r''- f^9 Cornell University Law Library FROM THE BENNO LOEWY LIBRARY RECEIVED BY CORNELL UNIVERSITY UNDER THE WILL OF MR. BENNO LOEWY Cornell University Library KFW1410.A3 1899 west VIrMa corDora^^^^ llim»Q24 7^1 172 «. Cornell University Library The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024711172 WEST VIRGINIA CORPORATIONS HOW TO INCORPORATE, ORGANIZE AND MANAGE THEM, WITH FORMS FOR BY-LAWS, AGREEMENTS, PO WERS-O F-ATTOE- NEY, NOTICES OF MEETINGS, CHANGING OF NAME, INCREASING AND DECREAS- ING CAPITAL STOCK, NEW AGREEMENT, &C. AND HOW TO ISSUE COMMON AND PREFERRED STOCK; FORMS OF PROCEDURE FOR FOREIGN CORPORATIONS DESIRING TO TRANSACT BUSINESS IN THE STATE. ALSO THE CORPORATION STATUTES OF WEST VIRGINIA AND NOTES OF ALL THE DECISIONS OF THE SUPREME COURT OF APPEALS OF WEST VIRGINIA CONCERNING SUCH CORPORATIONS. BY W.% CHILTON — OF^ — Chilton, MacCorkle & Chilton, Charleston, West Virgfinia. Charleston: THE TRIBUNE COMPANY 1899. T3/73^S Copyright, 1899 BY W. E. CHILTON PREFACE. Tliere are thousands of corporations, created under the laws of West Virginia, doing business in nearly every state and territory of the Union. These companies recognize the liberality gf our laws in the simplicity of the initial steps of organization; and the fact that careful business men from every ptat^^ have invested money ' in them is proof that our laws furnish ample protection to the stock- holder and creditor. A large number of these corporations, however, have non-resident stockholders and officers, who cannot be expected to have an intimate knowledge of our laws. Nearly every question of law that arises in the course of the management of a corporation, must be an- swered by reference to several chapters of the code and to the subsequent legislative acts. To the West Virginia lawyer this investigation requires a little time only; but to the non-resident lawyer and busi- ness man, such an investigation often leaves him in great- er perplexity than when he began. It is the purpose of this work to arrange the corporation statute laws of the State, as far as practical, into subjects, and after each section give the origin of the law and short notes of the decisions of the Supreme Court of Appeals construing it. These notes are believed to be exhaustive down to Vol. 44 W. Va. Reports and also include the subsequent decisions handed down at the October term, 1898, and the March term, 1899, which will appear in Vol. 45. The subjects of "Taxation of Corporations" and "Condem- nation of Lands" are deemed of sufficient importance to re- 4 AA^EST VmCJINIA CORPORATIONS. quire separate chapters, grouping the statutes upon eacli subject. The first pages to IOC are intended for the busy man, who is incorporating, organizing or managing a corpora- tion. Each stejj in the worlt from the preparation of the original agreement is mapped out for him, and all forms are given in full, including by-laws, which, in themselves, embrace the essential requirements of the statutes, so that an observance of the by-laws will be the following of the statutes. That the work is imxterfectly done, I have no doubt; but I submit it to the i>r()fession and those managing West Virginia corporations, with the sincere hope that it may be useful. I desire to acknowledge my indebtedness to Hon. William M. O. Dawson, the present secretary of state; Hon. L. M. La Follette, "auditor; Hon. E. P. Rucker, attorney general, and his chief clerk, Mr. E. M. Keatley, for their many cour- tesies and valuable suggestions in the preparation of these pages. Hon. W. A. MacOorkle and Mr. Jos. E. Chilton, my law- partners, have helped me more than can be told. By rights, if the proprieties allowed it, this should be signed by .my firm instead of me. ^V. E. CHILTON. Charleston, W. Vn., May, 1899. WEST VIRGINIA CORPORATIONS CHAPTER I. The laws of West Virginia provide specially for the in- corporation of the following classes of corporations : Eail Koad Companies, Boom Companies, Title and Trust Companies, Building and Loan Associations and Savings Banks. While 'che proceedings for the incorporation of these companies are similar to the proceedings for 'che incorpora- tion of companies in general, it will be found that the spec- ial statutes as to each will have to be consulted, and the in- structions and forms hereinafter given do not always apply to 'chem. The formation of such companies is usually conducted by counsel, and for the benefit of the latter, the statute law of the state concerning their incorporation, management, rights, duties and liabilities is compiled in what is hoped to be, convenient form. Therefore, it will be understood that the instructions and forms, hereinafter given, apply to corporations incorporated under the general law and not to those above-mentioned, as 'co which there are special statutes governing each. The laws of West Virginia allow the incorporation of joipt stock companies or corporations for any and every legitimate en'cerprise or business and for any and every public use and charity. It would be difficult to conceive any legitimate and use- 6 WEST VIRGINIA COEPOEATIONS. ful purpose, needing corporate existence, not embraced in the following statute: TO WHAT CHAPTERS SUCH COMPANIES SHALL BE SUBJECT. Joint stock companies, incorporated under this chap'cer, shall be subject to the provisions of the fifty-second and fifty -third chapters of the code, so far as the same are a]i- plicable. [Code, ch. 54, sec. 1.] THE PURPOSE FOR WHICH JOINT STOCK COMPAN- IES MAY BE FORMED. Such companies may be incorporated for the folowing purposes : I. For manufacturing, mining or insuring. II. For constructing and main'caining lines of magnetic telegraph, telephones, lines of piping or tubing for the transportation of oils or other fluids; and carrying on the business properly pertaining to such works and improve- ments. III. For establishing hotels and springs companies, gas works, water works, cemeteries, or building and loan as- sociations, and 'transacting the business properly pertain- ing thereto. IV. For universities, colleges, academies, seminaries, schools, or institutes, for the purpose of teaching any branch or branches of useful information or learning, or pro- moting religion, morality military science or discipline; or the diffusion of knowledge, including library companies and literary and scientific associations. V. For agricultural and industrial socie'cies. VI. For benevolent associations, societies and orders, in- cluding orphan, blind and lunatic asylums and hospitals, lodges of free and accepted masons, independent order of odd fellows, improved order of red men, sons of temper- ance, good templars and knights of pythias, and all other associations, societies and orders of like character. VII. For gymnastic purposes. VIII. For railroads and other works of internal improve- ment. IX. For banks of issue and circulation, and of discount and deposit, and for savings institutions. X. And for any other purpose or business useful to the public for which a firm or copar'cnership may be lawfully formed in this state. [Code, ch. 54, sec. 2.] WEST VIRGINIA CORPORATIONS. T FORMATION OF CORPORATIONS FOR CERTAIN PURPOSES PROHIBITED. But this chapter shall no'c be construed to authorize the incorporation of any church or religious denomination, or of any company the ojbjecc or one of the objects of which is to purchase lands and re-sell the same for profit. [Code, ch. 54, sec. 3.] The whole field of agriculture, commerce, mining, raan- facturing, trading, insuriijg, banking, telegraphing, tele- phoning, transportation in every form, education, mental and physicial development, arts, sciences, and benevolent, social and secret societies and orders, seems 'co be covered by the first nine sub-divisions. If not the tenth embraces all that may have been omitted. There are but two excep'dons: 1st. No church or religious denomination can be incor- porated. 2nd. No corporation can be formed if one of its objects be to "purchase lands and re-sell the same for profit." The following sections on this subject are to be noted: No corporation subject to this chapter, whether incorpor- ated under special charter or general law, sliall hold more than one hundred acres of land; except that a company for mining iron, lead or copper ore, and manufacturing the same into metal, may hold ten 'thousand acres for every charcoal blast furnace, and three thousand acres for every other furnace; companies for mining and selling coal, ten thousand acres each; other mining companies, salt com- panies and oil companies, three thousand acres each; other manufacturing companies', one thousand acres each, and a springs company, fifteen hundred acres; nor shall any cor- poration subject to this chap'cer, hold more than five acres in any incorporated town or city, except as provided in the fourth section of chapter fifty-two of this code, and except that socie'cies formed to promote agriculture or stock raising may hold not exceeding thirty acres in any incor- porated town or city. But nothing in this section contain- ed shall be construed to prevent any company heretofore incorporated from holding such number of acres of land, in addition to the number herein prescribed, as may be au- thorized by i'cs charter. But any such springs company now 8 WEST VIRGINIA CORPORATIONS. owning or occupying the real estate of a former springs company may take, hold and use the same, notwithstand- ing the quanti'cy thereof shall exceed fifteen hundred acres. [Code, ch. 53, sec. 62.] Unless specially authorized, no corpora'cion shall pur- chase real estate in order to sell the same for profit, or hold more real estate than is proper for the purposes for which it is incorporated; subscribe for or purchase the stock, bonds or securities of any joint stock company, or become surety or guarantor for the debt or default of such company. [Code, ch. 52, sec. 3.] BUT CERTAIN CORPORATIONS MAY LAY OUT TOWNS AND TAKE REAL ESTATE, STOCKS AND BONDS IN PAYMENT OF DEBT. Nevertheless, a mining, manufacturing, oil, salt or in- ternal improvement company may lay out a town not to include more 'chan six hundred and forty acres, at or near their works, and sell lots therein; and any corporaaon may take real estate, stock, bonds and securities in payment, in whole or in part, of any debt bona fide owing to it, or as a security therefor, or may purchase the same if deemed nec- essary to secure or obtain payment of any such deb'c, in whole or in part, and may manage, use and dispose of what has been so taken or purchased as a natural person might do, and any corporation may compromise or purchase its own debt, and establish and manage a sinking fund for tba'c purpose; and any maufacturing company may with the as- sent of the holders of two-thirds of its stock, had by a vote at a stockholders' meting, subscribe for or purchase the stock, bonds or securities of any corporation formed for the purpose of manufacturing or producing any articles or ma- terials used in the business of such joint s'cock company, or dealing in any articles or materia'l manufactured or produc- ed by such joint stock company, or constructing a railroad, or other work of internal improvement, through or into the county in which the principal place of business of such joint stock company may be, or opera'cing n railroad or other work of internal improvement so constructed, and may, with the like assent, become surety for or guarantee the debts of such corporation, or in any mjiiHun- aid it in cari-yiug on its business. [Code, ch. 52, sec. 4.] The above sections are sufficiently plain, except 'chat the words "unless specially authorized" in section 3, ch. 52, WEST VIRGINIA CORPOEATIONS. 9 have been sometimes erroneously construed to mean that if the purchasing of land and the re-selling 'che same for profit be stated in the agreement, as one of 'the purposes and objects of 'che corporation, then such corporation is "specially authorized" so to do. If such a provision should be inserted in the agreement, no legal certificate of incoi'poration could be issued there- on, because sec. 3, ch. 54, prohibits the incorporation of a company having that as one of its objects. These words mean, "unless specially authorized" by law. For instance, as provided in sec. 62, ch. 53, just quo'ced, a corporation, incorporated before that section was enacted, may hold such number of acres as may be allowed by its charter, in addition to "che quantity therein prescribed. The intention of the statute is to prevent the incorporation of companies whose purpose is to speculate in land. It does not prohibit a corporation from acquiring lands, sub- ject to the above limitations; nor from selling, "at a profit," lands thus acquired. CHAPTER II. HOW TO FORM A CORPORATION. Any five or more persons* desiring to become a corpora- tion for any of the purposes mentioned in Chap'cer I may do so by proceeding as follows: Such five or riiore persons must sign and acknowledge an agreement in form or effect as follows: *NOTB.— "There shall not be less than five stoek-hoUlers. If the number be be at any time reduced below five, and so remain for six months eontinuons- ly, the corporation shall be dissolved." [Code, eh. 53, sec. 17.] A rharried woman may be a stock holder and ^'0te her stock in person or by .proxy, at a istock-holders' meeting. [Code, ch. 66, sec. 9 amended by Acts 189.3 oh. 3.] One corporation cannot subscribe for or purchase the stock of another cor poration except as provided in sec. 4, eh. 52. See sec. 3, ch. 52. 10 WEST VIRGINIA CORPORATIONS. "The undersigned agi'ee to become a corporation by the name of (here insert the name by which it is intended the corporation shall be known, — (1) — loi- the purpose of (heic describe fully and particularly the purpose for which tlic corporation is to be formed, and the kind of business in- tended to be carried on by it,j — ['2) — which corporation shall keep its principal office or place of business at — (3) — , in the county of and state of and is to cxpiic on the day of . (4) — And for the purpose of forminj; said corporation, we have subscribed the sum of — (5) — dollars to the capital thereof and have paid in on said subscription die sum of — (6) — dollars; and desire the privilege of increasing the said capital, by the sale of additional shares from time to time, to — (7) — dollars in all. Thecapital so subscribed isdi- vided into shares of dollars each, which are held hy the undersigned, respectivt'ly, as follows, thaV is to say: By (here insert the name of each in- corpora'cor, with his residence and the number of shares held by him) — (8) — . And 'che capital to be hereafter sold is to be divided into shares of the like amount. Given under our hands this day of ." [Code, ch. 54, sec. 6.] The blanks above are numbered from 1 to 8 corespond- ing to the sub-sections below and in the subsections follow- ing an explanation is given explaining the manner of filling the blanks respectively. Blank 1. Here give plainly the name of the in'cended corporation. The only restriction is that a name at that time being used by another corporation of West Virginia shall not be adopt- ed, (sec. 11, ch. 53.) The name selected need not contain any words or tei'uis descrip'cive of the purposes of the corporation. The name is purely arbitrary. The name of "(ircat Western Sugai- Co.," for instance, could be given to a corpora'cion, the ob- ject of which is to manufacture iron bolts. Blank 2. Here describe and state in general terms the pur])oses .and objects of the corporation. Bear in mind thai you s\ro not required to state the minu'ciae of thi^ business intended to be transacted by thfe corporation, nor 'die incidental powers such as making conlracls, paying debis, signing the company's name and the like. WEST VIRGINIA CORPORATIONS. 11 Blank 3. Here state the place (giving county and state) where 'die principal oflSce of the corporation is intended to be. It ma y be "in any state or territory of the United States or in 'che District of Columbia." You will see later on that the designating of the principal office does not secure •and anchor the corporation a'c that point. The object of the statute is to give the state and all persons, notice of the place where the corporation may be found. But it does not prevent the corporation from changing its business location, nor from doing business at other points after it shall have organized. Blank 4. Here state the time when the corporation is to expire. Under the law no corporation can be char'cered for more than flfcy years, except life insurance companies, railroad companies, agricultural and industrial societies and cor- pora'cions for universities, colleges, schools and benevolent orders. Therefore you will likely state the time of expiration to be fifty years after the date of the agreement, unless it be a corporation coming within one of the exceptions men- tioned. Blank 5. Here state the capital subscribed — which can be any sum not exceeding five million dollars, unless the corporation be one to build a railroad or a canal. (Sec. 5, ch. 54.) As to these la'cter, there is no limit. Blank 6. Here state the amount paid in on the subscribed capital. This must be ten per cent at least of the capital subscribed. Blank 7. Here state the amount of capital desired to be issued in any even'c. This is called the maximum capital stock. The amount stated here can be issued without any other authority, by proper action of the company to be explained hereafter. 12 WEST VIEGINIA CORPORATIONS. Blank 8. Here insert the name of each incorporator, with his ad^ dress (giving only his town or city, not necessarily his number) and the number of shares subscribed by each. Bear in mind that no fractional shares can be subscribed for, nor issued. Then this agreement must be acknowledged by each in- corporator before a justice, notary or judge, and such ac- knowledgment certified by the officer before whom they are taken, and if taken outside of ^^'est Virginia the cer'ciflcate must be UNDER SEAL. Two of the Incorporators must also make affidavit that , the amount stated in the agreement to have been paid in on the capi'cal, has been in good faith paid in for the purposes and business of the intended corpora'cion, without any un- derstanding that the same shall be withdrawn therefrom before the expiration or dissolution of the corporation. The form of this acknowledgment and affidavit is as fol- lows: ^ State of — , county of — , to-wit : I, — , a — , in and for the county and state aforesaid, hereby certify that , whose names are signed to the foregoing agreement, bearing date on the day of , 18 — , this day personally appeared before me in my_ said county, 'and severally acknowledged their signatures to the same. ^ *And I further certify tha'c and , two of the corporators named in the said agreemen'c made oath before me that the amount therein stated to have been paid in on the capital, has been in good faith paid in for the purposes and business of the intended corpora'cion, without any in- tention or understanding that the same shall be withdrawn therefrom before the expiration or dissolution of this cor- poration.* Given under my hand (and seal) 'chis dav of — 189— . The affidavit embraced within the stars (**) above may be made the subject of a separate certificate. Where the incorporators ai'c noV together, separate acknowledgments may also be taken and sc^paratc certificates atl ached in the above form. Suppose that John Smith, Samuel Jones, George Brown, WEST VIRGINIA CORPORATIONS. 13 James Doe and Richard Roe should desire to form a cor- poration with a subscribed capital of ten thousand dollars for the purpose of manufacturing furniture, and should desire to reserve the privilege of selling stock up to one hundred thousand dollars in all, the blanks in the above agreement being filled, it would read as follows: The undersigned agree to become a corporation by the name of the New York Wood Company for 'che purpose of manufacturing furniture and dealing in the same, and for acquiring such property, real and personal, as may be nec- essary to carry on said business. Which corporation shall keep its principal office or place of business at New York, in the county of New York, and state of New York, and is to expire on the 1st day of Sep- tember, 1948. And for the purpose of forming the said cor- poration, we have subscribed the sum of Ten Thousand Dollars to the capital thereof, and have paid in on said sub- scriptions 'che sum of One Thousand Dollars, and desire the privilege of increasing the said capital, by the sr.le of ad- ditional shares from time to time, to One Hundred Thousand Dollars in all. The capital so subscribed is divided into shares of One Hundred Dollars each, which are held by the undersigned respectively, as follows, that is to say: JOHN SMITH, New York, N. Y., 40 shares. SAMUEL JONES, New York, N. Y., 20 shares. GEORGE BROWN, Philadelphia, Pa., 20 shares. JAMES DOE, Trenton, N. J., 10 shares. RICHARD ROE, Albany, N. Y., 10 shares. And the capital to be hereafter sold is to be divided inVo shares of the like amount. Given under our hands, this 1st day of September, 1898. JOHN SMITH, SAMUEL JONES. GEORGE BROWN, JAMES DOE, RICHARD ROE. State of New York, county of New York, to wit : I,C. A. Williams, a notary public in and for the county and state aforesaid, hereby certify tha'c John Smith, Sam- uel Jones, George Brown, James Doe and Richard Roe whose names are signed to the foregoing agreement, bearing date on the 1st day of September, 1898, this day personally 14 WEST VIRGINIA CORPORATIONS. appeared before me in my said county, and severally ac- knowledged their signatures to the same. And I further certify, that John Smith and Samuel Jones, two of the corporators named in the said agreement, made oath before me that the amount therein stated to have been paid on the capi'cal has been in good faith paid in for the purpose and business of the intended corporation, without any intention or understanding that the s.me shall be withdrawn therefrom before the expiration or dissolution of this corporation. Given under my hand (and seal), this 2nr day of Septem- ber, 1898. [SEAL.] C. A. WILLIAMS, Notary Public. 10c. In. Rev. Stamp. This agreement execu'ced as above must then be presented to the secretary of state, and must be accompanied with ii fee of |6, and as the principal place of business or chief works of the corporation are outside of West Virginia, the initial license tax of $50 must also be paid. If the principal office or works of the corporation be within the state, this license tax is only $10. The statute concerning 'chis license tax is as follows: CORPORATION LICENSE TAXES. AMOUNT, WHEN TO BE PAID, PENALTY FOR NON-PAYMENT. Upon every corporation which has heretofore obtained or which shall hereafter obtain a charter or certificate of incorporation from this state, and whose principal place of business or chief works are loca'ced inside of this state, there shall be an annual license tax of ten dollars, to be paid on or before the first day of May of each year, or at the time of obtaining such charter or certificate of incor- poration, and on or before every first day" of May thereafter, as the case may be, co (he auditor, and by him turned into the genoi'al treasury. [Code, ch. .32, sec. 8(i.] Upon every corixiration which lias heretofore obtained, or which shall hereafter obtain, a charter or certificate of incorporation from this state, and whose principal place of business or chief works are located outside of this state. WEST VIRGINIA CORPORATIONS. 15 'chere shall be an annual license tax of fifty dollars, to be paid on or before the first day of May of each year, or at the time of obtaining such charter or certiflcateof incorporation, and on or before every first day of May thereafter, as 'che case may be, to the auditor, and by him turned over into the general treasury of this state. [Code, ch. 32, sec. 87.] Any such corporation vs^hich shall fail to pay the tax provided for in the las'c two sections, shall, because of such failure, forfeit its charter to the state.. [Code, ch. 32, sec. 88.] It shall the be duty of the auditor, on or before the first day of March in each year, to notify every corporation liable to tax hereunder, of the time of payment of such tax. Such notice shall contain the words of this and the three sections last preceding. [Code, ch 32, sec. 89.] It shall be the duty of the auditor, within thirty days af- ter the firs'c day of every May, to publish in two newspapers of general circulation, one of which must be published at the seat of government and the other in the city of Wheel- ing, a list of all such corporations as have forfei'ced their charters under the provisions of 'chis chapter within the year preceding, and any such corporation which shall with- in sixty days after such publication pay to the auditor the tax payable on or before the first day of May of that year, and five dollars in addition there'co, shall thereupon be re- lieved from the forfeiture of its charter bv reason of such failure. [Code, ch. 32, sec. 90.] Nothing in this chapter shall be construed as imposing a license tax on corporations chartered sVrictly for education- al, literary, agricultural, scientific, religious, cemetery or charitable purposes, or upon cho.rtf^rs incorporating ma- sonic lodges, odd fellows lodyes, or other charitable socie- ties. [Code, ch. 32, sec. 91.] The secretary of state shall semi-annually, within the thirty days succeeding the flrtt dny of January and July, render under oa'ch, to the auditor, an account of the taxes received by him as aforesaid, and pay into the treasury of the state the amount appearing thereby to be due; or if such officer have received nothing, he shall, within the said thirty days, transmit his affldavi'c to that effect to the audi- tor. [Code, ch. 32, sec. 92.] Under the above provisions, a question has arisen as to whether or not a corporation, which obtains a charter, at ariy time after the first day of May and pays the tax, shall be. compelled to pay the tax again on the first day of May following. This becomes, sometimes a matter of import- ance, because if a charter be issued, say, in April, and the 16 WEST VIRGINIA COEPORATIONS. license tax paid, it seems unjust 'chat the same tax shall be paid again on May 1st, following. But the wording of the statute seems to leave no alternative; and the ruling has become uniform that there can be no division of the license year. Therefore, if one contemplates forming a corporation near the close of the license year, he can either withhold his application till May 1st, or can go forward and pay the tax at the 'cime of the application, and again on May 1st following, consoling himself with the thought that, com- pared with most other states, it is cheap enougn anyhow. Upon the paymen'c of the fee and license tax, the secre- 'rary of state isues a certificate of incorporation (charter) [Code, ch. 54, sec. 9.] The effect of this certificate of incorporation (charter) is as follows: When a certificate of incorporation shall be issued by 'clie secretary of state, pursuant to this chapter, the corporators named in the agreement recited therein, and wiio have sign- ed the same, and their successors and assigns, shall, from the dale of 'che said certificate until the time designated in the said agreement for the expiration thereof, unless sooner dissolved according to law, be a corporation by the name and for the purposes and business therein specified. And the said certificate of incorporation shall be received as evi- dence of the existence of the corporation as aforesaid. [Code, ch. 54, sec. 10.] Every corporation, as such, shall have siuession by its corporate name for the time limited in its charter or by law; and if no time be limited, perpetually. It shall have a common seal, and may renew or alter the same at pleasure. It may sue and be sued, plead and be impleaded, contractand be contracted with by simple contract or specialty; purchase, hold, use and grant estate, real and personal; appoint of- ficers and agents; prescribe their powers, duties, and liabil- ities; take bond and security from any of them, and fix and pay their compensation; and make ordinances, by-laws and regulations for the government of its council, board, of ficers and agents, and the management and regulation of its propeity and business, [Code, ch. 52, sec, 1,] RESTRICTIONS ON CORPORATE POWERS. The powers mentioned in the preceding section or other- wise granted to any corporation, shall be limited by the WEST VIRGINIA CORPORATIONS. 17 purposes for which it is incorporated, and no corporsi'rioii shall engage in transactions or business not proper for those purposes; nor shall corporate powers be exercised in Tiolation of any law of the state. [Code, eh. 52, sec. 2.] It will be observed that when the certificate is issued, "the corporators named in the agreemen'c recited therein, and who have signed the same, and their successors and assigns, shall, from the date of the said certificate, etc., be a corporation by the name and for the purposes and business therein specified." The statute thus fixes 'che time or point in the proceed- ings when, or at which, the artificial person, the corpora- tion, is called into being or created. This must be constant- ly kept in view, because everything required to be done be- fore this point is reached, is mandatory and cannot be dis- pensed with. Up to this point, each and every requirement of the statute must be strictly complied with; no formality can be waived. But, while it is always best 'co comply with the letter of the statute as to requirements after this point has been reached, we shall see later on, that many subse- quent formalities may be waived by all the stockholders, for their convenience and to save time.* Be'cween the date of the issue of the certif cate of incor- poration and the organization, it may be desirable to dis- pose of additional shares cf stock. In that event the fol- lowing section is applicable. After a certificate of incorporation has been issued pur- suant to the ninth section, and before a board of directors have been elected or qualified, additional shares of the capital stock may be disposed of, so that the maximum cap- ital be not exceeded, in such manner, on such terms, a r such times and places, and under the superintendence of such persons as the corporators named in the agreemenV recited in such certificate, or those holding a majori'cy of the shares, may appoint, but subject to the provisions of the twenty- third and the four following sections of chap'cer fifty-three of the code. [Code, ch. 54, sec. 16.] The qualifying sections referred to in the last clause are as follows: Before a corporation is organized, shares may be dispos- •Page 22, note. 18 WEST VIRGINIA COEPORATIONS. ed of ns prescribed by the sixteen'ch section of chapter fifty- four of this code, or by the charter. After it is organized, the disposal of additional shares to increase the capital stock shall be subject to the order and direction of the board of directors for 'che time being, so that the maximum capital be not exceeded. [Code, ch. 53, sec. 23.] STOCK NOT TO BE SOLD AT LESS THAN PAR TO IN- CREASE CAPITAL STOCK. In no case shall stock be sold or disposed of at less than par in order to increase the capital of any such corporation. But nothing herein contained shall be so construed as to preven'c any mining corporation, subject to the provisions of this chapter, from issuing stock or bonds and nego'ciat- ing the sale of the same in payment of real and personal es- tate for the use of such corporation, and for its other cor- porate purposes and business, at such price and upon such terms and conditions as may be agreed upon by the owners, directors or stockholders of such corporation. And any subscriber to the capital stock of any such mining corpora- tion may pay for such stock by the transfer and conveyance to such corporation of real or personal property, of both, nec- :'s,t;:' y 'lov tlic uscs and purposes of the corporation upon such terms as may be mutuallv agreed upon, [Code, ch. 53. sec. 24.] HOW SUBSCRIPTIONS TO BE PAID. At least ten per cent, of the x)ar value of each sliarc shall be paid at the time of subscription, and the residue as i-e- quired by the board of directors or the commissioners hav- ing control of the subscription. [Code, ch. 53, sec. 25.] WHEN STOCK TO BE REGARDED AS TAKEN. No stock shall be regarded as taken or the person sub- scribing therefor considered entitled to the same, unVil the first installment is paid thereon. [Code, ch. 53. sec. 26.] Inasmuch as a great many corporations are organized for the express purpose of operating a particular property, mine or plant, or placing before the public a patent right; or manufacturing some machine protected by a jiaten'c right, which the company expects to acquire and intends that its stock shall represent, the question, can a corporation sell WEST VIRGINIA CORPORATIONS. 1.) its s'cock for property, has often arisen, and the true and proper construction of the five sections just quoted, there- fore, becomes vital. This question will arise after the corporation has been organized, when i'c is proposed to sell stock for property, or buy property with stock, and at that point in the order adopted, when it will chronologically arise, it will be con- sidered. CERTIFICATE SHALL BE RECORDED IN COUNTY CLERK'S OFFICE. The company shall cause the said certificate, within three months after it has been issued, or a copy 'chereof certified as aforesaid, to be delivered for record to the clerk of the county court in which the principal offlce or place of busi- ness of such company is kept, and the clerk of the county <'Ourt shall record the same in his office. If such company fail therein, it shall be fined not exceeding one thousand dollars. [Code, ch. 54, sec. 20.] ■ If the principal oflSce be outside of the state, this statu'ce seems to be extra-territorial and of no effect. It was in- tended evidently, to apply to corpora'cions having their prin- cipal offices in West Virginia. CHAPTER III. ORGANIZATION. We now- come to the organization of the corporation. Up to this point there has been nothing done except the creation of an ar'ciflcial person called a cor- poration, and that was complete, as we have seen, on the date of the issuing of the charter. This corporation is composed of stockholders, i. e., the original 20 WEST VIRGINIA CORPORATIONS. incorporators and such as may have purchased stock after 'che issuing of the charter and before an organization is made, as provided in sec. 16, ch. 54. In order to organize, there must be a FIRST MEETING OP STOCKHOLDERS. When a certificate of incorporation is issued under the ninth section, the corporators named in the agreement re- cited therein, or a majori'cy of them, shall appoint the time and place for holding a general meeting of the stockholders to elect a board of directors, make by-laws, and transact any other business which may lawfully be done by the said stockholders in general meeting. The time appointed for the meeting shall no'c be less than twenty-one nor more than ninety days from the date of the certificate, and at least two weeks notice of such meeting shall be given by advertise- ment in the manner prescribed in the forty-first sec'cion of chapter fifty-three of the code. [Code, ch. 54, sec. 15.] The "manner prescribed in the forty-first section of chap- ter fifty-three of the code," is by "advertising the same once a week for two weeks at least in some newspaper of general circula'cion published near the principal ofBce or place of business of the company." The form for such a notice may be as follows: STOCKHOLDERS' MEETING. "Notice is hereby given that a general meeting of the stockholders of the New York Wood Company, a corpora- tion created under the laws of the state of \Vest Virginia, will be held at in 'che city of New York, state of New York, on the day of : , 1898, for the purpose of electing a Board of Directors, adopting by-laws, and trans- acting any other business which may be done by the said stockholders in general meeting. JOHN SMITH, SAMUEL JO'TES, GEORGE ' RUWN, JAMES D( ^, RICHARD :0E, tockholders. -WEST VIRGINIA COKPOBATIOHS. 2^ MEET^ ":TGS AND PRINCIPAL OFFICE. The stockhf ders or directors of any corporation formed under or acce >.ing the provisions of this chap'cer, may hold meetings for :he transaction of the lawful business of the corporation, ijuluding the first general meeting for pur- poses of orpiuization, out of this state, and may keep their principal office in any s'cate or territory of the United States, or in the District of Columbia. But no meeting shall be held out of this state without the concurrence of persons holding a majority in value of the stock *of the company, nor without reasonable notice. [Code, ch. 54, sec. 23.] The "principal office" referred to in this section, refers to the place where the stockholders and directors usually man- age and control the business of the corporation, and seems to be the "principal office" mentioned in 'the agreement for incorporation and the certificate of incorporation. A cor- poration may have "chis principal office in one state, and conduct its business generally at such office and yet have its property and actual works or plant in some other state or states or in some other country. The principal office of the New York Wood Company may be in New York City, and its land, mill and factory in Michigan. For instance, com- panies with their principal offices in West Virginia and in New York are operating mines in Canada. Reading sections 15 and 25, together, they provide that the first meeting of the stockholders may be held: Is'c. At any place in or out of the state. 2nd. At any time not less than twenty-one and not more than ninety days from the date of the certificate of incor- pora'cion, and after two weeks notipe in some newspaper of general circulation published near its principal office or place of business. But in all cases where such or any other meetings are held out of the state, it must be with the concurrence of the holders of a majority in value of the s'cock. Therefore, when a certificate of incorporation is issued, and the incorporators desire to hold the first meeting for or- ganization out of the state, an agreement in the form or effect following should be en'cered into by those holding a "majority in value" of the stock: 22 WEST VIRGINIA CORPORATIONS. We, the undersigned, being all of the stockholders (or "a majority in value of the stockholders") of the company, a corporation created under the laws of the stat(> of West Virginia, do hereby consent and agree 'chat the firsi meeting of the stockholders of said company may be held out of said state, to-wit at , in the state (or territory) of , on the ■ day of . This agreement should be signed by those concurring, and then "reasonable no'cice" must be given of the time and place of the meeting. In a great majority of cases, especially in those cases in which the incorporators or initial stockholders arc non- i-esidents of West Virginia, they d'esire to hold their first meeting outside of the s'cate, and they find it inconvenient to wait the twenty-one days required by section 15, chap- ler 54. In such event, the incorporators may not only agree to hold the first meeting outside of 'che state in the mannei- just shown, but may also waive the publication prescribed by section 15, chapter 54, and fix a time of meeting less than twenty-one days from the date of the certifi(a'((\ by agreeing to and signing an agreement in the form or to the effect following: * "We, the undersigned, being all of the incorpora'rors and stockholders of the company, a corporation creat- ed under the laws of the state of West Virginia, by certifi- cate of incorporation dated on the of do heiohy •"If all the members consent to an organization which disregards the statute requirements as to notice, the organization is valid." Braiutree Water Supply Co., vs. Bralntree, 146 Mass. 4S8. See also the same effect, McCliiicli \s. .'-.tiiisis. 72 IVIaine. 288. Holmes vs. Ui'.IIIaud, 41 Barber, 568. Acts required lo bo dcno as preroqiiisites to corporate existenco, mnst l)i' Rubstautially done, l)ut as to such ai'ts required of persons seeking to be- come Incorporated, as are not prerequisites or Conditions precedent lo cor-. poratc rxiat'nioi', tiv.' fiilhiro lo (•omply witli llip statute does not invalidate the corporation. Moljeiumue Hiii Canal & IMlning Co., vs. Woodbury, 14 California, 425. lu nciirly every case where this iiuostion is raised, the crucial point to dctiTuiir.c if. ivli,>1ticr the thing requlrcil to lie done is uiaudHtnrv, or .'i ecu dltion precedent to corporate existence, or directory. If the former, Itmust be siil)Htinitlaliy eompiied with; if the latter. It may be omitted, certiiiulv dis- liensed with by uiulniil iici-ei uient ut every one Interested. 1. Thompson on Corporations, sec. 226. I)ur statute il.ves tlie tlnu- when corporate existence- lieKiiis, to-wIt ; "from the date of llie certificate" of incorporation. See. Id, cli. M, code. Tile publleiilinn of the neliei of a stocUhnldi>rs' meeting is. therefore, an act prescribed, after enrpnrale existence has become emuplete, and the sl.'ilute Is dli'ectory. If, however, n year slni'l elapse, without organization and the commence- ment of bnslness, the certificate of incorporation Is of no effect. Code, eh. 53, see. 0. WEST VIRGINIA CORPORATIONS. 23 consent and agree that the first meeting of 'che stockholders of said company may be held at in the state of , on the — day of without any publication of the notice of said meeting, which notice we do hereby severally accept for 'che time and place aforesaid. Given under our hands, this — day of . In order to make the above agreement effective to waive the publication of the notice required by sec. 15, ch. 54, the same must be concurred in and signed by all the incorpor- ators and stockholders. We have now reached the point where the s'cockholders or incorporators must meet for organization, pursuant to notice published or the agreement and waiver of notice above, and must therefore consider THE STOCKHOLDERS' FIRST MEETING. The first business to be transacted is to make a 'tempor- ary organization. This may be done by electing a chairman and secretary of the meeting. The powers, functions and duties of these are' purely temporary and do not extend beyond that meet- ing or proper adjournment thereof.* After the 'cemporary organization shall be made, the meeting should ascertain, by the report of a committee or otherwise, what stock is represented at the meeting, and what notice of tlie meeting has been given, and the result of this enquiry should be. spread upon the minutes of the meeting. The first enquiry as to the stock represented, is most important, because sec- tion 16, chapter 54, code, allows stock to be sold between the time of the issuing of che certificate of incorporation and the election of a board of directors, and it might happen that persons who had purchased stock within that time had not agreed to the meeting, and if so, and the notice of 'che •NOTB.— This temporary organization is not made by a stoels Tote, but by an ordinary vira voca Tote of tliose present. See form page 41. 24 WEST VIRGINIA CORPORATION^. meeting had not been published as required by section 15 of cliapter 54, no business can be transacted. It must also be ascertained whether or not a «|tion]ni be present, whether the mee'ciny be held b_v unanimous agree- ment or pursuant to notice published. The following section prescribes what shall constiUnte a QUORUM. The number of stockholders, or amount of stock necessary to constitute a quorum at mee'cing of stockholders, and the mode of transacting business at such meetings, may be pre scribed by the by-laws. If there be no such by-law, the ma- jority of the stock must be present, in person or by proxy, to constitute a meeting. But if sufficient number do not attend at the time and place appointed, those who do attend may adjourn from time to time until a meeting is regularly con- stituted. Every meeting of stockholders may adjourn from time to 'time till its business is completed. [Code, ch. 53, sec. 42.] As the first meeting is held without by-laws, and conse- quently there is no by-law on the subject, "the majority of the stock must be present in person or by proxy, to consti- tu'ce a meeting." When it is ascertained that the meeting is regularly call- ed and that a quorum is present, the first business is to adopt by-laws for the government of the corporation. This duty devolves exclusively upon the stockholders, as will be seen from the following sections: When the word "by-law" is used in this chapter, it is to be understood as if immediately followed by the words "adopt- ed by the s'cockholders in general meeting assembled." [Code oh, 53, sec. 2.] The board of directors in the exercise of their powers, shall be subject 'co such by-laws and regulations, not incon- sistent with the laws of this state, as the stockholders may pass from time to time in general meeting. [Code, ch. 53, sec. 55.] The by-laws of corporations must of necessity, in so far ns the details of their managemen'c are sought to be regulat- ed, be as diverse as the objects for which corporations arc created. Any general form of by-laws would, in.., WEST VIRGINIA CORPORATIONS. 25 \\\ probabilit.Y, fail in some particular or particulars to meet individual requirements. But there are certain gener- al features as to which 'chere are provisions of the statute vi'hich may be, and often are, overlooked; and in order to consider them, a general form of by-laws will be given in the next chapter and the peculiar features of the statute as to each noted in its proper place. CHAPTER IV. BYLAWS. Article I.^Objects — Principal OflSce. Sec. 1, The name of this corpora'cion shall be- company, and its purposes and objects those set forth in its certificate of incorporation. The name may be changed in the manner prescribed by the laws of West Virginia. ' *COEPORATE NAME. No joint stuck c-oirpany shall adopt the same name which is being used at the tiiue by another corporation of this stae. [Code, ch. 53j sec. 11.] CHANGE OF CORPORATE NAME. If the stocliholders of a joint stocls company desire to change the name thereof, and pass, in general meeting, a resolution to that effect, stating the name by> which it is intended the corporation shall be thereafter known, and cause such resolution to be certified under its common seal and the signature of its president to the secretary of state, the secretary shall issue, under his hand and great seal of the state, a certificate reciting the resolution and de- claring that the corporation is to be thereafter known by the new name so adopted; and such certificate shall be evidence of the change of name there- in specified. Notice of every such ohauge of name shall be published by such corporation in some newspaper of general circulation, in the county where the principal office of such corporation is, once a week for four successive weeks immediately thereafter. [Code, ch. 53, sec. 12.] The seventeenth, eighteenth, nineteenth and twentieth sections of chap- ter flfty-four of this code shall be applicable to such certificates of change of name. [Code, ch.53, see. 13.] EFFECT OF CHANGE OF NAME. No contract, right or liability, previously existing or inchoate, or suit, mo- tion or proceeding then pending, shall be affected by such change of name. ■ I Code, ch. 53, sec. 14.] 26 WEST VIRGINIA CORPORATIONS. Sec. 2. The principal office of this company sliall be in in tlie state of , and branch offices may be established by che Board of Directors at such other place or places or as they may think proper,* Article II. — Stockholders' meeting. Sec. 1. The annual and special meetings of the stock- holders may be held outside of the state of West Virginia, at such point as may be designated by the person or persons having 'che right to make the call for any meeting.* Sec. 2. The annual meeting of the stock holders shall be held at the principal office of the company on the day of of each year at — o'clock — M. If the time of the annual mee'cing shall pass without the same being held, a general mee'cing may be called by the Board of Directors or by the holders of one-tenth in value of the stock. Notice of any meeting may be given in person or by mail, addressed to the last known address of the stockholder, in either case at least ten days before 'che time fixed for the meeting, or such notice may be published as required by law.** Sec. 3. At all meetings of the stockholders of this corn- transaction of business.*** pany shares of stock shall constitute a quorum for the Sec. 4. A list of stockholders, showing 'che number of shares and votes to which each is entitled, shall, for one month before every annual meeting, be hung up in the most public room at the principal office or place of business of the corporation; but the failure to do so shall not affect the vtilidily of the proceedings of such meeting.*"** Article III. — Order of business. At all meetings of 'che stockholders the order of business shall be as follows: •Ante, page 21. ••Au annual meeting of the stockholders of every corporation, subject to this chapter, shall be helcl at such time as may be prescribed by the by- laws, if there be no such by-law, then on the fourth Tuesday of January A general meeting of the stockholders may be called at any time by the board of directors, or by any number of stockholders holding together at least one-tenth of the capital. Notice of the annual or any other general nioeting shall be given in such manner as the by-laws may direct, or if there be no such by-law, by advertising the same once a week for two weeks at least in some newspaper of general circulation published near the principal offlce or place of business of the company. [Code, ch. 53, sec. 41.] "»*rode, I'll. Da, sec. -V2. A uiajorlt.v is i\ quorum unless the by-laws jircHfribc differently. ♦♦♦♦Code, ch. 53, sec. 43. WEST 'VIRGINIA CORPORATIONS. 27 1. The election of a chairman. Until this is done the oldest stockholder present shall preside. 2. The election of a secretary. 3. The appointment and report of a committee to det.^r- mine if a quorum be present. . i. The repor'c of the Board of Directors (if an annual meeting) as required by section 46 of chapter 53 of the code of West Virginia. 5. The hearing of charges against any director, the re- moval of such director and the filling of any vacancy. * G. The adoption of by-laws or amendments to the by-laws. 7. If a general meeting, the election of directors. S. Adjournment. Article IV. — Annual Report of Directors. The board of directors shall make a report to the stock- holders, at the annual meeting, of the condition of the cor- poration. The report shall show the property and funds be- longing to the corporation, and the estimated value thereof; the debts due to it, distinguishing such as are deemed to be good from those considered doubtful or hopeless; the debts and liabilities of the corporation; the amount of the capital paid in; and the estimated surplus or deficiency, as the case may be. I'c shall also state the amounts of dividends declar- ed and losses incurred, or the profits accruing, during the pre- ceding year. The board shall furnish to each stockholder requiring it a true cojiy of such report, together with a list of the s'cockholders and their places of residence. [Code, ch. 53, sec. 46.] Ar'cicle V. — Books, Papers, etc. The property and funds, books, correspondence and pa; pers of the corporation, in the possession or control of any officer or agent thereof, shall, at all times, be subject to the inspection of the board, or a comittee thereof appointed for the purpose, or of any committee appointed for the pur- pose by a general meeting of the stockholders. The min- utes of the resolutions and proceedings of -the board shall, for thirty days before the annual meeting of the stockhold- ers, be open to the inspection of any stockhoider. They shall *Coae, eh. 53, sec. 49. 28 WEST VIRGINIA GOEPORATIONS. be produced when required by the stockholders at any gen- eral meeting. [Code, ch. 53, sec. 47.] Article VI. — Directors. Sec. 1. For the management of the business of this company there shall be a Board of Directors, consis'cing of to be elected from the stockholders.* The said board shall have power to do, or cause to be done, all things that are proper to be done by the corporation. Sec. 2. The only qualification required of a director shall be that he or she***be a stockholder of this company. When one ceases to be a stockholder, his ofSce of director shall become vacant.** Sec. 3. The directors shall hold their offices till the next annual meeting of the stockholders, or un'cil their succes- sors shall be elected and qualified, unless sooner removed in the manner herein provided, or their offices become vacant by their ceasing to be stockholders. When a director is re- moved, or his office becomes vacant, the stockholders in general meeting may fill the vacancy. The Board of Direc- tors remaining in office or a majority of them may fill such vacancy *cill the next general or annual meeting of the stock- holders. Sec. 4. The stockholders in general meeting may remove any director whenever in their judgment it is proper to do so. **** But notice and an opportunity to be heard shall be given a director before he shall be removed. Article VII. — Mode of Voting. In all elections for directors every stockholder shall have , the righ'c to vote in person or by proxy for the number of shares of stock owned by him for as many persons as there are directors or managers 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 'che same principle ♦There shall be five directors utiless n different number be pre- scribed In the by-laws. Code, ch. 53, sec. 49. ••II' no qnnliWcatlons are prescribed in the by-laws, a director must be a stock-holder and a resident o( West Virginia. Code, ch. 53, sec. 49. Any reasonable quallfleation can be prescribed. Cross ts. W. Va .Cen & P. R. 14. Co., 37 W Ta., 342. •**If married women can be stoclshoiders, they can be directors. •••♦Code, ch. 63, seq. 49. WEST VIRGINIA OORPOEATONS. 29 among as many candidates as he shall think fit; and such directors or managers shall not be elected in any other man- ner. And on any other question to be determined at any meeting of stockholders, if a vote by s'cock be demanded upon such question by any stockholder, every stockholder may, in person, or by proxy, give the follovying vote on whatever stock he may hold in the same right, that is to say, one vote for every share of stock held in this company.* At every ballot for election of directors, the person or persons receiving a number of votes equal to or greater than a majority of a quorum of the stock present in person or by proxy shall be declared elected unless such person be ineli- gible. If any person ineligible receive votessufflcientto elec'c, the stockholders shall proceed to take another ballot till some one eligible be elected in place of such person. Article VIII. — Proxies. A'c any meeting of the stockholders, any person, not an ofQcers or directors of this corporation, may vote the s'cock of any stockholder, if he present a written proxy from such stockholder, duly executed, authorizing him so to do. But no officer or director of this corporation shall vote as 'che proxy of a stockholder.** And at any meeting of the stockholders a committee shall be appointed to report whether or not a quorum of *che stock is presnt in person or by proxy, and the presence of such quorum must be determined from such report or other- wise, before any business, except making a temporary or- ganization, shall be transacted. Article IX. — Presiden'c. Sec. 1. *As soon as may be after the election, the Board of Directors shall choose one of their own body president of the corporation, who shall act as such till his successor is qualified, without ceasing, however, to be a member of the board. During the absence of the president the board may appoint a president pro tempore, who, for the time, shall dis- charge the official duties of the president.* [Code, ch. 53, Sec. 50.] •Code, ch. 53, sec. 44. Constitution W. Va., art. xi, sec. 4. Cross vs. R. E. Co., 35 W. Va., 175. ••Code, ell. 53, see. 45. 30 WEST VIRGINIA CORPORATIONS. Set'. 2. The president shall preside at all meetings of the board, be the general executive officer of the company when 'rhe board is not in session, and perform such duties as may be reqxiired by the board. All papers, documents, deeds and other writings, required to be executed by this company, shall be signed and executed for the company by the presi- dent, when directed by, and in the manner prescribed by, the board. All officers and agents, whose duties are not pre- scribed by law or the by-laws, shall be subject to 'che orders of the president. Article X. — Board of Directors — Duties. Sec. 1. The board shall hold meetings at such 'cime as they see fit or the president shall require. They may, by resolu'cion, prescribe when and where their regular meet- ings shall be held, how special meetings shall be called, and what notice of their meetings shall be given.* Three direc- tors shall constitute a quorum of the board.** Any director may call a meeting of the board. RECORD OP PROCEEDINGS. Sec. 2. They shall keep a record of their proceedings, which shall be verified by the signature of the presideu'c or l)residentpro tempore. No member of the board shall vote on u question in which he is interested otherwise than as a stockholder, except 'che election of a president, or be present at the board while the same is being considered; but if hi« retiring from the board in such case reduce the number jires- ent below a quorum, 'che question may nevertheless be decid- ed by those who remain. On any question the names of those voting each way shall be entered on the record of their proceedings, if any member at the time require it. *** OFFICERS AND AGENTS. , Sec. 3. The Board of Directors shall appoint such of fleers and agents of the corporation as they may deem ]>vt)\)- •Codo, ch. 53, sec. 51. ♦•A iiiiijnrity shall c'(]i]sLilnlo a quorum unless otherwise uroviUed bv the by-laws .('ode, ch. 53, sec. 4ri. ♦••Code, ch. 53, see. 52. WEST VIRGINIA COKPOEATIONS. 31 er, and prescribe their duties and compensation; but there shall be no compensa'cion fOr services rendered by the presi- dent or any director, unless it be allowed by the stockhold- ers. The officers and agents so appointed shall hold their places during the pleasure of the board; and if required by the board, or the by-laws, shall give bonds, payable to the corporation, in such penalties and with such condi'cions and security as the board may approve.** But power is hereby given 'che board to allow the following salaries to the fol- lowing officers, to-wit: (Here insert what is desired.) BOOKS OF ACCOUNT. Sec. 4. The Board of Directors shall cause regular and correct books of accoun'c to be kept, and to be settled and balanced once at least every six months.*** The Board of Directors shall elect also, the following of- ficers: Secretary, treasurer, vice president and general manager. Article XI.. — Secretary. The secretary shall keep all books, papers, correspond- ence and accounts of the corporation; keep and preserve a record of all meetings of "che Board of Directors and the stockholders' and shall keep the stock-account and stock- book and the seal of the company and affix the latter to all documents requiring it. He shall perform such other duties as may be required by the Board of Direc'cors. Article XII. — Treasurer. The treasurer shall countersign all certificates of stotk of the corporation. He shall also keep a record of all mon- eys recfived and paid, out and of all youchers and receipts given therefor. He shall examine and approve all checks for the payment of money before they are presented to the president for his signature, and no voucher or certificate of any kind shall be issued from the office unless his inspec- tion or approval be certified thereon. He shall have general charge of all the books, vouchers and papers belonging to **Code, cli. B3, sec. 53. ***Coae, eh. 53, sec. 54. 32 WEST VIRGINIA CORPORATIONS. the corporation, except such as are under the special con- trol of the secretary, and shall perform such other duties; as are incident by law to the oflSce of treasurer and as may be required by the President or Board of Directors; and it shall be his especial duty and care to pay the annual license tax to the auditor of West Virginia, due on the first day of May of each year. Article XIII. — Vice President. The vice president shall perform such duties as shall be assigned to him by the Board of Directors. In case of the death, absence or inability of the president to act, his pow- ers shall be exercised and his duties discharged by the vice president; and in case of the death, absence or inability of the vice president, the duties and powers of the president shall devolve upon one of the directors to be appointed by them. Article XIV. — General Manager.* The general manager shall have charge of the plant of the company, employ workmen, fix their wages, purchase ma terial, fix the hours of work and generally to manage and superintend the business of the company at its plant at , subject always to the orders and directions of the Board of Directors. Article XV.— Seal. The corporate seal of this company shall be circular in form. The name of the corporation shall be in the outer circle and the words "Corporate Seal" within the outer cir- cle, as follows : (Here insert design.) It shall be indented in the paper to which or on which it is affixed. This seal shall be affixed to all certificates of stock, deeds, or other writings to be executed by the corporation, and as ordered by the Board of Directors. Article XVI.— Capital Stock and How Divided, Issued. Transferred, etc. *lhc name Riven to this officer Is superintendent, general superintendent or agent. It Is usual to have such ofllcer, but not necessary. Other oflJcers and agents may be provided for and their duties prescribed, if desired WEST VIRGINIA COEPORATIONS. 83 Sec. 1. The capital stock shall be divided into shares of the amount prescribed by the charter of the corporation ; and every share shall be of the same amount. CERTIFICATES OP STOCK. Sec. 2. Each holder of stock shall be entitled, when any share of stock of said holder is fully paid up, to a certifi- cate therefor under the seal of the corporation and signed by the president, the secretary and the treasurer, stating the capital stock of the company, the number of shares into which it is divided, the par value of each share, the amount paid on each share, the number of shares for which said holder has paid, and the manner in which said certificate is transferable. All certificates shall be issued In order from a certificate book, and duly numbered and registered in the order of their issue opposite each certificate in the margin of said book; it shall be the duty of the treasurer to enter the name and residence, or place of business, of the owner thereof; and in case of the transfer or cancellation of such certificate, the date of such cancellation or transfer ; and at the 'cime of issue of any certificate it shall be receipted for on said margin by said owner, or by his duly authorized agent.* Sec. 3. A stockholder, to whom such certificate has been issued, shall not be allowed to transfer the shares therein mentioned, or any part thereof, without delivering up the said certificate to the corporation to be cancelled, unless the same be lost or destroyed, or sufficient cause be shown, to the satisfaction of the Board of Directors, why it . cannot be produced. A transfer-book shall be kept by the corporation, in which the shares shall be assigned* in the manner as prescribed in the stock certificate book. Trans- fers of stock shall be made on the books of the corporation only, in the presence of the treasurer or secretary, by the holder thereof in person or by duly authoriztjd attorney, on surrender of the original certificate. The transfer-book shall be closed fifteen days before each annual meeting and remain closed until after its final adjournment. •After the company is organized, tlie disposal of additional shares to in- crease the capital stock shall be subject to the order and direction of the Board of Directors for the time being, so that the maximum capital be not exceeded. 34 WEST VIRGINIA CORPORATIONS. WHEN NOT TO BE TRANSFERRED. Sec. 4. *No share shall be transferred without the con- sent of the Board of Directors entered of record, until the same is fully paid up, or security given to the satisfaction of the board for the residue remaining unpaid. And where bond and security have been given to the corporation for any sum remaining unpaid upon stock, no transfer shall affect the validity of such bond and security.* SALE OR PLEDGE OF STOCK. Sec. 5. *If any person, for valuable consideration, sell, pledge or otherwise dispose of any shares belonging to him to another, and deliver to him the certificate of such shares, with the power of attorney authorizing the transfer of the same on the books of the corporation, the title of the for- mer shall vest in the latter so far as may be necessary to effect the sale, pledge or other disposal, of the said shares, not only as between the parties themselves, but also as against the creditors of, and subsequent purchaser from, the former, but subject nevertheless to the provisions con- tained in the next section of these by-laws.* WHO DEEMED THE OWNER OF STOCK. Sec. 6. *The person in whose name shares of stock stand on the books of the corporation shall be deemed the owner thereof, so far as the corporation is concerned.* LOST CERTIFICATE. Sec. 7. *When a person to whom a certificate has been issued, alleges it to have been lost, he shall nle in the office of the corporation, first, an affidavit setting forth the time, place and circumstances of the loss, to the best of his knowledge and belief; second, proof of his having adver- tised the same in a newspaper of general circulation, pub- lished near the principal ofldce of the corporation, once a week for four weeks; and third, a bond to the corporation, with one or more sufficient sureties, conditioned to indem- nify the corporation and all persons against any loss in con- WEST VIRGINIA CORPORATIONS. 35 sequence of a new certificate being issued in lieu of the former. And thereupon the Board of Directors shall cause to be issued to him a new certificate, or duplicate of the cer- tificate alleged to be lost.* HOW SUBSCRIPTION TO BE PAID. Sec. 8. At least ten percent, of the par value of each share shall be paid at the time of subscription, and the residue as required by the Board of Directors' and no stock shall be regarded as taken or the person subscribing there- for considered entitled to the same, until the first instal- ment is paid thereon. STOCK OWNED BY THE CORPORATION. Sec. 9. *If the corporation acquires shares of its own stock, it may either extinguish or sell the same. If ex- tinguished, it shall operate to that extent as a reduction of the amount of its capital stock. No vote shall be given on any stock while owned by the corporation.* DIVIDENDS ON STOCK. Sec. 10. *The board may, from time to time, declare dividends of so much of the net profits as they deem it prudent to divide. If any stockholder be indebted to the corporation, his dividend, or so much thereof as is neces- sary, may be applied to the payment of the debt, if the same be then due and payable.* DIVIDENDS DECLARED OUT OF THE CAPITAL. Sec. 11. *If the board declare a dividend by which the capital of the corporation shall be diminished, all the mem- bers present who do not dissent therefrom and cause said dissent to be entered on the record of their proceedings, shall be jointly and severally liable to the creditors of the corporation for the amount the capital may have been so diminished; and may be decreed against therefor op a bill in equity filed by any creditor; and moreover, every stock- holder who has received any such dividend shall be liable 36 WEST VIRGINIA COEPORATIONS. to the creditors for the amount of capital so received by him.* PREFERRED STOCK. Sec. 12. *The stockholders in general meeting may, by resolution or by-law, provide for or authorize the issuing of preferred stock, on such terms and conditions, and with suth regulations respecting the preference to be given to such stock over the other stock in relation to future divi- dends, or otherwise, as they may deem proper: Provided, That the maximum capital of the corporation shall not be exceeded, and that notice be first published at least once a week for four weeks successively, in some news- paper of general circulation in the county wherein the prin- cipal oflflce or place of business of the corporation is situa- ted, of the intention 'co offer such resolution or by-law.* ARTICLE XVII. HOW CHECKS, ETC., TO BE MADE. All bill, notes, checks or o'cher negotiable instruments of the corporation shall be made in the name of the company, and shall be signed by the treasurer and the president, or in his absence or incapacity to a«.t, by the vice-president. No officers or agents of the corporation either singly or together shall have power to make any bill, note, check or other negotiable instrument in the name of the company, or to bind the company thereby, except as in this section prescribed and provided. ARTICLE XVIII. NO DEBT TO BE CONTRACTED. No officer or agent of the corporation shall, singly or to- gether, contract, or cause to be contracted, any debt or lia- bility in the name, or in behalf of, the corporation, beyond 'che necessity of legitimate business and current expenses thereof. WEST VIRGINIA CORPORATIONS. 3T ARTICLE XIX. RESTRICTION AS TO INDORSEMENT. No officer or agent of this company shall have power to indorse, in the name, or in behalf of, the company, any note, bill of exchange, draft, check or other writteij instrument for the payment of money, save only for the purpose of collection of said instrument, unless there- unto duly authorized by the Board of Directors, and en- tered on the record of the board. ARTICLE XX. HOW MONEY TO BE DEPOSITED. All moneys or funds of "che corporation, or under its charge, deposited in any bank or place of deposit, shall be deposited to the credit of the corporation by its corporate ARTICLE XXI. HOW NOTICE MAY BE GIVEN. Whenever notice is required to be given and the manner of giving it is not specified, the mailing of such notice, addressed to the party at his last known pos'coffice, accompanied by the usual notification to the postmaster to return the le'cter if not called for in ten days, shall be con- sidered notice served, if such letter is not so returned. ARTICLE XXII. The vice president shall perform the duties of the presi- dent in the absence of the latter from the city where the principal oflSce of the corporation is or his absence from a meeting of the Board of Directors.* *It will be observed tbat the foregoing by-laws are largely quotations from the statutes. The parts between the stars are literal quotations, as are those where the sections of the code, quoted from, are noted, and it would seem that only in rare instances, can these be dispensed with. 38 WEST VIRGINIA CORPORATIONS. AMENDMENTS. ARTICLE XXIII. These by-laws may be amended or altered by a majority vote of all the stockholders at the annual meet- ing of the stockholders. They may be so amended or al- tered at any other meeting of the stockholders, but the notice of any such other meeting shall state the amend- ment or alteration proposed, and shall specify the section or sections it is proposed to amend or alter, together with a general statement of the nature of the proposed changes therein. At any sucTi other meeting the stockholders at- tending shall have no power to amend or alter any sections other than those specified in said notice; but as to those sections so specified they shall have full power, and shall not be restricted to the proposed changes set forth in such notice. The foregoing form for by-laws, may be modified to suit the peculiar or special condition which may confront the stockholders, of each corporation. Where the law requires a thing to be done or prescribes the duty of the stockhold- ers, directors or officers, of course a by-law could not be ef- fective to contravene such a provision of the s'catute, and the above are drawn with care not to violate any statutory requirement. It is the aim to make these by-laws so com- prehensive that the observance of them will keep the direc- tors and officers strictly within the requirements of the West Virginia statutes; and the duties of all will be dis- closed as well from the by-laws as from 'che code. WEST VIRGrNIA CORPORATIONS. 39 CHAPTER V. PROCEEDINGS OP STOCKHOLDERS, ELECTION OF DIRECTORS WITH FORMS. Upon every question before the stockholders, including the adoption of the by-laws, every stockholder "may, in person, or by proxy, give the following vote on what- ever stock he may hold in the same right, that is to say, one vote for every share of stock held," in che company.** Having adopted the by-laws, the next business for the iirst meeting will be the ELECTION OF DIRECTORS. In the election of directors, the statute and the constitu- tion of the state, provide for cumulative voting, that is, any stockholder may cast for one director as many votes as he may hold shares multiplied by the number of direc'cors, or distribute, among as many persons as he shall see fit, a number of votes equal to his shares multiplied by the num- ber of directors. For instance, if five directors are to be elected and John Doe owns 100 shares in the company, he may vote 100. shares each for any five persons, or 400 for one, and 100 for another; or 250 for one and 250 for another; or 200 for one, 200 for another and 100 for a third; or 500 for any one person; and a director who has been thus elected may enforce his right to act as a director by mandamus.' The result of each ballot, the number of votes received by each person, and those declared elected should be entered accurately and clearly on the minutes of the meeting. The statute does not prescribe the manner of holding the elec- tion, and any convenient mode of casting the votes and as- certaining the result may be adopted. The following plans are suggested: **Code, ch. 53, sec. 44. •Code, ch. 53, sec. 44. Const. W. Va., Art. XI, sec. 4. Ante, oaee 28 Cross vs. W. Va. Cent. & P. Ey Co., 35 W. Va., 174—5. 40 WEST VIRGINIA CORPORATIONS. 1st. To appoint tellers, and have each person present rep- resenting stock 'to announce to the tellers the number of votes which he casts for each person, and after all have vot- ed, let the tellers declare the result; or 2nd. To have the chairman or secretary of the meeting or both perform the duties of such tellers; or 3rd. After designating some person or persons to receive the vote, let each person present representing stock cast a written ballot, voting the stock represented by him. PROCEEDINGS AT STOCKHOLDERS' MEETINGS AND MINUTES THEREOF. Let us -cake the NEW YORK WOOD COMPANY, whose incorporators were John Smith, Samuel Jones, George Brown, James Doe and Richard Roe, and proceed to organ- ize the corporation in accordance with the instructions here- inbefore given. We have seen that these incorporators must fix the time and place of the first meeting for or- ganization.* The statute prescribes that the time shall not be less than twenty-one, nor more than ninety days from the date of the certificate of incorporation, and that at least two weeks notice of such mee'cing shall be given by publish- ing such notice in some newspaper of general circulation published near the principal office or place of business of the company.** We have shown that these requirements as to the 'dme to elapse before a meeting, may be waived by all the stockholders.*** The statute also provides that no meet- ing shall be held out of this state "without the concurrence of persons holding a majority in value of the stock, nor with- out reasonable notice";**** and we have seen a form for ex- pressing this "concurrence."*** Agreeing to the notice published Or the waiver of notice would seem to be just as effective. The stockholders then meet at the time and place agreed upon in the published notice or the written M'aiver of no- tice and the minutes would be as follows: "The stockholders of the New York Wood Company, a cor- •Ante, page 21. ••Code, ch. 54, sec. 15. Ch. 63, sec. 41. ***Ante, pnge 22. ****Coae, ch. 54, sec. 28. WEST VIRGINIA CORPORATIONS. 41 poration created under the laws of West Virginia, met this day of , 1898, at in the city of New Yorlr, state of New Yorif, pursuant to the following notice: *'Notice is hereby given that a general meeting of the stocldiolders of the New Yorlc "Wood Company, a corpora- tion created under the laws of the state of West Virginia, will be held at — in the city of New York, on the day of , 1898, for the purpose of electing a Board of Directors, adopting by-laws and transacting aiiy other busi ness which may be done by the said stockholders in general meeting. JOHN SMITH, SAMUEL JONES, GEORGE BROWN, JAMES DOE, RICHARD ROE, Stockholders.' 'I, , editor of the , a newspaper pub- lished in 'che city of New York, and of general circulation, do hereby certify that the foregoing notice of a stockholders' meeting of the New York Wood Company was published for at least two weeks prior to , (the day of the meeting) in said newspaper. 'Given under my hand this day of , 1898. *(Signed.) . '* (If the meeting is held pursuant to a waiver of notice, instead of the part between the stars, insert the waiver of notice signed by the stockholders, according to the form on page 22.) "There were present at the meeting John Smith, Samuel Jones, George Brown, James Doe and Joseph Williams claiming to be the proxy for Richard Roe. "Upon motion John Smith was elected chairman, and Samuel Jones, secretary, of the meeting by a viva voce vote. "Upon motion of George Brown, the chair is au- thorized to appoint a committee of two to report to the meeting what stock is represented in person and by proxy; •Where anything is required by any statute to be published in a news- paper, the certificate of the editor or publisher, or affidavit of any other person, shall be admitted as evidence of what is stated therein as to the publication. Code, ch. 130, see. 32. 42 WEST VIRGINIA CORPORATIONS. and the chair appointed George Brown and James Doe as such committee. "The said committee reported as follows: 'We the undersigned committee appointed to report tn this meeting what stock of this company is present in per- son and by proxy, beg leave to report as follows : 'Whole number of shares subscribed for as shown by the agreement for incorporation and the certificate of incorpor- ation, one hundred. No stock has been sold since the date of the certificate of incorporation.** 'There are present the following stockholders in person, holding the following number of shares respectively: JOHN SMITH, 40 shares, SAMUEL JONES, 20 shares, GEORGE BROWN, 20 shares. JAMES DOE, 10 shares. 'Joseph Williams is present and has the written proxy of Richard Roe, who holds the remaining 10 shares, and said AVilliams not being an officer or director of this company is 'entitled to vote said 10 shares as the proxy of Richard Roe. AVe therefore report all the stock present in person and by proxy. All of which is respectfully submitted. GEORGE BROWN, JAMES DOE, Committee.' "Upon motion of Samuel Jones, the report of the commit- tee is adopted as the action of the meeting and is ordered to be spread upon the minutes. "Upon motion of Joseph Williams, the chair is authorized to appoint a committee of two to draft by-laws for the gov- pi'ument of this company and report the same to the meet- ing, for its adoption, amendment or rejection." "The chair appointed Joseph Williams and Samuel Jonen as su( h committee. Upon motion of George Brown, the meet- ing adjourned till tomorrow (the day of , 1898.) ••After a cei-tlflcnte of Incorporation has been issued and before organlza- llon, stock may be sold. Code, ch. 53, sec. 23; eh. 54, see. 16. The persons piircliaslng the stock pursuant to these sections would be entitled to par- ticipate in I lie meeting, and unless they waive notice, a meeting could not be held until after puniicatlon of notice for two weeks. WEST VIRGINIA CORPORATIONS. 4^; at the same place 'co give the committee on by-laws time in which to prepare a report. JOHN SMITH, Chairman, SAMUEL JONES, Secretary." ADJOURNED MEETING. "The stockholders of the New York Wood Company met at in the city of New York, this day of , 1898, pursuant to the adjournment of yesterday. There were present, John Smith, Samuel Jones, George Brown, and James Doe in person, and Richard Roe, by his proxy, Joseph Williams. All the stock being represented in per- son or by proxy, John Smith called the meeting to order as chairman and Samuel Jones acted as secretary. "The committee appointed yesterday to draft by-laws, re- ported, and presented with its report a form jf by-laws. "Upon motion of George Brown, the said by-laws were read by sections for amendment. After the reading of said by-laws and the adoption and rejection of the several amend- ments offered, Joseph Williams moved that the following by-laws, from Article I to Article — with the several sec- tions thereof respectively, be adopted and passed as the by- laws of, and for the government of, this company, to-wit: (Here insert in full the by-laws adopted. It is suggest- ed that the by-laws hereinbefore given conform to the laws of W. Va., The parts between the stars are quotations from the statute and must be observed.) "Upon the said motion of Joseph Williams to adopt the foregoing by-laws, the following vote was cast. "For the motion : John Smith cast 40 votes. Samuel Jones cast 20 votes. Richard Roe by his proxy cast . . 10 votes. Total 70 votes. "Against the motion : George Brown cast 20 votes. James Doe cast 10 votes. Total 30 votes. 44 WEST VIRGINIA CORPORATIONS. "Thereupon the said motion was declared carried and said by-laws were declared adopted. "Richard Roe moved that the meeting proceed to elect five directors, as prescribed by Article VI of the by-laws, and that each person entitled to vote for directors announce his vote to the secretary. Which motion was unanimously carried. "Thereupon the vote was announced as follows: John Smith cast his votes as follows : John Smith, 100. Samuel Jones. 25. George Brown, 25. James Doe, 25. *Richard Roe, 25. Samuel Jones cast his votes as follows: For Samuel Jones, 100. Richard Roe, by his proxy, cast his votes as follows: For Richard Roe, 50. . George Brown cast his votes as follows : George Brown, 75. Richard Roe, 25. James Doe cast his votes as follows: For James Doe, 50. "Thereupon it was ascertained and reported by the clerk "chat the following persons had received the following num- ber of votes respectively: John Smith, 100 votes. Samuel Jones, 125 votes. George Brown, 100 votes. James Doe, 75 votes. Richard Roe, 100 votes. "Thereupon the said John Smith, Samuel Jones, George Brown, James Doe and Richard Roe were duly declared elected directors. "John Smith and Samuel Jones, who were appointed by the original incorporators to collect and receive the cash payment upon subscription to the capital stock, and to attend to the details of incorporation reported that they had received 10 jK'r cent, of the subscription of each incorporator as follows: •11 will be observed that 200 votes are cast, that Is 40, the number of shares held multiplied by five, the number of directors to be elected. WEST VIRGINIA CORPORATIONS. 45 From John Smith, 10 per cent of 40 shares at $100— | From Samuel Jones, 10 per cent of 20 shares at $100— 1200 From George Brown, 10 per cent, of 20 shares at $100— $200. From James Doe, 10 per cen'c. of 10 shares at $100— $100. From Richard Roe, 10 pei* cent, of 10 shares at $100— $100. Total amount received $1,000. "And that they had expended the following amounts : To Secretary of State, of West Virginia, for Charter $6.00 To Secretary of State, License Tax $ 50.00 To expenses in having argreement for incorporation prepared and other items $100.00 Total disbursements $156.00 Leaving balance on hand of $844.00 "Upon motion the report was received and ordered spread upon the minutes, the items of expenses were approved and allowed and said Smith and Jones were ordered to pay the balance in their hands amounting 'co $844.00, to the treas- urer, when elected and qualified. "There being no further business to be transacted, upon motion, the meeting adjourned. JOHN SMITH, Chairman. SAMUEL JONES, Secretary." CHAPTER VI. BOARD OF DIRECTORS. We now have a corporation, duly organized, with by-laws and a Board of Directors. Until the next meeting of the s'cockholders at which a new board can be elected under the by-laws, all the business of the corporation is in the hands 46 WEST VIRGINIA CORPORATIONS. of this Board of Directors. The directors are the managers of the corporation, and stand in the relation of trustees to the corporation and the stockholders. They are required to act in perfect good faith with the corporation and the stock- holders; and cannot, in their ofQdial capacity, take any per- sonal advantage to themselves, at the expense or loss of 'che corporation. They must conform strictly to the by-laws and the statute, in all matters where their conduct is outlin- ed by ei'cher; and if upon any question, the law and the by- laws are both silent, and the matter pertains 'co the ordinary business of the corporation, then they must use their best judgment and act, as an agent would for his principal, hon- estly. These are general principles, recognized by the courts of every s'cate; and the laws of West Virginia, having restrict- ed but slightly the general rule leaving all matters pertain- ing to the business of the corporation in the control of the directors, the latter can nearly always be right by observ- ing two rules, viz: Obey 'che by-laws and be honest. Any discussion of the powers and duties of directors, their liabilities, how far they can bind the corporation t)y regular or irregular official action, etc., must of necessity, be beyond the scope of this work. Where their powers are limited, extended or controlled by "rhc statute, the latter governs; and it is believed that the form for by-laws heretofore given embraces the substance of every legislative enactment enjoining a duty upon the dir(H'- tors or defining the limitations of their powers. It would be hard, probably impossible, to conveive a set of by-laws so comprehensive as to outline the course to be pursued in any and all emergencies. No legislative enact- ments has ever pretended to be exhaustive in naming all their duties and perscribing the mode of handling every detail of business. Much the greater par'r of the action of the direc- tors will be prompted by their common sense and business judgment; and their conduct in each particular instance, subject to the limitations set for'ch in the form of by-laws given, will be governed by general pi'inciples of law and right. However, there are some duties imposed upon the direc- WEST VIEGINIA CORPORATIONS. 47 tors of corporations by statute, which are not properly the subject-ma'cter of a by-law, such as the appointment of an agent or attorney to accept service of process and upon whom process may be served, and the selling and issuing of, stock; and there are some questions causing disputes and troubles, of such frequent occurrence, that they are deemed worthy of more than a reference. We will therefore organize the Board of Directors of the New York Wood Company, and show in the next chapter the procedings to be taken in the several matters re- ferred to. BOARD OF DIRECTORS' PROCEEDINGS. The board mAy meet by agreement of all the directors at any 'cime and place. If all are not present and agreeing, the notice required by the by-laws must be given. If, then, no- " tice be given or all the directors meet by agreement or waive notice, the proceedings would be as follows: "The Board of Directors of the New York Wood Company, met this day of , 1898, a'c the offlce of the company (or at any other place,) in the city of , state of . "There were present John Smith, Samuel Jones, George Brown, James Doe and Richard Roe, being all of the di- rectors. "Richard Roe was elected temporary chairman and Sam- uel Jones, temporary secretary. Upon motion of James Doe, the board proceeded 'co the election of the following of- ficers: President, Secretary, Treasurer, General Manager and Vice-president. "Thereupon an election was held for President and John Smith received 3 votes arid George Brown 2; thereupon John Smith was duly declared elected President. "An election of a secretary was then held and Samuel Samuel Jones received 4 vo'ces and Richard Roe 1 vote; thereupon Samuel Jones was declared duly elected Secre- tary. "An election of a treasurer was then held and Richard Roe received 5 votes and was declared duly elected Treas- urer. 48 WEST VRGINIA CORPORATIONS. "For general manager, James Doe received 5 votes and was duly declared elected. "For vice president, George Brown received 5 votes and was duly declared elected." "At this point John Smith, the president-elect, took the the chair. "George Brown offered the following resolution and mov- ed its adoption: 'Resolved: That this company hereby constitutes and ap- points A. B., of Charleston in the county of Kanaw- ha, and state of West Virginia and residing in said state, to be its true and lawful attorney in the state of West Vir- ginia, for it and in its name and stead to accept service on behalf of this corporation, and upon whom service may be had of any process or notice, and to make such return for and on behalf of this corporation of the property for taxa- tion to the assessor of the county or dis'crict wherein its busi- ness is carried on as is required by the forty-first sec'cion of the twenty-ninth chapter of the Code of West Virginia, and to list its property for taxation in any other manner re- quired by the laws of said state, giving its said attorney full power to do everything whatsoever requisite and necessary to be done in the premises as fully as the corporation could do itself hereby ratifying what the said ailorney may do iu the premises.'