper regularly issued in the county in which said association is located. (May 1, 1891, 88 v. 469.) , See § 3836-3. § 3836-18. WHEN TO EXAMINE; EXPENSE THEREOF. — The inspector, when he has reason to suspect the correctnesc of any statement of an association doing business in this state, or that its affairs are in an unsound condition, or that it is not conducting its business in accordance with law, may make or cause to be made by some person by him Rppointed for that purpose, an examination into the affairs of such association. The expense of all examinations provided for herein shall be paid by the state of Ohio; provided, that when, by the laws of any other state, district, territory or nation, examinations of such associations of this state are required or Powers of Certain Corporations. 561 Building and Loan Associations, §§ 3836-19-3836-23. permitted to be made by any ofacial or other authority of such other state, district, territory or nation, at the expense of such associations, then the expenses of all such examinations made by the inspector of this state, of such association of such state, district, territory or nation, shall be respectively charged to and collected from such associations so examined. REVOCATION OF CHARTER FOR ILLEGAL PRACTICES. — Should the in- spector, upon examination, find any domestic association conducting its business in •whole or in part contrary to law, or failing to comply with the law, he shall so notify the board of directors of such association in writing, and if, after thirty days, such illegal practices or failure continue, he shall communicate the facts to the attorney- general, who shall cause proceedings to be instituted in the proper court to revoke the charter of such association. DISSOLUTION IF CONDITION UNSOUND. — Should the inspector find, upon examination, that the affairs of any such association are in an unsound condition, and that the interests of the public demand thie dissolution of such association, and the winding up of its business, he shall so report to the attorney-general, who shall institute the proper proceedings for that purpose. (May 12, 1902, 95 v. 614; May 1, 1891, 88 V. 469.) When association not insolvent. See North Fairmount, etc., Co. v. Rehn, 6 N. P. 185 (1899) ; s. c, 8 Dee. 594. § 3836-19. EXAJVEINERS: POWERS OF. — Such examiners shall have access to and may compel the production of all the books, papers, securities and moneys, etc., of the association, under examination. They shall have power to administer oaths to, and examine the officers and agents of such association as to its affairs. (May 1, 1891, 88 V. 469.) § 383G-20. INSPECTOR MAY PUBLISH RESULT. — When the inspector deems it to the interest of the public, he may publish the results of such examination in some newspaper of general circulation in the county in which such association is located, if it be a domestic association, and in some newspaper in the city of Columbus, Ohio, if it be a foreign association. (May 1, 1891, 88 v. 469.) § 3836-21. MAY CANCEL AUTHORITY OF FOREIGN ASSOCIATIONS. — Should the inspector find, upon examination, that any foreign association does not conduct its business in accordance with the law, or that the affairs of any such asso- ciation are in an unsound condition, or if such association refuses to permit examina- tion to be made, he may cancel the authority of such association to do business in this state, and cause a notice thereof to be mailed to the home office of the association, and ■to be published in at least one newspaper published in the city of Columbus. After the publication of such notice it shall be unlawful for any agent of said association to receive any further stock deposits from members residing in this state, except pay- ments on stock on which a loan has been taken. (May 1, 1891, 88 v. 469.) § 3836-22. FEES TO BE PAID TO INSPECTOR. — Foreign building and loan associations shall pay to the inspector the following fees, to-wit: For filing each application for admission to do business in this state, one hundred dollars. For each certificate of authority and annual renewal of same, fifty dollars; both foreign and domestic associations shall pay to the inspector for filing each annual statement, as follows: If the assets of the association, as shown by the statement filed, amount to $50,000.00 or less, $3.00; if more than $50,000.00 and less than $100,000.00, $5.00; if more than $100,000.00 and less than $250,000.00, $10.00; if more than $250,000.00 and less than $500,000.00, $20.00; if more than $500,000.00 and less than $1,000,000.00, $30.00; if more than $1,000,000.00, $50.00. For each copy of LAW GOV. PRIV. COR. — 36. 562 Private Corporations in Ohio. Building and Loan Associations, §§ 3836-23-3836-25. a paper filed in his office, twenty-five cents per folio. For affixing the seal of office and certifying any paper, one dollar. The fees provided for herein shall be deposited, by said inspector, with the state treasurer upon the warrant of the state auditor. (May 12, 1902, 95 v. 615; May 1, 1891, 88 v. 469.) § 3836-23. SECURITIES TO BE DEPOSITED IN STATE TBEASTJE.Y. — All securities of cash deposited with the inspector shall be immediately deposited with the treasurer of state, who, with his sureties, shall be responsible for the safe-keeping thereof. The treasurer shall deliver such securities only upon the written order of the inspector of building associations. (May 1, 1891, 88 v. 469.) ' § 3836-24. Sec. 24. PENALTIES AGAINST ASSOCIATION. — It shall be unlawful for any building and loan association to do business in this state without having first complied with the provisions of this act, and any association violating any of the provisions of this act, or failing to comply with any of its provisions, shall be fined not less than fifty nor more than one thousand dollars, to be recovered by an. action in the name of the state, and on collection paid into the state treasury; pro- vided, that building and loan associations organized in other states, having hereto- fore transacted business in this state, which shall not have complied with the pro- j visions of this act, shall have the right to close up their business, and fulfill their contracts, heretofore entered into with citizens of this state, through their duly authorized agents, without being subject to the penalties prescribed by this act. (May 1, 1891, 88 v. 469.) § 3836-25. Sec. 25. PENALTIES AND CIVIL LIABILITY OF OFFICERS, AGENTS AND OTHERS; FORBIDDEN ACTS. — Every president, director, trustee, member of any committee, secretary, treasurer, attorney or any other officer at any time created, or agent of any such corporation, who embezzles, abstracts or willfully misapplies any of the moneys, funds or credits of such corporation, or who issues or puts into circulation any warrant or other order, or who assigns, transfers, cancels or delivers up any note, bond, draft, mortgage, judgment, decree, or any other written instrument belonging to such corporation, or raises money otherwise, or receives money from any naember or other person for and in the name of such corporation, unless duly authorized by the board of directors of such corporation; or who shall sign the name of any person to any order or warrant for the payment of mqney w^ith- out proper power of attorney or written order from such person to whose order such warrant or order is made payable; or any member or members of the board of direct- ors who shall vote to declare, or any financial or first secretary of such corporation who shall declare or advise the board of directors of such corporation to declare a greater dividend than what has been actually earned by the corporation, for the pur- pose of deceiving the people or defrauding the members of such corporation; or who certifies to or makes any false entry on any book, report, or statement of or to such corporation, with intent in either case to deceive, injure or defraud the corporation or any other company, body politic or corporate, or any individual person, or to deceive any one appointed to examine the affairs of such corporation; and every person who with like intent aids or abets any president, secretary, treasurer, committee or other officer or person in any violation of this section shall be deemed guilty of a felony, and shall be imprisoned not less than one year nor more than ten years, and shall be liable civilly to the party injured, to the extent of such damage thereby incurred, and suit may be brought against such person and the sureties on his bond given to such corporation for the faithful performance of his duty. Any officer whose duty it Is, failing to make the reports required by this act, and any officer, employe, or other person, who solicits business for, aids or assists any building and loan association to do business contrary to the provisions of this act, or without having complied with its provisions, shall be guilty of a misdemeanor, and on conviction thereof shall be Powers of Certain Corporations. 563 Building and Loan Ass'ns — Trade Ass'ns — Common Carriers, § § 3836-36-3838. fined not more than five hundred dollars, or imprisoned not more than six months, or both. Such fines, when collected, to be paid into the state treasury. (May 1, 1891, 88 V. 469.) I § 3836-26. Sec. 26. ANNUAL BEPOET OP INSPECTOB. — The inspector shall keep and preserve in permanent form a full record of his proceedings, including a concise statement of each association examined, and he shall, annually, make a report to the legislature of the general conduct and condition of the building and loan asso- ciations doing business, in this state, with such suggestions as he may deem expe- dient. Such report shall also include the information contained in the statements required of the associations, and arranged in tabulated form. He shall also report the names and compensation of the clerks employed by him, the whole amount of the income, the source whence derived, and the expenses in detail, during the year ending on the thirty-first day of December. (May 1, 1891, 88 v. 469.) § 3836-27. Sec. 1. DISSOLUTION OR CONSOLIDATION OF BUILDING AND LOAN ASSOCIATIONS. — Building and loan associations shall be authorized to pro- vide in their constitutions and by-laws for the time and terms of the dissolution of such corporations; and also for the consolidation of two or more of such corporations into one, upon such terms and conditions as may be determined upon by their boards of directors; also, in case of the dissolution of any such corporation, its board of directors may, by a majority vote, be authorized to sell and transfer its mortgage securities or other property, or both, to another corporation, person or persons, subject always to the vested and accrued rights of the mortgagors. (April 27, 1893, 90 v. 315; May 1, 1891, 88 v. 469; April 11, 1889, 86 v. 238, § 3835J.) § 3837. CO-OPERATIVE TRADE ASSOCIATIONS. — An association incorporated for the purpose of purchasing, in quantity, grain, goods, groceries, fruits, vegetables, provisions, or any other articles of merchandise, and distributing the same to con- sumers at the actual cost and- expense of purchasing, holding, and distributing the same, may employ its capital and means in the purchase of such articles of merchan- dise as it deems best for the company, and in the purchase or lease of such real and personal estate, subject always to the control of the stockholders, as may be neces- sary or convenient for purposes connected with and pertaining to its business, and may adopt such plan of distribution of its purchases among the stockholders and others as it deems most convenient, and best adapted to secure the ends proposed by the organization; and any profits that may arise from the business of the company may be divided among the stockholders from time to time, as it deemc expedient, in proportion to tlie several amounts of their respective purchases. (April 13, 1867, 64 V. 145, §§ 2, 5.) § 3838. COMMON CARRIERS COMPANIES. — A corporation organized as and for a conftnon-carrier company shall have the following powers: 1. To make all contracts that it shall be lawful for natural persons to make for the carriage of persons, and the storage, forwarding, carriage, and delivery of prop- erty, but subject to the same liabilities. 2. To lease, and to hold and operate, any line of railway and its appendages, either before or after its completion, owned by a municipal corporation of this state, and any railway connected therewith, lying without this state, and such portion of any railway within this state as may be necessary for the convenient dispatch of its business. i! 3. To construct, or complete and equip, any railway and its appendages which it is authorized to lease. 4. To borrow money, not exceeding its authorized capital stock, at a rate of inter- est not exceeding seven and three-tenths per cent, per annum, and execute bonds or 564 Private Corporations in Ohio. Common Carriers — Dock Co's — Elevator Co's — Farm Laborers' Ass'ns, §§ 3839-3844. promissory notes therefor, payable in gold or lawful money, in sums of not less than one hundred dollars, and secure the payment thereof by mortgage or pledge of its property then or thereafter acquired, and its income and franchises, including the franchise to be a corporation; but no mortgage bonds shall be sold at less than par in lawful money, without the consent of a majority in interest of the stockholders, given at a meeting of the stockholders, or in writing. (April 12, 1877, 74 v. 84, § 4.) § 3839. ANY COMPANY MAY SUBSCBIBE TO ITS STOCKS.— Any company incorporated or organized under the laws of this state may subscribe for or become the owner of stock in such corporation; but before any such subscriptions shall be made, the directors of the company subscribing shall be authorized to make the same by a vote of the majority in interest of its stockholders, or obtain their consent thereto in writing. (April 13, 1877, 74 v. 84, § 9.) § 3840. DOCK COMPANIES. — A company organized for the purpose of con- structing and establishing docks in and adjacent to any of the navigable waters in or bordering upon this state, may construct or purchase any dock or docks, and erect thereon any structure suitable for receiving, storing, and delivering produce, and goods of whatever description, and may repair and protect such dock or docks and structures, and sell the same in such manner as may be prescribed by the by-laws of the company. (March 16, 1865, 62 v. 43, § 4.) § 3841. ELEVATOR COMPANIES. — A company or association organized as an elevator company may purchase and hold real and personal estate, erect or purchase, and own, the necessary buildings, offices, and machinery for the purpose of carrying on the business of receiving, storing, delivering and forwarding grain of all kinds, may add to and connect with the same the business of general storage, warehouse- man, and forwarders of all kinds of produce and merchandise, but shall not, on its own account, nor for others, deal as buyers or sellers; and in the prosecution of its business it shall be governed by the same laws, not inconsistent with this section, which govern individuals in such employment. (March 29, 1867, 64 v. 85, § 3.) § 3842. WHEN KAILKOAD COMPANY MAY TAKE STOCK IN SUCH COM- PANY. — When any such company erects or owns an elevator building, and uses the same for the purpose of receiving or delivering grain from or to any railroad coiapany, as freight carried or to be carried over its roads, or any part thereof, such railroad company may subscribe to or purchase shares in the capital stock of the elevator company, to an amount not exceeding one-third of the entire capital stock of the elevator company, in the name of its president or other officer, and hold the same as trustee, and shall be liable upon such stock, in its corporate capacity, to the same extent and in the same manner as in the case of a natural person. (March 29, 1867, 64 V. 85, § 4.) § 3843. FARM LABORERS' ASSOCIATION. — No association incorporated for the purpose of promoting the interests of agriculture, and for the relief of distressed farm laborers, or their widows and orphans, whether such widows and orphans are members of such association or not, and for any other charitable purpose, shall take or hold any real estate, except such as may be actually occupied in the exercise of its legitimate business, and such as it may acquire in securing for or satisfaction of debts justly due it; but real estate so occupied shall not in any case exceed in value the sum of fifty thousand dollars. (May 7, 1877, 74 v. 204, § 5.) § 3844. WHAT INVESTMENT IT MAY MAKE. — Such associations shall, after paying their expenses, invest their funds exclusively for the purposes mentioned in their articles of incorporation, and may invest the same in mortgages upon real estate, Powers of Certain Corporations. 565 Farm Laborers' Ass'ns — Ferry Go's — Firemen's Relief Ass'ns, §§ 3845-3850. or in county, state, or United States securities; they may, in their articles of incorpo- ration, designate the kinds of securities in which their funds shall be invested, in which case no part thereof shall be invested in securities other than those named therein; but they shall not make any loan to any of their trustees or officers; and they may take by gift, subscription, purchase, devise, or loan; but no loan shall be taken for a less term than three years nor for a greater term than twenty years, nor to an amount exceeding one hundred thousand dollars, nor at a rate of interest greater than four per centum, payable semi-annually. (May 7, 1877, 74 v. 204, § 6.) § 3845. MUST KEPORT TO ATTORNEY-GENERAL. — Every such association shall make, annually, and transmit to the attorney-general, under the signatures of a majority of the trustees, attested by the clerk, a full and true statement of its con- dition and affairs; and for any willful neglect to make such report within one month after its annual meeting, the attorney-general may proceed against such association for the forfeiture of its charter for such neglect. (May 7, 1877, 74 v. 204, § 7.) § 3846. CONSOLIDATION OF TWO ASSOCIATIONS. — Any unincorporated association or society organized for any purpose named in section thirty-eight hun- dred and forty-three may be consolidated with an association incorporated for a pur- pose named therein, by a resolution of each, adopted by not less than two-thirds of its members, at a meeting called for that purpose; such resolutions, and the votes thereon, shall be recorded by the clerk of the corporate association, and the consoli- dated association shall thereupon assume the name or title of the corporate associa- tion, and be entitled to all its privileges; but the members of the consolidated association shall not be liable for the debts or obligations of the unincorporated asso- ciation or society. (May 7, 1877, 74 v. 204, § 8.) § 3847. ATTORNEY-GENERAL TO REPORT ANNUALLY. — The attorney- general shall, annually, report to the general assembly, in a, condensed form, the number and condition of such associations, as derived from the annual reports of the tmstees. (May 1, 1877, 74 v. 204, § 9.) § 3848. MAY MAINTAIN LIBRARIES, ETC. — All such incorporated associa- tions may keep and maintain libraries, and a museum of art consisting of models of such improved instruments and machinery as are best calculated to promote the inter- ests of agriculture, for the benefit of such associations, under such rules and regula- tions as its members from time to time adopt, and may make all needful by-laws for the good government and regulation of the same. (May 1, 1877, 74 v. 204, § 11.) § 3849. FERRY COMPANIES. — A corporation organized for the purpose of carrying on the ferry business on any of the water-courses in this state, or bordering thereon, may build, purchase, and hold steam ferry-boats, and other vessels and floats, real estate, landings, wharves, docks, and other property, in this state or elsewhere, deemed advisable and proper to carry on its business, buy or lease, and use, let, or otherwise dispose of the same, or any part thereof, in such manner as it deems advis- able, carry on the ferry business at the place named in its articles of incorporation, transport persons and property, and receive such compensation therefor as may be lawful, and shall be governed by the laws that govern natural persons in such employ- ments. (April 11, 1865, 62 v. 114, § 4.) § 3850. FIREMEN'S RELIEF ASSOCIATION. — An association of members of any regular fire, hose, or hook and ladder company, incorporated for the purpose of affording relief to firemen disabled while on duty, and making donations to indigent, sick firemen, and to the widows and orphans of deceased firemen, may provide for the election of its directors or trustees at separate elections, to be held by the members 566 Private Corporations in Ohio. Firemen's Relief Ass'ns — Fishery Go's — Waterway Go's — Mfg. Go's, §§ 3851-3856. in good and regular standing of each fire, hose, or hook and ladder company who are members of the corporation, and fix the number to be elected by each such company. (March 13, 1861, 58 v. 37, §§ 1, 5, 6.) § 3851. CiSRTAIW POWERS OF SUCH ASSOCIATIONS. — Such corporations may decide what officers they will have, and prescribe the manner of their election, and their duties, may make regulations for the relief of firemen disabled while on duty, and provide for such entrance fee for members, and such weekly, monthly, or yearly assessment upon members, as it deems best. (March 13, 1861, 58 v. 37, § 6.) § 3852. THEIR POWER TO ACQUIRE AND DISPOSE OF PROPERTY. — Such corporation may acquire, hold, enjoy, dispose of, and convey all property, real or per- sonal, which it may acquire by purchase, contribution, donation, assessment upon its members, or otherwise, for the purpose of carrying out the objects of the corporation, but it shall not acquire or hold property for any other purpose; and for the purpose of increasing its funds it may loan its money upon bond and mortgage, under such rules and regulations as may be prescribed, and at an annual interest not exceeding six per cent, per annum. (March 13, 1861, 58 v. 37, § 5.) § 3853. FISHERY COMPANIES. —When a company organized for the purpose of propagating fish and establishing fisheries in this state acquires the right to use any stream, canal, or reservoir, from the owner of the land adjoining thereto, for the establishment of a fishery to be owned, maintained, and used for the purpose of propa- gating fish, no person shall fish therefrom without first obtaining authority from such company; and a person who violates the provisions of this section shall be liable to such company in trespass, or to such fines as may be authorized by law against per- sons trespassing upon lands; but the navigable streams and public canals in this state shall not be subject to the provisions of this section, and nothing in this section shall be so construed as to prohibit the privilege of any person to use or fish from any lake, river, stream, or reservoir which, by custom or usage, has been used for the pur- pose of fishing therefrom as regulated by law. (January 15, 1873, 70 v. 9, §§ 2, 6.) § 3854. COMPANIES FOR IMPROVEMENT OF NAVIGABLE STREAMS. — The directors of a company incorporated for the purpose of improving any stream of v/ater, or any part thereof, declared navigable by any law of this state, may prescribe the rates of toll the company shall be entitled to receive for the passage of any boat or other watercraft through any lock upon such improvement, or for the running of any boat or other watercraft between the locks on the same. (April 6, 1859, 56 v. 239, § 7.) § 3855. MANUFACTURING COMPANIES MUST KEEP CERTAIN ACCOUNTS. — Every manufacturing company shall establish and keep, at some place within one of the counties in which its business is carried on, a principal office, at which shall be kept accurate accounts exhibiting the financial condition of the corporatibn, and of its capital stock or shares, and of all its property of every description, and credits, sub- ject to taxation, which accounts shall at all times be subject to the inspection of any assessor lawfully authorized to assess such property and credits; notice of the place where such office is established, and of any change thereof, shall be published in some newspaper of general circulation in such county; and the principal accounting officer of such company shall be a resident of this state. (March 30, 1857, 54 v. 72, § 82.) Construction. See Mercantile Trust Co. v. Etna Iron Works, 4 0. C. C. 579, 587 (1890); s. c, 2 C. D. 718. I 3856. MAY EXTEND THEIR OPERATIONS. — A company incorporated for manufacturing purposes may, upon a vote of the holders of a majority of its stock, Powers of Certain Corporations. 567 Iron Go's — Market-house Go's — Mining and Manufacturing Go's, §§ 3857-3862. extend its manufacturing operations to articles in the same line of business that are not authorized by the terms of the original articles of incorporation; and after mak- ing a certificate of such vote, and specifying therein how far the manufacturing operations are to be extended, verified by the oath of its president, and filing the same in the office of the secretary of state, such company may manufacture and sell such articles as shall be named or otherwise provided for in such certificate. (April 19, 1861, 58 V. 58, § 1.) § 3857. GOMPANY TO MANUFACTURE lEOH" MAY MAKE STEEL. — Any company incorporated for manufacturing iron may, upon a vote of the holders of a majority of its stock, engage in and carry on the business of manufacturing steel in its various branches. (April 2, 1866, 63 v. 67, § 1.) § 3858. MARKET-HOUSE COMPANIES. — A company incorporated for the pur- pose of constructing and maintaining a market-house may construct, erect, establish, and maintain, at the place named in its articles of incorporation, a suitable building or buildings to be appropriated and used exclusively as a, public market-house, for the sale and vending of meats, vegetables, and all other kinds of provisions, and of fruits, plants, and flowers, and all other articles commonly sold and vended in public market-houses or spaces, on market days, in market hours. (April 19, 1861, ,58 V. 92, §§ 1, 2.) § 3859. POWERS OF SUCH COMPANIES. — Such companies may rent, lease, sell, or dispose of stalls, cellar vaults, or other divisions or spaces in their buildings, in such manner, and upon such terms and conditions, as the directors shall determine; but a uniform rule in renting or leasing such stalls, cellar vaults, or other divisions or spaces, shall be established, printed, and hung in conspicuous places in the build- ings, and the same may be changed, from time to time, by the directors thereof; and no preference shall be made, by any variation or difEerence in rates or prices, in favor of citizens of the city or village wherein the buildings are erected, and against farmers, butchers, or producers not residing in such city or village, and no rule, regu- lation, order, or condition shall be made or exacted by any company to prevent farmers, butchers, or other persons from disposing of their produce, meats, vegetables, or other articles, in such quantities and upon such terms as they may deem proper; but such companies shall prohibit and prevent in their buildings the use of false weights or measures, the exposure or sale of any diseased or decaying meats or vegetables, and any offensive or injurious articles. (April 19, 1861, 58 v. 92, § 5.) § 3860. MAY KEEP STREETS UNOBSTRUCTED. — Such companies may keep the streets, alleys, or avenues in front of their buildings free, open, and clear of any and all obstruction from stoppage of wagons, carriages, or vehicles of any kind, or of horses, mules, or cattle, on market days, in market hours. (April 19, 1861, 58 v. 92, § 6.) § 3861. MAY CONSTRUCT SEWERS. — When any such company erects its huildings in a city or village having a sewer with which the company may connect sewers of its own construction sufficient to drain its buildings, it shall construct such sewers, and so connect them; and in cities and villages not having sewers, such com- panies may construct sewers for the drainage of their buildings, and charge and receive a compensation for the tapping and use of the same, or portions thereof. (March 13, 1861, 58 v. 92, § 7.) § 3862. POWERS OF MINING AND MANUFACTURING CORPORATIONS. — Any company heretofore incorporated or that may hereafter be incorporated under the laws of this state, for the purpose of mining or boring for petroleum or rock oil, or coal 568 Private Corporations in Ohio. Mining and Manufacturing Coinptinies, §§ 3863-3866. oil, salt or other vegetable, medicinal or mineral fluid, in the earth, or for refining or purifying the same, quarrying stone, marble, or slate, mining coal, iron, copper, lead or other minerals, or manufacturing the same, or engaged in the manufacturing of articles composed in the whole of iron or part of iron and wood, or for manufacturings cotton or woolen fabrics in whole or in part, or both, and carrying on business con- nected with the main objects of such corporation may, in its corporate name, take^ hold, and convey such real estate and personal estate as is necessary or convenient for the purpose for which it was incorporated, and may carry on its business, or so much thereof as js convenient, in any county in this state, or beyond the limits of this state, and may theij^hold any real or personal estate necessary or convenient for conducting the same. (March 26, 1883, 80 v. 76; R. S. 1880; April 13, 1874, 71 v. 69, § 1; April 13, 1865, 62 V. 143, § 1.) § 3863. MAY SUBSCBIBE FOB STOCK IN TRANSPORTATION COMPANIES. — The directors of any such company may authorize its president, or other proper of&cer, to purchase or subscribe for, in the name of the company, such an amount of the stocks of any railroad, or other transportation company, as they deem necessary, in order to procure proper facilities for transportation for the manufactories, mines, or other works of the company; but the written consent of the holders of two-thirds the capital stock of the company to such subscription or purchase must first be had- (April 13, 1874, 71 v. 69, § 2.) May mortgage property to aid railroad. See Central Trust Co. v. Columbus, etc., Ey. Co., 87 Fed. 815 (1898). § 3864. CERTAIN COMPANIES MAY CONSOLIDATE. — Any two or more such corporations may be consolidated in the manner and to the efEect provided in sections thirty-three hundred and eighty-one and thirty-three hundred and eighty-two. (April 3, 1868, 65 v. 50, § 1.) Consolidation of street-railroad companies. See § 2505b and § 3380. § 3865. CERTAIN CONVEYANCES MUST BE MADE. — When such agreement for consolidation has been duly ratified in the manner specified in the preceding sec- tion, the president and secretary of the company which, by the agreement, surrenders its name, properties, rights, and franchises, shall execute and deliver to the consoli- dated corporation proper deeds, assignments, and transfers, conveying to the con- solidated corporation all of the rights, property, and effects of the corporation so surrendering its name and property, and from and after the execution of such trans- fers the corporation so agreeing to surrender its name and rights shall cease to be a corporation, and to exercise corporate rights. (April 3, 1868, 65 v. 50, § 4.) § 3866. MAY BUILD A RAILROAD. — Companies organized for the purpose of mining, quarrying, or manufacturing, may, when such purpose is stated in the arti- cles of incorporation, construct a railroad, with a single or double track, with such side-tracks, turnouts, offices, and depots as they deem necessary to carry out the objects of the incorporation, from any mine, quarry, or manufactory, to any other railroad, or any canal, slack-water navigation, or other navigable water or place within or upon the borders of this state, and shall, in respect to such railroad, be sub- ject to and governed by the provisions of chapter two. (April 8, 1856, 53 v. 103, § 3.) 3311 to such corn- Appropriation of land. This act does not authorize such mining companies to appropriate lands. — Miami Coal Co. V. Wigton, 19 Oh. St. 560 (1869). Branch roads to mines, etc. See § 3280. Application of panics. See § 3311, note; but as to manufacturing companies, see, also, § 3855. Stock-yard companies may lease rail- road. See § 3876. Powers of Certain Corporations. 563 Mining Companies — Museum, Park, Rink, etc., Companies, §§ 3867-3870. § 3867. MINING COMPANIES MAY ACQUIRE ADDITIONAL POWERS. — A company organized for the purpose of reining coal, or for th.e purpose of mining iron ores and coal, or a part of whose business is the mining of iron ores and coal, may, upon a, vote of the holders of two-thirds of its capital stock, engage in the business of manufacturing iron from ores, or engage in any other branch of the manu- facture of iron; but before it shall engage in such manufacture it shall, by its presi- dent, execute a certificate, under the corporate seal of the company, setting forth the particular branch or branches of the manufacture of iron in which it purposes to engage, and the place or places where the business, or any part thereof, is to be located, the same to be verified by the oath of the president, and acknowledged, dfc-tified, and forwarded to the secretary of state; and thereupon the company may carry on the business named in such certificate, in addition to the business named in the original articles of incorporation. (January 24, 1877, 74 v. 21, § 1.) § 3868. MUSEUM, PARK, POND, AND RINK COMPANIES. — When a corpora- tion organized for the purpose of constructing and conducting a museum to be used for the exhibition and preservation of works of nature and art, and for instruction in connection therewith, or a public hall of any kind, or a park, pond or rink to be used for skating or other lawful sports, or for holding fairs, festivals, public meetings, con- certs or .entertainments of any kind not prohibited by law, provides in its articles of incorporation that its buildings, or designated part thereof, shall be devoted to the use of the public for all purposes set forth in its articles, free from all costs, charges, and expense, except such as may be necessary for providing the means to keep such buildings, or such designated part thereof and its grounds in proper condition and repair, and to pay the expenses of insurance, care, management and attendance, so that the public may have the benefit thereof for all the legitimate uses set forth in its articles at as little expense as possible, and that no stockholder, subscriber, trustee, director or member shall receive any compensation, gain or profit from the corporation for such public use of its buildings or such designated part thereof, the authorities of any city, village or county in which the corporation is located, may appropriate to such use and grant the right and permit such corporation to erect and perpetually maintain its buildings on any of the parks, lands, lots or grounds which, or the use of which belong to or are subject to the control of such city, village or county or the authorities thereof, and to control the same on the terms and conditions which may be agreed upon between such public authorities and the corporation; and in every such case it shall be lawful for the public authorities and the said corporation to agree that additional trustees of said corporation may be appointed by such public authori- ties, and upon the number of such trustees and the method of their appointment, and they may agree that any ofiicer or officers of said city, village or county to be desig- nated by them may act ex-officio as such trustees. (April 12, 1881, 78 v. 127; R. S. 1880; February 12, 1876, 73 v. 8, § 1; March 8, 1872, 69 v. 20, §,1.) § 3869. MAY PROVIDE FOR REVERSION OF STOCK, ETC. — Such corporation may provide in its organization a limit as to the number of shares which each stock- holder may own, the conditions on which such shares may be held or transferred, and for the reversion thereof to the corporation in case of the death or disqualification of a stockholder. (February 12, 1876, 73 v. 8, § 2.) § 3870. PENALTIES FOR TRESPASSES UPON PROPERTY OF SUCH COM- PANIES. — Whoever breaks, throws down, or injures any gate, fence, inclosure, embankment, or erection of any kind, upon the ground of any such corporation, or forcibly or fraudulently passes such gate, or over such fence, or into such inclosure or building, without having paid the charge demanded for entry therein, shall, for each ofEense, forfeit to the party injured the sum of twenty-five dollars, in addition to the damages resulting from such wrongful act. (April 5, 1867, 64 v. 183, § 7.) 570 Private Corporations in Ohio. Sewerage Companies — Stock-yard Companies, §§ 3871-3876. § 3871. SEWEBAGE COMPANIES. — A company organized for the purpose of draining the streets, alleys, lots, commons, wharves, landings, or buildings, of any city or village in this state, may construct and maintain sewers and drains, and lay conductors or pipe for conveying water and other liquid matter from the lots, houses, and streets, through and under the streets, side-walks, public highways, alleys, conx- mons, wharves, or landings of any city or village in this state; upon application by such company the council of any city, or the trustees of any village, may grant to it the privilege of exercising its corporate powers within the limits of such city or ■village, for such term of years, and upon such conditions and limitations, as may be deemed expedient; and the city council, or the council of the village, may require from the company such reasonable security as they deem necessary for the faithful performance of the duties imposed upon it by law; but no grant shall be made to any company, and no power or privilege shall be conferred upon or exercised by any com- pany, which will interfere with the rights of any other corporation, or any person, and no person shall be taxed without his consent for any drainage or sewerage con- structed by any such company; and such companies shall be liable for all damages occasioned by their acts, neglects, or defaults to the rights of persons and other cor- porations. (April 8, 1856, 53 v. 137, § 5.) § 3872. WHEN MUNICIPALITY MUST BUY OUT COMPANY. — When a city or village which has granted to any such company, for any term, the rights and privileges mentioned in the preceding section, and, at the expiration of the term, fails or refuses, upon petition of the company, to renew the grant, the city or village shall purchase of the company its property, consisting of sewers, drains, and pipes actually laid and constructed, with the appurtenances, and the materials and fixtures apper-, taining to the same, on hand at the time of the expiration of such terms, at a price not exceeding the actual cost thereof, for the use and benefit of the city or village. (April 8, 1856, 53 v. 137, § 5.) i § 3873. MUNICIPALITY MAY CONTRACT WITH COMPANY. — The council of any city, or the council of any village, in which any such company is organized, may contract with the company for the construction and use of such sewers or drains, for draining the streets, alleys, lots, commons, wharves, or grounds within the limits of the municipal corporation; and the city or village shall not use such sewers or drains in any manner except by and with the consent of the company, and in the m.anner, and upon the terms and conditions, which are mutually agreed upon by the company and the city or village. (April 8, 1856, 53 v. 137, § 6.) § 3874. COMPANIES MAY PHESCRIBE RATES. — Such companies may pre- scribe the terms upon which owners and occupants of houses or lots may obtain the use of their sewers and drains for private purposes, and the rate of charge annually for such use, and also the terms upon which the city or village may use the sewers and drains for public purposes. (April 8, 1856, 53 v. 137, § 7.) § 3875. POWERS OP MUNICIPALITIES NOT LIMITED. — Nothing in the four ' preceding sections shall be construed to prevent any city or village from constructing sewers, or establishing and maintaining a system of sewerage, under the direction and by the authority of the municipal authorities thereof, not interfering, however, with the work of such company. (April 8, 1856, 53 v. 137, § 8.) § 3876. STOCK -YARD COMPANIES. —A company incorporated for the purpose of purchasing or leasing real estate, and erecting thereon pens and buildings for the safe keeping of live stock intrusted to it on sale, may lease or purchase, and operate, such portion of any railway leading to or connected with its stock-yards as may be necessary for the convenient dispatch of its business; but the number of miles so Powers of Certain Corporations. 571 Transportation Companies — Pipe Line Companies, §§ 3877, 3878. leased or purchased shall not exceed thirty, and such lease or purchase shall not be made without the consent of the holders of a majority of the stock in such company, and in the company leasing or selling such railway. (April 3, 1876, 73 v. 162, § 3.) § 3877. TBANSPOKTATION COMPANIES. — A company organized for the pur- pose of transporting freight, or for towing purposes, on any of the navigable rivers of this state, or the lakes and navigable rivers bordering thereon, may build, pur- chase, and hold such number of steamboats, barges, or other vessels, and such other personal property, and such real estate, in this and other states, as it deems necessary for commencing and conducting its business, and may sell the same, or any part thereof, in such manner and for such purpose as may be prescribed by the rules and regulations of the company, not inconsistent with the laws of this state; and the company may carry any articles of freight or produce, tow any barge or other vessel upon any of the navigable streams in this state, and on any of the lakes or navigable rivers bordering thereon, and shall be governed by the same laws, not inconsistent with this section, which govern individuals in such employments. (April 3, 1876, 73 V. 162.) § 3878. COMPANIES FOB, TRANSPORTATION OF NATURAL GAS, OIL, OB WATER; RIGHT OF EMINENT DOMAIN; HOW RIGHT TO OCCUFY PUBLIC WAYS MAY BE ACQUIRED; FILLING IN EXCAVATIONS; FOB WHAT PUB- POSES SUCH COMPANIES ABE COMMON CABEIEBS. ~ A municipal corporation or a company organized for the purpose of transporting natural gas, petroleum, or water through tubing or pipes or for the purpose of storing and transporting water, may enter upon any land for the purpose of examining and surveying a line for its tubing and pipes, or for a. reservoir, and may appropriate so much thereof as may be deemed necessary for the laying down of such tubing and pipes, and for the erection of tanks, and reservoirs for the storage of water for transportation, and the location of stations along such line, and the erection of such buildings as may be necessary for the purpose aforesaid; such appropriation shall be made and conducted in accord- ance with the law providing for compensation to the owners of private property appro- priated to the use of corporations; and so far as the rights of the public therein are concerned, the county commissioners as to county and state roads, the township trustees as to township roads, and the council of municipal corporations as to streets and alleys, in their respective jurisdiction, may, subject to such regulationsi and restrictions as they may prescribe, grant to such company, the right to lay such tub- ing and pipe therein; provided, however, the right to appropriate for any of the pur- poses hereinabove specified, shall not include or extend to the erection of any tank, station, reservoir, or building, or lands therefor, or to more than one continuous pipe, or tubing, or land therefor, in or through a municipal corporation, without the council first consent thereto; provided, however, that no reservoirs for the storage and transportation of water shall be constructed within the corporate limits of any municipal corporation, or any public .park, and all excavations, except reservoirs for storage and transportation of water shall be well filled by such company and so kept by it, in all cases, and such company shall, for tha purpose of transporting natural gas, oils and water, be considered and held to be a common carrier, and subject to all the duties and liabilities of such carriers under the laws of this state. (March 24, 1888, 85 V. 114, 115; R. S. 1880; March 30, 1875, 72 v. 151, §§ 1, 2; April 29, 1872, 69 V. 194, § 4; April 16, 1900, 94 v. 382.) Does not include city Tvater works. See State ex rel. v. Salem Water Co., 5 C. C. 58 (1890): 0. Suit for conversion of oil; counter- claim. When a company is sued for storage of oil, it may counterclaim for the agreed charges for storage and evaporation. — Cow Run Co. V. Lehmer, 41 Oh. St. 384 (1884). Rie;lit to lay -pipes in streets. See Webb v. Ohio Gas Fuel Co., 16 W. L. B. 121 (1886). 572 Private Corporations in Ohio. Pipe Line Companies — Women's Homes, etc. — Wrecking Companies, §§ 3879-3883. § 3879. MAY HOLD CERTAIN PROPERTY. — Any such company may take, by purcliase or otherwise, and hold, such real and personal estate, and erect or purchase the necessary buildings and machinery for carrying on the business, including all (tihe necessary equipments and appendages of the business, such as tubing, pumps, tanks, telegraph apparatus, and engines, as may be necessary to transport oils and water through tubes and pipes. (April 25, 1868, 65 v. 109, § 2.) § 3880. PURTHER POWER OE SUCH COMPANIES. — Any such company or municipal corporation may transport, store, insure and ship natural gas, petroleum or w^ater, and transport and store water, for the purpose of furnishing the same to engineers employed in developing for, or in the production and transportation of petroleum, and for that purpose may lay down, construct and maintain the necessary pipes, tubing, tanks, machinery and arrangements. (March 24, 1880, 85 v. 114, 115; R. S. 1880; March 30, 1875, 72 v. 151, § 2; April 16, 1900, 94 v. 382.) § 3881. HOMES EOR AGED AND INDIGENT WOMEN. — Corporations desig- nated as the widows' home, and asylum for aged and indigent women, may, in addi- tion to the estates, real, personal, or mixed, which they are otherwise allowed by law to hold, take by purchase, gift, or devise, and hold, use, and dispose of, and convey, in all Iftwful ways, any estate, real, personal, or mixed, which may be convenient or necessary for the use of the corporation, or for the investment of its funds; but no part of such estate, nor of the income thereof, shall be used for any purpose or busi- ness other than in providing a suitable asylum, the support and maintenance thereof, and the support and maintenance of such aged and indigent women as are admitted into the same under the by-lA,ws thereof. (February 27, 1878, 75 v. 14, § 1.) § 3881-1. CONTRACT EOR CARE AND MAINTENANCE OF INDIGENT DEAF AND DUMB. — That any incorporated association organized for the purpose of pro- viding a home for deaf and dumb persons may enter into a contract with the board of county infirmary directors of any county, or with the proper officers of any cor- poration infirmary, for the care and maintenance at such home of any deaf and dumb person who may be an inmate of said county or corporation infirmary, or who may, under the laws of the state, be entitled to admission thereto. And in every such case the said county or corporation infirmary shall, during the period such person may remain in such home, pay to such association, annually, a sum equal to the per capita cost of maintaining inmates in the said county or corporation infirmary. Provided, that whenever any such deaf and dumb person is maintained in any county or cor- poration infirmary in this state, and who, in the judgment of the board of state chari- ties, should be removed from such infirmary to a home organized under provision of this section, that said board of state charities may order the removal of said person from said infirmary to said home; and where any such person is removed on the order of said board of state charities from an infirmary to said home, then the transporta- tion of said person to said home and his (or her) maintenance shall be paid by the infirmary directors of said county infirmary or the proper officers of said corporation infirmary as heretofore provided in this section. (April 22, 1898, 93 v. 212; April 27, 1896, 92 v. 419; April 16, 1900, 94 v. 369.) § 3882. WRECKING COMPANIES. — Any company or association organized for the purpose of wrecking boats and vessels, and saving the same, and the property thereon, or property lost by damage or injury to boats or vessels, may build, purchase, and hold such number of boats, vessels, diving-bells, and other appliances and prop- erty as it deems necessary for commencing and conducting the business of the asso- ciation, and may sell and dispose of the same, or Einy part thereof, and contract for salvage or compensation for saving boats, vessels, and other property, and demand, recover, and receive salvage, or such compensation when entitled thereto by contract Powers of Certain Corporations. 573 Pruit Cos — Embalm'g Go's — Build'g Go's— Cinciji'ti Orphan Asy'm, §§ 3883-3884-1. or otherwise, and shall be governed by the same laws not inconsistent with this sec- tion which govern individuals in such business or employment. (March 11, 1867, 64 V. 44, §§ 2, 4.) § 3883. FBXIIT COMPANIES. — Any companies organized for the purpose of cultivating, canning, shipping, and dealing in fruit, may purchase, hold, and convey real and personal property for the purpose of conducting and carrying out the objects of the company, and may hold the same without the state. § 3884. COMPANIES EOR PROTECTING AND PRESERVING DEAD BODIES. — Any association organized for the purpose of preserving and protecting bodies of deceased persons before burial may purchase, or take by devise, or gift, hold, and convey real estate, not exceeding one acre of land, and may erect thereon suitable buildings, and construct and maintain vaults, and such other appliances as may be necessary to carry out the objects of such association, and such property shall be exempt from execution, from taxation, and from being appropriated to any other public purpose, if used exclusively for the purposes herein described. § 3884a. AUTHORIZING CERTAIN CORPORATIONS TO PURCHASE OR LEASE HEAL ESTATE. — A corporation organized for the purpose of constructing and maintaining buildings to be used for hotels, store-rooms, offices, ware-houses, factories, shall be authorized to acquire by purchase or lease, and to hold, use, mort- gage and lease all such real estate or personal property as may be necessary, for the purpose herein before mentioned; provided, however, that no such corporation shall acquire or mortgage any real or leasehold estate, or lease the same for a period exceed- ing (with all privileges of renewal) the term of five years, without the consent of the holders of two-thirds of the stock, obtained at a meeting called for that purpose, w^ritten notice of which shall have been given to each stock-holder, either personally, or deposited in the post-offlce, properly addressed and duly stamped, not less than ten days before the day fixed for such meeting. Nothing herein shall be construed as authorizing corporations to buy and sell, or to deal in real estate for profit. (April 15, 1889, 86 V. 375, 376.) General pow^er to hold real estate. See § 3239, notes. § 3884-1. Sec. 1. CINCINNATI ORPHAN ASYLUM; INCREASE IN NUMBER OF MANAGERS; SAME TO BE CLASSIFIED; ANNUAL ELECTION; POWER TO REQUIRE INCREASED OR DIMINISHED NUMBER OF MANAGERS. — In any city of the first class and of the first grade of such class, any orphan asylum therein legally named and known as the Cincinnati Orphan Asylum, incorporated and con- ducted under the act of Jan. 25, 1833, to establish an orphan asylum in Cincinnati, which asylum was created before the present constitution of this state was adopted, is now and ever since it was created has been conducting and transacting its func- tions as an orphan asylum under said act, has not by election or by any other act come to be governed by laws since passed, but all the time has been and is controlled and governed by laws then in force, and the valid modifications since enacted; such orphan asylum from and after the date of the enactment of this act, shall be empow- ered and authorized by its lady managers, at any meeting reasonably convened and notified for that purpose, if deemed expedient, to increase the number of managers for the institution to eighteen. In the event of an increase in the number of managers to eighteen, they shall, by drawing lots or otherwise, be classified so that the time of service of one-third of the number shall expire at the end of one year, one-third of the number at the end of two years, and one-third of the number at the end of three years from the period of the commencement of the respective terms of service. At the annual meeting of the members of the corporation, there shall be elected each year, 574 Private Corporations in Ohio. Cincinnati Orphan Asylum, §§ 3884-2-3884-5. managers to fill the places made vacant by expiration of term of service or otherwise; provided, nevertheless, it shall be in the discretion of the lady managers, at any meet- ing of the managers reasonably notified and convened for that purpose, to require an increased or diminished number of managers, at and after their next election; but the number as increased or diminished shall be such as to be divisible by three into cor- responding classes, whose terms shall expire, and with reference to which elections shall be held as before provided. (April 14, 1888, 85 v. 378.) § 3884-2. MEMBEESHIP; ELIGIBILITY TO OEFICE; LIFE AND HONOK- ABY MEMBEBSHIPS. — From and after the date of this act, and from expirations of the current subscriptions, no person shall be entitled to membership in the corpora- tion or to hold office in it other than annual subscribers and contributors in at least the sum of five dollars per annum; such subscriptions and payments to be made in conformity with rules prescribed by the managers; provided, however, that any present lady member who has held her membership and regularly paid her annual subscription for ten years last preceding the passage of this act may, at her option, continue her membership by paying the same amount per annum as heretofore required. But nothing herein shall prevent the membership or qualification for office of persons who have become life members under the provisions authorizing them to dp so, on the payment of fifty dollars; nor prevent the creation of other life member- ships on the payment of one hundred dollars or valuable service rendered; nor shall anything herein be held to prohibit honorary memberships, without the right to vote, from being conferred by the managers upon friends of the institution, whose services and influence deserve such honor. (April 14, 1888, 85 v. 278.) § 3884-3. BIGHT TO OWM" PEOPEBTY; TO EECEIVE AND ADMINISTEE ENDOWMENTS IN OTHEB STATES. — That said corporation shall be capable of purchasing, taking, holding and conveying any estate, real, personal or mixed in this state, and of accepting, holding, and administering or conveying any amount of endowment or income in any other state given to it for its uses, and which may be available for its uses, but in any case and always for the sole object and purpose of increasing the usefulness of the institution as an orphan asylum, nor shall any part of its property or income be used for any purpose or object other than the legiti- mate objects of the institution. (April 14, 1888, 85 v. 278.) § 3884-4. PLACING OP CHILDBEN IN SUCH ASYLUM. — That any child or person by law entitled, or subject to be placed in any children's home in the county of Hamilton, may, by the same method of procedure, and on the same terms and con- ditions, subject to the consent of the managers of the Cincinnati Orphan Asylum, be placed in said asylum. (April 14, 1888, 85 v. 278.) § 3884-5. AN AGBEEMENT BETWEEN THE TEUSTEES AND COUNTY COM- MISSIONEES FOE THE ADMINISTEATION OP CEETAIN TEUSTS. — That when, and if, the commissioners of Hamilton county shall accept or have accepted, a devise or devises under the last will and testament of any devisor, or have accepted or shall accept property of any kind in trust, whether conveyed by will, deed of conveyance or other lawful transfer, for the purpose, specified in an act " to authorize county commissioners in certain cases to accept devises and legacies, and to erect and main- tain an orphan asylum in connection with a children's home," passed February 11, 1869 (66 0. L. 8), and the amendment thereto,. passed February 4, 1885 (82 0. L. 41), it shall be lawful for the county commissioners and the trustees of the Cincinnati Orphan Asylum to agree, and if deemed expedient, they are authorized to agree for the administration of such trust or trusts and the care of beneficiaries of the trust or trusts, in accordance with the terms of the bequest, by said orphan asylum; but in Powers of Certain Corporations. 575 Cincinnati Orphan Asylum — Transportation of Cattle, §§ 3884-6-4211-22. no event sliall the Cincinnati Orphan Asylum, without the assent of the managers of said asylum, undertake such trusts. (April 14, 1888, 85 v. 278.) § 3884-6. ADOPTION AND BINDING OUT OF ORPHAN CHILDREN. — The managers of the Cincinnati Orphan Asylum, in the exercise of their discretion, are authorized to place children who are in charge of the asylum, whether orphans, half- orphans or merely destitute children, in homes, and consent to their adoption by suitable persons, or to bind them out to trades or service; such adoption or binding out being in conformity with the statutes relating to adoption, and binding out in force at the time the transaction shall be made. (April 14, 1888, 85 v. 278.) Whereas, All cattle wintered in the states of Florida, South Carolina, North Caro- lina, Georgia, Alabanaa, Mississippi, Louisiana, Tennessee, Arkansas, Texas and the Indian territory, are infected with a germ which renders them capable, except during the frost of winter, of infecting northern cattle with a malady commonly known as " Texas fever," while they show no manifestation of disease; therefore, § 4211-19. Sec. 1. TEE DRIVING OF CATTLE FROM CERTAIN STATES FORBIDDEN DURING CERTAIN MONTHS; CONVEYANCE BY RAILWAY FOR- BIDDEN, EXCEPT. — During the months of March, April, May, June, July, August, September and October, no cattle shall be permitted to be driven into this state from any of the above mentioned states or Indian territory, or that shall have been win- tered therein, nor shall any person or company bring, or cause to be conveyed into this state by railway or otherwise, any such cattle under said conditions, except as specified in the next section of this act. (March 14, 1888, 85 v. 83.) § 4211-20. Sec. 2. UNLOADING OF CERTAIN CATTLE IN CERTAIN MONTHS FORBIDDEN, EXCEPT. — Any railroad or other transportation company conveying into or through this state, or any stock-yard company receiving such cattle during the months aforesaid will not be permitted to unload the same in this state for any other purpose thrn to be fed and watered or for immediate slaughter, and in yards and premises especially provided for that purpose, into which northern cattle will not be permitted to enter. And the location and arrangement of the said yards and prem- ises and the disinfection of the cars and quarters used in the transportation of such cattle shall be governed by the rules and regulations prescribed by the board of live stock commissioners. (April 23, 1891, 88 v. 352; March 14, 1888, 85 v. 83.) Scope of laws — liability. See Neal v. Cincinnati Stockyard Co., 12 Dee. 533 (1902). § 4211-21. Sec. 3. PENALTY. — Any person or corporation that shall bring or cause to be brought or driven into this state, any cattle wintered in the states or territory above mentioned, or to be driven or conveyed otherwise than as herein specified, shall, upon conviction thereof, be fined in any sum not less than one hundred dollars, nor more than one thousand dollars, and shall, moreover, be liable for all damages that may be occasioned on account of other cattle being infected with said disease. (March 14, 1888, 85 v. 83.) § '4211-22. Sec. 4. DUTY OP TRANSPORTATION COMPANIES; PENALTY FOR VIOLATION OF SUCH DUTY. — It shall be the duty of all railway and other transportation companies bringing into and unloading in this state cattle, otherwise than as specified in section two (§4211-20) of this act, during the months above specified, to require a statement to be made in their shipping bills, showing in what state or territory the cattle shipped were wintered; and it shall be the duty of every railroad company bringing into this state cattle, which may unload such cattle for any other purpose than to be fed and watered as specified in section two (§ 4211-20) of this act, to leave at the office of such company nearest the point where such cattle 576 Private Corporations in Ohio. j-i^nsportation of Cattle — Enlarging Bridges, etc., §§ 4211-23-4495. may be unloaded, a copy for public inspection of the statement above required, show- ing where the same were wintered; and any company or corporation neglecting to comply with the provisions of this section, shall, upon conviction thereof, be fined in any sum not exceeding five hundred dollars. (March 14, 1888, 85 v. 83.) § 4211-23. Sec. 5. PROSECUTION FOB, OFEENSES HEEEUNDEE. — Upon the request of the board of live stock commissioners it shall be the duty of the prosecuting attorney of r.ny county in which the suit may be brought to begin and prosecute any action for the violation of the provisions of this act and the rules and regulations of the board of live stock commissioners. Proceedings against any railway company under this act may be had in any county in this state throug'h which any portion oi such company's road may pass, or in which its principal oflS.ce may be situated; and process may be served by leaving a copy at the oflice of such company within such county. (April 23, 1891, 88 v. 353; March 14, 1888, 85 v. 83.) § 4495. COMMISSIONERS MAY REQUIRE ANY BRIDGE OR CULVERT TO BE ENLARGED. — The commissioners of any county, at any regular or called ses- sion, may in the manner provided in this chapter, so far as applicable when the same is necessary to the public health, convenience or welfare, cause to be located, con- structed, deepened, widened or enlarged any bridge or culvert, made necessary by the crossing of any ditch, drain, watercourse or stream of water, by any railroad, turn- pike, plankroad, or other road of any corporation, at the expense of said corporation, and the necessity for making any improvement herein provided for, may be heard and determined at the same time and under the same petition as provided for in sec- tion 4447 of this chapter. DIMENSIONS OF IMPROVEMENT DETERMINED BY COMMISSIONERS; CORPORATIONS AFFECTED TO MAKE SAME. — If the commissioners find for the improvement, they shall, by an order entered on their journal, determine the dimen- sions of said improvement and that said improvement shall be made by the corpora- tion affected thereby, within three months from the making of such order according to the plans and specifications, and of such materials, as the board may approve and select; FAILURE OF CORPORATION TO MAKE IMPROVEMENT. — Provided, that if said corporation shall not within ten days from the date of such order, in writing, elect to make said improvement as ordered, such fact shall be taken as a refusal to do the same, and thereupon, the bounty commissioners shall at once by an order duly entered upon their journal, specify the materials to be used in the construction of said improvement, and directing the county surveyor, or an engineer, to make suita- ble surveys and to prepare plans and specifications for the making of said improve- ment so ordered, which shall be filed with the county auditor within twenty days from the making of such order, who shall thereupon fix a date for a hearing thereon. EXCEPTIONS TO PLANS AND SPECIFICATIONS, ETC. — At any time on or before the day set for said hearing said corporation may, in writing, file exceptions to said plans and specifications, or ask for any change or alteration thereof, and of the materials out of which the same is ordered to be constructed, which may be granted or refused by said commissioners as may seem just and proper. LETTING OF IMPROVEMENT; COSTS ASSESSED AGAINST CORPORATION. — Upon the approval of such plans and specifications as made, or as may be changed at said hearing, the commissioners shall, at once, proceed to fix a time for the letting of said improvement by bids as provided in § 4475 of this chapter, and as soon as said improvement is completed assess said corporation with the cost of constructing and letting the same, and such assessment shall be a, lien upon the property of the corporation, and be collected as other taxes, or they may order the same to be col- lected from such corporation by an action at law, as they deem proper. Such corpo- rations shall be served as in other cases. (April 25, 1898, 93 v. 373;, R. S. 1880.) Powers of Certain Corporations. 577 Bailroad Companies — Obstruction of Koads, etc., §§ 4748-4939. § 4748. OBSTBUCTION OF KOAD BY RAILROAD AGENTS. — If any person or corporation, or a conductor of any train of railroad cars, or any otlier agent or servant of any railroad company, obstruct, unnecessarily, any public road or highway author- ized by any law of this state, by permitting any railroad car or locomotive to remain upon or across the same for a longer period than five minutes, or permit any timber, lumber, wood, or other obstructions to remain upon or across the same to the hindrance or inconvenience of travelers, or any person passing along or upon such road or high- way, every person or corporation so offending shall forfeit and pay, for every such ofEense, any sum not exceeding twenty nor less than two dollars, and shall be liable for all damages arising to any person from such obstruction, or injury to such road or highway, to be recovered by an action at the suit of the trustees of the township in which the ofEense is committed, or of any person suing for the same before a justice of the peace within the county where the ofEense is committed, or by indictment in the court of common pleas in the proper county; every twenty-four hours such person or corporation, after being notified, sufEers such obstruction to remain, shall be deemed an additional ofEense against the provisions of this section; and all fines accruing under this section, when collected, shall be paid to the treasurer of the township in which the offense was committed, and be applied by the trustees to the improvement of roads and highways therein. (March 9, 1868, 65 v. 14, § 31.) Necessity. See Lake Erie, etc., Ry. Co. v. Mackey, 53 Oh. St. 370, 381 (1895). Proximate cause of injury. See Railway Co. v. Staley, 41 Oh. St. 118 (1884). Action to recover penalty. See Higgins v. Grove, 40 Oh. St. 521 (1884) ; Hill V. Supervisor, 10 Oh. St. 621 (1858); Bisher v. Richards, 9 Oh. St. 495 (1859). § 4749. COMPANT LIABLE FOR FINES AGAINST EMPLOYES. — Every rail- road company or other corporation, the servant, agent, or employe of which in any manner, obstructs any public road or highway, shall be liable to pay all fines which may be assessed against such servant, agent, or employe for so obstructing the same, and such liability may be enforced by execution issued against such corporation on the judgment rendered against such servant, agent, or employe. (March 9, 1868, 65 v. 14, § 32.) § 4939. JOINT COUNTY AND RAILROAD BRIDGES. — The commissioners of any county may contract with any railroad company for the construction, use, and maintenance of wagon tracks in connection with railroad bridges. (May 1, 1873, 70 V. 245, § 1.) LAW GOV. PRIV. COR. — 37. PART XXIII. CODE OF CIVIL PROCEDURE. §4988. When attempt equivalent to commencement; if corporation in receiver's hands; receiver of railroad. §4991. Saving in case of reversal, etc., if corporation in receiver's hands; receiver of rail- road. § 5023. Actions against corporations other than those mentioned in sections 5022, 5025, R. S. ; where to bring. § 5024. Against railroad, street railroad, electric traction, and stage companies. § 5025. Against turnpike companies. § 5026. When this chapter does not apply. § 5027. Further provisions as to nonresidents. § 5030. Change in venue in suit by or against a corporation — ■ cost of summoning jury and jury fees — how paid. § 5041. How summons served upon corporation. § 5042. How served upon an insurance company. § 5043. On foreign corporation. § 5045. When corporation may be served by publication. § 5102. Pleadings to be subscribed and verified. § 5465. Garnishment against railroad companies. § 5521. Attachments, grounds. § 5534. How corporation served as garnishee. § 4988. WHEN ATTEMPT EQUIVALENT TO COMMENCEMENT; IF COK- POBATION IN RECEIVER'S HANDS; RECEIVER OP RAILROAD. — An attempt to commence an action shall be deemed equivalent to the commencement thereof, ■within the meaning of this chapter, when the party diligently endeavors to procure a service; but such attempt must be followed by service within sixty days. And if the defendant is a corporation, whether foreign or created under the laws of this state, and whether the charter thereof prescribes the manner and place, or either, of service of process thereon, and such corporation passes into the hands of a receiver before the expiration of said sixty days, then service following such attempt to commence the action may, within said sixty days, be made upon such receiver, or his cashier, treasurer, secretary, clerk or managing agent, or if none of the aforesaid oflcers can be found, by a copy left at the office or usual place of business of such agents or officers of such receiver with the person having charge thereof; and if such corpora- tion is a'railroad company, summons may be served upon any regular ticket or freight agent of said receiver, and if there is no such agent, then upon any conductor of said receiver. In any county in the state in which such railroad is located, and the summons shall be returned as if served upon said defendant. (March 16, 1894, 91 v. 72; R. S. 1880; 51 v. 57, § 20.) See Collins v. Baltimore, etc., R. R. Co., 7 N. P. 270 (1898) ; s. c, 7 Dec. 445. As against federal receivers. See Baltimore, etc., R. R. Co. v. Freeman, 112 Fed. Rep. 237 (1901). § 4991. SAVING IN CASE OF REVERSAL, ETC., IF CORPORATION IN RECEIVER'S HANDS; RECEIVER OF RAILROAD. — If , in an action commenced, or attempted to be commenced, in due time a judgment for the plaintiff be reversed, or if the plaintiff fail otherwise than upon the merits, and the time limited for the [578] Code of Civil Procedure. 579 Actions Brought where, § 5023. commencement of such action has, at the date of such reversal or failure, expired, the plaintiff, or, if he die and the cause of action survive, his representatives may com- mence a new action within one year after such date, and this provision shall apply to any claim asserted in any pleading by a defendant. And if the defendant is a corporation, whether foreign or created under the laws of this state, and whether the charter thereof prescribes the manner and place, or either, of service of process thereon, and such corporation passes into the hands of a receiver before the expira- tion of said year, then service to be made within said year following such original service or attempt to commence the action may be made upon such receiver or his cashier, treasurer, secretary, clerk or managing agent, or if none of the aforesaid ofBcers can be found, by a copy left at the office or usual place of business of such agents or officers of such receiver with the person having charge thereof, and if such corporation is a railroad company, summons may be served upon any regular ticket or freight agent of said receiver, and if there is no such agent, then upon any conductor of such receiver, in any county in the state in which such railroad is located, and the summons shall be returned as if served upon said defendant. (March 16, 1894, 91 V. 72; K. S. 1880; 51 v. 57, § 23.) See Collins v. Baltimore, etc., E. R. Co., 7 N. P. 270 (1898) etc., Ry. Co. v. Bemis, 45 W. L. B. 155 (1901). s. c, 7 Dec. 445; Pittsburg, § 5023. ACTIONS OTHEE THAN THOSE MENTIONED IN SECTIONS 5019- 5022 R. S. AGAINST CORPOBATIONS; WHEKE TO BRING. —An action other than one of those mentioned in the four preceding sections, against a corporation created under the laws of this state, may be brought in the county in which such corporation is situated, or has or had its principal office or place of business, or in which such corporation has an office or agent, or in any county in which a summons may be served upon the president, chairman or president of the board of directors or trustees or other chief officer; but if such corporation is an insurance company, the action may be brought in the county wherein the cause of action, or some part thereof, arose; and if such corporation be organized for the purpose of mining or operating for petroleum oil or gas, either exclusively or in connection with other business, the action may be brought in any county where such corporation owns or operates a mine or a well for petroleum oil or gas, and the cause of action, or some part thereof, arose. (February 15, 1877, 74 v. 29, § 48; R. S. 1880, § 5026; January 16, 1885, 82 V. 5; April 19, 1898, 93 v. 125; April 16, 1900, 94 v. 270, § 5023; April 23, 1902, 95 v. 237.) Meaning of wrord " may." The word " may " in this section should be read " must." An Ohio corporation can be sued only in the county in which such cor- poration is situated, or has or had its prin- cipal place of business, or in which an office or agent is maintained. — Stanton v. Enquirer Co., 7 N. P. 589 (1899) ; Kinsey v. Burgess Iron Works, 4 N. P. 293 (1897) ; s. c, 6 Dec. 446. Where there is a special provision. This section was not intended to apply to statutory actions in which a diflferent rule or mode of proceeding is specially authorized. — Muskingum County Infirmary v. Toledo, 15 Oh. St. 409 (1864). Construction of " has or had principal office." Such words contemplate a suit against a. company in a county in which it had its prin- cipal place of business, though it may have abandoned the same. — Campbell v. Woods- dale, etc., Park Co., 3 N. P. 159 (1896) ; s. u., 4 Dec. 152. See Snow Fork, etc., Coal Co. v. Hocking Coal Co., 7 N. P. 191 (1897) ; s. c, 6 Dec. 178. Life insurance companies within this section. This section authorizes an action upon a policy of life insurance issued by a company organized under the laws of this state, to be brought in the county where the death of the party insured occurred. — Union Central In- surance Co. V. Pyers, 36 Oh. St. 544 (1881). See Householder Kansas Life Association, 6 N. P. 520 (1898); s. c, 8 Dec. 321. When companies having special rights come under this i^eotinn. See Knox County Insurance Co. v. Bow- ersox, 6 0. C. C. 275 (1892) ; s. c, 3 C. D. 451. 580 Private Corporations in Ohio. Actions Brouglit where, §§ 5024-5027. Receivers of a compaiiy not entitled to benefits of this or next section. See Rogers v. Akron, etc., R. R. Co., 6 N. P. 291 (1899); s. c, 8 Dec. 107. AVhen may be sued in other counties. Whenever suit is rightly brought in one county against a defendant, process may issue to another county to bring in a corporation. — Baldwin v. Wilson, 7 N. P. 506 (1900); Stanton v. Enquirer Co., 7 N. P. 589 (1899). § 5024. AGAINST RAILROAD, STREET RAILROAD, ELECTRIC TRACTION, AND STAGE COMPANIES. — An action against the owner or lessee of a line of raa-1 stages, or other coaches, for an injury to person or property upon the road or line, or upon a liability as carrier, and an action against a railroad company or street railroad company, owning or operating a railroad or street railroad within the state, or against a, transportation company owning or operating an electric traction road located upon either bank of any canal belonging to the state, may be brought in any county through or into which such line, railroad, street railroad or electric traction road passes or extends. (April 3, 1866, 63 v. 87, § 49; R. S. 1880, § 5027; April 16, 1900, § 5C24; April 23, 1900, 95 v. 258.) Nature of action does not change rule. A railroad company may be sued in any county through or into which the road passes, without regard to the nature of the cause of action. — Railway Co. v. Jewett, 37 Oh. St. 6.49 (1882). May be sued Trhere it operates a. leased road. £ee C. C. C. & I. Ey. Co. v. McLean, 1 O. C. C. 112 (1885); s. l-., 1 C. D. 67; affirmed 19 W. L. B. 217; Swan v. Railroad Co., 4 Dec. 71 (1895). Vrhen may be sued in other counties. A railroad company may be served with summons in a county through which it does not run when properly joined as a codefend- ant.— Baltimore, etc., R. R. Co. v. McPeek, 16 0. C. C. 87 (1898) ; s. c, 8 C. D. 742. Foreign railroad companies. An action against a foreign railroad com- pany may be brought in a county through which its road passes. — Swan v. Railroad Co., 4 Dec. 71 (1895). Entry of appearance in other counties — pleading. Ihis section relates solely to the jurisdic-. tion of the person, and it is not necessary that the petition should state that its road passes into or through the county where the action is brought; a railroad company, like a natural person, submits itself to the jurisdic- tion of the court by appearing for any other purpose than to object to such jurisdiction. — Railroad Co. v. Morey, 47 Oh. St. 207 (1890). § 5025. AGAINST TURNPIKE COMPANIES. — An action other than one of those mentioned in the first four sections of this chapter, against a turnpike road company, may be brought in any county in which any part of the road lies. (March 14, 1853, 51 V. 57, § 50; R. S. 1880, § 5028; April 16, 1900, 94 v. 270, § 5025.) § 5026. WHEN THIS CHAPTER DOES NOT APPLY. — When the charter of a corporation created under the laws of this state prescribes the place where suit must be brought, that provision shall govern. (March 14, 1853, 51 v. 57, § 51; R. S. 1880, § 5029; April 16, 1900, 94 v. 270, § 5026.) Certain special acts. Under the charter of the Portage County Mutual Insurance Company suit can only be brought in Portage county. — Portage Co. In- surance Co. V. Stukey, iS Oh. 455 (1849); Portage, etc.. Insurance Co. v. West, 6 Oh. St. 599 (18.56). 'When special charter lost. This section is not applicable, if the com- pany has acted under general laws, and thus lost its special rights. — Knox Co. Insurance Co. V. Bowersox, 6 U. C. C. 275 (1892); s. c, 3 C, D. 451. § 5027. FURTHER PROVISIONS AS TO NON-RESIDENTS. — An action other than any of those mentioned in the first four sections of this chapter, against a non- resident of this state, or a foreign corporation, may be brought in any county in which there is property of, or debts owing to, the defendant, or where such defendant is found, or where the cause of action, or some part thereof arose. (March 14, 1853, 51 V. 57, § 52; R. S. 1880, § 5030; April 16, 1900, 94 v. 270, § 5027; April 17, 1902, 95 V. 203.) Code of Civil Procedure. 581 Change of Venue, etc., § 5C30. companies doing business in this state, namely, to make them liable to actions in the county where the causes of action arose, al- though they might not have property or debt.s due in such county or might not even be found in such county. — Handy v. Insurance Co., 37 Oh. St. 366, 371 (1881). See Osbom v. Lidy, 51 Oh. St. 90, 96 (1894). insurance corn- Meaning of foreign corporation. The words " foreign corporation " in attach- ment cases mean foreign to the state, not ■ foreign to the county. — Boley v. Ohio, etc.. Trust Co., 12 Oh. St. 139 (1861). I Foreign corporation may be sued where found. See Swan v. Railroad Co., 4 Dec. 71 (1895) ; Mohr Distilling Co. v. Insurance Co., 7 W. L. B. 335 (1882). Causes arising in this state. The general rule here declared has no refer- ence to actions- upon causes arising in this state. No matter where the cause arose, if the subject-matter be within the jurisdiction of the court. Nor is the mle confined to cor- porations other than insurance companies. Any foreign corporation which may be found in this state, may be sued in any county in this state in any court having jurisdiction of the subject-matter of the suit. — Hardy v. Insurance Co., 37 Oh. St. 366, 371 (1881). Foreign insurance company. The last clause was intended to give an ad- ditional remedy against foreign insurance § 5030. CHANGE OF VENUE IN SUIT BY OR AGAINST A CORPOKATION — COST OF SUMMONING JURY AND JURY FE3S — HOW PAID. — When a corpo- ration having more than fifty stock-holders is a party in an action pending in a county in which the corporation keeps its principal office, or transacts its principal business, if the opposite party make affidavit that one cannot, as he believes, have a fair and impartial trial in that county, and his application is sustained by the several affi- davits of five credible persons residing in such county, the court shall change the venue to the adjoining county most convenient for both parties; and the cost of summoning and impaneling a jury, and the fees of said jury sitting in the trial of the case in the court of the county to which the venue is changed, shall be allowed and paid by the commissioners of the county from which said action is sent. (50 v. 100, § 1; B. S. 1880, § 5033; 94 v. 271, § 5030; 94 v. 378, § 5033.) Application to life panies. An action against a foreign life insurance company may be brought where the death of the insured occurred. — Householder v. Kan- sas Life Association, 6 N. P. 520 (1898) ; a. c, 7 Dec. 544. See § 5026. Action where debts ow^ing to foreign corporation. Where a, foreign corporation has its offices and business in one county, and has a debtor in another county, it may be sued and the debts attached in the latter county, personal service being had in the county where its oflices were situated. — Rainey v. Jefferson Iron Works, 8 0. C. C. 674 (1894); s. c, 4 C. D. 231. Constitutionality. This act is not in conflict with either the state or federal constitutions. — Snell v. Cin- cinnati, etc., Ry. Co., 60 Oh. St. 256 (1899). When statute mandatory. It is not necessary, to entitle the applicant to the benefit of the statute in a case for which it provides, that his affidavit shall state the grounds of his belief that he cannot have a, fair and impartial trial in the county in which the action is pending, nor that the sus- taining affidavits shall state the ground of their belief; it is sufficient that the affidavit of the applicant state that he cannot, " as he believes," have a fair and impartial trial in that county, and his application is " sustained within the purview of the statute," when there is filed the several affidavits of five credible persons residing in the county, stating that they entertain the same belief when so com- plied with, the statute is mandatory. — Snell V. Cincinnati, etc., Ry. Co., 60 Oh. St. 256 (1899). Credibility of affiants. See Snell v. Cincinnati, etc., Ry. Co., 60 Oh. St. 256 (1 Burden of proof. See Snell v. Cincinnati, etc., Ry. Co., 60 Oh. St. 256 (1899). See generally State ex rel. v. Wilson, 12 0. C. C. 636 (1896); s. c, 7 C. D. 17; Sauer v. Cincinnati, etc., Ky. Co., 4 N. P. 252 (1896) ; s. c, 7 Dec. 19; Stermer v. Cincinnati, etc., Ry. Co., 5 N. P 419 (1898); 8 Dec. 514; Dodds V. Mt. Eden, etc., Ry. Co., 41 W. L. B. 209 (1899) ; s. c, 20 0. C. C. 709. W^hat is most convenient. The words " most convenient," as used in this section, are to be taken in the sense of most suitable, becoming or appropriate, and not in the sense of promotion of physical ease. — Wilson V. Cincinnati, etc., Ry. Co., 7 N. P. 511 (1899). 582 Private Corporations in Ohio. Service of Summons, § 5041. § 5041. HOW SUMMONS SERVED UPON COEPOEATION. — A summons against a corporation may be served upon the president, mayor, chairman or presi- dent of the board of directors or trustees, or other chief officer; or if its chief officer be not found in .the county, upon its cashier, treasurer, secretary, clerk, or managing agent; or, if none of the aforesaid officers can be found, by a copy left at the office or usual place of business of such corporation, with the person having charge thereof; and if such corporation is a railroad company, whether foreign or created under the laws of this state, and whether the charter thereof describes the manner and place, or either, of service of process thereon, or, if such corporation be a street railroad company, owning or operating a street railroad passing through two or more counties, or a transportation company owning or operating an electric traction road located upon either bank of any canal belonging to the state, the summons may be served iipon any regular ticket or freight agent of such railroad company or street railroad company or transportation company; or, if there be no such agent, then upon any conductor in charge of any train or car upon such railroad or street railroad, or upon any motorman or other person in charge of any electric traction car, engine or motor upon any such electric traction road, in any county in this state, in which such rail- road, street railroad, or electric traction road is located, or through which it passes; but if the defendant is an incorporated river transportation company, whether organ- ized under the laws of this or another state, the service of a summons may be upon the master, or other chief officer, or any of its steamboats or other craft, or upon any of its authorized ticket or f rei§:ht agents, at any port where it transacts business. (65 V. 116, § 66; 76 v. 145, § 10; R. S. 1880, § 5044; 94 v. 273, § 5041; April 23, 1902, 95 V. 258.) Return of service on subordinate of- ficers or by leaving copy. When service is made upon a subordinate officer, it must appear from the return that the chief officer of the corporation could not be found. When made by copy left at the office or usual place of business of such cor- poration, with the person having charge thereof, it must show that none of the speci- fied officers, neither chief nor subordinate, could be found in the county. — Fee v. Big Sandy Iron Co., 13 Oh. St. 563 (1862); Bucket Pump Co. >. Eagle Iron Co., 21 0. C. C. 229 (1900). See Parker v. Van Dorn Iron Works, 23 0. C. C. 444 (1902). Return of service. A service of summons on a corporation " by delivei'ing a tnie copy of this writ, with all indorsements thereon, to John Doe, secretary of the company, no other chief officer being found," is a compliance with the statute. — ■ Cincinnati Hotel Co. v. Central Trust Co., 25 W. L. B. 375 (1891); s. c, 25 W. L. B. 295. Service on president, xirhere made. Where a suit has been rightfully brought against a corporation, service may be made on the president in that or any other county, or if service can be otherwise made in the county by serving other officers, etc., it is not neces- sary to follow the president to another county. — Campbell v. Woodsdale Park Co., 3 N. P. 159 (1896); s. c, 4 Dec. 152. Service on lessee of railroad. Service on a company operating a railroad under a lease is good if made on a ticket agent.— C. C. C. & I. Ry. Co. v. McLean, 1 0. C. C. 112 (1885); s. c, 1 C. D. 67. § 3305. See, also, Service on lessor of railroad. See § 3305. See Collins v. Baltimore, etc., E. R. Co., 7 N. P. 270 (1898) ; s. c, 7 Dec. 445. Foreign railroad company — traveling passenger agent. Services cannot be made on a foreign rail- road company by ser\'ing the writ upon a mere traveling solicitor of business for such com-, panv. — Wilson ,v. Northern Pacific E. E. Co.,' 16 W. L. B. 6 (1886). | Foreign railroad company. So far as this section provides for service on foreign railroad companies, it is cumula- tive and not restrictive or exclusive, and does not affect § 5043. — See Wheeling, etc., Co. v. Baltimore, etc.. R. R. Co., 1 C. S. C. 311, 32 Oh. St. 135 (1877). Return must show^ service on " regular agent." In an action against ii railroad company, a return that the summons was served upon a " ticket agent and general agent " is defective in not showing that the person served was "its regular ticket agent." — Tallman v. Bal- timore, etc., R. E. Co., 45 Fed. 156 (1891); s. c, 6 0. F. D. 728. Ticket agent need not be employed on line of road. Service on a ticket agent was held sufficient though the company had no line of road and did not operate in the county. — See Wood- cock V. Baltimore, etc., R. R.' Co. (U. S. C. C), 46 W. L. B. 121 (1901). Code of Civil Procedure. 583 Service of Summons, §§ 5043, 5043. Suit by resident of Ohio against Ohio corporation in foreign state — service. See Cincinnati, etc., R. E. Co. v. Emery, 17 W. L. B. 154 (1887). "When there is no agent — service. See § 5045. Joint-stoch companies — service. A joint-stock company, organized under the laws of the state of New York, and having substantially the character and powers of a corporation, may be served with summons in this state in the same manner as corporations are served. — Express Co. v. State, 55 Oh. St. 69 (1896). Service on defunct company. As the last directors of a defunct corpora- tion are in effect the corporation, sei'vice on them is sufficient. — Warner v. Callender, 20 Oh. St. 190 (1870). Township ditches, notice, hour served. See Caldwell v. Trustees, 2 0. C. C. 10 (1886); s. u., 1 C. D. 332. Agent of receiver is not agent of com- pany. The service of a summons on a regular ticket and freight agent, at and in charge of an established station, the road being in the hands of a receiver, and such agent being an agent of the receiver, is not good service as against the company. — Cleveland, etc., R. R. Co. V. Orme. 1 0. C. C. 511 (1885) ; s. c, 1 C. D. 285; Collins v. Baltimore, etc., R. R. Co., 7 N. P. 270 (1898); s. c, 7 Dec. 445. But see § 4991. Where company enters jurisdiction by ferry. Where a railroad enters the jurisdiction by ferryboat only, service on a ticket agent lo- cated in his township is sufficient. — Williams V. Chesapeake, etc., R. R. Co., 31 W. L. B. 115 (1894). 'Who is managing agent. See § 5043, notes. § 5042. HOW SEBVED TJPON AN INSURANCE COMPANY. — When the defendant is an insurance company, and the action is brought in a county in which there is an agency thereof, the service may be upon the chief officer of such agency. (51 V. 57, § 67; R. S. 1880, § 5045; April 16, 1900, 94 v. 273, § 5042.) This is cumulative. See Householder v. Kansas, etc.. Life Asso- ciation, 6 N. P. 520 (1898) ; s. c, 8 Dec. 321. Appointment of agent. See §§ 3607, 3617. § 5043. ON FOREIGN CORPORATION.— When the defendant is a foreign corpo- ration, having a managing agent in this state, the service may be upon such agent. (51 V. 57, § 68; R. S. 1880, § 5046; 94 v. 274, § 5043.) Toreign railroad companies may be served under this section. The provisions of § 5041 as to service of for- eign railroad corporations are not exclusive, and the service of summons on such a com- pany may be made by delivering the writ to its managing agent, whose business it is to contract for freight and to attend to transfers of freight. — Wheeling, etc., Co. v. Baltimore, etc., R. R. Co., 1 C. S. C. 311; a. k^., 32 Oh. St. 116, 135 (1877). Traveling passenger agent is not a, manaering agent. See Wilson v. Northern Pacific E. R. Co., 16 W. L. B. 6 (1886). Sales agent is not managing agent. The fact that a foreign corporation has an agent here merely to receive what is sent to him, and to remit back the proceeds, is not sufficient, and such agent is not a managing agent. — Gibbin v. Kanawha, etc.. Coal Co., 2 C. S. C. 75 (1870). See Bucket Pump Co. v. Eagle Iron Co., 21 O. C. C. 229 (1900). "Who is managing agent of insurance company. A service upon "J. P. W., agent of said Lamar Insurance Co., and the chief officer of its agency in the city of Cincinnati, no chief officer of said company found," is good as service upon a managing agent. — Mohr Dis- tilling Co. V. Lamar Insurance Co., 7 W. L. B. 341 (1882). Who is managing agent. A local agent of an express company who keeps an office, receives and forwards pack- ages, and does all the business of the com- pany at a certain place, is a managing agent. — American Express Co. v. Johnson, 17 Oh. St. 641 (1867). See Wheeling, etc., Co. v. Baltimore, etc., R. R. Co., 1 C. S. C. 311, 32 Oh. St. 135 (1877). Service on foreign insurance company. A foreign insurance company may be served either under this section or the preceding sec- tion, as they are cumulative and designed to facilitate service. — Householder v. Kansas, etc.. Life Association, 6 N. P. 520 (1898) ; s. c, 8 Dec. 321 ; Mohr Distilling Co. v. Lamar In- surance Co., 7 W. L. B. 341 (1882). 584 Private Corporations in Ohio. Service by Publication, § 5045. Return must shoiv service on managing agent. While only substantial compliance with the statute is suificient, a return which does not show that service was had upon the manag- ing agent of the company in the state, but simply " upon defendant's agent," is not suf- ficient. — Fleckmeyer Wheel Co. v. Commer- cial Wheel Co., 7 N. P. 613 (1897); 3. c, 8 Dec. 686. Service on foreign corporation under § 5041. Except as specially provided a 'foreign cor- poration cannot be served with process under § 5041. — Barney v. New Albany, etc., R. R. Co., 1 Handy, 571 (1855). Foreign dissolved corporation, hoiv served. See Vallette v. Kentucky Trust Co., 2 Handy, 1 (1855). Attachment by notice to managing agent. See Eocke v. Eaney, 15 W. L. B. 333 (1886). Designation of agent upon ivhom proc- ess can be served. See § 148d. See generally § 148e, notes. Service on foreign corporation after agent designated. Service may be made on managing agent notwithstanding an agent has been appointed and his name filed with secretary of state. — Lesser Cotton Co. v. Yates, 63 S. W. 997 (Ark.). Validity of service on Ohio corporation in foreign state. See Cincinnati, etc., R. E. Co. v. Emery, 17 W. L. B. 154 (1887). § 5045. WHEN CORPOEATIOITS MAY BE SERVED BY PUBLICATION.— Service may be had by publication in either of the following cases: 1. In actions under the first three sections of the last chapter, when the defendant resides out of the state, or his place of residence can not be ascertained. 2. In actions to establish or set aside a will, and in actions authorized by section six thousand two hundred and two, when a defendant resides out of the state, or his place of residence can not be ascertained. 3. In actions in which it is sought by a provisional remedy to take, or appropriate in any way, the property of the defendant, when the defendant is a foreign corpora- tion, or a non-resident of this state, or the defendant's place of residence can not be ascertained. 4. In actions against a corporation organized under the laws of this state, which has failed to elect officers, or to appoint an agent, upon whom service of summons can be made as provided by section five thousand and forty-one, and which has no place of doing business in this state. 5. In actions which relate to or the subject of which is real or personal property in this state, when a defendant has or claims a lien thereon, or an actual or contingent interest therein, or the relief demanded consists wholly or partly in excluding him from any interest therein, and such defendant is a non-resident of the state, or a. foreign corporation, or his place of residence cannot be ascertained. 6. In actions against executors, administrators, or guardians, when the defendant has given bond as such in this state, but at the time of the commencement of the action is a non-resident of the state, or his place of residence can not be ascertained. 7. In actions where the defendant, being a resident of this state, has departed from the county, of his residence, with intent to delay or defraud his creditors, or to avoid the service of summons, or keeps himself concealed with like intent. 8. When a, defendant in a petition in error has no attorney of record in this state, and is a non-resident of and absent from the same, or has left the same to avoid the service of summons in error, or so conceals himself that such process can not be served upon him. 9. In an action or proceeding under chapter six, division four, of this title, or to impeach a judgment or order for fraud, or to obtain an order of satisfaction thereof, when a defendant is a non-resident of the state. When, in any such case, the residence of a defendant is known, it must be stated in the publication; and immediately after the first publication, the party making the service shall deliver to the clerk copies of the publication, with the proper post- age, and the clerk shall mail a copy to each defendant, directed to his residence Code of Civil Procedure. 585 Verification of Pleadings — Attachment, §§ 5102-5521. named therein, and m.ak6 an entry thereof on the appearance docket; and in all other cases, the party who makes the service, his agent or attorney, shall before the hearing, make and file an affidavit that the residence of the defendant is unknown, and can not with reasonable diligence, be ascertained. (65 v. 208, § 1; 74 v. 151, § 70; R. S. 1880, § 5048; 77 v. 45; 87 v. 225; 94 v. 374, § 5045.) § 5102. PLEADING TO BE SUBSCRIBED AND VERIFIED.— Every pleading and motion must be subscribed by the party or his attorney, and every pleading of fact, except as provided in the next section, must be verified by the affidavit of the party, his agent or attorney; when a corporation is the party, the verification may ba made by an officer thereof, its agent or attorney; and when the state, or any officer thereof in its behalf, is the party, the verification may be made by any person acquainted with the facts, the attorney prosecuting or defending the action, the prose- cuting attorney, or the attorney-general. (March 14, 1853, 51 v. 57, § 106; 70 v. 54, § 105.) § 5109 does not limit tliis section. Under this section the pleading of a cor- poration may be verified by the affidavit of its officer, agent, or attorney, and the pro- visions of § 5109 do not apply. — Northern National Bank v. Maumee Rolling Mill Co., 2 N. P. 260 (1894); s. c, 2 Dec. 67. AnsTvers to interrogatories, how veri- fied. See § 5099. § 5465. GARNISHMENT AGAINST RAILROAD COMPANIES.— The plaintiff, or his agent or attorney, in a judgment against a railroad company, rendered in any court, upon a claim due to common laborers for work and labor performed for the company, or for cross-ties, lumber, or wood 'furnished thereto, to be used in the con- struction, repair, or operation of its road or for the erection of fences along the line of its road, required by law to be erected, or upon a note, or other evidence of indebted- ness givep. for the considerations aforesaid, may file with a precipe for execution upon such judgment his affidavit, setting forth the claim upon which the judgment is founded, that he has no knowledge of any property of the defendant liable to levy and sale upon the execution, and that a person or corporation, to be therein named, and within the jurisdiction of the officer to whom the execution is to be directed, is indebted to the defendant, or has property or claims of the defendant in his posses- sion or under his control, as agent of the defendant, or otherwise; and thereupon the clerk shall issue a notice to each person or corporation named, to the efEect that he is required to pay over and deliver to the officer holding such writ the money, property, and claims of the defendant, in his possession or under his control, or which may come into his possession or under his control, at any time before the satisfaction cf the judgment, not exceeding an amount sufficient to pay the same and costs. (April 5, 1866, 63 V. 126, § 1.) See § 5466 et seq., for practice. § 5521. ATTACHMENT, GROUNDS.— That in a civil action for the recovery of money the plaintiff may, at or after the commencement thereof, have an attachment against the property of the defendant upon the grounds herein stated. 1. When the defendant, or one of several defendants, is a foreign corporation, except as provided by an act entitled " An act to further supplement section 148 of the Revised Statutes," passed May 16, 1894 (91 0. L. 272), and except as pro- vided by an act entitled " An act to ameiid section 1 of an act," etc., passed May 19, 1894 (91 O. L. 355) [§§ 148o, 148d;l or a non-resident of this state; or 3. Has absconded with the intent to defraud his creditors; or 3. Has left the county of his residence to avoid the service of a summons; or 4. So conceals himself that a summons cannot be served upon him; or 5. Is about to remove his property, or a part thereof, out of the jurisdiction of the cotirt, with the intent to defraud his creditors; or 586 Private Corporations in Ohio. Attachment, etc., § 5534. 6. Is about to convert his property, or a part thereof, into money, for the pur- pose of placing it beyond the reach of his creditors; or 7. Has property or rights in action, which he conceals; or 8. Has assigned, removed, disposed of, or is abotit to dispose of, his property, or a part thereof, with the intent to defraud his creditors; or 9. Has fraudulently or criminally contracted the debt, or incurred the obliga- tions for which suit is about to be or has been brought; or 10. That the claim is for work or labor, or for necessaries. But an attachment shall not be granted on the ground that the defendant is a foreign corporation or a non-resident of this state, for any claim other than a debt or demand arising from contract, judgment or decree, or for causing death or a personal injury, by a negligent or wrongful act. (March 20, 1900, 94 v. 44; 93 V. 318; 88 v. 65; R. S. 1880; 61 v. 10, § 191.) lHo bonds required. See § 5523. Practice. See Vallette v. Kentucky, etc., Bank, 2 Handy, 1 (1855). Toreign corporation may be made garnishee, service of order, Rainey v. Maas, 28 W. L. B. 246 (1892). See Hocke V. Raney, 15 W. L. B. 333 (1886); Pennsylvania R. R. Co. v. Peoples, 31 Oh. St. 537 (1877); Baltimore, etc., R. R. Co. v. May, 25 Oh. St. 347 (1874). See Riter-Conley Mfg. Co. v. Mzik, 13 C. D. 164 (1901). ^W^here suit brought xrhen debts due foreign corporation are attached. See Rainey v. Jefferson Iron Works, 8 0. C. C. 674 (1894) ; s. c, 4 C. D. 231. See Kelley Co. V. Garvin Machine Co., 6 N. P. 350 (1896)". See Riter-Conley Mfg. Co. v. Mzik, 13 C. D. 164 (1901). ' Action for injury to passenger may be on contract. See Pennsylvania R. R. Co. v. Peoples, 31 Oh. St. 537 (1877). IMCalicious prosecution of civil action. An attachment cannot issue in an action against a foreign corporation to recover dam- ages for bringing suit in violation of a con- tract for the extension of the time of payment on a note, and maliciously attaching property. McCracken v. Covington Nat. Bank, 4 Fed. 602 (1880). How corporation served as garnishee. See § 5534; Union Bank v. Union Bank, 6 Oh. St. 254 (1856) ; Couahan v. Collin, 2 Dis. 1 (1871). Creditors filing claims with receivers of foreign corporations are estopped from attaching. See Rice v. Farnham, 7 N. P. 189 (1896) ; s. c, 4 Dec. 217: Bartour v, Locka-d. 11 W. L. B. 319 (1884); Wilson v. Gifford, 12 0. C. C. 597 (1896); s. c, 5 C. D. 680; President, etc., of Manhattan Co. v. Maryland Steel Co., 31 W. L. B. 100 (1894); s. c, 1 Dec. 286. Creditors in same jurisdiction as re- ceiver of corporation cannot attach. See Besuden v. Besuden Co., 3 N. P. 165 (1896); s. c, 4 Dee. 406. Application for recsiver, Tvhen fraud. An application for the appointment of a re- ceiver consented to by the company may amount to an attempt to dispose of the prop- erty with intent to defraud creditors. — • Bacon v. Northwestern Stove Co., 5 0. C. C. 289 (1891); s. c, 3 C. D. 551. § 5534. HOW COEPOEATION SERVED AS GABNISHEE.— If the garnishee is a person, the copy of the order and notice shall be served upon, him personally or be left at his usual place of residence; if a partnership garnisheed by its company name, they shall be left at its usual place of doing business or with any member of such partnership; and if a corporation, they shall be left with the president or other principal officer, or the secretary, cashier or managing agent thereof; and if such corporation Is a railroad company, they may be left with any regular ticket or freight agent thereof, in any county in which the railroad is located. (April 16, 1900, 94 V. 283; March 31, 1881, 78 v. 93; R. S. 1880; May 16, 1868, 65 v. 213.) ■What is improper return. The following return of service dcies not comply with the statute : " The attachment was served upon the following persons and firms: The Sandusky Gas Light Co." Prant V. Post, 12 Dee. 141 (1900). See Riter-Conley, etc., Co. v. Mzik, 13 C. D. 164 (1901). See notes to § 5521, PART XXIV. RECEIVERS OF CORPORATIONS. § 5587. When and how a receiver may be appointed. § 5588. Who ineligible as receiver. § 5589. Oath and undertaking by receiver. § 5590. Powers of receiver. § 5591. Investment of fund by receiver. § 5592. Disposition of property m hands of trustee. § 5593. How certain orders of court may be enforced. § 5587. WHEN AND HOW A RECEIVER MAY BE APPOINTED.— A receiver may be appointed by the supreme court or a judge thereof, the circuit court or a judge thereof in his circuit, a common pleas court or a judge thereof in his district, or the probate court, in causes pending in such courts respectively, in the following cases: 1. In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to subject any property or fund to his claim, or between partners or others jointly owning or interested in any property or fund, on the application of the plain- tiff, or of any party whose right to or interest in the property or fund, or the proceeds thereof, is probable, and when it is shown that the property or fund is in danger of being lost, removed, or materially injured. 2. In an action by a mortgagee, for the foreclosure of his mortgage, and sale of the mortgaged property, where it appears that the mortgaged property is in danger of being lost, removed or materially injured, or that the condition of the mortgage has not been performed, and the property is probably insufficient to discharge the mortgage debt. 3. After judgment, to carry the judgment into effect. 4. After judgment, to dispose of the property according to the judgment, or to preserve it during the pendency of an appeal, or when an execution has been returned unsatisfied, and the judgment debtor refuses to apply the property in satisfaction of the judgment. 5. In the cases provided in this title, and by special statutes, when a corporation has been dissolved, or is insolvent, or in imminent danger of insolvency, or has for- feited its corporate rights. 6. In all other cases where receivers have heretofore been appointed by the usages of equity. (February 7, 1885, 82 v. 16, 35; R. S. 1880; 51 v. 57, § 283.) Action cannot be maintained for the sole purpose of appointing a receiver. The appointment of a receiver is merely a provisional remedy, ancillary and auxiliary to the main action, and can only be made in an action brought to obtain some other equitable relief, which the court has a right to grant, and where it appears to be necessaiy to make such appointment in order to preserve the property during the litigation, so that the re- lief awarded by the final judgment if any, mav be effective. — Cincinnati, etc.. R. R. Co. V. Duckworth, 2 0. C. (J. 518 (1887); s. c, 1 C. D. 618. See Cincinnati, etc.. R. R. Co. v. Sloan, 31 Oh, St. 1, 7 (1877); Schone v. Con- solidated, etc., Co., 4 N, P. 216 (1897); s. c, 6 Dec. 246; Callahan v. Ice Co., 13 0. C. C. 479 (1897); s. c, 7 C. D. 349. What cases ivithin subd. 5 of this sec- tion. Subdivision 5 of this section does not au- thorize the appointment of a receiver, except in cases provided for in this title (1), or by special statutes, and does not include an ac- tion by a. stockholder for the appointment of a receiver because of fraud of directors. — Cincinnati, etc., R. R. Co. v. Duckworth, 2 0. C. C. 518 (1887) ; s. c, 1 C. D. 018. [587] 588 Private Corporations in Ohio. Appointment, etc., of Receiver, § 5587. Propriety of appointing receiver to run business. While the appointment of a receiver for an insolvent private corporation may be, and doubtless often is, a beneficent remedy for all interested parties, where a bona fide wind- ing up of aflFairs and distribution of its assets to those who show a right to them, is the ob- ject sought and steadily kept in view, yet, on the other hand, to employ that extraordinai-y remedy as a means by which to indefinitely prolong, by aid of a friendly receiver, the sub- stantial control of an insolvent private cor- poration over its assets and business, can be justified, in the absence of statutory au- thority, by circumstances only, if there can be any, that most unequivocally demand such action, or by the consent of all parties in in- terest. — Peter v. Farrell, etc., Machine Co., 53 Oh. St. 634, 551 (1895). Simple contract creditor cannot have ; receiver appointed. A simple contract creditor who has not re- covered a judgment against a corporation and exhausted his remedies at law, has no right to have the affairs of a corporation placed in the hands of a, receiver on the grounds that it is insolvent. — North Fairmount, etc., Co. v. Eehn, 6 N. P. 185 (1899); s. c, 8 Dec. 594. ■When a creditor may have a receiver appointed. It is not a sufficient averment for the ap- pointment of a receiver to allege that the cor- poration is insolvent, or that it has no goods or property subject to levy. The reason is that a corporation may have nothing upon which levy may be made, and yet be the owner of equitable rights sufficient to satisfy all debts. — Fox River Paper Co. v. Snider Paper Co., 36 W. L. B. 329 (1896). Right of directors to apply for receiver. The court has no power on the application of the directors of a building association, as such, and who assert no individual rights in the property of the corporation, to divest the stockholders, without notice or consent, of the control of their property and place it in the hands of an officer of the court for man- agement and administration. — Schone v. Con- solidated, etc., Co., 4 N. P. 216 (1897); ». c, 6 Dec. 246. When receiver appointed on the ground of misconduct of directors. A court of equity has authority, at the suit of a stockholder, to enjoin unlawful conduct on the part of the directors of a corporation, and if in such actions it may be made clearly to appear to the court that the appointment of a receiver is really necessary to effect the purpose of the suit, as, for instance, if it clearly appear that unless the property is placed in the hands of an officer of the court it will be fraudulently and instantly disposed of by the directors, a receiver may be ap- pointed. But in the absence of such necessity, and where full relief may be afforded by in- junction, the appointment of a receiver is an abuse of discretion. — Cincinnati, etc., K. R. Co. V. Duckworth, 2 0. C. C. 518 (1887) ; s. c, 1 C. D. 618; North Fairmount, etc., Co. v. Rehn, 6 N. P. 185 (1899); s. c, 8 Dec. 594; s. c, 5 N. P. 314; s. c, 7 Dee. 398. See Robison V. Cleveland, etc., Ry. Co., 5 N. P. 293 (1898) ; s, c, 7. Dee. 312; Equitable Nat. Bank v. 6uok- enberger, 5 N. P. 319; s. c, 5 Dec. 438; Stra- man v. North Baltimore, etc., Co., 8 0. C. C. 89 (1893); s. c, 4 C. D. 339; Behrens v. Equality Bldg. Ass'n, 2 N. P. 259 (1895) ; s. c, 3 Dec. 275; Merrill v. Lake, 16 Oh. 373, 403 (1847); Baker v. Fraternal Mystic Circle, 32 W. L. B. 84 (1894) ; ». c, 1 Dec. 579; Goebel V. Herancourt Brewing Co., 7 N. P. 230; s. c, 2 Dec. 377 (1893). Where stockholder entitled to appoint- ment of receiver. Chancery will not, at the suit of a stock- holder, take jurisdiction of distinct and sepa- rate matters and unite with them the set- tlement of the transactions of a corporation in one suit, because such single litigation may prevent a sacrifice of property, and be most beneficial to stockholders and creditors. — Merrill v. Lake, 16 Oh. 373 (1847). Receiver not appointed because cred- itors are pressing claims. See Moss Nat. Bank v. Lakeside Co., 19 0. C. C. 365 (1900); Merrill v. Lake, 16 Oh. 373, 403 (1847). Not appointed nrhen voluntary liqui- dation is possible. A receiver will not be appointed to wind up the affairs oi a debenture company which is desirous of going into voluntary liquida- tion, the liabilities of which do not appear to exceed its assets by an amount greater than can be collected from its solvent stock- holders who stand ready to pay. Quaere. — Can the corporation be required to give bond for faithful administration? — See Everhardt v. United States Investment, etc., Co., 8 N. P. 463 (1901). An application for a receiver may he such fraud as to creditors as to jus- tify an attachment. See Bacon v. Northwestern Stove Co., 5 0. C. C. 289 (1891); s. c, 3 C. D. 143. When surety of corporation may have receiver appointed. Where an insolvent corporation is sued by one of its sureties under § 5845, as a means of protecting the funds, a receiver may be ap- pointed. — Barbour v. National Exchange Bank, 45 Oh. St. 133 (1887). Action to enforce stockholders' lia- bility. In an action to enforce payment of the statutory liability of stockholders in an Ohio corporation, a receiver may be appointed by the court to collect and distribute the funds, and such receiver may be authorized to main- tain in his own name actions to enforce pay- Receivers of Corporations. 589 Appointment, etc., of, § 5587. ment of judgments rendered for statutory lia- bility. — Zieverink v. Kemper, 50 Oh. St. 208 (1893). See Clarke v. Thomas, 34 Oh. St. 46 (1877). Receiver ivill be appointed for u. bond company operating on a, lottery basis. Where a bond and investment company is operated on a lottery basis, a court of equity will appoint a receiver to preserve the funds for distribution among those interested. — Shaw V. Interstate, etc., Co., 5 N. P. 411 (1898); 8. c, 8 Dec. 510; Central, etc., Co. v. Jones, 36 W. L. B. 87 (1896). Appointment of receiver ixrithout no- tice. The appointment of a receiver to take from the defendant the possession of its property cannot be lawfully made without notice, un- less the delay required to give such notice will result in irreparable loss. — Railway Co. v. Jewett, 37 Oh. St. 649 (1882). Consent of company. Where there is no ground for the appoint- ment of a receiver, the consent of the com- pany cannot confer jurisdiction upon the court. — Moss Nat. Bank v. Lakeside Co., 19 0. C. C. 365 (1900) ; s. c, 10 C. D. 542. 'Where property is in another county. When after the appointment of a receiver it will be necessary to commence ancillary pro- ceedings in another county to detei-mine prop- erty rights, the matter of the appointment of a receiver will be left to the court having jurisdiction of the property. — Moss Nat. Bank v. Lakeside Co., 19 0. C. C. 365 (1900) ; s. c, 10 C. D. 542. Insolvency, how proved. When the insolvency of a corporation is one of the essential elements, constituting the basis of the plaintiff's claim for relief against the corporation, such insolvency must be proven by a preponderance of the testimony. It will not be sufficient by the proof to merely raise a doubt as to the solvency of the cor- poration. — North Fairmount, etc., Co. v. Eehn, 6 N. P. 185 (1899) ; s. c, 8 Dec. 594. Action for receiver — parties. The creditors are proper parties to an ac- tion which seeks the appointment of a re- ceiver. — Walbridge v. Union Mfg. Co., 7 N. P. 430; s. c, 5 Dec. 203. Actions against company vrhile in re- ceiver's hands. See Mather v. ancinnati Ey. Co., 3 0. C. C. 284 (1888); s. c, 2 C. D. 161. See also § 4991. Power of corporation over property in hands of receiver. See Donner v. Dayton, etc., E. E. Co., 1 C. S. C. 130 (1871). Title to property. See Lafavette Bank v. Buckingham, 12 Oh. St. 419. 42.5 (1861); Phoenix Ins. Co. v. Bow- ersox, 6 0. C. C. 1, 5 (1891) ; s. c, 3 C. D. 321. Receiver is not the agent of the com- pany. See Consolidated Coal Co. v. Cincinnati, etc., R. E. Co.. 10 W. L. B. 42 (1883). Liability of receiver for negligence. See Murphy v. Holbrook, 20 Oh. St. 137 (1870); Potter v. Bunnell, 20 Oh. St. 150 (1870). Foiver of court to w^ind up corporation. In the absence of statutorj' authority, a court of equity has no right, at the suit of a stockholder, to take any step for the sole pur- pose, or the primary object of which is to wind up the affairs of a corporation, or in ordinary cases take the control and management thereof from the directors, even on the ground of fraud or mismanagement, or the insolvency of the company. — Cincinnati, etc., R. E. Co. v. Duckworth, 2 0. C. C. 518 (1887); s. c, I C. D. 618; North Fairmouni,, etc., Co. v. Eehn, 6 N. P. 185 (1899); s. c, 8 Dec. 594; Cronin V. Potters' Co.-Op. Co., 29 W. L. B. 52 (1892). But see Everhardt v. United States Invest- ment Co., 8- N. P. 525 (1901). When creditor cannot attach in for- eign state. The court appointing a receiver has power to order a creditor, residing within the juris- diction, to dismiss attachment proceedings be- gun bv him in a foreign state. — Besuden v. Besuden Co., 3 N. P. 165 (1896); s. c, 4 Dec. 144. liien of attaching creditor as against receiver. Where, before the appointment of a re- ceiver, an attachment and levj^ are made by a creditor on the assets of a corporation, carry- ing on its business, though in fact insolvent, the receiver's rights will be subject to the lien obtained bv attachment. — Ford v. Lamson, 17 0. C. C. 539 (1899). See New \onv Eubber Co. V. Gandy Belting Co., 11 0. C. C. 618 (1896); s. i:., 5 C. D. 286. Liability for receivers for taxes. See McNeill v. Hagerty, 51 Oh. St. 255, 265 (1894); Sandheger v. Banner Brewing Co., 6 N. P. 410 (1899) ; s. c, 8 Dec. 592. Receivers of railroads. See § 3415 et seq. Propriety of appointing receiver of in- solvent corporation. See Cheney v. Maumee Cvcle Co.. 20 0. C. C. 19 (1900) ; s. c. Sup. Ct. 1901, 45 W. L. B. 175. 590 Private Corporations in Ohio. Beceiver, Eligibility, Oath, Bond, Powers, etc., §§ 5588-5591. § 5588. WHO INELIGIBLE AS BECEIVEB.— No party, attorney, or person, interested in an action, shall be appointed receiver therein, except by consent of the parties. (March 14, 1853, 51 v. 57, § 354.) within the direct prohibition of this section. — Moss Nat. Bank v. Lakeside Co., 19 0. C. C. 365 (1900); s. c, 10 C. D. 542. Stockholders and directors ineligible. The appointment of one who at the time of his appointment as receiver was a stoclcholder, director and treasurer of the corporation, is § 5589. OATH AND UNDERTAKING BY BECEIVEK.— The receiver, before he enters upon his duties, must be sworn to perform them faithfully, and, with surety approved by the court, judge, or clerk, execute an undertaking to such person, and in such sum, as the court or judge shall direct, to the effect that he will faithfully dis- charge the duties of receiver in the action, and obey the orders of the court therein. (March 14, 1853, 51 v. 57, § 255.) § 5590. FOWEES OF RECEIVEE.— The receiver shall have power, under the control of the court, to bring and defend actions in his own name, as receiver, to take and keep possession of the property, to receive rents, collect, compound for, and com- promise demands, make transfers, and generally to do such acts respecting the prop- erty as the court may authorize. (March 14, 1853, 51 v. 57, § 256.) Powers of foreign receivers. See Bank v. McLeod, 38 Oh. St. 174 (1882) Barbour v. Lockard, 11 W. L. B. 319 (1884) Wilson V. Gifford, 12 0. C. C. 597 (1896), President, eic, of Manhattan Co. v. Maryland Steel Co., 31 W. L. B.. 100 (1894); s. c, 1 Dee. 286; Besuden v. Besuden Co., 3 N. P. 165 (1896); s. c, 4 Dec. 144. Po^wer to sell property. A receiver acts under orders and directions of the court, and the only title or property he can convey is that ordered by the court to be sold; therefore, should he include in the sale property not ordered sold, and such sale is afterward confirmed by the court, it must be considered as confirmed inadvertently. — Cin- cinnati, etc., R. R. Co. V. Cincinnati, etc., Ry. Co., 6 N. P. 427 (1899); s. c, 9 Dec. 493. PoTirer over real estate. See Cheney v. Maumee Cycle Co., 45 W. L. B. 175 (1901). Receiver succeeds to rights of all par- ties — may set aside invalid mort- gages. A receiver for the property of an insolvent corporation appointed in a suit in behalf of its general creditors succeeds to the rights of the creditors as well as of the corporation, and may avoid a chattel mortgage given by the corporation, void as to creditors under a state statute for want of filing, though it is valid as against the corporation. — Bayne v. Brewer Pottery Co., 90 Fed. 754 (1898). Same subject. Receivers of corporations are not the repre- sentatives of the corporation alone, but arc also representatives of its creditors, subject to the orders of the courts. — See Rogers v. Akron, etc., R. R. Co.. 6 N. P. 2!j1 (1899); s. c, 8 Dec. 107. Same subject — may set aside judgment. A receiver appointed for a corporation has authority under the control of the court, in his name as such receiver, to file a motion to set aside a judgment entered against the cor- poration. — Smead Foundry Co. v. Chcsbrough, 180. C. C. 783 (1895); s. c, 6 C. D. 670. Suic to set aside fraudulent convey- ance. Where a receiver fails to sue to set aside a fraudulent conveyance, a creditor may com- mence such suit making the receiver and all interested parties, such action being substan- tially an application to the court for an order on the receiver. — Monitor Furnace Co. v. Pet- ers, 40 Oh. St. 575 (1884). Mandamus against receiver. Where the court of common pleas, having jurisdiction in an action against a railroad corporation, has appointed a receiver, who is in possession and is operating the road under the orders of the court, a mandamus will not be issued against such corporation and re- ceiver directing their conduct in operating the road. — State ex rel. v. Marietta, etc., R. R. Co., 35 Oh. St. 154 (1878). Unrecorded mortgage, priority of re- ceiver. See Cheney v. Maumee Cycle Co., 45 W. L. B. 175 (1901). Receiver may sue in name of company. See Ohio, etc., R. R. Co. v. Indianapolis, etc., R. R. Co., 5 A. L. Reg. 733 (1866): Mi- ami Exporting Co. v. Gano, 13 Oh. 269 (1844). § 5591. INVESTMENT OF FUNDS BY RECEIVER.— Funds in the hands of a receiver may be invested upon interest, by order of the court; but no such order shall Receivers of Corporations. 591 Orders of Court as to Funds, etc., §§ 5592, 5593. be made except upon, the consent of all the parties to the action. (March 14, 1853, 51 V. 57, § 257.) § 5592. DISPOSITION OF PBOPEBTY IN HANDS OF TRUSTEE.— When it is admitted by the pleading or on the examination of a party that he has in his posses- sion, or under his control, any money or other thing capable of delivery, which, being the subject of the litigation, is held by him as trustee for another party, or which belongs or is due to another party, the court may order the same to be deposited in court, or delivered to such party, with or without security, subject to the further direction of the court (March 14, 1853, 51 v. 57, § 258.) § 5593. HOW CERTAIN ORDERS OF COURT MAY BE ENFORCED.— When a court, in the exercise of its authority, orders the deposit or delivery of money or other thing, and the order is disobeyed, the court, besides punishing the disobedience as for a contempt, may make an order requiring the sheriff to take the money or thing, and deposit or deliver it in conformity with the direction of the court. (March 14, 1853, 51 V. 57, § 359.) PART XXV. DISSOLUTION OF CORPORATIONS. § 5651. When corporation may petition for dissolution. § 5652. What the petition must contain. ^ 5653. Affidavit to be attached to petition. § 5654. Notice of the pendency of the petition. § 5655. Hearing before the master. i 5656. When a judgment for dissolution to be rendered. § 5657. Who may be appointed receiver. § 5658. Povi'ers of receiver. •§ 5659. Unpaid subscription to be collected. § 5660. Duties of trustees. § 5661. Transfers pending the action void. § 566'^. Duties of creditors and other persons. § 5663. Meeting of creditors. ■§ 5664. HoAv contingent engagements discharged. § 5665. Receiver's compensation. S 5666. Receiver to retain money for certain purposes. § 5667. Eow distribution to be made. ^ 5668. .When dividend may be made. ■§ 5669. Receiver to act on order of court. * -''670. Account of receiver to court. § 5671. Report of referee on receiver's account. § 5672. Further duties of receiver. ■§ 5673. When one-fifth of stockholders may require a dissolution. S 5674. How certain corporations may surrender charter. § 5674a. Inactive corporations, surrender of corporate powers. § 5675. Directors at time of dissolution may settle affairs of corporation. § 5676. When the last board is without a quorum. § 5677. Petitions under preceding section. ^ 5678. Trustees appointed succeed to rights of predecessor. § 5679. No action shall abate by dissolution of corporation. § 5680. Judgment by or against such corporations may be enforced. § 5681. Title to property of corporation to pass to trustees. § 5682. Trustees personally liable for an abuse of trust. S 5683. Dissolved corporation may prosecute action in its own name. I 5684. May be sued by corporate name ; service of process. § 5685. .ludgments for or against niay be revived. 5 5686. Error may be prosecuted on judgments for or against. § 5687. Directors may appoint trustees to settle affairs of corporation. § 5688. Removal and duties of trustees. § 5651. WHEN CORPOBATION MAY PETITION FOR DISSOLUTION.— When a majority of the directors, trustees, or other officers having the management of the concerns of any corporation, or stockholders representing not less than one-third of the capital stock of any corporation, organized under the laws of the state, discover that the stock, property, and effects of the corporation have been so far reduced by losses or otherwise that it will not be able to pay all just demands to which it may [592] Dissolution of Corporations. 593 Petition for, to Contain, etc., § 5652. be liable, or to afEord a reasonable security to those who may deal with it, or deem it beneficial to the interests of the stockholders that the corporation be dissolved, or when such directors, trustees, or other officers are authorized, by a majority of the stockholders, to apply for a judgment as hereinafter provided, or when the objects of the corporation have wholly failed, or are entirely abandoned, or it is impracticable to accomplish such objects, they may apply to the court of common pleas of the county, or the superior court of the city or county in which the principal place of con- ducting' the business of the corporation is situate, by petition, for the dissolution of such corporation, pursuant to the provisions of this chapter. (March 29, 1875, 72 V. 138, § 1.) IModes of dissolution before Code. Before the Code, the modes by which private corporations were dissolved were first, by the •death of its members; second, surrsnder of its franchises, and third, a judgment of forfeiture ioT nonuser or abuse. — Trustees, etc. v. Zanes- Tille, etc., Co., 9 Oh. 203 (1839). Hemoval from state does not effect dis- solution. Lander v. Burke, 65 Oh. St. 532 (1902). JDissolution by sale of property. A corporation is not dissolved by a sale of all its property. — See Donner v. Dayton, etc., K. R. Co., 1 C. S. C. 130, 139 (1871). Tovrer of court to ivind up corporation. In the absence of statutory authority, a court of equity has no right, at the suit of a stockholder, to take any step for the sole pur- pose, or the prunary object of which is, to wind up the affairs of a corporation. — Cin- cinnati, etc., K. R. Co. V. Duckworth, 2 0. C. C. 518 (1887); s. c, 1 C. D. 618; North Fair- mount, etc., Co., V. Rehn, 6 N. P. 185 (1899); s. c, 8 Dec. 594; Robison v. Cleveland, etc., Ry. Co., 5 N. P. 293 (1899) ; ». c, 7 Dec. 312; Cronin v. Potters' Co.-op. Co., 29 W. L. B. 52 (1892); Goebel v. Herancourt Brewing Co., 7 N. P. 231 (1893); s. c, 2 Dec. 377; Schone v. Consolidated, etc., Co., 4 N. P. 216 (1897); s c, 6 Dec. 246; Woods v. Equitable Deben- ture Co., 8 N. P. 125 (1900). Question of jurisdiction — ho^v deter- mined. Where the question, whether the court in an action for the dissolution of a corporation had jurisdiction of the subject-matter thereof, is raised by the pleadings in the case, it is to be tried and determined as any other issue of fact arising thereon. — Mercantile Trust Co. v. ^tna Iron Works, 4 O. C. C. 579 (1890) ; s. c, 2 C. D. 718. Principal place of conducting business — meaning. The "principal. place of this section is the ■same as principal office " of § 3855. — Mercan- tile Trust Co. V. .ajtna Iron Works, 4 0. C. C. 579, 588 (1890) ; s. c, 2 C. D. 718. Parties — lienholders. In an action for the dissolution of a cor- poration, the holders of liens on the real es- tate or personal property of the corporation are proper if not necessary parties. — Mercan- tile Trust Co. V. ^tna Iron Works, 4 0. C. C. 579 (1890); s. c, 2 C. D. 718. Appeal and error. Appeal from the court of common pleas to the court of the circuit does not lie in pro- ceedings under this section. — Brown v. Say- ler, 54 Oh. St. 246 (1S96). Costs. Where the directors of a company fi"e a peti- tion under this section, and it appears to the court that the corporation has no property liable to execution for the payment of costs of the proceedings, the covirt may order that the directors paj' such costs (masters' fees), and that in default of such payment execution should issue against them therefor. — Godley v. Pugh, 29 Oh. St. 438 (1876). Dissolution of building and loan asso- ciations. See § 3836-3. Dissolution of railroad companies. See § 3363. Dissolution does not terminate lia- bility. Where a corporation is liable in damages to an agent for having wrongfully aischarged him from its service under a contract for a definite period, and is subsequently dissolved on petition of its stockholders, it remains lia- ble to the party injured notwithstanding the dissolution. — Tiffin Glass Co. v. Stoehr, 54 Oh. St. 157 (1896). AVhen equity virill interfere. Where a corporation is proceeding in good faith, under the statute, to wind up its affairs, a court of equity will not interfere unless it appears that the remedy furnished by the statute is inadequate.— North Fairmount, etc., Co. V. Rehn, 6 N. P. 185 (1899). § 5652. WHAT THE PETITION MUST CONTAIN.— Such application shall contain a statement of the reasons which induce the applicants to desire a dissolution of the corporation, and there shall be annexed thereto — LAW GOV. PRIV. CORP. — 38 594 Private Corporations in Ohio. Aflldavit to Petition, Notice, Hearing, Judgment, etc., §§ 5653-5656. 1. A full, just, and true inventory of all the estate, both real and personal, in law and equity, of the corporation, and of all the books, vouchers, and securities relating thereto. 2. A full, just, and true account of the capital stock, if any, of the corporation, specifying the names of the stockholders, their residence when known, the number of shares belonging to each, the amount paid in upon such shares respectively, and the amount still due thereon. 3. A statement of all the incumbrances on the property of the corporation, and of all engagements entered into by it which have not been fully satisfied or canceled, specifying the place of residence of each creditor, and of every person to whom such engagements were made, if known, and if not known, the fact to be so stated, and the sum owing to each creditor, the nature of each debt or demand, and the true causa and consideration of such indebtedness. (April 15, 1867, 64 v. 153, § 2.) Accounts must be set forth in petition. A petition under this section must contain tlie amounts and inventories of all the estate of the corporation. There is no provision of the statute for substituting an excuse for not doing what the statute requires shall be done. It is within the power of the court to give the petitioners access to the books of the corpora- tion to enable them to furnish the material required to be set forth, but until such ma- terial is set forth, the court has no authority to malie an order under § .56.54. — Fitch v. Sprague Carriage Co., 19 0. C. C. 296 (1900); s. i;., 10 C. D. 520. § 5653. AFFIDAVIT TO BE ATTACHED TO PETITION.