After consolidation, the new corporation thereby created may perform the conditions named in subscriptions to the capital stock of the original companies, and it may also, by the performance of the conditions, accept a continuing conditional offer to subscribe such stock: Railroad Co. Siout, 26 O. S. 241.

When a general requisition is duly made by a railroad company, during the pendency of consolidation proceedings, for the payment of subscriptions to its capital stock in monthly installments, and a consolidation becomes complete before all the installments are due, such requisition will continue in force for the benefit of the consolidated company, provided an officer authorized to receive such payments be continued at the place named in the call: and such requisition applies to conditional subscriptions as soon as the condition is performed, and to subsequent subscriptions made before consolidation is complete, as well as to subscriptions absolute at the date of the call: Ib.

Under the first section of said act, as amended May 6, 1869 (66 v. 127), it is a condition prec-dent to the right to enter into an agreement for consolidation that the lines of road of the contracting corporations be first made, or be in progress of construction: and a conditional subscriber, who had no knowledge of the progress of consolidation, and in no way contributed ther to, may, in an action by the new company as successor to the old, to recover the amount of his subscription, dispute the corporate existence of the plaintiff, on the ground that at the date of the agreement to consolidate the road of the company, to the stock of which he had subscribed, was neither made nor in process of construction: Ib.

Two railroad companies owning lines of railroad connected only by other railroads which such companies hold by lease, are not authorized to become consolidated into one corporation, under 3379 of the Revised Statutes: State v. Vanderbilt, 37 O. S. 590. Johnson and Longworth, JJ. dissented.

The lines of two railroad companies which are in their general features parallel and competing, can not be connected for the carriage of freight and passengers over both "continuously," within the meaning of 3379 of the Revised Statutes: and hence such companies can not become consolidated into one corporation under that section: Ib. White and McIlvaine, JJ., expressed no opinion.

SEC. 3380. [Consolidation of domestic with foreign railway corporation.] A company organized in this state for the purpose of constracting, owning and operating a line of railway, or whose line of road is made or is in process of construction to the boundary line of this state, or to any point either in or out of the state, may consolidate its capital stock with the capital stock of any company in an adjoining state, organized for a like purpose, and whose line of road has been projected, constructed or is in process of construction to the same point where the several roads so united and constructed will form a continuous line for the passage of cars; and roads running, or to be constructed to the bank of a river which is not bridged, or to the tacks and property of a union depot company, the use of which is enjoyed by either of the companies so proposed to be consolidated, shall be held to be continuous under this section. [1885, April 22: 82 v. 150; Rev. Stat. 1880; 74 v. 71, 1; S. & C. 280; S. & C. 327; 1890, April 18: 87 v. 219.]

SEC. 3381. [] [Proceedings to effect such consolidation.] The consolidations shall be made under the conditions and restrictions following:

1. The directors of the several companies may enter into a joint agreement, under the corporate seal of each company, for the consolidation of the companies, and prescribing the terms and conditions thereof, the mode of carrying the same into effect, the name of the new company, the number of directors and other officers thereof, and their places of residence, the amount of the capital stock of the new company agreed upon, the number of shares of capital stock, the amount of each share, and the manner of converting the capital stock of each of the constituent companies into that of the new company, with such other details as they may deem necessary to perfect the new organization and the consolidation of the companies.

2. The agreement shall be submitted to the stockholders of each of the companies, at a meeting thereof called separately for the purpose of taking the same into consideration; due notice of the time and place of holding such meeting, and the object thereof, shall be given by written or printed notices addressed to each of the persons in whose names the capital stock of the company stands on the books thereof, and also by a like notice published in some newspaper in the city or town where such company has its

principal office or place of business; provided, that in case all the stockholders are present at such meeting, in person or by proxy, such notice may be waived in writing. At the meeting of stockholders the agreement of the directors shall be considered, and a vote by ballot taken for the adoption or rejection of the same, each share of stock on which has been paid all the installments called for by the board of directors, entitling the holder thereof to one vote; the ballots shall be cast in person or by proxy, and if two-thirds of all the votes cast at the meeting be for the adoption of the agreement, that fact shall be certified thereon by the secretary of each of the companies, and the agreement so adopted, or a certified copy thereof shall be filed in the office of the secretary of state. And all consolidation agreements heretofore entered into and ratified by such companies substantially in manner as in this section prescribed, shall be as valid as if entered into and ratified by virtue of this section. [1885, April 22: 82 v. 150; Rev. Stat. 1880; 74 v. 71, ? 2; S. & C. 280; S. & C. 327.]