* "On the adoption of said resolution, all the directors (5) voted in the affirmative and the same was declared duly adopted. "Upon motion of George Brown, the secretary is ordered to have prepared an apt and proper power of attorney, in ac- POWEE OF ATTORNEY TO ACCEPT SERVICE OF PROCESS. •Every such corporation having its principal office or place of business in this state shall, within thirty days after, organization, by power of attorney duly executed, appoint some person residing in the county In this state wherein its business is conducted, to accept service on behalf of said cor- poration, and upon whom service may be had of any process or notice, and to make such return for and on behalf of said corporation to the assessor of the county or district wherein its business is carried on. as Is required by the forty-flrst section of the twenty-ninth chapter of the code. Every such corporation having its principal offlee or place of business outside this state shall, within thirty days after organizing, by power of attorney duly I'xocMited, appoint some person residing in this state to accept service on behalf of said corporation, and upon whom service may be had of any pro- fess or notice, and to malio return of Its property in this state for taxation as aforesaid. The said power of attorney shnll be recorded In the office of the clerk of the county court of the rounty In which the attorney resides, and filed and recorded In the office of the s<'oretary of slate, and the admission to record of such power of nttoruey shnll be deemed evidence of compliance with the reouirements of this section. Corporations heretofore organized may comply with said requirements at WEST VIRGINIA CORPORATIONS. 49 cordance wi'ch the foregoing resolutions, and the president is hereby authorized, empowered and directed to sign the name of this corporation thereto, afHx the heal of this cor poration thereto, acknowledge* the same for and in behalf of this corporation, and have the same recorded in the proper county in West Virginia and filed and recorded in the office of the secretary of state of West Virginia, and the treasurer is ordered to pay the fees and charges to carry out this resolution.** "The following resolution was oifered by Richard Roe and unanimously adopted. any time within thiv'e months after fhe passage of this act. Any corpora- tion failing to comi y with said requirements within six months after the passage of this act shali forfeit not less than two hundred nor more than five hundred dollars and shall, moreover, during the continuance of such failure, be deemed ;■ ion-resident of this state; and its property, real and personal, shall be 11.". ■ to atUiehr^ont in like manner as the property of non- resident defend8'"ts 'uy corj oratn>n failing so to comply within twelve months after tin , ,g.' of ihis act shall, Ijy^teason of such failure, for- feit Jts charter to s( .te, and the proviMsns of section eight, chapter twenty, acts one t and eight hundred ana eighty-flve, relative to notice and publication, shij iippiy thereto. [Code, ch. 54, sec. 24.] It win be noted th^il where the "principal office or place of business" is in West Virginia the agt'iit or attorney so to be appointed must reside in the county wherein the business of the corporation is conducted; if the "prin- cipal otfice or place of business" is outside of the state, then such agent or attorney is required only to be a resident of the state. It has been sometimes erroneously supposed that section 41, of chapter 29, of the code, referred to In this section, makes it the duty of such agents or attorneys to return or list for taxation all property of corporations in- corporated under the laws of West Virginia, whether such property be within the state or not. This supposition is erxoneous. If a corporation has its principal office, bus- iness and property In this state, then its capital stock, or its property is assessed for taxation, as provided by section 64, chapter 29, of the code— I?ank vs. County Court. 36 W.. Va., 345. If, in such cases, the capital stock is assessed, the personal property is not. But where the principal office or place of business, and the property of the corporation are outside of the state, there is no provision of law for listing it for taxation. Sections 41, 49 and 64 of chapter 29, must be construed together and each part "viewed In connection witli the whole, so as to make" the parts "harmonize." Bank vs. County Court, 36 W. Va., 346. Construing the above sections together, it seems clear that an incorporated company is to be assessed for taxation in the assessment district of the proper assessor and in defining what is the proper district the statute employs the following phrases: "Where the principal ofBce for transacting the financial concerns pertain- ing to such trade or business is located;" (sec. 49) "in his (the assessor's) dis- trict: and "in the district where its operations are carried on." (Sec. 64.) If a corporation has its principal office, business and property, say, in New York, it is presumed that such property is taxed in New York. The leg- islature could not provide for the assessment of taxes in West Virginia, on property not in that state. But whether it could do so or not. it has not done so, and property of such corporations is not taxed here. Of course If ♦Form of acknowledgment sec post, chapter VII. •*The fees are as follows: Recording in county clerk's office, $1.25; filing and recording in office of secretary of state. .$2.50. If a certificate of the filing and recording in the office of the secretary of state is desired there is an additional charge of $2.50. It is usual for a corporation to pay its agent or attorney thus appointed an annual retainer. This is suggested as the best course. If any process or notice be served on the attorney, the corporation expects prompt notice to be given it. The result of failure to do so, might be serious. Tt should therefore, establish the relation of attorney and client between Itself and the person so appointed; and in this way, not only be Just, but also have some person to whom any matters pertaining to its organization and its status in West Virginia, may be referred. 50 WEST VIRGINIA CORPORATIONy 'Whereas: The maximum capital of this corporation is 1100,000, of the par value of |100 each ; making 1000 shares in all; and whereas, oply 100 of said 1000 shares have been sold, i. e., the ten thousand dollars par value subscribed for a'c the time of the incorporation, leaving 900 shares of the par value of flOO each, yet to be disposed of; and whereas, the corporation needs additional capital to carry on its business; Be it resolved : That 300 additional shares of the capital stock be sold at par.'* "George Brown made a proposition to the Board of Direc- tors to take 100 shares of the said stock at par and pay for the same in lumber suitable for the manufacture of furni- ture at 'che price of ,f25 per thousand feet. "Richard Roe moved that the proposition be accepted, and that, upon the delivery to the company, by said Brown, of four hundred thousand feet of lumber, there be issued to him 100 shares of said stock. "Thereupon George Brown retired from the meeting dur- ing the consideration of said motion.*** "Richard Roe demanded that the names of those voting each way on this motion be entered on the record.** "Those voting for the motion were Richard Roe, John Smith and Samuel Jones. "Voting against the motion was James Doe. Thereupon, the motion having received a majority was declared duly adopted.*** snch rorpnrations hnvp renl or peraonnl Wropprtv within flip frtnte. it is ns- sessed in the assessment district In which It is located. Therefore, the power to list property for taxation, required by chapter 54. section 24, fsnpi'al to he given such agents or attorneys, men lis the power tf» list the same where and when the law remilrfs it to he listed. Ai'd if n corporation has no office, business or property In the state, it Is not required to nny any tfix excent its annual license tax The main ob.lect of the statute is to compel corporations of West Virginia to have some one witliin the state, upon wlinni process mav be served. Tf tlic corporation abuse its charter riehta, the atato mav proceed aga'nst it to forfeit those rights; the corporation may contract debts to the citizens of the state, etc., and there might be no way to get service of process in a suit to collect the debt, but for this statute. Section 41 of chapter 20 uses the term "agent" of a corporation as one required by law to list property for taxa- tion; and where the property is taxable in this state and the president or other oflicer will not list It for taxation, the statute wns desiprert to have someone within the state to perform this duty. The other sections, as we have seen, define the sulijects of taxaton. •After the corporation is organized the disposal "f additional shai-es is snb.lect to the order and direction of the Board of Directors. Code, ch. 53, sec, 2.?. The manner of enforcing payment of subscriptions to the stock will be found In ch. 5.1, code, sections 2,S to ,14, Inclusive. ••Chapter ."53, sec. .';2, code. By-laws, article X. sec. 2. •••The right of a West Virginia corporation to lalacli stockholder. At the meeting held in pursuance to this notice, let us WEST VIEGINIA CORPORATIONS. 59 suppose that part of the stock does not attend. The pro ceedings should be in substance as follows: STOCKHOLDERS' MEETING CALLED TO ADOPT NEW AGREEMENT. "The stockholders of the New York Wood Company ine< at the oflflce of the Company in the city and state of New York on this 1st day of October, 1898, at 10 o'clock, a. m,, in pursuance of the following notice: (Here insert the notice in full.) "There were present at the meeting John Smith, James Doe and George Brown. "John Smith was elected chairman, and James Doe sec retary of the meeting. "Upon motion the chair was authorized to appoint a commi'ctee to ascertain and report who are the stockholders of the company, what amount of stock is present, what ab- sent, and whether or not all the stockholders have had no- tice of the meeting. "The chair appointed James Doe and George Brown as such commi'ctee who reported that the stock of the com- pany consists of 200 shares, held by the following persons,* to-wit : "John Smith, 40 shares. "Samuel Jones, 20 shares. "George Brown, 120 shares. "James Doe, 10 shares. "Richard Roe. 10 shares. "Total to 200 shares. "That there are present John Smith, owning 40 shares; George Brown, owning 120 shares, and James Doe, owning 10 shares. "That there are absent Samuel Jones, owning 20 shares, and Richard Roe, owning 10 shares; that there are present a majority of the stockholders, representing a ma- jority of the stock, and that all the stockholders have had notice of this meeting. "Thereupon, George Brown offered the following resolu- tion and moved its adoption, to-wit: fiO \\'EST VIRGINIA CORPORATIONS. 'Resolved: That the stockholders of the New York Wood Company, do hereby agree to and adopt a new agree- ment of incorpoi'ation so that the same will read as follows: The undersigned agree to become a corporation by the name of New York Wood Company for the purpose of man- ufacturing furniture and dealing in the same; manufactur- ing sash and doors, and selling and dealing in the same; and for acquiring such property, real and personal, as may be necessary to carry on. said business. Which corporation shall keep its principal ofiQce or place of business at New York, in the county of NeAV York, and state of Is'ew York, and is to expire on the 1st day of Sep- tember, 1948. And for the purpose of forming the said corporation, we have subscribed the sum of Ten Thousand Dollars to the capital thereof, and have paid in on said sub- scriptions the sum of One Thousand Dollars, and desire the privilege of increasing the said capi'cal, by the sale of ad- ditional shares from time to time, to One Hundred Thous- and Dollars in all. The capital so subscribed is divided into shares of One Hundred Dollars each, which are held by the undersigned respectively, as follows, that is to say: John Smith, New York, N. Y., 40. Samuel Jones, New York, N. Y., 20. George Brown, Philadelphia, Pa., 20. James Doe, Trenton, N. J., 10. Richard Roe, Albany, N. Y., 10. And the capital to be hereafter sold is to be divided into shares of the like amount.' Those voting for the resolution and the stock vote cast therefore were as follows: John Smith, 40 votes. George Brown, 120 votes. James Doe, 10 votes. There were no votes in 'che negative. Thereupon, the said resolution was declared duly con- curred in, agreed to and adopted.* Thereupon, the meeting adjourned. JOHN SMITH, Chairman. JAMES DOE, Secretary, dp to this point the stockholders have complied with the sta'cute in every detail and the minutes of their meetiuL' •It will be noted that the resolution must receive the vote of a majority of the stockholders and a majority In value of the stock. WEST VIRGINIA CORPORATIONS. 61 show everything required. But there is still another step: "A copy of such resolution, containing such new agree- ment, when acknowledged by such majority of the stock- holders in the manner prescribed by the eighth section of this chapter, shall be delivered to the secretary of state, who shall thereupon issue his certificate, etc." It is the copy. of 'che resolution which must be acknowl- edged and delivered to the secretary of state. By whom must it be acknowledged? The statute says: "by such ma- jority" of the stockholders, i. e., by 'the "majority, represent- ing a majority of the capital stock," who passed the reso- lution at the meeting of the stockholders. Proceeding, then, in the case supposed, John Smith, (jeorge Brown and James Doe, who voted for and passed the resolution, must acknowledge the resolution, contain- ing the new agreement. The following form is therefore recommended: "We, John Smith, George Brown and James Doe, do hereby certify, that, at a meeting of the stockholders of the New York Wood Company, a corporation created under the laws of the state of West Virginia, which meeting was es- pecially called for the purpose of agreeing to and adopting 'che resolution hereinafter set forth, of which meeting all the stockholders of said company had notice, the following resolution was concurrel in, agreed to and adopted by said John Smith, George Brown and James Doe, they being a majority of all the stockholders and representing a major- ity of the capital stock of said company, to-wit: 'The undersigned agree to become a corporation by the name of New York Wood Company, for "the purpose of man- ufacturing furniture and dealing in the same; manufactur- ing sash and doors, and selling and dealing in the same; and for acquiring such property, real and personal as may be necessary to carry on said business. 'Which corporation shall keep its principal oflflce or place of business at New York, in the county of New York, and state of New York, and is to expire on the 1st day of Sep- tember, 1948. And for the purpose of forming the said corporation, we have subscribed the sum of Ten Thousand Dollars to the capital thereof, and have paid in on said sub- scriptions the sum of^One Thousand Dollars, and desire the privilege of increasing the said capital, by the sale of ad- dition al shares from time to time, to One Hundred Thous- and Dollars in all. 62 WEST VIRGINIA CORPORATIONS. 'The capital so snbsfiibed is divided into shares of One Hundred Dollars^each, which are held by the undersigned respectively, as follows, that is to say: John Smi'ch, New York, N. Y., 40. Samuel Jones, New l^ork, N. Y., 20. George Brown, Philadelphia, Pa., 20. James Doe, Trenton,' N. J., 10. Richard Roe, Albany, N. Y., 10. 'And the capital to be hereafter sold is to be divided into shares of the like amount. 'Given under our hands, this 3rd dav of October, 1S!IS. JOHN SMITH. GEORGE BROWN. JAMES DOE. 'State of New York, county of New York, to-wit: I, C. A. Williams, a notary public, in and for the county and state aforesaid, hereby certify that John Smith, George Brown and James Doe, whose names are signed to the fore- going agreement, bearing date on the 3rd day of October, 1898, this day personally appeared before me in my said county, and severally acknowledged their signatures to the same. 'And I further cei'tify that John Smith andGeorgeBrowu, two of the corporators named in the said agreement, made oath before me that the amount therein stated to have been paid on the capital has been in good faith paid in for the purpose and business of the intended corporation, without any intention or understanding that the same shall be • withdrawn therefrom before the expiration or dissolution of this corporation. 'Given under my hand and seal, this .3rd day of October, 1898 C. A. WILLIAMS, Notary Public' [Notarial Seal.] 10 cent Int. Rev. Stamp. The paper thus executed is now sent to the Secretary of State, who issues a new cei'tiflcate of incorporation in ac- cordance with the new resolution. His chai-ge for this is .fO. The license tax is not required to be paid again on present- ing the new agreement as this is not forming a new corpora- WEST VIRGINIA CORPORATIONS. 63 tion but enlarging the powers of one alreadj' in existence. When tliese proceedings are regularly had, and the certifi- cate of the Secretary of State issued, the minority stockhold- ers are bound by it, and the corporation proceeds, in all re- spects, from the date of the new certificate, as if the new agreement had been the original. The statute provides, that "all the provisions of this chap- ter shall apply to such new certificate." It is not the intention that the whole organization shall be gone over again, and new by-laws adopted and new power of attorney recorded, etc. What has been done up to the time of the filing of the new agreement, binds all the stockhold- ers and officers afterwards, and the organization then exist- ing, remains the organization, just as if the new agreement had not been adopted. Afterwards, the company proceeds under the powers granted by the new certificate instead of the old. The new certificate must be recorded in the county in which the principal office or place of business of the com- pany is kept, if such office or place of business be in the State of "West Virginia.* The provisions of section 10 can not be used for the same purpose as sections 21 and 22. (Cli. 54, Code). Section 10 allows an amendment of the chai'ter so as to "increase or diminish the number of its shares of capital stock by consolidating or subdividing the same." The proceeding for increasing or reducing the number of shares, or their par value under sections 21 and 22 is differ- ent and will be given in the next chapter. CHAPTER IX. IX( REASE OR DECREASE OP THE CAPITAL STOCK. If a corporation desires to increase or decrease its capital stock, it may do so as follows: ♦Code ell, 54, sec, 20. 64 WEST VIRGINIA OOEPOKATIONS. Any corporation formed, or which may hereafter be form- ed, or which has accepted or may accept the provisions of this chapter, may, by resolution at any general or special meeting of the stockholders thereof, make such increase or reduction in the number of shares of its capital stock, or the par value of each share, as may be decided upon by said stock holders, a majority of the stock of such company being represented by the holders thereof, and such holders being present either in person or by proxy, and voting for such in- crease or reduction. Provided, That notice be given by ad- vertisement, published four successive weeks, in some news- paper of general circulation printed in this State, of the in- tention to offer such resolution. [Code, ch. 54, sec. 21.] When such increase or reduction shall have been made by any such company, the president thereof shall, under his sig- nature and the common seal of the company, certify the res- olution to the Secretary of State; and the Secretary of State, under his hand and the great seal of this State, shall issue, to the company so making such increase or reduction, a cer- tificate reciting the resolution and declaring the proposed increase or reduction to be authorized by law, which certifi- cate shall be received in all courts and places as evidence of the change in the number or par value of the shares of the capital stock of such company, and of the authority to iji- crease or reduce the same. [Code, ch. 54, sec. 22.] Suppose that the New York AA'ood Company, whose iiiax imum capital is one hundred thousand dollars, divided into 1,000 shares of the par value of flOO, should desire to in- crease the number of shares to, say 2,000, under the above provisions, the proceeding would be: 1st. The calling of a general or special meeting of the stockholders. 2nd. The publication of a notice in some newspaper of gen- eral circulation published in this State of the intention to offer such resolution, which notice must be published foi' four successive weeks. 3rd. The adoption of such a resolution at a meeting of the stock holders, a majority of the stock being present in per- son or by proxy and voting therefor. 4th. The certifying of such resolution by the president under his signature and the common seal of the company. The form for calling meetings of the stock holders, and the notice required, have already been given ; (see pages 20 WEST VIRGINIA CORPORATIONS. 65 21, 22), also the form for the minutes of the proceedings of stock holders' meetings, (see ijages 39 to 45), and these will not be repeated. A sufQcient notice of the intention to offer such a resolu- tion would be as follows: "Notice is hereby given that at a stockholders' meeting of the New York A\'ood Company, a corporation created un- der the laws of the state of A^'est Virginia, to be held at the office of the company in the city and state of New York, on the 10th day of October, 1898, a resolution will be offered, increasing the number of shares of stock of said company from 1,000 shares of the par value of |100, to 2,000 shares of the par value of flOO. JOHN SMITH, Stock-holder." The statute does not say that the publication of this no- tice shall be for the four weeks "next preceding'-, nor "pro- ceding" the meeting. Of course it must be preceding the meeting, and as the time of meeting must be determined upon before the notice can be published, the expiration of the four weeks notice is bound to be near the time of the meeting. Even in the case of a regular annual meeting, no- tice is also required. The manner of certifying the imblication of notices has already been given. (See page 41.) When the stock holders meet, and it has been ascertained that a majority of the stock is present in person or by proxy, if such majority vote therefor, the resolution of increase shall be declared adopted. The following form for such a resolution is suggested: "Resolved: That the capital stock of this company be in- creased from 1,000 shares of the par value t>1 $100 each to 2.000 shares of the par value of flOO each and that the pres- ident certify this resolution to the Secretary of State of West Virginia as provided by section 22, chapter 54 of the code of West Virginia." It then becomes the duty of the President to make the cer- tificate, and, in the case supposed, such certificate would be in form as follows: 66 WEST VIRGINIA CORPORATIONS. "I, John Smith, President of the New York Wood Com- pany, a corporation created under the laws of the state of West Virginia, do hereby certify to the Secretary of State of West Virginia, that at a meeting of the stock holders of said company regularly held at the office of the company in the city and state of New York, on the 10th day of October, 1898, at which meeting a majority of the stock of said com- pany was present and represented by the holders thereof, the following resolution was offered and was then and there voted upon by a majority of the stock of said company, the same being present in person or by proxy; and upon such vote, a majority of the stock of said company then and there present, in person or by proxy, voted for such resolution and the same was thereupon duly adopted. I do further certify that notice of the intention to offer such resolution was given by advertisement, published in the . a newspaper of general circulation, published in the counts of Kanawha, in the state of West Virginia, which said pub- lication was made for four successiye weeks preceding said 10th day of October, 1898. In witness whereof, I have hereunto set my hand and aflSxed the common seal of said err ranv. (his 11th dav of October, 1898. ■ ' JOHN SMITH, President Of the New York Wood Company." [Corporate Seal.] The above certificate being presented to the Secretary ol State, the latter issues a' certificate accordingly, the fee for which is $7.00. A reduction of the number of shares, or an increase or reduction in the par value of the shares is accomp- lished in the same way. If the i-eduction of the num her of shares, or the increase or reduction of the par value of the shares, should result in affecting stock already issued, complications might arise. Suppose that the whole stock, to the maximum limit had been issued; and there should be a reduction in the number of shares. In order to make the stock book regular, the shares must be called in and each person's holding reduced pro rata. If a stock holder should refuse to submit to the change, could the corporation compel him to do so. and if so, how? Every stock holder takes his stock with constructive notice that the corporation is. in its management, subject to the laws of the state of its creation, and he therefore knows WEST VIRGINIA CORPORATIONS. 67 that his stock is liable to be affected by any change made in pursuance to those laws. The law having provided for an increase or decrease of the number of shares, or the par value of each, the corporation would undoubtedly have the right to enforce a change, fairly made, in pursuance to law. Whether the stock holder could be compelled by mandamus to surrender his stock in order to have the change made, is doubtful. But as the law provides that the person in whose name shares of stock stand "on the books of the corporation, shall be deemed the owner there- of, so far as the corporation is concerned,"* the latter could, by proper by-laws, and by conforming the books to the new condition, compel the stock holders to respect the change. Even if the stock holder should retain his old certificates of stock, neither he nor his assignee could vote at any meeting, any greater number of shares than he appeared to own by the books. But as all these changes are generally made by unanimous consent, difficulties of this kind seldom arise. It has been supposed that an increase or reduction in the capital stock of a company, can be made under the provis- ions of section 10, chapter 54. So it can, but only by "con- solidating" shares to diminish, or "sub-dividing," to in- crease. Besides, section 10. applies only to corporations or- ganized under sub-divisions 1 and 10 of section 2, chapter 54. The proceedings under section 10 are rather complex, and even if the same purpose could be accomplished by pro- ceeding under its provisions, it is more simple to change the number of shares and their ])ar value, under the provis- ions of sections 21 and 22, as herein set forth. •Code, eh. 53, sec. 19. 68 WEST VIRGINIA CORPORATIONS. CHAPTER X. PRINCIPAL OFFICE. CHANGE OF LOCATION. Section 17, chapter 54 of the code provides that: The secretary of state shall carefully preserve in his office the agreements, resolutions and statements mentioned in the sixth and twelfth sections, and cause to be accurately recorded in a well bound book, to be kept in his office, all certificates of incorporation, "certificates of increase or re- duction of capital stock, certificates of change of principal office," "certificates of change of name, which he shall issue under this or the preceding chapter of this code. The parts in quotation marks first appeared in the law by act of March 2nd, 1891. (See acts 1 891 , chapter 53, page 137.) Before the act of 1891, this section provif>d only for pre- serving and recording certificates of incorporation and cer- tificates of change of name, and it was, therefore, proper for the legislature to provide for the preservation and record- ing of other certificates issued from the Secretary of State's office pursuant to law. But there is no provision of law for issuing certificates of "change of principal office," and the custom of doing so, which has prevailed for many years, probably induced the legislature to provide for preserving and recording them. While there is no law for issuing these certificates, there ought to be, and the custom of preser\MDg a qiuisi official record of the home office of corporations is comniendablo. The state, stock holders, creditors and the public generally have the right to know where to find the princij)al office of a corporation. An examination of the statutes on this subject, leaves o"f in dioubt as to whether the "principal office or place of busi- ness" of a corporation must be for all time at the place named in the agreement for incorporation, (the form for which is given in section 6, chapter 54) oi- such principal of- fice, notwithstanding the location named in such agreement WEST VIRGINIA CORPORATIONS. 69 and the certificate of incorporation issued thereon, may be kept "in any state or territory of the United States, or in the District of Columbia," as provided by section 23, chapter 54 of the code. This question does not become material in construing sec- tions 86 to 92 inclusive, of chapter 32 of the code, concerning license tax on corporations, because they fix the amount of the license tax by the location of tlie "principal place of bus- iness or chief works" and not the "principal office." The statute does not require meetings of stock holders or directors to be held at the "principal office,' except when the by-laws are silent on the question, and then such meet- ings are held at the "principal ofBce or place of business." It appears, from the statutes that "place of business" and "principal office," as used in the statute, may be construed as synonymous or not, with very little light to guide. There is nothing in our law restricting the business of a corporation to the place named in its charter. It is the cus- tom and it is no doubt legal, so far as the state laws of West Virginia affect it, for a corporation whose principal office as designated in the charter, is in one state, to have its business conducted in another state or in a foreign country, and own property in such other state or country. JFor.every relation or business between the state and a corporation whose "principal office," "place of business" or "chief works" are located outside of the state, the designation of the principal office in the charter and agreement for incor- poration, is of no importance. However, this designation of the principal ofllice may become important in determining the jurisdiction of suits against a corporation having its principal office in this state. Certain suits must be brought in the county wherein the "principal office" of the corpora- tion is. (Ch. 123, sec. 1, clause 2.) Humphreys vs. N. N. & M. V. Co., 33 W. Va., 135. Ballard vs. C. & O. Ry. Co., 42 W. Va. 1. These cases attach an importance to the location of the "principal office," but whether or not such location is to be determined as a question of law from the certifi- cate of incorporation or as a question of fact from the business and management of the company, is 70 WEST VIRGINIA CORPORATIONS. not clear. Suppose that a West Virginia corpora- tion, in its agreement and charter, designates New Yorli as its principal office; but in fact its principal office is located in Kanawha county, ^Vest Virginia, d,nd the condi- tions are present for bringing the suit only in the county wherein is located its principal office; could such a suit be brought in Kanawha county? In other words would the lo- cation designated in the charter overiide tlie fact? There is no statutory provision requiring the principal office to be stated in the agreement for incorporation. It is simph' embodied in the statutory form of agreement, [Ghi54, sec. 6,] but that form seems to contemplate that this ofHce shall be in West Virginia. Section 12, chapter 5;5, in giving the kind of notice to be published when a corporation changes . its name, provides that it shall be in the county where the "principal office" is. Could this apply to a county in an- other state? It is presumed that inasmuch as the statute allows the principal office to be in another state, the ques- tion must be answered in the affirmative. Section 23, chap- ter 54, jjrovides that they (the stock holders or directors) "may keep their principal office in any state or territory of the United States or the District of Columbia." liy using the word "keep," without connecting this section in any way with section 6, the Legislature seems to have left the location of the principal office to the sto( k holders or- direc- tors. If so, some official record thereof should be made in the office of the Secretary of v^tate, and the custom of hav- ing a certificate of any change made to that officei', is both proper and legal. If, however, as a matter of law, the agreement and charter locate the princiital office, such loca- tion cannot be changed, no matter where its business may be carried on. If, however, the "princijial office" is always a question of fact, and the certificate of incorjKiration is not conclusive, then the necessity of having a record of actual changes in the principal office, becomes a matter of the highest importance. WEST VIRGINIA CORPORATIONS. 71 CHAPTER XI. CORPORATE NAME. CHANGE OP. CHANGE OF CORPORATE NAME. If the stock lioldei's of a joint stock company desire to change the name thereof, and pass, in general meeting, a resolution to that effect, stating the name by which it is in- tended the corporation shall be thereafter known, and cause such resolution to be certified under its common seal and the signature of its president to the Secretary of State, the secretary shall issue, under his hand and great seal of the state, a certificate reciting the resolution and declaring that the corporatipn is to be thereafter known by the new name so adopted; and such certificate shall be evidence of the change of name therein specified. Notice of every such change of name shall be published by such corporation in some newspaper of general circulation, in the county where the principal office of such corporation is, once a week for four successive weeks immediately thereafter. [Code, ch. 53, sec. 12.] The seventeenth, eighteenth, nineteenth and twentieth sections of chapter fifty-four of this code shall be applic- able to such certificates of change of name. [Code, ch. 53, sec. 13.] EFFECT OF CHANGE OF NAME. No contract, right or liability, previously existing or in- choate, or suit, motion or proceeding then pending, shall be affected by such change of name. [Code, ch. 53, sec. 14.] This proceeding is quite simple and scarcely needs illustra- tion. There must be a general meeting of the stockholders, regularly held in the manner provided by statute or the by- laws. At this meeting a resolution of the following form or effect should be passed : (Using the New York Wood Co. for illustration.) "Resolved: That the name of this corporation be, and it 72 WEST VIRGINIA CORPORATIONS. is hereby, changed from the NEW YORK WOOD COM- PANY to the NEW YORK FURNITURE COMPANY, by which latter name it shall hereafter be known; and "Resolved, further that these resolutions shall be certi- fied under the common seal of this company and the signa- ture of its president, to the Secretary of State of West Vir ginia." The president should then certify the resolutions as fol- lows: ''I, John Smith, President of the New York Wood Com- pany, a corporation created under the laws of the state of West Virginia, do hereby certify to the Secretary of State of West Virginia, that at a general meeting of thestock hold- ers of said corporation, regularly held, at the office of the cor- poration in the city and state of New York, on the 3rd day of October, 1898, the following resolutions were duly and legularly adopted and passed: (Here insert the resolutions above.) "Given under my hand and the common seal of said cor- poration this 4th day of October, 1898. JOHN SMITH, President . Of the New York Wood Company." [Corporate Seal.] This certificate is then sent to the Secretary of State, who issues his certificate in accordance with the resolutions. Sections 17, 18, 19 and 20 of chapter 54, provide that the certificate of the Secretary of State be recorded, the same fees as for an original certificate are charged and the same rule applies as to certified copies thereof. It will be noted that the "change of name" is required to be published once a week for four successive weeks im- mediately thereafter in some newspaper of general circu- lation published in the county where the "i)rincipal office of such corporation is." The New York Wood Company ^^ould publish such no- tice therefore in the county in the state of New York wherein its principal office is. In the last chapter, thei'o is suggested a doubt that "county," as used in this section, applies or refers to a county in another state. A corporation having its princi- WEST VIRGINIA COEPOEATIONS. 73 pal oflfice in the District of (,'olumbia, could not comply lit- erally with this statute, because its principal office is not in a county. The publication, howe\er, is not a prerequisite to the change of name. The certificate of the Secretary of State is evidence of the change, and from the date of such certificate the change is accomplished. The corporation could never be heard to deny the effect of the resolution, whether published or not, and as the change does not affect any "contract, right or liability previously existing or inchoate, or suit, motion oi' proceeding then pending," no one can possibly be injured by a failure to publish. A sufficient notice to be published would be as follows: "Notice is hereby given that the name of the New York Wood Company, a corporation created under the laws of West Virginia, has been changed to the New York Furni- ture Company, as provided by section 12, chapter 53, of the code of West Virginia. NEW YORK WOOD CO., By John Smith, President." CHAPTER XII. PREFERRED STOCK. The stock holders in general meeting may, by resolution or by-law, provide for or authorize the issuing of preferred stock, on such terms and conditions, and with such regula- tions respecting the preference to be given to such stock over the other stock in relation to future dividends, or other- wise, as they may deem proper. Provided, That the maxi- mum capital of the corporation shall not be exceeded, and th^t notice be first published at least once a week for four weeks successiyely, in some newspaper of general circula- 74 WEST VIRGINIA CORPORATIONS. tion in the county wherein tlie principal office or place of business of the corporation is situated, of the intention to offer such resolution or by-law. [Code, ('li. 53, sec. 16.] Article XVI, ^>ection 12 of the form of by-laws hereto- fore given, is^ verbatim copy of the above section. It can perform no office as a by-law, except to keep before the stock holders and directors, the law on the subject. At any gen- eral meeting of the stock holders, a by-law may be passed providing for the issuing of preferred stock, provided, that four weeks notice has been given of the intention to offer the resolution or by-law. The statute seems broad enough to allow preferred stock to be issued upon almost any terms desired. The conditions upon which such stock may be issued, are as follows: 1st: The maximum capital shall not be exceeded, i. e., the common stock and such preferred stock together must not exceed the maximum capital named in the certificate of in- corporation or charter. 2nd. Notice of the intention to offer such resolution or by law must be published in some newspaper of general circu- lation in the county wherein the "principal office or place of business" of the corporation is. . 3rd. The resolution must be passed by the stock holders in general meeting, i. e., at a meeting regularly called ac cording to the requirements of statute and the by-laws, as to notice. Such general meeting may be either the regulai' annual meeting or a special meeting. It will be seen that preferred stock cannot be provided for in the agreement for incorporation. If such provision should be made therein, it could not be effective until the performance of the three conditions mentioned above, and would be mere surplusage. The statute is broad as to the extent of the preference allowed. "On such terms and con- ditions, and with such regulations respecting the preference to be given such slock over the other stock in relatiouTo future dividends, or otherwise," would seem to embrace and include the power to make any reasonable preference conceivable. Let us suppose that the New York Wood Company (now WEST VIRGINIA CORPORATIONS. 75 by change of name, the New York Furniture Company,) should desire to issue preferred stock to the amount of 150,000. As there is still unsold $50,000, par" value, of the maximum stock authoi'ized to be issued, it may do so. The terms and extent of the preference may be as various as the emergencies and conditions which may confront stock hold- ers and directors. Therefore we shall suppose that the preference is the usual one of making the preferred stock bear a certain per centum of dividend or interest before any dividends shall be paid on the common stock. The follow- ing resolution, when adopted by the stock holders in gener- al meeting, would accomplish this purpose. "Resolved: That there be issued 500 shares of preferred stock or so much thereof as may be sold, which said stock shall be entitled to receive out of the net earnings of the company 8 per cent, of the par value thereof annually from the date of each certificate of stock before any dividends on the common stock shall be paid. The certificates of stock issued hereunder, shall all bear date on the first day of No- vember, 1898, and each shall state on its face, the following : 'PREFERRED STOCK.' 'Whole issue authorized, 500 shares.' 'Par value |100, per share.' 'This stock shall be entitled to receive 8 per cent, divi- dends annually out of the net earnings of the company, be- fore any dividends shall be paid on the common stock.' "Which said shares of stock shall all be sold at the same price, to-wit: flOO per share in cash. And before selling the same or any part thereof, an option is hereby given each present stock holder of this company to subscribe for the same, pro rata with his present holding, which option shall expire on the 1st day of November, 1898; and if any stock holder fail to avail himself of this option, the other stock holders may do so, till the entire issue be taken.- If any of such stock be not subscribed for by the present stock hold- ers, under the terms of this option, on or before the 1st day of November, 1898, the same shall be offered to the public by the Board of Directors." The option to existing stock holders, is, like the, other terms of the preference given, purely a suggestion, and is intended as an illustration. 76 WEST VIRGINIA CORPORATIONS. The notice to be published should contain the resolution in full. It is not indispensable, but it is safe practice to give at least the substance of the intended resolution; and where it is set out in full, there can be no controversy. Such a notice would be to the following form or effect: "Notice is hereby given that at a general meeting of the stock holders of the New York Furniture ('ompany, a cor- poration created under the laws of the state of Wesl Vir- ginia, to be held at the office of the company in the city and state of New York, the following resolution will be offered and its adoption moved:" (Here insert the resolution.) Or, if it is desired to give the substance of the resolution only, leave out all after "State of New York" and say a resolution will be offered to." (Here insert the substance of the resolution.) The notice should be signed by the stock holder or stock holders proposing the resolution. It should be published in a newspaper published in the county of the principal office or place of business of the corporation. It is probably most usual to have in contemplation the is- suing of preferred stock at the time the corporation is form- ed and the whole stock, except the incorporators' shai'es necessary for incorporation, divided into common and pre ferred. When such is the plan of organization, a by-law is passed at the first meeting of the stock holders so dividing the stock and fixing the terms and conditions of preference. But the four weeks notice of the intention to offer such by law or resolution must be published. The time of the first meeting must, in such cases, be so ex- tended as to allow the four weeks publication. It is doubt- ed whether this notice could be waived, even with unani- mous consent. The publication seems to be a condition pre cedent, and such conditions cannot be waived. 2 Thompson ly shall continue. Prosecution under this section shall be in the county in which the seat of government is. For every cer tiflcate issued under this section the Secretary of State shall be paid by the corporation a fee of five dollars. [Code, ch. 54, sec. 30.] The above section does not apply to foreign insurance, telegraph and express companies. These latter are govern- ed by chapter 84 of the code. The right of the state to prescribe conditions upon which a foreign corporation may do business in the state is not questioned. 6 Thomp. Corp., sec. 7875, 7876, 7877. WEST VIEGINIA CORPORATIONS. 79 The exception to this rn]e is that corporations engaged in interstate commerce are entitled to the same protection against restrictions and exactions as natural. ])ersons. (iloucester Ferry Co. vs. Pennsylvania, 114 U. S. 196. Constitution TT. S., Article 1, section S, clause 2, gives con- gress power "to regulate commerce with foreign nations, and among the several states, etc." It has been held that, under this provision, in matters of local concern, the several states have the power to enact regulations in those matters wherein congress has not acted. Cooley vs. Board of Wardens, 12 How., 299; Mobile vs. Kimball, 102 U. S., 691; Wabash R. R. Co. vs. Illinois, 118 U. S., 557; Henderson vs. New York, 92 U. S., 259; State vs. Goetze, 43 W. Va., 495; ^V. Xa., in re Minoi-, 69 Fed. Re]). 233. A corporation, created by and under the laws of a state, cannot do business in another state or country, except by the comity of such other state or country. Its legal ex- istence is in the state of its creation. 28 Ohio St. 521. 6 Thompson Corp., sec. 7884. Rece vs. N. N. & M. V. Co., 32 W. Va., 164. \A'est Virginia has expressed this comity by enacting the above statute. The various steps required of a foreign corporation as a perrequisite to doing business in West Virginia are as fol- lows: 1st. The filing in the office of the Secretary of State of a copy of its articles of association. "Articles of association," means the agreement or articles under -which or by virtue of which it was incorporated. A distinction is to be noted between ''articles of association" and "charter." The lattei' is filed in the county clerk's office. A certified copy is pre- ferred, but is not required. If the first step in the incor poration in the foreign state is not an agreement, this initial paper, whatever it may be, and the charted, are filed. 2nd. It must file a copy of the law under which it was in- corporated. If chartered under a special law or by a special enactment, a copy of such law is filed. If chartered under the general laws of the foreign state, file a copy of the gen- eral corporation laws. 80 WEST VIRGINIA CORPORATIONS. 3rd. A copy of its charter must be filed in the clerk's office of some county in which its business is conducted. (Copies of the general corporation laws of nearly, if not all, the states of the Union have been filed in the office of the Secretary of State of West Virginia. If the corporation was incorporated under the general laws of any state, whose laws are already filed in that office, the filing of the sanie thing, without limit, is needless; and the rule does not require it.) Thereupon, the Secretary of State issues a certificate that the foregoing requirements have been complied with, which certificate must be filed and recorded, in some county in West Virginia, wherein the corporation's business is con- ducted. The fee for issuing the certificate by the Secretary of State is |5. The corporation is also required to pay an an- nual license tax of $50,( supposing, of course, that its prin- cipal office or chief works are located outside of the state,) because it is subject to the regulations, etc., of chapter 20, of the A cts of 1885, which are embraced in the code as chap- ter 32, sections 86 to 92 inclusive, (ante, pages 14 and ].").) It will be also noted that when the foreign corporation complies with the statute, it "shall have the same rights, powers and privileges, and be subject to the same regula- tions, restrictions and liabilities that are conferred and im- posed by" chapters 52, 53 and 54 of the code. The status of a foreign corporation which has so complied cannot, in all cases, be here defined. It has been held that the sweeping provisions of this section as to a railroad corporation, even where the latter has filed the statement agreeing thereto, do not make it a domestic corporation. 32 W. Va., 164. It would seem from the first syllabus of this case and from all the better authority that the internal management of the coi'poration is not and cannot be changed so as to con- form to the laws of this state. But it is certainly compet- ent for the Legislature to require foreign corporations to submit to those I'egulations which are necessary to the pro- lection of the state and the citizens thereof, and which ap- ply to its own corporations, such as the limitation of the quantity of land it may hold, the appointment of a resident WEST VIRGINIA CORPORATIONS. 81 agent or attorney upon whom process can be served in suits against the foreign corporation, etc. 6 Thomp. Corp., sec. 7.888 and cases cited: 99 Mass., 148; 81 Maine, 477. Section 24 of chaptei- 54, of tlie code requiring corpora- tions of ^Yest ^''irginia to appoint an agent or attorney -in West Virginia to accept process for it and upon whom pro- cess can be served, applies to foreign corporations doing business in the state. The proceeding for appointing such agent or attorney is given on page 48 et seq., and will not be repeated here. The form for the power of attorney on page 49, will apply, except that instead of the words "under the laws of the state of West Virginia and in conformity there- with," in line 2, say "under the laws of the state of (Here in- sei-t state of incorporation) and in conformity with the laws of the state of West Virginia." For the law relating to the liability of a foreign corpora- tion to be sued in West Virginia, see Humphreys vs. N. N. & M. V. Co., 33 W. Va., 135. As TO the right of such a corporation to sue in this state, without complying with its laws, see Toledo T. &. L. Co. vs. Thomas, 33 W. Va., 566. The provisions of this statute as to foreign railroad ccrporations, in so far as an attempt is made to make them domestic corporations, have been held to be void. 33 W. Va., 135, (supra.) CHAPTER XIV. DISSOLT^TION, FORFEITURE AND EXPIRATION. By dissolution is meant the ending of corporate existence. Forfeituie was, in England, one of the ways by which a cor- poration was dissolved. Angell & Ames on Corporations, (5th Ed.) section 766. In other words, a corporation was dis- 82 WEST VIRGINIA CORPORATIONS. solved in several ways, and one was by forfeiture of its charter. So it is under the ^^'est Virginia statute. The penalty of forfeiture imposed upon a corporation for nonuse or misuse of its franchise, docs not divest it of its corporate existence, or effect it as a corporation, unless and until the state elects to enforce the penalty. Until the pen- alty is enforced by the judgment of a court of competent jurisdiction, in a dii-ect pi-oceeding ousting the corporation of its franchises, the forfeiture cannot be taKen advantage of against the corporation in any collateial or indirect pro- ceeding. Moore vs. Schoppert, 22 ^V. Va., 2S3; (heenbrier Lumber Co. vs. ^^'ard, 30 "\V. Va., 43; 2 Kent's Commen- taries, 312; 2 Morawetz Corp., section 1015. Thus it may be said that statutes prescribing t])e forfeil ure of corporate existence for the omission or commission of some act, may be likened to statutes fixing the penalty of death for the commission of certain crimes. The person guilty of such crime under the stat'' • fmiA C0RP0RATI0:^JS. solved" if the number of stock holders remain below five for six months continuously. (d) Section 24 (chapter 54) im])oses "foi'fv-iture" for fail- ure to appoint an agent or attorney in West Virginia. (e) Section 88 (chapter 32) fixes the penaltj' of "forfeiture" for failure to pay the license tax. There seems to be no difference in legal effect in the terms used in these sections. If the certificate of incorporation has "no effect," oi' the corporate rights and privileges "cease" or become "forfeited" the corporation is "dissolved" io all intents and purposes. The acts of omission named are, however, causes of dissolution only, the actual dissolution taking place only upon the judgment of a court of compet- ent jurisdiction. The legal effect of any act or omission can scarcely arise without being complicated with matters of estoppel. For instance, if the number of stock holders should be reduced below five and so remain six months, the state could proceed to judgment of ouster in a proper pro- ceding for that cause. It is, mor; .,,i-, a i.'rious question whether or not it does not become the duty of the board of directors to proceed, as i>rovided in section .5!), chapter '^'.'>. when the number of stock holders remain below five for six months. But suppose that after the number has continued so reduced for six months, the number is tnen I'esTored to five or more and the corporation jji-oceeds with its business. The stockholders cannot afterwards be heard to urge the defect because they cannot take advantage of their own de- fault; one who has contracted with the corporation as such can not interpose , as a defense, the omission. (2S W. \'a., 16.1 Therefore, only the state, in a direct i)roceeding, can take advantage of the violation of the statute, where disso- lution, in effect, is named ;;s the ])enalty for an act or omis- sion. 30 W. Va., 566; 2S W. Va., Ki. In construing the forfeiture for failing to pay the license tax, prescribed in section 8S. su])ra, in Ivumb.-i- Company vs. Ward 30, W. Va., the court holds, that to require the judg ment of a court before the forfeitui'C can be eiTective is the "universally recognized law." ^A'hether the penalty is jirescribed by the terms "shall forfeit," or any other lernis, will be construed in the same way. Thus for default by a corporation the law jirovided WEST VIRGINIA CORPORATIONS. 85 "it shall be dissolved." This was held to mean dissolved in the usual manner by judicial proceedings and judgment of ouster. 2nd Morawetz, section 100(5. The courts, for many apparent reasons, lean to this con- struction ; still, "the legislature may, by apt words evincing clearly such intent, provide either in the charter or by gen- eral statute, that the franchises granted a corporation may expire upon the happening of some prescribed event or con- tingency." '2nd Morawetz, section 1006; Clark on Corpora- tions, section S2, page 238. There is no self-acting statute in West Virginia except the one ])roviding that the (-orporatiou shall expire at the (inie named in the charter, unless section 6 chapter 53, pro- viding that the certificate shall have no effect unless the cor- poration organizes aud commences its proper corporate bus- iness within one year, be such. There isgoodauthorityfor the contention that, under such a statute, corporate existence does not begin till organiza- tion and the- beginning of business; and if one year elapse without such organization, the corporation has no existence. 5 Thompson Corp., sec. 6582-6587. But section 10, chapter 54, fixes the date of the certificate of incorporation, as the time when corporate existence be- gins, (ante, page 22.) In construing these statutes, it must be determined whether corporate existence begins at the date of the certi- ficate or at the date of organization. Assuredly, it begins but once. As the statute in terms fixes the date of the cer- tificate as the time of the beginning of corporate life, it would seem that the failure to organize within one year is only a cause of forfeituie and not, ipso facto, a dissolution of the corporation. It must be borne in mind that the Supreme Court of- Ap- peals of \Vest Virginia has not passed upon all of the above provisions, and it may be premature to suppose that tht^ doctrine announced in Lumber Company vs. Ward, will ap- ply to all the provisions of our statute providing that cor- porate existence shall cease or determine upon the doing, or failing to do, certain acts! The following authorities will show that" the question has been sharply contested, and that there is a conflict among the courts as to when and how a 86 WEST VIRGINIA CORPORATIONS. forfeiture can take place, and who can take advantage of it. 5 Thompson for])., sec. 0598 to 0605; 2 Morawetz Clorp., sec. 1006. This conflict, as will be seen later on. has been, apparent- ly, settled in West Virginia, as to all statutes prescribing forfeiture or dissolution as a penalty for an act or omission. Therefore, to summaiize, a corporation may be dissolved: 1st. By exj)iration of the time limited in its charter.* L'ud. V>y resolution of a majority of its stock holders. .3rd. Hy a judgment of ouster of a court of competent jur- isdiction in a direct proceeding for that purpose. 4th. By a decree of a court of equity in a case within ils jurisdiction. The result in any of the cases mentioned is the same, to- wit, the legal death of the corporation. Considering these in the order named : 1st. By expiration of the time limited in the charter. In West Mrginia every ordinary business corporation is limited to not exceeding fifty years. The time it is to exist, or the date or its termination, is stated in the charter. The limit of its corporate existence is thus fixed at the time corporate life begins. Therefore, when the time fixed in the charter for the termination of the corporation arrives, the conseq'.iences are the same as if the corporation had been dissolved in any other mode. Angell & Ames on Corp., 5tli Ed., sec. 778 a; 5 Tliomp. Corp., sec. 6578; '2 Morawetz., Corp., sec. 1005. The statute recognizes this principle and prescribes the rights of creditors and the duties and liabilities of stock- holders and directors, when a corporation thus expires. [Sec. 58 and 59, eh. 53.] 2nd. By resolution of the stock holders. The stntute is as follows: VOLUNTARY DISSOLTTTION. The slock holders may at any time in general meeting re- solve to discontinue the business of the coi-poration, the nia- joi'ity of the capital stock being I'cpi'esented and voted in favor of sucli discontinuance; and may divide the i)i-oi)erty •See iinge 11, bUnk 4. WEST VIRGINIA CORPORATIONS. 87 and assets that may remain after paying all debts and liabil- ities of the corporation. Public notice of such resolution shall be immediately giveu by advertisement in some news- paper of general circulation, published near the principal office or place of business of the cori>oration, once a week for six weeks at least, before any dividend of the capital shall be made; and the said resolution shall be forthwith certified by the president under his hand and common seal of the corporation to the Secretary of State, who shall pre- serve the same in his ofdce and deliver a copy to the clerk of the House of Delegates, to be printed and bound with the acts of the Legislature. As soon as practicable, after such resolution is passed, the stock holders shall cause ample funds and assets to be set apart, either in the hands of the trustees or otherwise, to secure the payment of all debts and liabilities of the corporation; and any creditor who sup- poses hisclaimnotto be sufficiently secured thereby, whether such claim be then due or thereafter to become due, may on bill in chancery, if sufficient cause therefor be shown, ob- tain an injunction to prevent the distributiou of the capital and a decree against any stock holder for the amount of the capital received by him; and if necessary or proper in the case, the court may appoint a receiver to take charge of and administer the property and assets of the corporation. [Code, ch. 53, sec. 56.] The stock holders at a general meeting must adopt a reso- lution to discontinue business as a corporation, adjust its liabilities, divide the assets and dissolve the corporation. A majority of the entire capital stock must vote in favor of such resolution to adopt it. Notice of the passage of such resolution must immediate- ly be given, by publishing a copy thereof in a newspaper of general circulation near the principal office or place of bus- iness "once a week for at least six weeks" before any divi- dend on the capital stock can be paid to any stock holder. The resolution must also be certified by the president of the corporation, under the signature and seal of the corpora- tion, to the Secretary of State. The form for this certificate will be the same as that given in case of changing the name. (See chapter XI.) The fol. lowing forms will be sufficient for the resolution and notice: FORM OF RESOLUTION. "Resolved : That this corporation, (here insert name) dis- 88 WEST VIRGINIA COKPORATIONS. continue business as a corporation and surrender to the state of \\'est Virginia its charter and corporate franchises, and after paying all of its debts and liabilities, divide its pr()])eity and assets remaining among its stock holders.* And to this end the board of directors will proceed as speed- ily as possible to convert all the property, choses in action, and assets of this corporation into money, and to pay off and discharge all of the debts and liabilities according to their priorities; and after fully discharging all such debts and liabilities, to divide and pay over all such assets remaining to the several stock holders of this company pro rata with their several holdings of stock.* But no payment shall be so made to any stock holder until after publication of the notice of this resolution as hei'ein provided. Resolved, further, that the president cause a notice of the adoption of this resolution to be published in some news- paper near (this being the' place of business of this corporation) once a week for at least six weeks, and that he forthwith certify under his signature and the seal of this corporation a copy of this resolution 1o the Secretary of State of West Virginia." Should it be desired to place property in the hands of a trustee to ]ni\ the debts etc., the part of the above lorm be- tween the stars can be changed so as to meet this or any other special provision, as to setting aside special property, that may be desired. FORM OF NOTICE. "TO WHOM IT .MAY CONCERN: Notice is hei'eby given that at a general meeting of the stock holders of held at on the day of , a resolution was adopted by a ma- joiity in inteiest of the entire stock of said company as fol- lows: (Insert resolution.) (iiveii under mv hand this dav of . President." I'pon the adoption of the resolution the corporation is dis- solved, and its power further to act in any capacity, except so far as may be necessai'y to use the coi'porate name in settling up the affairs, as hei'etofore set out, has terminated. WEST VIRGINIA CORPORATIONS. 89 Its entire assets, including tlierein any unpaid subscriptions of any of the stoclv liolders, are subject to tlie payment of its corporate debts. Tlie creditors can compel, on well known grounds of equity jurisdiction, as well as under tlic statute, (ch. 53, sec. 5S) the collection of any such unpaid subscriptions or uncollected assets, and the appropria- tion thereof to the debts. 2 Morawetz, Corp., sec. 869-870. And while in collecting and administering the assets of a corporation, when so dissolved, the directors are authorized by law to act, yet it must be borne in mind that their rela- tion to the assets is one of a trust character, and the law ex- acts the utmost good faith and diligence from them in their dealings as such. Any neglect or want of good faith in the officers or trustees in managing the property of a dissolved corporation, will be treated as sufficient cause for the ap- pointment of a receiver therefor, as provided in section 5S. Rathbone vs. (ias Co., 31 W. Va., 798; Kanawha Coal Co., vs. B. & W. Coal Co., 43 W. Va., 721. 3rd. By judgment of ouster. At common law the proceedings to oust a corporation of its franchises were either by writ of quo warranto or scire facias. 2 Morawetz Corp., sec. 1030. Any inquiry as to when either of these writs should be used at common law would be for no useful purpose here. The proceeding is now prescribed by statute and is either by writ; of quo warranto, or information in the nature of a writ of quo warTanto. (Chapter 109, code, from section G to 13 inclusive is as fol- lows: QUO WARRANTO. 6. A writ of quo warranto may be awarded and prosecut- ed in the name of the state of \\'est Virginia, at the instance of the attorney general, or prosecuting attorney of any county in any of the following' cases, viz : 1st. Against a corporation for a misuse or non-use of its corporate privileges and franchises, or for the exercise of a privilege or franchise not conferred upon it by law, or where a certificate of incorporation has been obtained by it for a fraudulent purpose, or for a purpose not authorized by law. 90 WEST VIRGINIA CORPORATIONS. 2iid. Agiiinst a person for the iiiisiisc or non-use of a privilege and francliisc conferred upon him by or in imrsuanee of hiw. '.)vd. Against any person oi' persons acting as a coi,-- ])oiation, witliout authority of law, and 4th. Against any jierson who shall intrude into or usurp any public oflice. Hut no such writ shall be awarded or prosecuted against any person now in oflHce for any cause which would ha\e been available in support of a proceeding to contest the election of such person to such office. APPLICATION FOR WRIT— WHFJX AND HOW MADE. 7. Whenever the attorney general or prosecuting attoj-- ney of any county is satisfied that a cause exists therefor he may, at his own instance, or at the relation of any person interested, ajjply by petition to the circuit court of the coun- ty wherein the seat of government is, or of the county where- in the cause foi' the issuing of such writ arose, to have such writ issued, and shall state therein the reason therefor. ^^'henever such writ is issued at the relation of any person, the petition shall be to the circuit court of the county where- in the seat of government is, or of the county wherein the cause or any part thereof, for the issuing such writ arose, a^ the relators may elect. ^\'HEN AND HOW WRIT TO ISSUE— SECURITY FOR COSTS, ETC. 8. If, in the opinion of the court, the reasons so stated in the petition are sufficient in law, it shall award the said writ and the same shall be signed by the judge of such court and attested by the clerk thereof. But if such writ be awarded at the lelatioii of any person, it shall not be issued until the relator shall give bond with good security, to be apijroved by the court, in such penalty as the court shall prescribe, with condition that the relator will pay all such costs and expenses as may be inc'urred by the state in the prosecution of such writ in case the same shall not be re- covei'ed from and ]taid by the defendant therein. INFORMATION IN THE NATURE OF A WRIT OF QUO >\'ARRANTO. 9. In any case in which a writ of quo warranto would lie, (he attoiiicy general or prosecuting attorney of any county, at his own instance, or at the relation of any person inter- WEST VIRGINIA CORPORATIONS. 91 ested, or any person interested may, in the name of the state of West Virginia, apply to any such court as is men- tioned in the seventh section of this chapter, for leave to file an information in the nature of a writ of quo warranto for any of the causes and against any of the corporations, officer, or pei'sons mentioned in the sixth dection of this chapter, and he shall, at the time of his application, present to the court the information he proposes to file. If, in the opinion of such court, the matters stated' in such informa- tion are sufiicieut in law to authorize the same to be filed, an order shall be made filing the same and awarding a sum- mons against the defendant named therein to answer such information. But if the leave to file such information be asked on the relation of any person, or by any person at his own instance, the summons thereon shall not be issued by the clerk until such relator or person shall give the bond and security required by the next precedinf section. A copy of every such information, if not made out and filed therewith, shall be made out by the clerk, and such copy shall be delivered to the ofQcer to whom the summons is de- livered to be served, and shall be served on the defendant or one of the defendants named in the summons. SERVICE OF WRIT OR SUMMONS; HOW AND ON WHOM MADE. 10. Every such writ or summons shall be served as pro- vided in chapter one hundred and twenty-one of this code, and if it be against a corporation it shall be served on some of the persons mentioned in section seven and eight of chap- ter one hundred and twentj'-four of this code; and if service thereof cannot otherwise be made upon any defendant named in such writ or summons, it may be made by publi- cation as prescribed in said last named chapter. PROCEEDINGS ON WRIT OR INFORMATION AFTER SERVICE THEREOF. 11. If the defendant named in such writ or information, fail to appear after the service thereof as aforesaid, the court may hear proof of the allegations of the petition or in- formation", and if such allegations be sustained, the court shall give judgment accordingly. But if the service be made by publication, the defendant against whom such judgment is rendered, upon giving bond and security as pro- vided in section eight of this chapter, may have tlie judg- ment against him set aside, and make such defense as he or it may have thereto. If the defendant appear before the 92 WEST VIRGINIA CORPORATIONS. end of the term next after the service of summons, or there- after before judgment is rendered against him, he may de- mur or plead not' guilty, or both, to such wi-it, or demur or answer in writing, or both, to such information, and e\ery allegation contained in such information which is not de- nied by such answer shall be (aken as true, and no proof thereof shall be required. TRIAL, VERDICT AND JUDGMENT. 12. If upon the trial of such \\rit or information the de- fendant be found guilty, or not guilty, of any of the charges therein, the verdict shall be "guilty," or "not guilty," as the case may be; but if he be found guilty as to a part of such charges only, the verdict shall be guilty as to such charges, and shall particularly specify the same, and as to the resi- due of such charges the verdict shall be "not guilty." A«-ainst a defendant so found guilty, the court shall give such judgment as is appropriate and authorized by law, and for the costs incurred in the prosecution of such writ or in- formation, including an attorney's fee of not less than ten nor more than fifty dollars, to be fixed by the court. APPOINTMENT OF RECEIVER OF 1»R0PERTY OF CORPORATION— AVHEN. IS. If by the judgment of the court rendered as aforesaid, a corpoi-ation, or pretended corporation, be dissolved, the court may appoint a receiver of the property of such corpoi'- ation or pretended corporation, as ]jrovided in section twenty-eight of chapter one hundred and thirty-three of this code, and may make all such othei- orders in relation thereto as may be n-cessary for the preservation and safe- keeping of such property. Only the lawyer, it is more than probable, will ever have to consult or apply this statute, and with the suggestion thill this information in the nature of a M'rit of quo war- ranto is one requiring no special forms, and is generally, if not universally, used in this state, it is believed that, guid- ed by 1he statute, he can have no difficulty in applying its provisions. The decisions in AA'est Virginia leave no room to doubt that only by such a diiect proceeding can a forfeiture of corporate franchises, as a penalty for an act or omission, be WEST VIRGINIA CORPORATIONS. 93 acroniplished. R. R. vs. Supervisors, 3 W. Va., 319; Ward vs. Lumber Co., 30 ^^^ Va., 43; Moore vs. Schoppert, 22 W. Va., 282; Angell & Ames on Corp., 5th Ed., section 777. 4tli. Dissolution by a decree of a court of equity. Courts of equity have no inherent jurisdiction to decree a dissolution of a corporation or to enforce a forfeiture of its charter. No forfeitures were enforced by this court and no jurisdiction taken when the law afforded an adequate remedy. Undei- the general principles of equity, it took jurisdiction of corporations and enforced equities and rights against them upon the same terms as it did against indi- viduals. 2 Kent, 394; 2 Morawetz, sec. 1040-2; Clark on Cor- porations, 247. Therefore any jurisdiction a court of equity may have to decree a dissolution of a corporation, must be conferred by statute; and can be exercised only upon the conditions pro- vided in the statute. 2 Morawetz Corx)., sec. 1040; Hurst vs. Coe, 30, W. Va., 158; Weigand vs. Alliance Supply Co.. 44 W. Va., (in print); Hoback vs. Miller, 44 W. Va. This jurisdiction of courts of equity as to corporations, so far as provided in the statute, is by sections 57 and 58 of chaifter 53, code, as follows: PROCEEDINCS IN EQUITY TO DISOLVE A COR PORATION. If not less than one-third in interest of the stock holders of a corporation desire to wind up its affairs, they may apply by bill in chancery to the circuit court of the county in which the principal office or place of business of such cor- poration is situated, or if there be no such office or place of business in this state, to the circuit court of the county in which the other stock holders or any one or more of them reside, or ai'e found, or in which the property of such cor- poration or any part of it may bt?, setting forth in the bill the grounds of their application; and the court may there- upon proceed according to the principles and usages of equity to hear the matter, and if sufficient cause therefor be shown, to decree a dissolution of the corporation, and make such orders and decrees, and award such injunctions in the cause as justice and equity may require. [Code, ch. 53, see. 57.] 94 WEST VIRGINIA CORPORATIONS. RECEIVER. ^\'llen a corporation expires, or is dissolved, or before its (■xi)iration or dissolution, upon sufficient cause being shown therefor, such court as is mentioned in the preceding sec- tion may, on application of a creditor or stock holder, ap- ])oint one or more persons to be receivers to take charge of and administer its assets; and whether such I'eceivei- be ajj- pointed or not, may make such orders and decrees, and award such injunctions in the cause, as justice and equity may require. This section shall a])])ly to corporations here- tofore or hereafter chartered by another state, which nia\ have .done business and acquired property, or contracted debts, in this state, and any of whose creditors, or stock holders, or their personal representatives, reside herein; and the circuit court of any county wherein such creditor, stock holder, or personal representative, may reside, or where such assets or ])]'operty or part thereof may be, or where the person owing such debts, or having such property in possession, may reside, shall afford such relief iis is pre- scribed in this and the next section. [Code, ch. 53, sec. 58.] In so far as section 57, supra, empowers a coui't of equity "to wind up the affairs" of a corporation, it is merely de- claratory of a well recognized jurisdiction of this court, and is to be exercised, as stated in the statute, "according to the principles and usages of equity.'' Equity treats the offlceis, directors and stock holders, con- trolling the |)ro])ei'ty of a corporation, as trustees thei-eof for the benefit of its ci'editors and other stock holders, and apj)lies to them the familiar doctrines and princiiiles gov- erning trusts. In this way it takes jui'isdiction of the prop- erty of a coT-poration at the suit of either a creditor or stock holder, when uecessai-y to protect his rights when the law affords no remedy, and in exercising this jurisdiction, in a proper case, it applies the corporafioii's assets to the pay- ment of its liabilities and thus administers on the corpora- lion's properly or "winds up its affairs." Sec also ch. IXi, sec. 27 allows "not less than one-third in interest" of the stock holders to apply by bill in equity to wind up its affairs and dissolve it. In the latter case, however, "sufficient cause therefor" must be shown. A majority of the stock may wind up the corporation without cause by a resolu- tion at a stock holder's meeting; a minority of not less than 96 WEST VIRGINIA CORPORATIONS. one-third in iiilerest, may do so l)y suit in equity for "suffl- i'hoppert, 2- W. Va.. 291. Only for "sufficient cause" can the court, upon the appli of one-third in intej'est, or any greater number, decree a a dissolution, and it would not be "sufficient cause" that the one-third in interest did not ap])rove of the policy adopted by the majority of stock holders, for the corporation, pro- vided thei'e was no impropei' advantage taken of those op- fiosed to such policy. The majority's right to conduct the business of the corixiration and dii-ect its jiolicy. if fairly and honestly done, is liot att'ected by this section. The "sufficient cause" required by this section must be determin- ed from the cii'cuiustances of each case. The statute doc^ iiol pi'esrvibc or define it, but \('ry pro])erly leaves it to a couif of equity to determine in each case whether or not the showing is sufficient to justify a decree of dissolution. The court, in determining what is "sufficient cause," will WEST VIEGINIA OORPOKATIONS. 97 be governed by the principles and doctrines applied by it in other cases. Thus when a wrong or hardship would result by permitting a corporation to continue its existence, as when the objects for which a corporation was formed, can not be pursued from any cause, or where a majority per- sistently ignores and disregards the rights of the minority, and so conducts the corporation against the protest of the minority as to hazard the rights of the latter and subject them to unnecessary loss, a court of equity would, upon well recognized principles, regard this as "sufficient cause" to direct a dissolution. Hurst vs. Coe, 30 W. Va., 158; Weig- and vs. Alliance Supply Company; 44 W. Va., 133; Pyles vs. Furniture Co., 30 W. Va., 143. "Sufficient cause" is a very comprehensive term, and the cases cited in this chapter are believed to be the only ones in which it has been construed, as here used, by the West Virginia Supreme Court. A general discussion of that sub- ject would be out of place here. Another important consideration under the sections quot- ed, is the county in which the suit may be brought. It must be in the county (a) In which the principal office or place of business of the corporation is situated ; or if there be no such office or place of business in this state, (b) In which any one or more of the other stock holders reside, or are found; or (c) In which any property of the corporation may be. If there be in the state a principal office or place of busi- ness of the corporation, such suits must be brought in the county where it is situated;* and it is only in the event that there is no such principal office or place of business in the state, that such suits can be brought in a county where any other stockholder resides or may be found, or in which property of the corporation may be. It will be noted that the statute is that the suit must be brought in the county in which the other stock holders etc., reside etc., and jurisdiction cannot be based upon the resi- dence of the plaintiff only. The corporation is a necessary party to a suit brought under section 57 to dissolve the cor- •As to the meaning c£ the term "principal offlice," see chapter X. 98 WEST VIRGINIA CORPOEATIONS. poration and wind up its affairs, and all stock holders not plaintiffs should be made defendants in such suit. 30 W. Va., 158, (supra.) At common law, when a corporation was dissolved, all suits for or against it abated. It could neither collect nor pay a debt, and its property was escheated to the state; buc this is not now the law in this state. It has been changed by section 59, chapter 53 of the code, which is as follows: When a corporation shall expire or be dissolved, its prop- erty and assets bhall, under the order and direction of ilie board of directors then in olHce, or the receiver or receivers appointed for the purpo'se by such circuit court as is men- tioned in the flfty-seventh section of this chapter, be sub- ject to the payment of the liabilities of the corporation, and the expenses of winding up its affairs, and the surplus, f any, then remaining, to distribution among the stock hold- ers according to their respective interests. And suits may be brought, continued or defended, the property, real or personal, of the corporation be conveyed or transferred un- der the common seal or otherwise, and all lawful acts be done in the corporate name, in like manner and with like effect as before such dissolution or expiration; but so far only as shall be necessary or proper for collecting the debts and claims due to the cor]>oration, converting its property and assets into money, prosecuting and protecting its rights, enforcing its liabilities, and paying over and distributing its property and assets, or the proceeds thereof, to those en- titled thereto. The corporation's life is thus extended after dissolution so far as necessary to wind up its business, but for no othe: purpose. Ward vs. Lumber Co., 30 W. Va., 43. However, a corporation may. after dissolution, incur liability as a de facto corporation, and be sued thereon, though it has no existence de jure. Miller vs. Coal Co., 31 W. Va., 836-840; Manufacturing Co. vs. Bennett, 2S W. Va., 16. WEST VIRGINIA CORPORATION^. 99 CHAPTER XV. ACKNOWLEDGMENTS OF DEEDS, ETC., BY A COR PORATION. Deeds, contracts and other papers to be executed bj a corporation, where the laws of West Virginia apply to sue!' papers, must be executed in the name of the corporation by some one authorized so to do by the Board of Directors. In order to admit the deed of a corporation to record it must be acknowledged by the corporation in the form set forth in section 5, chapter 73 of the code, which is as follows: State of , County of , to-wit: I, , a of said rouuty of — , do certify that , personally appeared before me in my said , and being by me duly sworn (or affirmed) did depose and say that he is the president (or other officer or agent) of the corporation (or association), described in the writing above (or hereto annexed,) bearing date the day of , I'S — , authorized by said corporation (or association), to. exe- ciilp and acknowledge deeds and other writings of said cor- ])oration (or association), and that the seal affixed to said writin." is the corporate seal of -said corporation (or the seal of the said association as the case may be), and that said writing was signed and sealed by him in behalf of said cor- poration (or association) by its authority duly given, and the said acknowledged the said writing to jbe the act\ and deed of said corporation (or association.)" Or If the cor- poration has no corporate seal, fir the association has no seal, omit the words "seal aflSxed.to said writing ts the coi'- porate seal of said corporationj-tor seal of said association, as the case may be)," and say "said corporation (or associa- tion) has no seal." And in such case omit the -^^ord "seal- ed" after the words "signed and," and insert in lieu of it the word "executed." 100 WEST VIEGINIA OOEPOEATIONS. According to this form it is only necessary for the Board of Directors, (they having power so to do, or not being pro- liibited from doing so by the by-laws), to pass a resolution authorizing the paper to be executed in the name of the cor- poration, the corporate seal to be attached, and directing the president, or other oflScer or agent, to execute the paper for and on behalf of the corporation. It must then be exe- cuted by such officer so authorized in the form given in the statute. A deed of a corporation can be made only under its corporate seal. 8 W. Va., 36. Of course, the laws of West Virginia in regard to the executing of contracts and the acknowledgment of deeds of corporations, apply only to such deeds and contracts as are to be enforced in West Virginia, or embrace property in West Virginia. Where the land to be conveyed is in an- other state or territory the acknowledgment of the deed conveying the same must be executed according to the laws of such other state or territorv. CHAPTER XVI. SUITS AGAINST CORPORATIONS— SEKVICE OF PROCESS. The statutes on this subject are section (i, chapter 41, code; sections 32 to 39, chapter 50, code; sections C, 7, 8 and 9, chapter 124, code; section 61, chapter 53, code. The deductions from these statutes are so clearly given in "Hogg's Pleadings and Forms" that liberty is taken to quote freely from pages 3, 4, 6, 7 and 8 of that valuable work: "Section 4. The county in which a corpoi'ation must be served with the summons. WEST VIRGINIA CORPOEATIONS'. l^, 101 '■-*'/.- '■;-' "A corporation must be served in the county wliereitr its principal offlce is, or wherein its mayor, president or other t'hief oflficer resides, or if its principal office be not in this state, and its mayor, president or other chief officer do not reside in this state, then wherein it does business. [Code, ch. 123, sec. 1.] '•It is the constant practice in our courts to sue corpora- tions under this statute in the county where it does busi- ness; at least so far as railroad and insurance companies are concerned, or in the county wherein the cause of action arises. 37 W. Va., 272. "It would seem from the action of the supreme court in a case not reported, that when the defendant is a corporation other than a railroad, canal, turnpike, telegraph or insur- ance company, it must be sued in the county in which its l.iincipal offlce is or wherein its chief officer resides. We re- fer to the suit of Fry & Sons vs. The Campbell's Creek Coal Co., which was brought in the circuit court of Mason coun- ty, and the summons served on its chief officer resident in Kanawha county and where its principal office was; and the court held that on this service of the summons the ac- tion could not be maintained and dismissed the suit, and upon petition and the assignment of this action of the court as error the Supreme Court of Appeals refused to grant a writ of error. In this case, decided at the term, 1890, of the circuit court, the defendant did business in Mason as well as Kanawha county. "If the suit be against a railroad, canal, turnpike, tele- graph or insurance company, the action may be brought in any county in which the cause of action arose. This is the construction that must necessarily be placed on the law when section 2 of chapter 123 of the code and section 2 of chapter 124 thereof are read together; and as they both relate to the same object of the law, they should be so con- strued. 7 W. Va., 114. "These statutes and those of Virginia bearing upon the same branch of the law are almost identical; the former having been taken from the latter; and such is the construc- tion placed upon those of Virginia by a writer on the law of recognized learning and ability. Barton's Law Practice, (Old Ed.) page 10. "GENERAL RULES AS TO THE COUNTIES IN WHICH CORPORATIONS MUST BE SERVED WITH SUMMONS. . "Section 5. The rule as to the locus in quo of suits ag^iinst corporations may, from the authorities above referred to 102 WEST VIEGIISIA OORPOKATIONS. and examined, be thus stated: "(a) Against a railroad, caual, turnpike, telegraph or an insurance company in the county wherein the principal of- fice is, or in the county in which the president or other chief officer resides; or if its principal office be not in this state, or its chief officer does not reside therein, then wherein it does business; or in the county wherein the cause of action arose. In suits of the character just mentioned, the coun- ty wherein the action may be brought, under the legal re- strictions thus enumerated, is at the option of the plaintiff. The suit is nearly always brought in the county where the cause of action arises. "(b) Against all other corporations the action must be brought in tlie county where the principal office is or where in the chief officer resides, or if there be no principal office in this state, then in any county in which it does business. It will be observed that under the law as now laid down the plaintiff under class (a) of corporations, liiay always at his election, either bring his action in the county wherein the cause of action arose, or in the county in which the principal 'office is or where the chief officer resides. "But as to those under class (b) he must always sue in the county wherein the principal office is, or where the chief officer resides, if there be a principal office or chief officer in this stat^. THE MODE OF SERVING A SUMMONS UPON A COEPOEATION. "Section 8. The manner of serving a summons upon a cor- poration is prescribed by our statute, and is found in sec- tions 7 and 8 of chapter 124 of the code. "It will be perceived from an analysis of this statute that the summons must be served; first, on the mayor, president or other chief officer, or on any person appointed pur- suant to law to accept service of process for the corporation ; second, or in his absence from the county of . the officer to whom the summons is directed, if the defend- ant be a city, town or village, on two members of the coun- cil; and if not a city, town or village, on the secretary, cash- ier or treasurer; and third, if there be none such or he be absent, on a member of the board of trustees, directors or visitors; and fourth, if there be no other person within the state on whom there can be service of process as above specified, then service may be made on a director, agent (in- cluding in the case of a railroad a depot or station agent in the actual employment of the company) or other officer of the corporation against which the suit is brought. WEST VIEGINIA CORPORATIONS. 