— To every such peti- tion there shall also be annexed an affidavit of one or more of the applicants, or in case they are all non-residents of the county in which the petition is filed, then an affidavit of the agent or attorney of one or more of the applicants, that the fact3 stated in the application, and the accounts, Inventories, and statements contained therein or annexed thereto, are just and true, so far as the affiant knows, or has the means of knowing. (April 25, 1902, 95 v. 274; April 15, 1867, 64 v. 153.) § 5654. NOTICE OF THE PENDENCY OF THE PETITION.— Upon such petition, accounts, inventories, and affidavit being filed, an order shall be entered requiring all persons interested in the corporation to show cause, if any they have, ■why it should not be dissolved, before some referee or master commissioner appointed by the court, and to be named in the order, at a time and place therein to be specified, not less than three months from the date thereof; and a notice of the contents of such order shall be published once in each week, for three weeks successively, in some newspaper published and of general circulation in the county wherein the principal place of business of the corporation is situate. (April 15, 1867, 64 v. 153, §§ 4, 5.) § 5655. HEARING BEFORE THE MASTER.— On the day appointed in the ord^r the referee or master shall proceed to hear the allegations and proofs of such parties, take testimony in relation thereto, and, with all convenient speed, report the same to the court, with a, statement of the property, effects, debts, credits, and engagements of the corporation, and of all other matters and things pertaining to its affairs. (April 15, 1867, 64 v. 153, § 6.) § 5656. WHEN A JUDGMENT FOR DISSOLUTION TO BE RENDERED.— When the report is made, if it appear to the court that the corporation is insolvent, or that a dissolution thereof will be beneficial to' the stockholders, and not injurious to the public interest, or that the objects of the corporation have wl-.olly failed, or been entirely abandoned, or that it is impracticable to accomplish such objects, a judgment shall be entered dissolving the corporation, and appointing one or more receivers of its estate and effects; and the corporation shall thereupon be dissolved and shall cease. (April 15, 1867, 64 v. 153.) AVlien receivers can be appointed. Until after an order has been made dissolv- ing the corporation, no receiver can be ap- pointed. Section 5587 does not apply. — Bacon v. Northwestern Stove Co., 5 0. C. C. 289 (1891); s. c. 3 C. D. 143; Mercantile Trust Co. v. ^tna Iron Co., 4 O. C. C. 579 (1890); ». c, 2 C. D. 718. Dissolution of Corporations. 595 Receiver; Appointmeiit, Duties, etc., §§ 5657-5661. § 5657. WHO MAY BE APPOINTED RECEIVER.— A director, trustee, or other officer of the corporation, or any of its stockholders, may be appointed a receiver; and a receiver shall, before entering upon the duties of his appointment, give such security to the state, and in such penalty, as the court shall direct, conditioned for, the faithful discharge of the duties of his appointment, and for the due accounting for all money received by him. (April 15, 1867, 64 v. 153, § 8.) § 5658. POWERS OP RECEIVER.— Such receiver shall be vested with all the estate, real or personal, of the corporation, from the time of his having filed the security hereinbefore required, and shall be trustee of such estate for the benefit of the creditors of the corporation and its stockholders; and he shall have all the power and authority conferred by law upon trustees to whom assignments are made for the benefit of creditors. (April 15, 1867, 64 v. 153, §§ 9, 10.) Hour receiver forced, to set aside trans- fer. Where a receiver, appointed on the dissolu- tion of a company, takes no step to set aside a fraudulent conveyance of corporate property, a creditor may commence an action to accom- plish that purpose, making the receiver and other interested persons parties. — See Moni- tor Furnace Co. v. Peters, 40 Oh. St. 575 (1884). Property rights acquired by receiver. There passes to the receiver the property and rights of the corporation, precisely in the same condition, and subject to the same equi- ties, as they were held uv th^ corporation. — Falkenbaeh v Patterson," 43 Oh. St. 359, 367 (1885). See "Smith v. Johnson o! Oh. St. 486, 488 (1898). § 5659. trNPAID SUBSCRIPTION TO BE COLLECTED.— If there be any sum remaining due upon any share of stock subscribed in the corporation, the receiver shall immediately proceed and recover the same, unless the person so indebted is wholly insolvent, and for that purpose may commence and prosecute an action for the recovery of such sum, without the consent of any creditor of the corporation. (April 15, 1867, 64 V. 153, § 11.) Dues in loan associations. Payment of dues in building and loan asso- ciations are payments upon stock subscrip- tions analogous to such payments in other stock corporations upon capital stock. When such associations go into liquidation under this act, dues are no longer payable except as ordered by court for the purpose of paying debts and equalizing all the stockholders. — Hinman v. Ryan, 3 0. 0. C. 529 (1888); s. c, 2 C. D. 305. Collection of subscriptions — action. An action to collect an unpaid subscription to the capital stock of a corporation com- menced by a receiver under this section is a suit at law to recover a money judgment. — Smith V. Johnson, 57 Ohio St. 486 (1898). Joinder of parties. It is not proper practice for such receiver to join in one action all delinquent stockhold- ers as defendants, those who reside out of the county where the suit is brought as well as those who reside within such county, and issue summons to another county to obtain service upon such nonresidents, and where this is done a proper motion to set aside service will be sustained. — Smith v. J ohnson, 57 Oh. St. 486 (1898). § 5660. DITTIES OF RECEIVERS.— The receiver shall, immediately on his appointment, give notice thereof, which shall contain the same matters required by law in notices of trustees of insolvent debtors, and in addition thereto it shall notify all persons holding any open or subsisting contract of the corporation to present the same to him, in writing, and in detail, at the time and place in such notice specified, which shall be published for three weeks in some newspaper printed and of general circulation in the county wherein the principal place of business of the corporation is situate. (April 15, 1867, 64 v. 153, § 12.) 1 § 5661. TRANSFERS PENDING THE ACTION VOID.— All sales, assignments, transfers, mortgages, and conveyances, of any part of the estate, real or personal, including things in action, of 'every description, made after the petition for the disso- lution of the corporation is filed, in payment of or as security for any existing or 596 Private Corporations in Ohio. Receiver; Duties as to Creditors, Compensation, etc., §§ 5662-5666. ' — ' — I prior debt, or for any other consideration, and all judgments confessed by such cor- poration after that time, shall be absolutely void as against the receiver appointed on such petition, and as against the creditors of the corporation. (April 15, 1867, 64 V. 153, § 13.) What is a preference before filing petitions. A mortgage given to secure a creditor, made prior to t)ie riling of a petition under this act, but in contemplatiom thereof, is fraudulent as to creditors. — See Damarln v. Huron Iron Co., 47 Oh. St. 581 (1890;. Assignments after filing petition — void. When proceedings to dissolve a building and loan association are pending, an at- tempted assignment of a mortgage by the oflBl- eers of the corporation is void. — Hinman v. Ryan, 3 0. C. C. 529 (1888); b. c, 2 C. D. 305. § 5662. DUTIES 01" CBEDITOKS AND OTHER PERSONS.— After the first publication of the notice of the appointment of a receiver, every person having posses- sion of any property belonging to the corporation, and every person indebted thereto, shall account and answer to the receiver for the amount of such debt, and for the value of such property; and all the provisions of law in respect to trustees of insolvent debtors, the collection and preservation of the property of such debtors, the concealment and discovery thereof, and the means of enforcing such discovery, shall be applicable to such receiver, and to the property of the corporation, except as otherwise provided herein. (April 15, 1867, 64 v. 153, §§ 14, 15.) § 5663. MEETING OP CREDITORS. — The receiver shall call a general meet'ng of the creditors of tiie corporation within four months from the time of his appo n:- ment, at which all accounts and demands for and against the corporation, and all its open and subsisting contracts, shall be ascertained and adjusted, as fully as may be, and the amoUnt of money in the hands of the receiver declared, and he mr.y settle controversies that arise between him and the debtors or creditors of the corporation by arbitrament or reference. (April 15, 1867, 64 v. 153, §§ 15, 16.) § 5664. HOW CONTINGENT ENGAGEMENTS DISCHARGED.— If there be any open and subsisting engagements on contracts of the corporation which are in the nature of insurance, or contingent engagements of any kind, the receiver may, with the consent of the party holding such engagements, cancel and discharge the same by ' refunding to such party the premium or consideration paid thereon by the corpora- j tion, or so much thereof as shall be in the same proportion to the time which remains of any risk assumed by such engagements, as the whole premium bears to the whole term of such risk; and upon such amount being paid by the receiver to the person holding or being the legal owner of such engagement, it shall be deemed canceled and discharged as against the receiver. (April 15, 1867, 64 v. 153, § 17.) § 5665. RECEIVER'S COMPENSATION.— The receiver shall, in addition to his actual disbursements, be entitled to such commissions as the court shall allow, not exceeding the sum allowed to executors or administrators, as well as reasonable coun- sel fees for services rendered him. (April 15, 1867, 64 v. 153, § 18.) § 5666. RECEIVER TO RETAIN MONEY FOR CERTAIN PURPOSES.— The receiver shall retain out of the money in his hands a sufficient amount to pay the sums which he is hereinbefore authorized to pay, for the purpose of canceling and dis- charging any open or subsisting engagements; and if any suit be pending against the corporation or the receiver, for any demand, he may retain the proportion which would belong to such demand if established, and the necessary costs of the proceed- ings, to be applied according to the event of such suit, or to be distributed in a second or other dividend. (April 15, 1867, 64 v. 153, §§ 19, 20.) Dissolution of Corporations. 597 Receiver; Distribution, Account, etc., §§ 5667-5673. § 5667. HOW DISTRIBUTION TO BE MADE.— The receiver shall distribute the residue of the money in his hands in the payment of obligations of the corpora- tion which have been exhibited by creditors, and ascertained, in the following order: 1. Debts entitled to a preference under the laws of the United States. 2. Mortgages, judgments, and other liens on the real estate of the corporation, in the order of their priority. 3. Debts which are liens upon the capital stock or property of the corporation, other than, real estate, in the order of their priority, and the extent of the value of the stock or other property on which they are liens. (April 15, 1867, 64 v. 153, § 21.) § 5668. WHEN DIVIDEND MAY BE MADE.— The receiver may, from time to time, make dividends of the money in his hands, among the creditors of the corpora- tion, until they are paid in full; but no dividend shall be made to the stockholders of the corporation, until after the final dividend to creditors; and if, after such final dividend is made, there remain any surplus in the hands of the receiver, he shall dis- tribute the same among the stockholders of the corporation, in proportion to the respective amounts paid in by them severally on their shares of stock. (April 15, 1867, 64 V. 153, §§ 21, 22.) Distribution among building and loan association members. See In re Home, etc., Aas'n, 3 N. P. 145 (1896); s. c, 4 Dec. 272. § 5669. EECEIVEE, TO ACT ON ORDER OF COURT.— The receiver shall be subject tO' the direction and control of the court as to the time of making dividends, both to the creditors and stockholders of the corporation, and as to the time of clos- ing up the concerns of the corporation, and rendering his final accounts, and may be compelled to account at any time; and he may be removed by the court, and any vacancy created by such removal, or by death, or otherwise, may be filled by ths court. (April 15, 1867, 64 v. 153, §§ 24, 25.) § 5670. ACCOUNT OF RECEIVER TO COURT.— When required by the court the receiver shall render a full and accurate account of all his proceedings to the court, on oath, which may be referred to a referee or master commissioner to examine and report thereon; but before he renders any such account he shall insert a notice of his intention to present the same, once a week, for three consecutive weeks, in some newspaper printed and of general circulation in the county wherein the principal place of business of the corporation is situate, specifying the time and place at which such account will be rendered. (April 15, 1867, 64 v. 153, §§-26, 27.) § 5671. REPORT OF REFEREE ON RECEIVER'S ACCOUNT.— The referee to whom such account is referred shall hear and examine the proofs, vouchers, and docu- ments offered for or against the same, and shall report thereon fully to the court; and when the report is made the court shall hear the allegations of all concerned therein, and shall allow or disallow the account, and may decree the same to be final and conclusive upon all the creditors of the corporation upon all persons who have claims against it, upon any open or subsisting engagement, and upon all the stock- holders of the corporation. (April 15, 1867, 64 v. 153, §§ 28, 29.) § 5672. FURTHER DUTIES OF RECEIVER.— The receiver shall also account, from time to time, in the same manner, and with like effect, for all money which comes to his hands after such account is rendered, and for all money retained by him for any of the purposes hereinbefore specified, and shall pay into court all unclaimed dividends. (April 15, 1867, 64 v. 153, § 29.) 598 Private Corporations in Ohio. Dissolution by Vote of Stockholders; by Surrender of Charter, etc., §§ 5673, 5674. § 5673. WHEN ONE-FIFTH OF STOCKHOLDERS MAY BEQUIBE A DISSO- LUTION. — When stockholders owning one-fifth or more of the paid-up stock of a corporation organized for manufacturing or mining file in the office of the clerk of one of the courts mentioned in section 5651, their petition containing the statement that the corporation is insolvent, or that the dissolution thereof will be beneficial to the stockholders, or that the objects of the corporation have wholly failed or been entirely abandoned, or that it is impracticable to accomplish such objects; or that the profits of the business are being diverted from the best interests of the stockholders equally or that the business of the corporation cannot be profitably conducted and that they therefore desire a dissolution of the corporation the court shall, if it deem it beneficial to the interest of the stockholders make an order requiring the officers of the corpora- tion within reasonable time to file in court the inventories, accounts and statements required by section 5652 and upon the filing thereof the court shall proceed as pro- vided in section 5654 requiring all persons interested in the corporation to show cause If any they have why such corporation should not be dissolved and the court shall, if it deem it beneficial to the interests of the stockholders, adjudge the dissolution of the corporation in conformity with the provisions of this chapter made upon find- ing that the statements contained in the petition are true and upon such proceeding being had such other and further proceeding shall, in the judgment of the court, be had for the final settlement and adjustment of the affairs of the corporation as are hereinbefore provided should be had. (April 10, 1896, 92 v. 138; March 20, 1875, 72 V. 67, § 1.) Only legal owners of stock can take proceedings. Only the registered legal stockholders, and not equitable stockholders, can take proceed- ings under this section. — Armstrong v. Herancourt Brewing Co., 26 W. L. B. 39 (1891). Stockholders may ivithdraw from the petition. It seems that any of the petitioning stock- holders may \\'ithdraw and cease to prosecute the proceeding at any time before dissolution is ordered. — See Herancourt Brewing Co. v. Armstrong, C O. C. C. 468 (1892); a. u., 3 C. D. 541. Oivnership of one-fifth of stock .— hoiv tried. On the filing of a petition which fills all the requirements of the statute in form, it is the duly of the court to order the filing of inven- tories, and before the trial on the merits, under § 5055 and § 5656, the corporation can- not question the ownership of stock. — See Armstrong v. Herancourt Brewing Co., 53 Oh. St. 467, 477 (1895). Lienholders are proper parties. In a proceeding under this section persons holding liens on the property of the defendant company are proper if noc necessary parties. — Mercantile Trust Co. v. iEtna Iron Works, 4 0. C. C. 579 (1890); s. c, 2 C. D. 718. Motion for new trial. Before proceedings in error can be taken a inotion for a new trial must be made. — Mer- cantile Trust Co. V. .Etna Iron Works, 4 0. C. C. 579, 5S9 (1890); s. c, 2 C. D. 718. Jurisdiction as to snbject-matter — hoiv tried. See Mercantile Trust Co. v. JEtna Iron Works, 4 0. C. C. 579 (1890) ; s. c, 2 C. D. 718. Discretion of conrt as to making order on officers. See Fitch v. Sprague Carriage Co., 19 0. C. C. 296 (1900) ; s. c, 10 C. D. 520. Cross-petition by creditor to reach stockholders' liability. In an action under this section a creditor may by cross-petition reach stockholders' lia- bility.— See Peter v. Farrell, etc., Co., 53 Oh. St. 534 (1895). When proceedings reviewable on e'-'-o'''. An Ohio corporation has not the right to refuse to make a disclosure of its condition in an action under this section, and therefore an order upon officers of a corporation requir- ing them to fi!e in court an inveutoi-v, etc., is not an order afl'ecting a substantial right, and is not reviewab'e on en-or. — .-Armstrong v. Herancourt Brewing Co., 53 Oh. St. 467 •(1895). § 5674. HOW CERTAIN CORPORATIONS MAY SURRENDER CHARTER.— When a majority of the directors, trustees, or other officers of a corporation not for profit desire to abandon its corporate existence and no debts have been incurred which are unpaid, or in case of a corporation for profit when a majority of such officers become satisfied that the objects of the corporation cannot be accomplislied, Dissolution of Corporations. 599 Inactive Companies — Settlement of Affairs, §§ 5674a, 5675. and that no installment of the capital stock of such corporation has been paid and no investments have heen made and no debts incurred which are unpaid, they, or the president of the board of directors, trustees, or other officers, may call a meet- ing of the members or stockholders of the corporation at such time and place as he or they may designate by at least two weeks' publication in a newspaper pub- lished and of general circulation in the county wherein the principal office is located; and if a majority of the members of a corporation not for profit present at such meeting desire such abandonxaent, or a majority in amount of the stockholders of a corporation for profit present in person or by proxy decide that the objects of such corporation cannot be accomplished, then such corporation shall be abandoned or dissolved upon the filing of a certificate of such abandonment or dissolution with the secretary of state in the manner provided by law. (April 18, 1903, 95 v. 208; May 4, 1869, 66 v. 94.) § 5674a. INACTIVE CORPOEATIOITS.— When a majority of the directors or other officers having the management of the concerns of any corporation for profit, ■which has completely closed its business, and paid all the debts and liabilities incurred by such corporation desire to surrender its corporate authority and fran- chises, they, or the president of said board of directors, may call a meeting of the stockholders at such tim.e or place as he or they may designate by publication for four weeks in some newspaper published and of general circulation in the county wherein the principal office of the corporation is located and by written notices ad- dressed to each of the stockholders whose residence is known, of the object, time and place of said meeting; and if all the stockholders present at such meeting in person or by proxy decide to surrender and abandon its corporate authority the corporation shall be abandoned and dissolved upon the filing of a certificate of such abandonment or dissolution with the secretary of state in the manner provided by law. Provided that a corporation entitled at the date of the passage of this act to surrender its charter under the provisions of this section, having no living president of its board of directors and a majority of whose directors are deceased, may sur- render its corporate charter by an application of one or more of the resident stock- holders thereof, setting forth the facts required by this section, duly filed with the secretary of state. . (April 18, 1902, 95 v. 208.) § 5675. DIBECTOBS AT TIME OP DISSOLUTION MAY SETTLE AITAIBS Or COBPOEATION. — Upon the dissolution of a corporation by the expiration of the terms of its charter, or otherwise, and unless other persons be appointed by the legis- lature, or by the stockholders, directors, or trustees of the corporation, or by a court of competent authority, the directors, trustees, or managers of the aSairs of such cor- poration, acting last before the time of its dissolution, by whatever name they may be known in law, and their survivors, shall be the trustees of the creditors and stock- holders of the dissolved corporation, and shall have full power to settle the affairs of the same, collect and pay the outstanding debts and divide among the stockholders the money and other property remaining, in proportion to the stock of each stock- holder paid up, after the payment of debts and necessary expenses; the persons so constituted trustees may sue for and recover the debts and property of the dissolved corporation, by the name of the trustees of the corporation, describing it by its cor- porate name, and they shall be jointly and severally responsible to the creditors and stockholders of the corporation, to the extent of its property and effects that come into their hands; such trustees may be made or become parties to any action, by or against the corporation; and all liens of judgment existing at the time of the disso- lution either in favor of or against the corporation, shall continue in force in the same manner as if the dissolution had not taken place. (March 21, 1850, 48 v. 90, § 5; March 7, 1842, 40 v. 67, § 14.) 600 Private Corporations in Ohio. Settlement of Affairs, §§ 5676-5680. Warrant of attorney to confess judg- ment. The trustees may have judgment entered on a cognovit note owned by the corporation at the time of its dissolution. — Martin v. Trustees of Belmont Bank, 13 Oh. 250 (1844). Jlo^v suit brought. The trustees may sue in their collective names, not in their individual names. — Mar- tin V. Trustees of Belmont Bank, 13 Oh. 250 (1844). Service of process. In proceedings or actions against defunct corporations, service of process upon the members of its last acting board of directora is sulficipnt, under the statute, to give the court jurisdiction. — Iv'arner v. Callender, 20 Oh. St. 190 (1870); Vallette v. Kentucky Trust Co., 1 Handy, 571 (1855). Suits against defunct corporation. See Eenick v. Bank of West Union, 13 Oh. 298 (1844). § 5676. WHEN THE LAST BOARD IS WITHOXJT A QXrORUM.— When the last board, of directors or trustees of an expired or dissolved corporation becomes unable, by the refusal or neglect of a. part of such trustees to act, or for want of a quorum, to act as trustees for closing the affairs of the corporation, any number of such last board of directors or trustees may apply to the court of common pleas ct the proper county to declare vacant the places of such directors or trustees as refuse or neglect to act, and such court may empower the remaining directors or trustees, not less than two in number, or appoint any other number of persons, not exceeding^ three, to perform the duties of trustees under the preceding section. (February 21,. 1849, 47 v. 15, § 1.) § 5677. PETITIONS UNDER PRECEDING SECTTION.— All applications m:-d3 under the preceding section shall be by petition, and the court hearing the same may, on the same petition, make needful orders against any former trustees, or against any assignees of such corporation, for the conveyance of property by them held, and for the assignment of all rights in them vested, and also for the delivery of all books and papers touching the affairs of the corporation, which order may be enforced by- process, or by its terms operate as a conveyance and transfer. (February 21, 1849, 47 V. 15, § 2.) § 5678. TRUSTEES APPOINTED SUCCEED TO RI&HTS OF PREDECESSOR. — The trustees so appointed, and all successors of such trustees, shall succeed to all the rights vested in their predecessors, whether trustees or assignees; and all securi- ties and effects by them held or acquired, and all judgments recovered, whether in. favor of the corporation to which they succeed, or in the names of the trustees of such corporation, shall inure to the succeeding trustees, and pass by operation of law as fully as if the same were assigned. (February 21, 1849, 47 v. 15, § 3.) § 5679. NO ACTION SHALL ABATE BY DISSOLUTION OF CORPORATION. — No action pending in any court in favor of or against any corporation shall be dis- continued or abate by the dissolution of the corporation, whether the dissolution occur by the expiration of its charter or otherwise; but all such actions may bs prosecuted to final judgment by the creditors, assignees, receivers, or trustees having the legal charge of the assets of the corporation, in its corporate name. (March 10, 1843, 41 V. 52, § 1; 40 v. 67, § 14.) Construction of former acts. See Renick v. Bank of West Union, 13 Oh. 298 (1844) ; Miami Expoi-ting Company v. Gano, 14 Oh. 269 (1844) ; Stetson v. City Bank, 2 Oh. St. 167 (1853); Stetson v. Dtv Bank, 12 Oh. St. 577 (ls61). No actions abate. See Lake Superior Iron Co. Fed. 539 (1890). V. Brown, 44 § 5680. JUDGMENTS BY OR AGAINST SUCH CORPORATIONS MAY BE ENFORCED. — Upon all judgments in favor of or against any such corporation, whether such judgments exist at the time of the dissolution, or are obtained after- ward in actions pending at the time of the dissolution, execution may be had, and Dissolution of Corporations. 601 ' Settlement of Affairs, §§ 5681-5686. satisfaction or performance of tlie same enforced, by the creditors, assignees, receiv- ers, or trustees having the legal charge of the assets of the dissolved corporation, in the corporate name of the dissolved corporation. (March 10, 1843, 41 v. 52, § 2.); § 5681. TITLE TO PROPERTY OE CORPORATION TO PASS TO TRUSTEES.— The title to all real estate belonging to any such corporation shall, at the time of the dissolution of the same, pass to the trustees of the corporation, who may sell and d.s- pose of the same in such manner, and upon such terms, as they deem best for the interest of the creditors and stockholders, and, upon any such sale, make a good and sufficient deed therefor. (March 10, 1843, 41 v. 53, § 4.) § 5682. TRUSTEES PERSONALLY LIABLE FOR AN ABUSE OF TRUST.— The trustees of any such corporation shall be subject to the control of the court of common pleas, and be liable to be sued on behalf of any person interested, on account of any neglect or omission of duty, or abuse of trust; in case of the removal of any such trustee by the court for an abuse of trust, it may appoint a suitable person to fill the vacancy; and any such trustee may, for reasonable cause, upon the appl ca- tion of any creditor or stockholder, be required by the court to give bond and secur ty, in such amount, and subject to such conditions, as it may direct. (March 10, 1843, 41 V. 52, § 5.) § 5683. DISSOLVED CORPORATION MAY PROSECUTE ACTION IN ITS OWN NAME. — A corporation may, at any time after its dissolution, whether the dissolu- tion occur by the expiration of its charter or otherwise, prosecute any action in and by its corporate name, for the use of the party entitled to receive the proceeds of such action, upon any and all causes of action accrued, or which, but for such dissolution, would have accrued, in favor of the corporation, in the same manner, and with the like effect, as if it were not dissolved. (March 21, 1850, 48 v. 90, § 1.) § 5684. MAY BE SUED BY CORPORATE NAME; SERVICE OF PROCESS.— Any such dissolved corporation may be sued by its corporate name, for or upon any cause of action accrued, or which, but for the dissolution, would have accrued against it, in the same manner, and with the like effect, as if it were not dissolved; and all process by which an action is instituted against such corporation may be served by the sheriff, or other proper officer, by delivering to any one of the assignees, trustees, receivers, or persons having charge of its assets, a copy thereof, or by leaving such copy at the residence of any such assignee, trustee, receiver or person. (March 21, 1850, 48 V. 90, § 2.) See Tiffin Glass Co. v. Stoehr, 54 Oh. St. 157 (1896). § 5685. JUDGMENTS FOR OR AGAINST MAY BE REVIVED.— Judgments in favor of or against a dissolved corporation, whether rendered before or after its dis- solution, and which become dormant, may be revived in favor of or against it, as the case may be, in and by its corporate name, in the same manner, and with the liks effect, as if the corporation were not dissolved; and in all cases of such judgments against any such corporation the writ of summons or other process shall be served in the manner prescribed in section fifty-six hundred and eighty-four. (March 21, 1850, 48 V. 90, § 3.) § 5686. ERROR MAY BE PROSECUTED ON JUDGMENTS FOR OR AGAINST. ' — Petitions in error upon judgments may be prosecuted in favor of or against any such dissolved corporation, and by its corporate name, in the same manner, and with the like effect, as if it were not dissolved; and process thereon against it shall be served in the manner prescribed in section fifty-six hundred and eighty-four. (March 21, 1850, 48 V. 90, § 4.) €02 Private Corporations in Ohio. Settlement of Affairs, §§ 5687, 5688. § 5687. DIRECTORS MAY APPOINT TRUSTEES TO SETTLE AFFAIRS CF CORPORATION. — The board of directors or other officers having the control and management of any corporation in this state, may appoint three trustees to adjust and settle the affairs of such corporation, and the trustees so appointed shall be authorized to use the corporate name of the corporation, for such period as may be necessary for the adjustment and settlement of its affairs, by suit or otherwise. (May 1, 1852, 50 v. 272, § 2.) § 5688. REMOVAL AND DUTIES OF TRUSTIES.— The trustees so appointed shall report annually to the stockholders of the corporation a full and succinct state- ment of its affairs; and a majority in interest of the stockholders may remove a trustee, or appoint a person to a vacancy occasioned by the death, resignation, or removal of a trustee. (May 1, 1852, 50 v. 272, §§3, 4.) PART XXVI. PEOCEEDING TO CURE CERTAIN DEFECTS, ERRORS AND OMISSIONS. § 5867. When court must give effect to the intention of the parties. § 5868. Certain errors, defects, and omissions may be corrected by action, § 5869. In what county petition to be filed. § 5870. How service to be made. ^ 5871. Judgment of the court and its effect. § 5867. WHEN COUKT MUST GIVE EFFECT TO THE INTENTION OF THE PABTIES. — When, in an instrument in writing, or in a proceeding, there is an omis- sion, .defect, or error, by reason of the inadvertence of an officer, or a party, person, or body corporate, whereby the same is not in strict conformity with the laws of this state, the courts of this state may give full efEeot to such instrument .or proceeding, according to the true and manifest intention of the parties thereto. (March 10, 1859, 56 V. 40, § 1.; See Warner v. Callender, 20 Oh. St. 190 (1870) ; Spinning v. Home, etc., Ass'n, 26 Oh. St. 483 (1875); aarlce v. Thomas, 34 Oh. St. 46, 59 (1877). § 5868. CERTAIN EBEORS, DEFECTS, AND OMISSIONS MAY BE COB- BECTED BY ACTION. — When any such error, omission, or defect occurs in an instrument or proceeding which is required to be made a matter of record, any party, person, body corporate, or persons intending and undertaking to become a body cor- porate, having or claiming an interest in the correction of such error, omission, or defect, may file a petition in the court of common pleas, setting forth particularly the error, defect, or omission complained of, and asking an order for the correction thereof. (March 10, 1859, 56 v. 40, § 2.) § 5869. IN WHAT COUNTY PETITION TO BE FILED.— When the record to he corrected is in any way connected with a body corporate, the petition shall be filed in the county wherein the principal office of such corporation is located, and in all other cases in the county wherein the record is kept. (March 10, 1859, 56 v. 40, § 3.) § 5870. HOW SEBVICE TO BE MADE.— When the application is made by a hody corporate, or by persons intending and undertaking to become a body corporate, notice of the application, specifying the error, defect, or omission complained of, and the time and place of hearing the same,, shall be published for six consecutive weeks in some newspaper of general circulation in the county where the application is made; and in all other cases service shall be made in the manner prescribed by law for mak- ing service in civil actions. (March 10, 1859, 56 v. 40, § 2.) ■ § 5871. JUDGMENT OF THE COUBT AND ITS EFFECT.— The court, upon heing satisfied that such mistake, error, or omission has been made, shall grant and make an order to* correct the same, which order shall be filed in the office in which such record is required to be kept; and from and after such filing, such record, and the order correcting the same, shall be received as evidence in all cases, in all courts, the same as if no such error, omission, or defect had ever existed. (March 10, 1859, 56 V, 40, § a.) [603] PART XXVI I. APPROPRIATION OF PROPERTY. § 6414. Appropriations to be made as provided in this chapter. § 6415. When appropriation can be made. § 6415a. Appropriation of property of minor, etc. § 6416. Petition for appropriation, and in what co\irt to be filed. § 6417. In what county petition to be filed. § 6418. Summons ; its command, and service thereof. § 6419. Service by publication. § 6420. Jurisdictional questions to be first determined. § 6421. Jurors to be drawn from the box, and venire issued. § 6422. Who entitled to separate trial, and how trial conducted. § 6423. The court may allow any amendment. § 6424. Time of trial, adjournment, and discharge of juries. § 6425. How panel to be filled; jurors to be interrogated by court. § 6426. Challenges to jurors, and how vacancies in jury box filled. § 6427. The oath to be administered to jury. § 6428. The form of writ to sheriff. § 6429. Judge must deliver certain copies to sheriff. § 6430. Witnesses may be examined before jury. § 6431. When a structure is partly on land sought to be appropriated. § 6432. Verdict and confirmation thereof. § 6433. When and how corporations may have possession. I 6434. When and how corporation may abandon proceedings. § 0435. When action may be brought for costs and expenses. § 6436. New trial ; proceedings thereon. § 6437. Either party may file a petition in error. f 6438. Proceedings in the common pleas on error. § 6439. How school land may be appropriated. § 6440. When proceedings to appropriate private property may be commenced in court of common pleas. § 6441. Court to appoint attorney for party absent or under disability. § 6442. Conflicting claims not to be passed upon. § 6443. But to be adjudicated in the common pleas. § 6444. Such proceeding a civil action. § 6445. Unfinished road-bed of railroad company may be condemned. § 6446. Proceedings in such case. § 6447. In what court such proceedings may be commenced. § 6448. Proceedings when land is held without agreement by a coi-poration. § 6449. Summons in such case ; judgment and execution. § 6450. When injunction may issue against corporation. § 6451. Fees of witnesses, oflieers, and probate judge, and how costs adjudged. § 6452. When costs may be apportioned. §6453. When this chapter does not apply. APPROPKIATION OF PROPERTY. § 6414. APPROPRIATIONS TO BE MADE AS PROVIDED IN THIS CHAPTER. — Appropriations of private property by corporations must be made according to the provisions of this chapter. (April 23, 1872, 69 v. 88, § 1.) [604] Appropriation of Property. 605 Made when, §§ 6415, 6415a. These statutes should be strictly con- strued. The rule that statutes conferring the power of eminent domain are to be strictly construed is one not to be asserted and then disregarded, but to be rigidly enforced. — Piatt v. Penn- sylvania Co., 43 Oh. St. 228, 244 (1885). PoTirer not conferred by constitution. Neither section of the constitution confers the power of eminent domain; they simply prescribe modes for and limitations upon its exercise. The power itself is an inseparable incident of sovereignty, and its exercise was delegated by the sovereign power to the gen- eral assembly in the grant of legislative au- thority. In this state the power is lodged with the general assembly, to be used when necessary to the attainment of its lawful pur- poses. — Giesy v. Cincinnati, etc., R. R. Co., 4 Oh. St. 308, 323 (1854). Purpose for vrhich poTver may be exer- cised. The power may be used to appropriate lands for a public highway of any kind ; and • this whether the road is built and owned by the public or by a corporation as a public instru- mentality. — Giesy v. Cincinnati, etc., R. R. Co., 4 Oh. St. 308, 324 (1854). Function of legislature and judiciary. The power may be exercised directly or in- directly by the legislature, without the inter- vention of the judiciary, except for determin- ing the amount of compensation. But the courts possess full power to determine its proper limits, and to prevent abuses in its exercise. — Giesy v. Cincinnati, etc., R. R. Co., 4 Oh. St. 308 (1854). § 6415. WHEIS" APPROPRIATION CAN BE MADE.— Appropriations can only be made when the corporation is unable to agree with the owner, or his guardian or trustee, as to the compensation to be paid for the property, or easement or interest therein, sought to be appropriated, or when the owner is incapable of contracting in person or by agent, and has no guardian or trustee, or is unknown, or his residence is beyond the state, or unknown. (May 4, 1891, 88 v. 555; R. S. 1880; April 23, 1872, 69 V. 88, § 2.) Agreement virith guardian. Where the road passes through land owned Appropriations for depots. Depots being essential to the practical operation of railroads, the appropriation of land for depot purposes is authorized under this act. — Giesy v. Cincinnati, etc., R. R. Co., 4 Oh. St. 308 (1854). Appropriation to divert streams. When it becomes necessary to divert a stream from its course a company may appro- priate land necessary for a new channel. — Valley Ey. Co. v. Bohm, 34 Oh. St. 114 (1877). Appropriation of high-ways. The fact that a road has been occupied by a company under an agreement with the officials in charge of the road, as provided in § 3283, does not in any way affect the right of the owner in fee of the soil of the road or the rigliU ol abutting owners, to be compensated for the appropriation of his property. — Rail- road Co. V. O'Harra, 48 Oh. St. 343, 353 (1891). See Railway Co. v. Gardner, 45 Oh. St. 309, 318 (1887); Kramer v. Toledo, etc., R. R. Co., 53 Oh. St. 436, 444 (1895); Rail- way Co. v. Lawrence, 38 Oh. St. 41 (1882); Railroad Co. v. Hambleton, 40 Oh. St. 496, 301 (1884). See Belmer v. Cincinnati, etc., R. R. Co., 10 W. L. B. 232 (1883) ; Cincinnati, etc., Ry. Co. v. Pfitzer, 1 Goebel, 248 (1889). Appropriation of strest-car tracks. Where one company desires to appropriate the tracks of another company under § 3440, it may institute proceedings under this sec- tion.— Street R. E. Co. V. Street Ry. Co., 50 Oh. St. 603 (1893) : s. c, 6 0. C. C. 362. See Toledo, etc., Ry. Co. v. Toledo, etc., Ry. Co., 10 0. C. C. 168 (1895); Consolidated, etc., Ey. Co. V. Toleao, etc., Ry. Co., 6 N. P. 537 (1892) ; Kinsman, etc., R. R. Co. v. Broadway, etc., R. R. Co., 36 Oh. bt. 239 (1880). minors without authority from the probate court. — See State v. Commissioners, 39 Oh. St. 58 (1883). by minors, the right of way cannot be secured by a deed executed by the guardian of such § 6415a. APPROPRIATION OP PROPERTY OP MINOR, ETC.— Whenever under this chapter the property of any minor, idiot, imbecile, or insane person, or sny easement or interest therein, is sought to be appropriated by a corporation and there is a legally appointed guardian of the person and estate or of the estates or a trustee of such minor, idiot, imbecile or insane person, and the said guardian has agreed with said corporation upon the amount of compensation to be paid for such property, ease- ment, or interest therein, he may file with the probate court of the county wherein said property Is situated, a written application for authority to convey to said corpora- tion the said property or interest; which said application shall fully describe the property, right, easement or interest therein, sought to be conveyed, and shall fully set out the price agreed to be paid for the same, the probate judge shall order said 606 Private Corporations in Ohio. Petition for Appropriation, § 6416. guardian to give such notice as said judge shall deem reasonable, to the said ward, of the filing of said application and of the time set for the hearing of the same. At the time set for the hearing of said application, if the judge shall find that notice was given as ordered of the time set for the hearing of the same, and that the price to be paid is reasonable and just, and that the said conveyance would be to the best inter- est of said ward, he shall order said guardian to make and execute a deed to said cor- poration for said property or interest upon the payment of the said price agreed upon by said guardian and said corporation. (May 4, 1891, 88 v. 554.) § 6416. PETITION FOE APPBOPBIATION, AND IN WHAT COURT TO BE FILED. — In any such case the corporation may file with the probate judge a peti- tion, verified as in a civil action, containing a specific description of each parcel of property. Interest, or right, within the county, sought to be appropriated, the work, if any, intended to be constructed thereon, the use to which the same is to be applied, the necessity for the appropriation, the name of the owner of each parcel, if known, or if not known, a statement of that fact, the names of all persons having or claiming an interest, legal or equitable, in the property, so far as the same can be ascertained, and a prayer for the appropriation of the property. (April 33, 1872, 69 v. 88, §§2, 19.) Jurisdiction — constitutionality. This act is a constitutional enactment under article 4, § 8, of the constitution. — Giesy v. Cincinnati, etc., R. R. Co., 4 Oh. St. 308 (1854). See Railroad Co. v. O'Harra, 48 Oh. St. 343 (1891). Bemoval to federal court. it has been held by Wing, J., in the United States circuit court (N. D. 0. W. D.) on a motion to remand, that appropriation cases are not removable from the probate court. — Toledo Ry. & Terminal Go. v. Ann Arbor R. R. Co. Mode of exercising jurisdiction. Ihe probate court under this act has a spe- cial and limited jurisdiction, to be exercised in the cases and in the mode prescribed in the act; and that court cannot, under an order of the court of common pleas, and to carry into effect that order, take jurisdiction of a case or proceed in a mode not authorized by the act. — Dayton, etc., R. R. Co. v. Marshall, 11 Oh. St. 497 (1860). Pleadings after petition not required. See Cincinnati, etc., Ky. Co. v. Piitzer, 1 Goebel, 248 (1889). Rules of pleading. As to whether the rules of code pleading are applicable to a petition to appropriate private propei-ty for public uses, filed under the stat- ute, in the probate court, quaere. In case of doubt, the judgment rendered in such proceed- ing will not be reversed for failure to strictly observe such rules. — Toledo, etc., Ry. Co. v. Toledo, etc., Ry. Co., 6 0. C. C. 362 (1892). Object and purpose of section. See Pittsburg, etc., R. R. Co. v. Perkins, 22 0. C. C. 630 (1888). Description of lands must be certain. See Cleveland, etc., R. E. Co. v. Prentice, 13 Oh. St. 373 (1862). Proof of land desired. Where the company files a written state- ment, specifically describing the property sought to be appropriated, no further written or record evidence of the line of the road is essential to the right of the company to have compensation fixed. — Powers v. Hazelton, etc., Ry. Co., 33 Oh. St. 429 (1878). Purpose and necessity must be alleged. The purpose and necessity of the appropria- tion must be clearly stated to enable the court to determine the necessity and to secure fair compensation to the owner. — Valley Ry. Co. V. Bohm, 34 Oh. St. 114 (1877). Necessity. The power of eminent domain is based upon the public necessity, and can only be exer- cised where such necessity exists, but this necessity relates rather to the nature of the property and the uses to which it is applied than to the exigencies of the particular ease; and it is no objection to the exercise of the power that lands, equally feasible, could be obtained by purchase. — Giesy v. Cincinnati, etc., R. R. Co., 4 Oh. St. 308 (1854); Toledo, etc., Ry. Co. v. Toledo, etc.. Rv. Co., 6 0. C. C. 362, 389 (1892); s. c, 26 W. L. B. 172; Pow- ers V. Hazelton, etc., Ry. Co., 33 Oh. St. 429 (1878). See also statutes, act of April 30, 1852, 50 V. 201, §§ 6416, 6420. Note. — In a recent case in the Lucas county common pleas court (Ann Arbor Ry. Co. V. Toledo Ry. & T. Co.), Kinkade, J., held that the question of necessity includes the question whether or not any railroad is re- quired by the public between the termini named, and if so, whether or not the particu- lar property described and sought to be taken is necessary. Amount that can be taken. The quantity of land that may be appro- priated is left very indefinite, but only so Appropriation of Property. 607 Petition and Summons in, §§ 6417, 6418. much can be taken as is necessary to be used, and if more is taken than can be used, the owner may recover such excess. — See Piatt v. Pennsylvania Co., 43 Oh. St. 228 (1885); Giesy v. Cincinnati, etc., R. R. Co., 4 Oh. St. 308 (1854). Company cannot lie made to appropri- ate more land on motion. See Schaible v. Lake Shore, etc., R. R. Co., 10 O. C. C. 334 (1895). Company cannot sell land unnecessarily taken. Where a corporation appropriates more land than is necessary, it cannot subject the landowner to the additional burden of another railroad by selling such additional land to such other road. — Piatt v. Pennsylvania Co., 43 Oh. St. 228 (1885). See Pittsburg, etc., Ry. Co. V. Garlick, 20 0. C. C. 561 (1900). What interest can be appropriated. Only such interest in lands can be taken as will answer the public wants, and it can only be held so long as it is used by the public, and cannot be diverted to any other purpose. — Giesy v. Cincinnati, etc., R. R. Co., 4 Oh. St. 308 (1854). See Pittsburg, etc., Ry. Co. V. Garlick, 20 0. C. C. 561 (1900). Rights retained by onrners. \vhere the interest acquired is only an ease- ment, the owner of the fee retains every right in the land appropriated, r ot inconsistent with the paramount authority of tl.e company freely and unobstrueted'y to build, repair and operate its railroads, and use therefor ma- terial fairly within the condemnation. One of the rights so retained is that of access to lands severed by the strip appropriated. — Piatt V. Pennsylvania Co., 43 Oh. iSt. 228, 244 (1885). Permanent interest must be taken. 7.110 company cannot appropi'iate anything but a permanent estate in the lands upon which its right of way is to be constructed. — Gorrill v. Toledo, etc., Ry. Co., 4 0. C. C. 398, 403 (1890). Interest of remainderman must be ap- propriated. A railroad cannot appropriate a temporary interest, therefore, though it has full rights as against the tenant for life, it must appro- priate as against the remainderman, or he is entitlea to restrain the use of the land until his interest has been paid. — Gorrill v. Toledo, etc., Ry. Co., 4 0. C. C. 398 (1890). Property subject to public use cannot be taken. It is a well-settled rule that property al- ready appropriated, in the proper exercise of the power of eminent domain, cannot be taken for another public use which will wholly de- feat or supersede the former use, unless power to make such second appropriation be granted expressly, or by necessary implication. — Railioad Co. v. Village of Belle Center, 48 Oh. St. 273 (1891); Little Miami, etc., R. R. Co. v. Dayton, 23 Oh. St. 510 (1872). Iiand used for parks may be taken. See Colby v. Toledo, 22 0. C. C. 732 (1901). Land not used and unnecessary subject to second appropriation. Where land is held by a corporation, Avhether acquired by purchase or appropria- tion, which is not employed in or needed for the proper exercise of its franchises, such land is not within the general rule which prohibits the appropriation of land already subject to a. public use. — Railroad Co. v. Village of Belle Center, 48 Oh. St. 273 (1891). Bights of lessees. See Foote v. Cincinnati, 11 Oh. 408 (1842) ; Cleveland v. Cuyahoga, etc.. Society, 41 uh. St. 600 (1885). Mortgagees must be made party. See Harrison v. Village of Sabma, 14 W. L. B. 27 (1885). Revivor on death of defendant. On the death of a defendant, revivor of the proceedings must be had in the name of the heirs or devisees, and not of the administrator of the deceased. — Valley Ry. Co. v. Bohm, 29 Oh. St. 6.33 (1876). AVhen company may dismiss proceed- ings. In a proceeding to appropriate property the company is the actor, and may discontinue the proceedings at any time, at least before the matter is submitted to the jury. — Dayton, etc., R. R. Co. V. Marshall, 11 Oh. St. 49T (18(50). § 6417. IN "WHAT COUNTY PETITION TO BE PILED.— The petition may include one or more of the parcels of property, rights, or interests in the county in which it is filed; and when any such parcel, right, or interest is situated in two or more counties, the petition may be filed in either of the counties in which an owner is resident, and if no owner is resident therein, it may be filed in either. (March 23, 1875, 72 V. 71.) § 6418. SUMMONS: ITS COMMAND, AND SERVICE THEKEOP.— Upon the filing of a precipe therefor, the probate judge shall issue summons for the owners. 608 Private Corporations in Ohio. Appropriation; Service and Trial in, §§ 6419-6431. and persons named in the petition as ■which may be directed to the sheriff of ■the persons named therein of the filing to be fixed by the judge, and named teen days from the date thereof, and civil action. When a writ is returned until the parties are duly summoned. residents of the state and having an interest, any county, and shall command him to notify of the petition, and to appear thereto at a time therein, not less than five nor more than flf- which shall be served a.nd returned as in a " not summoned,'' other writs may be issued, (March 23, 1875, 72 v. 71, | 1.) § 6419. SERVICE BY PUBLICATION.— When a person ha-ving an interest is unknown, or his residence is beyond the state, or unknown, the corporation may make service by publication against him, by publishing in a newspaper of general circula- tion in the county where the petition is filed, for four consecutive weeks, a notice con- taining a summary statement of the object and prayer of the petition, so far as it relates to the property of the person thus to be notified, the court in which it is filed, and the time when such person is to appear thereto, not less than ten or more than twenty days after the last publication; and the fact of publication may be proved by the affidavit of any person knowing the same. (March 23, 1875, 72 v. 71, § 3.) § 6420. JURISDICTIONAL QUESTIONS TO BE FIRST DETERMINED.— On the day named in any summons first served, or publication first completed, the pro- bate judge shall hear and determine the questions of the existence of the corporation, its right to make the appropriation, its inability to agree with the owner, and the necessity for the appropriation. Upon these questions the burden of proof shall be ■upon the corporation, and any interested person shall be heard. (March 23, 1875, 72 V. 71, § 4.) Proof of existence. It is essential to the exercise of the right of ■emiiipiit domain for the company to prove that it lias fully organized by the election of direct- ors, and that the company, through its board of directors, has been unable to agree with the landowners. — Powers v. Hazelton, etc., Rv. Co., 33 Oh. St. 429 (1878); Atlantic, etc., R. R. Co. V. SuUivant, 5 Oh. St. i,76 (1855); Atkinson v. Marietta, etc., R. R. Co., 15 Oh. St. 21 (1864). Proof of existence of corporation. Proof of the existence of a corporation may be made by offering a certified copy of articles of incorporation, and such parts of the cor- porate records as are pertinent. — Toledo Ry. Co. V. Toledo, etc., Ry. Co., 6 0. C. C. 362, 391 (1892); s. c, 26 W. L. B. 172; Toledo, etc., Ry. Co. V. Toledo, etc., Ry. Co., 12 0. C. C. 367, 384 (1893). Incorporation for private benefit. It is incompetent for a landowner to prove for the purpose of defeating the proceeding, § 6421. JURORS TO BE DRAWN FROM THE BOX, AND VENIRE ISSUED.— If the judge determine these questions for the corporation, as to any or all of the property, and persons interested therein, he shall issue an order to the clerk and sheriff to draw sixteen names from the jury box, as in other cases, and within two days after the receipt of the same, they shall execute the order, and the clerk shall forthwith return it to the probate judge, with a list of the names drawn indorsed thereon; and the judge shall issue to the sheriff a venire for the jurors so drawn to attend at his office, at a time to be fixed by him, and named in the writ, not exceed- ing ten days from the date thereof, which shall be served and returned as in other cases. (March 23, 1875, 72 v. 71.) that the corporation procured the incorpora- tion of the company, not for a public use, but for their private purpose merely, and were e.xercising the corporate privileges in abuse of the law. — Powers v. Hazelton, etc., Ry. Co., 33 Oh. St. 429 (1878). Proof of inability to agree. Where it is claimed there is no proof of inability to agree, a reviewing court will look into the whole record. — Toledo, etc., Ry. Co. V. Toledo, etc., Ry. Co., 6 0. C. C. 362, 388 (1892); s. c, 26 W. L. B. 172. Findings of fact and law — sufficiency. See Toledo, etc., Ry. Co. v. Toledo, etc., Ry. Co., 6 0. C. C. 362, 394 (1892). Jurisdictional facts must be found be- fore jury is ordered. See Kramer v. Toledo, etc., R. R. Co., 53 Oh. St. 436, 444 (1895). Appropriation of Property. 609 Trial in, etc., §§ 6422-6426. § 6422. WHO ENTITLED TO A SEPARATE TBIAL, AND HOW TRIAL CON- DUCTED. — The owners of each separate parcel, right, or interest, shall he entitled to a separate trial by jury, verdict, and judgment. They shall hold the affirmative on the trial, which shall be conducted, and evidence shall be admitted, and bills of exception may be taken, as provided in civil actions. (March 23, 1875, 72 v. 71, §§ 1, 3; April 23, 1872, 69 v. 88, §§ 8, 12, 23.) Separate trials. Proceedings under the act of April 30, 1852, might be instituted jointly, against all own- ers of property lying in the county and sought to be appropriated; but after the return of the juiy from the view each owner of distinct property is entitled to a separate trial. — Giesy v. Cincinnati, et->., R. E.. Co., 4 Oh. St. 308 (1854); Cincinnati v. Neff, 19 W. L. B. 404 (1888). AVhat is a jury. The word " jury " in § 19, art. 1, of the constitution means a tribunal of twelve men, presided over by a court, and hearing the alle- gations, evidence, and arguments of the par- ties. They may be sent to inspect the premises. — ■ Lamb v. Lane, 4 Oh. St. 167 (1854); Shaver v. Starrett 4 Oh. St. 494 (1855); Smith v. Atlantic, etc., R. R. Co., 25 Oh. St. 91 (1874). See Wagner v. Railway Co., 38 Oh. St. 32, 35 (1882). § 6423. THE COURT MAY ALLOW ANY AMENDMENT.— The court may amend any defect or informality in any of the proceedings authorized or required by this chapter, or cause new parties to be added, and direct such further notice to be given to any party in interest as it deems proper. (April 23, 1872, 69 v. 88, § 17.) § 6424. TIME OE TRIAL, ADJOURNMENT, AND DISCHARGE OF JURIES.— The court may direct the order and fix the time of the several trials; may adjourn or continue any trial for the purpose of obtaining proper service upon any property owner, or when deemed necessary for the proper and convenient trial of the several cases; and may discharge any jury, and cause other juries to be impaneled, as pro- vided in this chapter. (March 23, 1875, 72 v. 72, § 5.) § 6425. HOW PANEL TO BE FILLED; JURORS TO BE INTERROGATED BY COURT. — When, by reason of non-attendance, sickness, or other cause, any of the sixteen persons are not present and in condition to serve as jurors, the judge shall order the sheriff to fill the vacancies with talesmen; and when the list of sixteen is full, the judge shall call upon each separately, beginning with the first named on the list, to take his place in the jury box, and shall personally inquire of each, as called, whether he is interested in any way in any of the property, rights, or interests sought to be appropriated, or in the corporation which filed the petition, either as owner, stockholder, agent, attorney, or otherwise; and if such person answer in the affirma- tive, or if it be shown to the judge, by satisfactory evidence, that he is so interested, he shall be excused from serving on the jury, and the next person on the list shall be called, and interrogated in like manner; and if the list of sixteen be exhausted before a proper jury of twelve men is taken and accepted therefrom, the judge shall order the sheriff to fill the remaining vacancies in the jury box required to make up the number of twelve, with talesmen, who shall be interrogated as hereinabove provided. (March 23, 1875, 72 v. 73, § 6.) § 6426. CHALLENGES TO JURORS, AND HOW VACANCIES IN JURY BOX TILLED. — When the jury box is filled with twelve disinterested jurors, the owners of the property which is the subject of the trial, jointly, and the petitioner, shall each have the right to two peremptory challenges, and to challenge for cause; and all vacancies arising in the jury from challenge, or otherwise, shall be filled by tales- men having the qualifications prescribed in the last section, to be ascertained as therein provided. (March 23, 1875, 72 v. 73, § 6.) Peremptory challenges by owners. Where proceedings are commenced against the owners of several tracts of land, all the defendants are entitled to but two peremptory LAW GOV. PRIV. CORP. — 39 challenges ; not each defendant entitled to two. — Ohio, etc., R. R. Co. v. Kloeb, 5 N. P. 4 (1898); Cincinnati v. Neflf, 19 W. L. B. 404 (1888). 610 Private Corporations in Ohio. Trial in; Oath of Jury, § 6437. § 6427, THE OATH TO BE ADMINISTERED TO JURY.— When the jury is filled, the probate judge shall administer to them the following oath: " You, and each of you, do solemnly swear that you will justly and impartially assess, according to your best judgment, the amount of compensation due to the proper owners in the cases which will be brought before you in this proceeding, by reason of the appro- priation of their property described in the petition, to the use of (here name the cor- poration), in the proceeding now pending, irrespective of any benefit from any improvement proposed by such corporation; and you do further swear that you will, in assessing any damages that may occur to such property owners, by reason of the appropriation, other than the compensation, further ascertain how much less valu- able the remaining portion of said property will be in consequence of such appropria- tion; this you swear as you shall answer to God." (March 23, 1875, 72 v. 73, § 5.) Compensation — constitntional provi- sions. The provisions of art. 1, § 19, and art. 13, § a, of the constitution, the one requiring compensation to be made without deduction for benefits, when property is appropriated to a public use, and the other providing for com- pensation irrespective of benefits, where it is taken by a corporation for a right of way, are, in legal effect, identical. When property is taken under either section, its fair market value in cash, at the time it is taken, must be paid to the owner; and the jury in assessing the amount, have no right to consider or make any use of the fact that it has been increased in value by the proposal or construction of the improvement. — Giesy v. Cincinnati, etc., E. E. Co., 4 Oh. St. 308 (1854). Same subject — w^here benefits and in- juries are blended. In case an appropriation of a strip causes incidental and local injury to the residue of the tract, although general resulting benefits from the railroad to the value of such residue of the land cannot be taken into account in estimating the compensation to be paid to the owner, yet where a local incidental benefit to the residue of the land is blended or connected, either in locality or subject-matter, with a local incidental injury to such residue of the land, the benefit may be considered in fixing the compensation to be paid the owner, not by way of deduction from the com- pensation, but of showing the extent of the injury done the value of the residue of the land. But whether a local incidental ben- efit can be considered when not connected or blended either in locality or subject-matter with the injury, quaere. — Cleveland, etc., E.. E. Co. V. Ball, 5 Oh. St. 568 (1856). See To- ledo Bending Co. v. Manufacturers' Ey. Co., 2 N. r. 317 (1895); Little Miami, etc., E. E. Co. V. Collett, 6 Oh. St. 182 (1856) ; Ohio Southern E. E. Co. v. Eawlins, 29 W. L. B. 260 (1892); Lotze v. Cincinnati, 4 N. P. 311 (1897); Schaible v. Lake Shore, etc., Ey. Co., 10 0. C. C. 334 (1895). Benefits could be set ofP before 1851. Under the constitution of 1802, benefits could be estimated and set off against the value of lands and damages so as to permit the land to be taken without the payment of a dollar in money. — Piatt v. Pennsylvania Co., 43 Oh. St. 228, 244 (1885) ; Kramer v. Cleve- land, etc., R. E. Co., 5 Oh. St. 140 (1855); Columbus, etc., E. E. Co. v. Simpson, 5 Oh. St> 251 (1855). Compensation must be in money. See Central Ohio E. E. Co. v. Holler, 7 Oh. St. 220 (1857). Rule of compensation — speculative damages. Where land is appropriated for a public use, a compensatory, not speculative re- muneration is guaranteed by the law for land taken, and for the damage occasioned thereby to the remainder of the premises. The differ- ence in the value of the owners' property, with the appropriation, and that without it, is the rule of compensation. This difference must be ascertained with reference to the value of the property in view of its present character, situ- ation and surroundings. It cannot be en- hanced by proving facts of a contingent and prospective character, such as the probable rents that may be derived from the property, or its special value as a prospective monopoly of a roadway to the adjoining lands of other persons. — Powers v. Hazelton, etc., Ey. Co., 33 Oh. St. 429 (1878) ; Schaible v. Lake Shore, etc., E. E. Co., 10 0. C. C. 334 (1895). Elements of compensation ivlien land is severed. Where a piece or strip of land is, by appro- priation, severed from its connection with the other land of the owner, in estimating the compensation to be made to the owner, not only is the abstract value of the strip taken to "be considered, but also its relative value, and the effect arising from its severance from the residue of the owner's land as well as the uses to which it is to be appropriated. — Cleveland, etc., E. E. Co. v. Ball, 5 Oh. St. 568 (lS5fi); Schaible v. Lake Shore, etc., Ey. Co., 10 0. C. C. 334 (1895). Basis of valuation. The rule of valuation is, what the interest in the property is worth, not for any particu- lar use, but generally for any and all uses for which it mav be suitable. — Goodin v. Cin- cinnati, etc.. Canal Co., 18 Oh. St. 169 (1868). Appropriation of Property. 611 View of Premises, §§ 6428, 6429. Time when value of land is to be taken. See Schaible v. Lake Shore, etc., Ry. Co., 10 O. (J. C. 334 (1895). Market value, what is. See Cincinnati, etc., Ry. Co. v. Pfitzer, 1 Goebel, 248 (1889). Damage by smoke, noises, and sparks. It is competent to take into consideration evidence of substantial injury and loss to the property (not common to the community at large) caused by smoke, noises and sparks of fire, occasioned by running of locomotives and ears along the track in front of the property. — Rftihvay Co. v. Gardner. 45 Oh. St. 309 (1887). Damage to lands adjacent when canal is converted into railroad. Where a canal company transfers its lands to a railroad company, the owner of the fee is entitled to damages for the additional burdens imposed on his land. — See Hatch v. Cincin- nati, etc., R. R. Co., 18 Oh. St. 92 (1868); Cincinnati, etc., E. R. Co. r. Zinn, 18 Oh. St. 417 (1868); Vought v. Columbus, etc., R. R. Co., 58 Oh. St. 123 (1898). Damage to highway. A landowner must recover damages suffered by a change in a highway in a separate action, not in appropriation proceedings. — Schaible v. Lake Shore, etc., Ry. Co., 10 0. C. C. 334 (1898). Injury to access to river. Where compensation is claimed for injury to access to river, thereby damaging uhe ship- ping facilities, it is competent to show that river transportation had ceased to be valuable. — Cleveland, etc., E. R. Co. v. Ball, 5 Oh. St. 568 (1856). Interest — Tirhen alloired. A property owner is entitled to interest from and after the time his property was taken, and even though the money may have been paid into court on one verdict, interest will be allowed in a second verdict from the time the land was taken. — Atlantic, etc., Ry. Co. V. Koblentz. 21 Oh. St. 334 (1871); Cin- cinnati V. Williams, 9 W. L. B. 24i (1883). See City v. English, 5 W. L. B. 789 (1880); Cincinnati v. Whetstone, 47 Oh. St. 196 (1890); Longworth v. Cincinnati, 48 Oh. St. 637, 647 (1891). Appropriation of street-car tracks by another company — compensation. See Toledo Ry. Co. v. Toledo, etc., Ry. Co., 6 0. C. C. 302 (1892); Kinsman, etc., R. R. Co. V. Broadway, etc., R. R. Co., 36 Oh. St. 239 (1880). See Cincinnati, etc., R. R. Co. v. Zinn, 18 Oh. St. 417 (1868). Railroad crossing appropriation — com- pensation. In a, proceeding to appropriate a right of way across the track of an existing railroad, to be used in common, as a railroad crossing, the owner of such track is entitled to com- pensation for the property or interest therein actually appropriated, and for such conse- quential damages as are the direct and prox- imate consequence of such appropriation, but it cannot recover as consequential damages the additional expense rendered necessary in operating its road in complying with the crossing law, nor can the jury take into ac- count the detention of trains or loss of future business. — Lake Shore, etc., Ry. Co. v. Cin- cinnati, etc., Ry. Co., 30 Oh. St. 604 (1876). § 6428. THE FOKM: OF WKIT TO SHERIFF.— The probate judge may, upon motion of eitlier party, issue the following writ to the sheriff, to-wit: " To the sheriff of county: You are hereby commanded to conduct the twelve jurors named in the panel to this writ annexed, to view the property or premises sought to be appro- priated by (here state the name of the corporation), and owned by (here state the name of the owner or owners), on , the day of , then and there to view the premises or property aforesaid, (in the presence of A. B. on the part of the corporation aforesaid,) and C. D. on the part of the owner, appointed by this court, and you shall make return of the manner you have executed this writ to this court, on the day of , A. D. ." The writ shall be signed by the probate judge), and certified under his seal of office. (April 23, 1872, 69 v. 88, § 9.) 5 6429. JITDG-E MUST DELIVER CERTAIN COPIES TO SHERIFF.— The judge shall also deliver to the sheriff a copy of that part of the petition cqptaining a separate description of each parcel of property, and rights or interests sought to be appro- priated within the county, which the jury is required to view; he may appoint, to be present at the view, the two persons named in the writ; and the sheriff who is to exe- cute the writ shall, by a special return upon the same, certify under his hand that the view has been made according to the command thereof. The expenses of taking 612 Private Corporations in Ohio. Trial in; Witnesses, Verdict, etc., §§ 6430-6432. the view shall be taxed in the bill of costs, and no evidence shall be given on either side at the taking thereof. (April 23, 1872, 69 v. 88, § 9.) § 6430. WITNESSES MAY BE EXAMINED BEFORE JURY.— Witnesses may be examined before the jury after its return to the court; but if more than three wit- nesses be examined by either party, on the same point in the same case, the judge may tax the costs of such additional witnesses to the party calling them. (April 33, 1872, 69 V. 88, § 9.) Hoip difference in value proved. It is improper to ask a witness how much less valuable a piece of land would be in con- sequence of the appropriation, or what the difference in value would be with the appro- priation and without it. The proof should be confined to the value with the appropriation and value without it. The jury is to ascer- tain the difference or damage.-:— Powers v. Hazelton, etc., Ry. Co., 33 Oh. St. 429 (1878) ; Railway Co. v. Gardner, 45 Oh. St. 309, 322 (1887). Proof of value by account books. Where no special ground is laid therefor, ac- count books of persons not parties to the pro- ceedings are not of themselves admissible in evidence to prove the value of the property a fleeted by the appropriation, and quantity of products transported over it from the lands of other parties. — Powers v. Hazelton, etc., Ry. Co., 33 Oh. St. 429 (1878). Opinions as to injuries to land. Where in a proceeding it is claimed that the land will be injured by severing it, thus in- juring the shipping facilities, it is proper to ask the opinion of a witness on cross-exami- nation as to the extent of such injury. — Cleveland, etc., R. R. Co. v. Ball, 5 Oh. St. 5(i8 (1856). Opinions as to damages. The opinion of a witness as to the amount of damages which a landowner will sustain by the appropriation of a part of his land is not admissible, but opinions may be given as to the value of the land. — Cleveland, etc., R. R. Co. V. Ball, 5 Oh. St. 568 (1856) ; Atlantic, etc., R. R. Co. V. Campbell, 4 Oh. St. 583 (1855); Railway Co. v. Gardner, 45 Oh. St. 309, 322 (1887). Proof of diminished rents. Damages or value cannot be shown by the rents received from the property. — See Rail- way Co. V. Gardner, 45 Oh. St. 309, 324 (1887) ; Lake Shore, etc., Ry. Co. v. Cincinnati, etc., Ry. Co., 30 Oh. St. 604, 623 (1876) ; Powers v. Hazelton, etc., Ry. Co., 33 Oh. St. 429, 425 (1878). Charge to jury. See Ohio Southern R. R. Co. v. Snyder, 5 N. P. 461 (1898). § 6431. WHEN A STRUCTURE IS PARTLY ON LAND SOUGHT TO BE APPROPRIATED. — When a building or other structure is situated partly upon land sought to be appropriated, and partly upon adjoining land, and such structure cannot be divided upon the line between such two tracts of land without manifest injury, the jury, in assessing the compensation to any owner of the lands, shall assess the value of the same exclusive of the structure, and make a separate estimate of the value of the structure; the owner of the structure may elect to retain the ownership of the same, and to remove it, or accept the value thereof as estimated by the jury; if he fail to make such election within ten days from the date of the report of the jury, or within ten days from the termination of the cause in any higher court to which it may be taken, he shall be deemed to have elected to retain and remove the structur" ; but if he elect to accept the value of the structure, the title thereto shall vest in the corporation making the appropriation, which shall have the right to enter upon the land for the purpose of removing the structure therefrom. (April 11, 1876, 73 v. 210, § 1.) 'When election must be made. An election may be made either ten days after the date of the verdict, or ten days after the overruling of a motion for a new trial, or ten days after the termination of the proceed- ing in error. — Covington Bridge Co. v. Devoto, 5 N. P. 330 (1898) ; s. c, 8 Dec. 268. § 6432. VERDICT AND CONFIRMATION THEREOF.— The jury shall render its verdict in writing, signed by the foreman, to the judge, who shall cause it to be entered of record; and unless for good cause shown, upon motion to be filed within Appropriation of Property. 613 Possession under — Costs, etc., §§ 6433-6435. ten days after the verdict is rendered, a new trial be granted, the judge shall enter a judgment confirming such verdict. (March 23, 1875, 72 v. 71.) Verdict must be in money — nothing ' else authorized. A verdict assessing damages in the sum of $150, with a wagonway and stop for cattle, is not in confonnity with the statutes nor the constitution. — Central Ohio R. R. Co. v. Holler, 7 Oh. St. 220 (1857). § 6433. WHEN AND HOW CORPORATIONS MAY HAVE POSSESSION.— X7pon payment to the party entitled thereto, or deposit with the probate judge, of the amount of the verdict, and such costs as have lawfully accrued in the case up to the time against the corporation, the corporation shall be entitled to take possession of, and shall hold, the property, rights, or interests so appropriated, for the uses and pur- poses for which the appropriation was sought, as set forth in the petition, and the judge shall enter of record an order to that effect, and if necessary, proper process shall be issued to place the corporation in possession thereof. (March 23, 1875, 72 V. 71.) Refusal of oiirner to accept money. Appropriation proceedings are effectual, al- though the owner may have refused to submit to such proceedings, or to receive the amount awarded to him, and deposited for his use. — Hueston v. Eaton, etc., R. R. Co., 4 Oh. St. 685 (1855). Possession cannot be taken before final order. Before a corporation can have possession it must make a deposit of the amount of the verdict, and a final order must be made in the proceedings. — Wagner v. Railway Co., 38 Oh. St. 32 (1882). § 6434. WHEN AND HOW CORPORATION MAY ABANDON PROCEEDINGS. — The corporation may abandon any case or proceeding after paying into court the amount of the defendant's costs, expenses, and attorney fees, as found by the court. If the corporation fail in any case to make payment or deposit, as provided in the pre- ceding section, within thirty days after confirmation of the verdict, the probate judge, on motion of the party entitled to such payment, to be filed within ten days after the expiration of said thirty days, shall enter an order directing the corporation to make such payment or deposit within thirty days after the date of such order; and unless such corporation, within said thirty days, make such payment or deposit, it shall be held and considered to have thereby abandoned the property, rights, or interests so appropriated, and all claims thereon under its proceeding, and the judge shall issue an order to that effect; the judge shall also enter a judgment against the corporation, and in favor of the party entitled to such payment, for such amount of expenses, including time spent, and attorney fees, incurred by him in the proceeding, as the court, upon the evidence offered in that behalf, deems just and reasonable, for which execution may be issued against the corporation; and the directors of the cor- poration, individually, shall be liable upon such judgment, and may be made parties thereto by action. (March 23, 1875, 72 v. 71, § 10.) Right to abandon proceedings. See State ex rel. v. Cincinnati, etc., R. nation Proceedings, 7 N. P. 605. R. Co., 17 Oh. St. 103 (1866). See In re Condem- § 6435. WHEN ACTION MAY BE BROUGHT FOR COSTS AND EXPENSES.— If such judgment be not satisfied within thirty days after the rendition thereof, or if the party entitled thereto be not satisfied with the amount thereof, such party shall have a right (of action) against the petitioner for his expenses aforesaid, including time spent, and attorney fees, and also for his expenses, including reasonable attorney fees, incurred in prosecuting such action; but the action shall be brought within six months after the rendition of the judgment in the probate court. (March 23, 1875, 72 V. 71, I 10.) 614 Private Corporations in Ohio. New Trial— Petition in Error, §§ 6436, 6437. § 6436. NEW TRIAL; PROCEEDINGS THEREON.— A new trial shall be granted for cause only, shall take place in the same court where the first trial was had, and shall be conducted in accordance with the provisions of this chapter for the first trial, so far as they are applicable; and upon the grafting of the motion for a new trial, if the amount of the first verdict has been paid into court, the probate judge shall retain the same until the final termination of the second trial; but if, upon the new trial, the verdict of the jury exceed the amount of the first verdict, the corporation shall pay the amount of the first verdict, together with the excess, to the owner of the property; and if the verdict upon the second trial be less than that of the first, the probate judge shall repay to the corporation the difEerence. If a new trial be granted at the instance of the owner of the property, and the verdict of the jury be the same or less in amount than that first rendered, the owner shall pay the whole costs of the second trial; and if it be more than that first rendered, the costs of the second trial shall be paid by the corporation. (April 23, 1872, 69 v. 88, § 11.) "When onrner entitled to payment. The money paid in on the first verdict, ■which is afterward set aside^ remains the property of the corpoi-ation until the final de- termination of the second trial; and if the second verdict is less than the deposit, the excess is returned to its owner, but if greater, the corporation must increase the deposit to equal the second verdict, to entitle it to take the property. This section gives no right to appropriate the property pending the second trial. — See Wagner v. Railway Co., 38 Oh. St. 32, 39 (1882) ; Trustees v. Banning, 21 W. L. B. 9 (1888). Injunction against appropriation. The remedy of a landmvner dissatisfied with an appropriation, and claiming the company has varied from the route specified in its charter, lies in the appropriation proceedings, not in equity. — Walker v. ilad River, etc., R. R. Co., 8 Oh. 38 (1837). § 6437. EITHER PARTY MAY PILE A PETITION IN ERROR.— Either party may file a petition in error in the court of common pleas of the proper county, within thirty days from the rendition of the final judgment in the probate court and ths proceedings in error shall be conducted as in civil actions; but the corporation may, on the rendition of the final judgment in the probate court, pay into said court the amount of the judgment for compensation and costs therein rendered, and proceed to enter upon and appropriate* the property, notwithstanding the pendency of the pro- ceedings in error. (April 23, 1872, 69 v. 88, § 12.) When petition in error can be filed. When a verdict fixing the amount of com- pensation to be paid has been rendered by the jury, and an order or judgment of confirma- tion of such verdict entered by the court under § 6432, proceedings in error may be prosecuted by the defendant in the proceed- ings to reverse such order or judgment of confirmation, before the compensation awarded by the jury has been paid, or the order provided for in § 6433 made. — Toledo, etc., Ry. Co. v. Toledo, etc., fey. Co., 6 0. C. C. 362 (1892); Cincinnati, etc., R. R. Co. v. Barcalow, 4 0. C. C. 49 (1889). See Toledo, etc., Ry. Co. v. Toledo, etc., Ry. Co., 6 O. C. C. 521 (1892). liimitation of thirty days. The limitation fixed by this section is not affected by § 6723. — See Buckingham v. Steubenville, etc., R. R. Co., 10 Oh. St. 25 (1859). Petition must be filed within thirty days. The proceedings of the probate court can be reviewed by the common pleas court only when the petition in error is filed within thirty days from the rendition of final judg- ment, and whether a petition was filed in' time or not is to be determined by the record. This limitation applies to proceedings begun by the landowner as well as those begun by the company. — Cleveland, etc.. Ry. Co. v. Wick, 35 Oh. St. 247 (1879) ; Little Miami R. R. Co. V. Hopkins, 19 Oh. St. 279 (1869). Owner is entitled to money irhen land is taken. When a company pays into court the amount of the compensation under this sec- tion, it is tlie duty of the probate judge, on the demand of the owner, to pay over to him the amount of such judgment, notwithstand- ing the pendency of proceedings in error, and the objection of the corporation. His official bond is liable for his failure in this regard. — Meily v. Zurmehly, 23 Oh. St. 627 (1873). See Wagner v. Railroad Co., 38 Oh. St. 32, 39 (1882); Trustees v. Banning, 21 W. L. B. 9 (1888). Review of findings on preliminary matters. The finding and order of the probate court made upon the preliminary hearing may be reviewed on petition in error. — Toledo, etc., Ry. Co. V. Toledo, etc., Ry. Co., 6 0. C. C. 362 Appropriation of Property. 615 Error — School Lands, etc., §§ 6438-6440. <1892); Toledo, etc., Ry. Co. v. Toledo, etc., JRy. Co., 6 0. C. C. 521 (1892). Contra, Ohio Postal, etc., Co. v. Railway Co., 8 N. P. 121 (1900). Motion for new trial, when to be filed, See'c. C. C. & St. L. Ry. Co. v. Postal Tel. Co., 22 0. C. C. 555 (1901). § 6438. PROCEEDTirGS IN THE COMMON PLEAS ON ERROK.— If the court of commoii pleas, upon the hearing of the cause, afllrm the judgment of the probate court, all the costs in the court of common pleas shall be paid by the plaintiff in error; and if it reverse such judgment, it shall retain the cause for trial and final judgment, B.B in other cases, which trial shall be had at the term of reversal of the judgment, unless for good cause shown by either party the court grant a continuance; and on the trial of the cause in the court of common pleas, the same inquiry shall be made as to the interest of the jurors, and the same oath shall be administered to the jury, aa 1b provided for in sections sixty-four hundred and twenty-five and sixty-four hundred and twenty-seven. (April 23, 1872, 69 v. 88, § 13.) Proceedings in error from judgment of reversal. Where an order of the probate court ap- propriating land for tight of way of a railway company is reversed in the court of common pleas, error will not lie to reverse such judg- ment of reversal. — Railway Co. v. Bailey, 39 Oh. St. 170 (1883). See Cincinnati, etc., R. R. Co. V. Barcalow, 4 0. C. C. 49, 50 (1889). Interest may be alloived. Where a company pays into court the dam- xiges assessed, and takes possession of the property, and upon petition in error, the as- sessment is set aside and a new one awarded, it is competent for the jury, in making the latter assessment, to allow and include in the verdict, interest from and after the time pos- session of the property appropriated was taken, and while the money was retained by the court. — Atlantic, etc., Ry. Co. v. Kob- lentz, 21 Oh. St. 334 (1871). Common pleas court cannot render personal judgment. The court of common pleas, on petition in error, is not authorized, on affirming the judg- ment, to render a judgment in personam against the corporation for the amount ad- judged against it in the probate court. — Cleveland, etc., Ry. Co. v. Wick, 35 Oh. St. 247 (1879). § 6439. HOW school LAND MAY BE APPROPRIATED.— When a railroad ■company, incorporated' in this state, has located its railroad through any part of reserved sections twenty-nine or sixteen, or through any part of sections granted by congress in lieu of section sixteen, for school purposes, and such lands remain unsold, or through any town lot or parcel of ground used for or devoted to school purposes, it may appropriate so much of such land or lots as may be necessary for the purposes aforesaid; and service of the summons made on such trustees or school officers as have possession or control of the lands, shall have the same force and effect as service in any other case on owners of land sought to be appropriated. The money arising from such appropriation shall be disposed of by such trustees or school officers in accord- ance with the law. (April 23, 1873, 69 v. 88, § 14.) Purpose of section. See State ex rel. v. Cincinnati, etc., Ry. Co., 37 Oh. St. 157, 171 (1881). § 6440. WHEN PROCEEDINGS TO APPROPRIATE PRIVATE PROPERTY MAY BE COMMENCED IN COURT OP COMMON PLEAS.— When the probate judge is interested, either as stockholder, director or otherwise, in a corporation seeking to appropriate private property to its use, or if before filing the petition, it is made to appear to the satisfaction of a judge of the court of common pleas of the county "wherein the action is sought to be brought, that such probate judge is interested either as owner or otherwise in the property sought to be appropriated, oi- by reason of sickness, absence or other incapacity is and will be unable to preside at the trial, the proceedings authorized by this chapter may be commenced in the court of com- mon pleas of the county; and in that case the proceedings shall conform in all respects, so far aj3 applicable, to the provisions of this chapter, and all the powers 616 Private Corporations in Ohio. Attorney, Appointment of — Conflicting Claims, §§ 6441-6444. conferred and duties imposed thereby upon the probate court shall devolve upon the court of common pleas; and said court may make such orders and direct such pro- ceedings to be had as may be necessary to do full justice between the parties accord- ing to the true spirit and intent of this chapter; and after final judgment the cor- poration may, on depositing the amount of the judgment and costs assessed in said court with the clerk thereof, be entitled to enter into possession of the property sought to be appropriated. In case such court is not in session when the proceedings are commenced therein, nor on the day fixed for the inquiry and assessment of com- pensation, a special term thereof shall be held in the same manner as provided in sec- tion 2239 of said statute. (April 6, 1891, 88 v. 281; April 19, 1883, 80 v. 218; R. S. 1880; April 23, 1872, 69 v. 88, § 15.) § 6441. COUBT TO APPOINT ATTORNEY FOK PARTY ABSENT OR UNDER DISABILITY. — When a party in interest is unknown, or his residence is unknown, and when service has been made by publication, and the party has not appeared in the proceedings by agent or attorney, or when such party in interest is under any legal disability, and has no legal guardian or trustee within the county where the action is brought, the court shall appoint some competent attorney in attend upon the proceedings, and protect the rights and interests of such party; and the court shall fix the amount of the fees of the attorney for such service, which shall be payable out of any money paid on the judgment rendered in such case for property appro- priated. (April 83, 1872, 69 v. 88, § 16.) § 6442. CONFLICTING- CLAIMS NOT TO BE PASSED UPON.— When there are diverse or conflicting claims, legal or equitable, to the real estate, or any interest therein, sought to be appropriated under the provisions of this chapter, the jury or court shall not pass upon the same in the proceedings for appropriation, but such claims shall be reseryed for adjudication as hereinafter provided. (April 23, 1878, 69 V. 88, § 18.) § 6443. BUT TO SE ADJUDICATED IN THE COMMON PLEAS.— Upon the payment of the money into court by the corporation, a party claiming a legal or eqtii- table interest in the property, or the money arising therefrom by such appropriation, may file his petition in the court of common pleas of the proper county, making the other claimants to the property or money parties thereto, setting forth the facts on which the claim is founded, the fact of the appropriation of the property, the amount of money so paid in therefor, and such other facts as are proper to enable the court to hear and determine the matter between the claimants; and the court shall forthwith appoint some master of the court, or other suitable person selected by the parties, to hold and safely keep such fund, or invest the same in the manner the court shall direct, after hearing the parties; and such fund shall thenceforth represent the land, and the interests therein, and be subject to the control of the court having jurisdiction of the case, by orders entered in the action, according to the rights of the parties to the land or fund, as from time to time the court may determine. (April 23, 1872, 69 V. 88, I 19.) § 6444. SUCH PROCEEDING A CIVIL ACTION.— Such proceeding in the court of common pleas, shall be considered and held to be a civil action; and the conflict- ing claims of parties to the fund aforesaid shall be ^determined by the court, or by a jury trial, according as the claim is equitable or legal, in the same manner as if the land had not been converted into money. (April 23, 1872, 69 v. 88, § 20.) Right to trial by jury. These sections do not grant any right to trial by jury. They only preserve existing rights. — See Skerrett v. Presbyterian So- ciety, 41 Oh. St. 606 (1885). Appropriation of Property. 617 TJnfinislied Road-bed of Railroad, §§ 6445-6447. § 6445. UNFINISHED ROAD-BED OP RAILROAD COMPANY MAY BE CON- DEMNED. — Any railroad corporation of this state may condeian and appropriate to its own use the interest and easement in and quiet title to, any unfinished road-bed, or part thereof, lying within the state, and on the line of its proposed road, owned or claimed by any other railroad company or companies, person or persons, partnership or corporation, when such road-bed, or part thereof has remained, or shall hereafter remain, in an unfinished condition, and without having the ties and iron placed, and continued thereon for the period of five years or more, immediately preceding the commencement of proceedings to condemn or appropriate the same as herein author- ized, and every such company, or companies, person or persons, partnership or corpo- ration, shall be made a party defendant to such proceedings to condemn or appro- priate the same, and shall be required to answer therein, setting forth fully its or their title to or interest in such road-bed, or part thereof, so sought to be appropriated, or condemned, if any, it or they may claim, to which answer the plaintiff shall plead issuably, unless it admit the validity of the defendant's claim; and in such case, if such party defendant be a non-resident of this state, or a foreign corporation, service of summons may be made by publication, under subdivision three of section five thou- sand and forty-eight of the revised statutes of Ohio, and that the terms company or companies, as used in this chapter, shall be held to embrace also person or persons, partnership or corporation as used in this section. (April 5, 1882, 79 v. 65; R. S. 1880; March 23, 1875, 72 v. 71, § 2.) No application to ordinary proceedings. See Valley Ey. Co. v. Pouchot, 4 0. C. C. 187, 193 (1889). § 6446. PROCEEDINGS IN SUCH CASE.— When it is determined by the court, upon issue of law, or by the jury upon issue of fact, or by the admission of the plead- ings, or by reason of failure to plead that any such company asserting such owner- ship or claim is not entitled thereto, judgment, including costs, shall be rendered accordingly; but when it in like manner is determined that any such company has an interest in such road-bed, or part thereof, so sought to be appropriated, the jury shall determine and state the amount of compensation due to such company, according to law, on account of the appropriation of such interest. (March 23, 1875, 72 v. 71, § 9.) § 6447. IN WHAT COURT SUCH PROCEEDINGS MAY BE COMMENCED.— Proceedings under this act may be commenced in the probate court, the court of common pleas or the superior court of any county in this state in which such road-bed or part thereof so sought to be appropriated or condemned may be situated, all or part only of such road-bed, within this state may be included in one proceeding, and when such proceeding is commenced in the court of common pleas or superior court, the same proceeding shall be had as is prescribed in this chapter for the conduct of the same in the probate court, so far as the same may be applicable to such common pleas or superior court, and not excepted in this section, and the case shall, on motion, be taken out of its order by the court or by any reviewing court, and determined without any unnecessary delay; and proceedings in error to such common pleas or superior courts, may be commenced directly in the supreme court, but the provisions of this chapter as to viewers shall not apply to appropriations authorized by such sections, and when any railroad corporation shall commence proceedings under this act, the president of said corporation shall make, subscribe and file in the court where any such proceedings is had, a statement under oath, declaring tha,t it is the bona fide intention of said corporation to complete and operate a railroad on th9 road-bed so sought to be appropriated; and if said corporation shall for a period of one year after it shall have acquired right to occupy the road-bed, fail to expend in and about the completion of a railroad thereon a sum equal to twenty-five per centum of the total cost of completing the same, to be estimated by the commissioner of rail- 618 Private Corporations in Ohio. Action to Compel Appropriation, § 6448. roads* and telegraphs, then and in such case the said road-bed shall be open to appro- priation and condemnation under this act by any other railroad corporation. The words road-bed used in this act shall be held to include right of way, depot grounds and other easements connected therewith, and it shall be sufficient in the petition and proceedings under this act to designate the road-bed as the road-bed of the rail- road corporation by which the route of the road was located and established with the terminal points within which appropriation is sought. (April 5, 1882, 79 v. 65; B. S. 1880; March 23, 1875, 72 v. 71, § 9.) § 6448. PKOCEEDINGS WHEN LAND IS HELD WITHOUT AGE.EEMENT BY A CORPORATION — When a corporation, authorized by law to make appropriation of private property or the land named in section six thousand four hundred and thirty-nine of this" chapter, has taken possession of, and is occupying or using the land of any person, or the land mentioned in said section six thousand four hundred and thirty-nine, for any purpose, and the land so occupied or used has not been appropriated and paid for by the corporation, or is not held by any agreement in writing with the owner thereof, or the trustees or school officers having possession or control of the lands named in said section six thousand four hundred and thirty- nine, such owner or owners, or either of them, or said trustees or school officers, may serve notice, in writing, upon the corporation in the manner provided for the service of summons against a corporation, to proceed under this chapter to appropriate the lands, and on failure of such corporation for ten days so to proceed, said owner or owners, or said trustees or school officers may file a petition in the probate court of the proper county setting forth the fact of such use or occupation by the corporation, that the corporation has no right, legal or equitable, thereto, and in cases of reserved sec- tions sixteen (16) and twenty-nine (29), or any part of sections granted by congress in lieu of section 16, for school purposes, named in section six thousand four hundred and thirty-nine, no right, legal or equitable, derived from the trustees and officers named therein, that the notice provided in this section has been duly served, that the time of limitation under the notice has elapsed, and such other facts, including a pertinent description of the land so used or occupied, as may be proper to a full understanding of the facts. Such owner or owners, or such trustees or school officers, intending to institute said proceeding, may demand, in writing, from the president or chief officer of such corporation a specific description of each parcel of land so used or occupied without appropriation by it, of the work, if any, constructed or intended -to be constructed thereon, and the use to which the same is to be applied, and upon failure of said corporation for ten days to furnish the same, as fully and completely as would be required of it in proceeding under section six thousand four hundred and sixteen, the fact of such demand and failure may be alleged in the petition in such proceeding, and on notice to the corporation and proof thereof being made to the pro- bate judge having jurisdiction of such appropriation, he shall restrain said corpora- tion from the use and occupation of said land until said demand has been complied -with, or such owner or o-wmers, or said trustees or school officers may cause the neces- sary surveys to be made therefor, and the costs thereof shall be taxed to said cor- poration in said proceeding. (April 12, 1883, 80 v. 114; R. S. 1880; April 23, 1872, 69 V. 88, § 21.) Constitntionality. Ihis section does not violate art. 14 of the "United States Constitution. — In re George, 5 0. C. C. 207 (1891). Kights ivhere land is held on verbal an:reeinen+. Where a railroad company has taken posses- Bion of land for its right of way, and incor- porated it as a part of its permanent railroad track, with the verbal consent of the owner, on condition of compensation verbally prom- ised, but refvised and not perfoi-med, and with- out appropriation proceedings and without any agreement in writing with the owner, such owner may elect to proceed under this section or proceed on the verbal agreement for compensation. — Fries v. Wheeling, etc., Ey. Co., 56 Oh. St. 135 (1897) ; s. c, 18 O. C. C. 721. Appropriation of Property. 619 Action to Compel Appropriation, § 6448. No action under this section after breach of covenant and condition to build road in certain time. See Field v. Lake Shore, etc., Ey. Co., 13 C. D. 1 (1897) ; s. c, 62 Oh. St. 633. Jurisdictional facts. One of the jurisdictional facts to be averred in the petition and proven is that the corpo- ration " has no right, legal or equitable, in the premises," otherwise the court has no juris- diction to impanel a juiy to assess damages. — In re George, 5 0. C. 0. 207 (1891). Jurisdictional averments. See Pittsburg, etc., R. R. Co. v. Perkins, 22 0. C. C. 630 (1888). Jurisdictional facts — how found. Jurisdiction of a proceeding under this sec- tion is conferred upon the probate court, and the facts which entitle the owner to maintain such suit, being issuable and subject to deter- mination in the exercise of the jurisdiction so conferred, need not be found by the court before impaneling a jury. — Kramer v. To- ledo, etc., E. E. Co., 53 Oh. St. 436 (1895). See In re George, 5 0. C. C. 207, 213 (1891). Who is an owner of land within this section. The plaintiff must be the owner of the legal title to the lands involved. — See Eapp v. Ohio Southern E. R. Co., 5 N. P. 497 (1898) ; Harrison v. Village of Sabina, 14 W. L. B. 27 (1885) ; Eailroad Co. v. Davis, 19 0. C. C. 589 (1900). Action must be by the owner or his heirs, not his administrator. An action by an administrator to recover of a railroad company compensation and dam- ages for wrongfully taking and appropriating lands of the decedent during his lifetime can- not be maintained, for the reason that such wrongful taking did not divest the decedent of his title to the land, and it, therefore, de- scended at his death to his heirs. — Eailway Co. v. O'Harra, 50 Oh. St. 667 (1893). Parties — ' w^hen company is in hands of receiver. When the title and estate of the road is not in the receiver, the company is the proper party to enforce appropriation. — Pittsburg, etc., E. E. Co. V. Perkins, 22 O. C. C. 630 (1888). Oivnership of land — ' how tried. In a proceeding under this section, either party is, on demand, entitled to trial by jury on an issue of fact as to the ownership of the land. But where no demand is made, the ques- tion may be heard and determined by the court. The jurisdiction of the probate court is not defeated by a. denial of the title of the plaintiff; and the court may, on the demand of either party, proceed and impanel a jury for the trial of the issue, in any of the ap- .propriate modes provided by statute for the impaneling of juries in the common pleas court. — Eailroad Co. v. O'Harra, 48 Oh. St. 343 (1891). Wrongful taking does not divest title. The wrongful taking of land by a railroad company for a right of way does not divest the title of the owner, and reduce his remedy to a mere claim for compensation and dam- ages. He continues the legal owner of the land until he loses the title by adverse posses- sion. — Eailway Co. v. O'Harra, 50 Oh. St. 667, 678 (1893); Fries v. Wheeling, etc., Ey. Co., 56 Oh. St. 135 (1897); Eailroad Co. v. Perkins, 49 Oh. St. 362 (1892); Railroad Co. V. O'Harra, 48 Oh. St. 343 (1891). See Hatry V. Painesville, etc., Ey. Co., 1 0. C. C. 426 (1886); Atlantic, etc., E. E. Co. v. Eobbins, 35 Oh. St. 531, 540 (1880). Joint liability. The lessor and lessee of a railroad may be jointly liable for permanent injuries to land abutting on a highway. — Eailroad Co. v. Hambleton, 40 Oh. St. 496 (1884). Interest in highways. Though the land taken is a public highway, its occupation for railway purposes imposes upon it an additional sei-vitude for which the owner of the fee is entitled to compensation, and may enforce his rights under this section. — Kramer v. Toledo, etc., E. E. Co., 53 Oh. St. 436, 444 (1895); Eailroad Co. v. O'Harra, 48 Oh. St. 343 (1891) ; Valley Ey. Co. v. Pouehot, 4 0. C. C. 187 (1889); Lawrence E. E. Co. v. Williams, 35 Oh. St. 168 (1878); Eailroad Co. V. Wartenbee, 35 W. L. B. 2 (1895) ; s. c, 53 Oh. St. 689. Raising track in street is taking prop- erty. See Eailroad Co. v. Hambleton, 40 Oh. St. 496 (1884). Estoppel. While an owner, who stands by, and with- out objection, sees a public railroad con- structed on his land, will, after the road is completed, or large expenditures have been made thereon, upon the faith of his apparent acquiescence, be estopped from reclaiming the land, on enjoining its use by the railroad company, he is not thereby estopped from claiming compensation. — Pennsylvania Co. v. Piatt, 47 Oh. St. 366 (1890); Goodin v. Cin- cinnati, etc.. Canal Co., 18 Oh. St. 169 (1868) ; See Gorrill v. Toledo, etc., Ey. Co., 4 0. C. C. 398, 406 (1890); Fries v. Wheeling, etc., Ey. Co., 56 Oh. St. 135 (1897); Longworth v. Cin- cinnati, 48 Oh. St. 637 (1891) ; Cleveland, etc., Ey. Co. V. Eeid, 4 N. P. 127 (1896) ; Central Trust Co. V. Valley Ry. Co.. 37 W. L. B. 210 (1897) ; Coe v. Columbus, etc., R. R. Co., 10 Oh. St. 411 (1859). 620 Private Corporations in Ohio. Action to Compel Appropriation, § 6449, Same subject. When a company enters upon land wrong- fviUy, it cannot claim an estoppel, and it must either yield possession or pay for the land. — Railroad Co. v. Perkins, 49 Oh. St. 326, 332 (1892) ; Atlantic, etc., R. R. Co. v. Robbins, 35 Oh. St. 531, 538 (1880). See Teegarden v. Davis, 36 Oh. St. 601< (1881); Daily v. State, 51 Oh. St. 348, 363 (1894); Bothe v. Dayton, etc., R. R. Co., 37 Oh. St. 146 (1881). Measure of compensation. In a, proceeding under this section the measure of compensation is the value of the land at the time it is assessed in the pro- ceeding. — Railroad Co. v. Perkins, 49 Oh. St. 326 (1892); s. c, 22 0. C. C. 631 (1888). 'What damages cannot be recovered. Where the action is by tha heirs of the owner they can oniy recover the compensa- tion for the land taken and damages to the remaining land, but not such damages to the lands of the decedent as he could have re- covered in his lifetime in an action of tres- pass. — Railway Co. v. O'Harra, 50 Oh. St. 667 (1893). See Railroad Co. v. Campbell, 51 Oh. St. 328 (1894) ; Baltimore, etc., R. R. Co. V. Lersch, 58 Oh. St. 639, 652 (1898) ; Railroad Co. V. Hambleton, 40 Oh. St. 496 (1884;. § 6449. STJMMOITS IN STJCH CASE; JTJDGMEWT AND EXECTTTIOlir.— A sum- mons shall issue and be served upon tlie corporation, and thereafter the proceedings in said court shall be conducted to final judgment in all respects as provided in this chapter; and if the corporation fail to pay the judgment and costs awarded against it in the proceeding, the same may be collected by execution as in other cases; but this section shall not be construed to impair or lessen in any manner the right the owner or owners or the trustees or school officers named in section six thousand four hundred and thirty nine of this chapter nxay have to proceed against the corporation as in all other cases of the unlawful entry upon lands. (April 12, 1882, 80 v. 114; R. S. 1880; April 23, 1872, 69 v. 88, § 21.) Statute of limitations. A proceeding under this section is not 'barred by the statute of limitations in less than twenty -one years. — Fries v. Wheeling, etc., Ry. Co., 56 Oh. St. 135 (1897); Railroad Co. v. O'Harra, 48 Oh. St. 343 (1891); Rail- road Co. V. Davis, 19 0. C. C. 589 (1900). Same subject. The right to compel appropriation of the land of a highway taken by a railroad com- pany by agreement with the officials in charge thereof is not barred by the lapse of less than twenty-one years from the time of such occu- pation by the company. The limitation of two years in § 3283 applies only to incidental injuries to property on or adjacent to the roadway, occasioned by the location and con- struction of the railroad, and does not in- clude the remedy for injuries to. or the taking of, the land itself. — Railroad Co. v. O'Harra, 48 Oh. St. 343 (1891); Railroad Co. v. Ham- bleton, 40 Oh. St. 496 (1884). Lien of judgment under this section. See Central Trust Co. v. Valley Ry. Co., 37 W. L. B. 210 (1897). Section 6448 is cumulative. The remedy provided in § 6448 is not a sub- stitute for the right to recover possession, but it is cumulative. — Railroad Co. v. Per- kins, 49 Oh. St. 326, 330 (1892). Injunction against use of land before appropriation. An owner of land may enjoin the company from entering upon it before it has been ap- propriated and paid for. — Gorrill v. Toledo, etc., Ry. Co., 4 0. C. C. 398, 404 (1890) ; Rail- way Co. v. Lawrence, 38 Oh. St. 41 (1882); Hathaway v. Springfield, etc., R. R. Co., 2 W. L. M. 481 (1860). See Dayton, etc., R. R. Co, v. Marshall, 11 Oh. St. 497 (1860); Coe v. Columbus, etc., R. R. Co., lOOh. St. 411 (1859). Same subject — highways. The owner of land abutting on a highway may enjoin the construction of a railroad therein until he shall have been fully com- pensated, and in a proper case a mandatory injunction may issue requiring the company to restore the street. — Toledo Bending Co. v. Manufacturers' Ry. Co., 2 N. P. 317 (1895). Action for ejectment. An owner of land wrongfully occupied may proceed under § 6448 or bring his action for ejectment. — See Raymond v. Toledo, etc., Ry. Co., 57 Oh. St. 271 (1897), 16 0. C. C. 639; Atlantic, etc., R. R. Co. v. Robbins, 35 Oh. St. 531 (1880); Bothe v. Dayton, etc., R. R. Co., 37 Oh. St. 147 (1881). Ejectment on breach of condition sub- sequent. Where the o^vner of land, by his written contract, gives a company a right of way on the payment of a stipulated price, with a pro- vision in the contract that on the completion of the road the company shall fence the same, after the road is completed, the owner of the land cannot, upon failure to put up the fence, eject the company from the land. — ■ Hornback v. Cincinnati, etc., R. R. Co., 20 Oh. St. 81 (1870). Suit for compensation in common pleas court. Where land is held by a company under a verbal agreement, and the owner elects to Appropriation of Property. 621 Action to Compel Appropriation, § 6450. the company agreed to pay a certain sum of money at a future day, and construct certain road crossings and cattle-guards. The com- pany took possession and constructed its road before receiving a deed for the right of way, and before payment of the money or con- structing the crossings or guards. The owner is entitled to an equitable lien upon the prop- erly sold as well for the damages for not con- structing the road in the proper manner, as for the unpaid purchase money. — Dayton, etc., E. R. Co. V. Lewton, 20 Oh. St. 401 (1870). See Seasongood v. Miami, etc., Ry. Co., 9 W. L. B. 256 (1883). Same subject. The owner entered into an agreement to convey to it the right of way through his land at a certain price per acre, he agreeing to take such purchase money in shares of the capital stock of the company if the same should at the end of two years be worth its face value, otherwise to be paid in cash. The stock being of no value at the end of two years, he demanded the cash, which was re- fused, and suit brought to enforce his ven- dor's lien and to enforce the same as against subsequent purchasers of the road under fore- closure proceedings to which he was not a party. — Ames v. Wheeling, etc., Ry. Co., 17 0. C. C. 684 (1899). Same subject, remedy. In such case the owner may seek his remedy by either compelling specific performance of the contract, or by enforcing his specific lien. — Dayton, etc., R. R. Co. v. Lewton, 20 Oh. St. 401 (1870). Foreclosure of lien — sale. Where a person has a lien on a portion of the road and public interests preclude the right of selling the portion covered by the lien, a necessity arises to decree the sale of the whole road, in order that equity may be done. — Dayton, etc., R. R. Co. v. Lewton, 20 Oh. St. 401 (1870). See Iseasongood v. Miami Valley Ry. Co., 9 AV. L. B. 256 (1883) ; Ames V. Wheeling, etc., Ry. Co., 17 0. C. C. 684 (1889); Stewart v. Railway Co., 53 Oh. St. 151 (1895). § 6450. WHEIT INJUNCTION MAY ISSUE AGAINST COKPOBATION.— If execution issued as provided in the last section be returned unsatisfied, In whole or in part, with' the endorsement that no goods or chattels, lands or tenements, can be found whereon to levy, or if the judgment remain unsatisfied for more than sixty days from, the rendition thereof, the court may, by injunction, restrain the corporation from using or occupying the lands until the judgment and costs are fully paid. (April 23, 1872, 69 v. §8, § 22.) treat it as an appropriation in fact and ten- ders conveyance, and sues in the common pleas court, he cannot enlarge his suit so as to include an inquirj' of damages to other lands, but allegations of such damage will not affect the jurisdiction of the common pleas court. Sep also as to statute of limitation, Pries V. Wheeling, etc., Ry. Co.. 56 Oh. St. 135 (1897) ; s. c, 18 0. C. C.'721, 14 0. C. C. 55. Action for trespass. See Little Miami R. R. Co. v. Whitacre, 8 Oh. St. 590 (1858); Cleveland, etc., R. R. Co. V. Stackhouse, 10 Oh. St. 567 (1860); Hatha- way V. Springfield, etc., R. R. Co., 2 W. L. M. 481 (1860); Ward v. Marietta, etc.. Bridge Co., 6 Oh. St. 15 (1856). Action for trespass not barred by ap- propriation. See Schaible v. Lake Shore, etc., Ry. Co., 10 O. C. C. 334 (1895). No action can be maintained for con- version of land. Where land is taken wrongfully, the owner cannot sue for compensation and damages ex- cept under § 6448. He cannot maintain such action if the circumstances are such that he may recover the land. — Atlantic, etc., R. R. Co. V. Robbins, 35 Oh. St. 531 (1880); Co- lumbia, etc.. Turnpike Co. v. Cincinnati, etc., R. R. Co., 5 W. L. B. 643 (1880). Sale of land on contract, notice to sub- sequent purchasers. Where the owner sells the right of way to the company on contract, and retains the le- gal title, that fact is sufficient to put subse- quent mortgagees and purchasers of the road upon inquiry as to the rights of the owner. — Dayton, etc., R. E. Co. v. Lewton, 20 Oh. St. 401 (1870); Seasongood v. Miami Valley Ey. Co., 9 W. L. B. 256 (1883). 'When owner has equitable lien on land sold. When the owner agreed in writing with the railroad company to release the right of way and the right to enter upon and construct the road through his lands in consideration that Payment must be made — a bond to pay is not suificient. By reason of the constitutional provision prohibiting the taking of land withouL first making compensation, a payment of judgment must be made within sixty days, an undertak- ing given on filing the petition in error is not sufficient.— In re George, 5 0. C. C. 207, 216 (1891). When injunction may issue. The filing of a petition in error and the giv- ing of an undertaking does not prevent the court from enjoining the corporation from using the property, but the court has no ju- risdiction to enjoin before the expiration of sixty days, nor without an undertaking hav- ing first been given. — In re George, 5 0. C. C. 207 (1891). 622 Private Corporations in Ohio. Fees and Costs in Appropriation, etc., §§ 6451-6453. § 6451. FEES or WITNESSES, OEFICEIIS, AND PBOBATE JUDGE, AND HOW COSTS ADJUDGED. — The jurors summoned, and attending or serving, in accord- ance with the provisions of this chapter, shall each receive the same fees per day as are provided by law for jurors in the court of common pleas, and also five cents per mile for each mile of the distance they are compelled to travel in the discharge cf their duties; the witnesses shall be allowed the same fees and mileage as are allowed for attendance at the court of common pleas; the sheriff shall be entitled to such fees as he is allowed by law for similar services in other cases, but he shall not be allowed anything in the way of poundage, except on money made on execution; the clerk shall be entitled to a fee of one dollar and fifty cents for drawing, and certi- fying to the probate judge, the list of jurors; the probate judge shall be allowed to enter a charge of five dollars in the cost bill for each day occupied in the trial of a cause, in addition to his other fees provided by law; and the whole costs so taxed shall be adjudged against and paid by the corporation, except as provided in the next section. (April 23, 1872, 69 v. 88, § 24.) § 6452. WHEN COSTS MAY BE APPOHTIONED.— A corporation, by its proper officer, agent, or attorney, niay, at the time cf filing the petition with the probate judge, deposit with such judge such sum of money, for each separate parcel of prop- erty as it deems a just and equitable compensation for the property, rights, and inter- ests described in the petition, and sought to be appropriated; and when the final ver- dict of the jury as to any parcel of property does not exceed the amount so deposited, and the owner has refused, after notice of such deposit, to accept the same, the whola costs of the proceeding as to such parcel shall be equally divided between the cor- poration and the owner or owners of the property; and when the final verdict as to any parcel or parcels exceeds, and as to other parcel or parcels does not exceed, the amount deposited, the probate judge shall apportion the costs in such manner as he may deem equitable and just. (April 23, 1872, 69 v. 88, § 24.) § 6453. WHEN THIS CHAPTER DOES NOT APPLY.— The provisions of this chapter shall not apply to proceedings by state, county, township, district, or munici- pal authorities, to appropriate private property for public uses, or for roads or ditches ; and in all such cases it shall be optional with such authorities to pay the judgment rendered against them according to section sixty-four hundred and thirty-two, or to pay the costs and decline to take the property sought to be appropriated. (April 23, 1872, 69 V. 88, § 25.) PART XXVIII. CIVIL PROCEEDINGS BEFORE JUSTICES OF THE PEACE. § 6477. Its service on corporations. § 6478. Suits before justice against railroad company; process; upon whom; and wlien and how, service of process may be made; when summons to be issued to sheriff, and how served and returned. § 6479. Insurance company. § 6480. Foreign corporations. § 6489. Affidavit for attachment ; what to contain. § 6499. How corporation served as garnishee. § 6477. ITS SERVICE ON CORPORATIONS.— A summons against a corpora- tion, except as hereinafter specially provided, may be served upon the president, mayor, chairman of the board of directors or trustees, or other chief officer; or, if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk, or managing agent; or, if none of the aforesaid officers can be found, by a. copy left at the office, or usual place of business of such corporation, with the person having charge thereof; but if the defendant be an incorporated river transportation company, whether organized under the laws of the state or another state, the service of a sum- mons may be upon the master or other chief officer of any of its steamboats or other craft, or upon any of its authorized ticket or freight agents, at any port where it may transact business. (March 14, 1853, 51 v. 179, § 15.) See § 5041. § 6478. SUITS BEFORE JUSTICE AGAINST RAILROAD COMPANY; PRO- CESS; UPON WHOM, AND WHEN AND HOW, SERVICE OF PROCESS MAY BE MADE; WHEN SUMMONS TO BE ISSUED TO SHERIFF, AND HOW SERVED AND RETURNED. — Suit may be brought before a justice of the peace against any railroad company, in the township in which the president of the company may reside, or in any township into or through which the road owned or leased by said company may be located, whether such company be foreign or created under the laws of this state, and whether the charter thereof prescribes the place where suit must be brought against it, or the manner or place of service of process thereon; and if the principal business office of the company is not kept in the township in which any such suit may be brought, it shall be the duty of the justice of the peace to issue a writ of summons against said company, directed to any constable in the township in which said suit may be brought. The constable shall, on receipt of such summons, forthwith serve the same personally upon the president of such copipany, if he be a resident of the county in which suit is brought, or by leaving a certified copy at h's place of business, if the same be within such county: Provided, that if the presi- dent of any such company shall not be a resident of, or have a place of business within, the county in which such suit shall be brought, it shall be lawful for the constable having such summons, to serve the same personally upon the person having charge of a ticket office, or on the person having charge of a freight depot, owned by or under the control of such company, if such ticket office or freight depot be situ- ated within the county where such suit shall be brought; and, provided, further, that when such summons shall be served on either of such last described persons, it shal be done at least eight days prior to trial; but when served upon the president, as [623] 624 Private Corporations in Ohio. Summons — Attachment, §§ C479-6489. aforesaid, it may be served in accordance with the law for serving summons issued ■by justices of the peace: provided, that when the president of such com.pany does not reside, and there is no such officer or depot in said county, then it shall be the duty of the justice of the peace to issue a writ of summons directed to the sheriff of the county where the principal business office of the company is located, with an indorse- ment on the back of the writ, of the name of the post-office to which said writ shall be returned; and the sheriff, upon the receipt of said writ, shall forthwith serve the same personally upon the president, if found, or by leaving a copy at the business office of said company with the person having charge thereof, and immediately return the said writ to the justice of the peace issuing the same, by mail, directed to the post-office named on the back of the writ. (March 21, 1850, 48 v. 52, § 1; March 31, 1866, 63 V. 63, §^§ 2, 3; April 30, 1868, 65 v. 116, § 66; K. S. 1880.) Section 6477 does not apply to rail- roads. See North v. Cleveland, etc., R. R. Co., 10 Oh. St. 548 (1860). See generally § 5041. Not applicable to street railw^ays. See Greene v. Woodland, etc., R. R. Co., 62 Oh. St. 67 (1900). AVhat is proper return. See Jones v. Toledo, etc., Ry. Co., 20 0. C. C. 63 (1900). § 6479. INSTJBANCE COMPANY.— Where the defendant is an incorporated insurance company, and the action is brought in a county in which there is an agency thereof, the service may be upon the chief officer of such agency. (March 14, 1853, 61 V. 179, § 16.) See § 5042. § 6480. FOBEIGN CORPORATIONS. — Where the defendant is a foreign corpo- ration, having a managing agent in this state, the service may be upon such agent. (March 14, 1853, 51 v. 179, § 17.) See § 5043. § 6489. AFFIDAVIT FOR ATTACHMENT: WHAT TO CONTAIN.— The plain- tiff shall have an order of attachment against any property of the defendant (except as hereinafter provided) in a civil action before a justice of the peace, for the recovery of money, before or after the commencement thereof, when there is filed in this [his] office an affidavit of the plaintiff, his agent or attorney, showing the nature of the plaintiff's claim, that it is just, the amount the affiant believes the plaintiff ought to recover, and that the property sought to be attached is not exempt from execution, and, if the personal earnings of the defendant are sought to be attached, that the defendant is not the head or support of a family, and has not in good faith the main- tenance and support of a widowed mother, wholly dependent upon him for support, or that such earnings are not for services rendered within three months before the com- mencement of this action, or, that being earned within that time, the same amourt t3 more than one hundred and fifty dollars, and that only the excess over that amount is sought to be attached; or that the claim on which judgment is sought is for work or labor or for necessaries; and ex'cept when the claim is for work, or labor or for necessaries; also the existence of some one or more of the following particulars: 1. That the defendant, or one of several defendants, is a corporation, having no officer upon whom a summons can be served, or place of doing business in the county, or is a non-resident of the county; provided, that no proceedings in attachment shall be had to garnishee the salary or wages of the employes of a railroad company by reason of his non-residence, except before a justice or on account of his being a non- resident of the county in which hie liability was incurred; or, 2. Has absconded with intent .to defraud his creditors; or, Actions Before Justices of the Peace. 625 Attachment, etc., § 6499. 3. Has left the county of his residence to avoid the service of a summons; or, 4. So concealed himself that a summons cannot be served upon him; or, 5. Is about to remove his property, or a part thereof, out of the county, with intent to defraud his creditors; or, 6. Is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors; or, 7. Has property or rights of action which he conceals; or, 8. Has assigned, removed or disposed of, or is about to assign, remove or dispose of his property, or a part thereof, with intent to defraud his creditors; or, 9. Fraudulently or criminally contracted the debt, or incurred the obligation, for -which suit is about to be or has been brought. When the defendant is a corporation, having no officer in the county upon whom a summons can be served, or place of doing business in the county, or is a non-resJdent of the county, the attachment shall not be granted, unless the claim is for a debt or demand arising upon contract, judgment or decree, and no attachment shall issue by virtue of this chapter against the personal earnings of any defendant for services rendered by such defendant within three months before the commencement of the action or the issuing of the attachment, unless the defendant is not the head or sup- port of a family, or unless the amount of such earnings exceeds one hundred and fifty dollars, and then only as to the excess over that amount, or unless the claim is one for necessaries, and then for only ten per centum of such personal earnings. (February 28, 1862, 59 v. 17, § 28; June 9, 1879, 76 v. 165, § 17; E. S. 1880; April 3, 1891, 88 V. 277; April 26, 1898, 93 v. 319.) Szemptioii of foreign from attachiuent. See §§ 148c, 148d. corporations 'What is a foreign corporation. The words " foreign corporation " do not include a aomestic corporation. — Boley v. Ohio, etc., Trust Co., 12 Oh. St. 139 (1861). Domestic corporation may be nonresi- dent. A domestic corporation may be proceeded against under this section on the grounds that it is a nonresident of this county. — Champion Machine Co. v. Huston, 24 Oh. St. 503 (1874). Garnishment of railroad companies. See § 5465. Attachment in other courts. See § 5521. §• 6499. HOW COKPORATION SERVED AS GARNISHEE.— If the garnishee is a person, the copy of the order and notice shall be served upon him personally, or left at his usual place of residence; if a partnership is garnisheed by its company name, they shall be left at its usual place of doing business or be served personally on a member of said partnership; and if a corporation, they shall be left with the president or other principal officer, or the secretary, cashier, or managing agent thereof; and if such a corporation is a railroad company, they may be left with any regular ticket or freight agent thereof in the county. (May 4, 1885, 82 v. 261; R. S. 1880; March 14, 1853, 51 V. 179, § 38.) LAW GOV. PRIV. COR. — 40. PART XXIX. QUO WARRANTO. § 6760. When proceedings in quo warranto may be instituted against a person. § 6761. Where action of quo warranto may be brought against a corporation. § 6762. Who may commence action. § 6763. Upon whose relation. § 6765. Who to prosecute, in absence, etc., of prosecuting attorney. § 6767. All claiming same office or franchise to be made defendants. § 6768. Actions in quo warranto; where brought. § 6769. Application for leave to file petition, and notice to defendant. § 6770. Issue of summons, and service. § 6771. Service by publication. § 6772. Pleading after petition. § 6773. Court may extend time for pleading. § 6774. Judgment where office, franchise, etc., found to have been usurped. § 6775. Judgment where a director of a corporation found to have been illegally elected, § 6776. When court may order new election in such case. § 6777. Rights of person adjudged to be entitled to an office. S 6778. Action for damages against person ousted. § 6779. How judgment of court enforced. § 6780. Judgment when corporation has forfeited its rights. § 6781. Appointment of trustees when corporation dissolved. § 6782. Power and duties of trustees. , § 6783. How trustees placed in possession. § 6784. Judgment for costs. § 6785. Proceedings to enforce judgment ordering delivery of property. § 6786. When injunction allowed ancillary to proceedings in quo warranto against banking association. § 6787. Court may require bank directors to give security, etc. § 6788. Directors may be enjoined from borrowing or issuing money, etc. § 6789. Limitations. § 6790. Action for damages against officers, etc., of ousted corporation. § 6791. Provisions of this chapter cumulative to other remedies. § 6792. Disposition o"f fines. § 6793. Actions under this chapter to have precedence, etc. § 6760. WHEN" PKOCEEDINGS IN QUO WABBANTO MAY BE INSTITUTED AOAINST A PEBSON. — A civil action may be brought in the name of the state — 1. Against a person who usurps, intrudes into, or unlawfully holds or exercises, a public office, civil or military, or a franchise, within this state, or an office in a cor- poration created by the authority of this state. 3. Against a public officer, civil or military, who does or suffers an act which, by the provisions of law, works a forfeiture of his office. 3. Against an association of persons who act as a corperation within this state without being legally incorporated. (March 17, 1838, 36 v. 68, § 1.) Power of court of equity. The legality of the election of persons as trustees of a company, and their right to exer- cise the powers and conduct the affairs of a, [626] company, are questions which cannot be judi- cially tested in a court of equity, but fall within the jurisdiction of proceedings in quo warranto. — Hullman v. Honcamp, 5 Oh. St. Quo Warranto. 627 Action Brought When, § 6761. 237 (1855); First, etc.. Society v. Smithers, 12 Oh. St. 248 (1861). See Moses v. Tomp- kins, 84 Ala. 613 (1887); Bartholomew v. Lutheran Congregation, 35 Oh. St. 567, 575 (1880); Messenger v. Wardens of Trinity Church, 6 W. L. B. 397 (1881) ; Hooe v. Hall, 0. C. C. 654 (1893); Harding v. Eichinger, 57 Oh. St. 371 (1898); Reemelin v. Mosby, 47 Oh. St. 570 (1890). How continuance in office pleaded. Where the information avers continued usurpation of the office of directors, the answer must set out expressly ihe continu- ance of every qualification necessary to the enjoyment of the office. It is not sufficient to state the qualifications necessary to appoint- ment, and rely upon the presumption of their continuance.— State ex rel. v. Beecher, 15 Oh. 723 (1846). When term of office has expired. A proceeding cannot be maintained where the term of office has expired or is about to expire.— See State ex rel. v. Ward, 17 Oh. St. 543, 548 (1867); State ex rel. v. Jacobs, 17 Oh. 143 (1848). Resignation no defense. The resignation of defendants, after they have been served with process in a quo war- ranto proceeding, in which they are charged with usurping an office, constitutes no answer to the information. Their successors, as to the unoccupied term, stand in their shoes, and will be bound by the judgment. — State ex rel. v. McDajiiel, 22 Oh. St. 354 (1872). Parties. Where the franchise to be a corporation is intended to be drawn in question, the proceed- ing should, under our statute, be against the individuals who usurp such franchise. — State ex rel. v. Cincinnati, etc., Coke Co., 18 Oh. St. 262 (1868). See State ex rel. v. Rob- inson, 12 W. L. B. 269 (1884). Where parties are numerous. Where, in a proceeding in quo warranto, certain named persons, and others said to be too numerous to be brought upon the record, were charged with usurping the franchise of being a corporation, and the defendants named plead that they were the directors of the cor- poration, without denying that they were cor- porators therein, and averred the legal ex- istence of the ooi-poration, in the absence of allegations or proof to the contrary, the de- fendants are to be regarded as claiming to be members of the corporation. — State ex rel. v. Sherman, 22 Oh. St. 411 (1872). Proceedings against associations acting as corporation. To bring a case within thig section it is not; necessary that the association or persons com- posing it claim to act as a corporation, or assume to do so ; it is sufficient if the acts are such as appertain to corporations, or are done after the manner of corporations. — State ex rel V. Ackerman, 51 Oh. St. 163 (1894). Proceedings against foreign insurance associations. The authority of foreign insurance com- panies to do business in the state is a, fran- chise, the right to exercise which may be tested under this section. — State ex rel. v. Ackerman, 51 Oh. St. 163 (1894). Burden of proof — right to open and close. The burden is on the defendants to show by what authority they claim to exercise the powers complained of, and they are entitled to open and close the argument. — State ex rel. V. Vanderbilt, 37 Oh. St. 590, 631 (1882). Amendment of charter Tphile proceed- ings are pending. See State 'ex rel. v. Mutual, etc., Ass'n, 28 Oh. St. 19 (1875). § 6761. WHEW ACTION OP QUO WAKKANTO MAY BE BROUGHT AGAINST A CORPORATION. — A like action may be brought against a corporation: 1st. When it has offended against a provision of an act for its creation or renewal, or any act altering or amending such acts. 2nd. When it has forfeited its privileges and franchises by non-user. 3d. When it has committed or omitted an act which amovmts to a surrender of its corporate rights, privileges and franchises. 