securities, and upon all the franchises and powers of the company, including its franchise to be and act as a corporation, conferred by the charter and the amendments to the charter of the company; and upon a sale had under such judgment, and a purchase at such sale by trustees, on behalf of the parties to such agreement, appointed by the agreement, all the property so bound by the judgment, including said franchises, shall vest in such trustees; but every such agreement shall provide that the unsecured debts of the company, incurred for repairs or running expenses, shall be paid in money, or bonds of the reorganized company of the highest class issued, as hereinafter provided; and a copy of the agreement shall be filed in such court, before the rendition of the judgment. [58 v. 70, 21; S. & S. 127.]

SEC. 3394. [Meeting of creditors, and proceedings thereat.] The trustees shall, as soon as practicable after the sale, call a meeting of the parties to the agreement by a notice signed by a majority of the trustees, or of their survivors, and published not less than once a week, for four consecutive weeks, in a newspaper printed in the cities of New York and Philadelphia, and in a newspaper printed in each county on the line of the railroad, specifying the day, place, and object of such meeting-the place to be on the line of the road; at such meeting each of the parties to the agreement shall be entitled to vote according to the provisions thereof, but not exceeding one vote for every fifty dollars of the par value of the debt or stock of such party, according to a list of voters and of their respective interests, which shall be prepared by the majority of the trustees, who are empowered to act as judges of the election; such meeting, by a majority in interest of the persons present, in person or by proxy, shall be competent to retain or change the name of the company, to decide, for the time being, the amount of its capital, and the number of shares into which such capital shall be divided, to fix the number of directors, and their term of office, to elect such directors, a majority of whom shall be residents of the state or states in which such railroad is situate, and to do all things necessary or proper to reorganize the company; but any creditor shall be entitled to become a party to the agreement aforesaid, either at or any time before the meeting in this section provided for, and any stockholder shall be entitled to become a party to such agreement at any time within one year after such meeting. [58 v. 70, 2; S. & S. 127.]

When a railroad company reorganizes under the act of April 11, 1861 (58 v. 70), and in the agree ment therefor it is stipulated that certain bonds of the original corporation,shall be assumed by the new company, and the holders thereof entitled to vote at all meetings of stockholders, upon conditions specified, which are performed, the new company becomes liable to pay the bonds and the holders thereof entitled to vote, without further action on the part of the new company: State v. McDaniel, 22 O S. 354.

SEC. 3395. [What must be certified to the secretary of state.] A certificate, under the common seal of the company, specifying its name, and the railroad which it is to hold, maintain and operate, shall be filed in the office of the secretary of state; and a copy of such certificate duly certified shall, in all courts and places, be evidence of a compliance with all the conditions and provisions of the two preceding sections, and of the due reorganization and existence of the company. [58 v. 70, 23; S. & S. 128.]

SEC. 3396. [The property and powers of the new company.] Upon such reorganization, and a conveyance of the trustees, or of such of them as shall be vested with the legal title, or their survivors, all the railroad and other property and franchises and things purchased as aforesaid, and all the franchises, powers, faculties, privileges and immunities which were possessed or enjoyed by the original company, or by any company with which it had been consolidated, shall pass to and be vested in the company as reorganized; and the same, and all property and things which the reorganized company shall thereafter acquire, except as hereinafter provided, shall be taken, held and disposed of for the use and benefit of the creditors and stockholders of the company, who shall have become such upon and after such reorganization, according to their respective rights,

but subject to the powers of the company, and shall be in no wise chargeable in respect to any debt, liability, or claim of any creditor or stockholder which subsisted prior to the sale and reorganization herein provided for, but all property of the original company not embraced in the sale shall, upon the reorganization, be vested in the company as reorganized, in trust for all parties interested therein as creditors, stockholders, or otherwise. [58 v. 70, 4; S. & S. 128.]