103 mons may be served on the attorney of the corporation which has accepted the provisions of chapter 64 of the code without reference to any service that may be made under section 7 of chapter 124 of the code; or if such corporation lias failed to appoint such attorney, provided such corpor- ation has been formed under chapter 54 of the code, the summons may be served by delivering a copy thereof by a proper officer or person to any one at or in charge of its principal office or place of business. "The code provides in the last clause of section 8 of chap- ter 124, that a corporation "formed under chapter 54 of the code, failing to appoint an attorney upon whom process can be served, may be proceeded against by order of publica- tion. This must be construed to mean in proceedings by attachment, for if it is meant that a personal judgment can thus be taken against such corporation the statute is for such a purpose invalid.* Drake on Attachments (6th Ed.) sec. 448 a. THE SERVICE OF PROCESS UPON RAILROAD, CA- NAL, TURNPIKE, TELEGRAPH AND INSUR- ANCE COMPANIES. "Section 9. As to railroad, canal, turnpike and telegraph companies, there can arise very little, if any embarras :ment relative to the service of process as their lines must neces- ,-arily pass through the state, or some portion of it, and if there be no president, chief officer, cashier, treasurer, secre- tary or member of the Board of Directors, the very neces- sity of managing and operating them would require the presence somewhere in the state of agents or other persons in their actual employment, and in the absence from the state of all these officers and there being no principal office or place of business therein, then the statute is clear and explicit that the summons may be served upon any one in the actual employment of these corporations. "But sometimes it is desirable to sue a foreign insurance company in this state whose officers, designated in section 7 of chapter 124 of the code, are non-residents, and whose principal office or place of business is beyond the state, and which has appointed no person to accept service of process. When this state of facts is presented, and the plaintiff does not wish to go out of this state to litigate over his loss, it has often become a grave question as to how such foreign insurance company may be properly served so as to give jurisdiction to our courts in order to render a valid personal judgment against the corporation; that is a judgment not •See.however, 6 Thotni-. Corp., sec. 7544. 104 WEST VIRGINIA CORPORATIONS. only binding in our forum, but valid as a personal judgment in the courts of other states. "It seems in cases of this character to be pretty well settled that a summons may be served upon a foreign in- surance company by delivering a copy to the local agent of the company whose business it is to obtain risks for it. 11 Biss., 452; 15 Fed. Rep., 97; 4 Hughes, 61; 27 Fed. Rep., 336. "But the local or soliciting agent cannot be served so as to make the service valid if there is an attorney in the state appointed by the company to accept service of process. And the service of a summons upon the agent of a foreign insurance company must be made within the boundaries of the state wherein the suit is brought. But a summons can not be properly served upon a foreign corporation by deliv- ering to one of its agents a copy of the summons, that may be passing through the state on private business; and this principle in regard to the service of a summons upon the agent of a foreign corporation, casually within the court's jurisdiction, applies to all kinds of corporations."* It may be added that service of process when had upon the president, cashier, treasurer, chief officer, director, "vis- itor," trustee, agent, mayor, member of council or person appointed under section 24 chapter 54 of the code, must be "in the county in which such person resides, and the re: turn must show this and state on whom and when the ser- vice was, otherwise the service shall not be valid." Frazier vs. K. & M. Ry. Co., 40, W. Va., 224; Railway Co. vs. Ryan, 31 W. Va., 366. ♦Hoggs' Flfadiiigs and Koi-ins, page 8, note 3. 68 Mo., 617; 82 Pa. St., 413. WEST VIRGINIA CORPORATIONS. 105 CHAPTER XVII. EXTENSION OF LIFE OF CORPORATION AFTER EX- PIRATION OF TIME FIXED BY CERTIFICATE OP INCORPORATION. No corporation formed under this chapter, except life in- surance companies and such as are formed exclusively for the purposes mentioned in the fourth, fifth, sixth, seventh, eighth and ninth clauses of the second section, shall con- tinue for more than fifty years from the date of its certi ficate of incorporation.* Any corporation, heretofore formed under the general laws of this state and now in ex- istence, may extend the time of its continuance beyond that limited in the agreement for its formation, for such addi- tional time, not exceeding fifty years, as it may desire, in the manner following: The stock holders of such corpora- tion may, at a general or special meeting, adopt a resolu- tion to extend the time of the continuance of such corpora- tion, for such time, not exceeding fifty years, as may be de- cided upon by said stock holders, a majority of the stock of such company being represented by the holders thereof, in person or by proxy, and voting for such resolution; but notice of the intention to ofi'er such resolution must have been given by advertisement, published once a week for four successive weeks, in some newspaper of general circu- lation printed in this state. When such resolutions shall have been adopted by any corporation, the president there- of shall, under his signature and the common seal of the company, certify the resolution to the Secretary of State, and the secretary, under his hand and the great seal of this state, shall issue to the company adopting such resolution a certificate reciting the resolution and declaring the pro- posed extension to be authorized by law, which certificate shall be received in all courts and places as evidence of the extension of the continuance of such corporation, and of the authority for the same. The provisions of sections sev- enteen, eighteen, nineteen and twenty of this chapter shall apply to such certificate. [Code, ch. 54, sec. 11.] That part of the above statute after the star was enacted March 18th, 1882, and went into effect, June 16, 1882. It 106 WEST VIRGINIA CORPORATIONS. therefore applies only to corporations "formed under the general laws," prior to June 16, 1882, and "in existence" at that time. Inasmuch as theproceeding is so simple that anj' one can easily follow its requirements; and inasmuch as it would apply to such a small number of corporations, if any, space is not given to any forms. CONSTITUTIONAL PROVISIONS. THE CONSTITUTION AND STATUTES OF THE STATE OF WEST VIRGINIA, CONCERNING COR- PORATIONS WITH BRIEF NOTES OF THE DE- CISIONS OF THE SUPREME COURT OF AP- PEALS OF WEST VIRGINIA THEREON. ARTICLE XL COEPOEATIONS. First. The Legislature shall provide for the organization of all corporations hereafter to be created, by general laws, uniform as to the class to which they relate; but no corpora- tion shall be created by special law: Provided, that noth- ing in this section contained, shall prevent the Legislature from x>roviding by special laws for the connection, by canal, of the waters of the Chesapeake with the Ohio river by line of the James river, Greenbrier, New river and Great Kanawha. Corporate rights anci privileges granted indirectly by the State through . instrumentalities providecl by general law for such purpose are the same in effect as if such rights and franchises had been conferred directly to the forporafion by the law-making power. Mason vs. -Bridge Co., IT W. Va., 496 Pa. I. R. vs. Bd of 13., 20 W. Va., 360; Hart vs. R. R. Co., 6 W. Va., 3.38, Chapters 52, 53, and 54 of code contain elaborate details in a comprehen- sive system of statute law on subject of corporations; and should be read and harmonized upon the principles of construction applicable to statutes in nari materia. Cross vs. Ry. Co., 37 W. Va., page 346 Second. The stock holders of all corporations and joint stock companies, except banks and banking institutions, created by laws of this state, shall be liable for the indebt- edness of such corporations to the amount of their stock subscribed and unpaid, and no more. Chap 54, sees. 47 and 78; Chap. 121, sec. 18, Code. 108 WEST VIRGINIA CORPORATIONS. Third. All existing charters or grants of special or exclu- sive privileges under which organization shall not have taken place, or which shall not have been in operation with- in two years from the time this constitution takes effect, shall thereafter have no validity or effect whatever: Pro- vided, that nothing herein shall jjrevent the execution of any bona fide contract heretofore lawfully made in rela- tion to any existing charter or grant in this State. Code, sees. 4 and 5, chaB. 53. This section does not qualify or suspend the 8th section o( Article 10 (con- stitution) concerning the creation of debt by county, city, school district or municipal corporation. 7 W. Va., 503, syl. 5. Privileges granted to corpora- tions to be construed strictly against corporation and in favor of the State. B. & O. R E. Co., vs. Supervisors, 3 W. Va., 320. P. I. II. vs. Bd. of E.. 20 W. Va., 360; R. R. Co. vs. Trans. Co. 25 W. Va., 324. Fourth. The Legislature shall provide by law that in all elections for directors or managers of incoi'porated com- panies, every stock holder shall have the right to vote, in person or by proxy, for the number of shares of stock owned by him, for as many persons as there are directors or man- agers to be elected, or to cumulate said shares, and give one candidate as many votes as the number of directors multi- plied 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 or man- agers shall not be elected in any other manner. Directors or managers cannot be elected in any other manner Code, ch. 53, sec. 44.. Cross vs. R. R. Co.. 35 W. Va., 174. Fifth. No law shall be passed by the Legislature, grant- ing the right to construct and operate a street railroad within any city, town or incorporated village, without re- q-uiring the consent of the local authorities having the con- trol of the street or highway, proposed to be occupied by such street railroad. Chan. 52, sec. 10, code. Moundsville vs. Ry Co., 37 W. Va., 93; Fox vs. B. & O. Ry. Co.. 34 W. Va., 466; State vs. By. Co., 38 W. Va., 247; Asbrutz vs. Ry. Co., 33 W. Va. 1; Spencer vs. Ry. Co , 23 W. Va., 400. BANKS. Sixth. The Legislature may provide, by a general bank- ing law, for the creation and organization of banks of issue or circulation, but the stock holders of any bank hereafter authorized by laws of this state, whether of issue, deposit or discount, shall be. personally liable to the creditors there- of," over and above the amount of stock held by them re- spectively to an amount equal to their respective shares so WEST VIRGINIA CORPOEATIONS. 109 held, for all its liabilities accruing while they are such stock holders. Chap. 54, sec. 78, code. Donnally vs. Herndon, 42 W. Va., 519; 25 W.Va., 184. EAILEOADS. Seventh. Every railroad corporation organized or doing business in this state shall annually, by their proper oflScers, make a report under oath, to th'e auditor of public accounts of this state, or some ofQcer to be designated by law, setting forth the condition of their affairs, the operations of the year, and such other matters relating to their respec- tive railroads as may be prescribed by law. The Legisla- ture shall pass laws enforcing by suitable penalties the pro- visions of this section. Code, ch. 29, sec. 7; Acts, 1875, ch 54 sec. 67; Acts, 1879, ch. 73, sec. fi7; Acts, 1881, ch. 12; Acts, 1882, ch. 161; Acts, 1883, ch. 52. Penalty for failure to make report. Ch, 54, sec. 54, code. Property of a corporation is taxed in its name, and not in the name of in- dividual stockholders. B. & O. Ry. Co. vs. Supervisors. 3 W. Va., 319; Hart vs R. E. Co., 6 W. Va., page 357. Tax exemptions are usually directions to officers and not contracts. 11 W. Va., 501; Bridge Co and Ey. Co., vs. Paull, 39 W. Va., 142; State vs. B. & O. Ey. Co., 41 W. Va., 83; Bridge Co.' vs. Co. Ct, 41 W. Va., 671. Eighth. The rolling stock and all other movable property belonging to any railroad company or corporation in this state shall be considered personal property and shall be liable to execution and sale in the same manner as the per- sonal property of individuals ; and the Legislature shall pass no law exempting any such property from execution and sale. Chap 54, sec. 51, code. 32 W. Va., 245. McKay vs. Ey. Co., on page 26. Mnth. Railroads heretofore constructed, or that may hereafter be constructed in this state, are hereby declared public highways and shall be free to all persons for the transporation of their persons and property thereon, under such regulations as shall be prescribed by law ; and the Leg- islature shall, from time to time, pass laws, applicable to all railroad corporations in the state, establishing reason- able maximum rates of charges for the transportation of passengers an9 freights, and providing for the correction of abuses, the prevention of unjust discriminations between through and local or way freight and passenger tariffs, and for the protection of the just rights of the public, and shall enforce such laws by adequate penalties. Code, ch. 54 sec 82 c , et sea. and sections 82 d, e, and f. Code ch. 54. sec. 71. 110 WEST VIRGINIA CORPORATIONS. McKay vs Ey. Co., 42 W. Va., 23; Hall vs. N. & W. Ey. Co., 44 W. Va . 36; Ey. Co. vs. Tran. Co., 25 W. Va., 324; W. Va. T. Co. ys. Swetzer, 25 W Va. 434 and 464 Hart ys E. E. Co., 6 W. Va., page 357. Tenth. The Legislature shall, in the law regulating rail- way companies, require railroads running through, or with- in a half-mile of a town or village, containing three hundred or more inhabitants, to establish stations for the accommo- dation of trade and travel of said tawn or village. Chap. 54, sec. 50, part 6, Code. Eleventh. No railroad corporation shall consolidate its stock, property or franchise with any other railroad owning- a parallel or competing line, or obtain the possession or con- trol of such parellel or competing line, by lease or other con- tract without the permission of the Legislature. Chap. $i, see. 53, code; chap. 32, Acts, 1893. Eicketts vs. Ey Co., 33 W. Va., 433; Eese vs. N. N. & M. V. Co., 32 W. Va. 165. Twelfth. The exercise of the power and the right of em- inent domain shall never be so construed or abridged as to prevent the taking, by the Legislature, of the property and franchises of incorporated companies already organized, and subjecting them to the public use, the same as of indi- viduals. SIcKay vs. Ry. Co., 42 W. Va , 23: Bridge Co. vs. Bridge Co., 34 W. V:^... I,^i5; B. & O. Co. vs. P. W. & K Ey. Co., 17 W. Va., 812; Ka. & V. Ey. Co, vs. Glen Joan Co., 30 S. E. 86. ARTICLE III. Ninth. Private property shall not be taken or damaged for public use, without just compensation ; nor shall the same be taken by any company, incorporated for the piirjioses of internal improvement, until just compensation shall have been paid, or secured to be paid, to the owner; and when private property shall be taken, or damaged, for public use, or for the use of such corporations, tlH> compeiisaiion to the owner shall be ascertained in such manner, as may be i)re- scribed by general law: Provided, that when re(]uired by either of the parties, such compensaiion sliall be ascertained by a,n impartial jury of twelve freeholders. Code Chap. 42. Chapter 52. sections 5, 7, and 8, code Pack vs. Ev. Co., 6 W. Va., 397; Ey. Co. vs. Ey Co., 17 W. Va.S12; Stewart vs. Ev. Co. 38 W. Va., «i:iS; Fox -vs Ey. Co., .S4 W. V.-i., 4116: Suenccr vs. Pt. P. & O. E. E. Co., 23 W. Va., 406; Ey. Co. vs Oil Co., ;i.^ W. Vn., 205; Trans. Co. vs. Pipe Line Co , 22 W. Va. 601; IMcKenzie vs. Ey. Co., 27 W. Va., 306; Hutchinson vs. City, 25 W. Va., 226; 17 W. Va., 306, supra; IVge Co. VB. Summers, 13 W Va., 476; Ey. Co., vs. Tyroe 7 W. Va., 693; Ey. Co. vs. WEST VIEGINIA CORPORATIONS. Ill Halstead, 7 W. Va., 301; Ey. Co., vs. Patton, 9 W. Va., 648; McKay vs. Ky. Co., 42 W. Va., 23 ARTICLE X. Sixth. The credit of the state shall not be granted to, or in aid of any county, city, township, corporation or person ; nor shall the state ever assume, or become responsible for the debts or liabilities of any county, city, township, cor- poration or person; nor shall the state ever hereafter be- come a joint OM'ner, or stock holder in any company or asso- ciation in this state or elsewhere, formed for any purpose whatever. ARTICLE. VI. Forty-seventh. No charter of incorporation shall be grant- ed to any church or religious denomination. Provision may be made by general laws for securing the ftle to church property, and for the sale and transfer thereof, so that it shall be held, used, or transferred for the purposes of such church, or religious denomination. Cliap. 54. sec. 3, code. Pack vs. Shanklin, 43 W. V., 304; Wilson vs. Perry, 29 W. Va., 169; Univer- sity vs. Tuelser 31 W Va., 621; Society vs. Pendleton, 7 W. Va., 79. See Powell vs. Dawson, Sec'y of State, on mandamus, to compel eranting of charter, pending iu Supreme Court and will likely be reported in 45 W. STATUTES CONCERNING CORPORA- TIONS. GENERAL POWERS OF CORPORATIONS. Every corporation, as suclj, shall have succession by its corporate name for the time limited in its charter or by law ; and if no time be limited, perpetually. It shall have a com- mon seal, and may renew or alter the same at pleasure. It may sue and be sued, plead and be impleaded, contract and be contracted with by simple contract or specialty; pur- chase, hold, use and grant estate, real and personal; appoint officers and agents; prescribe their powers, duties and liabil- ities; take bond and security from any of them, and fix aad pay their compensation; and make ordinances, by-laws and regulations for the government of its council, board, ofB cers and agents, and the management and regulation of its property and business. Code, ch. 52, sec. 1. Chap. 2, page 16, Ante; Cbap 54, sec. 10 Code, post. 1. No particular or precise form of words is necessary in the creation of a corporation. It may result from implication and intendment. Goshorn vs. Supervisors, 1 W. Va., page 325. 2. A corporation exists only in contemplation of law and can have no le- gal existence beyond the state by which it is created. If two corporations, be incorporated in different states by the same name, exercising the same powers for the same purpose and with the same incorporators, they are dis tlnct corporations. Reese vs N. N. & M. V. Co., 32 W. Va.,page 164; Queens- burv vs. People B. & L. Association, 44 W. Va., 512; R. R. Co. vs. R. R. Co., 17 W.Va. 869 and Henan, Admr. vs R. R. Co. 3 W. Va., 881. 3. Corporation should be designated by its corporate name. Krell vs. Kent, 39 W. Va., 294; 6 W. Va.. 338, 4. If corporation contracts under assumed name I'ither party may enforce it. Marmet Co. vs. Archbald .37 W. Va., 778. If a corporation sue in Its cor- porate name, not necessary to allege how incorporated, or that it is autliori- zed to sue. Hart vs. R. R. Co., 6 W. Va., .338. By its name a corporation Is known and distinguished from others. Bank vs. Distilling Co., 41 W. Vn., page 53r). 5. If a corporation continue in business in Its corporate name after expir- ation of its charter, it may be sued for tort committed by It after the i^x- plration of its charter. Miller vs. Coal Co.. 31 AV. Va.. 838. 6. Must defend suit against it in its corporate name. Park vs. Oil Co , 2.") W. Va., 108; Same vs. same, 26 W. Va. 486. 7. Variance in name of corporation not fatal if enough appears to show WEST VIRGINIA CORPORATIONS. 113 that the corporation suing or being sued, was the one intended. Misnomer cannot be pleaded in abatement. Bank vs. Hunt. Dist. Co., 41 W. Va., 530. 8. Obligations of corporation must be executed in its name, not in the name of the officer of company with his offlcial desination. Scott vs. TSa ker, 3 W. Va., 285; Minslier vs Hail, 2 W. Va., 495; Devendorf vs. Oil Co., 17 W. Va., 135. y. Stochliolders may defend suit against corporation by showing that cor- poration cannot defend, or its officers, etc., refuse to do so; but corporation should redress and defend injuries if possible through its agents and in ita name. Moore vs. Schoppert, 22 W. Va., 291; Crumlish vs. Ey. Co., 28 W. Va., 623; Hathbone vs. Gas Co., 30 W. Va., 798; Ballard & W. vs. Coal Co., 43 W. Va., 721; 25 W. Va., 108, ante. 10. Wlien minority stockholders may file bill for themselves and ntiipr stockholders for fraud, conspiracy and acts ultra vires against a cornora- tion, its officers, etc., and when corporation or stockholders can make defense of ultra vires considered. Boyce vs. Mantauk Co., 37 W. Va., 73; Smitli vs. Cornelius, 41 W. Va., 60. 11. A corporation may appear and plead in abatement by its president or attorney, or plead as provided in sec. 27, chap. 125, Code. In such plea strict- ness of common law as to form and substance reauired. Widell vs. Imp. Co., 38 W. Va., 30; Quarrier vs. Ins. Co., 10 W. Ya., 507. See Ballard vs. R. E. Co., 42 W. Va., 1, for form of plea in abatement approved. 12 Answer of corporation should be signed by the president, with nor porate seal affixed. It is not necessary it sliould be sworn to. If a sworn answer is desired, some member or agent of corporation cognizant of the facts should be made party and required to answer. Teter vs. Ev. Co., 35 W. Va.. 433; Quarrier vs Peabody, 10 W. Va., 507. 13. Corporation suing in true name, alleging it is a corporation, is not re- quired to prove its corporate existence unless same is denied by affidavit and plea as provided in sec. 41, chap. 125, Code. Lum. Co. vs. Ward, 30 W. Va., 48: Douglass vs. E. E. Co., 44 W. Va., 267. 14. Public corporations are subject to same regulations and limitations when authorized to sup etc., as natural persons. The statute of limitations I'uns against them. Asylum vs. Miller, 29 W. Va., 326. 15 The coi-porate property is owned by corporation and not by stockhol- ders, and the management of the corporation is in the liands of its officers. Their acts within the scope of its charter are binding. 22 W. Va., 291, supra; 25 W. Va., 36. 16. Ma.v contract debts with its individual corporators and pay or secure them as debts due strangers. Hope vs. Salt Co., 22 W. Va , 789. 17. Has full power to contract, either by simple contract or under seal. Ward vs. Lumber Co., 30 W. Va., sunra. One who has contracted with a corporation cannot afterwards raise the objection that at the time of such contract the corporation was not legally incornorated, if such corporation coiilcf constitutionally exist. Singer Co vs. Bennett. 30 W. Va.. 16. 18. Legislature in 1891 and 1893 amended sec. 2. chap. 74 of Code, so as to prevent all insolvent persons and corporations from preferring creditors, by assignment, judgment or otherwise. Coaldale Co. vs. Clark, 43 W. Va , 84: Weigand vs. Supply Co., 44 W. Va., 133. 19. A corporation must convey by corporate seal. A paper held good as a mortgage of nersonal property, though not sealed. Eoach vs. Oil Co., 8 W.Va.. 36. 20. A case in which incorporators held liable as partners. Bank vs. Smith & Co.. 26 W. Va., 541. 21. After agreement was signed and before charter issued a deed convey- ing land to such proposed corporation was executed and delivered to third party to be delivered to the corporation, which was delivered when charter hnd issued. Held that such deed operated to convey land to such corporation from the date of delivery Bank vs. Ijumber Co., 32 W. Va., 357. 22. The coporate seal is prima facie evidence tliat it was affixed by proper authority, when affixed to a paper having signature of proper officer, and this presumption is not overcome by failure to show a vote of rli rectors authorizing it. Fidelity Co. vs. Ev. Co., .32 W. Va., 244; Euffner vs. Coal Co., 36 W. Va.. 244: 37 W. Va . 73: 25 W. Va.. 288. 23. A corporation has not the rower by laws of its own enactment to disturb or divest rights which it has created or to impair the obligation of its con- tracts or to change its responsibility to its membors or to draw them into new and distinct relations, and all by-laws attempting to do this are inop- erative and void. Savage, adm'r. vs. B. L. & S. Asso., 45 W. Va., in print. 24. Corporation can by by-laws provide reasonable qualiflcations for direct- ors. Cross vs. Ey. Co., 37 W. Va., 342. 25. Persons dealing with a corporation must take notice of the law of its rvganization and are presumed to be informed of any restrictions annexed to the grant of power by the law under which it Is authorized to act. Hence lU AVEST VIRGINIA CORPORATIONS. nets ultra vires often may not bind corporation. Smitli vs. Crumlisli, 41 W. Va.. 00. 20. Mhen new corporation is formed by consolidating two corporations, thus forming sucli new corporation with different stocijholders from cither of such old corporations, the new corporation is not liable for the debts of either of sucli old corporations and cannot be sued therefor unless upon some special ground. Donnall.v vs. Herndon, 41 W. Va., 519. 27. Corporation cannot ratify contracts made in its name before it had ac- ciuired existence, but it may when it is created exercise its power to make con- ti.Mcts by accenting or adopting such contract. Hence, if promoters of a proposed company taking subscriptions for stock attach to such subscriptions an offer to sell a certain tract of land to the proposed corporation at a certain price and such a promoter subscribe for stock himself in such corporation, when the corporation was formed the promoter had the right to pay for his stock subscribed out of the purchase money due him for said land from the corporation. Richardson vs. Graham, 30 S. E. &9. 45 W. Va., in print. RESTRICTION ON CORPORATE POWERS. The powers mentioned in the preceding section or other wise granted to any coi-poration, shall be limited by the piiv ])Oses for which it is incorporated, and no corporation shall engage in transactions or business not proper for those pui"- poses; nor shall corporate powers be exercised in violalion of any law of the State. Code, ch. 52, sec. 2. Ante, cGapter 14, pages SO to 02; sec. 6, chap. 109 Code; Ante, chap. 2, p. 16, Corporation depends upon law creating it for its powers and mode of ex- ercising them, and unless observed, its acts not binding. Penn. S. U. Co. vs. Board etc., 20 W. \a,. 360 Grant of privileges to corporation to bo construed in favor of the nuhlic against coj'poration. B. & O. R. R Co. vs. Supervisors, 3 W Va., 320. Corporation may be indicted and fined for misdemeanor. State vs. B. & O. Ry. Co , 15 \\'. Va., 362. Corporation cannot lease or dispose of its franchise or property needed in performing its obligations to the State without Legislative consent. 41 W. Va., pase 72. The flirrerenee in legislative control over purely private coriiorations and quasi public corporations discussed. R. H. Co. vs. Trans. Co.. 25 W. Va., 324; 37 W Va., 73, supra. When acts of corporations are ultra vires, and liy whom such acts mav be avoided and redressed. Smith vs Cornelius, 41 W. Va., 60. CAN NOT PURCHASE REAL ESTATE TO RE SELL iT, OR BUY THE STOCKS AND BONDS OF OTHER CORPORATIONS. TTnless specially authorized, no corporation shall purchase real estate in order to sell the same for jiroflt, or hold mov real estate than is proper for the purposes for which it is incorporated; subscribe for or purchase the stock, bonds or securities of any joint stock company, or become surety or guarantor for the debt or default of' such eompanv. Code, ch. 52, sec. 3. See cEap. 1, pages 8 and 0, supra; chap. 53, sec. 3, Code; and chap. 54, sec. S2a. BUT CERTAIN CORPORATIONS MAY LAY OUT TOWNS AND TAKE REAL ESTATE, STOCKS AND BONDS IN PAYJiENT OF DEBT. Nevertheless, a mining, manufacturing, oil, salt or inter- WEST VIRGINIA CORPORATIONS. 115 nal improvement company may lay out a town not to include more than six hundred and forty acres, at or near thfir works, and sell lots therein; and any corporation may take real estate, stock, bonds and securities in payment, in whole or in part, of any debt bona fide owing to it, or as a security therefor, or may purchase the same if deemed necessary to secure or obtain payment of any such debt, in whole or ia part, and may manage, use and dispose of what has been so tnken or purchased as a natural uerson might do, and any corporation may compromise or purchase its own debt, and establish and manage a sinking fund for that purpose; and any manufacturing company may with the assent of the holders of two-thirds of its stock, had by a vote at a stock- holders' meeting, subscribe for or purchase the stock, bonds or securities of any corporation formed for the purpose of manufacturing or producing any articles or materials used in the business of such joint stock company, or dealing in any articles or material manufactured or produced by such joint stock company, or constructing a railroad, or other work of internal improvement, through or into the county in which the principal place of business of such joint stock company may be, or operating a railroad or other work of internal improvement so constructed, and may, with the like assent, become surety for or guarantee the debts of such corporation, or in any manner aid it in carrying on its busi- ness. Code, ch. 52, sec. i. See chap. 1, pages 8 and 9, supra; chap. 53 sec. 3; chap. 51, sec. 82a. WHEN CORPORATIONS MAY ENTER UPON LANDS, Any company incorporated for a work of internal im- provement may, by its officers, servants or agents, enter up- on' l'a'n,ds for the purpose of examining the same, and sur- veying and laying out such as may seem fit to any officer or agent authorized by it, provided no injury be done to the owner or possessor of the laud. But no company shall, un- der the authority of this section, throw open fences or enclos- ures on any land, or construct its work through the same, or in any way injure the property of the owner or possessor, without his consent, or until the same may have been legal ly appropriated to the use of the company, as is provided by the laws of the state of West Virginia relating to the condemnation and appropriation of private property for the use of companiesincorporatedforinternalimprovements. But no company under this act shall invade the dwelling house of any person, or any space within sixty feet thereof, with- out the co'nsent of the owner, unless it be absolutely neces- 116 WEST VIRGINIA CORPOEATIONS. sary for the construction of such road by reason of its pass- ing througli a narrow gorge, defile or narrow space: Provid- ed, That this act shall not apply to any city or incorporated town ; and provided further, That any company, which may have heretofore actually commenced the location of its road, may invade any space twenty feet from the dwelling house of any person, or invade a nearer space, or such house, when by the reason of the location of such road in or through a narrow gorge, defile or narrow space, or along or near to any stream, river or bluff, such invasion is necessary for the construction of such road. Code, ch. 52, sec. 5. See chap. 42, Code, for proceedings to condemn. The proTisions of this section relate principally to right of company for worli of internal improvement to enter upon the lands of another to survey, etc. Prevents invading within 20 feet of dwelling house, except as amended by chapter 30, acts 1883. Ry. Co vs. Pack et als., 6 W. Va., 39T; McConiha vs. Guthrie. 21 W. Va., 134 Any restriction of right of eminent domain by contract etc., is against pub- lic policy. Iron Co. vs Pipe Co., 22 W. Va., 601. What constitutes a worlr of internal improvement. W. Va. Tran. Co. vs. V. Oil Co., 5 W. Va , 382; Mason vs. Bridge Co., 17 W. Va., 29T. now MUCH LAND CORPOEATIONS MAY ACQUIRB]. The land acquired by any company incorporated for a work of internal improvement along its line generally, shall not exceed one hundred feet in width, except in deep cuts and fillings, and then only so much more shall be acquired as may be reasonably necessary therefor. The land which it may acquire for buildings or for an abutment along its? line generally shall not exceed three acres in any one parcel ; and the land which it may acquire for buildings or other pur poses of the company at the principal termini of its work, or at any place or places within five miles of such termini, shall not exceed fifteen acres in any one parcel; but in the case of a railroad company, an amount of land not exceeding forty acres in any one parcel may be acquired for its main depots, machine shops and other necessary purposes connected with the business of said company. Code, ch. 52, sec. (!. PROCEEDINGS OP A COMPANY TO TAKE LAND WITHOUT THE OWNER'S CONSENT. If the president and directors of a company, incorporated for a work of internal improvement, cannot agree on the terms of purchase with those entitled to lands wanted for the purpose of the company, five disinterested freeholders shall be appointed by the circuit court of the county in which such land or the greatei- part thereof shall lie, (three of whom may act) for the purpose of ascertaining a just com- WEST VmaiNlA CORPORATIONS. 11? pensation for such land. Lands owned by one internal im- provement company, but not necessary for the enjoyment of its franchise, may be taken for the purpose of another inter nal improvement company, in the same manner as land own- ed by others ; but where such lands are claimed to be neces- sary to the enjoyment of such franchise, the court appoint- ing such freeholders may, before proceeding further, deter- mine upon a report of such freeholders, or otherwise, wheth- er such necessity exists. Code, ch. 52, sec. 7. Sec. 12, art. XI, Const., page 110, supra; chap. 42, Code. What attempt to "agree" sufficient before proceeding to condemn. W. Va, Tran. Co. vs. V. Oil Co , 8 W. Va., 382. Unnecessary to allege a failure to agree in application. Bridge Co. vs. Comstock, 36 W Va., 263. Property belonging to one internal improvement (railroad) company and not in actual use necessary to the proper exercise of its franchise may be taken for the purposes ot.iinother internal improvement (railroad) company, but only so much as may be necessary for such purposes. When and how such right to appropriate is determined. E. E. Co vs. R. E. Co., 17 W. Va., 814; Bridge Co. vs. Bridge Co., 34 W. Va., 155 Title of rival companies to a right of way. Kanawha E. E. Co. vs. Ql«n Jean Co., 30 S. E. 86, 45 W. Va., in print. Kither party can require jury of freeholders. After verdict, cannot object that they were not freeholders. Patton vs. Ey. Co., 9 W. Va., 748. When and by whom right to condemn determined. Ey. Co. vs Ey. Co., 17 W. Va., 812; Ey. Co. vs. Pack, 6 W. Va., 208. Judgment of circuit court in proceeding final, unless reversed, but the or- der as to right to condemn and appointing commissioners, not final, so a writ of error can be taken. Bridge Co. vs. Iron Co. 41 W. Va., 747; 17 W. Va. 812, supra. Between rival railroad companies, priority of location gives priority of ti- tle, which is perfected by after-condemnation. The title acquired is from the State by right of eminent domain and when condemnation is complete super- cedes any title from the land owner. What is sufficient location discussed Ka. G. J. Co. vs. Glen Jean Co., 30 S. E., 86, 45 W. Va., in print. NOTICE OF APPLICATION FOE SUCH APPOINTMENT When it is intended to apply for such appointment, notice shall be given and commissioners appointed, and the pro- ceedings thereon shall be the like in all respects as are pre- scribed by chapter forty-two of this act. Code, ch. 52, sec. 8. Chap. 42, Code. 17 W. Va., 813 and 36 W. Va., 265. COMPANY TO PROVIDE WAGON WAYS. For every, person, through whose land the road or canal of a company passes, it shall provide wagon ways across the road or canal from one part of the said land to the other, and keep such ways in good repair. Code, ch. 52, sec. 9. See 14, chap. 42, Code; Clark vs. R. R. Co., 39 W. Va., 733; Watts vs. R. R Co., 39 W. Va., 203. 118 WEST VIRGINIA CORPORATIONS. COMPANY NOT TO OCCUPY STREETS IN A TOWN WITHOUT ITS ASSENT. No compaDy shall occupy, with its works, the streets of the inhabited part of any city, town or village, until the cor- porate authority thereof shall have assented to such occu- (lation, unless such assent be dispensed with by special pro- vision of law. Code, ch. 52, sec. 10. Sec, 48 and sub-section 6 of sec. 50, chap. 54, Code. . Municipal coi'Doratlon may allow streets to be taken by railroad. Gates vs. Town, U4 W. Va.. 784. License to build in street does not give authority to destroy. Must keep crossing in good repair. Moundsville vs. II. R. Co., 37 W. Va., 93; Fox vs B. & O. Ky. Co., 34 W. Va , 406. A nuisance to take street or road without authority. 37 W. Va. 102 If allowed by county court to take road on condition to restore same so as not to impair usefulness, may be indicted for failure to do so. State v.s. K. II Co., 87 W. Va., 108. HOW ONE WORK MAY BE CROSSED BY, ALTERED TO SUIT, OR CONNECTED WITH ANOTHER. If any railroad, turnpike or canal company deem it neces- sary in the construction of their work, or any branch or sid- ing thereof, to cross any other railroad, turnpike or canal, or any state or county road, at grade or otherwise, it may do so, provided its work be so constructed as not to impede the passage or transportation of persons or property along the same. If any such company desire that the course of any other railroad, turnpike, canal or state road, or any stream which is not a public highway, should be altered to avoid the necessity of any crossings, or of frequent crossings, or to fa- cilitate the crossing thereof, or the construction of a paral- lel work, the alteration may be made in such manner as ma\ be agreed between the company desiring such alteration and the other railroad, turnpike or canal company, or the board of public works in the case of a state road, or the owners of the land to be affected by the alteration of the course of such stream. In case the parties interested fail to agree upon such crossing or alteration as is desired, the company desir- ing it may bring its suit in equity and in such suit the court may, in a proper case, decree that such or any proper cross- ing or alteration may be made upon payment of damages, to be ascertained as provided in chapter forty-two of the code; and the company desiring such crossing or alteration may thereupon proceed under said chapter to obtain the right to make such crossing or alteration. If such crossing or alteration as is allowed by this section shall cause dam- age to any comi)any, or to the owner of any lands, the rail- road, turnpike or canal company, first mentioned, shall pay . WEST VIRGINIA CORPORATIONS. 119 such damages. But any county road may be altered by any such company for the purposes aforesaid, whenever it shall have made an equally convenient road in lieu thereof. Code, ch. 52, sec. 11. Note to sec. 10, supra. Cbap. 42, code. May bridge stream, but must do so in skillful manner. If by negligence in constructing bridge damage ensues, the company will be liable. Taylor vs. E. R. Co., 33 W. Va., 93 Railroad may occupy road witb consent of county but must repair same so as not to impair use; but not reciuired to maintain after once, replaced, but must maintain crossings. May excavate or fill if necessary. Moundsville vs. R. R.. 37 ^Y. Ya , 93 and 90; State vs. R. R., 37 W. Va., 108; Same --a same, 38 W.'Va., 242 Abutting land owner to street occupied by railroad can recover the dam- age done to his property. Cases in which rights of abutting owners discuss- ed. Mason vs. Bridge Co., 17 W. Va., 396; Spencer vs It. R. Co., 23 W. Va., ■106; Arbrutz vs. R. R. Co., 37 W. Va., 1; Gibbens vs. E R. Co., 35 W. Va., 07; Fox vs. B. E. Co., 34 \V. Va 466; Watts vs. Ry. Co., 39 W. Va., 196. May be indicted for failing to repair roads; although permitted to use them by county court, 37 W. Va , 108, supra; 38 W. Va., 242, supra. RIGHT RESERVED BY LEGISLATURE. The Legislature reserves the right to provide for connect ing with one work of internal improvement any other work, at such point as may seem to be proper. Code, ch. 52, sec. 12. CONNECTION OP TWO OR MORE RAILROADS IN CIT lES, ETC. In every citj', town or village of this state, where two or more railroads do^now or shall hereafter terminate, and said railroad company or companies shall make application to the corporate authorities thereof for permission to con- nect their roads within the corporate limits of said city, town or village, subject to the municipal regulations there- of, and if the same shall be refused, it shall be lawful in all such cases for said railroad company or companies to make such connection outside of the limits of such city or town by the most direct and practicable route, and to procure the right of way, as provided for in chapter forty-two of this act. Code, ch. 52, sec. 13. HOW COMPANY MAY TAKE MATERIALS FROM LANDS. A company incorporated for any work of internal im- provement may, by its officers, agents or servants, enter up- on any convenient lands for the purpose of obtaining there- from wood, stone, gravel or earth, to be used in constructing such work, or in repairing, enlarging or altering the same. 120 WEST VIRGINIA CORPORATIONS. But the company shall not cut down any fruit tree, or any tree i)reserved in any field or lot for shade or ornament, nor take part of any fence or building, nor take any of the said things from any lot in such town. Before taking any of the said things the company, unless it agree therefor with those having right thereto, shall give to the tenant of the freehold, or his tenant for years, at least ten days' notice in writing, that at a certain time and place, to be specified in this notice, application will be made to a justice to aijpoint commission- ers to ascertain what will be a just compensation for the same. At such time and place the justice shall appoint three disinterested freeholders as commissioners, who, after being sworn, shall review the premises, and report in writing the extent to which wood, stone, gravel or earth is proposed to be taken, the nature of the injury which may be done in cut- ting, quarrying, digging or carrying away the same, and what will be a just compensation therefor. The notice in writing, certificate of commissioners having been sworn, and their report, shall be forthwith returned to the circuit court of the county. If upon such report being so returned, either party file exceptions thereto and demand that the question of compensation be tried by a jury, proceedings shall there- after be had in the case as prescribed in chapter forty-two of the code. But if neither party demand a trial by jury, and good cause be shown against the report, or if the com- missioners cannot agree, or fail to report within a reasona- ble time, the court may, as often as it seems proper, appoint other commissioners, who shall act and report in the manner before prescribed. If the report be confirmed, then upou the payment to the person entitled thereto, or into court, of the sum so ascertained, the company may take and carry away the wood, stone, gravel or earth for which such com- pensation may have been allowed, and though the report may not be confirmed, yet upon the payment into court oi the sum therein mentioned, it may proceed in like manner, as if the report had been confirmed and payment made of the sum thereby ascertained. Upon the coming in of a new re- port, after such payment into court, the court, if it affirm the report, shall render judgment in like manner as in cases pi'ovided for in chapter forty-two of the code. From the time of any such judgment against the company, its right so to cut, quarry, dig, take or carry away, shall be suspended un- til the said judgment shall be satisfied. Code, ch. 52, sec. i-i. Sec. t), of tlio bill of rights, which protects private property from being ta- ken for public use without compensation to the owner, applies to material, stone, gravel, etc., and to personalty as fully as real estate, Neither can be taken without the owner's consent until payment is first made or secured. Te- tcr vs. K. U Co., 35 W. Va., 4SS. WEST VIEGINIA CORPORATIONS. 121 This section provides manner for talting material from lands adjolnins worl£ and fully protects rights of owner under sec. 3, art. 9, Constitution. Id. page 43G; R. R. C(5. vs. Blake, 38 W. Va., page 720. now COMMISSIONERS IN CASE OF PLANK ROAD COMPANY SHALL PROCEED. It shall be the duty of commissioners appointed under tlip preceding section, at the instance of any company authoriz- ed to construct a plank road, if required so to do by the ten- ant of the freehold, or his tenant for years, to inquire in the first place, whether under all the circumstances of the case it be reasonable and proper that the company should be al- lowed to take for its use the timber or other materials it is proposed to condemn. If the opinion of the commissioners on this point be adverse to the company, they shall report the same, with the reasons on which it is founded, to the c.ir cuit court of the county, and unless said report be reversed and annulled, neither the commissioners nor the company shall have power to proceed further under the section afore- said. If the opinion of the commissioners on such prelimi- nary questions be favorable to the company, and the tenant of the freehold and his tenant for years, if there be such, ac- quiesce therein, they shall proceed to discharge the other du- ties for which they were appointed. But if there be not such acquiescence, the commissioners shall report their opinion, with their reasons therefor, to the court aforesaid, and shall not proceed further in the discharge of their duties, uniess their report shall be confirmed. Code, ch. 52, sec. 15. DUTY OF SHERIFF. In any case in which any company may be entitled under this chapter to enter upon any lands, the sheriff or other of- ficer, whenever required by such company, shall attend and remove force if necessary. Code, ch. 52, sec. 16. Note sec. 14, supra. DISPOSITION OP ITS PROPERTY WHEN THE COR PORATION IS DISSOLVED. When any corporation shall expire, or be dissolved, or its corporate rights and privileges shall have ceased, it may wind up its affairs in the manner prescribed by section fifty- nine of chapter fifty-three of this act. Code, ch. 52, sec. 17. Chap. 53, sec. 59, Code. See Ante, chap 14, pages 93 to 98 inclusive. In any action brought against a corporation, if it be in the circuit court, process shall be issued as provided in chapter 122 WEST VIRGINIA CORPORATIONS. ACTION AND PROCESS AGAINST CORPORATION. one hundrod and twenty-four of this act; or if tlie action be bronght befoi-o a justice, process shall be issued as provided in cha])t('r fiflv of this act. Code, cli. 52, sec. IS. See acts ISSl, ch. S. Spo Ante, ch. 16, page 100; Douglass vs. K. & M. Ry. Co., 44 W. Va., 267. SERVICE OF ATTACHMENTS. Attachments may be served upon a company or corpora- tion, a-! garnishee, in the manner prescribed by the preceding section, and in chapter, one hundred and six of this code. Code, ch. 52, sec. 19. See Ante, chap. 16, page 100. When one corporation takes charge of franchises and property of another and only liable to aeeonnt therefor in eqnity, tlie creditors of such second i-orjioration cannot by garnishee process get judgment against such first f:orporation. Equities of debtor must be reached by suit in equity under sci'. 15, chap. 141, code. Svvaim vs. Summers, 19 W. Va., 115. PROCESSES MAY BE SERVED ON DEPOT OR STA TION AGENT. Provided, that when any suit is brought against a railroad company under the two preceding sections, the agent on whom process may be served shall be construed to include a depot or station agent in the actual cmfiloyinent of the company, residina in the county or township v/liorein the ac- tion is brought t^'ode, ch. 52, sec. 20. See Anle, chap. 10, page 100 The agent here meant includes a depot agent. Hurlow vs. Ry Co., 38 W. Va., 713; Taylor vs. R. R. Co., 35 W. Va., 328; Prazier vs R. R. Co., 40 W. Va.. 224. Summonses against a railroad' company may be served on a depot agent in the employment of the company, in the county where the action is bromslit and the return showing such service is good, Douglass vs. Ry. Co., 44 W. ^'a. !;n7. ADDITIO!Sf.\L POWERS OP CORPORA TfONS. In addition to tl'c powers enumersited in this cliapter, and ihose expressly or by necessary implication given by any olh(>r law, e^ciy corporation shall have such powers, and such only, as are necessary or proper to the exerfuse of the powers so enumonited or given. Code, (di. ."12, sec. 21. The grant of corporate powers is construed strictly against corporation and ill favor of the public. R. R. vs. Supervisors, 3 W. Va., 820. Ciirporntlons must depend bolh for their powers and the mode of exercising flipm upon the law under which they are created. Unless the mode prescrib- WEST VIRGINIA CORPORATIONS. 123 ed is observed, the corporators will not be bound. Penn. Co. vs. Bd. of Ed , 20 W. Va., 360. When acts of corporation ultra vires. Smith vs. Coruelius, 41 W. Va., BO. USURIOUS CONTRACTS OF A CORPORATION. No corporation shall interpose the defense of usury in ari.v suit or proceeding at law or in chancery; nor shall any bona, note, debt or contract of a corporation be set aside, impair- ed, or adjudged invalid, by reason of anything contained in the laws prohibiting usury. Code, ch. 52, sec. 22. See Chap. 54, see. 26, post. EXISTING CORPORATIONS RETAIN THEIR PRI\ I LEGES AND LIABILITIES. Corporations now existing shall continue to exercise and enjoy their powers and privileges according to their respec- tive charters and the laws now in force, and shall continue subject to all the liabilities to which they are now subject, except so far as such powers, privileges and liabilities are modified or controlled by this act. Code, ch. 52, sec. 23. Exemptions from taxation ruled unconstitutional. Art. 11, sec. 3, Const. Chap. 53, sec. 4, Code. Irrevocable grants of franchises to corporations which impair authority of the State to make laws for good government must be regarded as licenses and not contracts, which bind future legislatures. It. II. Co. vs. Trans. Co., 2r, W. Va , 324. Eight to fix the charges of railroad companies for transporting freight and passengers is not inherent in every 'sovereignty to be exercised at iileasure. and one Legislature cannot by charter granted, though for valu.able consid- eration, confer a right to charge certain rates so as to prevent a future Leg- islature from changing them. If done it will be treated as a license. Id. 25 AV. Va. 324. HOW PIPE LINE COMPANIES MAY ENTER UPON AND APPROPRIATE LANDS. A company organized for the purpose of transporting nat- ural gas, petroleum or water, necessary for use in carryiii.s out the provisions of this act»in piping and transporting natural gas and petroleum, or for boring for the saiiiy, through tubing and pipes, may enter upon any land for the purpose of examining a,nd surveying a line for its tubing and pipes, and may appropriate so much thereof as may be deemed necessary for the laying down of such tubing and piping, and for the erection of tanks and the location of sta- tions alon^- such line, and the erection of such buildings as may be necessary for the purpose aforesaid; such appropria- tions shall be made and conducted in accordance with the law providing for compensation to the owners of private 124 WEST VIRGINIA CORPORATIONS. property taken for public- use. Provided, Tliat no dwelling liouse, yard or gardt'Ji, shall be taken for such purpose, nor shall any oil tank, gas or oil pipe line be erected or laid with- in one hundred feet of any occupied dwelling house without the consent of the owner thereof. And so far as the rights of the public therein are concerned, the county commissioii- ers as to public roads, and the council of any municipal cor- poration as to streets and alleys, in their respective juris- dictions, may, subject to such regulations and restrictions as they may prescribe, grant to such company the right to lay such tubing and piping therein ; Provided, howei^er, The right to appropriate for any of the purposes herein above specified shall not include or extend to the erection of any tank, station, or building, or lands thereof, or to more than one continuous line of pipe or tubing, or land therefor, in oi through a municipal corporation without the council first consents thereto; and all excavations shall be well filled by such company, and so kept by it, in all cases. Such compa- ny shall, for the 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. Code, ch. 52, sec. 24. Acts 1S91, chapter 113. See chap. 42, Code. JOINT STOCK COMPANIES. DEFINITIONS. The words "joint stock company" include every corpora- tion having a joint stock or capital divided into shares own- ed by the stockholders, respectively. Code, ch. 53, sec. 1. For several classes of corporations and joint stock companies see chap. 1, When the word "by-law" is used in this chapter, it is to be understood as if immediately followed by the words "adopt- ed by the stockholders in general meeting assembled." Code, ch. 53, sec. 2. How and when by-laws adooted. — Pages 24 and 43. NO JOINT STOCK COMPANIES SHALL BE INCORPOK- ATED UNDER SPECIAL CHARTER. No corporation shall hereafter be created by special char- ter; and no act shall be passed granting special privileges 1o any joint stock company heretofore or hereafter incor- porated under the provisions oif chapter fifty-four of this rt. XI, see. 3, Const. The power of legislature to repeal laws granting privileges discussed. Ma- son vs. Bridge Co., 17 W. Va.. ,^96. Irrevocable grants of franchises impairing authority of the State must be regarded as licenses, and not contracts binding future Legislatures; espcially grants tc quasi public cornorations. R. R. Co. vs. Tran. Co., 25 W. Va.. 325; K. E. Co. vs. Supervisors, 3 W. Va., 318. 128 WEST VIRGINIA CORPORATIONS*. WHAT COMPANIES ARE SUBJECT TO THIS CHAPTER Evoi-y joint stock company heretofore organized, and which has commenced its proper corporate business, under special charter or general law, shall remain subject to the law,s now in force applicable thereto, unless it accepts the provisions of this chapter, or shall be declared subject thereto by act of the legislature. Code, ch. 53, sec. 9. After cliartei' to compauy granting a ferry franchise, a general law enacted proliibiting tlae establishment of a ferry within one-lialf mile of one already established, this general law, as applied to such existing ferry, did not cre- ate in it the right to a perpetual monopoly, but was repealable. Bridge Co. vs. Bridge Co.. 34 W. Va.. 155. Every joint stock company which shall be hereafter or- ganize or commence its proper corporate business, or which shall accept the provisions of this chapter, or be declared subject thereto by act of the legislature, shall, so far as it is not otherwise expressly provided, have the rights, pow- ers and privileges, and be subject to the regulations, re strictions and liabilities specified in this and preceding chapter. Code, ch. 53, sec. 10. CORPORATE NAME. No joint stock company shall adopt the same name which is being used at the time by another corporation of this State. Code, ch. 53, sec. 11. .\ntc, page 10. By its name the corporation is distinguished from other corporations, and it is essential to its existence. Bank vs. Distilling Co., 41 W. Va., 535. CHANGE OF CORPORATE NAME. If the stockholders of a joint stock compauy desii'e to change the name thereof, and pass, in general meeting, a resolution to that effect, stating the name by which it is intended the corporation shall be thevenfter known, and cause such resolution to be certified under its common seal and the signature of its x)i'esident to the secretary of state, the seci-etai'v shall issue, under his hand and great seal of the state, a certificate reciting the resolution and declaring that the corporation is to be thereafter known by the new name so adontcd; and such certificate shall be evidence of the cliangc of name theiH'in specified. Notice of every sucli chaiige of luniie shall be published by such corporation in some newsi)aper of general circulation, in the county where Ihe principal office of such corporation is, once a week for WEST VIRGINIA CORPORATIONS. 129 four successive weeks immediately thereafter. Code, ch. 53, sec. 12. The seventeenth, eighteenth, nineteenth and twentieth sections of chapter fifty-four of this code shall be applica- ble to such certificates of change of name. Code, ch. 53, sec. 13. See chap. XI, page 71. EFFECT OF CHANGE OF NAME. No contralct, right or liability, previously existing or in- choate, or suit, motion or proceeding then pending, shall be affected by such change of name. Code, ch. 53, sec 14. See cliap. XI, page 71-2-3. Barnett vs. Lumber Go., 43 W. Va., 442. THE CAPITAL STOCK AND HOW DIVIDED. The capital stock shall be divided into shares of such amount each as may be prescribed by the charter of incor- poration; but every share shall be of the same amount. Code, ch.' 53, sec. 15. Chapter 2, page 11. PREFERRED STOCK. The .stockholders in general meeting may, by resolution or by-law, provide for or authorize the issuing of preferred stock, on such terms and conditions, and with such regula- tions respecting the preference to be given to such stock over the other stock in relation to future dividends, or oth- erwise, as they may deem proper. Provided, That the max- imum capital of the corporation shall not be exceeded, and that notice be first published at least once a week for fo/ur weeks successively, in some .newspaper of general circula- tion in the county wherein the principal office or place of business of the corporation is situated, of the intention to offer such resolution or by-law. Code, ch. 53, sec. 16. Chapter XII, pages 73-4-5-6. NUMBER OP STOCKHOLDERS. There shall be not less than five stockholders. If the num- ber be at any time reduced below five, and so remain for six months continuously, the corporation shall be dissolved. Code, ch. 53, sec 17. 130 WEST VIRGINIA OORrORATIONS. Code, ch. 54, sec. 31; chap. XIV, pages 83-4-5-6. Hornbrook vs. Towu, 40 W. Va., 547; Ward vs. Lumber Co., 30 W. Va., 43; Moore vs. Sclioppert, 22 W. Va., 283; K. R. Co. vs. County, 3 W. Va., 319. STOCK OWNED BY THE CORPORATION. If the corporation acquires shares of its own stock, it may either extinguish or sell the same. If extinguished, it shall operate to that extent as a reduction of the amount of its capital stock. No vote shall be given on any stock while owned by the corporation. Code, ch. 53, ^ec. 18. Page 35, sec. 9. WHO DEEMED THE OWNER OF STOCK, The person in whose name shares of stock stand on th'j books of the corporation shall be deemed the owner there- of, so far as the corporation is concerned. Code, ch. 53, sec. 19. stock-book proper evidence to show subseribor. R. It. Co. vs. Anolegate, 21 W. Va.. 172; Donnally vs Henidon, 41 W. Va., 520; So. Br. Ry. Co. fs Long, 43 W. Va.. 131. STOCK DEEMED PERSONAL ESTATE. The shares shall be deemed personal estate, and as such shall pass to the legal rcjtresentativc or transferee of the stockholder, and be subject to legal process. Code, ch. 53. sec. 20. Watson vs. Fairmont, 38 W. Va., 183; Ban vs. Bramwell, 36 W. Va., :U2. Page 34, sec. 5. TRANSFER BOOK. A transfer book shall be kept by the corporation, in which the shares shall be assigned under such regulations, if there be any, as may have been prescribed bv the bv-laws. Code, ch. 53, sec. 21.' I'agc 34, sees. 2 and 3. ♦ f'dcic, eh. 53, sec 37. In order to bind the corporation, it must have notice of the assl-nmeut. Donnaily vs. Herndim, 41 W. Va., 52(1. TRANSFER OF STOCK. No share shall be transferred without the consent of the board of dii-cctors, until the same is fully paid up, or se- curity given to the satisfaction of the board for the residue remaining unpaid. And where bond and securily have beeti WEST VIRGINIA CORPORATIONS. 131 given to the corporation for any sum remaining unpaid upon stoclf, no transfer shall affect the validity of such bond and security. Code, ch. 53, sec. 22. Page 34, sec. 4. Donnallj^vs. Herndon, 41 W. Va., 520; E. R. Co. vs. Applegate, 21 W. Va., 179.. SUBSCRIPTIONS TO CAPITAL, ETC. Before a corporation is organized, shares may be dispos- ed of as prescribed by the sixteenth section of chapter fifty- four of this code, or by the charter. After it is organized, the disposal of additional shares to increase the capital stock shall be subject to the order and direction of the board of directors for the time being, so that the maximum capi- tal be not exceeded. Code, eh. 53, sec. 23. Code, ch. 54, sec. 16. See next section and note. Pages 17 and 51 (note). The increase of capital stoclj is entirely under control of the board of direc- tors. The only limitation on them is that the maximum capital be not ex- ceeded. Greenbrier lud. Co. vs. Ochletree, 44 W. Va.. 626. STOCK NOT TO BE SOLD AT LESS THAN PAR TO IN CREASE CAPITAL STOCK. In no case shall stock be sold or disposed of at less than par in order to increase the capital of any such corporation. But nothing herein contained shall be so construed as to prevent any raining corporation, subject to the provisions of this chapter, from issuing stock or bonds and, negotiat- ing the sale of the same in payment of real and personal es- tate for the use of such corporation, and for its other cor- porate purposes and business, at such price and upon such terras and conditions as may be agreed upon by the ovs^ners, directors or stockholders of such corporation. And any subscriber to the capital stock of any such mining corpora- tion may pay for such stock by the transfer and conveyance to such corporation of real or personal property, or both, nee essary for the uses and purposes of the corporation upon such terms as may be mutually agreed upon. Code, ch. 53. sec. 24. Pages 18 and 51 (note). , After agreement was signed for corporation, but before charter issued, a deed was made to proposed corporation and delivered to a third nart.v to be delivered when corporation was formed; on the same day it was organized the deed was delivered by the party holding it to the corporation .ind there was issued to the grantor stock'' of the corporation in payment therefor. This trnnsaction was held to be legal. Bank vs. Lumber Co., 32 W. Va., 357. Richardson vs. Graham 30 S. E., 92. This case is interesting iu the light of the observations in the note on pages 50 and 51, ante. It settles the question of the right of a corporation to dispose of its stock for property, and such a transaction can be no lon^rer called in question 132 WEST VIRGINIA COKPORATIONS. HO^V SUBSCRIPTIONS TO BE PAID. At least ten per cent, of the par value of each share shall be paid at the time of subscription, and the residue as re- quired by the board of directors or the commlsioners havinjr control of the subscription. Code, ch. 53, sec. 25. Ante, page XI. Code, ch. 54, see. 7. Note to sec. 26, post. One wBo subscribes and pays for bis stock is a stocliliolder, though he has no certiTicate of stocls. Crumlish vs. R. R. Co., 40 W. Va., 627; G. I. B. Co., Ochlotree. 44 W. Va.. 633. WHEN STOCK TO BE REGARDED AS TAKEN. No stock shall be regarded as taken or the person sub scribing therefor considered entitled to the same, until the first installment is paid thereon. Code, ch. 53, sec. 26. Chap. 54. sec. 7, post. Sec. 25 and note, supra. One who signs agreement to incorporate does not become a stocliholder and liable for same unless he acltnowicdges such agreemeut. Greenbrier Co. vs. Rodes, 37 W. Va., 730; G. I. Co. vs. Ochletree, 44 W. Va., 626. Subscriber for stocis caunot escape liability for stocii on ground that he did not pay first installment, required by above and see. 7, chap. 54, Code. R. R. Co. vs. Applegate, 21 W. Va., 172. APPORTIONMENT OP STOCK. If more than the amount necessary to make up the max- imum capital, or the amount of capital to be disposed of. be at any time subscribed, the subscriptions shall be reduc ed to the proper amount by deducting the excess from the largest subscription, in such manner that no subscription shall be reduced while any one remains larger. (Jodc, ch. 53, sec. 27. Apportionment of stock slioukl be made by buiird of directors, unless mnde by the stoclsliolders, before the board shall be elected. FAILURE TO PAY SUBSCRIPTIONS. If any person, whoi has received a sum of money on a sub- scription to the capital stock of a corporation, fail to ai- count for and i)ay over the same as the board of dii'ectors may ren.uire, or if any stockholder fail to jiay any install ment upon his shares when rcMjuired by the board, the cor l)oration may I'ccoxer from him the princi]ial sum due, with interest thereon at the rate of ten ])er cent, per annum, by motion, on ten dnys' notice, or by action before any justice or court having jurisdiction. Code, ch. .5:i, sec. 28. Cases for unpaid subscriptions: WEST VIRGINIA CORPORATIONS. 133 R. R. Co. vs. Applegate & Son, 21 W. Va., 172; So. Br. Ry. Co. ys.-Long, 26 W. Va., 692; 43 W. Va., 131; Greenbrier Co. vs. Rodes, 37 W. Va., 738; same vs. Squires, 40 W. Va., 690; Nimicli & Co. vs. Iron WorJis, 25 W. Va., 184. In Swing, trustee, vs. Parliersburg Veneor and Panel Co., decided at iast term of Supreme Court of Appeals (45 W. Va.) the Court decides that the rule given in Nimick vs. Ry. Co., 25 W. Va., 184, is changed by sees. 58 and 59 of chap. 53, Code. In suit for subscription stockholder cannot have as off-set a debt due him from president of company individually. Navigation Co. vs. Rice, 9 W. Va., 636 ^VHEN COMPANY MAY SELL DELINQUENT STOCK. Or, in the case of a stockholder failing to pay any install- ment upon his shares when required by the board of direct- ors, the said shares may, by order of the board, after foiur weeks' notice in a newspaper of general circulation in the county wherein the principal office or place of business of such corporation is situated, be sold at public auction for cash, and be transferred to the purchaser by such person as the board shall appoint for the purpose. In such case there shall be paid out of the proceeds of the sale the ex- penses of advertising and selling, and the whole residue re- maining unpaid upon said stock; and the surplus, if any, shall be paid to the delinquent stockholder. Code, ch. 53, sec. 29. AYHEN CORPORATIONS MAY RECOVER FROM DE- LINQUENT STOCKHOLDER. If there be no sale for want of bidders, or if the sale do not produce enough to pay the expenses and the whole res- idue remaining unpaid on the said stock, the corporation may recover from such stockholder whatever may remain unpaid, with interest at the rate of ten per cent, per annum from the time it was due until payment, by action or mo- tion as aforesaid. Code, ch. 53, sec. 30. Sec. 28 and note, supra. SECURITY FOR UNPAID INSTALLMENTS OF STOCK. A corporation, the stock of which is not fully paid up, may by law, require each stockholder to give security to the satisfaction of its board of directors for the payment, at such times and in such installments as the board may direct, of the residue remaining unpaid on his stock. In such case the security may be given by bond, with one or more sure- ties, or by pledge of other stocks or securities, or by deed of trust or inortgage on real estate, or in any other manner 134 WEST VIRGINIA CORPORATIONS. satisfactory to the board and not prohibited by such by-law. Code, ch. 53, sec. 31. See nole to sec. 34, post. ' INSUFFICIENT OR DOUBTFUL SECURITY. When security is taken from stoclvholders for the unpaid residue of their stoclv, according to the preceding section, the board of directors shall, from time to time, examine the said securities to ascertain the sufficiency thereof. And if, in any case, they deem the security insufficient or doubtful, they shall require other security in lieu thereof; and so, from time to time thereafter, whenever they find the secur- ■ity insufficient or doubtful. Code, ch. 53, sec. 32. Note to sec. 34, post. FAILURE TO GIVE SATISFACTORY SECURITY. If any stockholder being thereto required, according to either of the two preceding sections, fail to give security satisfactory to the board of directors for the unpaid residue of his stock, the corporation may recover from him, by mo- tion on ten days' notice, or by action before any justice or court having jurisdiction, the whole unpaid residue of the stock, with interest thereon at the rate of ten per cent, per annum from the time of such failure, until payment; or the board of directors, at their option (having first given not less than two weeks' notice to the stockholder of their in tention so to do), may declare the stock in regard to which such failure occurred, to be forfeited to the coruoration. Code, ch. 53, sec. 33. Note to sec. 34, Infra. FAILURE TO PAY INSTALLMENTS. If any stockholder, having given security as aforesaid, fail to pay the unpaid residue of his stock or any install ment thereof, when thereto required by the board' of direc- tors, the corporation may recover the amount in arrear, with interest thereon at the rate of ten per cent, per annum from the time of such failure until payment, from the person li able on such security, or any one or more of them bv mo- tion or action as aforesaid; or by the sale or collection of the stocks or securities pledged, or enforcement of the deed of trust or mortgage, or other securities, given as aforesaid; or WEST VIRGINIA CORPORATIOKS. 135 in the manner specified in the twenty-ninth and thirtieth sections of this chapter. And if it proceed in any of the modes above mentioned, it shall not be thereby precluded from resorting to the others for the recovery of so much as may remain unpaid. Code, ch. 53, sec. 34. It will be noted tliat suits for unpaid instalments or sale of stock therefor and suit for balance, should stock sold fail to pay amount due tbereon as provided in sections 28, 29 and 30, supra, are left entirely, by law, with the board of directors to pursue either of tliese remedies as it may choose. But tlie board of directors W. Va., 36, .nnte. LIST OP STOCKHOLDERS TO BE HUNG UP IN PRIN- CIPAL OFFICE. A list of stockholders, showing the number of shares and 1 otes to which each is entitled, shall, for one month before every annual meeting, be hung up in the most public room at the principal oiSce or place of business of the corpora- tion; but the failure to do so shall not affect the validity of the proceedings of such meeting. Code, eh. 53, sec. 43. Page 26. net. 4. MODE OF VOTING. In all elections. for directors or managers of incorporated companies, whether in other I'espects governed by this chap- ter or not, every stockholder shall have the right to vote in jieison or by jiroxy for the number of shares of stock own- ed by him for as many persons as there are directors or man- agers 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 or man- agers shall not be elected in any other manner. And on any other o.nestion to be determined at any meeting of stock- holders, if a vote by stock be demanded upon such o.uestion by any stockholder, every stockholder may, in person, or by proxy, give the following vote on whatever stock he may hold in the same right, -that is to say, one vote for evei'v share of stock held in such company. Code, ch. 53, sec. 44. Chanter 5. page .",ti. ante. This mode of clecling directors will be enforced by mandamus. In such liroc"eding an order of pidillcation can be talcen against n non-resident mem- l)er of Iioard of directors. Cross vs, Ry. Co., .S.T W. Va., 174. PROXY. No officer or diiector of a corporation shall vote as the proxy of a stockholder thereof. Code, ch. 53, sec. 45. Art. 8, by laws, page 20, ante. WEST VIRGINIA CORPORATIONS. 139 ANNUAL REPORT OF DIRECTORS. The board of directors shall make a report to the stack- holders, at the annual meeting, of the condition of the cor- poration. The report shall show the projierty and funds belonging to the corporation, and the estimated value there- of; the debts due to it, distinguishing such as are deemed to be good from those considered doubtful or hopeless; the debts and liabilities of the corporation; the amount of tht^ capital paid in; and the estimated surplus or deficiency, as the case may be. It shall also state the amount of dividends declared, and losses incurred, or the profits accruing, during the preceding year. The board shall furnish to each stock holder requiring it, a true copy of such report, together with a list of the stockholders and their places of residence. Code, ch. 53, sec. 46. Art. IV, by laws, page 27. ante. BOOKS, PAPERS, ETC. The property and funds, books, correspondence and pa- pers of the corporation, in the possession or control of any oflicer or agent thereof, shall, at all times, be subject to the inspection of the board, or a committee thereof appointed for the purpose, or of any committee appointed for the pur- pose by a general meeting of the stockholders. The min- utes of the resolutions and proceedings of the board shall, for thirty days before the annual meeting of the stockhold ers, be open to the inspection of any stockholder. They shall be produced when required by the stockholders at any general meeting. Code, ch. 53, sec. 47. Art. V, by-laws, page 27, ante. MEETINGS OF THE STOCKHOLDERS. The annual meeting and other meetings of the stockhold- ers, within this State, shall be held at such place as niav be prescribed by the by-laws, or if there be no such by-law. then at the principal office or place of business of the cor- poration. Notice of the place of meeting shall be given in the manner prescribed by the forty-first section of this chap- ter. Code, ch. 53. sec. 48. P.igt'S 21-2-3- and 2(1. art. II, sees. 1, 2 and .3; chap. 53, sec. 41, code. Reiliy vs. Oglebay, 2S W. Va., 36. Page 22, note. 140 WEST VIRGINIA CORPORATIONS. BOARD OF DIRECTORS. For pvcr.y corporation subject to this cliapter there shall be a board of directors, who shall have power to do, or cause to be done, all things that arc proper to be done by the cor- poration. The stockholders may in general meeting, by a by- law, prescribe the number of which the board shall consist but unless a different number be so prescribed, there shall be five directors. They may also, by by-law, prescribe the qualifications of directors; but if it be not otherwise provid- ed, every director must be a resident of this State and a stockholder. The directors shall be elected at the annual meeting of the stockholders, or as soon thereafter as prac- ticable, and shall hold their offices until their successors are elected and qualified. The stockholders in general meeting may remove any director and fill the vacancy; but any vn cancy not caused by such removal may be filled bytheboard. A majority of the board shall constitute a quorum, unless it be otherwise provided in the by-laws; and if the number of the board be reduced at any time so as to interrupt the proper and efficient management of the business of the cor- poration, a general meeting of the stockholders may be call- ed to elect new directors, or to take such order in the prem- ises as they may deem proper. Code, ch. 53, sec. 49. Ante, ch. V. Iluling vs. Lumber Co., 3£ W. Va., 351. nii-cetors nuist act as a board. Cannot act separately so as to bind corpor- ation, nor can any iiidlTldual act operate as a ratification so as to bind cor- ■jnratinn. l.-.inib." Co. vs. Traders Co.. 44 W. Va., 175 Goshorn vs. Co. Ct., 42 W. Va., 73.5: nciialier vs. Board, 42 W. Va., 170; Penn. Rod Co. vs. Board, 20 W. Va., 360. Stocldiolders can by by-law prescribe reasonable qualifications for direcf- nrs, and a by-law that an attorney in a suit against corporation, should not be a director is not unresonable. Cross vs. R. R. Co., 37 W. Va., 343. ^iandamus may issue to compel corporation to receive and recognize a di- rector, and when one claiming adversely to relator is a non-resident he can be served by order of publication. Cross vs. R. R. Co., 34 W. Va., 747. Directors of an insolvent corporation hold the property as trustees, first for the creditors and then for the stockholders; and in their dealings with the property of the corporation the same rules, requiring perfect fairness are applied to them that govern trustees in dealing with trust property general- ly. Any profit or advantage they may secure in dealing with the coroorate property is therefore presumed to be for the benefit of the creditors and stock- holders, and any purchase by them of corporate property is prima facie void, should any creditor or stockholder object thereto. Reilly vs. Oglebav, 25 W. Va., 3G; Lamb vs. Cecil, 25 W. Va., 288; Hope vs. Salt Co.. 25 W. Va.. 780; Lamb vs. Pannell, 28 W. Va., 666; ante, page 4G. RpfeivrT of corporation can sue when property of corporation, by fraud and collusion of directors or ofliccrs. is diverted from those entitled to it, and statute of limitations w'll not commence to run as to such suit till fraud, etc.. Is discovered. Lamb vs. Cecil, 25 W. Va., 297. Bowers, duties and liabilities of directors considered and determined. Smith vs. Cornelius, 41 W. Va., 60. When directors have power to authorize an act, they may, when done without authority, ratify such act. When ratification will bo inferred. Smith vs. LinvsDH, 18 W. Va., 212, syl. 8; Kyle vs. Wiigner, 45 W. Va.. (in print.) Director may bo held liable personally, for mlsrepresentatlou made know- ingly by him and relied on in reference to the corporation's affairs, and for fraud and collusion practiced in dcaliug with the corporatlons's property re- WEST VIRGINIA CORPORATIONS. 141 suiting in loss, etc. Cases in wliicli individual liability of directors punsiderod. Zinn vs. Mendel, 9 W. Va., 583; Smith vs. Cornelius, 41 W. Va., 60. The board of directors, unless otherwise provided or limited in the by-laws, "has the power to do or cause to be done, all things that are proper to '-;'' done by the corporation." Anything the corporation could do, within the purview of its charter, can be done by the directors unless some by-law pre- vents. In the following cases it has been held that the board of directors of a solvent or an insolvent corporation had power to authorize the maliing of an assignment or trust deed for the benefit of its creditors: Lamb vs. Cecil, 25 W. Va., 288. Pyles vs. Furniture Co.. 30 W. Va., 123. Sweeney vs. Sugar Co., 30 W. Va., 443. Rutfner Bros. vs. Welton Co.. 36 W. Va., 244. Huling vs. Lumber Co., 38 W. Va., 351. Hope vs. Salt Co., 25 W. Va., 789. Weigand vs. Alliance Supply Co., 44 W. Va., 133. Prior to 1891 there was no law in this State preventing a creditor from making preferences among his creditors. But chapter 74, sec. 2, code, was amended by the acts of 1891, and again by chapter 4, acts 1895, so that pref- erences among creditors by assignment cannot now be made, and this ap- plies to corporations. In most of the cases cited it seems that the power of the board of directors to prefer creditoi'S was the point of contention, while the right or power in the board to make an assignment was conceded.' Lamb vs. Cecil, 28 W. Va., 288. syl. 4. In Lamb vs. Laugblin, 25 W. Va., 200, the following query is propounded: "Can a board of directors of an insolvent corporation prefer creditors?" This query seems to have been answered in the afBrmative in Pyles vs. Furniture Co., 30 W. Va., 123, and in the subsequent decisions cited abovte, and in the last mentioned case, on pages 142, 143 and 144, the court considered- the effect of sctions. 56, 57 and 59 of chapter 53, code, and held that these sec- tions do not affect the power vested in the corporation, to convey all t!ic corporate property for the benefit of the creditors of the corporation. See also Weigand vs. Alliance Supply Co., 44 W. Va., 133. However, an important distluetion has been drawn in the case of Kyle vs. Wagner (to be reported in 45, W. Va.). In this last mentioned case the court holds that the board of directors can- not make a general assignment without the consent of the stockholders. PRESIDENT. As soon as may be, after the election, the board of direct- ors shall choose one of their own body president of :''';e cor poration, who shall act as such till his successor is qualified, without ceasing, however, to be a member of the board. During the absence of the president the board may appoint a president pro tempore, who, for the time, shall discharge the official duties of the president. Code, ch. 53, sec. 50. President or other chief oflicer can verify pleadings. Quesenbery vs. B. & L. Ass., 44 W. Va., 512. He should sign an answer of ci>rDoration and attach the corporate seal. Power of president. Teter vs. Ry. Co., 16 W. Va., 556. He cannot make an assignment of property to pay debts without authority from directors. L.Tnib vs. Cecil, 25 W. Va., 204. But see Kyle vs. Wagner, 45 W. Va., (In print.) President of bank may be authorized to aswgn and transfer Its notes and such authority may be inferred, or ratified after it Is done. Smith vs. Law- son, 18 W. Va., 212. MEETINGS OP THE BOARD. The board shall hold meetings at such time as they see fit, or the president shall require. They may, by resolution, prescribe when and where their regular meetings shall be 142 WEST VIRGINIA CORrORATIONS. held, liow special meetings shall be called, and what notice of their meetings shall be given, ('ode, ch. r);'>, sec. 51. Kyle vs. Wiigner, 45 W. Va., in print. Ucilly vs. Oglebay, 25 W. Va., 36. Aute, page 47; note to sec. 49, supra. RECORD OF PROCEEDINGS. They shall keep a record of their jH-oceedings, which shall be verified by the signature of the president or president pro- tcnipore. No member of the board shall vote on a question in which he is interested otherwise than as a stockholder ex- cept the election of a president, or be present at the board while the same is being considered; but if his retiring from the board in such case reduce the number jjresent below a quorum, the question may nevertheless be decided by those who remain. On any question the names of those voting each way shall be entered on the record of their proceed- ings, if anv member at the time require it. Code, ch. 53, sec 52. Huiing vs. HuliUK Co., 38 W. Va., 351. Action of board slionld appear on minutes. Pa, liod Co. vs. Board. JO W. Vii., 361; ante, page 47. Can action of board be proved b,v parol evidence? As In public corporations, it seems not. Pa. Rod Co. vs. Board, 20 W. Va.. 367. As to private corporations see 6 Thomp., Corp,, sees, 77:!i-T7:i."i-T747-774S. OFFICERS AND .VGENTS. The board of directors shall ai)point sucli officers and agents of the corporation as they may deem proi)er. and prescribe their duties and comi)ensation ; but there shall be no compensation for services 7"endered by th(^ president or any director, unless it be allowed by the stockholders. Thi' officers and agents so ap]»ointed shall hold their ))lac('s dur- ing the pleasure of the board; and if i(>(piired by the board, or the by-laws, shall give bonds, payable to the corporation, in such penalties and with such conditions and security as the board may a])]>rove. Code, ch. 5:!, sec. '>:). rrumirsli vs. Co., .'i.S W. Va., toil; Riciiards vs. Clarksburg. 3 W. Va., 4!)1. r.OOKS OF .VCCOUNT. The board of dii'cctors shall cause regular and correct books of account Id be kept, and to be seitled and balanced once at least evciy six months. Code, ch. f)."}, sec. 54. WEST VIRGINIA CORPORATIONS. 143 BY-LAWS. The board of directors in tlie exercise of tlieir powers,, shall be subject to such by-laws and regulations, not incon- sistent with the laws of this State, as the stockholders may pass form time to time in general meeting. Code, ch. 53, sec. 55. Ante, page 24 and chap. IV; Code, eh. 53, sec 2. VOLUNTARY DISSOLUTION. The stockholders may at any time in general meeting re- solve to discontinue the business of the corporation, the ma- jority of the capital stock being represented and voted in favor of such discontinuance; and may divide the property and assets that may remain after paying all debts and lia bilities of the corporation. Public notice of such resolution shall be immediately given by advertisement in some news paper of general circulation, published near the principal office or place of business of the corporation, once a week for six weeks at least, before any dividend of the capital shall be made; and the said resolution shall be forthwith certified by the president under his hand and the common seal of the corporation to the secretary of state, who shall preserve the same in his office and deliver a copy to the clerk of the house of delegates, to be printed and bound with the acts of the legislature. As soon as practicable, after such resolution is passed, the stockholders shall cause ample funds and assets to be set apart, either in the hands of the trustees or otherwise, to secure the j)ayment of all debts and liabilities of the corporation; and any creditor who sup- poses his claim not to be sufficiently secured thereby, wheth- er such claim be then due or thereafter to become due, may on bill in chancery, if sufficient cause therefor be shown, obtain an injunction to prevent the distribution of the cap ital and a decree against any stockholder for the amount of the capital received by him;; and if necessary or pro])er' in the case, the court may appoint a receiver to take charge of and administer the property and assets of the corpora- tion. Code, ch. 53, sec. 56. Ante, page 86; Pyles vs. Furniture Co., 30 W. Va., 143-4; Kyle vs. Waguer (to be reported in 45 W. Va.); Lamb vs. Laughlin, 25 W. Va., 300. PROCEEDINGS IN EQUITY TO DISSOLVE A CORPOR- ATION. If not less than one-third in interest of the stockholders 144 WEST VIRGINIA CORPORATIONS. of a corporation desire to wind up its affairs, they may ap- ply by bill in chancery to the circuit court of the county in which the principal office or place of business of such cor- poration is situated, or if there be no such office or place of business in this State, to the circuit court of the county in which the other stoclvholders or any one or more of them reside, or are found, or in which the property of such corpor ation or any part of it may be, setting forth in the bill the grounds of their application; and the court may thereup- on proceed according to the principles and usages of equity to hear the matter, and if sufficient cause therefor be shown, to decree a dissolution of the corporation, and make such or- ders and decrees, and award such injunctions in the cause as justice and equity may require. Code, ch. 53, sec. 57. Ante, page 93; note to sec. 49, supra; Pyles vs. Furniture Co., 30 W. Vo . 143-4; Kyle vs. Wagner, (to be reported in 45 W. Va.) RECEIVER. When a corporation expires, or is dissolved, or before its expiration or dissolution, upon sufficient cause being shown therefor, sucli court as is mentioned in the preceding sec- tion may, on application of a creditor or a stockholder, ap- point one or more persons to be receivers to take charge oi and administer its assets; and whether such receiver be ap- pointed or not, may make such orders and decrees, and award such injunctions in the cause, as justice and equity may require. This section shall apply to corporations here- tofore or hereafter chartered by another state, which may have done business and acquired property, or contracted debts, in this State, and any of whose creditors, or stockliol- ders, or their personal representatives, reside herein; and the circuit court of any county wherein such creditor, stock- holder, or personal i-epresentative, may reside, or where such assets or property or part thereof may be, or where the ])erson owing such debts, or having such properly in posses sion, may reside, shall aiford such relief as is prescribed in this and the next section. Code, ch. 53, sec. 5S. See code, c!]. 133, sec. 28. Ante, page !M; Weig.ind vs. .VUiancc Suiiply Co., 44 W. Vu., 133; I'vlos vs. Kurnlture Co., 30 W. Va., 123; Crumlisli vs. Ey. Vi\. 28 W. Va., 1)2:)'; I.iiml) vs. Laugliliii, 2.^ W. Va., :mO; Iliiling vs. Huling Lumlior Co., 3S W. Va., :!.">]; Itathbi vs. (!as Co., 31 W. Va., 708; Bayco vs. Cual Co., :)" W. Va,, 73; Kanawlia Coal Co. vs Ballard & Wok'li Co., 43 W. Va., 721. EFFECT OF DISSOLUTION OR EXPIRATION OF A ( CORPORATION. \^'llen a corporation shall expire or be dissolved, its prop WEST VIRGINIA CORPORATIONS. 