4th. Wheq it has misused a franchise, privilege or right conferred upon it by law, or when it claims or holds by contract or otherwise, or has exercised a franchise, privilege or right in contravention of law. (March 9, 1881, 78 v. 43; R. S. 1880; March 17, 1838, 36 v. 68, § 8.) Scope of information. An information which charges a corporation with usurping certain franchises by acting through other parties calls in question only the authority of the usurping corporation, and cannot be extended so as to include au- thority not derivable from the corporation, and which parties exercise in their own right. — State ex rel. v. Cincinnati, 23 Oh. St. 445 (1872). 628 Private Corporations in Ohio. Action Brought When, etc., § 6761. How forfeiture set up. When an information in the nature of a quo warranto ia filed against a corporation by its corporate name, calling upon it to snow by what warrant it claims to be a corporation, and to exercise corporate powers, and the de- fendant pleads an act of the legislature grant- ing to it the franchise named in the informa- tion, it is competent for the relator, by way of replication, to aver a cause of forfeiture, and to pray for a judgment of dissolution. — State ex rel. V. Pennsylvania, etc., Canal Co., 23 Oh. St. 121 (1872); State ex rel. v. Walnut Hills, etc., Eoad Co., 13 0. C. C. 375 (1889) ; State ex rel. V. Commercial Bank, 10 Oh. 535, 541 (1841). See State ex rel. v. American, etc.. College, 8 A. L. Eec. 422 (1879). State cannot deny existence. Where proceedings are instituted by the state against a corporation, by its corporate name, charging a usurpation of certain cor- porate franchises, it is not competent for the ttate to deny the corporate existence of the defendant. — State ex rel. v. Cinciunati, etc., Coke Co., 18 Oh. St. 262 (1868). See State ex rel. v. Pennsylvania, etc., Canal Co., 23 Oh. St. 121, 126 (1872). Allegation of corporate existence. Where the action ia against a corporation for exercising franchises not conferred by law, the corporate existence of the defendant should be alleged.— Srtate v. Granville, etc.. Society, 11 Oh. 1, 9 (1841). Judgment by default. Judgment by default cannot be taken un- less the petition tenders an issue. — See State ex rel. v. American, etc.. College, 8 A. L. Eec. 422 (1879). Parties. A proceeding against the individuals com- posing a corporation for a nonifter or misuser of franchises ia bad on demurrer. The action should be against the corporation after it comes into existence. — State ex rel. v. JRobin- son, 12 W. L. B. 269 (1884) ; State ex rel. v. Taylor, 25 Oh. St. 279 (1874). • Meaning of word " privilege." See State ex rel. v. Railway Co., 53 Oh. St. 189, 237 (1895). Failure to perfect organization. A corporation must organize by the election of directors, or otherwise it will be liable to (raster for misuse or nomuse of its franchise. — See State ex rel. v. Robinson, 12 W. L. B. 269 (1884). Foreign corporations. A foreign corporation exercising in this state franchises and privileges without au- thority of law may be ousted therefrom under this section. — State ex rel. v. Insurance Co., 49 Oh. St. 440 (1892); State ex rel. v. Life Ins. Co., 47 Oh. St. 167 (1890). Same subject. The issuing of a license to a. foreign insur- ance company is not a bar to quo warranto proceedings. — State ex rel. v. Insurance Co., 49 Oh. St. 440 (1892). Conducting business illegally. Where the manner of conducting a business, which the state's charter gives power to a company to conduct as a corporation, is in disregard and defiance of the laws of the state relating to that business, an abuse of the power results, and quo warranto may prop- erly be invoked to stop the abuse, and if the abuse ia flagrant, to oust the corporation. — State ex rel. v. Capital Diary Co., 62 Oh. St. 350 (1900) ; s. c. (U. S. Sup. Ct.), 22 Sup. Ct. Rep. 120. Criminal law^s do not bar action. The mere fact that the criminal laws of the state provide a punishment for certain acts is no bar to a proceeding in quo warranto to oust a, corporation engaged in such acts. — State ex rel. v. Capital Dairy Co., 62 Oh. St. 350 (1900). Misuse by excluding directors. A proceeding under this section may be brought to prevent the corporation from ex- cluding legally elected directors from the exer- cise of their duties, and in such a proceeding the persons permitted to act as directors are proper parties. — State ex rel. v. Ohio, etc., Sy. Co., 6 0. C. C. 412 (1892). See State ex rel. V. Smith, 6 0. C. C. 410 (1892). Res adjudicata, A judgment rendered by an inferior court in favor of a defendant corporation, upon an information in the nature of a quo warranto, filed by a county prosecuting attorney, upon an individual relation, is not a bar to a subse- quent, information of a similar character, filed by the attorney-general, in the exercise of the discretion given him by statute. — See State ex rel. v. Cincinnati, etc.. Coke Co., 18 Oh. St. 262 (1868). What is misuse of poirers of railroad company, A railroad company assumes the perform- ance of duties for the benefit of the public generally. When such corporation, for a period of five years, fails to construct the line of railroad named in its charter, but condemns private property and constructs a railroad wholly unsuited to the Wi\nts of the public, ard for the benefit only of the coal mines, owned and operated by the principal stock- holders of such railroad company, it is a mis- use of its corporate powers, franchises and privileges. — State v. Railway Co., 40 Oh. St. 504 (1884). See State ex rel. v. Railroad Co., 50 Oh. St. 239 (1893). Popper of eminent domain. A proceeding in quo warranto is the only direct method of testing the right of a corpo- Quo Warranto. 629 Who May Bring, etc., §§ 6762, 6763. ration to exercise the power of eminent do- main, and such proceeding is not barred by a judgment of the probate court under § 6420 as to such right. — State ex rel. v. Salem Water Co., 5 0. C. C. 58 (1890); s. c, 3 C. D. 30. Bight of railroad company to hold land cannot be tested. The object of quo warranto proceedings is not to divest the company of its title to prop- erty, unless acquired by a usurpation of the proprietary rights of the state, and a prayer thai the company be ousted from the right to use the lands of the relator for a private pur- pose is, in elfeet, a, prayer for the possession of the lands, and not within the purpose of a proceeding in quo warranto. — State ex rel. v. Railroad Co., 50 Oh. St. 239 (1893). Pomrer of railroad company to hold canal lands. An action in quo warranto will lie against a railroad corporation to contest its claim to exercise a right or privilege to or in the canal lands of the state. — State ex rel. v. Rkilway Co., 53 Oh. St. 189 (1895). Discrimination in freight rates. A company operating as a common carrier has no right to discriminate in its freight rates between shippers, and where such a com- pany, for instance, fixes a rate of freight for carrying petroleum oil in tank cars, substan- tially lower than its rate for transporting it in barrels in carload lots, it is exercising a franchise, privilege or right in contravention of law under this section. — State ex rel. v. Cincinnati, etc., Ry. Co., 47 Oh. St. 130 (1890). Engagement in interstate commerce no defense. A railroad company misusing its franchise, privileges or right is subject to a proceeding under this section, though it may be engaged in interstate commerce and the misuser or usurpation to be corrected relates to and con- cerns that traffic. — State ex rel. v. Cincinnati, etc., Ry. Co., 47 Oh. St. 130 (1890). Violation of trust act. See 93 v. 143, § 2. Franchise of street railroad company. See State ex rel. v. East Cleveland R. R. Co., 6 0. C. C. 318 (1891). Franchises of gas companies. See State ex rel. v. Cincinnati, etc., Coka Co., 18 Oh. St. 262 (1868); State ex rel. v. Ironton Gas Co., 37 Oh. St. 45 (1881). § 6762. WHO MAY COMMENCE ACTION. — The attorney-general, or a, prose- cuting attorney, when directed by the governor, supreme court, or general assembly, shall commence any such action; and when, upon complaint, or otherwise, he has good reason to believe that any case specified in (the preceding section) can be established by proof, he shall commence an action. (May 1, 1852, 50 v. 267, §§ 9, 10, 11, 12; March 17, 1838, 36 v. 68, §§ 1, 8.) thing relating to the court, or its business, renders it necessary or advisable. — Thomp- son V. Watson, 48 Oh. St. 552 (1891); State ex rel. v. Taylor, 50 Oh. St. 120 (1893). Poxirer of prosecuting attorney. See State ex rel. v. Buekland, 5 Oh. St. 216 (1855). Poorer of judges of supreme court. The judges of the supreme court, in their private capacity, have no power to direct pro- ceedings in quo warranto. — Ohio R. R. Co. v. State, 10 Oh. 360 (1841). When court should order proceedings brought. The power of the supreme court should, as a general rule, be exercised only when some- § 6763. UPON WHOSE RELATION.— Such officer may, upon his own relation, bring any such action, or he may, on leave of the court, or a judge thereof in vacation, bring the action upon the relation of another person; and if the action be brought under the first subdivision of section sixty-seven hundred and sixty, he may require security for costs to be given as in other cases. (March 17, 1838, 36 v. 68, § 1.) Discretion of attorney-general. A writ of mandamus will not be awarded to compel the attorney-general to commence proceedings. An application to him to bring the action is addressed to his discretion, the exercise of which the court will not control. — Thompson v. Watson, 48 Oh. St. 552 (1891). See In re Bank, 5 Oh. 250 (1831). When leave necessary. A suit cannot be brought on the relation of an individual without leave of court. — Staie ex rel. v. Smith, 6 0. C. C. 410 (1892). Quo israrranto can only be brought in the name of the state. See Railway Co. v. State, 49 Oh. St. 668, 681 (1892). Individual cannot bring action. An action in quo waiTanto to test the right to hold position of director of a corporation cannot be brought by persons claiming the place on their own relation. — Crawford v. State, 52 Oh. St. 62 (1894). 630 Private Corporations in Ohio. Who May Bring, etc.— Service in, etc., §§ 6765-6711. § 6765. WHO TO PROSECUTE, IN ABSENCE, ETC., OE PE.OSECXITING ATTORNEY. — When the office of prosecuting attorney is vacant, or when the prose- cuting attorney is absent, interested in the action, or disabled from any cause, the court, or a judge thereof in vacation, may direct or permit any member of the bar to act in his place to bring and prosecute the action. (March 17,> 1838, 36 v. 68, § 33.) § 6767. ALL CLAIMING SAME OFFICE OB, FRANCHISE TO BE MADE DEFENDANTS. — All persons who claim to be entitled to the same office or franchise may be made defendants in the same action, to try their respective rights to such office or franchise. (March 17, 1838, 36 v. 68, § 7.) § 6768. ACTIONS IN QUO WARRANTO: WHERE BROUGHT.— An action under this chapter can be brought only in the supreme court, or in the circuit court of the county in which the defendant, or one of the defendants, resides or is found, or, when the defendant is a corporation, in the county in which it is situated, or has a place of business; but when the attorney-general files the petition, the action may be brought in the circuit court of Franklin county. (February 7, 1885, 82 v. 16, 39; B. S. 1880; May 1, 1852, 50 v. 267, § 13; March 17, 1838, 36 v. 68, § 1.) Venue must be pleaded. The petition must allege the location of the place of business of the corporation. — See State v. Granville, etc., Society, 11 Oh. 1, 9 (1841). Jurisdiction of circuit court. See State ex rel. v. Buckland, 5 Oh. St. 216 (1855) ; State ex rel. v. Smith, 6 O. C. C. 410 (1892). § 6769. APPLICATION FOR LEAVE TO FILE PETITION, AND NOTICE TO DEFENDANT. — Upon application for leave to file a petition, the court or judge may direct notice thereof to be given to the defendant previous to granting such leave, and may hear the defendant in opposition thereto; and if leave be granted, an entry thereof shall be made on the journal, or, the fact shall be indorsed by the judge on the petition, which shall then be filed. (March 17, 1838, 36 v. 68, § 9.) Leave may be granted at chambers. A judge of the court may, in the exercise of chamber powers, grant leave to file an infor- mation in the nature of a quo warranto. — State ex rel. v. Buckland, 5 Oh. St. 216 (1855). § 6770. ISSUE OF SUMMONS, AND SERVICE.— When the petition is filed without leave and notice, a summons shall issue, and be served as in other cases; and such summons may be sent to and returned by the sheriff of any county by mail, who shall be entitled to the same fees thereon as if it had been issued and returned in his own county. (March 17, 1838, 36 v. 68, § 2.) Time for ans^ver. Where a petition is filed without leave a summons which fixes answer day as the third Saturday after the return day is bad on a motion to quash. Under § 6772 the time for answer is within thirty days after the return of the summons. — State ex rel. v. Robinson, 11 W. L. B. 294 (1884). § 6771. SERVICE BY PUBLICATION.— When a summons is returned not served because the defendant, or its officers or office cannot be found within the county, the clerk shall publish, for four consecutive weeks, in a newspaper published and of gen- eral circulation in the county, and if there is no such newspaper, then in a newspaper printed in this state, and of general circulation in such county, a notice, setting forth the filing and substance of the petition; and upon proof of such publication, the default of the defendant may be entered, and judgment rendered thereon as if the defendant had been served with summons. (March 17, 1838, 36 v. 68, § 13.) Quo Warranto. 631 Pleadings and Judgment in, '§§ 6773-6776. Publication not authorized unless court has jurisdiction. State ex rel. v. Smith, 6 0. C. C. 410 (1892). When nonresidents may be served by publication. In a quo warranto proceeding against a cor- poration, where certain nonresident directors are proper parties, they may be served under this section.— State ex rel. v. Ohio, etc., Ky. Co., 6 0. C. C. 412, 415 (1892). § 6772. PLEADING AFTER PETITION.— The defendant may demur, or file an answer, which may contain as many several defenses as he has, within thirty days after the filing of the petition, if it was filed on leave and notice, or after the return day of the summons; and the plaintiff may file a demurrer or a reply to such answer within thirty days thereafter. (March 17, 1838, 36 v. 68, § 12; B. S. 1880.) Bnles of pleading — not affected by Code. It was not intended to substantially change the rules of pleading by bringing proceedings in quo waiTanto under the code. — State ex rel. V. Walnut Hills Road Co., i3 0. C. C. 375 (1889). See State ex rel. v. Sullivan, 15 0. C. C. 477, 481 (1897). Pleading, The pleadings in quo warranto are not gov- erned by the code, and a defendant may plead double. — State ex rel. v. MeDaniel, 22 Oh. St. 354 (1872). Pleadings, The common-law system, and not that pre- scribed by the Code of Civil Procedure, is to be' followed in proceedings in quo warranto, and, therefore, new matter set up in a replica- tion in quo warranto, in confession and avoid- ance of the plea, is taken as confessed, if not denied. — State ex rel. v. Taylor, 25 Oh. St. 279 (1874). What matter is material as defense. The inquiry in proceedings in quo warranto is limited to the charges in the information, and matter set up by way of plea is only material in so far as it shows warrant in law for the exercise of the authority alleged in the information to be usurped. — State ex rel. v. Cincinnati, 23 Oh. St. 445 (1872). See State ex rel. v. Greenville, etc., Ass'n, 29 Oh. St. 92, 101 (1876). § 6773. COURT MAY EXTEND TIME FOR PLEADING.— An order may be made by the court, or a judge thereof, extending the time within which any plead- ing may be filed; but such order shall not work a continuance of the case. (March 17, 1838, 36 V. 68, § 14.) § 6774. JUDGMENT WHERE OFFICE, FRANCHISE, ETC., FOUND TO HAVE BEEN USURPED. — When a defendant is found guilty of usurping, intruding into, or unlawfully holding or exercising, an office, franchise, or privilege, judgment shall be rendered that such defendant be ousted and altogether excluded therefrom, and that the. relator recover his costs. (March 17, 1838, 36 v. 68, § 15.) § 6775. JUDGMENT WHERE DIRECTOR OF A CORPORATION FOUND TO HAVE BEEN ILLEGALLY ELECTED.— When the action is against a director of a corporation, and the court find that at his election, either illegal votes were received, or legal votes were rejected, or both, sufficient to change the result, judgment may be rendered that the defendant be ousted, and of induction in favor of the person who was entitled to be declared elected at such election. (April 28, 1873, 70 v. 176, § 1; R. S. 1880.) Where election set aside. Where persons claiming office as directors are ousted because of unfair election, their predecessors will be restored to office to con- tinue in the same until their successors are elected and qualified. — State ex rel. v. Bon- nell, 35 Oh. St. 10, 17 (1878). See State ex rel. v. MeDaniel, 22 Oh. St. 354 (1872). § 6776. WHEN COURT MAY ORDER NEW ELECTION IN SUCH CASE.— In a case named in the last section, the court may order a new election to be held, at a time and place, and by judges, appointed by the court, notice of which election, and 632 Private Corporations in Ohio. Judgment in Quo Warranto, etc., §§ 6777-6780. naming tie judges, shall be given for the time and in the manner provided by la-w for notice of elections of directors of such corporations; the order of the court shall become obligatory upon the corporation and its oflBcers when a duly certified copy thereof is served upon its secretary personally, or left at its principal office; and the court may enforce its order by attachment, or in any other manner it deems necessary. (April 28, 1873, 70 v. 176, § 2; R. S. 1880.) § 6777. RIGHTS OF PERSONS ADJUDGED TO BE ENTITLED TO AN OITICE. — If judgment be rendered in favor of the person averred to be entitled to an office, he may, after taking the oath of office, and executing any official bond required by law, take upon him the execution of the office; and he shall immediately thereafter demand of the defendant all the books and papers in his custody or within his power appertaining to the office from which he has been ousted. (March 17, 1838, 36 v.. 68, § 4.)- § 6778. ACTION FOR DAMAGES AGAINST PERSON OUSTED.— Such person may, at any time within one year after the date of such judgment, bring an actioiL against the party ousted, and recover the damages he sustained by reason of such, usurpation. (March 17, 1838, 36 v. 68, § 6.) Attorney fees and expenses in prosecuting quo warranto not recoverable. See Palmer v. Darby, 2 N. P. 401 (1895). § 6779. HOW JUDGMENT OF COURT ENFORCED.— If such defendant refuse or neglect to deliver over any such book or paper pursuant to such demand, he shall be deemed guilty of contempt of court, and shall be fined in any sum not exceeding ten thousand dollars, and imprisoned in the jail of the county until he complies with, the order of the court, or is otherwise discharged by due course of law. (March 17, 1838, 36 V. 68, § 5.) § 6780. JUDGMENT WHEN CORPORATION HAS FORFEITED ITS RIGHTS. — When in any such action, it is found and adjudged that a corporation has, by an. act done or omitted, surrendered or forfeited its corporate rights, privileges, and franchises, or has not used the same during a term of five years, judgment shall be entered that it be ousted and excluded therefrom, and that it be dissolved; and when it is found and adjudged that a. corporation has offended in any matter or manner which does not work such surrender or forfeiture, or has misused a franchise, or exer- cised a power not conferred by law, judgment shall be entered that it be ousted from the continuance of such ofEense, or the exercise of such power. (March 12, 1845, 43 V. 94, § 1.) ■When forfeitures decreed. A corporation may forfeit its charter through neglect or abuse of its franchises; but a forfeiture is not allowed, except under express limitations of the charter, unless a plain abuse or neglect of power, by which the corporation falls to fulfill the design of- its creation, is shown. — State ex rel. v. Commer- cial Bank, 10 Oh. 53.5 (1841); State ex rel. V. Fanners' College, 32 Oh. St. 487 (1877). When court has no discretion. Where a corporation has been guilty of an act which by its charter ia made a cause for the forfeiture of its franchises, and the state, on the relation of the attorney-general, de- mands a judgment of dissolution on account thereof, the court has no discretion to refuse such judgment upon the ground that public or private interest would be better subserved by preserving the existence of the corporation. — State ex rel. v. Pennsylvania, etc.. Canal Co., 23 Oh. St. 121 (1872); State ex rel, v. Oberlin, etc., Ass'n, 35 Oh. St. 258 (1897). See State ex rel. v. Central Ohio, etc., Ass'n, 29 Oh. St. 399 (1876). Discretion of court. Except in the cases mentioned in the pre- ceding note, the court is vested with a discre- tion to determine whether judgment of ouster of the franchise to be a corporation shall be rendered, or A\'hether the corporation shall be ousted from the exercise of the powers ille- gally assumed. — State ex rel. v. Oberlin, etc., Ass'n, 35 Oh. St. 258 (1879); State ex rel. v. Peoples, etc., Ass'n, 42 Oh. St. 579 (1885). E9ect of ouster on third persons. It is not competent for the court, in a quo warranto proceeding ousting a corporation of the right to be a body corporate, to consider Quo Warranto. 633 Judgment in, etc., §§ 6781-6785. or determine the rights or liabilities of third parties who have acquired such rights or lia- bilities in their dealings with such acting corporation. The court has exhausted its jurisdiction when it has adjudged that the corporation be ousted; and such judgment is not retroactive, and does not affect the rights and liabilities of those who have dealt with the corporation. — Society Perun v. Cleve- land, 43 Oh. St. 481 (1885). No forfeiture trithout judgment. There can be no forfeiture without judgment in quo warranto, and its property is not lost by mere nonuser. — Webb v. Moler, 8 Oh. 548 (1838). See State ex rel. v. Bryce, 7 Oh, (pt. 2) 82 (1836). Collateral attack. A forfeiture can only be claimed by the state, and a corporation is not subject to col- lateral attack for misuser or nonuser of its- franchises.— Webb V. Moler, 8 Oh. 548 (1838) ; Toledo, etc., Ey. Co. v. Toledo, etc., Ry. Co., 6 0. C. C. 362, 391 (1892); Benninger v. Gall, 1 C. S. C. 331 (1871); Finnell v. Burt, 2 Handy, 202 (1856). § 6781. APPOINTMENT OF TBtTSTEES WHEN COBPORATION DISSOLVED. — The court rendering a judgment dissolving a corporation shall appoint trustees of the creditors and stockholders of the corporation, who, after giving an undertaking, payable to the state of Ohio, in such sum and with such sureties as the court may designate and approve, conditioned that they will faithfully discharge their trust, and properly pay and apply all money that may come into their hands, shall have power to settle the affairs of the corporation, collect and pay outstanding debts, and divide among the stockholders the money and other property which remain after the payment of debts and necessary expenses. (March 13, 1845, 43 v. 94, § 2.) Effect of ouster on property. Where a decree of ouster is entered against a canal company as to its right to be a cor- poration and its right to operate a canal, there is a forfeiture of the easement of the canal company, and the land reverts to the original owner. — New York, etc., E. K. Co. V. Parmelee, 1 0. C. C. 239 (1885); affirmed 23 W. L. B. 108. AVhen trustees appointed. Where a corporation is ousted of its right to be a corporation, the court must appoint trustees. — See State ex rel. v. Oberlin, etc., Ass'n, 35 Oh. St. 258, 264 (1879). § 6782. POWER AND DUTIES OP TRTTSTEES. — The trustees shall forthwith demand all money, property, books, deeds, notes, bills, obligations, and papers of every description within the custody, power, or control of the officers of the corpora- tion, or either of them, belonging to the corporation, or in any wise necessary for the settlement of its affairs, or for the discharge of its debts and liabilities; and they may sue for and recover the demands and property of the corporation, and shall be jointly and severally liable to the creditors and stockholders, to the extent of its property and effects which come into their hands. (March 17, 1838, 36 v. 68, § 19.^ § 6783. HOW TRUSTEES PLACED IN POSSESSION.— An officer of such corpo- ration who refuses or neglects to deliver over any such money, or other things, pur- suant to such demand, shall be deemed guilty of a contempt of court, and shall he fined not exceeding ten thousand dollars, and imprisoned in the jail of the proper covinty until he complies with the order of the court, or is otherwise discharged by due course of law; and he shall be liable to the trustees for the value of all money, or other things, so refused or neglected to be surrendered, together with all damages that have been sustained by the stockholders and creditors of the corporation, or any of them, in consequence of such neglect or refusal. (March 17, 1838, 36 v. 68, § 20.) § 6784. JUDGMENT FOR COSTS.— If judgment be rendered against a corpora- tion, or against a person claiming to be a corporation, the court may render judgment for costs against the directors or other officers of the corporation, or against a person claiming to be a corporation. (March 17, 1838, 36 v. 68, § 17.) § 6785. PROCEEDINGS TO ENFORCE JUDGMENT ORDERING DELIVERY OP PROPERTY. — In all actions under this chapter, when the judgment is against 634 Private Corporations in Ohio. Judgment in Quo Warranto, etc., §§ 6786-6789. the defendant the court may make an order directing the defendant forthwith to deliver over the books, papers, property, money, deeds, notes, bills, and obligations, to tne persons entitled thereto, or the trustees appointed to receive the same, and may send a transcript of the proceedings, including a copy of such order, to the court of common pleas of the proper county, with a special mandate directing such court to carry the same into effect; upon complaint being made upon aflBdavit to such court of common pleas, of a neglect or refusal to comply with such order, that court shall direct an attachment, returnable forthwith, to issue for the defendant, who may be required to answer under oath touching the premises; and if it appear that the defendant so neglects or refuses, such court shall render judgment of fine or impris- onment, or both, as the court making the order m.ight have rendered. (March 17, 1838, 36 V. 68, § 21.) § 6786. WHEN INJUNCTIONS ALLOWED ANCILLARY TO PROCEEDINGS IN QUO WARRANTO AGAINST BANKING ASSOCIATION.— Any stockholder, or stockholders, owning not less than one-fourth of the capital stock of any banking association actually paid in, or entitled to the beneficial interest therein, may have, pending proceedings in quo warranto against such corporation, an injunction restrain- ing the directors thereof from making any disposition of the assets of such corpora- tion prejudicial to the interests of- such stockholder or stockholders, or inconsistent with their duties as directors. (March 20, 1860, 57 v. 50, § 2.) § 6787. COURT MAY REQUIRE BANK DIRECTORS TO GIVE SECURITY, ETC. — The court, or a judge thereof in vacation, may, upon satisfactory proof that the airectors of such corporation have violated, or are about to violate, any of the fran- chises thereof, require them to give security to the stockholders thereof, to the satis- faction of the court or judge, for the proper discharge of their duties, and for the proper management and security of the assets; and such court or judge may enjoin such directors from paying out or issuing the notes of circulation of such bank, and from incurring any additional liabilities except for the payment of the necessary services of the officers and employes of such oanking association, the amount of which, while such proceedings are pending, shall be under the control of the court. (March 20, 1860, 57 v. 50, § 2.) § 6788. DIRECTORS MAY BE ENJOIITED FROM BORROWING OR ISSUING M:0NEY, etc. — Such court or judge may, on petition, enjoin such directors, from borrowing or issuing, either directly or indirectly, any of the money or assets of such bank for their individual benefit, while such proceedings are pending. (March 20, 1860, 57 V. 50, § 3.) I 6789. LIMITATIONS.— Nothing in this chapter contained shall authorize an action against a, corporation for forfeiture of charter, unless the same be commenced within five years after the act complained of was done or committed; nor shall an action be brought against a corporation for the exercise of a power or franchise under its charter, which it has used and exercised for a term of twenty years; nor shall an action be brought against an officer to oust him from his office, unless within three years after the cause of such ouster, or the right to hold the office, arose. (March 17, 1838, 36 V. 68, § 26.) Ouster from exercise of franchise. A corporation may be ousted in quo war- ranto from the exercise of a power or fran- chise, not conferred by law, where the same has not been exercised for twenty years. — State ex rel. v. Standard Oil Co., 49 Oh. St. 137 (1892) ; State v. Miami Exporting Co., 11 Oh. 126 (1841). Forfeiture for misuse. The ouster of a company from the right to be a corporation, for the misuse of a franchise, is limited for five years from the commission of the offense. — State ex rel. v. Railroad Co., 50 Oh. St. 239 (1893); State ex rel. v. Stand- ard Oil Co., 49 Oh. St. 137 (1892). Quo Warranto. 635 Damages — Precedence of Action, etc., §§ 6790-6793. Use of franchise — exclusive., The use of streets by a gas company for twenty years does not bar an inquiry into the right of the defendant to their exclusive use. — State ex rel. v. Cincinnati, etc., Coke Co., 18 Oh. St. 262 (1866). Ximitation as to officers. The statute commences to run from the time the cause of ouster arose, but if the statute has run, the corporation may remove such officers and make a new case. — Sea State ex rel. v. Beecher, 16 Oh. 358 (1847). 'When statute runs against state. Neither the five years nor the twenty years limitation prescribed in this section bars an action in quo warranto where its object is to oust a corporation from an unwarranted claim to a right or privilege in lands belonging to the state. — State ex rel. v. Railway Co., 53 Oh. St. 189 (1895). No distinctions het^reen actions brought by attorney-general and prosecuting attorney. See State ex rel. v. Standard Oil Co., 49 Oh. St. 137, 188 (1892). A suit ordered by legislature is subject to the statute. See State v. Granville, etc., Society, 11 Oh. 1, 20 (1841). Hovr statute pleaded. The plea setting up the statute, taken as a whole, must show the user of the franchises in question for twenty years, not by the per- formance of a single act, but by a variety of acts which taken together constitute the ex- ercise of the franchise. — See State v. Gran- ville, etc.. Society, 11 Oh. 1, 19 (1841). When proceeding comnienced. A proceeding is commenced when the infor- mation is filed, not when an application is made. — See State v. Granville, etc.. Society, 11 Oh. 1, 20 (1841). § 6790. ACTION FOR DAMAGES AGAINST OFFICERS, ETC., OF OUSTED CORPORATION. — When judgment of forfeiture and ouster is rendered against a corporation because of any misconduct of the ofBcers or directors thereof, a person injured thereby may, at any time within one year thereafter, in an action against such officers or directors, recover the damages he has sustained by reason of such mis- conduct. (March 17, 1838, 36 v. 68, § 22.) § 6791. PROVISIONS OF THIS CHAPTER CUMULATIVE TO OTHER REME- DIES. — Nothing in this chapter contained is intended to restrain any court from enfcrciug the performance of trusts for charitable purposes, at the relation of the prosecuting attorney of the proper county, or from enforcing trusts, or restraining abuses, in other corporations at the suit of a person injured. (March 17, 1838, 36 V. 68, § 24.) § 6792. DISPOSITION OF FINES.— All fines collected under the provisions of this chapter shall be paid into the treasury of the proper county for the use of the common schools within the county. (March 17, 1838, 36 v. 68, § 25.) § 6793. ACTIONS UNDER THIS CHAPTER TO HAVE PRECEDENCE, ETC.— Actions under this chapter in any court shall have precedence of any civil busi- ness pending therein; and the court, if the matter is of public concern, shall, on the motion of the attorney-general or prosecuting attorney, require as speedy a trial of the merits of the case as may be consistent with the rights of the parties. (March 20, 1860, 57 V. 50, § 1.) PART XXX. PENAL CODE. § 6809. Murder by obstructing or injuring a railroad. S 6861. Unlawful meddling with railway property; penalty. § 6862. Throwing or shooting at trains or vessels. § 6919. Corporation may be prosecuted for nuisance; court to order nuisance abated. p 6980. Railways; penalty for violation by engineers of certain duties at or near crossings; obstruction of highways outside of Columbus. § 6980a. Unlawful use or occupation of highways by railway companies in Cincinnati, Cleve- land and Springfield. Bars or gates and watchmen in Cincinnati and Cleveland. Penalty. First right to use or occupancy. Regular trains. § 6981. Riding or driving into inclosureo of railroads, etc. § 6982. Climbing upon railroad cars. § 7231. Summons and indictment against corporations. § 6809. MUEDER BY OBSTRUCTING OR INJURING A RAILROAD.— Who- ever maliciously places an obstruction upon a railroad, or displaces or injures any- thing appertaining thereto, with intent to endanger the passage of any locomotive or car, and thereby occasion the death of another, is guilty of murder in the first degree, and shall be punished accordingly. (March 16, 1863, 60 v. 17, § 1.) See Jones v. State, 51 Oh. St. 331, 341 (1894). § 6861. UNLAWFUL MEDDLING WITH RAILWAY PROPERTY; PENALTY. — That it shall be unlawful for any person or persons without proper authority, to place any obstruction upon any railroad, or any street railway, or any cable railway in this state, or displace, injure, or destroy anything appertaining thereto, or inter- fere with, remove, displace or disarrange any rail, cross-tie, switch, side-track, loco- motive, car or train of cars or other property appertaining to any such railroad, street railway or cable railway, or interfere with, remove, displace or disarrange any flag, lamp or other signal attached to or employed upon any railroad, street railway or cable railway, or upon any railroad car or train of cars, or upon any street railway car or cable railway car, locomotive, switch or other property appertaining to any such railroad, street railway, or cable railway, or remove from, disarrange or destroy any lock, fastening, coupling or attachment on any track, car, switch, stand, tool- house, depot, or other property of any such railroad, street railway or cable railway. Any person violating any of the provisions of this section shall, upon conviction thereof, be fined not more than five hundred nor less than twenty-five dollars and imprisonment in the penitentiary not more than ten years or in the county jail not less than thirty days. (March 12, 1887, 84 v. 81; 82 v. 119; R. S. 1880; 60 v. 17, § 1; 74 V. 252, § 28.) § 6862. THROWING OR SHOOTING AT TRAINS OR VESSELS: PENALTY.— Whoever willfully throws any stone or other hard substance, or shoots any missile at any railroad car, train, locomotive or at any cable railway car, or street railway car, or at any steam vessel or -vater craft of any description used for the purpose of carry- ing passengers or freight, or both, on any of the waters within or bordering on the etate of Ohio, shall be fined not more than five hundred nor less than fifty dollars, [6361 Penal Code. 637 Nuisances — Railroad Crossings, §§ 6919-6980a. and imprisoned in the penitentiary not more than three years or in the "sounty jail not more than six months. (March 12, 1887, 84 v. 81; 81 v. 125; E. S. 1880; 76 V. 11, § 1.) § 6919. COBPOBATIONS MAY BE PROSECUTED EOR NUISANCE; COURT TO ORDER NUISANCE ABATED.— Corporations may be prosecuted by indictment for violation of any of the provisions of sections sixty-nine hundred and twenty- one, sixty-nine hundred and twenty-two, sixty-nine hundred and twenty-three, sixty- nine hundred and twenty-four, sixty-nine hundred and twenty-five and sixty-nine hundred and twenty-six (62 v. 137, § 2; 63 v. 96, § 1); and in every case of convic- ti'on under said sections the court shall adjudge that the nuisance described in the indictment be abated or removed, and may issue an order to the sheriff to execute such judgment at the cost and expense of the defendant. (April 15, 1857, 54 v. 130, I 3; April 12, 1865, 62 v. 137; April 4, 1866, 63 v. 96.) Nuisances. See § 6920 et Beq. § 6980. RAILWAYS: PENALTY FOR VIOLATION BY ENGINEERS OP CER- TAIN DUTIES AT OR NEAR CROSSINGS; OBSTRUCTION OP HIGHWAYS OUT- SIDE OP COLUMBUS. — A person in charge of a locoraotive engine upon any rail- road who fails to bring the engine with the train, if any thereto attached, to a full stop at least two hundred feet before arriving at any railroad crossing or connection, or crosses the same before signaled by the watchman to cross, or before the way is clear, or, when approaching any railroad (road) crossing, fails to sound the engine whistle) at a distance of not more than one hundred nor less than eighty rods from such crossing, or to ring the engine bell continuously from the place aforesaid until the engine and cars attached thereto shall have passed such road or crossing, shall be fined not more than one hundred dollars, or imprisoAed not more than thirty days, or both; or if, by reason of a violation of this section, any person be killed, the per- son in charge of such engine shall be deemed gmlty of manslaughter and punished accordingly; or if a person sustain bodily injury not producing death, the person in charge of such engine shall be imprisoned not more than twenty months nor less than one month, or fined not more than five hxmdred dollars. It is provided further, except in cities of the first grade of the second class, that any person who permits any car or locomotive of which he has charge to remain upon or within thirty feet of the center or across any public road, street or alley, for a period longer than five min- utes, or places any timber or other obstruction upon or across any such road, street or alley, to the hindrance or inconvenience of travel thereon, shall be fined not more than twenty nor less than five dollars. (March 24, 1888, 85 v. 112; R. S. 1880; March 31, 1874, 71 v. 50, § 1; March 25, 1872, 69 v. 49, §§ 1, 2.) Necessity. Note the difference between this section and § 4748. — Lake Erie, etc., R. R. Co. v. Mackey, 63 Oh. St. 370 (1895). § 6980a. UNLAWFUL USE OR OCCUPATION OP HIGHWAYS BY RAILWAY COMPANIES IN CINCINNATI, CLEVELAND AND SPRINGFIELD.— It shall not be lawful in cities of the first and second grades of the first class and cities of the third grade a of the second class for any railroad company, superintendent, agent or other employe thereof, either directly or indirectly, to obstruct, use or occupy any street or other public highway with any locomotive, car, cars or train, by permitting or suffering such locomotive, car, cars or train to remain upon the crossing by any railroad of such street or other public highway, or any part thereof, or by coupling, switching or shifting of locomotives, cars or trains, or the making up of trains across such street or other public highway, or any part thereof, or by moving or stopping 638 Private Corporations in Ohio. Railroads, Trespassing upon, etc. — Indictment, etc., §§ 6981-7231. long freight trains across the same, for a period longer than four minutes at one time; and whenever any such street or other public highway has been thus obstructed, used or occupied, it shall not be lawful for any railroad company, sUTjerintendent, agent or other employe thereof, either directly or indirectly to so obstruct, use or occupy the same, or any part thereof, for a period of five minutes thereafter; BARS OR GATES AND WATCHMEN IN CINCINNATI AND CLEVELAND.— And in cities of the first and second grades of the first class any railroad company or companies so using such street or other public highway, during said period of four minutes, shall provide and maintain suitable bars or gates, and watchmen at such street or ether crossings, to secure and warn the public against the dangers attend- ing such use; PENALTY. — And if any railroad company, superintendent, agent or other employe thereof shall, either directly or indirectly, obstruct, use or occupy such street or other public highway in violation of the aforesaid provisions and prohibi- tions of this section, or shall procure, direct, aid or abet in any such violation, he or they shall be fined not more than one hundred nor less than twenty dollars, or imprisoned not more than thirty days, or both. FIRST RIGHT TO USE OR OCCTTPANCY.— It is further provided, that after the expiration of said period of five minutes, any railroad company other than the one last using such street or public highway, shall have the first right to use or occupy the same for a period not to exceed four minutes; REGULAR TRAINS. — And provided further, that nothing herein shall be so construed as to affect or interfere with the arrival and departure of regular railroad trains moving across such street or other public highway at a rate of speed not to exceed six miles per hour; or to any regular passenger-train occupying any such street or highway for a period less tlian ten minutes, for the purpose of discharging or taking on passengers and baggage at any of its regular passenger stations. (April 14, 1893, 90 V. 188; March 24, 1888, 85 v. *13.) § 6981. RIDING OR DRIVING INTO ENCLOSURES OE RAILROADS, ETC.-^ Whoever, at any other place than at a private crossing, or for any other purpose than crossing such railroad, rides or drives any horse, or other domestic animal, into any inclosure of any railroad, and whoever knowingly permits any such animal to go into, or to remain in, any such inclosure, or places within the same any feed, salt, or other thing, to induce any such animal to enter into such inclosure, or upon the track of any such railroad, and whoever, while constructing any such private crossing, or while crossing such railroad at any private crossing, suffers any fence to remain down or open for a longer tim.e than is necessary to construct or use such crossing, shall be fined not more than ten dollars, or imprisoned not more than thirty nor less than ten days; each ten hours any such animal is knowingly permitted to remain in such inclosure, or upon such track, shall be deemed an additional offense; and animals so being upon such track, or in such inclosure, shall not be exempt from execution for any fine or costs imposed under this section. (February 8, 1875, 72 v. 32; May 14, 1868, 65 V. 194, §§ 1, 2.) § 6982. CLIMBING UPON RAILROAD CARS.— A person who climbs, jumps, steps, or stands upon, or clings, or in any way attaches himself to, any locomotive, engine, or car, upon any part of the track of a railroad, unless in so doing he acts in compliance with law, or by permission under the lawful rules and regulations of the corporation then managing such railroad, shall be fined not more than twenty-five dollars. (May 7, 1877, 74 v. 202, §§ 1, 2.) § 7231. SUMMONS AND INDICTMENT AGAINST CORPORATIONS.— When an indictment is presented against a corporation, a summons commanding the sherifiC Penal Code. 639 Summons and Indictment against Corporations, § 7231. to notify the accused thereof, and returnable on the seventh day after its date, shall is^ue on the precipe of the prosecuting attorney; such summons, together with a copy of the indictment, shall be served and returned in the m.anner provided for service of summons upon such corporation in civil actions; and if the service cannot be made in the county where the prosecution began, then the sheriff may make service in any county of the state upon either its president, secretary, superintendent, clerk, cashier, treasurer, managing agent, or other chief ofScer, or by a copy left at any general or branch office, or usual place of doing business of such corporation, with the person having charge thereof; the corporation, on or before the return day of a summons duly served, may appear by one of its officers, or by counsel, and ansjwer to the indict- ment by motion, demurrer or plea, and upon its failure to make such appearance and answer, the clerk shall enter a plea of " not guilty;" and upon such appearance being made, or plea entered, the corporation shall be deemed thenceforth continuously present in court until the case is finally disposed of. (April 28, 1890, 87 v. 351; R. S. 1880.) Averment of corporate existence. An indictment against a corporation Heed not aver that it is a corporation. If such were the requirement, however, the name, The Company, would sufficiently import that it is a corporation. — State v. Dry Fork Ey. Co. (W. Va.), 40 S. E. Eep. 447 (1901). FORMS. § 148c. APPLICATION BY FOBEIGN CORPORATIONS. , 190.. TO THE SECRETARY OP STATE, COLUMBUS, OHIO. , a foreign corporation organized and existing ■under and by virtue of the laws of the Stat© of , with its principal office located at , in County, , in compliance with an act of the General Assembly of Ohio, entitled " An act to further supplement section 148 of the Revised Statutes," passed May 16th, 1894, requiring a foreign corporation organized for purposes of profit, and owning or using, or which purposes to own or use a part or all of its capital stock or plant in said State of Ohio, before being per- mitted to do business, exercise its franchise or maintain an action therein, under the oath of its president, secretary or other officer, to make and file with the Secretary of State a statement of facts and pay a certain stipulated fee, hereby makes the following declaration : FIRST. The authorized stock of said corporation is Dollars ($. . . .), divided into (....) Shares of the par value of ■. Dollars ($....) each. SECOND. The value of the property owned and used in Ohio, situate at is Dollars ($....). THIRD. The value of the property of the company owned and use outside of Ohio is Dollars (^. . . .). FOURTH. The proportion of the capital stock of the company represented by property owned and used and by business transacted in Ohio is FIFTH. The location of its office or offices in Ohio is at SIXTH. The names and addresses of the officers or agents of the company in charge of its business in Ohio are as follows: Name of President, Address, Name of Secretary, Address, Name of Treasurer, , Address, Names and addresses of managers or agents, other than as above enumerated: IN WITNESS WHEREOF, Said has caused its corporate seal to be affixed and its corporate name to be attached by an officer thereof, to wit, its this day of , A. D. 190 . . . (L- S.) By State of County of ^^^ , being duly sworn, deposes and says, that he is an officer, to wit, the of , that he executed the foregoing statement, in the name and on behalf of said corporation, and caused its corporate seal to be thereto affixed; that he was authorized to make such statement and to execute the same by authority of the corporation, and that the statements therein are true. Sworn to before me and subscribed in my presence, this day of ......... A. D. 190. . (L. S.) r64n 642 Forms. Foreign Corporations under § 148c. S tate cf . I County J" "''• ■ I, , , within and for the county aforesaid, do hereby certify that , whose name is subscribed to the foregoing- acknowledgment as a , was at the date thereof, a , in and for said County, duly com- missioned and qualified, and authorized as such to take said acknowledgment; and further, that I am well acquainted with his handwriting, and believe that the signa- ture to the same is genuine. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of said Court, at , this day of , A. D. 190 . . (L. S.) OFFICE OF THE SECRETABY OF STATE, Columbus, Ohio, , 190 . . From the facts thus reported by the said , I find the proportion of the capital stock of the Company represented by its property and business in Ohio to be per cent, of its authorized capital stock, to wit, the sum. Dollars, on which I have assessed a fee of one-tenth of one per cent., amounting to the sum of Dollars. (L.S.) Secretary of State. RETURN OF FOREIGN CORPORATION UNDER SECTION 148c SHOWING AGGREGATE AMOUNT OF CAPITAL STOCK OWNED OR CONTROLLED BY RESIDENTS OF OHIO, ETC. The Company 190. TO THE SECRETARY OF STATE, COLUMBUS, OHIO. The Company, a foreign corporation organized and existing under and by virtue of the laws of the State of , with its principal office located at , in County, , in compliance with section 148c of the Revised Statutes of Ohio, as amended April 14, 1900, does hereby make its return and statement showing the aggregate amount of all of its capital stock owned and controlled by residents of Ohio, the names and addresses of stockholders, with the number of shares owned by each on the day preceding the second Monday of April, A. D. 1900, together with the assessed value of the property of such company returned for taxation in the name of such corporation in the State of Ohio, and the assessed value of the property of such company returned for taxation outside of Ohio. FIRST. The assessed value of the property returned for taxation in the name of the corporation in the State of Ohio is as follows: Name of county (or counties) Real ■ property, value $ Personal property, value $ Total ? SECOND. The aggregate value of the real and personal property of said corpora- tion returned for taxation in the name of such corporation outside of Ohio, located in the (State or States) is $ THIRD. The following is the aggregate amount of all its capital stock owned or controlled by residents of Ohio, together with the names and addresses of the stock- holders, with the number of shares owned by each, on the day preceding the second Monday of April, A. D. 1900: Names of Stockholders. PostofFiee Address- No. Shares Common Stock. No. Shares Preferred Stock. Par Value Common Stock. Par Value Preferred Stock. Forms. 643 Foreign Corporations under §§ 148c, 148d. Total number shares preferred stock Total number shares common stock Aggregate amount of preferred stock (par value) $ . Aggregate amount of common stock (par value) $ . Total value of common and preferred $. By (Title of officer) State of ) County of \^°-' , being first duly sworn, says that he is the of said , and that the foregoing return and statement is true and correct. Sworn to and subscribed before me and in my presence by the said on this day of , A. D. 190 . . Notary Public. DEPARTMENT OF STATE, Columbus, Ohio, , 1900. As the aggregate amount of all the capital stock of said company, owned or con- trolled by residents of the State of Ohio, is in excess of the assessed value returned for taxation in this State, said stock is taxable in proportion Secretary of State. CERTIFICATE OF SECRETARY OF STATE UNDER § 148c. STATE OF OHIO, DEPARTMENT OP STATE. I, , Secretary of State of the State of Ohio, do hereby certify that , a foreign corporation organized and existing under and by virtue of the laws of the State of , and which has an office or place of business in the State of Ohio located at , on the day of , A. D. 190. . , complied with all the requirements of the act of' May 16th, 1894, as amended April 23rd, 1898, as amended April 14th, 1900, entitled " An act to further supplement section 148 of the Revised Statutes," relating to foreign corporations, and is duly authorized to do business herein. The entire amount of its authorized capital stock is Dollars, of which is represented by property owned and used and by business transacted in the State of Ohio. WITNESS my hand and the seal of the Secretary of State, at the City of Colum- bus, this day of , A. D. 190 . . Secretary of State. APPLICATION OF FOREIGN CORPORATION UNDER § 148d. (Attach copy of articles of incorporation here.) TO THE SECRETARY OF STATE, COLUMBUS, OHIO. , a corporation organized and existing under the laws of the State of , with its principal oifice located at , in County, desiring to conform to the laws of Ohio, regulating foreign corporations doing business therein, does hereby make the following statement: FIRST. The amount of its autliorized capital stock is SECOND. The business or objects of the corporation which it is engaged in carry- ing on, or which it purposes to engage in or carry on in the State of Ohio is 644 Forms. Foreign Corporations under § 148d. THIED. The principal place of business of said corporation in Ohio is to bs located at in County. FOURTH. We hereby appoint , of in County, Ohio, as the person upon whom process may be served in all actions that may be brought against this company in any of the courts of the State, and designate his office in said city as the principal oifice of the company in the State of Ohio. IN WITNESS WHEREOF, Said corporation has caused its corporate seal to be hereto attached, and this certificate to be executed by its President and Secretary, this day of , A. D. 190 . . (Seal) By , President. State of ) County \ ^^■ and , being first duly sworn, depose and say that they did execute and sign the foregoing certificate for and on behalf of said cor- poration, and that the same is their free act and deed, and is the free act and deed of said , of which they are respectively the President and Secre- tary; that the statements therein are true, and that the seal attached thereto is the genuine seal of said corporation; they further declare, on oath, that the charter or certificate of incorporation hereto attached is a true copy of the articles of incorpora- tion or charter of said Sworn to before me and subscribed in my presence, this day of , A. D. 190. . (LS.) , State of ' ss • County of f I , within and for the county aforesaid, do hereby certify that , whose name is subscribed to the foregoing acknowledgment as a , was at the date thereof, a , in and for said county, duly commissioned and qualified, and authorized as such to take said acknowledgment; and further, that I am well acquainted with his handwriting, and believe that the signature to the same is genuine. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of said Court, at this day of , A. D. 190 . . (L-S.) , Ohio, , 190. GENTLEMEN: I hereby accept the appointment as the representative of your company upon v/hom process may be served, and agree to the designation of my office, , as your principal office in the State of Ohio. State of Ohio, County of , ss.: Personally appeared before me, the undersigned, a Notary Public in and for said County, this day of , A. B. 190 . . , the above named , who acknowledged the signing of the foregoing to be his free act and deed for the uses and purposes therein mentioned. WITNESS my hand and official seal on the day and year last aforesaid. (Seal) , Notary Public, in and for County, Ohio. CERTIFICATE OF SECRETARY OF STATE UNDER § 148d. STATE OF OHIO, DEPARTMENT OF STATE. IT IS HEREBY CERTIFIED, That which appears from the papers filed in this office on the day of 189. . to be a Forms. 645 Articles of Incorporation for Profit. Foreign Stock Corporation, organized and existing under the Laws of the State of , has complied with all the requirements of the act of April 25th, 1893, es amended May 19th, 1894, as amended April 23rd, 1898, entitled " An act to regu- late foreign stock corporations," etc., to authorize it to do business in this State, and that the business of such corporation to be carried on in this State, is such as may be lawfully carried on by a* corporation incorporated under the laws of this State for such or similar business. WITNESS my hand and the seal of the Secretary of State, at the City of Columbms, this day of , A. D. 189 . . . Secretary of State. § 3236. FORMS OF ARTICLES OF CORPORATION FOE PROFIT. Note. — The forms following (under the general law) are applicable to co-operative, electric lighting, gas, manufacturing, mercantile, mining, oil, printing, publishing, railroad, telephone and telegraph companies, and generally to corporations having a capital stock, formed under this section, and for the organization of which no special provision is made in subsequent chapters of the Revised Statutes. The forms and methods for incorporating special corporations are similar to those shown here. CORPORATION FOR PROFIT. THESE ARTICLES OF INCORPORATION — of — The Company. WITNESSETH, That we, the undersigned, ? . . . . of whom are citizens of the State of Ohio, desiring to form a corporation, for profit, under the general corpo- ration laws of said State, do hereby certify: FIRST. The name of said corporation shall be The Company. SECOND. Said corporation is to be located at , in County, Ohio, and its principal business there transacted. THIRD. Said corporation is formed for the purpose of FOURTH. The capital stock of said corporation shall be Dollars ($ ), divided into ( ) shares of Dollars ($....) each. IN WITNESS WHEREOF, We hereunto set our hands, this day of , A. D. 190. . * "All " or "a majority." The State of Ohio, County of , ss.: Personally appeared before me, the undersigned, a in and f rsaid county, this day of , A. D. 190 . . , the above named , , and , who each severally acknowledged the signing of the foregoing articles of incorpora- tion to be his free act and deed, for the uses and purposes therein mentioned. WITNESS my hand and ofiicial seal on the day and year last aforesaid. The State of Ohio^ County of , ss. : I, , Clerk of the Court of Common Pleas, within and for the county aforesaid, do hereby certify that , whose name is subscribed to the foregoing acknowledgment as a , was at the LAW GOV. PRIV. COR. — 39. 646 Forms. Articles, etc., for Profit — Statement of Purposes. date cfiereof a , in and for said county, duly commissioned and qualified, and authorized as such to take said acknowledgment; and further, that I am well acquainted with his handwriting, and believe that the signature to said acknowledgment is genuine. IN WITNESS WHEKEOF, I have hereunto set my hand and affixed the seal of said Court, at , this day of *. . . , A. D. 190 . . Clerk. (Clerks are required to use the certificate printed on forms and not attach their own.) form: foe peeferred stock. FOURTH. The capital stock of said corporation, common and preferred, shall be Dollars ($ ), consisting of ( ) Shares of common stock of the par value of Dollars ( ) each, and (....) Shares of preferred stock of the par value of Dollars ($ ) each; the purchasers and owners of the preferred stock shall be entitled to a dividend of per cent, per annum out of the surplus profits for each year in preference to all other stockholders, and may convert such preferred stock into common stock at their election. Note. — See note under forms under § 3254. FORM FOR REAL ESTATE CORPORATION. THIRD. Said corporation is formed for the purpose of dealing in real estate, sub- ject to the provisions of Section 3235 of the Revised Statutes, and is to exist for the term of twenty-five years. FORMS FOR STATEMENT OF PURPOSE OF CORPORATIONS FOR PROFIT. ARCHITECTURAL COMPANY. The KaufEman Architectural Company. (Filed June 25th, 1900. Vol. 83, Page 13.) THIRD. Said corporation is formed for the purpose of making plans, specifica- tions and drawings, making estimates, superintending work, designing and building all kinds of structures and of carrying on and conducting a. general architectural AUDITING COMPANY. The Cincinnati Audit Company. (Filed February 1st, 1901. Vol. 83, Page 634.) THIRD. The corporation is formed for the purpose of auditing books of corpora- tions and firms; also to do any and all such work as may be incident to such auditing. AUTOMOBILE COMPANY. The Cleveland Automobile and Supply Co. (Filed Sept. 17th, 1900. Vol. 83, Page 201.) THIRD. Said corporation is formed for the purpose of purchasing, selling and repairing Automobiles and other self-propelling vehicles, dealing in machinery, mate- rials and all supplies in any way connected therewith, and in general repairing, and renting Automobiles. AGENCY COMPANY. The Graham-Baum Company. (Filed January 19th, 1901. Vol. 83, Page 586.) THIRD. Said corporation is formed for the purpose of acting as an Agency for general insurance, bonding, negotiating loans and transfers of real estate, and doing all things incident thereto. ABSTRACT COMPANY. The Cuyahoga Abstract Company. (Filed April 6th, 1900. Vol. 81, Page 474.) THIRD. Said corporation is formed for the purpose of making and furnishing abstracts and certificates of title to real property and to do a general searching of records. Forms. 647 Articles, etc., for Profit — Statement of Purposes. AIK COOLING COMPANY. The Ohio Bell Pure Air & Cooling Company. (Piled February 6th, 1901. Vol. 78, Page 522.) THIBD. Said corporation is formed for the purpose of ventilating, purifying and legulating the humidity of air and of manufacturing and dealing in all kinds of apparatus, devices and inventions designed for said purposes. BAND COMPANY. The Germania Band and Orchestra Company. (Filed June 13th, 1900. Vol. 81, Page 663.) THIRD. Said corporation is formed for the purpose of furnishing band and orchestra music and generally to do and carry out all things incident to band and orchestra organizations, including the purchase of all necessary music and instru- ments, uniforms and other necessary paraphernalia. BOOT AND SHOE COMPANY. The H. N. Adams Company. (Filed February 9th, 1901. Vol. 83, Page 672.) THIBD. Said corporation is formed for the purpose of buying and selling at -wholesale, and dealing in boots and shoes and kindred merchandise and for doing all things incident thereto. BUTCHEBING COMPANY. The Hooker Sausage Manufacturing Company. (Piled January 19th, 1901. Vol. 83, Page 587.) THIBD. Said corporation is formed for the purpose of carrying on a general •wholesale and retail butcher, provision and food product business, manufacturing of meat foods and a general butcher business in all its branches. BUSINESS COLLEGE. The Jacobs University Company. (Filed January 29th, 1900. Vol. 81, Page 239.) THIBD. Said corporation is formed for the purpose of conducting a general busi- ness college known as The Jacobs Business University, including instruction in book- keeping, banking, penmanship, office practice, shorthand and typewriting, and all hranches of study pertaining to a thorough business education. •BUSINESS COLLEGE COMPANY. The Salem Business College Company. (Filed April 4th, 1900. Vol. 81, Page 464.) THIBD. Said corporation is formed for the purpose of carrying on the ordinary -work of a business or commercial school, and of acquiring and holding the property, -whether real or personal, necessary to carry on such work. BUILDING COMPANY. The Century Building Company. (Filed April 10th, 1900. Vol. 81, Page 481.) THIBD. Said corporation is formed for the purpose of constructing and main- -taining buildings to be used for hotels, store-rooms, offices, warehouses and factories and to acquire by purchase or lease and to hold, use, mortgage and lease all such real «state and personal property as may be necessary for carrying on such business. BAKEBY COMPANY. The Geo. H. Strietmann's Sons Company. (Filed March 18th, 1901. Vol. 87, Page 131.) THIRD. Said corporation is formed for the purpose of manufacturing, buying, selling and dealing in bread, crackers, cakes, biscuit, candies, confectionery and all materials for the same, and doing all things incident thereto. 648 Forms. Articles, etc., for Profit — Statement of Purposes. COOPERAGE COMPANY. The Cleveland Barrel Company. (Filed April 14tli, 1900. Vol. 81, Page 497.) THIKB. Said corporation is formed for the purpose of buying, selling, dealing in and manufacturing barrels, boxes and all kinds of cooperage stock and all things incident thereto for profit. COAL COMPANY. The Albright Coal Company. (Piled April 6th, 1900. Vol. 81, Page 473.) THIRD. Said corporation is formed for the purpose of purchasing and leasing or otherwise obtaining deposits of coal and operating mines for the mining and removing of same and for buying, selling and dealing in coal and coke. COAL COMPANY. The Schafer-Suhr Company. (Filed April ISth, 1900. Vol. 81, Page 512.) THIRD. Said corporation is formed for the purpose of mining coal and dealing in coal, coke, and kindred products, by wholesale and retail, and the transaction of all business incidental thereto and connected therewith; with power and authority to purchase, sell, or lease mineral lands and to purchase, own, lease or control suitable real estate for the transaction of its business. COLLEGE COMPANY. The West Lafayette College. (Filed April 16th, 1900. Vol. 76, Page 434.) THIRD. The purpose for which said corporation is formed is to establish, main- tain and conduct an institution of learning for the purpose of promoting education in all departments of learning and knowledge and especially in those branches usually comprehended in academic, collegiate and university courses; to acquire and hold for said purposes money, real estate, and other property necessary or proper to carry out said objects; and to do any and all things reasonable and necessary to be done to carry out said purposes. CONSTRUCTION COMPANY. The Hoeffer-Peter Construction Company (Filed February 8th, 1901. Vol. 83, Page 663.) THIRD. Said corporation is formed for the purpose of carrying on the general work of a Construction Company, such as grading, laying tjack, ballasting, building bridges, and doing any and all work necessary in making and preparing road-beds for steam, electric, and other railroads, and all contract work relating thereto; also con- struction and contract work of every kind for Cities and Towns; also the construction and erection of buildings, and in general, doing construction and contract work of every kind. CONSTRUCTION COMPANY. The Reed-Haseltine Construction Company. (Filed January 14th, 1901. Vol. 83, Page 568.) THIRD. Said corporation is formed for the purpose of grading and excavating and the construction and erection of bridges, buildings, machinery, railroads, piers, abutments, breakwaters, masonry and other structures and for the purpose of carry- ing on a general construction business. CHINA COMPANY. The Knowles China Company. (Filed April 7th, 1900. Vol. 81, Page 475.) THIRD. Said corporation is formed for the purpose of manufacturing, buying and selling china pottery and earthenware; to decorate and embellish the same- to mine and manufacture and deal in china clay, flint and feldspar and all materials of any nature used in the manufacture of said wares and to acquire, hold and possess and sell real estate and other property necessary for the proper and convenient con- duct of said business for profit. Forms. 649 Articles, etc., for Profit — Statement of Purposes. CHAUTAUQUA COMPANY. The Miami Valley Chautauqua Company. ' (Filed December 24tli, 1900. Vol. 83, Page 491.) ' THIRD. Said corporation is formed for the purpose of holding annual Chautauqua assemblies, encouragement of Religion, Art, Science and Literature, the general dis- semination of knowledge, and to provide social entertainments and other means of recreation and amusements. DAIRY COMPANY. The Rosewood Elgin Butter Company. (Piled June 25th, 1900. Vol. 83, Page 16.) THIRD. Said corporation is formed for the purpose of manufacturing and deal- ing in butter, cheese, cream and all other dairy products. DRIVING PARK COMPANY. The Lake County Driving Park Company. (Filed February 7th, 1901. Vol. 83, Page 658.) THIRD. Said corporation is formed for the purpose of erecting and maintaining a park and grounds, containing drive and speedways for the purpose of recreation and amusement and holding meets therein with horses and vehicles. DIRECTORY COMPANY. The Williams Directory Company. (Filed November 8th, 1900. Vol. 83, Page 343.) THIRD. Said corporation is formed for the purpose of printing and publishing city, county and state directories and of doing a general printing and publishing- business. DRUG AND SANITORIUM COMPANY. The Antimoccolata Hospital Company. (Filed February 2nd, 1901. Vol. 86, Page 170.) THIRD. Said corporation is formed for the purpose of manufacturing, com- pounding, using, buying, selling and dealing in drugs, medicines, surgical instru- ments, chemicals and formulae; erecting, owning and conducting sanitoriums or hospitals for the receiving and caring for patients, and for the medical, surgical and hygienic treatment of the diseases of such patients, and for the instruction of nurses in the treatment of disease and in hygiene, and of doing all things necessary to carry out, or incident to, said purpose. DRUG STORE COMPANY. The City Hall Drug Store Company. (Filed March 12, 1901. Vol. 87, Page 106.) THIRD. Said corporation is formed for the purpose of carrying on a wholesale and retail drug, cigar and tobacco business, buying and selling drugs, druggists' sundries, cigars and tobacco, and also for the purpose of manufacturing, compounding and selling pharmacutical preparations. DRY GOODS AND NOTIONS COMPANY. The Sheldon Dry Goods Company. (Filed January 31st, 1901. Vol. 83, Page 631.) THIRD. Said corporation is formed for the purpose of buying, selling and deal- ing in dry goods, notions, furnishing goods and general merchandise in all their varieties at wholesale, also acquiring by purchase or lease such property both real and personal as may be deemed necessary or convenient for the aforesaid purposes, also doing all such other things and business as may be necessary, convenient or inci- dent to the main purpose of such corporation. 650 Forms. Articles, etc., for Profit — Statement of Purposes. DETECTIVE AGENCY. The Special Police and Detective Bureau Co. (Ffled Nov. 29th, 1899. Vol. 81, Page 59.) THIRD. Said corporation is formed for the purpose of establishing, maintaining and conducting a general and special police and detective modifying bureau and agency; of carrying on every kind of business usually transacted in connection there- Tvith or incidental thereto; and, in general, of acting as principals, agents, contractors, trustees, or otherwise, in obtaining, acquiring, delivering, notifying, aiding or pro- tecting, and of furnishing in any lawful manner information, facts, evidence, cir- cumstances of, relating to, benefiting by, or affecting the business, capital, solvency, insolvency, credit, responsibility, risk, accident, safety, security, condition, standing or relationship of, any or all individuals, firms, associations, corporations engaged in or connected with any matter of a personal, special or general character of any kind whatsoever; and of any business, occupation, industry, or employment, as may be planned or required, which this corporation may think calculated, directly or indi- rectly, to effectuate said purpose; of undertaking, entering into, conducting and carrying out contracts of all kinds pertaining to said business; of buying, owning, iolding, selling, leasing and conveying, or otherwise, such real or personal property as may be incident to or necessary in carrying out the full purpose of said company. EMBALMING FLUID COMPANY. The Clarke Fluid Company. (Filed June 1st, 1900. Vol. 81, Page 637.) THIRD. Said corporation is formed for the purpose of manufacturing, compound- ing, buying, selling and trading in Embalming fluids. Embalming instruments, Embalming tables, disinfectants, antiseptics, deodorizers and anything pertaining to the business of embalming, preserving and caring for the human dead. EXPRESS COMPANY. The Southern Ohio Express Company. (Filed Sept. 20th, 1900. Vol. 83, Page 214.) THIRD. Said corporation is formed for the purpose of doing a general express ■business within said State, carrying and delivering express matter. FENCE COMPANY. The Springfield Fence Manufacturing Company. (Filed February 3rd, 1900. Vol. 81, Page 253.) THIRD. Said corporation is formed for the purpose of growing and manufactur- ing hedge and wire fences, dealing in wire, hedge plants, tools, fence machines, patents pertaining to the same, and such other business as may grow out or on account of the said business. FOUNDRY COMPANY. The Cureton Foundry Company. (Filed December 21st, 1900. Vol. 83, Page 485.) THIRD. Said corporation is formed for the purpose of carrying on the business of a foundry and machine shops, for purchasing and owning the necessary real estate, buildings, machinery, tools, fixtures, supplies, for manufacturing and selling the products of said foundry and machine shop, including iron and steel castings, machinery, and generally to carry on a manufactory in iron and steel products. GAS AND ELECTRIC COMPANY. The Norwalk Gas and Electric Company. (Filed April 20th, 1900. Vol. 81, Page 522.) THIRD. Said corporation is formed for the purpose of manufacturing, producing, furnishing and selling gas and electricity, or either, for light, heat, power and other purposes, and for doing all things incident to said purpose. Forms. 651 Articles, etc., for Profit — Statement of Purposes. NATURAL GAS AND OIL COMPANY. Tlie Columbus Natural Gas and Oil Company. (Filed December 31st, 1900. Vol. 83, Page 519.) THIRD. Said corporation is formed for the purpose of drilling for and accumu- lating petroleum oil and natural gas, buying and selling oil and gas, rights, privileges and leases and oil and gas, leasing oil and gas territory, constructing and operating pipe lines; refining and dealing in oil, and all things incident to said business; also the buying and selling' of and developing of mineral lands, rights and privileges and minerals. ARTIFICIAL GAS COMPANY. The Cleveland Gas and Illuminating Company. (Filed January 26th, 1900. Vol. 81, Page 225.) THIRD. Said corporation is formed for the purpose of manufacturing gas for light, heat and power, to be made from any and all substances, or a combination thereof, from which gas can be obtained, and for the purpose of selling and disposing of the same in the City of Cleveland and elsewhere, with full power to lay pipes and conductors therefor, through the avenues, streets, lanes and alleys thereof, and in such other places as may be necessary or convenient to supply said avenues, streets, lanes and alleys, and any manufactories, public places, buildings, houses, or any other place or building whatsoever with gas, for light, heat and power, together with the power to hold, occupy and employ such real and personal estate and to do such other things as may be necessary or convenient to carry out the objects of this corporation, and to manufacture and sell coke and all other products used in the manufacture of gas. GENERAL STORE COMPANY. The Boon-Bevington Company. (Filed January 11th, 1901. Vol. 83, Page 564.) THIRD. Said corporation is formed for the purpose of doing a general merchan- dise business at wholesale and retail and of buying, selling and dealing at wholesale and retail in dry goods, notions, clothing, gentlemen's furnishing goods, hats, caps, boots, shoes, carpets, groceries, queensware, glassware, wool, live stock, grai^, butter, eggs and other country produce. GLASSWARE COMPANY. The Massillon Bottle and Glass Company. (Filed June Ist, 1900. Vol. 81, Page 638.) THIRD. Said corporation is formed for the purpose of manufacturing, selling, buying and dealing in, glass bottles, glass jars and all other forms and kinds of glassware; and of doing all other acts and things in any way incidental to ot con- nected with such business. HARNESS AND SADDLERY COMPANY. The Queen City Harness and Saddlery Company. (Filed Jan. 22nd, 1900. Vol. 81, Page 206.) THIRD. Said corporation is formed for the purpose of manufacturing, buying, selling and dealing in all kinds of harness, harness makers' supplies, saddlery, col- lars, and all other articles pertaining to the harness trade. And for such purposes to purchase, acquire, lease, own and hold such real estate as may be necessary for the conducting of said business. HOUSE FURNISHING COMPANY. The Smith House Furnishing Company. (Filed February 7th, 1901. Vol. 83, Page 654.) THIRD. Said corporation is formed for the purpose of manufacturing, leasing, buying, selling and dealing in house, store, and other furniture and furnishings and cabinet work of all kinds and to do all things incident thereto including selling said goods on installments. 652 Forms. Articles, etc., for Profit — Statement of Purposes. HEATING COMPANY. The Columbus Heating Company. (Piled April 20th, 1900. Vol. 81, Page 524.) THIRD. Said corporation is formed for the purpose of making and supplying steam and steam heat for both public and private consumption and use; also the supplying of hot water for said use; and the purchase and use of such tools, engines, pipes and other apparati necessarily incident to said business; and to acquire fran- chises and privileges to so supply said steam, steam heat and hot water. PLUMBING AND HEATING COMPANY. The Couture Plumbing and Heating Company. (Piled October 19th, 1900. Vol. 83, Page 282.) THIRD. Said corporation is formed for the purpose of doing the business of plumbing, heating, gas fitting, sewer building, and buying, selling and dealing in all kinds of material and supplies used by or in said above trades or business. Por the pui-pose of owning, manufacturing, selling, leasing for hire and dealing in naechanical devices, machinery and articles of all kinds made and connected and in accordance with any or all letters patent of the United States or foreign countries heretofore or hereafter granted pertaining to said above trades or business. Also to purchase, own and control patents whether domestic or foreign pertaining to said above trades or business and of licensing others to use the same for hire. HOTEL COMPANY. The Hotel Donavin Company. (Filed October 16th, 1900. Vol. 83, Page 274.) THIRD. Said corporation is formed for the purpose of constructing and main- taining buildings to be used for hotels, store rooms, offices, warehouses, factories, etc., and to transact all business authorized by law to be transacted by such a corporation for profit. IRON COMPANY. The Zanesville Iron Company. (Piled February 1st, 1900. Vol. 81, Page 247.) THIRD. Said corporation is formed for the purpose of manufacturing, buying and selling iron and steel and the various products and forms thereof. LOCAL TELEPHONE. The Citizens' Telephone Company. (Filed February 6th, 1900. Vol. 81, Page, 261.) THIRD. Said corporation is formed for the purpose of constructing, maintaining and operating a telephone exchange system in the City of Circleville, Ohio, and in the County of Pickaway in said State. LAUNDRY COMPANY. The New Imperial Laundry Company. (Filed December 27th, 1900. Vol. 83, Page 497.) THIRD. Said corporation is formed for the purpose of conducting a laundry business, and the doing of all things necessary and incidental thereto. LODGE BUILDING COMPANY. The Marietta Elk Building Company. (Filed February 7th, 1901. Vol. 83, Page 660.) THIRD. Said corporation is formed for the purpose of erecting, furnishing and maintaining a building in the City of Marietta, Ohio, to be used and occupied by local lodge Number Four Hundred and Seventy-seven, of The Benevolent and Protective Order of Elks, as a lodge room and club house. Note. — See § 3631-8. Forms. 653 Articles, etc., for Profit — Statement of Purposes. MUSICAL INSTRUMENT COMPANY. The Albert Krell Company. (Filed Oct. 15th, 1900. Vol. 83, Page 270.) THIEB. Said corporation is formed for the purpose of manufacturing, purchas- ing, selling and dealing in all kinds of pianos, organs, automatic pianos, instruments of all kinds, appliances, supplies and all things incident thereto. MILLING COMPANY. The St. Clair Milling Company. (Filed January 31st, 1901. Vol. 83, Page 630.) THIRD. Said corporation is formed for the purpose of owning, controlling and operating flour and grist mills, and for buying and selling, at wholesale and retail, and dealing in, grain, seed, flour, feed and kindred merchandise, and for the purpose of owning all machinery, privileges, real estate and other property needed in carrying on such business, and for doing all things incident to such purposes and business. MEN'S FURNISHING COMPANY. The David M. Nanson Company. (Filed February 7th, 1900. Vol. 81, Page 267.) THIRD. Said corporation is formed for the purpose of dealing in woolens, trim- mings, and fabrics used in connection with the tailoring business; in the manufacture, purchase and sale of custom made and ready made clothing of every kind and nature and for the purpose of dealing in furnishing goods. MILLINERY COMPANY. The J. V. Clement Company. (Filed January 10th, 1901. Vol. 83, Page 555.) THIRD. Said corporation is formed for the purpose of manufacturing, import- ing, buying, selling, jobbing and dealing in millinery of every description and doing all things incident thereto, and for owning and holding such real and personal property as may be necessary or convenient therefor. MASONIC TEMPLE COMPANY. The Masoic Temple Company. (Filed November 5th, 1900. Vol. 83, Page 335.) THIRD. Said corporation is formed for the purpose of erecting, equipping and maintaining a home or Masonic Temple for the Free and Accepted Masons of Warren, Ohio, and vicinity, providing them with suitable lodge, club and reception rooms therein and doing all and singular the acts required and proper in the erection, equip- ment and maintenance of such a building. MESSENGER SERVICE COMPANY. The American District Telegraph Company of Cleveland Co. (Filed December 29th, 1900. Vol. 82, Page 234.) THIRD. Said corporation is formed for the purpose of constructing, maintaining, leasing and operating lines of telegraph for the private use of individuals, firms, corporations, municipal and otherwise, for general business, for police, fire, and burglar alarm telegraph service, and in connection therewith for constructing, own- ing, and operating a general messenger, delivery, and district telegraph service, a general collection, storage, and delivery of packages, freight, and other properties, for the constructing, owning, and operating of a local system of electrical call-boxes for messages, messengers, fire, and burglar alarm signals, and signals for police and fire patrol and night watchmen, and for any other purpose or purposes in connection' therewith or incident thereto; also the manufacture and sale of any and all electrical or other appliances, supplies, and fixtures necessary or incidental to the carrying on of said business, and also to carry on a general electrical construction and supply business, and to generate and supply electricity for any and all purposes. Said company may also act as advertisers, distributors, and general agents for handling the business and collecting and remitting funds in connection therewith, of corporations, firms, or individuals. It may engage in the business of furnishing stationery and advertising matter, devices and novelties of all kinds. 654 Forms. Articles, etc., for Profit — Statement of Purposes. MUTUAL TELEPHONE COMPANY. The Eureka Telephone Company. (Filed February 5th, 1900. Page 259.) THIKD. Said corporation is formed for the purpose of giving its members together with their families and help in business relations free telephone service over any of its lines and to enforce any of its contracts which may be by them entered into by which those entering therein shall agree to be assessed specifically for inci- dental purposes and for the payment of exchange services. MINERAL SPRINGS COMPANY. The Wheeler Mineral Springs Company. (Filed April 5th, 1900. Vol. 81, Page 468.) THIRD. Said corporation is formed for the purpose of preparing, manufacturing, bottling, buying, selling, vending, dealing in and furnishing to dealers and con- sumers, drinking and table w^ater; carbonated water; carbonated and other non-intoxi- cating beverages and to do all things incident thereto, and for the further purpose of manufacturing, buying, selling and dealing in such machinery, tanks, fountains, bottles and other material as may be used in connection with or in or about the prepa- ration, manufacture, dealing in or furnishing such water or beverages and to do all things incident thereto. OIL COMPANY. The Big Four Oil Company. (Filed April 2nd, 1900. Vol. 81, Page 455.) THIRD. Said corporation is formed for the purpose of prospecting and drilling for petroleum oil and gas and other minerals, and for the purpose of producing, handling through pipe lines or otherwise, refining and marketing such oil, gas and other minerals and all products thereof, and for the purpose of leasing, purchasing, acquiring and owning real estate and interests therein, for the purposes aforesaid or incidental thereto. OPERA HOUSE COMPANY. The Neilson Opera House and Entertainment Company. (Filed Jan. 22nd, 1900. Vol. 81, Page 210.) THIRD. Said corporation is formed for the purpose of furnishing facilities for holding musical, theatrical and other entertainments; provide social entertainments and other means of recreation and amusement and to construct, buy, lease, maintain and own such buildings and all such real and personal property as may be necessary or convenient to the successful carrying out of the purposes and objects of said corporation. PRINTING COMPANY. The McDonald Printing Company. (Filed January 31st, 1900. Vol. 81, Page 241.) THIRD. Said corporation is formed for the purpose of publishing, printing, binding, engraving and electrotyping and all branches of said business, also to lease, rent and buy real estate, machinery, tools and fixtures and all necessary parapher- nalia, and for the purchase or manufacture of paper, printer's ink and all materials used in or connected with said business enterprise. RAILROAD CONSTRUCTION COMPANY. The Railroad Construction Company. (Filed Oct. 8th, 1900. Vol. 83, Page 248.) THIRD. Said corporation is formed for the purpose of constructing and equip- ping electrict and steam railways, and furnishing entire equipment therefor. RATING COMPANY. The Rating and Collecting Company. (Filed April 21st, 1900. Vol. 81, Page 525.) THIRD. Said corporation is formed for the purpose of compiling, collecting, publishing and selling commercial credit rating and other directories, collecting accounts, furnishing reports and abstracts and certificates of titled and the perform- ing of such other business as usually pertains to the publishing of reference and other Forms. 6'55 Articles, etc., for Profit — Statement of Purposes. directories, making collections and furnishing financial reports and abstracts and certificates of titles with the right to acquire and hold by lease or purchase, such real and personal estate as may be necessary to the carrying on of said business. STEAM KAILSOAD COSEPANY. The Marietta, Columbus & Cleveland Railroad Company. (Piled Oct. 23rd, 1900. Vol. 83, Page 295.) THIRD. Said corporation is formed for the purpose of acquiring, building, main- taining and operating a railroad in the State of Ohio, with all of the necessary switches, side tracks and turnouts, together with the necessary telegraph and tele- phone lines. Said company's railroad is to begin at the City of Marietta in the county of Washington; thence through said county into the county of Athens, and thence through said county into and through the county of Morgan to the Town of Palos, in Athens county, and thence passing through the counties of Perry, Fairfield and Franklin to the City of Columbus, and thence through said Franklin county and the counties of Delaware, Morrow, Know, Ashland, Holmes, Wayne, Medina, and Cuya- hogo, to the City of Cleveland, in said last named County. SANITARIUM COMPANY. The Toledo Sanitarium Company: (Filed June 2nd, 1900. Vol. 81, Page 643.) THIRD. Said corporation is formed for the purpose of using and applying the remedies for alcoholic and narcotic poisoning, known as The Springer Gold Cures; to establish and conduct one or more sanitariums for the treatment and cure of the liquor, opium, and cocaine hp,bits, nervous diseases, by the said cures; to purchase, lease, own and dispose of all real and personal property essential to and acquired in the conduct of the business; and generally to do and perform all things necessary and incidental thereto. SANITORIUM COMPANY. The Dr. C. E. Sawyer Sanitorium Company. (Filed March 23rd, 1900. Vol. 81, Page 421.) THIRD. Said corporation is formed for the purpose of erecting, owning and con- ducting sanitoriums for the receiving of and caring for patients and for the medical, surgical and hygienic treatment of such patients, and for instruction of nurses in the treatment of disease and hygiene. SHOE COMPANY. The Haas Shoe Company. (Filed February 1st, 1900. Vol. 81, Page 246.) THIRD. Said corporation is formed for the purpose of purchasing and selling and dealing in boots and shoes and all things incident thereto. SCENIC RAILWAY COMPANY. (Filed Aug. 9th, 1900. Vol. 83, Page 115.) THIRD. Said corporation is formed for the purpose of manufacturing, operating and selling Scenic and Pleasure Railways of improved construction covered by letters patent of the United State; to acquire the control of said and future patents upon or in relation to such railways; to introduce said structures into public use; and, in connection with said business, to manufacture, use and vend such articles as may be conveniently and profitably dealt with in that connection; and to acquire and use such property as may be necessary or convenient for the aforesaid business of the company. STATIONERY AND PUBLISHING COMPANY. The Bradley and Sorin Company. (Filed February 1st, 1901. Vol. 83, Page 633.) THIRD. Said corporation is formed for the- purpose of a general wholesale and retail stationery business and a general printing, engraving, publishing, binding and lithographing business and a wholesale and retail office supply business. 656 Forms. Articles, etc., for Profit — Statement of Purposes. TRANSIT COMPANY. The Lake Transit Company. (Filed December 31st, 1900. Vol. 83, Page 514.) THIRD. Said corporation is formed for the purpose of building, purchasing, owning, selling, operating, navigating and handling vessels and all kinds of vessel property together with all such other property, and all such appurtenances and appliances as may be necessary, useful or convenient in connection with the use of such vessel or other property; and of doing all such other things as may be incident in any respect to any of the above enumerated purposes. UNDERWRITING COMPANY. The Federal Underwriting Company. (Piled May 2nd, 1900. Vol. 81, Page 556.) THIRD. Said corporation is formed for the purpose of acting as agent for fire, life, accident and other insurance companies, and also to do a general agency busi- ness for corporations and individuals. VETERINARY COLLEGE COMPANY. The Cincinnati Veterinary College Company. (Filed October 18th, 1900. Vol. 83, Page 279.) THIRD. Said corporation is formed for the purpose of promoting education in the science of veterinary medicine and surgery by providing a full and thorough course of instruction by means of lectures, clinics, demonstrations and otherwise from competent teachers in the different departments of veterinary medicine and surgery. "WALL PLASTER COMPANY. The Akron Wall Plaster Company. (Filed February 4th, 1901. Vol. 83, Page 644.) THIRD. Said corporation is formed for the purpose of manufacturing, selling and dealing in all kinds of wall plaster, cement, concrete and kindred products, and the materials entering into the composition or manufacture of the same, and doing all things incident thereto. WINE OR LIQUOR COMPANY. The M. Hommel Wine Company. (Filed June 22nd, 1900. Vol. 83, Page 5.) THIRD. Said corporation is formed for the purpose of manufacturing and sell- ing at wholesale and retail spiritous malt and vinous, distilled or fermented liquors, wines and other beverages. To acquire and own all such real estate and personal property a,s may be neces- sary or convenient to the successful accomplishment of the above objects and purposes. WATER TRANSPORTATION COMPANY. The Ohio Cooperage Transportation Company. (Filed April 7th, 1900. Vol. 81, Page 465.) THIRD. Said corporation is formed for the purpose of purchasing, chartering, acquiring, owning, handling or operating steamships, vessels and other vessel prop- erty or interest therein; purchasing, constructing or owning all necessary or proper terminal facilities, including all real estate and personal property as may be suitable or necessary thereto and doing all such things as may be properly incident to the above enumerated purposes. FORM OF ARTICLES OF CORPORATION NOT FOR PROFIT. Note. — Corporations not for profit may have a capital stock. THESE ARTICLES OF INCORPORATION — of — The WITNESSETH, That we, the undersigned, of whom are citizens of the State of Ohio, desiring to form a corporation, not for profit, under the general corporation laws of said State, do hereby certify: Forms. 657 Articles, etc., not for Profit — Statement of Purposes. FIRST. The name of the corporation shall be SECOND. Said corporation is to be located, and its principal business transacted at , in County, Ohio. THIBD. The purpose for which said corporation is formed is IN WITNESS WHEREOF, We have hereunto set our hands, this day of , A. D. 1 . . . . Note. — For acknowledgment and certificate, see articles of corporation for profit. FORMS FOR STATEMENT OF PURPOSE OF CORPORATIONS NOT FOR PROFIT. ATHLETIC CLUB. The Business Men's Gym. and Athletic Club. (Filed April 6th, 1900. Vol. 76, Page 424.) THIRD. The purpose for which said corporation is formed is to provide means and facilities for exercise tending to promote physical culture, also rowing, foot ball, liase ball, foot racing, wrestling, boxing and other athletic sports, for the recreation and amusement of the members and guests. ATHLETIC CLUB. The Oxford Athletic Club of Cincinnati, Ohio. (Filed February 1st, 1900. Vol. 76, Page 340.) THIRD. The purpose for which said corporation is formed is for the mutual "benefit of all its members by promoting an interest among themselves in all athletics, "both indoor and outdoor athletics. And to promote social intercourse among its mem- bers. This association is formed not for profit. BUILDERS' EXCHANGE. The Youngstown Builders' Exchange. (Filed April 17th, 1900. Vol. 76, Page 438.) THIRD. The purpose for which said corporation is formed is to maintain and conduct a society, the general object and design of which shall be to cultivate friendly social and business relations among persons connected with building trades in the City of Youngstown, Ohio, and vicinity; to provide facilities for the inter- change of views, and the avoidance or amicable settlement of controversies and dif- ferences amongst its members and their employes; and, in general, to advance and promote all legitimate interests of the building trades of the City of Youngstown, Ohio, and vicinity. CHRISTIAN SCIENCE CHURCH. First Church of Christian Scientist, of Springfield, Ohio. (Filed January 29th, 1900. Vol. 76, Page 335.) THIRD. The purpose for which said corporation is formed is to provide a place of worship, for its members, to be conducted according to the rules and discipline of the Christian Science Church; to promote the interest of Christian religion, and to leceive and hold donations and bequests, and funds arising from other sources, for the benefit of said corporation; and to enjoy all the other incidental rights and privi- leges of a society organized for the principal purposes above mentioned. DEACONESS HOME. The Reformed Deaconess Home and Hospital Association. (Filed April 14th, 1900. Vol. 81, Page 433.) THIRD. The purpose for which said corporation is formed is not for profit, but to care for the sick, the spiritually and physically deetitute and needy and engage in such other forms of charitable and benevolent work which may commend itself from time to time to the Association; to promote the interests of the Christian religion; to receive and disburse donations, to receive and hold bequests and all funds arising from other sources for the benefit of said corporation. Note. — See § 3T67. 668 Forms. Articles, etc., not for Profit — Statement of Purposes. G. A. E. POST. The Jotes Post No. 157 G. A. K. Dept. Ohio. (Eiled April 2nd, 1900. Vol. 7Q, Page 419.) THIKD. The purpose for which said corporation is formed is for patriotic and charitable purposes, and not for profit. FOUKTH. To preserve and strengthen those kind and fraternal feelings which bind together the Soldiers, Sailors and Marines, who united to suppress the late rebellion, and to perpetuate the memory and history of the dead. FIFTH. To assist such former comrades in arms as need help and protection, and to extend needful aid to the widows and orphans of those who have fallen. SIXTH. To maintain true allegiance to the United States of America, based upon a paramount respect for, and fidelity to its Constitution and laws, and for other pur- poses mentioned in the preamble setting forth the objects of said order. HOME FOR THE AGED. The Old Ladies' Home Association. (Filed December 20th, 1900. Vol. 85, Page 16.) THIRD. The purpose for which said corporation is formed is to establish and maintain a home for aged women and such other persons as may be admitted to such a Home. To buy and to hold real estate for the use of said Home, and sell the same when deemed necessary, to build, improve and maintain buildings for said Home, to receive, hold, use and dispose of gifts, donations and bequests for the benefit of said Home, and to do all things necessary to establish, maintain and carry on such Home. KOTE. — See § 3767. MUSICAL CLUB. The Arion Club Company. (Filed June 23rd, 1900. Vol. 83, Page 6.) THIRD. Said corporation is formed for the purpose of the vocal study, the rehearsal and the private and public rendition of concerted music for male and mixed voices, also the employment and presentation of musical artists. MUSICAL CLUB. The Lambs' Musical Club of Cincinnati, Ohio. (Filed February 4th, 1901. Vol. 85, Page 72.) THIRD. The purpose for which said corporation is formed is the study and cul- ture of vocal and instrumental music, and the promotion of social intercourse of its members and all things incident thereto. POLITICAL CLUB. The Young Men's Progressive Club. (Filed April 14th, 1900. Vol. 76, Page 432.) THIRD. The purpose for which said corporation is formed is for the organiza- tion of a political and social club; to promote the study of political institutions and the science of government and to provide a place where its members may enjoy the society of each other and their friends. PUBLIC LIBRARY. The Conneaut Free Public Library Association. (Filed February 5th, 1900. Vol. 76, Page 343.) THIRD. The purpose for which said corporation is formed is the owning, manag- ing, leasing, buying, receiving property in trust for, and accepting and extending donations for a Free Public Library in the village of Conneaut, Ashtabula County, Ohio, and doing all things necessary and incidental to the conducting of said library. SINGLE TAX LEAGUE. The National Land and Tax League of America. (Filed Aug. 29th, 1900. Vol. 76, Page 573.) THIRD. The purpose for which said corporation is formed is a. To institute fundamental reforms in the study and promulgation of sound principles and correct methods concerning Land, Labor, Money, Taxation and other questions of social and economic importance. Forms. 659 Articles, etc., of Kuling Organizations. b. To found and maintain any school, college or university for said purpose. c. To maintain a Lecture Bureau for said purpose. d. To establish and maintain any daily, weekly and monthly papers or journals in furtherance of said purpose. e. To establish minor leagues, clubs and societies and other steps necessary to carry out said purposes. TEHPEBANCE SOCIETY. The Bishop Rappe Temperance Society. (Filed April 11th, 1900. Vol. 76, Page 430.) THIRD. The purpose for which said corporation is formed is to promote the cause of total abstinence. YOUNG MEN'S CHRISTIAN ASSOCIATION. (Piled December 29th, 1893. Vol. 58, Page 687.) THIRD. The purpose for which said corporation is formed is to promote the religious, intellectual, moral, social and physical culture of the young men of Ironton by the employment of the appliances and methods commonly used by similar asso- ciations of the country of same name. YOUNG MEN'S CHRISTIAN ASSOCIATION. The Young Men's Christian Association, of Portsmouth, Ohio. (Filed October 2nd, 1893. Vol. 58, Page 600.) THIRD. The purpose for which said corporation is formed is the physical, mental, social and spiritual improvement of young men. YACHT CLUB. The Lakewood Yacht Club. (Filed December 21st, 1900. Vol. 85, Page 18.) THIRD. The purpose for which said corporation is formed is the encouragement of yachting, the designing and building of yachts, and the promotion of social rela- tions of those interested in yachting. § 3236. FORM OF ARTICLES FOR INCORPORATION OF PRINCIPAL OR RULING ORGANIZATION OVER SUBORDINATE ORGANIZATIONS. (Filed March 14th, 1901. Vol. 82, Page 273.) THESE ARTICLES OF INCORPORATION — of — THE TEAM OWNERS' INTERNATIONAL UNION OF AMERICA, WITNESSETH, That we, the undersigned, all of whom are citizens of the State of Ohio, and all of whom have been duly elected as members of the Principal Organi- zation, by the subordinate organizations heretofore organized, desiring to form a corporation, not for profit, under the general corporation laws of said State, do hereby certify: FIRST. The name of said corporation shall be THE TEAM OWNERS' INTER- NATIONAL UNION OF AMERICA. SECOND. Said corporation is to be located, and its principal business transacted at the time of incorporation at Toledo, in Lucas County, Ohio. THIRD. The purpose for which said corporation is formed is to encourage a higher standard of skill among our members, to cultivate feelings of friendship among our members, to assist each other in securing employment, to reduce the hours of labor, to secure a higher standard of wages for work performed by legal and proper means, and to elevate the moral, intellectual and social condition of our members, and also to further the interest of orgfanized labor, and to be the principal or ruling organization over subordinate organizations. 6'60 Forms. Amendment of Articles, etc. FOURTH. The principal officers of THE TEAM OWNERS' INTERNATIONAL UNION OF AMERICA, and their residences are John S. Rowe, of Toledo, Ohio, President. Arthur W. Welever, of Toledo, Ohio, 1st Vice-President. Frank Cairl, of Toledo, Ohio, 2nd Vice-President. Joseph Manor, of Toledo, Ohio, 3rd Vice-President. Elmer L. Umphenour, of Toledo, Ohio, Trustee. J. M. Smith, of Toledo, Ohio, Trustee. Isaac Davis, of Toledo, Ohio, Trustee. M. J. Fallon, of Toledo, Ohio, Secretary-Treasurer. IN WITNESS WHEREOF, We have hereunto set our hands, this 13th day of March, A. D. 1901. (Acknowledgment, etc., as in other cases.) § 3237. (See form for Steam Railroad Company, page . . . .) Note. — This section should be followed «hen necessary in the organization of railroad, street railroad, avenue, turnpike, common carrier, bridge, pipe line, natural gas, telegraph and telephone companies. § 3238. 1 (See forms of acknowledgment and certificates under § 3236, page . . . .) FORM FOR CONSENT TO USE OF NAME. CERTIFICATE. The Co. consents to the use of the name, the Co. by a corporation proposed to be formed by , , , , and whose articles of incorporation are filed herewith. IN WITNESS WHEREOF, Said the Co. has caused its seal to be hereto affixed and its name signed hereto this day of , 190. . The Co. By President. Secretary. § 3238a. FORMS AND RECORD ENTRIES FOR THE AMENDMENT OF ARTICLES OF INCORPORATION. The articles of incorporation formed under general laws, may be amended as follows: (a) So as to change the corporate name; but no corporation shall change its name by amendment to one already appropriated, or to one likely to mislead the public. (b) So as to change the location of a corporation. (c) So as to modify, enlarge or diminish the purposes for which the corporation is formed; but the capital stock of a corporation cannot be increased or diminished by amendment; nor can its original purpose be substantially changed by amendment; nor shall any corporation by amendment adopt a purpose which is unlawful. (d) So as to add thereto anything omitted from, or which might lawfully have been provided for in such articles originally. 1. Such amendments can only be made by a vote of the holders of three-fifths of the capital stock then subscribed, of a corporation having a capital stock; or by a vote of three-fifths of the members of a corporation having no capital stock. 2. Such amendments may be made at any meeting of the stockholders or members of a corporation, of which meeting, and of the business to come before the same, thirty days' notice has been given by a majority of the trustees or directors of said corporation, in a newspaper published and of general circulation in the county wherein the corporation is located. Such notice may be in the following form: Forms. 661 Amendment of Articles, etc. — Waivers, etc. NOTICE No. 1. NOTICE is hereby given to the stockholders (or members) of (name of corpora- tion), that on the day of , 1 .... , at (place of meeting), there will be a meeting of the stockholders (or members) of (name of the corporation), to consider the subject of amending the articles of incorporation of said (name of the corporation). (The contemplated amendment may be set forth in the notice, but it is probably unnecessary.) (Signatures of a majority of the board of directors or trustees.) A copy of the notice, together with proof of publication, should be entered in the corporate minutes. Whenever ALL of the stockholders, or members, consent thereto in writing, such notice may be WE,ived. Such waiver may be in the following form: WAIVEE OF NOTICE No. 1. , Ohio, 1 . . . . We, the undersigned, being all the stockholders (or members) of (name of the corporation), do hereby waive the giving of the notice required by law of the meeting to be held by the stockholders (or members) of said (name of the corporation), on (time of the meeting), at (place of the meeting), which meeting has been called by a majority of the board of directors (or trustees) of said (name of the corporation) for the purpose of considering the subject of amending the articles of incorporation of said (name of the corporation). (The proposed amendment may also be set forth in the waiver); thus, beginning at the * " so as to change the name of said corporation from (its present name), to (the name proposed)." (Names of all the stockholders [or members] of the corporation.) This waiver should, be entered on the minutes. When signed by stockholders, the number of shares of stock held by each should appear opposite their respective names. 3. Such notice having been given, or waiver made, a resolution, providing for the amendment, must be offered at the meeting held to consider the subject of making same. This resolution, in order that the same may be carried, must receive a three- fifths vote of the stockholders or members. It may be in the following form: AMENDMENT. Resolved, That the articles of incorporation of (name of the corporation) be and the same are hereby amended, so that (set forth the proposed amendment). 4. Said resolution having carried by a three-fifths vote, before the amendment can take effect, notice thereof must be given by the secretary of the corporation for three consecutive weeks in some newspaper of general circulation in the county wherein the corporation is located. This notice may be in the following form: NOTICE No. 3. TO WHOM IT MAY CONCERN: Notice is hereby given, that on , the , day of , 1 . . . . , at a meeting of the stockholders (or members) of (name of the corporation), held at (place of meeting), it was. by a vote of more than three-fifths of its stock- holders (or members), Resolved, That (set forth the resolution adopted). (Secretary of [name of corporation].) This notice may be waived whenever ALL the stockholders, or members, consent thereto in writing. This waiver may be in the following form: WAIVER OF NOTICE No. 2. We, the undersigned, being all of the stockholders (or members) of (name of the corporation), do hereby consent in writing, that the notice by publication required by law, of the amendment made to the articles of incorporation of said (name of the cor- LAW GOV. PRIV. COR. — 40. 6'62 Forms. Corporation Deed. poration), at a meeting of its stockliolders (or members), held on , the day of , 19. ., at (place of meeting), be and the same is hereby waived. (Names of ALL the members or stockholders; when the waiver is signed by stock- holders, the number of shares of stock held by each should appear opposite their respective names.) This waiver should also be entered on the minutes. 5. In addition to the giving of the notice, or the making of the waiver, aforesaid, a copy of such amendment, when adopted, with a certificate thereto affixed, signed by the president and secretary of the corporation, and sealed with the corporate seal, if any there be, stating the fact and the date of the adoption of such amendment, and that such copy is a true copy of the original, must be recorded in the office of the secre- tary of state before such amendment shall take effect. The following is a. form in which such copy and certificate may be made: COPY AND CEBTIFICATE OF AMENDMENT. Copy of Amendment. Resolved, That the articles of incorporation of (name of the corporation) be and the same are hereby amended so that (set forth the amendment). Certificate of Amendment. TO THE SECBETARY OF STATE, COLUMBUS, OHIO: The (name of the corporation), acting by its President and Secretary, hereby cer- tifies that the foregoing is a true copy of the original amendment to the articles of incorporation of (name of the corporation), which was adopted by the votes of the owners of more than three-fifths of its capital stock (or members), at a meeting thereof, held on the day of , 19. . , at (place of meeting), * pursuant to notice, duly given according to law. (If the notice of such meeting was waived begin at the * and say: " notice of which meeting was duly waived in writing as authorized by law.") IN TESTIMONY WHEREOE, the President and Secretary of (name of the corpo- ration), acting for and on behalf of said corporation, have hereunto set their hands and caused the seal of said corporation to be hereto affixed (if the corporation has a seal), this •. . . day of , A. D. 19 . . (Corporate Seal.) , (Name of the corporation.) By , President. y Secretary. XoTE. — This " Copy and Certificate of Amendment " must be filed and recorded in the ofiice of the secretary of state. The fee for such filing and recording is $5.00. The other papers should appear" in the minutes of the corporate meeting, but should not be filed -witli the secretary of state. § 3239. CORPORATION DEED. KNOW ALL MEN BY THESE PRESENTS, etc., * * * * IN WITNESS WHEREOF, The said party of the first part has caused these pres- ents to be signed in its name by its President (or other officer) and its corporate seal to be affixed (if it has a seal) the day and year first above written. Executed and delivered The Co. in the presence of By , President. State of Ohio, / ^^ . County of ] Be it remembered, that on the day of , 1901, personally appeared before me John Doe, a notary public in and for said county, , who is the president of The Co., and acknowledged that the Forms. 6'63 Opening Books of Subscription. name of said company was subscribed to the foregoing instrument by Mm as the president thereof, that the seal aflSlxed thereto is the seal of said company, and that said name was subscribed, and said seal affixed to said instrument by the direction and authority of said company and as its voluntary act and deed for the purpose therein mentioned. President. IN WITNESS WHEBEOF, I have hereunto subscribed my name and affixed my official seal this day of , 1901. Notary Public in and for the County of , Ohio. SHOKT EOBM OF ACKNOWLEDGMENT. Be it remembered, that on the day of , 1901, personally appeared before me, John Doe, a notary public in and for said County, The Co. by , its president, and , its secretary, and acknowledge the signing of the foregoing instrument to be its voluntary act and deed for the purpose therein mentioned. Note. — A seal is unnecessary, but if the corporation has one it should be used. The words successors and assigns should be used instead of heirs and assigns in deeds, etc., to or by corporations. § 3240. KEGULATIONS AS TO TRUSTEES OP COHPOBATIONS NOT FOR PROFIT. (See § 3249.) § 3241. RECORD OF PROCEEDINGS OF CORPORATION NOT FOR PROFIT. (See instructions issued by Secretary of State and forms under § 3252.) § 3242. ORDER FOR, AND WAIVER OF NOTICE OF THE OPENING OF BOOKS OF SUBSCRIPTION. Ohio, , 190 . The undersigned (" all," or a majority) of the subscribers to the articles of incorporation of The Company, do hereby order that books be opened for subscriptions to the capital stock of said company, at the office of in the city of , County of , Ohio, on the day of , 190. . , at o'clock . . M. ; and we do hereby waive in writing the notice by publication of the time and place of such open- ing of books of subscription, required by law. Incorporators. Note. — If all the incorporators are not present to waive notice, or if publication is desired, the order should be changed accordingh', and the notice following should be pub- lished at least thirty days before the books are opened. The corporate records must show the proceedings of incorporators under this section. Minutes of meetings, see forms under § 3254. 664 Forms. Subscription to Capital Stock. NOTICE BY PUBLICATION. Notice of Opening of Subscription Books of The Co. Pursuant to an order this day made, books of subscription to the capital stock o£ The Company will be opened at the office of at the City of , County of , Ohio, at o'clock, P. M. ,Ohio, , , 190.. Incorporators, § 3243. STJBSCEIPTION BOOKS. SUBSCEIPTION TO THE CAPITAL STOCK — of — The Company. We, the undersigned, do hereby subscribe for the number of shares of the capital stock of The Company set opposite our names, and do agree to pay therefor the sum of Dollars per share, ten per cent, on the signing of this subscription and the balance on the call of the Board of Directors. Names. Shares. Note. — ■ Ten per cent, of the capital stock must be subscribed before directors are elected, ten per cent, of the amount subscribed must be paid in at the time of making the subscrip- tions. The incorporators are liable (§ 3244) until ten per cent, of the capital stock is paid in. The directors are liable if elected before ten per cent, is subscribed. (47 O. S. 525). For minutes of meetings, see forms under § 3254. PRELIMINARY SUBSCRIPTION. Note. — Promoters of corporations frequently obtain preliminary subscriptions under the following form: SUBSCRIPTION TO CAPITAL STOCK PRIOR TO ORGANIZATION. WHEREAS, It is proposed to organize, under the laws of the State of Ohio, a. corporation to be known as The Co., or by such other name as the parties in interest may determine; and, WHEREAS, It is proposed that said company shall have a capital stock of Dollars, divided into shares of Dollars each, and shall transact the business of NOW, THEREFORE, The signers hereto, in consideration of their mutual promises, do severally agree to and with each other, and with the promoter or founder of said Company, that they will take, and they do hereby severally subscribe to the capital stock of said Company to the number of shares set opposite their respective names. THIS AGREEMENT is conditioned upon the procuring by said of valid subscriptions of at least Dollars to said capital stock. Dated at , 190. . Names. Shares. Forms. 665 Subscription to Stock — Stockholders' Meetings. § 3244. CEKTIFICATE OF SUBSCRIPTION OF TEN PEB CENT. The Company. CERTIFICATE OP SUBSCRIPTION. , Ohio, , 190 . . TO THE SECRETARY OP STATE, COLUMBUS, OHIO: We, the undersigned incorporators of The Com- pany, do hereby certify that on the day of , 190 . . , all the incorporators of said Company did order, in writing, that books be opened for subscriptions to the capital stock of said Company, at on the day of , 190 . . , at o'clock .... M.; and, at the same time, did waive, in writing, the notice by publication of the time and place of such opening of books of subscription, required by law; and, further, said books having been opened at the time and place ordered, that ten per cent, of the capital stock of said Company has been subscribed. Incorporators. Note. — Whenever ten per cent, of the capital stock has been subscribed, this blank ("Certificate of Subscription") should be tilled out properly, according to the facts recited therein, subscribed by the incorporators, and forwarded to the Secretary of State, at Colum- bus, Ohio. (See section 3244, Revised Statutes of Ohio.) With it must be sent the sum of $2.00, the fee due the State for recording, indexing and furnishing certified copy of same. NOTICE OP PIRST MEETING OP STOCKHOLDERS. Notice is hereby given that the first meeting of the stockholders of The Company will be held at the office of , , Ohio, at .... o'clock .... M. on the day of , 190 . . , for the purpose of electing directors and transacting such other business as may come before the meeting. Incorporators. Note. — The foregoing notice should be published at least thirty days before the day set for the meeting, unless notice is waived in writing by all subscribers to stock. For minutes of meetings, see forms under § 3254. WAIVER OF NOTICE OP PIRST STOCKHOLDERS' MEETING. We, the undersigned, being all the subscribers to the capital stock of The ..... Company, and being all this day present in person or by proxy at the first meeting of the stockholders of said company, at the oflnce of , at , Ohio, at .... o'clock .... M., do hereby waive the notice of such. meeting required by law. Stockholders. Proxies. Shares. FORM OF STOCKHOLDER'S PROXY. KNOW ALL MEN BY THESE PRESENTS, That I, do hereby constitute and appoint to be my lawful attorney, substitute and proxy for me, and in my name to vote upon all the stock held by me 666 Forms. Articles, etc., with Limited Voting Power. in The Company at the meeting of the Stockholders of such corporation to be held on the day of , 190. . , and at any adjourned meeting thereof, as fully and with the same effect as I might or could do were I personally present at such meeting, giving to said attorney and proxy full power of substitution; and I hereby revoke any proxies heretofore given by me to any person or persons whatsoever, this proxy to continue in force until the day of , 190 . . , unless sooner revoked. IN WITNESS WHEEEOF, I have hereunto set my hand this day of , 190. . SHORT FORM OF PROXY. The Co. I, "...., of the city of , State of , being ■the holder of shares of stock of the above-named company, do hereby appoint , of , as my proxy to vote for me and on my behalf at the meeting of stockholders of the above-named company, to be held on the day of , 190 . . Note. — By appropriate words a proxy may be made general or limited as the stock- holder giving the same may desire. § 3245. CERTIFICATE OF ELECTION. We, the undersigned, being the only subscribers to the articles of incorporation of The Co. present at the first meeting of the stockholders of said corporation, held at the office of , on the day of , 190. ., at .... o'clock . . . .M., do hereby certify, that at an election for directors held at such meeting, and at which we acted as inspectors of election, shares of stock were represented, and .... votes were cast in favor of , . . . .votes in favor of (and so on for each candidate). And that at said election , , , , and were each duly elected to the office of director of said corporation, to hold their said offices until the next annual election of directors, or until their suc- cessors are elected and qualified; and we do hereby appoint , the day of , 190 . . , at o'clock .... M., as the time, and as the place, for holding the first meeting of said directors. Incorporators. Tor minutes of meetings, see forms under § 3254. § 3245a. FORM FOR ARTICLES FOR CORPORATION IN WHICH VOTING POWER IS LIMITED. Note. — Add to item fourth of the articles the following: Provided, that each stockholder, irrespective of the amount of stock, shall be entitled to one vote, and no more, at any election of directors or upon any subject submitted at a stock- holders' meeting. § 3246. NOTICE OF MEETING OF STOCKHOLDERS. Notice is hereby given that a meeting of the stockholders of The Co. will be held at the office of the Company on the day of , 190. ., at o'clock .... M., for the purpose of electing directors and trans- Forms. 667 Olncers — Oath, Bond, Vacancies. acting Euch other business as may come before the meeting. This meeting called ty Dated Ohio, , , 190 .. . Secretary. Note. — The notice of the meeting should state by whom the call was made so that fact can go into records. If called by the directors, their records should also show that fact. If the secretary or proper officer refuses to send notices, two members or stockholders may send the same, signing their own names. Notice should be given ten days before the time set for the meeting. The notice of a special meeting should state clearly the business to be transacted. Any notice may be waived by all the stocldiolders. For minutes of meetings, see forms under § 3254. § 3247. OATH OF DIBECTOES. State of Ohio, ) County of j ®®- • and being first duly sworn, say they will faithfully discharge their duties as directors of the . . .^ Co., to the best of their ability. Sworn to before me and subscribed in my presence, this day of , 190. . (Seal) Notary Public, County, O. Note. — The better practice is to write this oath in the corporate records, but If not so written it should be copied in the records. For minutes of meetings, see forms under § 32.54. BOND OF OFFICERS. KNOW ALL MEN BY THESE PRESENTS, That as principal, and and as sureties, are held and firmly bound unto The Co. in the sum of , for the payment of which the^ severally bind themselves, their heirs, executors and administrators. Provided, however, the conditions of this allegation is such, that whereas, has been duly elected of The Co. Now, if the said shall faithfully perform all the duties of said office as provided by the regulations and by-laws of said company, and by the laws of Ohio, then this obligation shall be void, otherwise it shall remain in full force and effect. IN WITNESS WHEREOF, We have hereunto subscribed our names this day of , 190. . Principal. Sureties. Note. — If the records of the corporation do not show the duties of the officer, they should be set out in the bond. If desirable, a clause may be inserted to keep the bond in force so long as the principal may hold the office, whether by subsequent election or otherwise. § 3348. HOW VACANCY IN BOARD FILLED j^fQTE. — It frequently happens that by reason of a change of ownership, it is desired to elect a new board of directors. In such case care should be exercised so as to have a quorum all the time. To illustrate, if there are five directors, two should resign, stock transferred to 668 Forms. Regulations of Corporations for Profit. persons to be elected, a vacancy declared to exist and same filled by appointment and the appointees should immediately qualify by taking oath for faithfully performing their duties. Then two more resignations can be received and the vacancies filled until the old board is out and a new one in. If all the resignations come in at once, the stockholders must fill vacancies. Of course all may tender resignations to take effect on appointment of successors. § 3249. REGULATIONS OF CORPORATIONS FOR PROFIT. Article I. 1. Annual Meeting of Stockholders. — The annual meeting of the stockholders of this company shall be held at the principal office of the company in , Ohio, on the first Monday in January of each year. 2. Special Meetings of Stockholders may be held at such times as may be ordered by the board of directors or by two stockholders, but notice of special meetings shall be given each stockholder appearing on the books of the company, by mailing the same to his last known address, at least ten days before such meeting, or by publica- tion of notice ten days before such meeting. 3. Quorum. — A majority in amount of stock issued and outstanding shall con- stitute a quorum for the transaction of business. Note. — The regulations may provide the time for holding and notice of the annual meetings. It should usually be fixed so as to come after the close of the business each year. Article II. Election of Directors. — The election of directors shall be held at the annual meeting of the stockholders, or at a special meeting called for that purpose. The number of directors shall be and shall hold office one year, or until their successors are elected and qualified. Directors chosen at the first election shall hold office until the time fixed for the next annual meeting, or until their successors are elected and qualified. All directors must be holders of at least shares of the stock of this company. Note. — Not less than five nor more than fifteen directors may be chosen. Annual elec- tion of directors, see § 3246. Article III. Officers. — The officers of the company shall be a President, Vice-president, Secre- tary, Treasurer, and General Manager. The offices of secretary and treasurer may be held by on© person. Said officers shall be chosen by the Board of Directors Dy a majority ballot, and shall hold office for one year or until their successors are elected and qualified, except that officers elected at the first meeting of the directors shall hold office until the next annual meeting of directors, or until their successors are chosen and qualified. All executive officers of the corpcration must be holders of at least shares of the stock of this company. Article IV. 1. President. — The president shall preside at all meetings of stockholders and directors, sign the records thereof and all the certificates of stock, bonds, contracts, notes and other papers executed by this company, and perform generally all the duties usually performed by presidents of like companies, and such further and other duties as may be from time to time required of him by the stockholders or directors. 2. Vice-President. — The Vice-President shall perform all the duties of the Presi- dent in case of the absence or disability of the latter. In case both President and Vice-President are absent or unable to perform their duties, the stockholders or directors, as the case may be, may appoint a president pro tempore. 3. Secretary. — The Secretary shall keep minutes of all the proceedings of the stockholders and directors of this company and make a proper record of the same, which shall be attested by him. He shall keep such books as may be required by the board of directors, and shall have charge of the stock books of the company and shall issue and attest all certificates of stock, and, generally, perform such duties as may be required of him by the stockholders or directors. 4. Treasurer. — The treasurer shall receive and have in charge all money, bills, notes, bonds, and similar property belonging to the company, and shall do with the same as may be ordered by the board of directors. He shall keep such financial accounts as may be required, and on the expiration of his term of office, shall turn Forms. 669 Regulations of Corporations for Profit. over to his successor or to the board of directors, all property, books, papers and money of the company in his hands. 5. General Manager. — It shall be the duty of the General Manager to take churge of and manage the shops, factories, warehouses, and the general business of the company, to see to the employment of heads of departments, and generally to perlorm duties required by him by the board of directors. IfOTE. — State in the regulations hy appropriate words, the duties imposed on the officers. Article V. Compensation of OiHcers. — The compensation of directors shall be such as the stockholders may from time to time fix. The compensation of the secretary, treasurer and general manager shall be fixed by the board of directors, and said officers shall furnish bonds for the faithful performance of their duties in such amounts as the board of directors may require, and with sureties to the satisfaction of the board of directors. Note. — This article should be clianged to comply with the wishes of the stockholders. Article VI. Seal. — The corporate seal of this company shall be circular with the name of the company and the name of the place of its principal office surrounding the word seal. KOTE. — Word this article so as to describe the seal, if it is desired to have one. Article VII. Sale of Property. — All the property of this company may be sold or disposed of in any manner by the board of directors with the consent in writing of the holders of per cent, of capital stock issued and outstanding. Article VIII. Order of Business. — Unless changed by a majority vote, at all stockholders' meetings, the order of business shall be as follows: 1. Reading of the minutes. 2. Reading of reports and statements. 3. Unfinished business. 4. Election of directors. 