SEC. 3397. [Further powers of the new company.] Such company shall likewise have power, at any time within six months after the organization, to assume such debts or liabilities of the original company, and to make such adjustments or exchanges with any bondholder of the original company, and, within one year, with any stockholder, as it may deem expedient, and may use for such purpose any bonds or stock which it may be authorized to issue or create; and it may make and issue such bonds, payable at such times and places, and bearing such rates of interest not exceeding six per centum per annum, as it may deem expedient, and may secure the payment of any bonds which it may issue or assume to pay, by mortgages or deeds of trust of its railroad, or any other of its property, real or personal, and may include therein with its road all its cars and other rolling-stock and equipments, and any machinery, tools, implements, fuel, materials and all other things then held or thereafter acquired for constructing, operating, or repairing the road, or for repairing or replacing any of its equipments or appurtenances, as a part and parcel of the road, and as constituting with the road one property, and may include in such mortgages or deeds of trust all franchises held by the company, and connected with or related to the road, and all other corporate franchises of the company, all which franchises, including the franchise to be a corporation, in case of sale by virtue of any such mortgage or deed of trust, or of any judgment specified in the next section, are hereby declared to pass to the purchasers, so as to enable them to reorganize the company in the manner hereinbefore provided; and such company may issue capital stock to such aggregate amount as it may deem proper, not exceeding any limit which may be fixed by agreement with the trustees purchasing as aforesaid, and may establish preferences in respect to dividends, in favor of any class of the stock, in such order and manner as it may deem expedient, not exceeding such limit as may be fixed by agreement as aforesaid; and may, if authorized by the agreement, confer on holders of any bonds which it may issue or assume to pay, such rights to vote at all meetings of stockholders, not exceeding one vote for every fifty dollars of the par amount of the bonds, as may have been provided for in the agreement, which rights, when once fixed, shall attach to and pass with such bonds, under such regulations as the by-laws may prescribe, to the successive holders thereof, but shall not subject the holder to any assessment by the company, or to any liability for its debts, or entitle any holder to dividends. [58 v. 70, 5; S. & S. 128.]

SEC. 3397a. [Issue of stock or securities by companies organized or reorganized under agreements; terms of such agreements to appear on stock and securities issued; rights of holders.] In all cases of railroad companies heretofore or hereafter organized or reorganized under the laws of Ohio, wherein the organization or reorganization agreement provides and stipulates that any class of creditors, bondholders or stockholders of the original company, shall in any wise be restricted or limited, in participation in profits or dividends, or in respect to liens or the right to vote as the holders of stock or securities in said reorganized company, the said reorganized company, its directors and officers, shall issue the certificates of stock or securities into which the original stock, securities or debt may be convertible, bearing upon the face of each, plainly and distinctly set forth, such restrictions or limitations, so that purchasers may be advised of the terms thereof, and all holders of stock or securities created under such reorganization agreements, shall hereafter have only such restricted or limited rights, liens, participation in profits, dividends and right to vote thereon, as may be in such agreements, certificate of stock or securities provided and set forth. [1887, March 19: 84 v. 142.]

SEC. 3398. [Lien of mortgages, etc.] The lien of the mortgages and deeds of trust authorized to be made by the preceding section shall be postponed to the lien of

judgments recovered against the company, after its reorganization, for labor thereafter performed for it, or for materials or supplies thereafter furnished to it, or for damages, losses, or injuries thereafter suffered or sustained by the misconduct of its agents, or in any action founded on its contracts or liability as a common carrier thereafter made or incurred. [58 v. 70, 2 6; S. & S. 129.]

SEC. 3398a. [Lien for labor performed for railroad company.] That in all actions now pending or hereafter commenced in any of the courts of this state, either as original actions, or as proceedings in error against any railroad corporation now existing or hereafter created, or any foreign railroad company operating and carrying on business in this state, when such action is for the purpose of recovering judgment against said corporation, for labor performed for it, or for materials or supplies furnished to it or for damages or losses, or injuries suffered or sustained by the misconduct of its agents, or in any action founded on its contracts or liabilities as a common carrier made or incurred, which action, by virtue of statutory enactment, or upon principles of equity, would, when reduced to judgment, become a lien upon the property of such corporation prior in law or equity to the lien of any mortgage or deed of trust authorized to be made by any of the statutes of this state, such judgment shall be and remain a prior lien upon such railroad property, notwithstanding any sale or conveyance of such property by virtue of any judgment or decree of foreclosure founded upon a breach of the terms and conditions of any such mortgage or deed of trust. [1882, February 17: 79 v. 11.]

On the subject of liens, with reference to railroads, see 3207 et seq., and the act of March 20 1889, 86 v. 120, 3231-1, et seq.