145 erty and assets shall under the order and direction of the board of directors then in office, or the receiver or receivers appointed for the purpose by such circuit court as is men- tioned in the fifty-seventh section of this chapter, be subject to the payment of the liabilities of the corporation, and the expenses of winding up its affairs, and the surplus, if any, then remaining, to distribution among the stockholders ac- cording to their respective interests. And suits may be brought, continued or defended, the property, real or pei'- sonal, of the corporation be conveyed or transferred under the common seal or otherwise, and all lawful acts be done in the corporate name, in like manner and with like effect as before such dissolution or expiration; but so far only as shall be necessary or proper for collecting the debts and claims due to the corporation, converting its property and assets into money, prosecuting and protecting its rights, en- forcing its liabilities, and paying over and distributing its property and assets, or the proceeds thereof, to those enti- tled thereto. Code, ch. 53, sec. 59. Code, ch. 52, sec. 17. Ante, page 96, et seq. ; Nimick vs. Iron Works, 25 W. Va., 184. Tlie priuciple laid down in tliis case has been changed by chapter 39, acts 1885. See Swing vs. Bently, 45 W. Va., (in nrint.J Chap, 39, acts 1885. i« embraced in this chapter of the code. Ward vs. Lumber Co., 30 W. Va., 43; Donnally vs Herndon, 41 W. Va., 519; Miller vs. Coal Co., 31 W. Va, 836; Crumlish vs. Ry. Co., 28 W. Va., 623. EXAMINATION OR REPORT REQUIRED BY THE LEG- ISLATURE. Every corporation subject to this chapter shall exhibit its books, papers and property, to such agents or committees as the legislature may from time to time appoint toexaminethe same, and when required by the legislature, shall report thereto a full, fair and detailed exhibit of its property, lia bilities and condition, verified by the oath of the president, and of the secretary or principal bookkeeper. Code, ch. 53, sec. 60. SERVICE OF PROCESS OR NOTICE. Process on, or notice to, a corporation may be served a^i is provided in section seven of chapter one hundred and twenty-four of this code. Code, ch. 53, sec. 61. Ante, ch. XVI; Code, ch. 41, sec. 6; ch. 50, sees. 32 to 39; eh. 124, ^pca. 6. 7, 8 and 9. Taylor vs. Ry. Co., 30 W. Va., 328; Ry. Co. vs. Eyan, 31 W. Va., 364; Har- row vs. Rv. Co., 38 W. Va.. 711; Frazier vs. Ry. Co., 40 W. Va., 224; Blank- enship vs. Ey. Co., 43 W, Va,, 135; Peck vs. Chambers, 44 W. Va., 270. 146 WEST VIRGINIA CORPORATIONS. QTTANTITA^ OF LAND \MIICH A CORPORATION MAY HOLD. No corporation subject to this chapter, whether incorpor- ated under special charter or general law, shall hold more . than one hundred acres of land; except that a company for raining iron, lead or copper ore, and manufacturing the same into metal, may hold ten thousand acres for every charcoal blast furnace, and three thousand acres for every other furnace; companies for mining and selling coal, ten thousand acres each ; other mining companies, salt compan- ies and oil companies, three thousand acres each; other manufacturing companies, one thousand acres each, and a springs company, fifteen hundred acres; nor shall any corporation subject to this chapter, hold more than five aci'es in any incorporated town or city, except as provided in the fourth section of chapter fifty-two of this code, and except that societies formed to promote agriculture or stock raising may hold not exceeding thirty acres in any incorpor- ated town or city. But nothing in this section contained shall be construed to prevent any company heretofore in- corporated from holding such number of acres' cf land, in addition to the number herein prescribed, as may be author- ized by its charter. But any such springs company now owning or occupying the real estate of a former springs company may take, hold and use the same, notwithstand- ing the quantity thereof shall exceed fifteen hundred acres. Code, ch. 53, sec. 62. Ante, pages 7. S and 9; Code, ch. 52, sees. ?, and 4. PRESERVATION OF THE PEACE, ETC., AT W.VTER ING PLACES. Every incorporated springs company may adopt by-laws, rules and regulations for the preservation of ])eace and good order within the boundary lines of its real estate, and for the arrest of jiersons violating the penal laws of the State within said lines. .\nd the board of directors of any such corporation may, from time to time, ai>point such num- ber of police officers as may be deemed necessary to carry into effect tlie objects and ])ui'i)oses of this section"; and the officer so appointed shall have all the powers within the territory for which he is appointed, in criminal cases, as a constable of a district has under the law. Code ch 53 sec 63. > • WEST VIRGINIA CORPORATIONS. 147 MARRIED WOMEN MAY VOTE AS STOCKHOLDERS, ETC. It shall be lawful for any married woman, being a stock- holder of any bank, insurance company (other than mutual fire insurance companies), manufacturing company or other institution incorporated under the laws of this State, to vote at any election for directors and trustees, by proxy or otherwise, in such company o£ which she may be a stock- holder. Code, ch. 66, sec. 9, as amended by cb. 3, Acts 1893. Ante, page 0, note; and page 28, note. GENERAL PROVISIONS FOR IN- CORPORATION OF JOINT • STOCK COMPANIES. TO WHAT CHAPTERS SUCH COMPANIES SHALL BE SUBJECT. Joint stock companies, incorporated under tliis chapter, shall be subject to the i)rovisions of the fifty-second and flf ty-third chapters of the code, so far as the same are applicu ble. Code, ch. 54, sec. 1. McConiha vs. Guthrie, 21 W. Va., page 146. THE PURPOSES FOR WHICH JOINT STOCK COMPAN- IES MAY BE FORMED. Such companies may be incorporated for the following purposes : I. For manufacturing, mining or insuring. II. For constructing and maintaining lines of magnetic telegraph, telephones, lines of piping or tubing for the transportation of oils or other fluids; and carrying on the business properly pertaining to such works and improve- ments. III. For establishing hotels and springs companies, gas works, water works, cemeteries, or building and loan asso- ciations, and transacting the business properly pertaining thereto. IV. For universities, colleges, academies, seminaries, schools or institutes, for the purpose of teaching any branch or branches of useful information or learning, or promoting religion, morality, military science or discipline; or the dif- WEST VIRGINIA CORPORATIONS. 149 fusion of knowledge, including library companies and liter- ary and scientific associations. V. For agricultural and industrial societies. VI. For benevolent associations, societies and orders, in eluding orphan, blind and lunatic asylums and hospitals, lodges of free and accepted masons, independent order of odd fellows, improved order of red men, sons of temperance, good templars and knights of pythias, and all other assoc'a- tions, societies and orders of like character. VII. For gymnastic purposes. VIII. For railroads and other works of internal improve- ment. IX. For banks of issue and circulation, and of discount and deposit, and for savings institutions. X. And for any other purpose or business useful to the public for which a firm or copartnership may be lawfullv formed in this State. Code, ch. 54, sec. 2. Ante, pages 6, 7, 56 and 57. FORMATION OF CORPORATIONS FOR CERTAIN PUR- POSES PROHIBITED. But this chapter shall not be construed to authorize the incorporation of. any church or any religious denomination, or of any company the object or one of the objects of which is to purchase lands and re-sell the same for profit. Code, ch. 54, sec. 3. Ante, page 111, note to art. 6, Const. Ante, pages 7, S and 9. Const., art. 6. sec. 47. Corporations for religious or charitable purposes considered and defined. When such corporations may take lauds by bequests. Wilson vs. Perry, 39 W. Va., 169; Pack vs. Shanklin, 43 W. Va., 304; University vs. Tucker, 31 W. va., 621; Society vs. Pendleton, 7 W. Va., 79; Powell vs. Dawson, See'y of State, 45 W. Va., (in print.) CAPITAL STOCK. The capital stock shall be divided into shares, as prescrib- ed by the fifteenth section of chapter fifty-three of the code. Code, ch. 54, sec. 4. Ante, page 11. LIMITATION OF CAPITAL STOCK The capital of a corporation formed under this chapter, except for railroad or canal purposes, shall not exceed five millions of dollars. Code, ch. 54, sec. 5. 150 WEST VIRGINIA CORPORATIONS. Aiilc, uaKo 11. Coilc, I'll, r.4, sec. 77. MODE OP INCORPORATION. Any nuiiiber of persons, not less than five, desiring to be- come a corportitioii for any jjurpose or business designated in the second section, except for railroad purposes, shall sigh an agreement to the following effect: "The undersign- ed agree to become a corporation by the name of (here in- sert the name by which it is intended the corporation shall be known) for the purpose of (here describe fully and partic- ularly the purpose for which the corporation is to be form- ed, and the kind of business intended to be carried on by it,) which corporation shall kee]) its principal office or place of business at , in the county of . and is to expire on the day of . And for the purpose of forming said corporation, we have subscribed the snui of dollars to the capital thereof, and have paid in on said subscrip tion the sum of dollars; and desire the privilege of in- creasing the said capital by the sale of additional shares from time to time, to dollars in all. The capital so subscrib- ed is divided into shares of dollars each, which are held by the undersigned, respectively, as follows, that is to say: By (heie insert the name of each incorporator, with his res idence and the number of shares held by him.) And the cap ital to be hereafter sold is to be divided into shares of the like amount. Civen under our hands this day of ." Code, ch. 54, sec. 6. Ante, cha]). II. Oil Co. vs. Raurh, ."'W. Vii.. 79. (ireenbrier Co. vs. Rniles. S7 W. Va., 7.S8. TEN PER CENT. OF STOCK MUST BE PAID IX. No person shall be included as a corporatoi' in any- such agrccnucnt, by reason of any stock subscribed for by him, unless he has in good faith i)aid to the ])crson who may have been ap]»ointed or agreed upon to receiv(> the same for th;^ intended corporation, at least ten per cent, of the i)ar value of the said stock. Code, ch. .^4, sec. 7. Code. ell. r);{.see. li.'i. (Jrociiliriei- Co. vs. Itodcs, R7 W. Vn., 738. HOW A(!KEEMENT MUST BE ACKNOWLEDGED. The agreement shall be acknowledged by the several cor WEST VIRGINIA COEPORATIONS. 151 porators before a justice, iiotaiy or judge; and such acknowl edgement shall be certified by the officers before whom they are made. The affidavits of at least two of the corporators named in the agreement shall be annexed thereto, to the ef- fect that the amount therein stated to have been paid on the capital has been in good faith paid in, for the purposes and business of the intended corporation, without any intention or understanding that the same shall be withdrawn there- from before the expiration or dissolution of the corporation. Code, ch. 54, sec. 8. Form of certificate of acijnowledgmeut and affldavit, page 12. Acknowiedgment by each incorporator is necessary. Greenbrier Co. vs. Rodes 37 W. Va., 740-1. CERTIFICATE OF THE SECRTEARY OF STATE. The agreement, with the acknowledgments and affidavits aforesaid, shall be delivered to the secretary of state, who shall thereupon issue to the said corporators his certificate, under the great seal of the state, to the fallowing effect: "I, A B , secretary of the State of West Virginia, hereby certify that an agreement duly acknowledged and accompanied by the proper affidavits, has been this day de- livered to me, which agreement is in the words and figures following: (here insert.) Wherefore, the corporators named in the said agreement, and who have signed the same, and thir successors and assigns, are hereby declared to be from this date until the day of a corporation by the name and for the purposes set forth in the said agreement, (liven under my hand and the great seal of the said state at , this day of ." Code, ch. 54, sec. 9. Ante, page 22, note. 37 W. Va., 740; ante, pages 82-3-4; Cliap II. EFFECT OF CERTIFICATE OF INCORPORATION- MANNER OF ADOPTING NEW AGREEMENT. When a certificate of incorporation shall be issued by the secretary of state, pursuant to this chapter, the corporators named in the agreement recited therein, and who have sign- ed the same, and their successors and assigns, shall, from the date of the said certificate until the time designated in the said agreement for the expiration thereof, unless soon- er dissolved according to law, be a corporation by the name and for the purposes and business therein specified. And the said certificate of incorporation shall be receive!! as ev- idence of the existence of the corporation as aforesaid. Any corporation organized for any one or more of the purposes mentioned in the first and tenth sub-divisions of the second 152 WEST VIRGINIA CORPORATIONS. section of this chapter maj', bj' resolution, concurred in by a majority of all the stockholders, representing a majority of the capital stock, and entered upon its records, at a meet- ing especially called for the purpose, of which all the stock- holders shall have had notice, agree to and adopt a new agreement, so as to enlarge or diminish the objects and pur- pose, within the limits of said two sub-divisions of section two, for which such corporation may have been organized; or so as to increase or diminish the number of its shares of capital stock by consolidating or sub-dividing the same, but so that in no case shall any fractional share or shares of un- equal value be created. A copy of such resolution contain- ing such new agreement, when acknowledged by such may- jority of the stockholders in the manner prescribed by the eighth section of this chapter, shall be delivered to the sec retary of state, who shall thereupon issue his certificate in the form prescribed in the ninth section of this chapter, so far as the said form may be found applicable; and from thence such corporation shall be subject to such new agree- ment and certificate. And all the provisions of this chapter shall apply to such new certificates and to the corporations receiving the same in like manner as to original agreements and certificates of incorporation, except as herein otherwise provided. Code, ch. 54, sec. 10. Ante, page 22, note; 37 W. Va., 740-1; ante, page 85; ante, chap. 8; ante. pages 16 and 17. DURATION OF CORPORATION. No corporation formed under this chapter, except life in- surance companies and such as are formed exclusively for the purposes mentioned in the fourth, fifth, sixth .seventh, eighth and ninth clauses of the second section, shall contin- ue for more than fifty years from the date of its certificate of incorporation. Any corporation heretofore formed un- der the general laws of this State and now in existence, may extend the time of its continuance beyond that limited in the agreement for its formation, for such additional time, not exceeding fifty years, as it may desire, in the manner following; The stockholders of such corporation may, at a general or special meeting, adopt a resolution to extend the time of the continuance of such corporation, for such time, not exceeding fifty years, as mny be decided upon by said stockholders, a majority of the stoclv of such (•omj)any be- ing represented by the holders thereof, in person or by proxy, and votiTig for such resolution; but notice of the iii tention to offer such resolution must have been given T)t ad- WEST VIRGINIA CORPORATIONS. 153 vcrtisemeiit, published once a week for four successive weeks, in some newspaper of general circulation printed in riiis state. When such resolutions shall have been adopted b.v any corporation, the president thereof shall, uuder his siiinature and the common seal of the company, certify the resolution to the secretii/y of state, and the S"cretary, un- der iiis hand and the great seal of this State, ahall issue to lilt (Oiiqiany at-Ctiting su'-h resolution a certificate reciting the resolution ai:d declaring the proposed extension to be authorized l;y l:iw. which certificate shall be received iu all courts and places as ev lUnce of the extension of the contin- uance of such ( luporation, and of the author'^rv i'oi' ilie same. The provisions of sections seventeen, eighteen, nineteen and twenty, of this chapter shall apply to such certificate. Code, ch. 54, sec. 11. Ante, chap. XVII, page 105. EXISTING CORPORATIONS MAY ACCEPT THIS CHAPTER. The stockholders of any incorporated joint stock company now existing in this State (banks of circulation and compa- nies incorporated for the construction of works of internal improvement excepted) may,_by resolution in general meet- ing, accept the provisions of this and the preceding chap- ter of the code. And thereupon a copy of the resolution shall be filed with the secretary of state, together with a statement showing the name by which the corporation had theretofore been known, and the name, whether it be the same or a different one, by which it is intended it should be known thereafter; the business to be carried on; the place where such business is to be carried on, and where the prin- cipal office is to be kept; the time when the corporation is to expire, subject to the limitation contained in the eleventh section of this chapter; the amount of the whole capital; the amount of the capital paid in; the amount to which H is intended to reserve the privilege of increasing th« same, and the par value of each share; which copy and statement shall be certified by the president under his hand and the common seal of the corporation. And the secretary of state shall thereupon issue a certificate of incorporation under his hand and the great seal of the State, reciting the said resolution and statement, and declaring the said corporation to be thereafter, until the time mentioned in the said state- ment for the expiration thereof, a corporation by the name which it is intended it should thereafter bear, and for the 154 WEST VIRGINIA OORPORATIONvS. purpose and business therein set forth, unles sooner dissolv- ed according to law. Certificates of incorporation issued pur- suant to this section shall be received as evidence of the ex- istence of corporations as therein declared; and the said corporations shall no longer be under their former charters, but shall have all the rights, privileges and powers conferr- ed by this and the fifty-second and fifty-third chaptei's of the code, and shall be subject to the liabilities, restrictions and regulations therein prescribed. Code, ch. 54, sec. 12. Code, ch. 54. sees, 13 and 14. MAY CHANGE THE PAR VALUE OF THE STOCK. A corporation, at the time when it accepts the provisions of this chapter, may change the par value of its shares, as the stockholders thereof in general meeting, or the board of directors under authority given them by the stockhold- ers may determine; in which case the statement to be filed as aforesaid with the secretary of state shall show the pro- l)osed change, and the same shall have effect from the date of the certificate of incorporation. Code, ch. 54, sec. 13. TERM OF OFFICE OF THE FIRST DIRECTORS. When a certificate of incorporation is issued pursuant to the twelfth section, the board of directors and officers then in office may continue to act in their respective capacities until the next annual meeting of the stockholders, and thereafter until their successors have been chosen and qual- ified, or until a general n>eeting, called pursuant to the for- ty-first section of chapter fifty -three of the code, shall elect a new board or make such order in the matter as they deem right. Code, ch. 54, sec. 14. FIRST MEETING OF STOCKHOLDERS. When a certificate of incorporivtion is issued under the ninth section, the corporators named in the agreement recit ed therein, or a majority of them, shall a])point the time and place for holding a general meeting of the stockhold ers to elect a board of directors, make by-laws, and trans- act any other business which may lawfully be done by the said stockholders in genei'al meeting. The time appointed for the meeting shall not be less than twenty-one nor more than ninety days from the date of the certificate, and at least two weeks' notice of such meeting shall be given hy advertisement in Ihe manner prescribed in the forty-first WEST VIRGINIA CORPORATIONS. 155 sfection of chapter fifty-three of the code. Code, ch. 54, sec. 15. Aute, ch. III. nngp 19. Ante, ch. V, pages 39 et seq. See note on paj^e '22. SALE OF ADDITIONAL STOCK BEFORE ORGANIZA- TION. After a certificate of incorporation has been issued pursii ant to the ninth section, and before a board of directors have been elected or qualified, additional shares of the capital stock may be disposed of, so that the maximum capital be not exceeded, in such manner, on such terms, at such times and places, and under the superintendence of such persons as the corporators named in the agreement recited in such certificate, or those holding a majority of the shares, ma> appoint, but subject to the proivisions of the twenty-third and the four fallowing sections of chajjter fifty-three of the code, ode, ch. 54, sec. 16. Code.- ch. 53. sec. 23. Ante, pages 16 and 17. Oreenbrier Co. vs. Ochletree, 44 W. Va., 626. See notes on page 50. RECORDING PUBLICATION AND OFFICIAL COPIES OF CERTIFICATES OF INCORPORATION. The secretary of state shall carefully preserve in his of- fice the agreements, resolutions and statements mentioned in the sixth and twelfth sections, and cause to be accurately recorded in a well bound book, to be kept in his ofQce, all certificates of incorporation, certificates of increase or re- duction of capital stock, certificates of change of principal office, certificates of change of name, which he shall issue under this or the preceding chapter of this code.- If he omit to record any such certificate, or if any error be discovered in the record thereof, he shall forfeit for every such neglect or default not less than ten nor more than fifty dollars. At the end of each regular session of the legislature he shall deliver to the clerk of the house of delegates an accurate ab- stract of every certificate of incorporation not before report- ed, which abstract shall show the name of the corporation, the purpose for which the corporation is formed, and the kind of business carried on, its principal office or place of business, when issued and when to expire, the name and residence of each incorporator, the amount of capital stock authorized, the amount subscribed and the amount paid in, 156 WEvST VIRGINIA CORPORATIONS. and the par value of each share; and it shall be the duty of the clerk to cause said abstracts to be printed and bound with the acts of the session. If the said secretary or clerk fail therein, the party so in default shall forfeit not less than one nor more than fifty dollars. Code, ch. 54, sec. 17. Ante, ch. X, page 68. Will the court take judicial notice of the existence of corporations b.y virtue of this section? B. A. Imp't. Co. vs. Stan. F. Ins. Co., ?A W. Va„ 770, SECRETARY'S FEE. The secretary may charge a fee of four dollars for every Buch certificate issued by him; and for recording the origi- nal, or issuing a certified copy, a fee of fifty cents, or in lien (hereof fifteen cents for every hundred words; vehich fees shall be paid at the time the service is rendered by the per- sonson at whose instance it was done. Code, ch. 54, sec. 18. See ante, page 14. The six dollars now charged is made up of the follow- ing itenis: For certificate, $4.00; recording, 50c.; filing, postage etc., 50c.; seal, .$1.00; total, $6.00. CERTIFIED COPY OF CERTIFICATE EQUIVALENT AS EVIDENCE TO IJHE ORIGINAL. The secretary may at any time issue a copy of such certifi- cate, and such copy certified under his hand, and also the copy printed with the acts of the legislature, shall as evi- dence be equivalent to the original. Code, ch. 54, sec. 19. CERTIFICATE SHALL BE RECORDED IN COUNTY CLERK'S OFFICE. The company shall cause the said certificate, within three months after it has been issued, or a copy thereof certified as aforesaid, to be delivered for record to the clerk of the county court in which the principal office or place of busi ness of such company is kept, and the clerk of the county court shall record the same in his oftice. If such company fail therein, it shall be fined not exceeding one thousand dol- lars. Code, ch. 54, sec. 20. f Ante, paes 19 and 63. Recording by railroad corporation Is not condition precedent to right to condemn. li. R. Co. vs. Oil Co., 35 W. Va., 206. INCREASE OR REDUCTION OF THE NUMBER OF SHARES OR THE PAR VALUE. Any corporation formed, or which may hereafter be form- WEST VIRGINIA CORPQRATIONS. 157 ed, or which has accepted or may accept the provisions of this chapter, may, by resolution at a general or special meet- ing of the stockholders thereof, make such increase or re- duction in the number of shares of its capital stock, or the par value of each share, as may be decided upon by said stockholders, a majority of the stock of such company being represented by the holders thereof, and such holders being present either in person or by proxy, and voting for such increase or reduction. Provided, That notice be given by ad- vertisement, published four successive weeks, in some news- paper of general circulation published in this State, of the intention to offer such resolution. Code, ch. 54, sec. 21. See ante, chapter IX. When such increase or reduction shall have been made by any such company, the president thereof shall, under his sig- nature and the common seal of the company, certify the res- olution to the secretary of state ; and the secretary of state, under his hand and the great seal of this State, shall issue, to the compay so making such increase or reduction, a cer- tificate reciting the resolution and declaring the proposed increase or reduction to be authorized by law, which certifi- cate shall be received in all courts and places as evidence of the change in the number or par value of the shares of the capital stock of such company, and of the authorily to increase or reduce (he same. Ooiio, ch. 54, sec. :'/'2. Ante, cliai). IX. MEETINGS AND PRINCIPAL OFFICE. The stockholders or directors of any corporation formed under or accepting the provisions of this chapter, may hold meetings for the transaction of the lawful business of the corporation, including the first general meeting for purpos- es of organization, out of this State, and may keep their principal office in any state or territory of the United States, or in the District of Columbia. But no meeting shall be held out of this State without the concurrence of persons holding a majority in value of the stock of the company, nor without reasonable notice. Code, ch. 54, sec. 23. Ante, pages 20, 21 ana 22. Ante, chap. X. Code, ch. 54, sec. 80, as to banks. POWER OF ATTORNEY TO ACCEPT SERVICE OF PROCESS. Every such corporation having its principal ofQce or place 158 WEST VIRGINIA CORPORATIONS. of business in this State shall, within thirty days after or- ganization, by power of attorney diily executed, appoint some person residing- in the county in this State wherein its business is conducted, to accept service on behalf of said corporation, and upon whom service may be had of any jjro- cess or notice, and to make such return for and on behalf of said corporation to the assessor of the county or district wherein its business is carried on, as is required by the for- ty-first section of the twenty-ninth chapter of the code. Ev ery such corporation having its principal office or place of business outside this State shall, within thirty days after organizing, by power of attorney duly executed, appoint some person residing in this State to accept service on be- half of said corporation, and upon whom service may be had of any process or notice, and to make return of its prop- erty in this State for taxation as aforesaid. The said power of attorney shall be recorded in the office of the clerk of the county court of the county in which the attorney resides, and tiled and recorded in the office of the secretary of state, and the admission to record of such pow- er of attorney shall be deemed evidence of compliance with the requirements of this section. Corporations heretofore organized may comply with said requirements at any time within three months after the pas- sage of this act. Any corporation failing to comply with said requirements within six months after the passage of this act shall forfeit not less than two hundred nor more than five hundred dollars, and shall, moreover, during the continuance of such failure, be deemed a non-resident of this State; and its property, real and jjersonal, shall be liable to attachment in like manner as the pi'operty of non-resident defendants; any corporation failing so to comply within twelve months after the passage of this act shall, by reason of such failure, forfeit its charter to the State, and the pro- visions of section eight, chapter twenty, acts one thousand eight hundred and eighty-five, relative to notice and publi- cation, shall apply thereto. Code, ch. r)4, sec. 24. Aiit(.'. p.iijo 4S. note. Ante, Ph. VII, iintl cli. XIV, p:im's Si;, s:!, :\2 :\m\ OS. Wiiril vs. rjlinilicr Co., IK) W. \'.l,. 4:t. Jloorc vs. Si-lio|i|>crt, •_'2 W. Xn.. 2>i'2. SALE OF PROI'ERTV AND WORKS OF (H^RPORA- TIONS OTIIEP TH.VN RAILROAl^ COMPANIES. Whene\'er there has been since the fii'st day of February, one thousand eight hundred and seventy-seven, or shall here- after be, a sale of the works and property of any corpora WEST VIRGINIA CORPORATIONS. 150 tion, other than a railroad corporation, under a decree, mort gage or trust deed, and there be a conveyance to the pur- cliaser of the same, said purchaser or purchasers shall be come a corporation in the same manner and be entitled to the franchises of the old corporation in the same manner as is provided for railroad corporations in such cases in section seventy-two of this chapter, and the old corporation shall be ipso facto dissolved. But the purchaser at said salr shall not obtain the works constructed, or property acquir ed, after the making of the said deed of trust or mortgage.. Code, ch. 54, sec. 82. Acts 1875, ch. 119; acts 1877, ch. 23; acts 1881, ch. 17. INCORPORATION OF BUILDING AND LOAN ASSOCIATIONS. NUMBER OF INCORPORATORS AND RIGHTS AND POWERS. Any nurabci' of persons, not less than nine, may form a building and loan association for the purpose of encourag ing industry, frugality and home building, and savin;^- among its members. Building and loan associations formed under this chapter shall have the right and power of loan- ing to its stockholders thereof, the moneys accumulated from time to time, as well as the right and power to pur- chase laud or erect houses, and sell, convey, lease or mort- gage the same at their pleasure, to their stockholders, or others for the benefit of their stockholders. Such associa- tions may acquire, liold, convey and encumber all such prop- erty, real and personal, as may be taken as security, or may be otherwise transferred to it in the due course of its busi- ness, and may secuie the i)aynient of loans and the perform- ance of the other conditions upon which loans are to be made, or the ]>ayme]it of the pur(iiase money for any prop- erty sold, by taking personal security, or by a mortgage or deed of trust upon real or personal i>roperty, or by a trans- fer or pledge of its stock. Code, ch. .^4, s(h\ 2."i. The by-Kiws must not be misleading to stookholclers. They beeonie ii part cif the contract after acloption anrt the association is bound by liiem. They furnish the borrowers the obligation imiiosed upon them and the duties of the association, .\rcher ys. B. & L. Asso., 45 W. Vn., (in print.* LOANS AND PREMIU^MS. F]very such iissociation shall have the power to pro^■ide by its by-liiws for selling to the stockholders who shall bid the highest lU'ciuium therefor, the money in the treasury, WEST VIRGINIA CORPORATIONS. 161. 01' in default of bidders at or above a minimum premium, may award to a member the value of any shares held by him less such minimum premium; the minimum premium, and the mode of making the award to be fixed by the by-laws. Or such association may charge and receive the premium bid by a stockholder for the priority of right to such loans, in periodical instalments; but the by-laws of every associa- tion shall set forth whether the premium bid for the prior right to a loan shall be deducted therefrom in advance, or be paid in periodical installments. But whether the premi- um be deducted from the loan, or paid in periodical install- ments, the transaction shall not be deemed usurious, al- though any and all the dues, fines, premiums and interest shall exceed the legal rate of interest on the amount of mon- ey received by the stockholders. Code, ch. 54, sec. 26. Chap. 52. see. 22. This exemction from the general usury law is constitutional. Archer vs. B. & L. Asso., 30 S. E., 241, 45 W. Va., in print. DUES, INTEREST AND FINES. Every such association "may levy, assess and collect from its stockholders, periodical dues upon every share of its stock; the amount of such dues to be fixed by the by-laws, but no periodical payment to exceed two dollars upon each share; and said stock may be paid off and retired as the by- laws shall direct, and may levy, assess and collect from members to whom loans have been made, interest upon the par value of the shares so loaned; and may levy, assess and collect fines for the non-payment of periodical dues, or for failure to comply with or perform any other obligation or duty to the association. The amount of the respective fines shall be fixed by the by-laws, and they shall be imposed un der regulations to be made by the by-laws; but such fines shall be uniform, and where they are imposed for default in the payment of dues, shall be in proportion to the amount of the dues for the failure to pay which they are imposed; but no member shall be fined more than once for the same default. Code, ch. 54, sec. 27. PATENT OF LOANS WITHDRAWAL AND DEFAUL1' OF STOCKHOLDERS. A borrower from such association may repay the loan at any time; and in case of the repayment thereof before the maturity of the shares pledged for said loan, there shall be refunded to such borrower, in case the premium shall have been deducted in advance, such proportions of the premium 162 WEST VIRGINIA CORPORATIONS. bid as the by-laws may determine; but the borrower shall receiye the withdrawing value of the shares pledged for said loan, and the shares shall revert back to the associa- tion. Stockholders withdrawing voluntarily shall receive such proportions of the profits of the association, or such rate of interest as may be prescribed by the by-laws. In case of default of a borrower to pay dues, interest or premi- um, for the period of three months, payment of the same, together with the full principal of the loan, may be enforc ed by proceeding on the securities according to law; and the money so received shall be paid into the treasury of the association; and if the moneys so recovered shall exceed the amount it would have required to repay the loan under the first part of this section, together with all the expenses incurred by the association, such excess shall be paid to such borrower. Code, ch. 54, sec. 28. BL-LAWS AND ARTICLES OF GOVERNMENT. Every such association shall adopt by-laws, which shall embrace all the provisions of the four preceding sections; and such further provisions for its government and the management of its business, not inconsistent with these sections, as it may deem proper. Code, ch. 54, sec. 29. By-laws part of contract with boiTOwers and bind tlie association. Arclier vs. B. & L. Asso., 30 S. B., 241, 45 W. Va.: Savage vs. B. & L. ., 4S W. Vii., (in Drint). INCORPORATION AND REGULATION OF RAILROAD COMPANIES. See generally acts 1872-3, eli. 88 and 225; acts 1877, ch. 80; 1881, ch. 17 and 1882, ch. 97. NUMBER OF INCOKPOEATOES. Any number of persons, not less than five, may become a corporation for the purpo)se of constructing and operating a railroad in this State, as hereinafter provided. Code, ch. 54, sec. 31. Acts I8S1, ch. 17. , FOEM OF AETIOLES OF INCOEPORATION The persons desiring to form such corporation shall adopt, sign and acknowledge for record, articles of incor- poration, in form or effect, as follows : "We, whose names are hereto subscribed, desiring to be- come a corporation for the purpose of constructing and op- orating a railroad in the State of West Virginia, do hereby adopt these articles of incorporation for that purpose: First. The name of the corporation shall be the company. Second. The railroad which this corporation proposes to build will commence at or near , in the county of , and run thence by the most practicable rauta to a point at or near ■■ , in the county of . Third. The principal business oflice of this corporation will be at , in the county (or city) of , in the State of . Fourth, This corporation shall continue perpetually. Fifth. The capital stock of this company shall be dollars, divided into shares of dollars each. 104 WEST VIRGINIA CORPORATIONS. Sixth. The names and i^laces of residence of the per- sons forming this corporation, and the number of shares of stocli subscribed by each, are as follows: A B , county (or city) of , state of , shares, and so on, giving the names and residence of all the parties and the number of shares of stock subscribed by each. Code, ch. 54, sec. 32. Acts 1881, ch. 17. Acts 1882, ch. 97. RECORD OF ARTICLES. When said articles are adopted and signed, as prescribed in the next preceding section, and acknowledged by the par- ties signing the same, in the same manner as deeds are re- quired by law to be acknowledged, they shall be filed and recorded in the office of the secretary of state, and be pre- served therein. Code, ch. 54, sec. 33. Acts ISBl, ch. 17. Acts 1882, ch. 07. Charter issued when agreement not acknowledged properly is colorable only. Greenbrier E.x. Co. vs. Squires, 40 W. Va., 308; same vs. Rodes, 37 W. Vn . 738., CERTIFICATE OF SECRETARY OF STATE. When such articles of incorporation shall have been filed and recorded as aforesaid, the secretary of state shall issue and deliver to the said corporators his certificate under the great seal of the State, in form or effect as follows : "I, A — r! . secretary of state of the State of West Virginia, do hereby certify that articles of incorporation, du]y signed and acknowledged, have this day been recorded in my office, which articles of incorporation aie in the words and'figures following: 'We, etc., (here insert the articles of incorpora tion in full.) Wherefore, the corporators named iu said arti- cles of incorporation, and who have signed the same, and their successors and assigns, are hereby declared to be a corporation by the name, for the purpos(> and for the length of time set forth in said articles of incorporation. Given under my hand and the great seal of the said state, at the seat of government thereof, this day of ." When such certificate shall be issued and delivered as aforesaid, the corporators named in the articles of incorporation re- cited therein, and who have signed the same, and their suc- cessors and assigns, shall from the dale of said certificate become and be a body coi-poi'ate as therein stated, and, as such, authorized to proceed to carry into effect the objects WEST VIRGINIA CORPORATIONS. 105 set forth in said articles of incorporation in accordance with the provisions of this chapter. As such corporation they shall have perpetual succession, and in their corporate name may sue and be sued, plead and be impleaded. Every such corporation shall have and use a common seal, which it may alter at pleasure. It may declare the interest of its stockholders transferable, and shall make and establish ail such by-laws, rules and regulations, not inconsistent with the laws of the United States or of this State, as it may deem necessary for the management of its affairs and the transaction of its business. Any such railroad corporation heretofore incorporated under the provisions of this chap- ter, as amended- and re-enacted by chapter seventeen of the acts of one thousand eight hundred and eighty-one, may, if it desire to do so, obtain the certificate hereinbefore men- tioned, which may bear the same date it would have borne if issued at the proper time, but no other additional force or effect shall be conferred on said coproration by such certi- ficate than it would have had if such certificate had not been issued. And any such railroad corporation may, in the location of its railroad, pass out of this state into any other state, with the assent of such state, and back again into the state, as often as may be found necessary in making such location. Code, ch. 54, sec. 34. Acts 1881, ch. 17. Acts 1882, ch. 97. Douglass vs. K. & M. Ry. Co., 44 W. Va., 267; Ey. Co., vs, Oil Co, 35 W. Va., 209; Richardson vs. Graham, 45 W. Va., in ni-int. BY-LAWS, WHERE RECORDED. A copy of the by-laws of such corporation when formed and adppted by the stockholders, duly certified, shall be re- corded as provided for the recording of the articles of as- sociation in section thirty-three of this chapter. And all amendments and additions thereto, duly certified, shall al- so be recorded as herein provided, within ninety days after the adoption thereof. Code, ch. 54, sec. 35. Acts 1881, ch. 17. FIRST MEETING OP STOCKHOLDERS. Every railroad company, incorporated under the provis ions of this chapter, shall hold its first meeting for organiz- ation and such other proceedings as might be had at an an- nual meeting, at such time and place as the corporators thereof, or a majority of them, may designate, of which tim-j 166 WEST VIRGINIA CORPORATIONS. and place a notice shall be published, at least once in each week for four successive weeks, in some newspaper of gen- eral circulation published near the place oV such meeting, and in two other such newspepers published in the vicinity of the proposed railroad, in this state, for a like period. The stockholders of such corporation, or such of them as are the owners of a majority of the shares of its capital stock subscribed up to that date shall meet at the time and placi* mentioned in said notice, and elect a temporary board of di- rectors, consisting of such number as they may see fit, who shall hold their office until their successors are elected, as hereinafter provided. But before any sucli meeting is held, the said corporators shall open books of subscription, at such places and under the direction of such persons as a ma- jority of them may direct, for the purpose of receiving sub- scriptions to the capital stock of such company; and at least one-twentieth of the said stock, including the shares subscribed by the corporators, must have been subscribed for, and ten per cent, actually and in good faith paid in on each share of stock so subscribed for. A majority of the directors elected at such meeting shall constitute a quorum for the transaction of business, and they shall, as soon as practicable after their election, meet and organize by the appointment (from their own body) of a president and such other officers as they may deem necessary, who shall hold their offices until the election of a board of directors under the provision of section thirty-eight of this chapter. The stockholders shall, at the meeting herein provided for, ap- point the time and place at which the first annual meeting of the stockholders of such corporation shall be held, and designate the place at which the principal office or place of business shall be kept until otherwise ordered, and may do and perform all other business necessary and proper to be done, under the law, at a stockholders' meeting. Code, ch. 34, sec. 36. Acts 1881, ch. 17. Acts 1882, ch. 97. Ante, page 22, nolo. APPOINTMENT OF A(5ENT TO ACCEPT hERVICE OF PROCESS. Every such corporation shall, within one hundred davs after organizing, by power of attorney duly executed, ap- point some person residing in the county in this State wherein it has the office mentioned in the next preceding section, to acc(>pt service on behalf of said corporation of any process or notice; the said power of attorney shall be WEST VIRGINIA CORPORATIONS. 167 field and recorded in the office of the clerk of the county court of the county in which the attorney resides, and the admission to record of such power of attorney shall be deemed evidence of a compliance with the requirements of this section ; and whether such agent accept the agency or not, the service of process upon such person so appointed shall be legal and binding on the corporation. Any such corporation failing to comply with such requirements shall, during the continuance of such failure, forfeit not less than five hundred nor more than one thousand dollars for every six months that such failure continues; and its property, real and personal, shall be liable to attachment in like man ner as the property of non-resident defendants. Code, ch. 54„ sec. 37. Acts 1881, ch. 17. Bottling Co. vs. Bachman, 38 W. Va., 84; Savage vs. B. & L. Asso., 45 W. Va., (in print). ELECTION OF DIRECTORS, STATEMENTS, ETC. At the first annual meeting of the stockholders of such corporation, held In pursuance of the thirty-sixth section of this chapter and at every annual meeting of said stock- holders thereafter held, a board of directors thereof shall be elected consisting of not less than five nor more than thirteen of the stockholders of said corporation a majority of whom, unless otherwise provided in the by-laws, shall constitute a quorum for the transaction of business; and all the corporate powers of such corporation shall be vest- ed in and exercised by said board of directors. If for any cause an election for directors shall not be made at the prop- er time, such election may be made at a special meeting of the stockholders called in pursuance of the next section. The number of such directors, the manner of their election and removal from offlce, and the mode of filling vacancies in the board, shall be prescribed by the by-laws, and shall not be changed, except at the annual meeting of the stock- holders. An at every such annual meeting of the stockhold- ers of such corporation, after the first, it shall be the duty of the president and directors to exhibit a full, distinct and accurate statement of the affairs of the said corporation; and at any meeting of the stockholders, a majority of those pres- ent in person or by proxy, may require similar statements by the president and directors, whose duty it shall be to fur- nish such statements, when required, in manner aforesaid; and at all general meetings of the stockholders a majority in value of the stock of any corporation may fix the rates of interest which shall be paid by the corporation for loans 168 WEST VIRGINIA COKPOEATIONS. I'or the construction of such railroad and its appendages, and the amount of such loans. All stockholders shall, at reasonable hours, have access to and may examine all the books, records and papers of such corporation. Code, ch. 54, sec. 38. Acts 1881, ch. 17. Acts 1882, ch. 97. Cross vs. Ey. Co., 35 W. Va., 174; Same vs. Same, 37 W. Va., 342. Const., art. XI, sec. 4. Ante, page 108; Code, ch. 53, sec. 49. SPECIAL MEETING OF STOCKHOLDERS A special meeting of the stockholders of such corporation may be called at any time during the interval between the annual meetings, by a majority of the directors, or by the stockholders owning not less than one-fourth of the stock, by giving thirty days public notice of the time and place of such meeting in some newspaper of general circulation pub- lished near the principal office or place of business of the corporation, and in at least two other newspapers published in the vicinity of the line of the proposed railroad in this State. Provided, That if at any such special meeting so called, a majority in value of the stock equal to two-thirds of the stock of such corporation shall not be represented in person or by proxy such meeting shall be adjourned from day to day, not exceeding ten days without transacting any business; and if, within ten days, two-thirds of the value of such stock shall not be represented at such meeting, then the meeting shall be adjourned, and a new call may be giv- en and notified as herein provided. Code, ch. 54, sec. 39. Acts 1881, ch. 17. REGULAR MEETING; PRINCIPAL OFFICE. The meeting of the stockholders of such corporation, and of the board of directors thereof shall be held at such place, in or out of this State, and the annual meeting of said stock- holders shall be held at such time as the stockhoJders shall at an annual meeting prescribe; but in case no time for such annual meeting be so prescribed, it shall be held on the second Wednesday in January in such year. The prin- cipal office or place of business of such corporation shall be at such place, in or out oi this State, as the stockholders thereof at an annual meeting may fix and determine. But every such corporation shall have and maintain an office or place in this State for the transaction of its business, where an exhibit of the transfers of all its stocks shall be kept, WEST VIRGINIA CORPORATIONS. 169 and in which shall be kept, for the inspection of any officer or stockholder, books wherein shall be recorded the amount of capital stock subscribed, and by whom ; the names of the owners of its stock; the number of shares held by each per- son, and the amounts owned by them respectively; the amount of stock paid in, and by whom; the transfers of said stock; the amount of its assets and liabilities, and the names and places of residence of all its officers. Code, ch. 54, sec. 40. Acts 1881, ch. 17. Acts 1882, ch. 97. Ante, chap. X. See also note to sec. 23, ch. 54, code, supra. Ballard vs. C. & O. Ky. Co., 42 W. Va., 1. FAILURE TO ELECT DIRECTORS. Such corporation shall not be dissolved by reason of afail- ure to elect directors on the day designated by the by-laws, if within six months thereafter such election be made as provided for in the thirty-eighth section of this chapter. Code, ch. 54, sec. 41. Acts 1881, ch. 17. Ante, ch. XIV. OFFICERS. There shall be a president of such corporation, who shall be chosen by and from the board of directors, and such oth- er subordinate officers as such corporation, by its by-laws, may designate, who may be elected or appointed, and shall perform such duties and be required to give such security for the faithful performance thereof as such corporation, by its by-laws, shall require: Provided, That it shall require -i majority of the directors to elect or appoint any officer and fix his compensation. Code, ch. 54, sec. 42. Acts 1881, ch. 17. PAYMENT OP STOCK. The directors of such corporation may require the sub- scribers to the capital stock thereof, to pay the amount by them respectively subscribed, in such manner and in such installments as they may deem proper. If any stockholder shall neglect to pay any installment, as required by a reso- lution or order of such board of directors, the said board shall be authorized to declare such stock, and all previous payments thereon forfeited for the use of the corporation; 170 WEST VIRGINIA CORPORATIONS. and the said board of directors shall not declare such stock so forfeited until they shall have caused a notice, in writing, to be served on such stockholders personally, or deposit ing the same in the poetoffice, properly addressed to the postoflice address of such stockholder, or if he be dead, to his legal representatives, with necessary postage, for its transmittal properly prepaid, stating therein that, in ac cordance with such resolution or order, he is requested to make such payment, at a time and place, and in the manner to be specified in such notice; and that if he fails to make the same in the manner requested, his stock and all previ- ous payments thereon, shall be forfeited for the use of such corporation; and thereafter such corporation, should de- fault of payment be made, may sell the same and issue new certificates of stock therefor: Provided, That the notice as aforesaid shall be personally served or duly deposited, as herein required, at least sixty days previous to the day on which such payment is required to be made. Code, ch. 54, sec. 43. Acts 1881, eh. 17. STOCK OF CORPORATION PERSONAL PROPERTY; TRANSFERS THEREOF, ETC. The stock of every such corporation shall be deemed per- sonal property, and shall be transferable in such manner as may be prescribed in the by-laws of the corporation. But no- shares shall be transferable without the consent of the board of directors until all previous calls thereon shall have been paid. Code, eh. 54, sec. 44, Acts 1881, ch. 17. Acts 1882, ch. 97. CAPITAL STOCK MAY BE INCREASED. If the capital stock of any such corporation be insuiBcient for the purposes for which it was incorporated, the same may be increased at any annual meeting of such stockhold- ers, or at a special meeting thereof called for the purpose by the board of directors. If at any such meeting two- thirds in amount of all the stock of such corporation, rep- resented by the holders thereof in person or by proxy, shall agree to such increase, the same shall be increased to such an amount as said stockholders may deem necessary for the purpose of the corporation. But a notice of the time and place of every such special meeting, and of the purpose for which it was called, must be published at least once in each WEST VIRGINIA CORPORATIONS. 171 week, foi" four successive weeks in some newspaper of gen- eral circulation published in the vicinity of the principal office or place of business of the corporation, and, in like manner for a like period, in at least two other newspapers published in the vicinity of the line of the railroad of such corporation within this State. But no other business shall be transacted at any such special meeting that that for which it was called: Provided, That the powers authorized by this section, and by the eleventh and twelfth clauses of section fifty of this chapter, may be exercised at any meet- ing of stockholders called or assented to in writing by al! the stockholders. Every order or resolution increasing the capital stock of such corporation, shall be recorded as required by section thirty-three of this chapter. Code, ch. 54, sec. 45. Acts 1881, ch. 17. Acts 1882, ch. 97. Ante, page 22, note. LIABILITIES OF EXECUTORS, ETC. No person holding stock in any such corporation as ex ecutor, administrator, guardian or trustee, and no person holding such stock as collateral security shall be personal- ly subject to any liability as stockholder of such corpora- tion, but the person pledging the stock shall be considered as holding the same, and shall be liable as a stockholder accordingly. Code, ch 54, sec. 40. Acts 1881, ch. 17. LIABILITY OF STOCKHOLDERS. Each subscriber to the stock of any railroad corporation formed under this chapter, or any other general law of the State, shall be held individually liable to the creditors there- of for any sum remaining unpaid on the stock subscribed for by him, and no more, for the payment of any debts or liabilities of such corporation. But no person holding any such stock by purchase and assignment from another, or who shall purchase any such stock at a public sale thereof, or who shall receive any such stock on payment of any debt or demand against such corporation, shall be liable to the creditors of such company for any sum whatever, which may be due or unpaid on such stock, or any part thereof due from another. Code, ch 54,sec. 47. Acts 1881, ch. 17. 172 WEST VIRGINIA CORPORATIONS. Acts 1882, ch. 97. Ante, iiaKC 50, bottom note. CONDEMNATION OF REAL ESTATE. If any such corporation shall be unable to agree with the owner of any real estate for the purchase thereof for its corporate purposes, it may have such real estate condemned for such purposes, under the provisions of cnapter forty- two of this code. Any such corporation may take and hold under any grant or ordinance made by a municipal corpora- tion, any interest or right such municipal corporation may have in any street, alley or public ground, and may in ex- change therefor, in whole or in part, dedicate or otherwise secure to public use another street, alley or parcel of ground out of real estate owned by such railroad corporation whether acquired by purchase or condemnation; or under an agreement with such municipal corporation, may con demn land for use as such new street, alley or public ground in the same manner as it may condemn land for it own use. The county court of any county may authorize any tele graph or telephone company organized under this chapter, to erect and maintain telegraph or telephone poles on any land condemned or used as a public road, but not in such way as to obstruct any such road. But this section shall not apply to the National or Cumberland road. Code, ch. 54j sec. 48. Acts 1881, ch. 17. Acts 1882, eh. 97. McConiha vs. Guthrie, 21 W. Va., page 147; R. R. Co. vs. Iron Works, 31 W. Va., 710; Teter vs. R. R. Co., 3S W. Va., 44.3; Bridge Co. vs. Comstocli. 3G W. Va., 263; Bridge Co. vs. Bridge Co., 34 W. Va., 155; Board vs. K. & M. Ry. Co., 44 W. Va., 71; K. U. Co. vs. R. H. Co., 17 W. Va., 813; R n Co. vs. Pack, 6 W. Va., 397; R. R. Co. vs. Blake, 38 W. Va., 718; Ry. Co. vs Iron Co., 41 W. Va., 747. lyiling profile as provided in section 65, eh. 54, code, is not a condition precedent to right to condemn. R. R. Co. vs. Oil Co., 35 W. Va., 206. See notes to chapter 42, Code, post. HOW CORPORATIONS MAY TAKE MATERIAL FROM LAND. Every such corporation may, by its agents and employes, enter upon and take from any land adjacent to its road, wood, earth, gravel, shale or stone, necessary to be used i;; constructing its railroad, and in repairing, altering or enlarging the same as provided in section fourteen of chap- ter fifty-two of this code, and all the provisions of said sec iion shall be applicable (o such proceeding. But if any such tenant, as is mentioned in said section, upon the report of the commissioners being returned to the circuit t^ourt ex- WEST VIRGINIA CORPOEATIONS. 173 cept thereto, and demand that the compensation to which he is entitled by fixed by a jury, the question shall be tried by a jury, as provided in section seventeen of chapter for- ty-two of this code. Code, ch. 54, sec. 49. Acts 1881, ch. 17. - See see. 14, chap. 52, code; chaD. 42, code. This section provides manner of proceedings for taliing stone and material from land adjoining railroad and fully protects rights of owner under sec. 9, art. 3, of const. Teter vs. Ry. Co., 35 W. Va., 436; Ward vs. Ry. Co., 35 W. Va., 481. GENERAL POWERS OP CORPORATIONS. Every corporation formed under this chapter shall, in ad- dition to the powers hereinbefore conferred, have power : First. To cause such examination and survey for its pro posed railroad to be made as may be necessary to the se- lection of the most advantageous route, and for such put"- pose by its officers, agents, engineers or employes, may ea- ter upon the lands or waters of any person or corporation; but subject to responsibility for all damages which may be occasioned thereby. Second. To take and hold such voluntary grants of real estate and other property as shall be made to it, in aid of the construction and use of its railroad, and to sell and convey the same, when no longer required for the uses of such rail road, not incompatible with the terms of the original grant. Third. To jiurchase, hold and use all such real estate and other property as may be necessary for the construe tion and use of its railroad, and the stations and accommo- datiors necessary to accomplish the object of its incorpora- tion, and to sell and convey the same when no longer re- < inred for the use of such railroad. Fourth. To lay out its road, not exceeding one hundred feet in width, and to construct the same; and for the pur- pose of excavations and embankments, to take as much more land as may be necessary for the proper construction, re- pair and security of the railroad; and to cut down any standing trees that may be in danger of falling upon or ob- structing the railroad, making compensation therefor in the manner prescribed by section forty-nine of this chapter. Fifth. To change the grade or location, or general route or termini of its proposed railroad, at any time before the same has been completed, and to adopt a new line, location or route for the same, for the purpose of avoiding annoyance to public travel, or dangerous or difficult curves or grades, or unsafe, impracticable or unsubstantial or expensive, or otherwise undesirable locations, routes, grounds, or founda- tions, or for other reasonable cause. But such change 174 WEST VIRGINIA OORPOEATIONS. sihall only be made when it has been heretofore, or shall be hereafter, authorized by a majority of two-thirds of all the stockholders of such corporation voting thereon, at an annual or special meeting of the stockholders, and it shall operate a release of the right of such corporation to build on the abandoned location, and the order or resolution of the stockholders authorizing such change, shall be certified by the corporation to the secretary of the state, and recorded iis provided in section thirty-three of chapter fifty-four of the code. And all the provisions of said chapter shall ap- ply to such new route, location, grade and line, of said rail- road. Sixth. To contruct its railroad across, along or upon any stream of water, watercourse, street, highway, road, turn- pike or canal, which the route of such railroad shall inter- sect or touch; but such corporation shall restore the stream, watercourse, street, highway, road, turnpike or canal, thus intersected or touched, to its former state, or to such state as not necessarily to have impaired its usefulness, and to keep such crossing in repair. Nothing in this chapter con- tained shall be construed to authorize the erection of any bridge or any other obstruction across or over any stream navigable by steamboats, at the place where any bridge or other obstruction may be proposed or placed, so as to pre- vent the navigation of such stream; nor to authorize the construction of any railroad upon or across any street, in the inhabited portion of the city, or incorporated town or village, without the assent of the corporation of such city, town or village. Provided, That any company running its rjiilroad through or within half a mile of a town or village within this State, containing three hundred or more inhab- itnats, shall establish a station for the accommodation of trade and travel of such town or village: and, provided fur ther, that in case of the construction of said railroad along highways, roads, turnpikes or canals, such railroad shall either first obtain the consent of the lawful authorities hav- ing control or jurisdiction of the same, or condemn the same under the provisions of section foity-eight of this chapter. And, provided further, that nothing in this chapter shall be construed to authorize the incorporation of any railroad <'onii)aiiy, the pur])ose and cllect of which is to connect two other railroads, and thereby abandon as through routes an; city or town of this State, which is the terminus of either or both of said railroads, without the consent of such city or town. Seventh. To cross at grade, or to cross over or under, intersect, join and unite its railroad with any other railroad WEST VIEaiNIA CORPOEATIONS. 175 now built and constructed, or hereafter to be built and con- structed within this state, at any point on its route, and upon the grounds of such other railroad company, with the necessary turnouts, sidings and switches, and other con- veniences in furtherance of the objects of its connections, and every corporation whose railroad is, or shall be here- after intersected by any new railroad, shall unite with the corporation owning such new railroad in forming such in- tersection and connections and grant the facilities afore- said; and if the two corporations cannot agree upon the amount of compensation to be made therefor, or the points and manner of such crossing and connections, the same shall be ascertained and determined in the manner pre- scribed by section forty-eight of this chapter. Eighth. To receive and convey persons and property on its railroad by the power and force of steam or animals, or by any mechanical power. Ninth. To erect and maintain all necessary and conven- ient buildings and stations, fixtures and machinery for such conections, construcftions, transfer, accommodation and use of passengers, freights and business interests, or which may be necessary for the construction or operation and repair of said railroads, its track, roadway and machin- prV- Tenth. Ta regulate the time and manner in which pas sengers and property shall be transported, and the compen- sation to be paid therefor, subject ,nevertheless, to the pro- visions of any law that has been or may be hereafter enact- ed Eleventh. From time to time to borrow such sums of money as may be necessary for coimpleting, finishing, im- proving or operating any such railroad ; and to issue bonds, billg^ of credit or indebtedness and preferred stock, and dis- pose of the same for any amount so borrowed; an'd to mort- gage its corporate prope/ty and franchises, to secure the payment of any debt contracted by such corporation for the purpose aforesaid; but the concurrence of the holders of two-thirds in amount of the stock of such eurporation, to be expressed in the manner and under all the conditions provided in section forty-five, of this chapter, shall be nec- assary to the validity of any such mortgage; and the order or resolution for such mortgage shall be recorded as pro vided in section thirty-five of this chapter; and the direc- tors of such corporation shall be empowered, in pursuance of any such order or resolution, to confer on any holder of any such bond for money, so borrowed as aforesaid, the right to convert the principal due or owing thereon into JV6 WEST VIRGINIA CORPORATIONS. stock of such corporation at any time, not exceeding ten years after the date of such bond, under such regulations as may be provided in the by-laws of such corporation. Twelfth. To mortgage its property, real and personal, and its franchises, to secure any bonds or stock issued by such corporation for any of the purposes designated in the fifty-second section of this chapter. Code, ch. 54, sec. 50. Acts 1881, ch. 17. Priority in location gives priority of title, whicli is perfected by condem- notion. What constitutes a location between rival railroads and their rights defined. Kanawha & G. J. R. B. Co. vs. G. J. R, R. Co., 45 W. Va., (in ';ril rj Grant of right of way releases damages to residue of tract. Watts vs. By. Co.. 39 W. Va.. 196. Moundsville vs. R. B. Co., 37 W. Va., 93; State vs. By. Co., 38 W. Vo 242; Taylor vs. B. & O. By. Co., 33 W. Va., 39; Arbenz vs. By. Co., 33 W. Va., 1; Yates vs. Grafton, 34 W. Va., 784; Ry. Co. vs. Gibbens, 35 W. Vn . 57; Fidelity Co. vs. R. U. Co., 32 W. Va., 245; Fisher vs. R. B. Co., 39 w Va., 366; Bicketts vs. R. R. Co., 33 W. Va., 433; R. B. Co. vs. Oil Co.. 3.n W. Va., 205. ROLLING STOCK, ETC., TO BE PERSONAL PROPERTY The rolling stock and all other movable property belong- ing to any such corporation, ^all be considered personal property, and shall be liable to execution and sale in the same manner as the personal property of individuals. Code, ch. 54, sec. 51. Acts 1881, ch. 17. ISSUE OF STOCK, BONDS, ETC. WHEN VOID. Every such railroad corporation may sell, issue and trans- fer its stock or bonds, or both, for land, money, labor, prop- erty or other materials to be used for the purposes for which the corporation was formed, and especially for the con- struction and equipment of its railroad; and in case it be found necessary to do so, it may sell and dispose of the same at less than the par valu^. But no such corporation shall issue any stock or declare any s-tock dividend, except as aforesaid, for any sum which shall exceed the net earn- ings of such corporation, and which shall have been actual- ly and in good faith applied and invested in and for the pur- ])oses of the corporation. All other stock dividends, and all fictitious increase of the capital stock or indebtedness of any such corporation shall be void. Code, ch. 54, sec. 52. Acts 1881, ch. 17. Acts 1882, ch. !)7. EXTENSION OF LINE BEYOND TERMINI; CONSOLl DATION OF STOCK OR MERGER WITH OTHER RO.VDS, LEASING, ETC. Any railroad corporation which has been, or shall be, WEST VIRGINIA CORPORATIONS. 177 organized under the general laws of this State or deriving its franchises therefrom, or organized under special char- ter, may extend, with the consent of the stockholders own- ing a majority of the stock present at any general or special meeting thereof, its line beyond either or both termini nam- ed in the articles of incorporation or special charter under which its line is located; and such extension may be locat- ed by the most practicable route and may pass out of this State into any other state, with the assent of such state, and back again into this State, as often as may be found necessary in locating such extension; and such corporation may construct, own or operate such extension or extensions in the same manner and to the same extent as if such ex tension or extensions had been included in the original ar- ticles of association or special charter; Provided, however. That any railroad company organized under special charter, by extending its line, shall not carry with it any special privileges guaranteed it under its charter, as to such ex- tension, but only such rights- and privileges as are conferr- ed under the general law ; Provided, That such corporation, before commencing any such extension in this State, shall file in the office of the secretary of state a certificate stat- ing the point at or near which such extension in this State shall commence and terminate. No railroad corporation owning or operating a railroad wholly or in part within this State shall consolidate its capital stock with any other railroad running a parallel or competing Hire, without thi- consent of the legislature; but any such railroad corporation whose line of railroad is made or is in process of construc- tioin, may merge or consolidate with, or lease its railroad or any part thereof for a term of years to any other corpor- ation of this or an adjoining state, owning or operating a line of railroad completed or in process of construction wholly or partly within this or an adjoining state, and con- nected directly or by means of an intervening railroad or railroads, in order to make a continuous line of railroad to be run and operated with or without changes of cars, or break of bulk, or exchange or transfer of passengers or freight; and may sell to or purchase such connecting line of railroad, and may adopt another name for the said road thus merged, consolidated or connected, by filing .in the of- fice of the secretary of state a declaration of the adoption of such other name; and shall publish such declaration for sixty days in all newspapers along the line of such railroad; but such merger, consolidation or sale shall be made only upon such terms and conditions as shall be agreed to by the stockholders owning a majority of the stock in each 178 WEST VIRGINIA CORPORATIONS. of the companies so' merging, consolidating, purchasing or selling; Provided, That where two or more railroad compa- nies have been heretofore incorporated under and by vir- tue of the laws of this State, for the construction of two or more lines of railroad which have been located or surveyed along the same line between any points or places, and each of said corporations have acquired separate and distinct rights and interests under their respective charters or made or performed any work toward the construction of the im- provements contemplated by their respective charters, it shall be lawful for the boards of directors of said corpora- tions, with the consent of the stockholders owning a ma- jority of the stock of each of the corporations interested, to merge or consolidate the capital stock of their respective companies, or to Consolidate different interests in the same road, upon such terms as they may agree upon; or for one or more of such corporation to make sale of all their right, title and interest, including the franchises of such corpora- tions, to such other corporations, in such manner as may be deemed advisable; Provided, however. That such merger or consolidatioin or purchase shall not invalidate any action, suit, claim or demand against any or either of the compan- ies who are parties thereto ; and any such action, suit, claim or demand shajl be held to be in full force against the com- pany owning such consolidated or merged line of railroad; and in no case shall any consideration or merger or sale take place, except after sixty days' notice, which notice shall be given in the manner prescribed in section forty-five of this chapter; Provided, That every railroad corporation doing business in this State under charters granted or laws passed by the State of Virginia, is hereby declared to be as to its works, property, operations, transactions and bus- iness in this State, a domestic corporation, and shall be so held and treated in all suits and legal proceedings which may be commenced or carried on by or against any suci railroad corporation, as well as in all other matters relat- ing to such corporation; but such corporation shall not be required to file a copy of its charter or any writins; with the secretary of state, as provided in section thirty of cbaj)- ter flfty-tour of the code of West Virginia; and all leases of railroads heretofore mad(> between railroad companies, as provided in this section, shall be deemed valid, Code, ch. M, sec. 53, as amended by ch. 17, acts 1881; ch. 97, acts 1882 and by ch. 32, acts 1891." Acts T8S1, ch. 17. Acts 1882, ch. 97. Ch. 32, acts 1891. Forelgu rallrond corporations not made I'.oiiiMuc I'v aoovo section. WEST VIRGINIA COEPORATIONS. 179 Humnhreys vs. E. R.. 33 W. Va., 135. Ante, page 81. ANNUAL REPORT TO AUDITOR. Every railroad corporation doing business in this State, whether incorporated under a special charter granted by the legislature of this or any other state, or under a gen- eral law of this or any other state, shall annually report to the Auditor, as required by section sixty-seven of chapter twenty-nine of this code, as amended, and for a failure to do so, every such corporation so failing, shall be subject to all the pains, penalties, forfeitures, fines and liabilities im- posed by said last named section. Prosecutions under this section shalLbe in the county wherein the seat of govern- ment is. Code, ch. 54, sec. 54. Acts 1881, ch. 17. Acts 1882, ch. 97. By. Co. vs. Supervisors, 3 W. Va., 319. POWERS RESERVED TO THE LEGISLATURE. The right is reserved to the legislature to enact, from time to time, laws applicable to all the railroad corpora- tions in the State, establishing reasonable maximum rates of charge for the transportation of passengers and freights, and providing for the correction of abuses, the prevention of unjust discriminations between through and local or way freight and passenger traffic, and for the protection of the just rights of the public. Code, ch. 54, sec. 55. Acts 1881, ch. 17. Acts 1882, ch. 97. NUMBER OF VOTES EACH STOCKHOLDER IS ENTI TLED TO— CUMULATIVE VOTING. In all elections for directors and managers of such rail road corporations, every stockholder shall have the right to vote in person or by proxy, for the number of shares of stock owned by him, for as many persons as there are direc- tors or managers to be elected, or to cumulate said shares and give one candidate as many votes as the number of di- rectors 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 may think fit; and such directors or managers shall not be elected in any other man- ner. Code^ ch. 54, sec. 56. - 180 WEST VIRGINIA CORPORATIONS. Acts 1881, cb. 17. rross vs. E. R. Co., 35 W. Va.. 174. Const., art. XI, sec. 4, page 108, ante. SUBSCRIPTIONS BY COUNTIES, ETC., TO THE CAPI- TAL STOCK. Subscriptions to the capital stock of any such corpora- tion may be made by any county, or any district therein, or any incorporated city, town or village, through, by or near which said railroad is located, in the manner prescribed by section twenty-four of chapter thirty-nine of this code, and all the provisions of said section shall be applicable to such subscriptions; except that when the subscription is proposed to be made by such city, town or village, the order for taking the vote on the question shall be made by the council thereof, and the election shall be held, superin- tended and returned, and the result ascertained, in the same manner as elections held therein for municipal offl cers. If any such subscription be made to the capital stock of such railroad corporation, and such corporation shall afterwards forfeit its charter, or shall otherwise fail to con- struct its railroad according to the provisions of its charter, or shall fail to comply with the terms of its agreement with such county, district, city, town or village, under which such subscription has been or shall be made, the subscrip- tion so made shall be void. Code, ch- 54, sec! 57. Acts 1881, ch, 17, "When before proposition authorizing bonds is submitted, the route of proposed road is located througli corporation, in the absence of proof to the contrary such location is presumed to be a part of the proposition, and if after vote is 1 ;l>en such location is u iiteriaily chan^'ed, tlie right to de- mand the bonds so authorized will be presumed to have been abandoned, and mandamus to compel their issue will not lie. R.v. Co. vs. Eavenswood, 41 W. Va., 733; See also Neal vs. Co. Ct., 43 W. Va., 90. MANNER OF SUBSCRIPTION. When the county court of any county deems it desirable for the county, or any district or districts thereof, to ap- propriate money to aid in the construction of a railroad or any other work of internal improvement through, by or near such county, district or districts, they may, by and order specifying the work to which the money is proposed to be appropriated, and the amount of the proposed appropria tion, cause a vote to be taken upon the question at the sev- eral places of voting in the county, district or districts, at the succeeding gen<>i'al election for state and county ofQcers; or at the school election for school ofiQcers, whichever is WEST VIRGINIA CORPORATIONS. 181 first held in the county, after such vote is ordered to be ta- ken, or at any special election that the said county court may deem proper and may order for the purpose; but sucJi order must be published throughout the county, district or districts, thirty days at least before the poll is taken, as fol- lows: The' clerk of the county court shall cause as many copies of such order to be written or printed as may be necessary, and sign the same. He shall forthwith post one of them in a conspicuous place in his office and one at the front door of the court house, and deliver the others to the sheriff of the county, who shall forthwith post one of said copies in a conspicuous place at every place of voting in the county, district or districts. For every one posted he shall have a fee of twenty-flve cents out of the county treas- ury. ' The court shall direct a copy to be published in one or more newspapers, if any are published in said county. The poll shall thereupon be taken and the result ascertain- ed under the regulations prescribed for general school elec- tions for school officers ; or if the said vote is taken at a special election ordered for the purpose, the same shall be held by commissioners specially appointed for the purpose by the county court at the time the said election is ordered. And the result shall be ascertained and certified accordins; to the regulations prescribed by law for ascertaining and certifying the election^of school officers at which no nom- inations of candidates for such offices have been made. The ballots used in taking the said poll shall be the same as those used in voting for officers at the said general election for state and county officers and school officers, except when the same is taken at a special election, as hereinbe- fore provided for, and there may be written or printed thereon the words "subscription" or "no subscription," or any other words that will show how the voter intended to vote on the question proposed. If it appear by the said poll that not less than three-fifths of the voters of the coun- ty, district or districts, who voted upon the question of the proposed appropriation, are in favor of the same, the county court will then have authority to cause subscription to be made in the name of the county, district or districts, to the stock or bonds of, any company which will undertake the work, to the amount proposed, or aiiy less amount, on such terms as they may deem advisable, and to provide for the payment thereof by county or district taxation or loans. The right to the stock or bonds subscribed for in pursuance of this section, or any special act of the legislature hereto- fore passed, shall be vested in the said county, district or districts, and the county court thereof shall have authority 182 WEST VIRGINIA CORPORATIONS. from time to time to appoint a proxy to represent the said stock in meetings and elections, to be held by the stockhold- ers of the company. The dividends of such stock, or inter- est on such bonds, shall be collected as the court may order, and be paid into the county treasury; or be paid and cred- ited to the free school fund of the district or districts where the subscription to stock is made by a district or districts. Code, ch. 3!), sec. 21. This provision to be construed iji aid of tlie constitution, aud not in vi oiaton ttiereof, and tliat tlae town tailing advantage of its provision shall also comply witli sec. 8, art. X, of tiie constitution. Allegation and proof necessary in suit on bonds of corporation. Brown vs. Pt. Pleasant. 38 W. Va., 290. Tliis section and sec. 57, allowing subscription hy magisterial districts not unconstitutional. Neal vs. County Court, 43 W. Va., '.lu. Magisterial districts cannot by subscription to, internal improvement com- pany become indebted more than .5 per cent, of taxable property as lim ited in sec. 8, article 10, of constitution, and for purpose of such limitation the district indebtedness is to be included with the other county indebted- ness and tlie total must not exceed such limitation. Levies made to pay such district indebtedness must be on property in tlie district. Id. The completion of the road according to charter required by sec. 57,, is not a condition precedent to tlie delivery of tlie bonds unless made so by the terms oX the subscription. The terms in proposition for the subscription as voted on cannot be cliiingcd. A provision for a siniiing fund not indispensable in proposition but may be provided for after subscription. Public subscription must be paid in bonds. Bonds cannot be sold in ad- vance and money held to pay subscription. Id. AGENTS TO MAKE SUBSCRIPTION. When any such subscription has been authorized, as aforesaid, the county court of the county, or the council of the city, town or village (as the case may be), shall appoint an agent to make the subscription on the part of such coun- ty, district, city, town or village, upon the terms and condi- tions specified in the order under which the vote is taken. Said subscription shall be paid in cash, or in the coupon bonds of such county, district, city, town or village, bearing interest at a i-ate not exceeding six per centum per annum, and redeemable in such time, not exceeding thirty-four years as such court or council may prescribe; which bond shall be received by said corporation at par. The president of the county court shall have power, when so directed by such court, by an order entered of record therein, to execute and deliver the bonds of his county, or of any district there- in to the corporation to. the capital stock of which such sub- scription has been made; and the mayor of any such city, town or village, shall have power, when so directed by an order or resolution of the council (hereof, entered of record to execute and deliver the bonds of such city, town or vil lage to such corporation. The bonds of any such county, and of any district therein, shall be valid and binding there- on when signed by the president of the countv court of such WEST VIRGINIA CORPORATIONS. 183 county, and countersigned by the clerk of such court with the seal of such county attached thereto; and the bonds of any such city, town or village shall be binding thereon when signed by the mayor thereof and countersigned by the re- corder, clerk or other recording officer, with the seal of thi; corporation attached. Code, ch. 54, sec. 58. Acts 1881, ch. 17. Acts 1882, ch. 97. LEVY TO PAY SUBSCRIPTION OR LOAN AND INTER- EST. At the time the annual levy of any such county, city^ town or village, is laid, there shall be a tax levied on all the property subject to taxation therein, suflflcient to pay the amount of such subscription, if piayable in cash, or to pay the annual interesi: on the Taonds of the county, city, town or village, if bonds be issued, and to create a sink- ing fund to pay the principal when it shall become due; and in case of such subscription being made by a district of any county, the county court of such county shall levy such tax on the property subject to taxation in such district. Such taxes shall be collected and accounted for in the manner as other taxes and levies. Code, ch. 54, sec. 59. Acts 1881, ch. 17. I RIGHT TO THE STOCK, HOW VESTED. The right to the stock of such company, so subscribed for, shall vest in such county, district, city, town or village mak- ing the same, and the county court of the county, or conn cil of the city, town or village, shall from time to time, as may be necessary, appoint proxies to represent the stock hel^ by such county, district, city, town or village, in the nieet- ings of the stockholders of the company, and also an agent to collect the dividend on such stock; which dividend, when collected, shall be applied annually in diminution of the county, district, city, town or village levy. Code, ch. 54, sec 60. Acts 1881, ch. 17. 1. That where the line of any railroad company, hereto- fore or hereafter charterd by this State, has been construc- ted through any county or counties in this State, wholly by the subscription of such county or counties, to its capital stock, such railroad company shall not sell or convey its franchise to any foreign corporation, or to any other rail- 184 WEST VIRGINIA OORPOEATIONS. road company, Avithout the consent of the county court flf the county or counties through which the line of said rail- road has been so constructed. 2. Such consent may be given upon such terms of com pensation, or otherwise, as said county court or courts may contract or agree upon, with the vendor or vendee, or both. Should such sale or conveyance be by a commissioner or other officer of the circuit court of such county or counties, any such contract or agreement shall be subject to confirm- ation by such circuit court. 3. The provisions of the above sections shall apply to any tribunal established in lieu of a county court, under the constitution. 4. Nothing herein contained shall be construed to en- large the powers of such railroad companies to convey or encumber their franchise; nor to interfere with any vested rights further or otherwise than may be lawfully done by the legislature. Sec. 60a. code. eh. 54. (See .nets 1890, ch. 6.) WARNING OF APPROACHING TRAINS. A bell or steam whistle shall be placed on each locomo- tive engine, which shall be rung or whistled by the engi neer or fireman, at the distance of at least sixty rods from the place where the railroad crosses any public street or highway, and be kept ringing or whistling for a time suffi- cient to give due notice of. the approach of such train be- fore such street or highway is reached, under a penaltv or not exceeding one hundred dollars for each neglect, one-half of which shall go to the State and the other to the prosecut- ing witness; and the corporation owning or operating the railroad shall be liable to any party injured for all damages sustained by reason of such neglect. Provided, That such penalty shall be sued for within three months from the time the cause of action arises, and not after. When the tracks of two railroads cross each other, or in any way connect at a common grade the crossing shall be made and kept in re- pair, and watchman maintained thereat, at the joint ex- j)ense of the companies owning the tracks; all trains or en- gines passing over such tracks shall come to a full stop not nearer than two hundred feet nor farther than eight hun- dred feet from the crossing, and shall not cross until signal- led 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 WEST VIRGINIA GORPOKATIONS. 185 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 a side or depot track, the train on the main track shall have precedence; and if one of the trains is a passen- ger train and the other a freight train, the former shall take precedence; and regular trains on time shall take prece- dence over trains of the same grade not on time; and en- gines with cars attached not on time shall take precedence of engines without cars not on time. Code, eh. 54, sec. 61. Acts 1881, eh. 17. Acts 1882, ell. 97. Tlie above section is intended to warn travelers at crossings., and not tliose using track elsewjjere. Christy vs. R. 11., 35 W. Va., 117; Spicer vs. E. E., 34 W. Va., 514; Bey- el vs. li. E. Co., 34 W. Va., 538; Butcher vs. E. E. Co., 37 W. Va., 180. BOARDS TO BE ERECTED AT CROSSINGS. Every such corporation shall cause .boards to be placed well supported by posts or otherwise, and constantly main- tained, across each public road or street, where the same is crossed by the railroad on the same level. Said board shall be elevated so as not to obstruct the travel and be easilv seen by travelers; and on each side of said boards shall be painted in legible capital letters "railroad crossing; look out for the locomotive I" Any corporation failing to comply with the provisions of this section within six months after the passage of this chapter, as amended, shall, for each crossing at which there is such failure, be fined five dollars for every week the failure may continue. Code, ch. .54, sec. 62. Acts 1881, ch. 17. Acts 1882, ch. 97. Sections 63 and 64 repealed. Acts 1887, ch. 15. The act of Feb'y 27, 1885, added sections 30 and 31 to chapter 145, of the code. These sections are as follows; 30. If any person while in charge of a locomotive engine, running nnon the railroad of any corporation, or while acting as the conductor or brakeman of any car or train of cars, on any such railroad, be intoxicated, he shall be deemed guilty of a misdemeanor, and upon conviction thereof, be fined not exceeding five hundred dollars. 