For laws providing for the cure of defects in consolidation agreements (79 v. 126; 84 v. 3; 84 v. 29, see 8516-23, 8516-24, 8516-25).

A certificate made by the directors of consolidating railroad companies, under 3381 of the Revised Statutes, which fails to show any place of residence of the directors of the new company, is fatally defective: State v. Vanderbilt, 37 O. S. 590.

SEC. 3382. [Effect of the agreement to consolidate.] When the agreement is made and perfected, as provided in the preceding section, and the same or a copy thereof filed with the secretary of state, the several companies parties thereto shall be deemed and taken to be one company, possessing within this state all the rights, privileges and franchises, and subject to all the restrictions, disabilities and duties of a railroad company. [53 v. 143, 3; S. & C. 327.]

On the subject of filing articles of agreement of consolidation with the secretary of state, and the effect of the same, see 2 148a.

Legislation later than the old companies, but earlier than the consolidation, governs the consolidated company: Shields v. State, 26 O. S. 86. Affirmed in Shields v. Ohio, 95 U. S. Supreme Court 319. Fild and Strong, JJ. dissented.

As to power to receive subscriptions, see Railroad Co. v. Brown, 26 O. S. 223; Railroad Co. v. Stout, 26 O. S. 241.

The effect of the Ohio consolidation act was to merge the old corporations into the new one, which took their place, succeeded to their property, and assumed their liabilities: Wabash, St. Louis & Pacific Railroad Co. v. Ham, 114 U. S. Supreme Court 595.

SEC. 3383. [Election of directors of consolidated company.] The stockholders at the meeting called to take into consideration the agreement, shall, after the adoption of the same, appoint a time and place for the election of the directors and other officers of the new company, notice of which shall be given by the secretary of each of the companies in some newspaper printed, or of general circulation at the place of the principal office of each company, at least three weeks previous thereto; provided, that if at such meeting all the stockholders of the constituent companies are present, either in person or by proxy, they may, in writing or by resolution, waive such notice, and consent to hold such meeting and election at any time, which election shall be conducted in such manner as may be prescribed by the stockholders at such meeting. [1885, April 22: 82 v. 150, 151; Rev. Stat. 1880; 53 v. 143, 24; S. & C. 328.]

The election of directors for the new company, at a meeting of the stockholders held under? 3383 of the Revised Statutes, will not justify the appointment of a receiver of either of the companies, because part of the stockholders had been inhibited from so doing by a previous injunction: Railway Co. v. Jewett, 37 O. S. 649.

SEC. 3384. [Property of the old companies vests in the new.] Upon the election of the first board of directors of the company created by the agreement of consolidation, all and singular the rights, privileges and franchises of each of the companies to the agreement, and all the property, real, personal and mixed, and debts due on account of subscriptions of stock, or other things in action, shall be deemed to be trans

ferred to and vested in such new company, without further act or deed; all property, rights of way, and other interests, shall be as effectually the property of the new company as they were of the companies parties to the agreement; the title to real estate, either by deed, gift, grant, or by appropriations under the laws of this state, shall not be deemed to revert or be impaired by reason of the consolidation; but all rights of creditors, and all liens upon the property of either of such companies, shall be preserved unimpaired, and the respective companies may be deemed to be in existence to preserve the same; and all debts, liabilities, and duties of either of said companies, shall thenceforth attach to the new company, and be enforced against it to the same extent, as if such debts, liabilities and duties had been contracted by it. [53 v. 143, 2 5; S. & C. 328.

As to rights of bondholders of the old companies, and the liability of the consolidated company to such bondholders, see Compton r. Railway Co, 45 O. S. 592.

See note to Railroad Co. v. Hinsdale 45 0. S. 56, under 21⁄2 300, 3403.

Consolidated company liable for tort of original company: Railroad Co. v. Fullbright (Ham. Dist. Court), 7 W. L. B. 187.

The liability imposed by statute upon the new corporation for the debts of the old ones is the same as that of the old ones, neither greater nor less. The provisions of this section clearly dis tinguish debts secure 1 by lien from debts not so secured, and indicate no intention to create a new lien in favor of creditors who before had none, but simply preserve to each class of creditors the rights belonging to it before the consolidation: Wabash, St. Louis & Pacific Railroad Co. r. Ham, 114 U. S. Supreme Court 595.