5. New or miscellaneous business. Article IX. Amendments. — These regulations ma.y be adopted, amended or repealed by the written assent of the owners of two-thirds of the stock of this company, or by the vote of the owners cf a majority of the stock at a meeting called and held for that purpose. Note. — The foregoing will cover all the needs of the ordinary small mercantile or manu- facturing corporation. The articles following will be found useful in some cases. For minuites of meeting adopting regulations, see § 3254. Who May Vote. — At all meetings of stockholders, only such persons shall be entitled to vote in person and by proxy who appear as stockholders upon the transfer books of the corporation for ten days immediately preceding such meeting. Proxies. — The instrument appointing a proxy shall be in writing and subscribed by the appointor, but no person shall be appointed who is not a stockholder of the company and qualified to vote. The instrument appointing a proxy shall be deposited at the office of the company ' not less than twenty-four hours before the time for holding the meeting at which the person named in such instrument proposes to vote, but no instrument appointing a proxy shall be valid after the expiration of six months from the date of its execu- tion, and no proxy shall be used at an adjourned meeting which could not have been used at the original meeting. A vote given in accordance with the terms of an instrument of proxy shall be valid notwithstanding the previous death of the principal or revocation of the appoint- ment, or the transfer of the share in respect of which the vote was given, unless notice in writing of the death, revocation, or transfer shall have been received at the office of the company days at the least before the meeting. Lost, Destroyed or Defaced Certificates. — If any certificate of stock be worn out or defeaced, then upon production thereof to the directors they may order the same to G70 Forms. Regulations of Corporations not for Profit. be canceled, and may issue a new certificate in lieu thereof; and if any certificate be lost or destroyed, then upon proof thereof to the satisfaction of the directors, or in default of proof on such indemnity as the directors deem adequate being given, a new- certificate in lieu thereof shall be given to the party entitled to such lost or destroyed certificate. Lien of Company on Stock. — The company shall have a first and paramount lien upon all shares registered in the name of each stockholder (whether held solely or jointly with others) for his debts, liabilities and engagements, solely or jointly with any other person, to or with the company, whether the period for the payment, fun- fillment or discharge thereof shall have actually arrived or not. And such lien shall extend to all dividends declared on such shares. A copy of this article shall be printed on each certificate. Sale of Stock to Satisfy Lien. — After default on any debt, liability or engage- ment above referred to, on ten days' notice by mail or publication, the directors may sell the shares of the stockholder so in default at either public or private sale and may purchase the same on behalf of the company if the same cannot be otherwise satisfactorily sold. The net proceeds of any such sale shall be applied in or towards satisfaction of the debts, liabilities or engagements of such stockholder, and the residue, if any, paid to him, or his executors, administrators or assigns. Calls. — The directors may from time to time make such calls as they think fit upon the stockholders in respect of all moneys unpaid on the shares held by them, and not by special arrangement made payable at fixed time, and each stockholder shall pay the amount of every call so made on him to the persons, and at the time and the place appointed by the directors. A call may be made payable either in one sum or by two or more installments. A call shall be deemed to have been made at the time when the resolution of the directors authorizing such call was passed. Thirty days' notice at the least of any call shall be given, specifying the time and place of payment, and to whom such call shall be paid. XoTE. — The regulations may further provide for interest on deferred payments or on payments in advance of calls. Inspection of Books. — The books, papers and records of this company shall be subject to the inspection of stockholders only upon the following conditions, (a) that a written application for such inspection be made stating the books, papers or records desired, giving not less than ten days' time for the officers and directors to act on such application, (b) That the applicant must have been the owner in good faith of not less than shares for not less than months immediately preceding the making of such application, and that such applicant satisfy the officers and directors that such inspection is desired for use with reference to the interests of the applicant in this company and not for use with reference to any other interests which may in any way be antagonistic to the interest of this company, and should the officers and directors of this company be satisfied that an applicant has interest? antagonistic to this company in any way, and that the inspection is not desired to further and promote the test interests of this company, then it shall be their duty to refuse the inspection. Should such officers and directors be satisfied that the applica- tion ought to be granted, they shall fix a time for such inspection which shall be convenient to both this company and the applicant. Note. — In view of the recent deci.sion of the supreme coui't, it would seem wise to add an article limiting the right of inspection so as to prevent inspection by puppets of com- petitors, tax inquisitors and others not desiring to protect interests in the company in good faith. REGULATIONS OP CORPORATIONS NOT FOR PROFIT. Article I. 1. Meeting of Members. — The annual meeting of the members of this association shall be held at the rooms of the association in , Ohio, on th,e first Monday in each year. Monthly meetings shall be held at the rooms of the associa- tion on the first Monday of each month, at o'clock .... M. Special meet- ings may be called by the trustees, or of any two members, by giving notice in writ- ing to each member by mail at his last known address, or by publication in some newspaper published in , Ohio. At all meetings a majority of the members shall constitute a quorum. Note. — The regulations may provide the dnte of the annual meeting, and clubs are required to hold their annual election on the 3d Monday in July. See § 3246. Forms. 671 Regulations of Corporations not for Profit. Article II. Election of Trustees. — The election of trustees shall be held at the annual meet- ing of members, or at a special meeting called for that purpose, or at a meeting called by the trustees, or by any two members, notice of which has been given in writing to • each member, by mailing the same to his last known address, or by publication in some newspaper printed in , Ohio, for ten days. The election shall be by, ballot, and a majority of all votes cast shall be necessary to a choice. The number of trustees shall be , and they shall be elected for one year, to hold office until their successors are elected and qualified. Trustees chosen at the first election shall hold office until the next annual election, or until their suc- cessors are elected and qualified. Note. — By section 3240, not less than five trustees shall be elected, and the time of holding office may be reg\ilated. Xote that no maximum number is fixed, and that certain corporations may have three or more trustees. Article III. The Election of Officers. — Officers cf the association shall be President, Vice- President, Secretary, and Treasurer, and they shall be elected for one year, and shall serve until their successors are elected and qualified. Article IV. Compensation of Officers. — The compensation of the officers shall be such as may be fixed from time to time by the members. Article V. Duties of President. — (See Records of Corporation for Profit). Article VI. Duties of Vice-President. — (See Regulations of Corporations for Profit). Article VII. Duties of Secretary. — (See Regulations of Corporations for Profit). Article VIII. Duties of Treasurer. — (See Regulations of Corporations for Profit). Xo'TE. — By appropriate words state the duties of the oflicers so that their powers and duties are clearly defined. Article IX. Qualifications of Members. — By signing the membership roll, and agreeing to follow and be bound by the articles of incorporation, regulations and by-laws of this association, and by paying the initiation fees provided in article 10, any person, etc., may become a member of this association upon the election by four-fifths of the persons present at the meeting. XoTE. — In this article describe clearly the qualifications of the members and condition of initiation. Members of certain organizations need not sign by-laws. Article X. Dues. — Each member shall pay an initiation fee of Dollars, within days after election, and in case of failure to pay the same within said time, the election shall become void. The annual dues of the members shall be Dollars, payable quarterly. Failure to pay dues within thirty days after the same shall become due, shall be a cause for expulsion. Article XI. Suspension and Expulsion of Members. — Any member may be expelled by the board of trustees for failure to pay dues, or for conduct unbecoming a member. Before any such expulsion or suspension shall be ordered, the member charged shall be served with a notice of the proceedings and shall be given an opportunity to be heard, and he shall have the right to appeal from the decision of the board of trustees to the members, and, at his request, the secretary shall call a special meeting of the members of the association to consider the charges preferred against him. Note. — This article should state the grounds for expulsion and suspension and the pro- ceedings to be taken, so that they can be followed when necessity arises. 672 Forms. By-laws of Corporations for Profit. Article XII. Order of Business. — Unless otherwise ordered by a vote of a majority of tlie mem- Tjers present at a meeting, order of business shall be as follows: 1. Reading of the minutes. 2. E sports and statements of officers and committee. 3. Unfinished business. 4. Election of trustees. 5. BTew or miscellaneous business. Article XIII. Repeals and Amendments. — These regulations may be amended or repealed by a -written assent thereto of the members of this association, or by a majority vote of the numbers at a meeting called for that purpose. § 3250. BY-LAWS OF COBPOBATIONS FOR PROFIT. Article I. Meetings. — The regular meetings of the board of directors shall be held at the ■office of the company on the first (name day) of each month, at (name hour) o'clock P. M. Special meetings shall be held on the call of the president or of any director, but reasonable notice of a special meeting and the purpose of the same must be given by jnail to each director. A majority of the board shall constitute a quorum at all meetings. Article II. Vacancies. — In case of any vacancy in the board of directors caused by death, Tesignation or otherwise, such vacancy may be filled for the unexpired term by appointment by a vote of a majority of the board. Note. — The regulations of stoekliolders may provide for vacancies. See § 3248. Article III. Compensation of Officers. ^ The annual salaries of the secretary, treasurer and general manager shall be fixed by contract with such officers, but said officers shall be subject to discharge for good cause. Note. — It is sometimes wise to provide that the amount of salaries shall be fixed by the ;stocliholders. Article IV. Amendments. — These by-laws may be amended or repealed by a majority vote of the board at any regular meeting or at any special meeting called for that purpose. Note. — It is impossible to give the by-laws for building and loan companies and other special corporations. § 3253. NOTICE OF SALE OF STOCK OF THE CO. Notice is given that , a subscriber for shares of the capital stock of The Co., has failed to pay for sixty days a ■call for the payment of an installment on the same, after due notice and demand for the same; therefore, said stock will be sold by the directors of said corporation at public auction at the front door of the office of this corporation on the day of , at o'clock A. M. The Co. by , Dated Secretary. , Ohio, 190. . Note. — Publish as required by § 3253. Forms. 673 stock — Certificate of Preferred, etc. § 3254. BOOK OF STOCK CERTIFICATES. Note. — The company must have a book of stock eertiiieates. The following form is in common use: Certificate No For Shares. Issued to Dated , iso.... Transferred from Dated , i89 No. Original Certificate No. Original Shares No. of Shares Transferred . . Keceived this Certificate: No Shares. THE COMPANY. Capital, $ Shares. Par Value, $ each. This CEaaTiFiES, That is the holder of Shares of Dollars each, fully paid up, of the Capital Stock of The Company, trans- ferable only on the books of the Company, in person or by attorney, on the surrender of this Certificate. Witness the seal of said Company and the signatures of its President and Secretary, at [seal] , Ohio, this day of , 189.... , Secretary , President. On the back of the certificate is usually printed a blank assignment, the form of which may be as follows : Foe Value Received, I hereby sell, transfer and assign to of the shares of capital stock within mentioned, and authorize the Secretary to make the necessary transfer on the books of the Company. Witness my hand this day of , 189 ... . Witnessed bv CERTIFICATE OF PREFERRED STOCK. Number Shares The , Co. This certifies that is entitled to shares of the par value of Dollars per share of the Preferred Stock of The Co., transferable only on the books of the company by the holder thereof, in person or by attorney, on the surrender of this certificate. The holder of this certificate is entitled to non-cumulative (or cumulative) dividends in each year at the rate of six per cent, per annum, payable out of the net earnings of the said company for such year in.pref erence to any dividend on the com- mon capital stock. IN WITNESS WHEREOF, The said company has caused its corporate seal to be affixed hereto, and this certificate to be signed by its president and secretary. (Seal) , President. , Ohio, , , 190 . . Secretary. Note. — It seems that unless otherwise provided, the preferred stockholders participate in the surplus profits remaining after the proper dividends have been declared on the preferred and an equal dividend on the common stock. The following form provides against such result : The preferred stock of this company shall be entitled to dividends at the rate of six per centum per annum, prior to the payment of any dividends upon the common stock, and sucli dividends upon the preferred stock shall be cumulative (or non-cumulative). The preferred stock shall not be entitled to any dividends in excess of said six per cent, and the arrears thereof. CONVERTIBLE PREFERRED STOCK. Note. — When it is desired to permit preferred stock to be converted into common stock add the following: The holder hereof may at his election, on the surrender of this certificate, convert the same into an equal number of shares of common stock. 674 Forms. stock — Books, etc., as to. CERTIPICATE OF STOCK RESERVING LIEN. Note. — When in the organization of banks or other corporations, it is desired to give the company a lien on the stock to secure indebtedness to it, add the following clause to the general form: The said corporation shall at all times have a lien on the stock represented by this cei-- tificate for all indebtedness of the owner of said stock to said company, which lien shall be enforceable as provided by the by-laws of the company and shall have preference over any other lien on said stock by way of pledge or otherwise, nor shall said lien be impaired by a transfer of said stock. FORMS OF STOCK JOURNAL AND LEDGER. Note. — The record of stock transfers is kept in various ways. Some corporations keep one transfer book only, its form combining the features of a journal and ledger. But the better practice is to keep both a stock journal and a, stock ledger. By the aid of these books the history of each share of stock can be traced at all times, however often it may have been transferred. There are many forms of such journals and ledgers, almost every bookkeeper having his own ideas on the subject. The following forms will be readily understood, and answer at least the main purpose desired: STOCK JOURNAL. '■■■■ ','■.■ ■ ''l-'l .' -'-l-r Stock Canceled ^r^-«- Stock Issued. s 1 i ? We.the undersigned. ^ •a 2; 6 Q o m 1896. Jan 2, .. 1 Fi'om The Ohio Company To William Smith 1 $1000 00 $1000 GO Feb. 29. . . 1 1 32 Feb, 1.. $1000 00 The hypothetic.ll entries which appear in the last two forms indicate that on January 2d, 1896, John Jones subscribed for ten shares of the capital stock of The Ohio Company, of the total par value of $1,000.00; that his ledger account is on Polio No. 1 of the Stock Ledger; that the number of the stock certificate issued to him for such ten shares is No. 1; that he has received and receipted for such certificate; that on February 1st, 1896, he assigned the whole of said ten shares to A¥illiam Smith; that on February 29th, 1896, said Smith presented Forms. 675 Record of Proceedings. said certificate to the secretary for transfer, and that a new certificate was issued to him, numbered 32, which was received and receipted for; that the further history of said ten shares begins in the ledger account of said Smith, on Ledger Folio No. 20 ; that when said John Jones subscribed for said shares, he was debited in his ledger account with their par value, $1,000.00; that when he sold the same to said Smith, he was credited with the same amount; and that, as the debit and credit columns in his ledger account then balanced, this showed that his stock account was closed, and that he was no longer a stockholder in the company, having been suc- ceeded by said William Smith, as to his whole holding of stock. Had John Jones sold his stock to mere than one person, it would have been necessary to open an account in the stocic ledger with each assignee. These forms can be changed to meet the individual tastes of any bookkeeper; but whatever be the forms adopted, the facts set out in the last two forms should appear in some shape or other in the forms adopted. See generally as to corporation accounting, " Eahill on Corporation Accounting." RECOKD BOOKS. rorms and Suggestions Eelative to formation of Corporations. Note. — The forms and suggestions following are applicable to the organization of co-operative electric lighting, gas, manufacturing, mercantile, mining, oil, publishing, printing, telephone and telegraph companies, and generally to corporations for profit, formed for vari- ous purposes under chapter one, title two, part second of the Revised Statutes, and for the organization of which no special provision is mode in subsequent chapters of the statutes. Corporations subject to special provisions are incorporated in a similar manner. Kecords. — Upon the filing of the articles of incorporation, a copy of such, articles is furnished by the secretary of state. The record book should then be opened. A blank book should be procured of sufficient size to hold all the records of organiza- tion and of the proceedings, of stockholders and directors. Often a separable book is used for the records of directors, but umle^ the meetings are very frequent, one ho&js. should hold all the records. This book should be given any title that will identify it, as: Record of Proceedings of Incorporators, StockhDlder.s and Birectors of The Co. The following items should be recorded in their order: 1. Copy of articles with certiflcates. 2. Notice, etc, as to opening books. 3. Subscription to stock. 4. Certificate of subscription of ten per cent. 5. First stockholders' meetiiig. 6. First directors' meeting. The substance of all the- entries in the record is as follows: K.ECOBD OF PBOGEEDIWGS OF INCORPQRATOBS, SiTOCKHOLDEBS AND PJBECTOBS OF THE CO. Articles of Incorporation. On the day of , 190 . . , , , , , and , the persons named lielow as subscribers of articles of incorporation, desiring for themselves, their associates, successors and assigns, to become a body corporate under the laws of the State of Ohio, under the name of The Co., did subscribe and acknowl- edge according to law, articles of incorporation, as follows, to wit: (Set out here the articles in full, together with the certificate of acknowledgment, and the certificate of the clerk of the Court of Common Pleas as to the official char- acter of the notary.) Which articles, together with the certificate of acknowledgment and the certificate of the Clerk of the Court of Common Pleas as to the official char- acter of the officer taking such acknowledgment were, on the day of , 190. ., duly filed in the office of the Secretary of State at Columbus, Ohio, and by him recorded, and a certified copy thereof by him furnished to said subscribers. Meeting of Incorporators. Meeting of the incorporators of The Co., held this day of , 190 . . , at the office of , to order the opening of books of subscription to the capital stock of said. The Co., to fix the time and place for such opening and to waive notice of such opening required by law to be given, and, having agreed upon such time and place, G76 Forms. Record of Proceedings. the following order for and waiver of notice of the opening of such boolLS of sub- scription was made in writing by all the incorporators of said company. (Copy form of order and waiver, § 3243.) Subscription to the Ca^pital Stock of The Co. (Copy form of subscription, § 3243.) Certificate of Subscription. On this day of , 190. ., ten per cent, of the capital stock of The Co. having been subscribed, we, being all (or a majority) the subscribers of the articles of incorporation of said corporation, desiring to certify that fact to the Secretary of State under and in accordance with the provi- sions of § 3244 of the Revised Statutes of Ohio, made, executed and filed in the office of the Secretary of State at Columbus, Ohio, a certificate of that fact as follows, to wit: (Copy certificate, § 3244.) Certificate of Incorporators. We, the undersigned, do hereby certify that the foregoing is a true and correct record of the proceedings by us had as incorporators of The Co., in the creation and organization of said company; and we do hereby agree that the first meeting of the stockholders thereof be called and held at the office of , on the day of , 190 . . , at .... o'clock .... M., for the election of directors and the transaction of such other business as may come before such meeting. First Stockholders' Meeting. , Ohio, , 190 . . Pursuant to formal notice given by the subscribers to the articles of incorporation of The Co., to the subscribers to the capital stock of said company to meet at the office of on the day of , 190 . . , at ...... o'clock .... M., for the purpose of electing directors and transacting such other business as might come before said meeting, all the sub- scribers to the capital stock aforesaid met at the time and place above named, and thereupon in person or by proxy did execute a waiver of notice of said meeting, which waiver appears here upon the record of said corporation, as follows, to wit: (Copy waiver of notice, § 3244. If the notice is not waived, recite in the record the publication of notice, giving copy of same.) On the motion of Mr , duly seconded and carried, Mr. was chosen chairman and Mr secre- tary of the meeting. On the motion of Mr , the shares of capital stock of the corpora- tion being cast in the affirmative and no shares of the stock being cast in the nega- tive, it was resolved that the code of regulations hereinafter set forth be adopted as the code of regulations of this corporation, and that the written assent of the stock- holders favoring the adoption of such regulations be recorded in the minutes of this meeting. Regulations. (Copy regulations, § 3249.) Thereupon all the subscribers to the capital stock of The Co., duly executed a written assent to the adoption of the foregoing code of regula- tions, as follows: , Ohio, , 190. . We, the undersigned, being the owners of the number of shares of the capital stock of The Co. set opposite our respective names, do hereby assent in writing to the adoption of the code of regulations hereinbefore set forth, for the government of this corporation. Names. Shares. Thereupon, Mr , Chairman, declared the election of the board of directors next in order. The incorporators of the company were requested by the chairman to act as inspectors of the election. Forms. 677 Election of Directors — Oath, etc. Tlie election of directors was then duly proceeded with, and the names of Messrs, and were placed in nomination as candidates for the office of director. No other names being proposed, a vote by ballot was taken with the following result: , , > , and received , , , , and votes respectively. Thereupon the incorporators of the company as inspectors of the election announced that the persons above named had received the number of votes above stated, and thereupon , , , and were declared elected directors, and the following certificate of said election was made: Certificate of Election of Directors. (Copy certificate, § 3245.) Note. — Frequently stock is paid for by the transfer property and then it is wise to hav the transaction approved by the stoekliolders, about as follows: Thereupon a written proposition from Mr to sell this company certain property therein described was presented to the meeting, said proposition being as follows: Ohio, , 190. . To The Co., Gentlemen. — We hereby ofEer to sell your company (describe property) for the sum of $ , payable in the paid up capital stock of your company; said stock to be issued fully paid up to the undersigned, the same being stock hereto- fore subscribed by them; said property to be received in full payment by your com- pany of said subscriptions. Yours, etc.. On motion of Mr , duly seconded, it was resolved that said proposition be accepted and that the proper officers of the company be "nstr^cted to issue and deliver shares of the subscribed capital stock of the company to the above named parties in the several amounts subscribed by each, the same to be issued as fully paid up, and the contract of subscriptions of the several subscribers aforesaid be fully satisfied and canceled. The chairman having put said resolution, and the same having been fully dis- cussed and explained, the vote on the same was received and declared by the chair- man to be votes in favor of said resolution and none against the same, and said resolution was thereupon declared carried and said proposition accepted. Thereupon, on motion, said meeting was duly adjourned. Attest: ) Chairman. Secretary. Oath of Directors. Note. — Insert form under § 3247 and have the directors and the notary sign the record. First Meeting of Directors. , Ohio , 190.. Pursuant to notice duly given at a stockholders' meeting of the • Co., held at o'clock , on the day of , 190 . . , the directors of said company met at the office of , at o'clock , on the day of , 190 . . , the following directors being present: , , > ' An oath faithfully to perform their duties as directors of said company was taken by said directors before , notary public. The meeting was called to order by Mr , who was duly chosen to act as chairman, Mr being chosen to act as secretary. On motion of Mr , duly seconded, the following code of by-laws for the government of this board was duly adopted. (Insert by-laws. See § 5249.) Thereupon the chairman declared the election of officers next in order, and, nomi- nations having been made and a. ballot taken, Mr was duly LAW GOV. PRIV. COR. — 4I, 678 Forms. Lost or Destroyed Stock — Bond for. elected president, Mr , vice-president, Mr , secretary and treasurer, and Mr , general manager. Thereupon eacli of the above named persons was declared to be duly elected to the respective offices above named, and immediately commenced the performance of official duties. Thereupon the president submitted a report of a proposition made by Mr. , to this company, and accepted by the stockholders. On motion of Mr , the same was accepted by the board of directors for the company and the proper officers of the company were instructed to execute and deliver to the above named persons the amount of stock directed issued to them respectively. Note. — This last clause is to be used when the company is taking property for stock. Thereupon on motion, duly seconded, the board adjourned. Attest , , .■ Secretary. i^ttest , , ^ Secretary pro tem. President. Chairman pro tem. EECOKD ENTEIES FOB ANNUAL OK SPECIAL MEETINGS. , Ohio, , 190. . Pursuant to notice in writing (recite the fact of the call, notice, etc., so as to show that the meeting was legally called) the stockholders of The Company nxet at the office of the company on the day of , 190. ., at o'clock .... M. The president called the meeting to order, and, on roll call, it was found that a quorum (or other necessary number) was present, as follows: Names. Shares. Name of Proxy. The president announced that the first matter in order was the reading of the minutes of the previous meeting, which was done, and the same were approved. The president then called for the reports of officers, which were read and were as follows: (Set forth reports.) There being no unfinished business, the president announced that the election of directors was next in order, and called for nominations. (Proceed as in minutes of first election, stating vote received, etc.) § 3254-1. LOST OR DESTROYED STOCK. BOND OF INDEMNITY. KNOW ALL MEN BY THESE PRESENTS, That we as principal, and and as sureties, are held and firmly bound unto the Co., in the sum of $ to be paid to said The Co., its successors or assigns, for which payment well and truly to be made, we do bind ourselves, our heirs, executors and administrators, jointly and severally. WHEREAS, A certificate for shares of the capital stock of The Co., being certificate number , owned by and standing on the books of the said company in the name of , principal herein, has been lost or destroyed, and cannot be produced by said , and, whereas, at his request, and upon his promises to indemnify and save harmless the said The Co., in the premises and to deliver up said certifi- cate when found, to the said The Co., to be canceled, the said The Co., has this day issued to said a certificate of stock for shares in the place of said certificate so lost or destroyed: Now therefore, the condition of the obligation is such that if the above Forms. 679 Collateral Note. named , and , their heirs, executors, and administrators, or any of them, shall well and truly indemnify and save harmless the said The Co., its successors and assigns from and against the said certificate of stock, any and all damages, costs, charges, and expenses, and all actions or suits, whether groundless or otherwise, by reason of said certificate of stock number , and also deliver up the same, or cause it to be delivered up, when and so soon as the same shall be found, to be canceled, then this obligation shall be void, otherwise, to be and remain in full force and effect. IN WITISTESS WHEREOF, We have hereunto subscribed our names this day of , 190 . . Principal. Sureties. Note. — Where certificates of stock have been lost, destroyed or stolen, the question arises: Shall the newly issued certificates be marked originals or duplicates? If marked duplicates, the shares would be likely to lose the quality of ready sale in the market. The misfortune and carelessness of the loser, however, should not be a possible cause of involving the corporation in a double issue of stock and consequent double liability in respect of the same shares, if both certificates of the same number are issued and remain outstanding as originals. Such liability may not mature for years, but the bond of indemnity, ^ven to secure the second issue, may in the meantime have become worthless. The safer method for the corporation lo pursue is to issue the substitute certificates as duplicates, bear- ing the same numbers, and the words, " Duplicate ; issued in lieu of certificate No , claimed to have been accidentally lost and not negotiated by ," written or printed conspicuously across the face of the certificate. § 3255. BANKER'S COLLATERAL NOTE. $ Toledo, Ohio, , 189. . after date, without grace, for value received, promise to pay to the order of : , at their Bank in the City of Toledo, Ohio, Dollars, with interest, at per cent, per annum, having deposited with them as collateral security for payment of this or any other liability or liabilities of to said , due or to become due, or that may be hereafter contracted, the following property, viz.: ■The market value of which is now ? with the right on their part from time to time to demand such additional collateral security as they may deem suf- :ficient should the market value thereof decline, and also hereby give them a lien for the amount of all the said liabilities upon all the property or securities given unto or left in their possession by the undersigned, and also upon any balance of the deposit account of the undersigned with them. Upon failure to comply with any such demand, this obligation shall forthwith become due, with full power and author- ity to them or their assigns in case of such default or of the non-payment of any of -the liabilities above mentioned at maturity, to sell, assign and deliver the whole, or any part of such securities, or any substitutes therefor or additions thereto, at any l>rokers' board, or at public or private sale, at their option, at any time or times there- after without advertisement or notice to and with the right on their part to become purchasers thereof at such sale or sales, freed and discharged of any equity of redemption. And after deducting all legal or other costs and expenses for collec- tion, sale and delivery, to apply the residue of the proceeds of such sale or sales so made, to pay any, either or all of said liabilities, as to them shall be deemed proper, xetuming the overplus to the undersigned; and will still remain liable for any amount so unpaid. The undersigned do hereby authorize and empower them at their option, at any time, to appropriate and apply to the payment and extinguish- ment of any of the above-named obligations or liabilities, whether now existing or hereafter contracted, any and all moneys now or hereafter in their hands, on deposit or otherwise, to the credit of or belonging to the undersigned, whether the said obli- gations or liabilities are then due or not due. 680 Forms. Collateral Note — Convertible Bonds. § 3255. COLLATERAL NOTE. $ Toledo, Ohio, , 189 . . after date, for value received promise to pay to the order of Dollars, at with interest at the rate of per cent, per annum after having depo'sited as collateral security for the pay- ment hereof the following described property, viz. : the value of which is now $ and hereby give the legal holder hereof full power and authority to sell the same, or any part thereof, or any substi- tutes therefor, or any additions thereto, on maturity of this note, or at any time thereafter, or before in the event of said property depreciating in value in the opinion of said legal holder, at public or private sale, at his discretion, without advertising the same or demanding payment or giving notice, with the right to the said legal holder to be the purchaser himself at any such public or private sale; and after pay- ing all legal and other costs attending the sale and delivery of such property, to apply the residue of the proceeds to the payment of this note and interest in full, returning the surplus to the undersigned; But in case the proceeds of such sale shall not be sufiScient to pay the costs and principal and interest thereof promise to pay such deficiency forthwith, with interest at eight per cent, per annum. Due § 3256. RESOLUTION OF BOARD OF DIRECTORS AUTHORIZING LOAN. Thereupon Mr ofEered, and Mr seconded, the following resolution: j 4.-,. 4. 4.1, Resolved, That this company borrow the sum of $ , and that tne presi- dent and secretary of this company be and are hereby authorized and directed to execute and deliver to (trustee or payee) the bonds of this company, secured by a mortgage on its real and personal estate in the sum of $ , etc. Thereupon the president put said resolution and the following was the vote of the directors: Yea Way Yea Nay Yea Nay Yea ; ; Yea Thereupon said resolution was declared carried. KoTE. — Describe the bonds and mortgage fully in the resolution. In case of an ordinary by § 3257. § 3257. CONVERTIBLE BONDS. Note. — Pass a resolution by the board of directors describing the issue fullyand recit- ing that it is subject to the written assent of the stockhaldcrs as provided in § 3-257. ASSENT OE STOCKHOLDERS. We the undersigned stockholders of The Company, do hereby 'assent in writing to the issue of convertible bonds as provided by the resolu- Forms. 681 Increase of Capital Stock. tion of the board of directors of this company adopted day of 190. . I . Names. Shares. / ■ Note. — Three-fourths of the stockholders and three-fourths of the stock must he repre- sented in the written assent. MOBTGAGES. (Space will not permit the giving examples of various forms of trust mortgages, trust deeds, etc. Consult any good general form book.) § 3262. INCREASE OF CAPITAL STOCK. NOTICE DP STOCKHOLDERS' MEETING. Notice is given that by resolution of the directors of The Company, passed the day of , 190. ., by a majority of said directors, a meeting of the stockholders of said company is called for the day of , 190 . . , at o'clock .... M., at the office of the company, for the purpose of considering and determining as to a proposed increase of the capital stock of said company from $ to $ , or such other amount as may be fixed by said meeting. , Oliio, , , 190 . . Secretary. Note. — The foregoing notice must be given by publication in a newspaper of general circulation, and by mail at least thirty days before the time fixed for the meeting. WAIVER AND AGREEMENT FOR PURPOSE OF INCREASING CAPITAL STOCK. , Ohio, , 190.. We, the undersigned, being all the holders of the capital stock of The Company, and being this day all present, in person or by proxy, at a meeting of said company, * called by a majority of its directors, to consider the sub- ject of increasing the capital stock of said company [if the meeting has not been so called, and at any meeting at which all the stockholders are present, in person or by proxy, it is decided unanimously to make an increase of capital, that portion of the above, beginning at the * should be omitted], do hereby waive in writing the notice of such meeting, by publication and by letter, required by law; and we do also agree, in writing, that the capital stock of said company may be increased from $ , its present capital stock, to $ • • • ? divided into shares, of $ ea,oh. Name of Stockholder. Name of Proxy. No. of Shares. RESOLUTION AND RECORD ENTRY FOR INCREASE OF STOCK. Thereupon Mr ofEered, and Mr seconded, the following resolution: Resolved, That the capital stock of The Compa.ny be increased from $ , its present capital stock, to $ , divided into shares of ^ each; and that the president and secretary of said company be instructed to file a certificate of such increase with the Secretary of State. 682 Forms. Increase of Capital Stock. Thereupon, the president put said resolution and the same was adopted by the vote of the holders of a majority of the capital stock. Note. — Recite in the minutes of the meeting, the call, notice and stockholders present so as to show compliance with the statute; also recite the filing of the certificate with the secretary of state. Do not file anything but the certificate. CERTIFICATE OF INCREASE OF CAPITAL STOCK. , President, and , Secre- tary, of The Company, duly authorized in the premises, and acting on behalf of said Company, do hereby certify, that on the day of , A. D. 1 .... , the capital stock of said Company was fully subscribed for, and an installment of ten per cent, on each share of stock had been paid; that on said day, by a vote of the holders of a majority of the stock of said Company, at a meeting' called by a majority of its directors, and held at the office of the Company, in the of , County, Ohio, and at which meeting all the holders of the capital stock of said Company were present in person or by proxy, and waived in writing the notice by publication and by letter of the time, place and object of such meeting required by law, and also agreed in writing to the increase of capital stock hereinafter set forth, it was, on motion, " Resolved, that the capital stock of said, The Company, be increased from $ , its present capital stock, to $ , divided into shai-es of $ each; and further, that the President and Secretary of said Company be instructed to file a certificate of such increase with the Secretary of State; " which is done accordingly. In Witness Whereof, The aforesaid , President, and , Secretary, of The (Corporate Seal) Company, acting for and on behalf of said Company, have here- unto set their hands this day of , A. D. 1 . . . The Company. By , President. , Secretary. Note. — Change the certificate so as to correctly recite the facts as to the call, agree- ment, etc. CERTIFICATE OF INCREASE BEFORE ORGANIZATION. The undersigned, being all the original subscribers to the capital stock of The Company, do hereby certify, that on the day of , A. D. 190. ., the original capital stock of said Company was fully sub- scribed for, and an installment of ten per cent, on each share of stock paid; that on said day, by unanimous written consent, and by a vote of the holders of all the capital stock of said Company, it was, on motion, " Resolved, that the capital stock of said. The .' Company, be increased from S , its present capital stock, to $ , divided into ......... shares of $ each; and that a certificate of such increase be filed with the Secretary of State." IN WITNESS WHEREOF, We have hereunto affixed our signature, at , Ohio, this day of , A. D. 190 . . Note. — A resolution should be passed and the original consent of stockholders should be entered on the corporate records. § 3263. INCREASE BY ISSUE OF PREFERRED STOCK. WRITTEN ASSENT OF STOCKHOLDERS. We, the undersigned, being the owners of the number of shares of the capital stock of The Co. set opposite our respective names, assent to the incresse of the capital stock of said company from $ to $ , and to the issue of $ (or the whole) cf said increase as preferred stock, in Forms. 683 Increase of Capital Stock. shares of $ each, entitled to dividends, etc., etc. (set out terms and condi- tions of stock). Names. Shares. RESOLUTION AND RECOKD ENTRY OE DIRECTOES. Thereupon Mr oftered and Mr seconded the following resolution: WHEREAS, The three-fourths in number of the stockholders of this company, representing three-fourths of the capital stock of the company, have assented in writ- ing to the increase of the capital stock of this company, therefore, be it Resolved, That the capital stock be and the same is hereby increased, etc., etc. (See resolution below.) Said resolution was put by the president and a vote taken, votes being cast in the affirmative and none in the negative, and said resolution was declared carried. CERTIFICATE OF INCREASE OF CAPITAL STOCK. (Preferred.) The Company hereby certifies that at a meeting of its directors, held at the office of said Company on the day of , A. D. 189 . . , the assent In writing of three-fourths in number of the stockholders, representing more than three-fourths of the capital stock of said Company, having been first previously obtained, the following resolution was adopted, viz. : " Resolved, That the capital stock of said The Company be and the same is hereby increased from $ to $ , and that * of said increase be issued and disposed of as preferred stock, in shares of $ each, and that the purchasers and owners thereof be entitled to receive a dividend on said preferred stock of ........ per cent, per annum, out of the annual profits, in preference to and before any dividend is paid to other stockholders, and that the holders of said preferred stock may, at their election, convert the same into common stock, and the President and Secretary are hereby authorized to carry out the provisions of this resolution, and issue certificates of stock to the subscribers thereof." In Witness Whereof, said The Company, * has caused its corporate seal to be hereto affixed and its Presi- dent, and Secretary to subscribe this certificate, this day of , A. D. 18. . . . The Company. By , President. , Secretary. * " $ " or " the whole." Note. — The above forms have been prepared so as to correspond to the forms approved and adopted by the Secretary of State. In the opinion of the writer, it would be better to have the matter passed on by the stoclcholders, for the reason that the powers of the board of directors cover only the general business of the company. (18 Oh. St. 150, 167; IS Wall [U. S.] 233). RESOLUTION AND RECORD ENTRY OF REDUCTION OF STOCK. Thereupon Mr offered, and Mr seconded, the following resolution: WHEREAS, The persons in whose names a majority of the shares of the capital stock of this company stands on the books of the company have consented in writing to the reduction of the capital stock of this company from $ to $ and the amount of each share from $ to $ Resolved, therefore. That the capital stock of the Com- pany be and the same is hereby reduced from $ to $ and the amount of each share from $ to $ , that certifi- cates for the outstanding stock be issued in accordance with said reduction, on the surrender of the outstanding certificates, and further, that the president and secre- tary of this company be instructed to file a certificate of such reduction with the secretary of state. Thereupon the president put said resolution and the same was adopted. 684 Forms. Change in Number of Directors. WRITTEN CONSENT OF STOCKHOLDERS. , Ohio, , 190 . . We, the undersigned, consent in writing to the reduction of the capital stock of The Company from $ to $ and of each share of stock from $ to $ Names. Shares. CERTIFICATE OF REDUCTION. The Company hereby certifies that at a meeting of the directors, held at the office of the company on the day of . , 190 . . , the consent in writing of the owners and holders, a majority of the shares of the capital stock of said company having been first previously obtained, the follow- ing resolution was adopted: (Recite resolution.) IN WITNESS WHEREOF, Said The Company has caused its corporate seal to be hereto aflixed and its president and secretary to subscribe this certificate, this day of , 190 . . The ; . Company. By , President. § 3267. RESOLUTION AND RECORD ENTRY FOR CHANGE IN NUMBER OF DIRECTORS. Thereupon Mr offered, and Mr seconded, the following resolution: Resolved, That the number of directors of this company be increased from to , that said directors be elected at this meeting and shall hold office until the next annual meeting. The president put said resolution and the following vote was cast: Affirmative, shares; Negative, shares. Thereupon the president declared said resolution adopted. Note. — In ease a manufacturing corporation increases the number of directors at a special meeting the records should show a call as provided in § 3246. The resolution should provide for holding the election. When the resolution is for a decrease and the terms of the acting directors have not expired, the resolution should provide a means of determining who shall retire unless that is agreed upon. § 3268. ANNUAL STATEMENT OF CORPORATION. Statement of The Company for the year ending 190. . (Show assets and liabilities by copy of balance.) LIST OF STOCKHOLDERS. The following persons are the stockholders of this company: Names. Shares. Residence. Respectfully submitted, J Treasurer. Note. — For corporation accounting, see " Corporation Accounting " by J. J. Rahill. Forms. 685 Consolidation Agreements. §§ S505b, 3381, 3443-12, 3470, 3864. AGKEEMENT AND CEETIFICATB OP CONSOLIDATION. AGREEMENT OF CONSOLIDATION — of — The Co. — and — The Co. WHEREAS, The parties hereto are corporations duly organized and existing under the laws of the State of Ohio and desire to consolidate, NOW THEREFORE THIS AGREEMENT WITNESSETH, That the said com- panies acting herein by the authority of resolutions of their respective boards of directors, and subject to the ratification of their respective stockholders, as required by law, in consideration of their mutual covenants, agreements, provisions and grants herein contained and of the benefits to accrue to the parties hereto, do hereby agree to consolidate their business, property franchises and rights, so as to become one cor- poration, and by these presents do merge and consolidate their capital stock, fran- chises and property into one corporation, to be known by the name of The Co., upon the following terms and conditions, to wit: FIRST. All the rights, franchises, privileges, property, appurtenances of every description, choses in action, debts, dues, and demands of each of the parties hereto, shall vest in the consolidated company. SECOND. The consolidated company shall assume and be bound by all the lia- Tjilities and obligations of each of the several companies parties hereto. THIRD. The capital stock of the consolidated company shall be $ , divided into shares of $ each. FOURTH. The directors of the consolidated company shall be in num- ber, and the officers shall be a president, a vice-president, a secretary and a treasurer. The residences of said directors and officers shall be as follows: (In case o.f railroads it is sometimes desirable to ha^e fixed the residence of officers and directors so that all parties in interest will be represented. See, however, § 3385). The names and residences of the first directors of said consolidated company are as follows: Names. Residences. The names and residences of the first officers are as follows: Names. Residences. President Vice-President Secretary Treasurer FIFTH. The manner of converting the capital stock of each of the constituent companies parties hereto into the capital stock of the consolidated company shall be as follows: A. For each share of the capital stock of The Co, surrendered to the consolidated company shall be issued to the holder thereof shares of the capital stock of the consolidated company. B. (Proceed in the same manner with each company). SIXTH. The several constituent companies, each for itself and not for the other, in consideration of the premises, does hereby grant, convey, set over and vest in the said consolidated company, for the purpose of such consolidation, all of the property, rights, privileges, franchises, etc., etc., and powers by it now held, or in or to which it has any right, title, interest or claim either in law or equity wheresoever the same may be situated. IN WITNESS WHEREOF, The said The Co. by its board of directors, has caused its corporate seal to be hereunto affixed and these presents to be signed by its president and secretary, and a majority of its said board of directors have hereunto set their hands this day of , 190 . . : G86 Forms. Articles, etc., of Union Depot Company. and the said The , Co. (proceed as with the first Company). The Co., The Co., By By President. President. Attest. Attest. Secretary. Secretary. Directors. Directors. CERTIPICATE OP CONSOLIDATION. I, , Secretary of The Company, being duly authorized in the premises, do hereby certify that at a meeting- of the stockholders of said company, duly, regularly and separately called and held at the office of , in the City of , County of and State of Ohio, on the day of , 190. ., at which meeting all the stockholders of said company being present in person or by proxy waived, in writing, the written or printed notices of the time and place for holding of said meeting to be given by personal service, mailing, publication or otherwise and consenting in writing that said meeting be then and there held, the original agreement of consolidation of which the foregoing is a true copy, was sub- mitted for consideration and considered, and on a vote by ballot being taken for the adoption or rejection of the same, all the outstanding capital stock of said Company, namely, shares (each of which shares being fully paid and non-assess- able) were cast for the adoption, of said agreement and no vote was cast for the r-ejec- tion of the: same. IN WITNESS WHEREOF, I have hereunto set my hand officially and fixed tjie corporate seal of said Company, this day of , 190 . . (Corporate Seal.) Secretary of The Co. Note. — Attach the certificate of the secretary of each company, making the same eon- form to the facts as to the manner, time and place of calling the meeting, Only two-thirds of all the votes east at the meeting are necessary for the adoption of the agreement. The form here given is the basis of the usual agreement, but further details as to terms, and con- ditions or the manner of carrying the consolidation into effect may be inserted. § 3443-8. AETICLES FOR STREET AND INTERtTRBAN RAILWAY. THIRD. Said corporation is formed for the purpose of constructing, operating^ maintaining and owning a line of street railway for the carrying of passengers and freight to be run by electricity or by some motive power other than steam, with single or double tracks, side tracks, turn-outs, and switches, stations, power houses, shops and stables, telephone and telegraph lines for its own use; of acquiring and holding rea:l estate and all accessories and appliances proper to carry out the purpose Irerein mentioned and with the right to lease, purchase or sub-lease any Jine of street rail- way. Said line of railway shall begin in the city of Columbus, and extend south- westwardly to Grove City, Morgan's Station, Mt. Sterling and Washington C. H., and occupy territory in the counties of Fraoiklin, Madison and Fayette, all in the State of Ohio. § 3446. UNION DEPOT COMPANY. (Filed August 20th, 1872. Vol. 11, Page 180.) The Cleveland, Columbus, Cincinnati and Indianapolis Railway Company, and the Pittsburgh, Cincinnati and St. Louis Railway Company have and do hereby through the presidents of said companies, and by direction of the respective Boards of Directors of said companies, enter into Articles of Association in pursuance of the Forms. 687 Insurance Companies — Articles of. act of the General Assembly of Ohio, entitled " An Act to authorize the incorporation of Union Depots," passed April 3, 1868. WHEREAS, The said companies' lines of railroad connect, at the City of Columhus, in the State of Ohio; and for the purpose of purchasing depot grounds, and locating,, constructing, keeping up, and maintaining a common, or Union Station house, and passenger depot, and a union railroad, by two or more tracks, connecting the rail- roads of said companies, and other railroad for business purposes, the said companies hereby create a Union Depot Corporation under the above-mentioned act. 1. The said Company assumes the name of " UNION DEPOT COMPANY." 2. The names of said two railroad companies creating the said corporation, and uniting in their articles of association are: The Cleveland, Columbus, Cincinnati and Indianapolis Railroad Company and The Pittsburg, Cincinnati and St. Louis Railway Company. 3. The proposed Union Depot and tracks are situated in Columbus, Ohio. 4. The amount of capital stock necessary to obtain a site and construct and main- tain said depot and tracks is fixed at Five Hundred Thousand Dollars ($500,000). The said capital stock to be held and owned in equal proportions, by the above- named corporators, subject to such articles and trusts by each, as they may respec- tively agree upon. 5. The Board of Directors of said Union Depot Company shall consist of six (6) Directors; each of the two stockholders in said depot corporation, or its successors or assigns, holding or owning its said capital stock to appoint three, and each to fill vacancies occurring among the three members appointed by it. The concurrence of two-thirds of said Directors shall be necessary to constitute an act of the Board. The capital stock of the Pittsburgh, Cincinnati and St. Louis Railway Company in said Union Depot Company to be subject to such trusts and conditions as may be agreed upon between the Pittsburgh, Cincinnati and St. Louis Railway Company and the Little Miami and Columbus and Xenia Railroad Companies. IN WITNESS WHEREOF, The Presidents of said Companies, in behalf of said Companies, have hereunto signed their names, and annexed the corporate seals of said Companies this seventeenth day of July, A. D. 1872. The Cleveland, Columbus, Cincinnati and Indianapolis Railwa,y Company. By Oscar Townsend, Attest. President. Geo. Russell, Secy. (Seal.) The Pittsburgh, Cincinnati, and St. Louis Railway Company. By Thomas A. Scott, Attest. President. W. H. Barnes, Secy. (Seal.) § 3588. ARTICLES FOR LIFE INSURANCE CO. ARTICLES OF INCORPORATION — of — THE NORTHERN CENTRAL LIFE INSURANCE COMPANT. ■We, the undersigned, citizens of the State of Ohio, desiring to become a body cor- porate under the laws of the State of Ohio, have associated ourselves together to form a joint stock insurance eonxpany, to insure the lives of persons upon the stock plan, and we do hereby certify that the name assumed by such Company is The Northern Central Life Insurance Company; that the object for which said Company is formed is to insure the lives of persons in and out of the State of Ohio; that the capital stock of said Company is $100,000; that the place where the principal oflH.ce of said Company is located is the City of Toledo, Lucas County, Ohio, and that said Company proposes to adopt the following charter: CHARTER. 1. The name of said Company shall be THE NORTHERN CENTRAL LIFE INSURANCE COMPANY. 2. Said corporation is to be located at Toledo in Lucas County, Ohio, and its principal business there transacted. 688 Forms. Insurance Companies — Articles of. 3. The said corporation is formed for the purpose of insuring the lives of persons upon the stock plan. 4. The corporate powers of said Company are to be exercised according to the provisions of Chapter 10 of the Revised Statutes of Ohio and of the By-Laws of said Company. 5. The number of Directors of said Company is nine (9), all of whom are stock- holders, and which number may be increased at the will of the stockholders repre- senting a majority of the stock, to *ny number not exceeding twenty-one (31). Said Directors sh^l be elected at the annual meeting of the stockholders on the second Tuesday of January, and the other officers of said Company shall be elected annually by the Board of Directors, at the first regular or special meeting after said annual election. A majority of said Directors shall be residents of the State of Ohio, and in the event of a vacancy occurring in said Board by death or otherwise, the same shall be filled by the unanimous vote of the Board of Directors until the next annual election. 6. The capital stock of said Company shall be One Hundred Thousand Dollars <$ 100,000), divided into four thousand (4,000) shares of Twenty-five Dollars ($25.00) each. (Signatures of not less than thirteen incorporators, acknowledgment before notary and clerk's certificate in usual form.) Note. — This form, with the exception of that part pertaining to the objects of the cor- poration, may be used in the subsequent articles relative to insurance companies. § 3630. MTJTITAL PEOTECTION ASSOCIATIONS. The Ultra Standard Life Insurance Company. THIRD. The purpose for which said corporation is formed is to transact the business of life insurance on the assessment plan, for the purpose of mutual protec- tion and relief of its members, and for the payment of stipulated sums of money to the families, heirs, executors, administrators or assigns of deceased members of such company, as the member may direct, as may be provided in the by-laws, and may receive money by voluntary donation or contribution, or collect the same by assess- ments on its members, and may accumulate, invest, distribute and appropriate the same in such manner as it may deem proper, according to section 36S0, Revised Statutes of Ohio. The Mutual Beneficial Association of Delaware, Ohio. THIRD. The purpose for which said corporation is formed is to transact the business of industrial life insurance on the assessment plan for the purpose of mutual protection and relief of its members under section 3630 of the Revised Statutes, and for the payment of stipulated sums of money to the families, heirs, executors, administrators or assigns of the deceased members of such Company or Association, in such manner as may be prescribed by the rules and regulations of the association, not inconsistent with the laws of Ohio, and so as to carry out the objects and purposes of the association as above expressed. The Cleveland Commercial Travelers' Association. THIRD. That our purpose is to afford mutual protection and relief to our mem- bers, and to pay stipulated sums of money to the families, heirs, executors, adminis- trators or assigns of the deceased members of our association, as the members may direct, in such manner as may be provided in our by-laws, and to pay stipulated sums of money to our members in case of partial or totally disabling injuries, as may also be provided and directed in our by-laws. § 36301. ACCIDENT INSURANCE CO. The Mutual Accident Life Insurance Company. THIRD. The purpose for which said corporation is formed is for the insuring of individuals against accidental personal injury and loss of life sustained by accident, and making all and every insurance connected with accidental loss of life and personal Forms. 669 Insurance, etc., Companies — Articles of. injury occasioned by accident, and for the purpose of doing' a purely accident life insurance business in accordance with the statutes of the State of Ohio. (Only requires five incorporators. See also § 3670.) § 3631a. MUTUAL AID ASSOCIATION. The Findlay Mutual Aid Association. THIRD. The purpose for which said corporation is formed is to promote socia- bility among fellow workmen, to assist its members in sickness or distress, and aid the families of deceased members by voluntary contributions under rules, regulations and by-laws to be adopted, MUTUAL AID ASSOCIATION. The Middle Age Mutual Aid Association. THIRD. The purpose for which said corporation is formed is not profit, but is the mutual protection and relief of its members, to elevate their social, moral, and intellectual condition, and for the payment of stipulated sums of money to the :families or heirs of deceased members of said association. §§ 3631-11 and 3631-17. FRATERNAL BENEFICIARY ASSOCIATIONS. The Odd Fellows' National Beneficial Association, of Dayton, Ohio. THIRD. The objects and purposes of this association shall be to afford relief to -the families and beneficiaries of deceased members, by the payment of stipulated sums of money to the widow, heirs, blood relatives or affianced wife of such deceased member, and for no other purpose whatever. This association shall have no capital stock, being for a purpose other than profit. * The requisite qualifications for membership in this association shall be that the ^applicant be an affiliated member in good standing of the " Independent Order of Odd Fellows." The National Masonic Provident Association. THIRD. The purpose for which said corporation is formed is not for profit, but ^or the cultivation of fraternal feeling among Free and Accepted Masons, and the mutual protection and relief of such members as may become members of this asso- ciation, and for the payment of such sums of money as may be provided by the by-laws of the association, for the support of all its members who may have become -temporarily disabled by sickness from any cause not their own. The American Insurance Union. " THIRD. The purpose for which said corporation is formed is to establish and maintain a Secret Society and Benevolent Order, to promote patriotism in our country, love and fidelity in our homes and fraternity among men, with power under the supervision of the Ohio Insurance Department, to transact the business of life and accident insurance on the assessment plan, for the mutual benefit, protection and relief of its members, and the families, heirs, executors, administrators or assigns of its deceased members, as the member may direct, in such manner as may be provided In the by-laws, and to receive money by voluntary donation or contribution and to collect the same by assessments on its members, voluntarily paid, and to accumulate, invest, distribute and appropriate the same in such manner as it may deem proper. AH accumulations and accretions thereon shall be held and used as the property of the members, and in the interest of the members and shall not be loaned to, used, appropriated or invested for the benefit of any officer or manager of this corporation." * This clause may be omitted from charter and included in constitution or by-laws. Requires but seven incorporators. Requires certificate of two of a.ssociation's officers showing certain number o,* subscribers and certain sum deposited; see § 3631-17. 690 Forms. Insurance, etc., Companies — Articles of. The Society of the Porto Rican Expedition. THIB.D. The purpose for which said corporation is formed is to preserve and cultivate the memories of an important incident of the War with Spain; to perpetuate the friendships and fraternity made during the service of the Expedition to Porto Blca and the subsequent occupation of the island. To compile the records, roll and history of this important event and to add mortuary report as these sad events trans- pire. To defend the interests of the American soldier and sailor and to especially champion the claims and rights of all who served with the expedition. To aid the living when the cry of distress comes from the lips of the deserving and to remember the dead and bereaved ones left behind. To teach the principles of freedom, humanity and loyalty to country and flag, to the end that our existence may be helpful to liberty-loving people and a source of benefit to future generations. § 3631-24. ARTICLES FOB COMPANIES ON STIPULATED PREMIUM PLAN. The Inter-State Life Assurance Company. THIRD. The purpose for which said corporation is formed is to make insurances upon the lives and health of individuals, and every insurance appertaining thereto or connected therewith, as set forth in " An Act to provide for the incorporation and regulation of corporations, companies, or associations transacting the business of life insurance on the stipulated premium plan as herein defined." Passed April 25th, 1898. Note. — Only five incorporators are required, but see § 3621-25 as to when company may commence business. §§ 3634 and 3641. LIVE STOCK INSURANCE COMPANY. The Cleveland Live Stock Insurance Company. THIRD. Said corporation is formed for the purpose of making insurance on the lives of horses, mules and other domestic animals, and protecting owners against the loss thereof, and to do all things incidental to, or connected with said business. FIRE INSURANCE COMPANY. The Cleveland Eire Insurance Co. THIRD. Said corporation is formed for the purpose of insuring houses, build- ings and all other kinds of property against loss or damage by fire and lightning and tornadoes, in and out of the State, and make all kinds of insurance on goods, merchan- dise and other property in the course of transportation, whether on land or water, or on any vessel or boat wherever the same may be, and to do all things lawful and Incidental thereto. GUARANTY COMPANIES. The Guaranty 'Title and Trust Company. (Filed February 10th, 1898. Vol. 77, Page 33.) THIRD. Said corporation is formed for the purpose of: 1st. Preparing, furnishing or procuring, by purchase or otherwise, abstracts and certificates of title to real estate, bonds, mortgages and other securities. 2nd. For the purpose of guaranteeing titles to real estate, bonds, mortgages and other property and securities. 3rd. For the purpose of making and negotiating loans on real estate and notes, bills of exchange and ether evidences of debt for itself and others, and to collect and guarantee the collection of interest and principal of loans made or negotiated by it; to effect investments in notes and mortgages secured by real estate, to sell the same, and pledge the same as security for money deposited, loaned or entrusted to it. 4th. For the purpose of taking charge of and selling, mortgaging, renting or otherwise disposing of real estate for others, and generally to perform all the ordinary duties of an agent relative to property so placed at its disposal, and to guarantee the collection of rents and income of property so controlled by it. 5th. For the purpose of owning real estate, as a place for carrying on its business, and to do any and all things necessary or incidental to an abstract, title s:uarante» and loaning business, and the transaction of any and all business incidentally or necessarily connected with each or all of the foregoing provisions. Forms. 691 Insurance, etc., Companies — Articles of. The Ohio Guaranty Company. THIRD. Said corporation is formed for the purpose of executing and guarantee- ing bonds of employes and officers of private, municipal and political corporations, bonds of executors, administrators, guardians, receivers, assignees and trustees, and of guaranteeing the fidelity of all persons holding places of public or private trust who may be required to, or do, in their trust capacity, receive, hold, control or dis- tribute public or private moneys or property; of guaranteeing titles to real property and of making abstracts of public records; of guaranteeing bids of contractors for public or private work, and of guaranteeing the performance of all contracts other than insurance policies; and of executing and guaranteeing bonds and undertakings required or permitted in all actions or proceedings, or by law allowed; and purposes incidental thereto. (Requires but five incorporators. Articles must be approved by attorney-general, § 3632.) §§ 3686 and 3687. ARTICLES FOR MUTUAL PROTECTION ASSOCIATION. The Mutual Tornado, Cyclone and Windstorm Insurance Association. THIRD. The object of said association shall be, and shall only be, to insure its members against loss or damage by cyclones, tornadoes or windstorms, and to assume the rights, power and privileges that are now or may hereafter be conferred by law governing mutual insurance associations, organized under §§ 3686 and 3687; may sue or be sued, have a common seal, and a right to borrow money to pay losses and expenses, till same can be raised by an assessment; to enforce any contract which may be by them entered into, by which those entering therein, agree to be assessed specifically for incidental purposes, and for the payment of losses which may occur to any members of said association. (Requires not less than ten incorporators.) § 3691-1. MUTUAL COMPANIES FOR INSURING ANIMALS. The Mutual Protective Association. THIRD. The object of said association shall be to insure its members against loss resulting from death of horses, mules and other domestic animals; and to enforce any contract which may be entered into by its members, by which they agree to be assessed specifically for the payment of losses which may occur to any members of said asso- ciation and for purposes incidental thereto. (Requires only five incorporators.) § 3691-14. CREDIT GUARANTY COMPANY. I'he Toledo Credit Guaranty Company. THIRD. The object of said company shall be to guarantee and indemnify mer- chants, traders, manufacturers and others engaged in business pursuits, against losses occasioned by the giving and extending of credit by them to their customers and others trading with them; to buy, hold and take on assignment any and all claims and accounts so guaranteed by it, with power to hold, collect or enforce the same by proper action; and to guarantee the payment of money under contracts of hire for personal services. (Requires but five incorporators. Articles must be approved by attorney-general.) § 3705-11. ASSOCIATION FOR APPREHENDING HORSE THIEVES. PROTECTIVE ASSOCIATION. The Old Town Run Protection Association. (Filed Jan. 30th, 1900. Vol. 76, Page 336.) THIRD. The purpose for which said corporation is formed is for the apprehen- sion and conviction of horse-thieves and other felons. 692 Forms. Colleges, etc. — Articles of. PROTECTIVE ASSOCIATION. The Citizens' Protective Association. (Piled January 19th, 1901. Vol. 85, Page 52.) THIRD. The purpose for which said corporation is formed is to apprehend and convict horse thieves and other felons, under and in accordance with an act of the General Assembly of the State of Ohio, passed March 21st, 1887, entitled, an act for the apprehension and conviction of horse thieves and other felons. (84 0. Ii. 169.) Also, under and in accordance with an amendment passed April 28th, 1890. (87 0. L. 339 and 340.) Note. — See § 3709a. § 3716. ARTICLES FOR HUMANE SOGIETIEa HUMANE SOCIETY. The Akron Humane "ociety. (Filed January 2nd, 1901. Vol. 82, Page 236.) Minutes of meeting held at Akron, 0., for the organization of a Humane Society. At a meeting of citizens held at the Mayor's Office, City Building, Akron, O., Becember 18th, 1900, for the purpose of effecting the organization of a Society for the Prevention of Cruelty to Animals and Children, Chas. T. Inman was elected temporary chairman and Chas. Benner, secretary. A permanent organization was then effected, as follows: A. T. Paige, President; Chas. T. Inman, Secretary; Joseph Kendall, Jos. Lim^ric, M. H. Hoye, C. U. Button, Chas. T. Inman, A. T. Paige and H. W. Manderbach, Directors. It was moved and seconded that this organization be known as THE AKRON HUMANE SOCIETY, Branch of the Ohio Humane Society. The Secretary was instructed to secure the necessary articles of incorporation from the Secretary of State and to communicate with the Ohio Humane Society. On motion adjourned. Chas. T. Inman, Sec'y. Akron, O., Dec. 28th, 1900. I, the undersigned, do hereby certify that the accompanying is a true and exact copy of the proceedings of a meeting held December 18th, 1900, at the Mayor's Office, Akron, O., for the purpose of effecting an organization for the prevention of cruelty to animals and children. Chas. T. Inman, Sec'y. § 3726. ARTICLES OF COLLEGE CORPORATION. MEDICAL UNIVERSITY. The Ohio Medical University. (Filed Dec. 31, 1890. Vol. 53, Page 87.) THIRD. The purpose for which said corporation is formed is the originating, conducting, and maintaining a Medical University, consisting of a school of Medicine, a school of Dentistry, a school of Pharmacy, a school of Midwifery, and a Training School for Nurses, and teaching the art and science of medicine and surgery, the art and science of Pharmacy, the art and science of Obstetrics, and the art and science of Nursing, to both sexes; the conducting of medical dispensaries and a hospital in con- nection therewith; the conferring upon such persons as are qualified the degree of Doctor of Medicine, the degree of Doctor of Dental Surgery, the degree of Graduate of Pharmacy, the degree of Doctor of Midwifery, and a certificate of proficiency in nursing; and to receive, hold and apply thereto any funds or property lawfully acquired by said corporation. Forms. 693 Relig^ious Corporations — Consolidation of. FOKM FOR SCHEDULE OF PKOPEKTY. SCHEDULE OF PROPERTY. The West Lafayette College. (Filed August 30th, 1900. Vol. 86, Page 15.) The West Lafayette College. Verified Schedule of Value of Property. West Lafayette, Ohio, July 11th, 1900. To the Honorable Secretary of State of the State of Ohio, Columbus, Ohio. : Sir. — The undersigned. Trustees of The West Lafayette College, a corporation under the laws of Ohio, and incorporated for the purpose of promoting education, hereby certify that said corporation has acquired real and personal property to the value of more than Five Thousand Dollars ($5,000.00). A Schedule of the kind and value of which is hereto attached and marked " Exhibit A," and made a part hereof. W. L. Wells. S. A. Fisher. Joseph Porteus. J. W. Cassingham. H. C. Ferguson. Sworn to and subscribed before me by the above named W. L. Wells, S. A. Fisher, J. W. Cassingham, Joseph Porteus and H. C. Ferguson, this 11th day of July, A. D. 1900. W. R. Pomerene, (Seal.) Notary Public. Schedule " A." Being a Schedule of the Kind and Value of Property Owned by the Corporation of The West Lafayette College. §§ 3767, 3768. ARTICLES STATING ORGANIC RULES, ETC. Note. — Use the usual form of articles of corporation not f gr profit setting forth in the purpose clause the special items. Any fair statement of amendment with certificate of trus- tees will be sulEeient under § 3768. § 3777. FORM FOR CONSOLIDATION OF RELIGIOUS CORPORATIONS. Park Presbyterian Church of the City of Dayton. (Filed March 20th, 1901. Vol. 82, Page 284.) AGREEMENT. WHEREAS, The Wayne Avenue Presbyterian Church of the City of Dayton, Ohio, a corporation duly incorporated and organized under the laws of Ohio, and the Park Presbyterian Church of the City of Dayton, Ohio, a corporation duly incorporated and organized under the laws of Ohio, both of which are religious societies and churches, recognizing the same ecclesiastical jurisdiction, form of faith, government, order and discipline, and desire to be consolidated or united as a single corporation; THEREFORE, We, the subscribers, William S. Belden, Preston C. Dodds, Charles W. Salisbury, Ezra Pentoney and Henry A. Hunter, elders; John W. Strahl and George B. Eddingfleld, deacons; and Odlin Speice, Charles W. Salisbury, Louis J. Weireter, Thomas W. Williams and Ellwood Fellers, trustees of Wayne Avenue Presbyterian Church; and Isaac B. Young, Robert Rochester, Adam W. Anderson, John E. Viot, Edward C. Crum, William J. Jones, Hugh W. Kimes and William L. Johnston, elders; Clarence S. Wiggim, Frank M. Jones, John Kuhns and Edward Mehlberth, deacons; and Edward C. Crum, James H. Home, William Protzman, John A. Case and William J. Jones, trustees of Park Presbyterian Church, have and do hereby enter into an agreement for such union or consolidation, and do hereby pre- scribe the following terms and conditions thereof, to wit : FIRST. The property, real, personal and mixed, of Wayne Avenue Presbyterian LAW GOV. PRIV. COR. — 42. 694 Forms. Endowment Fund Companies — Articles of. Church, and Park Presbyterian Church shall become and be the property of the new corporation. SECOND. The new corporation shall assume and pay all the debts and liabilities remaining unpaid by either or both of said churches. THIKD. The pastor, elders and deacons of Park Presbyterian Church shall be and remain the pastor, elders and deacons of the consolidated church until the expi- ration of the terms for which they are now respectively elected. POTJRTH. That such religious services shall be held in the two buildings as the pastor and session shall from time to time deem best. FIPTH. The corporate name of such united church shall be Park Presbyterian Church, of the City of Dayton, Ohio. SIXTH. The time for holding the first meeting of the new corporation shall be Wednesday, October 31st, 1900, at 8 o'clock P. M., and the place shall be the church rooms of the Park Presbyterian Church at No North St. Clair Street in the City of Dayton, Ohio. SEVENTH. There shall be chosen two (2) members of Wayne Avenue Presby- terian Church and six (6) members of Park Presbyterian Church as trustees for the new corporation, to succeed to the rights, trusts and duties and obligations of the trustees of the said separate churches. Peter E. Pentoney, Isaac B. Young, William S. Belden, Adam W. Anderson, Preston C. Dodds, William J. Jones, Henry A Hunter, John E. Viot, Charles W. Salisbury, William L. Johnston, Elders of WsLyne. Ave. Presby- Kobert Rochester, terian Church. Ewd. C. Crum, Hugh W. Kimes, Geo. B. Eddingfield, Elders of Park Presbyterian. John W. Strahl, Church. Deacons of Wayne Ave. Presby- terian Church. Clarence' Staley Wiggim, Prank M. Jones, Odlin Speice, John P. Kuhns, Louis J. Weireter, Edward Mehlberth, Thomas W. Williams, Deacons of Park Presbyterian Charles W. Salisbury, Church. Ellwood Fellers, Trustees of Wayne Ave. Presby- Ewd. C. Crum, terian Church'. Jas. H. Home, Wm. Protzman, John A. Case, William J. Jones, Trustees of Park Presby- terian Church. To The Hon. Secretary of State, Columbus, Ohio: I, H. A. Hunter, Clerk of the first meeting of the united corporations held in pur- suance of the above agreement, Wednesday, October 31st, 1900, at 8 o'clock P. HE., at the church rooms of the Park Presbyterian Church, North St. Clair Street, in the City of Dayton, Ohio, to which meeting the foregoing agreement and the proceedings and acts of the several churches and parties thereto, were submitted, and at which meeting a Board of Trustees were duly elected in accordance with the terms of said agreement, do hereby certify that the foregoing agreement, or terms of union were by a unanimous vote at said meeting duly approved, ratified and confirmed. IN WITNESS WHEREOF, I have hereunto set my hand this first day of Novem- ber, A. D. 1900. H. A. Hunter, Clerk. § 3784. FORM FOR ENDOWMENT FUND CORPORATIONS. BOARD OF TRUSTEES. Board of Trustees for Stryker Society, Church of the United Brethren in Christ (Filed January 26th, 1900. Vol. 78, Page 328.) It is hereby certified, by the undersigned, that at a regular session of the Quar- terly Conference of Stryker Circuit of the North Ohio Annual Conference, Church of Forms. 695 Chattel Loan Companies — Articles of. the United Brethren in Christ (old constitution), held at the village of Stryker, in Williams County, State of Ohio, on the 23rd day of December, A. D. 1899, the follow- ing named persons to wit: Jasiah Swank, David Swank, Eli Turrittin, William Buck and Albert Kennedy, all of said county, were duly elected a Board of Trustees for Stryker Society of said Stryker Circuit and who are to serve as such until their suc- cessors shall be elected and who with their said successors in office shall exist and become and be an incorporated Board of Trustees and a, corporation not for profit for the purpose of acquiring in trust and of so controlling and disposing of all such real and personal property as from time to time the said Society may deem it desirable to have acquired, controlled and disposed of for church and benevolent purposes. The said Board of Trustees, however, shall hold all such property in trust for said Society and Church at all times and acquire control and dispose of the same under the super- vision and control of said Church and subject to its directions and order. That the uses to which the said property so to be acquired and holden ^all be applied are all such uses as it may be and is lawful for the said Church and Society to apply the same as a religious organization and body under the laws of Ohio. IN WITNESS WHEREOF, We have, hereunto set our hands this 24th day of January, A. D. 1900. W. H. Clay, Presiding Elder of, and officer presiding over, the said Quarterly Conference. William Buck, Secretary of the said Quarterly Conference. The State of Ohio, ) Williams County, f ^^- ' On this 24th day of January, A. D. 1900, personally appeared before me, a notary public in and for said County and State, W. H. Clay and William Buck, who acknowl- edged that they did make and sign the foregoing statement as and for the uses and purposes therein set forth, and that they are still satisfied therewith. John J. Heater, (Seal.) Notary Public in and for Williams County, Ohio. § 3797. ARTICLES FOR SAVINGS AND LOAN ASSOCIATIONS. BANKING COMPANY. The Elyria Savings and Banking Company. (Filed February 6th, 1901. Vol. 83, Page 653.) THIRD. Said corporation is formed for the purpose of receiving deposits of money, securities and other valuables, loaning money, discounting notes and bills, dealing in negotiable instruments, and other choses in action, and conducting all business authorized by law to be conducted by Savings and Loan Associations for profit and doing a banking business, with all transactions incident thereto, so far as the same may be lawfully done under the laws governing Savings and Loan Associa- tions in said State as defined in Chapter Sixteen, Title 11, Part II, Revised Statutes of Ohio. Note. — Articles must be submitted to the attorney-general for his approval. Except in villages having a population of twenty-five hundred, the capital stock must be $50,000, in such villages it must be $25,000, all of which must be subscribed and fifty per cent, paid in, before business is commenced. The shares shall be $100 each. Under a ruling of the attorney-general banks cannot be incorporated under the general laws. § 3806-b. ARTICLES FOR CHATTEL LOAN COMPANY. CHATTEL LOAN COMPANY. The Provident Loan Company. (Filed April 14th, 1900. Vol. 81, Page 498.) THIRD. Said corporation is formed for the purpose of transacting the business of a savings and loan association, and loaning money upon chattel security as pro- vided in Chapter Sixteen, Title two of the Revised Statutes of Ohio. 696 Forms. Free Banking Companies — Articles of. § 38(61 -a. ARTICLES FOR SAFE DEPOSIT AND TRTJST COMPANY. The People's Trust Company. (Filed December 22nd, 1900. Vol. 82, Page 226.) THIRD. Said corporation is formed for the purpose of receiving on deposit, or in, trust, money, security, and other valuable property, on such terms as may be agreed, to invest and loan the funds of the company, and those received on deposit, or in trust, and for the purpose of providing by lease or purchase, a proper and secure fire proof building, or buildings, and fire and burglar proof vaults or safe; receiving on dejKJsit, for safe keeping therein, securities, stocks, bonds, coins, jewelry, valuable books, papers and documents, and other property of every kind; collecting and dis- bursing interest or income upon property received on deposit producing interest or income; acting as agent or trustee, for the purpose of registering, countersigning, or transferring certificates of stock, association, state, municipality, city or public author- ity, upon such terms as may be agreed upon; holding and receiving money ordered to be deposited with it by any court in this state; receiving and holding moneys or property in trust on deposit from executors; administrators, assignees, guardians, trustees, corporations or individuals, upon such terms and conditions as may be obtained or agreed upon between the parties; acting as trustee under any will or instrument creating a trust for the management of property; acting as executor or administrator, taking, accepting and executing all trusts that may be committed to it by grant, assignment, devise or bequest; acting as guardian, assignee, receiver or trustee, or in any trust capacity; acting as agent for real estate; and generally for the purpose of transacting all such business and doing all such things as safe deposit and trust companies are or may be authorized or empowered to do under, and by virtue of the laws of Ohio. § 3821-65. ARTICLES FOR FREE BABTKING COMPANY. The Bank of Wellston. (Filed June 1st, 1900. Vol. 82, Page 98.) 1. The name assumed by the subscribers, who are associated for the purpose of engaging in the banking business in conformity to the laws of Ohio, for such pur- pose made and provided, shall be " The Bank of Wellston," and by such name it shall be known in all its dealings. The city of Wellston, Jackson County, Ohio, is to be the place in which said bank's operations shall be carried on, and at said city an office is to be kept for the transaction of business, and the redemption of said bank's circulating notes. 2. The amount of capital stock of " The Bank of Wellston " shall be twenty-five thousand dollars, divided into five hundred shares of fifty dollars per share. 3. The name, place of residence and the number of shares of each member of said association are as follows, to wit: Name. Place of Residence. No. of Shares. N. Walter Davis Wellston, Ohio Eighty (80). Lafayette Arthur Wellston, Ohio Eighty (80). George B. Woodrow Wellston, Ohio One hundred and twenty. Jacob Snider Wellston, Ohio One hundred and forty. Jeremiah W. Hogan Wellston, Ohio Eighty. 4. Said Company was formed March 3rd, A. D. 1900, at the city of Wellston, Ohio. Subscribers. Attest. N. Walter Davis. Thomas A. McFarland. L. Arthur. T. S. Hogan. George B. Woodrow. Jacob Snider. Jeremiah W. Hogan. The State of Ohio, County of Jackson, ss. ; BE IT REMEMBERED, That on the 3rd day of March, A. D. 1900, before me, the subscriber, a notary public within and for said county, personally appeared W. Walter Davis, Lafayette Arthur, George B. Woodrow, Jacob Snider and Jeremiah W. Hogan, persons well known to me, and acknowledged the signing of the foregoing instrument to be their voluntary act for the uses and purposes therein mentioned. Forms. 697 Board of Trade — Articles of. In testimony whereof I have hereunto subscribed my name and afllxed my notarial seal on the day and year last aforesaid. Thomas A. McFarland, (Seal.) Notary Public, Jackson County, Ohio. I certify that the foregoing instrument is a true and correct copy of the original certificate for forming a Banking Company filed at my office on March 5th, A. D. 1900, at 1 P. M., and recorded on 5th day of March, 1900, in Book No. 1, Page 85, o£ the records for recording certificates of Associations for Free Banking. William Thomas, (Seal.) County Recorder, Jackson County, Ohio. CERTIFICATE. The Bank of Wellston. (Piled June 1, 1900. Vol. 82, Page 100.) To the Honorable, The Governor, The Secretary of State and the Auditor of State of the State of Ohio: This is to certify that Sixty per cent, of the Authorized capital stock of The Bank of Wellston, Ohio, has been paid in, and is the bona fide property of said bank. The capital stock is $25,000, and fifteen thousand dollars have been paid in. Witness our hands at Wellston, Ohio, this 21st day of May, 1900. Jacob Snider, President. J. W. Hogan, Secretary. CERTIFICATE OF AUTHORITY TO BEGIN BUSINESS. The Bank of Wellston. (Duplicate Filed June 1st, 1900. Vol. 82, Page 100.) State of Ohio, ) Office of the Governor, j It having appeared to the satisfaction of the undersigned that THE BANK OF WELLSTON, of Wellston, Jackson County, Ohio, has complied with all the require- ments of the Statutes with reference to the formation of Banking Companies, under the Free Banking Act of 1851, We, therefore, by virtue of the power vested in us by the Laws of Ohio, do hereby authorize it to do the business as proposed in its said Articles of Incorporation, filed in the office of the Secretary of State on the 1st day of June, A. D. 1900, and recorded in Volume 82, Page 98, of the Records of Incorporations. IN WITNESS WHEREOF, We have hereunto set our hands and caused to be affixed the Great Seal of the State of (Great Seal.) Ohio, at Columbus, this 1st day of June, A. D. 1900. Geo. K. Nash, Governor of the State of Ohio. Charles Kinney, Secretary of State of the State of Ohio. W. D. Guilbert, Auditor of State of the State of Ohio. § 3827. ARTICLES FOR BOARD OF TRADE. The Newsomerstown Board of Trade. (Filed April 2nd, 1900. Vol. 76, Page 417.) THIRD. The purpose for which said corporation is formed is to collect, preserve, and circulate valuable and useful information relating to its manufacturing inter- ests; to encourage wise and useful legislation; to oppose the enactment of laws likely to be prejudicial to its manufacturing and commercial interest; to study the workings of our system of transportation upon which our commercial prosperity so largely depends; to study by all proper methods the defects and abuse existing therein; to secure fair and equitable rates of freight to and from the villages, and the discon- tinuance of vexatious and unjust overcharges of the same, and to secure prompt settlement of damages on goods shipped to said villages; to facilitate the adjustment of differences, controversies and misunderstandings between its members and others; to strive in all ways to promote the manufacturing, commercial, and other interests of the village. 698 Forms. Building and Loan Associations — Articles of. § 3836-1. ABTICLES FOR BUILDING AND LOAN ASSOCIATIONS. BUILDING AND LOAN COMPANY. Th.e Park Building^ and Loan Company. (Filed January 3rd, 1901. Vol. 83, Page 528.) THIKD. Said corporation is formed for the purpose of raising money to loan among its members, and to receive money on deposit from time to time to the extent necessary to meet the demands made on it by its members and depositors; to issue stock on such terms and conditions as the constitution and by-laws may provide; to assess and collect from members and depositors such dues, fines, interest and premium on loans made or other assessments as may be provided for in the constitution and by-laws; to issue stock to minors; to acquire, hold, encumber and convey such real estate and personal property as may be necessary for the transaction of the Company's business, or necessary to enforce or protect its securities; to borrow money, and to issue its evidence of indebtedness therefor; to make loans to members and depositors on such terms, conditicns and securities as may be provided in the constitution and by-laws; to cancel such loans and release the securities on such terms as the Board of Directors may provide; to accumulate from the earnings and invest as the Board of Directors may determine, a reserve fund for the payment of contingent losses; to make such annual or semi-annual distributions of the earnings, after deducting expenses and setting aside a sum for the reserve fund, as the constitution and by-laws may prescribe; to provide a constitution adopted by its members, and by-laws adopted by its Board of Directors, for the proper exercise of its corporate powers and the con- duct and management of its affairs, and to do all such things as are necessary and proper to enable the corporation to carry out the purpose of its organization. The Metropolitan Building and Loan Company. (Filed March 7th, 1901. Vol. 87, Page 73.) THIRD. Said corporation is formed for the purpose of raising money to be loaned among its members and depositors for use in buying lots, building and repairing houses, and for other purpose under the statutes' of Ohio governing building and loan companies. § 3836-3. CERTIFICATE OF INCREASE OF CAPITAL STOCK OF BUILDING AND LOAN ASSOCIATION. The To the Secretary of State, Columbus, Ohio: The hereby certifies that, at a meeting of its directors, held on the day of , A. D. 189 . . , it was resolved by a majority vote of its board of directors that the capital stock of said association be increased from Dollars, ($ ) to Dollars, ($ ), divided in shares of $ IN WITNESS WHEREOF, Said corporation has caused its corporate seal to be hereto affixed, and this certificate to be executed by its President and Secretary, this day of , A. D. 189. . The , By , President. Secretary. INDEX. (References are to pages.) ABANDONMENT. Cemetery grounds. (See Cemetery Association.) Corporate objects, fete. {See Coepobate Objects.) Charter, certificate as to, filing, etc., 20 Defense of, in action on stock subscription, 139 Directors, by presumed, when, 119, 125 Of appropriation proceedings. (See Appropriation op Property.) Of streets, etc., to railroads, 189, 194 ABSENCE OR DISABILITY. Deputy of superintendent of insurance to act in case of, 31 ABUTTING PROPERTY OWNERS. Consents of, to use of streets, etc. (See also under respective companies.) in case -of automatic package carrier companies, 324 electric light, etc., companies, 324 freight ways or private railroads, 240 street railway companies, 47, 48, 51, 52 Damage to, for appropriation of way in street, 184, 605. JNlay make, etc., survey and plat of right of way of railroad, when, 215 Rights of, as to use and occupancy of streets, etc. (See under respective companies.) ACADEMY. (See Schools, Colleges, etc.) Of fine arts. (See Arts.) ACCEPTANCE. Of bids for street railway grant, 49 Of Revised Statutes by corporations created prior to 1851, 91 certified copy of, filed with secretary of state, 91 fees for filing, 9 effect of, on old charter, 91 necessity of formal, 91 partial or conditional, 91 what constitutes, 91, 92, 93, 125 ACCESS. Damages for injuries to, in appropriation of property by railroad, 184 Obstruction to, what amounts to, 192 ACCIDENTS. (See Injuries.) ACCIDENT INSURANCE. (See Insurance Company — Accident: Insurance Co.'s — Life: Insurance Co.'s — Other than Life: Insurance Co.'s — Title Guaranty. ) ACCOMMODATION PAPER. (See Negotiable Instruments.) ACCOMMODATION TRAINS. (See Railroad Trains.) ACCOUNTS, ETC. Necessary for making reports, — must be kept by railroad companies, 29 by telegraph companies, 29 notice of changes in, 29 ACCOUNTING. Court may order, in actions to enforce liability of directors, officers, etc., 158 Rights of stockholders to, 133 motive for action to enforce, 133 parties to bill for, 133 ACCOUNTING OEFICER. (See Officers.) ACKNOV\'LEDGMENTS. (See also under respective companies.) Of agreement and proceedings to consolidate hydraulic companies, 355 articles of incorporation, 96, 97 absence of, effect, 97 by whom, 96, 97 form for, 645 699 700 INDEX. (References are to pages.) ACKNOWLEDGMENTS — Continued, should be in tliis slate, 97 who may take, 96, 97 official character must be certified, 100 certificate of action of stockholders as to branch railroads, 182 certificate of change of counties where line is located, — in case of railroad companies, 181 ship canal companies, 309, 181 certificate of location of terminus in county on state line. — - in case of railroad companies, 178 ship canal companies, 309, 178 deed of corporation, form for, 662, 663 lease of railroad necessary, when, 204 ACTIONS. Against corporations, agents, etc. (See under various companies.) directors. (See Directors — liabllity of.) Against, — ■ stockholder. (See Stockholders.) Brought where, — in case of companies under special charters, 580 foreign corporations, 580, 581 non-residents, 580 Ohio corporations, 579 Causes of, separately stating and numbering, 134 Commencement of,' — ■ attempt equivalent to when, 578 effect of reversal or failure not on merits, 578 Corporations in hands of receiver cannot sue, 532 Defenses in, — inequality of term of office of directors is not when, 134 settlement is not when, 134 to collect subscription. (See Capital Stock.) to enforce stockholders' liability. (See Stockholders' Liability.) uUra vires. (See Ultra. Vires.) Deposit of subject of, in court when, 591 enforcement of order as to, 591 Evidence in. (See Evidence.) Removal of. (See Removal of Causes.) ACTUARIES EXPERIENCE TABLES. (See Insurance Co's — Life.) ADDITIONAL BURDENS. (See Streets, Highways, etc.; see also under respective Co.'s.) ADDRESS. (See Restoence.) Of auditor, general manager, managing agent, president, secretary, superintendent, and treasurer. — annual report to State auditor must give, — in case of — electric light, gas, messenger or signal, natural gas, pipe line, rail- road, street, suburban or interurban railroad, union depot, and water companies, 77 equipment (R. R. ) and freight line companies, 71 express, telegraph and telephone companies, 68, 77 sleeping car companies, 74 Of directors and officers, — ■ statement of railroad and telegraph companies to com'r of railroads to give, 29 reports to secretary of state to give, — in ease of corporations for profit, 17 corporations not for profit, 19 foreign corporations, 18 Of stockholders, — reports of railroad and telegraph companies to com'r of railroads must give, 26 reports of sleeping car companies to state auditor, must give, 74 ADJOURNMENT. Of state board of appraisers and asisessors, 69 ADMINISTRATOR. (See Executors and Administrators.) ADMISSIONS. Olficers cannot bind company by, when, 131 Stockholders cannot bind company by, 131 ADULTERATION OF FOODS, DRUGS, ETC. Costs in actions, as to, — certifying to county auditors 466 county auditor to issue warrant for, when, 466 INDEX. 701 (References are to pages,) AUULTERATION OF FOODS, ETC.— Continued, not required in advance, when, 466 Jurisdiction of justice, mayor, police judge, in, 466 Jury trial before justice of peace, 466 challenge of jurors, 466 venire for, 466 waiver of, need not be in writing, 467 Section 7147 does not apply to, 467 AFFIDAVIT. (See Oath.) For attachment, — before justice of the peace, 624 in action to enforce certain judgments against railroad, 585 stockholder's liability, sufficiency. 162 For mechanic's lien. (See Mechanic's Lien.s.) To pleadings, 585 by agent or attorney, when, 585 in case of — corporations, 585 petition for dissolution of corporation, 594 state, state officers, etc., 585 AGENT, AGENTS. (See under respective companies.) Acts of, bind company when, 131 Authority of, implied from acquiescence, 131 Directors or trustees acting as, compensation of, 126 Examinations of, under oath, — by — board of appraisers of railroads, 60 commissioner of railroads and telegraphs, 29 county auditor, as to statement of banks for taxation, 65 examiners appointed by superintendent of insurance, 32 state board of appraisers and assessors, — in ease of — electric light, gas, messenger or signal, natural gas, pipe line, railroad, street, suburban or interurban railroad, telegraph, telephone, union depot, and water companies, 79 equipment (R. R. ) and freight line companies, 73 express, telegraph and telephone companies, 70, 79 sleeping ear companies, 75 superintendent of insurance, 32 in case of foreign companies, 57 Laws applicable to, of insurance companies organized under U. S. laws, 37 Liability on notes of company improperly executed, 131 Managing agent, — examination of under oath. (See "Examination of," above.) garnishee process on, in attachment before justice of peace, 625 liability of, of railroad for failure to make and publish rules as to crossings over railroads, 226 name and address of. (See Address.) of foreign corporations. (See below.) ^Managing agent, — summons served upon, when, 582 in actions before justice of peace, 623, 624 in case of indictment of corporation, 639 Notice to, of railroad as to ordinance requiring lighting of bridge or railroad, 45 Of foreign corporation. (See also under various companies.) for service of process, 12 duties, requirements, powers, etc., 12, 13 his successor, 13 must be by actual appointment or representation, 16 revocation of appointment, 13 secretary of state may act as, when, 13 fees for so doing, 13 managing agent, — meaning of term, 16, 583 service of process on, 583 in actions before justice of peace, 624 provisions as to, cumulative, 583 returns must show what, 16 penalties against, for doing business before complyinj Tsith § 148d, 13 name and address of, report to secretary of state, must give, 10 service of process on in U. S. courts, 16 Of insurance companies. (See Instjbance Comt-a^'ies.) Pays taxes for company, when. (See under Express, Insurance, Telegraph and Tele- phone Companies.) Pleadings verified by, when, 585 im INDEX. (Relerences are to pages.) AGENT, AGENTS — Continued. Powers of, of corporations, 131 to sign notes, 131 street improvement petition, 131 Receiver of corporation is not an, 131 Special, notice to, notice to compimv, 131 AGKEEMENTS. Between companies as te business and operation. (See various companies.) Copies of, railroads must furnish to commissioner of railroads, 2'j For pledge of stock, efi'ect of, 149 settlement of corporate iiabililies by stockholders, effect of, 154 transfer of stock, imports valuable consideration, 148 Made before incorporation, void when, 104 Trust and voting agreement. (See Trust Agkeement. ) AGRICULTURE. Schools, colleges, etc., may hold land for teaching, 472 limitations as to, 472 State Board of. (See Ohio State Board of Agriculture.) AGRICULTURAL FAIR COMPANY. ( See Fairs : Fair Companies : Fair Grounds. ) AGRICULTURAL FUND. (See State Aqricultuua.l Fund.) AGRICULTURAL SOCIETIES — COUNTY. Aid to, from county funds, — for expenses, etc., 450 amount of, limitation as to, 450 certificate as to filing reports necessary before, 450 entitled to, when, 44!) to additional society in counties containing city of 1st class, 2d grade, 450 for fair grounds, etc., 451 amount of, limitations as to, 451, 4.52, 453 in counties containing city of 1st class, 2d grade, 452 county commissioners may levy tax for, 451, 452, 453 in counties containing city of 1st class, 2d grade, 452 must be submitted to voters, when, 453 notice of, 453 money raised by taxation for, to be so used though act has expired, 452 to liquidate debts, — bonds issued for, when, 451 interest on, 452 questions of issuing, submitted to vote, 451 ballots for; preparation; duty of deputy state supervisor of elec- tions, 451 election for, when and- how, 451 notice of, must state what, 452 petition for. number of signers, 451 requirements as to, 451 vote necessary for, 452 tax levy to pay, 452 term of, 452 money to be used for purposes stated, 452 Are bodies corporate, 451 Buildings on fair grounds, county commissioners may keep insured when, 454 Delegates of, are ex officio members of state board of agriculture, 448 Dissolution, etc., of, — funds remaining upon, to be turned over to park commissioners in counties con- taining city 2d class 1st grade, 454 real estate of, vests in county when, 453 in counties containing city 2d class 1st grade, 454 Fairs of. (See Fairs.) must be held when, 450 premiums at — regulation as to, 450 Liability of, for negligence in constructing seats, 450 Members, number required, 449 Powers of, 450 President of, — executes conveyance of real estate when, 450 ex officio member of state board of agriculture, 448 Real estate for fair grounds of, — appropriation of property for, 463 directors act in the, 463 plat and description filed, 463 INDEX. 703 (References are to pages.) AGRICULTURAL SOCIETIES — COUNTY — Continued. proceedings for, same as in case of municipality, 463 when county commissioners are required to purchase, 463 payment in ease of, 463 control and management of, when owned by county, 459 conveyance to, words of inheritance not necessary, 451 donations of, for engine or hose house in certain cases, 456 incumbrance of, consent of county commissioners necessary when, 460 may purchase and hold what, 451 purchase of new site for, — county commissioners to complete, etc., 458, 459 money from sale of old site used for, when, 458 certificate of president and secretary as to purpose to be used for, 458 sale of, to purchase other site authorized, 458 consent of county commissioners necessary when, 458 conveyances of, executed by whom, 459 county commissioners join in, when, 459 money arising from, paid to county treasurer, 458 vests in county upon dissolution, etc., when, 453 ' to be used for park purposes, in counties containing city of 2d class 1st grade, 454 Reports to state board of agriculture, 451 certificate as to filing, necessary when, 451 made when, 450, 451 must be in accord with rules of .state board of agriculture, 451 must show what, 450 Treasurer of, — bond — approved and filed with county auditor, 453 required when; amount of, 453 publication of account of, 450 AGRICULTORAL SOCIETIES — DISTRICT. Aid to from county funds, — amount of; limitations as to, 450 certificate as to filing report necessary before, 450 entitled to when, 450 Delegates to state board of agriculture are ex officio members, 448. Fairs of. (See Pairs.) must be held when, 450. premiums at, regulations as to, 450 Liability of, for negligence in construction of seats, 450 Members, number required, 449 President of, ex officio member of state board of agriculture, 448 Reports of, to the state board of agriculture, 4-t1 certificate as to filing of, necessary, 451 made when, 450, 451 must be in accord with rules of state board of agriculture, 451 must show what, 450 Treasurer, publication of account of, 450 AGRICULTURAL SOCIETIES — TOWNSHIP. Articles of incorporation of, — acknowledgment of, 460 before justice of peace, 460 filed with secretary of state, 460 must show what, 460 Fairs of. (See Fairs.) constables to keep peace at, 460 grounds for, purchase or renting of, 460 rules and regulations for, society may make, 460 Incorporators of. (See Incohporators.) must execute articles of incorporation, 460 number of, 460 Name, articles must give, 460 Object, articles must give, 460 Powers of, 460 Real estate purchase, renting, etc., of, for fair grounds, 460 limitations upon amount of, 460 Rules and regulations, societies may make, 460 Township where located, articles must specify, 460 AIR BRAKES. (See Railroads.) ALLEYS. (See Streets and Alleys.) 704 INDEX. (References are to pages.) JlMENDMENTS. Corporation laws are subject to, 2 Of articles of incorporation. (See Abticles of Incorporation: Capital Stock: Dom- icile: Name, etc.) fees for filing, 9 Of reports. (See Reports.) AMERICAN EXPERIENCE TABLES. (See Insurance Co.'s — Life. ) ANATOMY. (See Corpse.) ANIMALS. (See Cruelty to, etc.) Driving, riding, permitting, etc., in railroad enclosures; penalty, 638 such animals not exempt from execution, 638 Killed by railroads. (See Railroads.) Rate of toll for, 331 ANNUAL STATEMENTS. (See Reports.) APPEAL. Ellect of, by vendor of stock in action to enforce stockholders' liability, 160 Eroiu decision as to payments of unknown depositors, 545 From decision of secretary of state, relative to foreign corporation doing business in state, 11 of superintendent of insurance as to condition of company, 32 From judgment against corporation, stockholder entitled to, when, 150 Provisions as to time, notice, etc., do not apply to civil actions by municipalities to collect fines, etc., against railroad and telegraph companies, 30 .APPEARANCE. Voluntary, what constitutes, by foreign corporation, 16 .APPORTIONMENT. Of value of property for taxation, — in case of express companies, 69, 70 railroad companies, 67 telegraph and telephone companies, 67, 69, 70 .APPRAISEMENT. In action t-o sell land of expired real estate corporation, 94 APPROPRIATION. By corporations — compulsory — action by land owner. ( See " Wrongful taking," etc, below. ) description of lands and improvements, — owner may require company to furnish, 618 in case of refusal — surveys may be made at cost of company, 618 use of land may be enjoined, 618 compensation, — • bond to pay not sufficient, 621 injunction for not paying, 621 measure of damages in, 620 effect of verbal agreement for occupancy, etc., 618 estoppel, application of, to owner, 619 injunction against use of land by company, when, 618, 620, 621 judgment and execution in, 620, 621 jurisdictional question, must be first heard, 618, 619 what are, 618, 619 notice requiring, service of, etc., 618 owner may require when, 618 how ownership tried, 619 in case of railroad companies, 190, 607 who is owner, 184, 019, 620 parties when company in hands of receiver, 619 petition for, filed in. probate court when, 618 must show what, 618, 619 provisions, etc., as to, cumulative. 620 school officers may require railroad to make, 618, 615 statute of limitations as to, 020 in case of railroad companies, 190 summons in action for, 620 ,J3y corporntions — voluntary — action by corporation, etc., — affidavit of hona' fides in case of taking unfinished road bed of railroad, 617 allegations necessary for damages, etc., 184 attorney, court may appoint for party when, 616 fees included in costs when, 613 benefits. — must be irrespective of in case of railroads, 183 under constitution of 1802. 183 INDEX. 705 (References are to pages.) APPROPRIATION — Continued, can be made when, 605 in case of absence or incapacity of owner," 605 inability to agree as to comijensation, 605 chapter 8, § 6414 et seq. governs, 604 applies to ship canal companies, 311 does not apply to, by state, county, township, etc., 622 " company " includes " persons," " partnerships," etc., 617 compensation for, — agreement as to, — inability to make pre-requisite to, 605 guardian, etc., of minors, authority of probate court necessary, 605 application for authority, filed where, 605 must show what, 605 notice of, to ward, 605 order of court for conveyance upon, 606 proof of inability to agree, 608 disposition of, — in case of conflicting claims to property, 616 in case of school lands appropriated by railroad, 615 deposit for, upon filing petition, 622 effect of, upon costs, 622 notice of to owner, 622 . error in assessing, trespass will not lie for, 329 failure of railroads to make, injunction lies, 185 land may be recovered upon, 183 interest on amount of, allowed when, 611, 615 must be assessed by jury, 3 in case of ship canal company, 311 must be in money, 3, 610 must be first made, 3 in ease of railroads, 183 ship canal companies, 311 union depot companies, 313, 183 must be irrespective of benefits, 610 in case of railroads, 183 ship canal conjpanies, 311 union depot companies, 313, 183 must be irrespective of distinction between private and public nuisance, in case of .street railways, 304 owner entitled to, notwithstanding error proceedings, 614 payment of, in case of county agricultural societies, 463 rule of — measure of damages, 183, 610 abutting owner's rights in streets, 184, 605 basis of valuation, what is, 610 damages cannot be shown by rents received, 612 from fire, smoke, noise, etc., 184, 611 opinions as to, admissibility of, 612 elements of compensation, what are, 610 in case of changing canal to railroad, 185, 611 destruction or injury to access, 184 to river, damaging shipping interests, 611 diverting, etc., highways by railroad, 194, 611 , railroad along turnpike, 183 crossing another railroad, 611 telegraph poles along railroad, 317 market value, what is, 611 speculative damages, 610 time when value is to be taken, 611 when structure is partly on land taken, 612 election of owner as to structure, 612 where benefits and injuries are blended, 610 value, admissibility of opinion as to, 612 conflicting claims to property taken, — adjudication of in common pleas court, 616 jury trial in, 616 nature of proceedings, 616 petition for, 616 not to be passed upon in appropriation proceedings, 616 constitutionality of provisions regulating, 606 corporate existence must be proven, 99, 608 defenses to proceedings for, — abuse of law of incorporation; incorporation for private ends, 183, 608 706 INDEX. (References are to pages.) APPROPRIATION — Continued. lack of public necessity, in case of railroads, 183 error, proceedings in, — bill of exceptions in, 609 conducted how, 614 costs in, paid by whom, 615 court ariirming cannot render personal judgment, 615 court may retain for trial and final judgment when, 615 trial to be had when, 615 continuance of, 615 oath and qualification of Jury in, 615, 609, 610 effect of, upon appropriation, 614 finding and order of court on preliminary hearing reversed by, 614 petition, filed when and where, 614 in case of taking unfinished road bed of railroad, 617 time for, in case of telegraph, etc., companies, 317 to reverse judgment of reversal, 615 fees and costs in. (See " proceedinys for" below.) of clerk of court of common pleas, 622 probate judge, 622 sheriff, 622 witnesses, 622 injunction against, 614 against use of land prior to, 620 interest acquired, — diversion of, to other purposes. 607 held only so long as used by public, 607 is permanent in case of railroads, 184, 607 such only as will answer public wants, 607 when an easement, — abandonment of: what constitutes, etc., 185 rights of owner of fee, 184, ISn, 607 jurisdiction of Probate Court in, 606 mode of exercising, 606 jurisdictional questions in, — burden of proof as to, 608 must be first heard and determined, 608 proof as to, 608 what are the, 608 in case of cemetery association, 357 change of location, etc., of railroad, 181 hydraulic companies, 354 when land of railroad is to be taken, 324, 318 by automatic package carrier company, 324, 318 electric light and power companies, 324, 318 telegraph companies, 318 telephone companies, 324, 318 lands desired, proof of, 600 new trial, — costs in, paid by whom, 614 disposition of moneys paid into court, in case of, 614 effect of, 614 granted only for cause, 614 in same court and under same provisions, 614 motion for, filed when, 612 petition for — filing of, — in common pleas court, wlien, 615 in probate court, when, 606 in what counties, 606, 607 when land in more than one county, 607 in case of automatic package carrier companies. 324, 317 electric light and power companies, 324, 317 telegraph companies, 317 telephone companies, 324, 317 when unfinished roadbed of railroad is to be taken, 617 description of land, etc., 606 deposit of sum for compensation to accompany, when, 622 effect of on costs, etc., 622 must show what, 606 in case of county agricultural society, 463 when lands of railroad are to be taken, — INDEX. 707 (References are to pages.) APPKOPRIATION — Continued. by automatic package caiTier companies, 324, 317 electric light and power companies, 324, 317 telegraph companies, 324 telephone companies, 324, 317 when unfinished road bed of railroad is to be taken, 617 purpose and necessity, allegation as to, 606 verification of, 606 power to make, — constitution does not confer, 605 in case of automatic package carrier companies, 324, 317, 318 avenue companies, 344 bridge companies, 34.5 over Ohio River, 346 cemetery association, 356, 357 county agricultural societies, 463 electric light and power companies, 324, 317, 318 gas companies (none), 350 hydraulic companies, 354 municipal corporations, — for pipe line for natural gas, oil or water, 571 for railroad purposes, 183 pipe line companies for natural gas, oil or water, 571 plank road companies, 329 railroad companies, 181, 183, 185, 188 after occupying the land, 185 in case of companies selling, etc., interest in road held in common, 280 in case of foreign companies, 284 to abolish grade crossings, 233 ship canal companies, 309, 181, 311 street railroad companies, 302 interurban roads, 307 telegraph companies, 317, 318 for change of location of poles, etc., 323 telephone companies, 323, 317, 318 turnpike companies, 329 union depot companies, 313, 183 water works companies (none), 350, 571 inseparable incident of sovereignty, 605 lodged in general assembly, 605 may be exercised directly or indirectly without judiciary, 605 powers of courts iu connection with, 605 pleadings in action for, — answer of railroad company when unfinished roadbed is to be taken, 617 applicability of rules of code pleading, 606 none required after petition, 600 petition (see "petition" above.) reply when unfinished roadbed of railroad is to be taken, 617 possession of property, — corporation may have, when, 613, 614, 616 final order necessary, 613 payment or deposit of amount of verdict and costs necessary, 613, 614, 616 owner entitled to, when, 614 lefusal of owner to accept, effect of, 613 writ for, may issue when, 613 proceedings for, — abandonment of, — costs in case of. ( See " Fees and costs " above. ) failure to pay compensation is, when, 613 permitted when, on what terms, 613 what constitutes when unfinished roadbed of railroad is taken, 617 amendment of, defects, etc., in, 609 bill of exceptions in, 609 brought where (see "Petition for" above.) conduct of trial in (see "trial" below.) conflicting claims to property in (see "conflicting claims" above.) ,', costs and expenses of, 622 f apportioned when and how, 622 expense of view of premises taxed in, 611, 612 in case of abandonment of proceedings. 613 action maj' be brought for, when, 613 708 INDEX. (References are to pages.) APPKOPRIATION — Continued. statute of limitations as to, 613 attorney's fees, expenses, etc., included when, 613 directors individually liable for, when, 613 judgment for, 613 in case of new trial, 614 in error proceedings, paid by whom, 615 of additional witnesses on same point, 612 v^hen unfinished roadbed of railroad is to be taken, 617 dismissal of, plaintiff may make, when, 607 error, proceedings in (see "error" above.) findings of fact and law — • sufficiency, 608 hearing out of its order, when unfinished roadbed of railroad Is to be taken, 617 by reviewing court, 617 judgment when unfinished roadbed of railroad is to be taken, 617 jury in,— discharge of, 609 drawing, etc., of, 608, 609 jurisdictional facts to be determined before, 608 challenges, peremptory and for cause, 609 charge to, 612 examination of, by court, 609 fees and mileage of, 622 filling panel, talesmen, etc., 609 impaneling new, 609 oath of, form for, 610 in case of street railways, 304 venire, issuance and return of, 608 what constitutes a constitutional, 3, 609 motion for new trial, filed when, 612, 613, 615 parties to, 606 court may appoint attorney for, when, 616 lessees, when, 607 inaking new, 600 mortgagees must be, 607 remainder men must be, 184, 607 when unfinished road bed of railroad is to be taken, 617 removal of, to federal courts, 571 revivor of, in name of heirs, 607 separate trials, who entitled to, 609 service by publication, may be made when, 584, 608 in case of taking unfinished roadbed of railroad, 617 summons in, issuance and service of, 607, 608, 609 alias writs, 608 in case of railroad appropriating school lands, 615 trials in — adjournment or continuance of, 609 ronduet of, 608, 609 affirmative, who holds, 608, 609 evidence, rules as to admission of, 609 exceptions, rules governing taking bill of, 609 discharge of jury, 60sl impaneling new jury, 609 time and order of, 009 when suit brought in common pleas court, 615 special term for trial of, when, 616 verdict in — confirmation of, 612 must be in money, 613 signing and record of. 612 view of premises, — description of property furnished for, 611 evidence not to be taken at, 612 expense of, taxed in costs, 611 motion for, who may make, 611 representatives of parties at, 611 writ for — form and return of, 611 when unfinished roadbed of railroad is to be taken, 617 witnesses in — evidence — (see "compensation" above.) difTerence in value proven, how, 612 fees and mileage of, 622 number of. allowed on same point, 612 .^sts of additional, taxation of, 612 INDEX. 709 (References are to pages.) APPROPRIATION — Continued, property taken by, — appropriation for other uses (see "what may be taken" below.) sale, etc., of canal lands to railroad company, 185 of railroad lands to another company, 607 purposes for which authorized, — abutments and aqueducts of hydraulic companies, 354 altering or abolishing highway crossings over railroad, 230 avenues, of avenue companies, 344 branch lines of railroad companies, 182 bridges, approaches, etc., of bridge companies, 345, 346 over Ohio River, 346 cemetery purposes, by cemetery associations, 356, 3.)T exceptions as to in certain cities, 357 change of location, route, etc., — in case of automatic package carrier companies, 323 electric light and power companies, 323 plank road and turnpike companies, 329 railroad companies, 181 what must be determined before, 181, 182 ship canal companies, 309, 181 telegraph and telephone companies, 323 culverts, ditciies, drains, water pipes, etc. in case of hydraulic companies, 354 railroad companies, 183 union depot companies, 313, 183 depots for railroads, 183, 185, 605 in ease of union depot companies, 313, 183 diversion, relocation, etc., of highways, bridges, pipe lines, streams, etc. by i-ailroad companies, 181, 605 ship canal companies, 309, 310 embankments, cuttings, etc., of railroads, 185 extension of street railway operated by steam railroad not permitted, 52 fair grounds for county agricultural societies, 463 fixtures of hydraulic companies, 354 hydraulic canals, 354 materials, etc., for construction, — in case of plank road and turnpike companies, 329 railroad companies, 183 ship canal companies, 311 union depot companies, 313, 183 poles, piers, fixtures, etc. in case of automatic package carrier companies, 323, 317 electric light and, power companies, 323, 317 telegraph companies, 317 telephone companies, 323, 317 public highways however built or owned, 605 race ways of hydraulic companies, 354 reservoirs, tanks, etc., of pipe line companies for natural gas, oil or water, 571 right of way, — in case of pipe line companies, 571 plank road and tarnpike companies, 329 railroad companies, 183 ship canal companies, 309, 310 temporary right of way not permitted, 185 right to cross lands to construct or repair. in case of automatic package carrier companies, 323, 317 electric light and power companies, 323, 317 hydraulic companies, 344. railroad companies, 183 telegraph companies, 317 telephone companies, 323, 317 union depot companies, 313, 183 roundhouses for railroads, 183 in case of union depot companies, 313, 183 ship canals, construction and maintenance, 309 stations (see "depots" above.) in case of automatic package carrier companies, 323, 317 electric light and power companies, 323, 317 telegraph companies, 317 telephone companies, 323, 317 710 INDEX. (References are to pages.) APPKOPEIATION — Continued. tracks, side trades, etc., of railroads, 1(6, 183, 185 in ease of union deijot ooiiipaniea, 313, 183 water channels, gates, wiers, etc., for hydraulic companies, 354 water stations for railroads, 183 in case of union depot companies, 313, 183 wharves, not included in powers of railroads, 185 work-shops for railroads, 183 in ease of union depot companies, 313, 183 right to enter and survey property, — constitutionality of provisions as to, 184 in ease of automatic package carrier companies, 323, 317 electric liglit and power companies, 323, 317 hydraulic companies, 354 pipe line companies for natural gas, oil or water, 571 piank road and turnpike companies, 329 railroad companies, 183 ship canal companies, 309, 311 telegraph companies, 317 telephone companies, 62S, 317 union depot companies, 313, 183 right to make, — quo warranto lies to test, 628 judgment of probate court as to, not a bar, 629 statutes authorizing construed strictly, 605 in case of railroads, 183 statute of limitations as to, 190 what may be taken, — abutting owners' property in street, by street railway, 302 amount of — corporation determines when, 184 eifect of taking more than necessary, 184, 606, 607 disposition of surplus, 184, 607 motion to make company take more, 607 artificial works which obstruct sliip canal, 310 bridges, causeways, dams, trestles, etc., by ship canal companies, 310 franchises and rights by bridge companies, 345 lands, etc. ( see also "purposes," etc., above.) used for parks, when, 607 what included in " lands," 184 materials for construction (see "purposes," etc., above.) natural objects which obstruct ship canal, 310 piers, wharves, etc., by ship canal company, 310 property of other companies, — by automatic package carrier companies, 323, 317 electric light and power companies, 323, 317 railroad companies, — for crossings o'ser another road, 185, 611 jjroperty of canal company, 185 unfinished roadbed of another company, when, 617 use of draw bridge over navigable A\aters, 242 street railroad company, — property of planlc road or turnpike compauy, 302 tracks of another company, 302 in ease of interurban companies, 307 in cities of 1st class, 3rd grade, 302 telegraph and telephone companies, 317, 323 cannot be, when, 607 lands not used and unnecessary may be, 607 of canal company by railroad, 185 cemetery association not permitted. 346 in counties containing cities of first and second class, 359 companies for protecting and preserving dead bodies not permitted, 573 plank road company by street railroad, 302 railroad company for various purposes, — automatic pacltage carrier line: limitations, 323, 317 crossings for another road, 185, 611 electric light and ])ower lines, 323, 317 right to use draw bridge over navigable waters, 242 telegraph and telephone lines, 317. 318, 323 unfinished roadbed by another company, when, 617 street railway company, tracks of, by another company, 302 i^VDEX. 711 (References are to pages.) APPROPRIATION — Continued. by interurban companies, SOT in cities of 1st class, 3rd grade, 302 turnpike company by street railroad, 302 rights of abutting owners, owner of fee, etc., — in case of canal lands, taken by railroad, 185, 611 planii road or turnpike talcen by street railread, 302 right t-o use streets, alleys, etc., — ■ in case of pipe line companies, 571 railroad companies, 188 ship canal companies, 311, 188 school lands, by railroads, when, 615 water for ship canals, 309, 310 By counties, — abandonment of verdict in, 622 chapter 8, § 6414 et seq. does not apply to, 622 for altering or abolishing railroad crossings over highways, 230 By municipal corporations, — abandonment of verdict in, 622 chapter 8, § 6414 et seq. does not apply to, 622 for altering or abolishing railroad crossings over highways, 230, 233 extending streets, etc., across railroad property, 43 pipe lines for natural gas, petroleum or water, 571 railroad purposes, as owner, 183 for use of corporation, cannot, 186 By state, township, district, — abandonm.ent of verdict in, 622 cliapter 8, § 6414 et seq. does not apply to, 622 Contract or agreement in lieu of, — action for compensation under, may include what, 620 ejectment upon breach of condition of, 620 equitable lien of owner, 621 enforcement of, 621 notice to subsequent purchasers, 621 Dower in land taken by, 186 Wrongful taking of land, etc., — • does not divest owner's title, 619 remedies for. (See "By corporations — compulsory," above.) conversion, action for, does not lie when, 621 ejectment, action for, may be brought, when, 620 injunction against use of land before appropriation, 618, 620, 621 in case of railroad company, 185, 607 mandatory, when, 620 trespass, action for, 621 not barred by appropriation, 621 what constitutes, 619 who liable in ease of, 619 APPROVAL. Interlocking system, etc., for railroad crossings, 23 ARBITRATION, ARBITRATORS. As to disputed claims under mechanic's lien against railroad, 85 gates and flagmen at railroad and highway crossings in cities of 2nd class, 3rd grade, 23 value of stock of stockholders, dissenting to lease, etc., — in case of electric light and power companies, 54, 206, 207 railroad companies, 206, 207 street railroad companies, 52, 55, 206, 207 ARTS, FINE. Academy or Museum of. (See Museum Companies.) AiiT SOCIETIES. (See Museum Companies.) Trustees of, number and term of, 113 ARTICLES OF INCORPORATION. (See also under respective companies.) Acknowledgment of, 96, 97 absence of, effect, 97 by how many incorporators, 96, 97 form for, 645 should be in this state, 97 who may take, 96, 97 official character to be certified, 100 712 INDEX. (References are to pages.) ARTICLES OP INCORPORATION — Continued, form for same, 645 Amendment of, — certificate of, — execution of, 102 filing and record of, 102 form for, 662 must state what, 102 corporations may make what, 102 discretion of secretary of state as to, 103 eflect of, on stock subscriptions, 1.S9 fees for filing. (See Fees.) form for, 661 incidental and auxiliary, what are, 103 meeting to make, 102 form for notice of, 661 for waiver of notice of, 661 minutes as to, forms for, etc., 661, 662 notice of, form for, 661 must be given, 102 waiver of, form for, 661 may be made, 102 takes effect when, 102 vote necessary for, 102 Copies of, — fees of secretary of state for making, 10 mandamus does not lie to compel issuance of certified, 101 prima facie evidence of corporate existence, 100 Execution of, 96, 97 blank or incomplete articles, 97 by how many incorporators, 96, 97 form for, 645 should be in this state, 97 signing by initials. 97 Filing of, 100 discretion and power of secretary of state, 94, 101, 103 fees for. (See Fees.) time of, what determines, 101 Forms for, 645-660 for organization ruling over subordinate bodies, 658 for profit, 645-656 limiting voting power of stock, 666 not for profit, 656-659 secretary -of state prescribes, 96 stating organic rules in articles, 693 Mistakes in, effect and correction of, 97, 98 Must or may show what, 94, 96, 121 when improvements, etc., are not at single place, 99 counties in or through which it passes, 99 kind of improvement, 99 termini of improvement, 99 sufficiency of description, !;9, 100 Omissions from, amendments may supply, 102 Record of, 100 in books of company — form for, 675 in case of benevolent, i-eligious and secret societies, 113 Substantial compliance with law necessary, 97 ^'otes of stockholders may be limited by, 121 purpose of — evasions, 122 ASS. Rate of toll for, — in case of bridge companies, 346 turnpike or plank road companies, 331 ASSAULT AND BATTERY. Corporation not liable for, 107 ASSESSMENTS. Against railroad companies. (See Commissioner of Railroad: Railroads.) For insurance. (See under various insurance companies.) For ta-ication. (See Taxation.) On account of impaired capital stock. (See I^'Sukaxoe Comi-anies. ) On stock subscription. (See Capital Stock.) INDEX. 