31, Any person who shall wilfully and unlawfully injure, weaken, destroy or misplace any building, bridge, track, side-track, work, engine, machine, locomotive, hand car, depot, car, trestle, telegraph line, telegi'aph pole, tel- egraph wire, telegraph instrument, machine, invention or mechanical appli- ance whatever, which may be or is now, used by any company operating or using any railroad, or other line or work of internal improvement in this state, or obstruct any corporation which is the owner cr lessee of any railroad or other work of internal improvement in this state, iu the use of any such propei-ty, the person so offending shall be guilty of a misdemeanor, and lined not exceeding one thousand dollars, and imprisoned not exceeding six months, and if the death of any person occur in consequence of any such' unlawful act, the person, or persons, committing the same, shall be guilty of murder, and punished accordingly. And if any person shall shoot, or throw stones, or other dangerous mla- siles, at or into any passenger car, or other railroad car, used for carrying passengers or other persons, while any such passenger or other person is 186 WEST VIRGINIA CORPORATIONS. u'lthln the sami', he shall be guilty of n felony, and shall bo eonflned in the ppiiltonTiary not less than two or more than ten years. .\nd If any person, whether a passenger or not, shall, while on any pas- senger or other train of cars, behave In a riotous or disorderly manner, lie shall he Kiiilty of a misdemeanor, and fined not less than twenty-flve nor more than two hundred dollars, and may, at the discretion of the court, be eon- lined in Jail not less than one nor more than six months, and njay be ejeel- ed from such train by tlie pei-son, or pei'snns, in (charge thereof; and sueh force as'is neeessarv for that piiriiose, may be used by such person in charge of such passenger or other train of cars, with such other persons as he may call to his aid. And the conductor of every train of railroad cars, flhall have all Uie powers of a conservator of the peace, while in charge of sch train. MAP OF ROAD TO BE FILED. Every such corporation shall, within reasonable time af- ter its railroad is located, cause to be made a map and ])ro- lile thtjreof, with the names of the owners of the lands through which it runs, and of the noted places along the same stated thereon, and file the same in the office of the secretary of state, and in the office of the clerk of the county court of each county in M'hich any part of said road is lo cated. Code, ch. 54, sec. Go. Acts 1881, ch. 17. A compliance with tnis provision is not a condition precedent to uroeeod- ings to condemn. Ky. Co. vs. Oil Co.. 35 W. Va., 206. What constitutes a hx'ation, priority of rights acquired by rivi' raMrnad companies over right of w.'iy. The efToct of title by condemnation proceodlngs after locatio i. Kan. ij. J. & K. R. Co. vs. Glen .Tean K. Co., 30 S. E., 86, 45 W. Va. (in iirlnt.J See cases in dissenting opinion by Judge Branmn. CHARTER; WHEN AND HOW PERFECTED. If any railroad corporation, organized under this act, shall not, within two years after its articles of association shall be filed and recorded as required in section thirty- three of this chapter, begin the construction of its road and expend thereon ten per cent, of the amount of its capital within three years after the date of its organization, or shall not finish its railroad and put it in operation within ten years from the time of filing its articles of association as aforesaid, its corporate existence and powers shall cease. But any railroad comitany organized under the laws of this State since the first day of June, one thousand eight hun- dred and eighty, which shall have complied with section eight of chapter twenty of the acts of one thousand eight hundred and eighty-five, and which shall commen(\e the construction of its road within two years after the passage of this section as here amended, and shall within three years after the passage of Ihe same, actual Iv and in goiod fifth ex])end t]i(M-eoii Icii per cent, of its capital stock actual- ly subscribed, and shall, within (en years thereafter com jtleie its railroad or some ]>ar1 thereof, and put the same or WEST VIRGINIA CORPORATIONS. 187 the part so completed into actual operation, then and in every such case the corporate existence, franchise and pow- ers of such railroad company shall be and remain, so far as the part of said road so completed and operated is concern- ed, the same as though the provisions of section sixty-six, of chapter seventeen of the acts of one thousand eight hun- dred and eighty- one had been fully complied with by such company, and no forfeiture or judgment of ouster shall be renderea against said company, by reason of its failure to comply with said section. But if any of said railroad companies shall not, within two years after the passage of this section as amended, be- gin the construction of its road, and expend thereon ten per cent, of its capital stock, actually subscribed, within three years from said date, and shall not complete its road, or some part thereof, and put the same, or the part so complet- ed, into actual operation within ten years from said date, its corporate existence and powers shall cease, and in case it shall have comjjleted some part thereof only, and put such part into operation, its corporate powers and rights shall cease as to all of said proposed road not so completed and put into operation within said time. Code, ch. 54, sec. 66. Acts 1881, ch. 17. See acts 1897. eh. 18. infra. N;ay complete nn:l opera.' part of its • lad aiid as to the part so completei retain its corporate existence, franchises and powers. Rv. Co. vs. Oil Co., 35 W. V.I.. 205. The time after location in which to commence construction of road, in order lo iirescr-, e p'-iority pv( r a rival railroad discussed. Ry. Co. vs. Ey. Co., SO S. E., 86, 45 W. Va., (in print.) EXISTING RAILROADS SUBJECT TO THIS CHAPTER. All existing railroad corporations within this state shall respectively have and possess all the powers and privileges, and be subject to all the duties and liabilities and provis- ions contained in this chapter. Code, ch. 54, sec. 67. Acts KSi, ch. 17. See sec. 5, ch. 52, code, supra, and note. MAY RECEIVE DONATIONS, ETC., AND SUBSCRIP- TIONS IN LAND. All railroad companies organized or constructed under the provisions of this chapter may, and they shall have I)ower and authority to receive donations and devises of lands, property and materials, and to receive subscriptions to their capital stock, payable in lands, property, materials, 188 WEST VIRGINIA CORPORATIONS. work, labor and otherwise, upon such terntis and conditions as the directors and owners may agree and determine; and may also receive, purchase and hold real estate as a basis for the construction of the railroad of any such corporation, and 1o issue stocks or bonds or both, for the payment of the same, upon such terms and conditions as the stbckliolders, directors or owners thereof may agree upon and determine, and to sell and convey such real estate upon such terms and conditions as the corporation may authorize. Code, ch. 54, sec. 68. Acts 1881, ch. 17. Acts 1882, ch. 97. LATERAL ROADS, BRANCHES AND TELEGRAPH LINES. Any railroad company organized under this chapter may build and construct lateral and branch roads, or tramways, and of any gauge whatever, not exceeding fifty miles in length, and may build planes and gravity roads, use and op- erate and part or portion of their said main line and branch or branches when completed, the same as though the whole of their said proposed railroad was fully completed; and in the construction of their bridges across any river or navi- gable stream may provide for the passage of wagons or oth- er travel, collecting tolls therefor as prescribed by law; and may erect and operate a telegraph line or lines, with the right to use, control and operate the same along the line of their said railroad and branches, and connecting with any of their said works, offices and improvements. Code, ch. 54, sec. 69. n. R. Co. vs. Oil Co., 35 W. Va.. 205. 1. If any owner or owners, lessee or lessees of timber lands, quarries, mills, oil or salt wells, coal mines, lime kilns or othe.' real estate, in the vicinity of any railroari, canal or slack water navigation, made or to be made, and not more than twelve miles distant therefrom, shall desirt to make a railroad thereto over any intervening lands, he or they, their engineers and agents, may enter upon any such lands, and survey and mark such route as he or they shall think proper to adopt, doing no damage to the property explored, and thereupon may present a petition to the circuit court of the county in which said intervening land is sit- uated, setting forth his or their desire to be allowed to con- struct or finish a railroad, in and upon the said route, and the beginning, course and distances thereof, and place of WEST VIRGINIA COKPORATIONS. 189 intersection with tlie main railroad, canal or slack water navigation, which shall be filed in said court; whereuDon the said court shall appoint five disinterested and judicious men, who shall be freeholders, resident in the said county, who shall be appointed as provided in chapter forty-two of the code, as amended and re-enacted by the acts of one thousand eight hundred and eighty-one, and as amended by the acts of one thousand eight hundred and eighty-two, and one thousand eight hundred and eighty-three, as it may hereafter be amended, and who shall view the said proposed route for a railroad and examine the same, and if they or any three of them shall deem the same needful and useful for the transportation of, timber, or coal, ov minerals, or natural oil, either in a crude or manufactured state to mar- ket, and that the condemnation of the property is necessary and of public utility, and that no other practicable route would subserve the purpose of the one asked to be condemn- ed, they shall forthwith report in writing to the said court what damages will be sustained by the owner or owners of the said intervening lands, asked to be condemned by the opening, constructing, completing and using of the snid railroad, perpeiunMy; or if the person or persons petition- ing ask in their peril ion for the use of said real esi;il:e for a limited tim i only, then lor such period of time, ana the r; port of the said viewers and appraisers shall be filed in the said court, and the proceedings thereafter in the said court shall be as provided for by law, or as may hereafter be pro- vided for by law, except as may herein be otherwise provid- ed. Whenever any coxmty road is necessary to be crossed or used by a railroad herein authorized, such county road shall be crossed and used in the same manner and upon the same conditions as any such county road can now be legally crossed and used by any other railroad. 2. ^ Such notice to land owners must be given as is provid- ed in chapter forty-two of the code of West Virginia, as amended and re-enacted by the acts of one thousand eight hundred and eighty-one, and as amended by the acts of one thousand eight hundred and eighty two and one thousand eight hundred and eighty three, and as may hereafter be amended, and like proceedings had in every particular, not inconsistent with this act. and both the petitioner and the land owners shall have all of the rights, privileges and pro- tection in every respect as they would have in a like pro- ceeding under the said chapter amended and re-enacted as aforesaid, and such further rights, privileges and protec- tion as may be provided for in any amendment hereafter made to the said chapter. 190 WEST VIRGINIA CORPORATIONS. 3. When the sum which is required by the annt to be jjiiid, is paid as prescribed in chapter forty-two of the code, its amended and re-enacted and amended aforesaid, and as it may hereafter be amended, in cases where damages have only been ascertained for the use of a right of way for a cer tain number of years, then only the use of the right of way in accordance with the provisions of this statute for the num- ber of years designated in the report of the commissioners, as the period for which damages were ascertained, and the right to apply the gravel, timber and other material on the right of way to and for the construction of the road, shall vest in the applicant. 4. The said right of way shall not exceed fifteen feet ir width, and for the purposes of excavations and embank ments the petitioner may take as much more land in accord- ance with the foregoing provisions as may be necessary foi' the proper construction, repair and security of the said road, and within this limit, may be of such width as may be asked for in the petition of the applicants, and it shall not be law- ful to condemn land for this kind of a railroad that coukl not lawfully be condemned for any other railroad; the rail- road may be single or double track and formed of wood, stone and iron, each or all of them, as the proprietor of the said road shall adopt. 5. Any person desiring the proprietor or proprietors of such a railroad, as is authorized by this chapter, to haul for him over said road any sand, timber, lumber, coal, minerals, natural oil or articles made frou) any of these materials and for which the said railroad and the engines, trucks, cars, wagons or vehicles used thereon by the proprietor are adapted, may require such proprietor or proprietors, when called upon, to transport such freight, and to this extent they shall be deemed common carriers. G. In case the person desiring freight hauled and the proprietor or operator of the said road and the said person cannot agree upon the rate for transporting the said feight, the said person desiring the freight hauled may move the county court of the county where the said road intersects the railroad, canal or slackwater, to which it is built, after having first given five days' notice to the person operating said road, or if such jierson cannot be found, then to anv person in charge of the road, or if no such person can be found, by posting and leaving posted in five public places on the line of said road coi>ies of the said notice, to fix the rate of compensation to be ])aid for trausitorling the said freight, and the said conri, after liearing any testimony that may be offered, shall fix the coiiiiHMisation to be received by the operator of said road, whicli rates may in like man WEST VIRGINIA CORPORATIONS. 191 ner be altered from time to time upon the motion of any par- ty interested, and he shall be compelled to haul the goods at that rate, as well as any other goods that may be offer- ed by any other person of like kind with the goods for which the rate had been fixed by the court; and for refusing to carry the freight as aforesaid, the person or persons control- ing the said road shall be subject to all of the liabilities and recoveries that any other railroad would be subject to. 7. Proprietors oi such railroads not using locomotives or motors, and who have the right of way only for a term of years, shall not be required to fence in the said road at any place, but when the said road has been condemned through enclosures or land afterwards enclosed, the said proprietors shall be required to keep up gates at the places where the road enters and leaves the enclosure and keep them locked, and he shall be liable to the party injured for treble dam- ages for injuries caused by his failure to observe and toi have his workmen and agents observe the above requirements. 8. Any lateral railroad suffered to remain unused for the period of two years, shall be considered as abandoned, and the right of way where the land was condemned shall re- vert to the original owner, or where obtained by contract, to the grantor, unless otherwise provided in the contract, his heirs or assigns, together with the material out of which the road was constructed, unless said material is moved by the proprietor or proprietors, three months notice to them being given to remove the same, which notice, in case the propi'ietor or proprietors are non-residents, shall be given by the publication in a newspaper in the county where the road intersects the railroad, canal or slackwater to which it connects, or where there is no such paper, then in a new*'- paper printed in an adjoining county. 9. Any railroad of the kind contemplated in this act shall be deemed a lateral railroad and come within its op- erations whenever any part of its road bedhas been condemn ed under and by virtue of the provisions of this statute. 10. No franchise or right of way acquired by virtue of this act, shall be sold, leased or otherwise transferred, with out the consent of the legislatur£ first had and obtained. Code, fh. 54, sec. 69a. Acts 1885, eh. 12. GENERAL LAWS TO APPLY, SO FAR AS NOT INCON SISTENT. All laws of a general nature in relation to railroad cor- porations now in force in this State, so far as they are not 192 WEST VIRGINIA CORPOEATIONS. inconsistent with the provisions of this chapter, in relation to such corporations, shall remain in force and be applica ble to the railroad corporations organized under this chap- ter; and any railroad corporation incorporated by special charter, and now existing, may accept the provisions of this chapter and reorganize under the same without impairing any rights or privileges granted under its original act or incorporation, subject, however, to the control of the legis lature as provided in the constitution of the State. Code, ch. 54, sec. 70. Acts 1881, ch. 17. McConiha ts. Guthrie, ,21 W. Va., page 147. RAILROADS DECLARED PULIC HIGHWAYS. Railroads heretofore or hereafter constructed in this State are hereby declared public highways, and shall be free to all persons for the transporiation of their persons and prop- erty thereon, under such regulations as now are, or may be, prescribed by law; but nothing in this section, contained shall be construed to exempt any person from the payment of the lawful' charges for such transportation. Code, ch. 54, sec. 71. Acts 1881, eh. 17. McKuy vs. R. R., 42 W. Va., 23. Trans. Co. vs. Oil Co., 5 W. Va., 384. SALE OF PROPERTY OF RAILROAD CORPORATIONS. If a sale shall be made under a deed of trust or mortgage executed by a railroad corporation on all its work and prop erty, or if the sale of such property shall be made under the decree of a court, and there be a conveyance to auy per- son or persons pursuant to any such sale, said sale and con- veyance shall pass to the purchaser at such sale, not only the works and property of the corporation as they were at the time of making the deed of trust or mortgage, but any works which the company may, after that time and befoir'e the sale, have constructed, and all other property of which it may be possessed at the time of the sale, other than debts due to it, Upon such conveyance to the purchaser the said company shall ipso facto be dissolved, and the said purchas- er shall forthwith be a corporation by any name which may set forth in said conveyance, or in any writing signed by him 01' them, and recorded in the office of the clerk of the county court of any county wherein th(> property so sold, or any part thereof, is situated. Code, ch. 54, sec. 72. Acts 1881, ch. 17. WEST VIRGINIA CORPORATIONS. 193 NEW CORPORATION TO SUCCEED TO ALL THE FRANCHISES, RIGHTS, ETC., OP ORIGINAL CORPORATION. The corporation created by or in consequence of such salo and conveyance shall succeed to all such franchises, rights and privileges, but not immunity from taxation, and perform all such duties as would have been had, or should have been performed, by the first company, but for such sale and con veyance; save only, that the corporation so created shall not be entitled to debts due to the first company, and shall not be liable for any debts of, or claims against the said first company, which may not be expressly assumed in the contract of purchase; and that the whole profits of the business done by such corporation shall belong to the said purchaser and his assigns. liis interest in the corporation shall be personal estate, and he or his assisrus may create so many shares of stock therein as he or they may think proper, not exceeamg togPihei' the amount of stock in the l"si company at the tiii3 of ^'M•■ sale, ard as-siftu the same ii a book kept for that puiposo. The said shar"- shall there- upon be on the footing of shares in joint stock companies generally, except only that the first meeting of the stock holders shall be held on such day and at such place as shall be fixed by the said purchaser, of which notice shall be pub lished for four successive weeks in a newspaper printed in such county in the State, wherein said corporation may do business. Code, ch. .54, sec. 73. Acts 1881, ch. 17. See. 74, cli, 54, code, simply repeals the act of April 3rd, 1873. CONSTRUCTION OF CERTAIN WORDS. The words "internal improvement," when used in this chapter, shall be construed to apply to and include rail- roads, canals, toll-bridges and turnpikes, on which tolls are permitted to be charged and collected. Code, ch. 54, sec. Acts 1881, ch. 17. . Acts 1882, ch. 97. AUTHORIZED TO BECOME SURETY FOR OR GUAR- ANTEE THE DEBTS OF OTHER RAIL- ROAD COMPANIES. Any railroad company may, with the assent of the hold- ers of two-thirds of its stocky had by a vote at a stockhold- ers' meeting, become surety for, or guarantee the bonds;, 194 WEST VIRGINIA COKPOEATIONS. stock or debts of any railroad company, or in any other manner aid such railroad company in the construction of its railroad, or other works of improvement, and with like consent may lease its road to any other railroad corporation within this State. This act shall not be construed to authorize any railroad corporation to consolidate its stock, property or franchise, with any other railroad owning a parallel or competing line nor to obtain the possession or control of such parallel or competing line by lease or other contract. Code, ch. 54, sec. 82a. See cli. 52, sec. 3, code. Fisher vs. E. E., 39 W. Va., 366. TRANSPORTATION OF PASSENGERS AND FREIGHT. That all railroad corporations organized or doing business in this State, under the laws or authority thereof, shall be limited to the rates of compensation for the transportation of passengers, which are herein prescribed. Code, ch. ai, sec. 82c, I. E. E. Co. vs. Trans. Co., 25 W. Va., 325. CLASSIFICATION OF RAILROADS. All railroads in this State shall be classified according to the gross amount of their respective annual earnings per mile as follows: Class A. Shall include railroads whose gross annual earnings per mile shall be ten thousand dollars or more; and narrow gauge railroads, whose gross annual i 'innings per mile shall be five thousand dollars or more. Class B. Shall include railroads whose grosiB iinuu.-il earnings per mile shall be eight thousand dollars, or any sum in excess thereof less than ten thousand dolhns; and such narrow gauge railroads vvjjose i;(uss auiinal enrnin^s per mile shall be four thousand dollars, or any sum in excess thereof less than five thousand dollars. Class C. Shall include railroads whose gross annual earnings per mile shall be four thousand dollars, or anv sum in excess thereof less than eight thousand dollars; and such narrow gauge railroads whose gross annual earnings per mile shall be two thousand dollars or any sum in ex cess thereof less than four thousand dollars. Class D. Shall include railroads whose gross annual earnings jier mile shall be any sum less than four thousand dollars, and narrow gauge railroiads whose gross annual WEST VIRGINIA CORPORATIONS. 195 earnings per mile sliall be any sum less than two thousand dollars. Code, ch. 54, sec. 82c, II. MAXIMUM RATES. All railroad corporations, according to their classification as herein furnished, shall be limited to compensation per mile far the transportation of any person with ordinary baggage, not exceeding one hundred pounds in weight, as follows: Class A. For any distance less than fifty miles, three iind one-half cer.ts per mile; for any distance exceeding fifty miles and less than one hundred miles, three and three- tenths cents per mile; for any distance exceeding one hun- dred miles and less than one hundred and fifty miles, three and one-fifth cents per mile; for any distance exceeding one hundred and fifty miles and less than two hundred miles, three and one-tenth cents per mile; for any distance exceed- ing two hundred miles and less than two hundred and fifty miles, three, cents per mile; for any distance exceeding two hundred and fifty miles, and less than three hundred miles, two and nine tenths cents per mile; for any distance ex- ceeding three hundred miles and less than three hundred and fifty miles, two and four-fifths cents per mile; for any dis- tance exceeding three hundred and fifty miles, two and sev- en tenth cents per mile. Class B. For any distance less than fifty miles, four cents per mile; for any distance exceeding fifty miles and less than one hundred miles, thi'ee and nine-tenths cents per mile; for any distance exceeding one hundred miles and less than one hundred and fifty miles, three and eight-tenths cents per mile; for any distance exceeding one hundred and fifty miles and less than two hundred miles, three and sev- en-tenths cents per mile; for any distance exceeding two hundred miles and less than two hundred and fifty miles, three and six-tenths cents per mile; for any distance exceed- ing two hundred and fifty miles and less than three hundred miles, three and one-half cents per mile; for any distance exceeding three hundred miles and less than three hundred and fifty miles, three and four tenths cents per mile; for any distance exceeding three hundred and fifty miles, three and one-fourth cents per mile. Class C. For any distance less than fifty miles, four and one-half cents per mile; for any distance exceeding fifty miles and less than one hundred miles, four and three-fifths cents per mile; for any distance exceeding one hundred miles and less than one hundred and fifty miles, four and 196 WEST VIRGINIA CORPORATIONS. three-tenths cents per mile; for any distance exceeding one hundred and fifty miles and less than two hundred miles, four and one- fifth cents per mile; for any distance exceeding two hundred miles, four cents per mile. Class D. For any distance less than fifty miles, five cents per mile; for any distance exceeding fifty miles and less than one hundred miles, four and three-fourth cents per mile; for any distance exceeding one hundred miles and less than one hundred and fifty miles, four and one-half cents per mile; for any distance exceeding one hundred and fifty miles and less than two hundred miles, four and one-fourth cents per mile; for any distance exceeding two hundred miles, four cents per mile. Provided, That no such corpor- ation shall charge, demand or receive any greater compen- sation per mile for transportation of children twelve years of age or under, than half the rate above prescribed; And provided also, A charge of ten cents may be added to the fare of any passenger when the same is paid upon the cars, if a ticket might have been procured within a reasonable time before the departure of the train, and if the failure to procure a ticket was not caused by the ticket office being closed or without a sufficient supply of tickets, or other neg- lect of the company; And provided further. If for any one passenger the charge at the above rate would be less than twenty-five cents, the same may nevertheless be charged as a minimum, Code, ch. 54, sec. 82c, III. Acts 1895, ch. 17. R. E. Co. vs. Coal Co., 44 W. Va., 580. WHAT MUST BE KEPT POSTED. All railroad corporations shall keep constantly posted in a conspicuous place, in all their ticket offices and passenger and freight depots, a printed copy of the first, second, third, fourth and fifth sections of this act, together with a tabl;^ of distances between each and every station of their ro.:,u, printed in legible type, and a statement showing the clnws to which its road belongs. Code, ch. 54, sec. 82c, IV. PENALTY yOR OVERCHARGINC Any railroad corporation which shall charge, demand or receive any greater compensation for the transportation of any passenger than is authorized by this act, shall be li- able to the party aggrieved in the sum of five hundred dol- lars, and the same may be recovered, together with all costs of suit and a reasonable attorney's fee, to be taxed by the court, in an action of debt, in any court having competent jurisdiction. Code, ch. 54, sec 82c, V WEST VIRGINIA CORPORATIONS. 19V Company not liable for overeliarge by couductoi' or agent unless tbe compa- ny authorized or appoved the act. Such penal statutes are construed strictly. Hull vs. R. E. Co., 44 W. Va., 37. LIMITATIONS AS TO RATES APPLY TO ALL RAIL ROADS. That all railroad corporations organized or doing busi- ness in the State, under an act of incorporation, or general law of this or any other state, or of the United States, now in force, or which may be hereafter enacted, shall be limited to the rates of compensation for the transportation of pas- sengers, goods, merchandise and all kinds of property us herein prescribed. Whenever any railroad corporation, as lessee or otherwise, operates any other railroad in connec- tion with its own I'oad, the provisions of this act as to charges for carrying freight and passengers shall apply to such oth- er road so operated, in like manner as if the same were a part of the line of the road owned by the corporation opera ting the same; and for such purpose all lines of railroads operated by the same company shall be considered as one and the same road. Code, ch. 54, sec. 82c, VI. Acts 1895, ch. 17, infra. E. E. Co. vs. Coal Co., 44 W. Va., 580. SHALL TRANSPORT PASSENGERS AND FREIGHT WHEN OFFERED. That all railroad corporations whose lines of road shall extend intol)r through this State and which extensions are incorporated by the laws of this State or any other state, or the United States, shall take and transport passengers and freight when offered. Provided, That such railroad corporation shall not be permitted to charge for the trans- portation of freight and passengers, or either, a less sum from one terminus of their road to the other, than from any intermediate station to either terminus thereof, nor a great- er sum for the transportation of freight and passengers, or either, from any intermediate station to either terminus of the road, or from either terminus to an intermediate sta- tion, or from one intermediate station to another, than from any intermediate station to either terminus or from either terminus to any intermediate station, or from one in- termediate station to another, where the distance is less. Code, ch 54, see. 82c, IX. This section, so far as it applies to freight, seems to have been repealed by Chap. 17, acts 189E, infra. 198 WEST VIRGINIA CORPORATIONS. ALL CHARGES FOR STORAGE INCLUDED IN CHARG ES FOR TRANSPORTATION. The compensation for the transportation of passengers, goods and merchandise and all kinds of property herinbe- fore prescribed, shall be interpreted to include all fees and commissions charged by any railroad corporation, their agent or agents, for manifesting, receiving, handling, ship- ping and delivei'ing any goods, merchandise and all other kinds of property for transportation on sucli railroad, so that the entire charges made by such railroad corporation or their agent or agents, shall not exceed the regular trans- portation fees herein prescribed, except for the storage of articles in any depot or warehouse, by their agent or agents, which remain in such depot or warehouse after the lapse of twenty-four hours from the time the consignee is notified by the agent, or other employes of the company, of their ar- rival, in cases where the abode of the consignee is known to said agent. A charge may also be made for such longer time as they so remain, not exceeding the regular ware- house rates charged in the town in which, or near which the depot or warehouse is situated; annd it shall be law ful for any railroad corporation, their agent, or agents, at any depot in the State, to charge or receive such fees or com- missions for manifesting, receiving, handling, shipping oi' delivering any goods, merchandise, and all other kinds of property, for transportation on such railroads, as they were authorized to charge and receive on December twenty-sev- enth, one thousand eight hundred and seventy -three ; but when any such fees and commissions are so charged or re ceived by such railroad corporation, their agent or agents, such corporation shall abate from their regular transporta tion fees herein prescribed, the amount of such fees and commissions so charged or received by such railroad corpor- ation, or by their agent or agents. Code, ch. 54, sec. 82c, X. Acts 1895, ch. 17. R. K. Co. vs. Coal Co., 44 W. Vo., 275. TO WEICiH GOODS AND RECEIPT FOR THE SAME. AH depot agents of any railroad corporation having de- pots in this State, shall, if required by the consignor, weigh goods, merchandise, and all other kinds of property deliv- ered for transportation at the depot, when delivered, and receipt for the same. Code, ch. 54, sec. 82c, XI. WEST VIRGINIA CORPORATIONS. 190 DEFINITION OP THE WORDS "RAILROAD CORPORA- TION." The term "railroad corporation," contained in this act, shall be deemed and taken to mean all corporations, com- panieSj public carriers or individuals now owning or oper ating, or which may hereafter own or operate any railroad in this State. Code, ch. .54, sec. 82c, XII. REGULATIONS AS TO RAILROAD STATIONS. Any company or persons operating a railroad in this State are required at all stations to provide and keep, for the ac- commodation of travelers, suitable water closets, and at stations where they keep an agent, to keep posted in a con- spicuous place, at or near the entrance to the passenger do pot, a table giving the time of arrival and departure of all trains carrying passengers, and which stop regularly at such station, and also the direction in which each train is bound ; and all stations at which there is a telegraph office, the said company shall be required to keep a black board, at least four feet in length and two feet in width, in a con- spicuous place outside of and near to the entrance to the said office, upon which notice shall be given at least fifteen minutes before the schedule time of any train carrying pas- sengers and stopping at such station whether such. train is on the schedule time or not, and if late, how much. Every such passenger station shall be opened and kept open for at least one hour before the arrival of each passenger train. For every violation of any of the provisions of this act, the said company or person shall be liable to a fine of tei dol lars. Code, ch. 54, sec. 71a„ CLASSIFICATION OF FREIGHT, ETC., BY RAIL- ROADS. Acts 1895. eh. 17. 1. Every corporation, company, public carrier or individ- ual now owning or operating, or which may hereafter own or operate, any railroad in this state exceeding thirty miles in length, shall within thirty days from the passage of this act, make a general classification of goods, merchandis.^ and all other kinds of property for the purpose of transpor- tation within this State, which shall conform from time to time to the classification of the same in general use on such railroad for interstate transportation subject to the act of Congress entitled "An act to regulate commerce," approv- 200 WEST VIRGINIA CORPORATIONS. ed February 4th, 1887, and all amendments thei'eof and sup- plements thereto, and shall keep in the custody of the agent at each station on the line of said railroad in this State a printed copy of such classification which shall be open to the inspection of any person shipping or receiving property at such station; provided, however that exceptions to sucu general classification may be made from time to time for the purposeof placingin a lower class any commodity transport- ed within this State, but a printed sheet or notice of such exceptions shall be furnished to each station agent and at- tached to the copy of the genei'al classification in his cus- tody as aforesaid. 2. Every such corporation, company, public carrier ov individual shall also within thirty days after the passage of this act make a tariff of charges within this State, based upon the classification provided for in the first section of this act, which tariff shall show such charges for distances over ten miles, and by sections of ten miles each, from ten to three hundred miles; provided, that the average rate of charge for all classes of freight under such classification and tariff, as fixed for the whole number of sections up to three hundred miles, shall not exceed five cents per ton per mile, except that upon gypsum, lime, guano, and other fer- tilizers, salt, flour in barrels, and upon coal, pig-iron, lime- stone, iron ore and undressed stone, logs or lumber, such average rate of freight shall not exceed three cents per ton per mile; and, provided further, that no charge for the transportation of freight of the same class shall be less from one terminus of any I'ailroad to the other, than from any intermediate station to either terminus thereof, nor greater for the transportation of freight of the same class from any intermediate station to either terminus of road or from either terminus to an intermediate station, or from one intermediate station to another, than from any intermediate station to either terminus or from either terminus to any in- termediate station, or from one intermediate station to an- other where the distance is less. If for any one consignment the charge as above limited would be less than twenty-five cents that sum may neverthe- less be charged as n minimum, and if the charge for any car- load for any distance should be less than five dollars, that sum may nevertheless be charged as a minimum for the transportation of such car-load. Printed copies of every such tariff shall be kept with every station agent, open to inspection, as provided in the first section hereof with ref- erence to the copies of the classification. 3. Such corporation, company, public carrier or Individ WEST VIRGINIA CORPORATIONS. 20i ual, shall make reasonable provisions for transportation of all freight that may be offered it for shipment, and trans- port the same without unreasonable delay; and shall not discriminate against or among persons offering freight for shipment over such raih-oad, in rates, distribution or allot- ment of cars, or otherwise under substantially similar cir cumstanees and conditions; and shall not give or allow to any shipper or consignee of freight any rebate or drawback, so as to give such shipper, or consignee, any advantage over any other shipper or consignee. The compensation for the transportation of goods and merchandise, and all kinds of property hereinbefore pre- scribed, shall be interpreted to include all fees and commis- sions charged by any such corporation, company, public car- rier, or individual, their agent or agents, for manifesting, re ceiving, handling, shipping and delivering any goods, mer- chandise, and all other kinds of property for transportation on said railroad so that the entire charge made by such cor- poration, company, public carrier or individual shall not exceed the regular transportation fees herein prescribed; except for the storage of any articles in any depot or ware- house ojf such corporation, company, public carrier, or in- dividual, or in any depot or warehouse by their agent or agents, which remain in such depot or warehouse after the lapse of twenty -four hours from the time the consignee is notified by the agent, or the other employes of such corpora- tion, company, public carrier, or any individual of their ar- rival, in case where the abode of the consignee is known to said agents. 4. Any corporation, company, public carrier or individual now owning or operating, or which may hereafter own or operate, any railroad in this state, which shall violate any provisions of this act shall be subject to a fine for every such offense of not less than fifty and not exceeding one thousand dollars. 5. All acts and parts of acts which conflict with any of the provisions of this act are hereby repealed. R. R. Co. T.s Coal Co.. 44 W. Va.. 575. As to liabilities and duties of railroads and shippers see Berry vs. R. R. 44 W. Va., 538. DOES NOT APPLY TO STREET RAILROADS. This act shall not be held to apply to any city or street railroad, or to any railroad whose entire length does not ex- ceed six miles. But in no case shall any railroad charge more freight or fare, than is authorized by its charter; and 202 WEST VIRGINIA CORPORATIONS. in no case shall such charges be unreasonable. Code, ch. 54, sec. 82c, XIII. PENALTIES FOR VIOLATING THIS ACT. Any railroad corporation, agent or person which shall fix, demand, take or receive from any person or persons any greater toll or compensation for the transportation, receipt, handling or delivery of goods ormerchandise,orforvveighing the same in violation of the provisions of this act, shall for feit and pay for any such offense any sum not exceeding one thousand dollars and cost of suit, including a reasonable at- torney's fee, to be taxed by any court where the same is heard by appeal or otherwise, to be recovered in an action of debt by the party aggrieved in any court having jurisdie tion thereof. And any officer, agent or employe of any sucli railroad corporation, who shall knowingly and wilfully vio- late the provisions of this act, shall be liable to the penal- ties prescribed in this section. Code, ch. 54, sec. 82c, XIV. See acts 1895, ch. 17, supra. E. R. Co. vs. Coal Co., 44 W. Va., 575. WILFUL VIOLATION BY COMPANY DEEMED A FOR FEITURE OF FRANCHISES. Any wilful violation of the provisions of this act, on the part of any railroad corporation, shall be deemed and taken as a forfeiture of its franchises, and such corporation so of fending shall be proceeded against by the prosecuting at- torney in any county through or into which its road may run, by scire facias, or upon information in the nature of a quo warranto, to judgment of ouster and final execu tion. Ante, ch. XIV. In any prosecution or proceeding under this section, if th'j violation cqmplained of be proved, it shall be presumed to have been wilful until the contrary thereof be proved. Code, ch. 54, sec. 82c, XV. Any railroad company or corporation heretofore or here after organized and owning oir operating any railroad, whol ]y or partially within this State, their ofQcers or agents, who shall charge, demand or receive more than the lawful cluirges for transportation or travel upon their railroad so owned and operated by them, shall for each offense be dotmi ed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than one hundred nor nmre than ifva hundred dollars. But nothing in this act shall be so con- WEST VIEGmix\. CORPORATIONS. 203 strued as in any manner to interfere with or protect sticb company or corporation against any proceedings for a for- feiture of its charter or chartered rights, Code, ch. 54, sec. 82c, XVa. WHAT RAILROADS ARE DOMESTIC CORPORATIONS. All railroad companies doing business in this State, under charters granted or laws passed by the state of Virginia or this State, are hereby declared to be domestic companies or corporations, and shall be treated as such in all cases. Code, ch. 54, sec. 82c, XVI. CONNECTING LINES; PRORATING CHARGES. V\^here different works of internal improvement intersect each other in this State, it shall be the duty of any road to receive freight and passengers from such other road, and to charge for the transportation thereof such rates, only as are charged on its own line from the point of intersection to the point of destination of such freight or passengers; and this act shall apply to all railroads operating in this State, whether incorporated or not. Code, ch. 54, sec. 82d, I. SHORT-LINE RAILROADS. Any incorporated company operating by steam or horse power a railroad, not exceeding thirty miles in length, may charge for the transportation of freight, not exceeding twenty cents per tom per mile. Code, ch. 54, sec 82e, I. HORSE RAILROADS; CHARGES ON REGULATED. Any corporation operating a railroad wholly by hors(. power may charge for transportation of passengers, with ordinary baggage not exceeding one hundred pounds in weight, eight cents per mile, and for children, between six and twelve years of age, one-half that rate; and for freight, two cents per hundred pounds per mile. Where, at these rates, the charges would be less than twenty-five cents, that sum may be charged. But this act shall not apply to any street or suburban railroad. Code, ch. 54, sec. 82f, I. MAY ISSUE REGISTERED OR COUPON BONDS. That any railroad company, or other corporation, which is now or shall hereafter be authorized by any law of this State to issue its bonds, may at its discretion, issue either 204 WEST VIRGINIA CORPORATIONS. registered bonds, having the conditions as to transfer and payment of the principal and interest usual in such bonds, or coupon bonds, or both, in such proportion as it shall deem best; and any such company or corporation which has here- tofoie issued, or shall hereafter issue any coupon bonds, may, at the request of the lawful holder thereof, change any or all such coupon bonds into registered bonds, either by taking up and canceling the coupon bonds and issuins;- registered bonds in lieu thereof, or by writing or printing upon such coupon bonds a proper certificate to the satis- faction of the holder desiring the same, changing sucJi bonds into registered bonds, and may in like manner pro- i'ide for changing registered into coupon bonds: Provided, That the amount of the indebtedness of such company or corporation and its liability upon such of its original bonds first issued as are not so changed or exchanged, together with the terms and conditions thereof as to the payment of principal and interest, shall in no wise be altered or affect- ed by any such change or exchange of bonds. Code, ch. 54, sec. 82b, I. Acts 1877, ch. 3. HOLDERS OP THE BONDS ENTITLED TO CERTAIN SECURITY. That all bonds issued in lieu of others, or changed, as above provided, and the legal holder thereof, shall be en- titled in every respect to all the security, liens, protection and rights under or arising from any mortgage, deed of trust, or other security, given by or in any way accruing to such company or corporation for the security or protection of its bonds first issued and so changed or exchanged as above provided, in the same manner and to the same intent and effect as if such new or changed bonds were specifically named and described or otherwise duly provided for in such mortgage, deed of trust, or other security, the validity and lien of which is to any bonds not so changed or oxchiinged, shall remain unimpaired and binding in all respects. Code, ch. 54, sec. 82b, II. CRUELTY TO ANIMALS. If any person shall carry or cause to be carried, in or up- on any vehicle or otherwise, any domestic animal in a cruel or inhuman manner, ho shall be deemed guilty of a misde- meanor and whenever he shall be taken into custody there- for by any officer, such officer may take charge of such ve- WEST VIRGINIA CORPORATIONS. 205 hide and its contents and deposit the same in some safe place of custody; and any necessary expenses which may be incurred for taking care of, and keeping and sustaining the same, shall be a lien thereon, to be paid before the same can be lawfully recovered; and if said expenses or any part thereof, remain unpaid, they may be recovered by the per- son incurring the same of the owner of the said domestic, animal in any action therefor; and it shall be unlawful fov any person or corporation engaged in transporting live stock on railway trains, to detain such stock in cars for a longer continuous period than thirty-six hours, without supplying the same with food and water, unless such deten sion be unavoidable. Acts 1875, ch. 74, sec. 4. CONVICT LABOR ON RAILROADS. That the board of public works is authorized to furnish to any railroad or internal improvement company or to any countj' to work on public roads, free of hire, as many able bodied male convicts froon the penitentiary as may now or hereafter be there as can be spared without interfering with contracts heretofore made, to be used by such companies in the construction of their works within this State; Provi- ded, That all expenses of guarding, boarding, clothing and medical attendance shall be borne by the company receiv- ing said convicts. Code, ch. 163 sec. 26b, I. COMPANY SHALL EXECUTE A BOND. Before receiving said convicts, the company so receiving shall execute and file with the treasurer of this State, a bond with security, conditioned for the boarding, clothing, guarding and medical attendance of said convicts. The said company may, in lieu of said bonds, deposit money or other securities. The bond with its penalty, or the securi ty deposited in lieu thereof, shall be fixed and approved by the board of public works. Code, ch. 163, sec. 26b, II. CLOTHING OF SUCH CONVICTS. The superintendent of the penitentiary shall furnish con- victs let under this act, with all necessary clothing of tin; same character as that furnished other convicts; and thu company receiving said convicts shall pay the State the ac tual cost thereof. The superintendent of the guard shall make requisition for all clothing and distribute the clothing to the convicts. Code, ch. 163, sec. 26b, III. 20C WEST VIRGINIA CORPOEATIONS. SUPERINTENDENT OF THE GUARD. The board of public works shall appoint a superintendent of the guard, whose compensation shall be paid by the com- pany, and the superintendent shall have charge of the guarrl and shall superintend the same, see that the convicts ar'' properly fed, clothed, guarded and have proper medical at tendance, and he shall report to the supei'intendent of thi; penitentiary, once a month, the condition and treatmeiir of said convicts. The compensation of the superintendent of the guard shall be agreed upon between the board of pub lie works and the company, Code, ch. 163, sec. 26b, IV. CONTRACT MAY BE CANCELLED. Upon proof that such convicts are improperly fed, cloth ed or cruelly treated, the board of public works may cancel any contract made under this act, and recall the convicts. Code, ch 163, sec. 26b, V. RAILROAD COMPANIES PROHIBITED PROM BUY ING OR SELLING COAL OR COKE, AND DISCRIMINATING. (Acts 1895, chap. 16.) 1. It shall be unlawful for any railroad corporation to engage, directly or indirectly, in the business of buying and selling coal or coke, or to promise, pledge or lend its credit, momey or other property or thing of value to another, either natural or corporate, engaged in such business, but nothing herein shall prevent such corporation from purchasing such articles for its own consumption, or when it is the owner of any such commodities from selling and shipping the same; Provided, in doing so, such corporation shall not discrimi nate in rates, distribution of cars or otherwise against other shippers of like commodities on its lines; and, provided, fur ther, That when such company has the right to sell either of such commodities, and is unable from any cause to fill any bona fide contracts it may have made to supply such commodities, or either of them, it may purchase them to en- able it to fill such contracts. 2. Every rnilroad corporation along whose line of rail road the industries of mining c( al or manufacturing coke is carried on, shall without discrimination between or amongst shi])|i(MS, and without niinec(^ssnry delay, make n •r(>asonabl(' provision for the transpoi'tation of all such coal and coke offered foi' iransportation over its railroad, and no WEST VIRGINIA CORPORATIONS. 207 sncli railroad corporation shall discriminate in rates, dis- tribution of cars or otherwise against or among shippers of coal or coke offered for shipment on its line or lines. 3. The circuit and criminal courts of every coiunty through or into which the railroad of any such railroad cor- poration violating any or either of the provisions of this act may pass, shall have concurrent jurisdiction of all the offenses under any. violations of the provisions of this act. 4. Any railroad corporation or officer or agent thereof who shall knowingly and wilfully violaTe any of the pro visions of this act, shall for each and every such offense, be deemed guilty of a misdemeanor, and upon indictment and conviction thereof, shall be fined not less than fifty nor more than five hundred dollars. INTOXICATION OF ENGINEER, CONDUCTOR OR BRAKEMAN. (Cofle, ch. 145.) 30. If any person while in charge of a locomotive en gine, running upon the railroad of any corporation, or while acting as the conductor or brakeman of any car or train of cars, on any such railroad, be intoxicated, he shall be deem ed guilty of a misdemeanor, and upon conviction thereof, be fined not exceeding five hundred dollars. OFFENSES AGAINST PROPERTY OF INTERNAL IM PROVEMENT COMPANY— DISORDERLY CON- DUCT ON RAILROAD TRAINS. 31. Any person who shall wilfully and unlawfully injure, impair, weaken, destroy or misplace any building, bridge track, side-track, switch, spur-track, work, engine, machine, locomotive, hand-car,, depot, car, trestle, telegrapt line, tele graph pole, telegraph wire, telegraph instrument or any oth- er instrument, machine, invention or mechanical appliance whatever, which may be or is now, used by any company op erating or using any railroad, or other line, or work of inter- nal improvement in this State, or obstruct any corporation which is the owner or lessee of any railroad,. or other work of internal improvement in this State, in the use of any such property, shall be guilty of a misdemeanor, and fined not exceeding one thousand dollars, and imprisoned not exceeding six months; and if the death of anv person occur in consequence of any such unlawful acts, the person, or persons, committing the same, shall be guil- ty of murder, and punished accordingly. Or if any person on 208 WEST VIRGINIA CORPORATIONS. a train or locomotive is maimed or disfigured by reason of any sucli unlawful acts, the person convicted of causing the same shall be guilty of a felony and shall be punished by confinement in the i^enitentiary not less than one year nor more than twenty years. And if any person shall shoot or throw stones, or other dangerous missiles, at or into any pas- senger car, or other railroad car, used for carrying passengers or other persons, while any such passenger or other person is within same, he shall be guilty of a felony, and shall be con- fined in the penitentiary not less than two nor more than ten years. And if any person, whether a passenger or not, shall, while on any passenger or other train of cars, behave in a riotous or disorderly manner, he shall be guilty of a misdemeanor, and fined not less than twenty-five nor moi'e than two hundred dollars, and may, at the disci'etion of the court, be confined in jail not less than one nor more than six months, and may be ejected from such train by the per- son or persons in charge thereof; and such force as is nec- essary, for that purpose, may be used by such persons in charge of such passenger or other train of cars, with such other persons as he may call to his aid. And the conduc- tor of every ti'ain of railroad cars shall have all the powers of a conservator of the peace, while in charge of such train. Any railroad company owning, leasing, operating or los- ing ^ny railroad, lying wholly or partly within this State, may apply to the governor to appoint such citizen or citi- zens of this State, as such railroad company may designate, to act as special police officers for such railroad company; and the governor may, upon such application, appoint and commission such person or persons, or so many of them as he may deem proper, as such police officers. Every police officer so appointed shall appear before some person author ized to administer oaths and take and subscribe the oath Ijrescribed in the fifth section of the fourth article of the constitution, and shall file such oath with the clerk of the county court, or other tribunal established in lieu thereof, of the county in which he shall reside. He shall also file certified copies of such oath in the office of the secretary of state and in the office of the clerk of the county court, or other tribunal established in lieu thereof, of each county through which such railroad or any portion thereof may extend. Every police officer appointed under the provisions of this iict shall be a conservator of the peace within each county in which any part of said railroad may be situated, iind in which such oath or certified copy thereof shall have been filed with the clerk of the county court or other tri- bunal established in lieu thereof; and, in addition thereto, WEST VIRGINIA CORPORATIONS. 209 he shall possess and may exercise all the powers and author- ity, and shall be entitled to all the rights, privileges and immunities, within such counties, as are now or may hereaf- ter be, vested in or conferred upon the regularly elected or appointed constables of said county. Any appointment made by the governor under the provisions of this act may be revoked by them for good cause shown, and such police oflficers may be removed from oflflce for official misconduct, incompetence, habitual drunkenness, neglect of duty, or gross immorality, in the same manner in which regularly elected or .ippointed constables may be removed from office; and whenever any such railroiad company shall desire to dispense with the services of any such police officer, it may file a notice to that effect, under the corporate seal, attested by its secretary, in each of the several counties in which such oath or certified copy thereof shall have been filed; and thereupon the power of such police officer shall cease and determine. Such police officers may wear such uniform and badge of authority a's the railroad company, upon whose application they are appointed, may designate, and such railroad company shall pay them for all services rendered bv them pursuant to sucli appointment. Acts 1899, ch. 55; Feb. 27, 1885. when passenger falsely arrested by conductor tliis statute does not re- lieve company of liability. Gilllngham vs. Ry. Co., 35 W. Va., 588. 1. That if any person, not being a passenger or employe, shall be found trespassing upon any railroad car or train of any railroad in this State, by jumping on or off any car or train on its arrival, stay or departure at or from any sta- tion or depot of such railroad, or on the passage of any such car or train over any ](art of any such railroad, such person so offending shall be deemed a disorderly person, and on conviction as such, shall be punished by a fine of not exceed ing twenty-five dollars, or by an imprisonment in the coun- ty Jail not exceeding thirty days, or both. Acts 1897, ch. 10. See acts 1899, ch. 47, post, p. 267. BANKS. TO WHAT liAW SUBJECT. Banks of issue or of discount and deposit, whether here- tofore formed under the. laws in force at the time of their formation oir hereafter formed under the provisions of this chapter, shall be subject to the provisions of this chapter and of chapters fifty-two and fifty-three of the code, so far as the same are applicable and not inconsistent with the following sections of this chapter; but any such bank shall not be subject to such provisions so far as the same may be inconsistent with a special charter to such bank. Code, ch. 54, sec. 76. Acts 1881, ch. 17. (*odp, ch. 54, see. 2, clause IX. Banks existing under laws of Virginia before West Virginia was formed; such existence preserved by art. XI, sec. 8, constitution of 1863 and art. VIII, sec. 21, constitution of 1872. Banir vs. Maehlr, 18 W. Va., 271; Bank vs. Wil- lis, 7 W. Va., 31; as to president and directors, Bank vs. Klmberlands, 16 W. Va., 555; Zlnn vs. Mendel, W. Va.^ 580; Smith vs. l^awBOn, 18 W. Va., 213. LIMITATION OF CAPITAL STOCK. The capital stock of every banking company formed under the provisions of this chapter, shall not be less than twen- ty-five thousand dollars, nor more than five hundred thous- and dollars. Code, ch. 54, sec. 77. Acts 1881, ch. 17. BANKS AUTHORIZED TO CHANGE AMOUNT OP CAP- ITAL STOCK; HOW AND WHEN. Any company formed, or which may be hereafter formed, for the purpose of carrying on the business of banking, un- der the provisions of chapter two hundred and fifteen of the acts of one thousand eight hundred and seventy-two and three, may, by resolution at any general, adjourned or spec- WEST VIRGINIA CORPORATIONS. 21i ial meeting of the stockholders thereof, make such increase or reduction of the capital stock and par value thereof as may be decided upon by said stockholders, a majority of the stock of the company being represented by the holders thereof, and such holders being present in person or by proxy, and voting for such increase or reduction of the cap- ital stock and par value thereof as may be decided upon by said stockholders, a majority of the stock of such company being represented by the holders thereof, and such holders being present in person or by proxy, and voting for such in- crease or reduction; provided, That no increase or reduc- tion shall conflict with the limitations prescribed by section twelve of said chapter, and that a notice under the signa- ture of the president of said company of the intention to of fer such resolution shall be sent through the mails of the United States to each stockholder ten days previous to such meeting; or that notice of such intention be given by adver- tisement published once a week for two successive weeks in some weekly newspaper of general circulation printed in this Stae, or for ten successive days, Sunday excepted, in some daily newspaper of like circulation printed in said State. When such increase or reduction shall have been made by any such company, the president thereof shall, un- der his signature and the seal of the Company, certify the res- olution to the secretary of state, and the secretary of state, under his hand and the great seal of the State, shall issue to such company a certificate reciting the resolution and de- claring such increase or reduction to be authorized by law, and such certificate shall be evidence of such increase or re- duction and of the authority to make the same in all courts and places. Code, ch. 54, sec. 77a, I. Acts 1881, ch. 48. PERSONAL LIABILITIES OF STOCKHOLDERS, The stockholders of every bank heretofore or hereafter organized, under the act passed Decmber twenty-six, one thousand eight hundred and seventy-three, entitled, "an act to provide for the incorporation of banks of discount and deposit," or under this chapter, shall be personally liable to the creditors thereof, over and above the amount of stock held by them respectively, to an amount equal to their re- spective shares so held, for all its liabilities accruing whils they are such stockholders. Code, ch. 54, sec. 78. Acts 1881, ch. 17. DIRECTORS. Every director of a bank must be a stockholder thereof, 212 WEST VIRGINIA CORPOEATIONS. and shafl, before oiiteiing upoij^ his duties as such, take au oath that he will, so far as the duty devolves upon him, dii- ligently and honestly administer the affairs of the company, and that he will not knowingly and willingly permit to be violated any of the provisions of the laws of this State re- lating to banks; that he is the bona fide owner in his own right of the stock standing in his name on the books of the company, and that the same is not hypotheticated in any way or pledged as security for any loans obtained or debts owing; which oath, subscribed by himself and certified by the officer before whom if is taken, shall be filed and care fully preserved in the office of such bank. Code, ch. 54, sec. 79. Acts rssi, ch. 17. Lamb vs. Cecil, 25 W. Va., 288; Lamb vs. LaugWiin, 25 W. Va., 300. MEETING OF STOCKHOLDERS. \o meeting of the stockholders of a bank shall be held out of this State. Code, ch. 54, sec. 80. Acts 1881, ch. 17. TOWERS OF BANKS. Every such Jbank may exercise, under the laws of this State, all such incidental powers as shall be necessary to carry on the business of banking, by discounting promisso- ry notes, negotiating drafts, bills of exchange, and other evidences of indebtedness, receiving deposits, buying and selling exchange, bank notes, bullion or coin, and by loan- ing money on personal or other securitv. Code, ch. 54, sec. 81. Acts 1881, ch. 17. Insolvent bank has right to make assignment. Lamb vs. Cecil, 25 W. Va., 288; Bank vs. Willis, 7 W. Va., 31. Bnt sec Kyle vs. Wagner, 45 W. Va., (in print). Lamb vs. Langhlin, 25 \V. Va., 300, INCORPORATION OF SAVINGS BANKS. Code, ch. M, sec. 81a; acts l.S,S7, ch. 18: 1809, ch. 45. liOW INCORPORATED. 1. Any number of pei'sons, not less than thirteen, citi- zens of this State, whose responsibility and fitness for the WEST VIRGINIA CORPORATIONS. 21:; pofposed trust shall be certified by the judge or judges of the circuit court of the county where the proposed savings bank is to be located, may associate themselves together for the purpose of organizing a savings bank, without being a joint stock company. ^Vt least three-fourths of their num- ber shall reside in the county where the proposed bank is to be located. 2. Such persons shall sign an agreement to the follow ing effect : "The undersigned agree to become a corporation by th« name of (here insert the name) for the purpose of con- ducting a savings bank, under an act of the legislature pass- ed om the day of , 1887, and entitled, ' an act for- the incorporation of savings banks;' which corporation shall keejj its office or principal place of business at , in the county of „ in the State of West Virginia. And each member of said association, whose name is here- unto subscribed, agrees that he will accept the responsibil- ities and faithfully discharge the duties of a trustee of the said corporation; if the same shall be authorized to trans- act business, and he shall be named a trustee therein. In testimony whereof we have hereunto subscribed our names, and specified our respective places of residence, postofflce address and occupation." 3. This agreement shall be acknowledged by the several incorporators, and the said agreement with said acknowl- edgements, shall be delivered to the secretary of state, who, upon being satisfied of the responsibility, good character and general fitness for the discharge of the duties appertain- ing to such a trust, of the persons named in the agreement, shall issue to the said corporators his certificate, under the great seal of the State, to tjie following effect : "I, A. B., secretary of state of the State of West Virginia, hereby certify that an agreement, duly acknowledged, has been this day delivered to me, which agreement is in the words and figures following: (here insert it.) Wherefore, the corporators named in the said agreement, and who have signed the same, and their successors and assigns, are here- by declared to be, from this date until the day of , a corporation by the name and for the purposes set forth in this agreement. Given under my hand and the great seal of the said State at , this day of ." 4. Upon the filing for recordation, of such certificate, in the office of the clerk of the county court of the county in which the said savings bank is to be located, the person^! named therein, and their successors and assigns, shairbe a corporation "by the name and for the purposes therein speci- 214 WEST VIRGINIA CORPORATIONS. fled, for a period of fifty yejirs from the date of the said cer- tificate. REGULATIONS GOVERNING ORGANIZATION AND MANAGEMENT. 5. As soon as practicable after the certificate of incor- poration shall have been filed for record the corporators . amed in such certificate, with such others as they may elect to associate with them in the corporation, subject to the approval of the judge or judges of the circuit court of the county in which said bank is located, shall select from their number fifteen trustees, who shall constitute a board of trustees, and said board shall have power to do, or cause to be done, all things that are proper to be done by the corporation. Within three months after this act takes ef- fect, the judge or judges of the circuit court of the county in which any savings bank, incorporated under the act of which this act is an amendment, is located, shall select a board of fifteen trustees from the trustees heretofore ap- pointed or elected for such bank, which selection shall bo recorded in the order book of the court, and such fifteen trustees, so selected by such judge or judges, shall consti- tute a board of trustees with power to do, or cause to be done, all things that are proper to be done by the corpora- tion. Acts 1899, ch. 45. (1 As soon after their selection as possible, and annu- ally at the first regular meeting in each year, the said board of trustees shall elect from their number a president and vice president, and appoint such committees as they shall see fit, and from their number or otherwise shall ap- point a treasurer and such clerks, agents or employes of the corporation as in their judgment shall be necessary for the conduct of the corporation's business, and make such by-laws, rules and regulations as they may think prop- er for the general conduct of the business of the corporation, not inconsistent with the constitution and laws of the Uni ted States or of this State. Acts 1899, ch. 4.^). Creditors cannot sue directors for uon-feasnnce or fraud In management. Zlnn vs. Mendel, 9 W. Va., 580. Directors may be made liable for fraud In certain eases. Ibid. 7. All vacancies in the board of trustees shall be filled by ballot of the board at a regular meeting, as soon as practicable after such vacancy shall occur, and the affirm- ative votes of a majority of the whole number of trustees shall be necessary for the election of any trustee, and the election of a trustee shall be subject to the approval of the WEST VIRGINIA CORPORATIONS. 215 judge or judges of the circuit court of the county in which such savings bank is located. Acts 1899, ch. 45. 8. Regular meetings of the board of trustees shall be held as often as once in every three months, for the purpose of receiving reports of its ofScers and committees, and for the transaction of other business. 9. Any trustee omitting to attend the regular meetings of the board, for six months in succession, may thereupon, at the election and discretion of the said board, be consid ered to have vacated his place, and a successor may be elect- ed. 10. The judge, or judges, of the circuit court of the county in which the said savings bank is located, may at any time, for due cause, remove any trustee or member of the corporation, after due notice to such person and afford- ing him an opportunity to be heard in his defense. 11. The trustees may require security from the officers, clerks and agents of the corporation, and fix the salaries of such oflflcers, clerks and agents. 12. No trustee shall receive any compensation for his services as trustee, except as hereinafter provided ; nor shall he he liable for any loss except such as may happen from liis negligence or wilful or corrupe misconduct. 13. No trustee, officer, clerk or servant thereof, shall di rectly or indirectly, for himself ar as the agent or partner of others, borrow any of the funds or deposits of the corpor ation, or become an endorser or surety for any moneys loau- "ed by such corporation. 14. Such savings bank may receive on deposit any sum or sums of money that may be offered for that purpose, and invest the same and declare credits and dividends thereon, as hereinafter authorized and not otherwise. 15. The sum or sums so deposited, together with any dividend credited thereon, shall be repaid to such depositors, respectively, or their legal representatives, after demand, in such manner and at such times, and after such previous no- tice and under such regulations as the board of trustees shall prescribe; which regulations shall be printed in the pass books or other evidence of deposit furnished by the cor- poration, and shall be evidence of the contracts; provided, ,That ,e(?ery such corporation may limit the aggregate amount which any one person may deposit, may refuse to receive a deposit, and may at any time return a deposit. Money deposited becomes property of bank, subject to payment on de- mand, unless prOTided otherwise by contract. Zinn vs. Mendel, 9 W. Va., 580. 16. The board of trustees of every such corporation shall 21G WEST VIRGINIA CORPORATIONS. have full power, at their discretion, to pay on application to any minor or married woman, whether the deposit was mide by ii woman, before or after marriage, such nioni'y, or any part thereof, aw he or she may have'aeposited to his or \\iH' credit, or any interest or dividend accruing thereon, without the asseni; of the parent or guardian of such minor, or the husband of such married woman, as the case may bf. And whenevi'r it snail become apparent to the trustees or officers of any such corporation that it would be unwise or injurious to the interests of a minor to pay upon his or her applicatiofn any money standing to his or her credit, the board of trustees may demand a written order to make such payment from the parent or guardian of such minor; and, in event of the minor having neither parent or guardian, may require an order from the circuit court of the county in which such minor shall reside, before making such pay- ment. 11. The trustees of any such savings bank shall in- vest the deposits of the bank and the incojne derived there- from only as follows: First. In tirst mortgages or deeds of trust on real es tate situate in this State, or in states contiguous thereto, such real esi;:!e in another state not being situated a' a (lisiaiue exceeding fifty miles from such bank, to an amount not to exceed sixty per cent, of the valuation of such real estate; and no loan on real estate security shall be made exce])t upon the report of not less than two mem bers of the board of trustees, who shall certify to the value of the iircinises In lie encumbered, according to theiv besi judgment, and such rei)ort shall be filed and preserved with the records of the corporation. Second. In bonds or securities of the United States, oi- of any state, or of any county, district, city, town or vil- lage in this State, .or in any bonds for which the faith ot the United States is pledged; or in the notes of any citi- zen of this State, with a pledge of any of the aforesaid se- cnrilics at no more .'Ian eiglity ]ie;- cent, of the nut' Im i value and not exceeding the par value thereof. Third. In the notes of any citizen of this State with a pledge as collateral of the stock of any bank or banking association incorporated under the authority of this State or of the ITnited Stales, at no more than eighty per cent, of the markelil m\\\w and. rot exceedinsj the pai value thereof: ])r()vided, That such corjjoration shall not hold as security for loans more than one ((uarter of the capital stock of any one bank or banking association. Savings banks may de- posit not to exceed twenty ]»er cent, of their deposits, on WEST VIRGINIA CORPORATIONS. 217 call, in such banks or banking associations, and may receive interest for the same. Fourth. In loans upon personal notes of the depositors of the lorporation, but not exceeding the amounc of his de- posit to a di'positor; and in such r-.ses the depoNii i.i.d book of the depositor shall be held by the corporation as collateral security for the payment of the loan. Fifth. If such deposits and income cannot be cor-veii. iently invested in the modes hereinbefore prescril,'cd. not exceeding one third jiiKl thereof laay oe inv.'i-'t(;d lu IumkIi- ( r other person il sc;,uri1ies, ))J,yable at a tmie not ex 'eedinj; one .year, with at least two sureties, if the T)rinc1oi. and sureties are all citizen of this State and residents therein. Sixth. Fifteen per cent, of the deposits of any such cor- poration, but not exceeding one hundred thousand dollars, may be invested in the purchase of a suitable site and the erection or preparation of a suitable building for the con venient transaction of its business; and from. portions of w^hich, not required for its own use, a revenue may be de- rived. Seventh. Ajiy t^iidi (ornoratio:! i:.ay take real estate, stocks, bonds and securities in payment in whole or in part, of any debt bona lidi' owing to it, or iiiay purchase th( .-iaine if deemed necessary to secure or obtain payment of any sn.-h debt in \^hole or in part;-ani may manage, iise ni\(\ dispose of what has been taken or purchased as a natural person might do; but all such real estate shall be sold by it within fiye years after the title thereto is vested in the corporation; provided, however, that the circuit court of the county in which such real estate is situate, may upon pe- tition of the trustees of any such saving& bank, and for good cause v'-liown, jirsuit an additional time, not exc edint; two jears, viilhin whi h such real estate mav be soli Acts 1899, ch 45. 18. Investments shall be made as soon as practicable, except that for the purpose of meeting current expenses and payments in excess of receipts, there may be kept an avail- able fund not to exceed ten per cent, of the whole amount of deposits, and such fund may be invested only in such loans as are ))riiv)ded f ( r in sub-di\'sions two, thro, io ir, five, and seven, of section seventeen. 1 9. The excess of current receipts over the payment may be deposited to the credit of the corporation in such bank as may be designated by the trustees ; and money so deposited shall be withdrawn only on the checks of the president or treasurer, countersigned by such officer as the trustees may designate. 218 WEST VIRGINIA CORPORATIONS. 20. The real estate which it shall be lawful for any such corporation to purchase, hold and convey, shall be only such as is hereinbefore provided. 21. All applications for loans shall be made in writing through the treasurer of the corporation, who shall keep a record thereof, showing the date, name of applicant, amount asked for, and the security offered, and he shall cause the same, to be presented to the investment committee of th(» board of trustees, and in all cases of loans upon real estate the borrower shall be required to pay all expenses attend ing the examination of title and securing the money loaned. 22. No savings bank organized under this act, shall make or issue any certificate of deposit, or pay interest on a de posit, except semi-annual dividend, nor pay any interest or deposit, or portion of a deposit or check drawn upon itself by any depositor, unless the pass-book of the depositor be produced and proper entry be made therein at the time of the transaction: provided, however. That the trustees may provide for making payments in cases of losses of pass books; and, provided further. That payments may be made upon the order of a court, or the power of attorney of a de- positor. 23. Every such savings bank, shall at the time of making such semi-annual dividend, reserve as a guaranty fund from the net profits which have accumulated during the six months then next preceding, not less than one-eighth nor more than one-fourth of one per cent, of the whole amount of deposits, until such fund amounts to five per cent, of the whole amount of deposits; which fund shall be thereafter maintained and held to meet losses in its business from depreciation of its securities or otherwise. 24. The income or profit of every such savings bank, after a deduction of all reasoaiable expenses incurred in the man- agement thereof and the guaranty fund, shall be divided among its dcposilors, or their legal r^^p-'esentatives, ;". liiriis fixed by its by-laws, in the following manner: Ordinary dividends shall be made every six months and shall not exceed two and one-half per cent, on all sum« which have been on deposit for six months preceding, or one and one-foui'th per cent.; on all sums which have been on de- posit for three months preceding; and no ordinary dividends shall be declared or paid except as above provided, nor up- on a deposit of less than three months standing, and any such savings bank may by its by-laws, provide that no div- idends shall be declared or paid on a less sum than three dollars or on the fractional part of a dollar. 2.5. If at the time provided by the by-law for making WEST VIRGINIA CORPORATIONS. 219 ordinary dividends, the net profits for the six months pre ceding, over and above the sum to be added to the guaran ty fun's, do not amount- to one per cent, of the deposits, nci dividend oi the profits shall be declared or paid. 26. Once in every term of three years, if the net profits, accumulated over and above said guaranty fund and divi- dends, amount to one per cent, of the deposits which have remained' in such savings bank for one year then next pre- ceding, such net profits shall be divided among the depos- itors whose deposits have remained therein for one year at least then next preceding, in proportion to the amount of dividends which have been declared on their deposits dur- ing the three years then next preceding. 27. No dividends shall be declared or paid until the trustees cause an examination to be made and find that tho^ amount thereof has actually accrued, and no dividend or interest "shall be paid unless authorized by an aye and no vote of the trustees, recorded in their minutes, after such an examination. 28. Tt shall be lawful for the trustees of any such savings bank to receive such reasonable compensation, when act- ing as oflScers or agents of the corporation, each year as the majority of the members of the corporation at their annual meeting shall by resolution prescribe for specified duties to be performed, such resolutions being approved by the judge, or judges, of the circuit court of the county in which said savings bank is located, but it shall not be lawful to pay trustees, as such, for their attendance at meetings of the board. This section repealed. Acts 1899, cli. 45. • 29. Tt shall be the duty of the trustees of every such savings bank, by a committee of nort: less than three of theii' number, in the months of January and July in each year, to thoroughly examine the books, vouchers and assets of such savings bank, and to make a statement of its assets and liabilities, and to publish the same in a newspaper of general circulation in the county in which such bank is lo- cated, at least twice within ten days from the completion of such statement; which said statement shall be verified by the oath of a majority of the trustees making such exam- ination. Acts 1899, ch. 45. 30. The circuit court of the county in which any such savings bank is located, may, at any time, on application under oath, of any five or more oflScers, trustees or deposit- ors of any such corporation, and such depositors representing deposits aggregating at least two thousand dollars, setting 220 WEST VIRGINIA (^ORrORATIONS. forth their interest, and the reason for malting such exam- ination, for reasons deemed suflicient by said court, ap- point two or more persons to examine into the investments lliereof, and its affairs and business generally, The books, papers and business of such corporation shall be open and subject to the examination of such persons, and the trus- tees, officers, and clerks thereof, or iiny other person, may be examined on oath by such persons; and the said court may confer such other powers on the persons so appointed as they may consider necessary for the more thorough and perfect examination of the affairs and business of such cor- poration; the said persons so appointed shall report the re suit of their investigation to the said court, who, if satis fied thereby, that any trustee, officer or servant of such cor ])oration has been guilty of any fraud or misconduct, may remove such person or persons, and make further order and take such further measures for securing the funds and prop erty of such corporation as the said court may deem expe- dient. The costs and fees attending such proceedings shall be within the discretion of the said court, and may be ad- judged either against the petitioners or the funds of such corporation, as the court may determine. 31. Any trustee, officer, or agent of any such corporation, who shall authorize or make an investment in any securi- ties not named in i:his act, shall be guilty of a misdemeanor, and lined not less than one hundred dollars, and imprisoned not less than one year. 32. Every such corporation may, at any time, hold spec- ial meetings of its members by -order of its trustees, and itis treasurer shall also give notice of special meetings of the; members upon the requisition in writing of any ten mem- bers of the corporation. Notice of all meetings shall be giv- en by public advertisement in some newspaper of the coun ty where the corporation is established, and by seasonably mailing to each member a written or printed notice of such meeting. 33. Any member of any such corporation may, at an an nnal meeting, withdraw from the corporation, if he has filed with the treasurer a written notice of his intention so to do, three months at least before such meeting. And no person shall continue to be a member after removing from the State. ^>4. The board of trustees of every such corporation shall, in the month of January of each year, or al the time of publishing the first semi-annual statement of such cor ]ioiation each yeai', cause to he published at the same time, and newspaper or Tiewspa])ers, ii complete list of the un- WEST VIRGINIA CORPORATIONS. 22i claimed deposits, on which at least the sum of five dollars shall then be due, and which shall have been deposited by persons who have not within ten years then next preceeding made a deposit or received credit for a dividend or receiveo a payment from such corporation. Acts 1899, ch. 45. 35. Every such savings bank is authorized and empower- ed to pay any order drawn upon it by any person who has funds on deposit to meet the same, notwithstanding the death of such drawer in the *interval of time between sign- ing such order and its presentation for payment, when said presentation shall be made within thirty days after the date of such order, and at any subsequent period, provided, the depository has not received actual notice of the death of the drawer. 36. When a deposit is made in any such corporation by any one in trust for another, the name and residence of the person for whom it is made shall be disclosed, and it shall be credited to the depositor as trustee for such person ; and if no other notice of the existence and terms of a trust has been given in writing to the corporation, in the event of the death of the trustee, the deposit, with the interest thereon, may be paid the person for whom such deposit was made, or to his legal representative. 37. The members of any such corporation may at any time, in any annual meeting, or meeting called for the pur- pose, resolve to discontinue the business of the corporation, a majority of all the members being present and voting in favor of such discontinuance; and may divide among the de- positors, in proportion to their respective interests therein, the property and assets that may remain after paying all debts and liabilities of the corporation. Public notice of such resolution shall be immediately given by advertise- ment, in some newspaper or newspapers of general circu- lation in the county where such savings bank is located once a week for six successive weeks at least, before any dividend of the funds of the corporation shall be made; and the said resolution shall be forthwith certified by the president under his hand and the common seal of the cor poration, to the secretary of state, who shall preserve the same in his office, and deliver a copy to the clerk of the house of delegates, to be printed and bound with the acts of the legislature. 38. When any such corporation shall expire or be dis- solved, its property and assets shall, under the order and direction of the board of trustees then in office, or of the receiver or receivers appointed for the purpose by the circuit court of the county in which such savings bank is located. 222 WEST VIRGINIA CORPORATIONS. be subject to the payment of the liabilities of the corpora- tion and the expenses of winding up its affairs; and the surplus, if any then remaining, tO' distribution among the depositors according to their respective interests. And suits may be brought, continued or defended, the property, real or personal, of the corporation be conveyed or trans- ferred, under the common seal or otherwise, and all lawful acts be done, in the corporate name, in like manner and with like effect as before such dissolution or expiration; but so far only as shall be necessary or proper for collect- ing the debts and claims due to the corporation, converting its property and assets into money, prosecuting and pro- tecting its rights, enforcing its liabilities, and paying over and distributing its property and assets, or the proceeds thereof, to those entitled thereto. 39. Every corporation subject to this act shall exhib'C its books, papers and property, to such agents or commit- tees, as the legislature may from time to time appoint to examine the same; and when required by the legislature, shall report thereto a full, fair and detailed exhibit of its property, liabilities and condition, verified by the oath of the president, and of the treasurer or principal bookkeeper. 