or contract, laying double or additional track, purchasing rolling stock, building depots elevators, or shops, and generally for any purpose needed in its business, and may, if the directors shall so determine, secure such issue or issues of bonds by mortgage or pledge of any or all of its real or personal estate or franchises or income. Said securities may be expressed in dollars or in the currency of the country where disposed of, and may be disposed of upon such terms and at such prices as may be agreed upon between the respective parties, not inconsistent with the laws of this state. The proceeds of sale of such securities shall be applied only as now required by law; provided, that nothing in this section or in the sections of the revised statutes relating to railroad companies prior to section thirty-four hundred and thirty-seven, other than in sections thirty-two hundred and eighty-seven, thirty-two hundred and eighty-eight, and thirty-two hundred and eighty-nine shall be construed as affecting street railroads. [1884, March 20; 81 v. 57; 80 v. 55; 78 v. 230; 77 v. 206; 87 v. 181.]

SEC. 3310. [Facts to be certified to the secretary of state.] Within ten days after such meeting the president and secretary of the company shall make an abstract, stating the whole amount of pre-existing capital stock, the amount authorized, the number of shares of stock upon which all the installments called for by the board of directors have been paid, and the vote at the meeting, and add a certificate that the provisions of the two preceding sections have been fully complied with; and they shall make affidavit to such abstract and statement, and file the same in the office of the secretary of state, who shall cause the same to be recorded. [73 v. 25, ? 1; S. & C. 326.]

REGULATIONS.

SEC. 3311. [Railroad companies must establish a principal office.] Each company shall, as soon as convenient after its organization, establish a principal or [general] office at some point on the line of its road (or on the line of any road within this state with which it connects or has running arrangements), and may change the same at pleasure, and shall give public notice of such establishment or change in some newspaper published on its line within this state; and the office of the president, secretary and treasurer of the company shall be kept at such principal or general office, or at some other point on the line of the road of the company within this state, and a record kept there of all the proceedings of the company, to be open at reasonable hours, to the inspection of any stockholder of the company. [1880, April 9; 77 v. 153; Rev. Stat. 1880; 50 v. 274; % 17; (S. & C. 279).]

For acts to provide against color-blindness in employes of railroads (82 v. 65; 85 v. 58), see ? (8516-29) et seq.

For "an act to provide for spark-arresters on locomotive engines," (82 v. 118), see (8516-39 et seq.

For "an act to require railroad companies to give notice at stations whether passenger trains are on schedule time or not," (83 v. 118), see (8516-41) et seq.

For "an act providing for the protection of railroad employes," (85 v. 105), see ? (8516—31) et seq For "an act to protect travelers on streets and highways," (86 v. 197), see 2 (8516–43) et seq. SEC. 3312. [Repealed 1880, April 9; 77 v. 153. Former statutes; Rev. Stat. 1880; 52 v. 91, ? 2.]

SEC. 3313. [Securities sold to directors under par, void.] All capital stock, bonds, notes, or other securities of a company, purchased of a company by a director thereof, either directly or indirectly, for less than the par value thereof, shall be null and void. [69 v. 173, 22; (S. & C. 321).]

SEC. 3314. [When directors are personally liable to stockholders.] The directors shall be liable in their individual capacity to the stockholders for any damage sustained by the stockholders by reason of the negligence, mismanagement, or unfaithfulness in the discharge of their duties; but a director may exonerate himself by entering his protest upon the record against any act done without his concurrence from which injury is feared, and forthwith publishing the same for three weeks in some newspaper printed

and of general circulation in the county in which is the principal office of the company. [52 v. 91, ? 3; (S. & C. 370).]

SEC. 3315. [Certain persons ineligible to office or appointment.] No person who is a stockholder, owner, or part owner of any express, dispatch, fast freight, or transportation company, whether incorporated or not, which has for its object, or one of its objects, the shipment of freight, or the transportation of persons over any railroad in the United States, or who is in any way pecuniarily interested in any company or partnership formed for any such or like purpose, shall perform the duties of, or be elected or appointed to, any office of profit or trust in any railroad company, or employed as freight or ticket agent thereof; and all such persons shall be ineligible to any such office or appointment. [63 v. 156, ? 1; S. & S. 116.]