713 (References are to pages.) ASSESSMENT COMPANIES: (See under various Insurance Companies.) ASSESSOR. Duties and powers of, as to listing personal property for taxation, 60 ASSETS. Amount of, — annual statement must show, 168 in case of companies limiting votes of stockholders, 121 Application of — order of, upon enforcing stockholders' liabilities, 155 ASSIGNMENTS. Executed by superintejident of insurance. (See Superintendent of Insurance.) Of stock. (See Stock Certificatk.s.) ASSIGNJVIENT FOR BENEFIT OF CREDITORS. By insolvent corporations, — power of foreign corporation to make, 14 preferences in, 167 agreement to execute mortgage is not, when, 167 cognovit note is not, when, 167 Ohio rule as to, U. S. courts will follow, 168 remedy of creditors in case of, 168 president pro tern. cannoL make, when, 126 unpaid stock subscriptions, jurisdiction of court of equity as to, 140 Includes stock held by assignor, 147 ASSIGNS. Liability of, for losses and expenses of mutual insurance companies, 421 ATTACHMENT. "Affidavit for, — in actions, before justice of peace, 624 to enforce certain judgments against railroad company, 585 order for delivery of books, papers, etc., in quo warranto proceedings, 634 sufficiency of, in action to enforce stockholder's liability, 162 Foreign corporation, — may be made garnishee, 586 non-residence of, ground for, when, 11, 13, 16, 585 compliance with section 148c exempts, 11, 13, 16, 586 constitutional ty ' of provision, 1 2 filing claim with receiver of, estops from, 586 in action before justice of peace, 024, 625 in case of banks, 530 what constitutes, 16, 581 stock of, owned by non-resident, not subject to, 16, 149 Garnishment, — corporation served as garnishee how, 586 in action before justice of peace, 625 foreign corporation may be garnishee, 16, 586 suit brought where, when debts due foreign corporation are attached, 586 Grounds for, — failure of trustees of certain corporation to file abstract of accounts, or report of trust funds is, 483 in action before justice of peace, 624, 625 judgment on claim against railroad for labor, material, etc., is when, 585 non-residence is when, 585 in action before justice of peace, 624, 625 in case of foreign corporation, 11, 12, 13, 16, 530, 585, 586 what constitutes, 16, 581 limitation as to, of railroad employee, 624. wrongful preference by corporation is not, 168 Jurisdiction in, 16 Lien of, when corporation insolvent, 168 Practice in, 16, 585 Residence of corporation for purposes of, 98 Receivership, effect of, — application for receiver may be attempt to defraud, 586, 588 creditors filing claim with receiver of foreign corporations estopped from, 586 in same jurisdiction as, cannot attach, 586 What is subject to, — benefits of fraternal beneficiary association are not, 400 cemetery lots are not, when, 358 stock certificates are, when, 149 in ease of foreign corporation, 16, 149 714 INDEX. (References are to pages.) J\.TTACHMENT — Continued. What enforced by, — actions to recover money, 585 demands arising upon contract, judgment, etc., — against railroad company, 585 in case of foreign corporations, 585 non-resident defendants, 585 injury to passenger may be demand upon contract, 586 statutory liability is demand upon contract, 162 demand arising from malicious prosecution of civil action by foreign corporation cannot be, 586 demand arising from wrongful injury or death, — in case of foreign corporations, 586 non-resident defendants, 586 order for delivery of books, papers, etc., in quo warranto proceedings, 634 for new election when directors were illegally elected, 632 ATTORNEY. (See Pbosecxjting Attorney.) Court may appoint in appropriation proceedings when, 616 Fees of, — in action for damages for usurping olTiee, franchise, etc., 632. to appropriate property, 613, 616 to enforce stockholders' liability, 163 when employed by humane societies, 466 Pleadings, motions, etc., signed by, when, 585 verified by, when, 585 -4TT0RNEY GENERAL. Discretion of, as to quo warranto, mandamus will not control, 629 Duties and powers of, — as to articles of incorporation, — of credit guaranty companies, 441, 365 of savings and loaji associations, 503 as to enforcing, — bequests, etc., for charitable uses, etc., 485, 486 conditions of railroad franchise, 194 duties of directors, officers, etc., of art academies, industrial training schools, law library, lecture, library, mechanic's institute, museimi, widows' home, etc., companies, 484 provisions as to — air brakes, automatic couplers, etc., 257, 258 banks and banking, 537 railroad bridges over canals, navigable water, etc., 213 reports and excise or franchise tax, — in ease of electric light, gas, messenger or signal, natural gas, pipe line, railroad, street, suburban or interurban railroad, union depot and water works companies, 79, 81 equipment (R. R. ), and freight line companies, 74 express, telegraph and telephone companies, 70, 79, 81 insurance companies other than life, 425 sleeping car companies, 75, 76 as to impairment of stock or assets of insurance companies, 33 quo warranto proceedings, 629 revocation of charter of building and loan association, 561 verification of pleadings, 585 Fees of, for collecting excise tax, in ease of electric light, express, gas, messenger, or signal, natural gas, pipe line, rail road, street, suburban or interurban railroad, telegraph, telephone, union depot, and water works companies, 81 equipment ( R. R. ) , and freight line companies, 74 sleeping ear companies, 76 Member of, — appellate tribunal relative to foreign corporations, 11 commission as to consolidation, reinsurance of risks, etc., of accident, health or life insurance companies. 867 state board of appraisers and assessors, 09, 72, 75, 78 state board of equalization for banks, 81 for railroads, 82 Report of, to general assembly. — as to farm laborers' association, 565 Reports to, farm laborers' association to make, 565 INDEX. 715 (References are to pages.) AUDITOR. Of corporations, — name and address of, report to s'.ate auditor to give. (See Address.) Of county. (See County Auditor.) Of state. (See State Auditor.) AUTHORITY TO DO BUSINESS. (See Foreign Coepohations : Insurance Companies, etc.; AUTOMATIC COUPLERS, AIR BRAKES, ETC. (See Railroads.) AUTOMATIC PACKAGE CARRIER COMPANIES. Agreements with other companies, 323, 316 Appropriation of property .by. (See Appropriation ), 323, 317 when lands of corporations are to be taken, 323, 317 when railroad lands are to be taken, 323, 317 change of location of poles, iixtures, etc., 323 of right of way over lands to construct, repair, etc., 323, 317 Buildings — entering or using without written consent of owner, 323, 317 erecting poles, etc., near to, 323, 317 Charges for service, — municipality cannot fix in agreement for use, etc., of streets, 323, 319 Consolidation of. — authorized when, 323 laws as to railroads apply to, 323 Instruments, machinery, wires, etc., of, interfering with, penalty, 323, 322 Xiines of, — construction of, — along roads, etc. (See "streets, alleys," etc., below.) means of: — posts, piers, etCi, 323, 315 must not incommode public, 323, 315 over railroads. (See Railroads.) trees, cutting and trimming, 316 construction of — over private property, — erecting poles, etc., without owner's consent, 323, 317 change of location of poles, etc., when corporation owning lands needs it, 323 injuring or destroying fruit or ornamental trees, 323, 317 joint ownership of, 323, 317 leasing of, 323, 316, 317 must not interfere with other lines, 301, 300 repair of, etc., when on lands of corporation, 323 right of way for, exclusive, unlawful to contract for, 323, 317 Packages, forwarding, discrimination in, etc., 323, 320 Powers of, 323, 316, 317 Sections 3454 to 3460 apply to, 323 3461 does not apply to, 323 3462 to 3471 apply to^ 323 ■Streets, alleys, highways, etc. (See "Lines of," above.) use and occupancy of. 323, 315 additional burden, 324 consent of abutting owner necessary, 324 consent of municipality necessary, 324 either above or below surface, 324 penalty for using without, 324 AUTOMOBILE. Law of road, as to, 334 Running on sidewalk or footpath, 334 AUTOMATIC SAFETY DEVICES. (See Railroad Crossings.) AVENUE COMPANIES. Avenues of, — appropriation of, within limits of cities of 1st class, 1st grade, 549 compensation for ; arbitration as to, 549 arbitrators selected, how, 549 failure to agree; refusal to arbitrate, 549 bonds to pay, etc., 549, 550. inability to agree, 549 proceedings for, 549 resolution declaring necessity of, 549 appropriation of property for, — 344, 548 consents of majority of property holders necessary, 548 record of, 548 free avenue companies may make, 548 proceedings for; law as to municipal corporations governs, 548 consent of municipal authorities necessary when, 549 foree and effect of; release of authority over, 549 716 INDEX. (References are to pages.) AVENUE COMPANIES — Continued, construction of, 344, 548 in case of free avenue companies, 548 length, width, munner, materials, etc., 344, 548 must be to acceptance of county commissioners, 344, 548 regulations as to, free avenue companies may make, 548 Incorporation of authorized, — in counties containing cities of 2nd class, 2nd grade, 344 containing not less than 100,000 population, 548 Toll, — company may collect, when, 344, 548 free avenue companies may not charge, 548 same as turnpike, etc., companies, 344, 548 Toll gates, erected when and where, 344, 548 BAGGAGE. Bicycle transported by railroad as, 268 need not be crated, 268. Interurban street railway may carry, 307 BALLOT. Election of directors by, 120 BANKING BUSINESS, Etc.— associations with banking powers, laws authorizing submitted to voters, 3 building and loan associations, — advancing money to members is not exercise of, 557 law does not grant power to do, 555 by foreign insurajice companies forbidden, 426 express authority necessary to do, 524 power to contract, liold and dispose of real and personal property does not authoiize, 111 religious corporations cannot do, 524 what doe.5 not constitute, — loaning money on note and mortgage, 367, 426 purchasing bill of exchange, 367 receiving money on deposit, 524 BANES, BANKERS, ETC. (See Building and Loan Association: Savings and Loan Association.) Books of — county may examine when, 65 Burglary insurance companies may insure, 445 Capital stock of, — ■ amount paid in must be shown in report to state auditor, 509 in statement for taxation by bankers and unincorporated banks, 62 shares of, — held by each stockholder, — list showing must be kept, 64 inspection of, by tax officers, 64 listing of, for taxation, 63, 64 statement for taxation of bankers and unincorporated banks must show, 62 lien on, for taxes, 82 par value of, report to county auditor to give when, 64 tax on, bank may pay when, 82 may deduct, from dividends, etc., 82 transfer of, delinquent taxes paid before, 82 value of, for taxation, auditor to fix, 64 equalization of, 81 Cashier of — duties, etc., of, as to returns for taxation, 64 reports to state auditor verified by, 541 Currency, bills, etc., as money, — accounts as to — by register of bank department, 5:55, 536 circulation, etc., of — -of expired, insolvent, etc., banks, 533 when not receivable at par. 528. 541 counterfeits, altered, etc., cancellation or stamping of, done how, penalty for refusing to stamp, 529 for stamping genuine notes, 529 who to make, 528 denominations of; penalty, 525, 526, 541 in case of foreifjn banks, 527 engraving and printing of, 535 express authority to make, etc., necessary, 525 foreign. — brokers, etc., not to circulate what, 527 not to import for circulation, 526 INDEX. 717 (References are to pages.) BANKS, BANKERS, ETC.— Continued. who deemed " brokers," 527 provisions as to, not to apply -when, 526, 527 fraudulent use or disposition of registered or unregistered, by state officials, 537 payable in lawful money of U. S., 525 penalties as to, 525, 527, 528, 529 paid into state treasury, 525, 527, 528, 529 recovered how, 525, 527, 528, 529 redemption payment, etc., of, — altered, mutilated, etc., 525 of failing banks, 536, 537 of insolvent, expired, etc., companies, 534, 543 failure to redeem, proceedings and penalty for, 534 persons entrusted with, not to circulate or delay, 527 , returned notes to be burned, 536, 537 certificates as to, 536 security for, — deposited with state treasurer, 534 accounts of, to be kept, 535 inspection of, who may make, 535 failure to maintain : quo warranto lies, 537 fraudulent use or disposition of, by custodians, etc., 537 sale and transfer of, when and how made, 535 sale of, to redeem notes of failing bank, 536 surrender of, upon ceasing to do business, 543 transferred to state treasurer, 535 suits on — against banks, stockholders, etc., 530, 531 unauthorized — (see "unauthorized hankincj" below.) Deposits — { see " unknown depositors " below. ) reports to state auditor must show what as to, 509, 510 Directors of, — injunction ancillary to quo warranto allowed when, 634 security required when, 634 Dividends, — bank may pay taxes on shares and deduct from, 82 none while delinquent taxes are unpaid, 82 reports to state auditor to show, 509, 510 Duties and powers of, generally, 127, 128 Kxaminations of — companies existing in 1845 subject to, 526 examiner for — appointment, compensation, duties, etc., of, 526 p]xpired and insolvent, — assets of — distribution of, 532 interest on, holders of, chargeable with, when, 532 receiver for funds to meet contingent or future liability, — • appointed when, 532 distribution of funds, etc., 532 investment of funds, etc., 532 suit for accounting as to, 532 books, papers, etc., of, examination of, 532, 533 J currency, bills, etc., as money — (see "Currency", etc., above.) examiner, master commissioner to investigate, — appointment of; by supreme court, when, 532 duties, powers, oath, etc., of, 532, 533 trustees of, may sue on warrant of attorney, 532 Foreign banking companies, — deposit with state treasurer, 12 sections 148e, 148d, do not apply to, 11, 12 suits by, and against, 529, 530 Free banking companies, — articles of incorporation of, 537, 538 acknowledgment of, 538 certified copies of, evidence of corporate existence, 538 form for, 696 must show what, 533 record, etc., of, 538 inspection of, 538 books, etc., of — false entries in, 542 capital stock, — amount of, 538 articles of incorporation must give, 538 company cannot hold or purchase its own, except, 539 718 INDEX. (References are to pages.) BANKS, BANKERS, ETC.— Continued. of other corporations, except, 539 paid in before commencing business, 538 directors must own what part of, 539 impairment of, dividends not to be made during, 542 increase of, 538 loans on its own, company cannot make, 539 shares of — lien on, company has, 539 number of — articles of incorporation must give, 538 held by eacli stockholder, 538 ' par value of, 539 personal property, 539 transfer of — bank not entitled to, of another bank, 539 by-laws prescribe as to, 539 consent of directors necessary when, 539 only on books of company, 539 voting power of, 539 withdrawal of, forbidden, 541 cashier, report to state auditor verified by, 541 corporate existence — commences when, 538 duration of, 538 directors of, — election of; notice of special, etc, 539, 540 liability of, for violating provisions of law, 542 loans to, limitations as to, 543 number of, 539 oath of, requirements as to, 539, 540 qualifications of, 539 owner of what part of stock, 539 resident of state, how long, 509 term of office of, 540 vacancies — filled how, 540 removal from state causes, 540 dissolution of, what works. (See Dissolution of Cobporation.) declaring dividend while capital impaired, 542 failure to elect directors does not, 540 violating provisions of law regulating, 542 dividends — declared when, 541 limited to net earnings, 541 not to be declared — from capital stock, 541 when capital stock is impaired, 542 when reserve fund is depleted, 541 evidences of debt, bills, etc., — company can assign for what purposes, 541, 542 fraudulently assigning, issuing, etc., 542 must be payable to company only, 541 not to be issued to circulate as money, 540 examinations and visitation of, 543 examiner to make; appointment, compensation, qualifications, etc., 543 expenses of; made when; report, 543 funds of, embezzling, misapplying, etc., 542 incorporators of, number of, 537 insolvency of, what transactions void after act of, 542 liabilities of, — limitation as to amount of, 540 report to state auditor must show, 541 loans, etc., — - company may make, 538 not on its capital stock, 539 not when reserve fund is impaired, 540 limitations as to — as to amount of, 541 to directors, 541, 543 to stockholders, 539, 541, 543 name of, articles of incorporation must give, 538 net earnings — dividends paid from, 54] how determined, 541 proportion of, carried to surplus fund, 541 officers, etc., of — cannot act as proxy, 539 embezzlement, etc., by: penalty, 542 organization of — articles must give time of. 538 certificate of compliance with law, before, 538 record of, with secretaiy of state, 538 INDEX. .71^ (References are to pages.) BANKS, BANKERS, ETC.— Continued. penalties for violating provisions as to, 542 place of business — articles mvist give, 538 ofEce for business and redemption of notes kept at, 538 powers of, 538 president, report to state auditor verified by, 541 real estate, may hold and convey what, — for business purposes, 538 to secure debts, etc., 539 limitations as to time of holding, 539 owner may redeem when, 539 reports of, to state auditor, — false, etc. ; penalty, 542 form of, auditor prescribes, 541 requirements as to, 541 reserve fund — amount of, 540 depletion of — dividend not to be declared during, 540 loans or discounts not to be made during, 540 must be in what, 540 resources, report to state auditor to show, 541 stockholders of, — liability of, amount of, 540 loans, etc., to, limitation as to, 541, .543 names of, articles must give, 538 number of shares held by each, articles must give, 538 proxy — may vote by, 539 who cannot act as, 539 residence of, articles must give, 538 voting powers of, 539 surplus fund: amount of; created h-ow, 541 Interest by, — rate of, in case of specially chartered companies, 523 usurious — effect of charging, 109 may be set up before or after judgment, 529 tender of legal, not necessary, 529 Investments, reports to state auditor must show what as to, 509, 510 Liabilities of — for default of notary, 8 reports to state auditor must show what as to, 509, 510 Loans, etc., reports to state auditor must show what as to, 500, 510 National — capital stock of, — what may be invested in, — assets of insurance companies other than life; limitations, 411 capital stock of insurance companies other than life; limitations, 411 deposits with superintendent of insurance, — in case of — fidelity guaranty companies, 413, 411 title guaranty companies, 515, 411 Officers of, etc., — cannot act as notary when, 8 liablity of — for failing to make -or making false return for taxation of company whose capital stock is divided into shares, 65 in ease of irregularities in organization, 523 powers of, fixed by custom, 128 Organization — effect of irregularities in, 523 of free banking companies (see "Free hanking companies" above). Penalties — for violating provisions of laws of organization, 537 President of, power to borrow money, 128 Quo warranto lies against when, 537 Ileal estate, — may hold what, 529 reports to state auditor must show what as to, 509, 510 taxed same as that of individuals, 64 Ksgistei' of bank department, — ■ appointed by state auditor, 535 duty, etc., of as to, — • accounts of blank circulating bank notes, 535 burning returned circulating notes of banks, 530, 537 delivery of blank notes to banks, 536 registering bank-notes delivered to banks, 536 securities deposited to redeem circulation, 534, 535 Reports of, to state auditor, — building and loan associations exempted, 509 720 INDEX. (References are to pages.) BANKS,, BANKERS, ETC.— Continued, form ofj 509, 510 in case of banks existing in 1845, 526 penalties for failing to jnake, 509, 537 publication of, 509, 510 requirements, etc., as to, 509, 510 Resources of, reports to state auditor must show what as to, 509, 510 Returns of, for taxation. (See Taxation.) State board of equalisation for. (See State Boabd of Equalization fob Banks.) Stockholders of, — liability of, — in case of irregularities in organization, 523 in case of unauthorized banking, 523, 524, 525 list of, sViowing names, residence, and shares held, 64 inspection of, by tax officers, 64 Suits against. (See "Expired and, insoh;ent" above.) officers of, — competent witnesses against, 530 depositions of, may be taken, 530 on bank notes (circulating), — copies of, etc., requirements as to, 531 exhibition or inspection of, 531 pleadings on; separate counts, 531 on notes, bills, written evidences of debt, etc., — pleadings and proceedings In, 530 Surplus or undivided profit, — listing for taxation in case of companies having no capital stock, 55 reports to state auditor must show, 509, 510 Taxation of. (See Taxation; see also "Capital stock" above.) Unauthorized banking, — banks doing, — comity does not authorize foreign, 523 partners in; liability; barred when, 523 securities given to, void when, 523 stockholders, etc., of, liability; barred when, 523, 524 what constitutes, 523, 524 bills, notes, paper, etc., unauthorized, — agencies, offices, etc., for redeeming forbidden, 525 foreign companies, cannot issue, 523 making, circulating, etc., forbidden, 525 penalties as to — paid into state treasury. 525 recovered how, 525 stockholders, partners, etc., liability of, for; barred when, 523 suits against stockholders to collect, 524 defendants in, 491 demand and notice unnecessary, 524 judgment in, 524 against one or more when, 524 pleadings in, 524 what constitutes, 523, 524 Unknown depositors, — deposits of, jiaid into county treasury when, 544 bank released upon such payment, 544 payment to claimants when and how, 544 appeal, etc., from decision as to, 545 sections 897, 6407 to 6410 apply to proceedings for, 545 penalty for non-compliance with provisions as to, 545 applied how, 545 paid into county treasury, 545 recovered how, 545 duty of prosecuting attorney as to, 545 who may sue for, 545 report of, to probate judge, 543 fees for making; payment of, etc., 544 inspection of record of, 544 record of, 544 requirements as to, 543 who are deemed, 543 BANKING POWERS. (See Banking Business.) BANKRUPTCY. Stockholders' liability provable in, when, 164 BARNS, STABLES, ETC. Appropriation of land on which situated, — cemetery associations cannot make, when, 357 INDEX. 721 (References are to pages.) BELliS. (See Eaileoad Crossings.) BENEFICIAL SOCIETIES. (See Benevolent Associations.) May liold stock in public hall companies, when, 395 elect directors of, when, 395 liability of, as stockholders, 395 BENEVOLENT ASSOCIATIONS, ETC. (See Beneficial Societies: Charitable Trust Companies: Insurance Companies.) Articles of incorporation of, — fees for filing, 9 may provide for fiscal trustees, when, 496 must be copied into book, 113. Assessments by certain secret societies, 501 Cemetery gTounds of, — location of, near dwelling house forbidden, when, 357 sale of certain, to townsliips, 489 sale of, excepted from general provisions as to real estate, 498 Consolidation of, 496 agreement for, 496 certified by clerk of first meeting becomes articles, 497 filed and recorded with secretary of state, 497 recorded with county recorder, 497 certified copy of, evidence of corporate existence, 497 made by whom; must specify what, 496 ratification of, 496 constitution, by-laws, rules, etc., 497 effect of, 497 meetings for, 496, 497 adjournment of, 497 who may vote at, 496 officers of new society, 496 powers and liabilities of new society, 497 property, etc., of original societies, — held in trust to be governed by original terms, 497 passes to new society, 497 subsequent consolidations, 498 transfer of real estate upon, 498 petition for, 498 decree of court upon, 498 notice of filing, 498 parties to, 498 Donations, etc., to certain secret societies, 501 Endowments, payment of, by certain secret societies, 501 amount of, 501 Fiscal trustees for, when women may be trustees, 495, 496 appointment of, 495 request for, filed with probate court, 495 compensation and number of, 495 powers and duties of, 495 terms of office of; vacancies, 495 Members of — right to vote, 113 who may be, 113 Name of, — consolidation agreements must give, 496 Property, funds, etc., of, — fiscal trustees to handle when women may be trustees, 495 powers and duties of, as to, 495 trustees, etc., may transfer and convey, when, 499 Real estate of, — sale, exchange or incumbrance of, — certain transfers, etc., validated, 499 petition for; must show what, 498 confirmation of sale under, 500 decree of court upon, 498, 500 notice of pendency of, 500 parties to, 498, 499 service of process, 499 purchase money mortgage may be given without order of court, 499 special laws empowering void, 499 without .luthority of court, im-alid. 499 Eeserve or accumulated funds of certain secret societies, — investment of, 500 trustees to take charge of, 500 722 INDEX. (References are to pages.) BENEVOLENT ASSOCIATIONS, ETC.— Continued. duties, powers, etc., of, 500 number, term; removal, 500 security from, for faithful discharge of duties, 500 Suits by and against, — certain secret societies may sue and be sued, 501 Trustees of lodges, societies, or bodies of, 113 BEQUESTS, ETC. Corporations may receive, for certain purposes. (See under various companies.) For charitable uses, etc., attorney general to enforce, when, 485, 486 Of dividends, includes stock, when, 14S To unformed corporation, 104, 486 BEVERAGES,— MANUFACTUREES, BOTTLERS, ETC., OF,— Fees for filing initials or names of, with secretary of state, 10 BIDS, BIDDERS. (See Street Railway Companies.) BICYCLE. Law of road as to: turn to right, 3.34 Railroads to transport as baggage, 268 need not be crated, 268 Running on foot path or sidewalk, 334 BILL OF LADING. (See Railroads.) BILL OF SALE. Necessary, in case of railroad scrap metals, 241 BLANK FORMS. (See Forms.) BOARD OF APPRAISERS AND ASSESSORS. (See State Board op Appraisers, etc.) BOARD OF APPRAISERS OF RAILROADS. Apportionment of valuation by: certificate of, 67 Compensation, 67 Consists of whom, 65 Contempt of, 67 Duties of, 66, 67 Meetings of; quorum, etc., 65, 66 Minutes and proceedings of, 65, 66 certified copies of, for each county, 66 inspection, etc., of, 66 Penalties for refusing to comply with requirements of, 66 President and secretary of, 65 Reports of, 66 Vote, necessary to action, 65 record of; yea and nay, when, 65, 66 BOARD OF DIRECTORS. (See Directors.) BOARD OF EQUALIZATION. (See State Board of Equalization.) BOARD OF PUBLIC WORKS. (See State Board of Public Works.) BOARD OF TRADE. (See Chamber of Commerce.) BOARD OF TRUSTEES. (See Trustees.) BOARDING. Of railroad construction hands. (See Railroads.) BOILER INSURANCE. (See Insurance Co's — Boiler. ) BONt)S — CORPORATE. (See also under respective companies.) Amoimt of; limitations upon, 150 in ease of Ohio River bridge companies, 348, 150 railroad companies, 196, 200, 209 certain narrow gauge roads, 199 consolidated companies, 209 street railroad companies, 200 issues in excess of, effect, 200 Convertible into stock, — ■ amount of, limitation upon, 151, 152 assent of stockholders to, 151 common or preferred stock, 152 in case of railroad companies. 209 fraudulent purpose of issue of, 198 holder of, not entitled to stock dividends when, 208 interest upon, 152 may be issued when, 151, 152 in case of railroad companies, 196 ijonsolidated railroad companies, 209 INDEX. 723 (References are to pages.) BONDS — CORPORATE — Continued. proportion of bonds to stock upon conversion, 198 refusal to convert bonds, — pleadings in action for, 152, 198 right of action for, cannot be assigned, 198 riglit of conversion follows bonds, 152, 198 secured how, 152 Corporations may invest what in, — insurance companies other than life, — assets, capital stock, deposit, in bonds of railroad or solvent corporation, 411 fidelity guaranty companies — deposit with superintendent of insurance in bonds of railroad or solvent corporations, 413, 411 safe deposit and trust companies and savings and loan associations in certain cities, — capital stock and trust deposits in railroad bonds, 511, 515 title guaranty companies — deposit with state treasurer in bonds of railroads or solvent corporations, 515, 411 ' Corporations may issue, 150 in case of railroad companies, 190, 200, 209 certain narrow gauge roads, 190 consolidated railroad companies, 209 in ease of street railroad companies, 200 Coupon bonds, — change of, into registered or vice versa, 167 effect of, 167 corporations may issue, 150 in case of Ohio River bridge companies, 348, 150 coupons attached to securities deposited by companies, delivered to company how, 35 negotiability of coupons, 197 Denominations of railroad, in foreign currency when, 210 Exchange of, for materials, services, etc., 201 Execution against, before delivery, 199 / Guaranty of — effect of; sale or loan, etc., 201 Holders ofi right to vote for directors of railroad company, 203 Interest upon, 150 cumulative when, 200 in case of Ohio River bridge companies, 348, 150 railroad companies, 196, 197, 200, 209 certain narrow gauge roads, 199 consolidated railroad companies, 209 street railroad companies, 200 reports of railroad must state what as to, 28 Interpretation and construction of, 198 Issuance of, — mandamus to compel will not lie when, 197 to further objects of illegal amendment of articles void when, 103 Par value of — in case of railroad and street railroad companies, 200 Payment of, secured how, 150 effect of conditions in mortgage upon, 197 in case of Ohio River bridge companies, 348, 150 railroad companies, 196, 200, 209 certain narrow gauge roads, 199 consolidated railroad companies, 209 street railroad companies, 200 Proceeds of — ^are trust funds when, 197 misuse of, injunction to prevent, 197 Purposes for which issued, — in case of railroad companies, 196, 200, 209, 210 certain narrow gauge roads, 199 consolidated railroad companies, 209, 210 in case of street railroad companies, 200 Railroad companies may purchase of bridge companies, 347 Redemption of — railroad companies may issue bonds or stock for, 196, 208, 209 Registered — change of, into cbupon or vice versa, 167 corporations may issue, 150 in case of Ohio River bridge companies, 348, 150 Sale — mortgage, pledge, etc., of, — below par, 150 in case of Ohio River bridge companies, 347, 201 railroad companies, 201 724 INDEX. (References are to pages.) BONUS — CORPORATE — Continued. foreign railroad companies, 201 to directors, void when, 211 committee for, powers of, 150 compensation of broker for, 150 in case of railroad companies, 201, 210 certain narrow gauge roads, 199 consolidated companies, 209, 210 powers of directors as to, 152 of president, 151 time, place, and rate — in case of Ohio River bridge companies, 347, 201 in case of railroad companies, 201, 209, 210 in case of certain narrow gauge railroads, 199 under proceedings in aid of execution before deliverj' by company, 199 usury in, 201 Second mortgage bonds, certain narrow gauge railroads may issue, 199 Section 3256 applies to, in case of Ohio River bridge companies, 348 Validity of, company estopped to deny when, 198, 200 Vote authorizing. — of directors; yea and nay vote; record of, 152 of stockholders of railroad company, 196, 209 in ease of certain narrow gauge roads, 199 consolidated railroad companies, 209 BONDS — INDEMNITY AND OFFICIAL. (See also under various companies and officers. ) Approval of, — by governor — in case of commissioner of railroads and telegraph, 21 in case of superintendent of insurance, 31 by superintendent of insurance — in case of deputy, 31 when fidelity and guaranty company is surety, 415 Costs of, allowance of, when fidelity and guaranty company is surety, 415 Filed with secretary of state, — in case of commissioner of railroads and telegraph, 21 superintendent of insurance, 31 Injunction. (See Injunction.) Of bidder for street railway grant, 49 Surety on, — fidelity and guaranty companies may be when, 414, 415 cannot be of superintendent of insurance, 415 liability of, on bond of treasurer of corporation, 127 Time for giving in case of action by municipality to collect fines, etc., against railroad and telegraph companies, 30 To protect stockholders, rights of creditors under, 158 BONDS — PUBLIC. County, — for altering or abolishing railroad and highway crossings, 231 denominations of; interest; tax; sale of, etc., 231 what may be invested in, — assets or accumulation of, — credit guaranty compaiiies, 442, 360, 365 farm laborers' associations, 564, 565 insurance companies other than life, 411 life insurance companies, 368 savings and loan associations, 505 capital stock of, — credit guaranty companies, 441 insurance companies other than life, 411 life insurance companies, 365 safe deposit and trust compa,nies, 511 may be of other states when, 511 savings and loan associations in certain cities, 514, 515, 511 deposits in trust of, — safe deposit and trust companies, 511 may be of other states when, 511 savings and loan associations in certain cities, 514, 515, 511 deposits with inspector of building and loan associations, — in case of foreign companies, 559 deposits with state treasurer, — in case of bond and investment companies, 518 title guaranty companies, 515, 411 INDEX. 725 (References are to pages.) BONDS — PUBLIC — Continued. what may be invested in, — deposits with superintendent of insurance, — as inspector of building and loan associations (foreign), 559 in case of accident insurance companies insuring employers, 414 credit guajranty companies, 441, 365, 300 foreign companies, 444 fidelity guaranty companies, 413, 411 foreign companies, 413, 411 insurance companies other than life foreign to U. S., 428 life insurance companies, 366, 365 companies foreign to U. S., 373, 366, 365 companies of other states, 371 reserve fund of purely accident assessment insurance companies, 391, 368 Municipal, — for altering or abolishing railroad and highway crossings, — denominations; interest; tax; sale of, etc., 231 for appropriation of avenues, etc., of companies, 549, 550 execution, interest, sale, tax., etc., 550 what may be invested in, — assets or accumulations of, — credit guaranty companies, 442, 306, 365 insurance companies other than life, 411 life insurance companies, 368 savings and loan associations, 505 capital stock of, — credit guaranty comjiauies, 441 insurance companies other than life, 411 life insurance companies, 365 safe deposit and trust companies, 511 may be of other states, when, 5,11 savings and loan associations in certain cities, 514, 515, 511 deposits in trust of, — safe deposit and trust companies, 511 may be of other states, when, 511 savings and loan associations in certain cities, 514, 515, 511 deposits with inspector of building and loan associations, — in case of foreign companies, 539 deposits with state treasurer, — in case of bond and investment companies, 518 title guaranty companies, 515, 411 deposits with superintendent of insurance, — as inspector of building and loan associations (foreign), 559 in case of accident insurance companies insuring employers, 414 credit guaranty companies, 441, 360, 365 fidelity guaranty companies, 413, 411 foreign companies, 413, 411 insurance companies other than life, foreign to U. S., 428 life insurance companies, 366, 365 companies foreign to U. S., 373, 366, 365 companies of other states, 371 reserve fund of purely accident assessment insurance companies, 391, 368 sinking fund, of cem.etery associations, 361 School, — assets or accumulations of savings and loan associations, invested in, when, 505 Stat«, what may be invested in, — assets or accumulations of, — credit guaranty companies, 442, 366, 365 farm laborers' associations, 564, 565 insurance companies other than life, 411 may be of other states, 411 life insurance companies, 368 savings and loan associations, 505 may be of other states, when, 505 capital stock of, — - credit guaranty companies, 442 insurance companies other than life, 411 life insurance companies, 365 safe deposit and trust companies, 511 jnay be of other states, when, 511 saving and loan associations in certain cities, 514, 515, 51 1 726 INDEX. (References are to pages.) BONDS — PUBLIC — Continued, deposits in trust of, — safe deposit and trust companies, 511 may be of other states, when, 511 saving and loan associations in certain cities, 514, 515, 511 deposits with inspector of building and loan association, — in case of foreign companies, 559 deposits with state treasurer, — in case of bond and investment companies, 518 title guaranty companies, 516, 411 deposits with superintendent of insurance, — as inspector of building and loan associations (foreign), 559 in case of credit guaranty companies, 441, 366, 365 foreign companies, 443, 444 may be bonds of other states, 444 in case of fidelity guaranty companies, 413, 411 foreign companies, 413, 411 in case of insurance companies other than life, foreign to U. S., 428 in case of life insurance companies, 366, 365 companies foreign to U. S., 373, 366, 365 companies of other states, 371 may be bonds of other states, 371 reserve fund of accident assessment insurance companies, 391, 368 sinking fund of cemetery associations, 361 Township, — what may be invested in, — assets and capital stock of insurance companies other than life, 411 deposit with state treasurer in case of title guaranty companies, 515, 411 deposit with superintendent of insurance, — in case of accident insurance companies insuring employers, 414 fidelity guaranty companies, 413, 411 United States, — what may be invested in, — assets or accumulation of, — 'credit guaranty comijanies, 441, 366, 365 farm laborers' associations, 560, 565 insurance companies other than life, 411 life insurance companies, 386 savings and loan associations, 505 capital stock of, — credit guaranty companies, 441 insurance companies other than life, 411 life insurance companies, 365 safe deposit and trust companies, 511 savings and loan associations in certain cities, 514, 515, 511 deposits in trust of bond and investment companies, 518 deposits with inspector of building and loan associations, 559 deposits with state treasurer in ease of title guaranty companies, 515, 411 deposits with superintendent of insurance, — as inspector of building and loan associations, 559 in case of accident insurance companies insuring employers, 414 credit guaranty companies, 441, 306, 365 foreign companies, 444 fidelity guaranty companies 413, 411 foreign companies, 413, 411 insurance companies other than life, foreign to U. S., 428 life insurance companies, 360. 365 companies foreign to U. S., 373, 366, 365 companies of other states, 371 reserve fund of accident assessment insurance companies, 391, 368 sinking fund of cemetery associations, 361 BOND AND INVESTMENT (DEBENTURE) COMPAXrKS. Agents of, — appointment and license of; fees for, etc., 519, 520 doing business when company has not complied with law, 520 Business of, — carrying on improperly or unlawfully; quo warranto lies, 520. certificate of authority to do, 519 fees for filing application for; issuing and renewal of, 520 renewal of, annually, 519 revocation of, 519 supervisor issues, when, 519 commencing — deposit necessary before, 518 INDEX. 727 (References are to pages.) BOND AND INVESTMENT COMPANIES — Continued, wliat must be filed, before, 519 C'op\- of by-laws, charter, report, etc., 519 nature of, 518 Deposit with state treasurer, 5 IS action to collect claims payable from, 38 amount of, 518 applies to partnerships, associations, etc., 518 building and loan companies excepted, 518 capital stock paid up used for, 518 cxciiange of, 519 in case of existing companies, 518 income from, companies entitled to, when, 519 in what securities, 518 object and purpose of, 518 release of, upon ceasing to do business, 518 Examination of (see "Reports," below.) fees and expenses of, 520 supervisor may make, when, 519, 520 foreign deposits ■with state treasurer before doing business, 12 sections 148c, 148d do not apply to, 11, 12 Officers of, doing business wlien company has not complied with law, 520 Proi-isions as to — apply to partnerships, associations, etc., 518-520 penalties for failure to comply witii, 520 Quo warranto against, supervisor brings, when, 520 notice to company before, 520 Reports to supervisor, — exemption from provisions of " Willis Law," 20 failure to make, penalties for, 520 revocation of license to do business, 519 false or fraudulent; revocation of license to do business, 519 fees for filing, 520 forms for, 519 posting at principal office, 519 publication of, 519 requirements as to, 519 Service of process upon, 519 designation of supervisor as attorney for purposes of, 519 made before commencing business, 519 Supervisor of, — acting and deputy inspector of building and loan association is, 520 duties and powers of, as to, — ceitificate of authority to do business, 519 examinations of companies, 519, 520 generally, 520 licensing agents of, 519 process served upon him', 519 quo rcarranto proceedings against, 520 reports of companies, 519, 520 fees, etc., of, — for affixing seal and certifying papers, 520 eertiiieate of authority to do business, 520 renewals of, 520 filing annual reports, 520 application for authority to do business, 520 papers, 520 license to agent, 520 paid into state treasury, 520 BONTDING COMPANIES. (See Insurance Co.'s — Accident and Health: iNSintANCE Co.'s — Fidelity Guaranty : Insurance Co.'s — Other THAN Life : Insurance Co.'s — Title Guaranty : Safe De- posit and Trust Companies.) BOOKS AND PAPERS. Duty of directors of corporations to keep, 130 Evidence, when, 144 as to who are stockholders, 144 Examination and inspection of, — county auditor may make, of banks, when, 65 stockholder entitled to, 142, 146 form for regulations as to, 670 728 INDEX. (References are to pages.) BOOKS AND PAPERS — Continued. in case of foreign corporations, 15 motive of stockholder, 146 remedy for refusal to permit, 146 pleadings in action for, 146 superintendent of insurance may make of insurance companies, 32, 57, 59 upon discontinuance of business — in case of insurance companies, 37 in case of life insurance companies, 36 Forms for, of corporations, 674, 675 Production of, — commissioner of railroads and telegraphs may compel, 29 state board of appraisers and assessors may compel, — in case of electric light, gas, messenger or signal, natural gas, pipe line, rail- road, street, suburban or interurban railroad, union depot and water companies, 79, 80 equipment (K. R.) and freight line companies, 73 express, telegraph and telephone companies, 70, 79, 80 sleeping car companies, 75 Subscription, to capital stock. ( See Capital Stock. ) Transfer of stock on. (See Capital Stock.) BRAKEMAN. (See Railroads.) BRANCHES OF RAILROADS. (See Railroad Companies.) BRIDGES. (See Bridge Companies: Railroads: Railroad Crossings: Turnpike, etc.. Companies.) Lighting of, municipality may require. (See Municipal Corporations.) expense of — assessment for when done by municipality, 45 lien for; enforcement, etc., of, 45 failure to comply with requirements as to, 45. notice as to, 45 ordinance requiring must specify what, 44 Of bridge companies — generally. (See Bridge Companies — Generally.) ovei Ohio River. (See Bridge Companies — over Ohio River.) Power of ship canal company as to. (See Ship Canal Companjjcs.) BRIDGE COMPANIES,— GENERALLY. Bridges of, — approaches to, appropriation or purchase of property for, 345 construction of, franchises, rights, etc., appropriated for, 345 lighting of in municipalities. (See Municipal Corporations.) regulations as to, company may make, 340 sale, etc., of, to municipalities when within limits, 345, 335 section 3492 applies to, 345 site of, appropriation or purchase of, 345 streets, roads, avenues, used for, 345 watchmen at; powers of, 346 arrest by, without warrant, 346 Powers of, 345 Real estate — company may appropriate what, 345 may hold in fee or otherwise, 345 Return of, for taxation, 56 Section 3492 applies to, 345 Tolls— may fix and collect; limitations, 347 rates of, 345, 346 demanding inore than permitted, 345 effect of provisions as to, upon special charters, 346 for use by railroad, 347 must be posted, 345. 347 BRIDGE COMPANIES — OVER OHIO RIVER. Bonds of. (See Bonds — Corporate.) Bridges of, — approaches to, appropriation or purchase of property for, 346 extension of, etc.; bonds for, 348 construction of, over street, road, etc.; limitations, 346 contracts with railroads for use of, 347 toll chargio ii., O^i height of, — over river at low water mark^ 348 change of, 348 over streets, etc., 346 lighting of, in municipalities. (See Municipal Corporations.) power of congress over; withdrawal of assent to, 346 INDEX. 729- (References are to pages.) BRIDGE COMPANIES — OVER OHIO RIVER — Continued. railway tracks on, 347 site of, appi-opriation or purchase of, 346 spaijs of — length of; change of, 348 streets, roads, avenues, etc., used for, 346 piers or obstructions in, consent of authorities is necessary, 347 Capital stock of, subscriptions to, — private corporations may make, when, 347 railroad company may make, when, 347 Consolidation, — laws as to railroads apply to, 347 powers of, upon, 347, 348 what companies may consolidate, 347 Directors of, duties and powers as to sale, etc., of bonds, notes, etc., 347, 201 Feriies, companies may purchase, etc., 348 location of, 348 rates of ferriage controlled by authorities, 348 Franchises of — -mortgage of, 347 pass under foreclosure of mortgage, when, 347 Liability of for injuries to private property, 347 statute of limitations as to, 347 Mortgages of — -may include what, 347 sale under, passes what, 347 Powers of, 346 to borrow money, 348, 150 purposes for which, 348 Real estate — may hold in fee or otherwise, 346, 347 Sections 3256, 3290 apply to, 348, 347 Securities, notes, etc., of. (See Bonds — Corpobate.) BROKER. Compensation of, for selling bonds, 150 BUILDING COMPANIES (COMPANIES TO CONSTRUCT.) For hotels, storerooms, offices, factories, etc., 573 cannot deal in real estate, 573 power to acquire, lease, hold, etc., real and personal property, 573 consent of stockholders necessary, when, 573 meeting of stockholders to aut):orize, 573 notice of, 573 For lodge, chapel, etc., purposes, — corporations not having capital stock may hold stock in, when, 395 elect directors, etc., when, 395 liability of, as stockholders, 395 BUILDING AND LOAN ASSOC EATIOxSTS. (See Savings and Loan Companies.) Are corporations for profit, 652 Attorney of — bond of, not an official bond, 557 liability of; penalties against, 562 not an officer, 557 Auditing committee, duty as to report to inspector, 560 Bank book, treasurer's; inspection of, 557 Banking powers, exercise of, — advancing money to members is not, 557 not authorized; no power to, 555. Bonds of officers, 557 additional sureties, 557 directors not eligible as sureties, 557 liability for neglect as to, 557 renewal of, 557 Borrowing member, who is, 556 Borrowing money, power of, 554 evidences of indebtedness for, 654 limitations upon, 554 purposes for which authorized, 554 Books and papers of, — examiners may have access to and compel productior o' 56^ false entries, etc., in; penalty, 562 Bureau of. (See "Inspector of," below.) establishment of, 559 By-laws, etc. ( See " Constitution." below. ) amendment of; limitations, etc., 556 certified copy of, filed with inspector, 560 730 INDEX. (References are to pages.) BUILDING AND LOAN ASSOCIATIONS — Continued, directors adopt, 556 proof of adoption of, 556 pro^■ide as to — consolidations, 563 dissolution, time and terms of, 563 dividends, 556, 558 issuing stock to members, 552 loans to members, depositors, etc., 555 withdrawal of dues, 554 Cancellations. (See " Ca%iital stock, shares of"; " morlgayes," below.), Capital stock of, — amount of in articles refers to autliorized capital, 552 dues and payments upon, 552, 595 increase and decrease of, 356 certificate o-f filed with secretary of state, 556 fee for filing, D directors may make, 556 shares of — ■ cancellation and reissue of, 554 certificate of, terms and conditions of issuing, 552 minors may hold, etc., 554 number of, held and voted by one person, 552 taking in name of another, 552 par value of, increase or decrease of, 556 certificate of, filed with secretary of state, 556 taxation of, 558 voting power of, limitations as to, 552 withdrawal of, 554 subscriptions to, — amount of, before commencing business, 552 corporation may make, 109 transfer of,— fees for, equitable not chargeable with, 552 injunction to prevent, 552 Charter, revocation of, for illegal practices, 561 attorney-general brings proceedings for, when, 561 duty of inspector as to, 561 notice to association before, 561 Checks of. ( See " Funds," below. ) Committees of, liabilities of; penalties against, 562 Compromises, power to make, 554 Consolidation, constitution and by-laws provide for, 563 Constitution of. (See "By-laws, etc..'' above.) amendments to, effect on contracts, 556 legality of, estoppel to deny, 557 members adopt, 556 Contingent fund. ( See " Reserve fund," below. ) Definition of, 551 Deposits and interest on, 552 Depositors — rights of, 552 who are, 555 Directors of, — duties and powers of as to — adopting by-laws, 556 authorii;ing cheeks, 557 designating bank for deposit of funds, 557 increase or decrease of capital stock, par value of shares, etc., 556 inspection of treasurer's bank book, 557 reports to inspector, 560 liability of; penalties, 562 for neglect as to bonds of officers, 557 not eligible as bondsmen of officers, 557 term of, 552 Dissolution of, powers as to, 556 attorney-general to institute proceedings for, wlien, 561 constitution and by-laws provide as to, 563 duty of inspector as to, 561 sale of mortgages, securities, etc., upon, 563 vote of members as to, 5 "6 Dividends — constitution and by-laws provide as to, 558 declaring cr voting for greater than earned, 562 earnings transferred to, when, 558 payment of — estoppel of borrowing members as to, 558 INDEX. 731 (References are to pages.) BUILDING AND LOAN ASSOCIATIONS — Continued, time and manner of, 558 power to make, 556, 558 rights of withdrawing members to, 554 Doing business contrary to law; penalty, 562 aiding or assisting in; penalty, 502 Domestic, what are, 551 Dues — are payments on stock, 553, 595 in insolvent associations, 553 payment of. (See "payments," below.) jjower to assess and collect, 552 withdrawal of, 551 by-laws, etc., may provide as to, 554 notice of, effect of, 554 does not save from liability for losses, 558 payment of mortgage by means of, 554 rights and liabilities of members upon, 554 moneys unlawfully paid to, as treasurer may be set off against, 557 Earnings — expenses paid from, 558 i transferred to dividends, when, 558 Examinations of, by inspector, 560, 561 appointment and powers of examiners, 559, 560 expenses of, 560 made when, 560 publication of results of, 560 Fees for filing — articles of incorporation, 9 certificate of increase of capital stock, 9 in case of foreign corporations. ( See " Foreign corporations," below. ) Fines, — power to assess and collect, 552, 553 for default of interest, none, 553 only one for same default, 553 up to what time, 55-3 security for payment of, may, be taken, 553 Foreign, — authority to do business, 559 application for, fees for filing, 561 cancellation of — causes for, 561 duty and power of inspector as to, 561 notice of, mailing and publication of, 561 unlawful to do business after, 561 certificate of and renewal — inspector grants, when, 560 fees for, 561 what necessary before granting, — appointment of inspector as attorney for service of process, 559 deposit with state treasurer or inspector, 559 filing of charter, constitution, by-laws with inspector, 559 deposit with state treasurer or inspector, 12, 559 action to collect claim payable from, 38 amount and nature of, 559 deposited with state treasurer, 562 delivered up only on order of inspector, 562 exchange of securities, 560 interest on securities, 560 liability of, for claims, 560 release of securities upon ceasing to do business, 560 laws governing domestic associations apply to, 559 penalties for doing business contrary to provisions as to, 562 sections 148c, 148d do not apply to, 11, 12 service of process upon, 559 inspector, attorney for, 559 must mail to home office, 559 what are, 551 Funds of — bank for deposit of, designation, 557 checks withdrawing — directors must authorize, 557 signed by whom, 557 embezzlement, misappropriation, etc., of; penalties, 562 Inspector of, 559 appointment of, as attorney for foreign, for service of process, 559 bond of, 559 approval of, by governor endorsed, 559 732 INDEX. (References are to pages.) BUILDING AND LOAN ASSOCIATIONS — Continued, filed with secretary of state, 559 clerks and examiners — appointment by, 559, 560 compensation and names of, report to legislature to show, 563 compensation of, 559 as supervisor of bond and investment companies, 520 deputy — appointment and duties, 559 compensation of, 559 duties and powers of, 559 as to examination of association, 560, 561 of foreign associations, 559, 560 expenses of, report to legislature must show, 563 fees of, 561, 562 for certifying papers under seal, 562 copies of papers, 561, 562 in case of foreign associations, 561 paid into state treasury, 562 income, amount and source, report to legislature to show, 563 is supervisor of bond and invbstment companies, 520 oath of ofiice, indorsed on bond, 559 offices of, 559 record of proceedings of, to be kept, 563 report of, to legislature, 563 superintendent of insurance is, ex officio, 559 Interest — on deposits; 552 on loans — exemption from usury laws unconstitutional, 552 power to collect, 552 what is not usury in, 553 when in hands of receiver, 553 on premiums, not authorized, 553 Loans — cancellation of. terms of, 6tc., 555 expense of, not current expenses, when, 558 interest on. (See "Interest," above.) made to whom; not to non-members, 555 refusal to make to members, 555 premiums on. ( See " Premiums," below. ) purpose of; inquiry as to not required, 555 Losses, — assessment of, upon members, basis and rule for, 558 liability for, notice of withdrawal does not exempt from, 558 mortgage not satisfied until pro-rating of, 558 payment of, from reserved fund, 557 rights and liabilities of withdrawing members as to, 554 Members of — -assessment of losses against, 558 borrowing, who are, 556 compromise with, power to make, 554 -Minors may hold stock in, 554 receipt of, valid acquittance, when, 554 ' Money, etc., — order, etc., for, signing without power of attorney of payee, 562 unauthorized receiving, in name of association, 562 Mortgages of. ( See " Loans," above. ) amendment of constitution and by-laws, effect on, 556 assignment of, after petition for dissolution, 596 attorney's fee, in absence of default, 553 foreclosure of — computation and distribution upon, 555 decree for, confined to what amount, 555 suit for, prematurely brought, 555 payment of, by withdrawal claims, 534 sale and transfer of, upon dissolution, 563 satisfaction of, losses must be pro-rated before, 558 taxes on property in, rights of association, 555 unauthorized assignment, cancellation, etc., of, 562 Notes, drafts, etc., of, unauthorized assignment, cancellation, etc., of, 562 Officers of — bonds of. (See "Bonds," above.) liability of; penalties, 562 Organization of — is under general corporation law, 551 Payments to, — controversy as to, burden of proof, 554 default in — stoppage of, is not, when, 554 made how; in what, 553 of dues in company in liquidation, not required, when, 595 INDEX. 73a (References are to pages.) BUILDING AND LOAN ASSOCIATIONS — Continued. time and place of, 553 Penalties for violating provisions as to, 562 Personal property- — pov^'er to acquire, hold, etc., 554 sale and transfer of, upon dissolution, 562 Powers of, 551-557 constitution and by-laws provide for exercise of, 556 none to do general banking business, 555 Premiums on loans • — are not usurious, 553 cannot be collected when, 553 extortionate, 553 how fixed under old law, 553 interest on, not authorized, 553 power to assess, and collect, 552 President of, — certificate of increase or decrease of capital stock, etc., made by, 556 checks signed by, when, 557 liability of; penalties, 562 Keal estate, power to hold, etc., 554 cannot buy for purpose of allotment, 554 sale and transfer of, upon dissolution, 563 Receiver for. (See Receivees.) directors cannot apply for, when, 588 Reports of — attestation and oath to, 560 exemption from provisions of "Willis Law,'' 20 failing to make; penalty, 562 false, making or certifying, 562 fees of inspector for filing, 561 filed when and as of what date, 560 with inspector, 560 form of, inspector prescribes, 560 must show what, 560 posting and publication of, 560 provisions regulating, of banks do not apply to, 509 Reserve fund — amount of, 557 losses to be paid from, 557 power to accumulate, invest, etc., 556 purpose of, 556 who interested in, 558 Secretary of, — certificate of increase or decrease of capital stock, etc., made by, 556 checks signed by, when, 557 duty of, as to reports to inspector, 560 liability of; penalties, 562 Stockholders. (See "Members," above.) Taxation of — shares and loans of borrowing members exempt, 558 shares of non-borrowing members must be listed, 558 Treasurer — bank book of; directors may inspect, 557 deposit of funds in bank by, 557 liability of; penalties, 562 Withdrawals. (See "Dues," above.) BURGLARY. (See Insubance Co.'s — Bdrglaky, Etc.) BURIAL GROUNDS. (See Cemeteky Associations.) BUSINESS. Authority to do. (See Foueign Corpobation. ) Banking. (See Bajs-ks, etc.) Discontinuance. (See Dissolution.) Insurance. (See Iksueanoe. ) Of corporations. (See Cokpobations. ) Place of. (See Place op Business.) BY-LAWS. (See Regtoatioit'S ; see, also, under respective companies.) Adoption of — by custom, 136 denial of, estoppel to make, 136 directors or trustees make, 136 approval or rejection of, by other authority, 136 stockholders of corporations limiting votes of stockholders make as to distribution of earnings, 121 unanimously, effect of, 136 Amendment, etc., of, 137 form of by-laws permitting, 672 734 INDEX. (References are to pages.) BY-LAWS — Continued. Construction of, 136 Forms forj 672 a3 to compensation of officers, 672 directors, meetings of; quorum, etc., 672 Must be reasonable, 136 Prohibiting transfer of stock paid for by notes and mortgage, effect of, 146 Proof of, 137 Signing, effect of, 137 Violating the constitution are void, 136 What may or may not be regulated by, — amount of stock to be held by directors and officers, 128 assertion by members of their rights in courts, 136 corpoiate existence; limiting, 136 distribution of net earnings among workmen, by corporations limiting vote of stockholders, 121 expulsion of members, 136 terms of office, 123, 135 incorporators, trustees, etc., cannot make their positions perpetual, 124, 135 transfer of stock, 135 treasurer, duties, etc., 136 CABLE IIAILWAYS. (See Street Railways; Raimoads.) Unlawful meddling with, etc., cars, switches, property, etc., of, 636 CA^fALS. , Mechanics' lien on. (See Mechanics' Liens.) Railroad bridges over. '(See Railroads.) Use of banks of, for railroads, 180 CAJSTAL COMPANIES. (See Ship Canal Companies.) Appropriation of property of, by railroad, 185 CANAL OR SLACK WATER NAVIGATION - COMPANIES. Returns of, for taxation, 56 C-VNAL Lx\.l\DS. Sale of, to railroads, 185 CAPITAL STOCK. (See, also, under respective companies.) Advertising greater, than subscribed and paid in, 170 Account of to accompany petition for voluntary dissolution, 594 Amount of, — held by directors and officers, by-laws fix, 128 issued and outstanding, reports to secretary of state to give, — in case of corporation for profit, 17 foreign corporations, 18 must be stated in, — articles of incorporation, 96 form for stating, 645 must be clearly stated; effect of error, 98 reports to secretary of state — in case of corporation for profit, 17 in case of foreign corporations, 10, 12, 18 paid in, — corporate existence depends upon, 102 must be stated in, — reports of — companies limiting votes of stockholders, 121 corporations for profit, 17 foreign corporations, 18 subscribed — reports to secretary of state to give, — in case of corporations for profit, 17 foreign corporations, 18 Certificates of. (See "shares of," below.) Common stock, — bonds may be comerted into, when, 151, 152 converted into preferred, 94 corporations for profit may have, 94, 96 taxation of — no distinction between preferred and, 60 Corporations,— for profit must have, 94, 96 not for profit may have, 95 powers to deal in, hold, ilc, its own, 109, 110 power to invest in, subscribe for, hold, etc., in other companies, 109. 150 in case of corporations not having capital stock; in hall, etc., Go's, 395 Decrease of. (See "Reduction of," below.) INDEX. 735 ^Keferences are tO' pages.) CAPITAL STOCK — Continued. Deposit of fidelity guaranty companies with supt. of ins. may be in, when, 413, 411 of title guaranty companies with state treasurer may be in, 515, 411 Dividends on. (See Dividends.) Division of, among stockholders, power of directors, as to, 132 Endowment stock, 96 Increase of — amendment to articles cannot make, 102 assent of stockholders necessary in case of preferred stock, 166 certificate of — fees for filing, 9 filed with secretary of state^ 166 in case of preferred stock, 166 corporations for profit may make, when, 165, 166 consent of all subscribers necessary before organization, 165 corporations not for profit may make, when, 165 consent of all subscribers necessary before organization, 165 distribution of among stockholders, 166 irregularities in proceedings for, effect of, 156, 208 may be common or preferred, 166 part preferred and part common not authorized, 166 meeting of stockholders for, 165 directors must call, 165 notice of time, place and objects of; waiver, etc., 165 vote required, 165 premiums on sale of: — belong to existing stockholders, when, 166 not subject to dividend tax, when, 166 rights when whole not taken, 166 under acts of 1854, 1865, 166 stockholders' liability on, J 57 what does not constitute, 166, 208 Issuing of. ( See " shares of," below. ) Lien on. (See "shares of," below.) Limitations on amount held, in certain cases, 121 purposes of; evasions, 122 Meaning of, as relates to taxation, 59 Of foreign corporation. (See Foreign Coepokations.) Ownership, evidence of, at elections, 122 Pledged as collateral — agreement tc pledge, effect of, 149 attachment of, 149 contemporaneous contract for conditional sale of, 149 recovery of, fraudulently acquired, 149 taxation cfj 60 Preferred stock, — amount of, limitations as to, 96 articles — provision for in, form for, 646 bonds may be converted into, when, 152 certificates of, form for, 673, 674 construed as a loan, when, 95, 152 contract giving veto power to, efl'ect of, 152 conversion of — into common stock, 94 corporations for profit may have, 94, 96, 166 stockholders may agree to issue of, 166 unissued stock may be made preferred, 95, 166 dividends on. (See Dividends.) increase of stock may be in. (See "Increase of," above.) liability of holders of, as stockholders, 153 limitation of voting power of, 95 redemption of, authorized, 96 regulations as to voting power, etc., 96 security of — lien on property and earnings, 95 taxation of, no distinction between common and, 60 Record of, 142 Reduction of — amendment to articles cannot make, 102 certificate of — fees for filing, 9 filed with secretary of state, 167 consent of stockholders necessarj', 166, 167 dii'ectors may make, when, 166 effect of, upon rights of creditors, 167 purchase of shares by corporation is not, when, 167 stock certificates issued upon, 167 Shares of, — are personal property, 147 736 INDEX. (References are to pages.) CAPITAL STOCK — Continued. subject to levy luid execution, 147, 149 ■ ■ assignment for benefit of creditors includes, 147 attachment of, when, 149 by the corporation, 149 effect upon dividends, 149 in case of foreign corporations, 149 owner being non-resident, 16 interest reached by, 149 situs of, for purposes of, 149 bequest of dividends includes, when, 148 borrowed stock, return of, etc., 147 certificates of. ( See, also, " Transfer of," below. ) assignee of delinquent subscriber entitled to, when, 145 assignment — in blank, 143 with notice of previous assignment, 143 execution of, by president and secretary, 142, 143 failure to issue, effect on stockholder's liability, 157 forms for, etc., 673, 674 genuineness of, duty of purchaser as to, 144 issuing of — -duty and liability of company as to, 142, 143 invalidity of, as defense to stock subscription, 141 new — outstanding certificate must be surrendered, 143 remedy for refusal, 145 upon reduction of capital, or par value, 167 powers of president and secretary as to, 127, 142, 143 to qualify director, 128, 129 lost or destroyed — dividends on, 146, 147 re-issuing of — action for ; parties, petition, findings, etc., 146 form for regulations as to, 669 mandamus lies to compel, when, 147 rights of original holders, 146, 147 of pledgee, 147 when company is owner or holder, 147 must show what, 142 represent what, 147 scrip, taxation of, 60 spurious, action to annul and cancel, 144 stockholders entitled to, 142 persons may become, without, 144 validity of — presumptions as to; proof of invalidity, 144 equitable owner of — action against, to collect stock subscription, 141 action by, against directors, 133 equitable title to, effect of, etc., 143, 145 foreign corporation dealing in cannot do business, 17 legal owner of, who is; rights of, 143 presumption of gift, when, 147 lien on, — corporations have, when; enforcement of, 109, 148 custom to certify as to, effect of, 148 effect of, upon transfer, 144 form for regulations, securing, 670 for sale of stock to satisfy, 670 number of, — held by each stockholder — reports, returns, etc., must show, — in case of companies limiting votes of stockholders, 121 increase of, made when, 165 certificate of, filed with secretary of state, 166 consent of subscribers necessary before organization, 165 meeting of stockholders for; notice of; waiver, etc., 165 vote necessary for, 1G5 must be shown in, — articles of incorporation, 96 form for stating, 645 must be clearly stated; effect of error, 98 reports of foreign corporations, 10 par value of — form for stating in articles, 645, 646 must be shown in reports of foreign corporations, 10 in reports to secretary of state by corporations for profit, 17 by foreign corporations, 18 reduction of — certificate of, filed with secretary of state, 167 INDEX. 737 (References are to pages.) CAPITAL STOCK — Continued. consent of stockholders necessary, 166 directors' may make, 166 effect of, npou rigiits of creditors, 167 purchase of shares by corporation is not, when, 167 stock certificates issued upon, 167 pledgee of — action by, for negligence and mismanagement, 132 interest held by, is what, 148 rights and duties of, — as to jury trial upon foreclosure of lien, 149 as to reissue of lost or destroyed certiiieate, 146 upon sale, etc., 148 pledgor of, estopped to assert title, when, 148 sale of, — below par — liability of holders of, 141, 153 by executor, pledgee, stockholder, 143, 147, 148 contract for — actions -on ; evidence, 148 refusal of performance; remedy, 148 evidence as to, 148 illegal, when; measure of damages for, 148 power of, does not include power to exchange, 148 to enforce stock subscriptions, 137 form of notice of, 672 scrip certificates, taxation of, GO situs of, for purposes of legal process, 149 transfer of — (see also "certificates of" above.) agreement for, imports valuable consideration, 148 books for, 142 effect and evidence of entries in, 156 by-laws regulating, 135 prohibiting, when paid by note and niortgage, effect of, 146 dividends cannot be reserved in, 143, 169 effect of — upon stockholders' liability, 155, 156 upon stock subscriptions, 140 equitable title in, effect of : how made, etc., 143, 145 executor, powers of, as to, 143 in case of deceased stockholder, duty of officers, 145 lien of company on F.tock, effect of, as to, 144 limitation of time, as to, 145, 14(3 lis pendens, effect on, 144 made to — fictitious persons, 143, 155, 158 trustees, 143 president and secretary, powers of, as to, 127, 142, 143 proof of genuineness, identity, etc., 144, 145 record of, to be kept, 142, 144 refusal to make, 144, 145 measure of damages for, 145 remedy for, 145 in case of assignee of delinquent subscriber, 145 corporation, 146 equitable owner, 145 pledgee of stock, 145 joinder of actions, in, 145 transferrer necessary party when, 146 when owned by state, 144 unissued — company may sell, when, 1 16 may be made preferred stock, 166 power of directors as to sale, 120 void or illegal, not taxable, 60 voting power of, 120, 121 articles of incorporation, form for limitation of, in, 666 cumulative voting, 120 form for regulations as to, 669 limitations upon, of, preferred stock, 95 owner of legal title has, 143 when delinquent, 120 held by company, 120 pledged by company, 120 Stock dividends are not, when, 169 Subscriptions to, — alteration of terms of, etc., effect upon collection, 139, 142 738 INDEX. (References are to pages.) CAPITA!, STOCK — Continued. amount required before organization, 118 conditional, not counted, 118 liability of directors acting before, 119 subscription of, essential to organization, 119 books for — form of, 664 must be kept, 142 opening of; notice of, waiver, etc., 115 forms for notice of, waiver of notice, and order for, 663, 664 cancellation, revocation or rescission of, 116, 139 defense to enforcement — of stockholders' liability, when, 157 of stock subscription, when, 142 for mistake, 139 certificate of — fees for filing, 10 form of, 665 incorporators to make, 118 conditional — action to enforce, pleadings in, 138 become absolute, when, 116, 117 calls for payment of, 117 construction of, 117 contrary to public policy, what are, 116 defenses and remedies, 168 validity and effect of, 116, 117 conditions as to, 116, 117 statutes form a part of, 116 verbal, effect of, 116 waiver of, 117 construction of, 117 corporate existence depends upon, 102 corporations, power of, to make. (See "Corporations" above.) deliveiy of, proof of, 110 ' effect upon, of — change of route, 139, 178, 179, 180 consolidation, 269 transfer of stock, 140 forfeiture of payments on. ( See " Payments of " below. ) interest on, by company, payable only from profits, 116 made but not to he paid, liability on, 142 may be on separate sheets, 116 misnomer of payee in, effect of, 139 payment of, 117, 118, 137 by assignee of stock; his rights, 145 calls for — before complete organization, 138 before required stock is fully subscribed, 118, 119 form for regulations governing, 670 on conditional subscriptions, 118 pending consolidation, 118, 269 waiver — of right to liave statutory amount subscribed, 118 of right to make, , 118 when company is insolvent, 118, 140 when demand notes have been given, 118 enforcement of, 137, 140, 141, 142 against whom, 137, 140, 141, 142 by company by suit or sale of stock, 137, 138, 139 creditors, 140, 141, 142 receiver of insolvent company, 141 upon dissolution, 139 defenses in action for, — ■ abandonment of work, etc., 139 agreement as to liability of stockholders, 142 to pay in propeity, 141 alteration of subscription, 139, 142 amendment to charter, 139 cancellation of subscription, 142 change of termini, route, etc., of improvement, 139, 178, 179, 181 changing nature and character of stock, 139 failure to pay required first installment, 139 former judgment, 140 fraud, 139, 141 illegality of incorporation of company, 142 invalidity of stock issue, 141 liability of company to forfeiture of charter, 139 INDEX. 739 (References are to pages.) CAPITAL STOCK — Continued. nocioe to de facto company to terminate liability, 142 nul tiel corporations, 140 ouster of de facto corporation, 142 plaintiflf'jS capacity to sue, 141 stock standing in name of another, 141 subscription not intended to be paid, 142 right to, accrues when, 138 set oflFs, right to, 140, 141 waiver of statutory provisions as to, 138 first installment — amount of; paid, when, 117 incorporators liable until paid, 118 forfeiture of, power of company to declare, 138 made — by notes, effect of, 138 in property, 116, 138, 141 where and to whom, 118 record of, to be kept, 142, 144 sale or transfer of to another company, 176, 205 signing name of another to, liability for, 138 unpaid — must be listed for taxation, 56 to be collected before enforcement of liability of directors, trustees, officers or stockholders, 159 verbal not binding, 116 Taxation of. (See Taxatiojn". ) Unissued. (See "Shares of" above.) Voting power of. (See " Shares of " above. ) CARS. (See Equipment (R. R.) Companies: Railroads: Street Railway Companies.) CARRIAGES. Law of road as to; turn to right, 334 Rates of toll for — over toll bridges, 346 over turnpike or plank roads, 331 CASHIER. (See also under various companies.) Garnishee process before justice of peace served on, when, 625 Summons against corporation served on, when, 5S2 in action before justice of peace, 623 in case of indictment of corporation, 639 CATTLE. (See Live Stock.) Rates of toll for — over toll bridges, 346 over turnpikes or plank roads, 331 Shipping of from southern points, — disinfection of cars, pens, etc., 575 penalties for violating regulations as to, 575 live stock commissioners to request bringing action for, 576 prosecuting attorney brings action for, when, 576 proceedings against railroad brought, where, 576 service of process in, 576 regulations as to unloading, etc., 575 statement in shipping bills as to place of wintering, 575 copy of, for public inspection, 576 CATTLE GUARDS. (See Railroad Crossings.) CEMETERIES. (See Benevolent Association: Cemetery Associations: Religious Asso- ciations: Schools, Colleges, etc.) Agents, etc., of, police powers of. (See Policemen for" below.) Exemption of, from dower, execution, partition, taxation, 358 Fare to municipal, over suburban or interurban railways, 54 Gardeners of, police powers of. (See "Policemen for" below.) Laws for protection of, violation of, a misdemeanor, 359 Location of, near dwelling houses, 357 Policemen for — may arrest on view, when, 359 oath of, who may administer, etc., 359 powers of; within what territory, etc., 359 who may act as, 358 Roads or highways leading to, — county commissioners may purchase, when, 358 cost paid how; repairs, 358 railroad crossings to be above or below grade in cities of 1st or 2d class, 193 private cemeteries not included, 196 Rules and regulations as to. violation of, a misdemeanor. 3o9 740 INDEX. (References are to pages.) CEMETERIES — Continued. Superintendent of, police powers of. (See "Policemen for'' above.) Watchmen for — police powers of. (See "Policemen for" above.) who may appoint, 35S CEMETERY ASSOCIATIONS. (See Cemeteries.) Associations holding cemetery lands in villages, — incorporated, when, 360 powers of, as successors of association, 360 rights of lot-owners, 360 Debts and liabilities of — limitations upon, 357, 359 purposes for which contracted, 357 sale of grounds to pay, — petition for, 360 final decree upon, 361 uotice of filing, 361 proceeds of, applied how, 361 removal of dead upon, 361 Entrance to cemetery, additional land for, 357 application to county commissioners for, 357 appraisers of; appointment, duties, report, 357 appeal from, to probate court, 357 chapter 4, Title 6, applies to, 358 title vests in, upon payment of appraisement, 357 Gifts, devises, bequests, etc.- — companies may accept, 360 purposes for which authorized, 360 for care, etc., of graves, monuments, etc., 360 Grounds of. (See also Religious Associations: Schools, Colleges, etc.) abandoned or discontinued, sale of. (See "Sale of" below.) buildings upon, company may erect, 358 township may erect, when, 38 sinking fund for constructing, repairing, etc., 361 discontinuance of use of, 39 notice of, 39 removal and re-erection of stones and monuments, 39 removal and re-inleiment of bodies, 39 enlarging, improving, etc., 358 sinking fund for, 361 location of, near dwelling houses forbidden, when, 357 lots in, — exempt from attachment, execution, liens, taxation, etc., when, 39, 358 numbered how, 358 owners, rights of, upon sale of grounds, 361 regulations, company may make as to, 358 adorning, erecting monuments, etc., 358 disposing of, conveying, etc., 357 purchase of, what and by whom, 357 used for interments only, 358 plat of — filed, etc., with county recorder, 358 removal of dead from. (See Corpse.) sale of — in case of abandoned or discontinued, 39, 360 in counties containing cities of 1st or 2d class, 359 in municipalities prohibiting interments, 360 petition for. 360 final decree upon, 361 notice of filing, 361 possession given, when, 39 proceeds of, applied how, 361 removal of dead upon, 361 Income and receipts of, application of, 357 in counties containing city of first class, 359 not to be divided among stockholders, etc., 359 Monuments, etc. — sinking fund for construction, repair, etc., of, 361 Real estate — Appropriation of, for purposes of, 350, 357 in counties containing cities of 1st or 2d class, 359 what lands cannot be taken, 357 not applicable to certain cemeteries in cities of 1st class, 1st grade, 357 on which are dwelling houses, barns, stables, farm buildings, 357 mineral or medicinal springs, oil wells, salt wells, etc., 357 orchards or nurseries, 357 INDEX. 741 (References are to pages.) CEMETERY A8S0GIATI0NS — Continued. appropriation of property 'of, not permitted, 356 in counties containing cities of 1st or 2d class, 359 assessments against — enforced how, 356 exemption from taxation does not include, 356 exempt from taxation, when, 356 in counties containing cities of 1st or 2d class, 359 must be in actual use as cemetery, 359 when sold must be returned to county auditor for taxation, 359 power to purchase, appropriate, hold, etc., 356 in counties containing cities of 1st or 2d class, 359 Report, must be made annually, 358 ISextou of, penalty for permitting corpse nuisance, 39 Sinliing fund — ■ creation of ; purpose, 361 from what funds; invested how, 361 loan of, to members of board forbidden, 361 Soldiers' monumental association, company may act as, 358 Soldiers' monuments — companies may take charge of, 358 protection of, laws as to cemeteries apply to, 358 CEKTIFICATE. As to various matters. (See under respective titles.) Fees for filing and making various. (See Fees.) CHAMBER OF COMMERCE. Buildings and grounds for — bonds for, 551 companies may lease, purchase, etc., 551 mortgage of, to secure money borrowed for, 551 By-laws may provide for, — committees of arbitration, 550 ofiicers — bonds ; election ; powers and duties ; terms of office of, 550, 55 1 Committees of arbitration, provisions as to, 550 Directors of. (See "Officers" below.) board of, number, qualification, etc., 550 elect ofiicers, when, 550 Existing companies may adopt provisions as to, 551 certificate as to, filed with secretary of state, 551 Inspectors, gangers, weighers, etc., of, — certificates of, evidence, when, 551 considered as legally appointed officers, 551 deputies, power to appoint, 551 bonds of, 551 principal responsible for neglect of, 551 subject to provisions as to legally appointed officers, 551 Members of — elect officers and directors, 550 relief and support of families of deceased, 550 trial, fine, and expulsion of, 550 Officers of — bonds of, 551 consist of whom ; qualifications, 550 election and teim of, 550 oath of office, who may administer, 551 president, secretary, vice president, when, 551 CHARGES. (See Price for Service.) CHARITABLE ASSOCIATIONS. (See Benevolent Associations.) CHARITABLE INSTITUTIONS. Duty of superintendent of certain, as to bodies of deceased inmates, 481, 482 CHARITABLE TRUST COMPANIES. Articles of incorporation of, 485 acknowledgment of, 485 filed with secretary of state, 485 must show what, 485 Attorney general may bring action to enforce bequests, etc., when, 485, 486 Constitution and by-laws of, 486 Directors and members of, 485 meetings of, held where, 486 Incorporators of, who may be, 485 Nam.e of, requirements as to, 485 Officers of: election, qualification, etc., of, 486 Objects and purposes of, 484 CHARTER. (See Incorporation: Special L.4ws.) 742 INDEX. (References are to pages.) CHATTEL MORTGAGE. (See Collateeal Loan Companies: Moetgages.) Proof of debt, certificate of notary may cure defects in, 111 Validity of, when executed without directors' knowledge, 151 CHAUTAUQUA ASSEMBLIES. Government and regulation of certain, 484 CHILDRElS'. Cruelty to, or neglect of. (See Ckuelty to Animals and Persons: Humane Socie- ties.) Employment of, under certain age, — attorney to prosecute for — fees paid from county treasury, 466 humane society or its agent may employ, 466 costs in actions to enforce provisions as to, 466 certifying to county auditor when, 466 county auditor issues warrant for, when, 466 in advance not required when, 466 jurisdiction of justice, mayor, or police judge in, 466 jury trial before justice of peace. (See Cruelty to Animals, etc.) Homes for. (Sec Humane Societies.) in case of Cincinnati Orphan Asylum, 575 povpers of Women's Christian Association as to, 499 Placed in Cincinnati Orphan Asylum how, 574 CHOSES IN ACTION. Of foreign corporation, subject to taxation when, 17 CHURCH SOCIETIES. (See Religious Societies.) CINCINNATI. (See Municipal Corporations — cities 1st class 1st grade.) CINCINNATI ORPHAN ASYLUM. Children placed in, how, 574 adopting, binding out, placing in homes, 575 Devises to county commissioners of Hamilton County administered by, when, 574 Endowments, power to hold in other states, 574 Managers for — increase or decrease of, 573, 574 classification, term of office, upon, 573 number of, 573 Members, who are, 574 honorary membership, 574 life membership, 574 Power to acquire, hold, etc., real and personal property, 574 Property of, to be used for legitimate objects of, 574 CITIES. (See Municipal Corporations.) CITIZENS, CITIZENSHIP. Duties of commissioners of railroads as to differences between common carriers and, 25 Foreign corporations are, how far, 14 Plaintiff in action against foreign corporation need not be, 16 Railroad company does not cease to be, by extending line into another state, 182 Railroad police must be, 292 Trustees to hold assets of fire insurance company foreign to U. S. must be, 428 CITY SOLICITOR. Civil action against railroad and telegi'aph companies, for penalties, etc., brought by, 30 CLAIMS. (See Death Claims.) CLERK OF COURT OF COMMON PLEAS. Award as to value of stock of dissenting stockholder deposited with, 206 Certificate of assignment of property by certain local religious societies to parent so- ciety filed "with, 490 Commission of railroad police recorded in office of, 293 notice of ceasing of powers of, al?o, 293 Official capacity of officer taking acknowledgment of articles of incorporation certi- fied by, 100 CLEVELAND. (See Municipal Corporation — Cities first class, second grade.) CLUB-UOUSES. Directors of companies owning, etc., elected when and where, 123 COAL. Freight charges on, rate of, 264 COAT. MINES. Freight way or private railway for when, 240, 241 Switching cars of other railroads to, 236 COAL MINING COMPANIES. (See Mining Companies.) May manufacture iron, when, 569 INDEX. 743 (References are to pages.) COGNOVIT NOTE. (See Negotlvble Instruments.) COLLATERAL LOAN COMPANY. (See Savings and Loan Companies.) In counties containing cities of 1st class 2d grade, — by-laws of — directors establish, 517 capital stock of, — amount of, 517 held by one person, 517 paid in before commencing business, 517 subscribed before commencing business, 517 raised by subscriptions, 517 shares of, par value, 517 transfer of, 518 directors of — appointment and election of, 517 number, residence, term, etc., of, 517 incorporators of — number, 517 ioans by — amount of; percentage of, 517 expenses of, 517 interest on, 517 maturity of, 517 order of making, 517 secured only by — chattel mortgage, 517 pledge of goods and chattels, 517 oflSoers, directors elect, 517 powers and objects of, 517 cannot do deposit ov exchange business, 517 to borrow money; limitations, 517 pledges. (See "loans" above.) pawn tickets must be given for, 517 must show what, 517 right to redeem, 517 unredeemed, sale of, 517 disposition of proceeds of, 517 reports of — made to governor, 518 made to stockholders, 518 made when; must be in writing, 518 stockholders of — liability of, 518, 152 section 3258 applies to, 518 subject to provisions of Revised Statutes so far as applicable, 518 COLLEGES. (See Schools and Colleges.) COMBINED EXPERIENCE TABLES. (See Insurance Go's — Life.) COMITY. Foreign corporations exercise powers by, 13 bank cannot do unautliorized banking by, 523 law of, satisfied when, 389 COMMISSION, COMMISSIONERS. For ditch along railroad tracks, — duties, powers, fees, and expenses of, 237 To hear petition for consolidation or re-insurance of risks, etc. (See Insubance Com- panies — Accident and Health; Life.) COMMISSION MERCHANTS. (See Merchants.) CIOMMISSIONER OF RAILROADS AND TELEGRAPHS. Appointment, bond, and oath of, 21 Cleik for, — appointment of, 25 duties and powers of, 25 Duties and powers of, as to, — accidents on railroads, resulting fatally, 29 accounts of railroad and telegraph companies, 28 automatic safety devices at crossings, 22 bells at crossings, 22 bridges, 21, 22 bridges, viaducts, wires, etc., over railroad tracks, 234, 235, 258 contempt, punishing for, 29 copies of agreements, contracts, leases, etc., of railroad companies, 29 crossings at public highways, 21, 22 dillerences between citizens and common carriers, 25 examination under oa.th of agents, employees, or officers of companies, 29 fire extinguishers for passenger trains, 239, 240 flagmen, at crossings, 2:! of trains, enforcing provisions as to qualifications of, 248 744 INDEX. (References are to pages.) COMMISSIONER OP RAILI^OADS AND TELEGRAPHS — Continued, freight trains running without full jrew, 258 freight ways or private railroads, 241 heating baggage, passenger, etc., cars, 239 hoLirs of service of certain employees of railroads, 249 inspector of automatic couplers, air brakes, etc., 255 interlocking system, fixtures, etc., at crossings, streams, etc., 24, 224 notice to railroad officers, — of changes necessary in keeping accounts, 29 of dangerous conditions, repairs, etc., 21, 22 requiring safety devices at highway crossings, 22 oaths, administering, etc., 29 passenger cars, lighting witli oil, etc., below test, 238 movable bridge or apron between, 238 running of, over dangerous bridges, etc., 21 production of books and papers, 29 prosecution for fines and penalties against railroad and telegraph companies, 30 qualifications of certain employees, 248 reports of railroad and telegraph companies, 25, ^8, 255, 257 form and manner of certain prescribed by, 25 forms, blank, for, furnished by, 25, 28, 255 speed of trains in certain cases, 21 structures of railroad, 21 subpo3nas for witnesses, 29 tracks, 21 violation of laws by companies, officers, etc., 25 waiting rooms at railroad stations, 215 Eligibility to office of, 21 Expense of maintaining department of, — apportioned by state board of equalization. 26 additional on account of inspection of automatic couplers, etc., 256 borne by railroads; limit of, 26 Free travel of, on railroads, right to, 25 Member of state board of equalization for railroads, 82 Office of, where, 25 Report of, requirements as to, 30 Term of office of, 21 COMMITTEE. (See Executive Committee.) COMMON CARRIERS. (See Pipe Like Companies: Railroads: Railkoad Companies.) Diflferences between citizens and, duties of commissioner of railroads as to, 25 Freight. (See Freight.) Pipe line companies for natural gas, oil, or water are, 571 Rates of fare of, general assembly may alter or regulate, 2 COMAION CARRIER COMPANIES. (See Express Companies: Freight Line Companies: Pipe Line Companies: Railroad Companies: Street Rail- way CoMPA.»;iES, etc. ) Bonds, etc., of — amount of; par value, etc., of, 563, 564 interest on; limitations as to, 563 sale of, at less than par; stockholders must authorize, 564 secured by mortgage -on franchises and property, 564 Capital stock of, — corjjorations may subscribe to and own, 564 consent of stockholders necessary, 664 Powers of, 563 to borrow money, etc., 563 contract for transportation of persons, property, etc., 563 lease, complete, operate, etc., railroads, 563 COMMON LAW. Power of corporations to deal in real estate under, 95 COMMON STOCK. (See Capital Stock.) CONDEMNATION. (See Appropriation.) CONDITIONAL SALES. (See Railroads.) CONDUCTORS. ( See Railroads ; Street Railway Companies. ) CONSENTS. Of abutting property owners. (See Abutting Property Owners.) CONSOLIDATION OF COMPANIES. (See under various companies.) Agreement or articles of, fees for filing, 9 Calls for payments on stock pending, 118 INDEX. 745 (References are to pages.) ^ CONSOLIDATION OF COMPANIES — Continued. Laws as to consolidation of railroads apply to certain companies. (See Eailkoad Companies.) . Rescission of, when made by sale of properties, 111 CONSTABLES. Duties and powers of, as to, — arrests for sale of liquors at agricultural fairs, 460, 461 for violation of state laws at same, 460 seizure and disposition of articles used in same, 461 Special at fa'irs, — appointment of, — application for, by agricultural societies, 460 entry of, giving number and names, 460 justice of peace makes, 460 powers of, 460 CONSTITUTION. (See Regulations.) CONSTITUTIONALITY. Laws authorizing — appropriations by corporation are valid, 606 entry and survey for appropriation valid, 184 requiring listing stock of foreign corporations are valid, 60 CONSTITUTIONAL PROVISIONS,- Associations with banking powers, laws authorizing to be submitted to electors, 3 Corporate powers, cannot be conferred by special law, 2 Corporations, — aid to, counties, cities, towns, etc., cannot give, 2 state cannot give, or assume debts of, 1 appropriation of right of way by, 3 dues from, secured how, 2 formed under general laws, 2 subject to alteration or repeal, 2 property of, subject to taxation same as individuals, 3 Stockholders — counties, cities, towns, etc., cannot become, 2 liability of, must equal what, 2, 3 state cannot become, 1 CONSTRUCTION. Of laws. (See Laws.) Of plants, works, etc. (See under various companies.) CONTEMPT. Judgment of ouster in quo warranto enforced as for, 532 What constitutes — disobedience of order of court to deliver subject of litigation, when, 591 refusal — to deliver books, papers, etc., of dissolved corporation to trustees in quo warranto is, 633 to testify, produce books, etc., in examination for excise tax, — in case of electric light, gas, messenger or signal, natural gas, pipe line, street, suburban or interurban railroad, union depot, and water works companies, 80 equipment (R. R. ) and freight line companies, 73 express, telegraph, and telephone companies, 70, 80 railroad companies, 66, 67, 80 sleeping car companies, 76 Who may punish for, — board of appraisers of railroads, 67 commissioner of rail loads and telegraph, 29 state board of appraisers and assessors, 67, 70, 73, 76, 80 CONTINGENT FUND. (See Insubance Companies.) CONTRACTS. As to use, etc., of streets, etc. (See Streets, Alleys, etc.) Between councilmen and street railway to assist in procuring right way, void, 50 companies having same directors void, 130 directors and corporation, 130 Consolidation. (See Consolidation.) Copies of, railroads must furnish to commissioner of railroads, 29 Corporations, powers of, as to, 108, 364 For formation of corporation, effect of, etc., 96, 98 sale of stock — action on; evidence, 148 refusal to perform; remedy, 148 secret intentions of incorporators as to, 98. Foreign corporations, — ■ not complying with section 148c, 148d, are not void, 14 746 INDEX. (References are to pages.) CONTRACTS — Continued. cannot sue on, 11, 12 right of action is merely suspended, 14 license of, to do business is not, 15 Lighting, hy municipalities. (See Municipal Corporations.) Limiting general control of directors over corporate business, validity of, 129 ] Made before incorporation, void when, 104 Unauthorized, liability of directors on, 132 XJltra vires. (See Ultra Vires.) CONTRIBUTION. Right of stockholder, against other stockholders for, 156 CONVERSION. (See Bonds — Coepoeate: Capital Stock.) CONVEYANCES. (See Real Estate.) Executed by superintendent of insurance. (See Superintendent of Insurance.)' CO-OPERATIVE COMPANIES. (See Trade Associations.) Articles of incorporation of — may limit votes of stockholders, 121 Assets of, report to county auditor must give, 121 By-laws of — may provide for distribution of earnings among workmen, patrons, or shareholders, 121, 122 Capital stock of — amount of paid up, report to county auditor must give, 121 shares of, number held by each stockholder — limitations on: purpose of: evasions, 121, 122 report to county auditor must give, 121 Directors of, make reports to county recorder, 121 liability of, for failure to make or making false, 121 Foreign — deposit with state treasurer, before doing business, 12 sections 148c, 148d do not apply to, 11, 12 Reports of, 121 Stockholders, reports must give name and number of shares held by, 121 Treasurer of, reports signed by, 121 COPIES. (See also under various headings.) Fees for making, etc. — by secretary of state, 10 by superintendent of insurance, 35 CORONER. Duty of, as to arrests for unlawful selling liquor at agricultural fairs, 460, 461 as to disposition of articles used in same, 461 of unclaimed or unidentified corpse, 481, 482 CORPORATE ACTS. Acts of stockholders are, when, 105 Evidence of purpose of, 106 Presumption of validity of, 106 CORPORATE CAPACITY. How pleaded, etc., 112 Want of, how pleaded, 112 CORPORATE DOMICILE. Articles of incorporation fix, 55, 96, 98 effect of, 98 failure to designate, 97 form for stating, 645 Change of — power to make, 55, 98 fees for filing certificate of, 9 For purposes of — attachment, 98 commencing suits, etc., 98 taxation, 55, 98 Is situs of stock for purposes of legal process, 149 Of company created by concurrent legislation of two states, 17 CORPORATE DEBTS. (See Corporations — "Liabilities of.") (See' also under various companies. ) Account of, etc., to accompany petition for voluntary dissolution, 594 Amount of, — annual statement, reports, etc., must show, 168 in case of companies limiting vote of stockholders, 121 Secured how — by stockholders' liability, 2 by trustees' liability, 155 State cannot assume, 1 INDEX. 747 (References are to pages.) CORPORATE DEBTS — Continued. What are, — as relates to taxation, re-insurance ' is not, 34 so as to render trustees liable, 164, 165 CORPORATE ELECTIONS. (See Dibectoes.) Calls for, must be made by directors as a board, 124 Certificate of, fees :tor filing, 9 Eair, — stockholders entitled to, 123 what constitutes an unfair, 123 Inspectors of — (See Dibectoes.) appointment of — application to court for: notice of, etc., 122 directors cannot make, 122, 124 stockholders may make when, 122, 124 compensation of, 123 conduct of elections by, 123 list of stockholders for use of, 122 number of: removal, etc., 122 vacancies — court may fill when, 122 stockholders fill when, 122 Ownership of stock in, evidence of, 122 Receivership and sale of property, effect upon, 124 "Repeating" at, not a penal offense, 124 Time of holding, provisions as to, directory when, 123 CORPORATE EXISTENCE. Allegations of, in quo warranto, 628 in indictments, 639 Begins when, 102, 103, 104 By-laws limiting, effect of, 136 Cannot be questioned for not doing business in home state, 15 De facto. (See Corporations.) Denial of — by corporation, 99 by debtor, 99 one dealing with, 15, 99 stockholder, 99 cannot be made in quo warranto, when, 628 Evidence of, 100, 101 certified copy of articles is prima facie when, 100. condition precedent to be performed, 101 effect and force of certificate, 101 in case of companies seeking to appropriate, 608 consolidation of benevolent, etc., societies, 497 religious endowment fund companies, 493 company seeking to appropriate must furnish, 99, 608 what constitutes, 608 in case of foreign corporations, 15 Limitation of, of real estate companies, 93, 95 Pleaded when^ 112 CORPORATE FRANCHISES. (See Franchises.) Forfeiture, etc., of. (See Quo Warranto.) CORPORATE NAME. (See also under various companies.) Articles of incorporation must give, 96, 100 discretion of secretary of state as to, 101 form for stating, 645, 657 Change of, — amendment to article may make, 102 consent to use of, form for, 660 fees for filing copy of decree of court as to, 9 Misnomer, in pleadings, 112 Reports, — to secretary of state must give — in case of corporations for profit, 17 corporations not for profit, 19 foreign corporations, 18 to state auditor must give. (See under various companies.) Requirements, etc., as to, — in case of corporations for profit, 96 misleading not permitted, 100, 102 similarity of, to that of another company, 101, 102 deceptive use of one's own name, 101 discretion and powers of secretary of state as to, 101 748 INDEX: (References are to pages.) CORPORATE NAME — Continued, examples of^ 102 not permitted when, except, 101, 102 CORPORATE OBJECTS OR PURPOSES. (See under respective companies.) Abandonment, etc., ol, — effect, on stock subscriptions, 139 ground for dissolution when, 593 what will not constitute, 139 Articles of incorporation must give, 96 forms for statement of, in. (See Forms.) must be clearly and definitely stated, 98 what not to be stated, 98 Change or extension of, — amendment to articles may make, 102 substantial change not permitted, 102, 103 unlawful purpose cannot be provided for, by, 102 fees for filing certificate of, 9 fundamental, assent of all stockholders necessary when, 103 incidental and auxiliary, what are, 103 Corporate property used only for the legitimate, 167 Corporations may be formed for what, 93 not for professional business, 93 One main purpose only permitted, 95, 98 Secret intent of incorporators as to, 94 Statement of foreign corporations to secretary of state must give, 12 Unauthorized purposes, what are, 94 CORPORATE POWERS. (See also under respective companies.) Abandonment of, by special act, 2 Board of directors or trustees exercise, 128, 129, 130 Construction of laws granting, 104, 105 Exercise of, outside of state, 104 General Assembly cannot confer by special act, 2 General enumeration of, 103, 104 to alienate property and franchises, 112 become guarantor or surety, 112 borrow money, 108, 150, 151, 152 yea and nay vote on: record of, 152 contract, form, time, etc., of, 108 deal in and hold its own stock, 109, 110 in other companies, 109 in case of companies not having capital stock, in hall, etc., company, 395 deal in and hold real estate, 99, 105 at common law, 95 who may question, etc., 105 enter into partnership, 110 trust agi-eements, 112 hold and convey personal property, 103 indorse accommodation paper, 108 make and use a common seal, 103 pledge individual liability of stockholders, 112 purchase negotiable paper, 108, 109 sue and be sued, 103, 130 for slander, 108 Implied, 100 Incidental, 364 Notice of, who presumed to have, 106 Ordinance for extension of street car lines does not confer, 2, 52 Power of stockholders as to, 129 Surrender of, by special act, 311 Ultra vires. (See Umba Vires.) Who may question, 106 CORPORATE PROPERTY. (See Personal Property: Real Estate. See also under respective companies.) Conversion of, righcs of stockholders as to, 132, 134 Corporate franchise is not, 56 Directors or trustees control, 128 may purchase when, 130 may sell without vote of stockholders when, 95, 129, 130 Employed only for corporate purposes, 167 Is "private property" within meaning of constitution, 110 INDEX. 749 CReferences are to pages.) CORPORATE PROPERTY — Continued. Power to alienate, etc., 95, 103, 111 forms for regulations as to sale, etc., 669 fraudulently disposed of, may be followed when, 132 Stockholders' power over, 129 Valuation of, in returns for taxation, rule for, 55, 56 CORPORATE RECORDS. As evidence, 125 Books for, form of, etc., 675 Examination and inspection of. (See Books and Papers.) Forms, etc., of, 675, 678 Interpretation of, 126 CORPORATE SEAL. Corporations may make, alter, and use, 103 Form for regulation, establishing, 669 Presumption as to authority to use, 111, 112 Scroll seal sufficient when^ 111 What must be under, — certificate ot amendment of articles of incorporation, 102 change of counties in which railroad is located, 180 curing defects in consolidation of railroads, 273, 274 re-organization of railroads, 281 consolidation agreements of railroads, 271 deeds — not required. 111 required in case of railroads, 186 in case of sale of toll roads to private purchaser, 336 to county commisioners, 337 reports of foreign corporations under § 148d, 12 surrender of toll roads to county, 336 CORPORATIONS. (See various headings herein.) Acceptance of provision of Revised Statutes by companies created prio- to 1851. (See Acceptance. ) Admissions of officers or stockholders do not bind when, 131 Aid to — raising money for, or loaning credit to, forbidden in case of state, counties, cities, townships, 1, 2 Business of. (See also Cobpobate Objects and Purposes.) directors or trustees conduct, 128 must act as board to bind, 125 power of stockholders over, 129 nature and kind of, reports to secretary of state to give, 17 in case of corporations for profit, 18 foreign corporations, 18 unauthorized. (See Ultra Vibes.) Combinations or joint arrangements. (See Consolidations: Trust Agreements.) Creation or formation of. (See Incorporation.) contract for, effect of, 96, 98 secret intent of incorporators as to, 98 is accomplished when, 102 must be under general laws, 2 such laws may be altered or repealed, 2 De facto, — consolidated company is when, 270 evidence of, what constitutes, 98 liability of stockholders in, 142, 153 want of legal organization pleaded how, 99 Defunct — service of process in case of, 600 suit, against, 600 Foreign. (See Foreign Corporations.) For profit: what are, 94, 95 building and loan associations are, 552 Knowledge of directors imputed to, when, 130 Laws, what govern and control, 91 in case of companies created prior to 1851, 91, 92, 205 companies formed to do business in foreign state, 17 special provisions govern when, 168 Legal entity of, fiction of, may not be used to work injury, 106 Legislative control of, 2 in case of companies under special charter, 349 Liability of, for or account of — ■ assault and battery, 107 750 INDEX. (References are to pages.) COKPOEATIONS — Continued. contracts of promoters, 104 issuance of new certificate of stock for one lost or destroyed, 147 libel, 108 negligence, 108 negotiable paper issued by oflBeers, 126, 127 partnership debts upon taking partnership property, 106 trespass, 108 Loans by. (See Loans.) Not for profit — fees for filing articles of, 9 may have capital stock, 95 secretary of state may refuse to file articles when, 94 what are^ 95 Notice to — notice to directors is not when, 130 to special agent is when, 131 Organization of — condition precedent to, required subscription to stock is, 118 failure to com.plete, ground for quo warranto, 628 fraudulent, liability of promoters, members, etc., 107 meeting for: notice of, 118, 119 must be held in state, 119 preliminary, does not exist after incorporation, 104 presumption of regularity, 119 proof of^ 119 substantial compliance with charter sufficient, 523 want of legal, pleaded how, 99 Partnership, company cannot enter into, 110 Person" or "persons" in section 2485 includes, 43, 113 in laws as to cruelty to animals include, 468 Ratification of unauthorized acts, notice to directors will not work, when, 130 Removal of business and officers from state, effect of, 129 Reports of. (See Reports: also under various companies.) Reorganization of, cannot be by special act, 2 Slander, may sue for, 108 What constitutes a, 13 CORPSE. Company for. protecting and preserving — bequests, devises, etc., to, 573 exemption of property of, from appropriation, execution, and taxation, 573 power to acquire, hold, etc., real estate, 573 to construct, maintain, etc., vaiilts, buildings, etc., 573 Disinterment of. ( See " Removal." ) application for; must state what, 39, 40 form of, 40 oath to, 40 may be made when, 39 next of kin may cause, on application, 39 not permitted when, 39 permit of health department necessary, 39 refusal to permit, mandamus lies, 40 when cemetery is abandoned, discontinued, etc., 39, 361 Dissection, medical examination, etc., of — bodies subject to, what are, 481, '482 delivery of, to claimant, 482 held how long before delivery for, 481 interment of required, 482 notice to friends or relatives, 482 to parties entitled to receive, 481 officials accepting consideration for; penalty, 482 refusing to deliver for; penalty. 482 to be used for medical or anatomical study only, 482 outside of state not permitted, 482 who may receive for purpose of, 481, 482 Interment of, required, 39, 40 after dissection, etc., 482 penalty for permitting to remain in vault, etc., 39, 40 Unlawful detention or possession of, 482 what constitutes, 482 COUNCIL. (See Municipal Corporation.) INDEX. 751 (References are to pages.) COUNTER CLAIM. Against liability of stockholder, 153 COUNTIES. (See County Commissionebs. ) Cannot aid or loan, credit to corporations, 2 Public grounds of — -museum, hall, park, pond, rink, etc., companies may use when, 569 COUNTY AGRICULTURAL SOCIETIES. (See Aqeicultueal Societies — County. ) COUNTY AUDITOR. Duty of, as to, — ■ agi-ieultural societies — district and county, 450 apportionment of valuation of railro.id property, 67 deducting right of way of railroad from land on tax duplicate, 214 ditches along railroad tracks, 237 examination of books, officers, etc., of bank, 65 incorporation of landholders assessed for improved roads, 341, 342 returns of corporations for taxation, 56 in case of banks whose capital is divided into shares, 64, 65 returns of personal property for taxation, 61 surrender of turnpike and plank road to county, 336 Fees of, as to — purchase of toll roads by county commissioners, 338, 339 Member of board of appraisers and assessors of railroads, 65 State auditor certifies equalized value of bank shares to, 82 COUNTY CLERK. (See Clerk of Court op Common Pleas.) COUNTY COMMISSIONERS. Contracts for use and occupancy of highways by railroads should be entered on min- utes, 190 failure to do so, eflfect, 190 Duties and powers of, as to, — avenue companies in counties containing city of 2d class 2d grade, 344 bridges, culverts, etc., — contracting for wagon ways over railroad bridge, 577 enlargment of, under railroads, turnpikes, etc., 576 county agricultural societies, appropriation of property for, 463 grants to use roads, etc. (See Streets, Highways, etc.) purchase of toll roads, 337, 338 railroad crossings at highways. (See Railroad Crossings.) surrender of turnpike, etc., to county, 336 entry of acceptance of, upon journal, 336 tolls — licensing turnpike, etc., companies to take, 330 disqualification of, when stockholders, 330 over railroad bridges, approval of rates of, 196 COUNTY RECORDER. Reports to — companies limiting votes of stockholders to make, 121 What to be filed with — aflSdavit for mechanic's lien against railroad, 84 assent of stockholders to mortgage, when, 151 oath of directors of free banking companies, 540 What to be recorded by — affidavit for mechanic's lien against railroad, 84 articles of incorporation of free banking companies, 538 consolidation agreements of benevolent societies, 497 deeds of turnpike, etc., roads, 336 mortgage securing bonds, notes, etc., of railroad companies, 200 of ship canal companies, 312, 200 right of way papers of railroad company, 215 effect of, as evidence, 215 impeachment of record, 215 COUNTY SURVEYOR. Duties and powers of, as to ditches along railroad tracks, 237 fees and expenses as to same, 237 COUNTY TREASURER. Burglary insurance companies may insure, 445 Duties of, as to payments to district and county agricultural societies, 450 Pees of, in purchase of toll roads by county commissioners, 338, 339 Fines under quo warranto paid to, for use of common schools, 635. COUPONS. ( See Bonds — Corporate. ) COURTS — CIRCUIT. Jurisdiction of, in quo warranto, 630 752 INDEX. (References are to pages.) COUKTS —COMMON PLEAS. Appointments by, make what, — arbitrators to ascertain value of stock of dissenting stockholder, 206 fiscal trustees of certain benevolent societies, 495 inspectors of corporate elections, when, 122 Clerk of. (See Clkbk of Court of Common Pleas.) Judge of, duty and' power of, as to diverting college endowment funds, 463 as to licensing turnpike, etc., companies to take toll, 330 Jurisdiction of — proceedings in — as to, — appropriation of property, 616 when unfinished roadbed of railroad is to De taken, 617 cemetery grounds of educational and religious corporations, sale of, 488 dissolution of corporations, 593 in case of manufacturing and mining companies, 598 fair grounds, pleasure grounds, orchards — injuring buildings, fences, trees, etc., on, 463 trespassing upon, 463 unlawfully carrying away fruits, nuts, etc., from, 463 impairment of capital of insurance companies, 33 liability of directors, trustees, officers, and stockholders, enforcement of, 158, 159 railroad bridges over canals, navigable waters, etc., 212 for authority to construct, etc., 212 appointment of engineer, 212 confirmation of report of engineer, 212 notice to board of public works, 212 railroad crossings, for authority to use device to cross without stopping, 224 railroad waiting rooms, enforcement of penalty as to, 215 toll roads — for abandonment of, within municipality for lack of repair, 332 for repair of (on appeal) outside municipalities, 333 COURT — PROBATE — PROBATE JUDGE. Appoints fiscal trustees of certain benevolent societies when, 495 inspectors of corporate elections, 122 Bond of, liable for failure to pay over compensation in appropriation proceedings, 614 Jurisdiction, duties and powers of — as to arbitration of value of stock upon consolidati-on of i-ailroads, 278 approval and record of appointment of agents of humane societies, 466 approval of bond for injunction until mechanic's lien on canal, turnpike, railroad, street railroad, etc., settled, 89 appropriation of property by corporations, 604-622 ditches along railroad tracks, 237 licensing turnpike or plank road company to take toll, 330 disqualification of, when. a stockholder, 330 lost or destroyed stock certificates, 146 reports as to unknown depositors of banks, 544 returns of banks to auditor, for taxation, etc., 65 Fees of — for recording reports as to unknown depositors of banks, 544 in proceedings as to ditches along railroad tracks, 237 COURTS — SUPERIOR. Jurisdiction of, in proceedings for — appropriation of unfinished roadbed of railroad, 617 dissolution of corporations, 593 in case of inanufacturing and mining companies, 598 COURT — SUPRE5IE. Error prosecuted to directly, when unfinished roadbed of railroad is sought to be taken, 617 Jurisdiction of, in quo warranto, 630 CREDIT GUARANTY COMPANIES. (See Insuei^-ce Compares — Credit Guakajjtst.) CREDITOR. (See Assignment fob Benefit of Ckeditors.) Actions by, for — enforcement of liability of directors, officers, stock liolders, 158 account of corporate property and obligations when, 158 application of corporate assets, 159 complaint filed where, 158 proceedings under, 158, 159 failure to present claims, etc.. effect of, 159 insolvency of company net^essary to, 159 * judgment for, when, 159 no priority acquired by, 160 ' notice to present claims, etc.. 159 to non-resident stockholders, when, 159 INDEX, 7S3 (References are to pages.) CREDITOR — Continued. receiver in, appointment of, lo8 prosecutions by, in other jurisdictions, 159 unpaid stock subscriptions collected first, 159 Agreement of, for extension of time, effect on stockholder's liability, 156 Cross-petition by, against company, 134 Dissenting, effect of settlement on account of stockholder's liability on, 154 Fraud in former adjustment of claim, effect -on stockholder's liability, 157 Judgment, lien of, upon filing creditor's bill, 141 Liability of directors, etc., to. (See Directors: Stockholder's Liability.) Lien claimed in another case, effect on stockholder's liability, 157 May pioceed in equity when, 184 Payment of claims of, effect on sto kholder's liability, 157 Right of, — to vote fox- directors of railroad company, 203 under bond to protect stockholders, from liability, 158 upon reduction of capital or par value of shares, 167 Stock subscriptions collected by, when, 140, 141 injunction against directors, when, 141 Who are, of corporation, 153 CREDITOR'S BILL. To collect stock subscriptions, 140 defense in, 141 judgment against company necessary when, 140 stockholder cannot impeach collaterally when, 140 lien of judgment creditor upon filing, 141 pleadmgs in, 140 CREMATORY ASSOCIATIONS. Crematory of, near dwellings forbidden when, 360 Morgue of, near dwellings forbidden when, 360 Rights and powers of, same as cemetery associations, 360 CRIME. Failure of foreign corporation to comply with sections 148c, 148d, no defense to, 15 CRIMINALS. Associations to apprehend, etc. (See House Thieves.) arrest, conviction, etc., of criminals by, 456, 457 power to expend money for, 457 without warrant by officers and members, 457 constitution and by-laws of, 457 members adopt, 457 regulate assessments on members, 457 indemnity to members for losses, 457 officers, election, duties, term, etc., 457 expenses, county commissioners reimburse when, 457 incorporators of, number and qualification of, 450 members of — assessm.ents upon, 457 oath of. who may administer, 457 officers of — duties, election, term, etc., 457 oath of, who to administer, 457 powers and objects of, 457 presiding, deputies of, 457 appointment and number of, 457 may administer oaths to officers and members, 457 certify appointment, etc., of officers and members, 457 seal, power to make and use, 457 CROSSINGS. (See Railboads; Railroad Ckcssings.) CROSS-PETITION. (See Pleadings.) CRUELTY TO ANIMALS AND PERSONS. (See Humane Societies.) Animals — care and protection of, when neglected, 460 expense of; collection of, 469 animal not exempt from levy and sale for, 469 held to be an estray when, 469 notice to ownei- or custodian, 469 possession of, may be taken when, 469 premises may be entered for purposes of, when, 469 removal of, for, when, 469 injured, diseased, or aged — may be killed when and by whom, 469 opinion of three persons necessary, 469 Attenipt to violate provisions as to, 467 754 INDEX. (References are to pages.) CRUELTY TO ANIMALS AND PERSONS — Continued. Corporations, liability for, 468 acts of agents, employee.5, etc., to be held acts of company, 468 Definition of terms as related to — " animals," " cruelty," " owner," " person," " torment," " torture," 468 Enforcement of laws to prevent — attorney to prosecute — fees paid from county treasury as county commissioners deem reasonable, humane society or agent may employ, 466 by arrest of persons about to violate by dog fighting, etc., 467 bond for one year, 468 commitment in absence of, 468 hearing' upon, 468 ■ oath not to violate law for one year, 468 penalty for violating while i;nder bond, 468 wlio may make arrest, 467 by interference to prevent, 46b who may make, 468 call on by-standers for aid, 468 by search warrant, 467 who may serve, 467 conviction of agent no bar to action against principal, 468 costs in trials for — certifying to county auditor. 466 fees of officers charged iu^ 468 person convicted must pay, 468 in advance not required, when, 466 warrant for payment of, county auditor to issue, 466 jurisdiction of justice, mayor, or police judge in, 466 jury trial, before justice of peace, 466 challenge of jurors, 466 venire for, 466 waiver of, need not be in writing, 487 sections 3718a, 7147 do not apply to, 467 .Person guilty of, liable in damages to owner, 468 CUMULATIVE VOTING. Permitted in election of directors, 120 not obligatory, 120 CURIOSITIES. (See Mtjsbtjms.) DAY'S WORK. What constitutes, in case of certain railroad employees, 248 DAIRY PRODUCTS. (See Adulteration of Foods, Etc.) DEAD BODIES. (See Corpse.) DEAF AND DUTtfB HOME ASSOCIATIONS. Board of state charities may order infirmary deaf and dumb removed to, 572 Cost of maintaining indigent inmates in, 572 when removed to, by board of state charities, 572 Infirmary directors may contract with, for care of indigent deaf and dumb, 572 DEATH. (See under Railroads.) DEATH CLAIMS. Examination of unpaid, by superintendent of insurance, 32 DEBENTURE COMPANIES. (See Bond and Investment Companies.) DEBTS. (See Corporate Debts.) DECEIT. Action for, — against directors, for issuing false statements, 132 by trustees of bondholders; caunot bring, when, 197 DEDICATION. Railroads cannot acquire property by, 187 DEEDS AND CONVEYANCES. (See Real Estate.) DEED OF SETTLEMENT. Fees for filing copy of, of insurance company, 35 DE FACTO. (See Corporations: Directors: Trustees.) DEFECTS. ■ (See Error and Omission.) DEFENSES. (See Actions.) INDEX. 755 (References are to pages.) DEFINITIONS. ■ Adjoining state " in law for consolidation of railroads, 270 ' Animals " in laws a.3 to cruelty, 468 ' Assessment eompajny " — life insurance — what constitutes, .364 ' Associates " in act oJ incorporation, 104 'At" in articles of incorporation of railroads, etc., 100 ' Between " in articles of incorporation of railroads, etc., 100 ■ Capital stock," meaning of, as to taxation, 59 'Company" in ch. 8, § 6414 et seq. (appropriation) includes persons, partnerships, etc., 617 ' Combustible material," a grain elevator is not, 245 ' Corporations for profit " and '' not for profit," 94, 95 ' Council " includes trustees of hamlet, 210 ' Creditors " of corporation, 153 'Crossing" lailroad over highway, 221, 228 ' Cruelty " in laws as to cruelty, 468 ' Dependent " one engaged to marry insured is not. 385 ' Dividends " meaning of, 169 ' Electric light company " includes what, 77 ' Employees " of railroad company, 249 'Equipment company" includes what, 71 'Express company" includes what, 68, 77 ' False returns of stock " for taxation, what is, 60 ' Fellow servant " who is, in case oi railroads, 248, 249, 253, 254 'Foreign corporation" in attachment j^roceediugs, 10, 581, 625 ' Franchise " right of foreign insurance company to do business is, 627 ' PYaternal beneficiary association," 395 ' Freight line company " includes what, 7 1 ' From " in articles of incorporation of railroads, etc., 100 ' Gas company " includes what, 77 ' Good health " in application for insurance, 377 Immediate notice" in accident insurance policy, 414 'In or near" in articles of incorporation of railroads, etc., 99 ■Jury" in constitution relating to approprintion, 609 ■ Laborer," secretary is not, within § 6355, 127 'Lands" includes what in appropriation. 184 ' Legal heirs " means next of kin in insurance on assessment plan, 384 'Managing agent" of foreign corporation, 16, 583 ' May " means " must " in section 5023, 579 ' Messenger or signal company " includes what, 77 ' Most convenient " as to change of name, 531 'Mutual or stock life insurance company" what constitutes, 364 ' Natural gas company " include® what, 77 ' Navigable waters " what aie, 213 ' Near to " as to damages for use of streets by railroads, 191 ' Non-resident " in attachment proceedings, 16 'Occupancy" in fire insurance, 417 ' Officer " controlling public road includes county commissioners, 304 ■ One desiring to send " a telegram in § 3462, 320 ' One forwarding " a telegram in § 3462, 320 ' Operators," directors are not, within § 6355, 127 " Other appliances " in street railway ordinance, 296 " Owner " in laws as to cruelty, 468 in mechanic's lien law as to railroads, 86 ]n proceedings to compel appropiiation, 619 " Person " in laws as to cruelty, 437 in section 2485 includes corporations, 4.3, 113 " Pipe line company " includes what, 77 " Principal place of conducting business " same as " principal office," 593 "Private property" property of corporation is, 110 "Privilege" in connection with quo irarranlo, 628 " Profits " of mutual fire insurance co3iipany, 420 "Public ground" in section 3283 does not include canal, 178 "Kailroad company" includes what, 77 "Roadbed" where unfinished road of railroad is soxight to be appropriated, 618 " Secession " of members of church, what constitutes, 489 " Sender " of telegram in section 3462, 320 " Sleeping car company " includes what, 74 " Sound health " in application for insurance, 377 " Stipulated premium plan " of life insurance, 402 " Stockholder " as used in section 3258, 158 756 INDEX. (References are to pages.) DEFINITIONS — Continued. " Street railway," 295 " Street, suburban or intcrurban railway company " includes what, 77 "Structure" in fire insurance. 417, 436 " Superior officer " who is, of railroad employees, 253 " Telegraph " includes telephone, 32o " Telegraph company " includes whom, 68, 77 " Telephone company " includes whom, 08, 77 "Ticket" railroad, 203 " To " in articles of incorporation of railroads, etc., 100 " Torment " in laws as to cruelty, 408 " Torture " in laws as to cruelty, 468 " Total loss " in tire insurance, 417 " Union depot company " includes what, 77 " Water works company " includes what, 77 " Way " in section 3283 does not include canal, 189 " Year " in connection with dividends of fire insurance company, 420 DEFUNCT CORPORATIONS. (See Dissolution of Corporations.) Service of process in case of, 600 Suits against, 600 DELEGATION OF AUTHORITY. To make grant to street railway, 50 DEMAND. Notice is equivalent to, in sale of pledged stock, 148 DEMAND NOTES. (See Negotiable Instruments.) DEPARTMENTS. (See Superintendent of Insurance: Commissioner op Railboads anb Telegraphs.) DEPOSITS. (See Foreign Corporations: and under various Insurance Companies.) DEPOT. (See Union Depot Companies: ILvilkoads.) DEVICES. (See Gates: Inter-Locking Fixtubes.) DEVISES. (See Bequests.) DIRELTTORS. (See Trustees; see also under respective companies.) Abandonment of office, presumed when, 119, 125 Acts of, court will set aside when, 134 Action for accounting against, 133 Address of. ( See " 'Names " below. ) Amendment to charter accepted by, when, 93 Application of, for receiver, 135 Are not " operatives " within meaning of section 6325, 127 Bind company only when acting as board, 125 Board of — all elected entitled to act, 129 election called and noticed by, 124 meetings of — form for by-laws as to, 672 inspectors of election appoint time and place for first, 120. minutes of, effect of approval of, 126 president, secretary and treasurer of. (See below.) quorum, majority constitutes, 125 effect of acts by less than, 125 form of by-laws as to, 671 vacancies in, filled how, 128, 129, 066 form of by-laws as to, 671 lack or cessation of qualifications causes when, 128 minority cannot fill, 129 vote of, yea and nay required when; record of, 152 Breaches of trust by, court will set aside when, 134 Compensation of — allowed when, 126 form for regulations as to, 069 Contracts between company and, 130 between companies having same, in part, 130 De facto — acts of, validity, etc., of, how questioned, 129 who may be — one ceasing to own stock, 128 ceasing to reside in state, 129 failing to take oath of office, 125 persons elected without notice of election, 123 Duties and powers of, — as to bonds, notes, etc.. issuing and sale of, 131, 152 books, necessary and proper, 130 by-laws, may adopt what, 136 may not make their control perpetual, 124 INDEX. 757 (References are to pages.) BIEECTORS — Continued. corporate powers, business, property, etc., 128, 129, 211 contracts limiting, validity of, 129 division of capital among stockholders, 132 insolvent companies, 132 inspectors of election, 122 , instituting and defending suits, 130 meetings to amend articles, notice of, etc., 208 to increase capital stock, etc., 165 ' reduction of capital or par value of shares, 166 sale of corporate property, 129 subscriptions to stock, 117, 129, 130 unissued stock, 129 voluntary dissolution of company, 602 as trustees of dissolved corporation. (See Dtcssolutioi^ of Coepoeaxion. ) ! may purchase property of company, when, 130 power of couria to enforce, interfere with, etc., 134, 135 right to exercise, tested by quo warranto, not equity, 626 Election or choosing of (see also Corpoeate Elections), 120, 123 by ballot, 120 certificate of. 120, 121 form for, 666 corporate existence commences with, 102, 103, 104 court may order, when ousted by quo warranto, 631 cumulative voting permitted; not obligatory, 120 forms for regulations as to, 668 held when, 123 in case of companies ovsming club-houses, 123 ousting of directors by quo warranto, 631 regulations may provide as to, 137 informalities as to, effect of, 123 injunction against, lies when, 124 inspectors of (see also Corporate Elections), 120-123 candidate may be, 121 evidence to set aside action of, 121 incorporators are, at first, 120, 121 irregularities in, as to notice of first, 119 legality of, determined by quo loarranto, 124, 626 majority of shares necessary to, when, 120 meetings for, 123 , in case of first, 118 notice of, 123 in case of ouster of directors by quo warranto, 631, 632 regulations may provide as to, 137 proxies at, 120 voting power of stock at, 120 shares delinquent in payments, 120 held or pledged by the corporation, 120 who may vote shares at, 120 Injunction against, — to prevent fraudulent disposal of funds from subscriptions, 141 illegal or fraudulent acts when, 134 Knowledge of, imputed to company when, 130 Liability of, — care required of, 129 ' defenses in, — different terms of office, 134 enforcement of, by creditors, — accounting for corporate property and obligations when, 158 application of corporate assets, 159 complaint for, filed where, 158 proceedings under, 158, 159 effect of failm-e of creditors to present claims, 159 insolvency of corporation necessary to, 159 judgment for, when, 159 notice — to creditors to present claims, etc., 159 to non-resident stockholders when, 159 receiver of corporation — appointment of, 158 prosecutions by, in other jurisdictions, 159 unpaid stock subscriptions collected first, 159 for acting before required stock is subscribed, 119 conducting unauthorized business, 132 758 INDEX. (References are to pages.) DIRECTORS — Continued. effect of acquiescence of stockholders, 133 failing to make or making false report to county recorder, 121 irregularities and informal acts, 132 in organization, 523 issuing false statement of condition, 132 misconduct resulting in forfeiture and ouster, 635 negligence, mismanagement, etc., 132 statute of limitations runs when, 132 stranger cannot bring action, 134 unauthorized acts, 127, 523 violating provisions as to dividends or advertising amount of capital stock, 170 to creditors and stockholders, 170 right to enforce, follows stock, 133 to equitable owner of stock, 133 stockholders, 132, 170 Names and addresses of, — -reports to secretary of state to give, — in case of corporations for profit, 17 corporations not for profit, 19 foreign corporations, 18 Notice to, is notice to company when, 130, 131 Number of, 118 change in, 168 meeting for, 168 vote necessary, 168 form of regulations fixing, 668 Oath of office of, 125 failure to take, effect of, 125 form of, 667 Ouster of, by quo warranto, 626, 631 Preferences to, by insolvent company, 167, 168 Proceedings of, — construed how, when ambiguous, 126 notice of, are charged with, 130 Proxy, cannot vote by, 125 Purchase by — of property under foreclosure, set aside when, 151 Qualifications of, 128 form of regulations as to, 668 majority must be citizens, 128 delation of, to stockholder, nature of, 132, 134 Reports to county recorder made by, in case of Co.'s limiting vote of stockholders, 121 penalty for failure to make, 121 Resignation of, allowable, 119 Sale of property by, stockholders' vote necessary when, 95 Term of office of, 118 cannot be shortened after election, 168 until successors elected and qualified, 118, 119, 123, 125 provision does not apply when, 125 Unauthorized acts, notice of, will not ratify, when, 130 DISCHARGE. (See "Employees," under Railroads.) DISCRETION. Attorney general. — mandamus will not control, as to quo warranto, 629 Court, in quo wurranto, as to forfeiture of franchises, rights, etc,, 532 Secretary of state as to — filing amendments to articles, 103 filing articles of incorporation, 94, 101, 103 name of corporation, 101 Superintendent of insurance, 31 may not exercise arbitrarily, 426 not subject to mandamus, 426 DISCRIMINATION. In case of automatic package carrier companies, 323, 320 electric light and power companies, 323, 320 life insurance companies, 394 railroad companies. (See Railroads.) DISORDERLY PERSONS. Agents, etc., of union depot companies may arrest when, 314 DISPATCH COMPANY. (See Freight Line Company.) DISSOLUTION OF CORPORATIONS. (See Banks, etc.; Building and Loan Assocl&.- TioNS: Gas Companies: Manufacturing and Mining Com- panies; Railroad Companies.) Actions in favor of or against company — IKDEX. 759 (References are to pages.) DISSOLUTION OF CORPORATIONS — Continued, judgments enforced how; revivor of, 601 may be prosecuted by directors, receivers, etc., 600 in own name, 601 not abated or discontinued by, 600 service of process upon, made how, 601 in case of error proceedings, 601 revivor of judgments, 601 By judgment of forfeiture in quo warranto, 632 judgment in, where rights, etc., have been surrendered or forfeited, 632 trustees in case of — appointment, bond, powers, duties of, 633 books, papers, etc., delivered to, 633 refusal to deliver; penalty, 633 By voluntaiy surrender of charter, etc. — under proceedings in court for — appeal does not lie tOj 593 assignments, sales, transfers, etc., after, void, 595, 596 made before^ in contemplation of, void, 596 costs in, directors liable for, when, 593 cross-petition in, to reach stockholders' liability, 598 error to, motion for new trial necessary in, 598 order requiring officers to file statements is not reviewable, 598 judgment for, rendered in, when, 594 parties to, lienholders are proper, 593, 598 petition for — filed — by directors, when, 592 by stockholders, when, 592 number, etc., necessary, 592 where, in what court, 593 hearings upon, before referee or master, 594 notice and order for, 594 must show what, 593 notice of pendency of, 594 verification for, 594 what must accompany, 594 receiver under. (See Receivers.) accounts of, subject to order of court, 597 notice of intention to file, 597 referred to master or referee when, 597 examination, report and confirmation, 597 appointment of, made when, 594 notice of, 595 who eligible to, 595 bond or security of; compensation, 595 contingent engagements, discharged how, 596 controversies as to claims under, arbitration, etc., of, 596 counsel fees, allowance of, 596 creditors, duties of, upon appointment of, 596 meeting of, called when, 596 proceedings at, 596 distribution by — made when and how, 597 money for certain claims to be retained by, 596 dividends — paid to creditors when, 597 to stockholders, when, 597 receiver subject to order of court as to, 597 unclaimed paid into court, 597 expenses of, payment of, 596 powers and duties of, 595, 596 has powers of trustees in, 595, 596 subject to orders of court, 597 removal of, court may make, 597 unpaid subscriptions to be collected by, 595 action for, is suit at law to recover money judgment, 595 joinder of parties in, 595 vacancies in, court may fill, 597 vested with title to property of, 595 without court proceedings, — certificate of, filed with secretary of state when, 599 760 INDEX. (References are to pages.) DISSOLtrriON of corporations — Continued, may be made when, 598 in ease of inactive corporation, 599 meeting of stockholders for, 599 in case of inactive corporation, 599 notice of, 599 vote necessary for, 599 settlement of aft airs upon — directors, etc., are trustees for, when, 699 bond required when, 601 judgment liens continued, 599 liability of, as, 599, 601 powers of, 599, 601 may have judgment on cognovit note, 600 may sue in collective names, 600 quorum of, lack of, power of court to declare, and fill vacancy, 600 petition for and order of court, 600 power of trustees so appointed, 600 removal of; filling vacancies, 601 subject to control of common pleas court, 601 title to property passes to, transfer of, by, 601 directors may appoint trustees for, 602 powers of such trustees, 602 removal of, stockholders may make, 602 report of, to stockholders, 602 vacancies in, stockholders may fill, 602 Causes for — what works — benefit of stockholders, etc., 593 failure, abandonment, etc., of objects, 593 forfeiture or surrender of rights is, 632 impairment of assets and stock, 592 non-user of rights and franchise is, 632 removal from state is not, 593 sale of property does not, 593 ultra vires acts do not, per se, work, 106 Certificate as to, filed with secretary of state, 20 fees for filing, 20 Courts, power of, to order — because of by-law limiting corporate existence, 136 equity will not interfere in case of, when, 593 in absence of statute, at suit of stockholder, 593 jurisdiction of subject matter determined how, 593, 598 Error proceedings in favor of or against, 601 prosecuted in name of, 601 service of process in case of, 601 Fraudulent conveyances, creditors may require receiver to set aside, 595 Liability of company not terminated by, 593 Liability to, no defense in action to collect stock subscription, 139 Modes of, 593 death of members, 593 judgment of forfeiture for abuse, non-user, etc., 593 petition of directors, stockholders, etc., 592 sale of all property is not, 593 surrender of franchises, 593, 598 DISTRICT AGRICULTURAL SOCIETIES. (See Agricultural Societies — District.) DITCHES, DRAINS, ETC. (See Railroads.) DIVIDENDS. (See also under respective companies.) Actions for — are actions at law, 170 barred when, 170 Advertising unearned, etc., 170 Attachment of stock, effect upon, 149 Bequest of, includes stock when, 148, 169 Consist of what; meaning of term, 169 Declared only from surphis profits, 169 surplus profits ascertained how, 170 unpaid interest not to be included in profits, 170 Earnings, title to is in company until declaration of, 169 Guaranty of, by third persons, not within statute of frauds when, 170 Lien of company on, 169 On lost or destroyed certificates, re-issued, 146, 147 INDEX. 