40. Savings banks incorporated under this act shall be subject to the provisions of the fifty-second, fifty-third, fif ty-fourth and fifty-fifth chapters of the code so far as the same are applicable. CORPORATIONS FOR CONSTRUCTING BOOMS. (Code 1891, p. 1004.) COUNTIES IN WHICH INCORPOEATION AUTHOR IZED. 1. Any number of persons, not less than five, may become an incorporated company for the purpose of constructing any boom or booms with or without piers, dam or dams, in the rivers, creeics or other streams within any of the following counties in this Stale, to-wit: Gilmer, Greenbrier, Hamp- shire, Putnam, Summers, Ealeigh, Fayette, Mineral, Poca- hontas, Pleasants, Nicholas, Webster, Lewis, Wetzel, Jack- son, Wyoming, Tucker, Preston, McDowell, Randolph, Bar- bour, Mercer, Logan, Calhoun, Braxton, Cabell, Boone, Up shur, Monroe, Wood, Ritchie and Kanawha, (except Elk river and its tributaries, within the limits of Kanawha county, and Cheat river within the boundaries of the county of Monongalia), which may be necessary for the purpose of stopping and securing boats, rafts, logs, masts, spars, lum- ber and other timber. No such boom or dam shall be con- structed in any of the rivers, creeks or other streams of the State which are navigable by steamboats at any ordinary stage of water above the places where such boom or dam is proposed to be located. [As amended by ch. 17, acts 1893.] Acts 1877, en. lai. Acts 1881, en. 39. Acts 1883. ch. 27. Acts 1893, ch. 17. Acts 1882, ch. 12. Acts 1885. ch. 25. 43 W. Va., 647. 41 W. Va., 798. Acts 1889, ch. 8. HOW TO ORGANIZE. 2. Such persons shall organize by adopting and signing articles or incorporation, which shall be acknowledged by 224 WEST VIRGINIA CORPOEATIONS. the several incorporators before some person authorized to take acknowledgements of deeds, and such acknowledge- ments shall be certified by the officers before whom they are made, and be recorded in the office of the clerk of the county court in the county in which any such boom may be constructed, and ib the office of the secretary of state. The organization of such proposed corporation shall take place within six months from the filing of such articles in the last named office. 3. Such articles shall contain: First. The name of the proposed corporation. Second. The place at or near which it is proposed to construct such boom or other structure for the purpose aforesaid. Third. The place at which shall be established and main tained the principal office of such corporation. Fourth. The time of commencement and the period of continuance of such proposed corporation. Fifth. The amount of cajiital stock of such proposed corporation, the number and amount of shai'es at the par value thereof. Sixth. The names and places of residence of the several persons forming the association for incorporation, and the number of shares subscribed by each, and that at least ten per cent, of the par value of each share has been paid. And the affidavits of at least two of the corporators named in the agreement shall be annexed thereto to the effecr that the amount stated to be paid on the capital stock has been, in good faith, paid in for the purposes and business of the intended corporation, without any intention or un- derstanding that the same shall be withdrawn therefrom before the expiration or dissolution of the corporation. CERTIFICATE OF SECRETARY OF STATE. 4. When the articles shall have been filed and recorded as aforesaid, the secretary of state shall issue his certificate in accordance with secioion nine of chapter fifty-four of the code of West Virginia, and the persons named as corpora- tors- shall thereu]ion become and be deemed a body corpor- ate, and shal be authorized to pioceed to carry into effect the object set foi'tli in sucli articles, in accordance with the provisions of this act. As such body corporate they shall have succession for llie time limiled in (he articles of in corporation, and, in their corj)orate name, may sue and be sued, jilead iind be impleaded. The said corporation shnll have a common seiil, which it niiiy alter at pleasure; may declare WEST VIRGINIA CORPOKATIONS. 225 the interest of its stockholders transferable; shall estab- lish by-laws, and may liiake all rules and regulations deemed necessary for the. management of its affairs, in accordance with law. A copy of any articles of incorporation filed and recorded in pursuance of this act, or the record thereof, and certified to be a copy by the secretary of state, shall be presumptive evidence of the incorporation of such com pany and of the facts therein stated. RECORDING OF BY-LAWS. 5. A copy of the by-laws of the corporation, when form- ed and adopted by the stockholders, duly certified, shall, within thirty days after their adoption, be recorded as pro- vided for the recording of the articles of incorporation in section two of this act. And all amendments and addi- tions thereto, duly certified, shall also be recorded as here- in provided, within ninety days after they have been adop- ted. MEETING OF CORPORATORS. 6. Every such corporation organized under the provis- ions of this act, shall hold its first meeting at such time anA place, as may be designated by the incorporators thereof, and all subsequent meetings at such place or jilaces, in o^ out of this State, as the directors may from time to tinie appoint, except as hereinafter specially provided, and the stockholders shall have authority at their first meeting, or any subsequent meeting, to fix and determine the place of meeting (in or out of the State) of the directors and the prin- cipal office or place of business of said corporation. Such corporation shall have and maintain an office or place of in this State for the transaction of business, where an exhib- it of all transfers of stock shall be kept, and in which shall be kept, for inspection of any officer or stockholder, books wherein shall be recorded the amount of capital stock sub- scribed, and by whom, the names of the owners of its stock, the number of shares held by each person, and the number by which each of said shares is respectively designated, and the amount owned by them respectively; the amount of stock paid in, and by whom; the transfer of said stock, the amount of its assets and liabilitiep, and the names and places of residence of all its officers. APPOINTMENT OF A PERSON TO ACCEPT SERVICE OF PROCESS, ETC. 7. Every such corporation shall, within one hundred days 226 WEST VIRGINIA OOEPOEATIONS. after organizing, appoint, by power of attorney duly exe- cuted, some person residing in the county in this State wherein it has an office, to accept service on behalf of saiJ corporation, of any process or notice; the said power of at- torney shall be filed and recorded in the clerk's office of the county in which the attorney resides; and the admission to record of such power of attorney shall be deemed evi- dence of a compliance with the requirement of this sec- , tion. Any such corporation failing to comply with such requirement shall, during the continuance of such failure, forfeit not less than five hundred nor more than one thous- and dollars for evei^ six months that such failure contin- ues; and its property, real and personal, shall be liable to attachment in like manner as the property of non-resident defendants. And whether such attorney accept the attor neyship or noL the service of process upon such person so appointed shall "Be legal and binding on the corporation. CORPOEATE POWERS VESTED IN BOARD OP DIREC TOES. 8. All the corporate powers of every such corporation shall be vested in and be exercised by a board of directors, composed of not less than five nor more than thirteen per- sons, who shall be stockholdei's of the corporation, and shal! be elected at the annual meeting of the stockholders, which annual meeting shall be held at such time and place as may be prescribed by the by-laws; or if there be no such by-law, tl^en on the first Tuesday in September in each rear, at the principal office or place of business of the cor poration. The number of such directors, manner of the elec tion, and the mode of filling vacancies, shall be specified in the by-laws, subject to the pirovisions of chapter one hun dred and eighty-one of the acts of one thousand eight hun- dred and seventy-two and three, and shall not be changed except at the annual meeting of the stockholders. At all regular meetings, a majority in value of the stock of such corporation shall be represented either in person or bv proxy. Afts 1872 refeiTod to is section 44 oh. 53, Codo. Soc nets 1882, cU. 06. Directors must be stocklioUlpi-.s, but need not be residents of this Stntc. Hullng vs. Lumber Co., 38 W. Va., 351. SPECIAL MEETINGS. 9. A special meeting of the stockholders may be called at any time between the annual meetings, by a majority of the directors, or by the stockholders owning not less thaii ^YEST VIRGINIA CORPORATIONS. 227 one-fourth of the stock, by giving thirty days' public notice of the time and place of such meeting, and the object there- of, in some newspaper of general circulation, published near the principal office or place of business of the corpor- ation. If at any such meeting s® called, a majority in val- ue of the stock, equal to two-thirds of the stock of sucii corporation shall not be represented in person or by proxy, such meeting shall be adjourned from day to day, not ex- ceeding ten days, without transacting any business; and if within said ten days, two-thirds in value of said stock shall not be so represented at such meeting, then the meet- ing shall be adjourned sine die, and a new notice may be published as herein provided. FAILURE TO ELECT DIRECTORS. 10. In case it shall happen at any time that an election of directors shall not be made on the day of the annual meeting as provided for in the eighth section of this act, the corporation for such cause shall not be dissolved, if _ within six months the stockholders shall meet and hold an election for directors in such manner as shall be prescribed by the by-laws. Such meeting shall be called in the man ner prescribed in the ninth section of this act. It shall re quire two-thirds in value of the stock of such corporation to be represented either in person or by proxy at such meet ing last mentioned. PRESIDENT AND OTHER OFFICERS. 11. There shall be a president of such corporation, who shall be chosen by and from the board of directors, and such other subordinate officers as such corporation by its by-laws may designate, who may be elected or appointed, and shall perform such duties and be required to give such security for the faithful performance thereof, as shall be required by the by-laws. It shall require a majority of the directors to elect or appoint any officer and fix his compen sation; but there shall be"^no compensation for services rendered by the president or any director, unless it be al- lowed by the stockholders. No member of the board of di rectors shall vote upon a question in which he is interested otherwise than as a stockholder, or be present at the board while the same in being considered; but if his retiring from the board, in such case, reduce the number present below a quorum, the question may, nevertheless, be decided by those who remain. Acts 1877, ch. 121, sec. 11. 228 WEST VIRGINIA CORPORATIONS. ANNUAL STATEMENT. , 13. At the regular annual meeting of the stockholders i1( sjiall be the duty of the president and directors to exhib it a .full, distinct arid accurate statement of the affairs of such corporation, and at any meeting of the stockholders a.jjaajqrity ,of those present, either in person or by proxy, roay require Mmilar statements from the president and di- rie,9tiors; and at any regular meeting of the stockholders, a ii;ig,jority,in value of the stock may fix the rate of interest ,wiiiAli,,sl'all be paid by the corporation for loans for the construction of such boom and its appendages, and the amount of such loans. All stockholders shall, at all reason able hours, have access to, and may examine all books, records and pa'pers of such corporation. Acts 1877, ch. 121, sec. 12. rMoval of directors. 13. |At any special meeting, by a two-thirds vote in val- ue, of ail the stock, such stockholders may remove any one or all pf the directors, and elect others instead of those re- moved in the manner prescribed in the eighth section of this act; but a vacancy not caused by such removal may bi; Lulled, by the board of directors. The proceedings of all Bie^tlpgs, whether regular or special, shall be entered on the journal of said corporation. Acfs 1877, ch. 121, sec. 13. PAYMENT BY SUBSCRIBERS. , 14. The directors may require the subscribers to the , capital stock to pay the amount by them respectively sub- scribed, in such manner and in such installments as they may deem, proper. If any stockholder shall fail to pay any installment, as required by a resolution or order of the boar.i of, directors, the said board shall be authorized to declare such stock, and all previous payments thereon, forfeited for the use of the corporation, in the manner following, to- wit: They shall first cause a notice in writing to be served on the stockholder personally or by registered letter depos- ited in a post office, with necessary postage for its trans- mittal, properly prepaid and properly directed to the post ..oflQ,ce {iddress of such stockholder, and stating therein that, in accordance with such resolution or order, he is requested to make such payment at a time and place and in the man- , n,er to be specified in such notice, and that if he fails to make the same in the manner prescribed, his stock and all previous payments thereon, will be forfeited for the use of WEST ymG;[K|A COKpQEATipNS. ,,229 such corporation ; and thereafter, should default in pay- ment be madej the corporation may sell the same at public sale, and after deducting the expenses of the proceedings, shall apply the residue to the payment of the installment due under the call of the directors, and if there tie any sur- plus then remaining, it shall be paid to the delinquent Stock- holder. But the notice, as aforesaid, shall be personallj served or duly deposited as above required, at' least sixty days previous to the day on which payment is required to be made. Acts 1877, ch. 121, sec. 14. STOCK DEEMED PERSONAL PROI^EETY. 15. The stock of such corporation shall be deemed person- al property, and shall be transferable in the manner prescrib- ed by the by-laws, but no share shall be transferred until all previous calls thereon shall have been paid. Acts 1877, ch. 121, sec. 15. INCREASE IN CAPITAL STOCK. 16. In case the capital stock shall be found insufficient for constructing and operating such boom or booms, 6r oth- er structures, such corporation may, with the concurrence of two thirds in value of its stock, increase the capita? stock from time to time to any amount required for the purpose aforesaid, in the manner following, to- wit: iJ'btice shall be given by the directors^ to each stockholder in Writing, to be served personally or by depositing the same in a post- offlee, directed to the postofflce address Of each' stockholder separately, with necessary postage for its transniittar prop- erly prepaid, at least sixty days prior to the day ap|)ointed for such meeting, and by advertising the same in ^ome newspaper published near the principal office of such cor- poration, at least four weeks prior to the day appoints for such meeting. Such notice shall state the time and place of such meeting, the object thereof, and the amount to which it is proposed to increase the capital stock. At such meeting the capital stock may be increiased to an aJnount not exceeding the amount mentioned in the notice, by an affirmative vote of not less than two-thirds in value of all the stock. Every order or resolution increasing the Capital stock of any such corporation shall be duly recorded as re- quired by section two of this act. The additional stock so authorized shall in no case be sold at less than par Value of the original stock. Acts 1877, ch. 121, sec. 16. 230 WEST VIRGINIA CORPORATIONS. LIABILITY OF (iUARDIANS, ETC. 17. No person holding stock in such corporation as ex ecutor, administiator, guardian or trustee, and no person holding such stock as collateral security, shall be personally liable as a stockholder; but the person pledging the stock shall be considered as holding the same, and shall be lia ble as a stockholder accordingly. Acts 1S77, ch. 121, sec. 17. LIABILITY OP STOCKHOLDER. 18. Each stockholder shall be held individually liable to the creditors of such corporation to an amount not ex ceeding the amount unpaid on the stock held by him, and no more, for any and all debts and liabilities of the corpoi- ation. Acts 1877, ch. 121, sec. 18. HOW CORPORATION MAY ACQUIRE TITLE TO REAL ESTATE REQUIRED FOR PURPOSES OF COR- PORATION, WHEN UNABLE TO AGREE WITH OWNER. 19. If any such corporation shall be unable to agree with the owner for the right of way or for the purchase of any real estate required for the purpose of its corporation or the transaction of its business, or for its boom or booms or other structures, or wharves, or for any other lawful pur- pose connected with, or necessary to, the building or opera- ting of such boom or booms or other structures, such corpor- ation may acquire such title in the manner as hereinafter provided, viz: The circuit court of any county wherein the land or material to be taken may be, upon application there for, shall appoint five disinterested persons (any three of whom' may act), for the purpose of reviewing and ascertain- ing a just and equitable compensation for the quantity of land actually taken by said corporation (but in no case shall the court appoint any person or persons who are in- terested in said corporation, or the land to be taken), and the sheriff of the county, after such appoinrnient is made, shall summon the said viewers, to meet on the land at such time as they may appoint, within thirty days after sucli ap- pointment, giving twenty days' notice to the parties inter ested, unless such parties shall he non-residents of this State, in which case notice shall he given to such non-resi- dents by publication, for four successive weeks, in some iiewH]ia])ei' published in the county in which said land is located, and if none be so published, then in some newspa- WEST VIRGINIA CORPORATIONS. 231 per of general circulation in said county; and such viewers shall not meet for the purposes of their appointment until the publication herein prescribed shall have been complet- ed. The viewers aforesaid, shall, before proceeding to per- form the duties aforesaid, take an oath before some person authorized to administer oaths, that they, and each of them, will honestly, fairly and impartially, ascertain and deter- mine the amount said corporation shall pay for the land actually taken as aforesaid, and the damage to the residue of the tract, and return their report, signed by them, to the clerk of the court, prior to the first day of the term there after, wherein the proceeding is pending, setting forth there- the amount to be paid for the land so taken or to be taken, by said corporation. And estimating the value or damages on account of the land actually taken, the viewers or jury, as the case may be, shall determine its actual value, without ref erence to any prospective enhancement by reason of the con- struction of any work for which the land is to be taken, and shall not diminish the value by reason of such construction. On the first day of said term the said court shall direct judg- ment to be entered on said report for the amount therein ascertained and determined by said viewers, if no excep- tions be taken and filed, but if exceptions be taken and fil- ed thereto, and when required by either of the parties, such compensation shall be ascertained by an impartial jury of twelve freeholders selected according to law. The right is hereby given to said corporation to object, and its objection shall be sustained, to any juror who may be owners of or interested in such land. Thp cause or proceeding shall be tried a,s any other cause in said court, and the viewers, as well as the jury aforesaid, who may try the cause or pro- ceeding, shall, by their award or verdict, as the case may be, ascertain and determine the amount to be paid by the cor- poration for the land actually taken and the damage to the residue of the tract. But there shall remain In the owner of the residue of the tract, his heirs and vendees, the right of way over such land so taken to get water for the use of per- sons occupying said land, and their stock. [As amended by chapter 38, acts 1893.] 20. Any such corporation may, by their agents and em- ployes, enter upon and take from any land adjacem to its boom, earth, gravel, shale, stone or other materials, except wood for fuel, necessary for the construction of such boom or ether structure, paying, if the owner of such land and the said corporation can agree thereto, the value of such mater- ial taken and the amount of damages occasioned thereby to any such land or its appurtenances; and if such owner and 232 WEST VIRGINIA CORPORATIONS. corporation cannot agree, then the value of such material and the damage occasioned to such real estate may be as- certained, determined and paid in the manner prescribed in section nineteen of this act; but the value of such mater ial and the damage to such real estate shall be ascertained, determined and paid before such corporation can enter up on or take the same. ADDITIONAL POWERS OP SUCH CORPORATIONS. 21. Every corporation formed under this act shall in ad- dition to the powers herein conferred have power : First. To cause such examination and survey for its proposed boom or other structure to be maide, as may be necessary to the selection of the most advantageous site; and for such purposes by its officers, agents, engineers or employes, may enter upon the lands or waters of any per- son or corporation, but subject to responsibility for all dam- ages that may be occasioned thereby. Second. To take and hold such voluntary grants of real estate and other property as shall be made to It, on and for the construction of its boom, and to reconvey the same when no longer required for the use of such boom or booms and incompatible with the terms of the original grant. Third. To purchase, hold and use all such real estate and other property as may be necessary for the construc- tion and use of its boom, and the stations and other accom- modations necessary to accomplish the object of its incor- poration, and to convey the same when no longer required for the use of such boom. Fourth. The said corporation shall, after erecting its boom, have the exclusive privilege of maintaining a suita- ble boom or booms, with or without piers, dam or dams, across the stream designated within two miles above its boom^ so erected for the purpose of stopping and securing boats, rafts, saw-logs and other timber of value; but such boom or booms shall be so constructed as to pei'mit boats, rafts and other timber, when desired by the owners, -to pass them without unavoidable delay, and without paying toll, boomage or other charges, and may erect shear booms on the rivers and other streams, and may dredge and clear the channels thereof, and remove obstructions therefrom, and may build saw-mills on land acquired in any other way than by condemnation; and manufacture and sell lumber and construct tram-railways and dams, and do such other work as may be necessary for the purpose of getting logs and lumber to, down and from the river and its branches, on WEST VIRGINIA CORPORATIONS. 23;{ which said boom is located; and in the event the lands nee essary for such tram-way cannot be purchased from the owner or owners thereof at a reasonable price, then the said corporation may have the same condemned for such purpose in the manner now provided by law for cases of similar na- ture; provided, That nothing.in this section shall be so con- strued as to prevent any boom company from using water surface for two miles below its boom for atssorting and bunching its awn and other boats, rafts, saw-logs and other timber of value,, and that no company shall so construct its boom as to deprive another company of such right, nor shall any boom company which may construct a boom with- in two miles below a boom heretofore constructed have ex- clusive privileges of the water or stream above such other boom. Miller vs. Hare, 43 W. Va., 647. If indicted under section 24, ch. 44 Code, corporation may defend under tliis act. State vs. Boom. Co., 41 W. Va., 798. Fifth. The said corporation is authorized and empower- ed to purchase, hold and sell timber lands, and lands neces- sary for the saw-mills, lumber yards, tram-railways and wharves. Sixth. Boomage or toll shall be charged at a rate not less than twenty-five cents nor mci'e than one dollir per thous- and feet board measure; or not less than twenty nor more than eighty cents for one hundred cubic feet; except as here inafter provided, which rate shall be determined by a com- mission in the manner following, to-wit: The circiiit Court of each county, whose timber can be floated into the boom, or the judge of such court in vacation, shall appoint one person, not a stockhQlder in said corporation, or otherwise interested therein, and the said corporation shall appoint a person not a stockholder, or otherwise interested in said corporation, and if the number of persons so appointed be even, they shall choose an odd number. The persons so ap- ' pointed and. chosen shall be versed in the timber and lum- ber business, and be qualified to make such measurements and calculations as may be necessary. Persons so appoint ed or chosen shall constitute a commission, whose duty it shall be to fix the rates of boomage which the corporation may charge; and in determining this, rate they shall take in- to consideration the ease or difflculty, as the case may be, of booming logs, etc., in said boom, and also any extraor- dinary expenditure of money which the corporation may have made to facilitate their business; and the said commis- sioners shall fix a rate, which shall be in their judgment a fair and just compensation to the corporation for the capi 234 WEST VIR(}INIA CORPORATIONS. tal invested and labor performed in booming logs, timber, etc., in the limits above prescribed. And said commissioners may, in their discretion, or when requested to do so by par- ties interested, fix the separate rate which shall be charged for logs, ties, lumber, staves, or any other specific kind of lumber or timber which may be floated in such boom, by the hundred, thousand, or by bulk, as the case may be. The report of such commissioners shall be filed in the office of the clerk of the circuit court of each county in which a com missioner was appointed, and published in some newspaper of general circulation in the counties interested in said boom, and within ten days after the report has been agreed upon. Should the corporation or any interested party not be satisfied with the report of the commissioners, they may take exceptions thereto, which exceptions may be heard by the judge of the circuit court of any county interested, in tef m time or at chambers, and if it appear to the -tourt or judge that the rates established by the commissioners are unjust, either to the corporation or private persons, said report may be set aside and a new commission appointed. But unless exceptions are taken to the repoi't of said com- missioners within sixty days after the filing of the same, the report shall be taken as confirmed, and be binding ui)<)n all parties interested. Any corporation organized under the provisions of this act, or any party interested, may, if it so desire, ask for a commission once every five years, to revise the rate of boomage; such commission to be consti- tuted as provided for in this section. When the stream boomed lies wholly in one county, there shall be tvio com missioners appointed by the circuit court of that county, who, together with the one appointed by the corporation, as hereinbefore provided, shall constitute such commission. Tf any controversy arise between the said corporation and any person or persons having timber or other lumber in said boom, on account of such lumber or the hates of boomage, the commissioners authorized to be appointed by this sec- tion may, if the parties interested and such corporation so desire it, act as arbitrators to settle the same in such man- ner and with such result as the law provides in ('ther cases of arbitration. The commissioners appointed under this section shall receive three dollars per day for their services, to be paid by such corporation, except that after the rates have been fixed, any subsequent commission shall be paid by the party asking it. Seventh. The said corporation shall have a lien on all saw-logs and other timber and lumber thus boomed for the WEST VIRGINIA CORPORATIONS. 235 payment of all tolls for booming, until the same shall be paid. 43 W. Va., 647. Eighth. If any timber shall have been boomed securely, as aforesaid, and no person shall appear to claim the same, and pay the tolls thereon, within ninety days, it shall be lawful for the corporation, after advertising the same for three weeks in some newspaper published nearest the said boom or booms, and by posting the same for three weeks, at three public places nearest the said boom or booms, re- citing the marks, if any, to make application to any justict- of the peace of the said county, whose duty it shall be, upon proper proof of the publication and posting of such notice, to direct a sale of such timber, and designate some officer or other person to make such sale, either by public auction or by private sale, as to the justice shall seem most advanta geous to the parties interested; and at any time within a year from said sale, the owner shall be entitled to receive the proceeds thereof, after deducting the toll and expenses ; but if not claimed within the said one year, the proceeds shall inure to and be vested in the general school fund. Ninth. Where several companies are operating on the same stream, the upper companies shall pass free of charge through or around their booms, with as little delay as pos- sible, all logs, lumber, etc., distinctly marked as belonging to or in care of the boom or booms below them. Acts 18T7, ch. 121. Acts lUUl, ctl. iSi). Acts 1891. ch. 75. DAMAGES FOR WILFULLY INJURING BOOMS, PIERS, ETC. 22. If any person or persons shall wilfully and mali- ciously injure or destroy any of said booms or piers or other works connected therewith, or shall remove, alter or deface any mark or marks on any logs or otlier timber intended for said boom he shall pay treble damages to be recovered by an action of trespass, brought in the name of said cor- poration, before a justice or any of the courts of the county having jurisdiction in which he or they shall reside, or ii the county in which the offense was committed; and said person or persons so offending may also be subject to an in- dictment in the circuit* court for the county where the of fense was committed, and upon conviction thereof may be punished by fine and imprisonment in the discretion of the court. 236 WEST VIRGINIA CORPORATIONS. Acts 1877,ch. V2i: The words "County Court" are omitted; see Warth's Code 1891, p. 1013. Note. \VHEN PARTIES DISAGREE, HOW MEASUREMENT OP TIMBER DETERMINED. 23. If the parties interested shall not agree as to the meas- urement of the timber in said boom, it shall be done by com- missioners appointed by the circuit court of the county, or by the judge thereof in vacation, in which such boom is lo- cated; or the same may be measured, if the parties so de- sire it, by the commissioners authorized to be appointed, by the twenty-first section; the expenses of such commission, in either case, shall be paid by the party in error as to thu measurement, and if both parties shall be found to be in er- ror, said expenses shall be paid by them equally. Acts 1881, cb. su. LOGS, TIMBER, ETC., OP CORPORATION LODGED ON LAND OF ANOTHER, WITHIN WHAT TIME TO BE REMOVED. 24. If any logs, timber or other lumber of said corpora- tion while floating down any stream, be lodged upon any improved lands or enclosures of another, it shall be the duty of said corporation to cause the same to be removed there- from within sixty days from the time such logs, timber or lumber is so lodged. If any person shall, without the au- thority of said corporation, during the said sixty days, take, carry away, injure or destroy, or convert to his own use, any of said logs, timber or lumber, he shall be guilty of a misde- meanor, and fined not less than ten dollars, and at the dis- cretion of the court, be imprisoned not less than ten days. But the said corporation shall be liable to the owner of the land for any damages sustained by him by reason of saiJ logs, timber or lumber remaining thereon. Acts 1877, ch, 121; 1881, cH. 3». 41 W. Va., 598. OBSTRUCTING STREAMS. 25. In case the owner of logs or other lumber placed in a stream above a boom erected thereon shall unreasonably delay driving said logs or lumber into said boom, so that persons, wishing to use said stream for driving or floating logs or other lumber into such boom, shall be compelled to drive said logs or lumber into the boom, or break any jam W:ES,T VIRGINIA CORPORATIONS. 237 to enable such person so to use the said stream, the reason- able expenses of driving or floating such logs or other lum ber, or breaking such jam, shall be borne by the owner of such logs or other lumber so obstructing said stream, to be recovered before a justice of the peace or other judicial tri- bunal having jurisdiction, and shall constitute a lien ou such logs or other lumber until the same shall be paid. 41 yv. Va., sas; idem, 7ae. Acts 1877, en. lai. LIABILITY OF CORPORATION FOR LOGS, ETC. 26. The said corporation shall be liable for all logs, tim- ber and other floatables, which may come into its boom, ex- cept when they sink in deep water, or are carried away by unusually high water, or are destroyed by fire not caused by the negligence of said corporation. Its agents or employ ees. Acts 1881, cb. iiU. MEANING OF WORDS "LOGS OR TIMBER." 27. Whenever the words "logs or timber" occur in this act, they shall be taken to mean logs and timber of every kind and description manufactured or unmanufactured. Acts 1877,eli. 121, RIGHTS OF PROPERTY HOLDERS ON SAID RIVERS, ETC. 28. Nothing in this act shall be so construed as to de prive the owners of mill property, and other proprietors on the said rivers and branches thereof, from recovering dam- ages for injury to their property by the said corporation, their agents or employes. Acts 1877,ch. 121. When individuals can proceed against boom company for maintaining a nui- sance. Miller vs. Hare, 43 W. Va., 647. Kodgers vs. Boom Co., 41 W. Va., 598, and cases cited. PROVISIONS OF LAW WHICH CORPORATIONS FORMED UNDER THIS ACT ARE SUBJECT TO. 29. All corporations formed under this act shall be sub- ject to the provisions of chapters flfty-two, fifty-three and fifty-four of the code of West Virginia, and the amendments thereto, except when the same are inconsistent with the 238 WEST VIRGINIA CORPORATIONS. provisions of this act. And the right is hereby reserved to the legislature to alter any charter or certificate of incor- poi-ation hereunder granted to a joint stock company, and to alter or repeal any law applicable to such company, Bni; in no case shall such alteration or rejjeal affect the right of the creditors of the company to have its assets applied to the discharge of its liabilities, or of its stockholders, to have the surplus, if any, which remains after discharging its li- abilities and the expenses of winding up its affairs, distrib- uted among themselves in proportion to their respective interests, or in any wise impair the vested rights of the cor- porators or any of them. Acts 1877, ch. 121. RESERVATIONS. 30. Nothing in this act contained shall be so construed as to affect or impair the right and power of the legisla ture to provide for the connection, by canal or slack water, of the waters of the Chesapeake bay with the Ohio river, by any line it may select, and all the rights, privileges and franchise of any company incorporated under the provisions of this act shall be held in subordination to the exercise of such right by the legislature. Acts 1877, cli. 121. nOOM COMPANIES HERETOFORE ORGANIZED MAY BE RE-ORGANIZED, ETC. .'>!. Any boom comjjauy heretofore incorporated may surrender its charter, and may procure a new charter and reorganize under the provisions of this act. Acts 1877, ch. 121. MEMORANDUM OF LOGS TO RE FILED WITH CLERK (M)UNTY COURT. 32. But before the persons driving logs into the said counties shall ]iut their logs in any of the streams of said counties for the purpose of driving them, they shall file a memorandum with the clerk of the county court wherein said logs are, stating distinctly the brand or marks of such person; and unless thes(> requirements are complied with, such coi'poration shall in no manner be held liable for any loss occasioned by the loss of said logs. Acts 1881, cli. 39. WEST VIRGINIA CORPORATIONS. 239 PUBLIC ROAD OR FORD NOT TO BE OBSTRUCTED. 33. No company incorporated under the provisions of this act shall so exercise its corporate privileges, as to ma- terially obstruct any public road or ford across any stream. Acts 1877. ch. 121. Acts 1881, ch. as. PROVISIONS OF THIS CHAPTER TO BE SUBMITTED TO A VOTE IN COUNTIES NOT MENTIONED; HOW. 34. The county court of any county, not mentioned in the first section, upon the petition of fifty voters tuereof, shall submit the provisions of this chapter to the voters of such county for adoption or rejection, at the next ensu- -» ing election for members of the legislature, and if a major- ity of the votes cast on the question be in favor of adopt ing the provisions of this act for such county, then the same shall be in force in said county to the same intent and pur- pose as though said county was mentioned in section one of this chapter. Acts 1881, ch. 39. OBSTRUCTIONS TO STREAMS. 35. That any person who shall fall timber and permit the same to remain in any of the streams of this State, that have been or may hereafter be declared public highways in the manner provided by law, that will obstruct the running of boats, rafts, staves, ties or timber of any kind, shall be deemed guilty of a misdemeanor, and upon conviction there- of, shall be fined not less than ten nor more than one hun- dred dollars for each offense. CoOe 1891, ch. 44, sec. ii4a; Acts 18SB, ch. m. RULES FOR THE MEASUREMENT OF LOGS, LUMBER AND TIMBER. 36. That "Scribner's rule" for the measurement of logs, lumber and timber of all kinds is hereby established as the lawful rule in this State for the measurement of all kinds of lumber, logs and timber, unless some other rule be agreed ' to. Code 1891, ch. 59, sec. 17a; Acts 1883, ch. 86. TIMBER DEALERS-PROTECTION OF. Code 1891, p. 1015. MAY ADOPT A TEADE MARK. 1. Any person, firm or corporation, dealing in timber in any form shall be called and known as "timber dealers," and as such may adopt a trade mark in the manner and with the effect hereinafter provided: Acts 1882, ch. 119. FORM OF NOTICE ; WHERE RECORDED. PUBLISHED, ETC. 2. Every such dealer desiring to adopt a trade mark, may do so by the execution of a writing in form and effect as follows: Acts 1882, eb. 119. TRADE MARK. "Notice is hereby given that I (or we, etc., as the case may be), have adopted the following trade mark to be used in my (or our, etc.), business as timber dealer (or dealers), to- wit: (Here insert the words, letters, figures, etc., constitut- ing the trade mark, or if it be any devise other than words, letters or figures, insert a fac simile thereof). Dated this day of , eighteen . A B ." The said writing shall be acknowledged or proved for rec- ord, in the same manner as deeds are acknowledged or prov- ed, and shall be recorded in the office of the clerk of the county court of the county in which the principal office or WEST VIRGINIA CORPORATIONS. 241 place of business of such tiniber dealer may be, and also in the office of the secretary of state, and a copy thereof shall be published at least once in each week for four successive weeks in some newspaper printed in such county, or if there be no such paper printed therein, then in some news- paper of general circulation in such county. Acts ISSl!, ch. lit). PENALTY FOR USING TRADE MARK OF ANOTHER. 3. Every trade mark so adopted shall from the date thereof be the exclusive property of the person, firm or cor- poration adopting the same, and any othef person, firm or corporation, knowingly using or attempting to use such trade mark without the written consent of the propriteor. thereof, shall be guilty of a misdemeanor and fined not less than twenty nor more than two hundred dollars for eacVi offense, and shall moreover be liable to the proprietor of such trade mark for all damages sustained by such propri etor by reason of such use of said trade mark. Acts 1882, ch. 119. HOW BRANDED, ETC., ON TIMBER; PENALTY FOR REMOVING, ETC. 4. The proprietor of such trade mark shall in using the same, cause it toi be plainly stamped, branded or otherwise impressed, upon each piece of timber upon which the same is placed, and any person who shall intentionally and with- out lawful authority, remove, deface or destroy said trade mark, shall be guilty of a misdemeanor, and subject to all the pains and penalties and liable toi the same damages as are provided for in the next preceding section. Acts 1882, eh. 119. * ' I PENALTY FOR TAKING, ETC., TIMBER BRANDED. 5. If any person knowingly and unlawfully buy, sell, take and carry away, secrete, destroy or convert to his own use, any timber upon which said trade mark is stamped, branded or otherwise impressed as aforesaid, or if any per- son shall knowingly and unlawfully buy, sell, take and car- ry away, secrete, destroy or convert to his own use, any tim- ber upon which said trade mark has been intentionally and without lawful authority removed, defaced or destroyed as aforesaid, he shall be deemed guilty of larceny thereof, and 242 WEST VIRGINIA OOEPOEATIONS. punished as in other cases of larceny, and ifthevalueof such timber be ten dollars, or more, he shall be guilty of grand larceny; and if any person shall intentionally put any such timber in such a position or place so remote from the stream from which it was taken, or on which it was afloat, as to render it inconvenient or unnecessarily expensive to replace the same in such stream, he shall be guilty of misdemeanor, and fined not less than twenty dollars. Acts 1882, ch. 119; 1891, ch. 124. PEOPEIETOR OF TEADE MAEK PUECHASING TIM- BEE DEEMED THE OWNEE THEEEOF, WHEN. 6. When timber is purchased by the proprietor of any such trade mark and the said trade mark is placed thereon, as hereinbefore provided, such timber shall thenceforth be deemed the property of such purchaser, without any other or further delivery thereof, and such timber shall thereaf- ter be at the risk of the purchaser, unless otherwise provi- ded by contract in writing between the parties. Acts 1882, eh. 119. COMPENSATION FOE CATCHING TIMBEE IN CER- TAIN WATEES; ^VHEN SUCH TIMBEE MAY BE SOLD; PEOCEEDS; HOW DISPOSED OF. 7. Every person who shall take up and secure any saw- logs, or other logs or trees prepared for the purpose for sale, or any cross or railroad ties, boards, planks, staves, heading or other timber prepared for market, of another, found adrift in the Ohio, Great Kanawha, or Little Kanaw- ha river, in which there is no boom in use for the preserva- tion thereof below the point where they are so found, wheth- er the same have thereon any such trade mark or not, shall be entitled to receive from the owner thereof, a compensa- tion for so much thereof as he shall deliver to such owner, as follows: For each saw-log or other log or tree prepared for sale, twenty-flve cents each. If the same be caught in rafts or parts of rafts, ten cents per log. For cross or rail- road tie, six cents. For boards or planks, if caught in rafts or large bodies, fifty cents per thousand feet, board meas- ure; for twenty thinsand feet, or a less quantity, and over l\.'-uly Lhousar.d feet, f?.^iity tlve cer+s per (.h ,isand T'sr, board measure; but if the same be not in rafts, but loost and scattered, two dollars and fifty cents per thousand feet, WEST VIRGINIA CORPORATIONS. 243 bonid mpa. and place of holding such meeting shall have been given by advertisement in some newspaper having a general circulation in the county where the meeting is to be held. . ANNUAL MEETING. 16. The annual meeting of the members of such com- puny shall be held as prescribed for the annual meetings of the stockholders of joint stock companies by the forty- WEST VIRGINIA CORPORATIONS. 258 first section of chapter fifty-three of this code, at which meeting there shall be elected by the members, or a majori- ty thereof, the board of directors and other officers for the ensuing year. QUORUM. 17, At the first meeting held for the purpose of organi- zing, a majority of the members shall constitute a quorum. The number necessary to constitute a quorum at all subse- quent meetings, shall be determined by the by-laws, and if at any time a quorum is not in attendance, those present may adjourn from time to time until a quorum is obtained. NUMBER OF VOTES EACH MEMBER IS ENTITLED TO. IS. At the first election of the board of directors each member shall have one vote and no more; and at all subse quent elections the number of votes to be cast by each mem- ber, and the mode and manner of. casting the same may be prescribed by the by-laws; but if not so prescribed, then each member shall have one vote, to be given either in per son or by proxy. SECTIONS OF CODE APPLICABLE. 19. The forty-fifth, forty-sixth, forty-seventh, forty- eighth, forty-ninth, fiftieth, fifty-first, flrty-second, fifty- third, fifty-fourth, fifty-fifth and sixty-first sections of chap- ter fifty-three of this code, shall be applicable to companies organized under this chapter, and in the applications of said sections the word "members" shall be substituted for the word "stockholders." QUORUM OP THE BOARD. 20. A majority of the board of directors shall constitute a quorum for the transaction of business, and, when author- ized by the by-laws, may appoint such officers or agents as may be necessary for the transaction of the business of the company, and remove the same at any time; and may require bond of the same, payable to the company, in such penalty and with such conditions and security as they may ""think proper, and, when so authorized, may accept or re- ject applications for insurance, and may determine the rates of insurance, the sums to be insured, and also the terms and conditions upon which insurance may be effect- ed by the company; and, when so authorized, may generally do any and all acts authorized by this chapter. 254 WEST VIRGINIA COKPOKATIONS. BOND. 21. Every person who shall become u member of such company, Ly effecting insurance therein, shall, before re- ceiving a policy, execute his bond, in which shall be de- scribed briefly and concisely the property insured, and shall also pay in cash such a per centum of said bond as he or she may be required to pay, and the said bond shall be paid at such times and in such installments as the same may- be required for the payment of losses by fire, and said bond shall bear interest, at a rate not exceeding three per cent, per annum, to be fixed by the board of directors, and at the expiration of the term of insurance the said boud, or such part thereof as remains unpaid after deducting its propor- tion of all losses and expenses incurred during said term, Shall be given up to the maker or makers thereof. And the clerk of the coui^ty court shall keep in his oflSce, in a well bound book, a mutual fire insurance docket, in which he shall record without delay any bond given as aforesaid, when he shall be required to do so, by any insurance compa- ny, organized under the law, and when such bond has been signed by the obligor thereof and acknowledged before the clerk of the said county court, or other person author- ized to t ake the acknowledgment of deeds. In such docket there shall be stated in separate columns : I. Names of parties. II. Amount of bond. III. Property described in said bond as insured. IV. Date of bond. V. The date of docketing it. Every bond shall, as soon as it is docketed, be indexed in the name of each defendant therein. If the clerk of a county court fail to do anything required of him by this section, ho shall pay a fine of not less than thirty nor more than one hundred dollars to any person who will prose- cute therefor, and for every bond recorded as aforesaid under the provisions of this chapter, the clerk of the coun- ty court shall be allowed fifty cents, to be paid by the par- ty having the same recorded. Everv bond given as afore said by any person or persons, shall be a lien on the real estate th'^rein described and insured, from the time it was duly admitted to record, just as a mortgage would be, and said lien so created may always bo enforced in a court of equity. Any lien acquired under this section shall be re- leased in the same manner and mode as prescribed in chap- ter seventy-six of this code, in case of a deed of trust WEST VIRGINIA OOEPOEATIONS. 255 WHEN POLICY VOID. 22. When property insured has been aliened by sale or otherwise, the policy shall thereafter be void, and the same shall be delivered up and annulled, and upon such delivery the insured shall be entitled to receive his or her deposit note, on payment of his or her proportion of losses and ex- penses incurred prior to such surrender; but the alienee or grantee having the policy assigned to him may, upon proper application, have the same ratified and confirmed to him for his own proper use and benefit, and thereafter shall be entitled to all the rights and privileges and be subject to all the liabilities to which the original party to whom the policy was issued was entitled and subject. LIABILITIES OP MEMBEES. 23. Every member of such company shall be bound to pay for losses, damages and such necessary expenses, as may be incurred by the company in proportion to his or her deposit or premium note. SUITS BETWEEN COMPANY AND MEMBEES. 24. Suits at law or in equity may be maintained by such company against any member thereof for the collection of his or her premium note or any assessment thereon, oT for any other cause relating to the business of the company, growing out of the obligation assumed by, or liability in- curred by him or herj in becoming a member of such compa- ny, and like suit may be maintained by any member against such company for loss or damage sustained by him or her by fire, if payment be withheld or refused contrary to the by-laws of such company, and the terms and conditions of the policy, and all members and officers of the company •shall be competent witnesses either for or against the com- pany. EXPENSES AND LOSSES. 25. The expenses of tjie company, as well as the losses, shall be paid out of any moneys, securities or funds in the treasury, or by assessment on the insurance or premium notes, each member to pay in proportion to the amount of his premium note. ANNUAL STATEMENT. 26. An annual statement of the aflairs of the company 256 WEST VIRGINIA COEPORATIONS. shall be published in one or more newspapers published near the principal oflflce of the company, which report shall show the amount of property insured, and all the other li- abilities and expenses of the company; and also the amount of premium notes and the amount of cash on hand, and all other statistics necessary to give the members and the pub- lic generally, full information of the condition of the com- pany. POWER OF LEGISLATURE TO AMEND, ETC. • 27. The legislature shall have the power to alter or amend this chapter. But in no case shall such alteration or amendment affect the right of the creditors of the insur- ance company, organized under this chapter, to have its assets applied to the discharge of its liabilities, nor affect any contract or proceeding at law or in equity, either for or against the company. See Code, cli. 34, sees. 15, IB, 17 and IS. TITLE AND TRUST COMPANIES. (Acts 1S91, ch. 28. Code 1891, p. 1050.) POWERS AND PRIVILEGES. Every company which may have been heretofore, or which may hereafter be, incorporated under the laws of this State, for the purpose of insuring owners of, and other persons inlorctted in, real estate against loss by reason of defective titles^ liens and incumbrances, or as a trust com- pany, shall have the power and right: First. To make insurance of every kind pertaining to or connected with titles to real estate, and notwithstanding the provisions of section three of chapter fifty-two of the code of this State to buy, sell and guarantee bonds, loans and evidences of indebtedness, whether of persons or cor porations, and make, execute and perfect such and so many contracts, agreements, policies and other instruments as may be required therefor. Second. To engage in a general banking business, and exercise under the laws of this State, all such incidental powers as sh«ll be necessary to carry on the business of banking, by discounting promissory notes, negotiating drafts, bills of exchange and other evidence of indebted ness, receiving deposits, buying and selling exchange, bank notes, bullion or coin, and by loaning money on personal or other security. But the powers conferred by this clause shall only be exercised as follows: Any such corporation may engage in business as a banking institution upon adopting a resolution to that effect, adopted by vote of the holders of two thirds of its capital stock, at a general meet- ing called in the manner prescribed in section forty-one of chapter fifty-three of the code. A copy of such resolution certified to be such by the president of the corporation un- 258 WEST VIRGINIA OORPOKATIONS. der its corporate seal, shall be filed with the secretary of state, who shall under his hand, and the great seal of the State, issue to such corporation a certificate reciting the resolution and declaring such company to be a banking in- stitution; which certificate shall be received in all court:* and places as evidence of the authority of such corporation to conduct a banking business as hereinbefore provided. The provisions of sections seventeen, eighteen, nineteen and twenty of chapter fifty-four of the code shall apply to such certificate. When such certificate shall be issued, such cor- ]K)ration and its stockholders shall be subject to all the j)ro\ isions of chapter fifty-four of the code, relating to banks of issue and circulation, and of discount and deposit, so far as the same are applicable, and not inconsistent with the powers hereby granted to said companies. Third. To make insurance for the fidelity of persons holding places of responsibility and trust, and to receive upon deposit for safe keeping, jewelry, plate, stocks, bonds and valuable property of every description, upon terms as may be agreed upon. Tourth. To act as trustee, assignee or receiver, and to execute trusts as trustee, assignee or receiver. Fifth. To act as agent for the purpose of issuing, ree- istering or countersigning, purchasing or selling the certif- icates of stock, bonds or other obligations of any corpora- tion or municipality, state or public authority, and to re- ceive and manage any sinking fund thereof on such terms as may be agreed upon. Sixth. To become surety in any case where by law one or more sureties may be required for the faithful perform- ance of any trust, office, duty, action or engagement. Seventh. To take, receive and hold any and all sucli pieces of real property as may have been, or may hereafter be the subject of any insurance made by such comimnies under the powers conferred by their certificates of incorpor- ation, and the same to grant, bargain, sell, convey and dis- pose of in any such manner as they see proper. Eighth. To purchase and sell real estate for others, and take charge of the same for others. Ninth. To act as security for the faithful performance of any contract entered into with any person, firm, municipal or other corporation, or with any state or government or public authority, by any person or persons, corporation or corporations. Tenth. To become security for the faithful performance of the duties of any officer, clerk or employe of any corpora- tion other than a municipal corporation, firm or person. WEST VIRGINIA CORPORATIONS. 259 Eleveath. To become security upon any writ of error, supersedeas or appeal, or in any proceeding instituted in any court of this State, or of the United States held within this State, in which security may be required, but nothing in this act shall be so construed as to dispense with the ap- proval of such body, corporation, court or oflflcer, as is by law now required to approve such security. WHEN COURT MAY INVESTIGATE SUCH COMPANY. 2. Whenever any court shall appoint any such company trustee or receiver, or to execute any trust authorized by this act, or whenever any such company is offered as sure- ty to any court, or the clerk thereof, the said court, may, in its discretion, on its own motion, or upon the applica- tion of any person interested, appoint a suitable person to investigate the affairs and management of the company so appointed or offered, who shall report to such court the manner in which its investments are made, and the secur- ity offered to those by or for whom its engagements are held; and' the expense of such investigation shall be defray- ed by the said company, and the court may, if deemem neces sary, examine the officers of said company under oath or affirmation, as to this security aforesaid. OFFICERS TO TAKE OATH REQUIRED OF FIDUCI- ARY. 3. Whenever any court shall appoint any such compa- ny trustee or receiver, or to execute any trust, or whenever any such company is offered as surety to any court or clerk thereof, the president, vice president, secretary or treasur- er of such company shall take the oath or make the affirm- ation now I'equired by law to be made by such fiduciary or surety. TRUST FUNDS TO BE KEPT SEPARATE. 4. Every such corporation shall keep all trust funds and investments,, separate and apart from its own assets, and all investments made by any such corporation as fiduciary, shall be so designated, as that the trust to which such in- vestment shall belong shall be clearly known. NOT TO BE SURETY FOR CERTAIN OFFICERS. 5. But nothing in this act shall be so construed as to au- thorize or empower any such corporation to become secur- ity for the faithful performance of the duties of any nation- al, state, county, district or municipal ofScer. INSURANCE, TELEGRAPH, TELEPHONE AND EXPRESS COMPANIES. DISTINCTION BETWEEN DOMESTIC AND FOREIGN COMPANIES. Every insurance, telegraph or express company bavins; its principal place of business in this State, and incorpora- ted by act of the general assembly of Virginia, passed be- fore the twentieth day of June, one thousand eight hundred and sixty-three, or heretofore or hereafter incorporated under and pursuant to any act of the legislature of this State, shall be deemed a domestic company; and every oth er insurance, telegraph, or express company, a foreign com- pany. Code, ch. 34, sec. 1. CERTIFICATE FROM AUDITOR. It shall not be lavyful for any officer or agent of any life, Are or marine insurance company, directly or indirectly, to take risks or issue policies of insurance within this State without first procuring from the auditor a certificate as hereinafter directed. Before obtaining such certificate such company, its officers or agents, shall furnish the auditor with a statement, under oath, of the president or the secre- tary of the company for which he may act, which statement shall show: First. The name and locality of the company. Second. The amount of its capital stock. Third. The amount of its capital stock paid up. Fourth. The assets of the company; including, first, the amount of cash on hand, and in the hands of agents or other persons; second, the real estate unincumbered; third, the bonds owned by the company and how they are secured, WEST VIRGINIA CORPORATIONS. 26l with the rate of interest thereon; fourth, debts due the company secured by mortgage or otherwise; fifth, debts for premiums; sixth, all other securities. Fifth. The amount of liabilities due or owing to the banks or other creditors of the company. Sixth. Losses adjusted and due. Seventh. Losses adjusted and not due. Eighth. Losses unadjusted. Ninth. Losses in suspense, waiting for further proof. Tenth. All other claims against the company. Eleventh. The greatest amount insured in any one risk; which statement shall be filed in the oflflce of the said audi- tor. No foreign insurance company, or agent thereof, shall transact any business or insurance in this State, unless such company is possessed of at least one hundred thousand dol- lars of actual capital, invested in the stock or bonds of some one or more of the states of this Union, whose bonds are at par, or of the bonds of the United States, at the current market value thereof at the date of such statement, or in bonds secured by mortgage or deed of trust on real estate worth double the amount for which the same is mortgaged, free from any prior incumbrance, and having undoubted title. Life insurance companies or associations doing business in this State, shall not make any discrimination in favor of individnals of the same class, and of the same expecta-. tion of life, either in the amount of premium charged or in any return of premium, dividends or other advantages, and no agent of any such insurance company shall make any contract for insurance or agreement as to such contract of insurance other than that which is plainly expressed in the policy issued, nor shall any such company or agent pay or allow, or offer fo pay or allow, as inducement to any per son to insure, any rebates of premium, or any^ special favor or advantage whatever in the dividends to accrue thereon, or any inducement whatever no specified in the policy. Whenever it shall appear to the satisfaction of the auditor, after a hearing held by him upon due notice, that any com- pany is issuing policies or making contracts that are either directly or indirectly a violation of this act, he shall there upon, with the approval of the attorney general, in writing, require said company and its offices and agents to refrain within twenty days, from making or delivering any such policy or contract, and the making or delivering of any such policy or contract thereafter, shall render such company or person guilty of a misdemeanor, and shall be subject upon conviction, before any court in the State, to a fine of not 262 WEST VIRGINIA CORPORATIONS. less than one hundred, nor more than five, hundred dollars. It is further made the duty of said auditor, in case of the failure of any company, or its officers or agents, to com- ply with the said requirement within the twenty days, to publish a notice of the fact in some State newspaper once a week for four weeks. No person shall act as agent or broker in the solicitation or application for a policy of insurance, for any company or corporation referred to in this act, without first procur- ing a certificate of authority from the auditor. Said cer- tificate of authority must be renewed annually, on the first day of January, or within sixty days thereafter. Any person violating the provisions of this act shall be deemed guilty of a misdemeanor, and it is hereby made the duty of the auditor, on the conviction of any person acting as agent, or broker, to revoke at once the certificate of au- thority issued to him, and no such certificate shall be there- after issued to said convicted person by said auditor for the term of three years from the date of his conviction. The auditor shall be authorized to examine into the condition and affairs of any insurance company doing business in this State, or cause such examination to be made by some per- son or persons appointed by him having no interest in any insurance company, and whenever it shall appear to the sat- isfaction of said auditor that the affairs of any such com pany are in an unsound condition, he shall revoke the cer- tificate granted in behalf of such company, and shall cause a notification thereof to be published in some newspaper of general circulation published at the capital of the State, and the agent or agents of such company are, on and after such notice, required to discontinue the issuing of any new policy or of the renewal of any previously issued. The ex- penses of every such examination shall be paid by the com- pany examined, and the auditor may, before beginning any such examination, require satisfactory security for the pay- ment thereof, and if the same is not furnished, the auditor shall refuse or revoke the corporation's certificate of au- thority, the same as if it had been found in an unsound con- dition. When by the laws of any other state any deposit of money or of securities, or other obligations or prohibi- tions, are imposed or would be imposed on insurance compa- nies of this State, doing, or that taight seek to do business in such other state, or upon their agents therein, so long as such laws continue in force, the same obligations and prohi- bitions, of whatever kind, shall be imposed upon all insur- ance companies of such other state doing business within this State, or upon their agents here. WEST VIRGINIA CORPORATIONS. 263 But no foreign insurance company shall do business in this State which fails to pay four months after the rendi- tion thereof any final judgment, or decree of any court of this State against it, and if any such company have obtain- ed the auditor's certificate for transacting business in this State, the auditor being satisfied such judgment or decree remains unpaid after such period, shall revoke and annul such certificate, and give notice thereof as aforesaid; provi- ded, however, in case any appeal, writ of error or supersed- eas be allowed to such judgment or decree, the auditor shall not revoke said certificate till sixty days after such appeal, writ of error or supersedeas be finally determined. Code, ok. 34, sec. 2. WHEN AUDITOR TO ISSUE CERTIFICATE. Upon a compliance with the provisions of the preceding- section by such foreign company, and upon satisfactory ev- idence of such investment by it, and of the making of such deposits and compliance with such obligations as may be re- quired by reason of the laws of any other state, it shall bo the duty of the auditor to issue certificate thereof with au- thority to the company so complying, its agent or agents, to transact the business of insurance. The said statements, instruments and evidence shall be renewed annually in the month of January in each year; and the auditor on being ■ satisfied that the capital, securities and investment, remain secure as at first, shall furnish a renewal of the- certificate as aforesaid, and the company, agent or agents, obtaining such certificate shall cause the same to be published in some newspaper of general circulation published in the State, and cause a copy of such publication to be filed in the ofQce of the clerk of the circuit court in each countv where said company, its agent or agents, does insurance; business, and for any failure to cause such publication and filing, shall be fined fifty dollars. Every such certificate shall recite the statement and evidence required by this and the preceding sections; and upon any domestic compa- ny complying with what is required of it by the preceding section, the auditor shall issue a like certificia.te thereof. Code, ch. 34j sec. 3. AUDITOR'S FEES. The auditor shall be entitled to ten dollars in each ease for the examination of statements, and investigation of the evidences of investment, and five dollars for each certificate 2fi4 WEST VIRGINIA CORPORATIONS. of authority issued under the provisions of this chapter. Code, eh. 34, sec. 4. COPIES CERTIFIED BY AUDITOR TO BE RECEIVED AS EVIDENCE. The written or printed copies of all papers required by this chapter to be deposited with the auditor, certified un- der the hand of such auditor to be true and correct copies of such papers, shall be received as evidence in all courts and places in the same manner, and have the same force and effect as the original would have if produced. Code, ch. 34, sec. 5. ASSESSMENT OF PROPERTY. The property of all domestic insurance, telegraph and ex- pres companies shall be assessed for taxation as other prop ery in this State. But the stock notes of such companies shall not be assessed; nor shall such notes or any part of them be considered a part of the indebtedness of the mak er thereof, in listing his property for taxation. Code, ch. 34, sec. 6. RETURNS. Every foreign insurance, telegraph and express company doing business in this State, or the agent or agents thereof, shall annually make returns to the auditor as follows: Pro- vided, That where there are several agents of any such com- pany in this State, the returns may be made by any one of them on behalf of all. Code, ch. 34, sec. 7. WHAT RETURNS BY INSURANCE COMPANY TO SHOW. t If such returns be made on behalf of an insurance com- pany, they shall show the amount or premiums on all in- surances made, renewed or negotiated within this State, or on any subject of insurance within this State, on behalf of such company, during the period to which the said returns relate, including as well premiums uncollected as those which are unpaid. Code, ch. 34, sec. 8. WHAT ON BEHALF OF A TELEGRAPH COMPANY. If the returns be made on behalf of a telegraph company, they shall show the gross receipts for all dispatches or mes- WEST VIRGINIA COEPOKATIONS. 265 sages sent and received by such company within this State, during the period to which such returns relate. Oode, ch. 34, sec. 9. WHAT ON BEHALF OP AN EXPRESS COMPANY. If tlie returns be made on behalf of an express company, they shall show the amount of charges. and freights, wheth- er paid or uncollected, accruing to such during the period to which the said returns relate, on account of the money, goods and merchandise, forwarded or carried within th's State by the said company- or under its chai'ge or care. Code, ch. 34, sec. 10. WHEN SUCH RETURNS SHALL BE MADE. The said returns shall be made within twenty-one days after the first day of February in every year, and shall in elude the business of the twelve months preceding first day of January in that year, and any business omitted in a former period. The amount only may be stated in. the re- turns without the particulars, unless a more specific return be required by the auditor. The returns so made shall be verified by the aiBdavit of the officer or agent making the same. Code, ch. 34, sec. 11. DUTIES OP AUDITOR. It shall be the duty of the auditor to cause the provisions of this chapter to be carried into effect, and he may from time to time prescribe such forms and regulations as are proper for that purpose. And it shall be the duty of every assessor to transmit to the auditor, within tlie week pre- ceding the first day of February in every year, a list of aH such companies or agents doing business within his assess- ment district, as are required to make returns as aforesaid. Code, ch. 34, sec. 12. TAX TO BE PAID. _At the time of making such return by any foreign in- surance, telegraph or express company, the oflScer or agent making the same shall pay into the treasury of the State a tax of two per cent, on the gross amount of the premiums, or charges and freights or receipts for dispatches and mes- sages, stated in the said return, which shall be in full of State taxes only. The company paying such taxes shall take duplicate receipts therefor, one of which shall be filed 266 WEST VIRGINIA CORPORATIONS. with the auditor. Should any company fail to make such payment and file such receipt, the auditor shall not issue to such company the certificate mentioned in the third sec- tion of this chapter so long as such failure may contihue; provided, That any foreign live stock insurance company whicli shall invest in this State the whole amount of its net receipts from business therein, shall pay only one-half of the aforesaid rates. Code, ch. 34, sec. 13. PENALTY FOR FAILURE. Every company or agent hereby required to make return or payment as aforesaid, who shall fail to do so, or know- ingly make a false return, shall forfeit no less than one hun- dred nor more than one thousand dollars for every, such of- fense. Code, ch. 34, sec. 14. SERVICE OF PROCESS AND NOTICE. Every foreign insurance, telegraph and express company doing business in this State, shall, by power of attorney, duly acknowledged and authenticated, and filed by the com- pany in the office of the auditor, appoint some person re- siding in this State to accept service of process and notices in this State for the said company; and by the same instru- ment shall declare its consent that service of any process or notice in this State on the said attorney, or his accept ance of service endorsed thereon, shall have the same ef- fect as service thereof upon the company. And thereafter such acceptance by the said attorney, or service upon him, shall be equivalent, for all purposes, to service upon his principal. Code, ch. 34, sec 15. REVOCATION OP POWER OF ATTORNEY. As long as any liability of the company in this State remains unsatisfied, no revocation of any such power of attorney shall be of any effect, until after a like power to some other person residing in this State has been filed by the said company in the oflflce of the auditor. And when any such attorney dies or resigns, the company shall imme- diately make a new appointment and file the evidence there- for as aforesaid, until all its liabilities in this State are dis- charged. Code, ch 34, sec. 16. COPY OF POWER OF ATTORNEY AS EVIDENCE. A copy of any such power of attorney, certified by the WEST VIRGINIA CORPORATIONS. 267 auditor under his hand, shall be received in all courts and places as prima facie evidence of the execution and con- tents of such instrument. The auditor may demand for such copy from the person applying therefor, a fee at the rate of fifteen cents for every hundred words. Code, ch. 34, sec. 17. CONDITION PRECEDENT TO TRANSACTION OP BUS- INESS. No oflScer or agent of a foreign insurance company shall make, renew or negotiate in this State any insurance or contract for insurance on behalf of such company, nor shall any agent of a foreign express company undertake, in this state, to forward or carry any money, goods or merchandise, on behalf of such express company, unless the said insur- ance or express conipany has complied with the fifteenth and sixteenth sections of this chapter. No oflticer or agent of any insurance company shall make, renew or negotiate, in this State, any insurance or contract for insurance on behalf of such company, or transact any business for such company, directly or indirectly, without first obtaining the auditor's certificate of authority as required by law; and this applies to all persons engaged in any manner in solic- iting risks, issuing or obtaining the issue of policies, selling tickets of insurance or otherwise doing business of insur- ance. Any person violating this section shall forfeit not less than twenty nor more than two hundred dollars for ev- ery such offense; but the contract or undertaking shall nev- ertheless not be invalidated by anything in this section con- tained. Code, ch. 34, sec 18. "VALUED POLICY LAW." All fire insurance companies doing business in this State shall be liable, in case of total loss by fire or otherwise, as stated in the policy on any real estate insured, for the whole amount of insurance stated in the policy of insurance upon said real estate; and in case of partial loss by fire or other- wise, as aforesaid, of the real estate insured, the basis upon which said loss shall be computed, shall be-,the amount stated in the policy of insurance effected upon said real es- tate, and the insured shall have the right to enforce his claim for said loss in any court having jurisdiction. Acts 1899. ch. 33. PENALTY FOR INJURY TO PROPERTY. Any person who shall wilfully or maliciously destroy or 208 WEST VIRGINIA CORPORATIONS. injure any of the wires, poles, insulators or other property or material, belonging to any telegraph, telephone or rail road company, shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by imprisonment in the county jail not exceeding twelve months, and by a fine not exceeding five hundred dollars, at the discretion of the court. Such person shall also be liable in a civil action for all damages to such property caused by such destruction or injury, (.'ode, cli. 145, sec. 26a, as amended by ch. 47, acts 1899.' Acts 1897, ch. 10, page 209. RIGHT OF TELEPHONE COMPANIES TO ERECT POLES AND WIRES. Telephone companies desiring to extend lines of telephone in this State may place poles for wires along and county road, by and with the consent of the county court of the county through which such line may pass: provided. That all such poles and wires shall be placed and erected so as not in any way to interfere with the public use of such road, or with any fruit or shade trees or private property; and pro- vided, further. That when any company desires to erect tel- ephone poles along any street of an incorporated city, town or village, the consent of the council of such city, town or village shall be first obtained. Acts 1891, ch. 69; Code 1891, p. 1059. REGULATIONS GOVERNING PIPE LINE COMPANIES. (Acts 1891, eh. 44; Code 1891, p. 1026.) ALL SUCH CORPORATIONS SUBJECT TO THIS ACT. 1. Evei'v person, corporation or company now engaged, or who shall hereafter engage or continue in the business of transporting or storing petroleum, by means of pipe line or lines or storage by tanks, shall be subject to the provis- ions of this act, and shall conduct such business in con formity herewith; and the word company whenever used in this act shall be construed to include persons and corpor- ations. MUST ACCEPT PETROLEUM OFFERED. 2. Any company heretofore or hereafter organized for the purpose of transporting petroleum or other oils or liq- uids, by means of pipe line or lines, shall be required to ac- cept all petroleum offered to it in merchantable order in quantities of not less than two thousand gallons at the wells where the same is produced, making at its own ex pense all necessary connections with the tanks or recepta- cles containing such petroleum, and to transport and deliv- er the same at any delivery station, within or without the State, on the route of its line or pipes, which may be des- ignated by the owners of the petroleum so offered. PETROLEUM TO BE INSPECTED, MEASURED AND RECEIPTED FOR. 3. All petroleum of a gravity of thirty-flve degrees Baume or under at a temperature of sixty degrees Fahren- heit, offered for transportation by means of pipe line or 270 WEST VIRGINIA CORPORATIONS. lines, shall before the same is transported, as provided by section two of this act, be inspected, graded and measured, at the expense of the pipe line company, and the company accepting the same for transportation shall give to the own- er thereof a receipt stating therein the number of barrels or gallons so received, and the grade, gravity and measure- ment thereof, and within a reasonable time thereafter, u^- on demand of said owner or his assigns, shall deliver to him at the point of delivery a like quantity and grade of gravity of petroleum in merchantable condition as specified in said receipt; except that the company may deduct for waste one per centum of the amount of petroleum specified in such re- ceipt. CHARGE FOR TRANSPORTING OIL OF THIRTY-FIVE DEGREES GRAVITY OR LESS. 4. The charge for receiving, transporting and delivering petroleum of the gravity of thirty-five degrees Baume or under at a temperature of sixty degrees Fahrenheit, by means of pipe line or lines, shall not exceed one cent ner barrel of forty -two gallons, per mile; provided. That if sai(? rate should amount for the whole distance transported to less than ten cents per barrel, then the sum of ten cents per bar- rel may be charged; and provided. That if the distance be over twenty miles and not more than thirty miles, one- half cent per barrel may be charged for every mile over twenty miles ; and, provided further. That if the distance be over thirty miles, the maximum charge shall not exceed twenty-five cents. CHARGE FOk STORAGE AND WASTE. 5. Any company engaged in storing petroleum of a grav- ity of thirty-five degrees Baume or under at a temperature of sixty degrees Fahrenheit, by means of tanks, shall be per- mitted to charge for storage one cent per barrel per month or part of a month, unless the same is removed within fif- teen days from the date when said oil is received into the custody of such company, and shall be allowed for evapor- ation and waste one-half of one per centum of the oil per month, unless removed within thirty days from the date of the receipt of such jielroleum; but no company engaged in the business of storing petroleum of the gravity of thirty- five degrees T.imme or undei', a( a temperature of sixty de- grees Fahrenheii, shall charge for storage any amount In excess of that authorized bv this section. WEST VIRGINIA COEPORATIONS. 271 OIL EXCEEDING THIRTY-FIVE DEGREES TO BE SIM- ILARLY INSPECTED, ETC. 6. All petroleum of a gravity exceeding thirty-five de- grees Baume at a temperature of sixty degrees Fahren- heit, offered for transportaion by means of pipe line or lines, shall be inspected and measured at the expense of the company transporting the same, before the same is transported; and the company accepting the same for transportation, shall give to the owner thereof, or to the person in charge of the vcell or wells from which such pe- troleum has been produced and run, a ticket signed by its ganger, stating the number of feet and inches of. petrole- um' which were in the tank or receptacle containing the same before the company began to run the contents from said tank, and the number of feet and inches of petroleum which remained in the tank after said run was completed; and all deductions made for water, sediment or the like, shall be made at the time such petroleum is measured; and within reasonable time thereafter said company shall up- on demand, deliver from the petroleum in its custody to the owner thereof, or to his assignee, at such delivery station on the route of its line of pipes as he may elect, a quantity of merchantable petroleum, equal to the quantity of pe- troleum run from said tank or re,ceptacle, which shall be ascertained by computation; except that the said company transporting said petroleum may deduct for evaporation and waste two per centum of the amount of petroleum so run, as shown by said run ticket; and except that in case of loss of any petroleum while in the custody of said com- pany caused by fire, lightning, storm or other like una voidable cause, such loss shall be borne pro rata by all the owners of such petroleum at the time thereof. But said company shall be liable for all petroleum that is lost while in its custody by the bursting of pipes or tanks, or by leak- age from pipes or tanks; and it shall also be liable for all petroleum lost from tanks at the wells where produced before the same has been received for transportation if such loss be due to faulty connections made to said tanks; and said company shall be liable for all petroleum lost by the overflow of any tanks with which pipe line connec- tions have been made, if such overflow be due to the neg- ligence of such company; and for all the petroleum lost by the overflow of any tanks with which pipe line connec tions should have been made under the provisions of this act, but were not so made by reason of negligence or de- lay on the part of said company. 272 WEST VIRGINIA CORPORATIONS. CHARGE FOR TRANSPORTING OIL EXCEEDING THIRTY-FIVE DEGREES GRAVITY. 7. Any company engaged in transporting petroleum of a gravity exceeding thirty five degrees Baume at a tem- perature of sixty degrees Fahrenheit, by means of pipe line or lines, may charge for receiving, transporting and deliver- ing such petroleum not to exceed twenty cents per barrel for each barrel of forty-two gallons; provided, however, if where the point of delivery is without this State, more than twenty cents per barrel be charged then there shall be charged no greater sum than ten cents per barrel foi- receiving such oil and transporting the same that part of the distance which is withia this State. CHARGE FOR STORAGE. 8. Any company engaged in transporting or storing petroleum of a gravity exceeding thirty-five degrees Baume at a temperature of sixty degrees Fahrenheit, by means of pipe line or lines and tanks, shall make no charge for storing said petroleum until after the expiration of the month following that in which the oil was run and received into custody. But it may charge for storing said petro- leum of a gravity exceeding thirty-five degrees Baume at a ten)perature of sixty degrees Fahrenheit, for every day af- ter the expiration of the month following that in whicb said oil shall have been run and received into custody, not to exceed one-fortieth of one cent per barrel of /forty two gallons for each day thereafter said oil shall continue to remain in its custody. And such company shall make no charge for water, sediment, waste and the like in trans porting or storing any petroleum after the same has been ganged or measured, before the run of the same is made, except the two per (••■ntum for waste and evaporation hereinbefore mentioned. CHARGES TO BE UNIFORM. 0. No company engaged in transporting or storing pe- troleum b.\ moiius of pipe line or lines and tank.s, shall charge, demand or I'eceive from any corporation, company, association, neison or persons a greater or less rate for the tansportation or stcu'agc of petroleum than it charges, i-eceivcs or demands from any other corporation, company, association, pei'son or ])ersons for the transportation or sloiugc of petrolcinu of like gravity; and any shift, do- WEST VIRGINIA CORPORATIONS. viof?. ov si*bterfuge made or attempted for the purpose of avoiding the provisions of this section shall be void. VIOLATIONS— HOW PUNISHED. 10. Any company, its officers or agents, wilfully viol.n- ting any of the provisions of sections two, three, four, five, six, seven, eight or nine, of this act, or charging for a,nv of the services provided for in any of said sections, an amount in excess of that authorized by said sections, shall be guilty of a misdemeanor, and on conviction thereof shall be fined not less than one hundred dollars, nor more than one thousand dollars, and shall moreover be liable to the party aggrieved for all damages sustained by him by reason of such excessive charges. LIEN FOR DAMAGES. 11. Any company engaged in transporting or storing petroleum, shall have a lien upon said petroleum until ail charges for transportation and storing said petroleum are paid. ACCEPTED ORDERS AND CERTIFICATES NEGOTIA- 12. Accepted orders and cM^tificates for petroleum, is- sued by any company engaged in the business of transport- ing and storing petroleum in this State, by means of pipe line or lines and tanks, shall be negotiable, and may be transferred by endorsement, either in blank or to the order of another, and any person to whom the said accepted or- ders and certificates shall be so transferred, shall be deem- ed and taken to be the owner of the petroleum therein spec- ified. PROVISIONS GENERALLY RESPECTING RECEIPTS, CERTIFICATES, ORDERS, ETC. 13. No receipt, certificate, accepted order or other vou- cher shall be issued or put in circulation, nor shall an- order be accepted or liability incurred for the delivery of any petroleum, crude or refined, unless the amount of such petroleum represented in or by such receipt, certificate, accepted order or other voucher or liability, shall have been actually received by and shall then be in the tanks and lines, custody and control of, the compamy issuing or 274 WEST VIRGINIA CORPORATIONS. putting in circulation such receipt, certificate, accepted or der or voucher, or written evidence of liability. No duoli- cate receipt, certificate, accepted order or other vouchee shall be issued or put in circulation, or any liability incur- red for any petroleum, crude or refined, while any former liability remains in force, or any former receipt, certificate, accepted order or other voucher shall be outstanding and uncancelled, except such original paper shall have been lost in which case a duplicate plainly marked "duplicate" upon the face, and dated and numbered as the lost original was dated and numbered, may be issued. No receipt, vou- cher accepted order, certificate or written evidence of li ability of such company on which petroleum, crude or re- fined, has been delivered, shall be re-issued, used or put in circulation. No petroleum, crude or refined, for which a receipt, voucher, accepted order, certificate or liability in- curred, shall have been issued or put in circulation, shall be delivered, except upon the surrender of the receipt, ■"oucher, order or liability, representing such petroleum, except upon affidavit of loss of such instrument made by the former holder thereof. No duplicate 'receipt, certifl- cnle, voucher, accepted order or other evidence of liabili- ty. shall be made, issued or i)ut in circulation until aftei- notice of the loss of the original, and of the intention to apply for a duplicate thereof, shall have been given by ad- vertisement over the signature of the owner thereof in at least four successive issy,es of a daily or weekly newspa- per published in the county where such duplicate is to be issued. Every receipt, voucher, accepted order, certificate or evidence of liability, when surrendered, or the petrol- eum represented thereby delivered, shall be immediately cancelled by stamping and punching the same across thn face in large and legible letters with the word "cancelled," and giving the date of such cancellation; and it shall then be filed and preserved in the principal office of such com- pany for the period of six years. 14. No company, its officers or agents, or any person or persons engaged in the transportation or storage of pe- troleum, crude or refined, shall sell or encumber, shio, transfer, or in any manner remove or procure, or permit to be sold, encumbered, shipped, transferred, or in any man- ner removed from the tanks or pipes of said company en- gaged in the business aforesaid, any petroleum, crude or re- fined, without the written order of the owner or owners thereof. WEST VIRGINIA CORPORATIONS. 