SEC. 3316. [Acts of such persons void, and penalties.] If any person be elected to an office, or appointed to a position, or perform duties, in violation of the preceding section, all his official acts shall be null and void; and for every day that he exercises or attempts to exercise the functions of such office or appointment, he shall forfeit and pay the sum of fifty dollars, to be recovered at the suit of any stockholder of the company, in the name of the company, one-half of which shall go into the treasury of the company, and the other to the stockholder prosecuting. [63 v. 156, ? 2; S. & S. 116.]

SEC. 3317. [How authority obtained to bridge canals or navigable waters.] When the line of the road of a company crosses a canal or any navigable water, the company shall file with the board of public works, or with the acting commissioner thereof having charge of the public works where such crossing is proposed, the plan of the bridge, and other fixtures for crossing such canal or navigable water, which shall designate the place of crossing; if the board or acting commissioner approve such plan, he shall notify the company, in writing, of such approval; but if the board or acting commissioner disapprove such plan, or fail to approve the same within twenty days from the filing thereof, the company may apply to the court of common pleas, or a judge thereof in vacation, and upon reasonable notice being given to the members of the board of public works, or said acting commissioner, the court or judge shall, upon good cause shown, appoint a competent, disinterested engineer, not a resident of any county through which the road passes, to examine such crossing, and prescribe the plan and condition thereof, so as not to impede navigation; such engineer shall, within twenty days from his appointment, make his return to the court of common pleas of the county wherein such crossing is to be made, subject to exception by either party; thereupon the court shall, at the next term after the filing of the return, proceed to examine the return, and approve and confirm the same, unless good cause be shown against such approval; and such order of confirmation shall be sufficient authority for the erection, use and occupancy of such bridge, in accordance with such plan; but no company shall construct over any canal any permanent bridge less than ten feet in the clear above the top water-line of the canal; and the piers and abutments of such bridge shall be placed so as not in any manner to contract the width of the canal, or interfere with free passage on the tow-path; but this section shall not be construed to prevent the construction or continuance of draw-bridges which do not interrupt navigation. [50 v. 274, 20; 50 v. 205, 22 4, 5; S. & C. 279; S. & C. 319.]

Cited in State ex rel. v. Railway Co., 37 O. S. 173.

SEC. 3318. [Certain bridges established.] All railroad bridges erected prior to May 1, 1852, over any navigable canal, feeder, slack-water improvement, river, stream, lake, or reservoir, not less than ten feet in the clear above the top water-line, shall remain undisturbed by the board of public works. [50 v. 205, 4; S. & C. 319.]

SEC. 3319. [Attorney-general to enforce section, etc.] If a company refuse to comply with any of the provisions of section thirty-three hundred and seventeen, the attorney-general, on being notified thereof, shall immediately institute proper legal proceed

ings, in the name of the state, against such company, for the purpose of enforcing the provisions thereof. [50 v. 205, 2 5; S. & C. 319.]

SEC. 3320. [Passenger trains must stop at certain stations.] Each company shall cause three, each way, of its regular trains carrying passengers, if so many are run daily, Sundays excepted, to stop at a station, city, or village, containing over three thousand inhabitants, for a time sufficient to receive and let off passengers; if a company, or any agent or employe thereof, violate, or cause or permit to be violated, this provision, such company, agent, or employe shall be liable to a forfeiture of not more than one hundred nor less than twenty-five dollars, to be recovered in an action in the name of the state, upon the complaint of any person, before a justice of the peace of the county in which the violation occurs, for the benefit of the general fund of the county; and in all cases in which a forfeiture occurs under the provisions of this section, the company whose agent or employe caused or permitted such violation shall be liable for the amount of the forfeiture, and the conductor in charge of such train shall be held, prima facie, to have caused the violation. [1889, April 13; 86 v. 291; Rev. Stat. 1880; 64 v. 142, ? 26 (S. & S. 114; S. & C. 282).]