761 (References are to pages.) DIVIDENDS — Continued. On preferred stock — articles of incorporation may provide as to, 94, 96 guaranty and security of, 95, 169 rate of, 96, 166 may be cumulative, 96 Payable to whom — equitable owner when, 169 follow the stock when, 170 legal owner entitled to, 143 owner of record, 169 Payment of — injunction against, will not lie when, 160 wrongful, 170 Premiums on sale of increase of capital stock is not, 166 Provisions as to, liability of directors for violating, 170 Kate of. (See " On preferred stock," above.) Scrip dividends, 169 Security for, 170 Stock dividends — not capital when, 169 Taxation of. 169 Transfer of stock cannot reserve, 143, 169 DOCK COMPANIES. Powers of, 564 DOING BUSINESS IN STATE. (See Foreign Cobporations.) DOMICILE. (See Corpoeate Domicile.) DOWER. In lands taken by appropriation, 186 DRAINS. (See Railroads.) DRAW BRIDGES. (See Bridges: Railroads.) DWELLING HOUSES. Appropriation of land upon which situated — cemetery associations cannot make when, 357 in cities of 1st class, 1st grade, 357 2d class, 3d and 4th grades, 357 Cemeteries not to be located within what distance of, when 357 in cities of 2d class, 3d and 4th grades, 357 provisions not applicable to certain cemeteries near cities of 1st class, 1st grade, 357 EARNINGS. Gross. (See Gross Receipts.) Title to, is in company until set aside for dividends, 169 EDUCATIONAL, ETC., CORPORATIONS. (See Charitable Trust Companies: Schools, Colleges, etc.) EJECTMENT. Possession of streets recovered by, 189 ELECTIONS. (See Corporate Elections.) ELECTOR. Superintendent of insurance must be, 31 ELECITIICITY. Use of, as motive power, — by railroad companies, 210 by street railway companies; ground circuit, 296 ELECTRIC LIGHT. Gas companies may amend article so as to furnish, 103, 349 ELECTRIC LIGHT AND POWER COMPANIES. Agents, employees, etc., of. (See "Officers," below.) Agreements with other companies, 323, 316 Appropriation of property by. (See Appropriation.) Auditor of. ( See " 0//icers," below. ) Books and papers of — examination, etc., by state board of appraisers and assessors, 79, 80 Capital stock of — investments in, by safe deposit and trust companies, when, 514 by saving and loan associations doing safe deposit and trust business in cities of 1st class, 3d grade, and 2d class, 1st grade, 515, 514 value of, dissenting stockholders may demand when, 54 Character and nature of company, report to state auditor must give, 77 Charges for service. ( See " Service " below. ) Consolidation of — laws as to railroads apply to, 43, 323 762 INDEX. (References are to pages.) ELECTRIC LIGHT AND POWER COMPANIES — Continued, with gas or electric light companies, 43, 40, 323 Construction of lines, — along public roads, etc., authorized, 323, 315, 325 are additional burdens, 324 by means of posts, piers, etc., 324, 315, 325 consent of abutting owner necessary, 324 of municipal authorities necessary, 324, 325 either above or below surface, 324 penalty for using without, 324 must not incommode public, 323, 315 regulations as to, municipalities may make, 324, 325 trees, cutting and trimming, 316 must not interfere with other lines, 323, 317 tdegraph or telephone lines, 325' poles, etc., erected unlawfully, ordered down, when, 316 over private property, — appropriation of property for, 323, 317 in case of lands of corporations, 323, 317 railroad companies, 323, 317 buildings, etc. — entering or using without consent, 323, 317 erecting poles, etc., near to, 323, 317 consent of owner necessary, when, 323, 317 location of poles, etc., — change of, when corporation owning land needs it, 323 appropriation of property to make, 323 designation of new location, 323 notice of, to company, 323 trees, etc., injuring or destroying fruit or ornamental, 323, 317 riglit of way for, appropriation of, 323, 317 wires, cables etc., of — insulation of, 325 over railroads. (See Railroads.) to be laid in subways, when, in cities 1st class 1st grade, 325 Definition of — includes what, 76, 77 Excise tax on, — amount, levying, collection, etc., of, 78, 80 exempted from provisions of " Willis Law," 20 tangible property not exempted from ta.xation, 80 General manager. (See "Officers," below.) Gross receipts, report to state auditor to show what, 78 Instruments, machinery, poles, wires, etc., of, interfering with unlawfully, &23, 322 Lease or sale of plant, franchises, etc., — to, gas companies in cities of the first class, first grade, 350 to street railway company, authorized, 54 stockholders, — meeting of, to ratify, notice, proxies, vote required, 54 rights of, refusing assent to, 54 compensation for stock, 55, 206 arbitration as to value; basis of, 55, 20(), 207 refusal to arbitrate, or receive amount of award, 206, 207 notice of refusal of assent, 55 License to others to use poles, etc., when, 316 Lines of — joint ownership of, 323, 317 leasing of, 323, 317 Managing agent — general manager — chief officer in state. (See "Officers," below.) Meters of — charges for, municipalities may regulate, 40 injuring, interfering with, etc., 322 inspection and testing; charges for; council regulates, 42 Mortgages of — record of, 151 Municipal lighting of streets, public buildings, etc., contracts for, 43 certain prior contracts validated, 325 term of, 43, 328 Name of — report to state auditor must give, 77 Officers of — duties and powers of, as to reports. 77 examination of, by state board of appraisers and assessors, 79 refusing to testify; penalty, 80 names and address of, reports to state auditor to give. 77 Organization of, report to state auditor must give state and laws of, 77 Powers of, 323, 316, ."17. 324 to construct, own, use, etc., lines, 323, 316. 324 lease, etc., other lines, etc., 323, 316, 317 sell, furnish, etc., electric light and power. 324 INDEX. 763 (References are to pages.) ELECTRIC LIGHT AND POWER COMPANIES — Continued. President of. (See " Officers," above.) Price for service. (See "Service," belo-\v.) Principal office of, report to state auditor to give location of, 77 Repairs of structure, lines, etc., — v?hen on lands of corporations, 323 corporation may make, vi'hen, 323 notice to company to make, 323 Reports of to state auditor — blanks for, auditor furnishes, 78 requirements as to, 77 Right of way — appropriation of, over lands, to construct, repair, etc., 323, 317 exclusive, unlawful to contract for, 323, 317 Secretary. ( See " Officers," above. ) Sections" 3454 to 3460 apply to, 323 3461 does not apply to, 323 .S462 to 3471 apply to, 323 Service by — discrimination in, 323, 320 price for, 40 municipalities cannot fix in ajfreement for use of streets, 323, 318, 319 may regulate, how and wlien, 40, 41 Streets, alleys, highway, etc., use and occupancy of. (See "Construction," etc., above. Superintendent. ■ (See " Officers," above. ) Treasurer. ( See " Officers," above. ) ELECTRIC LIGHT PLANT. Is part of railroad, when, 85 Ship canal company may acquire, etc., 310 Street railroad company, — in Mansfield may construct and operate, when, 308 may lease or purchase, from electric light and power company, when, 54 ELECTRIC RAILROADS. (See Street Railroads.) Actions against, brought where, 580 Consolidation of, with inclined plane and street railway companies, 53 laws as to railroads apply to, 53 Crossings over railroads. (See Railroad Crossings.) Exempted from provisions of " Willis Law," 20 Liens on. (See Mechanics' Lien.) Service of process on, 582 ELECTROLYSIS. Liability and remedy, 296 ELEVATOR COMPANIES. (See Ship Canal Companies.) Capital stock of, — railroad company may subscribe to and hold when, 564 liability of, as a stockholder, 564 limitations as to amount, 564 taken in name of president, 564 Powers of, 504 cannot deal as buyers or sellers, 564 to do business of general storage, warehousemen and forwarders, 564 erect, purchase, etc., necessary buildings, machinery, etc., 564 purchase, etc., real estate for its own use, 5G4 receive, store, forward, etc., grain, 564 Subject to laws governing individuals, 564 KMINENT DOMAIN. (See Appropriation.) EjMPLOYEES. (See Railroads; see, also, under various companies.) Employers, insurance of. (See Insurance Co.'s — Accident and Health.) Mutual benefit societies, relief associations of. (See Insurance Companies — Life: Railroads.) fees for filing articles of, 9 ENDOWMENT FUNDS. (See Schools, Colleges, etc.; Religious Societies.) ENDOWMENT STOCK. (See Capital Stock.) ENGINEER — CIVIL. (See Railroads.) ENGINEER — LOCOMOTIVE. (See Railroads.) ENGINES. (See Railroads.) ENTERTAINMENTS. Grounds for — injuring, trespassing upon, carrying away fruits, etc., 462, 4b3 Power of railroads to aid, 177 EQUALIZATION. (See State Board of Equalization, etc.) 764 INDEX. (References are to pages.) EQUIPMENT. (See Railroads.) EQUIPMENT COMPANIES (R. R.) Definition of; includes what, 71 Examinations, etc., by state board of appraisers and assessors of — of agents, employees, officers, etc., of, 73 of books, papers, etc., 73 penalties for refusing to testify in, 73 Excise tax on; amount, levying, collection of, etc., 72, 73 exemption from provisions of " Willis Law," 20 service of process to collect, 73, 74 Reports of to state auditor, — duties and iiowers of officers, etc., as to, 71 blanks for, auditor prepares and furnishes, 72 made by whom, when, under oath, 71 must show what as to — capital stock, 71 cars of, 72 character and nature of company, 71 name of company, 71 officers, etc., of — name and address of, 71 organization of, laws and state, 71 principal office, location of, 71 real estate, 72 route or lines of, 72 Taxation of. ( See " Excise tax," above. ) exempt fi-om provisions of section 2744 as to, 72 real estate of, taxed locally, 72, 73 ERRORS AND OMISSIONS. In instruments of writing or proceedings, — action to correct, when instrument, etc., is matter of record, 603 judgment in, eflfect and record of, 603 petition in, 603 filed by whom in court of common pleas, 603 in what county, 603 service of process upon, 603 court to give effect to intention, 603 ERROR — PROCEEDINGS IN. In appropriation. (See Appropriation.) Stockholder may prosecute against corporation, loO In proceedings for dissolution, 598 ESCROW. Deed to right of way of railroad may be held in, 188 ESTOPPEL. Who subject to, — corporation is, as to — its own existence, 99 power to purchase land ordered sold in error proceedings after acquiescing in confirmation. 111 validity of bond issue, when, 198, 200 corporation is not, as to ultra vires acts although ratified by stockholders, 107 foreign corporation may be, by assuming defense of an action, 16 licensee to use land is, as to power of company to own. 111 member of corporation is, as to adoption of by-laws, when, 136 one bringing suit in one capacity is not, as to suit in another capacity, 133 one dealing with corporation is, as to corporate existence, 15, 99 pledgor of stock is, as to title of stock, when, 148 stockholder is, as to corporate existence, in collateral proceedings, 99 vender of real estate is, as to want of power of company to purchase, 111 EXAMINATIONS, EXAMINERS, etc. (See under respective companies.) EXCHANGE. Power to sell stock does not include, 148 EXCISE, FRANCHISE OR. PRIVILEGE TAX. (See under various companies,) Amount, levying, collection of, etc., — in case of corporations for profit, 18 certain corporations excepted, 20 in case of corporations not for profit, 19 in case of foreign corporations under section 148c, 10, 11 additional to tax under section 148e, 18 certain companies excepted under section 148c, 11 Certificate of compliance with provisions as to, 19 INDEX. 765 (References are to pages.) EXCISE, FRANCHISE OR PRIVILEGE TAX — Continued. Exemption from; retirement from business does not work, 20 certificate as to necessary, 20 Failure to pay, etc.; remission of penalty, etc., 19, 20 Hearings as to, 20 In case of special companies. (See Electbic Light, Equipment, Express, Fratebnal Beneficiary Associations, Freight Lines, Gas, Insurance Companies, Messenger ok Signal, Natural Gas, Pipe Line, Railroad, Sleeping Car, Street, Soburban or Interubban Railroad, Telegraph, Telephone, Union Depot, and Water Works Companies.) Municipalities not required to pay, 81 Paid into state treasury, 11, 19, 74, 76, 81 Reports, etc., for purposes of. (See Reports.) EXECUTION — W'RIT OF. Against railroad property in use, 199 property of consolidated railroad for debt of old company, 276 Exemptions from. (See " what not subject to," below.) Mortgage on personal property of railroad — effect of, as to, 199 injunction against sale of portion of property, 199 refusal of sheriff to levy on; damages, 199 remedy of judgment creditor in case of, 199 Proceedings in aid of — bonds of railroad not subject to, before delivery, 199 Stay of, none, in case of — demanding toll greater than allowed by law, 333, 334 evading payment of toll, 330 gatekeeper unreasonably detaining traveler on toll roads, 333, 334 What is subject to, — animals unlawfully driven, permitted, etc., in railroad enclosure, 638 franchises of turnpike or plank road companies, 343, 344 right of plank road or turnpike company to take toll, 344 shares of stock in corporation, 147, 149 situs of, for purpose of, 149 turnpikes and plaik roads, 343 What not subject to, — bonds of railroad company, before delivery, 199 lands of cemetery associations, 336 in counties containing city of 1st or 2nd class, 359 lands of companies for protecting and preserving dead bodies, 573 lots in cemetery, 39, 358 proceeds of conditional subscription to railroad, when, 203 and property purchased with same, 203 EXECUTIVE COMMITTEE. Powers of, 137 EXECUTORS AND ADMINISTRATORS. Action by, for damages from use and occupancy of street by railroad, 191 Liability of, for losses and expenses of mutual insurance company, 421 Powers of, as to sale of stock, \iZ Rights of, as to re-issue of lost or destroyed stock certificates, 147 Safe deposit and trust companies may act as, 514 EXEMPTIONS. (See Attachment: Execution: Taxation.) EXISTENCE. (See Corporate Existence.) EXPERIENCE TABLES. (See Insurance Companies — Life.) EXPLOSIONS. (See Accidents: Insurance Co.'s — Fire.) EXPRESS COMPANIES. (See Common Carriers: Common Carrier Companies. )_^ Agents, etc., of. (See "Examinations, etc.," "Managing agent," "Local agent," below.) pay taxes, when, 82 unlawful to act as, if taxes not paid, 83 Agreements, contracts, leases with, railroad company must furnish copies to commis- sioner of railroads, 29 Definition of — includes whom, 68, 77 Employees of — mutual benefit societies of. (See Insurance Companies — Life.) provisions of sections 3630a to 3630f, 3631, do not apply to, when, 393 Examinations, etc., — of agents, employees, officers, etc., of, — by commissioner of railroads, 29 by state board of appraisers and assessors, 70, 79 refusal to answ^er, penalty, etc., 70, 80 of books, papers, etc., by state board of p.ppraisers and assessors, 70, 79, 80 766 INDEX. (References are to pages.) EXPRESS COMPANIES — Continued. Excise tax on — amount, levying, collection, etc., of, 78, 80 exempted from provisions of " Willis Law," 20 tangible property not exempted from taxation, 80 Foreign companies, section I48c does not apply to, 11 Freight. (See Freight.) Local agent of. (See "Examinations, etc.,'' above; "Reports," below.) is managing agent for service of summons on, when, 583 Managing agent — chief officer in state. (See "Examination, etc.," above; "Reports," below. ) who is, for service of summons on, 583 Penalties against — are subject to provision of sections 2781 to 2785 as to taxation, etc., 70 Railroads not to transact business with or for, when, 83 Reports of, to state auditor, — clanks for, auditor furnishes, etc., 69, 78 duties and powers of officers, etc., as to, 68, 77 made by whom, when, under oath, 68, 77 must show what as to, — capital stock, 68, 77 character and nature of company, 68, 77 gross receipts, 68, 77 name of company, 68, 77 officers, etc., of, — name and iddress of, 68, 77 organization of, laws and state of, 68, 77 personal property of, 68 principal office, location of, 68, 77 real estate of, 68 route or lines of, 68 Service of process upon, 583 Stockholders of, or parties interested in, ineligible to office in railroad company, 212 Taxation of. ( See " Excise tax," above. ) not exempt from provision of section 2744 as to, 69 EXPRESS TRAINS. (See Railroad Trains.) EXPULSION. Of members of corporation, — ^by-laws as to, 136 causes for, 114, 115 form for regulation as to, 671 power of corporation as to, 114 cannot be delegated, 114 proceedings for, requirements, etc., 114 irregularities or fraud in, 115 remedies for, injunction not mandamus, 114, 115 waiver of right, what is elTect of, etc., 115 threatened, injunction will not lie, 115 EX-UNION SOLDIERS. (See Soldiers.) FACTORIES. Companies to construct and mairtain buildings for. (See Building Companies.) FACULTY. (See Schools, Colleges, etc.) FAIRS. (See Agricultural Societies.) Constables to keep peace at. (See Constables), 460 Exhibits at, removing, distvirbing, etc., 432 Liquors, sale of, within certain distance of, 460, 461 articles used in connection with, bound for fines and costs, 461 seizure and disposition of, 461 persons selling, arrest of, without warrant, 460 FAIR COMPANIES. (See Agricultural Societies.) Agricultural, for profit, organized under § 3235, 94 Corporations not having capital stock may hold stock in, when, 395 elect directors of, etc.. when, 395 liability of, as stockholders, 395 FAIR GROUNDS. Injuring etc., buildings, tree'?, etc., trespassing, etc., 462, 463 FARE, RATES OP. (See Railroads; Street Railway Companies.) General assembly may alter or regulate, when, 2 FARM BUILDINGS. Cemeteiy associations cannot appropriate land having, when, 357 INDEX. 7C7 (References are to pages.) FARMERS' INSTITUTE SOCIETIES. Aid to, from county, 461 allowed for holding institute, when, 461 amount of, computed how, limitations, 461 when more than one society hold.s meeting, 461 certiiieate of secretary of state' board of agriculture necessary, 461 must show what, 462 presented to county auditor, 461 county auditor to issue warrant for, 461 treasurer to pay from county fund, 461 Become body corporate, when, 461 Constitution and by-laws of, must conform to rules, etc., of state board of agriculture, 461 Delegate from to state board of agriculture, 448 Expenses of, — aid from county not to exceed, 461 detailed statement of, filed with county auditor, 462 published with lectures, 462 salaries of oflBcers not to be included, 462 Incorporators of, — number of, residence of, 461 Institute meetings under state board of agriculture, — how many societies may hold in county, 461 lecturers for, state board to furnish, 462 publication and distribution of lectures, 462 powers of state board as to number, time and place of, 461 Objects of, 461 Oificers — election of, necessary to becoming body corporate, 461 FARM LABORERS' ASSOCIATION. Charter of, forfeiture of, for failing to make reports, 565 Consolidation with unincorporated association, 565 liability of members for debts of unincorporated company, 565 name, title, privileges of, 565 resolution arid vote for; record, etc., 565 Funds of, invested how, 564 articles of incorporation may provide as to, 565 Libraries, power to maintain, etc., 565 Loans of, — amount and time of ; limitations as to, 565 interest on, rate of, 565 none lo trustee or officers, 565 Museums, power to maintain, etc., 565 Objects and purposes of, 564 Real estate, power to hold; limitations as to, 564 Reports of, to attorney-general, 565 made when, by whom; show what, 565 neglect to make; penalty, 565 FAST FREIGHT COMPANIES. (See Freight Line Companies.) FEES. Disposition of — paid into state treasury, — by secretary of state, 10 in case of certificate of authority of foreign company to do business, 13 excise, franchise or privilege tax, 11, 19, 74, 76, 81 service of process upon, as agent of foreign company, 13 by superintendent of insurance, 31, 32, 35 For acting as agent of foreign corporations for service of process, 13 For affixing seal, by secretary of state, 10 by superintendent of insurance, 35 For certificates, — authorizing to do business, — in case of foreign companies under § 148d, 13 insurance companies, 35 foreign assessment life insurance companies, 388 making under seal — by secretary of state, 10 by superintendent of in.surance, 35 in case of foreign assessment life insurance companies, 388 For certified copies of, — amendments to articles of incorporation, 103 in case of schools, colleges, etc., 481 articles of incorporation, 10 in case of schools, colleges, etc., 481 certificate of authority to do business, of insurance companies, 35 768 INDEX. (References are to pages.) FEES — Continued. For copies, making, etc. — by secretary of state, 10 by superintendent of insurance, 35 For doing business, etc. (See Excise, Fra-nohise oe Privilege Tax.) I'or filing, recording, etc. acceptance of provisions of revised statute by companies created prior to 1851, 9 amendments to articles of incorporation (see "Certificates" below), 9, 103 in case of schools, colleges, etc., 481 articles of incorporation, 9 in case of benevolent associations, 9 building and loan associations, 9 consolidation of corporations, 9 certificate of, by purchase of stock, etc., 277, 9 in ease of safe deposit companies and savings and loan associations, 516 corporations (not mutual) not for profit, 9 literary societies or associations, 9 mutual corporations, not for profit, 9 mutual insurance companies, etc., 9 relief associations of employees, etc., 9 religious societies, etc., 9 schools, colleges, etc., whose charters are not on file, 481 secret societies, 9 certificates — ■ generally, 9 as to capital stock, — increase of, 9 in case of building and loan associations, 9 reduction of, 9 subscriptions to, 10 as to change, extension, etc., of — domicile, 9 lines, termini, etc., of railroads, 9 name (copy of decree of court), 9 purposes, objects, etc., 9 as to compliance with law, by insurance companies, 36 as to dissolution, abandonment, etc., of charter, 20 as to elections, 9 as to lien of mutual fire insurance companies for premium notes, 429 charter (copy of) of insurance companies, 35 contracts for conditional sales to railroads, 267 deed of settlement (copy of) of insurance companies, 35 name, etc., of majiufacturers, bottlers, etc., of beverages, 10 papers, etc., generally by secretary of state, 10 as to incorporation, annexation, etc., of municipalities, 10 reports, statements, etc., of insurance companies, 35 For license to do business. ( See " Certificates," above ; also Excise, Franchise oe Privilege Tax.) For making and forwarding checks on account of securities deposited with state by for- eign insurance companies, 31 For prosecuting actions, — for collecting excise, etc., tax from, 73, 76, 80 for cruelty to animals, etc., 468 for damages for usurping office, franchise, etc., 632 for violation of provisions regulating railroads, 229 as to crossings over highways; approaches, side walks, etc., 229 emplojTnent of locomotive engineer addicted to drink, etc., 249 heating baggage, e.\:press, mail, passenger cars, 239 waiting rooms at stations, 215 to appropriate property, 616 to dispose of property of real estate corporations, 94 to enforce ditches along railroad tracks, etc., 237 to enforce stockholders' liability, 163 For valuation of policies of life insurance companies, 35 Of officers. (See under the various officers.) Payment of under protest, 15 FELLOW SERVANTS. (See "Employees," under Railroads.) FELONS. (See Criminals.) FELONY. Embezzling, etc., funds, issuing or assigning paper, falsifying books, reports, etc., of bank is, 542 Interfering, etc., with electric wires, poles, etc., is, when, 322 INDEX. "i^^ (References are to pages.) FELONY — Continued. , . i- * „„„„i= ,,]»„t Making inaccurate measurements and estimates as to construction of canals, planJt roads, roads, railroads, etc., by engineer is, 89 FENCES. (See Raileoads.) FERRY COMPANIES. Powers of, 565 Subject to laws governing individuals, 565 FIDELITY GUARANTY COMPANIES. (See Insurance Co.'s — Accident, etc.: Insdb- ANCB Companies • — Fidelity Guaranty : Insurance Co. s — OTHER than Life: Insurance Co.'s — Title Guaranty.) FIDUCIARY RELATIONS. Directors and company occupy, 130 FIRE INSURANCE COMPANIES. (See Insurance Companies -Fire.) FIREMAN. (See Railroads.) FIREMEN'S RELIEF ASSOCIATION. Assessments upon members, 560 Directors of — number of, from each fire, etc., company, 565 separate election of, by each fire, etc., company, 565 Funds of, loans of, on bond and mortgage, 566 interest upon, 560 Members of, entrance fee of, 566 Objects and purposes of, 560 Officers of — election, duties, etc., of, 566 Powers of — to acquire, hold, etc., property, 566 to loan funds, 560 Relief of disabled firemen, etc., regulations aS to, 566 FISHERY COMPANIES. , . , ^ ■ ■ + krr Navigable streams, etc., what not subject to provisions as to, 566 Trespassing upon property of; penalty, 566 Unauthorized fishing in fisheries of; penalty, 566 Tjii "v" ']■' r IT? TT S " Inter-locking for railroad crossings. (See Railroad Crossings.) What are — stone piers of railroads, 186 FLAGMEN, GATEMEN, ETC. (See Railroads: Railroad Ckossings.) FOREIGN CORPORATIONS. (See under respective companies.) Actions against, — for not complying with section 148e, 11 quo warranto lies, when, 14, 627 in U. S. courts — plaintifi' need not be citizen, ) 6 service of process on agent, 16 Actions by, — cannot bring unless complying with sections 148c, I48d, 11, 12, 14 capacity to maintain need not be set out, 15 compliance with local laws need not be alleged, 15 defenses in — failure to comply with local laws is matter of, 15 failure to comply with provisions of §§ 148c, 148d is not, in criminal cases, 15 organization in foreign state to evade our laws is not, 14 Agents, — efl'ect on, of revocation of authority to do business, 34 for service of process against company, 12 secretary of state acts as, when, 13 "managing" — meaning of term, 16, 58.3 name and address of, report to secretarv of state must give, 10, 1° penalty for doing business before compliance with sections 148c, 148d, II, 13 service of process on. (See Service of Process.) Appearance of, voluntary, what constitutes, 16 Attachment against, because of non-residence. — - none upon compliance with sections 148e, 148d, 11, 13 constitutionality of provision, 12 Books, etc., of, stockholder may inspect, 15 Citizenship of, 14 Contracts of, not complying with §§ 148c, 148d, — are not void; right of action suspended, 14 cannot sue on, 11, 12 Charter, copy of filed with secretary of state, 12 Capital stock of, what must be stated as to, — in certificate authorizing to do business, 1] 770 INDEX. (References are to pages.) FOREIGN CORPORATIONS — Continued. reports to secretary of state, 18 under §§ 148c, 148d, 10, 12 Definition of — wliat is a, 16 Doing business in state, — authority for, 10, 11, 12 certain companies excepted, 11, 12 companies dealing in stocks have no, 17 , may be tested by quo ivurranto, 627 revocation of, 37.5 certificate of secretary of state as to, 10, 12 appeal from decision as to, 11 forms of, under §§ 148c, 148d, 643, 644 hearing as to, company entitled to, 11 must state what, 10, 11, 12 deposit with state treasurer required of certain, before, 12 penalty for violating provisions of § 148c as to, 11 does not make. Ohio corporations, 13 license or privilege of, is not a contract or property, 15 one dealing with cannot deny right of, 15 what constitutes, 15 Estoppel of, by assuming defense of action, 16 Excise, franchise or privilege tax on, (See Excise, Franchise or Privilege Tax.) Laws applicable to, when formed to do business in foreign state, 17 Legal existence of — one dealing with cannot deny, 1 5 questioned for lack of doing business in home state, 15 Liability of stockholders in, 17, 157 Need not commence business in own state, 15 Place of business of, reports to secretary of state must give principal, in state, 12, 18 Powers of — exercised only by county or legislative consent, 13 in absence of statute, 13 not greater than in state of creation, 14 proof of, 15 to hold real estate, etc., 14 make assignment for benefit of creditors: preferences, 14 sue and be sued, 14 Property of — report to secretary of state must give value of, etc., 10 Reports, etc., of, 10, 12 additional to be made when, 11, 18 for authority to do business under sees. 148c, 148d, 10, 12 forms for, 641, 642, 643 for franchise tax ("Willis Law"), 18 certain companies excepted, 11, 12 from provisions of " Willis Law," 20 filed with secretary of state, 10, 12, 18 must be under oath, 10, 18 must show what, 10, 12, 18 Retaliatory and reciprocal provisions as to. (See Retaliatory Provisions.) Section 148c, 148d, does not apply to certain, 11, 12 to companies soliciting business, etc., 11 Service of process on. (See Service op Process.) Taxation of. (See Excise, etc.. Tax: Taxation.) FORFEITURE OF CHARTER. (See Dissolution.) FORMS. Acknowledgment of, — articles of incorporation, 645 in case of free banliing companies, 696 corporate deeds, 662, 663 Amendments of — articles. (See "Articles of incorporation," below.) by-laws, 672 regulations, 669, 672 Annual statements. (See Reports.) of corporations under § 3208, 684 Articles of incorporation — amendments to, 661 certificate as to, 662 notice of, 625 waiver of. 625 waiver of meeting for making, 661 of notice of meeting, 661 INDEX. 771 (References are to pages.) FORMS — Continued. companies for profit, 645-656 limiting voting power of stock, 666 not for profit, 656-659 stating organic rules in articles, 693 consolidation agreement. (See " Consolidation of companies," below.) endowment fund corporations, 694 free banking companies, 696 humane societies, 692 insurance companies, 687, et seq. principal or ruling body governing subordinate, 659 record of, in boolcs of company, 675 schedule of property to accompany articles of colleges, etc., 693 statement of objects in. (See "Objects" below.) union depot companies, 686 Authority to commence business, certificate of, for free banking companies, 697 Bankers' collateral note, 679 Blanks for — listing personal property for taxation, 61 reports or statements of companies. (See Reports.) returns for taxation, by corporations, 56 Bond or bonds — indemnity, for lost or destroyed stock, 678 official, 666 resolution of directors authorizing issue of, 680 when convertible into stock, 680 assent of stockholders to, 680 Books — journal, ledger, stock, record, etc., 673-675 regulations as to inspection of, 670 By-laws — of company for profit, 672 record of adoption of, in books of company, 677 Capital stock, — certificate of stock, 673, 674 lost, destroyed, etc., regulations as to, 669 conversion of, of constituent consolidating companies, statement as to, 685 increase of — assent of stockholders to issue of preferred, 682 certificate of, 682 before organization, 682 by issuing preferred stock, 683 in case of building and loan association, 697 notice of stockholders' meeting for, 681 waiver of, and agreement to increase, 681 resolutions for, 681 in case of preferred stock, 683 record of in books of company, 681 in case of preferred stock, 633 lien of company on stock, regulations as to, 670 sale of stock to satisfy, regulations as to, 670 promissory note secured by, as collateral, 670, 680 reduction of — assent of stockholders to, 684 certificate of, 684 resolution for, 683 record of, in books of company, 683 statements as to, in articles, 645, 640 in case of free banking companies, 696 union depot companies, 687 in consolidation agreements, 685 limiting voting power of stock, 666 subscriptions to, — books for, 664 order for opening, 663 notice of, 664 waiver of, 663 calls for payments of, regulations as to, 670 notice of sale for non-payment of, 672 certificate of, 665 in ease of free banking companies. 697 record of, in books of company, 676 Collateral notes, 679, 680 Consolidation of companies, — agreement for, 685 in case of religious corporations, 692 772. INDEX. (References are to pages.) FORMS — Continued. certificate of, 686 Directors, — election of — certificate of first, 666 record of first, in books of company, 677 regulations as to, 668 meetings of — by-laws as to, 672 record of first, in books of company, 677 names and residences of — statement as to, in consolidation agreements, 685 number .of — change in — resolutions for — record of, etc., 684 statement as to — in articles of union depot companies, 687 in consolidation agreements, 685 oath of, 667 record of, in books of company, 677 qualifications — regulations as to, 668 Foreign coi porations, — authority to do business, certificate of, under § 148c, 643 under § 148d, 644 report of, to secure certificate to do business under § 148c, 641 under § 148d, 643 return of, for taxation of shares of capital stock, 642 General manager — regulations as 1o, 669 Loans — resolution of directors authorizing, 680 Members of companies not for profit, — dues of, regulations as to, 671 expulsion or suspension of, regulations as to, 671 regulations as to, 671 Meetings of stockholders, — notice of — of first, 665 stockholders, 666 to amend articles, 661 to increase capital stock, 681 regulations as to, 668, 670 Mortgage of property — resolution of directors authorizing, 680 Name — consent to use of, 660 statement as to in articles, 645, 657 in case of life insui'ance companies, 687 union depot companies, 687 Notice of amendment of articles, 661 meetings of stockholders, etc. ( See " Meetings," above. ) order for opening books of subscription to capital stock, 663 sale of stock for non-payment of installments called, 672 waiver of. (See "Waiver" below.) Oath of directors, 667 record of in books of company, 677 Objects and purposes — statement of in articles, 845-650 for abstract company, 646 accident insurance company, 688 agency company, 646 air cooling company, 647 architectural company, 646 athletic club, 057 auditing company, 646 automobile company, 646 artificial gas company, 651 animal insurance company, 690, 601 apprebension of horse thieves, 691, 692 banking companies. 095 bakery company, 647 benevolent societies (governing body for), 659 board of trade, 697 band company, 647 boot and shoe company, 647 builders' exchange, 657 building company, 647 building and loan association, 698 business college, 647 butchering company, 647 barrel company, 648 INDEX. 773 (References are to pages.) FORMS — Continued. butter company, 649 chattel loan company, 695 Chautauqua company, 649 china company, 648 Christian Science church, 657 club, 658, 659 coal company, 648 collection company, 647, 648, 654 college company, 647, 648 business, 647 medical, 692 veterinary, 656 construction company, 648 cooperage company, 648 credit guaranty company, 691 dairy company, 649 deaconess' home, 657 detective figeney, 650 directory company, 649 district telegraph company, 653 driving park company, 649 drug and sanitorium company, 649 drug store, 649 dry goods and notions company, 649 electric company, 650, 651 embalming fluid company, 650 express company, 650 fence company, 650 fire insurance company, 690 foundry company, 650 fraternal beneficiary insurance company, 689 gas and electric company, etc., 650, 651 • gas fitting company, 652 general store company, 651 glassware company, 651 Grand Army of Republic, 658 guaranty company, 690 gymnasium company, 657 harness and saddlery company, 651 heating company. 652 liome for aged, 658 hospital, 649, 655, 657 hotel company, 652 house furnishing company, 651 insurance companies, 088 et seq. interurban railway, 686 iron company, 652 laundiy company, 652 league (single tax), 658 library, 658 life insurance companies, — accident, 688 fraternal beneficiary, 689 mutual protection, aid, etc., 688-690 stotk, 688 upon stipulated prem.iura plan, 690 liquor companies, 656 live stock insurance company. 690, 691 lodge building company, 652, 653 masonic temple company, 653 medical college, 691 men's furnishing company, 653 messenger service company, 653 millinery company, 653 milling company, 663 mineral springs company, 654 musical club, 647, 658 musical instrument company, 653 mutual protective company, 688 '':i INDEX. (References are to pages.) FORMS — Continued. natural gas company, 651 notion company, 649 oil company, 651, 654 opera house company, 654 orchestra company, 647 plumbing company, 652 political club, 658 printing company, 654, 655 public library, 658 publishing company, 654, 655 railroad company, 655 railroad construction company, 654 rating company, 654 real estate company, 646 saddlery company, 051 safe deposit and trust company, 696 sanitarium company, 655 .sausage company, 647 scenic railway company, 655 secret societies (governing bodies for), 659 shoe company, 647, 655 single tax league, 658 stationery and publishing company, 655 street railway, 686 telephone company, 652, 654 temperance society, G59 tornado and cyclone insurance company, 691 transit company, 656 underwriting company, 656 union (governing body of), 659 union depot company, 687 veterinary college, 656 wall plaster company, 656 water transportation company, 656 wine or liquor companj", 656 yacht club, 659 Young Men's Christian Association, 659 OflBcers, — compensation of, by-laws as to, 672 regulations as to, 669, 671 election of, record of in books of company, 678 regulations as to, 668, 669, 670 statement as to, in consolidation agreements, 685 Order of business, regulations as to, 669, 672 Preferred stock, statement as to in articles, 646 President, regulations as to, 668, 671 Promissory note, secured by stock as collateral, 679, 680 Property, sale of. regulations as, to, 669 Proxy (stockholders), 665, 666 legulations as to, 669 Quorum, by-laws as to, of directors, 672 regulations as to, 668 Qualifications of members of company not for profit, regulations as to, 671 Eeguiations — assent of stockholders to, 676 of companies for profit, 068-670 not for pi-ofit, 670-672 record of, in books of company, 670 Records, 675-678 of first stockholders meeting, 676 of proceedings of incorporators, 675-676 Sale of property to company — jiroposition for, 677 record of proceedings as to, by directors, 678 by stockholders, 077 Seal, corporate; regulations as to, 669 Secretary, regulations as to, 668, 071 Stock books — journal, ledger, certificates, 673, 674 Stockholders, list of, under § 3208, 684 votes of, regulations as to, 669 iStockholders' meetings, — INDEX. 775 (References are to pages.) FORMS — Continued. * notice of. 66G of first, 665 quorum, regulations as to, 668 records of annual or special, 678 of first, 676 Treasurer, regulations as to, 668, 671 Trustees, election of, regulations as to, 671 Vacancies in board of directors, by-laws as to, 672 Vice-president, regulations as to, 668, 671 \'otes of stockholders, regulations as to, 669 Waiver of — meeting for making amendments, 661 notice of amendment to articles^ 661 of first meeting of stockholders, 665 record of in books of company, 676 of meeting to amend articles, 661 to increase capital stock, 681 of opening books of subscription to capital stock, 663 FORWAB.DING MERCHANTS. (See Mebchants.) FRANCHISES. (See under respective companies.) Corporate — is not property, 56 ouster from — quo warranto lies for, in case of foreign corporations, 14 power to alienate, 95, 112 Damages against one usurping, 632 Right to use streets, alleys, etc. (See Streets, Highways, etc.: also under various companies. ) exclusive, none without clear legislative authority, 350 grant of is a franchise, 42 FRANCHISE TAX. (See Excise, Franchise, or Privii,ege Tax.) FRANKLIN PARK. ( See Parks — ConNTT. ) FRATERNAL BENEFICIARY ASSOCIATIONS. (See Insurance Companies — Life. ) Agents, officers, etc., penalties for doing business of, contrary to law, 401 Articles (certificate) of incorporation of, — acknowledgment of, 399 attorney general must appix>ve, 399 certified copy of, filed with superintendent of insurance, 399 what must accompany, 399 must be recorded in county of home office, 399 must show what, 399 Are not insurance companies, 396 Beneficiaries of — charter limitations as to, 396 in case of death benefits, 396 Benefits — action for, maintained, when, 396 are not subject to attachment, etc., 400 funds to pay, secured by assessment, etc., 396 amount of, required before commencing business, 399 certificate as to filed with superintendent of insurance, 399 if advanced by officers repaid, how, 399 may pay, on aceoiunt of, — death; to whom, 395, 396 lapse of time, 396 physical disabilty from — accident, disease, old age, 395 age limit, as to, 395 withdrawal, when; limitation, 395 Definition of, 395 Directors of. ( See " Trustees " below. ) Doing business in state — fees for; requirements as to, 399 may be enjoined, when, 401 penalty for doing business during, 401 permit for, superintendent of insurance issues, when, 399 penalty for doing business without, 401 Expenses; funds for, secured by assessments, etc., 396 False answers in application ; provisions of section 3625 do not apply, 378 False or fraudulent representations, reports, etc., 400 Funds of. (See "Benefits," " Kxpenses" above.) distribution of, upon dissolution or insolvency, 390 Foreign associations, — authority to do business in state ; requirements, 396, 397 failure to comply with; effect on certificate, 397 773 INDEX. (References are to pages.) FRATERNAL BENEFICIARY ASSOCIATIONS — Continued. examinations of, by superintendent of insurance, when, 397 expenses of; limitations as to, 397 retaliatory provisions as to, 397 service of process upon, — appointment of superintendent of insurance as attorney for, etc., 396, 397, 398 duration, and evidence of appointment, 398 existing associations to comply with, 396 filed with superintendent of insurance, 397 duty of superintendent of insurance as to, 399 effect of service upon superintendent of insurance, 398 fees of superintendent of insurance in case of, 399 record of process served; requirements as to, 399 Government of, — determination of order, is conclusive, when, 396 governing body of, may meet outside of state, 400 insurance laws do not apply to, 396 laws not expressly designating do not apply to, 396 lodges of, vote of outside of state, valid, 400 must be representative, 395 Incorporators of — must execute articles, etc., 399 names and residence of, articles must show, 399 number and qualifications of, 399 Injunction against doing business, — attorney general brings action for, 401 granted, when, 401 request of superintendent of insurance for, 401 Lodge system anil ritual necessary, 395 Members cf, — appeal of to courts, made when, 396 remedies within order must be exhausted before, 396 waiver of right of, in contract void, 396 number of, before commencing business. 399 certificate as to, filed with superintendent of insurance, 399 rights of, are subject to rules of order, 396 withdrawal of, 395 benefits upon; limitations as to, 396 Membership, false or fraudulent statements in application for, 400 Name of — articles must show, 399 requirements as to, 399 Objects of, articles must show, 399 Office of, location of principal — ■ articles must give, 399 certificate as to, filed with superintendent of insurance, 399 Officers, election of, votes of lodges outside of state v.arranto proceedings as to, 635 for extension of pipes, — beyond municipal limits authorized, 351 consent of authorities — right of way — necessary, 351 into other municipalities, vote of electors necessary, when, 351 municipalities must reserve right to purchase plant, 42 regulations as to, proper authorities may prescribe, 349 Gas of. (See Gas: Gas Inspector, etc.) Incorporated under special charters are subject to legislative control, 349 Law as to gas companies (§§ 3560 to 3561) applies to natural gas companies In cities of 2d class 3d grade (16,000 in 1880), 353 Meters of. (See Gas Meteks.) Mortgages of — record of, 151 Plant of,— INDEX. 779 (References arc to pages.) GAS COMPANIES — Continued. cannot arbitrarily be declared a nuisance, 323 damages to pipes from change of grade, municipalities not liable to, 350 lease or sale of, to street railway companies authorized, 54 stockholders — meeting of, to ratify ; notice ; proxies ; vote at, 54, 55 rights of dissenting; compensation for stock; arbitration; notice of dis- sent, 55 right to purchase, municipalities must reserve, 349 Powers of, 349 to borrow money, 349 manufacture, sell, etc., gas, 349 electric light and power — by amendment of articles, 103, 349 in cities of 1st class, 1st grade, 350 includes power to purchase, 42 natural gas — none by artificial gas companies, 350 operate, etc., street railways — none by amendment of articles, 350 purchase, lease, operate, etc., franchises and plant of electric light and power companies in cities of 1st class 1st grade, 350 Reports — municipalities may require when, 350 Reports to state auditor, — blanks for, auditor prepares and furnishes, 78 duties and powers of officers, etc., as to, 77 must show what as to, — character and nature of company, 77 gross receipts, 78 name of company, 77 officers, etc., of — name and address of, 77 organization of, laws and state of, 77 principal office, location of, 77 GAS INSPECTOR. Appointment, duties, compensation, etc., of, 42 GAS IIETERS. Charges for — companies cannot charge rent for, 352 company may shut off gas if not paid, 352 under special charters are subject to provisions as to, 349 municipalities may regulate, 40 in case of natural gas companies, 40 Designation of, municipality cannot limit its rights of, 42 Injuring or interfering with operation of, 352 Inspection, examination, reading, etc., — agent may enter premises for, when, 352 must be authorized in writing, 352 preventing or hindering; remedy, 352 warrant authorizing, justice may issue when, 352 by gas inspector, 42 Meter prover — character of, 353 companies must have, 353 meters must be tested by, 352 tested, stamped and sealed by state sealer of weights and measures, 353 Removal of, for refusal to pay for gas, etc., 352 ' notice of, 352 Testing of — conditions and calculations as to, 352 consumer may require, 352 fee for, and expense of removing if correct; who to pay, etc., 352 if incorrect, none, 352 meter must be re-stamped if correct, 352 must be with meter prover, 352 new meter must be furnished if incorrect, 352 GATES. (See R.^ileoad Crossings.) GENERAL LAWS. Corporations may be formed under, 2 such laws may be altered or repealed, 2 Effect of, on companies chartered by special act, 91 What are, 2 GENERAL MANAGER. Forms for regulations as to — bond of, 669 com.pensation of, 669 election and deities of, 668, 669 Name and address of, reports to state auditor to give. (See Address.) 7f>0 INDEX. (References are to pages.) GIFTS. (See Bequests.) GOATS. Rate of toll for, in case of bridge companies, 346 GOVERNOR. Appoints — director of collateral loan companies in counties containing city of 1st class 2d grade, 517 member of board of visitors of military academies, 479 member of commission to hear petition for consolidation or re-insurance of risks of accident, health, or life insurance companies, 367 railroad police, 292 trustees of schools, colleges, etc., when, 473 Appoints with advice and consent of senate, — commission of raih-oads and telegrapli, 21 superintendent of insurance, 31 Approves, — bond of commissioner of railroads and telegraph, 21 superintendent of insurance, 31 rules and regulations of military academies, 479 Certificate of, as to organization of free banking companies, 338 Is member of, — board of visitors of military academies, 479 commission to hear petition for consolidation or re-insurance of risks of accident, health, or life insurance companies, 367 state board of equalization for banks, 81 GRANT. (See Franchise.) GRAVE STONES. (See Cemetery Associations.) GROSS RECEIPTS. Reports to state auditor must give, — in case of electric light, gas, messenger or signal, natural gas, pipe line, railroad, street, suburban or interurban railroad, union depot, and wa- ter works companies, 77, 78 express, telegraph, and telephone companies, 68, 77 GROVES. Carrying away fruits, etc., injiiring fences, etc., trespassing upon, 462, 463 GUARD RAILS. (See Railroads.) GUARANTY. Power of corporation to make, 112 GUARDIAN. Safe deposit and trust companies may act as, 514 HACKMEN, ETC. (See Union Depot Companies.) IL4MILT0N, CITY OF. (See Municipal Corporations.) HAMLET. (See Municipal Corporations.) HEALTH DEPARTMENT. Permit by, for disinterment of corpse, 39 HEALTH INSURANCE. (See Insurance Companies — Accident and Health: Insur- ance Co.'s — Life : Insurance Companies — Other Than Life.) , HEARINGS. As to excise, franchise, or privilege tax, 20 in case electric light, gas, messeng^ or signal, natural gas, pipe line, railroad, street, suburban or interurban railroad, union depot, and wa- ter works companies, 79 equipment (R. R. ) and freight line companies, 72 express, telegraph, and telephone companies, 69, 79 foreign corporations under § 148c, 11 sleeping car companies, 75 As to inter-locking fixtures, etc., at crossings of railroads, electric railways, etc., 24 HEIRS. Liability of, for losses and expenses of mutual insurance companies, 421 HIGHWAYS. (See Streets, Alleys, etc.) HOGS. Rate of toll for — over bridges. 346 over turnpikes or plank roads, 331 INDEX. 781 (References are to pages.) HOME. For children. (See Children: Huma-'^e Societies.) For widows and unmarried women. (See Widows' Home.) HORSE. Rate of toll for — over bridges, 345 over turnpike and plank roads, 331 HORSE THIEVES. Associations — township — to apprehend, etc. (See also Criminals.) arrest and conviction of criminals by, 460 articles of incorpoi'ation of, 460 acknowledgment of, 460 filed with secretary of state, 460 must show what, 460 constitution and by-laws of, 460 incorporators of — number and qualifications of, 460 members of — assessments upon, 460 name of, articles must give, 460 powers and objects of, 460 ai'ticles must give, 460 seal, power to make and use, 460 township where located, articles must give, 460 HOSPITALS. City, superintendent of, duty as to bodies of deceased inmates, 481, 482 HOSPITAL COMP AMIES. (See Sanitariums.) HOTEL. Company to construct and maintain buildings for. (See Building Company.) HOT WATER COMPANIES. Mortgages of, record of, 151 HUMANE SOCIETIES. (See Cruelty to Animals, etc.) County, — agents of — appointment of, by society, 465 approval of, by mayor or probate judge when, 466 record of, 466 fees of, for making arrests, etc., 468 powers of, 465 to arrest persons violating laws as to cruelty, etc., 465 about to violate laws, 467, 468 to interfere to prevent cruelty, 468 articles of incorporation. (See "Incorporation" below.) attorney, society or agent may employ, when, 466 fees of, paid from county treasury, etc., 466 branches of '' Ohio Humane Society," — societies may become by resolution, 465 copy of resolution sent to secretary of state, 465 by-laws, regulations, etc., societies may make, 465 children, — homes for, general agent to pixjvide when, 469 approval of probate court as to, 469 officers or agents may take possession of, when, 469 order of probate court, as to custody and control of, 469 application for; notice of, 469 general agent of society appointed guardian under, 469 directors of — election and number of, 465 fees paid to officers, etc., by — charged as costs, 468 reimbursed to society by person convicted, 468 incorporators of, number, 465 incorporation of, accomplished how, 465 meeting for, record of, — certified copy of. — evidence of corporate existence. 465 filed with secretary of state, 465 must shoAV what, 465 members of — may interfere to prevent ci'uelty, 469 may require agents, police, etc., to arrest, when, 468 to take possession of animals, etc., when, 469 name of, record of meeting to incorporate must give, 465 objects, etc., of, 464, 465 officers, etc., of — election of, 465 may interfere to prevent cruelty, 468 782 INDEX. (References are to pages.) HUMANE SOCIETIES — Continued. Ohio State Society, — agents of — appointment of, 464, 465 approval of, by mayor or probate judge when, 465 record of, 465 general, to prosecute work of society, 465 power of, to arrest violators of laws, 465 in counties whei-e there is no county association, 464, 485 powers of, 464, 465 branches of, — establishment of, society prescribes rules, etc., for, 465 humane societies may become by resolution, 465 copy of resolution sent to secretary of state, 465 number of members necessary, 465 by-laws and regulations of, 464 gifts, devises, and bequests to, managed, etc., by trustees, 464 objects and powers of, 464 officers of, society elects, 464 property of — may acquire by purchase or gift, 464 trustees to manage, etc., number and powers, 464 HYDRAULIC COMPANIES. Appropriation of property. (See Appropriation.) for abutments, fixtures, etc., 354 aqueducts, canals, culverts, raceways, etc., 354 Boads, notes, etc., of — amount of: limitation on, 354 company may issue, 354 consent of stockholders necessary, 354 interest on, 354 purposes for which authorized, 354 for completing, extending, repairing, etc., 354 secured by mortgage on real estate, 354 Consolidation of, — agreement for — certified copy of, filed with secretary of state, 355 stockholders must ratify, 355 effect of, 355 evidence of, what is, 355 meetings for, 355 notice of, 355 certificate as to, on records, 355 proceedings at, 355 certified copy of, filed with secretary of state, 355 vote necessary at, 355 what companies may unite, 355 Forfeiture of corporate franchises for non-user, certain companies relieved from, 354 Powers of, 354 Property of, sale of, — on execution, 355, 343 appraisement of, 355, 343 copy of, with confirmation and conveyance filed as articles of incorp'n, 355, 343 corporate franchises, etc., included, 355, 343 provisions of ch. 5 § 3472 et seq. apply to, 355 under foreclosure of moitgage, — appraisers for; appointment, etc., 355, 335 provisions of ch. 5 § 3472 et seq. apply to, 355 sale under, may be in parcels, when, 355, 335 passes corporate franchise, etc., 355, 335 same as in case of real estate, 355, 335 Water, not to be drawn off, when; penalty, 355 INCLINED PLANE RAILWAY COMPANY. Consolidation of — authorized with electric and street railway companies, 53 laws as to railroads apply to, 53 Crossings at streets or higliways — must be above or below grade, 308 must not obstruct use of street, 308 Powers of, 308 to carry freight and passengers, 308 construct, maintain, etc., depots, offices, etc.. 308 establish, maintain, etc., park, pleasure grounds, etc., 308 INDEX. 783 (References are to pages.) INCORPORATION. (See under respective companies.) Accomplished when, 102 Articles of. (See Articles of Incoepoeation.) Charter or certificate of — foreign corporations under § 148d must file sworn copy of, 12 mandamus does not lie to compel issuance of, when, 101 under general laws. (See Aeticles of Incoepoeation.) I under special laws — amendment of — directors may accept when, 93 stockholders rights as to, 93 courts will not take judicial notice of, 92 not accepted or acted upon are repealed, 92 Evidence of, prima facie, 100, 101 Illegality or irregularity in, no defense to enforcement of stock subscription, 142 Must be under general laws, 2 Preliminary organization for, does not exist after, 104 INCORPORATORS. (See Peomotees. See also under respective companies.) Act as inspectors at first election of directors, 120 Agreements of, as to formation of corporations, 96, 98 Appoint time and place of first meeting of directors, 120 -nSecome body corporate when, 103 Books of subscription to capital stock opened by, 115 By-laws making control of perpetual cannot be made, 124 Certificate of subscriptions to stock made by, 118 Elect first trustees of companies not for profit, 113 Liability of, for deficiency in payments on subscription, 118, 119 amount of: enforced how, 118, 119 in action to enforce stockholders' liability, 119, 160 Meeting for organization called by, 118 form for record of, in books, 675 Number of, necessary, 96, 97 Qualifications of; citizenship, etc, 96 Secret intentions of, effect of, 98 INDEBTEDNESS. (See Cobpobate Debts.) INDICTMENT. Against corporations — for maintaining certain nuisances, 637 pleas to, what and by whom, 639 summons in, service and return of, 638, 639 Prosecutions are by, when, — for injuring telegraph lines, etc., 319 trespassing upon, unlawfully carrying away fruits, etc., injuring fences, build- ings, etc., of fair grounds, pleasure grounds, nurseries, orchards, etc., 463 for interference with electric wires, poles, machinery, etc., 322, 323 in what courts, 322, 323 when involving imprisonment, in ease of agents, employees, officers, etc., of railroad and telegraph companies, 30 INDUSTRIAL ASSOCIATIONS. Fairs of, constables to keep peace at, 460 INDUSTRIAL TRAINING SCHOOLS. (See Libeaby, Lecture, etc.. Companies.) INFANTS. Liability of, as stockholders, 153 INFIRMARY — COUNTY OR CITY. Duty of superintendent, etc., of, as to bodies of deceased inmates, 481, 482 INJUNCTION. Ancillary to quo warranto, stockholders of bank may have when, 634 Bond for, approved by probate court in case of lien upon canals, roads, railroads, etc., 89 Dissolution of — in case of directors of corporations, 134 in case of mechanics' lien upon canals, roads, railroads, etc., 89 Lies or not, when, — ^ generally, 135 against breach of trust by religious society, etc., 107 change of route or termini of railroad. 180 construction of street railway without necessary consents, 299 cutting prices, 134 diversion of funds pledged for interest on bonds, etc., 200 election and induction of directors, 124 784 INDEX. (References are to pages.) INJUNCTION — Continued. forfeiture of stock for unpaid installment, 138 fraudulent disposition of funds from stock subscriptions, 141 fraudulent or illegal acts of directors, 134 misuse of proceeds of bonds, 197 occupation of lands by railroad, 185 operation of canals, roads, railroads, etc., against which mechanics' lien is filed, 89 payment of dividends on doubtful stock, 170 revocation of license of insurance company to do business, 34 sale of portions of mortgaged railroad property on execution, 199 use, etc., of streets, etc., by railroad, 189 by property holders after municipal grant, 191 to compel gas company to furnish gas at fixed price, 40, 351 inspection of books, by stockholder, 146 restoration of streets, by property holders against street railroad, 191 to membership in assessment life insurance company, 384 to enforce provisions as to bridges, viaducts, etc., over railroad tracks, 235 INJURIES OR DEATH TO PERSONS. (See Insubance Co.'s — Accident : Instoancb Companies — Life. ) Fatal, examinations as to, by commissioner of railroads, 29 report of by railroad companies to commissioner, 29 To railroad employees, etc. (See Raileoads.) To intoxicated employees of railroad, 249 INLAND NAVIGATION INSURANCE. (See Insurance Oo.'s — Maeine.) INSANE ASYLUMS. Duty of superintendent, etc., of, as to bodies of deceased inmates, 481, 482 INSOLVENT CORPORATIONS. Attachment against — lien of, upon property levied upon, 168 wrongful preference no ground for, 168 Company is when, 168 Distribution of assets of, in action to enforce liability of directors, oflicers, etc., 159 Duty of directors of, 132 Enforcement of liability of directors, officers, stockholders, etc., of. 159 Preferences by — agreement to execute mortgage is not, when, 167 coynovit note is not, when, 167 directors cannot secure, 168 no ground for attachment, 168 Ohio rule as to, U. S. courts will follow. 168 remedy of creditors, 168 validity of, 167, 168 INSOLVENT DEBT9RS. (See Assignments foe Benefit of Ceeditoes.) INSPECTION. Books, records, etc., are subject to by stockholders, 15 in case of foreign corporations, 15 railroad companies, 211 List of stockholders, names, residences, shares, etc., of banks, etc., is subject to, of tax officers, 64 Of automatic couplers, air brakes, etci. (See Railroads.) Of gas, meters, etc. (See Gas; Gas Metees. ) INSPECTORS. Of automatic couplers, air brakes, etc. (See Raileoads.) Of elections. (See Dibectoes.) Of building and loan association. (See Building and Loan Association.) , INSURANCE. Business of — may be confined to corporationi^, 364, 370 unlawful except under provisions of laws, 37 Laws as to — apply to companies and associations, incorporated or not, 37 apply to companies organized under U. S. laws, 37 do not apply to insuring one's own property in unautliorized company, 37 INSURANCE COMPANIES. (See respective titles following; also Salvage Companies.) Acceptance of revised statutes by companies created prior to 1851 — compliance with §§ 3654, 3655 or certain police regulations does not constitute, 92, 93 issuing policies authorized by general laws but not by charter constitutes, 93 Actions against, brought where, 579 in case of foreign companies, 580, 581 Agencies of foreign, must make return of business, 57 INDEX. 785 (References are to pages.) INSURANCE COMPANIES— Continued. Agents of — certain acts of, unlawful, after revocation of authority to do business, 34 of foreign companies, — appointment of, 36 authorization to do business, 36 may appoint other agents when, 36 organized under U. S. laws are subject to Ohio laws, 37 penalty for acting as, when taxes, etc., are unpaid, 83 summons served upon when, 583 in actions before justice of peace, 624 unlawful to act as, when taxes are impaid, 83 Annual statements, reports, etc., of. (See "Reports," below.) Authority to do business. (See "License to do business'' below.) Business for, or with, unlawful to do, when, 83 Capital stock of — assessments on, on account of impairment, 33 effect of transfers during investigation as to, 33 must be paid to entitle to dividend, 34, 169 procedure in case of default, 33 superintendent of insurance can not hold, 31 Certificate of compliance with laws — must contain what, 36 publication and record of, 36 Charter of, fees for filing copies of, 35 Commissions, deduction of, from receipts in tax returns of foreign companies, 57 Coupons to securities deposited with state, delivery of, 35 Debts of — liabilities of — statement of condition must show, 36 Deed of settlement, fees for filing copy of, 35 Directors or trustees of. (See "Mutual Companies" below.) Discontinuance of business, 37 delivery of securities upon, 37 examination of books and records, 37 notice as to, 37 Dissolution of, because of impairment of capital, 33 Examinations of, by superintendent of insurance, 32, 33, 59 companies under special charter subject to, 32 expenses of, 32, 59 in ease of foreign companies, 57 penalties for refusing to submit to, 59 publication of results, 32 Examiners of — appointment, duties, powers, 32 Fees to be paid by (see Fees), 35 Foreign. (See also Foreign Cobporations.) agents of. ( See " agents " above. ) deposit with state treasurer before doing business, 12 right to do business tested by quo icarranto, 627 sections 148c, 148d do not apply to, 11, 12 privilege tax on, — amount of, etc., 57 I^aws as to, apply to — companies organized under U. S. laws, 37 individuals, partners, companies, etc., 37 License to do business — after impairment of capital or assets, 33 after revocation for unlawful re-insuring, pooling, etc., 58 fees for filing, 35 revocation of, — appeal from decision of Sup't of Ins. does not lie when, 32 causes for, — false statement of gross receipts of foreign companies, 57 re-insuring, pooling, etc., with unauthorized companies, 58 effect of upon agents, 34 in case of foreign companies, 34 notice of, to be published, 34 remedy to prevmt, 34, 58 Managing agent, who is, for service of summons, 583 Mutual companies — directors or trustees of, liability of, for lossps during deficiency of assets, 33 fees for filing articles, 9 loss on policy of, is not debt rendering trustees liable, 165 unsound condition of, what constitutes, etc., 33 Negotiable paper, power to purchase, 108 Penalties for violation of insviranee laws, 37 agents of companies under U. S. laws subject to, 37 companies under U. S. laws subject to, 37 786 INDEX. (References are to pages.) INSURANCE COMPANIES— Continued. Policies of — issuing; requirements aa to, 58 limitations in, as to time of suit does not apply to suit to enforce stockholders' liability, 161 must be placed through legally authorized agent, 58 Privilege tax on foreign companies, 57 Railroad companies not to transact business with or for, when, 83 Reports of, etc. — as to condition (annual statements) — blank forms for, superintendent of insurance furnishes, 35 false statements in, of foreign companies, 57 fees for filing, 35 publication and record, 36 requirements as to, 36 exemptions from provisions of " Willis Law," 20 for taxations, 56 must show gross premiums of foreign companies, 57 Retaliatory provisions, 35 as to taxation, 57 Section 3235 does not apply to, 94 Securities required by law — coupons of, delivery of, how, 31 delivery of, upon discontinuance of business, 36 fees for making and forwarding checks, etc., on, 31 to be deposited where, 35 withdrawn how, 35 Service of process upon, 583, 624 in case of foreign companies, 583 Unauthorized companies, transacting business with, 58 Unsound — revocation of authority to do business, 34 what constitutes, 33 INSURANCE COMPANIES — ACCIDENT AND HEALTH. (See Insukaxce Co. 's — Life: Insurance Co.'s — Other than Life : Insurance Co.'s — Title Guaranty.) Assessment companies, — bond of, to secure assured, 390, 391 amount, conditions, etc., of, 391 approved by superintendent of insurance, 391 filed with superintendent of insurance, 391 purely accident companies having reserve fund need not give, 391 by-laws of, may provide what, 390 expenses of — annual payments or special assessments to meet, 390 included with loss and reserve fund when, 390 notice of percentage for each, 390 payment of, by-laws provide -as to, 390 incorporators of, number, and citizenship of, 390 loss and reserve funds — must be kept separate from expense fund, 390 surplus in, certificate holders may be paid, when, 390 organization of, 390 penalties for violating provisions as to, 391 reserve fund of purely accident companies — amount of, 391 held for benefit of certificate holders, 391 investment of, 391 may be loaned on insurance certificates when, 391, 368 section 3598 applies to, 391 securities of, deposited with superintendent of insurance, 391 re-delivery to company when, 391 treasurer of purely accident companies, — bond of — amount, conditions of, 391 approved, etc., by superintendent of insurance, 391 filed with superintendent of insurance, 391 By-laws of, may provide as to terras, conditions, etc., of policies, 431 Companies — "life" may insure against, etc., when, 366, 367, 381 "other than life" may insure against to employees, persons, or property, 412 Consolidation of — re-insuring risks, etc., — penalty for violating provisions as to, 368 petition for — commission to hear and determine, 367 hearings upon ; time, place, etc., 367 must show what, 367 ' notice of pendency of, 367 INDEX. 78T (References are to pages.) INSURANCE COMPANIES — ACCIDENT AND HEALTH — Continued, order of commission, 367, 368 presented to superintendent of insurance, 367 stockholders or policy holders may be heard, 367 re-insuring risks permitted without petition to what extent, 367 Deposit for doing business in other states, 431 action to collect claims payable from 38 certificate of, — filed with superintendent of insurance, 431 exchange, withdrawal, etc., of securities, 431 certificate as to made to superintendent of insurance, 431 state treasurer to receive, etc., 431 receipt for, issuance and contents of, 431 Employers insurance of employees, 413, 414 companies "other than life" may do business of, 413 foreign companies making, 414 deposit with superintendent of insurance, requirements of, 414 exchange of securities, 414 state laws apply to, how far, 414 Foreign companies — certificate of authority to do business, issued when, 392 renewal of annually, 392 decisions of superintendent of insurance subject to review, 392 what must be filed before, 392 agent or attorney for service of process upon, appointment of, 392 deposits by, requirements as to, 392 Policies, conditions of — by-laws may provide what as to, 431 immediate notice of accident, definition of, 414 ignorance of accident; of existence of policy, etc., 414 knowledge of agent, 414 waiver of, by agent, 414 Powers of — may not do other classes of insurance, 413 to execute bonds and undertakings, 412 to insure — against accidents to — persons, property, 412, 431 against loss, etc., from sickness, 431 employers against accident to employees, 413 fidelity of persons, 412 performance of contracts, etc., 412 validity of titles, 412 Ee-insurance of risks permitted when, 441 INSUTIANCE COMPANIES — BOILER. (See Insurance Co.'s — Other Than Life.) Re-insurance of risks permitted when, 441 INSURANCE COMPANIES — BURGLARY, ROBBERY, ETC. (See Insurance Co.'s — Other than Life.) ' Agents of, — not to act — while re-insurance reserve is impaired, 445 without license of superintendent of insurance, 445 license must show what, 445 Assets of — premium contracts constitute valid part of, 445 Attorney to act for foreign company — name of, license of agent must give, 445 superintendent of insurance to be appointed as, 446 certificate of appointment of, 446 Banks, bankers, etc., may be insured by, 445 City treasurers may be insured by, 445 County treasurers may be insured by, 445 License of, to do business, authorized, 444, 445 conditions precedent to, 445 renewal of, superintendent of insurance grants when, 446 revocation of, for violating provisions of law, 446 statement for — must be renewed annually, 446 requirements as to, 445 what must be filed with, 445 who must make, 445 what companies must have, 444, 445 Loan companies may be insured by, 445 Membership fees — liability of policy holder for, 446 may be paid in cash or evidenced by contract, 446 Organization of, must be on mutual plan, 444 Policies of, number of — necessary before commencing business, 445 Policy holders in, liability of; limitations, 446 788 INDEX. (References are to pages.) INSURANCE COMPANIES — BURGLARY, ROBBERY, ETC.— Continued. Powers of, 445 cannot insure whom, 445 may insure whom, 445 Premiums — amount of in cash and contracts before commencing business, 445 collection and payment of may be in cash or by contracts, 445 contracts for, valid assets, 445 amount required to be paid on, 445 President of, duties of, as to — annual reports, 446, 445 license statements, 445 Re-insurance reserve — amount of, 445 companies must set aside, 445 impairment of, agents not to act during, 445 Reports of — copy of last to accompany license statement of foreign companies, 445 exemption from provisions of " Willis Law," 20 requirements as to, 446, 445 who must make, 446, 445 Secretary, duties of, as to — annual reports, 446, 445 license statement, 445 Service of process on foreign companies, 446 attorney for, superintendent of insurance appointed as, 446 what is sufficient service upon, 446 Trust companies may be insured by, 445 Vice president of, duties of, as to — annual reports, 446, 445 license statement, 445 INSURANCE COMPANIES —CREDIT GUARANTY. (Slee Insurance Co.'s — Othee THAN Life.) Articles of incorporation of, 441, 364, 365 acknowledgment of, 441 attorney general examines and certifies, 441, 365 certified copy of, secretary of state to furnish, 441, 365 filed with secretary of stete, 441, 364 must be signed by incorporators, 441, 364 must show what, 441, 364 record of, 441, 364 sections 3588, 3589, 3590, apply to, 441 Assets or accumulations -of — invested how; in what securities, 441, 366, 365 Business of, character of, etc. — articles must give, 441, 364 what permitted, 441 Capital stock — amount! of — minimum permitted, articles must show, 441, 365 paid in, all must be before commencing business, 441 impairment of, business not to be conducted during, 442 increase of — certificate of, filed with secretary of state, 441, 366 invested same as original capital, 441, 366 section 3592 applies to, 441 stockholders must authorize, 441, 366 investment of — all before commencing business, 441 change of, company may make, 441, 366 in what securities, 441, 366 subscriptions to, books for — opening of ; notice of, etc., 441, 365 must be kept open how long, 441, 365 Deposit with superintendent of insurance, 441 actions to collect claims payable from, 38 amount of, 441, 366 before commencing business, 441, 366 certificate of, 441 change of securities, 441, 366 consists of what, 441, 366 impairment of, business not to be conducted during, 442 in case of foreign companies. (See " Poreir/v Companies," below.) interest and dividends on, company collects when, 441, 366 sections 3593, 3594, apply to, 441 title to, in superintendent of insurance, in trust, 441, 366 assignment of mortgages must be recorded, 441, 366 fees for, company to pay, 441, 366 Directors — election of, articles give manner and time, 441, 365 increase of, stockholders or members may make, 441, 364 INDEX. _ 789 (References are to pages.) mSUEANCE COMPANIES— CREDIT GUARANTY— Continued, majority of, must be citizens of state, 441, 365 must be stockholders or members, 441, 364 number of, 441, 364, 365 articles must give, 441, 364 vacancies, manner of filling, articles must give, 441, 365 Examinations of — -provisions as to life insurance companies apply, 444 superintendent of insurance may make, 444 Foreign companies — deposit of, with superintendent of insurance, 444 action to collect claims payable from, 38 amount of^ 444 may be with officer of state of organization when, 444 certificate of, furnished superintendent of insurance, 444 invested in what, 444 value of securities determined how^ 444 license of, to do business necessary, 443 conditions precedent to, 443, 444 statement for, — filed with superintendent of insurance, 443 requirements as to, 444, 442, 443 who must make, 444 must file with superintendent of insurance, — certificate as to right of Ohio companies to do business in state of organiza- tion, 443 copy of applications, by-laws, policies, etc., 444 charter, certified, 443 resolution appointing attorney for service of process upon, 444 Forfeiture of right to do business, — attorney general to institute proceedings when, 444 refusal to make reports subjects to, 444 superintendent of insurance enforces by quo warranto, 444 Incorporators, — articles must be signed by, 441, 364 duty of, as to opening books of subscription to capital stock, 441, 365 number of, 441 Investments. ( See " Capital stock," " Deposits," above. ) License to do business, — in case of foreign companies. ( See " Foreign eompanies," above. ) superintendent of insurance issues when, 442 Name of — articles must give, 441, 364 limitations as to, 441, 364 secretary of state to approve, 441, 365 superintendent of insurance, duties and powers of, as to, 442 Objects, etc., of, 414 Ofiicers — election of, articles to give manner and time of, 441, 365 majority must be citizens of state, 441, 365 vacancies in, articles to give manner of filling, 441, 365 Organization of — may be completed when, 441, 365 notice of, 441, 365 sections 3588, 3589, 3590, apply to, 441 Place of business of, articles must give, 441, 364 Powers of, 442 manner of exercise of, articles to give, 441, 364 none others permitted, 442 to guarantee wages, 442 insure payment of debts, 442 take assignments of claims and collect same, 442 Reports of, to superintendent of insurance, — companies, foreign and domestic, must make, 442 exemption from provisions of " Willis Law," 20 requirements as to, 442, 443 penalty for refusing to make, 444 who must make, 442 INSURANCE COMPANIES — FIDELITY GUARANTY. (See also Insurance Co.'s — Accident : Insurance Co.'s — Other than Life : Insurance Co.'s — Title Guaranty : Safe Deposit and Trust Co.'s. ) Bonds, official, etc., required by law, executed by, 414, 415 approval of, etc., 415 cost of, amount and allowance of, 415 superintendent of insurance cannot give, 415 Corporate powers not to be denied when, 413 790 ^ INDEX. (References are to pages.) INSURANCE COMPANIES— FIDELITY GUARANTY— Continued. Deposit with superintendent of insurance before commencing business, 413 action to collect claims payable from, 38 amount of; valuation of, 413 exchange of securities, 413 held for what purpose, 413 in case of foreign companies, 413 may be with oiScers of another state when, 413 certificate as to, necessary, 413 release of certain securities, 413 income from, 413 in what securities, 413, 411 object and purpose of, 413 Re-inaurance of risks permitted when, 441 INSURANCE COMPANIES — FIRE. (See Instjrance Co.'s; Insubance Co.'s — Otheb THAN Life: Salvage Co.'s.) Advertisements of — penalty for violating provisions as to, 429 statement of assets in ; what not to be included in, 429 statement of liabilities must accompany, 429 Assessments for expenses of salvage companies, 437 limitations, etc., on, 437 Charter of, forfeiture of, unlawful dividends subjects to, 420 Consolidation of, — articles of incorporation of new company, company chooses which to act under, 431 capital stock upon — apportioned how, 432 limitation upon amount of, 432 surrender of old certificates, 432 certificate of, — filed with secretary of state, 432 ' superintendent of insurance, 431 miist show what, 431, 432 directors upon, 432 effect of, 431 joint stock companies may make when, 431 with what companies, 431 name of new company, 431 certificate of consolidation must show, 432 new company chooses, 431 powers of new company, 431 stockholders, rights of dissenting, 432 vote necessary for, 431 Dividends — declared from surplus profits only, 420 scrip, mutual or participating companies may declare when, 420 amount of, 420 declared only from profits, 420 Examination of risks required, 415 does not relate to title or incumbrances, 417 relates to physical condition of premises, 417 Foreign companies, when foreign to U. S. — assets and investments deemed capital stock for what purposes, 428 must be held by trustees when, 428 appointment, po-.vers and qualifications of trustees, 428 capital stock, amount of Tetermined how, 428 liabilities of, statement of, must accompany advertisements of assets, 429 re- insurance reserve to be included, 429 License to do business, revocation of.. — violating provisions as to cancellation of policies, ground for, 431 Losses, — extent of, jury decides as to, 417 total — eflfeet of concurrent insurance upon, 417 what constitutes, 417 Mutual companies. (See Insurance Co.'s — Other than Life.) by-laws of, must fix uniform rule of liability for payment of losses and expenses, 410 charter of, forfeiture of, causes of. — refusal to make reports to superintendent of insurance, 425 to permit examination of books, papers, etc., 425 commencing business — amount of insurance ; number and amount of risks before, 409 amount of premiums paid before, 409, 410 dividends, scrip, declared when, 420 INDEX. 791 (References are to pages,) INSURANCE COMPANIES— FIRE— Continued, amount ofj 420 only from profits, 420 policy holder entitled to when, 420 examinations of, by court of common pleas, — application for^ 432 examiners of, — appointment of, 432 fees of, amount of; company pays, 432 may administer oaths, examine agents, officers, etc., 432 require production of books, papers, etc., 432 refusal to appear and testify is contempt, 432 report of — copy of sent to superintendent of insurance, 432 made when, 432 had how often, 432 existing companies, what law controls, 425 foreign companies, — assets — same amount and description as domestic companies, 426 invested according to law of organization, 426 what is sufficient capital, 426 contingent liability of, same as domestic companies. 426 premium notes, same amount of, as domestic companies, 426 lien of, for contingent liability or premium notes, 429 certificate as to, recorded with county recorder, 429 fees for, 429 members of. (See "Subscribers," below.) assessments against — evidence of, what is : parol proof, 423 notice of, — proven how, 423 receipt of not necessary, 423 waiver of formalities as to, 423 statement of president and secretary under oath as to, effect of as evi- dence, 423 liability of, for losses and expenses — ceases when, 410 limitations on, 410, 423 uniform rule for, to be fixed, 410 policies of, — ■ cancellation of, at request of insured, 430 must fix liability of insured, 410 rates for, 430 uniform rule for payment of losses and expenses, 410 premiums of — amount before incorporation, 410 companies may collect what in advance, 410 insured liable to what, 410 premium notes — indorsement of non-fiegotiability required, 430 surrender of, upon cancellation of policy, 430 profits, — divided among assu d when, 420 policy holder entitled to share when, 420 reserve fund accumula'^ed from, 420 what are, 420 reports to superintendent of insurance. (See Insukance Companies.) penalty for refusing to make, 425 reserve fund — amount, sources, objects of, etc., 420 ly-laws may provide for, 420 \ none required by section 276 except premium notes, 33 policyholder entitled to scrip dividend from when, 420 premium notes constitutes, 33 subscribers to — certificate as to responsibility of, when, 410 liability of, limitations as to, 410 subscriptions to — amount and number before incorporation, 409 terms of, 410 Mutual protective associations. (See Insurance Co.'s — Other than Life.) Policies of. ( See also " Mutual companies," above. ) cancellation of — at request of insured — penalty for violating provisions as to, 431 power of agent as to, 418 provisions for, must be inserted in policy, 430 rates for, in case of cash policieSj 430 in ease of premiums paid in installments, 430 return of unearned premiums, premium notes, etc., 430 when paid in installments, 430 ra^ INDEX. (References are to Jiages.) INSURANCE COMPANIES — FIRE — Continued. by the company, terms of may be fixed by contract, 430 duty to cancel does not create a debt as to taxation, 430 conditions in, as to, — appraisers to de ide loss, 416 arbitration, 416 estimating loss at actual value; cost of replacing, etc., 416 incumbrance — judgment on cognovit note is not a, 417 provisions as to examinations do not relate to, 417 non-occupancy, 416 what constitutes occupancy, 417 re-building, 416 issuing, requirements as to, 58 liability of company in case of loss, 415, 416 effect of — arbitration or appraisal upon, 417, 418 claim for less amount, 417 condition of premises reasonably apparent, 416 fraud or increased risk on, 416 statements of value of property upon, 416, 417 waiver by agreement, effect of, 416 when two or more policies on same risk, 416, 417 must be placed through legally authorized agent, 58 Powers of, — may not do other classes of insurance, 413 to insure against — explosions from gas, dynamite, gunpowder, etc., 413 fire, 412 lightning, 412, 413 marine insurance, 412 tornadoes, 412, 413 transit insurance, 412 Re-insurance reserve — amount of, 429 included in liabilities, when, 429 Reports of. ( See • Insurance Companies.) to salvage companies, 437, 438 Risks of, — examination and description of, 415, 416 does not relate to title or incumbrances, 417 relates to physical condition of premises, 417 increase in — additional insurance is, 417 question of, for jury, 417 insurable value to be fixed, 416 liability of company on. (See "Policies," above.) re-insurance of^ pooling, etc. — permitted when, 441 approval of superintendent of insurance as to, 441 statement as to, requirements as to, 58 with authorized companies, 58 "structure," boiler and engine may constitute, 417 4-S6 cellar and foundation wall not to be considered part of, 436 Stockholders of — liability of, for receiving unlawful dividends, 420 Surplus profits — estimated how, 420 Unearned premiums, — are not debts within section 2730 as to taxation, 420 consists of what, 420 INSURANCE CO.'S — FIREMEN'S RELIEF. (See Firemen's Relief Associations.) INSURANCE COMPANIES — LIFE. Accidents, insurance against, made by, when — in case of assessment (mutual protective) companies, 381 domestic and foreign companies, 367 Actions against, for losses on risks. (See also "Assessment companies," below.) statute of limitations as to, 369 limitations regarding in policy, 369 who may bring, 369 Actions by, against members, officers, policyholders, stockholders, etc., 369 Actuary of, makes report to superintendent of insurance when, 369 in case of loreign companies, 372, 369 when foreign to U. S., 373, 369 Agents, officers, etc., of, — penalties for discrimination between insurants, 394 in case of colored persons, 394 American experience tables, use of. (See "Combined experience," below.) to establish — rate of mortality, valuations, etc.. 34 INDEX. T93 (References are to pages.) INSUHANCE COMPANtES — LIFE — Continued. value of policies — for loans, 368 for re-insurance amount in report to superintendent of insurance, 370 in case of foreign companies, 372, 370 when foreign to U. S., 373, 370 in case of license statement of foreign companies, 372, 370 when foreign to U. S., 373, 370 I in determining reserve fund before declaring dividends, 369 Annuities, companies, domestic or foreign, may grant, purchase, etc., 367 in case of mutual or stock companies, 364 Applications for insurance, — admissions of husband, effect of when wife is beneficiary, 379 agent soliciting, is agent of company, 377 assured not bound by, when filled up by agent, 376 construed favorably to applicant, 378 copies of — foreign assessment company organized in U. S-. must file with Sup't of Ins., 387 must be furnished policyholder when, 376, 377 during lifetime of assured, 376 effect of failure to furnish^ 376 errors, omissions, misstatements in, — burden of proof as to, 378 company cannot defend on ground of, when, 378 applies to foreign policies, how far, 378 cannot be evaded by contract, 378 false answers in, effect of, 377 collusion of agent and assured no defense, 377 knowledge of agent of company as to, 377 what must be shown to bar recovery, 377 forged by agent, no defense to recovery, 377 " good health," " sound health," meaning of, 377 in cipher, are void when, 377 must be in ordinary written or printed language, 377 refusal of, of colored persons, 393, 394 certificate stating grounds of, required, 394 truth of, company cannot deny when, 376 Assessment or mutual protective companies, — actions against, — brought where, 389 certain mutual benefit societies excepted when, 393 in ease of foreign companies, 389 service in; sections 5032 to 5053 apply to, 389 certain mutual benefit societies excepted when, 393 in case of foreign companies, 388, 389 agents of — bond before collecting dues, assessments, etc., 392 penalties for unlawful issue of certificate, 390 assessments, — bond, agents and officers to give before collecting, 392 certain mutual benefit societies excepted when, 393 expenses can be included in, when, 390 assured, — age limit as to, 390 in case of foreign companies organized in U. S., 388 certain mutual benefit societies excepted when, 393 evidence as to, fled with superintendent of insurance, 388 not applicable to accident insvtrance, 390 in case of foreign companies organized in U. S., 388 consent and knowledge of, necessary: penalty, 390 fictitious persons as; penalty, 390 medical examination required, 389, 390 not applicable to accident insurance, 890 who to make, 390 sick or infirm persons as; penalty, 390 business of — companies guaranteeing fixed amounts must comply with laws as to mutual companies, 386, 387 domestic companies organizea on mutual plan cannot do, 382 foreign companies organized on mutual plan can do, 382 by-laws and constitution of — amendment or change of, 381 assent of members necessary, 381 meeting for: notice of: vote, etc., 381 794 INDEX. (References are to pages.) liNfSURANCE COMPANIES — LIFE — Continued. superintendent of insurance must approve, 381 may provide as to what, 381, 382 certain mutual benefit societies — are "not for profit," 95 excepted when, 393 certificate (policy) of insurance, — amount of: limitations on, 381 guaranty of fixed amount unauthorized when, 382, 386, 387 certain mutual benefit societies excepted when, 393 assignment to unauthorized persons invalid, when, 384 assured in. (See "Assured," above.) beneficiaries under — change of : rules of associations govern, 382 exceptions ps to, 383 reservation to beneficiary to make does not pass to his estate, 385 rules at time of change, not time of issue governs, 383 designation of improper: effect upon payment, 384 direction as to who shall become, what constitutes, 383 effect of marriage upon, 393 have no vested rights, 385 who may be, 381, 382 " dependent " one engaged to marry assured is not, 385 " legal hei-s " means whom, 384 members cannot change charter limitation as to, 384 mother, when, 385 required relationship, effect of termination of, 383 endowment, — guaranty of fixed amount not authorized, 382, 386, 387 certain mutual benefit societies excepted when, 393 funds arising from, not part of decedent's estate, 383 payment of — designation of improper beneficiary does not release from, 384 failure to make or make assessment; remedy; averments; measure of damages, 385 unlawful issue of; penalties, 390 physician or others aiding, 390 charter; forfeiture of. (See "Reports," below.) constitution. (See " By-laies," above.) death claims. ( See " Losses," below. ) defined — what constitutes, 364 examinations of — cost of ; paid how, 387 superintendent of insurance may make when, 387 certain mutual benefit societies excepted when, 393 exercise of franchises or powers contrary to law prevented by quo warranto, 387 certain mutual benefit societies excepted when, 393 expenses — included in death assessments when, 390 mortuary fund cannot be used for, 390 paid by fixed annual or special assessments. 390 foreign, organized in U. S. — actions against. ( See " Actions against," above. ) agents of — appointment by company, 388 certain mutual benefit societies excepted when, 393 must be licensed by superintendent of insurance, 388 fees for, 388 penalties for violating provisions of law as to, 389 attorney for service of process upon, appointment of, 388 business of — may be accident or life, 388 must be on assessment plan, 388 what constitutes, 389 mutual companies may do, on assessment plan, 380 by-laws — copy of, filed with superintendent of insurance, 387 must show what as to liability of members, 387 laws governing, sections 3630 to 36301, 3S8 certain mutual benefit societies excepted, 393 license to do business in state^ — certain mutual benefit societies excepted when. 393 fees for, 388 refusal of, duty of superintendent of insurance as to, 388 courts may review when, 388 renewed annually, 388 revoked when, 388 for failure to pay maximum amount of certificate, 388 INDEX. 795 (References are to pages.) INSURANCE COMPANIES — LIFE — Continued, notice of, 388 superintendent of insurance issues when, 388 what must be filed with superintendent of insurance before, 387, 388 oflRcers, etc., of, penalties for violating provisions of law as to, 389 powers of, 388, 389 reports to superintendent of insurance, 388 certain mutual benefit societies excepted when, 393 fees for filing, 388 in ease of certain mutual benefit societies, 393, 35 form of, superintendent of insurance prescribes, 388 must be made when and as of what date, 388 reserve fund, amount of, 387 certain mutual benefit societies excepted when, 393 retaliatory provisions as to, 388 certain mutual benefit societies excepted when, 393 service of process upon. (See "Actions against," above.) statement of condition for license, 387, 388 certain mutual benefit societies excepted from, when, 393 filed with superintendent of insurance, 387, 388 form of, superintendent of insurance prescribes, 387, 388 fees — for filing copy of charter, 388 for filing reports, 388 in case of certain mutual benefit societies, 393, 35 for license to do business, 388 funds of — distribution of, regulations govern, 382 held and used as property of members, 381 not'to be loaned to, or for benefit of officers, etc., 381 insurance — contract of, what constitutes, 383 laws governing — are not subject to laws for stock or mutual life insurance companies, 382 are subject to laws for corporations not for profit, 382 sections 3251, 3252, 3587 to 3629, do not apply to, 380, 381, 382 3628, 3629, as to rights of creditors, do not apply, 380, 381 3630a to 3630f, 3631, do not apply to certain mutual benefit societies when, 393 losses — death claims, — reports to superintendent of insurance must show what as to, 385 certain mutual benefit societies excepted when, 393 meetings of — by-laws provide as to time, place, manner, etc., 382 members of — expulsion of — damages for wrongful, 384 action for, is bar to action for restoration, 384 power of, is inherent, 384 committee, etc., may exercise when, 384 unlawful ; remedy for, 384 valid ; effect on insurance, 384 rights of, regulations govern, 382, 383 who constitute, 113, 114, 383 ofiicers, etc., of — bond to be given before collecting assessments, etc., 392 by-laws may provide as to — appointment, election, term, compensation, duties, 382 life tenure with power to appoint successor not authorized, 383 powers and purposes of, 381 granted by section 3630, 364 to insure on " mutual stock " plan, 364 reports of, to superintendent of insurance, 385 blanks for, superintendent of insurance furnishes, 385 in case of certain mutual benefit societies, 393 certain mutual benefit societies excepted when, 393 exemption from provisions of " Willis Law," 20 failure to make forfeits charter or franchise, 386 duty of attorney general as to, 386 superintendent of insurance to enforce, 386 fees for filing, 388 in case of certain mutual benefit societies, 393, 35 requirements as to, 365. 386 treasurer of — bond of — amount and conditions of, 392 approved by superintendent of insurance, 392 79U INDEX. (References are to pages.) INSURANCE COMPANIES — LIFE — Continued. certain mutual benefit societies excepted, 393 examined annually as to sufficiency, 392 filed with secretary of state, 392 renewed when required by superintendent of insurance, 392 receipts must be paid to, 392 certain mutual benefit societies excepted when, 393 trustees of — by-laws may provide as to — number, classification, election, etc., of, 381, 382 compensation of, 383 penalties against for unlawful issuance of certificate of insurance, 390 powers and duties of 383 cannot act individually, 384 term of office of, 381 what constitutes, 364, 389 Assets of, — examination as to, by superintendent of insurance, 32 invested how ; in what securities, etc., 368 companies may change, sell, re-invest, etc., 368 in case of foreign companies, etc., 375 Assured. (See also "Assessment companies," above.) consent of, to transfer, sale, etc., of policy, 381 Beneficiaries. ( See " Assessment companies," above ; " PoHcies," below.) Business, companies, domestic or foreign, may do what, 367 accident insurance (to persons) -yes, 367 banking business — no, 367 what is not bankiig business, 367 fire insurance — no, 367 health and disability — yes, 367 inland insurance — no, 367 life insurance — yes, 367 marine insurance — no, 367 on assessment plan, — mutual companies of this state cannot do, 382, 389 foreign companies may do, 382, 389 Capital stock of. (See "Mutual or stock companies," below.) Classification of, 364 " assessment companies," what are, 364 " mutual or stock companies," what are, 364 Colored persons. ( See " Discrimination," below. ) Combined experience or actuary's tables. See "American experience table," above.) use of in stipulated premium plan for computing,— limited payment policy reserve, 404 minimum premiums, 403 required reserve fund, 404 valuation of investment or limited policies, 404 Consolidation of, — penalty for violating provisions as to, 368 petition for — commission to hear and determine, 367, 368 hearings upon ; time, place, etc., 367 must show what, 367, 368 notice of pendency of, 367 order of commission under, 367, 368 presented to superintendent of insurance, 367 stockholders or policy holders may be heard, 367 Creditors of insured, — insurance exempt from claims of, when, — if for benefit of wife or children, 378 in case of foreign companies, 380 if taken by wife upon husband's life, 380 premiums paid in fraud of, rignts in proceeds of policy, 379, 381 in case of foreign companies, 380 what must be shown to establish, 380 Death claims, examination as to unpaid, by superintendent of insurance, 32 Debts, company may receive what in payment of, 368 Directors. (See " Mutual or stock companies," below.) duties of, as to reports, 369 in case of foreign companies, 372, 369 when foreign to U. S., 373, 369 Discontinuance of business, 36 delivery of securities deposited, upon, 36 examination of books and papers, 36 INDEX. 797 (References are to pages.) INSURANCE COMPANIES — LIFE — Continued, notice as to, 36 Discrimination between insurants forbidden, 394 in case of colored persons, 393, 394 certificate of reason of refusing applicati6n of, 394 penalty for violating provisions as to, 394 payable to common school funds, u94 Dividends, — discrimination between insurants as to, 394 paid only from surplus funds, 369 surplus determined how, 369 unpaid, valuation of, made how and when, 34 Examinations of, by superintendent of insurance, 32 expenses of, paid how, 32 rules governing, etc.; requirements of, 32, 34 Foreign companies. (See, also, "Assessment, etc., companies," above, "Stipulated pre- mium plan," below.) actions against, regarded as domestic when licensed to do business, 372 agents or attorneys of, — companies foreign to U. S. must appoint what, 373 appointment continued how long, 373 duplicate of letter appointing filed with superintendent of insurance, 373 license to do business must show name of, 374 failure of company to procure license, eflfect of. (See "License to do business") for service of process. ( See " Service of process," below. ) license of, necessary: superintendent of insurance grants, 370 certified copy of, recorded with county recorder, 370, 373, 374 in case of companies foreign to U. S., 374 must show what, 370, 374 renewal of, when, 373, 374 revocation of, for discrimination between insurants, 395 supplemental reports of companies foreign to U. S. verified by, 374 capital stock of, — amount of, same as home companies, 370 cash assets in lieu of, accepted of mutual companies, 370 must be fully paid in, 370 must be invested as required by laws of state where organized, 370 deposit with superintendent of insurance, 371 action to collect claims payable from, 38 amount of; consists of what, 371 in case of companies foreign to U. S., 373 companies may change securities, collect interest, etc., when, 375 in case of companies foreign to U. S., 373 for benefit of policy holders in U. S. in ease of companies foreign to U. S., 373 may be with officer of home state, when, 371 certificate as to, furnished superintendent of insurance, 372 value of securities determined how, 371 license to do business. (See, also, "Agents," above.) companies must have, 370 whether incorporated or not, 370 duration of, 371, 375 failure to procure, effect of, — agents, acts of, not invalidated by, 371, 374 duty of to procure, is personal, 374 not a defense to action on bond of, 371, 374 assessments, company or receiver cannot sue to recover, 370 assured may sue notwithstanding, 371 bond and mortgage, company may sue on, 371 policy not void because of, 370 premiums, payment of, not excused by, 370, 371 company or receiver cannot sue to recover, 370 grant of, is ministerial act, 371 superintendent of insurance makes, 370 discretion of, as to, 371 is not bar to quo warranto, 371 powers of state as to, 376 renewal of, when and to whom, 373 in ease of companies foreign to U. S., 374 in ease of revocation for removing case to U. S. courts, 375 revocation of — • causes for, 35 798 INDEX. (References are to pages.) INSURANCE COMPANIES — LIFE — Continued. company removing case to U. S. courts, etc., subject to, 375 validity of provisions as tOj 370 for discrimination between insurants, 39.5 injunction, not mandamus lies to prevent, 371 statement for — requirements as to, 37Si, 369 in ease of companies foreign to U. S., 373 reports of, to superintendent of insurance. (See ''Reports," below.) service of process upon, — when companies cease to do business in state, 375 appointment of agents for, 375 by mail, when, 372, 375 in case of companies foreign to U. S., 373, 372 may be on former agent, when, 3.75 when doing business by agents, 372 appointment of agent or attorney for, by companies foreign to U. S., 373 upon agent, consent in writing, 372 in case of companies foreign to U. S., 373, 372- Fraternal beneficiary associations. (See Fraternal Beneficiary Associations.) are not insurance companies, 396 Insurance ( indemnity ) , — husband may take for benefit of wife and children, 378 exempt from claim of creditors, when, 378, 379 in case of foreign companies, 3S0 Interest, rate of, for examinations, valuations, etc., 34 Investments. (See "Assets," above.) Laws as to, — apply to prior existing companies, 378 Liabilities, obligations, etc., of, — valuation of, made how and when, 34 not required when, in case of foreign companies, 34, 35 License to do business. (See InstjEance Companies.) in case of foreign companies. (See "Foreign companies," above.) revocation of, discrimination between insurants, cause for, 395 Loans of funds — contrary to statute are void, 308 substantial compliance with statute suificient, 368 upon bond and mortgage, 368 pledge of bonds or mortgages, 368 policies, 368 Medical certificates — in cipher, void when, 377 must be in ordinary written or printed language, 377 Mortality, rate of, established how, for examination, valuation, etc., 34 Mutual benefit societies. (See Mutual Benefit Societies: Religious Associations: " Assessment companies," above. ) Mutual protective companies. (See "Assessment, etc., companies," above.) Mutual or stock companies, — annuities, may grant, purchase, etc., 364 articles of incorporation of, 364, 365 attorney general must examine and certify, 365 certified copy of, secretary of state to furnish, 365 filed with secretary of state, 364 must be signed by incorporators, 364 must show what, 364 record of, 365 business of, — commencing of, certified copies of papers to be recorded with county recorder before, 366 use of, as evidence in actions, 366 kind or character of — articles must give, 364 what permitted: what prohibited, 306, 367 capital stock of, — amount of, — articles must give, 365 minimum permitted, 365 paid in, all before commencing business, 365 assessments on, on account of impairment, 33 increase of,- — certificate of, filed with secretary of state, 366 invested same as original capital. 366 stockholders must autliorize, 306 investment of — all before commencing business, 365 change of, company can make, 366 INDEX. 799 (References are to pages.) INSURANCE COMPANIES — LIFE — Continued, in what, 365 note and mortgage given for stock considered as, 365 subscription to, books for, opening of, notice of, etc., 365 must be kept open how long, 365 definition, what constitutes, 364 deposit with superintendent of insurance, 366 accommodation securities, effect of, 366 action to collect claims payable from, 38 amount of; consists of what, 366 before commencing business, 366 change of securities, etc., 366 certificate of; record, etc., -of, 366 companies must make, 364 fee for recording assigmnent of mortgage, company to pay, 366 interest and dividends on, company collects when, 366 is for benefit of policy holders, 366 title of, in superintendent of insurance in trust, 366 assignment of mortgage must be recorded, 366 directors, trustees, officers. (See "Directors," above.) election of, articles to give 'manner and time of, 365 number of, — articles must give, 364 increase of, stockholders or members may make, 364 qualifications of, — majority citizens of state, 365 must be stockholders or members, 364 vacancies, articles to give manner of filling, 365 incorporators of, — duties of, as to opening books of subscription, 365 number of, 364 name of, — articles must give, 364 limitations as to, 364 secretary of state to approve, 365 does not apply to foreign companies, 365 effect as to company claiming prior right, 365 superintendent of insurance, duties and powers of, as to, 366 officers of. ( See " Directors," above. ) organization of — completed when, 365 notice of, 365 place of business, articles to give, 364 powers of — ^ granted by section 3587, 364 manner of exercise, articles to give, 364 to insure on " assessment plan," 364 purposes for which formed, 364 what constitutes, 364 Policies of. (See "Assessment companies" above, "Stipulated premium plan" below.) actions to enforce, defenses to — as to application. (See "Applications" above.) suicide as defense, 378 amount payable under, discrimination between insurants as to, 394 in case of colored persons, 393 penalty for making, 371, 372 applications for. (See "Applications," above.) assignment of, — married women may take, 381 may sell, assign or surrender, 381 assured must consent to, 381 beneficiaries under. (See "Assessment companies," above.) death of, who entitled, — in ease of policies payable to wife, 381 policy reverts to assured, 380 divorce, effect of, when wife is, 379 interest of, in premiums upon cancellation, 377 not necessary parties to cancellation by assured, when, 377 who may be, — children may be, of father, 378 in case of death of wife of assured, 381 wife may be, of husband, 378 wife as, — effect of — admissions of husband, 379 * divorce, 379 husband cannot modify right* of, 379 agency of: ceasing of, etc., 379 may insure life of husband, 380 creditors have no claim on, 380, 381 800 INDEX. (References are to pages.) INSUKANCE COMPANIES — LIFE — Continued. payment of premiums by husband will defeat her right, 380 regarded as feme sole, when, 379 cancellation, surrender or rescission of, — assured may make for false representation of agent, 377 beneficiaries not necessary parties to, 377 cannot be made for fraud of agent, when, 377 husband cannot make when payable to wife, 379 conditions in, section 3625 as to false answers in application does not apply to, 377 issued to minors not void, 364 minor may avoid, when, 364 loans on, companies may make, 368 limitation as to, 368 mutual as to profits. ( See " Premiums," below. ) terms and conditions of — discrimination between insurants as to, 394 in case of colored persons, 393, 394 tontine. (See "Premiums" below.) statement of dividends, etc., — foreign companies to make to holder, when, 373 valuation of, 35 fees for^ 35 made how and when, 34 not required of foreign companies, when, 34, 35 Policy holders. ( See " Assured;" " Policies — beneficiaries under," above. ) Premiums, — discrimination as to, between insurants, 394 in case of colored persons, 393 penalty for making, 393, 394 notes given for, by minor not void, 364 may be avoided, when, 364 notice of maturity of. — failure to give will excuse payment, when, 379 foreign mutual or tontine companies must give, 373 conclusive proof of, what is, 373 effect of failure to give, 373 must show what, 373 to whom given, 373 paid in fraud of creditors, inure to their benefit, when, 378, 379, 381 what must be shown to establish, 380 recovery of, on policy fraudulently issued, 378 Property of, unauthorized, who may question title to, 368 Real estate, — companies may acquire what, 368 by foreclosure, 308 in securing payment of debts, etc., 368, 369 necessary for its business, 3G8 companies may loan on bond and mortgage of, 368 on pledge of bond and mortgage of, 368 must be sold when, 369 certificate of superintendent of insurance for postponement of sale, 369 Re-insurance of risks, — penalty for violating provisions as to, 367, 368 permitted without petition to what extent, 367 petition to contract for, — commission to hear and determine, 367 hearings upon: time, place, etc., 367 must show what: terms and conditions of, 367 notice of pendency of, 367 order of commission under, 367, 368 presented to superintendent of insurance, 367 stockholders or policy liolders may be heard, 367 Reports of, to superintendent of insurance, — companies must make, 369 in case of foreign companies, 372 when foreign to U. S., 373 exemption from provisions of " Willis Law," 20 failure to make, penalty, 374 requirements as to: must show what, etc, 369 in case of foreign companies, 372 'items of " incidental," " all other expenditures," not permitted, 372 when foreign to XJ. S., 373, 374 INDEX. 801 (References are to pages.) ' INSUHANCE COMPANIES — LIFE — Continued. supplementary by companies foreign to U. S. required, 374 Stipulated premium plan, business upon, — acceptaiice of provisions as to, — articles to be amended to conform to, 402 filed with secretary of state, 403 consent of superintendent of insurance necessary, 402 liled with secretary of state, 403 effect of, — upon existing contracts or liability, 403 upon pending actions or rights, 403 existing companies may make, when, 402 ceasing or relinquishing, — notice requiring, for non-payment of claims, 404 notice of, upon application of company, 406 withdrawal of deposits upon, 406 commencement of, 402 amount of insurance, number of insurants, etc., necessary to, 402 certificate of superintendent of insurance as to compliance with law necessary, 402 contracts -or agreements not specified in policy forbidden, 406 definition of, 402 deposit with superintendent of insurance, 402 action to collect claims payable from, 38 amount of: object and purpose of, 402 what securities authorized, 402 withdrawal of, upon ceasing to d-o business, 406 duties of superintendent of insurance as to, 406 discrimination between insurants forbidden, 405, 406 dividends may be paid when and how, 404 foreign companies, — certificate of authority of, to do business, 405 duplicate filed with superintendent of insurance, 405 issued by superintendent of insurance, 405 refusal of, when, 405 renewal of, when: refusal to make; hearing as to, 405 requisites for, evidence as to reserve fund, collection of premiums, etc., as to, 405 reserve fund, requirements as to, 405 evidence as to, to be furnished superintendent of insurance, 405 retaliatory provisions as to, 405 incorporators of, number of, 401 laws governing, — laws as to life insurance companies, 402 laws as to superintendent of insurance, 402 sections 266 to 289, 3587 to 3631, 402 liabilities of, policy holders not personally liable for, 406 objects and purposes of, 401, 402 insurance of health, life, etc., 402 organization of, under sections 3588 to 3589, 401 policies of, — cash values authorized, 404 reserve set apart for, must be stated, 404 liolders of, not personally liable for losses, etc., 406 investment policies, valuation of, 404 limited payment, authorized, 404 limitations and requirements as to, 404 reserve set apart for must be stated, 404 valuation of, 404 must show what, 404 as to amount of indemnity to be paid under, 404 time of payment, 404 payment of — obligation of company as to, 404 refusal or failure to make, 404 duty of superintendent of insurance as to, 404, 405 scaling of; for failure to pay assessment for reserve fund, 403 terms and conditions of, varying forbidden, when, 406 premiums, — minimum amount of: calculated how, 403 payment of, may be, when, 403 rebate of, etc., forbidden, when, 406 reserve fund, — - 802 INDEX. (References are to pages.) INSURANCE COMPANIES — LIFE — Continued, amount of: computed how, 403 impairment of, restored how, 403 assessment of members for, when, 403 failure to pay, scaling policy because of, 403 notice of; requirements as to, 403 surplus, distribution of, when, how and to whom, 404 taxes, liability for, same as life insurance companies, 406 trustees, liability of, 165, 402 Tontine. (See "Policies,'' above.) Unsound companies, what constitutes, 33 INSURANCE COMPANIES — LIVE STOCK. (See, also, Insdbance Co's.— Othee than Life.) Capital stock — amount necessary, 409, 412 amount paid in before commencing business, 409, 412 Foreign companies, — deposit for benefit of stockholders required, 426 amount of: deposited where, 426 Mutual protective associations, — articles of incorporation of, — acknowledgment of, 439 certified copy of, evidence of incorporation, etc., 439 filed with secretary of state, 439 incorporators must subscribe, 439 must show what, 439 assessments to pay losses, expenses, etc., — constitution and by-laws regulate, 438 power to make and collect, 438 charter of, forfeiture of, — superintendent of insurance enforces by quo warranto, 440 what subjects to, — exercising franchise and powers contrary to law, 440 existing companies failing to qualify under provisions of statutes, 439, 440 failure to restore required amount of risks, when, 440 insolvency: what constitutes, 440 refusal to make reports, etc., 439 commencing business, — applications, amount necessary before, 440 sworn statement as to, filed and approved by superintendent of insurance, 440 existing companies must file, 441 bond of treasurer to state, filed and approved before, 440 certificate of superintendent of insurance authority for, 440 constitution and by-laws of, — adoption, etc., of, 439 regulate — assessments, 43S bond, amount of, of secretary and treasurer, 440 election of directors, officers, etc., 439 directors of, — election and term of, 439 by members, 439 constitution and by-laws regulate, 439 incorporators elect first, 439 must take oath of office; who administers, 441 examinations of, by superintendent of insurance, 440 expense of; limitation, etc., 440 existing companies must qualify under, special provision, 441 incorporators, — number and qualifications of, 438 sign and acknowledge article, 439 insolvency of, — effect of; what constitutes, 4:40 laws applicable to — section 3654 is, 439 members of, persons obtaining insurance are, 113, 439 name of, articles must give, 439 objects, powers, etc., of, 439 articles must give, 439 can insure members only, 439 cannot insure non-residents, 439 ■ofiicers of, election of, 439 organization of, when, 439 place of business, articles must give, 439 policies or certificates of — failure to pay, remedy upon, 438 president of — election of, 430 duty of, as to — reports to superintendent of insurance, 439 INDEX. 803 (References are to pages.) INSURANCE COMPANIES — LIVE STOCK — Continued. statements before commencing business, 440 reports to superintendent of insurance, — blanks for, superintendent of insurance to furnish, 439 exemption from provisions of " VVillis Law," 20 penalty for refusal to make, 439 requirements as to: must show what, etc., 439, 424 risks, amount — to commence business, 440 to continue business, 440 effect of impairment of, 440 restoration of: within what time, 440 certificate of superintendent of insurance as to, 440 I effect of failure to make, 440 sworn statement as to, 440 secretary of — bond of; amount and approval, 440 duty of, as to — reports to superintendent of insurance, 439 statements before commencing business, 440 election of, 439 treasurer of — bond to association: amount, approval, 440 bond to state — amount, approval, 440 existing companies must file, 441 filed with superintendent of insurance, 440 election of, 439 vice-president, duty of as to reports to superintendent of insurance, 439 INSURANCE COMPANIES — MARINE. (See Insukance Companies — Fire : Istsueance Companies — OrHER than Life.) Consolidation of, — articles of new company, consolidated company chooses which to act under, 431 capital stock — apportioned how, 432 limitations upon amount of, 432 surrender of old certificates, 432 certificate of, — filed with secretary of state, 432 superintendent of insurance, 431 must show what, 431, 432 directors of old companies select first directors of new, 432 effect of, 431 joint stock companies may make, when, 431 with what companies, 431 name of new company, — certificate of consolidation must show, 431, 432 consolidated company chooses, 431 powers of new company, 431 stockholders, rights of dissenting, 432 vote necessary for, 431 Mutual companies — members of, liabilities of, in inland navigation, 423 risks of, re-insurance permitted, when, 441 approval of superintendent of insurance, 441 Organization of. (See Insurance Co's — Fibe: Insurance Go's — Other than Life.) INSURANCE COMPANIES — OTHER THAN LIFE. Agents of, — agent of another company is, when, 418 company bound by, when, 418 powers of, 418 may waive payment of premiums, 418 to appoint sub-agents, 418 solicitor is, 418 condition making him agent of assured void, 418 sub-agent is, when, 418 Articles of incorporation. (See "mutual protective associations," below.) approved by attorney general, 409 copy of, filed with superintendent of insurance, 409 filed with secretary of state, 409 record of, 409 Assets of — investment of, how, in what, 411 By-laws, etc. (See "Mutual companies," " iftifual protective associations," below.) approval of, by superintendent of insurance, 415 copy of, filed with superintendent of insurance, 415 directors may make what, 415 may — provide for classification of directors of mutual companies, 411 804 - INDEX. (References are to pages.) INSURANCE COMPANIES — OTHER THAN LIFE — Continued, regulate transfer of stock, 419 Capital stock of. (See "mutual companies," below.) amount of required, 409 amount paid in before commencing business, 409 certificate as to bona fides of, 412 certified copy recorded by county recorder, 412 effect of, as evidence, 412 filed with superintendent of insurance, 412 increase of, 419 certificate of, filed with secretary of state, 419 must show what, 419 stockholders consent necessary, 419 investment of: how, in what, 411 shares of, — transfer of, by-laws regulate; made on books, 419 voting power of, 411 subscriptions to — amount before organization, 410 books for, opening of, 410 must be in writing, 410 Charter, forfeiture of, for violating provisions as to application of dividends of existing companies to stock notes, 429 Commencing business — authority for, what is, 412 examination before, 412 Debts of. (See " liabilities," below.) Directors of. (See "Mutual companies," "Mutual protective companies^' below.) duties and powers of, as to by-laws: election of president and secretary, 415 election of first, 410 liability of, for unauthorized investments, 412 number of; qualifications of, 410 increase or decrease of, 411 record of proceedings of, to be kept, 415 stockholders may inspect, 415 vacancies, filled how, 415 Dividends, — application of what, to stock notes, by existing companies, 429 must be invested same as capital stock, 429 penalty for failing to comply, 429 Examination of, by superintendent of insurance, — before commencing business, 4l2 certificate as to filed with superintendent of insurance, 412 certified copy of, recorded by county recorder, 412 efi'ect of, as evidence, 412 in case of increase of capital stock, 419, 412 Foreign companies, — actions against brought where, 427 agents of, — license of, to do business reqiiired, 426 certified copy filed with county recorder, 426 must show what, 426 renewal of, when company foreign to U. S., 428 certified copy filed with county recorder, 428 must be authorized to accept service, 427 any other business forbidden, 426 banking business forbidden, 426 capital stock of — amount of, same as domestic companies, 426 invested according to laws of state where organized, 426 paid-up according to laws of state where organized, 426 debts of. (See "Liabilities," below.) deposit with superintendent of insurance by companies foreign to U. S., 428 action to collect claims payable from, 38 amount of: consists of what, 428 for benefit of policy holders in U. S., 428 may exchange, collect interest, etc., 428 value of securities, 428 doing business in state, — license for necessary, 426 failure to secure, quo warranto the remedy, 426 incorporated and unincorporated companies included, 426 revocation of — continues how long, 428 INDEX. 805 (References are to pages.) INSURAJSXE COMPANIES — OTHER THAN LIFE — Continued. for entering into combination to control rates, percentage, etc., 427 ^ for removing cause to U. S. courtSj 427 '^ statement for, — made by whom, 427 ,7 requirements as to: must show what, etc., 427, 423 superintendent of insurance grants, 426 discretion as to, 426 Lloyd's policy, liability of underwriters of, is several, 426 reports of. ( See also " Reports," below. ) additional require when foreign to U. S., 428 companies must make, 423, 424, 428 copy of last to home state, filed with superintendent of insurance, when, 427 requirements as to, same as of domestic companies, 428 service of process on — agents must be authorized to accept, 427 agreement us to — filed with superintendent of insurance, 427 must provide what, 427 by mail — agreement must authorize, 427 sufficiency of, 427 ; Incorporators of, — certificate of, as to hona fides of capita] stock, 412 I open books for subscription to stock, 410 I Insurance solicitor is agent of company, 418 I Investments of — in what securities, 411 penalty for making unauthorized, 412 Members. (See "Mutual companies;" "Mutual protective companies," below.) Mutual companies. (See also " Miitual protective companies," below.) capital stock of, deemed impaired when, 421 assessment to restore, when, 421 debts, etc., of, limitations on power to incur, 421 directors of, classification of, — ■ by-laws may provide for, 411 term of office in ease of, 411 distinction between, and mutual protective associations, 410 members of, — assessments against, — action to enforce, 422, 423 requirements as to executions in, 423 to pay losses and expenses, 421 amount of; rule as to discretion of directors, 421, 422 made when and how ; notice of, 42 1 payment of; failure, eff'ect of, 421, 422 who only can make, 422 to restore impaired capital when, 421 directors must be, 410 liability of, for losses and expenses, 421 default does not terminate, 422 directors may compromise when, 422 insolvency, etc., of company, no defense. 422 loss and payment by company doc? not extinguish, 422 misrepresentation of agent as to, no defense, 422 non-compliance with charter no defense when, 423 none — after ceasing to be a member, 422 prior to membership, 421, 422 statute of limitations begins to run when, 422 voting powers of, 411 who are, 421 name -of, must contain word "mutual," 423 policy and premium notes, — cancellation of, — liability of policy holder upon, 422 power of directors as to, 421 forfeiture of, — failure to pay assessments works, 422 waiver of, 422 on stock plan, issued when, 423 amount of limitation upon, 423 renewal receipts, word " mutual " must appear upon, 423 word " mutual " must appear upon policies, 423 power of, to insure on stock company plan, 423 re-insurance, amount required for, determined, how, 424 re-organization of mutual protective associations as. (See below.) 806 INDEX. (References are to pages.) INSURANCE COMPANIES — OTHER THAN LIFE — Continued. Mutual protective associations. (See "Mutual companies," above.) articles of incorporation of, — certified copy of, evidence of incorporation, etc., 434 filed with secretary of state, 434 incorporators must subscribe, 434 must show what, 434 assessments to pay losses, — advance payments are not when, 433 are trust funds, 433 constitution and by-laws regulate, 433 misapplication of: purchasu of assets of similar company is, 433 power to make and collect, 433 specific sum in lieu of, not authorized, 433, 435 assets — required for re-organization as mutual company, 435 constitution and by-laws of — adoption, etc., of, 434 change of, members not directors make, 435 members must sign, 434, 435 presumed to know, 435 waiver of, by agents, 435 directors of — election and term of — constitution provides as to, 434 incorporators make of first, 434 must be members, 433, 434 not liable for losses when, 434 distinction between, and mutual companies, 410 incorporators of — number and qualifications of, 433 laws applicable to — sections 3635, 3650, are not, 410, 421, 435 section 3654 is, 435 members of — liability of — cannot be a fixed sum, 433 , failing to sign constitution, 435 only for losses while members, 433 non-residents cannot become when, 433 persons signing constitution are, 113, 434 name of, articles must show, 434 objects, purposes, and powers of, 433, 434 articles must give, 434 can insure members only, 434, 435 cannot do business on stock or mutual plan, 433 limitations as to, 433, 434 may insure — against fire, lightning, tornadoes, 433 what structures, 433 officers — election, etc., of, constitution provides as to, 434 incorporators elect first, 434 duties as to reports, 434 place of business of, articles must give, 434 policies, etc., of, — application to re-organize as mutual fire company must show what as to, 435 effect of re-organization as mutual fire company upon, 436 profits, making of, unauthorized, 433 re-organization of, as mutual fire company, — application to superintendent of insurance as to, 435 examination by superintendent of insurance upon, 435 must show what, 435 notice as to, 435 articles of incorporation to be executed, 435, 436 certificate of superintendent of insurance as to compliance with law, 435 filed with secretary of state, 435 fees for, 436 authorized when, 435 effect of, upon — constitution and by-laws, 436 policies, etc., 436 reports to superintendent of insurance, — blanks for, superintendent of insurance to furnish, 435 exemption from provisions of " Willis Law," 20 penalty for refusal to make, 435 requirements as to ; must show what, etc., 434, 435, 423 trustees. (See "Directors," above.) Name of. (See "Mutual companies," "Mutual protective associations," above.) INDEX. 807 (References are to pages.) INSURANCE COMPANIES — OTHER THAN LIFE — Continued, secretary of state may reject, when, 409 superintendent of insurance may reject when, 409 Objects or purposes. ( See " Powers of," below. ) Officers of — bond of, probate judge may approve when, 433 certificate of under oath, as to fcono fides of capital stock, 412 compensation ot, 415 directors appoint what, 415 Organization of, meeting to be held when, 410 Policies. (See "Mutual companies," "Mutual protective associations," above.) alteration of by parol, 419 condition in, making solicitor agent of assured, void, 418 contract of insurance may be by parol when, 419 approval not necessary when, 419 is not within statute of frauds^ 419 policy is evidence of, 419 takes effect when, 419 delivery of, immaterial when, 419 executed how, 418 issuance of, equity will compel when, 419 kind of, limited to class of the company, 423 renewal of, by parol, 419 renewal — receipts must show what, 423 Powers of, 412, 413 limitations as to kind of insurance, 413 to borrow money, 411 to cause itself to be insured, 413 to insure, — , against accidents to persons or property or Mnployeea, 412 fire, lightning, tornadoes, 412, 413 fidelity of persons, etc., 412 health of persons, 412 live stock, 412 property in transit, 412 safe keeping of personal property, 412 titles to real estate, 412 to loan money on bottomry or respondentia, 413 Premiums — agents may waive payment, when, 418 President — directors choose from number, 415 duty and power of as to reports to superintendent of insurance, 423 subscribes policies, 41S Real estate — may hold what, 421 must dispose of. when, 421 certificate of superintendent of insurance postponing sale, 421 Re-insurance of risks — amount required for, determined how, 4^4 companies may make, when, 441 approval of superintendent of insurance necessary, 441 in what companies, 441 Reports to superintendent of insurance, — companies, domestic and foreign must make, 423, 424 exemption from provisions of " Willis Law," 20 filed with superintendent of insurance, 424 penalty for failure to make, 425 requirements as to : must show what, etc., 424, 425 Seal, policies executed with -or without, 418 Secretary — duties and powers of, as to reports to superintendent of insurance, 423 must attest policies, 418 Stockholders — -directors must be, 410 voting power of, 411 Vice president, duties and powers of, as to reports, 423 INSURANCE CO.'S — PLATE GLASS. (See Insurance Companies — Other than Life.) Risks of, re-insurance permitted, when, 441 approval of superintendent of insurance, 441 INSURANCE CO.'S — SURETY. (See Insurance Co.'s — Accident: Insurance Co.'s — Fidelity Guaranty: Insurance Co.'s — Other than Life: Insurance Co.'s — Title Guaranty: Safe Deposit and Trust Companies. INSURANCE CO.'S — TITLE GUARANTY. (See Insurance Co.'s — Accident : Insuk- ance Co.'s — Otheb than Life.) Capital stock of, — 808 INDEX. (References are to pages.) INSURANCE COMPANIES — TITLE GUARANTY — Continued, all must be paid up, 515 amount of, 515 Deposit with state treasurer, 515 amount of, 515 change of securities, 515 invested how, 515, 411 interest and dividends on, 515 transfer of deposit with superintendent of insurance, 515 Powers of, 412, 413, 414, 515 may do what classes of business, 412, 413, 414 " accident insurance to persons or property, 412 employers against accidents, etc., to employees, 413, 414 bonding, 412 fidelity guaranty, 412 title guaranty, 412 may not do other classes of business, 413 to make and guarantee loans, 515 to take charge of real estate, 515 INSURANCE DEPARTMENT. (See Sbperintendbnt of Insurance.) INTEREST, On bonds and other indebtedness, — cumulative, when, 200 On subscriptions to stock — company can pay cinly from profits, 116 Rate of, in case of specially chartered companies, 523 in examinations, valuations, etc., of life insurance companies, 34 on bonds and notes of corporations, 150, 152 in case of railroad companies, 200 street railroad companies, 200 * Unpaid, not to be included in profits for dividends, 170 Usurious, — by banks — eflfect cf, 109 may be set up before or after judgment, 529 tender of legal amount unnecessary, 529 corporations, on same footing as individuals, 108 efi'ect of charging, 109 in case of banks, 109 INTER-LOCKING FIXTURES, SAFETY DEVICES, ETC. (See Railroads: Railro/j> Crossings.) INTER-STATE COMMERCE. Foreign corporations engaged in, sections 148c, 148d do not apply, 11, 15 Receipts from, taxable, when, 69 INTER-URBAN RAILWAYS. (See Stkeei Railway Companies.) INTOXICATING LIQUORS. Sale of, within certain distances of agricultural fairs, 460, 461 arrest for, without warrant, 460, 461 who may make, 460 seizure and disposition of articles used in, 461 INVESTMENT COMPANIES, ETC. (See Bond and Investment Companies.) INVOLUNTARY PAYMENT. What is, 69 IRON. Rate of freight on pig-iron and iron ore, 264 IRON COMPANIES. (See Manufacturing and Mining Companies.) IRON MINES. Companies to operate may manufacture iron, 569 Owners or operators of, may construct freight way or private railroad when, 240, 241 JAILS, LOCKUPS, STATION HOUSES. Keepers of, to receive persons arrested by railroad police, 293 JOINDER OF PARTIES. (See Parties.) JOINT STOCK COMPANIES. Foreign, process served on, how, 583 JUDGMENTS. Against corporations, — appeal from, stockholder entitled to, when, 150 INDEX. 