275 COMPANY TO MAKE AND POST DETAILED STATE- MENT OF ITS BUSINESS. 15. Every company now or hereafter engaged in the business of transporting by pipe lines, or storing crude or refined petroleum in this State, shall, on or before the tenth day of each month, make or cause to be made and pos- ted in its principal business office in this State, in an acces- sible and convenient place for the examination thereof by any person desiring such examination, and shall keep so posted continuously until the next succeeding statement is so posted, a statement plainly written or printed, sign- ed by the officer, agent, person or persons having charge of the pipes and tanks of said company, and also by the offi- cer or officers, person or persons, having charge of the books and accounts thereof, which statement shall show in legible and intelligent form the following details of the business : First. How much petroleum, crude or refined, was in the actual and immediate custody of such company at the beginning and close of the previous month, and where the same was located or held, describing in detail tie location and designation of each tank or place of deposit, and the name of its owner. Second. How much petroleum, crude or refined, was received by such company during the previous month. Third. How much petroleum, crude or refined, was de- livered by such company during the previous month. Fourth. For how much petroleum, crude or refined, such company was liable for the delivery or custody of, to other corporations, companies or persons at the close of the month. Fifth. How much of such liability was represented by outstanding receipts or certificates, accepted orders or other vouchers, and how much was represented by credit balan- ces Sixth. That all the provisions of this act have been faithfully observed and obeyed during the said previous month. The statement so required to be made shall also be sworn to by said officers, agent, person or persons before some officer authorized by law to administer oaths, which oath shall be in writing, and shall assert the familiarity and acquaintance of the deponent with the business and condi- tion of the company, and with the facts sworn to, and that the statements made in the said report are true. 1.6. All amounts in the statements required by this act, 276 WEST VIRGINIA CORPORATIONS. when the petroleum is handled in bulk, shall be given in barrels and hundredths of barrels reckoning forty-two gal- lons to each barrel, and when such petroleum is handled in barrels or packages, the number of such barrels or pack- ages shall be given, and such statements shall distinguish between crude and refined petroleum, and give the amount of each. Every company engaged in the business afore- said, shall at all times have in their pipes and tanks an amount of merchantable oil equal to the aggregate of out- standing receipts, certificates, accepted orders, vouchers, acknowledgments, evidences of liability, and credit bal- ances, on the books thereof. PENALTY FOR VIOLATION OF ABOVE PROVISIONS. 17. Any company, its officers or agents, who shall make or cause to be made, sign or cause to be signed, issue nv cause to be issued, put in circulation or cause to be put in circulation, any receipt, accepted order, certificate, vouch- er or evidence of liability, or shall sell, transfer or alter the same, or cause such sale, transfer or alteration, contrary to the provisions of this act, or shall do or cause to be done, any of the acts prohibited by the thirteenth section of this act, or omit to do any of the acts by said section directed, shall be guilty of a misdemeanor, and on conviction thereof shall be sentenced to pay a fine of not exceeding one thousand dollars, and undergo imprisonment not less than ten days nor exceeding one year. PENALTY FOR SELLING WITHOUT OWNER'S CON- SENT. 18. Any company, its officers or agents, who shall sell, encumber, transfer or remove, or cause or procure to be sold, transferred, or removed from the tanks or pipes of such company, any petroleum, crude or refined, without the written consent of the owner or owners thereof, shall be guilty of a misdemeanor, and on conviction thereof, shall be sentenced to pay a fine of one thousand dolla.ris and undei'go an imprisonment of not less than ninety days and not exceeding one year. PENALTY FOR FAILURE TO MAKE STATEMENT 19. Any company engaged in the business of transport- ing by pipe lines or storing petroleum, crude or refined, and oaoli and every officer or agent of such company who WEST VIRGINIA CORPORATIONS. 277 shall neglect or refuse to make the report and statement re(|uired by the fifteenth section of this act, within the time and in the manner directed by said section, shall forfeit and pay the sum of one thousand dollars, and in addition there- to the sum of five hundred dollars for each day after the tenth day of the month that the report and statement re- i]uired by said section fifteen shall remain unposted as therein directed. APPOINTMENT OF EXAMINERS, THEIR DUTIES, ETC. 20. The holders of any receipts, certificates, accepted orders or other vouchers or evidences of liability, or the owners of oil in the custody of any such company describe ed and referred to in this act, to an amount not less in the aggregate than ten thousand barrels of petroleum, crude or refined, may at any time present their petition to the circuit court of any county wherein such company may be engaged in business or have its principal ofHce, or to any judge of said court in vacation, setting forth under oa.th their ownership as aforesaid and desire for the appointment of examiners for the purposes of this section; and upon such petitioners giving bonds to be approved by the court, or by the judge granting the order, that they will pay all expenses and costs that may accrue in the proceedings, the court, or any judge thereof in vacation, shall forthwith appoint such number of impartial, disinterested and ex- pert persons as may be asked for in said petition, as exam- iners, and shall fix the amount of their compensation; and the court or judge by order, shall direct and empower such examiners to immediately inspect and measure all the pe- troleum, crude or refined, in the custody of any such com pany named in the said petition, on the day of such in- spection, and to examine the books of said company relat- ing to the issue and cancellation of receipts, certificates, accepted orders, vouchers, or evidences of liability, and to its open accounts with persons, companies or corporations with whom it deals in the receipt and delivery of crude or refined petroleum. Such examiners when so appointed shall each immediately be sworn before any authorized officer to perform his duties with fidelity and according to law, which oath shall be reduced to writing, signed and filed with the clerk, and they shall then make immediate inspec- tion, examination and measurement, as required by said petition and order and by this act. And it shall be the du- ty of each and every such company, its officers, agents and 278 WEST VIRGINIA CORPOEATIONS. employees, to give immediately upon request of any such authorized examiners, all the information demanded in said petition and required by this act to be reported, a.nd also full access to the offices, tanks, pipes, books and ac- counts of such company. Upon the completion of such inspection, measurement and examination, it shall be the duty of the examiner or examiners, or in the event of the death, resignation, declination or inability to act of any of them, then to others, or any of them within ten days after their appointment to make to the court appointing them, a written, signed and sworn report of such examination, inspection and measurement, and file the same of record with the clerk thereof, which report shall show : First. How much merchantable and also how much unmerchantable petroleum, crude or refined, they found in the tanks and lines of such company, and where the same was located or held by description of tanks. Second. For the custody or delivery of how much crude or refined petroleum they found such company to be liable at the same date. Third. How much of such liability was represented by outstanding receipts, accepted orders, certificates, vouch ers or evidences of liability, and how much by credit bal ances. PENALTIES TO WHICH EXAMINERS ARE LIABLE. 21. Any examiner so appointed as aforesaid who shall make anj false examination, inspection, measurement or report or shall laako known directly or indirectly to any person any information he may become possessed of in the course of his examination, inspection or measurement, except by means ol his report made and filed in accordance with this act, or who shall receive directly or indirectly any fee, reward or benefit, or the promise of any fee, reward or benefit, other than that provided by this act, for the per- formance or non-performance of any duty or thing contem- plated by this act or connected with his said employment, shall be guilty of a misdemeanor, and upon conviction there- of shall be sentenced to pay a fine of one thousand dollars, and may at the discretion of the court, be confined in jail not to exceed one year. FENA LTY FOR REFUSING ACCESS TO BOOKS, ETC. 22. Any officer, agent, manager, superintendent or em- ploye of any company engaged in the transportation by WEST VIRGINIA CORPORATIONS. 279 pipe linos of petroleum, crude or refined, or the storage thereof, M'ho shall refuse or neglect after demand made to ^■jve to any authorized examiner full and free access to any and .all offices, pipes, tanks, accounts, books and vouchers required by him in the pursuance of his appointment and this act, shall be guilty of a misdemeanor, and upon con- viction thereof shall be sentenced to pay a fine of not ex- ceedini"; ()ne thousand dollars, and may at the discretion of the court be confined in jail not to exceed one year. CONFLICTING LAWS REPEALED. 23. All acts and parts of acts inconsistent with the pro- visions of this act are hereby repealed. OIL OR MINERAL LEASES, LIMITATIONS OF AC TIONS ON. That any person or persons in peaceable possession of land claiming title under a lease of the same for the pur- pose of operating for oil or minerals, and Who may have continuously remained in such possession for the space of three years, and have bored for, and in good faith expended money in such boring and operating, shall be entitled to 1 lead said facts in bar, and said facts shall be a bar to any action at law, or in equity, insttituted to establish title to recover possession of said lease, or to recover the profits received therefrom; provided. That nothing in this act contained shall be so construed as to authorize a tenant to set up as a bar to a recovery an adversary possession :ij;ainst his landlord, and that this act shall not affect any suit brought within twelve months after the passage of this act. Act 1872-3, ch 61; Code, 1891, p. 1045. REQUIREMENTS CONCERNING ABAN- DONED GAS AND OIL WELLS, ETC. (Acts 1897, ch. 58. Acts 1891, ch. 106.) WELLS MUST BE ENCASED. I 1. When any well shall be drilled for the production of petroleum oil, natural gas, salt water or mineral water, it shall be the duty of the owner thereof before drilling said well into the oil and gas sand to encase such well with good and suiTicient wrought iron, steel or metal, salt water or fi'esh water, and to prevent the same from reaching or pen- etrating said oil and gas sand. HOW WELL TO BE PLUGGED. 2. It shall be the duty of the owner of any well drilled for any of the purposes mentioned in the first section of this act, before abandoning or ceasing to operate the same, and before drawing the casing therefrom, to fill up the well with sand or rock sediment to a depth of at least fifty feet above the top of the oil or gas bearing sand or rock, and drive a round seasoned wooden plug, at least three feet in length, equal in diameter to the diameter of the well below the cas- ing, to a point at least five feet below the bottom of the cas- ing; and immediately after drawing the casing, except in regions where the well caves after the withdrawal of the casing, shall drive a round seasoned wooden plug at a point just below where the lower end of the casing rested; which plug shall be at least three feet in length, tapering in form, and of the same diameter at the distance of eighteen inches from the smaller end as the diameter of the pole below the point at which it is to be driT;en. After the plug has been WEST VIRGINIA CORPORATIONS. 281 l)roperly driven there shall be filled in on top of the same, sand or rock sediment to the depth of at least fifty feet above the top of the oil or gas bearing sand or rock. WHEN GAS WELLS ARE TO BE SHUT IN. 3. It shall be the duty of any owner of any well pro- ducing gas, to prevent the waste of said gas by escape, and within the time hereinafter limited, to shut in and confine the same in said well or in the pipes or pipe lines connected therewith. Said gas, with respect to any well heretofore drilled; sliall be so shut in within ninety days after the ap- proval of this act, and with respect to any well hereafter drilled or completed, shall be shut in within ninety days after the said well shall reach the lowest oil and gas sand defined or recognized in the gas or oil district in which said well is situate: but if any such well in the course of drilling shall pass through any oil and. gas sand which produces gas above the said last or lowest oil and gas sand then the drilling of said well to the last or lowest oil and gas sand shall be prosecuted with reasonable dilligence so that any waste of gas from the said upper sand shall not continue longer than shall be reasonably necessary; provided, how- ever. That this, section of this act shall not apply to any flell producing both oil and gas from the same sand, or to any well while it is being operated as an oil well. f WHO MAY PLUG WELL IP OWNER PAIL. i. If the owner of any such well shall neglect or refuse to cause said well to be plugged or shut in pursuance to the provisions of the second and third sections of this a.ct, for a period of twenty days after written notice so to do (which notice may be served personally upon such owner, or may be posted in a conspicuous place at or near the well), it shall be lawful for the owner or operator of any adjacent or neighboring lands to enter upon the premises where said w<;H is situate and to cause the same to be plugged, if it be an abandoned well or shut in if not abandoned pur suant to the provisions thereof: and the reasonable cost and expenses incurred in so doing, shall be paid by the own- er of said well, and may be recovered as debt of like amount are by law recoverable. WHO DEEMED OWNER. 5. The term "owner," as herein used with reference to any well, shall mean and include each and every person, 282 WEST VIRGINIA CORPORATIONS. persons, co-partnership, partnership association or corpor- ation owning, managing, operating, controlling or possess- ing said well as principal or principals or as lessees, contract- ors, employes, or agents of such principal or principals; and the terms "oil and gas sands," or "sand," as herein us- ed shall mean and include any bed, seam or stratum of rock, sand or other material which produces, yields, or con- tains in quantity, sufficient to be utilized, petroleum oil and natural gas or either of them. PENALTIES. 6. Any person or persons, co-partnership, partnership, association or corporation violating any of the provisions '.)i' this act shall be liable to a penalty of one hundred dol- lars to be recovered with costs of suit in a civil action to be brought in the name of the State of West Virginia in any (■ircuit court, and such action may be brought at the in- stance or upon the relation of any citizen of the State. REMEDY IN EQUITY. 7. Aside from or in addition to the imposition of any penalties under this act, it shall be the dut^ of any circuit court in the exercise of its equitable jurisdiction to hear or determine any bill or bills in equity which may be filed to restrain the waste of natural gas in violation of this act, and to grant relief by injunction or by other decrees or or- ders, in accordance with the principles and practice in eq- uity. The plaintiff in any such bill shall have sufficient standing, to maintain the same if he shall aver and prove that he is interested in the lands situated within the dis- t ance of one mile from said well, either as an owner of such land in fee simple, or as an owner of leases thereof, or of fights therein for the production of oil and gas, or either of ihem. ACTS REPEALED. 8. All acts or parts of acts inconsistent herewith are hereby repealed. SURETY COMPANIES. 1. That any fidelity, guaranty, surety, or other company duly incorporated under the laws of any other state, or of the United States, and having under its charter the power to become surety, be and the same is hereby authorized and orapoweved to guarantee the fidelity of persons holding places of trust or responsibility in, to or under, this State, or any county, city, corporation, company, government, .l)erson or persons, whatsoever; to become security for th*i faithful performance of any trust, office, duty, contract oc agreement; and to supersede any judgment, or to go upon any appeal, attachment, replevin, guardian, trustee, admin- istration or other bond; and it is further authorized to be- come sole surety in all cases where by law one or more sure- ties are required for the faithful performance of any trust or office; and it shall and may be lawful for any court, clerk, or other officer, to approve said company as sole surety in ail cases; and in all cases the officers and affairs of said companies may be subject to an examination by such court, clerk or other officers; and it shall be lawful for said compa- ny to stipulate and provide for indemnity from the parties aforesaid for whom they shall so become responsible, and to enforce any bond, contract, agreement, pledge or other se- curity, made or given for that purpose: provided, that any company mentioned in this section, before acting under the provisions hereof, shall deposit, in one or more of the State depositories of this State, the sum of not less than fifty thousand dollars cash, or collatteral security equivalent to this amount of money, which sum or collateral security shall be and remain in said depository as a fund to protect all j)arties who are interested in the provisions of this act; and in case of any recovery against any such company or corporation within this State, upon a certified copy of the 284 WEST VIRGINIA COEPORATIONS. judgment, decree or order, so rendered against such compa- ny, being presented to the cashier of any banli wherein said sum or securities, or part thereof, are deposited under the provisions of this act, then said cashier shall pay the same within sixty days, unless said judgment is stayed by appeal, supersedeas, or in some other legal way. But if the auditor may waive the deposit, required in this section, provided the company making application to do bus- iness in this State, shall file with the auditor the certificate of a United States government official, having the appro- val of official bonds of the government, to the effect that such company is accepted as surety on the bonds of gov- ernment officials and employes. Acts l'ili:i, CD. •£l. Acts 1899, ch. 37. SPECIAL ACT RELATINC TO CORPORA- TIONS. (Acts 1887, ch. 63; Code 1891, p. 1003.) WAGES OF OPERATIVES AND LABORERS. 1. That all persons, firms, corporations, or associations in this State, engaged in mining coal, ore or other minerals, or mining and manufacturing them, or either of them, or manufacturing iron or steel, or both, or any other kind of manufacturing, shall pay their employes as provided in this act. 2. All persons, firms, companies, corporations or asso- ciations engaged in the business aforesaid, shall settle with their employes at least once in eYery two weeks, unless otherwise provided by special agreement, and pay them the amount due them for their work or services, in lawful money of the United States, or by cash order as described and required in the next succeeding section of this act; £)rovided, That nothing herein contained shall affect the right of an employe to assign the whole or any part of his claim against his employer. 3. That it shall not be lawful for any person, firm, com pany, corporation, or association engaged in the business aforesaid, their clerk, agent, officer or servant, in this State, to issue for the payment of labor any order or other paper whatsoever, unless the same purports to be redeemable for its face value in lawful money of the United States, bearing interest at the legal rate, made payable to employe or bear- er and redeemable within a period of thirty days by the per- son, firm, company, corporation, or association, giving, mak- ing or issuing the same. And any person, firm, company, corporation or association, engaged in the business afore- said, their clerk, agent, ofiScer, or servant, who shall issue for payment of labor any paper or order other than the one 286 WEST VIRGINIA CORPOEATIONS. herein specified, in violation hereof, shall be guilty of a mis- demeanor and upon conviction thereof, shall be fined in any sum not less than twenty-five dollars nor exceeding one hun- dred dollars, in the discretion of the court. Unconstitutional. 33 W. Va., 179-188. 4. That from and after the passage of this act, it shall be unlawful for any person, firm, company, corporation, or association, engaged in mining or manufacturing, either or both as aforesaid, and who shall likewise be interested di rectly or indirectly in merchandising as owner or otherwise in any money, per cent., profit, or commission arising from the sale of any such merchandise, their clerks, servants, officers or agents, to knowingly and wilfully sell or cause to be sold to any employe, any goods, merchandise or sup- plies whatsoever, for a greater per cent, of profit than mer- cliandise and supplies of like character, kind, quality and 'luantity are so sold to other customers buying for cash, and not employed by them ; and shall any person or member of any firm, company, corporation, or association, his or their clerk agent or servant, violate this section, then and in that case, such person, firm, company, corporation or asso elation, shall collect for such merchandise and supplies only the price, for which like merchandise and supplies are sold by them to such other customers as aforesaid buying for cash; and moreover shall be guilty of a misdemeanor, and on conviction thereof, shall be fined not exceeding one hun- dred dollars nor less than twenty-five dollars. Unconstitutional . 33 W. Va., 179-188. 5. That if any firm, company, corporation, or associa- tion, shall refuse for the space of twenty days to settle and pay any of their said employes at the intervals of time as provided in section two of this act, or shall neglect or re- fuse to redeem any cash orders herein provided for, within the time specified, if presented, and suit should be brought for the amount overdue and unpaid, judgment for the amount of said claim proven to be due and unpaid, with le- gal interest thereon until paid, shall be rendered in favor of the plaintiff in such action; provided, further. That the cash order herein provided for, given for payment of labor, if the laborer continues to hold the same, in case of the in- solvency of the company, or ])erson, or firm or corpration giving same, such laborer shall not lose his lieu and prefer- ence under existing hiws. 36 W. Va., 802; 33 W. Va., 170-188. REGULATING PAYMENT OF LABORERS' WAGES AND PROHIBITING EXCES- SIVE CHARGES FOR GOODS AND SUPPLIES. (Acts 1891, eh. 76. Code 1S91, 1002.) EMPLOYEES CANNOT ISSUE SCRIPT NOT REDEEM- ABLE IN MONEY— PENALTY, ETC. 1. It shall be unlawful for any corporation, company, firm or person, engaged in any trade or business, either di- rectly or indirectly, to issue, sell, give or deliver, to any person employed by such corporation, company, firm or person, in .payment of wages due such laborer, or as ad- vances for labor not due, any scrip, token, draft, check, or other evidence of indebtedness, payable or redeemable oth- erwise than in lawful money; and if any such scrip, to ken, draft, check, or other evidence of indebtedness, be so issued, sold, given or delivered to such laborer, it shall be construtMi, taken and held in all courts and places, to be a promise to pay the sum specified therein in lawful money by the corporation, company, firm or person, issuing, selling, giving or delivering the same to the person named therein, or to the holder thereof. And the corporation, company, firm or person, so issuing, selling, giving, or delivering the same, shall, moreover, be guilty of a misdemeanor and upon con- viction thereof shall be fined not less than twenty-five dol- lars, nor more than one hundred dollars, and, at the dis- cretion of the court, the offlcer or agent of the corporation, company or firm, or the person issuing, selling, giving or delivering the same, may be imprisoned, not less than ten nor more than thirty days. Va., 802. Constitutionality passed upon by divided Court. State vs. Coal Co., 36 W. 288 WEST VIRGINIA CORPORATIONS. EXCESSIVE CHARGES POJEl GOODS PROHIBITED. 2. If any corporation, company, firm or person, shall coerce or compel, or attempt to coerce or compel an employe in its, their or his employment, to purchase goods or sup- plies in payment of wages due him, or to become due him, or otherwise, from any corporation, company, firm" or per- son, such first named corporation, company, firm or person, shall be guilty of a misdemeanor, and upon conviction there- of be punished as provided in the preceding section. And if any such corporation, company, firm or person, shall di- rectly or indirectly, sell to any such employe in payment of wages due or to. become due him, or otherwise, goods or supplies at prices higher than the reasonable or current market value thereof at cash such corporation, company, firm or person, shall be liable to such employe, in a civil action, in double the amount of the charges made and paid for such goods or supplies, in excess of the reasonable or correct value in cash thereof. 3. It shall be the duty of every court having jurisdiction in criminal cases in which grand juries are empanneled, to give this act in charge of the grand jury. CEMETERY ASSOCIATIONS AUTHORIZED TO SELL THEIR LANDS. Any cemetry association heretofore or hereafter incor- porated, whenever they deem it advisable, may sell and con- vey any part of their land without restriction as to its use: provided. That the part or parts so sold shall not render any lot previously sold for burial purposes inaccessible for such purposes, or detach it from the main body of the cem- etery; and provided, further, That no such sale shall b-.^ made by the trustees or other agents or officers of the as- sociation, unless authorized by a majority of the lot own- ers present at and voting at a general or special meeting, of which meeting and its objects previous notice shall be given, by advertising the same once a week, for two weeks at least, in some newspaper of general circulation in the county where the cemetery is^ situated; provided. That no desecration shall be made of any ijrnve or monument, or any of the wnlks, drives, trees or shrubbery within the in- closure of such cemetery; nor shall any shaft or entry be made within the inclosure of such cemetery, or any buildihi:; erected therein for any purpose whatever except for cemete- ry purposes. Acts 1S72-."., ch. -1-1; Code 1891, p. 1044. WEIGHING AND MEASURING COAL AT MINES. (Acts 1891, ch.82; Code 1891, p. 998.) For constitutionality of this act see 36 W. Va., 80a COAL COMPANIES TO PROVIDE FACILITIES FOR WEIGHING. 1. It shall be the duty of every corporation, company or person engaged in the business of mining and selling coal by weight or measure, to procure and constantly keep on hand at the proper place, the necessary scales and measures and whatever else may be necessary, to correctly weigh and measure the coal as mined by such corporation, company or person. And it shall be the duty of the' sealer of weights and measures for every county in which coal is so mined and sold, to visit each coal mine operated therein, and where such scales and measures are kept, at least once in each year, and test the correctness of such scales and meas- ures. The owner or operator of such coal mine, or any two or more of the miners working therein, may in writing re- quire his attendance at the place where such scales and measures are kept, at other times, in order to test the cor- rectness thereof, and it shall be his duty to comply with such requests as soon as he can, after receiving such re- quest. If his attendance is required by the owner or oper- ator of such mine, or if by the miners working therein, and the scales or measures tested be found not to be correct, his fees shall be paid by the owner or operators, and if his at- tendance be required by the miners and the scales or meas- ures tested be found to be correct, his fees shall be paid by them. If in any such county there be no sealer of weights and measures, the duties herein required to be done and performed by such sealer, shall be done and performed by 290 WEST VIRGINIA CORPORATIONS. the inspector of mines for the district of which such county forms a part. CARS TO BE NUMBERED AND CAPACITY MARKED. 2. Each car used by any such corporation, company or person in removing coal from any coal mine, shall be num- bered by consecutive numbers plainly marked, and placed and kept thereon as long as such car is so used. And if the coal from such mine is mined, and the miners are paid ac- cording to the weight thereof for mining the same, every such car so used shall be weighed upon such tested scales, and the weight thereof shall be plainly marked and placed thereon as long as such car shall be used as aforesaid. If the coal at any such mine is mined, and the miners thereof are paid for mining the same by measure, the number of bushels of coal such car will hold when loaded to its capaci- ty, shall also be plainly marked, and placed and kept there- on as long as such car is so used as aforesaid. And no car shall be used for the purpose aforesaid, after ninety days from the time this act takes effect, until the provisions of this section are complied with. COAL TO BE WEIGHED AND MEASURED BEFORE SCREENED. HOW PAID FOR. 3. All coal so mined and paid for by weight, shall be weighed in the car in which it is removed from the mine before it is screened, and shall be paid for according to the weight so ascertained, at such price per ton as may be agreed on by such owner or operator and the miners who mined the same. And coal mined and paid for by measure shall be paid for according to the number of bushels mark- ed upon each car in which it is removed from the mine, and before it is screened, and the price paid for each bushel so ascertained shall be such as may be agreed on as aforesaid. WEIGHMEN; HOW" APPOINTED, DUTIES, ETC. 4. Every such corporation, company or person shall em- ploy a wpedighman, and the miners working in such coal mine may employ another such weighman, and the two so employed shall supervise the weighing of each car while em- pty, and the weighing of the same when loaded with coal so paid for by weight, and the measurine: of the number of bushels therein, when necessary, so paid for bv measure. But if the miners fail to employ such weighman, then the person WEST VIRGINIA CORPORATIONS. 291 so employed by such cerporaiiou, company or person snail perform that duty. Each of the persons so employed before entering upon the discharge of the duties of his employment shall take and subscribe an oath or affirmation that he will honestly and impartially do and perform the duties of his employment, and do equal and exact justice between em- ployers and employees interested in the matter of his em- ployment, to the best of his judgment, skill and ability. SEALED WEIGHTS AND MEASURES— BY WHOM TO BE FURNISHED AND KEPT. 5. In any county in which the mine inspector is requir- ed to act as herein mentioned, the county court of such county shall furnish him with whatever is necessary to enable him to discharge his duties, if such court has pro- cured _the weights and measures and balances provided for by chapter flfty-nine of the code of West Virginia; and ^f not, the State sealer of weights and measures shall furnish him with whatever . may be necessary to enable him to discharge the duties hereby required of him, and the things so furnished him, in either case, shall be returned by him to the person from whom he received them as soon as pos- sible after he has performed the duties for which he receiv- ed them. But it shall . be the duty of every corporation, company or person so engaged in the business of mining coal, to procure and constantly keep on hand a sealed weight of at least fifty pounds, and a sealed measure of at least one bushel, to be used for the purpose of this act. VIOLATIONS— HOW PUNISHED. 6. Any corporation, company or person, violating any of the provisions of this act, shall be guilty of a misdemean- or, and upon conviction thereof, shall for each offence, be fined hot less than twenty-five dollars and not more than five hundred dollars. And the officer, agent or employes of the corporation or company whose duty it was to do or perform the act, or to cause it to be done and performed, which is the subject of the indictment, may be indicted jointly, with said corporation or company, and upon con- viction thereof, in the discretion of the court, he may be imprisoned in the county jail not less than ten nor more than sixty days. TO WHOM ACT NOT TO APPLY. 7. This act shall not apply to any corporation, company 292 WEST VIRGINIA CORPOKATIONS. or person owning or operating a coal mine in which less than ten miners are employed. CHARGES TO GRAND JURIES. 8. It shall be the duty of every court in each county, in which any such coal mine is operated, and in which a grand jury is empaneled, to give this act in charge to the grand jury. NON RESIDENTS NOT TO BE EMPLOYED TO PER- FORM POLICE DUTY. (Acts 1893, ch. 42.) 1. It shall be unalwful for any officer in this State, +o knowingly engage or employ any person not a bona fide res- ident of West Virginia at the time of such employment, to do or perform police duty of any sort therein, or in anv way to aid or assist in the execution of the laws of this State. 2. It shall be unlawful for any corporation, company, firm or person, under any circumstances, to knowingly en- gage or employ any person not a bona fide resident of this state, at the time of such employment to do or perform po- lice duty of any sort therein, or in any way to aid or assist in the execution of the laws of this State. 3. It shall be unlawful for any person not a bona fide resident of this State, as aforesaid, to do or perform, or at- tempt to do or perform, any sort of police duty in this State, or, in any way, to aid or assist, or attempt to aid or assist, in the execution of the laws thereof. Any officer, corpora tion, company, firm or person, violating any of the provis- ions o^ this, or either of the two preceding sections, shall be guilty of a misdemeanor, and upon conviction thereof, be fined not less than five hundred nor more than five thous- and dollars, and may, at the discretion of the court, be im- prisoned in the county jail of the county in which the of fense is committed not exceeding twelve months. 4. All persons violating any of the provisions of sec- tion two and three of this act shall be taken and deemed to be rioters, and shall be proceeded against in all respects as such, as provided in chapter one hundred and fortv eight of the code of West Virginia. And all the provisions of sections one, two, three, four, five and six of said chap- ter, shall be applicable to said proceedings. If any per- son be killed by one or more rioters engaged with him at the time of such riot, such rioter or rioters shall be guilty WEST VIRGINIA CORPORATIONS. 293 of murder and punished as provided by law in other cases of murder; provided, That nothing in this act contained shall be so construed as to interfere with the right and du- ty of the governor to call upon the president of the United States for aid in the enforcement of the laws, in cases pro vided for in the constitution. BRIDGES0VERTHE0H10,GREAT KAN- AWHA AND BIG SANDY RIVERS. Corporations may be formed under the provisions of the first twenty-four sections of chapter fifty-four of this code for the purpose of bridging the Ohio river. Any such cor- poration or any railroad corporation is hereby authorized to construct and maintain a bridge across said river, in the manner now, or which may hereafter be, provided by the Congress of the United States, and upon complying with the requirements, conditions and provisions so prescribed, and not otherwise; and such corporation is authorized to take tolls for the passage of persons, railroad cars, engines, ve- hicles and other things, passing on and over such bridge. Any such corporation may obtain the real estate necessary for the construction of its bridge and its approaches there- to, under the provisions of chapter forty-two of this code, and may purchase from any other corporation, which may have taken steps toward the erection of a bridge in the man- ner aforesaid, all the rights, franchises and property it may have aca.uired; subscriptions to the stock or bonds of any such corporations may be made by counties, districts and municipal corporations, in the manner provided for in chap- ter thirty-nine of this code; and subscriptions may be made thereto by other corporations, including railroad corpora tions, with the assent of the holders of two-thirds of the stock of any such corporation, at any general or special meeting of the stockholders ; and any corporation heretofore or here- after formed for the purpose of bridging the Great Kanaw- ha or Big Sandy rivers, or any railroad corporation con- structing such bridge, shall have all the privileges accord- ed by this section to corporations formed for the purpose of bridging the Ohio river; Provided, however. That ev- ery bridge erected across the Great Kanawha river, at and WEST VIRGINIA COEPOEATIONS. 295 above Charleston, shall have at least one channel span, the center of which shall be in the middle of the channel usu- ally run by descending coal fleets in high towing stages; and channel span to have a clear opening of four hundred feet at low water line and be at least seventy-five feet above low water. But the benefit of this section shall not inure to any corporation whose corporate rights have lapsed, been forfeited or become forfeitable. Every corporation formed under the laws of this State for the purpose of the construc- tion and maintenance of a bridge or bridges, in addition to the powers heretofore conferred upon or possessed by it shall have power, from time to time, to borrow such sums of money as may be necessary for the purpose and business of the company, and to issue bonds, bills of credit or indebt- edness and preferred stock, and dispose of the same for any amount so borrowed, and to mortgage or encumber, by deed of trust its corporate property and franchises to secure pay- ment of any debt contracted by such corporation for its purposes and business; but no such mortgage or deed of trust shall be valid unless authorized by a resolution adopt- ed by the aflBrmative votes of the holders of a majority of the stock of the company. Any such mortgage or deed of trust may include grant and convey, and make subiect to the lien thereof, all betterments, improvements and works made or constructed and property and franchises acquired and used in the company's business, after the making of such mortgage or deed of trust, (money and debts due the granting company excepted) and the purchaser at any sale under such mortgage or deed of trust shall be entitled to such betterments, improvements, works, property and fran- chises, with the exception aforesaid, as well as the property and franchises granted, thereby owned and possessed by the company, at the time of the making of the mortgage, or deed of trust, under which the sale is made, any other law or stat- ute to the contrary notwithstanding. Such purchaser shall be a corporation in the. same manner as is provided in rela- tion to purchasers of railroad property by sections seventy- two and seventy-three of chapter fifty-four of the code of West Virginia, and all the provisions of said two sections shall apply to the last mentioned corporation. All mortgag- es or deeds of trust heretofore made by any bridge company incorporated under the laws of this State, whether the same shall have been executed by virtue of a resolution adopted by vote of the stockholders, or shall have been executed by virtue of a resolution adopted by the board of directors of such corporation, without any action on the part of the stockholders thereof, which purport to grant and convey 296 WEST VIRGINIA CORPORATIONS. property and franchises of the granting company owned and possessed at the time of making the mortgage or deed of trust, or such property and franchises, together with prop- erty or franchises, or both, of such company, which it may have acquired subsequently to the making of such mort gage or deed of trust, shall be as valid and effectual for the purpose of effetuating such grant and conveyance, and make the same as effectually, as if this section as amended by this act had been in full force before and at the time of the execution of such mortgages or deeds of trust, and pur- chasers at any sales thereunder shall have the same rie;hts, powers and privileges as are by this section conferred upon purchasers nt sales made under mortgages and deeds of trust executed by such companies after this act takes effect. Code, ch. 44, sec 22, as amended by ch. 34, acts 1893, HOW CONSTRUCTION OP BRIDGES PREVENTED. Every bridge across the Ohio river hereafter erected or commenced wholly or in part within the jurisdiction of this State, contrary to the provisions of the next preceding section, and every railroad bridge across the Great Kanaw- ha or Big Sandy rivers hereafter erected or commenced, wholly or part within the jurisdiction of this State, contrary to the provisions of the next preceding section, shall be deemed a public nuisance; and so far as the same is within the said jurisdiction, may be abated and the construction thereof be prevented and enjoined by presentment, indict- Jment, or bill in equity, in the name of the State, or other remedy appropriate to the case. And it shall be the duty of the attorney general, as well as the prosecuting attorney of the proper county, to cause proper proceedings to be insti- tuted and prosecuted to abate, prevent and enjoin sucii work, as soon as they shall be credibly informed that the same has been or is about to be commenced. But the pro visions of this and the next preceding section, shall not ap- ply to the portions of the Great Kanawha above the falls of said river, known as the falls of the Kanawha. Code, ch. 44, sec 23. TAXATION OF CORPORATIONS. 1. Taxation shall be equal and uniform throughout the State, and all property, both real and personal, shall be tax- ed in proportion to its value, to be ascertained as directed by law. No one species of property from which a tax may be collected, shall be taxed higher than any other species of property of equal value; but property used for education- al, literary, scientific, religious or charitable purposes; all cemeteries and public property may, by law, be exempted from taxation. The legislature shall have power to tax, by uniform and equal laws, all privileges and franchises of persons and corporations. Constitution, art. X, sec. 1. State vs. B. & O., 41 W. Va., «4. Bridge Co., vs. County Court, same, 6BB-7. As to qower of legislature to exempt property from taxation, see E. R. vs. Miller, 19 W. Va., 408. Ante, pages 48, 49 and 50. Note. Acts 1863, page 165. Acts 1875, cli. 54, see. 67. Acts 1879, ch. 73, sec. 67. Acts 1881, ch. 12. Acts 1882, eh. 116. Acts 1883, eh. 52. 3 W. Va.. 319 and 372. 39 W. Va., 142. 41 W. Va., 81 and 658. 28 W. Va., 264. P. C. C. & St. L. E'y Co., vs. Bjaard of Public Works; Sup. Ct., U. S. Oct. Term 1898. TAXATION OF EAILEOAD COKPORATIONS. The president, vice president, secretary or principal ac- counting officers of any corporation or company, owning or operating a railroad or railway, wholly or In part within this State, for the transportation of freight or passengers, o*- both, for compensation, shall make a return in writing to the auditor on or before the first day of April in each 298 WEST VIRGINIA CORPORATIONS. year, which shall be signed and sworn to by one of said offi- cers, showing in detail the following particulars for the year ending on the thirty-first day of December, next pre ceding, viz: First. The whole number of miles of railroad owned, operated or leased by such corporation or company within this State. Second. If such road so owned, operated or leased by such corporation or company be partly within and partly .without this State, the whole number of miles thereof with- in this State, and the whole number of miles without th'; same, including its branches in and out of the State. Third. Its railroad track in each county in this State through which it runs; giving the whole number of miles of road in the county, including the track and its branches, and side and second tracks, switches and turnouts therein, and the fair cash value per mile of such railroad in each county, including in such valuation such main track, branches, side and second tracks, switches and turnouts. Fourth. All its rolling stock; giving a detailed state- ment of the number of cars, including passenger, mail, ex- press baggage, freight and other cars of every description, and the fair cash value of all such cars used wholly, or in part in this State, distinguishing between such as are used wholly in this State and such as are used partly within and partly without this State; the whole number of engines, in- cluding their appendages used wholly or in part within this State, distinguishing between such as are used wholly within this State and such as are used partly within and partly without the same, and the fair cash value of such as are used wholly within the State; and such as are used partly within and partly without the State, and the propor- tional value of such cars and engines used by it partly with- in and partly without the State, according to the time used and the number of miles run by such cars and engines in and out of the State; and the proportional cash value there- of to each county in this State within which such railroad runs. Fifth. Its depots, station-houses, freight houses, machine and repair shops and machinery therein, and all other build- ings, structures and appendages connected thereto or used therewith, together with all other real estate other than its railroad track, owned and used by it in connection with its railroad, and not otherwise taxed, including telegraph lines owned or used by it, and the fair cash value of all buildings and structures, and all such machinery and appendages, and of each parcel of such real estate, including such tele- WEST VIRGINIA CORPORATIONS. 299 graph line, and the cash value thereof in each county in this State in which it is located. A bridge is a "building or structure" witliin the meaning of this section. P. C. C. & St. L. R'y Co. vs. Board, Supt. Ct., U. S., Oct term, 1808. Sixth. Its personal property of every kind whatsoever, iacluding money, credits and investments, wholly heK or used in this State, showing the amount and value thereof in each county. Seventh. Its actual capital stock and the number, amount and value in cash of the shares thereof; the amount of its capital stock actually paid in ; the total amount of its bonded indebtedness, and of its indebtedness not bonded; its gross earnings for the year, including its earnings from the telegraph lines, which shall be stated separately, on the whole length of its road, including the branches thereof, in and out of the State, and also such earnings within this State on way freight and passengers, and the proportion of such earnings in this State on through freight and passen- gers carried over its lines in and out of the State, to be as- certained by the number of miles the same were carried by it within and the number of miles without the State. Eighth. Its gross expenditures for the year, giving a de- tailed statement thereof under each class or head of expen- diture. If any corporation or company fail to make such return to the auditor as herein required, it shall be guilty of a misdemeanor and be fined one thousand dollars for each month such failure continues. Prosecutions for such failure shall be in the county wherein the seat of govern ment is. If such returns be made to the auditor, he shall lay the same as soon as practicable thereafter, before the board of public works, and, if such return be satisfactory to the board, it shall approve the same, and by an order en- tered upon its records, direct the auditor to assess the prop- erty of such corporation or company with taxes; and he shall thereupon assess the same as hereinafter provided. But if such return be not satisfactory to the board, or if any such company fail to make such return as herein re- quired, said board of public works shall proceed in such manner as to it may seem best to obtain the facts and inform- ation required to be furnished by such return; and to this end the said board may send for persons and papers, and may compel the attendance of any person and the produc tion of any paper necessary, in the opinion of said board to enable it to obtain the information desired for the proper discharge of its duties under this section. Any expenses 300 WEST VIRGINIA CORPORATIONS. necessarily incurred by such board in procuring such in- formation shall be paid by the governor out of the contin- gent fund. If any person shall refuse to appear before said board when required by it to do so, as aforesaid, or shall refuse to testify before said board in regard to any matter as to which said board may require him to testify, or if any person shall refuse to produce any paper in his possession or under his control, which said board may require him to produce, every such person shall be guilty of a misdemean- or, and fined five hundred dollars, and shall be imprisoned not less than one nor more than six months, at the discre- tion of the court. Prosecutions against any such person shall also be in the county wherein the seat of government is. As soon as possible, after the board of public works shall have procured the necessary information to enable it to do so, said board shall proceed to assess and fix the fair cash value of all the property of said corporation or com pany hereinbefore required to be returned by it to the au- ditor, so far as the said board hag been able to ascertain the same, in each county through which the railroad of any such corporation or company runs. In ascertaining such value, the board shall consider any return which may have been previously made to the auditor by such corporation or company, and all the evidence and information it has been able to procure by the means aforesaid, and all such as may be offered by such corporation or company. And the decis ion of said board thereon made shall be final, unless the same be appealed from within thirty days after such decis- ion comes to the knowledge of the president, vice-president, secretary, or principal accounting oflflcer, or the attorney, of such corporation or company, transacting business for it in the county wherein the seat of government is, in the manner following: Any corporation or company claiming to be aggrieved by any such decision may, within the time aforesaid, appeal therefrom as to the assessment and valu- ation made within each county, through which its road runs, to the circuit court of such county; and such appeal shall have precedence over all other cases on the docket of such court, and be tried in the shortest time possible after such appeal is docketed. The court shall hear all such le- gal evidence on such appeal as may be offered by the State, county, district or municipal corporation, and by the corpor- ation or company taking such appeal. And if the court be satisfied that the vaule so fixed is correct, it shall con- firm the same; but if it be satisfied that the value so fixed by said board is either too high or too low, the court shall correct the valuation so made, and ascertain and fix the WEST VIRGINIA CORPORATIONS. 301 true value of such property according to the facts proved, and certify such value to the auditor. In case the lists and valuations of the property filed with the auditor as afore said, be satisfactory to the board of public works, and in case where an assessment of the property of such company is made by the board of public works as aforesaid, the audi- tor shall immediately certify to the county court of each county through which such railroad runs, the value of the property therein of every such company as valued or as- sessed as aforesaid, and it shall be the duty of such court to apportion the whole of such value between such districts and independent school district in their county through which said road runs, as near as may be according to the value thereof, and then a proportional valuation to each municipal corporation in their county through which said road runs, according to the value thereof. It shall be the duty of the clerk of the county court of every county through which any railroad runs, within thirty days after the county and district levies are laid by such court, to certify to the auditor the apportionment made by the county court as aforesaid, and the amount levied upon each one hundred dol- lars value of the property in the county for county purposes, and on the value of the said property in each magisterial dis- trict through which said railroad is located, for district pur- poses. It shall also be the duty of the secretary of the board of education of every school district and independent school district through which the railroad runs, in each county, within thirty days after the levy is laid therein for free school and building purposes, or either, to certify to the au- ditor the amount so levied on each one hundred dollars val- ue of the property therein for each of said purposes; and it shall be the duty of the recorder, clerk or other recording of- ficer of every municipal corporation, through which such railroad runs, within the same time after a levy is laid there- .in for any of the purposes authorized by law, to certify to the auditor the amount levied upon each one hundred dol- lars value of the property therein for each and every pur- Dose. Any clerk of a county court, secretary of a board of edu- cation, or recorder, clerk or other recording officer of a mu- nicipal corporation, who shall fail to perform any of the duties herein required of him, shall be guilty of a misde- meanor and fined not less than one hundred nor more than five hundred dollars. In case of the failure of any such offi- cer to furnish to the auditor the certificate herein required, the auditor may obtain the rate of taxation for any of said purposes from the copies of land books on file in his office, 302 WEST VIRGINIA CORPORATIONS. i if the same be found in such books, and if not, in such other way or manner as he may deem necessary or proper for the purpose. As soon as possible after the value of the prop- erty of such corporation or company is fixed by the board of public works, or by the circuit court on appeal as aforesaid, and after he shall have obtained the information herein pro- vided foi" to enable him to do so, the auditor shall assess and charge the property of every such corporation or company with the taxes properly chargeable thereon, in a book to be kept by him for that purpose as follows: First. Vvlth the whole amount of taxes upon its prop- erty for State and State school purposes. Second. With the whole amount of taxes on its proper- ty in each county through which its road runs, for county purposes. Third. With the whole amount of taxes on its proper- ty in each magisterial district through which its road runs, for road and other district purposes other than free school and building purposes. Fourth. With the whole amount of taxes on its proper- ty in each school district and independent school district through which its road runs, for free school and building purposes; and, Fifth. With the whole amount of taxes on its property in each municipal corporation through which its road runs, for each and all of the purposes for which a levy therein is made by the municipal authorities of such corporation. And no injunction shall be awarded by any court or judge to restrain the collection of taxes, or any part of them so assessed, except on the ground that the assessment thereof was in violation of the Constitution of the United States, or of this State, or that the same was fraudulently assessed, or that there was a mistake made by the auditor in the amount of taxes properly chargeable on the property of said corporation or company; and in the latter case, no such injunction shall be awarded unless application be first made to the auditor to correct the mistake claimed, and the. au- ditor shall refuse to do so, which fact shall be stated in the bill. The auditor shall, as soon as possible after he com- pletes the said assessments, make out and transmit, by mail or otherwise, a statement of all taxes and levies so charged, to the president, vice-president, secretary or prin- cipal accounting officer, of such corporation, or company. And it shall be the duty of sucli corporation or company, so assessed and charged, to pay the whole amount of such taxes and levies upon its property, into the treasury of the State, by the twentieth day of January next after the as- sessment thereof, subject to a deduction of two and one- WEST VIRGINIA CORPORATIONS. 303 half per centum upon the whole sum, if the same be paid on or before that day. If any such corporation or company fail to pay such taxes and levies by the said twentieth day of Jan- uary, the auditor shall add ten per centum to the amount thereof, to pay the expenses of collecting the same, and shal certify to the sheriff of each county the amount of such taxes and levies assessed within his county ; and it shall be the duty of every such sheriff to collect and account for such taxes and levies in the same manner as other taxes and levies are collected and accounted for by him. And when the district and independent school district taxes and levies are collected by him, he shall immediately pay the same to the treasurer of the proper district. Neither the county court of any county, nor any tribunal acting in any county in lieu of a county court, or otherwise, nor any board of ed- ucation, nor the municipal authorities of any incorporated city, town or village, shall have jurisdiction, power or au- thority, by compromise, or otherwise, to remit or releas'3 any portion of the taxes or levies so assessed upon the prop- erty of any such corporation or company; and when such taxes and levies are certified to the sheriff of any county for collection, as aforesaid, it shall be his duty to collect the whole thereof, regardless of any order or direction of any such county court, tribunal, board of education or munic ipal authority, to the contrary; and if he fail to do so, he and his securities in his official bond shall, unless he be re- strained or prohibited from so doing by legal process from some court having jurisdiction to issue the same, be liable thereon for the amount of said taxes and levies lie may so fail to collect, if he could have collected the same by the use of due dilligence. Any member' of the county court or tri- bunal acting in lieu thereof, or of a board of education, or of the council or other tribunal of a municipal corparation, who shall vote to remit or iel6ase any part of the taxes so assessed on the property of any such corporation or compa- ny, shall be guilty of a misdemeanor, and fined five hundred dollars, and shall be removed from his office by the court by which the judgment of such fine is rendered, in addition to such fine. When such taxes and levies due to a municipal cor poration are collected by the sheriff, he shall pay the same to the proper collecting officer or treasurer of such munic- ipal corporation, or otherwise, as the council or other prop- er authority thereof may direct. And when such taxes and levies are paid into the treasury as herein provided, the au- ditor shall account to the sheriff of each of thecounties, to which any sum so paid in for county levies belongs, for the amount due such county, and may arrange the same with 304 WEST VIRGINIA CORPORATIONS. such sheriff in his settlement for the State taxes in such way as may be most convenient; and the sheriff shall ac- count to the county court of his county for the amount so received by him in the same manner as for other county levies: Provided, That the taxes assessed for the last year of the term of ofdce of a sheriff shall be paid to, or setj:led with, the sheriff who was in of39ce at the time the assess- ment was made. The amount so paid in for each district and independent school district shall be added to the dis- tributable share of the school fund payable to such district, and paid upon the requisition of the county superintendent of free schools, in like manner as other school moneys are paid. The auditor shall certify to the county court of every such county, on or before the first day of April in each year, the amount with which the sheriff thereof is chargea.- ble on account of the levy upon the property of such com- pany. He shall also certify to the county superintendent of free schools the amount of such levies due to such dis- trict and independent school district in his county for free school purposes. The amount so paid in for each municipal corporation shall, as soon as received by the auditor, be paid over to the treasurer of the municipal corporation, to which such taxes are due, or to such other officer of the cor- poration as the council may designate, and the auditor shall report such payment to the council. But the failure of the clerk of any county court, or the secretary of any board of education, or the proper officer of any municipal corporation, to certify to the auditor the levies or apportion- ment within the time herein prescribed, shall not invalidate or prevent the assessment required by this section, but the auditor sTiall make the assessment and proceed to collect or certify the same to the sheriff, as soon as practicable, af- ter he shall obtain the information necessary to make such assessment. The right of the State, or of any county or dis- trict or municipal corporation, to enforce, by suit or other- wise, the collection of taxes or levies, heretofore assessed, or the right to which has heretofore accrued, shall not in any manner be affected or impaired by anything in this chapter contained. All buildings and real estate owned by such company or used and occupied for any purpose not im- mediately connected with its railroad, or which is rented or occupied for any purpose to or by individuals, shall be as sessed, with the taxes properly chargeable thereon, the same as other property of the like kind belonging to an in- dividual. No such company or corporation as is mentioned in this section shall be exempt from taxation, whether the same has been or may be created, organized or operated by, WEST VIRGINIA CORPORATIONS. 305 under or by virtue of any general or special law or laws, or whether heretofore exempted from taxation or not, but this section shall apply to all such companies and corporations without distinction or exception. Code, ch. 29, sec. 67. Provision allowing appear to circuit court is constitutional. E'y Co. vs. Paull, 39 W. Va., 142. Statutory mode of collecting tills tax is exclusive. Motion or suit will not lie. state vs. B. & O., 41 W. Va., 81. State vs. Oil Co., 42 W. Va., 80. On appeal to circuit court, its action is administrative not judicial and from its decision no appeal lies to Supreme Court of Appeals. E'y Co. vs. Board, 28 W. Va., 264. In so far as tills section prohibits injunctions, it is not binding on tlie courts of the U. S., still it is nearly in accord with the rule governing the exercise of equity jurisdiction in these courts. P. C. C. & St. L. E'y Co. vs Board Public Works, Sup. Ct., U. S., Oct. term, 1898. See E'y Co. vs. Miller, 19 W. Va., 408. RIGHT OF WAY MAY BE ASSESSED FOR TAXATION BEFORE CONSTRUCTION OF ROAD. That any person or company, through whose lands a pub- lic road has been or may hereafter be established accordinji to law, may have the number of acres so taken and used as a public road, deducted from the whole number of acres owned by him or them, during the time such land is used as a public highway. And any person through whose lands a railroad company has acquired a right of way by purchase or condemnation, and has taken possession of the same, such person may have the number of acres so acqui>red for such right of way deducted from the whole number of acres in the tract of land, and the same shall be transferred and charged to the railroad company until such time as the rail- road is constructed and assessed by the board of public works, under section sixty-seven of chapter twenty-nine of the code, and when such railroad is so assessed by the board of public works, such right of way shall be stricken from the land books, and be no longer assessed hereunder. Which reduction herein provided for shall only be made by +h'^ county court of the county wherein such land may be sit- iiated, upon satisfactory proof of the number of acres of land contained in any such public road, or taken and occu- pied by any railroad company, and by showing to the sat- isfaction of the county court, that the applicant is entitled to have the number of acres charged to him reduced. And any order made by any such county court in any such appli- cation shall direct the clerk of its court to correct the land books in accordance with the facts as found by such county court. Acts 1891, ch. 118. TAXATION OP TOLL BRIDGES. 63. The assessor shall ascertain the yearly value of all 306 WEST VIRGINIA CORPORATIONS. toll bridges and ferries in his district, except such as are by law exempt from taxation. He shall make a just esti- mate of their annual value. For purposes of taxation the value of a toll bridge or a ferry shall be taken to be ten times its annual value. The assessors shall also ascertain the yearly value of all railroad bridges upon which a separate toll or fare is charged in his district, except such as are by law exempt from taxation, and shall make a just estimate of their annual value. For purposes of taxation, the value of a railroad bridge, upon which a separate toll or fare is charged, shall be taken to be ten times its annual value. Code, ch. 29, sec. 63. This fsection does not conflict with sec. 1, art. X, Constitution. Bridge Co. vs. County Court, 41 W. Va., 658. Such assessment is placed on the personal property booh as provided by section 68 of ch. 29, Code. Ibid., page 673. See P. C. C. & St. L. E'y Co. vs. Board of Public Worlis, Supt. Ct. O. S., Oct. Term, 1898. See sec. 68, ch. 29, Code. TAXATION OF INSURANCE, TELEGRAPH AND EX- PRESS COMPANIES. The property of domestic insurance, telegraph and express companies shall be assessed for taxation as other property in this State. But the stock notes of such companies shall not be assessed nor shall such notes or any part of them be considered a part of the indebtedness of the maker there- of, in listing his property for taxation. Code, ch, 34, sec. 6. RETURNS TO BE MADE FOR AND ON BEHALF OF FOREIGN INSURANCE, TELEGRAPH AND EXPRESS COMPANIES. See Acts 1864, page 23; Acts 1867, page 146. Every foreign insurance, telegraph and express company doing business in this State, or the agent or agents thei-eof, shall annually make returns to the auditor as follows: Pro- vided, That where there are several agents of any such com- pany in this State the returns may be made by any one of them on behalf of all. Code, ch. 34, sec. 7. Acts 1882, ch. 85. If such returns be made on behalf of any insurance com- pany, they shall show the amount of premiums on all in- surances made, renewed or negotiated within this State, or on any subject of insurance within this State, on behalf of such company, during the period to which the said re- WEST VIRGINIA CORPORATIONS. 307 turns relate, including as well premiums uncollected as those which are paid. Code, ch. 34, sec. 8. Acts 1882, ch. 85. If the returns be made on behalf of a telegraph company, they shall show the gross receipts for all dispatches or mes- sages sent and received by such company within this State, during the period to which such returns relate. Code, ch. 345, sec 9. Afts 1882, ch. 85. If the returns be made on behalf of an express company, they shall show the amount of charges and freights, whether paid or uncollected, accruing to such company during the period to which the said returns relate, on ac- count of money, goods and merchandise forwarded or car- ried within this State by the said company or under its charge or care. Code, ch. 34, sec. 9. Acts 1875, ch. 113; A*ets 1882, eh. 85. The said returns shall be made within twenty-one days after the first day of February in every year, and shall in- clude the business of the twelve months preceding the first day of January in that year, and any business omitted in a former period. The amount only may be stated in the re- turns without the particulars, unless a more specific return be required by the auditor. The returns so made shall be verified by the affidavit of the officer or agent making the same. Code, ch. 34, sec. 11. Acts 1882, ch. 85. It shall be the duty of the auditor to cause the provisions of this chapter to be carried into effect, and he may from time to time prescribe such forms and regulations as are proper for that purpose. And it shall be the duty of every assessor to transmit to the auditor, within the week pre- ceeding the first day of February in every year, a list of all such companies or agents doing business within his assess- ment district as are required to make returns as aforesaid. Code, ch. 34, sec 12. Acts 1882, ch. 85. TAX TO BE PAID. At the time of making such return by any foi-eign insur- 308 WEST VIRGINIA OORPOKATIONS. ance, telegraph, or express company, the officer or agent making the same shall pay into the treasury of the State a tax of two per cent, on the gross amount of the premi- ums, or charges and freights, or receipts for dispatches and messages stated in the said return, which shall be in full of State taxes only. The company paying such taxes shall take duplicate receipts therefor, one of which shall be filed with the auditor. Should any company fail to make such payment and file such receipt, the auditor shall not issue to such company the certificate mentioned in the third sec- tion of this chapter so long as such failure may continue. Provided, That any foreign live stock insurance company which shall invest in this State the whole amount of its net receipts from its business therein, shall pay only one-half of the aforesaid rates. Code, ch. 34, sec 13. Acts 1871, ch. 107; 1872-3, ch. 96 and ch. 221; Acts 1875, ch. 113; Acts 1882, oU. 85. PENALTY FOR FAILURE TO MAKE TRUE RETURNS OR TO PAY THE TAX. Every company or agent hereby required to make retui-n or payment as aforesaid, who shall fail to do so, or know- ingly make a false return, shall forfeit not less than one hundred nor more than one thousand dollars for every such offense. Code, ch. 34, sec. 14. Acts 18S2, eh. 85. Franklin Ins. Co. vs. State, 6 W. Va., 349. See note to sec. 64, ch. 29, Code, post. Ante, pages 48, 49 and 50, note. He (the assessor) shall ascertain from the proper offlcei-s or agents of all incorporated companies in his district (ex- cept railroads and foreign insurance, telegraph and express companies), the actual value of the capital employed or in- vested by them in their trade or business (exclusive of real estate and property exempt by law from taxation), and en- ter the same in his personal property book. The real estate of such companies shall be assessed and entered in the land book as in other cases. The value of the capital shall be estimated by taking the aggregate value of all the personal property of the company, not exempt from taxation, wher- ever situated including their money, credits and invest- ments, whether in or out of the State, and deducting from the said money, credits and investments, and not from said aggregate, what they owe to others as principal debtors. If a company have branches, each branch shall be assessed WEST VIRGINIA CORPORATIONS. 309 separately in the district where the principal oflSce for trans acting its financial concerns is located, or if there be no such office, then in the district where its operations are car- ried on. All property of navigation companies and other joint stock transportation companies (except railroads), whether real or personal, shall be taxed in the county and district wherein such property is situated, and all locks and dams of navigation companies shall be assessed and taxed as real estate, in the county in which said locks and dams are situated, and it shall be the duty of the assessor of each district to assess such property as hereinbefore directed. When the capital of a company is assessed as aforesaid, the personal property thereof, \vhich shall not be held to include the locks or dams of a navigation company, shall not be otherwise assessed, nor shall any individual shareholder or partner therein be required to list or be assessed with his share, portion or interest, in the said capital. Code, eh. 29, sec. 64. To same effect as last sentence. See sec. 51, ch. 29, Code. See Ante, pages 48 and 49, note. Building & Loan Associations are not assessed with a capital stock. The IE embers are to be assessed with their shares. B. & h. Ass'n vs. Co. Court, 42 W. Va., 818. How bank stock is assessed. Watson vs. Fairmont, 38 W. Va., 183; Bank vs. Co. Court, 36 W. Va., 341. Duty of bank cashier. Ch. 29, sec. 66, Code. Appeals from assessment. State vs. Oil Co., 42 W. Va., 80. Confirming the observations made on pages 49 and 50, ant., see Bank vs. County Court, 36 W. Va., page 349, and syl. 4. The court says, "The Ipsi- mate object of the statute being' to tax the stock in the County where the bank is located." See, also, 38 W. Va., 183. When stock has been listed for taxation in name of corporation, none of it can be listed in name of stockholder. Ibid., syl. 2. Watson vs. Fairmont, 38 W. Va., 183. Inasmuch as the above section excludes foreign insurance, telegraph and express companies from its provisions, and section 13 of chapter 34 of the Code provides that the two per centum paid on their gross receipts by such companies "shall be in full of 'State taxes only,' " a doubt has been indulged whether such companies can be assessed for taxes (other than State taxes) upon property owned by them in an assessment district. The Constitution provides that "all property, both real and personal, shall be taxed." Art X see. 1. In construing this constitutional provision the Supreme Court has held that the legislature is inhibited from exempting property from taxation. C. & O.R'y Co. vs. Miller, 19 W. Va., 408. Certainly, therefore, in constru- ing the tax laws, it cannot be presumed that the legislature intended to do what the Constitution prohibits it from doing; and if such intention could be inferred or if even the terms used left no doubt of the intention to exempt, the act is, in so far as it relieves property from tax.ation, null and void Sec tion 48 of ch. 29, code, requires the listing of property of non-residents iif the property be in this State. The word "persons" used in that section wonld include corporations, if any other construction would do violence to the Con- stitution. In other words, every intendment of the statute should be taken in favor of that construction which will maintain and uphold the Constitution At most, section 64 of chapter 29, does not embrace foreign insurance tele- graph and express companies; and as the legislature cannot exempt' their property from taxation, it seems to follow logically and assuredly lustlv that the property of such companies, wherever situated, shall be listed for taxation, as is the property of all other persons. When the time for paying the taxes shall come, if such companies have complied with sections 7 to 13 inclusive ofchapter .34, then such compliance shall operate as a payment "in full of state taxes only." "Persons" as used in chapter 29, includes corporations, and the use of the 310 WEST VIRGINIA CORPOEATIONS. word "only" in section 13 of chapter 34, shows a clear legislative intent that as to other taxes the general tax laws shall apply. Therefore, to conclude, property of foreign insurance, telegraph and express companies situated in any assessment district shall be listed for taxation, the same as all other property, subject, however, to the ijrovisions of sections 7 to 13, Inclusive, of chapter 34 of the Code. See also sec. 68, ch. 29, Code; as amended by ch. 30, Acts 1893. LICENSE TAX ON CORPORATIONS. (See Code, chapter 32, sections 86, 87, 88, 89, 90, 91 and 92.) See ante., pages 14, 15, and 16, and pages 48, -at and 50. Note. As to the penalty of forfeiture for failure to pay license tax, see ante, chapter XIV, and especially pages 82, 83, 84 and 85. Such failure does not, of itself," forfeit the charter. Then- is no forfeiture for such failure until there is a judgment to that effect by a court of competent jurisdiction in a direct proceeding brought by the State. Lumber Co. vs. Ward, 30 W: Va., 566. Sec. 90, ch. 32, Code (ante, pa^e 15) allows a corporation which has failed to pay its license tax to be relieved of the forfeiture by paying the same, together with a penalty of five dollars, within sixty days after the publication of the list of forfeited charters. This list must be published within thirty days after May 1st (ante, page IS". If the list be published on the thirtieth day, there would be mnety days from May 1st in which to redeem. The proceedings to redeem are simple. 1st. It must be done within sixty days from the publication of the list of forfeited charters. 2nd. The license tax due on May 1st preceding must be paid and a i)enalty of five dollars besides, both to the auditor. Upon making these payment the corporation is relieved from the effect, of the failure to pay on or before May 1st and the publication thereof. Afterwards it stands as if there had been no failure, forfeiture or i publication. If the tax be paid after May 1st but before publication of the list, it is the custom of the auditor to receive the same without exacting the penalty. TAKING LAND WITHOUT OWNER'S CONSENT FOR PURPOSES OF PUBLIC UTILITY. (Code, chapter 42.) See eh. 52, Code, sees 5 to 24. Ante, pages 112 to 124. IN WHAT CASES AND HOW PRIVATE PROPERTY MAY BE TAKEN OR DAMAGED FOR PUB Lie USE, ETC. 1. Private property shall not be taken or damaged for public use without just compensation; nor shall the same be taken by any company incorporated for the purposes of internal improvement, until just compensation shall have been paid or secured to be paid to the owner; and when private property shall be taken or damaged for public use or for the use of such corporations, the compensation to the owner shall be ascertained in such manner as may be pre- scribed by general law, provided. That when required by either of the parties, such compensation shall be ascertain- ed by an impartial jury of twelve freeholders. Constitution, Art. Ill, sec. 9. Ante, page 110. This chapter should be read in connection with sections j to 24 of chapter 32, Code. Ante, pages 112 to 124. Notes to section 5, chapter 52, ante, pages 115-116. The proceedings to condemn land must be strictly pursued and the statutes strictly construed, and a substantial compliance with the requirement Is sufficient. This chapter (42 of Code) gives the requirements and proceedings to con- demn land— unless otherwise expressly provided. Bridge Co. vs Comstock, 36 W. Va., 263. Private property within meaing of sec. 9, art. 3, of Constitution, embraces a ferry franchise, and to build bridge within one-half mile, is damaging there- to within meaning ol Constitution. 17 W. Va., 397. As to gravel, stone and all personal property. Teter vs. E. E. Co., 35 W. Va., 433. Private property can be taken only for public use, not private use. It must appear that the public has a definite use, on terms fixed by law for the prop- erty, and without which the public would suffer inconvenience and that nel- 312 WEST VIRGINIA CORPORATIONS. tlier this or other lands can be obtained which would answer the same pur- pose without condemning it. Varner vs. Martin, 21 W. Va., 535; Cemetery Asso. vs. Rudd, 33 W. Va., 262. Cannot condemn for private road. Acts of 1872-3, so authorizing, nncon- stitutional.— Id. 21-535, nor for subterranean way to bring coal from petition- ers' mines to its i^urnace. Salt Co. vs. Brown, 7 W. Va., 191. Nor for lands on which to build switch, so railway company could reach a mill owned by petitioners to ship its freight. Kailroad Co. vs. Iron Works, 31 W. Va., 710. Whether the use is public or private for which property is sought to be ta- en, is a iudiciai question subject to review by the courts. Id. 31, W. Va., 710; 21 W. Va., 535, supra. When legislature has determined the public uses for which private property may be talien, the expediency of such determination is not for the courts to pass on; but when conditions to riglit to take such property are attached by legislature the court must determine whether such conditions have been ob- served. Railroad Co. vs. R. K. Co., 17 W. Va., 812. 21 W. Va., 535, supra. Any restriction of right of eminent domain by contract or otherwise is con- trary to public policy. Trans. Co. vs. Pipe Line Co., 21 W. Va., 601. When property of one internal improvement company can be taken by an- other. See chap. 52, sec. 7, note, supra. 34 W. Va., 155; 17 W. Va., 812; 30 S. E. 86. The statute makes no provision for internal improvement company to ob- tain the right to damage private property for its use, and the person whose property Is so damaged is usually left to his action at law. Cases distin- guishing between "damaging" and "taking" private property, etc.: Watts vs. Ry. Co., 39 W. Va., 196; Smith vs. Ry. Co., 23 W. Va., 406; McKenzie vs. R. K. Co., 27 W. Va.. 306. But in certain cases equity will restrain any work by such company until damage to private property is determined and paid. To thus assess such damage equity will direct an issue "quantum damniflcatus." Bridge Co. vs. Mason, 17 W. Va., 396; Tiler vs. R. R. Co., 35 W. Va., 453; Miller vs. Aracoma 30 W. Va., 306; Ward vs. R. R. Co., 30 W. Va., 481. See cases in which equitable interference is discussed: Asbury vs. R. R. Co., 33 W. Va., 1; Spencer vs. R. R. Co., 23 W. Va., 407; B. B. vs. Gibbous, 35 W. Va.. 57. Such order directing such Issues, should require it tried by twelve freehold- ers, and suoh order is in the nature of an inquisition to determine compensa- tion, and the question of title is not ordinarily involved. After verdict the order should be that when the same is paid to owner or deposited with the coui^:, that injunetion be dissolved. It is error to give a decree against ap- plicant. 30 W. Va., 481. supra. PURPOSES FOR WHICH PRIVATE PROPERTY MAY BE TAKEN. 2. The public uses for which private property may be ta- ken or damaged, are as follows: First. For the construction of railroads, canals, turn- pike roads, cou«t,y roads, public landings, bridges and pub- lic streets and alleys, and all other roads and internal im provements for public use. Second. For incorporated companies of which the State is sole or part owner. Third. Eor court houses and other public buildings for the use of a county or municipal corporation. Fourth. For cemetery associations and for other ceme- teries; provided, That the property to be taken for such oth- er cemeteries, adjoins the land upon which a church or an- other cemetery is. Fifth. For companies organized for the purpose of trans- porting carbon oil or natural gas, or both, by means of pipes or otherwise, when for public use. WEST VIRGINIA CORPORATIONS. 313 Sixth. For telegraph and telephone companies when for public use. Seventh. For public school houses and all other pur- poses of public utility, which now are or may be prescribed by law. Eighth. Ky the government of the United States, for the purpose of erecting thereon lighthouses, signal stations, beacons, locks, dams, works for improving navigation, post- offices, custom houses, court houses, or any other needful public structure or work of improvement whatever, subject to the provisions of chapter one of this code. But no land shall be taken for cemetery purposes which lies within four hundred yards of a dwelling house, unless to extend the limits of a cemetery already located, and then only so that such limits shall not be extended nearer to any dwelling house which is within four hundred yards. But this act shall not be construed to interfere with the power of municipal corporations to enact and enforce such ordinances as may be necessary to protect the lives and property of citizens from the effects of explosions of carbon oil or natural gas. Ante, pages 112 to 124. ' TO WHAT COURT APPLICATION MADE. 3. In any case in which real estate may be lawfully ta- ken for a purpose of public utility, application may be made to the circuit court of the county in which the estate is sit- uated, to appoint commissioners to ascertain a just compen- sation to the owners of the estate proposed to be taken. If a tract lie partly in one county and partly in another, the application in relation thereto may be made in either conn ty. And when the judge of the court to which the applica- tion is made is so situated as to render it improper for him to act thereon, and no judge to act in the case can be agreed upon by the parties, and it be found for any reason imprac- ticable to elect a judge to act in the case, as provided for in chapter one hundred and twelve of the code of West Vir- ginia, as amended by chapter three of the acts of one thous- and eight hundred and eighty-one, the application may be withdrawn, and a like application may be made to the cir- cuit court of some county in an adjoining circuit, as near to the county in which the application is first made as prac- ticable, whether any part of such real estate is situated therein or not; and such last named court shall have and possess all the powers and jurisdiction in relation to such application, and to try, hear and determine the same, pos- 314 WEST VIRGINIA COEPORATIONS. sessed by the circuit court of the county in which the real estate is situated. Ante, pages 112 to 124. Proceodiugs to condemn must be strictly pursued. What sufficient compli- ance with the statute. Bridge Co. vs. Comstock, 36 W. Va., "263; Cemetery Asso. vs. Redd, 33 W. Va., 262; Supervisors vs. Stout, 9 W. Va., 703. Neither the map required by section 6, chapter 54, nor certificate required by section 34, chapter 54, are conditions precedent to right to condemn. Ry. Co. vs. Oil Co., 35 W. Va., 206. Judgment of circuit court is conclusive in condemnation proceeding's, as in otlier cases. R. R. Co. vs. Ry. Co., 17 W. Va., 812. Jurisdiction of Federal courts to exercise right of eminent domain consid- ered. Id. 17 W. Va., 814. Possession under condemnation proceedings is adverse to all other claim- ants, and such proceedings cannot be collaterally attacked. Kanawha R. R. Co. vs. Glen Jean R. R. Co., 30 S. E. 86, 45 W. Va., (in print.) Proceedings to condemn are law, and not chancery, proceedings. Pack vs. R. R. Company, 5 W. Va.. 118. li'or proceedings to condemn by boom companies, see sec. 19, ante, page 230; Act.? 1893, ch. 38. For proceedinfi-s to take stone, gravel and material from lands, see chap- ter 52, code, section 14, 15 and 16, ante, page AGAINST WHOM PROCEEDINGS MAY BE INSTITUT- ED. 4. The proceedings may be instituted jointly against all the owners of the real estate proposed to be taken, lying within the county, including tracts lying partly therein and partly in an adjoining county, or it may be instituted against the owners of one or more parcels. Code, ch. 42, sec. 4. Supervisors vs. Stout, 9 W. Va., 703, supra; Bridge Co. vs. Comstock. 36 W, Va., 264. Ante, pages 112 to 124. WHAT THE APPLICATION IS TO STATE. 5. The application must be in writing, describing with reasonable certainty the real estate proposed to be taken, and stating, (so far as they are known to the applicant) the names of the owners of each parcel and the nature of their respective interests. If there are any liens on such real es- tate, created by judgment, deed of trust or otherwise, or conflicting claims thereto, the petition shall state the na- ture and amount of such liens and claims, and the names and residence of the person holding the same as far as they are known. It must also state the purpose to which the said estate is intended to be appropriated, and may state the sum of money which the applicant is ready to pay there- for to the owner of each parcel. Application must distinctly state that the property to be taken is for pub- lie use. Cemetery Asso. vs. Redd, 33 W. Va., 2G2. This section states fully what the application must contain; but it need not allege a failure to agree. Bridge Co. vs. Comstock, 30 W. Va., 263. WEST VIRGINIA CORPORATIONS. 315 All claimants should be made parties, but their rights need not be deter- mined until condemnation is ended. Id. 30 W. Va., 263. Land to be taken should be described with reasonable certainty. R. R. Co. vs. Harness, 24 W. Va., 511. NOTICE OP THE APPLICATION. 