SEC. 3384a. [Consolidated companies may dispose of stock and bonds acquired by consolidation.] That any consolidated railroad company formed by the consolidation of a railroad company or companies created by or existing under the laws of this state and any other state or states, with a railroad company or companies of this state or of any other state, may take, hold, pledge or otherwise dispose of under such terms and agreements as the board of directors of such consolidated railroad company may prescribe, the stock and bonds of any other company acquired upon consolidation or received by virtue of any purchase or lease or operating contract heretofore or hereafter made or executed, and may maintain and operate any railroad purchased under authority of law, and may lease or contract to operate any part or all of a railroad constructed or in the course of construction by another company of this state, or of any other state, if the line of road covered by such lease or operating contract is connected with the line of road of such consolidated railroad company, upon such terms as may be agreed upon between the companies. [1890, April 11, 87 v. 183.]

SEC. 3384b. [Consolidated company may issue its own stock in lieu of purchase money.] Whenever any consolidated railroad company described in the next preceding section of this act, is in po-session of or operating in connection with or extension of its own railroad line or lines, any other railroads or railroad in this state or in any other state or states under any purchase, conveyance, lease, contract, or agreement, such consolidated railroad company may take a surrender or transfer of the whole or any part of the capital stock of the company conveying, leasing, or owning such railroad, from any one or more stockholder or stockholders, and issue in exchange therefor the like additional amount of its own capital stock at par, or on such other terms and conditions as may be agreed upon by the directors of the consolidated railroad company; and when ever the whole of the said capital stock shall have been so surrendered or transferred, and a certificate thereof filed in the office of the secretary of state, under the common seal of the consolidated railroad company to whom such surrender or transfer shall have been made, the estate, property, rights, privileges and franchises of the said company whose stock shall have been so surrendered or transferred, shall thereupon vest in and be held and enjoyed by the said consolidated railroad company to whom such surrender or transfer shall have been made, as fully and entirely, and without change or diminution, as the same were before held and enjoyed, and be managed and controlled by the board of directors of the said consolidated railroad company to whom such surrender or transfer of the said stock shall have been made, and the two companies shall thenceforth be

consolidated and be one company under the corporate name of such consolidated railroad company, without any other formalities or proceedings whatever; but nothing herein contained shall relieve the said consolidated company from paying the fee specified in paragraphs two (2) and three (3) of section 148% of the Revised Statutes, as amended February 12, 1889. The rights of any stockholder not so surrendering or transferring his stock, shall not be in any way affected hereby, nor shall existing liabilities or the rights of creditors of the company, where stock shall have been so surrendered or transferred be in any way affected or impaired by the provisions of this section. [1890, April 11, 87 v. 183.]

SEC. 3385. [Principal office.] The new company shall, as soon as convenient after the consolidation, establish a principal office at some point in this state on the line of its road, and may change the same at pleasure; but public notice of such establishment or change shall be given in some newspaper. But this section and the other laws of this state respecting the residence of directors of corporations and the keeping of a principal or general office and the records of corporations, shall not apply to consolidated railroad companies formed by the consolidation of a railroad company or companies created by or existing under the laws of this state and any other state or states, with a railroad company or companies of this state or of any other state; and the election for directors of such consolidated railroad companies may be held at the principal office of the company, whether located in this state or in any other state under the laws of which the said consolidated railroad company may have been created; provided, however, that at least two of the directors of such consolidated railroad company shall be residents of this state, and that a general office of the company shall be maintained at some place within this state, of which notice shall be given as aforesaid. [1890, April 11, 87 v. 183.]

SEC. 3386. [Actions against new company.] Suits may be brought and maintained against the new company in the courts of this state, for all causes of action, in the same manner as against other companies. [53 v. 143, ? 7; S. & C. 328.]

SEC. 3387. [Taxation of road partly in this state.] That portion of the road of such consolidated company in this state, and all its real an 1 personal property, shall be listed for taxation and taxed in the same manner as the road and property of other railroad companies in this state; and to ascertain the proportion of the rolling machinery subject to taxation in this state, the officer listing the same shall ascertain the value of all the rolling machinery of the company, and return a sum bearing such proportion to the value of the whole, as the length of the line of such road in this state bears to the length of the whole line. [53 v. 143, 2 8; S. & C. 328.]

The shares of stock of such company held in Ohio are subject to taxation here: Lee, Treas., v. Sturges; Insurance Co v. Ratterman, Treas., 46 O. S. 153.