809 (References are to pages.) JUDGMENTS — Continued. error to, stockholder may prosecute, when, 150 ouster, effect of, 99 stockholder cannot collaterally impeach, when, 140 Against foreign corporations, — obtained by service on agent, entitled to faith and credit, ^6 Creditor's bill to collect stock subscriptions, founded on, when, 140 lien upon filing, 141 Former, defense to enforcement of stock subscriptions, when, 140 liien of — against railroad, in state courts includes what, 198 for freight, storage, etc., charges, 87 JUDGMENT CREDITOR. Lien of — upon filing creditor's bill, 141 upon property acquired by appropriation by railroads, 185 upon railroad property, 198 enforcement of, when mortgaged, 198, 199 Remedy of, when property is mortgaged, 198, 199 JUDICIAL NOTICE. Courts will not take of special acts of incorporation, 92 JURY. (See Appropkiation : ADuiifiRATioN of Food, etc.: Children: Cktjeltt to Animals. ) JUSTICE OF THE PEACE. Actions before, against railroads, brought where, 623 Fees of — for services as to repairs of toll roads outside of municipalities, 333 Jurisdiction, duties and powers of, — as to — adulteration of foods, etc., 466 children, employment of, 466 cruelty to animals, children, etc., 466 corpse, interment of, 40 fair grounds — carrying away fruits, injuring buildings, etc., interfering with exhibits, trespassing upon, etc., 463 unlavpful sale of liquors on or near; arrests; seizures, 460 railroads — posting time of arrival of trains, 214 stopping passenger trains at certain stations, 213 roads, turnpikes, etc., of companies, — demanding — illegal toll, 334 toll over portion — abandoned in municipalities, 332 out of repair in municipalities, 333 detaining travellers over toll roads unreasonably, 334 obstructing, etc., 341 repairing outside of municipalities, 333 turning to right, etc., 334 Summons in action before. (See Service op Process.) KNIGHTS OF PYTHIAS. Provisions as to fraternal beneficiary associations do not apply to, 401 LABOR. (See Mechanic's Liens.) LABORER. Secretary of corporation is not, within section 6355, 127 LAND. (See Real Estate.) LAWS. (See General Laws: Revised Statutes: Special Laws.) Construction of, by officers, binding how far, 60 Corporations governed and controlled by what, 91 in case of companies created prior to 1851, 91, 92 special provisions govern, when, 168 Evasion of, by organization in foreign state, no defense, 14 For consolidation of railroads apply to what companies. (See Railroad Companies.) Insurance, applicable to. (See Insurance: Insurance Companies, Etc.) Reciprocal and retaliatory. (See Retaliatory Provisions.) LAW LIBRARY COMPANIES. (See Library, Lecture, etc., Companies.) LEASES. (See under various companies.) LECTURE ASSOCIATIONS. (See Library, Lecture, etc., Companies.). LEGAL EXISTENCE. (See Corporate Existence.) LEVY. (See Execution: Taxation.) LIBEL. Corporations liable for, 108 SlO' INDEX. (References are to pages.) LIBRARY, LECTURE, ETC., COMPANIES (including Industrial Training Schools, Law Library, Library, Lecture, Mechanics' Institute, Natural His- tory, Scientific, Widows' Homes, etc.. Companies, Associations or Societies). Acceptance of provisions as to, 483 certificate as to — acknowledgment of, 483 filed with secretary of state, 483 Agents, officers, etc., of — directors or trustees cannot be, 483 duties of, enforcement of: removal of, 484 Articles of incorporation of — may prescribe what, 482, 483 Bonds or notes, mechanics' institutes may issue, 483 Directors or trustees of, — appointment or election of — articles may prescribe mode of, 483 compensation of, none, 483 duties of — enforcement of, 483, 484 ineligible to salaried office or agency of, 483 liability of, in certain mechanics' institutes, 483 removal of, on hearing, etc., 484 tenure of office, articles may prescribe, 483 Funds of, — accounts, reports, etc., of gifts, receipts and disbursements, 483 filing, etc., with clerk of court, 483 enforcement of, 483 organic rules as tOj 483 Objects or purposes of — additions to, 483 certificate of, acknowledgment of, 483 filed with secretary of state, 483 Officers of. ( See " Agent " above. ) Organic rules for — articles prescribe what, 483 permanency of, 483 Property — articles may prescribe mode of administration and management of, 483 power to acquire, hold, etc., in case of widows' homes, etc., 572 Real estate, mechanics' institutes may mortgage, 483 LICENSE TO DO BUSINESS. (See Fokeign Coepoeations : Insurance Companies, etc; and under other companies.) LIENS. (See Capital Stock: Dividends: Feeight: Jodgment: Judgment Cbeditoe: Insue- ANCE Co.'s — FiEE: Mechanics' Lien: Etc.) lilFE INSURANCE. (See Insuhancb Co.'s — Ldte.) LIGHTNING INSURANCE. (See Insueance Co.'s — Fibe: Insubance Co.'s — Other thaw Life.) LIME STONE. Freight charges on, rate of, 264 LIMITATIONS, STATUTE OF. (See Statute of Limitations.); LIS PENDENS. Application of, to transfer of stock, 144 LITERARY ASSOCIATIONS, ETC. (See Libeaet, Lectuee, etc.. Companies.) Fees for filing articles of, 9 Powers of, to lease theater, 113 LIVE STOCK. (See Cattle.) Perishable property and may be sold, when, 88 LIVE STOCK COMMISSIONERS. Duties of, as to violations of- regulations as to shipping, 576 LIVE STOCK INSURANCE. (See iNstmANCE Companies — Live Stock: Insurance Co.'s Othee than Life.) LOANS. (See under various companies.) By corporations, — duty of creditors as to, l.'il in excess of capital stock, 150 power to make, 108, 150 preferred stock regarded as, when, 95, 152 LOAN COMPANIES. (See Building and Loan Associations: Savings and Loan Co.'s.) Burglary insurance companies may insure, 445 LOCOMOTIVES. (See Railboads.) LODGES, ORDERS, ETC. (See Seceet Societies.) Of benevolent, charitable, or religious description. — provisions as to fraternal beneficiary associations do not apply to, 401 reports not required of, 401 INDEX. 811 (References are to pages.) LODaES, ORDERS, ETC.— Continued. Of fraternal beneficiary associations. (See Fbaternal Bei^eficiaby Associations.) Of employees of trade, firm, or corporation, reports not required of, when, 401 LODGE ROOMS, ETC., BUILDINGS FOR. Company to build, — corporations not having capital stock may hold stock in, 395 election, etc., of directors by, etc., 395 liability of, as stockholders, 395 LOTS — CEMETERY. (See Cemetery Associations.) LUMBER. Freight charges on, rate of, 264 MACHINE SHOPS. (See Railroads.) Owner or operator may construct freight way, when, 240 MAIL TRAINS. (See Railroad Trains.) MANAGING- AGENT. (See Agent.) MANDAMUS. Lies when: when not, — for refusal of permit to disinter body, 40 to compel advertisement of street railway route, 49 attorney general to commence quo warranto, 629 inspection of lx)oks by stockholder, 146 issuance of — ^ bonds, etc., 197 certificate of incorporation,, 101 new stock certificate, 147 restoration to membership in assessment insurance company, 384 running of street cars, 298 telephone company to furnish service, 323 transfer of stock, 145 to prevent revocation of license of insurance company to do business, 34, 58 to test amount of taxes to be paid by foreign insurance companies, 58 MANSLAUGHTER. Locomotive engineer guilty of when, 637 MANUFACTURING AND MINING COMPANIES. Accounts of — assessors may inspect, 566 kept at principal office, 566 must show what, 566 Action against mining company brought where, 579 Articles of, may prescribe for construction of railroad, etc., 568 Business of, carried on where, 568 Capital stock of — accounts must show what as to, 566 consolidation agreements must show what as to, 568, 271 railroad companies cannot purchase of mining companies, 176 Coal or iron mining companies may manufacture iron, 569 certificate as to, requirements, 569 filed with secretary of state, 569 vote of stockholders necessary, 569 Consolidation of — agreement for, 568, 270, 271 adoption of, to be certified upon, 568, 271 effect of, when perfected, 508, 273 filed with secretary of state, 568, 271 must prescribe what, 568, 271 prior agreements confirmed, 568, 271 submitted to stockholders of each company, 568, 271 conveyances of franchises, rights, property, etc., to new company, 568, 275 powers of new company, 568, 273 sections 3381, 3382 apply to, 568 stockholders' meeting to authorize, 568, 271 notice of: waiver, etc., 568, 271 vote at, by ballot, what necessary, 568, 271 takes effect when, 568, 273 Directors of — 'consolidation agreements must give number and residence of, 568, 271 duties and powers of as to consolidation, 508, 271 number of, change in, 168 Dissolution or voluntary surrender of charters. — accounts and statements, court may order filed when, 598 812 INDEX. (References are to pages.) MANUFACTURING AND MINING COMPANIES ^ Continued, causes ioi, 598 discretion of court as to: not reviewable, 598 judgment for, rendered when, 598 petition for, by stockholders; number of, 598 filed where; in what court, 598 hearings upon, before referee or master: notice and order for, 598 must show what, 598 notice of pendency of, 598 stockholders may withdraw from when, 598 must be legal, not equitable, 598 Iron companies may manufacture steel when, 567 Name of consolidated company, agreement must give, 568, 271 Objects and purposes of, — extension of, permitted when, 566, 567 certificate of — filed with secretary of state, 567 requirements as to; must show what, etc., 567 majority vote of stock necessary, 566 Officers ofj — number and residence of, consolidation agreements must give, 568, 271 principal accounting, must be resident of state, 566 Place of business of mining companies, — certificate of coal and mining companies as to manuf-acture of iron must show, 569 change of, in case of companies owning railroads, 211 Powers of, — to acquire, hold, etc., real and personal property, 568 outside of state, 568 to acquire, hold, etc., stock of railroad, etc., companies, 568 consent of stockholders to, 568 to construct railroads, etc., when, 568 none to appropriate property for, 568 provisions of ch. 2, § 3270 et seq. apply, 568 Principal office of — must be kept where, 56(3 establishment, change, etc., of; notice, 566 in case of mining companies owning railroad, 211 MAPS, PROFILES, ETC. (See Railroads.) MARINE INSURANCE. (See Insukance Co.'s — Fire; Insitkance Co.'s — Marine: In- surance Co.'s — Other than Life.) MARKET HOUSE COMPANIES. Market houses of — construction, maintenance, etc., of, 567 diseased or decayed meats or vegetables, sale of, in, 567 false weights and measures, use of, in, 567 rent of sta,lls, etc., in, 567 discrimination in, forbidden, 567 rates of, to be posted,. 567 rules and regulations as to quantities and terms of sale, forbidden, 567 to be used for what purposes, 567 Powers of, 567 Sewers of, — compensation for tapping and Jsing, 567 power, etc., to build, etc., 567 Streets, obstruction of, powers as lo, 567 MASONS. Provisions as to fraternal beneficiary associations do not apply to, 401 MASTER COMMISSIONER. Appointment and duties of, upon petition for dissolution of corporation, 594 M.'iTERlALS. (See Appropriations, etc.; Mechanics' Liens.) MAYOR. Jurisdiction, duties and powers of, — as to — adulteration of foods, etc., 466 appointing directors of collateral loan companies in certain cities. 517 approval, etc., of appointment of agents of humane societies, 405. 400 fair grounds, pleasure gi'ounds, orchards, etc., — cariying away fruits, injuring buildings, interfering with exhibits, tres- passing upon, etc., 46.3 children, employment of. 466 cruelty to animals, children, etc., 460 signature of, not necessary to street railway grant. 50 Summons in action before justice of peace served on when, 623 INDEX. 813 (References are to pages.) MECHANICS. Mutual benefit society of. ( See Insurance Co.'s — Life.) not subject to sections 3030a to 363lf, 3631 when, 393 Schools, colleges, etc., may hold shops, machinery, etc., for teaching, 472 MECHANIC'S INSTITUTE. (See Chahitable Trust Companies; Libbaey, Lectuke, etc.. Companies. ) MECHANIC'S LIENS. AfiSdavit for, — against canal, plank road, railroad, street and electric railway, turnpikes, public structures, etc., — filed when and where, 89 must show what, 89 against railroad companies, 84 failure to make, effect of, 84 filed when and where, 84 must show what, 84 provisions as to must be strictly complied with, 86 Arbitration of disputed claim, in case of railroads, 85 Claims under, against railroad, — aggregate of, limitation upon, 86 individual claims, limitations upon, 86 settlement and disposition of disputed, 85, 86 waiver of objection, what is, 86 Contract for construction of railroad, depot buildings, water tanks, etc., must stipu- late what as to priority of payments, 83 Enforcement of, — action for accounting against railroad, 85 plaintiff in, 85 separately stating and numbering claim, 85 injunction against operating canal, turnpikes, railroads, street and electric railways, ; etc., 89 Engineer's measurements, estimates, etc., — as to canals, turnpikes, railroads, street and electric railroads, etc., 89 penalty for incorrect or inaccurate, 89 Extension of time, effect of in case of railroads, 85 Limitations of time, — as to continuance of lien against canals, turnpikes, railroads, street and electric railroads, etc., 89 against railroads, 84 disputed claims against railroad applies to when, 86 Mortgages, priority of, over lien on railroads, S4, 85 Notice of, against railroad — failure to make, 84 must show what, 84 recorder of county gives when, 84 served on wliom, when, where, 84 substantial compliance essential, 85, 86 " Owner " in railroad lien law includes whom, 86 Payment of — examination of claims before, by contractor or sub-contractor, 85 notice of, to contractor or sub-contractor, 85 Priorities between lien holders in case of canals, turnpikes, railroads, street and electric railroads, etc., 89 in case of railroad, 85, 89 Promissory note, effect of taking, in case of railroad companies, 85 Section 3207, as to lien on railroads not applicable to street railroads, 84 Sub-contractor, contract with railroad to stipulate what as to priority of payments, 83 What entitles to, — boarding railroad construction hands, 83 labor and materials for construction of, — canals, plank roads, railroad, street and electric railroads, turnpikes, etc., 88 public structures, 88 railroads, tracks, depots, water tanks, etc., 83, 88 supplies, tools, etc., furnished railroad contractor or sub-contractor, 86 What is covered by, 84, 88 electric light plant not part of railroad when, 85 Who entitled to, against canals, turnpikes, railroads, street and electric railroads, 84, 85, 88 MEDICAL COLLEGES, SOCIETIES, ETC. (See Corpse.) 814 INDEX. (References are to pages.) MEETINGS. Corporate. (See Members, Stookholdeks ; also under various companies.) i'or organization, etc., 118 notice of, 118 notice of not required — in case of adjourned, 123 in case of general and stated, l/i3 Of canons boards. (See Board of Appraisers op Railroads: State Board op Ap- praisers AND Assessors: State Board of Equalization FOR Banks.) MEMBERS OP CORPORATION NOT FOR PR0]?1T. (See also under various companies.) Dues of, form for regulation as to, 671 Expulsion of. (See Expulsion.) Injunction by, against breach of trust by corporations or majority of members, 107 Meetings of, — for adoption or amendment of regulations; notice of; vote necessary, etc., 136 for amendment of articles; notice of; vote necessary, etc., 102 for election of trustees, notice of, etc., 123 form for regulations governing, 670 order of business at, form for regulations establishing, 672 quorum, regulations may provide as to, 137 form for regulations as to, 670 Qualifications of — regulations may provide as to, 137 forms for regulations, 668 MEMBERS OF CORPORATIONS NOT FOR PROFIT. Rights of — as to property, 114 as to voting, 113, 114 seceding, 114 Suspension of. (See Expulsion.) Trustees must be, 128 Who are or may become^ 113 MERCHANTS. Commission or forwarding. lien of, for freight, storage, etc., charges, 87 action to enforce, 87 notice by. of receipt of freight at destination, 86, 87 unclaimed freight. (See Freight.) MERCHANTS' EXCHANGE. (See Chamber of Commerce.) MESSENGER OR SIGNAL COMPANY. Agents, employees, officers, etc., of. ( See " Officers " below. ) Articles entrusted to, forging name of receiver to receipt for, 321 Books and papers of — examination, inspection, etc., of by state board of appraisers and assessors, 79, 80 Definition of, — includes what, 77 Excise tax on; amount, levying of; collection of, etc., 78, 80 exempted from provision of " Willis Law," 20 failure to pay, 80 tangible property not exempt from taxation, 80 Managing agent — chief officer in state. (See "Officers" below.) Messages of — delaying transmission or delivery of, 321 divulging contents of, 321 forging name of receivers to receipt for, 321 neglecting to transmit or deliver, 321 Mortgage of — record of, 151 Officers of, — examination of by state board of appraisers and assessors, 79 penalty for refusing to testify, 80 reports made, filed, etc., by, when, 77 Reports to state auditor, — blanks for, auditor prepares and furnishes, 78 duties and powers of officers as to, 77 failure or refusal to make, 79 must show what as to, — character and nature of company, 77 gross receipts, 78 name of company, 77 officers — names and address, 77 organization of, laws and state of, 77 principal office, location of, 77 INDEX. 815 (References are to pages.) METERS. (See Electric Light and Poweb Companies: Gas Meters.), MILITARY ACADEMIES. Academic board of — consists of wliom, 479 may malie and enforce rules, etc., 479 Board of visitors of — consists of whom, 479 duties and meetings of, 479 report of, to legislature, 479 Commandant of cadets, member of academic board, 479 Professors of, members of academic board, 479 Rules and regulations of, — •academic board makes and enforces, 479 governor must approve, 479 Superintendent of — appoints visitors when, 479 member of academic board, 479 MINERAL OR MEDICINAL SPRINGS. Appropriation of land where situated, by cemetery association cannot be made when, 357 in case of cities of 1st class, 1st grade, 2d class, 3d and 4th grades, 357 AIINES. Rates of toll for hauling products of, 331, 332 MINING COMPANIES. (See MANUFACTOBijsrQ and Mining Companies.) MINORS. Appropriation of property of, agreement as to. (See Appropriation of Property.) Deposits in saving and loan associations by, 504 Members of building and loan association, 554 MINUTES. Approval of, eflfect of, 126 As to amendment of articles, 661, 662 MISMANAGEMENT. (See Negligence.) AUSNOMER. Corporation, effect of, in pleadings, 112 Payee of stock subscriptions, effect of, 139 MISTAKES. (See Articles op iNCOEPORATiaN.) MONOPOLY. (See Franchises.) MONUMENTS. (See Cemetery Associations.) MORGUE. Location of, near dwellings forbidden when, 360. MORTALITY. Tables to determine rate, etc., of. (See Insurance Co.'s — Life.) MORTGAGES. (See Chattel Mortgages: see also under various companies.) Acceptance of, 151 Agreement to execute, not a preference when, 167 Assent of stockholders to, what is, 151 filed with county recorder when, 151 Claims for money advanced for interest, taxes, etc., not superior to when, 197 Conditions in, effect of, upon bonds secured, 197 Corporations may give to secure bonds, notes, etc., 150, 152 Defective, rights of, — as against general creditors, 201 subsequent mortgages, 201 Execution of, — by stockholders instead of corporation, 150 duty of creditors as to, 151 in a foreign state, 150 Foreclosure of, — personal judgment for deficiency, 151 by trustee against one promising to assume bonds, 151 purchase upon, by director, set aside when, 151 Preferences by way of — in case of insolvent corporation, 167 President pro tem. of corporation cannot make when, 126 Trustees in, to secure bonds, duty and powei- of, 151 What may be invested in, — assets or accumulations of companies, — in ease of credit gua,ranty companies, 441, 366, 365 farm laborer's associations, 564 insurance companies other than life, 411 life insurance companies, 368 savings and loan associations, 505 816 INDEX. (References are to pages.) MORTGAGES — Continued, capital stock, — in case of credit guaranty companies, 441 insurance companies other than life, 411 life insurance companies, 365 safe deposit and trust companies, 511 savings and loan associations doing business of safe deposit and trust com- panies in certain cities, 515, 51] deposits in trust, — in case of safe deposit and trust companies, 511 savings and loan associations doing business of safe deposit and trust com- panies in certain cities, 515, 511 deposit with superintendent of insurance, — in case of credit guaranty companies, 441, 366, 365 when foreign companies, 444 in case of fidelity guaranty companies, 413, 411 when foreign companies, 413, 411 in case of life insurance companies, 366, 365 when companies foreign to U. S., 373, 366, 365 when foreign companies of other states, 371 in case of title guaranty companies, 515, 411 must be assigned to, and assignment recorded,— in case of credit guaranty companies, 441, 366 life insurance companies, 366 reserve fund — in case of accident assessment insurance companies, 391, 368 sinking fund — in case of cemetery associations, 361 MORTGAGEE. Action by, for damages for use and occupancy of streets and alleys by railroad, 192 MOTIONS. For speedy trial in quo irarranto, 635 Party or attorney must subscribe. 585 To take out of its order, in case of appropriation of unfinished road bed of railroad, 617 MOTIVE POWER. Electricity as, railroads may use, 210 In case of street railroads, 295, 296 suburban or interurban railroads, 307 operating over street railway tracks, 54 MULE. Rate of toll for, over bridges,. 346 over turnpikes or planK roads, 331 MUNICIPAL CORPORATION. Actions by to collect fines, penalties, etc. — against agents, employees, officers, etc., of railroad and telegraph companies, 30 railroad companies, 30 for not complying with provisions as to highway crossings, 229 telegraph companies, 30 Appropriation of property by. (See AppROPBiATiOiN- of Property.) Boai'd of legislation. ( See " Council " below. ) Bonds of. (See Bonds — Public.) Cemeteries of, outside of corporate limits, fare to, over suburban or interurban rail- ways, 54 Cities of first class — railroad crossings in — automatic safety devices, bells, etc., 23 over highway to public cemetery, 193 Cities of first class, first grade — extension of street railway routes in, 305 street railways must run cars how often in, 55 subways for electric wires in. (See Subways for Electric Wires.) Cities of first class, third grade, — appropriations, use, etc., of street railway tracks in, 302 Cities of second class, — railroad crossings at highways to public cemetery, 193 Cities of second class, first grade, — railroad crossings in, automatic safety devices, bells, etc., 23 Cities of second class, second grade — railroad crossings in, automatic safety devices, bells, etc., 23 Cities of second class, third grade — railroad crossings in — automatic safety devices, bells, etc., 23 gates and flagmen at dangerous, 23 INDEX. 817 (References are to pagesj MITNICIPAL CORPORATION — Coniinued, Cities of second class, fourth grade, — railroad crossings in, automatic safety devices, bells, etc., 23 City solicitor of. (See City Solicitok.) Clerk of — duty of, as to publication of notice of application for street railway, 48 Contracts, agreements, etc., with gas companies. (See Gas Companies.) Council — contract with member of, as to railway rights is void, 50 hamlet trustees are included in word " council," 210 Excise tax not required of, 81 Fees for filing papers, showing incorporation, annexation, advancement, or reduction of, 10 Franchise grants in streets. (See Stbeets, Highways, etc., and under various com- panies. ) Gas works — contracts, etc., with companies to reserve right to purchase, 42 may be established by, when, 41 Hamilton, city of. (See '•Cities of 2d class, 3d grade" above.) Hamlet — "council" includes trustees of, 210 county commissioners cannot grant street railway franchise in, 296 Lighting of bridges and railways in — ordinances requiring, may be passed, 44 apply to whom, 44 construction of, reasonableness, etc., 44 expense under, assessment of, lien, enforcement of, etc., 45 failure to comply with requirements as to, 45 must specify what, 44 notice of intention to pass not necessary, 44 notice of requirements of, 45 to agent not sufficient, 45 Lighting of streets, public places, etc. — contract for; term of, etc., 41, 43 in case of electric light companies, 43 gas companies, 40, 41, 43, 350 natural gas companies, 43 regulation of price of electric light or gas for, 40, 41 Mayor of. (See Mayor.) Natural gas, oil, or water — power to transport, store, etc., 572 Parks, public grounds, etc., outside corporate limits — fare to over suburban or inleriirban railways, 54 museum, hall, park, and rink companies may use, construct buildings, etc., on, ' when, 569 Railroad crossings in. (See Railroad Crossings.) Real estate, purchase, etc., of to abolish railroad crossings, 230 Speed, rate of, of railroad trains. (See Railroad Trains.) Streets and alleys of. (See Streets and Alleys.) power to lay pipes, etc., in, 41, 571 Treasurer of — burglary insurance companies may insure, 445 MUNICIPAL OWNERSHIP. Contract with gas company must reserve right to purchase works, 42 municipality erecting plant at termination of, violates no right, 349 Gas works may be established when, 41, 349 MURDER. By obstructing railroad, displacing appliances, etc., C36 MUSEUM COMPANIES (including Academies of Art, etc.). Acceptance of provisions as to, 483 certificate as to, — acknowledgment of, 483 filed with secretary of state, 483 Agents, officers, etc., of — directors or trustees cannot be, 483 duties of, enforcement of; removal of, 484 Articles of, may prescribe what, 483 where buildings are on public grounds, 569 Buildings', etc., of, may be on public grounds when, 569 conti-ol of, and grounds, 569 trespassing, etc., upon; penalty, 569 Capital stock of, — corporations not having capital stock may hold, when, 395, 569 where buildings are on public grounds, — articles may provide as to number of shares held by a stockholder, 569 reversion of, to company, 569 transfer of, 569 818 INDEX. (References are to pages.) MUSEUM COMPANIES — Continued. Directors or trustees of, — appointment or election of — articles may prescribe mode of, 483 by corporations not having a capital stock and holding stock in, 395 where buildings are on public grounds, — agreement with municipal authorities as to, 569 municipal authorities may make when, 569 municipal officers may be, ex offlcio, 569 compensation of, none, 483 where buildings are on public grounds, 569 duties of — enforcement of, 483, 484 ineligible to salaried office or agency of, 483 number of — agreement with municipality, as to, where buildings are on public grounds, 569 in case of art societies, 113 removal of, on bearing, etc., 484 tenure of office — articles may prescribe, 483 in case of art societies, 113 Funds of, — accounts, reports, etc., of gifts, receipts and disbursements, 483 filing with clerk of common pleas court, 483 enforcement of, 483 organic rules as to, 483 Objects or purposes of — additions to, 483 certificate o f — acknowledgment of, 483 filed with secretary of state, 483 Officers of. (See "Agents," above.) Organic rules for — articles may prescribe what, 483 permanency of, 483 Property of, articles may prescribe mode of administiation and management of, 483 Stockholders of — gain or profit by, where buildings on public grounds, 569 liability as, of corporation not having u. capital stock, 395, 569 MUTUAL BENEFIT SOCIETIES. (See Insueance Companies — Life : Religious Asso- ciations.) Provisions of §§ 3630a to 3630f, 3631, when not applicable to associations of, — employees of express companies, 393 railroad companies, 393 telegraph companies, 393 ex-union soldiers, 393 mechanics, 393 religious societies, 393 secret societies, 393 Reports — fees for filing in certain cases, 393, 35 not required, when, 401 JIUTUAL COMPANIES. (See Co-operative Companies; Insurance Companies, et?. ■ Mutual Benefit Societies.) MUTUAL PROTECTIVE ASSOCIATIONS. (See Insurance Companies — Life ; Ins r- ance Go.'s — Live Stock; Insurance Co.'s — Other th. n Life. ) ' NAME. Corporate. (See Corporate Name.) Officers. (See Officers.) NATURAL GAS COMPANIES. Agents, employees, officers, etc. ( See "' Officers " below. ) Books and papers of, — examination and inspection of, by state board of appraisers and assessors, 80 , Consolidation of. (See Consolidation of Corporations.) laws as to railroads apply to, 43 with electric light or gas companies, 43, 40 Contracts, etc., with municipalities — for heating and lighting public buildings, stre t etc., 41, 43 term of, 41, 43 Definition of ^includes what, 77 "Excise tax on: amount, levying of, collection of, etc., 78, 80 exempted from provisions of '' Willis Law," 20 failure to pay, SO tangible property not exempt from taxation, 80 In cities of 2nd class third grade (16,000 pop. in 1880), — INDEX. 819 (References are to pages.) NATURrNL GAS COMPANIES — Continued. assent of abutting owners necessary to use roads for pipes, 353 liable for damages resulting from transportation of gas, 353 negligence not an element of liability, 353 sections 3550 to 3561 apply to, 353 Lease oi- sale of plant to street railway companies authorized, 54 stockholders — meeting of, to ratify; notice; proxies; vote at, 54 rights of dissenting; c-ompensation for stock; arbitration, 54, 55 notice of dissent, etc., 55 Managing agent, general manager, chief officers in state. (See " Offi.cers," below.) Meters of. (See Gas Meters.) municipalities anay regulate charges for, 40 Officers of, — examination of, by state board of appraisers and assessors, 79 refusal to testify, etc., penalty, SO reports made, filed, etc., by, when, 77 Price of gas for fuel or light, 40 agreement as to, time of, etc., 40, 41 municipalities may regulate, 40 Reports of to state auditor, — blanks for, auditor prepares and furnishes, 78 duties and powers of officers as to, 77 failure or refusal to make, 79 must show what as to, — character and nature of company, 77 gross receipts, lb name of company, 77 officers, etc., name and address, 77 organization, laws and state of, 77 principal office, location of, 77 Streets, alleys, public square, etc., use and occupancy of, for pipes additional burd n, 350, 353 N.iTURAL GAS TRANSPORTATION COMPANIES. (See Pipe Line Companies.) NATURAL HISTORY. (See Library, Lecture, etc.. Companies: Museum Companies.) NAVIGABLE WATERS. (See Bridges: Canals: Railroads: Ship Canal Companies.) Power of congress over, 213 what are navigable waters, 213 NAVIGATION IMPROVEMENT COMPANY. Rate of toll, directors may prescribe, 566 NEGLIGENCE. (See Railroads.) Contributory, in crossing railroad track, 226, 227 Corporations are liable for, 108 Hospital corporation not liable for, of nurse, 165 Liability of directors for, 132, 133 stranger cannot bring action for, 134 Liability of stockholders for negligence and mismanagement of directors, 132 follows ownership of stock, 133 Unlawful speed of railroad train, evidence of, 46 NEGOTIABLE INSTRUMENTS. Agent of corporation, power to sign, 131 liability of, when improperly executed, 131 Bonds of corporations. (See Bonds — Corporate.) Cognovit notes — preference b}', what is not, 167 president may make, when, 126 Corporations — cannot become accommodation indorser, 108 power of, to purchase, 108, 109 insurance companies, 108 Effect of taking promissory note on mechanics' lien upon railroads, 85 Execution of promissory notes by corporation, 108 Interest on. (See Interest.) Liability of corporations for, when issued by officers, 126, 127 Liability of stockholders on, for indorsement made at their request, 154 Notes given to settle corporate liabilities, not a credit on stockholders' liability, when, 154 Payment of stock subscriptions by note — effect of. 138 statute of limitation begins to run when, on demand notes, 138 President of corporation may make, when, 126, 127 Railroad and street railroad companies may issue notes for borrowed money, 200 What may be invested in promissory notes, — assets of insurance companies other than life, 411 820 INDEX. (References are to pages.) NEGOTIABLE INSTRUMENTS — Continued. deposit with superintendent of insurance, when, — in case of fidelity guaranty companies, 413, 411 title guaranty companies, 515, 411 NEXT OF KIN. Application of, for disinterment of dead body, 39 Who are, 39 NON-RESlDENCfi. Ground for service by publication, when, 584 Not ground for attachment — in case of foreign corporations complying with § 148c, 11, 13, 16 NON-RESIDENT CORPORATIONS. (See Foreign Coepokation.) xNOTARY PUBLIC. Bank not liable for default -of, when, 8 Certain, cannot act as, when, 8 Stockholder may act as, 111 NOTES. (See Negotiable Instruments; Premium Notes.) NOTICE. As to amendment of articles of incorporation, 102 amendment, etc., of reports of railroad and telegraph companies, 29 applications for arbitrators as to value of stock upon consolidation of R. R. Co's, 278 for inspectors of corporate election, 122 relative to impairment of assets of insurance companies, 33 changes in keeping accounts of railroad and telegraph companies, 29 change of route of railroad, 181 dangerous conditions, necessary repairs, eti'., to railroad, 21 discontinuance of business — of insurance companies, 37 of life insurance companies, Sti enforcement of liabilities of directors, officers, stockholders, etc., — to creditors, 159 to non-resident stockholders, 159 establishment or change of principal office of railroad companies, 211 ' in case of consolidated companies, 277 franchise grants in street, etc., to street railways, 48, 51 mechanics' lien on railroads, 84 meetings of stockholders, members, etc., — ' adjourned, not necessary, when, 123 general or stated, not required, when, 123 of members of corporation not for profit, 102 to adopt or amend regulations, 136 amend articles of incorporation, 102 classify directors of railroad companies, 202 dissolve railroad companies, 242 elect directors or trustees, 123 regulations may provide as to mode and manner, 137 extend line of railroad or change termini, 208 increase capital - stock, etc., 16.5 in case of railroad company, 208 issue bonds of railroad companies, 196 in case of certain narrow gauge roads, 199 organize corporation (first meeting), 118 in case of savings and loan associations, 504 provisions as to ar.« directory. 119 ratify lease, purchase, sale, etc., of property and franchises, — in case of electric light and power companies, 54 street railways, •'52, 54 ordinance requiring lighting of bridges, and railvvays, 44 payment of mechanics' liens on railroad, 85 petition for interlocking fixtures, etc., at railroad and electric railroad crossings, 24 petition for sale, incumbrance, etc.. — of abandoned, etc., church property. 489 of cemetery grounds — of cemetery associations, 361 of educational and relisious corporations. 488 of real estate of benevolent, charitable or religious societies, 500 petition for transfer of property upon consolidation — of benevolent and charitable societies, 498 of religious societies, denominations, etc., 492 receipt of freight at destination, 86 re-issue of lost or destroyed stock certificates, 146 INDEX. 821 « (References are to pages.) NOTICE — Continued. revocation of authority of insurance companies to do business, 34 safety devices at higliway railroad crossings, 22 in cities of 2nd class 3rd grade, 23 sale of — stock for unpaid installments, 137 unclaimed freight, etc., 87 stockholders' dissent to lease, purchase, sale, etc., of property or franchise, — in case of electric light and power companies, .54 railroad companies, 206 street railroad companies, 52, 54 By mail, when, — in case of amendment, etc., of constitution or by-laws of assessment life ass'n, 381 increase of capital stock of railroad companies, 208 meetings for consolidation of hydraulic com]3anies, 355 petition to consolidate or re-insure risks of accident, health, or life in-surance companies, 367 By publication. (See Publication.) Directors are charged with, of proceedings of directors, 130 Of appeal. (See Appeal.) To corporation — notice to directors is, when, 130, 131 notice to special agents is, when, 131 Waiver of, — as to amendment of articles of incorporation, 102 meeting of members of corporation not for profit, 102 meetings of stockholders to amend articles, 102 to increase capital stock, etc., 165 NUISAlSrCE. Corpse becoming, penalty for, 39 Corporations may be indicted for maintaining what, 637 order against for abatement and removal of, 637 Public and private — appropriation by street railways to be ascertained without refer- ence to distinction between, 304 NUL TIEL CORPORATION. Defense to enforcement of stock subscription, when, 140 NURSERIES, ORCHARIDS, ETC. Carrying away fruits, etc., injuring fences, trees, etc., trespassing upon, etc., 462, 463 Cemetery associations cannot appropriate land of, when, 357 in cities of first class first grade, 357 second class third and fourth grades, 357 NURSES. Corporations for instruction, etc., of, 93 Hospital corporation not liable for negligence of, 165 OATH, OATHS. Eorm of - of directors, 667 of ]ury in appropriations by street railways, 304 Who may administer, — clerk of commissioner of railroads and telegraphs, 25 commissioner of railroads and telegraphs, 29 county auditor, in connection with board of appraisers of railroads, 66 examiners appointed by — inspector of building and loan associations, 561 by superintendent of insurance, 32 justice of the peace to cemetery police, 359 mayor, to cemetery police, 359 members of state board of appraisers and assessors, 70, 73, 80 superintendent of insurance, 32 OATH OP OFFICE. Indorsed on bond and filed with secretary of state. — in case of commissioner of railroads and telegraphs, 21 superintendent of insurance, 31 Who must take, — commissioner of railroads and telegraphs, 21 directors of corporations, 125 policemen for cemeteries, 359 railroad police, 293 superintendent of insurance, 31 deputies of same, 31 trustees of corporations, 125 822 INDEX. (References are to pages.) ODD FELLOWS. Provisions as to fraternal beneficiary associations do not apply to, 401 OFFICE (A PLACE OR BUILDING, ETC.) Company to construct and maintain buildings for. (See Building Company.) Location of — of conimissionor of railroads, 25 of superintendent of insurance, 31 reports to secretary of state must give, — in case of corporations for profit, 17 corporations not for profit, 19 foreign corporations, 10, 18 reports to state auditor must give, — in case of electric light, gas, messenger or signal, natural gas, pipe line, rail- road, street, suburban or interurban railroads, union depot, and water works companies, 77 equipment (R. R.) and freight line companies, 71 express, telegi'aph and telephone companies, 68, 77 sleeping ear companies, 73 Railroad companies may construct, maintain, etc., 176 OFFICE (A POSITION OR EMPLOYMENT). (See under various titles and companies herein. ) Damages against one usurping, etc., 632 Eligibility to — of commissioner of railroads and telegraphs, 21 of superintendent of insurance, 31 Contract to secure, in corporation void, when, 104, 125 Term of — by-laws regTilating, 123, 135 in case of commissioner of railroads and telegraphs, 21 directors or trustees of corporation. (See Directors: Trustees.) superintendent of insurance, 31 regulations of corporations may provide as to, 137 OFFICERS. (See also under various titles and companies herein.) Accounting, duties and powers of. — as to listing property for taxation, 53, 56 Admissions by, do not bind company, when, 131 Appointment or election of, — regulations may provide as to manner of, 137 form for, 668, 671 Bond of — f oim for, 6G7 Change of, of certain corporations not for profit, certificate as to, 97 Compensation of, — allowed when, 126 form of by-laws as to, 672 regulations may provide as to, 137 Duties of, regulations may provide as to, 137 form for same, 668, 669 Liability of. (See Directors.) Names, residence, etc., of, — ai'tic)es of certain societies not for profit to give, 97 certificate as to, to be filed upon change of, by certain societies not for profit, 97 report to secretary of state must give of foreign corporations, 10 in case of corporations for profit, 17 corporations not for profit, 19 foreign corporations, 10, 18 to state auditor to give, — in case of electric light, gas, messenger or signal, natural ga**, pipe lines, railroad, street, suburban or interurban railroad, union de- pot and watei- works companies, 77 equipment (R. R. ) and freight line companies, 71 express, telegraph and telephone companies, 68, 77 sleeping car companies, 74 statement as to, required of railroad and telegraph companies, 29 Pleadings verified by, when, 585 Proof as to who are, what is, 125 Regulations relating to, forms for, 668 Removal of; for cause, 127 Reports, etc., by. (See Reports.) Term of office of. (See Office.) Service of process upon. (See Service op Process.) OTflO HUMANE SOCIETY. (Sec Humane Societies.) OHIO STATE BOARD OF AGRICULTURE. Attorney-general, legal adviser of, 449 INDEX. . 823 (References are to pages.) OHIO STATE BOARD OF AGRICULTURE — Continued. Expenses of, — board may audit and pay what, 449 paid out of state agricultural fund, when, 449 Farmers' institute under auspices of. (See Farmers' Institute Societies.) duties and powers of as to, 461, 462 Incorporation of, 448 Meetings of, — county agricultural societies to report at, 448 held wlien and where, 448 proceedings at, 448, 449 Members of; election and term, 4-18, 449 eoo-officio, — delegates from farmers' institutes are, when, 448 president or delegates from county agricultural societies are, 448 number of; quorum, 448 Officers of, board elects, 449 Real estate of, — board may hold what, 449 exempt from taxation, when, 449 reverts to state when not used for state fairs, 449 sale of, act of legislature necessary for, 449 Reports of, to general assembly, annually, 449 must show what, 449 Reports to, by .district and county agricultural societies, 448, 450 to be in accordance with rules of, 450 State fair — board to hold, 449 constables to keep peace at, 460 Secretary of — duties of, as to farmers' institutes, 461, 462 Stationery, books, etc., for, secretary of state to furnish, 449 OIL COMPANIES. (See Manufactuking and Minings Companies: Refining Companies.) OIL TRANSPORTATION COMPANIES. (See Pipe Line Companies.) OIL WELLS. Appropriation of lands upon which situated, — cemetery associations cannot make, when, 357 in cities of 1st class, 1st grade, 2nd class, 3rd and 4th grades, 357 OLEOMARGARINE. Coloj-ing of, suits for, — justice has jurisdiction, 467 prosecuting attorney may file exception to rulings of common pleas reversing, 467 OMISSIONS. (See Eeeoks and Omissions.) OMNIBUS. Rate of toll, 331 ORCHARDS. (See Nurseries, Orchards, etc.) ORDER OF BUSINESS. Form of regulations establishing, — for meetings, — of members of corporation not for profit, 672 of stockholders, 669 ORDINANCES. As TO specific matters. (See under respective titles.) Reading, 50 OUSTER. (Quo Warranto.) OVER-TIME. Compensation for, railroads to make to certain employees, 248 ORGANIZATION. (See Corporations.) PAPERS. (See Books and Papers.) PARENTS. Abandonment, etc., of, by children, — attorney to prosecute for, — fees of paid from county treasury, 466 humane society or agent may employ. 466 PARKS. Injuring fences, buildings, trees, etc. ; carrying awav fruits, etc., trespassing upon, etc., 462, 463 Municipal, fare to, over suburban or interurban railways, 54 PARKS — COUNTY. In counties containing city 2nd class, Ist grade, — Franklin county. — abandoned fair grounds held as, 454 title to vests in county, 454 care, protection, etc., of, — park commissioners to moke rules for, 455 824 INDEX. (References are to pages.) PARKS — COUNTY — Continued. control and supervision of, 454 employees of, — appointment, compensation, removal, 455 enlargement of — bonds for; requirements as to; tax levy to pay, etc., 455 care, improvement, etc., of at expense of city, 454 council of city may provide for, when, 454 purchase of certain property for, 454 title to vests in city; 454 expenditures ; report of commissioners to show, 455, 456 park commission for, 454 app«intment, bond, oath, term, etc., 454, 455 funds of dissolved, etc., county agricultural society; to be turned over to, 454 mayor, ex-officio member of, 454 meetings of : held when, 455 number of; quorum, 454, 455 ' president of: election of, 455 record of proceedings: effect as evidence, etc., 4.55 reports of, to county coinmissioneis and city council, 455 resolutions or orders of: yeas and nays on: record of: vote necessary, 455 secretary of: election of, 455 vacancies, failure to qualify causes, 455 superintendent: appointment, compensation, removal, 455 PAEK AND POND COMPANIES. Buildings, grounds, etc., uf, public grounds used for, when, 569 Corporations not having capital stock, — may elect directors, etc., when, 395 may hold stock in, when, 395 liability of, as stockholders, 395 Where public grounds used for buildings, etc., of, 569 articles may provide, — as to number of shares of capital stock held by stockholders, 569 reversion of shares to company. .569 transfer of shares, 569 buildings, grounds, etc., of — control of, 569 trespassing upon, etc.; penalty, 569 directors or trustees of, — agreement with municipality as to appointment and number of, 569 compensation of — none, 569 municipal authorities may appoint certain, 569 may be, ex-olficio, 569 stockholders or members of, gain or profit by, 569 PARTIES. In action, — by creditors to reach unpaid stock subscription, 140 stockholders to compel accounting, 133 to compel re-issuing lost or destroyed stock certificate, 146 transfer of stock, 146 to enforce lien on railroad, 85 stockholders' liability, 160, 161 to dispose of real estate of real estate corporation, 93 PARTNERSHIP. Corporations cannot enter into, 110 Debts of, liability for, of corporation taking property of, 106 Persons using corporation to defraud liable how, 107 PASSENGERS. (See RAn,ROADS.- Street Railway Compaky.) Foot, rate of toll for, over bridges, 345 PASSENCtER trains. (See Railroad Trains.) PASSES. (See Railroads.) patented articles. Use of, subject to state control, when, 323 PAYMENT, (See Involuntary Payment.) Of fees under protest, 15 PENITENTIARY. Directors or wardens of, duty as to bodies of deceased inmates, 481, 482 Officers and guards of, may ride on freight trains, when, 265 PERJURY. False statement, reports, etc., in connection with fraternal beneficiary ass'n is, when, 400 INDEX. 825 (References are to pages.) PERISHABLE PROPERTY. (See Property.) PERSON, PERSONS. Includes corporations, — as used in laws as to cruelty to animals, 468 in section 2485, 43, 113 Injuries to. (See Injuries.) PERSONAL PROPERTV. (See Cokpokate Property.) Corporations may mortgage, when, 150 Includes what, in case of ta.xation of railroads, 66 Shaies of stock are, 147 Taxation of. (See Taxation.) PETROLEUM COMPANIES. (See M an l'Facturinq and Mining Companies; Refining Companies. ) PETROLEUM TRANSPORTATION COilPANIES. (See Pipe Line Companies.) PHILOSOPHIC SOCIETIES. (See Library, Leotdbe, etc., Companies.) PHOTO-ilETRIC TEST. (See Gas.) PHYSICIAN. May ride on freight trains, when, 265 PICNIC GROUNDS. (See Pleasure Grounds.) PICK POCKETS. Agents, etc., of union depot companies may arrest, when, 314 PIONEERS. Grounds for meetings of. (See Pleas dre Grounds.) PIPE LINE COMPANIES. (See Common Carrier: Common Carreer Companies.) Actions for conversion of product entrusted to: counter claim, 571 Agents, employees, officers, etc., of. (See "Officers" below.) Appropriation of property by, 571 does not apply to water works companies, 571 Are common carriers, 571 Books and papers of — examination, inspection, etc., of, by state board of appraisers and assessors, 80 Definition of: includes what, 77, 571 Excise tax on; amO'Unt, levying of, collection of, etc., 78, 80 exempted from provisions of " Willis Law," 20 failure to pay, 80 tangible property not exempt from taxation, 80 Managing agent, chief officer in state, etc. (See "Officers" below.) Officers, etc., of, — ■ examination of, by state boaTd of appraisers and assessors, 79 refusal to testify: penalty, 80 reports made, filed, etc., by, when, 77 Powers of (See Common Carrier Companies), 571, 572 to acquire and hold property, 571 to lay and maintain pipe lines, etc., 571 regulations as to construction, etc., 571 restrictions as to, 571 to transport, store, etc., natural gas, oil, or water, 572 Real estate, power to acquire, hold, etc., 571, 572 Reports to state auditor, — blanks for, auditor prepares and furnishes, 78 duties and powers of officers as to, 77 failure or refusal to make, 79 requirements, etc., as to: to show what, 77, 78 character and nature of company, 77 gross receipts, 78 name of company, 77 officers — name and address, 77 ■organization of, laws and state of, 77 principal office, location oi, 71 Roads, streets, etc., right to use and occupy, 571 granted by whom: regulations, etc., as to, 571 PLACE OF BUSINESS. (See also under various companies.) Change of, — certificate of to be filed by certain -societies not for profit, 97 made when and how, 98, 102 section 3252 does not .authorize, 137 826 INDEX. (References are to pages.) PLACE OF BUSINESS — Continued. Designation of principal, — articles must make, 96 effect of, 98 exception as to certain societies not for profit, 97 failure to give, effect of, 96 form for stating, 646, 657 statement of foreign corporation must give, in this state, 12 In absence of — service may be by publication, .584 Reports to secretary of state must give, — in case of corporations for profit, 17 foreign corporations, 18 Summons may be left at, when, 5S2 in actions before justice of peace, 623 in ease of indictment of corporation, 639 PLAINTIFIS. (See Pakties.) PLAXK EO^UJS. (See Mechanics' Lieims: TukSpike and Plank Road Companies.) PLATE GLASS INSURANCE. (See Insubance C'o.'s — Othee than Life: Insubance Co.'s — I'late Glass.) PLEADINGS. Allegations necessary, — in action by bondholder for refusal to convert bonds into stock, 152 by stockholder to compel inspection of books, 14t) to compel re-issuing of lost or destroyed stock certificate, 146 for damages for animals killed by railroads, 217, 218 to enforce stock subscription, — brought by company, 138 by creditors, 140 to enforce stockholders liability, 140, 161, 162 Corporate capacity, 112 want of, 112 Corporate organization, veant of, 99 Cross-petition, creditor or stockholder may file, when, 134 allegations, etc., of, 134 in action for dissolution, to reach stockholders' liability, 598 Foreign corporations, — capacity to maintain action need not be set out, 15 compliance with local laws need not be alleged, 15 Misnomer of corporation, "112 Separately stating and numbering, 134 Subscribed by whom, 585 by attorney, when, 585 by party, 585 Verification of, 585 by agent or attorney, when, 585 in case of corporations, 585 petition for dissolution of corporation, 594 state, state oflicers, etc., 585 PLEASURE GROUNDS. Carrying away fruits, etc., injuring buildings, trees, etc., trespassing upon, 462, 463 PLEDGE. (See Loans: Moetgaoes.) PLEDGEE, PLEDGOR. (See Capital Stock: Stockholders.) POLICE JUDGE. Jurisdiction of in action as to cruelty to animals, children, etc., 466 in actions as to employuient of children, 466 POLICE POWERS AND REGULATIONS, Railroad companies are subject to, 186, 225 POLICIES. (See under various Insurance Companies.) POLYTECHNICAL INSTITUTE. (See Mechanic's Institute.) POND COMPANIES. (See Park and Pond Companies.) POST OFFICE ADDRESS. (See Address.) POWERS, CORPORATE. (See Corporate Powers.) PREFERRED STOCK. (See Capit4.l Stock.) PREMIUM NOTES. (See Insurance Companies — Fire: Insurance Companies — Life.) PRESIDENT. Of board of appraisers of railroads. (See Appraisers of Railroads.) Of rorporations. (See Officers and under respective companies.) INDEX. 827 (References are to pages.) I'ilESlDENT — Continued duties and powers of, — as to amendment of articles, 102 boriowing money, 25 bringing and defending suits, 126 executing deeds, mortgages, notes, etc., 126, 127 issuing stoelc, 127, 142, 143 listing property for taxation, 55, 56 name of company similar to his own company, 101 sale of bonds, 151 ti-ansfer of stock, 127 regulations as to, forms for, 668, 671 election of. by directors or trustees, 125 form for regulations as to, 668, 671 none by stockholders, 126 name and address. (See Address: Officers.) presumption of authority of to execute notes, etc., 126 pro tempore, power of; to execute mortgages, etc., 211 summons, etc., may be served on, when anii where, 582 in actions before justice of pea-ce, 623 against railroad companies, 623 in attachment proceedings before justice of peace, 625 in case of indictment of corporation, 639 PRESfJMPTIONS. -As to authority of president to execute notes, 126 good faith of council in regulating price of gas, 40 regularity of proceedings to enforce stockholders' liability, 163 validity of corporate acts, 106 of deeds of conveyance of corporations. 111, 126 That director is a stockholder, 128 PRICE FOR SERVICE. (See under respective companies.) General assembly may alter and regulate, of common carriers, 2 P1U>jCIPAL OFFICE. (See Office.) PRIXTING. (See Publication.) Of annual report of superintendent of insurance, 34 PRINTIIvia AND PUBLISHING HOUSE. (See Religious Associations.) PRIORITY. Of claims under railroad construction contract, 83 liens -on railroads. (See Mechanic's Lien.) mortgages over liens on railroads, 84, 85 PRIVATE RAILROADS. (See Freight Wats.) PRIVILEGE TAX. ( See Excise, Franchise or Privilege Tax.) PROCESS. (See Service of Process.) PROBATE COURT, PROBATE JUDGE. (See Couet— Probate. ) PROFESSIONAL BUSINESS. Corporation not authorized to do, 03 PROFILES. (See Maps.) PROMISSORY NOTES. (See Negotiable Instruments; Premium Notes.) PROMOTERS. (See Corporations: Incorporators.) Agreement of, to secure office in company, 104 Duties, liabilities, etc., of, 94 Liability of company for contracts of, 104 Liability of, for fraudulent organization, 107 PROOF. (See Evidence.) PROPERTY. (See Corporate Property.) Co.rporate franchise is not, 56 License -or privilege of foreign corporation to do business is not, 15 Perishable, live stock is, 88 sale of, by common carriers, etc., 88 Taxation of. (See Taxation.) PROPERTY HOLDERS. (See Abutting Property' Owners.) PROSECUTING ATTORNEY. Actions, prosecution, etc., brought by, when, — against corporations, to collect excise, franchise, etc., tax, — in case of electric light, express, gas, messenger or signal, natural gas, pipe line, railroad, street, suburban or interurban railroads. 828 INDEX. (References are to pages.) PROSECUTING ATTORNEY — Continued. telegraph and telephone, union depot and water works com- panies, 81 equipment (R. R.) and freight line companies, 74 sleeping car companies, 76 against persons, etc., — for circulating, re-issuing, etc., currency, bills, etc., of expired, insolvent, etc., banks, 534 for offenses against law — as to bills, etc., as money, .527 as to unknown depositors, 545 for violating provisions of § 148d, 13 against railroad companies, — for fines, penalties, etc., civil action for, 30 for violating provisions, — as to automatic couplers, air brakes, etc., 257 constiuction, etc., of crossings, approaches, etc., at highway cross- ings, 229 discrimination in freight rate against points in state, 261 employment of engineers, etc., intoxicated, addicted to drink, etc., 249 heating baggage, express, mail and passenger cars, 239 height of steps of passenger car above platform, 239 section 247c, 23 telegraph or telephone lines, 240 shipping live stock, 576 waiting rooms, 215 against real estate companies — to sell real estate held contrary to law, 94 against street railway companies, — for failing to run cars at required intervals in cities of 1st class, 1st grade, 55 for violating provisions as to street car vestibules, 306 against telegraph companies, — for fines, penalties, etc., civil action for, 30 Exceptions by, to reversal of justice of peace in oleomargarine cases, 467 Fees of — for bringing actions, etc., — for violating provisions as to construction of railroad crossings, etc., over high- ways, 229 employment of locomotive engineer addicted to drinlc, etc., 249 heating baggage, express, mail, passenger cars, 239 railroads, 30 waiting rooms, at stations, 215 to collect excise tax,. 74. 76, 81 to sell property of real estate corporation at expiration of charter, 94 Verification of pleadings, 585 PROSECUTIONS. Against railroad or telegraph company, its agents, officers, employees, etc., — for fines without imprisonment to be by civil action, 30 for penalties involving imprisonment to be by indictment, 30 PROTEST. By a director of railroad company against acts of board, 211 effect of, 211 publiction and record of, 211 Payment of fees under, 15 PROXIMATE CAUSE. Failure to give sign.il at railroad crossing must be, in action for damages, 227 PROXY. At election of directors, 120 Directors cannot vote by, 125 Stockholders — form of, 605, 660 form for regulations as to, 663 PUBLICATION. Of advertisement for bids for grant, — for street railways. 48, 51 for subways for electric wires in cities of 1st class 1st grade, 326 Of certificate of compliance with laws by insurance companies, 36 examination of insurance companies, 32 notice of — action for re-issuinsi; lost or destroyed stock certificate, 146 amendment of articles of incorporation, 102 application for appointment of arbitrators to determine value of stock upon consolidation of railroad companies. 278 for appointment of inspectors of corporate elections. 1?2 for right to use bridge, road, etc., by turnpike, or plank road company, 329 INDEX. 829 (References are to pages.) PUBLICATION — Continued. of mutual protective association to become mutual fire company, 435 to relinquish business of life insurance on stipulated premium plan, 406 appointment of receiver upon dissolution of corporation, 595 change of location of route, etc., — of railroad company, 181 of ship canal compajiies, 309, 181 discontinuance of business of insurance companies, 37 of life insurance companies, 36 election — as to bonds to pay debts of county agricultural society, 452 as to levy of additional tax for county agricultural society, 453 of special election of directors of free banking companies, 504 establishment or change of principal office of railroad companies, 211 in ease of consolidated railroad companies, 277 ship canal comjjanies, 312 meetings of corporation, — regular, of plank road and turnpike companies, 340 to adopt or amend regulations, 130 amend articles of incorporation, 102 in ease of schools, colleges, etc. (stock companies), 480 assess stockholders of plank road and turnpike companies, 341 of schools, colleges, etc., to pay debts, 479 classify directors of railroad companies, 202 consolidate companies — in ease of hydraulic companies, 355 in case of railroad companies, 271 dissolve company — or surrender charter, 599 in case of railroad com.panies, 242 elect directors or trustees, 123 in case of consolidation of railroad companies, 275 extend lines or change termini of railroad, 208 increase capital stock or number of shares, 165 in ease of railroad companies, 208 ship canal companies, 312, 208 issue bonds and secure by mortgage in case of certain narrow gauge railroads, 199 organize savings and loan association, 504 re-organize railroad company sold under mortgage or deed of trust, 281 receive subscriptions to membership in educational endowment corporation, 476, 477 sell road bed, right of way, etc., of railroad, 287 sell turnpike or plank road to ccmnty commissioners, 337 opening book of subscription to capital stock, 115 in case of credit guaranty companies, 441, 365 life insurance companies, 365 in case of increase of capital of company of landholders assessed for im- proved road, 342 organization of — credit guaranty companies, 441, 365 life insurance companies (mutual or stock), 365 payment of mechanic's lien on railroad, 85 petition, — to consolidate or re-insure risks of accident, health, and life insurance companies, 367 to correct errors, etc., in records or proceedings, etc., of corporation, 603 to enforce liab-ility of directors, trustees, officers or stockholders, 159 to sell, incumber, etc., real estate, — in case of abandoned church property, etc., 489 cemetery associations, 361 cemetery grounds of educational or religious corporations, 488 religious, charitable, etc., societies, 500 to sell railroad, by receiver, 290 to transfer property upon consolidation or union, — in case of benevolent and charitable societies, 498 religious societies, denominations, etc., 492 revocation of authority of insurance companies to do business, 34 sale of — property of schools, colleges, etc., for purpose of dissolution, 480 railroad by receiver, 290 stock to enforce unpaid installments, 137 unclaimed freight, etc., 87 order of court — for hearing on petition for dissolution of corporation. 594 in case of manufacturing and mining companies, 598, 594 830 INDEX. (References are to pages.) PUBLICATION — Continued. protest of director to acts of board, — in case of railroad companies, 211 ship canal companies, 312, 211 reports to state officers, — of building and loan associations, 560 safe deposit and trust companies, 512 savings and loan associations, 507, 508 Service of process by. (See Service op Pboobss.) PUBLIC BUILDINGS, ETC. Heating and lighting, municipalities may contract for, 43 PUBLIC HALL, ETC., COMPANIES. Buildings, etc., of, may be on public grounds, when, 569 Corporations not having capital stock, — may elect directors in, when; number, 395, 569 may hold stock in, when, 395, 569 liability of, as stockholder, 395, 569 qualification of directors, 395 Where buildings are on public grounds, — articles may provide, what, 560 as to capital stock — number of shares held by stockholders, 569 reversion of shares to company, 569 transfer of shares, 569 control, etc., of buildings and grounds, 569 trespassing, etc., upon same: pena\ty, 569 directors or trustees, — agreement with municipality as to appointment and number, 569 compensation of — none, 569 municipal authorities — may appoint certain, 569 may be, ex officio, 569 stockholders or members not to receive gain or profit, 569 PUBLIC STRUCTURES. '{See Mechanic's Liens.) PUBLIC WORKS. (See State Board of Public Works.) QUARRY. Rates of toll for hauling products of, 331, 332 QUARRYING COMPAJSTIES. (See Mak-ufacturing and Mining Companies.) QUORUM. Effect of acts performed without a, 125 Majority constitutes, — in case of board of appraisers of railroads, 65 board of directors or trustees of corporation, 125 Regulations may provide as to number of stockholders or members necessary to con- stitute, 137 QUO WARRANTO. Actions in. ( See " Proceedings in " below. ) Dissolution of corporations, judgment for, in, 632 Engagement in interstate commerce no defense to, 629 Fines under statute as to, disposition of, 635 Foreign corporations subject to, 14, 371, 627, 628 license to do business no bar to, 371, 628 right to (Jo insurance business tested by, 627 Forfeiture of charter, etc., enforced by, 627 can only be claimed by state, 633 decreed when, 632 discretion of court as to, 632 in case of assessment life insurance companies, 386 railroad companies violating provisions as to telegraph and teleplione lines, 240 judgment in case of, 632 is necessary to forfeiture, 633 Ouster from office, franchise, etc., under, — action for damages against one ousted, 632 attorney's fees and expenses not recoverable, 632 limitation of time as to, 632 judgment of: enforced how, etc., 631, 632 ■ rights of persons adjudged entitled, 632 Ouster of corporation under, — actions against officers or directors for misconduct resulting in. 635 INDEX. 831 (References are to pages.) QUO WARRANTO — Continued. cause for, schools, colleges, etc., conferring degrees without regard to merit, 471 effect ofj 99 as to property, 633 stockholder's liability, 153 third persons, 632 no defense to suit to enforce stock subscriptions, when, 142 Pleadings in, — answer, 631 continuance in office, how pleaded, 627 defendant may plead double, 631 demurrer to^ 631 may contain what, 631 resignation after suit not a sufficient, 627 time for filing; rule day, 630, 631 to reply, 631 what is material as defense, 631 corporate existence cannot be denied, when, 628 should be alleged, when, 628 demurrer in, 631 forfeiture of corporate rights, how pleaded, 628 information in — answer to, 631 demurrer to, 631 filed where, 630 limitation upon scope of, 627 location of place of business must be alleged in, 630 parties to, — defendants, 630 acting directors may be, 628 plaintiffs, 629 when corporate franchise is questioned, 627 when non-user or mis-user is alleged, 628 petition for. (See "information" above.) reply, in, 631 time for filing: rule day, 631 rule days in, 630, 631 court may extend: effect of, as to continuance. 631 rules of, — common law and not code procedure governs, 631 new matter set vip, taken as confessed, when, 631 statute of limitations pleaded how, 63.5 what matter is material as defense, 631 " Privilege," meaning of, 628 Proceedings in, — amendment of charter pending, effect of, 627 attorney's fees in, not recoverable, 632 books, papers, etc., of company, office, etc., — demand for, to be made, when, 632 by trustees of dissolved corporations appointed by court, 634 enforced how, 632 in ease of trustees of dissolved corporation, 634 order for delivery of, made when, 634 enforced how, 634 mandate to common pleas to carry into effect, 634 brought where, 630 burden of proof on defendant, 627 commencement and prosecution of, — attorney general may bring, when, 629 attorney for, court may appoint, when, 630 filing of information is, 635 general assembly may order, 629 governor may order, 629 leave of court necessary, when, 629 entry of, on journal or petition, 630 granted at cham.bers, 630 hearing as to, 630 notice of application for. 630 limitations of time as to, 634 as to exclusive use of streets by gas companies, 635 commences to run when, as against officers, 6.35 does not run against state as relates to rights in lands, 635 832 INDEX. (References are to pages.) QUO WARRANTO — Continued. in ease of forfeiture of charter, 634 mis-user of franchise, 634 ouster of officer, 634 pleaded how, 635 suit ordered by legislature is subject to, 635 prosecuting attorney may bring, when, 629 in case of disability court may appoint attorney for, 630 supreme court may order, when, 629 upon relation of private persons, 629 leave of court necessary, 629 security for costs, when, 629 criminal laws do not bar, 628 costs in, — in ease against corporation, etc., 633 in ease of ouster from franchise, ofiiee, etc., 631 security for, required when, 629 expenses in, not recoverable, 632 grounds for, what are, — abuse of coiporate powers, 628 conducting business illegally, 628 discrimination in freight rates by common carriers, 629 excessive fare charged by street railway, 53 exercise of franchises and powers contrary to law by assessment life insurance companies, 387 failure to complete organization, 628 to construct railroad suitable for public needs, when, 628 mis-user or non-user of franchises, etc., of corporations, 627, 632 time necessary to constitute non-user, 632 schools, colleges, etc., conferring degrees without regard to merit, 471 unlawfully acting as a corporation, 626, 627 holding franchise, ofiRce in corporation, or public office, 626 surrender of franchises, etc., of corporation, 627 have precedence to other civil business, 635 individuals cannot bring, 629 judgments in, — by default, taken when, 628 when service is by publication, 630 where corporation has forfeited its rights, franchises, etc., 632 has misused or usurped rights, franchises, etc., 632 where election of directors is illegal, 631 order for new election: enforcement of, 631 notice of; served how, 631, 632 where office, franchise, etc., is usurped, 631 enforced how, 632 rights of persons entitled to office, 632 may be instituted, when, — against individuals, 626, 627 against corporations, 627, 628 to prevent exercise of powers and franchises contrary to law by assessment life insurance companies, 387 to prevent excluding legally elected directors, 628 test election of officers ajid right to conduct affairs of corporation, etc., 124, 626 cannot be maintained wliere term has or is about to expire, 627 test power to exercise eminent domain, 628, 629 judgiTient of pi-obate coiirt as to, not a. bar, 629 must be in name of state, 629 right to open and close in, 627 service to process in, 630 by publication, authorized when, 630 issue and seirvice of summons, 630 in other counties, 630 speedy trial of, motion for, 632 Res judicata in, what does not constitute, 628 Right of railroad company to hold land tested by, when, 629 INDEX. 833 (References are to pages.) RAILROADS. (See Railroad Companies: Railroad Crossings: Railroad Trains: Com- MISSIONEK of R-AILROADS AND TELEGRAPHS.) Animals, — duty as to unloading cattle when shipped from south, 575, 576 killed by, etc. (See also "Fences" under " tracks" below.; action for damages for, — facts justifying verdict in, 218 land owner's agreement to fence, effect of, etc., 219 negligence, proof of, 217 pleadings in, 217, 218 statute of limitations, 217 tracks unenclosed, effect of, 219 breacliy and unruly animals, 219 cattle running at large, contributory negligence of owner, 218 duty of railroad as to, 218 trespassing on incloeures of, driving, riding or permitting, 638 Appliances of. (See "Equipment of" below.) Appropriation of property for. , (See Appropriation.) Assessments against. (See Commissioner of Railroads: Municipal Corporations.) Automatic safety devices. ( See Railroad Crossings ; also " Bridges " " Rolling stock " below.) Baggage. (See Baggage.) Bells. ( See Railroad Crossings. ) Bills of lading, — companies must give of car lots, when, 268 liability of company on, 268 must show what, 268 penalty for violating provisions as to, 268 Board of appraisers and assessors of. ( See Board of Appraisers, etc., of Railroads : State Board of Appraisers.) Brakemen. {See " Employees of " below.) Branch Roads. (See Railroad Companies.) Bridges, etc., — care required as to, 177 contract with Ohio River bridge companies authorized, 347 charges for toll under, 347 county commissioners may contract for wagon tracks in connection with, 577 may order enlargement of. when: expense of, 576 construction of, contracts for to stipulate what as to priority of payments, 83 lien on, for, 84 duties and powers of commissioner of railroads as to, 21, 22 lighting of, municipalities may require. (See Municipal Corporations.) may be toll bridges, when, 196 limitations upon location of, 196 toll over, rates of — change or revision of, 196 commutation rates permitted, 196 county commissioners to approve, 196 must be uniform, 196 posting of, 196 over canals, navigable streams, etc., — authority for, obtained how, 212, .213 proceedings for, in court of common pleas, 212 appointment of engineer, 212 confirmation of report of engineer, 212 notice to board of public works, 212 draw or swing bridges, etc., — appropriation of right to use, 242 compensation for, measure of damages, 243 proceedings for, 242 regulations as to use, 242 engines, trains, etc., cross without stopping when, 23 interlocking system or fixtures for, 23 approval, €itc., of, by commissioner of railroads, 24 not prohibited over canals, 212 other railroads to use when, 242 established prior to 1852 to remain when, 213 height of, over canals; piers, placed how, 212 plans for, approval of, etc., 212 refiisal to comply with provisions as to, 213 over railroad tracks. (See Railroad Crossings.) 834 INDEX. (References are to pages.) 11AILE0AD8 — Continued. power to build, repair, rebuild, etc., 176, 177 Canal banks, use of, by, 189 Cars of. (See Railroad Trains; see also " liolUng Stock," below.) Casualties on, reports must show what as to, 28 Cattle guards. ( See Railroad Crossings. ) Charges for service. ( See " Freight," " Passengers," below. ) Coal mines, tracks or switches to, duty to switch ears of other roads over, 236 Competing roads, what are, etc., 204 reslrictions as to, agreements between, 204 Conditional sales to. (See •' Equipment," below.) Conductors. (See "Employees," below.) Connecting roads- — agreements between, 204 aid to, lease or purchase of by other companies, 204, 205 powers and duties upon, 204, 205 stockholders' consent necessary, 206 what roads are, etc., 204 Construction of. (See "Roadway," below.) Construction trains. (See Railroad Trains.) Crossings. (See Railroad Crossings.) Culverts, waterways, etc. ( See " Ditches," below. ) contracts for, specific performance, 224. county commissioners may order enlargement of, when, 576 failure to make, 576 expense of, how paid, 576 plans and specifications as to, 576 landowner may use as cattle ways, when, 224 fences, construction and maintenance of, 224 Demurrage, tracks of another company used without when, 236 penalties for violating provisions as to, 265, 236 Depot buildings of. ( See Union Depot Companies ; also " Stations," below. ) appropriation of property for, 183, 185 bonds for building, 196 in case of consolidated companies, 210 breaking locks, fastenings, etc., of, 636 capital stock increased for, 208 contracts for, must stipulate what as to priority of lien, 83 lien for construction of, 84, 85 ordinances prohibiting soliciting at, valid, 314 power to construct, maintain, etc., 176 Ditches or drains. (See "Culverts" above.) agreements as to maintaining, 237 appropriations of way for, 183 assessments for county, owner not lessee liable for, 237 enforcement of provisions as to, 237 commission to determine as to, 237 fees and expenses in, 237 notice to agents of railroad, 237 sale of work and proceedings thereunder, 237 must be constructed vrhen and where, 236 receiver proper party to enjoin when, 288 Electric light plant of, when not part of railroad, 85 Elevators, — bonds for building in case of consolidated companies, 210 tracks or switches to, duty to switch cars of other companies over, 236 Employees of, — agreements, etc., exempting from liability for injuries to, — are against public policy, 251 are forbidden; penalty, 250, 251 insurance company cannot stipulate for, 250 black-listing: clearance card, 251 boarding of certain — lien for, 84, 85 order of payment of claim for, 83 brakeman — compensation for overtime, 248 day's work, what constitutes, 248 hours of service, regulations as to, 248 color-blindness of — disqualifies when, 247 examination as to; penalty, 247 expense of, company to pay, 247 conductor — compensation of, for overtime, 248 INDEX. (References are to pages.) RAILROADS — Continued. day's work, what constitutes, 248 hours of service, regulations as to, 248 of construction and freight trains, qualifications, 247 of passenger trains — has power of police ofiicer, 293 may arrest passenger when, 294 may eject passenger when, 293 return of fare upon, 294 penalty for neglect of duty as to arrest, etc., of passenger, 294 qualifications of, 247 summons against railroad served on when, 582 when in hands of receiver, 578, 580 contract of employment governed by laws of state where made, 254 defined: who are, 249, 252 discharge of — for refusing to join relief association, 250 reason for to be given in writing when, 250 constitutionality of provision, 251 liability for refusal to give, 250, 251 one quitting not entitled to, 251 refusal to give, 251 engineer ( civil ) , — duties of as to work under construction, 89 must certify and sign maps, etc., of road, 26 penalty for false or inaccurate estimates, 89 engineer (locomotive), — compensation of, for overtime, 248 day's work, what constitutes, 248 hours of service, regulations as to, 248 intoxicated, or addicted to drink, employment of, 249 penalties against for violating laws as to, — bells and whistles at highway crossings, 227, 637 crossings over railroads, 226, 637 obstructing streets, etc., 637 unlawful speed in corporate limits, 46 qualifications of, 248 ' fellow servants." (See also "Superior officer" below.) negligence of, — no defense when, 254 rule as to liability for, 249, 254 who are, etc. : defined, 253 brakeman and inspector are, 255 brakeman is, to other brakemen, 255 ear inspector is not, of brakeman, 253 car repairer is not, of foreman of repair gang when, 255 car repairer and conductor are, 255 conductor is not of conductor riding on pass, 254 of yard brakeman, 253 employee going home after work is not, 254 engineer is, to brakeman, when, 254 to employees on gravel train, 254 fireman and section hands are, 255 flagmen of trains are not, 248 one charged with blocking frogs, etc., is not, of other employees, 249 section boss and men are, Avhen, 255 telegraph operator is, of engineer, 253 train dispatcher is not, of engineer, 254 yardmaster is not, of brakeman, 254 yard switchman is not of conductors or engineers when, 2.54 firemen — compensation of, for overtime. 248 day's work, what constitutes, 248 hours of service, regulations as to, 248 flagmen — at highway crossings. (See Railroad Crossings.) qualifications of, 247 responsibility of, for negligence, etc., 248 injuries or death from defective equipment, etc., 251 application of provisions as to, 252 contract requiring employee to inspect, void, when, 252 flat-car without sides or ends not defective, 253 833 INDEX. (References are to pages.) RAILROADS — Continued. foreign contract of employment; injury outside state, effect, 253 knowledge of company, of defects presumed when, 252 effect of competent inspector upon, 252 of latent defects upon, 252 knowledge of plaintiff' as to defects ; pleadings as to, 252 negligence of company, — burden of proof as to due diligence, 252 j>re3umption as to may be rebutted, 252 ■prima facie evidence of, 252 retroactive effect of provisions as to, as relates to evidence, 252 want of appliance same as defective, 252 when intoxicated, 339 where negligent party had no subordinate, 253 intoxicated or addicted to drink, as to employment of, 249 mutual benefit societies of. (See Insurance Companies — Lile.) provisions of §§ 3630a to 3630f, 3631 do not apply, when, 393 relief associations, — acceptance of benefits by widow no bar to action, 251, 393 by member and release of damages valid, when, 251 company cannot require membership in, 250 cannot withhold wages to pay assessments in, 250 contracts giving option of benefits or damages permitted, 251 requiring waiver of damages, etc., void, 250 members may resort to state courts, when, 251, 393 . penalty for violating provisions as to, 250 sections 3630 to 3630f, 3631 do not apply, when, 393 " superior officers." ( See also " fellow servants " above. ) assumed risk of negligence of, 254 authority to direct: question of fact, 253, 254 " branch department " construed how, as relates to, 253 who are: definition, 253 conductor is, of brakemau or engineer, 255 engineer is, of brakeman or fireman, when, 253, 254 " hostler " is, of yard laborer assisting in care of engines, 253 telegraph operators?. — compensation of, for overtime, 248 day's work, what constitutes, 248 hours of seiTiee, regulations as to, 248 must transmit message of passenger delayed by accident or collision fortb- with, 261, 262 alteration, revision, etc., of forbidden, 262 penaltj' for violating provisions as to, 262 ticket an'l freight agents, — garnishee process from justice of peace served on, 625 siuimions may be serA'ed upon, when, 582 in actions against receivers, 289 in action before justice of peace, 623 service on agent of receiver not good against company, when, 533 when in hands of receiver, 578, 579 Avhere company enters, jurisdiction by ferry boat only, 583 who not eligible to appointment as, 212 trainmen, — compensation of, for overtime, 248 day's work, what constitutes, 248 hours of service, regulations as to, 248 watchmen, etc. ( See " Flagmen " above. ) Engineers. ( See " Employees " above. ) Engines. (See Railroad Teains. "Rolling stock" below.) Execution against property in use, 199 Equipment, etc., of. (See also "machinery," "Rolling stock" below.) bonds issued for, when, 209 conditional sales- of, to, — contract, etc., of, filed, etc., witli secretary of state, 266, 267 fees for, 267 M'hat contracts included, 267 leases of equipment, may stipulate for, 267 injuring or meddling with: penalty. 636 is murder when, 636 INDEX. 837 (References are to pages.) RAILKOADS — Continued, inspection of, — duty and extent ot, 252 in case oi foreign cars, etc., 2.52 effect of, upon presumption of knowledge, 252 Fences. (See "Tracks" below.) ]?are on. (See "Passengers" below.) Fires along. (See "Right of way," "Rolling stock" below, also "Liability of" under Railroad Companies.) Firemen. ( See " Employees " above. ) Fixtures, etc., — capital stock increased, for, 208 stoue piers are, when, 186 Flagmen. (See "Employees" above.) Flags. ( See " /St^waZs " below. ) Foot bridges over tracks. ( See " Bridges " above. ) Freight over, — charges for, etc., — companies without telegraph, etc., lines cannot collect, when, 240 discrimination in: equal rates to all, 259 against points in state, 201 penalties for violating provisions, 261 consignee cannot sue, when, 239 injunction to prevent, 250 quo xoarranto lies to prevent, 259, 629 rebates — actions to enforce, 259 to large shippers, 259 unlawful, 259, 260 for retui'ning empty cars of other companies from sidings, etc., 236 switching, etc., cars of other companies, 236 transporting cars of freight of other companies, 230 lien for, and for storage, etc., 86, 87 action to enforce, 87 long and short hauls, 201, 264 when competing with public works, 259 over charges — assessment of damages for, 266 interest on, 260 joinder of actions for, 266 liability of agent or employee for, 265 penalties for, 265 pleadings in actions for, 266 recovery of, by shipper, 265 rights of shipper, when fraudulent, 259 separate action for each offense, a'ccept, 265 rates of, authorized, 264 effect of laws reducing, 91 for less than thirty miles, 264 reasonableness of, 264 in case of articles of unusual bulk, 264 branch roads, 266 coal, pig iron, limestone, iron ore, stone, lumber, 264 roads under construction, 266 penalties for violating provisions, 265 tariff of — change of; notice, etc., 260 publication or posting, 259, 260 unlawful to charge less than, 260 to or from points competing with public works, 258, 259 rights of companies under special charters, 264 loading and unloading, charges for when done by company, 264 receipt of, at destination, notice of, 86 storage or warehouse receipts, — companies may issue, when, 267 consent of consignee necessary, 267 issued for grain, iron ore, merchandise, 267 must state what; signed by whom, 267 transfer of, 267 transportation, etc., of, — contracts, etc., for, valid, when. 265 not to cany to certain points forbidden, 260 discrimination — between through and way, forbidden, 261 trunk roads not to make between other roads as to, 260 838 INDEX. (References are to pages.) RAILKOADS — Continued. diverting freight to lines not named by siiipper, 260 agent, guilty of misdemeanor, 260 rights of company discruninated against, 260 duty as to, of cars, etc., of otlier companies, 236 equal facilities for, to shippers of same class, 261 damages for refusing, 261 injunction to enforce provisions, 2C0, 261 unclaimed, etc., — register of, to be kept, 86 sale of; notice of; disposition of proceeds, 86, 87 Freight agent of. (See "Employees" above.) Freight trains. (Sec Railroad Tbains.) Freight ways or private railroads. (See Fkeight Ways.) Frogs, guard rails, etc. (See " Tracks, switches, etc." below.) Highways. (See Railkoad Cbossikgs; also ''streets, etc." below.) Improvements — bonds for making, 196 iu case of consolidated companies, 210 Injuries. (See "Animals", "Employees" above.) to persons, fatal; report to and examination by commissioner of railroads, 20 Inspection. ( See " Equipment " above. ) Labor. (See "Liens" below.) claims for, collection by garnishment, 585 Lamps. (See "Signals" below.) ]>eases of roads, — acknowledgment of, if for more than three years, 204 bonds to purchase leased roads, issue of, by consolidated companies, 209 copies of certain to be furnished commission of railroads, 29 companies may make, when, 204 in case of consolidated companies, 276 foreign companies, 204 duties, disabilities, restrictions, etc., of leasing company, 206 liabilities under, — joint and several of lessor and lessee — for damages from fires, 207 for damages for use and occupancy of streets, etc., 191 for personal injuries, etc., 205, 207 statute of limitations, suit against one will not save running againsr. other, 207 of lessor, 207 for — fires, 207 negligence of employee of receiver of leasee, 207 personal injuries, etc., 207 to rebuild, etc., 205 under common law, 207 old laws, 207 preservation of property, security for, 207 rental, amount of, and security for, 206, 207 rescission, etc., of, — receiver may abrogate, when, 205 stockholders may appeal from order of cancellation, when, 207 vote of stockholders necessary, 204 rights of dissenting stockholders, 206, 207 of lessee advancing money to pay coupons on bonds, 204 subsequent to mortgage, eflfect of, 196, 197 specific performance of, compelled, when, 205 stockholders' consent to, necessary, 206 undivided interest, company may lease, when, 286 approval by court: effect upon liens, 286 what roads could be leased prior to 1882, 205 Liens against. (See Mechanic's Lien.) for labor, materials, damages, etc., — continue after sale, etc., tinder mortgage, etc., when, 283, 284 action and cross-petition for foreclosure, 284 court retains amount of, 284 distribution xjf, when, 284 notice as to, to clerk of court, 284 to ofKeer making sale, 284 reading at sale and return of to court, 284 Lighting. (See Municipal Corpouations.) Location of. (See "Roadway" below.) Locomotives. (See "Engines" above.) INDEX. 839 (References are to pages.) RAILROADS — Continued. Machinery for. (See "Equipment" above.) bonus for increasing, 190 capital stock increased for increasing, 208 Machine shops, etc., — appropriation of property for, 183 bonds for building, 190 in case of certain narrow gauge roads, 199 consolidated c-ompanies, 210 power of companies to construct and maintain, 176 Mail trains. (See Railroau Trai:ns.) Maps, etc. (See "Roadway" below.) Materials for, etc. ( See " JAens " above. ) claims for, collection by gaTnishment, 585 Mechanic's liens against. (See Mechanic's Liens; also "Liens" above.) Mortgage or deed of trust of. (See Railroad Companies.) Motive power of, electricity used as, 210 consent of municipal authorities, -when, 210 Navigable waters. (See "Bridges" above.) switching cars of other companies over tracks and switches to, 236 Operating contracts. ( See " Lease's " above. ) bonds for purchase of roads held under, 209 powers of consolidated company as to, 276 Operation, management, etc., of, — bonds for, in case of certain narrow gauge roads, 199 in ease of consolidated companies, 210 power of company as to, 176 power to purchase implies, 177 when company compelled to operate, 177 Over head structures. (See "Bridges" above; "Wires, etc." below.) Owned in common,— division and disposal of; agi'eenients as to, 279 effect upon liens, 279 proceedings, when unable to agree, 279 improvement and development of: agreements as to, 279 cost of — apportionment and payment, 280 sale of interest in to pay, 280 limitation upon power to compel, 280 proceedings when unable to agree, 279 partition of, not compulsory, 280, 2Sfi provisions as to, apply to lessees of, 280 sale of, undivided interest in, 286 Passengers upon, — arrest of, by conductor, when, 294 held for trial, where, 294 provisions as to, do not affect liability of company, 294 delayed by accident or collision,— telegraph message of, to be sent forthwith, 261, 262 alteration or reversion of forbidden, 262 penalties for violating provisions as to, 262 ejection of, by conductor, when, 203 causes for, 293 dainages for wrongful, 294 force used in; amount of, 293 for refusal to pay fare. (See below.) place of, 293, 294 provisions as to, do not affect liability of company, 294 return of fare upon, 294 when car in motion; negligence, 294 fare from, companies without telegraph lines cannot collect when, 240 exemption from, commissioner of railroads entitled to, 25 overcharge of, — assessment of damages for, penalty, 265, 266 interest on, 266 I'-oinder of actions for, 266 liability of agent, etc., for, 265 jileadings in action for, 266 separate action for each offense, except, 265, 206 rate of, 262 840 INDEX. (References are to pages.) EAILROADS — Continued. distance less than eight miles; reasonableness, 262 in case of branch roads, 2G6 roads under construction, 266 penalties for violating provisions as to, 205 rights as to, under special charters, 262 ticket rate and car rate, — duty of passengers when car rate is illegal, 262 right to establish, 262 what multiple of five used to compute, 262 refusal to pay, expulsion from car for, 268 measure of damages for illegal, 268 tender of fare not good when, 268 time, manner , and place of, 268 tickets for — authority of agent to sell, 263 definition of, 263 drovers', exemption from negligence void, 263 limited in time, invalid after limit, 264 mileage, — right to take up, 264 waiver of conditions, 264 procuring, before taking passage on freight train reasonable regulation, 264 rights of holders of, — fraudulently obtained, 263 for continuous passage only, when, 263 lost, 263 taKing wrong train, 263 to a feat, 264 wrongfully taken up, 263, 264 toll for, over Ohio River bridge, 347 transportation of, — contracts, etc., not to carry, to certain points forbidden, 260 injunction lies to enforce provisions, 260, 261 trunk roads not to discriminate between roads as to, 260 upon freight trains, 264 Passenger trains. (See Railroad Tbains.) Passes; free travel'; by commissioner of railroads, 25 effect of exemption from negligence in, 263 Police for. (See Railroad Police.) Private roads. (See Freight Wats.) Purchase of, — ■ bonds for, of road under lease, etc., consolidated companies may issue, 209 capital stock increased for, 208 powers of companies as to, 176, 204 consent of stockholders necessary, 206 from purchasers at judicial sale, 291, 292 in case of consolidated companies, 276 roads owned in c-ommon, 280 roads sold at judicial sale, 291, 292 right of dissenting stockholders, 206 Eelief associations of employees of. (See "Employees" above.) Regulations as to — company may make what, 293 railroad police to enforce, 293 Kight of way of. (See also "Road ii-ay" below.) agreement to arbitrate as to price of, 187 appropriation of. (See Appropriation.) for opening or extending streets, etc., 43 combustible materials along or upon. (See "Liability of" under R.\ilroad Com- panies. ) abutting owner may remove when, 245 expense of, recovered from company, 245 notice to company, 245 company must keep, clear from, 244 whole width must be cleared, 245 damages for failure to keep, clear of, 244 origin of fire immaterial, 245 grain elevator is not, 245 contracts for, grants of, etc., ambiguous description estopped as to, 187 are perpetual, unless limited, 187 conditioned on location of road or use of lands, 187 includes what lands, 186 INDEX. S^i (References are to pages.) RAILROADS — Continued. record of — effect as evidence, etc., 215 impeachment of, 215 selection, rights determined when, 187 deeds to: — construction of, 188 held in escrow, 188 forfeiture of, by non-user when, 288 license to take gravel from, 188 lighting, municipalities may require. (See Municipal Cokporations.) poles of telegraph companies along: damages for, 317 power to purchase property for, 186 in case of company selling, etc., road held in common, 280 statement as to lands occupied by, filed with county auditor, 214 weeds, etc., along. (See "combustible materials along" above.) when title to. not of record, — survey and plat: record, etc., 215 abutting owners may make when, 215 taxation of. 215 Roadway of. (See also "Right of way" above.) bridges, etc., along. (See "Bridges" above.) combustible materials along. (See "Right of way" above.) construction of, — appropriation of materials for, 183 of way over adjacent lands for, 183 aid for. (See Cokpoeations.) by other railroads, when, 204 assent of stockholders to, 206 bonds issued for, when, 196, 209 in case of certain narrow gauge roads, 199 consolidated companies, 210 capital stock may be increased for, 208 contracts for — interpretation of, 177 order of priority of payments under, 83 powers of company as to, 177 lien for, payment for, 84, 85 powers of companies as to, 176 crossings over highways, railroads, etc. (See R.mlroad Crossings.) ditches, drains, etc. (See "Culverts;" "Ditches" above.) embankments for, appropriation of property for, 185 extensions of, — bonds for, 196 in case of consolidated companies, 210 capital stock may be increased for, 208 certificate of, making, filing, etc., 208 fees for filing, 9 effect of, on existing mortgages, 208 into adjoining states, 182 location of: from termini and not middle of route, 180 not authorized by power to change route or termini, 179 stockholders must authorize, 208 lighting. (See "Right of way" above.) location of — agreements as to, 178 between named termini, 176 bonds issued for, when, 209 change of, 178-181 abandonment not authorized, 178, 181 appropriation of property for, 181 cannot be made when, 180, 181, 205 causes for, 180, 181 certificate of change of counties of, filed with secretary of state, 180 consent of stockholders necessary when, 178 damages to land owner for, 181, 182 directors may make, 178, 181 eti'ect on sl;ock subscriptions, 179, 181 indirect or evasive, 180 injunction against, 180 limitations upon, 178, 179, 181, 182 mortgages, cover changed line, 180 notice of, when, 181 provisions as to, construed how, 179 842 INDEX. (References are to pages.) IIAILROADS — Continued. resolution describing — certified to secretary of state vanies, when, 313 Charter of. (See Articles of Incorporation. See also "Franchises" below.) cannot be sold in absence of statute, 290 . foi'feiture of, for failure to maintain telegraph and telephone line, 240 Citizenship of, extending lines into another state, 182 Conditional sales of personal property to. (See Eailroads.) Consolidation of, — " adjoining state," meaning of, in law as to, 270 agreement for, 271 adoption of, to be certified upon, 271 defects in, cured how, 273, 274 certificates supplying, filed with secretary of state, 273, 274 effect of, — as evidence, 274, 275, 279 when perfected, 273 filed with secretary of state, 271 must prescribe what, 270, 271 original need not be produced or proved, when, 279 partly illegal, effect of, 273 preliminary, efltect and force of, 271 prior agreements confirmed, 271, stipulations in, for veto power to preferred stock, 272 submitted to stockholders of each company, 271 apportionment of capital stock upon, etc., 272, 273 as to constituent companies, — bonds of, stipulation to protect, effect of, 273 charters of, need not be proved in action against new company, 279 continued in. existence how far, 275 debts and torts of, 275, 276 existence of, ceases when, 271 bonds of new company to pay, 209 liabilities of, upon, 275 powers of, pending consolidation, 209 property, franchises, etc., of, upon, 275 not held in trust, 276 preferred stock of, agreement may provide for retirement of, 270 stockholders of, rights of dissenting, 278 arbitration as to value of stock, 278 appointment of arbitrators, 278 notice of application for, 278 refusal to arbitrate or accept award, 278 entitled to what valuation for stock, 278 in case of — foreign companies, 278 holders of preferred stock, 278 to enforce operation of roads. 269 when made by e.xchange of stock, etc., 277 as to new company, — directors of, — election of — held where, 277 injunction against stockholders participating in, 275 stockholders' meeting for consolidation determine as to, 275 unauthojized until agreement filed, 275 number and residence of, agreement must state, 271 residence of, 277 execution against, for debt of old company, 276 general laws govern, 269 general and principal office of, 277 liabilities and duties of, 275 850 INDEX. (References are to pages.) RAILKOAD COMPAJS^IES — Continued. for claims of dissenting stockholders, 276 debts of constituent companies, 276 equitable lien of creditors for^ 275 statute of limitation as to, 276 torts of constituent companies, 276 powers of, 273, 275, 270, 277 to dispose cf bonds, and stocks acquired by, 276 to exchange stock for stock of other companies, 276 to issue bonds to pay obligations of constituent companies, 209 to lease or make operating contracts, 276 to maintain and operate railroads purchased, 276 preferred stock, agreement may provide for, 270 records of, kept where, 277 status of company, upon, 269 stockholders' liability in, 269, 270 suits against, 277 proof of certain facts dispensed with, 279 taxation of, 277 by purchase of capital stock, 276 certificate of, tiled with secretary of state, 277 creditors, rights of, upon, 277 fees upon, 277 stock of new company issued for, 276 stockholders, rights of, not surrendering stock, 277 companies in state may enter into, when, 268, 276 competing companies cannot, 269 in case of consolidated companies, 270 what companies are " connected," 268, 269 with foreign companies, 269 liens held to be continuous, when, 270 de facto consolidation, when, 270 denial of, company estopped from, when, 270 effect of, 273, 275 upon removal of causes, 270 stockholders' liability, 269, 270 stock subscriptions, 269, 276 unpaid dissenting stockholders, 273 laws as to, apply to, — automatic package carrier companies, 323 electric light, etc., companies, 43, 40, 323 gas companies, 43, 40 inclined plane railroad companies, 53 natural gas companies, 43, 40 street, electric, etc., railroad companies, 53, 308 manufacturing, mining, and refining companies, 568 Ohio River bridge companies, 347 safe deposit and trust companies with savings and loan associations, when, 510 ship canal companies, 312 telegi'apli and telephone companies, 323 turnpike and plank road companies, 339 laws of state under which made, need not be proved, when, 279 power of state to impose conditions, 269 takes effect, when, 273, 275 Contracts, — copies of certain to be furnished commissioner of railroads, 29 for use of Oliio River bridge by, authorized, 347 Corporate franchises of. { See " Franchise " below. ) Creditors of, — amount due, names of; petition of receiver for sale of road must give, 290 rights of — in qase of sale of road by receiver, 290, 291 to vote for directors, 202 Debts of — limitation upon amount of, 200 re-adjustment of, may be made when, 285 agreement of mortgagees, creditors, stockholders as to. 2S5 filed with secretary of state, 285 may be between each interest and the company, 286 notice of, 285 parties in interest may sign, when, 285 rights of parties not signinfj, 286 statute of limitations as to, 286 INDEX. 851 (References are to pages.) H-.ULROAD COMPANIES — Continued, unfunded,^ bonds for paying, etc., 196, 209 in ease of certain narrow gauge roads, 199 capital stock may be increased to pay, 208 Definition of, includes what, 77 Directors of, — classification of, — meeting for, 202, 203 vote necessaiy, 202, 203 qualifications of voters, 203 when bondholders or creditors have right to vote, 203 duties adid powers of — as to appointment or election of treasurer, vice-president, etc., 202 certificate of — change of counties in which road located, 181 consti'uction of branch roads, 182 location of termini of road in county on state line, 178 change of route, etc., 178, 180, 181 classification of directors, 202 consolidation of companies, 271 extension of lines, change of termini, etc., 208 incorporation of union depot companies, 313 increase of capital stock, 208 sale, mortgage, etc., of bonds, notes, etc., 201, 211 election of — upon consolidation, 275, 277 upon re-organization, 281 when classified, 202, 203 liability of, for negligence, mismanagement, etc., 211 exonerated from, how, 211 names of, statement of required, 29 number of, 202 consolidation agreement must give, 271 omission of, effect and cure, 271, 273, 274 increase or decrease of: vote necessary for, 202 of re-organized companies, 281 protest of, against acts of board, 211 effect of, 211 publication and record of, 211 ■ purchase by, of stocks, bonds, etc., below par, — from third persons, 211 is void when, 211 mortgage securing such bonds void, when, 211 return of amount paid, when, 211 residence, post-oflBee address, etc., — in case of consolidated companies, 277 consolidation agreement must give, 271 omissions of, effect and cure, 271, 273 in case of re-organized companies, 281 statement as to required, 29 term of office of — of re-organized companies, 281 when classified, 202, 203 vacancies in board, how filled, 202 Dissolution, etc., of, — causes of — failure to maintain telegraph or telephone lines, 240 companies may dissolve, when, 242 meeting for: notice of, vote required, 242 Dividends, — bondholders of re-organized companies having right to vote not entitled to, 282 stock dividends, holder of convertible bonds not entitled to, when, 208 Donations, etc., to, may accept, 177 Duties of — attorney-general may enforce when, 194 upon purchase of connecting roads, 204 Entertainments, power to aid, 177 Kxcise tax on: amount, levying of, collection, etc., of, 78, 80 failure to pay, 80 exempted from provisions of " Willis Law," 20 tangible property not exempt from taxation, 80 Execution against, — bonds of, undelivered, are not subject to. 199 effect on, of mortgage upon personal property of, 199 injunction against sale of portion oif property upon, 199 852 INDEX. (References are to pages.) RAILROAD COMPANIES — Continued. refusal of sherifl to levy on; damages, 199 remedy of judgment creditor, 199 p;xpenses of olliee of commissioner of railroads borne by, 26 •assessment and payment of, 26 Forbidden to transact business with express, insurance, telegraph and telephone com- panies, when, 83 Foreign companies, — do not become domestic companies by leasing road, 285 may exercise powers, etc., in state, when, 284 may sue and be sued same as domestic, when, 285 mortgages, etc., upon property of, operate same as domestie, 285 part of road in state subject to regulations of law, 285 taxation of, 285 power to appropriate property, 285 provisions as to re-organization, apply to, 285 section 148e does not apply to, 11 Franchises of, — corporate, purchaser of railroad, may purchase when, 289 consent of stockholders to, 289 conveyance of, 290 effect of provisions as to is a new charter, 290 stockholders' liability, 290 which may be amended or repealed, 290 rights of stockholder of old company in new, 290 forfeiture of, for failure to maintain principal office, 211 mortgage or pledge of, to secure bonds, 209 . in ease of consolidated companies, 210 ' re-organized companies, 283 sale of, 289 at judicial sale, 290, 291 transfer of, upon re-organization, 232 upon consolidation, 275 Garnishment ag-ainst. (See Attachment.) ' to enforce execution, 585 aifidavit for, 585 eifect of, 585 notice to garnishee, 585 General agent of, storage or warehouse receipts countersigned by, 267 Income of — pledge of, to secure bonds, notes, etc., 200, 209 in case of consolidated companies, 210 includes what; diversion of, 200 Incorporation of purchasers at judicial sale, 291 transcript of decree of confirmation filed with secretary of state, 291 In hands of receivers. (See " Jteceiver of" below.) Judgment against, in state courts, lien of, includes what, 198 Liability of, — for failure — of engineer to comply with provisions as to crossings over railroads, 227 to erect, etc., inter-locking fixtures ordered. 25 sign boards at crossings, 216 safety devices, etc., at highway crossings, 22, 23 cities of 1st class, 2nd class, 1st, 2nd, 3rd and 4th grades, 23 in cities of 2nd class 3rd grade ( b ) , 23 to make and publish rules as to crossings over railroads, 226 repairs ordered by commissioner of railroads, 21 to ring bells or blow whistle at crossings, 227 to stop passenger trains at certain stations, 213 for fires. (See also "Right of iixty" and "Rolling stock," under Ra-Ilroads.) action to enforce, — appeal or error in, 247 attorneys' fees as part of costs, 247 brought where, 245 evidence in, 245, 240 identity of defendant,, proof of, 245 justice of peace has no jurisdiction, 240 measure of, 246 negligence — inferred from fire caused bv sparks, 245 rule as to, 245, 246 pleadings in, 246 whcTi property was insured, 246 application of provisions as to, to prior existing companies, 246 INDEX. 853 (References are to pages.) RAILKOAD COMPANIES — Continued. caused by operation of road, originating on its lands, 245 caused by sparks from engines, originating on adjacent lands, 246 for misconduct of passenger conductor, provisions as to arrest and ejectman of pas- senger not to effect, 294 for non-compliance with provisions at> to unclaimed freight, etc., 88 for transacting business for or with express, insurance, telegraph or telephone com- panies while their taxes are unpaid, 88 for violating provisions as lo — -construction of bridge over street, 228 eniploymeni of intoxicated engineers, etc., 249 hours of service of certain employees, 249 qualifications of conductors, engineers, flagmen, etc., 248 report to, 25, 28, 30, 79 Managing agent, chief officer in state. ( See " Officers " below. ) lules as to crossings over railroads made and published by, 220 summons may be served upon, when, 583 ! who is, or is not, 582, 533 Mortgages, deeds of trust, etc., to secure bonds, etc., 196, 200, 209 [' claim for money advanced to pay interest, taxes, etc., not superior to, 197 conditions in, effect upon bonds, 197 effect of — of sale of bonds, etc., to directors below par, on, 211 foreclosure of, action for, — by bondholders, 198, 199 holders of non-negotiable coupons cannot maintain, 199 in federal courts, 198 effect of prior judgment in state courts, 198 sale under — court may lix minimum price, 285 may be without appraisement, 285 of part of road to pay interest, 198 form of, may be what, 200 in case of consolidated companies, 209, 210 foreign companies in this state, 285 purchasers at judicial sale, etc., 292 re-organized companies, 283 second mortgage bonds of certain narrow gauge ixiads, 199 lease subsequent to, effect of, 196, 197 lien of, — effect of change of location or termini on, 180 extension of lines upon, 208 from what date, 200 in ease of reorganized companies, — postponed to liens for labor, damages, supplies, etc., 283 assignment of claims, effect of, 283 burden of proof to establish, on claimant, 283 necessary parties to original judgment, 283 priority of other liens, 84, 85, 200 power of mortgagee to take possession, 199 record of, 200 rolling stock, extra territorial force of mortgage on, 197 vendor retaining legal title, notice to mortgagees, 197 vote of stockholders necessary to, 196, 209 in case of certain narrow gauge roads, 199 consolidated companies, 209 what included in, — after acquired property, when, 196, 197 corporate franchises not, 196 personal property may be, 200 iea.1 estate may be, 200 not used in operating road not included, when, 196 scrap or cast off articles are, when, 197 Name of — of consolidated company, agreement must give, 271 of re-organized c-onipany, — ^certificate of re-organization must give, 281 meeting for re-organization determines, 281 purchasers at judicial sale, etc., nxay assume a name, 291, 292 Notice to — as to d.angerous conditions, repairs, etc., 21 as to safety devices at highway crossings, 21 in cities of 2nd class, 3rd grade (b), 23 Officers of, — acts of, when ineligible to position, are null and void. 212 consolidation agreements must give, of new company, 271 854 INDEX. (References are to pages.) RAILROAD COMPANIES — Continued. election of, upon consolidation, 275 examination of, — by state board of appraisers and assessors, 79 by board of appraisers of railroads, 66 liability of, for disobeying orders of commissioner of railroads, 22 name, residence, etc., of, — consolidation agreements to give, of new company, 271 omission, effect and cure of, 271, 273, 274 statement of, required, 29 number of, of consolidated companies, — agreements must give, 271 omission of, effect and cure, 271, 273, 274 reports — made, filed, etc., by, when, 26, 66, 77 who not eligible to election or appointment as, 212 penalty for acting as, 212 Offices of, power to construct, maintain, etc., 176 i'enalties against. (See "Liabilities" above.) collected by civil action or indictment, when, 30 moneys collected for violations of railroad laws paid into state treasury, 27 Personal property, includes what, for taxation, 66 I'oliee po'wers, are subject to, 225 Powers of (see Common Carrier Companies), 176 exercised outside of state, when, 284 foreign companies may exercise in state, when, 284 in adjoining- states, 182 in case of purchasers at judicial sales, etc., 201, 292 to appropriate property, 183 to borrow money, 200, 209 to do toll bridge business, 196 to purchase or sell road. (See Railroads.) upon purchase of connecting roads, 204 President. ( See " Officers " above. ) execution of deeds, etc., to real estate, 186 ■ in case of roadbed and right of way, 287 is ex officio director of union depot companies, when, 313 office of, to be where, 211 service of summons upon, in actions before justice, 623 storage or warehouse receipts signed by, 267 Principal office of, — change of, 211 in case of consolidated companies, 277 mining companies owning railroad, 211 notice of, 211, 277 establishment and location of, 211 in case of consolidated companies, 277 notice of, 211, 277 failure to maintain, forfeiture of franchise for, 211 offices of president, secretary and treasurer kept at, 211 records of proceedings of company to be kept at, 211 Promissory notes of, — amount and face value of: limitation on, 200 interest on, 200 may be issued for borrowed money, 200 sale of, to directors below par void, 211 secured how, 200 Property of — mortgage of. (See " Mortgage" above.) permitting, etc., animals to trespass upon, 638 subject to appropriation by other companies, ISO to police regulations, 186, 225 unlawful meddling with, removing, injuring, etc., 630 upon consolidation, 275 Railroads of. (See Railkoad.s.) Real estate of. (See Real Estate.) conveyances of, — corporate seal, necessity, etc., 186 covenants of title, construed, 188 construction of, for right of way, 188 execution of, by president, 180, 187 in case of sale of roadbed, right of way, etc., 287 held in escrow, 188 INDEX. 855 (References are to pages.) RAILROAD COMPANIES — Continued. must contain what, when of roadbed, right of way, etc., 287 by purchasers at judicial sale, 291, 292 copy filed with secretary of state: effect, 292 record of, 292 by receiver, at judicial sale, 291 mortgages of. (See " Mortgugt" above.) powers as to, 186 to acquire — by dedication, 187 by purchase or gift, 186 conveyances by gift, void when, 186, 187 in case of company selling, etc., interest in road held in common, 280 limitatiiDns upon, 186 notice to subsequent purchasers, 187 unautixorized purchase, effect of, 186 to hold, quo warranto lies to test, when, 629 to purchase, etc., for altering or abolishing highway crossings, 230 for materials, 177, 186 street assessments upon, 188 subscriptions to stock payable in, 188 taxed as personal property, when, 66 upon consolidation, 275 Receivers of. (See Receivers.) actions against, — brought where, 289 service of process in, 289, 578, 579 may be upon whom, 280, 578, 579 must be made where, 289, 578, 579 actions by, — for sale of road, franchise, etc., when company insolvent, 290 is proper party to restrain ditch proceedings when, 288 collection of taxes from, 289 foreign, right of, to sue in Ohio, 289 funds in hands of, — application of: order of priority, 289 as to state taxes, 289 deposited where, 289 judgments against receiver, lien against, 289 is not agent of company, 289 judgment against, satisfied how, 289 judgment against company while in hands of, effect of, 288 liability of, — for negligence, 289 for non-compliance with ordei-s of board of appraisers, 06 on judgment is in trust capacity, not individually, 289 mandamus will not lie against, when, 590 may sue and be sued without leave of court, when, 288 effect, as to U. S. courts, 288 \evj and sale without leave of court not authorized, 288 must be resident of state, 128, 288 non-resident, appointment and powers of, of, 289 right of, to aljrogate lease or contract, 205 sale of road by, traffic agreement not included, 205 Records of proceedings of, — kept where, 211 in case of consolidated companies, 277 stockholders may inspect, 211 Regulations of, — companies may make what, 293 railroad police to enforce, 293 Re-organization of under proceedings to sell, etc., — agreement for, — may be made w)ien, 280 consent of craditors and stockholders to, 280 when bonds or stocks held in fiduciary capacity, who consents, 286 copy must be filed in court, 281 debts for repairs and running ex])enses to be paid how, 281 bondholders of new company may vote, when, 282 certificate as to — effect of as evidence, 281 filed with secretary of state, 281 must show what, 281 judgment to be rendered, 280 lien of; upon what, 281 sale of property, etc., to tmstees under, 281 856 INDEX. (References are to pages.) , KAILROAD COMPANIES — Continued. liability of new company for debts, etc., of old, 282 meeting for. after sale to trustees, 281 notice of, 281 trustees act as judges of election at, 281 votes and voters at, 281 , what must be done at, 281 powers of new company, 282 to adjust, etc., claims against old company, 282 to issue bonds and secure same, etc., 282 to issue capital stock, 282 property transferred to new company by trustees, 282 what held in trust, 282 provisions as to, apply to what companies, 285 rights of creditors and stockholders upon, 281, 282 Reports, statements, etc., — to board of appraisers of railroads, — failure to make: penalty, 66 requirements as to : statement of property, etc., 66 to commissioner of railroads, — amendment, corrections, etc., of, 26, 28 blank forms for, commissioner to furnish, 25, 28, 255 excuse for not conforming to, 29 duties and powers of officers as to, 25, 26, 255, 258 failure to make: penalties, 26, 28, 30, 257 must show what as to, — assets., liabilities, capital stock, etc., 25, 26, 27, 28 accidents, casualties, etc., 28, 29 automatic couplers, air brakes, etc., 255, 257 officers, directors — name, address, etc., 29 road, business, operation, etc., 27, 28 stockliolders, 26 to state auditor, — blanks for, auditor prepares and furnishes, 78 duties and powers of officers, as to, 77 failure or refusal to make, 79 must show what as to, — character and nature of company, 77 gross receipts, 78 name of company, 77 officers — -name, address, etc., 77 organization of, laws and state of, 77 principal office, location of, 77 Reserve or contingent fund, to be valued for taxation, 66 Secretary of. (See "Officers" above.) office of, to be where, 211 Securities of. (See "Bonds," "Promissory notes" above.) Service of process on. (See also Service op Pbocess), 582 as co-defendant, 580 foreign company — provisions cumulative, 582, 583 on traveling solicitor not good, 582, 583 may be — in other counties when, 580 upon whom, 582, 583 agent, officer, etc., of lessee and lessor companies, when, 207, 582 in actions before justice of peace, 623 section 6477 does not anply to, 624 return of — in action befoie justice of peace, 584 when made on ticket agent, 582 when in hands of receiver, 578, 579. 583 where unfinished roadbed is to be appropriated, 617 Sleeping car contracts of, 177 Stockholders of, — commissioners of railroads cannot be, 21 consent of — to change or abandonment of route, 178 to lease of road, 206 form of, 206 validity of, when obtained outside of meeting, 206 waiver of, what held as, 206 dissenting, — effect of consolidation, upon claims of, 276 INDEX. 857 (References are to pages.) RAILROAD COMPANIES — Continued. upon unpaid stock subscriptions of, 273 to lease, purchase, etc., of road, rights of, 206 compensation for his stock, 206 arbitration as to value, 206, 207 refusal to arbitrate, etc., 206, 207 notice of refusal to^ consent, 200 liability of, upon consolidation with foreign company, 270 may inspect records, etc., 211 meetings of, — regular — directors classified at, 202, 203 number of directors changed at: vote neeessaj-y, 202 to authorize aiding, leasing or purchase of roads, 206 notice of: vote necessary at, 206 to authorize consolidation, 271 notice of, and waiver: vote necessary, — by ballot, 271 to authorize construction of branch roads, 182 vote necessary, 182 to authorize extension or change of termini, 208 notice of: vote necessary, 208 to authorize sale of roadbed, i-ight of way, etc., 287 notice of: vote necessary, 287 to classify directors, 202, 203 notice of: vote necessary, 202, 203 to dissolve company, 242 notice of: vote necessary, 242 to elect directors and officers of consolidated company, 275 notice of, and waiver, 275 to increase capital stock, 208 notice of: vote necessary, 208 to issue bonds, mortgage property, etc., 196, 209 in ease of certain narrow gauge roads, 199 consolidated companies, 209 notice of; vote necessary, 196, 199, 209 name, address of, and shares owned, statements showing, 26 preferred, veto power given to, by consolidation agreement, 272 right of, to enforce operation of road upon consolidation, 260 vote of, what necessary. (See "Meetings of" above.) for rescission of lease, 204 voting agreement or pool, 205 Street railroad operated by, extension of, cannot be by condemnation, 52 cannot be under provisions as to street railways, 52 Superintendent of. ( See " Officers " above. ) rules as to crossings over railroads made, etc., by, 226 penalty for failure or neglect, 226 summons in action against receiver served on, when, 289 Surplus or undivided profit, to be valued for taxation, 66 Taxation of. (See State Board of Appraisees and Assessors: State Board of Equalization for Eaileoad: Taxation.) Traffic agreements between, 204 injunction to enforce, 205 not included in sale by receiver, 205 Treasurer of. ( See " Officers " above. ) appointment of, by directors, 202 office of, kept where, 211 Vice-president of — directors may elect from their number, 202 duties and powers of, 202 storage or warehouse receipts signed by, when, 267 Violation of laws by. (See "Liabilities" and "Penalties" above.) duties of commissioner of railroads as to, 25 RAILROAD CROSSINGS. At public highways, etc., — above or below grade, — by bridge, viaduct, etc., over railway, — control of streets, etc., not surrendered, 194 damages to abutting owners. 231, 234, 235 duty of conapany to maintain, when, 195 duty to employees as to. 235 enforcement of provisions as to. 235 height of, above tracks, 233, 234, 258 858 INDEX. (References are to pages.) KAILROAD CROSSINGS — Cantinued. in case of freight ways, 241 injunction against improper structure, 235 plans and specifications, filed with and approved by commissioner of rail- roads, 235 in case of freight ways, 241 powers of commissioner of railroads as to, 234, 235 repair and maintenance, 233 liability of municipality, street railroad and railroad for accidents, 194 power of company to close for repairs, 195 by bridge, viaduct, etc., over street, — low bridge — remedy for, 195 manner of construction, etc., 228 municipality may prohibit stopping of engines over, 228 use of, for switching, 228 repairs and maintenance when grade crossing abolished, 230, 231, 233 company's duty as to, 230, 231, 233 municipality's duty as to; tax fcr, 230, 231, 233 required in case of highways to public cemeteries from cities of 1st or 2nd class, 193 private cemeteries not included, 195 signals at; bell and whisUe, when, 226, 227, 228 municipalities may prohibit, 228 penalty for failing to give, 637 at grade, — abolishing, altering, etc. (See "above or ieloio grade" above.) iigreement as to, 229, 230 appropriation of property for, 230, 233 costs of, apportionment of, 230 between company and municipality, 233 two or more companies, 232 bonds for county's or municipality's share, 231, 233, 234 street railways to bear part of, when, 234 damages because of, 230, 231 municipalities may require, when, 231 ordinance or resolution to proceed with, 230 acceptance of, by lailroad, 230 enforcement of, against railroad, 231 filed, etc., in court of common pleas, 230 plans and specifications for — preparation of: requirements as to, 232 review, etc., of, by circuit court, 232 resolution as to — must show what, 229, 230 • notice of, to abutting property owners, 230 publication cf, 230 when on county line roads, 231 approaches to, — companies must build and maintain, 228, 229 failure to build and repair; penalty, 229 notice to companies as to, 228 grade of, 221— cattle guards to be maintained at, 216 company not entitled to compensation for, 221 exceptions as to, in towns and station yards, 221 liability for lack or insufficiency of, 216 penalty for failing to construct and maintain, 223 companies must guard during construction, 193 duty is personal: cannot be shifted, 193 companies must maintain safe and suflicient, 216, 228 failure to build or repair, 223, 229 notice to railroad as to, 228 "crossing" defined, 221, 228 diversion of highway at, authorized, 193 agreement or contract as to, 189 appropriation of land for, 195 damages for, not included in condemnation, 194 extent of power as to, 193 guarding highway during construction, 193 keeping highway, etc., in repair. 193 provisions apply only to country highways, 194 restoration of highway, 193, 194 INDEX. SdO (References are to pages.) KAILROAD CKOSSINGS — Continued. duty is personal to company, 193 liability for failure as to, 194 remedy for failure, etc., 194 court may prescribe what as to, 194 duty of persons using, 226 contributory negligence, 227 pro.ximate cause of injury, 227 flag-men, etc., at. (See "Watchman" below.) gates, safety devices, etc., at, 22, 23 arbitration as to in cities of 2nd class 3rd grade (b), 23 defective, 22 expenses of — when more than one railroad crosses, 23 duty of gateman as to, 22 of railroad to maintain, 22 in cities of 1st class, 1st and 2nd grades, 638 2nd class, 3rd grade (b), 23 municipalities cannot order, in absence of statute, 22 in cities, governed by section 3283, 189 obstruction of, — by trains, cars, etc., 577, 637 except in cities of 2nd class, 1st grade, 637 in cities of 1st class, 1st and 2nd grades, 2nd class, 3rd grade A, G37, 638 passenger trains discharginsj passengers excepted, when, 638 regular moving train, excepted when, 638 time limit as to, 577, 037, 638 conflicting right between companies, 038 power of railroad to make, 176 repairs, alterations, etc., of — agreements as to, 189, 230, 231 duty of company as to, 193 restoration of highway at — duty of company, 193 liability and remedy for failure, 194 rights of company and public at, 195 sidewalks at. railroads must build and maintain, when, 228 failure to build, etc., 229 notice to railroad as to, 228 signals at: bell, whistle, when, 22, 226, 227 not to be used in certain cities, 23 ordinances as to, in municipalities, 226, 227, 228 penalty for violating provisions as to, 227, 637 testimony as to: aflirmative, negative, 227 when highway crossed by bridge, 226, 227, 228 sign boards at, 215 omission of, efl'ect of, etc., 210 snow must be cleared from, 229 failure, not negligence per se, 229 penalty for non-compliance, 229 watchman, gateman, flagman, etc., at, 22 duty of, 22 power of municipalities as to, 227 cannot order in absence oif statute, 22 in cities of 1st class, 1st and 2nd grades, 638 2nd class, 3rd grade (b), 23 Over railroad, electric railroad, etc., — above or below grade, when, 224 contract to maintain, specific performance, 226 engines, trains, etc., using, — may cross without stopping, when, 23, 25, 224 must stop at, when, 224 penalty for non-compliance, 226, 637 precedence in crossing, 224 rules and regulations as to. to be made and published, 226 expense of constructing and maintaining, 224, 22,5 inter-locking system or fixtures for, 23, 224 approval, etc., of by commissioner of railroads, 24, 224 refusal to approve; proceedinijs upon, 224 expense of constructing, rpaintaining, operating. 24 penalty for failure to erect, etc.. when ordered, 22, 23, 25 petition for: hearing on: notice as to, etc., 24 order on, granting, 24 8»0 INDEX. (References are to pages.) RAILROAD CROSSINGS — Continued. iessee's duty as to maintaining, etc., 225 mode and manner of, court may decide, when, 224 negligence in operating, 226 penalties for interfering, obstructing laying tracks at, 242 for obstructing operation of road at, 242 Over railroad, etc. — right to cross track, — damag:es because of — consequential: measure of, 225 exclusive, none, 225 source of, 225 watchmen at; duties and expense of, 224, 225 Over street railway — expense: made how: renewal of, 50, 51 street cars must stop at, 306, 307 signal to cross, who to give, 306 Private crossings over railroads — agreements as to — breaches of, — measure of damages, 220 remedy for, 220, 222 effect of, 223 cattle guards at, 221 agreements as to, effect of, 223 cattle pass, — contract for, 224 use of culvert, water ways, etc., for, 224 land owner to maintain fences, etc., 224 company to construct and maintain, when, 216, 222 except in case of agreements, 223 where compensation has been made, 223 record of such eases, 223 gates, etc., at, 220 duty as to closing, 220 land owner may build when, 222 expense of, recovery of, 222 injunction against interfering with, 222 notice as to, 222 location of, 222 signals at: bells, whistles, when, 226 ordinances as to in municipalities, 226 penalty for violating provisions as to, 227 who entitled to; what determines, 222 EAILROAD POLICE. Appointment of, 292 Badge of — consists of what, 293 must be worn, when, 293 Commission of, 292 certified copy of, and oath recorded where, 293 Compensation of, paid by company, 293 Conductor of passenger train has police powers, 293 Liabilities of, 293 Oath of: indorsed on commission, 293 Powers of, 293 cease when: notice as to, 293 to enforce regulations of company, 293 Qualifications of, 292 Term of oflBce, 292 RAILROAD TRAINS. (See "Rolling stock" under Railroads.) Construction, conductor of, qualifications of, 247 Crossing bridge, highway or railroad crossings. (See "Bridges," under Railroads: Railroad Crossings.) Duties and powers of commissioner of railroads in certain cases, 21 Freight, — air brakes on, 255 conductor of, qualifications, 247 crew for, what required; penalty, 258 riding on — company may regulate, 264 by officers and guards of penitentiary, 265 physicians, when, 265 prisoners in charge of sheriff, when, 265 sheriff and deputies, when, 265 Passenger — conductor of, qualifications, 247 posting time of arrival, etc., of, 214 INDEX: 861 (References are to pages.) EAILKOAD TKAINS — Continued, penalty for failure, 214 stopping of — at certain places required, 213 power of company to regulate, 213 Shooting or throwing at, 636 Speed of, — in corporate limits — limitations upon, 46 municipalities may regulate by ordinance, 46 penalty for unlawful, 46 unlawful, is evidence of negligence, 46 Unlawful meddling with, injuring, etc., 636 REAL ESTATE. (See also under respective companies.) Appropriation of. (See Appeopeiation.) Conveyance of — by corporations — acknowledgment of — form for, 662. 663 stockholder may act as notary, ill authorization of, by directors, presumed when, 187 corporate seal, necessity and effect of. 111, 112 execution of, — authority of officer presumed. 111, 126 form for, 662 proof of, 111, 188 variance between grantor and signer, effect of, 111 witnesses, stockholders may act as. 111 to corporations — held in escrow, 188 "successors" not necessary when. 111 Entering upon. (See Appropriation.) Foreign corporations may hold, 14 " Lands " includes what in appropriation proceedings, 184 Of corporations. (See under respective companies.) necessary to its business, what is, 110 taxation of. ( See Taxation. ) returned as personalty when, 56 Powers of corporations as to — to deal in. (See Real Estate Companies.) at common law, 95 to mortgage, to secure notes, bonds, etc., 150 to purchase and hold, 103, 110 who may question, etc., 110 Stock subscriptions paid in, 116, 138 REAL ESTATE COMPANIES. Are corporations for profit, 95 Directors of, dut'-'s and powers of, upon expiration of charter, 93 Disposition of real estate u:>on exp-"ration of charter, 93, 94 action for sale of, etc., 93, 94 Expiration of charter, 93, 94 Limit on amount of land held, 95 RECEIVER. (See Dissolution of Corporation: ::1ailroad Companies.) Actions by — in other jurisdictions, when, 159 to collect stock subscriptions, 139, 141 to enforce judgment for stockholders' liability, 588 Appointment of — application or action for, — creditors are proper parties to, 589 for sole purpose of, cannot be maintained, 587 may be fraud justifying attachment, 586, 588 who entitled to make — contract creditor not, 588 directors not, when, 588 stockholders not, when, 587, 588 surety of insolvent company is, 588 courts, etc., will make when; what courts, 135, 587 after judgment — to carry into effect or enforce, 587 to preserve property pending appeal, 587 when execution returned unsatisfied and debtor refuses to apply property to satisfaction of judgment, 587 consent of company will not confer jurisdiction, 589 if voluntary liquidation is possible, 588 in actions between partners, joint owners, etc., 587 862 ran)Ex. (References are to pages.) KECEIVER — Continued. to enforce liability of directors, trustees, officers, stockholders, etc., 158, 162, 588 to foreclose mortgage, when necessity shown, 587 to subject property to claim of creditor, 587 to vacate fraudulent purchase of property, 587 where interest of party is probable and danger of loss, etc., is shown. 587 in case of dissolution, insolvency, forfeiture of corporate rights, etc., 587 insolvency proven, how, 589 propriety of making of insolvent company, 589 in cases where usages of equity sanction, 587 ground for — creditors pressing claims, is not, 588 fraud or misconduct of directors, in action by stockholder, 587, 588, 589 to Tun and continue business, 587, 588 in ancillary proceedings in another jurisdiction, who makes, 589 in ease of bond companies operating on lottery basis, 589 who eligible to; consent of parties, 590 attorney interested in action not, 590 directors or stockholders not, 590 must be resident of state in case of corporations, 128 party or person interested in action not, 590 safe deposit and trust companies, 514 without notice, when, 589 Bond of, 590 Corporations in hands of — action against, brought where, 579 while in hands of, 578 cannot sue, 532 effect of sale of property, on right to elect directors, 124 lien of prior attaching creditor of, 589 power of company over property, 589 service of process upon, 578, 579 title to property of, 589 Creditors in same jurisdiction with, cannot attach property, 586, 589 filing claim with, estops attaching property of foreign corporation, 580 Duty of — as to listing property for taxation, 55 as to statements to board of appraisers of railroads, 66 Examination of, by board of appraisers and assessors, — in case of electric light, gas, messenger or signal, natural gas, pipe line, railroad, street, suburban or interurban railroads, union depot, and water works companies, 79 equipment (R. R. ) and freight line companies, 73 express, telegraph, and telephone companies, 70, 79 sleeping car companies, 75 Funds in hands of, investment of, 590 consent of parties to, 591 Is not agent of corporation, 131, 589 Liability of — for negligence, 589 for taxes, 589 Mandamus will not lie against, when, 590 Oath of, 590 Pledge of stock in hands of, may sell when, 148 Powers of, 590 over property, real estate, etc., 590 to sell property, 590 to set aside — fraudulent coi^veyance, mortgage, etc., 590 judgments, 590 to sue in own name, 590 in name of company, 590 when a non-resident, 130, 590 T!Er] PROCAL PROVISIONS. (See Retaliatory Provisions.) RECORDS. (See Corporate Records.) REFEREE. Appointment and duties of — in action to enforce stockholders' liability. 163 upon petition for dissolution of corporation. 5(14 REFINING COMPANIES. Articles may provide for construction of railroad, etc., 568 Business of, carried on where, 568 Consolidation of — agreements for, 568, 271 INDFX. 863 (References are to pages.) UEPINIKG COMPANIES — Continued. adoption of, to be certified upon, 568, 271 effect ot. when perfected, 568, 273 filed with secretary of state, 568, 271 must . prescribe what, 568, 271 capital stock — amount, manner of converting, number and par value of shares, 568, 271 directors, number and residences of, 568, 271 name of, 568, 271 officers, names and residences, 568, 271 prior agreements confirmed, 568, 271 submitted to stockholders of each company, 568, 271 conveyance of franchises, rights, etc., to new company, 568 meeting of stockholders to authorize, 568, 271 notice of: waiver, etc., 568, 271 vote at, what necessary: by ballot, 568, 271 powers of new company, 568, 273 sections 3381, 3382, apply to, 568 takes effect when, 568, 273 Powers of — to acquire, hold, etc., real or personal property, 568 outside of state, 568 to acquire, hold, etc., stock in railroad and transportation companies, 568 consent of stockholders to, 568 to carry on business in or outside state, 568 to construct railroads, etc., when, 568 none to appropriate property for, 568 llEGULATIONS. (See By-Laws.) Adoption of — ^accomplished how, 136 corporations may adopt; necessity of, 135, 136 As to assertion of rights in court by members, 136 Change of, how made, 136, 137 form of provision for, 669, 672 Construction of, 136 Forms for — for companies for profit, 668, 670 for companies not for profit, 670-672 May provide what, 137 Must be reasonable, 136 Signing, effect of, 137 RE-INSURANCE. (See Insurance Companies.) RELIEF ASSOCIATIONS OF EMPLOYEES. (See Insurance Co.'s — Life: Railroads.) Fees for filing articles of incorporation, 9 RELIGIOUS ASSOCIATIONS, SOCIETIES, ETC Articles of incorporation of — fees for filing, 9 in case of consolidation, 490, 491 must be copied into book, 113 Association to hold donations, bequests, etc., 492 application of income, 492 principal to be permanent fund, 492 Cemetery, grounds of. (See also Cemetery Association: Schools, Colleges, etc.) location near dwelling house forbidden, when, 357 sale of, — excepted from power to sell real estate, 498 in municipalities, prohibiting interments, 488 petition for : notice of filing, etc., hearing and final decree upon, 488 proceeds of, applied how, 488 removal of dead, upon, 488 rights of lot owners, upon, 488 subdivision of, into lots, upon, 488 to townships in certain cases, 489 Certificate of incorporation of, — prima facie evidence of original issue of, 92 restoration of lost or destroyed, 92 effect of, upon former acts, 92 Church, property of — abandoned, unused, etc., sale of, 489 petition for, 489 costs upon, 489 final decree, upon, 489 864 INDEX. (References are to pages.) EELIGIOUS ASSOCIATIONS, SOCIETIES, ETC.