SEC. 3398b. [How such lien enforced.] That the party prosecuting such action. in order to avail himself of the provisions of section three thousand three hundred and ninety-eight (a) of this act, shall, before the day fixed for the sale of the property of any such railroad under any judgment or decree of foreclosure and sale, file with the clerk of the court wherein such judgment or decree of foreclosure and sale was rendered, a notice in writing, setting forth the title of his action, the court wherein pending, the amount of his claim, the date from which he claims interest thereon, the probable amount of costs, and that he claims that the judgment by him sought to be recovered would, when obtained, become a lien prior in law or equity to the lien of the judgment or decree of foreclosure and sale. That he shall also before the day of sale, or at the time thereof, serve a certified copy of such notice upon the officer or other person making such sale, who shall, before offering said property for sale, read such notice publicly at the time and place of sale, and shall, with his return of such sale, return such certified copy of notice with the indorsement of his proceedings thereunder upon the same, to the court. [1882, February 17: 79 v. 11, 12.]

SEC. 3398c. [In case of sale, court to retain amount of lien.] That the court, on the return of the officer or other person making such sale, before confirming the same and ordering distribution of the funds arising therefrom, shall retain in its custody or under its control, a sufficiency of such proceeds applicable to distribution to the claimants under the liens of the mortgage or deed of trust, to satisfy any judgment which may be recovered in the action provided for in section three thousand three hundred and ninety-eight (a) of this act, when ended and determined. [1882, February 17: 79 v. 11, 12.]

SEC. 3398d. [What to be done in case judgment recovered.] That within sixty days after the determination of the action referred to in section three thousand three hundred and ninety-eight (a), the party claiming such priority of lien, if he shall have recovered judgment against said railroad company, shall file his answer and cross-petition in the action pending in the court holding the fund as provided in section three thousand three hundred and ninety-eight (a), setting forth his legal and equitable claim thereto, and such court shall make the proper orders necessary to the determination of the questions of priorities and distribution of the retained fund, as in section three thousand three hundred and ninety-eight (c) provided. [1882, February 17: 79 v. 11, 12.]

SEC. 3399. [These provisions applicable to certain other companies.] The provisions of the seven preceding and the next succeeding sections shall extend and apply to companies whose railroads are partly within and partly without this state; a company of this state, possessing such a railroad, shall have capacity to exercise without this state all its power-, privileges, faculties and franchises; a corporation of another state possessing a railroad which is partly in such other state and partly within this state, may exercise and enjoy within this state all its powers, privileges, faculties and franchises for the purpose of such railroad and its business, not inconsistent with the laws of this state; and all mortgages and deeds of trust made by such corporation upon its railroad, equipments, or other property within this state, shall operate in the same manner and with the like effect as herein before provided with respect to companies so reorganized; but such part of the railroad as is within this state shall be subject to taxation, and to all regulations of law, in the same manner as railroads of this state in like cases, and the corporation owning the same shall be subject to all duties in respect thereto imposed by law, and may sue and be sued in all cases and in the same manner as a company of this state might sue or be sued. [58 v. 70, ? 7; S. & S. 129.]

SEC. 3400. [The property mortgaged may be sold without appraisement.] Railroads and other property mortgaged therewith by such company may, if the court deems it expedient, be sold without appraisement, at judicial sales under judgments upon such mortgage; but in such case, in order to prevent sacrifices and protect the interests of all concerned, the court shall fix a minimum sum below which no such sale shall be made; and, in order to fix that amount, the court may, if it deems it expedient to do so, refer the subject to a master, with instructions to take testimony, and report the sum. [58 v. 70, 2 8; S. & S. 130.]

SEC. 3401. [When creditors of companies may agree on capitalization.] When judicial proceedings are pending in any court sitting in this state for the sale of any railroad, and the same is in the hands of a receiver appointed by such court, two-thirds in interest of each class of mortgagees, or holders of the bonds issued under a mortgage, and two-thirds in interest of all other classes of creditors of such company, and the owners of two-thirds of the shares of the stock thereof, may agree in writing upon a plan for the adjustment of such indebtedness, by capitalization or otherwise. [60 v. 55, ? 1; S. & S. 126.]

This section, in so far as it applies to debts of a railroad company contracted before its passage, is invalid as against creditors not consenting to the plan of adjustment: Mather v. Tunnel Co., 3 C. C. 284.