SEC. 3388. [Stockholder refusing to consolidate may demand value of stock, which, if refused, may be submitted to arbitration.] A stockholder who refuses to

convert his stock into the stock of the consolidated company, shall be paid at least the actual value of such stock, to be ascertained, not alone from its market value previous to the making of such agreement for consolidation by the directors, but from a consideration of the earning capacity of the road, in which such stock is held, without reference to such proposed consolidation, condition of said road, betterments, cars and other property, its existing connections, and any other facts tending to increase or diminish the value of the stock, such payment to be made before the consolidation takes effect; and if a stockholder refusing to consolidate, and the board of directors desiring to consolidate, cannot agree as to the value of such stock, the parties my submit the question to arbitration, which arbitration shall be conducted in accordance with the law regulating arbitrations, so far as the same may be applicable, except that the arbitrators, in the discharge of their duties, shall also have the power to personally inspect the road-bed, fixtures, betterments, books and other property of the company, by three disinterested persons, to be appointed upon the motion of either of the parties, by the judge of the court of common pleas of the county in which the person owning the stock resides, or in case he is a non

resident of any county, through, or into which the road passes, then in any county in the state into or through which the road passes. But either party may appeal from the decision or award of the arbitrators to the court of common pleas of the county in which the arbitration is held, unless, previous to the arbitration, the parties agree in writing to abide by such award, by giving bond, within thirty days after the award is made, with surety to be approved by the clerk of the court, and conditioned as in other cases of appeal, in an amount to be fixed by the court or a judge thereof. In case of appeal by the company, the amount of the appeal bond shall not be less than the value of the stock, as found by the arbitrators. The question of the actual value of such stock, when appealed to the common pleas court, shall be tried by a jury as other questions of fact; unless both parties waive such trial by jury and consent to trial by the court. [1890, April 4, 87 v. 159.]

SEC. 3389. [When arbitrators to be appointed by a judge.] If a person so refusing to convert his stock refuse to submit the question to arbitration, the proper judge shall, upon the application of any director of either of the companies desiring to consolidate, appoint the arbitrators, who shall proceed to ascertain the value of the stock the same as if the question had been submitted by the consent of both parties, and if the party owning the stock refuse to receive the amount awarded in any case, the company may deposit the same with the clerk of the court of common pleas of the county in which the arbitration is held, which deposit shall authorize the parties to proceed to consolidate without further payment to such stockholder. [53 v. 143, § 10; S. & C. 329.]

SEC. 3390. [Notice to be given of application for such appointment.] In all such cases of arbitration the party desiring the arbitration shall give the opposite party at least ten days' notice of his intention to apply to the judge for the appointment of arbitrators, which notice shall be served in the same manner as is provided for the service of a summons, and shall specify the time and place of the hearing of the application; and in cases of non-residents the notice shall be by publication, for four consecutive weeks, in some newspaper printed in the county. [53 v. 143, 11; S. & C. 329.]

A copy

SEC. 3391. [Effect of the agreement of consolidation as evidence.] of the agreement and act of consolidation, duly certified by the secretary of state, shall be received in the courts of this state as prima facie evidence of the existence of the several companies parties to the agreement, prior to and at the time of the execution of the agreement, of the consolidation of the companies, as specified in the agreement, that such consolidation was authorized by the laws of the several states within which the several companies were chartered, and into which the consolidated road extends, and of all and singular the facts, statements, and covenants set forth and recited in the agreement and act of consolidation, and in the certificates indorsed thereon. [55 v. 8, 1; S. & C. 329.]

SEC. 3392. [In actions against new company certain proof dispensed with.] It shall not be necessary to produce or prove the charters of the companies parties to such consolidation, the laws of the several states under and by virtue of which such consolidation was effected, or the original articles of consolidation, in any suit brought to charge such consolidated company with any liability of either of the companies parties to the act of consolidation, any law or custom to the contrary notwithstanding. [55 v. 8, 22; S. & C. 330.]

REORGANIZATION.

SEC. 3393. [When proceedings for reorganization may be had.] When proceedings are pending in any court for the sale of the road of a company, under a mortgage or deed of trust, and two-thirds in interest of the creditors and two-thirds in interest of the stockholders of the company agree in writing, upon a plan for the readjustment or capitalization of the debt and stock of the company, the court shall render judgment against the company for the amount due and in arrear upon such securities, which judgment shall, from its rendition, become a lien on all the property embraced in such