— Continued, notice of filing, 489 trustees may file, 489 must act as a body, 489 proceeds from, disposition of, 489 extinct congregations, etc. — applied how, 493, 494 new congregation entitled to, when, 494 sale of, 494 petition for, 494 costs upon, 494 order of court upon, 494 parties to, 494 service of process, upon, 494 proceeds of, application and custody of, 494 title of purchaser, 494 trustees of endowment fund companies to take possession of, when, 493 held for use of, — conveyed to congregation or trustees, when, 490 rights of seceding members in, 489 what constitutes secession, 489 Church services, language of, changed, when, 488 Consolidation of societies of same denomination, — agreement for, 490 certified by clerk of first meeting becomes articles, 491 must be filed with secretary of state, 491 made by whom: must specify what, 490, 491 ratification of — by first meeting of new society, 491 by members of each society, 491 record of, certified to first meeting of new society, 490 effect of, 491 meeting for, 490, 491 officers of new society, 490, 491 powers and liabilities of new society, 491 property, etc., of societies passes to new society, 491 Consolidation or union of societies, denominations, etc. — transfer of property, upon, 492 petition for, 492 decree of court, upon, 492 must show what, 492 parties to^ 492 notice of filing, 492 Denominations, etc. ( See " Consolidation," above. ) right of congregation to withdraw from, 493 Endowment, etc., fund companies lor — articles of incorporation of — acknowledgment of, 493 certified copy of, evidence of corporate existence, 493 executed by whom, 493 filed with secretary of state, 493 must show what, 493 funds and property of, 493 character of, articles to give, 493 power of religious societies over, 493 power of trustees over, 493 uses of, articles must give, 493 trustees for, 492 election of, 492 names of first, articles must give, 493 number and qualifications of, 492, 493 powers of, 493 over other property of society or denomination, 493 over property of extinct congregations, 493 Incorporation, prima facie evidence of, 92 Injunction lies to prevent breach of trust, 107 Judgments against — none against unincorporated church, 493 property held in trust, etc., subject to, when, 490, 493 May hold stock in public hall, etc., company, when, 395 elect directors of, etc., when, 395 liability of, as stockholders, 395 Members of — powers of, 489 rights of seceding, 114, 489 INDEX. 865 (References are to pages.) KELIGI0U8 ASSOCIATIONS, SOCIETIES, ETC.— Continued, what constitutes secession, 489 rights of, to vote 114 who may be, 113 Mutual benefit, associations of. ( See Insurance Companies — Life. ) actions against; provisions of section 3630f do not apply, when, 393 examination of, by superintendent of insurance; provisions of section 3630d do not apply to, when, 393 ijiay become subject to, how, 393 foreign associations; provisions of section 3630e do not apply to, when, 393 not subject to sections 3630a to 3630f, 3631, when^ 393 may become subject to sections 3030a, 3630c, 3630d, how, 393 report to superintenaent of insurance — fees for filing, etc., .'593, 35 provisions of sections 3630a to 3630c do not apply, when, 393 may become subject to, how, 393 treasurer of — bond, required when, 393, 392 amount and conditions of, 393, 392 examined as to sufficiency, annually, 393, 392 filed with secretary of state, 393, 392 renewed when required by superintendent of insurance, 393, 392 receipts must be paid to, when, 393, 392 Name of — consolidation agreement must give, 490 Powers of — none to do banking business, 524 to lease theater, 113 Printing and publishing company of — articles of — executed by whom, 494 filed with secretary of state, 495 must show what, 494 expired companies may renew under provisions as to, 495 name of, articles must give, 494 trustees of, 494 acceptance filed with secretary of state, 494 election of, 494 number of; term, of office of, 494 Property of. (See "Cemeteries," "Church property," " Renl estate," herein.) certain local societies may transfer to parent society, 490 certificate as to, filed with secretary of state and county clerk, 490 held for use of — conflicting beneficiaries, 492 descends to trustees of society, when, 491 trustees may sue and be sued as to, 491 trustees for, appointed how, 491 subject to judgments for labor, materials, damages, etc., when, 493 trustees, etc., may transfer, etc., when, 499 Real estate of — conveyance, to trustees individually, effect, 493 majority controls use and occupation of, 114 members must consent to sale of, 130 sale, exchange, or incumbrance of — certain transfers, etc., validated, 499 petition for, 498 confirmation of sale under, 500 decree of court upon, 498, 500 must show what, 498 notice of pendency of, 500 parties to, 498, 499 service of process under, 499 purchase money mortgage, order of court unnecessary, 499 special laws empowering, void, 499 without authority of court invalid, 499 Trustees of — de facto, 493 number of; terms of office of, 113 powers of, 489 as to sale of church property, etc., 489 KELIGIOUS DENOMINATIONS. (See Religious Associations.) REMAINDER MAN. Rights of, as to appropriation of property, 184 REMOVAL OF CAaSES. Appropriation eases are not removable, 571 Citizenship for purpose of — extension of railroad into another state does not alter, 1R2 806 INDEX. (References are to pages.) REMOVAL OP CAUSES — Continued. in case of foreign corporations, 14 waiver of, right of, 14 Consolidation of railroads, effect of, 270 Foreign companies seeking — license of life insurance companies revoked for, 375 validity of such provisions, 376 REMOVAL OF DEAD BODIES. (See Corpse.) REORGANIZATION OF CORPORATIONS. Cannot be by special act, 2 REPEAL. Corporation laws are subject to, 2 " REPEATING." Not an offense at corporate elections, 124 REPLEVIN. By railroad to recover scrap metal, 241, 242 affidavit in, 242 REPORTS. (See under respective companies.) Corporations must make, 17, 18 failure to make, penalty; remission of, etc., 19 filed when, etc., 17, 18 form prescribed by secretary of state, 17, 18 must show what, 17, 18 in case of newly organized companies, 20 certain companies excepted, 20 Of various state officers. {See Commissioneb of Railboads, etc.: Inspectok of Building AND IiOAN Associations : State Board of Appraisers : Super- intendent or Insurance; Supervisor of Boxd axd Invest- ment Companies.) To attorney general, by farm laborer's associations, 565 county recorder, by companies limiting voting power of stockholders. 121 commissioner of railroads, etc. ( See Railroad Co.'s : Telegp^ph axd Telephone Co.'s.) secretary of state. (See Foreign Corporations.) state auditor. (See Electric Light Co.'s: Equipment (R. R. ) Co.'s: Express Co.'s: Freight Line Co.'s: Gas Co.'s: Messenger or Signal Co.'s : Natural Gas Co.'s : Pipe Ijne Co.'s : Safe Deposit and Trust Co.'s : Savings and Loan Association.s : Sleeping Car Co.'s : Street Railroad Co.'s: Telegraph and Telephone Co.'s: Water Works Co.'s.) stockholders. (See Stockholders.) superintendent of insurance. (See Insurance Companies, etc.) RES JUDICATA. As to corporate liability and liability of trustees, 165 In quo warranto proceedings, 628 RESCISSION. Of consolidation of companies made by sale of property, 111 Of stock subscriptions, 139, 140 RESERVE FUND. (See Insurance Co.'s: Railroad Co.'s.) RESIDENCE. (See Address: Corporate Domicile.) RETALIATORY PROVISIONS. As to expenses of examination, etc. — in ease of bond and investment companies, 521 building and loan associations, 560 fraternal beneficiary associations, 397 insurance companies, 32 life insurance (mutual aid) companies, 387 As to franchise or privilege tax on insurance companies, 57 As to doing business, by insurance companies, 35 in ease of life insurance (stipulated premium plan) companies, 405 RETURNS. (See Reports; Taxation.) REVISED STATUTES. Acceptance of provisions of, by corporations created prior to 1851, 91 fees for filing certified copy of, 9 RIGHT OF WAY. (See Railroads.) INDEX. 8G7 (References arc to pages.) RINK COilPANIES. Buildings, grounds, etc., of, public grounds used for, when, 569 Corporations not having capital stock — may elect directors, etc., when, 395, 569 may hold stock in, when, 395, 569 liability of, as stockholders, 395, 569 Where public grounds used for b''-'dings, etc., of, 569 articles may provide as to — number of shares of capital stock held by stockholders, 5G9 reversion of shares to company, 569 transfer of shares, 569 buildings, grounds, etc., of — control of, 569 trespassing upon, etc. — penalty, 569 directors or trustees of — agreement with municipal authorities as to appointment and number of, 569 compensation of; none, 569 municipal authorities may appoint certain, 569 may be, ex officio, 569 stockholders or members of, gain or profit not to be received by, 569 RIVER TRANSPORTATION COMPANIES. (See Transportation Companies.) ROAD BED. (See Railroads.) ROAD COMPANIES. (See Avenue Company: Tornpike and Plank Road Company.) ROADS, IMPROVED. (See Turnpike and Plank Road Company.) ROLLING MILL. Owner or operator of may construct freight ways, when, 240, 241 ROLLING STOCK. (See Equipment Companies: Railroads.) BOUND HOUSES. (See Railroads.) ROUTE. ( See Railroads : Street Railways.) SAFE DEPOSIT AND TRUST COMPANY. (See Insurance Co. 's — Other than Lite.) Administrator, may act as when, where, 513, 514 Agent under power, may act as when, where, 513, 514 Assignee, may act as, when and where, 513, 514 Bonds of, as trustees, etc., surety on, when, 512, 513 probate judge may require, when, 513 what is sufficient, 513 Jjurjflary insurance company may insure, 445 Capital stock of — amount paid in — before acting in trust capacity in certain cities, 513 before commencing business, 513 increase of, 513, 165, 166 assent of stockholders if preferred, 513, 166 certificate of, filed with secretary of state, 513, 166 in case of preferred stock, 513, 166 companies may make, when, 513, 165 consent of all subscribers if before organization, 513, 165 may be preferred or common, 513 meeting of stockholders for, 513, 165 directors must call, 513, 165 notice of time, place and object of, 513, 165 waiver of, 513, 165 sections 3262, 3263, apply to, 513 vote necessary for, 513, 165 invested how, 511, 513, 514 preferred stock — company may issue, 513, 166 sections 3262, 3263, apply to, 513 stockholders may agree to issue, 513, 166 transfers of, stockholders may determine rules as to, 513 Consolidation of savings and loan associations with. (See Savings and Loan Associa- tions.) Court papers, accounts, etc., by — officer duly authorized may sign and verify, 512 answers and examinations of, taken as for company, 512 Deposits with — company may decline to receive, 511, 512 may receive from whom, 511 868 INDEX. (References are to pages.) SAFE DEPOSIT AND TRUST COMPANY — Continued. courts may order, of funds paid into coiurt, 510 for safe keeping, powers as to, 510 what may be received, 510 Deposit with state treasurer — before acting in trust capacities, required in certain cities, 513 amount of: in what securities, 513, 514 exchange of securities, 514 income from, company may collect when, 514 purpose for which held, 514 Dividends — by-laws to provide as to, 512 none when reserve fund is depleted, 511, 512 payable to shareholders when, 512, 513 preferred stock may bear what, 513, 166 E.xaminatiou of — by state auditor, 512 appointment of expert for, 512 may be made, when, 512 by court, — answers of officer taken as for company, when, 512 as to any trust matters, 514 application, for, 514 appointment of examiners, 514 expense of, 514 reports as to, 514 court may make when, 512, 514 officers to attend and answer, 512 Guardian, may act as, when and where, 513, 514 cannot act as, of person, 513 Investments, loans, etc. — cannot be made to trustees, officers, employees, etc., 511 limitations as to amount of, etc., 511, 514 made in what, 511, 514 Organization of, notice of, to state auditor, 512 Powers of, 510, 511, 513, 514 Property and effects of, liable for defaults in trust capacity, 513 Property held in trust — accounts of, to be kept separate, 511 companies take and hold, 511 loan or investment of, in what, 511, 514 limitations as to, 514 security for, what is, 511 Real estate — may purchase, lease, etc., for own use, 510 take and hold in trust, 513 taken on execution, foreclosure, etc., to be sold, when, 511 Receiver, may act as, when and where, 514 Registering or transfer agent, power to act as, 510 Reports of, to state auditor — exemption from provisions of " Willis Law," 20 forms of, 509, 510 made when: as of what date, 509, 512 penalties for failure to make, 509 publication of, 509, 510, 512 reqiiirement as to: must show what, etc., 509, 510, 512 Reserve fund — amount reauired, 511 consists of what, 511, 512 depletion of, dividends not declared during, 511, 512 loans not made during, 511 Savings and loan associations in certain cities (Toledo, Columbus) may do business of, when, 514 Stockholders' liability — extent of, 512 Is security for faithful discharge of duties, 512 for default of company in trust capacities, 513 Trust department — accounts of trust property to be kept in, 511 companies must keep a separate, 511 defaults in — capital stock liable for. 513 property and effects, liable for, 51.3 stockholders' liability, liable for, 513 deposits in, what are, 511 INDEX. SCO (References are to pages.) SAFE DEPOSIT AND TRUST COMPANY — Continued, companies may declire to receive, 512 funds, investments, etc., in, security for trust funds, 511 not subject to other liabilities of company, 511, 512 Trustee under wiU, instruments, etc. — company act as, when and where, 512, 513, 514 limitations as to in certain cities, 513 may decline to act, 512 court may appoint, as, 512, 513 may order settlements when, 514 surety required on bonds given as, when, 512, 513 subject to same control as persons, 512 property held by, as, invested how, 512 held separate from general trust fund, when, 512 instructions as to, to be followed, 512 not liable to debts or obligations of company, 512 not to be mingled with capital or other property, 512 SAFETY DEVICES. (See Railroads: Railroad Crossings.) SALT COMPANIES. (See Mining Companies: Refining Companies.) SALT WELLS. Cemetery associations cannot appropriate land occupied by, 357 in cities of second class, third and fourth grades, 357 near cities of first class, first grade, 357 SALVAGE COMPANIES. Are companies not for profit, 436 By-laws, power to make, 437 Expenses of — amount fixed how, 437 assessment of, etc., upon fire insurance companies, 437 General corporation law governs, 437 Meetings — biennial, 437 agents, etc., of fire insurance companies vote at, 437 notice of, etc., 437 Objects and purposes of, 436 Officers, etc., of, election, powers, etc., 436, 437 Place of business of, 437 Powers of, 436, 437 subject to public authorities, 436 Reports to, fire insurance companies, etc., to make when, 437, 438 demand for ; failure to make, 438 must show what, 438 SANITARIUMS, HOSPITALS, ETC. Corporations may erect and maintain, 93 not liable for negligence of nurse, 165 objects and purposes of, 93 trustees for life, number of, 113 existing companies may accept provisions: notice, 113 SAVINGS AND LOAN ASSOCIATIONS. (See Building and Loan Associations.) Articles, submitted and certified by attorney general, 503 Capital stock of, — ampunt of — advertising amount greater than paid in, 506 in case of companies loaning on pledges of personal property in certain counties (Cuyahoga), 506 required in case of chattel mortgage, etc., companies in cities, first class, first and third grades, second class, first and second grades, 507 subscribed before commencing business, 503 in case of chatcel mortgage companies in cities, first class, first and third grades, second class, first and second grades, 507 increase of, stockholders entitled to pro rata share of, at par, 505 lien on, by-laws may provide for, 504 shares of, par value of, 503 subscriptions to, amount paid up before commencing business, 503 Ceasing to do business, distribution of assets upon, 507 Charters extended of certain companies, 508 are subject to amendment, repeal, etc., 508 Companies in certain cities (Columbus and Toledo) doing safe deposit and trust busi- ness, as to powers, etc. (See Safe Deposit and Trust Co.'s.) Consolidation of, with safe deposit and trust companies, when, 516 fees for filing agreement for in certain cases, 516 870 INDEX. (References are to pages.) SAVINGS AND LOAN ASSOCIATIONS — Continued, officers of new company, 516 powers, etc., of new company, 516 proceedings for, section 3381 governs, 516 pioperty of constituent companies, 516 rights of creditors, 516 Constitutionality of provisions as u>, 503 Deposits in — by minors, married women, eic, 504 certificates of — liability for fraudulent, 505 power to issue 505 character of, 471, 472 i interest on, 505 surplus fund required before paying, 508 received from whom, 573 regulations as to, — change of, 504 directors may make, 504 printed in pass books, 504 taxes on, 504 Depositors in, returns of, for taxation, 63 Directors of — duties and powers of, 504 liability for waste, mismanagement, etc., 503 Dividends, payment of, 507 limitations as to, 507 surplus fund required before, 508 Foreign, section 148c does not apply to, 11 Funds of, invested how, 505 limitations as to, 505 Interest on loans, discounts, etc., 505, 506 in case of certain associations under former laws, 508 on borrowed money, in cities of first class, first and third grades, second class, first and second grades, 507 deposits, 505 loans, discounts, etc., 505, 506 pledges of personal property in certain counties (Cuyahoga), 506 usurious — enforcement of, 506 contracts void for, how far, 506 penalties for, 506 Investments of. ( See also " Deposits of funds," above. ) character of in case of certain companies under former laws, 508 Loans by — expenses of making, paid by borrower, 505 interest on, 505, 506 limitations as to amount of, 505, 507 to officers and directors, 504 officers and directors not to be surety on, 504 on chattel mortgage in cities of first class, first and third grades, second class, first and second grades, 506 amount of, limitations as to, 507 expenses; interest, 507 notice as to charter powers as to, 507 on pledge of personal property in certain counties (Cuyahoga), 506 amount of, limitations as to, 506 charter- provisions as to, printed in pass books, 506 notice as to same, 506 expenses; interest on, 506 subject to laws and ordinances as to pawn brokers, 506 unredeemed pledges sold when, 506 application of proceeds, 506 Officers of — bonds of; approval, increase of, 504 Organization of — meeting for, 504 incorporators appoint time and place of, 504 notice of, 504 notice of, to state auditor, 507 in case of company doing safe deposit and trust business, 515, 5]2 Powers of, 505, 508 in case of certain companies created under former statutes. 508 may exercise, of safe deposit and trust companies in certain cities (Columbus and Toledo), 514, 515 Provisions as to — acceptance of, by certain companies, 508 INDEX. 871 (References are to pages.) SAVINGS AND LOAN ASSOCIATIONS — Continued, evidence as to, 508 filed and recorded by secretary of state, 508 do not apply to certain companies, 508 Real estate — loans on. (See "Loans," above.) power to acquire, hold, etc., 505 for purposes of own business, 508 purchased to secure debts, held how long, 505 Reports, to state auditor, 507 building and loan associations excepted, 509 examination and investigation of, 507 compensation of examiners, who pays 508 forms of, 509, 510 made when, as of what date, 507, 508, 509, 510 must show what, 507, 509, 510 penalties for failing to make, 509 publication of: cost of, etc., 507, 508, 509, 510 Safe deposit and trust business, — companies in certain cities (Columbus, Toledo) may do, 514, 515 certificate as to, filed with secretary of state, 515 meeting for authorizing, 515 powers, regulations, etc. (See Safe Deposit and Tkust Companies.) vote necessary for, 515 Secretary and treasurer may be same person, 504 Surplus or undivided profits of — amount before paying dividends, etc., 508 who lists for taxation, in companies having no capital stock, 55 SAVINGS BANKS. (See Savings and Loan Associations.) SCHOOLS, COLLEGES, ETC. (See Charitable Trust Companies.) Administrations of, rights as to may be conferred on ecclesiastical body of denomination, when, 477, 478 Agents, officers, etc., of — appointment and removal of, when, by whom, etc., 471 in case of institutions under patronage of religious bodies, 475 compensation of, trustees fix, 471 Agriculture, what lands, etc., may be held for teaching, 472 Alumni of. (See " Trustees" and " Visitors" below.) Anatomy, teaching in, bodies for (see Corpse), 481, 482 Articles of incorporation of, — amendment of, — for change of name, object, etc., 481 certified copy of, filed with secretary of state, 481 fees for, 481 effect of, 481 trustees may make, 481 of stock companies to permit co-education and change of name, 480 copy of articles to accompany, when, 480 effect of, 481 filed with secretary of state, 480 fees for, 481 meeting of stockholders for: notice of, etc., 480 petition for, 480 may grant right to appoint trustees, etc., to religious sect or denomination, 477 may show — religious denomination with which connected, 477 rights and powers granted ecclesiastical body, 477 Bequests, devises, gifts, etc., in trust, 471, 482 Bonds of, trustees may issue, when, 473 secured how; on what, 473 By-laws, — as to election of trustees by alumni when not under patronage of four or more religious bodies, 484 trustees may enact what, 471 Capital stock, changed into scholarships, when, 472 certificate of, filed with secretary of state, 472, 166 consent of all subscribers necessary, before organization, 472, 165 meeting of stockholders for, 472, 165 notice of, etc., 472, 165 section 3262 applies to, 472 vote necessary for, 472, 165 Cemetery, grounds of. (See also Cemetery Association; Religious Association.) sale of, in municipalities prohibiting interments, 488 872 INDEX. (Keferences are to pages.) SCHOOLS, COLLEGES, ETC.— Continued. petition for: notice of filing, etc., 488 bearing and final decree, 488 proceeds of, applied how, 488 removal of bodies, upon, 488 rights of lot-owners upon, 488 subdivision of, into lots, 488 Co-edvieation in — amendment of articles for, 480 Degrees, honors, etc. — conferred by trustees, when, 471 conferring without regard to merit, ouster for, 471 faculty must recommend, 471 what schools may grant, 471 Dissolution, or liquidation, — trustees of stock comp.'inies may make, when, 480 Endowment funds, corporations, — directors of, number and election, 477 members in arrears — may not vote for, 477 not eligible to election as, 477 may divert funds, how and when, 473 notice of meeting to elect directors, adopt by-laws, etc., 477 trustees, c-ontrol funds of, 477 may receive subscriptions for membership, 476 voting power of members, 477 Faculty of, etc., — appointment and removal of, when, by whom, etc., 471 in case of certain institutions under patronage of religious bodies, 475 in case of certain institutions where alumni elect trustees, 476, 475 compensation of, trustees fix, 471 degiees, iionors, etc., recommended by, 471 discipline and government, enforced by, 472 who constitutes, 472 Location of, change of, 472, 480 copy of proceedings of meeting for, filed with secretary of statCi 473 notice of, must show what, 473 publication of, 473, 165 sale of property upon, etc., 472 trustees cr stockholders make, when, 472, 480 vote necessary for, 472 Mechanics, shops and machinery for teaching, 472 Military academies. (See Military Academies.) Name, objects, etc., of change of, — amendment of charter for purpose -of, 480, 481 certified copy of, to be filed with secretary of state, 481 m case of certain stock companies, 480 effect of, 481 in case of certain stock companies, 481 meeting of stockholders of certain stock companies for, 480 notice of, 480 petition for, in case of certain stock companies, 480 trustees may make, 481 Patronizing religious bodies, conferences, etc., — appointment, etc., of trustees and visitors by. (See " Trustees ", " Visitors" below.) conferences, synods, etc., may become, how, 475 representation of, to cease, when, 475 President of. ( See " Trustees " below. ) Private corporations, when, 472 Property of — amount required, 471 held in trust, what may be, 471 cannot be diverted from purpose of donor, 473 increase of, authorized; amount of, 473 statement of amount and purpose recorded, 473 filed with secretary of state, 474 is private property within constitution, 473 mortgage of, for improvements, 473 sale and distribution of, upon dissolution, 480 notice of: vote as to, 480 sale and reinvestment of, 473 in case of change of loca^tion, 472 schedule of, to be filed with secretai-y of state, 471 to be verified by trustees, 471 INDEX. 873 (References aie to pages.) SCHOOLS, COLLEGES, ETC.— Continued. what may be held lor teaching agriculture and mechanics, 472 Scholarships. ( See " Capital stock " above. ) subscriptions for, power to receive, 472 Stockholders ofj — assessments against, to pay debts, etc., 478, 479 amount of: fixed how, 479 meeting to determine; notice of, 479 statement of assets and liabilities to be submitted, 479 enforcement of, 479 Students, government and discipline of, — faculty to enforce rules, etc., 472 may suspend and expel, when, 472 what sufficient hearing, 472 trustees enact rules, etc., for, 472 Subscriptions for, enforcement of, 471 Trustees of, — appointment and election of, — at large by trustees, — in certain institutions under patronage of four or more religious bodies, 474 in certain institutions whose alumni elect, 474 by alumni, — in certain institutions, 471^ board of triistees, juager of election, 470 conduct of election for, 476 returns and certificate of election, 476 in certain institutions not under patronage of four or more religious bodies, 484 in certain institutions under patronage of four or more religious bodies, 475, 476 by ecclesiastical bodies of religious denominations, 477, 478 in case of institutions under patronage of four or more religious bodies, 474 board of, — in case of institutions having alumni representation, 476 resolution adopting provisions as to, 475 in case of institutions under patronage of four or more religious bodies, 474, 476 lesolutions adopting provisions as to, 474, 475 classification of: — in ease of institutions, — not under patronage of four or more religious bodies, 484 under patronage of four or more religious bodies, 474 under patronage of one religious body, 478 voters may determine as to, 479, 480 file schedule of property, verified, \^hen, 471 hold donated property in trust, 471 number of — alumni may elect what, in certain institutions, 476 at large, elected by trustees, 474 in certain institutions — having alumni representation, 474, 4^6 under patronage of four or more religious bodies, 474 in case of certain institutions, — not under patronage of four or more religious bodies, 484 under patronage of — four or more religious bodies, 474 one religious body, 478 six or more religious bodies. 474 in case of educational, etc., corporations, 113 increase of, in certain institutions — having alumni representation, 474, 476 not under patronage of four or more religious bodies, 484 under patronage of four or more religious bodies, 474 under patronage of one religious body, 478 reduction of — in case of institution under patronage of six or more religious bodies, 475 when religious bodies cea.se to patronize, 475 president of college, etc., may be, ex offi,cio when, — in case of institutions — not under patronog-e of four or more religious bodies, 484 under patronage of four or more religious bodies, 474 under patronage of one religious body, 478 quorum, in case of institution — under patronage of four or more religious bodies, 475 under patronage of one religious body, 478 874 INDEX. (References are to pages.) SCHOOLS, COLLEGES, ETC.— Continued. term of office of — in case of educational, etc., corporations, 113 in case of institutions — not under patronage of four or more religioua bodies, 484 under patronage — of four or more religious bodies, 474 of one religious body, 478 ■of six or more religious bodies, 474 voters may determine as to to, 479 vacancies — governor may fill, when, 473 patronizing religious bodies may fill, when, 474 Visitation of, — alumni elect visitors in certain institutions, when, 476 conduct of election for, 476 board of trustees judges of election of, 476 returns and certificate of election, 476 number of, 476 women eligible, 476 patronizing religious bodies may appoint visitors, when, 475 appointment of, how authorized, 475 duties and powers of, 475 as to appointment and removal of oflicers, professors, etc., 475 attending meetings of trustees, 475, 476 states' powers as to, 472 SCHOOLS, COMMON. Fines go to, when, — in case of evading payment of tolls, 330 hindering persons traveling on highways or refusing to turn to right, etc., 334 refusal by insurance companies other than life to make reports, 425 under provisions as to quo warranto, 635 Proceeds of sale of unclaimed freight go to, when, 87 Penalties for violating provisions as to heating baggage, passenger, etc., cars go to, when, 239 SCIENTIFIC SOCIETIES. (See also Libbaey, Lecture, etc., Companies.) Powers of, as to, in public hall, etc., companies, — to elect directors, etc., 395 to hold stock in, 395 liability of, as stockholders, 395 to lease theater, 113 Trustees of, number of term of office of, 113 SCRIP CERTIFICATES. (See Capital Stock.) SEAL. Corporate. (See Corporate Seal.) Official. (See Fees.) SECRETARY. Of board of appraisers for railroa.ds. (See Board op Appraisers.) Of corporations. (See under respective companies.) appointment of, by directors or trustees, 125 bond of, form for regulations as to, 669 compensation of, 126 form for regulations as to, 669, 671 duties and powers of — forms for regulations as to, 668, 671 execution of mortgages, etc., by, 127 issuing and transferring stock, 127, 142. 143 election, etc., of, form for regulations as to, 668, 671 garnishee process in attachment before J. P. served on, 625 name and address of, reports to secretary of state to give, — in case of corporations for profit, 17 corporations not for profit, 19 foreign corporations, 18 services of, are not labor within § 6355, 127 summons may be served upon, when, .')82 in actions before justice of peace, 623 in case of indictment of corporation, 639 SECRETARY OF STATE. Certificates of, — as to filing reports and paying franchise tax. etc., 19 as to organization of f?'ee banking companies, 538 authorizing foreign corporations to do business, under § 148c, 10, 11 INDEX. 875 , (References are to pages.) SECRETARY OF STATE — Continued. appeal from decision as to, 11 hearing as to, company, entitled to, 11 must state wriat, 11 revocation of, 375 autliorizing foreign corporation to do business, under § 148d, 1'2 fees for, 13 must show what, 12 revocation of, 375 Charter or certificate of incorporation of religious society, restoration of; lost or destroyed, 92 Discretion of — as to filing amendments, to articles, 102, 103 as to — filing articles of incorporation, 04, 101 name of corporation, 101 Examiners of banks appointed by, — in case of banks existing in 1845, 526 free banking companies, 543 Fees of. (See Fees: Franchise, Excise ob Privilege Tax.) as to amendment of articles, 9, 103 incorporated companies, 9 for acting as agent of foreign corporation for service of process, 13 certificate — of authority for foreign corporation to do business, 13 of abandonment of charter, dissolution, surrender of charter, ceasing busi- ness, etc., 20 filing or rec-ording contracts, etc., of conditional sales to railroads, 267 generally, 9, 10 paid into state treasury, 10 in case of acting as agent of foreign corporation for service of process, 13 certificates of authority of foreign corporation to do business, 13 franchise, excise, or privilege tax, 19 in case of foreign corporations, 11 Forms for articles of incorporation prescribed by, 96 Hearings by as to franchise tax, 20 Reports and returns to;, — corporations must make, when, 17, 19 certain companies excepted, 20 in case of foreign corporations, 18 under section 148c, 10 state auditor to make, 81 Service of process on, as agent of foreign corporation, 13 What filed with, recorded by, etc., — acceptance of provisions governing savings and loan associations, 508 amendment of articles, 102 articles of incorporation, 100 in case of consolidated benevolent and charitable societies, 497 consolidated hydraulic companies, 355 consolidated religious societies, 491 consolidated railroad companies, 271 life insurance companies, 364 printing and publishing houses of religious societies, 495 • religious endowment fund companies, 493 union depot companies, 313 where — certified copy of stockholders' meeting for division of turnpike or plank road companies is filed as, 343 copy of judicial sale, confirmation, and conveyance of turnpike or plank road comf/any is filed as, 343 bond and oath of commissioners of railroads and telegraphs, 21 certificates, — as to capital stock, — increase of, etc., 166 in case of life insurance companies, 366 railroad companies, 210 reduction of, etc., 167 subscription to, 118 as to change of counties in which route, etc., of railroad is located, 180, 181 in ease of ship canal companies, 309. 180, 181 as to extension of line, change of termini, etc., of railroads, etc., 208 location of termini of railroads when in county on state line, 178 of ship canal companies, 309. 178 organization of free banking companies, 538 876 INDEX. (References are to pages.) SECRETARY OF STATE — Continued. purchase or surrender of stock of leased railroad to consolidated com- pany, 277 transfer of property of certain local church societies to parent society, 490 authorizing construction of branch railroads, 182 curing defects in consolidation agreements of railroads, 273, 274 of corporations filed with to be recorded, 100 charter of foreign corporations, sworn copy of, under § 148d, 12 consolidation agreements. (See "Articles of incorporation" above.) contracts, etc., of conditional sales to railroads, 260 lesolution showing change of route or termini of railroads, 180 of ship canal companies, 309, 180 SECRET SOCIETIES. (See Benevolent Societies.) Articles of, — - fees for filing, 9 must be copied in book, 113 Members of — rights of, to vote, 113 who may be, 113 Mutual benefit associations. ( See " Assessment companies," " Fraternal beneficial asso- ciations," " Mutual benefit societies " under Insurance Com- panies — Lite. See also Religious Societies.) not subject to §§ 3630a to 3630f, 3631, when, 393 Trustees of lodges, societies, or bodies of, 113 SERVICE DIVIDEND COMPANIES. Foreign — deposit with state treasurer, before doing business, 12 sections 148c, 148d, do not apply to, 11, 12 SERVICE OF PROCESS. ( See also under respective companies. ) Agent of foreign corporations for, 12, 13 in suits in U. S. courts, 16 must be by actual appointment or representation, 16 secretary of state may act as, when, 13 fees for so doing, 13 By certified copy, in case of action for re-issuing lost or destroyed stock certificates, 146 By mail, 16 By publication, when, 584 in case of action, — by corporation to correct records, etc., 603 where relief is to exclude defendant from interest in real or personal property. 584 in case of appropriation of property, 584, 608 in case of corporauions failing to elect ofiicers, and having no place of business, etc., 584 in ease of foreign corporations, 584 By summons, how, on whom, where, etc., — in actions before justice of peace, 623 in actions to correct records, 603 to sell property of expired real estate corporation, 94 in appropriation proceedings, 607, 608, 609 alias writs, 608 • in case of railroads appropriating school lands, 615 in case of corporations generally, 582 as co-defendants, 580 defunct, 583 in hands of receiver, 578, 579, 583 under indictment, 638, 639 in ease of foreign corporations, 583 dissolved, 584 in actions before justice of peace, 624 on managing agent; provisions cumulative, 583 what constitutes, 584 in case of foreign joint stock companies, 582 Garnishment, order, and notice of, in attachment, before justice of peace, 625 Return of, — when made by copy left at place of business, 582 when made on^ — managing agent, 16, 584 secretary or subordinate officer, 582 Substantial compliance with statute necessary, 16 SET-OFF. Against stock subscriptions, 140, 141 stockholders' liability, 163 INDEX. 87T (References are to pages.) SEWJiRAGE COMPANIES, l.iability of, 570 Sewers, etc., of, — individuals not taxed for without consent, 570 municipality may contract for construction and use of, 570 may not' use except with consent, etc., of company, 570 may purchase when, 570 rates for use of, company prescribes, 570 Streets, alleys, etc., use, etc., of by, — authorized in municipalities, 570 grant of, municipalities may make, 570 conditions and limitations of, 5(0 bond for fulfillment of, 570 does not limit power of municipality to establish and maintain sewers, 570 not to interfere with other rights, 570 term of, 570 renewal of, effect, of refusal to make, 570 SEXTON'. (See Cemeteby Associations.) SHARES. (See Capital Stock.) , SHEEP. Rates of toll for — over bridges, 346 over turnpikes or plank roads, 331 SHERIFF. Duty of, as to, — disposition of unclaimed or unidentified corpse, 481, 482 jury viewing premises in appropriation proceedings, 611 unlawful sale of liquors at agricultural fairs, 460 May ride on freight trains, when, 265 SHIP CANAL COMPANY. (See Canal Companies.) Abandonment of canal — releases from charter liability when, 311 special act authorizing is valid, 311 Agents, employees, etc., of, duties and obligations of, railroad laws apply to, 312 Appropriations of property by. (See Appeopeiation. ) Articles of incorporation must show what, 312, 21'J Boats, barges, etc., of — may acquire, dispose of, etc., 310 Bonde of — amount of; limitations upon, etc., 311, 200, 312 companies may issue, 311 convertible into stock, may be, 311 denominations of, 311, 200 interest upon, 311, 200 purposes for which issued, 311 redemption of, bonds issued for, 311 sale of to directors below par, void, 312, 211 secured by mortgage or otherwise, 311 vote of stockholders necessary, 311, 196 Bridges, may relocate, alter, etc., when, 309, 310, 311 may purchase, condemn, remove, 31 J Canals — may appropriate land for, 309, 310 may construct, operate, etc., 310 issue bonds to construct, extend, etc., 311 Capital Stock of — amount of; limitation upon, 312 common or preferred stock, — articles may provide as to, 312, 210 amount, par value, voting power, 312, 210 dividends on, paid from what, 312, 209 increase of stock may be, 312 preferred may be converted into bonds, 312. 209 privilege to redeem or cancel must be reserved, 312, 209 increase of, 312 meeting of stockholders for, 312, 208 directors call: must state what, 312, 208 held where: notice of, 312, 208 vote necessary for, 312, 208 sale of — time, place, and terms of, 312, 209 to directors below par, void, 312, 211 subscriptions to, effect of change of route upon, 309, 179, 181 Causeway, may purchase, condemn, remove, 310 Conduit, may divert, relocate, etc., when, 310, 311 Consolidation of, when, 312 laws as to railroads apply to, 312 878 IMDEX. (References are to pages.) SHIP CANAL COMPANY — Continued. Culvert, may relocate, etc., when, 310, 311 Dams, wiers, reservoirs, aqueducts, etc., — may control waters by, 310 may erect, maintain, and control, 310 may purchase, appropriate, remove, etc., 310 Debts. ( See " Bonds," above. ) limitations upon amount of, 311, 200 unfunded, bonds issued to pay, 311 Directors, — duties and powers of, — as to location of termini, — certificate of location, when in county on state line, 309, 168 change of, 309, 168, 170 certificate of. when county of location is changed, 170, 309 as to increase of capital stock, 197, 312 liability of; for negligence, mismanagement, etc., 312, 211 exonerated from, how, 312, 211 purchase of stock, bonds, etc., below par void, when, 312, 211 Docks, may construct, maintain, lease, etc., 310 Dry docks, may erect, operate, lease, etc., 310 Electric light plant, may acquire, maintain, operate, etc., 310 Electric wires, conduits, etc., may divert, relocate, etc., when, 310, 311 Elevators, may construct, maintain, lease, etc., 310 Gas pipes, may divert, relocate, etc., when, 310, 311 Harbors, may construct, maintain, lease, etc., 310 Highways, — may divert, relocate, change grade of, etc., when, 309, 310, 311 use and occupancy of, — agreement as to manner, terms, and conditions, 311, 177 appropriation of right to, 311, 177 liability for damages, public or private, 311, 177 statute of limitations as to, 311, 177 Income, pledge of to secure bonds, notes, etc., 311, 189 Location of, — certificate of, when in county on state line, 309, 178 change of, 309, 178-181 abandonment not authorized, 309, 178, 181 appropriation of property for, 309, 181 causes for, 309, 180, 181 certificate as to change of counties of, 309, 180 consent of stockholders to, 309, 178 damages to land owners for, 309, 181, 182 directors may make, 309, 178, 181 effect on stock subscriptions, 309, 179, 181 limitations upon, 309, 178, 179, 181, 182 mortgages cover changed line, 309, 180 notice of when, 309, 181 resolution describing certified to secretary of state, 309, 181 in other states, powers as to, 309 Machinery, appliances, etc., for operation, may erect, operate, etc., 310 Obstructions to operations, may purchase, condemn, remove, 310 Officers, duties, and obligations of, railroad laws apply to, 312 Passages over, under, or through canals, may make, alter, and maintain, 309 Patents may acquire right to use, 310 Piers, may construct, maintain, lease, etc., 310 Pipe lines, may divert, relocate, etc., when, 310, 311 Police, laws relating to "railroad police" apply to, 312 Power, hydraulic, electric, etc., may produce, lease, supply, etc., 310 Powers of — to borrow money, 311, 200 to construct, etc., canals, etc., 309 et seq. in other states, 309 President, office of, to be kept, where, 312 Principal office — change of, 312 establishment and location of, 312 notice of establishment or change, 312 office of president, secretary, treasurer to be kept at, 312 records of proceedings to be kept at, 312 Promissory notes, — company may issue for borrowed money, 311, 200 INDEX. 879 (References are to pages.) SHIP CANAL COMPANY — Continued, face value of, 311, 200 interest on, 311, 200 limitations on amount of, 311, 200 sale to directors below par, void, 312, 211 secured how, 311, 200 Property of, — mortgage upon, — bonds secured by, 311, 200 vote of stockholders necessary, 311, 196 effect of change of location or termini upon, 309, 180 form of, may be in what, 312, 200 lien from when, 312, 200 may include real estate and personal property, 312, 200 record of, 312, 200 protection of, law as to railroads apply to, 312 Railroads, may divert, relocate, change grade, etc., when, 309, 310, 311 Real estate, may purchase, appropriate, etc., 309 Records of — kept where, 3i2 stockholders may inspect, 312 Secretary, oifice of, kept where, 312 Sections 3271 to 3278 apply to when, 309 3283, 3286 to 3289 apply to, 311, 312 3308 to 3309b, 3313, 3314 apply to, 312 3381 to 3386, 3388, 3388a, 3390 to 3392 apply to, 312 6414 et seq. apply to, 311 Sewer pipes, may divert, relocate, etc., when, 310, 311 Steam pipes, may divert, relocate, etc., when, 310, 311 Stockholders — may inspect records, etc., 312 meetings of, — to increase capital stock, 312, 208 directors' call; must state what, 312, 208 held where, 312, 208 notice of, 312, 208 vote necessary for, 312, 208 to issue bonds, mortgage property, etc., 311, 196 notice of, 311, 196 vote necessary, 311, 196 Streams, water-courses, etc., — • may control how; to what extent, 310 divert course of when, 310 enter upon and occupy, 311 Telegraph and telephone lines, wires, conduits, etc., — may acquire, maintain, operate, etc., 310 may divert, relocate, etc., when, 310, 311 Terminals, may construct, maintain, lease, etc., 310 Treasurer, office of to be kept where, 310 Trestle, may purchase, condemn, remove, 310 Tunnel, may alter, move, relocate, etc., when, 311 Warehouses, may construct, maintain, lease, etc., 310 Water, may appropriate or purchase right to, 310 may control and regulate, in rivers, lakes, etc., 310 use, lease, or sell, 310 Water lots, may lay out, lease, etc., 310 Water pipes, may divert, relocate, etc., when, 310, 311 Wharves — may construct, maintain, lease, etc., 310 may purchase, condemn, remove, 310 SIDINGS, SWITCHES, ETC. (See Raileoads.) SIGNAL COMPANIES. (See Mbssengek ob Signal Companies.) SITUS. Of corporation. (See Corporate Domicile.) Of stock, upon legal process, 149 SLACK WATER NAVIGATION COMPANIES. (See Canal Companies; Ship Canal Com- panies.) SLANDER. Corporation may sue for, 108 SLED OR SLEIGH. Kate of toll for — over bridge, 346 over turnpikes or plank roads, 331 880 INDEX. (References are to pages.) SLEEPING CAR COMPANIES. Agents, employees, officers, etc., of. (See "Officers" below.) Agreements, contracts, leases with, railroads must furnish copies of, to commissioner of railroads, 29 Books and papers of, examination, etc., of by state board of appraisers and assessors, 75 Definition of; includes what, 74 Excise tax on, amount, levying of, etc., 76 collection of; service of process, etc., 75, 76 exempted from provisions of ■ Willis Law," 20 exempted from § 2744 as to taxation, 74 failure to pay, 76 Foreign, section 148c does not apply to, 11 Jlanaging agent, general manager; chief officer in state. (See "Officers" below.) Officers, etc., of, — examination of — by commissioner of railroads, 29 by state board of appraisers and assessors, 75 reports made, filed, etc., by whom, 75 Real estate of, taxation of, locally, 76 iieports of, to state auditor, — blanks for, auditor prepares and furnishes, 74 duties and powers of officers as to, 74 failure or refusal to make, 75 must show what as to, — capital stock: value, shares, etc., 7*4 character and nature of company, 74 name of company, 74 officers, name and address.. 74 organization, laws and state of, 74 principal office, location of, 74 real estate of, 74 route or lines of, 75 stockholders — name, address, shares, 74 SLEEPIXG CAR CONTRACTS. Power of railroad companies as to, 177 SOCIETIES FOR PREVENTION OF CRUELTY. (See Hxjmatve Societies.) SOLDIERS. Mutual benefit societies of ex-union. (See Insurance Companies — Life.) provisions of §§ 3630a to 3630f, 3631 do not apply when, 393 SOLDIERS' ilONUMENTS. Cemetery associations may take charge of, 358 Protection of, laws as to cemeteries apply to, 358 SOLDIERS' MONUMENTAL ASSOCIATIONS. Cemetery associations may act as, 358 SOLICITOR." (See Citt Solicitok.) SPARK ARRESTERS. (See Railroads.) SPECIAL LAWS. Charters granted by, not accepted or acted on repealed, 92. Corporate powers — cannot be conferred by, 2 may be surrendered by, 311 Effect of general laws on companies created by, 91 Insurance companies organized under, subject to examination, etc., 32 Judicial notice of, courts will not take when, 92 SPECIMENS, ETC. (See Museum Cojipaxies.) SPEED. (See Raileoad Trains: Street Raileoad Companies.) SPRINGFIELD. (See Municipal Corporations — " Cities 2d class 3d grade A.") STAGE COACH. Rate of toll for, 331 STAGE COMPANIES. Actions against, brought where, 580 STATE. Action against, to enforce stockholders' liability, 142 Cannot assume debts of coropration, 1 become Joint owner or stockholder in corporation, 1 give or loan its credit to corporation, 1 Power of — as to licensing foreign corporations, 376 as to taxation of national bank stock, 63 Rights of, as a stockholder, 125 iransfer of stock owned by, 144 INDEX. 881 (References are to pages.) STATE AGRICULTURAL FUND. Expenses of state board of agriculture paid from when, 449 Ohio state board of agriculture has disposal of, 449 Purchase money, etc., for escheated property reclaimed by heirs recovered from, 449 STATE AUDITOR. Certificate of, as to organization of free banking companies, 538 Certain companies to return aggregate of tax returns to, 56 Duties, powers, etc., of, — as to appointment of examiners of banlis existing in 1845, 526 examiners of free banking companies, 543 register of banking department, 536 as to apportionment of value of property for taxation, — in case of express, telegraph, and telephone companies, 69-71 certifying assessments for expenses, etc., of commissioner of railroad com- panies, 26 circulating notes of banks, etc., 536, 537 enforcing provisions of law as to banks, etc., 537 examination of condition of safe deposit and trust companies, 512 of reports of savings and loan associations, 507, 508 excise tax, 73, 76, 80 forms — for listing personal property — for taxation, 61 excise tax, reports for, etc., of electric light, gas, messenger or signal, natural gas, pipe line, railroad, street, suburban or interurban rail- road, union depot, and water works companies, 77 equipment and freight line companies, 72 express, telegraph, and telephone companies, 69, 77 sleeping car companies, 74 publication of reports of safe deposit and trust companies, 512 of savings and loan associations, 507, 508 sale of securities to redeem bank notes, 536 unclaimed freight, warrant for proceeds of sale of, 88 Fees of, for collecting excise tax, 73, 76, 81 Member of, — appellate tribunal in case of foreign corporations, 11 state board of appraisers and assessors, 69, 72, 75, 78 state board of equalization for banks, 81 for railroads, 82 Reports by, to secretary of state, 81 Reports to be made to, etc., — by banks existing in 1845, 526 boards of appraisers ol railroads, 66 electric light, gas, messenger or signal, natural gas, pipe line, railroad, street, suburban or interurban railroad, union depot and water works companies, 77 equipment (R. R. ) and freight line companies^ 71 express, telegraph, and telephone companies, 68, 77 safe deposit and trust companies, 512 savings and loan associations, 507, 508 sleeping car companies, 74 state board of appraisers and assessors, 70, 73, 76, 80 STATE BOARD OF AGRICULTURE. (See Ohio State Board of Agriculture.) STATE BOARD OF APPRAISERS AND ASSESSORS. Adjournments of, 69, 72, 75, 79 Consists of whom, 69, 72, 75, 78 Contempt of, 70, 73, 76, 80 Duties and powers of, — as to appraisement, etc., of property; hearings relating to; correction of assessments or valuation; examination of officers, agents; production and inspection of books, etc. ; securing necessary information upon failure to report, etc. in case of electric light, gas, messenger or signal, natural gas, pipe line, railroad, street, suburban or interurban railroad, union depot and water works companies, 78-80 equipment (R. R. ) and freight line companies. 72. 73 express, telegraph, and telephone companies, 69, 70, 78-80 sleeping car companies, 75, 76 has powers of county auditors under §§ 2781 to 2785, 70 Meetings of, 69, 72, 75, 78 Minutes and proceedings of, 69, 72, 75, 78 President of, 69, 72, 75, 78 882 INDEX. (References are to pages.) STATE BOARD OF APPRAISERS AND ASSESSORS — Continued. Report of, 70, 73, 76, 80 Secretary of, 70, 72, 75, 78 STATE BOARD OF EQUALIZATION. Duty of, as to apportioning expenses of ofBces of commissioner of railroads, etc., 26 STATE BOARD OF EQUALIZATION FOR BANKS. Consists of whom, 81 Copy of return of banks to be sent to, 64 Duties and powers of, as to valuation of bank shares, 81 Meetings of, 81 Valuation of shares as fixed by auditor sent to, 64 STATE BOARD OF EQUALIZATION FOR RAILROADS. Board of appraisers to forward reports, papers, etc., to, 67 Consists of whom, 82 Duties and powers of as to equalizing property of railroads, 82 Meetings of, 82 Not a board of appraisers, 82 STATE BOARD OF PUBLIC WORKS. Duties and powers of, as to railroad bridges over canals and navigable waters, 212 STATE HOUSE. Commissioner of railroads has ofiSce in, 25 Superintendent of insurance has office in, 31 STATE TREASURER. Appoints examiner of banks existing prior to 1845, 526 of free banking companies, 543 Deposits with, — required — in case of certain foreign companies, 12 in case of insurance companies, 35 securities of insurance companies, — coupons attached to delivered how, 35 withdrawn how, 35 Duties, etc., of, — as to circulating notes of banks, etc., 535-537 Member of, — appellate tribunal in case of foreign corporations, 11 state board of appraisers and assessors, 69, 72, 75, 78 state board of equalization for railroads, 82 STATE TREASURY. Payments from — in ease of insurance department cannot exceed specific fees, etc., col- lected, 32 unclaimed freight, proceeds from sale of, when and how, 87 What must be paid into, — assessments against railroads for expenses of commissioner of railroads, 26 excise, franchise or privilege tax on corporations, 11, 19, 73, 76, 80 fees of — secretary of si^te, 10 superintendent of insurance, 31, 35 moneys from sale of unclaimed freight, etc., 87 moneys from suits for penalties, etc., relating to reports, etc., — in case of electric light, gas, messenger or signal, natural gas, pipe line, street, suburban or interurban railroad, union depot, and water works companies, 79 equipment and freight line companies, 73 express, telegraph, and telephone companies, 70, 79 insurance companies, 37 railroad companies, 30, 79, 238 sleeping car companies, 75 STATEMENTS. (See Repokts.) STATIONS. (See Railroads.) STATUTE OF FRAUDS. Guaranty of dividends by third person, not within when, 170 Lease of railroad for more than three years must be acknowledged, 204 STATUTE OF LIMITATIONS. As to appropriation of property, compelling railroad to make, 190 cemetery grounds of educational and religious corporations sold vinder order of court: lot owners' rights, 488 damages for animals killed by railroad, 217 damages for change of route, etc., of railroads, 181 of ship canal companies, 309, 181 INDEX. 883 (References are to pages.) STATUTE OF LIMITATIONS — Continued. damages — for construction of bridge by Ohio River bridge companies, 347 for construction of telegraph lines over private property, by persons, 319 for diverting stream by railroad, 195 for misconduct of officers or directors resulting in forfeiture, etc., 635 for use of highways, streets, etc., — in case of railroads, 188, 190, 191 tracks are completed when, 191 unauthorized use, 191 in case of ship canal companies, 311, 188 for usurping office, franchise, etc., 632 dividends, action to collect, 170 lien of equipment bonds, against consolidated company, 276 malfeasance of directors, 132 mechanics' liens, applies to whom, 86 quo irarranto proceedings, — against officer, 634 commences to run when, 635 applies to suit ordered by legislature, 635 for exercise of right or franchise under charter, 634 for forfeiture of charter, etc., ,634 for misuse of franchise, 634 relative to exclusive use of street, 635 statute does not run against state's claim to lands, 635 statute pleaded how, 635 railroads, suit against one jointly and severally liable will not save against the other, 207 real estate of religious and charitable associations, 499 rights of parties not signing railroad readjustment agreement, 286 stock subscription, enforcement of — by corporation, 138 by creditors, 140 stock transfers, 145 statute begins to run when, 145, 146 stockholders' liability, 158, 161 as against executor or heirs, 161 as -partners in unauthorized bank, 523 effect of bar as to some, upon liability of others, 161 limitation in insurance policy does not apply to, 161 streets, etc., statute does not run against obstruction of, 195 turnpikes and plank roads, demanding unlawful toll, 333, 334 unreasonably detaining travelers, 333, 334 Effect of reversal or failure of action, 578, 579 STEEL. Iron companies may manufacture when, 567 STIPULATED PREMIUM PLAN. (See Insueance Companies — Life.) STOCK. (See Capital Stock.) STOCKHOLDERS. (See also respective companies.) Acquiescence of, effect upon liability of directors for adding new feature to business, 133 Acts of, are corporate acts when, 105 Admissions by, cannot charge company, 131 Amendment to charter, acceptance and acquiescence in, 93 Annual statements for — corporations to make, 168 must show what, 168 Appeal by, from judgment against corporation, 150 Application of, for receiver, 135 Assent of, to. (See also "Vote, what necessary," below.) agreement for use of street railway tracks by suburban or interurban railway, 54 change of purposes, when, 102, 103 issue of bonds convertible into stock, 151 of preferred stock, 165 mortgage — filed with county recorder when, 151 what is construed as, 151 reduction of capital stock or its par value, 166 By-laws, made by, when, for distribution of earnings among workmen, patrons, and shareholders, 121, 122 Capital stock held by, limitation on amount of, in certain cases, 121 Certificates of stock issued to, 142 person may become, without, 144 Corporate existence cannot be questioned by, 99 884 INDEX. (References are to pages.) STOCKHOLDERS — Continued. Cross-petitions by, 134 Deceased, duty of officers as to transfer of stock of, 145 Directors, — election of, by. ( See Directors. ) liability of, to, when, 132, 133, 170 must be, 128 not required in case of public hall, etc., companies where stock held by com- pany not having capital stock, 395 relation of, to, nature of, 132 Division of capital among, power of directors as to, 132 Equitable, — action against to collect stock subscription, 141 to collect stockholders' liability, 155, 158 actions by, — against directors, 132, 133 for refusal to transfer stock, 145 Error, may prosecute to judgment against company when, 150 Evidence as to who is, books are, 144 Inspection of books, records, etc., by, 142, 146 in case of foreign corporations, 15 Inspectors of elections appointed by, when, 122 Liability of, — after transfer of stock, 155, 156 for unpaid stock subscriptions, 140 agreement as to — effect of, upon funds secured by mortgage containing, 197 is not defense to action to enforce subscriptions when, 142, 197 amount of statutory — amount unpaid on stock, 2, 3 sum equal to stock held, 2, 3, 152 attaches when, 154 bankruptcy, is provable debt in, when, 164 before entry of transfer on books, 156 bond of indemnity against; rights of creditors under, 158 contract to release void, 154 corporations cannot control, 153 cannot pledge, etc., 112, 153 holding stock are liable as, 153 in case of corporations not having capital stock, holding stock in hall, etc., company, 395 dues from corporations, secured by, 2 enforcement of, — account of property and obligations, 159 against estate of deceased stockholder, 163 non-resident, 162, 163 stockholder of foreign corporation, 157 appeal by vendor of stock, effect of, 161 effect of payments made after, 164 application of corporate assets, 155, 156, 159 attachment lies for, 162 attorneys' fees, in action for, 163 burden of proof as to being stockholder, 163 complaint filed where, 158, 162 proceedings under, 158, 159 consolidation of actions for, 164 contest of claims, 163 counter claims, etc., against, 153, 156, 163 continuance of action for, when, 163 creditors, — cannot obtain priority in, 160 contest of claims by, 163 failure to present claims, etc., effect of, 159 good faith, etc., in bringing action, 160 cross-petition in action for dissolution for, 598 defenses to, 156, 157 agreement for extension of time is not, when, 156 becoming stockholder after liability incurred is not, when, 157 cancellation of subscription is not, when, 157 failure to issue stock certificate is not, when, 157 fraud in former settlement of claim sued, is not, when, 157 in procuring stock subscription is not, when, 157 lien claimed in another case, is not, when, 157 payment, by new notes is, when, 157 sale of stock with indemnity against loss is not when, 157 INDEX. 885 (References are to pages.) STOCKHOLDERS — Continued. settlement oi claim is not whenj 157 when claims are not in judgment, 157 dismissal of action for, 161 equities between company and creditors, 156 between all parties, adjustment of, 159 incorporators' liability enforced in same action, 11.3, 160 insolvency of corporation, necessary to, 159 insolvency of stockholders, effect of, etc., 163 joinder of actions in, 119, 160 judgment for, when, 153, 164 finality of, 164 nature of action for, 160 non-residence of stockholders, effect of, etc., 162 notice to non-resident stockholders, when, 159 notice to present claims, 159 parties to action for, 160, 161 pleadings in action for, 161, 162 presumption as to regularity of proceedings, 163 receiver. (See Receiver.) referee. (See Refeeee.) right of action accrues when, 154, 155 right of stockholders to contribution, 156, 163 statute of limitations as to, 158, 161 lunpaid subscriptions collected first, 159 for companies, obligations indorsed at their request, 154 irregularities in organization, 523 negligence and inismanagement of directors, 132 over issue of bonds, etc., 200 stock sold by company below par, 141, 153 unpaid stock subscriptions, 137, 142 ultra vires acts of corporation, extent of, 107 in absence of statute, 153 in case of foreign corporations, 17, 157 increase of stock under act of 1865, 157 in de facto companies, 142, 153 in ease of holders of preferred stock, 96 legislature cannot waive, 3 nature of, 152 order of liability on account of, 155 property transferred by stockholder not subject to, 164 securities, application of proceeds of, 164 set-off against, 163 settlement of corporate liabilities, — agreements between stockholders as to, 154 effect of, upon dissenting creditor, 154 notes given in, not a credit on liability when, 154 voluntary, by stockholder, right to contribution, 154 statute of limitations as to, 158, 161 effect of bar of as to some, upon others, 161 limitation in insurance policy does not apply to, 161 waiver of, 154 who are subject to, 152, 158 assignees and assignors of stock when, 155 corporations holding , stock, 144 in ease of corporations not having capital stock holding stock in public hall companies, 395 equitable owners, when, 155, 158 infants holding stock, when, 153 legal owners, 152, 158 legatee of stock when, 158 pledgee, when, 153, 158 preferred stock holder, 153 trustees when, 158 List of. (See "2fames.") TMeetings of — regular — forms for regulations as to, 668 notice of, form for, 666 number of directors may be changed at, 168 order of business at; forms of regulations establishing, 669 886 INDEX. (References are to pages.) STOCKHOLDERS — Continued. regulations as to — forms for, 668 may provide what as to, 137 to adopt or amend regulations, 136 notice of: vote necessary, 136 to amend articles of incorporation, 102 notice of: vote necessary, 102 forms for, and for waiver of, 661 to change number of directors, 168 vote necessary, 168 to elect officers, etc., 123 notice of, 123 to increase capital stock, number of shares, etc., 165 directors' call, 165 notice of: waiver of, 165 to organize corporation, 118 '' must be held in state, 119 notice of; failure to give, etc., 118, 119 form of and for waiver of, 665 subscriptions of required stock essential, 119 record of, in books, form for, 675, 676 Motives of, — in actions for accounting, etc., 133 in actions to- compel inspection of books, 146 Names of, list or statement as to, — corporations limiting votes of stockholders, file with county recorder, 121 for use of inspectors of election, 122 furnished annually to stockholders, 168 Non-resident, notice to, of action to enforce liability of, 159 Officers, executive, must be, 128 Of foreign corporations. (See Foreign Corporations.) Powers of, over business, property, etc., 129 Preferred stock may be authorized by, 95 Quorum, regulations may provide as to, 137 form for regulations, 668 Eesidence of. (See also "'Names," above.) Rights of — ■ as to accountings, 133 conversion of property, 132, 134 cutting prices, 134 disposing of his stock, 147 enforcing duties of directors, 134 impeaching judgment against company, liO increase of capital stock, 166 mismanagement or negligence of directors, 132, 133 scope of corporate acts and powers, 107 Rights of state as a, 125 Sale of corporate property, vote of, not necessary when, 95 Stock held by; number of shares of, — list showing shares — furnished inspectors of election, 122 statement or report showing, in case of corporations limiting vote of stockholders, 121 Ultra vires acts, ratification of, by, does not bind company, 107 Vote. (See Capitai, Stock — " Voting poirer of.") articles of incorporation may limit right of, 121 forms for regulations as to, 669 sale of, by, is illegal, 124 what necessary. (See "Meetings of," above.) What constitutes, 144, 158 holder of convertible bonds is not, 152 of preferred stock is not, when, 152 Who cannot become — corporations, when, 109 state, cities, counties, towns, townships, 1, 2 STOCKHOLDERS BILL. Estoppel: suit in one capacity not, to suit in another, 133 Motives in connection with, 133 Non-concurrence in, effect of, 134 Parties to, 133 Puppet of competitor, 133 To enforce duties of directors, 134 STOCKHOLDERS' LIABILITY. (See Stockholders.) STOCK RECORDS. (See Capital Stock.) INDEX. 887 (References are to pages.) STOCK YAED COMPANY. Duty of, as to cattle shipped from southern points, 575 Powers of, 570 Railroad, lease, purchase, etc., of, 570 consent of stockholders of both companies necessary, 571 length of, limitations as to, 570 STONE. Freight charges on undressed, 264 STONE QUARRY. Owner or operator may construct private railroad when, 240, 241 Track or switch to, duty of railroads to switch cars of other companies over, 236 STONE QUARRYING COMPANIES. (See Mining Companies.) STORAGE. (See Freight.) STORE-ROOMS COMPANIES. (See Building Companies.) STREAMS, WATER COURSES, ETC. (See Bridges: Canals: Navigable Waters: Rail- roads: Ship Canal Companies.) STREETS, HIGHWAYS, ALLEYS, ETC. Abandonment or surrender of, to railroads, 189, 194 Assessments for, railroad lands subject to, 188 Control of, cannot be relinquished or granted away, 189, 194 Crossings over. (See Freight Ways: Inclined-Plane Railway Companies: Railroad Crossings. ) Diversion of. (See Railroad Crossings.) Extending or opening across railroad property, — appropriation of right of, 43 estoppel to deny right of, when, 43, 190 Freight way or private railroads over. (See Freight Ways.) Franchise rights in. (See " Vse and occupancy," belov,?.) right to use, for pipes, etc., is, 42 Grade and grading of, before construction of street railway, 50 Improvement of — in case of turnpikes or plank roads in municipalities, 332 assessment and cost of, 332 power of agent of corporation to sign petition for, 131 Lighting of. (See Municipal Corporations.) Obstructions of. (See Railroad Crossings.) statute of limitations does not run against, 195 Travel on, hindering or obstructing persons in, 334 law of road as to; turn to right, 334 Use and occupancy of. (See under respective companies.) by municipalities — for gas pipes upon failure of gas company to make required extensions, 41. exclusive right to, express authority necessary to grant of, 42 right to, is a franchise, 42 STREET RAILWAY COMPANIES. (See Common Carriers: Common Carrier Com- panies. ) Abutting lot owners — actions by; joinder of parties in, 299 cannot enforce forfeiture of grant, 298 consent of. (See " Grant for road," below.) interference with right of access of — by tracks, trolley poles, etc., 299 temporarily, by construction, 299 to markets, 299 rights of. ( See " Grant for road," below. ) as to use of tracks by other companies. 277 in highways outside municipalities, 307 in streets, etc. — appropriation of, 302, 307 when private rights are impaired, 296 not impaired, 50 trees in streets, 299 Actions against, — before justice of peace, § 6478 does not apply to, 624 brought where, 546 Agents, employees, etc. (See "Officers," below.) Agreements with other companies permitted, when, 52, 54 in case of suburban and interurban companies, 52, 54 Appliances of, injuring or meddling with. 636 888 INDEX. (References are to pages.) STREET RAILWAY COMPANIES — Continued. Appropriation of property for. (See Appropbiation. ) Bids and bidders for grant. (See "Grant for road," below.) Bonds of. (See Common Careier Companies.) amount of, limitations on, 200 company may issue, 200 interest on: cumulative when, 200 par value of, 200 purposes for which issued, 200 secured how, 200 Books and papers of, examination, etc., of, by state board of appraisers and assessors, 79 Bridges, right to use, built by county in city, 297 Buildings, may construct necessary, 295 Capital stock of. (See Common Cabrieb Companies.) safe deposit and trust compajiies may invest in when, 514 savings and loan associations doing business of safe deposit and trust companies in Columbus and Toledo may invest in, 515, 514 Cars of. ( See " Operation," below. ) electric, — vestibules must be used when, 305, 306 penalty for violating provisions as to, 306 passenger — conductors on, when, 47, 50 shooting or throwing at, 636 unlawful injuring, meddling with, etc., 636 Character and nature of company — what determines, 295 Cincinnati, — cars must run how frequently in, 55 extensions in, grant for, 305 grant in, validated though not to lowest bidder, 305 rata of fare not increased because of extensions, 305 Consolidation. (See also "Lease," "Purchase" below.) laws as to railroads apply to, 53 in case of interurban companies, 308 terms and conditions of, who fixes, 308 with what companies, 53 Construction of road. (See "Grant for road," "Trades" below.) interference with access, — because of tracks, trolley pole, etc., 299 temporary, because of, 299 manner, terms and conditions, 47 who fixes, 304 may be where, 295 streets, etc., grading of, before, 50 upon private property: owner may enjoin when, 304 Contract with councilman to assist in procuring right of way void, 50 Crossings over railroads or street railways. (See Railroad Crossings. See also " Leases, etc.," " Operation " below. ) cannot be enjoining when, 303 expense of: made how: renewal of, 50, 51 when used by two companies, 306 Debts of, limitation on, 200 Definition of, — includes what, 77 what determines, 1^95 Depots of — breaking locks, fastenings, etc., to, 636 may be constructed, 295 " other appliances " in ordinance does not include, 296 Electrical apparatus, machinery, etc., of, unlawful interference with, 322 Electric light and power plant in connection with, Mansfield authorized to permit, pre- scribe terms, etc., 308 Electrolysis, liability and remedy for, 296 Excise tax on, amount, levying, collection, etc., of, 80, 81 exemption from provision of " Willis Law," 20 failure to pay, 80 tangible property not exempt from taxation, 80 Extension of road, 51 agreement with municipality as to, 40 conditions, etc., as to, power to impose, 52 who fixes, 304 consents for, 46, 51, 52, 299 courts will interfere in, when, 52 fare, rat"? of, not increased because of, 46, 51 INDEX. 889 (References are to pages.) STREET RAILWAY COMPANIES — Continued. in cities of 1st class, 1st grade, 305 grant for, — by companies authorized by other than a municipality, 48 by roads located wholly outside, 48 in cities of 1st class, 1st grade, 305 must be as new routes, when^ 48 none by condemnation in case of street railway operated by steam railroad, 52; ordinance granting does not confer corporate power, 2, 52 steam raih-oads cannot avail of provisions, 52 what constitutes, 52 Pare, rate of, — cannot be increased — because of consolidation of interurban lines, 308 because of extension of road, change of route, etc., 46, 51 effect of lease, purchase, etc., of other lines, etc., 53 grant made to one offering lowest, 48 right of municipalities to lix or change, 49 remedy for charging excessive, 53 suburban or interurban railway operating over tracks of, 54, 308 to parks or cemeteries owned by, but outside of municipality, 54 Flags. (See "Signals" below.) Franchise, power to alienate, etc., 52, 54 Freight, power to carry, 29(i condition in grant prohibiting is void, 298, 299 in case of interurban roads, 307 Grant for road. (See also "Extensions" above; "Streets, highways, etc.," below.) abandonment of; presumption as to, 298 application for — grant of only part of, 297 in alternative, effect of, 47 notice of, publication of, 48 requirements as to; must specify what, 47 are contracts in behalf of city within § 1777, 296 upon acceptance, 296 authority to make, 296 delegation of, 50 bidder for — bond of, 49 good faith of, 49 must be lowest, 48 grant in .•■ity of 1st class 1st grade validated when not, 305 who is lowest, 49 bids for — acceptance of, 49 irregularities in, 49 ordinance inviting, takes effect when, 49 power of council over, 44 change or modification of, not to release from obligations of, 46, 48 conditions and terms in, invalid when, 298 violation of, remedy, 47 consents of abutting owners required, 48, 299 application of, to certain counties, 299 are conditions precedent when, 47, 301 for benefit of lowest bidder, 301 valid how long, 301 conditional ; non-performance, 301 for additional switches, etc., 300 extensions, 51, 52, 299 single track not counted for double, 300 use of tracks of existing company, 297, 300 in case of extension, etc., of existing route over occupied streets, 47 in case of interurban roads, 307 must be in writing, 299, 300 be obtained for each street, 300 need not — be entered on records of council, 300 stipulate mode of operation, etc., 300 non-consenting owners, — appropriation of property of, 302 provisions for, not to affect requirements as to, 302 rights of, in conditions imposed by consents, 290 purchased are invalid, when, 301, 302 temporary use of streets granted without, 301 time for obtaining, 301 890 INDEX. (References are to pages.) STREET RAILWAY COMPANIES — Continued, unauthorized, ratification of, 300 want of: — burden of proof in contest as to, 300 effect when part of route lacks, 297 estoppel cannot cure, 301 remedy for, etc., 299, 300 taxpayer, as such, cannot contest, 300 who can give — all co-tenants necessary, 300 county comuiissioners for county property, 300 husband cannot for wife's property, 300 remainderman, without life tenant when, 300 withdrawal of, 301 construed strictly, 296 exclusive, cannot be made, 290 existing grants, etc., validated, 50 extension of time of, 47 forfeiture of — abutting owner or competing company cannot enforce, 298 city may remove tracks upon, when, 298 invalid and defective — rights of abutting owners as to, 297, 298 taxpayer may enjoin, when, 296, 297, 298 if he has no interest, 298 made by whom and how, — council, by ordinance in municipalities, 47, 304 may refuse to grant, 298 county commissioners, by order, outside of municipalities, 47, 48, 296, 297 cannot grant in hamlets, 296 public autliorities in charge of highways outside of municipalities, 304 in case of interurban roads, 307 turnpike company cannot make, 307 trustees in hamlets, 296 manner of use, terms and conditions, 47 not necessary when, in case of suburban or interurban railways, 54 " other appliances " in ordinance for, means what, 296 release from obligations of, 48 what constitutes, 50 renewal of: term of, etc., 48 rescission ot ordinance as to, effect of, 298 estopped to claim, when, 298 signature of mayor not necessary to, 50 term of: extension of, etc., 47, 48 to individuals or corporation, 47 to a " trustee " is valid, 296 Income of, pledge of, to secure bonds or notes, 200 includes what; diversion of, 200 Interurban and suburban are included or defined as street railways, 77 consolidation of, 308 fare cannot be increased by, 308 exempted from provisions of " Willis Law," 20 gi-ant of use, etc., of highways outside of municipalities. ( See " Grant for road " above. ) motive power of, 307 operation of passenger cars of, over street railway tracks, — agreements, etc., as to, 53, 54 fare within municipality, etc., 54 franchises or grant not necessary when. 54 motive power in case of, 54 rights and liabilities of, 54 powers of — same as other street railways, 308 to appropriate private property, 307 tracks of other companies, 308 to carry baggage, express, freight, mail, passengers, 307 to lease, purchase, or make traffic arrangements with otlier street railways so as to pass through municipalities, 308 regulations, subject to same as other street railways. 308 Leases of franchises, property, etc., of other companies, 52, 54 effect of, upon fares, 53 in case of electric light and power companies. 54 gas, artificial or natural, companies, 54 interurban street railroads, 308 rights of dissenting stockholders, 54, 55, 206 INDEX. 891 (References are to pages.) STREET RAILWAY COMPANIES — Continued. LiabilUy of, for injuries at railroad crossings, — collision: burden of proof on company to explain, 306 duty as to passengers upon stopping at crossing, oOti, 307 effect of failure of railroad to lower gates, 306 horses and ears one so far as distance for stopping is concerned, 306 is joint, when, 306 proximate cause, 307 questions for court and jury, 307 License fee, per car; construction of ordinance as to, 298 percentage of earnings in lieu of, 46 Liens on. (See Mechanics' Liens.) section 3207 does not apply to, 84 Managing agent, or chief officer in state. (See "Officers" below.) Mortgage on, companies may give, 200 lien from date of record, 200 subrogation upon foreclosure of, 275 record of, 200 Motive power — character of road not determined by, 295 electricity as, right to use ground circuit, 296 in case of interurban roads, 307 Offices for, may be constructed, 295 Officers -of, — examination of, by state board of appraisers and assessors, 79 penalties for refusing to testify, 80 reports made, filed, etc., by, when, 77 Opei ation of roads. ( See " Cars," " Orant for road " above. ) ears must be run how frequently in cities of 1st class 1st grade, 55 must be stopped at railroad crossings, bridges, etc., 23, 25, 306 penalty for violating provisions as to, 307 signal to cross, who must give, 306 must be stopped at street railway crossing when, 306 order of precedence in crossing, 306 refusal to run; remedy, 298 conditions, manner, and terms of, 47 who fixes, 304 effect of ordinance as to passengers alighting when car in motion, 299 Parks, grant -of use of, for, 297 Percentage of earnings, — construction of ordinance as to, 298 may be taken in lieu of car license, 46 Poles of, — interference of with access to property, 299 unlawful interference with ; penalty, 322 Powers of. (See Common Cakrier Companies; see also "Interurban" above.) to borrow money and mortgage property, 200, 295 to carry freight, etc., 296 Promissory notes of, — ■ amount and face value of; limitations as to, 200 secured how; interest on, 200 Property of — mortgage or pledge of, to secure bonds or notes, 200 unlawful meddling with, removing, injuring, etc., 636 Purchase of property, franchise, etc., of other companies, 52 effect of, upon fares, 53 in case of electric light and power companies, 54 interurban street railroads, 308 rights of dissenting stockholders, 52, 55, 206 Reports of^ to state auditor, — blanks for, auditor prepares and furnishes, 78 duties and powers of officers as to, 77 failure or refusal to make, 79 must show what as to, — character and nature of company, 77 gross receipts, 78 name of company, 77 ' officers, etc., name and address, 77 organization, laws and state of, 77 principal office, location of, 77 Route of road. (See "Grant of road" above.) change of existing, 46, 47 line may fork and be one route, 50 through private property, effect of, 50 8»2 INDEX. (References are to pages.) STREET RAILWAY COMPANIES — Continued. Sale of propeity, franchises, etc., to other companies, 52 Section 3207 does not apply to, 84 3287 to 3289 apply to, 200 3302 to 3304 apply to, 53, 55 3381 to 3392 apply to, 53 Service of process on, etc., 582 6478 does not apply to, 624 Signals, flags, lamps, etc., unlawful meddling, etc., with, 636 Speed, rate of, — effect and v.alidity of ordinance as to, 50 rule as to, in absence of ordinance, 50 Stockholders of, — meeting of, to ratify lease, purchase, etc., — of electric light and power company, 54 notice of; proxies; vote necessary, 54 of street railway, 52 notice of; proxies; vote necessary, 52 rights of dissenting, — in ease of lease or purchase of electric light ana power companies, 55 compensation for stock; basis of, 55, 206 arbitration in case of non-agreement as to value, 55, 206, 207 refusal to arbitrate or receive amount assessed, 206, 207 notice of dissent, S5 in case of lease, purchase or sale of railway, 52 compensation for stock; basis of, 52, 53, 206 ajrbitration in case of non-agreement as to value, 53. 206. 207 refusal to arbitrate or receive amount assessed, 206, 207 Streets, highways, alleys, etc., — use and occupancy of, by (see "Grant" above), 47 additional burden, when, 307 appropriation of county roads, etc.. 304 when occupied by turnpike or plank road companies in certain counties, 302 assessment for improving, condition that company repay, who entitled to payment, 298 authorities controlling public roads may agree as to terms and conditions, 304 state and county roads included, 304 who are authorities controlling, 304 compensation to abutting owners, when, 302 conflicting rights in; with telephone companies, 316 grade and grading of, before construction of, 5Q in case of interurban companies, 307 paving and repair of, by company, 51 assessments for, how paid, 298 in cities of 1st class 2nd grade, 51 right to, acquired by adverse possession, 298 Suburban. ( See " Interurban, etc.," above. ) Summons against. (See Sekvice of Process.) section 6478 does not apply to, 624 Tracks of. (See "Construction of road." above.) agreements as to use of, by suburban and interurban railways, 54 fare within corporate limits, 54 franchise or grant not necessary when, 54 motive power in case of, 54 rights and liabilities in case of, 54 injuries to, one company may restrain another from, when, 297 joint, court cannot order building of. 297 laying without grant, a nuisance, 296 obstructing, unlawful meddling with, 636 one company cannot straddle tracks of another, 297 use of, by other companies, — appropriation of right to, 302, 303 in cities of 1st class 3rd grade, 302 measure of damages inj 303 pleadings and cvidencp in, 303, 304 application for franchise, notice, consents, etc., 303 length of line constructed, 303 necessity for such use, 303 time such nse will continue, 303 rights of appropriating company as against third company, 303 second appropriation may be made when, 303 INDEX. 893 (References are to pages.) STREET RAILWAY COMPANIES — Continued, compensation for, 207 council may fix, when, 303 grantee under agreement camiot permit third company to use, when, 304 injunction against, 302 limitations upon right to grant, 48 in case of extension, change of route, etc., 46 one-eighth of track, how computed, 48, 297 power of council as to, 48^ 297 rights of abutting owners, 297, 300 Traffic arrangements with interurban roads, 308 Transfers, change in existing system of, 46 Transportation of cars, freight, passengers, etc., of interurban roads, 308 Watchmen at sti-eet crossings, curves, etc., — municipalities may require when, 305 penalties for failing to place, when required, 305 Wires of — insulation of, 296 over railroad tracks, 234, 235, 258 power of commissioner of railroads as to, 235, 258 unlawful interference with, 322 STREET eJaILWAY ROUTE. (See Street Railway Companies.) SUB-CONTRACTOR. (See Mechanic's Liens.) SUBMISSION TO VOTERS. Required in case of laws authorizing associations with banking powers, 3 in case of purchase of toll roads by county commissioners, 337 return, counting and declaration of result, 337 SUBPCENA. Clerk of commissioner of railroads may issue, 25 Commissioner of railroads may issue, 29 SUBROGATION. Transferrer of stock, as against assignee, on account of stock subscriptions, 140 SUBSCRIBERS. (See Incorporators: Capitai. Stock.) SUBURBAN RAILWAYS. (See Street Railway Companies.) SUBWAY COMPANIES. (See Subways, etc.) In cities of 1st class, 1st grade, — power of, to construct and maintain necessary appliances, etc., 325 to use streets, etc., 325 SUBWAYS FOR ELECTRIC WIRES. In cities of 1st class, 1st grade, — charges for use -of — basis of, 326 municipal authorities may fix, 326 construction of, etc., 325 by persons, companies, corporations, 325 chief engineer of municipality to control and approve, 326 certificate of, as to, required before use, 326 effect on existing rights of electrical companies, 326 municipal authorities may contract for, 325 may regulate, 326 streets, alleys, etc., may be used and occupied for, 325 bond for restoration, etc., of., required, 326 grant of municipal authorities necessary, 325 bids for, advertising for. 326 compensation for, required, 326 exclusive, 326 made to highest bidder, 326 operation of, — certificate of engineer required before, 326 municipal authorities may regulate, 326 what wires to be placed in, 326 Telegraph and telephone companies may construct, etc., 324 consent of municipal authorities to, 324 given by whom, 324 poles not to be erected in district when, 324 SUMMONS. (See Service of Process.) SUPERINTENDENT OF CORPORATIONS. (See "Officers" under respective companies.) Summons may be served on in case of indictment of corporation, 638, 639 894 INDEX. (References are to pages.) SUPERINTENDENT OF INSURANCE. Absence or disability of, deputy acts, 31 Annual report of, 34 made when and to whom, 34 must show what, 34 printing of, 34 Appeal from decision of, as to condition of company, 32 As inspector of building and loan association. (See Building and Loan Associations.) supervisor of bond and investment companies. (See Bond and Investment Com- panies. ) Appointment of, 31 Assignments, certificates, conveyance, etc., executed by, — are evidence, 32 may be recorded same as deeds, 32 must be under official seal, 32 Bond of, 31 fidelity and guaranty companies cannot be surety on, 415 Clerks, employment of, 31 names and compensation, report must give, 34 Copies of papers certified, etc., by, are evidence, 32 Depositit with. ( See Bond and Investment Companies : Building and ' Loan Com- panies : Insue-vnce Companies — Accident and Health ; Credit Guaranty; Fidelity Guaranty; Life; Other than Life. ) action to collect claims payable from, — attorney-general to bring when, and where, 38 code of civil procedure governs, 38 notice of pendency of, 38 returns of, for taxes, etc., not required when, 57 sections 2734, 2744 do not apply to, 57 Deputy of — ^ appointment, 31 bond, duties, powers, oath, qualifications, salary, etc., 31 Discretion of, 31 may not exercise arbitrarily, 426 not subject to mandamus, 426 Duties and powers of, 31 as inspector of building and loan associations. (See Building and Loan Associa- tions ) , — supervisor of bond and investment companies. (See Bond and Investment Companies. ) as to assessments on capital stock because of impairment, 33 books and papers, production, etc., of, before commission to hear application for consolidation or re- insurance of risks, — in case of accident insurance companies, 307 health insurance companies, 367 life insurance companies, 367 consolidation of — accident insurance companies, 367 health insurance companies, 367 life insurance companies, 367 coupons attached to securities deposited with. 35 discontinuance of business of insurance companies, 37 in case of life insurance companies, 36 examination of insurance companies, 32. 34 in case of assessment life insurance companies, 387 foreign companies, 57 exercise of powers and franchises unlawfully, by assessment life insurance com- panies, 387 fees, 31 license to do business; renewal; revocation, etc. (See Insurance Companies.) in ease of burglary insurance companies, 444, 446 credit guaranty companies, 441, 444 insurance companies generally, 31 et seq., 57 et seq. other than life, 426 et seq. life insurance companies, 370 et seq., 387 ct seq. oaths, administering, 32 publication of results of examinations. 32 of notice of revocation of license, 34 re-insurance of risks. — in case of accident insurance companies, 367 health insurance companies, 367 INDEX. 895 (References are to pages.) SUPERINTENDENT OF INSURANCE — Continued, life insurance companies. 367 reports of insurance companies, blank forms for, 35 requisitions to restore impaired capital, 33 securities required to be deposited, 35 statements as to reinsurance, pooling of business, etc., of fire insurance com- panies, 58 taxation of foreign insurance companies, 57 unsound companies, 33, 34 valuation of outstanding policies, 34 witnesses, summoning, etc., to testify, etc., before commission to hear petition for consolidation, re-insurance of risks, etc., — in case of accident insurance companies, 367 health insurance companies, 367 Eligibility to office of, 31 Ex officio — inspector of building and loan associations, 559 supervisor of bond and investment companies, 520 Expenses, — for examinations of insurance companies, 32, 59 for maintaining department of — limit on, 31 paid on certificate of superintendent, 31 report of, must show, 31 Experts, employment of, by, 31 Fees of, 35 as to foreign assessment life insurance companies, 388 paid into state treasury, 32, 57 Member of commission for consolidation or re-insurance of risks, — in case of accident insurance companies. 3C7 health insurance companies, 367 life insurance companies, 367 Office of, kept where, 31 Records, must keep what, 34 Salary of, additional, 32 Taxes collected by, from foreign insurance companies, paid into general revenue fund, 57 Term of office of, 31 SUPERIOR COURT. (See Col-kts — Supekior. ) SUPERIOR OFFICERS. (See "Employees," under Railroads.) SUPERVISOR OF BOND AND INVESTMENT COMPANIES. (See Boxo and Invest- ment Companies.) SUPERVISOR OF HIGHWAYS. Control of, over plank roads, etc., 333 SUPREME COURT. (See Courts — Supreme.) SURETY. Liability of, on bond of treasurer, 127 Power of corporations to become, 112 SURETY COMPANIES. (See Insurance Co's — Accident: Insurance Co's — Fidemty Guaranty: Insurance Co's — Other than Life: Insurance Co's — Title Guaranty : Safe Deposit and Trust Co's. ) SWING BRIDGE. (See Raileoads.) SWITCHES. (See Railroads.) TAXATION, TAXES. (See Excise, Franchise, oe Privilege Tax.) Apportionment of valuation of property, — in case of express companies, 69, 70, 71 railroad companies, 67 consolidated companies, 277, 278 telegraph and telephone companies, 67, 69, 70, 71 Assessment of property for. (Seo "Basis for," below.) state board of assessors and appraisers make of express, telegraph and telephone companies, 69 Assessors, — ■ duties and powers of, as to listing personal property, 60, 61 of property of railroad companies, 65 Back taxes, bank not liable for, when, 64 Bank shares. ( See " Capital stock " below. ) Basis for, — in case of banks and incorporated banks, 81 bankers and incorporated banks, 62, 63 express companies, 69, 70, 71 896 INDEX. (References are to pages.) TAXATION, TAXES — Continued, railroad companies, 67 savings banks incorporated under act of 1867, 62, 63 telegraph and teleplione companies, 67, 69, 70, 71 Board of appraisers. (See Boabd oe Appeaisers and Assessors.) Capital stock, — bank shares, — auditor to fix value of, 64 equalization of, 81 bank may pay tax on wlien, 82 lien- of tox on, 82 common and preferred, no distinction as to, 60 exemption of, from — how shown, 59 in ease of companies whc^se capital stock is taxed, 11, 59, 60 consolidated companies, 60 foreign corporations under § 148c, 11, 12, 60 must clearly appear, 59 " false return " of, what is, 60 listed — -by corporations, 56, 57 by stockholders — in case of all banks, banking corporations, etc., 63, 64 in case of consolidated companies, 60 foreign corporations under § 148c, 11, 12, 60 laws requiring, by foreign corporations, constitutional, 60 not required in case of companies whose capital stock is taxed, 59 pledged as collateral, 60 power of state as to, of national banks, 63 restrictions and remedy, 64 premium on sale of increase of, not subject to, when, 166 return as to, of foreign companies under § _148c, forms for, 642 scrip certificates, to be listed when, 60 shares of, in. foreign corporations, 17 void or illegal stock not taxable, 60 Collection of taxes, from express companies, 82 from telegraph companies, 82 Corporations — power to surrender right to tax, 3 property of, subject to, same as individuals, 3 County auditor, duty and power of, — as to listing personal property, 61 returns of banks whose capital stock is divided into shares, 64, 65 Debts,— deduction of, from national bank shares, 63, 65 in case of bankers and unincorporated banks, 62 re-insurance fund is not, as relates to, 34 unearned premiums of fire insurance companies are not as relates to, 420 duty to cancel fire insurance policy does not create, 430 Delinquent taxes, — agents not to act if corporate taxes not paid by express, insurance, telegraph and telephone companies, 83 bank shares, — dividends not to be paid on, until paid, 82 not to be transferred, until paid, 82 railroads not to do business for, or with express, insurance, telegraph and telephone companies until paid, 83 Depositors in savings banks, returns of, 63 Discrimination in valuation of bank shares, 65 Equalization of valuations, — in ease of bank shares of incorporated banks, 81 of property of railroads, 82 Evasion of, return of personal property must show what as to, 61 Excessive, restrictions on, remedy for, — in case of banks, 65 national bank shares, 64 Excise tax. (See Excise, Franchise on Privilege Tax.) Exemption from, — capital stock. ( See " Capital stock " above. ) cemetery lots, when, 358 charitable institutions, 56 property of companies for protecting and preserving dead bodies, 573 real estate of cemetery associations, when, 356 in counties containing city of 1st or 2nd class, 359 stock or interest in companies, held by state, 56 INDEX. 897 (References arc to pages.) TAXATION, TAXES — Continued. Foreign corporations — ehoses in action of, are subject to tvhen, 17 stockholders of, need not list stock when, 11, 12 Inspections, etc., right of tax officers to make of banks, banking associations, etc., 64 Interstate commerce, receipts from, taxable when, 69 Listing of personal property for. (See also "Returns for" below.) as of what date, 39 assessor, duty of, as to, 60, 61 by depositors in savings banks, 62, 63 stockholders. ( See " Capital stock " above. ) forms for, 60, 61 interest, in unincorporated companies not required, 56 in whose name to be listed, 55, 59 returns must be under oath, 60, 61 valuation for, determination of, 61 what must be listed, 55, 59-61 when to be made, CO where to be listed, 55 who must make, 55, 59, 60 Payment of, — banks may pay, on shares when, 82 express and telegraph companies, agents pay when, 82 Personal property for purposes of, includes what, — in case of corporations, 56 railroad companies, 66 Purposes for which may be levied — ^maintenance and repair of railroad crossings at highways, 231 Railroad companies. (See Boakd of Appkaisees.) foreign companies owning road in state subject to provisions as to, 284 right of way of, used, etc., without record title, 215 Real estate of corporations, — returned as personal property, when, 56 in case of railroad companies, 66 consolidated railroad companies, 277 taxed locally. — in case of equipment and freight line companies, 73 sleeping car companies, 76 taxed same as that of individuals in case of banks, banking associations, etc., 64 Remission of taxes and penalties, — in case of express, telegraph and telephone companies, 70 Residence of corporations for purposes of. 55, 98 Retaliatory provisions as to, in case of foreign insurance companies, 57 Returns for. (See also " Liftting, etc.," above.) by bankers and unincorporated banks, — basis for taxation, obta,ined from, how, 62, 63 deduction of liabilities, 63 deposits to be listed when, 63 ■ made when, where, to and by whom, 61, 63 must be under oath, 61 m.ust show what, 66, 62 by banlcs whose capital is divided into shares, — copy of, auditor to send to state board of equalization, 64 correction of: false statement, 64, 6r> county auditor may make when, 65 failure to make, 65 made when, where, to and by whom, 64 must be in duplicate: under oath, 64 must show what, 6t probate judge, duties and powers of, as to, 65 by corporations — apportionment of fixed and movable property, 56 blank forms for, 56 capital stock to be listed, 57 companies specially provided for, exempted, 56 equipment (R. R. ) and freight line companies, 72 express, telegraph and telephone companies, 69 sleeping car companies, 74 false or incorrect, correction, etc., of, 56, 57 made by what officers, 56 when, where, to whom, 56 898 INDEX. (References are to pages.) TAXATION, TAXES — Continued. must be verified* by oath, 50 must include what, 56 re-insurance fund not a debt to be deducted, 34 unpaid stock subscriptions to be listed, 56 valuation of property in, 56 by railroad companies — by and to whom, 66 in case of consolidated companies, 277 must show what: under oath, 66 in ease of consolidated companies, 277, 278 by savings banks incorporated under act of 1867, — basis for taxation, obtained from, how, 56, 62, 63 deposits to be listed when, 62 laws as to bankers and unincorporated banks apply to, 62 made when, where, by and to whom, 61 must be under oath, 61 must show what, 61, 62 Right of way of railroad, — deduction of, from land on tax duplicate, 214 statement as to, to be filed with county auditor, 214 Scrip certificates, returnable for, when, 60 State auditor, duty, etc., of, as to blanks for listing property, 61 State board of appraisers and assessors. (See State Boaed of Appraisers and As- sessors.) State board of equalization. (See State Board of Equalization.) TELEGRAPH AND TELEPHONE COMPANIES. Agents, employees, etc. (See "Officers." below.) agents pay taxes; when, 82 unlawful to act, when taxes unpaid, 83 penalties against recovered, how, 30 Agreements with other companies, 316, 323 Apportionment of property of, for taxation, 67 Appropriation of property. (See Appropriation.) Books, papers, etc., examination, inspection, etc., of by state board of appraisers and assessors, 70 Buildings, etc., — entering or using mthout written consent of owner, 317, 323 erecting poles, etc., near to, 317, 323 Charges for service, municipalities cannot fix, in agreement for use and occupancy of streets, etc., 319 Consolidation of — laws as to railroads apply to, 323 what companies may consolidate, 323 Construction of lines, — along public roads, etc., authorized, 315, 319, 323 additional burden on highways, 316, 323 by companies, 315 persons, 319 by means of posts, piers, etc., 315, 323 subways or underground conduits, 324 must not incommode public, 315, 323 trees along, cutting and trimming, 316 appropriation of property for, 317, 323 error proceedings, time for, 317 limitations as to, in case of lands of other companies, 317, 323 in case of lands of railroads, etc., 317, 318, 323 consent of property owner necessary when, 317, 323 fruit or ornamental trees, injuring or destroying, 317, 323 location of poles, wires, fixtures, etc., — change of, when corporation owning land needs it, 323 appropriation of property to make, 323 designation of new location. 323 notice of, 323 must not interfere with other lines, 317, 323 over private property, — damages for, 319 appraisers of, county commissioners appoint when, 319 costs of, paid by whom, 319 duties, fees, oath, etc., of, 319 payment of award of, 319 statute of limitations as to, 319 INDEX. 899 (References are to pages.) TELEGRAPH AND TELEPHONE COMPANIES — Continued. Delinition of: includes what, 77 Directors of, statement of names, residence, etc., 29 Employees of, mutual benefit societies of. (See Insurance companies — Life. provisions of §§ 3630a to 3630f, 3631 do not apply to, when, SM Excise tax on, amount, levying of, collection, etc., 78, 80 exempted from provisions of " Willis Law," 20 failure to pay, 80 tangible property not exempt from taxation, 80 Exempted from provisions of § 2744, 69 Foreign, section 148e does not apply to, 11 Highways. (Sec "Streets, highways, etc.," below.) Inclosures, erecting poles, etc., in without consent, 317, 323 Include whom, 63 Instruments, etc., of, connecting, interfering with, unlawfully, 322 Liability of, tor negligence, 316 Lines of — injuring, penalty for, 319 joint ownership of, 317, 323 leasing of, 316, 317, 323 taxation of, 320 lines of electric light companies must not interfere with, 325 reports to state auditor must show what as to, 68 Messages, — copying or reading by instruments unlawfully: penalty, 322 damages for negligence in transmitting, — burden on company to show lack of negligence, 320 company cannot contract against its own negligence, 320 limited to pecuniary loss or physical suffering, .320 none for mental suffering, 320 delivery of — by mail when, 321, 323 delay in, penalty for, 321, 322 failure in, 320, 321, 323 liability for prompt, 321 measure of damages, 321 proximate cause, 321 limit within which required, 321, 323 must be in order of receipt, without preference, 321, 323 penalty for violation of provisions as to, 321 divulging contents of: penalty, 321, 323 forging name of receiver to receipt for: penalty, 321, 323 transmission of, — company must forward over other lines, when, 320, 323 companies must receive and transmit from other lines, 320, 323 contract discriminating in favor of one company void, 323 penalty for refusal or neglect, 320, 323 delay in — agent must inform sender of, when, 321, 323 cause of indorsed on dispatch, when, 321, 323 penalty for violating provisions as to, 320, 322, 323 failure or neglect in: penalty, 321 false, forged or unauthorized: penalty, 322, 323 must be in order of receipt, 321, 323 damages for giving precedence to, 321, 323 news items may be out of regular order, when, 321, 323 of public officers have precedence, when, 321, 323 penalty for violating provisions as to, 32], 323 of passenger delayed by accident or collision on railroad, 261-262 alteration of forbidden, 262 penalty for violating provisions as to, 262 sent forthwith, 262 unlawful interference with: penalty, 322 Mortgages of — record of, 151 Officers of, — examination of, by state board of appraisers and assessors, 70 penalty for refusal to testify, 70 reports made, filed, etc., by, when, 24, 28, 68 statement of names, residence,- postofBce address of, required, 29 Penalties against, — collected by civil action or indictment, when, 30 provisions of §§ 2781 to 2785 apply to, 70 Poles of — license to others to use, when, 316 900 INDEX. (References are to pages.) TELEGRAPH AND TELEPHONE COMPANIES — Continued. location of, condition of road, etc., to be considered, 316 unlawfully erected, ordered removed when, 316 Powers of — to construct, use, etc., telegraph lines, 316, 323 to lease, etc., other lines, 301, 316, 317 Eailroad company not to do business with or for, when, 83 Repair of structures, lines, etc. — when on land of a corporation, 323 corporation may make, when, . 323 notice to company to make, 323 Reports, — to commissioner of railroads and telegraphs, — additional made, 25 amendment, etc., of, 26, 28 blank forms for, commissioner to furnish, 25, 28 defective or erroneous, correction of, 26, 28 form and manner of, 25, 28 excuse for not conforming to, 29 made and filed by whom, when, as of what date, 25, 28, 29 penalties for violating provisions as to, 26, 28, 30 requirements as to: must show what, etc., 25, 26, 28, 29 to state auditor, — blanks for auditor prepares and furnishes, 69, 78 duties and powers of officers as to, 77 failure or refusal to make, 79 must show what as to, — capital stock, 68 character and nature of company, 68, 77 gross receipts, 68, 78 name of company, 68, 77 officers, etc., name and address, 68, 77 organization, laws and state of, 68, 77 principal office, location of, 68, 77 property, real and personal, 68 Returns of, for taxation, 56 Right of way, — appropriation of, over lands, to construct, repair, etc., 317, 323 exclusive, unlawful to contract for, 317, 323 Sections 3454 to 3461, 3462 to 3471 apply to telephone companies, 323 Service by telephone company, mandamus to compel, 323 Stockholders, statement showing name, address, and shares owned by made annually, 26 Stream and water courses, erecting lines across, 319 limitations upon, 319 Streets, highways, alleys, etc., — use and occupancy of, by — additional burden when, 316 company cannot grant right of, to another, 316 compensation for, to municipality, 316, 323 limitations upon, 318, 323 conflicting rights, — between telephone company and street railway, 316 poles, etc., of electric light and power companies not to interfere with, 325 mode of use of, — agreement with municipality as to, 318, 323 cannot fix charges for service, 319 probate court may direct when, 318, 323 right to, 315, 323 persons entitled to: limitations upon, 319 terminates with agreement for, or order of court, 318 ouster, none until failure to agree, etc., 319 transfer of, power of court to make, 318 Subways or underground conduits. (See Subways fob Electric Wires.) Taxation of. (See Taxation.) amount invested by persons in telegraph lines subject to, 320 Wires of, — additional — injunction will not lie against when, 315 strung by others under license not a nuisance when, 316 over railroad tracks. (See Railroads.) unlawfully cutting, breaking, tapping, etc., 322 TELEGRAPH AND TELEPHONE LINES. (See Commissioners of Railroads and Tkle- GRAPHS : Railroads : Telegraph and Telephone Co.'s. ) TELEGRAPH OPERATOR. (See Railroads.) INDEX. OJl (Rtferences are to pages.) TITLE GUARANTY AND TRUST COMPANIES. (See Insurance Co.'s — Accident : In- suBANCE Co.'s — Other than Life: Insurance CoMPANii,s — Title Guaranty. ) THEATER. Lease of, by literary, religious, or scientifio associations, 113 TICKET: TICKET AGENT. (See Railroads.) THIEVES. (See Criminals.) Agents of union depot companies may arrest when, 314 TORNADO INSURANCE. (See Insurance Co.'s — Fire: Insurance Co.'s — Other than Life.) TOLL BRIDGES. (See Bridges.) TOLL GATES. (See Avenue Companies: Turnpike and Plank Road Companies.) TOWNS. (See Municipal Corporations.) TOWNSHIPS. Agricultural societies of. (See Agricultural Societies — Township.) Cannot aid corporations, 2 Trustees of, — duty of, as to unclaimed or unidentified corpse, 481, 482 as to grant of use of streets, etc., to pipe line companies, 571 may appoint cemetery watchman, 358 may erect buildings on cemetery grounds, 38 powers of as to railroad highway crossings, 228 religious and benevolent societies may convey cemetery grounds to, 489 care, etc., of: expense shared how, 489 TRACKS. (See Railroads: Street Railway Companies.) TRACTION COMPANIES. (See Street Railway Companies.) TRACTION ENGINES. Rates of toll for, 331 TRADE ASSOCIATIONS. (See Co-operative Companies.) Distribution of purchases, 563 Objects and purposes of, 563 Powers of, 563 Profits arising from, distribution of, 563 TRAINS. (See Railroad Trains.) TRAINMEN. (See Railroads.) TRANSFER. (See Capital Stock.) TRANSPORTATION INSURANCE. (See Insltrance Co.'s — Marine : Insurance Co.'s — Fire: Insurance Co.'s — Other than Life.) TRANSPORTATION COMPANIES. (See Freight Line Co.'s: Navigation Improvement Co.'s: Pipe Line Co.'s: Railroad Co.'s, etc.) Cattle shipped by, from southern points. (See Cattle.) Foreign, section 148e does not apply to, 11 Freight of. (See Freight.) Powers, etc., of companies conveying, freight, towboats, etc., by water, 571 subject to laws governing individuals, 571 Steamboats, barges, etc., certain companies may build, etc., 571 Service of summon upon river transportation companies, 582 in actions before justice of peace, 623 may be on — chief officer of river boats, 582 freight agent, 582, 623 master of boat, 582, 623 ticket agent, 582, 623 Stockholders of, parties interested in, ineligible to office in railroad company, 212 Water companies not included in, 571 TREASURER OF CORPORATIONS. (See under respective companies.) Appointment of, by directors or trustees, 125 Bond of — form for regulations as to, 669 liability of sureties on, 127 By-laws concerning, 136 Compensation of — directors or trustees acting as, 126 form for regulations as to, 669, 671 Duties and powers of — as to moneys, 127 as to reports of companies limiting votes of stockholders, 121 form for regulations as to, 668, 671 Election, etc., of. forms for regulations as to, 668, 671 Liabilities of, when treasurer of preliminary and final organization, 127 902 INDEX. (References are to pages.) TREASURER OF CORPORATIONS — Continued. Name and address of, reports to secretary of state to give — in case of corporations for profit, 17 corporations not for profit, 19 foreign corporations, 18 Suit against may be brought, when, 137 Summons may be served on, when, 582 in actions before justice of peace, 623 in case of indictment of corporations, 639 TREASURER OF STATE. (See State Treasurer.) TRESPASS. Animals, permitting, etc., by, upon railroad inclosure, 638 Corporations not liable for, 108 TRUST AGREEMENTS, ETC. Combination or joint arrangements, what can be formed, 110 Corporations, power of, to make, 112 Voting agreements, legality of, 124 TRUST COMPANIES. (See CHARrrABLE Thust Co.'s: Safe Deposit and Trust Co.'s.) TRUST FUNDS. Corporations for receiving, for certain purposes. ( See Arts — Fine : Industriai. Teain- iNG Schools: Law Libbaey Co.'s : Mechanic's Institutes: Museum Co.'s: Widow's Homes, Lbctubb Associations, Li- brary Companies.) Proceeds of corporate bonds are, when, 197 misuse of, injunction to prevent, 197 TRUSTEES. (GENERALLY.) Action by, for deception in issue of bonds to cestui que trustent, 197 Disposition of property in litigation, in hands of, 591 enforcement of order of court as to, 591 In mortgage, to serve bonds. (See Mortgages.) Transfer of stock to^ 143 Safe deposit and trust company as. (See Safe Deposit and Trust Companies.) TRUSTEES OF CORPORATIONS. (See Directors.) Board of — ■ oificers of. (See President, Secretary, Treasurer.) quorum, majority constitutes, 125 By-laws — giving perpetual control to, cannot be made by, 124 may adopt, 136 Compensation may be allowed, when, 126 De facto, persons failing to take oath of office may be, 125 Duties and powers of — as to amendment of articles; notice oi meeting, etc., 102 corporate powers, business and property, 128 Election of — date of, reports to secretary of state to give, 19 forms for regulations as to, 671 held when, 123 regulations may provide as to, 137 legality of, determined by quo loarranto, 124 meetings for; notice of, etc., 123 regulations may provide mode and manner, 137 subscribers to articles elect first, 113 Liability of — enforcement of, by creditors — account of corporate property and obligations in, when, 159 application of corporate assets, 159, 160 complaint filed, when, 158 creditors, failure of, to present claims, 159 notice to, to present claims, 159 insolvency of corporation necessary to, 159 judgment for, when, 159 nature of action for, 165 notice to non-resident stockholders, when, 159 receiver of corporation, appointment of, 158 prosecutions by, in other jurisdictions, 159 res judicata as to, 165 unpaid stock subscriptions collected first, 159 nature of, 165 INDEX. 903 (References are to pages.) TRUSTEES OF CORPORATIONS — Continued, personal, for debts contracted, 164 in case of mutual societies under act of 1872, none, 165 what are debts of corporation, 165 when stock is issued, 164 Names and addresses of, reports to secretary of state to give, 19 Number of, 113 forms for regulation establishing, 670 Oath of office of, 125 effect of failure to take, 125 Qualifications of, 128 Term of office of, 113 until successors elected and qualified, 113, 123 Vacancies in board, filled by, when, 128, 129 lack or cessation of qualification causes, 128 minority cannot fill, 129 TURNPIKE ROAD. Mechanic's lien on. (See Mechanic's Liens.) TURNPIKE AND PLANK ROAD COMPANIES. Accounts, must keep what, 339 what to be shown, 339 Actions against, brought where, 580 Appropriation of easement, damages of, for, 183 of use, etc., of, by street railways in certain counties ( Cuyahoga ) , 302 Articles of incorporation. ( See " Division," etc., " Incorporation of landholder," etc., "Incorporation of purchasers," etc., below.) must show what, 328 supplemental articles filed, 328 Books of — must show what, 339, 340 open to inspection of agent of general assembly, 339 of county commissioners, 339 of stockholders, 339, 340 refusal as to, forfeits charter, etc., 339 what must be kept, 339, 340 Bridges, etc., of — carrying fire across wooden, 334 enlargement of, commissioners may order when, 576 fast driving or riding on, 334 U. S. express mail excepted, 334 repair of. ( See " Road of," below. ) sale of, when in municipal limits, 335 Capital stock. (See "Division," etc., "Incorporation of landholders," etc., below.) shares of, books must show what, as to, 340 stock books, must keep, 339 must show what, 339, 340 subscriptions to, bool^s for, to additional, to complete, extend, etc., 339 transfer of, books must show what, as to, 340 Consolidation of, laws as to railroads apply to, 339 Creditors of, effect of sale, surrender, etc., of road upon, 339 Debts, apportionment of, in case of division of company, 343 Directors of, duties and powers of — as to obstruction in roads, 341 reports to stockholders, 340 sale of road to county commissioners, 336, 337 Dividends, directors must declare, when, 340 Division of, into several companies, 342, 343 articles upon, what constitutes, 343 filed with secretary of state, 343 record of, 321 capital stock, apportionment of, upon, 343 consent of stockholders necessary, 342, 343 liability of companies for debts of original company, 343 may be made when, 342 meeting of stockholders for, 342 notice of, 342 proceedings of: record, 343 certified copy of, filed as articles, 343 vote necessary, 342, 343 name of new companies, 343 organization of new companies, 343 904 INDEX. (References are to pages.) TURNPIKE AND PLANK ROAD COMPANIES — Continued, powers of, same as other companies, 343 stockholders of new company, 343 Expenditures, report of directors must show what^ as to, 340 Incorporation of landholders assessed for improved roads — articles must show what, 341 branch road or extension — capital stock may be increased to build, 342 upon refusal to build, another company authorized, 342 capital stock — amount fixed, how, 341 increase of, 342 consent of county commissioners to, 342 of stockholders^ 342 purposes of, 342 shares of, certificates issued when, to ■whom, 342 subscriptions to, books opened when, where, 342 amount of: limitation upon, 342 notice of, 342 who may make, 342 subscription to, not to be received, 342 petition for — certificate of county auditor as to signatures to, 341 must accompany articles, 341 must be signed by whom, 341 powers of, same as other companies, 342 stockholders of, who are or may be, 342 Incorporation of purchasers at judicial sale, 343 articles, copy of sale, confirmation, etc., filed as, 343 record of, 343, 344 name of new company, 343 Judgment, against gatekeeper is against company, 340 execution on, against both, 340 Liability of, — for damages from failure to repair, '333 report of directors must show what, as to, 340 Officers, salaries of, report of directors to show, 340 Powers of, 328 President of, duties and powers of — as to deed of road — to county commissioners, 337 to private purchasers, 336 as to obstructions in roads, 341 surrender of road to county, 336 Real estate, cannot hold in fee, when, 328 Receipts of, from all sources, reports of directors to show, 340 Returns of, for taxation, 56 Right of, to use bridge, road, street, etc. — acquired, how, 329 in municipalities, not included, 329 is exclusive, 307 macadamized road not included, 329 petition for; notice of, 329 Roads of — abandonment of, power of court to declare, 333 appropriation of, in municipal limits, 334 measure of damages, 335 must include all in limits, 335 nature of proceedings, 335 articles to designate, 328 bridges over ditch -onnecting with private way — right of abutting owner to construct, 331 of individual not an abutter, 331 companies may improve and hold, what, 328 construction, etc., of — materials, what permitted, 328, 329 change of, not to impair usefulness, 328 requirements when' plank, 328 regulations as to, 329, 330 division of. (See "Division of," etc., above.) easements in — . cannot grant greater than it possesses, 328 interest of company in, 329 INDEX. 905 (References are to panes.) TURNPIKE AND PLANK ROAD COMPANIES — Continued, examination of, before license to take toll, 330 fences in, or upon; penalty, 340, 341 notice to remove, 341 grade of, 330 joint ownership of, 328 liens on. (See Mechanic's Lien.) location, survey, etc., of, 329 change of, to avoid water courses, etc., 329 appropriation of property for, 329 milestones along, 331 mortgage upon, foreclosure of — appraisers for, appointment, 335 proceedings for, same as on real estate, 335 sale under may be in parcels, when, 335 passes corporate franchises, 335, 336 obstructions; wood, stone, etc.; penalty, 334, 340, 341 notice to remove, 341 penalties and forfeitures relating to — justice of peace has jurisdiction, 334 paid into county treasury, 334 recovered with costs, rf34 pipes in, — municipalities cannot lay without compensation, 328, 331 right of abutting owners to lay, 328, 331 purchase of, by county commissioners, 336, 337, 338 appraisers for, appointment, oath, duties, 337 fees of, 338 inspection of road; report, 337 new appraisers, appointed when, 337 deed for; execution, record, etc., of, 337 effect of, upon creditors, 339 fees of county auditor and treasurer, 338, 339 payment for, 338 bonds for: amount, interest, time, etc., 338 refunding certain taxes and assessments, 338 tax levy for, 338 petition of freeholders for, 337 question of, submitted to vote, 337 repair of, after, 338 time within which to be made, 337 vote of stockholders as to, 336 repair of, — duty of purchaser of tolls on execution, as to, 344 outside of municipalities, 332, 333 complaint of failure as to, 332 appeal lies when : what necessary to, 333 bond for: conditions for, 333 proceedings upon, 333 costs paid, by whom, 333 inspectors; appointment, fees, etc., of, 333 report of; copies, record, etc., 333 must show what, 333 notice as to, to gatekeeper, 333 county commissioners cannot compel, by mandamus, 333 damages from lack of, 333 within municipalities, 332 abandonment for failure to make, when, 332 complaint of failure as to, 332 costs under paid by whom, 332 inspector; appointment, oath, etc., 332 notice of, must state what, 332 municipality may require by resolution, 332 company to declare intention as to, 332 copy of resolution served on gatekeeper, 332 same as public streets, when, 334 right of way for — appropriation of, 329 purchase of, 329 sale of — except to county commissioners, 336 consent of stockholders to, 336 906 INDEX. (References are to pages.) TURNPIKE AND PLANK ROAD COMPANIES — Continued, dissenting stockholders, rights of, 336 deed for : execution, record of, etc., 336 effect of, upon creditors, 339 in one county, effect on remainder, 339 to county commissioners. (See "Purchase of," etc., above.) to municipalities, when within limits, 335 upon execution, 343 appraisement of, 343 copy of, etc., filed as articles, 343 franchises, corporate, included, 343 supervisor of highways has no control over, 333 surrender of, to county in which located, 336 consent of county commissioners, 336 of stockholders, 336 effect of, upon creditors, 339 evidenced how, 336 must be without consideration, 336 tolls not to be collected on, 336 termini of, articles to name, 328 toll gathers upon, penalties against — for demanding toll — greater than allowed by law, 333, 334 over portion, in municipality abandoned for repairs, 332 over road outside municipality found out of repair, 332 for detaining travelers unreasonably, 333, 334 width of, 329 within municipalities, become public streets, 334 compensation to company for, 334 recovered how. 3.^1, 335 repair of. (See "Repair of," above.) Secretary of, — - duties and powers of — as to deed of road to county commissioners, 337 to private purchasers, 336 as to surrender of road to county, 336 Stock books. (See "Capital stock," above.) Stockholders of — assessment of, may make when, 341 basis of, stockholders determine, 341 collected by action, when, 341 limitation upon, 341 meeting for; notice of, proceedings at, 341 payment of — credited upon stockholders' liability, 341 time, mode, etc., stockholders determine, 341 cannot act as county commissioner or probate judge in authorizing to take toll, 330 liability of, under act of May 3, 1852, 158 meetings of, — regular, held when; notice of, 340 to authorize sale to county commissioners, 336 called by whom ; notice, vote, 336, 337 names of, and shares held, books must show, 339, 340 reports, — of directors to ; made when, shows what, 340 of gatekeepers, submitted to, 340 Subscriptions by, to aid in building or repairing — free turnpike which intersects road, 339 limits upon: consent of stockholders to, 339 road which is a continuation or extension, 339 limits upon: consent of stockholders to, 339 Superintendent of, duties, etc., as to obstructions, 341 Toll — amount received at each gate — gatekeepers must report, 340 report of directors must show, 340 collection, etc., of — demand not necessary, 330 evading, etc.: penalty, 330 greater than allowed by law, 333, 334 none, over road surrendered to county, 336 over road within municipality, 334, 335 over part of road — abandoned for failure to repair, 332 outside of municipality found out of repair, 333 exemption from, 331 INDEX. 907 (References are to pages.) TURNPIKE AND PLANK ROAD COMPANIES — Continued. to grantor of right of way, does not run witli land, 330 rates of, 331, 332 must be posted near toll gates, 331 over mine or quarry roads, 331, 332 right or license to take — acquired, how, 330 is a franchise, 330 is property, 335 may be sold on execution, when, 344 certificate of sale and its effects^ 344 rights and duties of purchaser, 344 sold as personal property, 344 to whom, 344 Toll gates — erection or maintenance in or near municipalities forbidden, 334 injunction to prevent, by individuals, against company, 335 mandamus to prevent, against city, 335 removal of, when municipal limits extended, 334 compensation must be first made, 335 damages for, 334 Toll gatekeeper — agent of company, how far, 340 judgment against, is against company, 340 salaries, etc., of, report of directors must show, 340 report of, 340 must be submitted to stockholders, 340 must show what, 340 under oath, 340 Toll house, may erect, when, where, 329 Treasurer of — bond of; oath, 340 can hold no other office, 340 ULTRA VIRES. (See Cobporate Powers.) Acquiescence of stockholders, effect of, 133 Acts which are, — do not dissolve corporation, 106 corporation may set aside, although ratified by stockholders, 107 Contracts which are — effect and enforcement of, 106 guaranty of, valid when, 106 liability of directors on, 132 partly illegal, enforcement of, 106 Defense of, to escape payment of borrowed money, 150 Surrender of stock to company is, when, 110 Trustees of mutual insurance company, not liable on policy on ground of, 165 Unauthorized purpose or mode, effect of on legal act, 107 What to be considered in determining, 105 Who may raise question of, 106, 110 UNCLAIMED FREIGHT, ETC. (See Freight.) UNDERGROUND CONDUITS. (See Subways.) UNION DEPOT COMPANIES. Agents, employees, etc., of. (See "Officers," below.) appointment of, 313, 314 authority of, to make arrests, 314 discharge of, 313 duties and obligations of, laws as to railroads apply to, 314 Appropriation of property for. (See Appropriations.) Articles of incorporation of, 313 certified copy, evidence of corporate existence, 313 execution of — corporate seals of constituent companies attached, 313 president of constituent companies sign, 313 filing of, 313 must show what, 313 who may file, 313 Bonds, notes, etc. — amount of, limitations upon, 314 companies may issue: interest on, 314 sale of, directors control, 314 secured by mortgage, etc., 314 stockliolders may sruarantee, 314 By-laws, rules, etc.. director's pass, 314 Capital stock — amount of, articles to give, 393 908 INDEX. (References are to pages.) UNION DEPOT COMPANIES — Continued. constituent companies own in equal shares, 313 Definition of: includes what, 77 Directors of, duties and powers of, 313, 314 vote necessary for action by, 313 who are, 313 Excise tax on, amour j, levying, collection, etc., of, 80 failure to pay, 80 exempted from provisions of " Willis Law," 20 tangible property not exempt from taxation, 80 Hackmen, etc., at depot — company may -^ adopt rules to control, 314 grant exclusive rights to transfer company, 314 ordinance prohibiting soliciting, etc., by, valid, 314 Lia.bilities, constituent companies jointly liablo for, in equal shares, 314 Name, articles must give, 313 Names of constituent companies, articles must give, 313 Objects or purposes of, 313 Officers of — authority to make arrests, 314 directors appoint, etc., 314 examination of, by state board of appraisers and assessors, 79 refusal to testify, etc.; penalty, 80 duties and obligations of, laws as to railroads apply to, 314 reports made filed, etc., by, when, 77 Powers of, 313 to locate and take releases of right of way and depot grounds, 313 Property of, protection of, laws as to railroads apply to, 314 Records of proceedings, etc. — directors must keep, 314 stockholders, etc., may inspect, 314 Reports to state auditor — blanks for, auditor prepares and furnishes, 78 duties and powers of officers as to, 77 failure or refusal to make, 79 must show what as to — character and nature of company, 77 gross receipts, 78 name of company, 77 officers, etc., name and address, 77 organization, laws and state of, 77 principal office, location of, 77 Rules and regulations — directors adopt, 314 posting of, 314 violation of, arrest for, etc., 314 Section 3281 applies to, 313 UNIVERSITIES. (See Schools, Colleges, etc.) USURY. In sale of bonds below par, 201 VALUATIONS OF LIFE INSURANCE POLICIES. (See Insurance Co.'s — Life.) VEHICLE. Law of road as to: turn to right, 334 Rates of toll for, over bridges, 346 over turnpikes or plank roads, 331 VERIFICATION. ( See Aefidavits : Oaths: Pleadings.) VENUE, CHANGE OF. Allowed when, in suit by or against corporations, 581 affidavit for: credibility, etc., 581 provisions as to, mandatory, 581 Foreign life insurance companies seeking, license to do business revoked, 375 VESSELS. Shooting or throwing at, 636 VIADUCTS. (See Bridges: Railroad Ceossings.) VICE PRESIDENT. (See under respective companies.) Duties and powers of — forms for regulations as to, 668, 671 Election of, forms for regulation as to, 668, 671 Power of, to sign notes, 127 VOLUNTARY APPEARANCE. (See Appearance.) INDEX. 909 (References are to pages.) VOTE. (See Board of Appraisers op Railroads: Capital Stock: Directors: Stock- holders: Submission to Voters.) Agreements, sale, etc., of, etc., 124 VOTIJvG AGREEMENTS. (See Trust Agreements.) WAOtON. Rates of toll for — over bridges, 346 over turnpikes or plank roads, 331 WAGES, INSURANCE. (See Insurance Co.'s — Credit Guaranty.) WAITING ROOMS. (See Depots: Railroads.) WAIVER. Of couditioas of stock subscriptions, 117 Of notice as to or of — amendment of articles, 102 forms for, 661 meeting to amend articles, 102 forms for, 660 meeting to increase capital stock, number of shares, etc., 165 meeting to organize company, 118 form for, 665 opening books of subscription to capital stock, 115 Of right to call for payment on stock, 118 to have statutory amount of capital stock subscribed, J.18 to remove causes, by foreign corporation, 15 Of stockholders' liability, 154 WAREHOUSE. Company to construct, etc. (See Building Companies.) WAREHOUSEMEN. Lien of, for freight, storage, etc., charges, 87 action to enforce, 87 Notice by, of receipt of freight at destination, 86 Penalty for non-compliance with sections 3221 to 3231, 88 Unclaimed freight, duty, etc., as to. (See Freight.) SVAREHOUSE RECEIPTS. (See Railroads.) WATCHMEN. (See Railroads.) WATER PIPES. Appropriation of vray for, by pipe line companies, 571 by railroad companies, 183 WATER TANKS. (See Railroads.) WATER TRANSPORTATION COMPANIES. (See Pipe Line Companies.) WATER WORKS COMPANIES. Agents, employees, etc. (See " Officers," below.) Appropriation of property — sections 3551 to 3553 do not authorize, 350 section 3878 does not authorize, 538 Books, papers, etc., of, examination, etc., of, by state board of appraisers and assessors, 80 Definition of: includes what, 77 Excise tax on: amount, levying of, collection of, etc., 78, 80 exempted from provisions of " Willis Law," 20 failure to pay, 80 tangible property not exempt from taxation, 80 Exclusive right of, in municipalities — second company must be authorized by ordinance, 350 by vote of electors, 350, 35 to use and occupy streets, etc., not authorized, 340, 350 Officers of — examination of, by state board of appraisers and assessors, 79 refusal to testify, etc.: penalties, 80 reports made, filed, etc., by, when, 77 Powers of, to sell and furnish water, 349 Reports of to state auditor — blanks for, auditor prepares and furnishes, 78 duties and powers of officers as to, 77 failure or refusal to make, 79 must show what as to — character and nature of company, 77 gross receipts, 78 name of company, 77 ?10 INDEX. (References are to pages.) WATER WORKS COMPANIES — Continued. officers, etc., name and address, 77 organization, laws and state of, 77 principal office, location of, 77 Service of, — municipal contracts for, 350 need not be submitted vote of electors, when, 351 Streets, alleys, etc., use, etc., of, for pipes — authorized in municipalities and townships, 349 consent necessary, of municipal authorities, 349 of township trustees, 349 exclusive right not authorized, 349 regulation of, municipal authorities prescribe, 349 township trustees prescribe, 349 WHARF. Appropriation of property for, by railroads, 185 WHARF BOAT COMPANIES. (See Navigation Improvement Co.'.s: Teanspoetation Co.'s.)' Statute permitting steamboat and watercraft companies authorizes, 94 WHARFINGERS. (See Warehousemen.) WIDOW'S HOME COMPANIES. Acceptance of provisions as to, 483 certificate as to, — acknowledged by trustees, 483 filed with secretary of state, 483 Agents, officers, etc., of — directors or trustees cannot be, 483 duties of, enforcement of: removal, 484 Articles may prescribe what, 483 Directors or trustees of — appointment, etc., of, articles prescribe mode of, 483 compensation of, none, 483 enforcement of duties of: removal, 484 ineligible to salaried office, etc., 483 may be of either sex, 483 tenure of office, articles prescribe, 483 Funds, etc., of — accounts, reports, etc., of, filed with clerk of common pleas court, 453 enforcement of, 483 organic rules as to, 483 Objects or purposes, additions to, 483 certificate of, acknowledged, and filed with secretary of state, 483 Officers. (See " A^enis," above.) Organic rules — articles prescribe, 483 permanency of, 483 Property of — administration and management of, articles prescribe mode of, 483 power to hold, acquire, etc., 483, 573 limitations as to use^ 573 WILLIS ACT. Provisions of, 17-21 WIRES. (See Raileoads: Telegraph and Telephone Companies.) WITNESSES. Commissioner of railroads may subpoena, 29 To deeds, conveyances, etc. (See Real Estate.) WOMEN. Unmarried, home for. (See Widow's Home Companies.) WOMEN'S CHRISTIAN ASSOCIATION. Powers of certain, as to procuring homes for children, 499 WORDS AND PHRASES. (See Definitions). WORKHOUSE. Deceased inmates of, duty of superintendent as to bodies of, 481, 482 WORKSHOPS. (See Machine Shops.) WRECKING COMPANIES. Objects and purposes of, 572 Powers of, 572 Subject to laws governing individuals, 573