The power of a railroad company to make and enforce a regulation that one or more designated passenger trains on its road shall not stop at specified places, is subject to legislative control; and by 3320, Revised Statutes, such power is taken away as to municipal corporations containing three thousand inhabitants: Pennsylvania Co. v. Wentz, 37 O. S. 333.

For action by a passenger against a railroad company for ejecting him from its train, and in violation of this section: Ib.

SEC. 3321. [Land covered by right of way not to be taxed to owners.] Each company owning and occupying any right of way or easement in lands, either by agreement with the owners, or by virtue of any appropriation proceeding, shall present to the auditor of the county in which such land is situate a statement of the quantity of land embraced within such right of way or easement, and such quantity shall be deducted by the auditor from the land on the tax duplicate, so that the owners thereof shall not be required to pay taxes thereon; a company hereafter becoming the owner and occupant of any such right of way or easement shall, within six months thereafter, present such statement to the auditor; and upon the failure of the company to make such statement, the owner of the land may make the same. [72 v. 71, 2 8.]

SEC. 3322. [When release of right of way papers to be recorded.] When the grant of such right of way or easement is not in the form of a lawfully executed deed or lease, the recorder of the county where the land is situate shall, upon the request of the company owning such right of way or easement, record such grant in the record book of leases, and index the same; and such record, or a copy thereof duly certified by the recorder, shall be received in evidence in all courts and places, in the same manner and to the same effect as the original; but the correctness of such record or copy may be impeached by any interested party, by competent proof; and the recorder shall be entitled to the usual fee for recording such grants, and certifying copies thereof. [72 v. 71, 2 8.]

SEC. 3323. [Must erect sign-boards at road crossings.] Each company shall erect, at all points where its road crosses a public road, at a sufficient elevation from such public road to admit of the free passage of vehicles of every kind, a sign, with large and distinct letters placed thereon, to give notice of the proximity of the railroad, and warn persons to be on the lookout for the locomotive; and a company which neglects or refuses to comply with this provision shall be liable in damages for all injuries which occur to persons or property from such neglect or refusal. [50 v. 274, ? 18; S. &. C. 279.]

In an action by one injured against a railroad company, although the cause of action did not charge said company with the failure to erect a sign-board, it was held that, inasmuch as plaintiff's own testimony tended to prove contributory negligence on his part, the evidence of the omission to erect the sign-board was admissible to show that he was not guilty of contributory negligence: Railroad Co. v. Whitacre, 35 O. S. 629.

SEC. 3324. [Railroad companies must construct and maintain fences, crossings and cattle-guards.] A company or person having control or management of a railroad shall construct, or cause to be constructed and maintained in good repair on each side of such road, along the line of the lands of the company owning or operating the same, a fence sufficient to turn stock; and before operating such road shall cause to be maintained at every point where any public road, street, lane or highway, used by the public, crosses such railroad, safe and sufficient crossings, and on each side of such crossings, cattle-guards sufficient to prevent domestic animals from going upon such railroad, and such company or person shall be liable for all damages sustained in person or property in any manner by reason of the want or insufficiency of any such fence, crossing or cattle-guard, or any neglect or carelessness in the construction thereof, or in keeping the same in repair; provided, that where any road now in process of construction, or any proposed road, passes through any enclosed land that the company or person having control of any such road shall during the construction of the same, provide suitable crossings for the owner or occupant of each farm, and make and keep in repair fences along the line of such road through such enclosed fields as are necessary to keep stock within the limits of such enclosed fields, and protect any crops growing thereon; and further provided, that where the company or person agrees with the owner of the lands through which any railroad passes, that said owner shall build and keep in repair any portion of the fencing, and should said fencing be destroyed or damaged by fire from passing trains, said company or person owning or operating such road shall rebuild, or repair said fence; provided, the property holder should demand it. [1881, April 20: 78 v. 199; Rev. Stat. 1880; 71 v. 85, 2 1; S. & C. 331.]