6. Of such application ten days' notice shall be served on the said owners, claimants and persons hofding liens, and the notice may be given either before the application is presented or afterwards. But where the owners of all or any part of the real estate proposed to be taken, or the per- sons holding such liens or conflicting claims, or any of them, are not in the county or are unknown to the applicant, the notice as to them, instead of being thus served, may be giv- en by advertisement containing (by reference to a plat filed for the purpose in the oflice of the clerk of the circuit- court or otherwise) a specific description of the property in which they are interested that is proposed to be taken, and stating the purpose to which it is intended to be appropriated, and the time and place at which a hearing will be asked for up on the said application, which advertisement must be pub- lished at least once a week for four weeks successively in Some newspaper printed in the county; or if none be printed therein, then in some newspaper of general circulation in the county; and must also be posted at the front door of the court house of the county four weeks at least before the hearing. Notice must be posted and published as prescribed in this section before application can be heard unless personal notice be served or the parties ap- pear generally. When proceeding on notice published and posted under this section, the court should not appoint commissioners but should order the compensation to be ascertained by a jury. Constructive notice held to be due process of law. Adams vs. Clarksburg, 23 W. Va., 204. Notice necessary to be given, and may contest at any stage of the proceed- ings after notice. R. R. Co. vs. R. R. Co., 17 W. Va., 812; Bridge Co. vs. Comstock, 36 W. Va., 263. PARTIES UNDER DISABILITY OR UNKNOWN. 7. If an owner or person holding such a lien or claim be under disability, and there be a guardian or committee for him, such guardian or committee shall be notified; but if there be no guardian or committee, or if any such owner or person be unknown, the court shall appoint a guardian ad litem to defend their respective interests, and may direct the expenses of such guardian ad litem including reasonable docket fee, to be fixed by the court, but not to exceed twen- ty dollars, to be taxed in the costs and paid by the applicant. When notice to be given infants and guardians considered. Bridgre Com- pany vs. Comstock, 36 W. Va., 263. 316 WEST VIRGINIA CORPORATIONS. WHEN COURT SHALL ORDER FURTHER NOTICE. 8. On the hearing, if it appear that there is any person who ought to be notified of the proceeding, to whom proper notice has not been given, the court shall make an orde?- staying the proceeding until proper notice has been given to such person. Wlion notice sliouia be given. 17 W. Va., 812, ante. Owner and claimants sliould be made parties. 36 W. Va., 265, ante. ACCEPTANCE BY OWNER OF THE SUM OFFERED. 9. If the applicant has stated in his application the sum of money he is ready to pay to any owner for his interest in The real estate, or any parcel thereof, proposed to be taken, and such owner, not being under disability, consent to ac- cept the same, and there being no lien on, or conflicting claims thereto, the court shall make an order that, on such payment being made, the interest of the said owner shall thereby be transferred to the applicant, and a copy of such order, with the receipt of said owner for the money written thereon, or annexed thereto, shall operate as a conveyance, with special warranty, and may be acknowledged for reo. ord and recorded in like manner and with like effect. APPOINTMENT OF COMMISSIONERS. 10. But, except in the case specified in the preceding sec- tion, upon its appearing that proper notice has been given, and that the case is one in which the applicant has lawful right to take private property for the purposes sta- ted in the application upon just compensation, five disinter- ested freeholders shall be appointed commissioners to ascer- tain what will be a just compensation to the persons enti- tled thereto, for each parcel of real estate proposed to be taken. No person shall be deemed interested or incompe lent to act J,s commissioner, by reason of his being an in habitant of the county, district or municipal corporation, on behalf of which the application was made, or holding property therein. It must appear In some way to the court, either by proof or admission th.at the applicant has a lawtui right to talie the iand for the purposes stated in the application, and the court should decide this fact before appointing com- missioners. Ry. Co. vs. Pad!, 6 W. Va., 208. 'I'ho riffht to condemn may be raised on exceptions to the report of the com- missioners, but this practice should be discouraged. On this question no formal pleading is required; yet, objection to the condemnation may be rais- ed by special pleas. The statute does not require that a jury pass on this question, but the court may direct such Issue to be tried by a jury. Ry. Co. vs. Ky. Co., 17 W. Va., 813. WEST VIRGINIA CORPORATIONS. 317 The commissioners should be freeholders and should view the premises. Bridge & Terminal Co. ys. Iron Co., 41 W. Va., 747 and on page 752; 17 W. Va., 397; 5 W. Va., 18; 8 W. Va., 382. HOW COMMISSIONERS SELECTED. 11. The appotatment shall be made as follows: Thir- teen disinterested freeholders shall be nominated by the court, of whom the applicant may strike off four or any less number from the list, and the defendants, or such of them as appear, or are represented, may also strike off four or any less number, and after eight names are striken from the list, the remaining five shall be the commissioners. But where there is no appearance for the defense, or the defend- ants who appear or are repiesented do not agree as to any one or more of the names to be stricken off on their behalf, or the right to strike off any one or more names is waived on the part of either the applicant or defendant, or from any cause the full number shall not be stricken off by the par- ties, the names or additional names, as the case may be, to be stricken from the list in order to reduce the number to five, shall be ascertained by lot under direction of the court. Vacancies shall be filled, and any commissioner, for good cause shown, may be removed by the court. Ante, pages 112 to 124. OATH OF COMMISSIONERS. 12. Before entering upon the discharge of his duties, each commissioner shall take an oath before some person authorized by law to administer the same, that he will hon- estly and impartially perform his duties as such commis- sioner to the best of his skill and judgment; which oath shall be certified by the person administering the same, and filed with the papers of the case in the office of the clerk of the court. POWERS OF COMMISSIONERS. ■ 13. Any three of the said commissioners may act in the absence of the others, and any one of them may sign and is- sue subpoenas for witnesses in like manner as a justice, and with like effect; and may swear any witness who appears before them, that the evidence which he will give relating; to the matters to be reported upon by the said commission- ers, shall be the truth, the whole truth, and nothing but the truth. They may adjourn their sessions from time to time, as shall be necessary; and any person interested may attend 318 WEST VIRGINIA CORPORATIONS. in person or by attorney, produto and examine witnesses, i-ead depositions duly taken, and other proper evidence, and be heard, if he require it, in support of his rights, according to the usages and rules of law. DUTY AND REPORT OF COMMISSIONER. 14. As to each tract, the commissioners, after viewing the same and hearing any proper evidence which is offered shall ascertain what will be a just compensation to the per- son entitled thereto for so much thereof as is proposed to be taken, and for damage to the residue of the tract, beyond the peculiar benefits to be derived in respect to such resi- due from the work to be constructed, or the purpose to which the land to be taken is to be appropriated, and make report to the following effect: ""SVe, the commissioners ap- pointed by the circuit court of county, by an order made on the day of , on the application of , respectfully report, that having been first dulv sworn, we have viewed the real estate owned by , mentioned in the said application, and are of opinion that will be a just compensation for so much of the said r'^ai estate as is proposed to be taken by the said applicant; li ft is to say: (here describe the part to be taken, so as to identify the same with reasonable ceitainty, which descrip- ti'in may be by reference to a plat annexed to the report, (ir in any manner that would be sufficient in a conveyance), IS well as for damages to the residue of the said real estate beyond the peculiar benefits which will be derived in respect to such residue from the work to be constructed (or from the puipose to which the part to be taken by said applicant is to be appropriated). Given under our hands this day of ." provided, That if the private property is pro- posed to be taken by a company incorporated for the con- struction of a railroad, that no damages shall be ascertain- ed for the construction of farm crossings, fences or cattle guai-ds, or for keeping the same in repair. And in all cases when the projierty taken under this chajiter is by a rail- road company and is land which has been cleared and fenc- ed, iht said railroad company shall construct and forever maintain ?ui1abU farm crossings, cattle guards and fences on both sides of the land thus taken; and no such raili-oad shall be used for the transportation of freight and passen- gers until such fences, farm crossings and cattle guards, are built and constructed. The compeiisutlou reported must be exclusively iu mouey. Rv. Co. vs. Pat- ton, 6 W. Va., 147. WEST VIRGINIA OORPOEATIONS. 319 WUat to be considered in ascertaining tlie damage. Watts vs. Ry. Co., 39 W. Va., 1U7; 17 W. Va., 814; 36 W. Va., 264, aute. Measure of damage wlien scliool lioiise is taisen. Bd. of Ed. vs. K. & M. Railway Company, 44 W. Va. "I'ecuiiar tieneflts" are tlie special benefits to the land, a part of which is to be taken, and not the general benefits which will be derived from the im- provement. R. R. Co. vs. Foreman, 24 W. Va., 662; 39 W. Va., 203, ante. The damage to be allowed when land is condemned is fully considered in the followingr cases: R. R. Co. vs. Shepherd, 26 W. Va., 672; R. R. Co. vs. Tyree, 7 \V. Va., 693; Watts vs. Ry. Co., 39 W. Va., 203. The duty to fence when land is condemned and damage for failure is dis- cussed in the following cases: Clark vs. R. R. Co., 39 W. Va., 732; Blaine vs. R. R. Co., 9 W. Va., 252; Bagler vs. R. R. Co., 9 W. Va., 270. Only land owner can complain of failure to build fence or cattle guard. Mayuard vs. R. R. Co.. 40 W. Va., 331; 39 W. Va., 732, supra; 35 W. Va., 336. BY WHOM REPORT SIGNED. 15. The report shall be signed by at least three of the commissioners, and forthwith returned to the clerk's offlce of the court, to be filed with the papers of the case. REPORT IN CASE OF PROCEEDINGS AGAINST OWN- ERS OP DIFFERENT TRACTS. 10. When the proceeding is instituted jointly against the owners of different tracts, a separate report shall never- theless be made as to each tract; and such report may be made at different times, and a separate hearing had upon each report, which shall be confirmed, recommitted or set aside, upon its own merits or defects. Separate reports are not required for each tract owned by the same per- son; but only for each owner. Supervisors vs" .Stout, 9 W. Va.. 703. Wiiether tracts are so connected as to form one tract within the meaning of the statute is a question of fact for the jury. Bridge Co. vs. Comstock, 30 W. Va., 264. PROCEEDINGS ON THE REPORT. 17. When such report is returned and filed as aforesaid, either party may file exceptions thereto, and demand that the question of the compensation to be paid be ascertained by a jury, in which case a jury of twelve freeholders shall be selected and impanelled for the purpose in such manner as the court shall direct. But no person shall sit on such jury who may be the owner of or interested in any lands over or through which said railroad will pass. The cause shall be tried as other causes in said court, and the jury, in ascertaining the damage or compensation to which the own- er of the land proposed to be taken is entitled, shall be gov- erned by section fourteen of this chapter. If no exception be filed to such report, or if neither party demand a trial by jury as aforesaid, the court, unless good cause be shown against it, or it be defective or erroneous on its face, shall ;i20 WEST VIRGINIA CORPORATIONS. conflnn said i-eport, aud order it to be recorded in the law- order book of thd court ; but the court may, nevertheless, if it seem proper, refuse to hear the case upon the said re port, until notice of such hearing be given to the parties interested, their agents or attorneys, or any or more of them, as the court may order. Jury should be freehoiaers. What the orfler empanelling the Jury should show. 36 W. Va., 264, supra; Patton vs. R. R. Co., 9 W. Va., 648. When it will be presumed that jury was properly empannelled. Id. 9. W. Va.; R. R. Co. vs. Blake, 38 W. Va.. 718. When right to have jury waived. R. E. Co. vs. Freeman, 24 W. Va., 662-9. When right to condemn may be raised on exceptions to report. 17 W. Va., 812. 18. At any time within three months after the report, or the verdict of a jury, if there be one, has been confirmed and ordered to be recorded, or where such report or verdict has already been confirmed, at any time within three months after this chapter takes effect, the sum so ascertained, with legal interest thereon from the date of the report or verdict until payment, may be paid by the applicant to the persons entitled thereto, or into court. Upon such payment the ti tie to that part of the land so paid for, shall be absolutelv vested in fee simple in the applicant, except that in case of a turnpike or other road (not including however, a railroad), the right of way only shall be so vested; Provided, That a railroad company desiring to construct a bridge, viaduct, tunnel, (or any part of its railroad), may, as to all or any part of the real esate sought to be taken for that purpose, described in its application an estate or interest therein less than a fee and with respect to the same, may proceed as in other cases; and upon payment therefor, such estate and in- terest as is stated and described in the application, shall vest in the applicant. But when less than a fee is taken, in assessing damages, the commissioners and jury shall take into consideration the actual damage that is done or that may be done to thp fee by such construction ; Provided, That when an estate or interest less than a fee is taken by a railroad company for any part of its railroad, the assessor shall assess the value of said real estate, as if taken in fee, against such party con> demning less than a fee, and the provisions of section fortv- three (a) of chapter twenty-nine of the code of one thousand eight hundred and ninety-one, shall apply to such cases. (Acts 1897, chapter 60.) When land condemned tor rallroiul the fee vests In applicant, except as pro- vided In this section. Watts vs. R. R. Co., 39 W. Va., 204. WEST VIRGINIA CORPORATIONS. 321 THE SETTING ASIDE OR RECOMMITTAL OF RE- PORTS. 19. Tf a good cause be shown against the report, or if it be defective or erroneous on its face, the court, as may seem to be proper, may set aside, or recommit it to the same commissioners for further report, or other commissioners may be appointed in the manner hereinbefore provided, with or without further notice, as the court may order. If the commissioners report their disagreement, or fail to re- port in reasonable time, other commissioners may in like manner be appointed. And so, again, from time to time, as often as may be necessary. Report may be set aside when damages insufflcient or excessive. Super- visors vs. Stout, 9 W. Va., 703; R. E. Co. vs. Blaire, 38 W. Va., 718. Report erroneous when it allows an easement to owner over the land. Pack vs. R. K. Co., 6 W. Va., 897. PAYMENT AFTER THE REPORT IS MADE OR SET ASIDE, ETC.; ITS EFFECTS. 20. After such report has once been made, whether it be set aside, recommitted, or new commissioners appointed or not, or whether a trial by jury be demanded and had or not, the applicant upon paying into court the sum ascertain- ed by such report, with legal interest thereon from the date of report until payment, may, notwithstanding the penden- cy for further proceedings, enter upon, take and use for the purpose specified in the application that part of the land in respect to which such payment is made; and where such payment has been made and possession taken, in a pending case, it shall have the same effect as if such payment were made or possession taken, or both, in case hereafter com- menced. And no order shall be made, or any Injunction awarded by a court or judge, to stay him in so doing, unless it be manifest that the applicant is insolvent, or that he or his officers, agents or servants, are transcending their authority, or that such interposition is necessary to prevent injury which can not be adequately compensated in dam- ages. The provisions of this section constitutional. R. R. vs. Forman, 24 W. Va., 670; Snencer vs. R. R. Co., 23 W. Va., 442; Campbell vs. R. R. Co., 23 W. V.I., 449. When court will prohibit condemnation proceedings. McConihay vs Guth- rie. 21 W. Va., 130. Rig-hts of rival railroad companies to land aoanired in condemnation pro- poedinjfs discussed. McKell R. R. Co. vs. Glen Jean R. R. Co., 30 S. E. 86, (44 W. Va.) Right of applicant to take land upon payment of the compensation 7 W Va. 301; 6 W. Va. 397; 9 W. Va., 748. 322 WEST VIRGINIA OOEPOEATIONS. SUBSEQUENT REPORT. 21. When, after such payment into court as is mention- ed in the preceding section, a subsequent report is made which is confirmed and ordered to be recorded, or the ver- dict of a jury found, if the sum ascertained by such subse- quent report or verdict exceed what was so paid, and the applicant fail to pay the same, judgment shall be given against him for the amount of such excess, with legal inter est thereon from date of such subsequent report or verdict until payment; but if what was so paid exceed the sum ascer- tained by such subsequent report or verdict, the excess shall be paid back to the applicant out of the fund in court, or by the person to whom the same shall have been paid. If the sum ascertained by such subsequent report or verd'ct do not exceed the sum ascertained by the former report, the party on whose motion the former report was set aside, recommitted or other commissioners appointed or trial by jury demanded, if he be a defendant therein, shall pay the costs occasioned by such motion, unless such former re- port was set aside, recommitted or other commissioners ap- pointed, on some other ground than that of insufficiency of compensation. How Judgment rendered on the verdict of jury, and when error may be corrected on motion. 24 W. Va.. 511. EFFECT OF JUDGMENT. * 22. When judgment is rendered against the applicant, pursuant to the last section, for any excess ascertained by such subsequent report or verdict with interest, the appli- cant shall thereafter have no right to the possession of the land until the judgment is satisfied. But from the time of such satisfaction by the payment of the money to the per- sons entitled thereto, or into court, or from the time of con- firmation of the subsequent report or verdict, if no addition- al compensation be thereby ascertained, the title to that part of the land for which such compensation has been made shall be absolutely vested in the applicant in fee simple, except as before excepted in case of a turnpike or other road, and except as before provided in the case of a railroad comoany taking land for the construcfion of a bridge, via- duct or tunnel. Judgment conclusive unless reversed. Judgment discussed. 17 W. Va., 812. How the value to be determined on writ of error. I2i W. Va., 663. WEST VIRGINIA CORPORATIONS. 323 DISPOSAL OF MONEY PAID INTO COURT. 23. To enable the court to dispose properly of any mon- ey so paid into court, it may have inquiry made by a com- missioner to ascertain what persons are entitled thereto, and in what proportions, and may direct publication to be made requiring all who are interested to appear before the commissioner, that their respective claims may be passed upon. Upon report of the commissioner, or from the evi- dence before it without such report, the court shall make such disposition of the money as may seem to it right. COSTS OF THE PROCEEDINGS. 24. If the applicant has stated in his application the sum of money which he is ready to pay to the owner for any parcel of land proposed to be taken, and it appear by a re port confirmed and ordered to be recorded, or by a verdict of a jury that he is entitled to take the said parcel for the purpose mentioned in his application without paying any greater compensation therefor, he shall be adjudged his costs in respect to the said parcel, out of the compensation to be paid therefor to the said owners. WHEN TO BE PAID BY APPLICANT. 25. In cases not otherwise provided for the applicant shall pay the cost of the proceeding. COMPENSATION OF COMMISSIONERS OR JURORS. 26. The commissioners appointed to ascertain the just compensation to be paid, shall be entitled to two dollars each for every day they are employed in the performance of their duties, and their own affidavit shall be received as evidence in that behalf. And the jury, if one be impaneled, as hereinbefore provided, shall receive the same compensa- tion as said commissioners to be taxed in both cases, in the bill of costs, and paid as provided in the next two preceding sections and section twenty-one' of this chapter. THIS CHAPTER TO APPLY TO CASES NOW PENDING, ETC. This chapter, as amended, shall apply as well to cases for the condemnation of lands or materials, or both, now pend- ing in any court as to the cases hereafter brought. 324 WEST VIRGINIA OOEPOEATIONS. CASES PENDING IN THE UNITED STATES COURTS HEREAFTER REMANDED; HOW PROCEEDED IN. 28. If a case heretofore commenced in a county court lias been transferred to a district or circuit court of the Uni- ted States, and such court shall for any cause remand the same, it may be remanded to the circuit court of the county from which it was so transferred, and the clerk of said court Shall receive and docket the same in the same manner and with like effect as if it had been transferred to said court under the provisions of chapter thirty-nine of this code. ACTS REPEALED. Chapter one hundred and fourteen of the acts of one thousand eight hundred and seventy-five, entitled "an act amending certain sections of chapter forty-two of the code of West Virginia, for taking lands for public purposes with- out the owner's consent," approved December twenty-nine, one thousand eight hundred and seventy-five, and all other acts and parts of acts coming within the purview of this chapter, and inconsistent therewith, are hereby repealed. Acts 1881, ch. 18. COMDEMNATION OP LAND FOR BURIAL PURPOSES. 2a. I. That where any public burying ground is not suf- ficiently large to answer the purpose for which it was in tended, the corporate authorities of any city, town or vil- lage, or the trustees, of any church interested therein, may in case of necessity, proceed in the manner prescribed by chapter forty-two of the code of West Virginia to have the same extended by condemnation to an amount not exceeding five acres. Acts 1887, ch. 85. See cli. 52, code, sees. 5 to 24 and pages 112 to 124. APPENDIX. RAILROAD COMPANIES RELIEVED FROM FORFEIT- URE OF CHARTER. 1. Any railroad company organized under the laws of this State since the first day of June, one thousand eight hundred and eighty, which has complied with section eight, chapter twenty of the acts of one thousand eight hundred and eighty-five, and has also complied with section sixty- five of chapter fifty-four of the code of 1891, and which has commenced the construction of its road, and has actually and in good faith expended thereon ten per cent, of its cap- ital stock actually subscribed, and which shall within six years after the passage of this act, complete its railroad or some part thereof, and put the same or the part so completed into actual operation, then and in every such casethe corpor- ate existence, franchise and powers of such railroad compa- ny shall be and remain so far as the part of said road so completed and operated is concerned, the same as though the provisions of section sixty-six of chapter seventeen of the acts of one thousand eight hundred and eighty-one had been fully complied with by such company, and no for- feiture or judgment of ouster shall be rendered against said company by reason of its failure to comply with said section. But if any of said railroad companies shall not complete its road or some part thereof, and put the same or the part so completed into actual operation within six years from the passage of this act, its corporate existence and powers shall cease, and in case it shall have completed some part thereof only, and put such part into operation, its corporate powers and rights shall cease as to all of said proposed road not so completed and put into actual opera- tion within said time. [Acts 1897, ch. 18.] See acts 1881. ch. 17; Code, ch. 54, see. 66; ante, pages 186-187. For sec. 65, ch. 54, Code, see ante, page 186. For sec. 66, ch 17, acts 1881, see ante, pages 18G-187. For see. 8, ch. 20, acts 1885, see ante, pages 14 and 15. 326 WEST VIRGINIA CORPORATIONS. ACTS VALID BETWEEN THE PARTIES, BUT VOID AB TO CREDITORS. Where any loan of goods or chattels is pretended to have been made to any person with whom, or those claiming un- der him, possession shall have remained five years without demand made and pursued by due process of law on the part of the pretended lender, or where any reservation or (imitation is pretended to have been made of a use of prop- erty, by way of condition, reversion, remainder, or other wise, in goods or chattels,' the possession whereof shall have so remained in another as aforesaid, the absolute property shall be taken to be with the possession, and such loan, reservation or limitation, void as to creditors of, and purchasers from, the person so remaining in possession, unless such loan, reservation or limitation be declared by will, deed, or other writing, duly recorded. And if any sale be made of goods and chattels, reserving the title un- til the same is paid for, or otherwise, and possession be de livered to the buyer, such reservation shall be void as to creditors of, and purchasers without notice from, sncii buyer unless a notice of such reservation be recorded in the office of the clerk of the county court of the county where the property is, or in case said goods and chattels consist of engines, cars or other rolling stock or equipment to be used in or about the operation of any railroad, unless such notice be recorded in the office of the secretary of state, who in such case shall record the same in a book to be kept for the purpose, and be entitled to a fee of five dol lars for so doing. Code, ch. 74, sec. 3. Acts 1872-3, eh. 106; acts 1&82, ch. 106. PROOF OF EXISTENCE OF CORPORATIONS. WHEN NOT NECESSARY. Where plaintiffs or defendants sue or are sued as part- ners, and their names are set forth in the declaration or bill, or where a plaintiff or defendant sues or is sued as :». corporation, it shall not be necessary to prove the fact of such partnership, or of the existence of such corporation, un- less the pleading which puts the matter in issue be verified or there be an affidavit filed therewith denying such part- nershipj or the existence of such corporation. A plea put- ting in issue the existence of a corporation, shall be suffi- cient if it be in form or effect as follows: "And the said defendant for plea says that the plaintiff (or defendant as WEST VIRGINIA CORPORATIONS. 327 the case may be) is not a corporation, as in the plaintiff's declaration is alleged." Code, ch. 125, sec. 41. Acta 1882. ch. 71. Lumber Co. vs. Ward, 30 W. Va., 48; Douglass vs. R. It. Co.. 44 W. Va., 267. OF TOLL BRIDGES. When a certificate of incorporation is hereafter obtain- ed for the erection of a toll bridge, if the work be not com- menced within one year from the date thereof, or be not completed within five years after such commencement, or if, after its completion, there be an abandonment of the bridge or a failure for three successive years to keep it in good order, in each of these cases the privilege granted by the said certificate shall cease. There may be charged and collected on persons and things passing over any such bridge such reasonable tolls as the corporation may, by res- olution, from time to time prescribe, subject, nowever, at all times to the control of the board of public works or the legislature. Code, ch. 44, sec. 16. Acts 1882, eh. 139; Mason vs. Bridge Co., 17 W. Va., 396. PENALTY FOR KEEPING DOORS OF PASSENGER CARS LOCKED WHILE IN MOTION. If any railroad company in this State shall keep all or any of the doors of their passenger cars, in which Rasaen- gers are being carried locked while such cars are in motion, such company shall be subject to a fine of not less than one hundred dollars. The agent, conductor, or other person in charge of such cars, shall be held liable criminally for a vi- olation of the foregoing provision, and shall, for every such violation", be fined not exceeding one thousand dollars, and imprisoned not exceeding one year. Code, ch. 144, sec. 18. Acts 1865, page 78; acts 1882, ch. 118. INDEX ABANDONED OIL AND GAS WELLS, provisions concerning 280 ABSTRACT, of certificates of incorporat.on to be published in Acts 155 what such abstract to contain 153 ACADEMIES 6,148,149 ACKNOWLEDGEMENT. of agreement for formation of joint stock company ....12, 99. 150 of agreement for formation of railroad company '. 164. 99 of agreement for formation of boom company 224, 99 of agreement for associations 244 of agreement for savings banlis 213 of power of attorney or other writing executed by a cor- poration 54, 99 of deeds by corporation 99 ACTIONS, limitations of, on oil or mineral leases 279 ADJOURNED MEETING of stockholders 43 AFFIDAVIT TO AGREEMENT 12, 151 AGREEMENT. for incorporation, form of, generally 10, 13, 150 new 55. 151 instruction! in preparing 9, 19 to form business corporation 13, 150 to form boom company 223 to form railroad company 163 ^ to form building and loan association 100 to form savings banks 213 to form associations other than joint stock companies . . 244 to form mutual Are insurance companies 251 where recorded, generally 155 of railroads, where recarded 164 of boom companies, where recorded 224 of savings banks, where recorded 213 of corporate associations, where filed 245 ALTERATION. of charter, by legislature, 12T, 179, 238,256 of charter, by stockholders. 55, 63, 08, 71, 128, 151, 156, 170, 210, 229 of one work for another 118 AMENDMENT OF CHARTER, see "New Agreement" and pages . .55, 03, 08, 71, 128, 151, 156, 170, 229, 238, 256 330 WEST VIRGINIA CORPORATIONS. AMENDMENT OP CHARTER. see "Incrpnse" anfl "Decrease of stock and 6i< see "Change of Name" and 7X see ' Change of Principal Offlce" and, _. C8 ANIMALS. cruelty to, in transportation 204 ANNUAL MEETING OF STOCKHOLDERS, when held 137, 139, 165, 167, 168, 226, 214, 252 notice of 1.S7, 22, 165, 226, 227, 252 APPOINTMENT OF ATTORNEY. generally 48, 53 see "Attorney." APPORTIONMENT OF STOCK, when subscriptions too large 132 ARTICLES OF INCORPORATION, see "Ajrreoment." ASSESSMENT OF CORPORATIONS FOR TAXES, SGG "Taxation." ASSOCIATIONS OTHER THAN JOINT STOCK COMPANIES, how and for what purposes incorporated 244 to 246 generally 6, 148, 14!) ASYLUMS, 6, 148, 140 ATTACHMENT, service of, on corporations 100 to 104, 122 when property of corporation liable to, ajid for what 14. 15 when property of railroad company liable to 166, 167 ATTORNEY. to accept service of process, etc 48. 53, 157, 15S generally, how to appoint, proceedings 48, 53, 157, 158 lor railroad company 166 for boom company 225 for building and loan association 157, 158 for foreign Insurance company 266 for foreign telegraph company 266 for foreign express company 266 for foreign railroad company _ . . . . 78 lor foreign corporations generally 78, 157, 158 power of, form of and how to execute 48, 53 ATTORNEY GENu-RAL. duties of, in forfeiture proceedings against corporations.... 89 AUDITOR, STATE. annual report to be made to, by railroad corporations .. 179 duty of, as to taxation of property of railroads 297. 302 duty of, as to insurance companies , 260 to 266 fees of 249, 263 duty as to license tax on certilicates ol incorporation.... 15, 310 mutual Insurance companies; what to be filed by such companies in otBce of 247, 248 duty of, as to latter 248 examinations by 248, 262 power of attorney of certain companies to be filed in ofHce ol 248, 266, 267 duties as to surety companies 284 may waive deposit by such companies 284 AYES AND NOES, how called in directors' meetings . .- 142 BANKS. liow incorporated 210, 108 to what law subject 210, 108 capital stock ol 210, 107 personal liability ol stockholders 211, 108 directors 211 WEST VIRGINIA CORPORATIONS. 331 BANKS, no meeting to be held out of State 212 powers of banks 212 change of stock 210 BANKS. SAVINGS, provisions relating to 212 to 'I'l'A see "Savings Banks." BEGINNING OF CORPORATE LIFE. generally 16, 17, 151 of rallroacls 164, 165 of savings banks 213 of boom companies 224 of mutual fire insurance companies 251 of incorporated associations 245, 246 BENEVOLENT ASSOCIATIONS, for what purpose incorporated, and how 148, 149 form of agreement for, other than joint stck companies.. 244 acknowledgment of same 244 where flled and recorded 244, 245 its effect 245 name of corporation 246 fees of clerk for issuing, etc., certificate 246 by-laws and regulations of 24o see "Incorporated Associations, other than Joint Stock ComBanies." BIG SANDY RIVER. bridges over 294 BOARD OF DIRECTORS, see "Directors.*' sutiject to by-laws 24 proceedings of explained 45, 47 must be a 140 number to be five, unless by-laws provide otherwise 140 qualifleations of fixed by by-laws 140 unless so fixed must be resident of State and stockholder. . 140 when elected 140, 166, 167, 214. 226. 252 how elected 138, 108, 43, 44, 165, 166, 167, 214, 226, 252 hold offices till successors are elected and nualified 140 stockholders may remove director and fill vacancy 140 vacancies filled by board 140 by-laws may prescribe number to constitute quorum 140 unless so prescribed a majority is quorum 140 when number reduced, general meeting of stockholders may be called 140 must elect president 141 how and when meetings of, held 141 must keep record of proceedings 142 no member of, to vote on question when Interested 142 proceedings in such case 142 must appoint officers and agents 1'42 must keep books of account 142 shall be subject to by-laws 14S railroads, ilrst elected and how 166 <r- poration 2-U. 2W2 owner of residue of tract to have right of wav over land tntc-n. (".■ i31 may hold ana com ev real estate.. loi't-ssary 2''I afte]- erection (f Imom to hav'» !;)ri*n!r-.^us for twt nii.i'^ above 232 may condemn lands for tramways 233 may hold and sell timber land and other lands 233 rates for boomage, liow fixed 233 boom company to have lien for tolls 234 timber not called for within ninety days, how disposed of 235 to pass all timber belonging to companies below free of charge and wii-.out delay 235 damage for wilfully injuring booms 23.'i measurement of timber; how determined 23G logs, timber, etc., of corporation lodged on land of an- other ; when to bo removed 230 obstructing streams 236, 230 liability of corporation for logs ^ 237 meaning of words "logs or timber" 237 rights of property holders on said rivers 237 what provisions of code corporations under this chapter subject to ^ 237 legislature reserves the right to repeal or amend this act. . 23S boom companies iieretoforc organized may reorganize .... 23S memorandum of logs to be filed with county clerk, when.. 238 public roads and fiu-ds not to be obstructed 230 county court of certain counties may submit provisions of this chapter to vote 230 rule for measurement of logs, etc 239 reservations as to canal connecting Ohio and Ches- apeake waters 238 WEST VIRGINIA CORPORATIONS. 333 BOOMS AND DAMS. navigable streams exceptoil 223 BONDS. one railroad company may guarantee the, of another; "when and how 10;i railroad cornorations may sell, issue and transfer its bonds, for what 17fi cornorations may issue registered or coupon bonds .... 2UH what security holders entitled to 204 of Dersons etfeetiug insurance in mutual fire Insurance companies 254 bonds of loint stock company cannot be purchased by other corporations ._ 114 except in payment of debt, etc ." 115 title and trust company may buy, sell and guarantee bonds, etc liDT BRANDS, on timber, logs, etc 240 see "Timber Dealers." BRIDGES, provisions relating to the construction of, over the Ohio, Great Kanawha and Big Sandy rivers 294 to 296 how construction of, may be prevented if contrary to law. . 29G injuring 207 taxation of 305 to SO'i incorporated companies for building 827 if worli not begun in one year 327 if work abandoned 327 tolls unon 327 BUILDING AND LOAN ASSOCIATIONS, incorporation of ij, 1 ttO for what purpose formed ICO rights, privileges and powers of 100 loans and premiums 160 dues, interest and fines 16 L payment of loans 161 withdrawal and default of stockholders 161, 162 by-laws and articles of government 162 power of attorney 157 taxation of 308, 309 see "License Tax." BURIAL GROUND. PUBLIC. enlargement of 324 see "Cemetery Associations." BUSINESS. which may be incorporated 6, 7, 148, 149 BY-LAWS, corporations may malfe 16. 112 definition of "By-Laws" 24, 125 time of annual meeting may be prescribed by 137, 139, 141 may prescribe how notice of annual meeting of stock- holders be given 137 may fix Quorum and mode of transacting business at stockholders' meetings 137 may prescribe place of meeting of stocltbolders 139 may prescribe manner of notice of stockholders' meetings 137 may prescribe number of which board of directors shall consist 140 may ^prescribe qualifications of directors 140 may prescribe Quorum of board of directors 140 may prescribe what officers and agents shall give bond.. 142 board of directors subject to, and regulations ■. . . . 24, 143 must be consistent with law of this State 24. 143 incorporated springs company may adopt by-laws, etc., for preservation of peace, etc 146 form of by-laws 25 to 38 proceedings to adopt 43 who may adopt 24, 143 334 WEST VIRGINIA COKPORATIONS. BY-LAWS, Oic BUILDING AND LOAN ASSOCIATIONS. what 'to contain and embrace (sees. 26 and 29) '. 160, 162 dues to be fixed by 161 shall direct how stock to be retired 161 amount and imposition of fines to be fixed by 161 may determine proportion of premium bid, and propor- tion of profits or rate of interest paid withdrawing members 161, 162 every such association shall adoot by-laws; what they shall embrace 162 OF RAILROAD COMPANIES. by-laws, and all amendments and additions thereto, to be filled and recorded 165 shall orescribe number of directors, manner of election and removal from office, and mode of filling vacancies in board of directors, which shall not be changed except at annual meeting of stoclsholders 167 to designate subordinate officers, prescribe their duties, and require security of them 167 may prescribe quorum of directors 167 OF BOOM COMPANIES. may establish by-laws 2'^5 to be recorded in county clerk's and secretary of state's offices '. 225 all amendments and additions thereto to be likewise recorded 225 to prescribe time and place of annual meeting of stock- holders 220 to specify number of directors, manner of their election, mode of filling vacancies, subject to chap. 181 of Acts 1872-3; and not to be changed except at stockholders' " annual meeting 226 to designate subordinate officers, and fix their duties and compensation 227 OF SAVINGS BANKS. may make by-laws 214 board of trustees of savings banks may adopt by-laws, etc., for the government of the corporation 214 such by-laws may prov.uc what dividends may be declar- ed on certain deposits 21S OF INCORPORATED ASSOCIATIONS. may make and adopt by-laws and regulations 240 OF MUTUAL FIRE INSURANCE COMPANIES, may adopt 251 how adopted 252 quorum to be determined by 25S may confer powers to directors 25;i CAPITAL STOCK. how divided 11, 121) see "Stock." Increase and decrease of G3 to 67, 156, 157, 210 subscriptions to 18, 131, 132, 150, 210, 211 ten per cent, to be paid in 18. 132. l.jO maximum capital stock 11, 149, 210 how to issue 17, 50, 105, 131, 132, 169, 176 of banks 107, 210 of railroads and canals, not limited 149 CARS. mortgages on ,to be recorded in secretary of state's office. . 326 doors of must be unlocked, when 327 WEST VIRGINIA CORPORATIONS. 335 CEMETERY ASSOCIATIONS, how incorporated 148, 149 may condemn land, how 312, 824 authorized to hold and convey their laud, when and how. . 288 enlarsment of burial Rrounds 324 CERTIFICATE OF INCORPORA^jlON OR CHARTER, of business corporation 151 of railroad company 164 of savings baults 213 of boom companies 224 of incorporated associations, 245 of mutual fire insurance companies 251 CERTIFICATES. what certificate secretary of state to record 155. 164 abstract of, to be delivered to elerlj of house of delegates. . 155 of incorporation to be recorded 19, 164, 155 of stock to be issued 133 where recorded 156, 164, 213, 224, 243 when certificates of stock to be surrendered 135 president must sign 135 certificate of incorporation, form of 151 what, secretary of state to preserve and record 155 copy of, proof 156 CHANGE. of corporate name 71 to 73, 128, 155 of principal office 68 to 70, 153 of charter 53, 63, 68, 71, 128, 131, 136, 210 certificate of, must be preserveu and recorded, where 155, 63 CHARTER. see "Certificate of Incorporation" and "Change." to be recorded 1 19, 155, 164 effect of 16,17 how perfected, in certain cases 186,325 CHURCHES. cannot be incorporated 7, 111, 149 CIRCUIT COURT, proceedings in, in case of crossings or alteration of rail- roads, turnpikes and canals 118 taxation of railroad property; duty of court in cases of appeal < 300 no injunction allowed by, except, etc 302 petition to, in cases of lateral railroads and proceedings thereon 188, 189 duty of, as to boom companies 230. 233. 236 CITIES, connection of railroads in 110 provisions against invasion of dwelling house by internal improvement company does not apply to incorporated city 116 streets of, not to be occupied by company's work, unless. . 118 terminus of railroads in 110 tanks, plife line and stations, not to be erected in, ex- cept, etc 124 street railroau, consent of, to construct in 110 provisions as to entering lands for examination, does not apply to 116 subscriptions by, to railroads 180 telephone poles in 268 taxes on railroads in 303, 304 CLASSIFICATION, of railroads 194 of freights 199 CLERK OF COUNTY COURT, certificate of incorporation to be recorded in office of. .19, 156, 164, 213, 224, 245 power of attorney to be recorded 158, 166, 226 336 WEST VIRGINIA CORPORATIONS. t'LEllK OF COUNTY COURT. what to certify to auditor. : 301 penalty for failure to periorin certain duties 130 what duties reaulrod of, as to certificates of incornora- tion for associations other thau Joint stoeli companies. . 24!) duty of, as to bonds of persons effecting insurance in mu- tual iire companies 254 articles of iueornoratiou of boom companies recorded in ofBce of 224 also, the by-laws of boom and railroad companies 165. 225 power of attorney filed and recorded in otfice of 15.S memorandum of logs; to be filed with, wlieii 238 writing adopting trade marks by timber dealers to be re- corded in office of 240, 241 COAL. to be weighed, how and when 289 to 292 railroad companies not to buy nor sell 206, 207 discrimination in shipments of, prohibited 206, 207 company, how much land can hold 7, 146 COKE, railroad companies not to buv nor sell 206, 207 discrimination in shipments of, prohibited 206, 207 COLLATERAL SECURITY. railroad stock held as, liability 171 COLLEGES 6, 148, 149 COMMON SEAL, every corporation to have; and may alter or renew same. . 112 COMMON CARRIER, pipe lines are 124 railroads 199 COMPENSATION, of officers and agents 112. U2 CONDEMNATION OF LANDS, constitutional provision, 311 for use of internal improvement company; proceedings for 116, 117,172 how much land .such company may acquire 110 of materials for use of company; proceedings for 119, 172,2.31 when real estate may be condemned and for what 312, 3H for pipe line companies; proceedings for IL':! for booms and dams: proceediugs for 2'iO private property not to be taken for public use without just compensation 311 for what purpose real estate may be taken :Ui>. 3i;{ to wliat court application made 31:! in cases where lands lie in difCerent counties 31,1 parties against whom proceedings may bo instituted .... 314 what application must state 311 notice of application 31.-, parties under disability or unknown 310 further notice 31G acceptance of sutai offered 310 proceedings on such acceptance 31G effect of order of court as to conveyance 316 how acknowledged and recorded 316 appointment of commissioners , 316, 317 duties and powers of such commissioners 317. 31S *)ath of comniissioners 317 report of such commissioners: proceedings thereon 318, 319 conflrmntiou of report; when 310, 320 payment of compensation ' 320 Betting iiside, etc., of report ', 321 payment after report set aside: what then 321 subsequent reports; proceedings on, elu 322 when tllle to land becomes absolute 321. 322 how money paid into court disposed of ' 323 WEST VIRGINIA CORPOKATIONS. 337 CONDEMNATION OF LANDS. cost of proceedings ; by whom paid 323 compensation of commissioners and jurors 323 eases in United States Court remanded 321 for burial purposes ; 324 one corporation can condemn property of anotlier 110, 116, 117 when corporation may enter lands to make survey 113 how company may take materials from lands 119, 231 how pipe line companies may enter upon lands 123 Quantity of land that may be taken, see "Quantity of Land Corporation may Hold." CONNECTION, one work with another 118, 119 of railroads in cities 119 CONSOLIDATION, of competing railroads prohibited 110 exceation 110 of railroads 176, 177 CONSTITUTIONAL PROVISIONS, legislature to provide organization by general law 107 special laws for connecting waters of Ohio and Chesapeake 107 stockholders liable for indebtedness to amount unpaid stock 107 exceation 107 status of charters when no organization made at time of adoption of constitution 108 cumulative voting reQuired 108 consent of town authorities to operate street railroad.... 108 incorporation of banks 107, 108 double liability of bank stockholders 108 provisions as to railroads 109 rolling stock personal property 109 railroads must have stations at certain towns 110 competing lines of railroad cannot consolidate 110 corporation can condemn prooerty and franchises of an- other 110 private property shall not be taken or damaged for pub- lic use 110 credit of State cannot be granted to any corporation, etc. . Ill no church or religious denomination to be incorporated. .. . Ill CONSTRUCTION OF CERTAIN WORDS. of "joint stock company" 125 of "by-law" 24,125 of "internal improvement" 193 of "railroad corporation" 199 of "logs or timber" 237 CONVICT LABOR, on railroads 205 on Dublic roads 205 on works of internal improvement 205 duties of company 205,206 CORPORATE NAME 25, 128 change of 71 to 73, 128 effect of change 129 of corporation created by purchase at sale 102 CORPORATION, FOREIGN. requii-ement in order to hold property and do business 77 to 81 CORPORATIONS GENERALLY. property of, how valued and assessed for taxation 297 to 309 where property of company is assessed no shareholder to be taxed on same property 309 railroad corporation; taxation of 297 to 305 Insurance, telegraph and express companies, when deem- ed foreign and when domestic 306 to 30!) provisions in relation to same 306 to 309 assessment of such companies for taxation 307 proof of existence of 326 338 WEST VIRGINIA CORPORATIONS. COIU'OKATIONS GENBEALLY, annual license tax on charters and certificates of incor- Doration 14, 15 amount of such tax; when and to whom caid 15 penalty for doing business without paying such tax 15 how relieved from forfeiture of charter for non-payment of such tax 310 duties of auditor and secretary of state as to such tax. ... 13 what corporations exempt from license tax 15 certain corporations to pay their employes, when and how 285 penalty for failure 285, 280 EBSTEICTIONS ON COEPOKATE POWE.tS. not to engage in any business other than that for which it is incorporated, etc 114 not to purchase real estate to sell for profit, etc 114 other restrictions 114,149 what companies may lay out towns, etc 114 may take real estate, securities, etc., in payment of debts or as security therefor 115 powers in relation thereto 11.") may compromise and purchase its own debts 115 may establish a sinking fund, for what 115 may purchase stock, bonds, etc., of what corporation, and how 115 may become surety for or guarantee debts of such cor- poration 115 corporation for work of internal improvement may enter upon land, for what purpose and to what extent 115, I'-i'.i cannot subscribe for stock of another company unless au- thorized 114 not to throw open fences, etc 115 nor invade dwelling liouse 115, 12+ provision as to dwelling house 116, VSi exceptions as to deep cuts, etc IIG how much it may acquire for abutments Ilfi how much for buildings 11B PEOCBEDINGS TO TAKE LAND WITHOUT OWNBE'S CONSENT, application for, by whom made, and proceedings thereon.. 116, 117 notice, how given 117 company to provide wagon ways, when 117 railroad companies must fence improved lands US when, only, company can occupy streets of towns US see "Condemnation." CEOSSING ONE WOEK AvITH ANOTHEE, ETC. when and how one railroad, canal,, or turnpike company may cross another US but not so as to impede transportation, etc., of the other, . 118 when and how one work may be altered to suit another, to prevent crossings lis company requiring alteration to pay tlie damage IIS when and how county road altered by such company 119 legislature reserves the right lo connect one work with another at pleasure 119 how railroads may be connected in cities, towns and vil- lages 119 if application therefor be refused, how connected outside corporate limits 119 HOW COMPANY MAY TAKE MATEEIALS FEOM LANDS. Internal Improvement company may enter upon conven- ient lands for materials 119 but not to cut down frnlt or shade trees, etc 119, 120 nor iuterfere with fences, buildings, etc., In town, etc. . 120 what company must do before exercising such privilege . . 120 notice and report of such commisslonera, where returned.. 120 appointment of commissioners to fix value of material; how 120 either party may require a jury 120 WEST VIRGINIA CORPORATIONS. 339 CORPOKATIONS GENERALLY, if report confirmed, what then 120 proceedings upon couiiug in of new report 120 judgment must be satisfied before materials talien 120 duties of commissioners appointed upon application of company authorized to construct planli road 121 their report ; if adverse 121 the same, if favorable; proceedings thereon 121 when sheriff to attend at place where company entitled to enter upon lands, and remove force 121 disposition of property when corporation is dissolved .... 121 ACTIONS AND PROCESS AGAINST CORPORATIONS. how process shall issue aga,nst corporations . . 100 to 104, 121. 145 attachment on, as garnishee " 122 upon what agent process against railroad company may be served 103, 122 POWERS AND DOTIES. powers, generally, of corporations 107, 108, 112 to 115, 122 cannot plead usury 123 provisions as to existing corporations 123 definition of words "joint stock company" 125 of the word "by-law" Wo no joint stock company to be incorporated under special charter 125 not to engage in any business not authorized in charter, except, etc 125 may take real estate, stock, etc., in payment for debts .... 125, 126 may purchase, etc., its own debts and establish a sink-. iug fund 12G manufacturing company may purchase stock, bonds, etc., of a corporation; when and how 120 may become surety for such other corporation; when 126 former charter not acted upon to be deemed extinct 12(5 but the execution of any bona fide contract, etc., not to be prevented 126 what rights .powers and privileges, heretofore granted to be Dreserved 126 within what time company to be organized 83, 126 dissolution of company by suspension of business .... 81 to 08, 127 right reserved to alter or repeal charter, etc 127 what companies are subject to chapter 53 of tne code.... 128 of -the corporate name and the manner in which it may be changed; effect of change 71, 128, 120 of the capital stock divided into shares ISO preferred stock, how authorized 73, 12!) number of stockholders, not less than five 9. 13!) stock owned by the corpoi'ation 130 who deemed to be owner of stock 130 stock deemed personal estate 130 stock not sold at less than par to increase the capital stock 131 payment of subscriptions 50, 131 apjiortionment of stock 132 failure to pay subscriptions 132 when company may sell delinquent stock 133 certificate to be surrendered on transfer of stock 135 sale of stock. with delivery of certificate to purchaser 136 lost certificate 136 o.uornm 137 list of stockholders to be bung up in the office 138 voting, mode of 138 proxy, not to be held by officer or director 138 annual report of directors 130 books, papers, etc., subject to inspection 13!) officers and agents, appointment of 142 by-laws 25, 143 receiver !)2. 94, 144 transfer books 130 transfer of stock 130 of subscriptions to capital stock, and recovery of instal- ments thereon 131, 132, 133; 134 340 WEST VIRGINIA CORPORATIONS. CORPORATIONS GENERALLY, of security for unpaid instalments of stock 13;{ certificates of stock "i 135 dividends on stock 13G of the meetings of tlie stockholders 20, 39, 137, 13!) of the board of directors, and president 140 of the voluntary dissolution of a corporation 86, 14;i proceedings in equity to dissolve a corporation 03, 143 certain eiiuity Jurisdiction concerning corporations .... 94, 144 effect of dissolution or expiration of a corporation .... 81 to 98, 144 examluation or reports required by the legislature U5 service of process and notices on 100 to 104, 145 restrictions in relation to quantity of land corporations may hold 114, 116. 146 preservation of the peace at watering places 140 married woman may vote as stockholder 9, 28, 147 meetings in principal ofBce 21, 22, 23. 26, 137, 139 taxation of 297 to 310 INCORPORATION OF JOINT STOCK COMPANIES, to what chapters of the code such companies are to be subject 128. 148 purpose for which they may be formed 148 no church to be incorporated, nor any company to pur- chase and sell land for profit 7, 8, 9, 111. 149 capital stock of 149 mode of incorporation and its duration 11, 149, 193 corporations now existing may accept this chanter l~i','> may change par value of stock 154 term of office of first directors 1.34 first meeting of stockholders 10, 39, 154 sale of additional stock before organization 16, 17, 50, 155 record, publication and official copies of certificate of incorporation 155 fees of secretary of state 49. 131! may reduce or increase the number of shares of its cap- ital stock, or the par value of each share; how .... 63. l."t(J meetings of stockholders or directors may be held out of the State. . . ; 20, 21, 22, 68, 157 may keep their principal otHce in any state, etc 157 must appoint some one to accept process and make prop- er returns; when and where 4S. 157 where power of attorney recorded and effect of 54,13S penalty for failure 158 sale of property and works of corporations other than railroad companies l.jS may change par value stock; when and how 63 to 67 directors to continue in office if new certificate be issued, for bow long I.j4 first meeting of stockholders 154 of the record, publication and official copies of cu'rtifl- cates of incorporation 155 duties of secretary of state as to 155 of clerk of house of delegates 155, 136 penalty and forfeiture for neglect in such cases 156 effect of copy of certificate as evidence 156 certificate or copy to be delivered to, and recorded by, clerk of county court; when 136 penalty on company for failure 156 may accept law 153 boom companies 223 to 239 mutual Insurance companies 247 mutual fire Insurance companies 251 title and trust companies 257 Insurance companies 260 telegraph companies 260 telephone companies 260 express companies 260 pipe line companies 260 surety companies 28a bridge companies for Ohio, Kanavirha and Big Sandy rivers 294 building and loan associations, provisions relating to.. 160. 162 WEST VIRGINIA CORPORATIONS. 341 CORPORATIONS, GENERALLY, FOREIGN c JRPORTIAONS. may hold property and do business in this State, when and how 77 ' see " Foreigu Corporations." BANKS OF ISSUE OR DISCOUNT AND DEPOSIT. to what chapter of code shall be snWect 210 capital stock of and how increased or reduced 210. 211 personal liability of stooliholders 107, 211 directors; who elisible, oath of '.{11 meeting of stockholders, wuere held 212 powers of hanks 212 incorporation of savings banks; provisions relating thereto 212 to 222 constitutional provisions 107, lOS INCORPORATED ASSOCIATIONS OTHER THAN JOINT CTOCK CO'S. how and for what incorporated 244 name of another corporation not to be used 24(i fees of clerk 246 by-laws and regulations 246 mutual fire insurance companies; provisions relating to 251 to 256 mutual relief and insurance companies, insuring lives on the assessment plan 247 to 250 cemetery associations authorized to sell and convey their land ; when and how 288 taxation of corporations 297 to 310 condemnation of lands, by . .311 to 824, 230, 180, 172, 110, 118, 117, 110 COUNTY COURT. duty of, as to apportionment of taxes of railroads 30.^. 304 duties as to pipe lines in county road 124 duties as to subscriptions to ra. -roads 180 levy by, to pay subscriptions 183 permission of, to erect telephone poles on county road.... 268 duty of, as to sale of certain railroads 183. 184 COUNTY, in which certificate of incorporation recorded 15C, lil in which power of attorney recorded 158, 1C6, 225 subscriptions by, to railroads 180 in which charter of savings oank recorded 213 in which by-laws of railroad' d recorded 165 in which by-laws of boom companies recorded 225 in which charter of boom companies recorded 224 CREDITORS. of corporations, remedy against delinquent stockholders. . 107 of banks, remedy against stockholders 108 may bring suit and' how receiver appointed 04 to 98 where such suit brought 97. 98 acts void as to 326 CROSSING. by one internal improvement company of another 118 boards to be erected at, by railroads 185 lines connecting to prorate charges 203 must sound whistle or ring bell at 184 CROSSINGS OP ROADS, ETC., how made one with another 118 CRUELTY TO ANIMALS, penalty for, in transportation 204 CUMULATIVE VOTING, statutes' authorizing 138 constitutional provision 108 railroads, election -Sf directors and managers 179 explained with forms 43, 44 DEBTS. corporations may take real escate, stocks, bonds, etc.. 342 WEST VIRGINIA CORPORATIONS. DEBTS, in payment therefor 114, 50, 125, 126, 1.31, 187 ra.iy fompromise .ind purchase Its own debt 114, ll.'i debts dno on stock, when paid 131, 132 liow subscriptions to stock paid 132, 1.33 failure to pay subscriptions, how recovered 132, 13;'. railroad may mortgage its property to pay 175. 17(i see page 50, note. DECREASE. of number of shares of steels, or of par yalue of stock . . 03 to G7, 15C certificate of to be preserved and recorded, where 155 banks, of capital of 210 DEEDS. acknowledgments and execution of, by corporation 99 DEPOTS, of railroads, quantity of land for, company may acquire.. im agent, service of process on 102, 122 regulations as to 19!) when must maintain at town of three liundred inhabitants 110, 174 DIRECTORS. how to be elected ..39, 43, 108, 138, 140, 165, 166, 167, 211, 214. 226. 252 cannot vote as proxy of stockholders 29, 42 annual report of, to stocltholders; what to contain, who entitled to copy of 139 property, funds, books, etc., of corporation, to be open- ed to inspection of 139 powers of 46, 47 record of to be open to Inspection of stockholders 139 every corporation shall have 140 powers of; number of; aualifications of 28 when to be elected 28. 137, 140 how to be removed, and vacancies fllled "8 quorum of 26, 137 what to be done if number of .jc reduced 28. 140 to choose one of their number president 29. 141 may appoint president pro tern, when 29, 141 meetings of. when to be ht.u ,30. 141 special meetings of, how held 141, 142 record of proceedings of 30. 142 when members of, not to vote 29! 149 may call ayes and noes 30. 142 may appoint officers and agents and fix their compensa- tion; exception 30. 31. 142 to keep books of account ' ,3li 139 when such books to be balanced sx, 14;) may hold meetings, where 141,.30 how to appoint attorney 48 proceedings of \[] 47 when can sell stock *. . .V. . . 17. IS duties of . ....... 45. 4(5." 47 proceedings of board '47,141 meeting of board 47. 14l" 142 president may call meeting ' 141 terms of office 154, 140 OP RAILROAD COMPANIES. election of Igg 167 quorum of Igg failure to elect j^q who cannot hold proxy '..'.'.['.'.[[ 29 appointment of attorney 16(5 duty of, at meetings of stockholders IK7 president to be chosen from 169 of banks .^^.^ of boom companies ]][\ 22r failure by boom company to elect ^ .... .... 227 removal of, by boom companies pas removal of, generally ^.^q WEST VIRGINIA CORPORATIONS. 343 DISSOLUTION 81 to i)S how dissolution takes place 86. 192 by exDii'ation of charter 86 by resolution of stockholders 86. 14M by judgment of ouster, quo warranto 89 by decree of court of eciuity 93. 143 voluntary 86, 14,'( involuntary 89, 93, 143, 144 receiver 92, 94, 144 causes of 83, 126, 127, 129, 143, 144 effect of dissolution 81. 82, 144 of railroads 192 DISTRICT. subscription by, to railroad 180 DIVIDENDS. railroad corporations cannot pay, exceeding earnings .... 176 not to be declared out of capital 137 how declared 136 DOMESTIC CORPORATIONS. what companies are such 78. 178, 203, 260 DONATIONS. to railroads —.7 DRUNKENNESS. of locomotive engineer, conductor or brakeman 185, 207 DURATION. of corporations 11, 86, 152, 163, 164, 165, 213 DWELLING HOUSE, internal improvement company not to invade; exception.. 115, 116 cannot be taken by pipe line company I'H oil tank, gas or oil pipe not to be within 100 feet of.... 1514 exception l'-^4 certain corporations may invaae within twenty feet of . . . . 116 EARTH. see "Materials." ELECTION. of directors ... .39, 43, 108, 1.38, 140, 165, 166, 167, 211, 214, 226, 282 of railroads 165. 166, 167 failure to make 169 of directors of boom companies 226 of directors of banks 211 of trustees of savings banks 214 of directors of mutual fire insurance companies 252 of president 47, 141, 166 EMINENT DOMAIN. see "Condemnation of Lands." EMPLOYES. ofcertaiii corporations to be paid their wages at regular intervals, etc. ; provisions for securing same 285 excessive charges for goods to employes 286 employer connot issue scrip not redeemable in money 287 penalties 286, 28S employes entitled to pay tor coal before the coal is screened 290 see "Laborers." weighing coal for 289 to 292 ENOINEEE. of locomotive, intoxication of 185. 207 EVIDENCE, of certificate of incorporation. .16, 151, 164, 21.S, 225, 245, 246, 251 of copy 156 344 WEST VIRGINIA CORPORATIONS. EVIDENCE. of power of attorney 158 wliou evidence of corporate existence not reanlred 326 EXECUTION, of doeds yo can be levied on rolling stock of railroads 170 can bo levied on capital stock 130 EXISTENCE OF CORPORATION evidence of 16, 151, 164, 213, 225, 245, 24C, 251 extension of, after expiration 105 when proof of, not required 326 EXPIRATION. of charter 81 to 03 receiver of expired company 04. 144 EXPRESS COMPANIES, distinction between domestic and foreign 260 property of domestic, how assessed for taxation 264 returns to be made by foreign 205 wliat returns to show and when made 265 duty of auditor and assessor in relation to 265 tax to be paid by foreign 265 penalty for failure to make return or pay tax 266 service of notice and process on foreign 266, 103 condition precedent to transaction of business by foreign. . 267 requirements of, before transacting business in this state 200 revocation of power of attorney 266 copy of power of attorney as evidence 2Bfi taxation of, generally 306. 307. 300 EXTENSION OP CHARTER, corporation may extend existence beyond that limited in charter 105, 152, 186. 325 eortiflcate of secretary of siate in such case 105. 153 FENCES, when railroad companies must fence in right of way. 318 internal improvement company not to throw another's open 115 latter must not injure or take 119. ViO FIDELITY AND GUARANTY COMPANIES, see "Surety Company." FIDUCIARIES, liability of, as stockholders 171. 230 FIRST MEETING OF STOeKHOLD..ES, when to be held and nouce of , 20, 21. 23, 154 where to be held 21 of railroad companies 165 of savings banks 214 of boom companies y25 of mutual Are Insurance companies 252 for business corporation, explained, with forms 1!) to 25 notice of, and how waived note, 20, 22 proceedings at 3<) how to adopt by-laws 43, 44 FOREIGN CORPORATIONS. may hold property and do business in this state; when and how 77 to 81 railroads declared domestic corporations; for what purposes 78,178 penalty for doing business without authority of law 7H fee of secretary of state for certllieate 7S license taxes on 78, 14 order of publication against 10;j FOREIGN INSURANCE COMPANIES. what companies deemed such 77. 7s ygO what certiflcate required by, in order to take risks ' ' 260 statement to be made by, to auditor 260 WEST VIRGINIA CORPORATIONS. 345 FOREIGN INSURANCE COMrANIES, capital required ol', before doing business 2H1 deposit rofliiired to be made by; wlien 2H1 examination of, by auditor 'if!-' certificate issued to, by auditor; when 26:^ fees of auditor 2W copies of papers flied witli auditor as evidence y(!-i returns to be made by, and telegrapli and express companies to auditor 264, 306, 307 assessment of property of 307 duties of auditor and assessor thereon 307 tax to be paid by 307 penaity for faiiure to make return or pay tax 3US service of process and notice on 103. 104, 260 revocation of power of attorney Wi6 copy of such power as evidence 266 condition precedent to transaction of business 267 "Valued Policy Law" 267 loss, how paid 267 mutual insurance companies 247 to 250 see "Mutual Insurance Comcanies." FORFEITURE OF CHARTER, explained 81 to 86 what violation of railroad, corporation deemed a for- feiture of its franchises 202 certain railroad companies relieved from; wlien and how 186, 32r) forfeiture for non-payment of license tax ; . 15, 83, 84, SO how relieved from 186, 325, ,310 for failing to organize in one year 83, 127 suspending business for one yar 8.3. 337 allowine number stockholders to be below Ave 83. 129 by railroads 20.i FORMING CORPORATIONS, instructions, generally 9 to 25 building and loan associations 160 to 162 railroads 163 to 170 boom companies 22i mutual Are insurance companies 251 banks 210 savings banks 21','. FORMS, agreement to incorporate, generally 150, 10 to 13 acknowledgment to agreement 1.50, 12. 13 acknowledgement to deed 9D by-laws 25 to 38 certificate of publisher of notice 41 directors' meeting 47 to 53 decrease of capital stock, notice 65 increase of capital stock, notice 63 resolution 65 certificate 66 new agreement, forms 61 change of name, forms 72 preferred stock, forms 75. 76 proceedings at stockholders' meetings 41 to 45 notice of stockholders' meetings 20 waiver of notice 22 resolution appointing attorney 48 power of attorney 53 resolution to increase stock 50 voluntary dissolution of corporation 87 notice thereof 88 afQdavit to agreement 151 railroads, agreement to incorporate 163 savings banks, of agreement to incorporate 213 mutual fire insurance companies, agreement to incorporate 251 FRACTIONAL SHARES. not to be created (sec. 10.) 152 FRANCHISES. of corporations, see "Powers." 346 WEST VIRGINIA CORPORATIONS. FRATERNAL ASSOCIATIONS, RiH" "Hcnovolpiit Associations" luid 6. 148. 14!l li-REIGHT. seo "Transnoi'tatioii of rasseiigprs and Preiglit," and "Classification." GARNISHEE, SCO "Attaeliments." GARDEN, not to be taljon by certain corporations, under condemna- tion 1-J4 GAS COMPANY. may enter lands for examination 6, 12S GAS AND OIL WELLS, see "Wells," and pages 280 to 2S2 GENERAL MEETING OF STOCKHOLDERS, when held 137, 139. 20, 39, 140 notice of 22. 137 see "Meetings." GOOD TEMPLARS 6, 148,149 GRADE, railroad crossings at US GRAVEL, see "Materials." , GUARANTOR. no cornoratiou to become surety or guarantor for debt 01- default of any other Joint stock company 8. 114 exception 8, 114. n.T railroads may become 193 GUARANTY COMPANIES. see "Surety Company." GYMNASIUMS B, 148, 149 HIGHWAYS, railroads declared to be 109, 192 HORSE RAILROADS, regulations concerning 203 HOSPITALS 6.148.149 HOTEL AND SPRINGS COMPANY 6, 148 149 IMPLIED POWERS, of corporations 122 INCORPORATION. mode of, genorally 9, 150 building and loan associations 160 to 162 railroads .' 163 to 170 boom companies 223 to 239 banlts 210 to 212 savings banks 212 to 222 nintual Are insurance companies ; . . . 251 to 256 title and trust companies ^57 INCOltrORATED ASSOCIATIONS OTHER THAN .TOINT STOCK GO'S. 'noorporatiou of, authorized and for what 244 number of persons who may organize ' 244 Iiow incorporated , '".. 244 243 effect of ccrticatp Issued by clerk '. ..'.'.' ' 245 name of corporation !!!!!.* 246 fees of clerk of county court ■'40 by-laws and regulations of !!!!!!! 246 WEST VIRGINIA CORPORATIONS. 347 INCORPORATED ASSOCIATIONS OTHER THAN JOINT STOCK CO'S. niutTial fire iiigurniice oonipanios 251 to 25(! insuring lives on tlie assessment plan 247 to 2r>{l INCORPOKATED JOINT STOCK Cf)itrANIB!S. see "Corporations Generally," "Joint Stocl£ Companies," "Railroad Companies," "Banks," "Savings Banks," "Booms and Dams," "Building and Loan Associa- tions," etc. INCREASE. of number of shares or par value of stock 0.S to G7, 15G of caoital stock of railroad companies 170 banks, of capital of 210 certificates of, to be preserved and recorded, where inri INSURANCE COMPANIES, incorporation of . ^ 148, 140, lOli what deemed a domestic and what a foreign company . . 2(i0 certificate required, in order to take risks by comnany.. 260 statement to be filed by company before doing business.. 260 capital required of foreign company before doing business 261 of what to consist and how invested 261 not to discriminate, nor contract in violation of policy.. 261 examination of. and revocation of certificate of; when. . 261 when auditor to issue certificate 363 when and how such certificates renewed 26;i publication of certificate 26X where to be filed 26S what certificate mu.st recite 26.'i fees of auditor 26.'1 written and printed copies of papers as evidence 264 assessment of property of domestic company 264. Wtt returns of foreign companies, when and how made 264, 806 what returns must show 264, S06 when made and what to include 265, S07 duties of auditor and assessor 265, 807 tax to be paid by foreign company 265. 307 penalty for failure 266, 308 service of process and notices on 266, 103 attorney to accept service; how appointed 26(i when such power may be revoked; new appointments.... 266 copy of power of attorney as evidence 266 condition precedent to transaction of business 267 "Valued Policy Law" 267 when must nay face of policy 267 when partial loss 267 MUTUAL FIRE INSURANCE COMPANIES, provisions of law relating to 247to 250 MUTUAL LIFE INSURANCE COMPANIES. provisions of law relating to 247 to 25 INSTRUCTIONS, for forming corporation 9 to 19 for organizing 19 for first meeting of stockholders 19 to 25 for nrorincipal ijlace of business out- side of tills State 15 to whom and when payable 15 auditor to notify corporation of time of payment of li- cense tax 15 forfeiture for non-payment 15 auditor to publish list of forfeited charters 15 how corporation relieved from forfeiture 310 corporations exempt from payment of license tax 15 explanation of 15. 16, 810 LIFE OF CORPORATION. when begins 16, 17, 151, 164, 165, 213, 224, 245, 251 extension of, after expiration 105 when ends 152 of railroads 164. 165. 186, 325 of savings banks, when begins 213 of boom companies, when begins 224 of business corporations, generally 151 of mutual fire insurance companies 251 of incorporated associations 245 lIfE INSURANCE COMPANIES. MUTUAL, see "Insurance Companies." and pages 247 to 250 LIMITATION OF ACTIONS, on oil or mineral leases 279 LIMITATION OF CAPTAL STOCK, of banks 211 railroads and canals, not limited 149 others, except banks 11. 149. 211 of corporations, generally 11. 149 LOCKING CARS. while train is in motion 327 LODGES. see "Benevolent Associations." LOCS. see "Timber Dealers." 350 WEST VIRGINIA CORPORATIONS. LOSS OF CEllTIiriCATE OF STOCK.. board of directors to cause the issue of duDlicate, when . . IHfi requirement of owner before duplicate is issued 136 MACHINE SHOPS, of railroads, quantity of laud for, company may acquire.. IIB IIANUFACTDIUNU COMI'AXIIOS, may lay out towns, when ]14. I'i.'i may sell lots therein 114. 115. 125 how incorporated ■ 9 to 19, 148 to 1.52 how much land may be held by 14fi may subscribe for bonds, stocli. securities of other cor- porations, when 115 MAP. of railroad to be tiled, where 1SR MARRIED WOMEN. may be stockholders 9, 147 may vote in person or by proxy 147 MASONIC LODGES 6. 14,,. 14U MATERIALS. how incorporated companies may talie, from lands . . 119, 172. 231 railroad company may take 17a boom company may take 231 MAXIMUM CAPITAL, what is 1] amount of 11, ]4'.i of railroads, and canal companies, not limited 14!i of banks 210 not to be exceeded l.jo MEASURING COAL, provisions cencerning 289 MEASURING LOGS, ETC., "Scribuer's rule" adopted for 239 JIEETINGS. of stockholders 157, 165, filO, 214, 225, 226, 20, 21. 23. 39, 40, 137, 139, 140, 154 of directors 45, 46. 47, 141 of stockholders in this State 139 who may call meetinjjs of stockholders 137. 154 time of meeting 137, 1,S9, 154, 21, 225 of stockholders of railroads 165, 167. 16S. 16;l special meetings IMT,^ Ids of stockliolders of boom companies 225. 226 of miitual tire insurance coiupaniew 252 MERGER. of one railroad with another 176 :\I!T,T,S. protection of. from boom company 237 MINERAL OR OIL LEASES. limitation of actions on 279 MINERAL WELLS, see "Wells," SlININO COMPANIES, how incorporated 6. 9 how much land may hold 7, S, 9 may lay out town 114, v^5 may sell stock at less than par IIJI, 18, 51 may take priip<'rly for stork i;U how much land lliey may hold 114 to 116. 146 WEST VIRGINIA CORPORATIONS. 351 JIODE OF INCORPOKATION corporations, generally 9. IM railroads 1«3, 170 builcling and loan associations 160 to 162 banks iJlO savings l^anUs 212 boom companies 2'2:^ incorporated associations '■m mutual fire insurance companies 251 organization 19 stockholders' meetings 20, 21, 39 by-laws 25 bow to adopt 43. 44 MODE OF VOTING. for directors 138, 108, 43, 44 other Questions 138 Droxy 138 MUNICII'AIj CORPORATION. not more than one line of piping or tubing to be laid in. . 124 exception '. 124 provisions for entering land for examinHtiou does not ap- ply to 1 l(i subscriptions by. to railroad 18(1 telephone poles in 268 rights as to taxes from railroads 300 to 304 MUTUAL FIRE INSURANCE COMPANIES, mode of incorporating 251 power to take risks 251 provisions of code applicable 252 when to commence business 252 by-laws 252 members of, their liability 252 board of directors 252 annual meeting 252 quorum 253 number of votes each member entitled to 253 bond to be given by insured 254 docket to be kept by county cler.i ?.54 policy to be void, when 255 liability of members 255 suits between company and members 255 expenses and losses 255 annual statement: when published 255 power reserved to legislature 250 MUTUAL LIFE INSURANCE COMPANIES, what companies so considered^ foreign and domestic .... 247 what statement to be filed with auditor, by both domes- tic and foreign companies '247 persons to accent service of process '-^48 examination by auditor 9.4S certain duties of auditor 249 penalty on agent for doing business without certificate of authority 249 fees of auditor 250 what to be evidence 250 certain societies not included in act 250 NAME. restrictions upon; change of 25, 128 how change made 71 to 73, 128. l.w effect of change 71, 120. 155 certificate of change of name, wliere recorded 155 no corporation to adopt same, of another 128, 246 of mutual fire insurance company 251 NEW AGREEMENT, manner of adopting 55 to 63, 151 form of fii notice of 58 proceedings to adopt 59 effect of 63 352 WEST VIRGINIA CORPORATIONS. NON-RESIDENTS, not to be employed to perform police duty 292 ciiunot be members of savings banks 212 cannot be members of mutual lire Insurance comoanles. . 251 can be stoclibolders of otber corporations 1.^ annual meeting of members ' 214 ofBcers; how elected 214, 215 business; how managed , 214. 222 by-laws; how adopted S14 meetings of the board 215 failure of truateo to attemj meetings 21'i removal of trustees of 215 security required of officers J15 liability of trustees 215 to' 217 no trustee, officer or agent, to borrow or become endors- er for money of the corporation 215 deposits and dividends oi.-, deposits may be limited 21f^^ 2111 powers and duties of trustees when depositors are mar- ried women or minors ^il5, 2t(i how deposits and Incomes to be invested -^Iii' ^17 when investments to be made ' ;:ir excess of receipts may be deposited in another bank- how withdrawn ■>]7 real estate .......... 218 applications for loans; how made !.'!! 218 certificates of deposit not to be issued ! . . ! ! 2is nor pay interest on deposits, except .. . 218 dividends, semi-annual ." ' ' 2I8 reservation of guarantee fund ".".'..' 9i8 profit.? ; how divided !...'!' 218 how dividends to be authorized .".'.'.'.'.'' 2I8 compensation of trustees ",,', 215 2iq examination of books by trustees; their statement ' •>!') statement to be published in newspaper 2]i| ciroiit court may order investigation 2iq penalty for making unauthorized investment 2on special meeting of members S^n withdrawal of memuers; wuen oon unclaimed deposits, list to be published ..'.'. 220 221 WEST VIRGINIA CORPORATIONS. 359 SAVINGS r.ANKS. authorized to pay order of deceased depositor 221 deposit made in trust for anotliev 221 company may discontinue business 2i!l resolution of discontinuance to be certified to secretary of state 2-il disposition of property when corporation dissolyed 221 power of legislature to- make examination, etc 222 to what chapter subject 222 SCHOOLS 6.148.14!) SCRIBNER'S RULE, established as the lawful rule for the measurement of logs, timber, unless, etc ; 2Hn SEAL. every corporation to have common 112 tax on, state IBO SECRETARY OP STATE. duties of, as to issiiing certificates of incorporation to joint stocli companies, recordation, publication, etc., of same 14, 151, 155, 164, 213, 224, 241, 245 power of attorney to accept service of process for corpor- ation, to be recorded in oulce of 48, 54, 158, 167, 225, 248 duty of, as to foreign corporations 78 certificate issued by, to railroad corporations 7!S what certificate to be filed in ofBee of, by railroad ex- tending its lines 177, 178 . map, etc.. of road to be filed in office of ISfi duty of, as to bank changing amount of capital stock 211 wuat resolution president to certify to 211 by-laws to be recorded in office of 165. 223 order or resolution increasing capital stock to boom companies to be recorded in office of 66,229,224 writing by timber dealers adoi, ...ig trade mark to be re- corded in office of ^41 mortgages on railroad property to he recorded in office of 326 certificates of incorporation, generally 14, 151 certificates of incorporation to railroads 164 certificates of incorporation to savings banks 213 certificates of incorporation ..o beem companies 224 certificates of incorporation to incorporated associations. . 245 duty, as to trade marks 341 fees of 14. 62. 66, 78, 156 duty of, as to taxes received by him or if none be received 15 SECURITIES, no corporation to buy, etc., stock, bonds or securities of any joint stock company ; 8, 114 exception 8. 114 SECURITY. for unpaid stock 1.S3 doubtful or insufficient 134 SELLING STOCK FOR TROPERTY'. EXPLAINED 50, 51 SEMINARIES •. 6, 148. 140 SERVICE OP PROCESS. against corporation 100 to 104 SHARES. fractional part not to be created 152 par value of, how increased or reduced 63 not to be sold at less than par to increase capital 131. 50 must be of same amount 120 see "Stock." SHERIFF, , , ,. . to remove force, when required by corporations in cer- tain cases liil 360 WEST VIRGINIA CORPORATIONS. SHORT LINE RAILROADS, freight charges on, limitet] 203 SOCIETIES, FRATERNAL 0, 148. 14!» see "Benevolent Associations," SONS OF TEMPERANCE 0, 148, 14!) see "Benevolent Associations." SPRINGS COMPANY. may hold how miicli land 146 may adopt rnles, etc., for preservation of peace 146 may appoint police officers; powers of snch officers 14*j STATIONS. regulations as to, on railroads Wn railroad required to estabi.oh 110. 174 STOCTC. one corporation not to purchase that of another 115 exception as to certain corporaL.ons and cricumstances. . 115., 176 every share of. to be of same amount 12'.) fractional shares of. not to be created 125 maximum, of a corporation, except railroad or canal company, not to exceed five million dollars 140 preferred stock, how issued 73 to 77, 12:) stoclv owned by corporation it may sell or extinguish 130 wlio deemed owner of 130 transfer of 130 how sold before and after organization of company . . 17, 18, 131, .50 not to be sold at less than par 17. 18, 131. 22! i how paid for; when regarded as taken 18 apportionment of 132 failure to pay for 132. 133, 134 when delinquent stock may be sold 133 security for unpaid installments and insufficient security . . 1.33, 1.34 certificates, when and how issued ! . 135, 130 lost certificate l.SC dividends on l.'ifi transfer of; sale of 130 sale of before organization and after 131, 50, l.")5 ten per cent, must be paiu in before subscriber can be incorpora lov 18. 1 32 par value of, may be changed 63 to 07 number of shares and p.ar value may bo increased or re- duced 63 to 67, 156, l.')7 stock is personal estate ISO, 220 issue of, when void ...'.' ' 176 railroad company may sell, issue and transfer its stock,"' for what 17(j voting on shares of; cumulative voting !.. 39. 44, 138. 170 stock of counties, districts, cities, etc. ; oroviaions con- . cerning 180. 183 in railroad companies, may be paid in property 176 50 liability of fiduciaries and sureties for '. . . . 'l71 liability of stockholders ! ..107, 171 211 may be sold for property '. '.'.'.' 50 r-,i' j^j' j^,. increase and decrease of 63 to 67 1711 "'"1 number of holders 120. 160 212 ''■>3' -'il 251 what companies may sell at loss than par '. ' ' ' ~r,i' 13) subscriptions to, how paid ^•-52' kjh certificates, who must sign ' 13-, of railroads, payment of Kijl of railroads, increase and decrease of ...... 17J1 of railroads, when void " ...... ■i7([ STOCK BOOK, to be kept by corporation -.on president must sign certificates iq- when certificates to be surrendered .'.'.'.' .'.' " ' ^^r STOCKHOLDERS. liability of ^q.. ,_, „„ first meeting of 20, 22, 23, 39, 137! ISo! 154 fo5 special meeting ' ' ' ^";' general provisions -itf) WEST VIRGINIA CORPORATIONS. 361 STOCKHOLDERS. meetings of, when, where and how held iT. 20 to 23, 39, 13i) notiee of meetings 137, 139' proceedings to elect directors 3!> minutes of meetings 40- must adopt by-laws ., '-'4 quorum of 24. 137 cumulative voting at meeting 39, 44, 138, 17ii may issue preferred stoelv 73 to 77 one corporation cannot be, .n another 114 exception 114, 176, 177 time of meeting 137. 139, 154. 20, 21. 23 number of . . '. 129, 83, 160, 212. 223, 244. 251 remedy against delinquent stocliholders 132, Ibu, 134 security for unpaid insta.lments 133, 134 list of, to be hung up in principal office before meeting. . . . 13S minutes of directors subject to inspection of 139 meeting of, may be called by board of directors 140 may dissolve corporation voluntarily 143 not less than one-third in interest may bring suit to dis- solve 143.144 of railroads, meetings 165, 167, 168, 170, 171 notice of such meetings 166, 168, 170, 171 railroads, notice of meeting may be waived 171 railroads, cumulative voting 179 savings banks 214 boom companies 225, 22(i STONE. see "Materials." STREET RAILROADS, what act not to apply to 201 charges for passenger fare and freights on 2ul, 202 consent of local authorities lo' construct 108 SUBSCRIPTIONS. failure to pay 132. 133 by counties, districts, cities, etc., to capital stock of railroad or other work of internal improvement 180 to 183 to railroads may be paid in property 187 to business corporation, how paid 50, 51. 132. 133. 134 SUITS AGAINST CORPORATIONS. where brought 100 to 104 to dissolve corporation 143, 144 SUMMER RESORTS. preservation of peace, etc., at 146 SUMMONS against corporation 100 to 104 SURETY COMPANIES, may guarantee and become surety for the fidelity of persons !183 court, clerk or other officer may accept, as sole surety.... 283 examination of 283 deposit to be made by. In state depositories 283 auditor may waive deposit,- when 284 SURETY. no corporation to become surety or guarantor for debt or default of any joint stock company 8. 114 exception 8, 114 railroads may become 193 how title and trust companies may become 257. 259 see "Surety Companies." SUSPENSION OP BUSINESS. by corporations for two years, a forfeiture 83, 127 TAKIN not to be surety for certain officers 239 see "Surety Company." TITLES. to goods and cliattels with the possessor; wlien 320 unless declared by writing recorded 32H notice in ease of railway engines, cars, etc 326 TOWNS. what corporations may lay out, etc., and how 114, 12.'> provision against invading l. ..elling house by internal improvement company does not apply in incorporated town 110 consent of, to constructing street railroad 110 consent of, to occupying streets by railroad 1 1S terminus of railroads in 110 tanks, stations, lines of p.pe, etc., not to be laid in, ex- cent, etc 124 subscriptions by, to railroads 180 telephone poles in 26S rights in regard to railroad taxes 302, 304 TEADE-MAEK, may be adopted by timber dealers, how 240 protection of such dealers using same 240 to 243 TRANSFER OF STOCK. no share to be transferred unless paid up, except 130 shall not affect validity of security held by corporation . . 130. 131 regulated by bj^^iaws 130 illustrations and forms of such by-laws 33, 34 book to be kept for ■. . 130 TRANSFER BOOK. to be kept by corporation 1 30 certificates of stock to be issued 135 president must sign 135 certificate to be delivered up when transfer made 135 TRANSPORTATION OF PASSENGENS AND FREIGHT, rates and provisions as to, by railroads Iii4 penalty for overcharging 196, 201 classification 194, 199 on street railroads 201 on- .short line railroads 203 on horse railroads 203 on lateral railroads 188 to 191 TRUSTEES, of savings banks 214 to 222 TRUST COMPANIES. see "Surety Comnanies." ULTRA VIRES. acts outside of purposes stated in charter 114. 125 acts in violation of law 114 purchase of, or holding too much land 114 subscribing for, or purchasing stocks, bonds or secur- ' ities of another company 114 becoming surety or guarantor for debt of other company 114 consolidation of railroad stock, etc 110 railroad cannot acquire competing line, exception 110 USURY. contract of corporation not invalid therefor 123 no corporation to interpose defense of 123 VALUE. stock not to be sold at less than par to increase capital 131 364 WEST VIRGINIA CORPORATIONS. VALUR. par value of stock, how increased or refluceG 63 to 67 ■■VALUED rOLICY LAW," Tplien flrc insurance companies mnst pay face of policy . . 2fi7 wlien partial loss how adjusted 267 VILLAGES. streets of, not to be occupieu with company's works, unless 118 consent of, to constructing street railroad In 110 terminus of railroads in 119 tanks, stations, lines of pipe, etc., not to be laid in, except, etc I'M provisions as to entering lands, etc., does not apply to if incorporated 116 subscriptions by, to railroads IKO telephone poles in 268 VOID ACTS. acts valid between the parties but void as to creditors .... 326 see "ULTRA VIRES." VOTING, cumulative .S9, 44. 108. 13S no otQcer or director to vote as proxy for stockholder .... 138 ayes and noes in directors' meetings, how called 13S stock vote, how taken 1.S8 railroads, meetings 17!) WAGES. ; how and when to be paid to employes of mining companies 28.") as to payment in anything but money 287 see "EniDloyes," WAGON WAYS. when railroad and canal companies to provide 117 WAIVER, of notice of meeting 22 of railroad stockholders 169.171 WARNING, of approaching train 1K4 WATER COMPANY. may enter upon lands for examination 123 WEIGHING COAL, at mines before screened ; provisions concerning '289. 292 duty of persons, firms and corporations as to 2.s>i duty of sealer of weights and measures 289 cars in coal mines to be numbered 290 coal to be weighed, when 290 weighmen, duties of 290 sealed weights and measures to be furnished 291 to whom act applies 291 Iicnalties 293 WELLS. provisions concerning oil, gas, salt and mineral water wells 280 to 2X2 when and how to encase same 2.S0 abandoned wells: provisions eoncoruing ,, 2S1) gas wells to be plugged; when and how, and by whom]!!! j'^l penalties \ 282 remodv in equity ' [' \ 282 WINDING UP, corporation's business 81 to 93 proceedings at law 86 89 proceedings in equity ....... '93 receiver !!!!""' 87. 92, 94 pi'dfeedings when company expires, Is dissolved or rlgbts '•'"'^<' 121 WOMAN, MARRIED. may vote as stockholder 28 WEST VIRGINIA CORPORATIONS. 365 WOOD. see "Materials." , YARD, not to be taken by pipe line company ll;4 -^^r >ya