SEC. 3402. [Secretary of state to publish notice of the agreement.] When such agreement is made, and filed in the office of the secretary of state, he shall cause public notice thereof to be given in a newspaper of general circulation published in each of the cities of Columbus, Cincinnati and Cleveland, and also in a newspaper of general circulation published in each of the counties through or in which the road is located, which publication shall be made immediately after the agreement is filed, and be continned for six consecutive weeks, and the cost thereof shall be paid by the company. [60 v. 55, 22; S. & S. 126.]

SEC. 3403. [Other creditors may sign the agreement.] A duplicate of the agreement shall be kept at the principal office of the company; and all persons in interest, not parties thereto, shall be at liberty, for the period of four months from and after the date of the first publication, to appear and become a party to such agreement, either in person or by proxy, by signing the same, and thereby secure the benefits thereof. [60 v. 55, ? 3; S. & S. 126.]

SEC. 3404. [Rights of those who do not sign.] All persons in interest who fail to become parties to the agreement within the time aforesaid shall thereafter be entitled to the same rights, interest, and estate, remedy, liens, and action, and none other which parties in interest of like class and amount who signed the agreement obtained by, through, and under the agreement; but if any person in interest neglect and fail for the

period of six years after the publication of the notice mentioned in section three thousand four hundred and two, to apply at the principal office of the company, either in person or by proxy, to become a party in interest in the agreement, such person, unless an infant, a married woman, or insane shall be barred of all interest, claim, right, or action under the agreement, or otherwise; and in case of such disability the rights above enumerated shall be extended for the period of two years after the termination of the disability, [60 v. 55, 4; S. & S. 126.]

SEC. 3405. [When the court to make order touching costs] When the agreement is made, filed, and notice thereof given, and proof thereof made, or offered to be made, in the court in which the proceedings are pending the court shall dismiss the proceedings; but the court may make such order or decree touching the costs and expenses thereof as it may deem just and proper. [60 v. 55, 25; S. & S. 126.]

SEC. 3406. [Agreement may be between each interest and the company.] The agreement shall not be required to be between the several interests hereinbefore specified, but may be between each interest separately, and the railroad company. [60 v. 55, 17; S. & S. 127.]

SEC. 3407. [When the road is used by two companies.] If the railroad involved in such judicial proceedings is used, in whole or in part, by such company in common with any other railroad company, on the same track, between any points on the line common to both, and within the limits of the termini established by the charters of both companies, the company owning the railroad, if the same can be done without impairing the usefulness thereof to it, may lease for a period of years, for an annual rent, or sell for a fixed sum, to the company to which the line of road, in whole or in part, is common, an undivided interest in the same, upon such terms and conditions as may be agreed upon; and such lease or sale shall be reported to and approved by the court, and when so made and approved, the lessee or vendee thereof shall hold the same free from any previous lien which had been put thereon. [60 v. 55, 28; S. & S. 127.]

Where a tenancy in common has been created between two railroad c mpanies under this provision, partition can not be compelled, either under the statute in relation to partition or in equity; Railroad Co. v. Railroad Co., 38 O. S. 614.

SEC. 3408. [When stock or bonds are held in a fiduciary capacity.] When any portion of the stock or bonds of a company is held by the state, or a county, township, city, village, or other Launicipal corporation, or by an executor, administrator, or a guardian, or otherwise in a fiduciary capacity, the governor, county commissioners, township trustees, council, or other authority of the municipal corporation, or person holding in a fiduciary capacity, may become parties to any agreement for the reorganization of such company, and may control, exchange, or manage such stock or bonds according to the terms of the agreement, and take and receive new stock or bonds to be issued in lieu of the original stock or bonds, which shall be held on the same terms, and subject to all liens, which attached to the original stock or bonds. [58 v. 70, 29; 60 v. 55, 26; S. & S. 126; S. & S. 130]

PRIVATE SALES OF ROADS.

SEC. 3409. [When a company may sell its road-bed, etc.] A company, owning in whole or in part any road-bed and right of way for a railroad within this state, including those acquired by purchase at judicial sale, which, from lack of means, or other cause, is unable to complete the construction of its proposed line of road thereon, may sell, assign, and transfer the same, or any part thereof, to any other company incorporated under the laws of this state, with authority to construct and operate a railroad over the same route, or any part thereof, which transfer shall include all work done upon such line of road, together with all material furnished therefor, not exempted by the terms of the grant, with all right[s], privileges, and easements, as fully as the same are or may be possessed by the company making the same, and shall to the same extent, vest