A railroad company, like any other land proprietor, has a right to the free, exclusive, and unmolested use of its railroad track, not exempt, however, from the duty of so using its own property as to do no unnecessary injury to another, and bound, when using its property in a mode which may result in injury to another, to the exercise of due care: Railroad Co. v. Lawrence, 13 O. S. 66.

The use by a railroad company on its land, of engines and cars, running at a high rate of speed, though dangerous, is a reasonable use of land, because it is for a proper object and a highly beneficial purpose, and danger may be avoided by proper care; and a railroad company, in determining the rate of speed at which its trains shall run-such rate being otherwise reasonable and proper, in view of the object to be accomplished-is not bound to consider the increased risk to cattle running at large in the vicinity of its track, and lessen the speed on that account: Ib.

The first and paramount duty of the agents of a railroad company in charge of a train, is to watch over the safety of the persons and property in their charge on the train; subject to which, it is their duty to use reasonable care to avoid unnecessary injury to animals straying upon the road: Kerwhacker v. Railroad Co., 3 O. S. 172; Railroad Co., v. Elliott, 4 O. S. 474; Railroad Co. v. Lawrence, supra.

The servants of a railroad company, operating its train, are bound to use ordinary care to avoid injury to domestic animals trespassing on the railroad; and where such trespassing animals were killed by a train, if the servants of the company having the train in charge, by the exercise of ordinary care, and having due regard to their duties for the safety of the persons and property in their charge, could have seen such animals on the track in time to have saved them, it was their duty to have done so; and for their negligence in this respect, when the owner is not guilty of contributory negligence, the company will be liable: Railroad Co. v. Smith, 22 O. S. 227.

In an action against a railroad company to recover damages for the killing of plaintiff's horses, by means of the negligence of the servants of the company in the running and management of a locomotive and train, the engineer in charge of the locomotive at the time of such killing, who saw the horses when they came upon the track, who is shown to be acquainted with the business of running railroad locomotives and trains, and has been engaged in such business for five years, is competent to testify, as an expert, upon questions in respect to the management of locomotives and trains, and to give an opinion whether, in view of the distance between the engine and the horses, when the latter came upon the track, it was possible to avoid the injury complained of: Railroad Co. v. Bailey, 11 O. S. 333.

On the trial of such action, where the issue is upon the negligence charged, it is error for the court to refuse to charge the jury that, though the servants of the defendant may have been guilty of negligence, the plaintiff must still fail, if the jurors believe, from the evidence, that due care, if it had been used, would not have prevented the injury: Ib.

It being the duty of a railroad company, under the act of March 25, 1859 (56 v. 62), to keep its road properly fenced, it does not discharge that duty by contracting with another party to perform it, when the performance is insufficient; and the owner of stock which has escaped, through that part of a partition fence which it was his duty to maintain, but without negligence on his part, onto the

lands of an adjacent proprietor who had agreed with the railroad company to fence its road through his lands, which he had insufficiently done, and thence, because of such insufficient fences, onto the railroad track, where the stock was killed by a train: Held, that the company was liable, unless its agents managing the train used more than ordinary care to prevent the injury: Gill v. Railway Co. 27 O. 8. 240; but when the owner of land, through which a railroad passes, agrees, for a valuable consideration, with the railroad company, to build and keep up good and sufficient fences on both sides of the road through his lands, and fails to do so, and, on account of the insufficiency of such fences his animals stray upon the track, and are injured, he is not entitled to recover for such injury, although the insufficiency of the fences was caused by casualty, and without negligence on his part, unless the injury is shown to have been intentional, or the result of gross carelessness on the part of the agents and servants of the company: Railway Co. v. Smith, 26 O. S. 124; Railroad Co. v. Waterson, 4 O. S. 424.

A land-owner conveyed to a railroad company a right of way over his lands, and convenanted for himself, his heirs, and assigns, to erect and maintain a fence on each side of the right of way, and reserve the right to pass and repass over the same in such way and at such times as would not interfere with the running of railroad trains, and afterward conveyed the land in fee; and in an action by a tenant of the grantee against the company for killing his horse, which strayed onto the railroad track from the land, because no fence had ever been erected, it was held that the covenant ran with the land, and affected alike the grantee and his tenant, and that the tenant could derive no advantage from its breach, and that he could not claim from the railroad company a higher degree of care to avoid injury to his horse, being on the track through the land, than if the covenant had been kept: Easter v. Railroad Co., 14 O. S. 48.

The liability imposed by the act of March 25, 1859, supra, upon railroad companies, for damages which result to domestic animals from the want or insufficiency of fences, road-crossings, or cattleguards, or from any carelessness of the company or its agents, is not in the nature of a penalty; and the same liability for neglecting to discharge the duty to build fences, etc., imposed by that act, would have arisen by construction, and upon common law principles, if the statute had been silent on the subject; and the owner of a cow, who permitted her to run at large in violation of the act of April 13, 1865 (62 v. 185), which strayed upon the uninclosed track of a railroad company and was killed by a train, without the fault of the company or its agents in running the train, is not in a situation to demand compensation, and can not recover from the company damages for the loss of the cow: Railway Co. v. Methven, 21 O. 8. 586; but the rule is otherwise where cattle were at large without the omission of reasonable care on the part of the owner, and without his fault: Railroad Co. v. Stephenson, 24 O. S. 48.

Inclosures of railroad, as required by the act of March 25, 1859, supra, must be separate and distinct from the inclosures of adjoining proprietors; and the obligation to construct and maintain fences upon both sides of railroads imposed by that act is not limited to owners and occupiers of adjoining lands, but extends to the public generally: Railroad Co. v. Stephenson, 24 O. S. 48; and that act, and the amendments thereto, require the construction and maintenance of such fences within the limits of cities and villages where they do not obstruct streets, highways, and other public grounds: Railroad Co. McConnell, 26 O. 8. 57.

Under the act of March 25, 1859, supra, when the owner of lands adjacent to a railroad constructs and maintains a good and sufficient fence inclosing his own lands, in such manner that it may be made to answer the purpose of inclosing the railroad also, the fact that compensation was not paid for the right of way through such lands will not prevent the company from joining its fences to the fence constructed by such land-owner, so as to inclose its road: and when the railroad is already inclosed by such joining of fencing, no additional fence need be constructed between the railroad and such inclosed lands: Haxton v. Railway Co., 26 O. S. 214.

The operators of a railroad train have an unqualified right to carry a head-light upon the train at night, when necessary for the safety of the lives and property embarked upon the train; and it is error to instruct a jury that such right depends upon its exercise not endangering cattle that stray upon the track: Railroad Co. v. Schruyhart, 10 O. S. 116.

A contract by a railroad company in acquiring land for its right of way, to erect and keep up fences, is an agreement which runs with the land. Huston v. Cin. & Z. Ry., 21 O. S. 235.

The duty imposed upon railroad companies to fence their roads requires the construction and maintenance of such fences within the limits of cities and villages, where they do not obstruct the streets, highways, or other public grounds: Cleveland & Pittsburgh Ry. Co. v. McConnell, 26 O. S. 57. An action will not lie in favor of a land-owner against a railroad company to recover the cost of building a fence along the line of a railroad, where a former owner of the land, for a consideration, released the right of way over the lands and agreed to build and keep up fences on both sides of the line of the road. (Under act 71 v. 85): Warner v. Railroad Co., 31 O. S. 265.

In an action to recover damages resulting to domestic animals from the failure of a railroad company to construct and maintain good and sufficient fences along the line of its road, as required by the act of April 26, 1871 (68 v. 78), the facts upon which the company's liability depends must be stated in the petition, and if not admitted, must be established by the proof: Railroad Co. v. Wilson, 31 O. S. 555.

An allegation that the defendant was, by law, bound to fence and inclose said railroad, tenders an immaterial issue, and is not to be taken as true because not denied: Ib.