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of incorporation in the office of the secretary of state, for the purpose of purchasing depot grounds, and locating, constructing and maintaining a common or union stationhouse and passenger depot, and a union railroad by two or more tracks connecting the railroads of such companies for business purposes. [65 v. 63, 21; S. & S. 122.]

SEC. 3447. [The articles of incorporation.] The articles of incorporation shall specify

1. The name assumed by such company.

2. The names of the companies, and the city, village, or town where such depot and connection tracks are proposed to be constructed.

3. The amount of capital stock necessary to obtain a site and construct and maintain such depot and tracks.

The articles, signed by the presidents in behalf of the companies, with the corporate seals of the companies annexed thereto, shall be forwarded to the secretary of state, who shall record and preserve the same in his office; a copy thereof, duly certified by the secretary of state, shall be evidence of the existence of such company; and thereafter such company may contract and be contracted with, sue and be sued, locate and take releases of right of way and depot grounds, and appropriate so much land as may be necessary for such depot and tracks. [65 v. 63, 1; S. & S. 122.]

SEC. 3448 [Stock owned in equal proportion; powers.] The companies whose boards of directors authorize the filing of the articles of incorporation, or assent thereto, shall each be held to own and be liable to pay an equal proportion of the capital stock; and the provisions of section three thousand two hundred and eighty-one, shall be applicable to such company. [65 v. 63, 22; S. & S. 122.]

SEC. 3449. [Who to be directors of the company.] The president of each company which enters into such arrangement shall, ex-officio, be a director in the union company, unless the board of directors of such company appoint some other person as director; all questions which affect pecuniary liabilities and expenditures shall require the concurrence of two-thirds of ali the directors; all officers, agents, and employes of the union company shall be appointed by the concurrence of all the members of the board, and may be discharged by any two members thereof, and the board shall keep a record of its proceedings, which shall be open to the inspection of the stockholders and directors of the companies. [65 v. 63, 23; S. & S. 122.]

SEC. 3450. [By-laws, rules and regulations.] The board may pass by-laws, rules and regulations, not inconsistent with the charters of the companies, for its government, and for the regulation of the depot, depot grounds and the business thereof, and shall appoint such officers and agents as may be necessary; it shall adopt, and post conspicuously in the passenger house, such rules and regulations as will control the conduct of all runners, solicitors, hackmen and drivers of vehicles; and the officers and agents of the company shall have the same authority to arrest and bring to justice pickpockets, thieves and persons who violate the public peace, and persons who violate any such rules and regulations so posted, and persons who commit crimes and misdemeanors while on the depot grounds, as constables have by law within their respective townships [65 v. 63, 23; S. & S. 122.]

SEC. 3451. [Liability of the several companies.] The several companies represented by the union company shall be jointly liable to the public, and all persons who contract with the union company, for all contracts made and damages caused by the union company; and, as between themselves, shall be liable to each other in the proportion of the interest of each in the union property, and for all damages, cost and expenses which arise from the fault or neglect of their respective officers and employes. [65 v. 63, 24; S. & S. 123.]

SEC. 3452. [Certain laws applicable to such companies.] All laws for the protection of railroads and their property, and relating to or enforcing the duties and obligations of officers, agents and employes of railroad companies to the public and to railroad.

companies, or to either, shall be applicable to the railroad tracks, property, officers, agents and employes of such union company. [65 v. 63, ? 5; S. & S. 123.]

SEC. 3453. [Guaranty and sale of obligations.] The stockholders of such company may guarantee the payment of any notes or bonds the company lawfully issues, and it may dispose of the same at such rate of premium or discount as the directors may deem best for its interests. [65 v. 191, 2 1; S. & S. 123.]

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For "an act to prevent trespass by the employes of telegraph companies and other persons, and prescribing the penalty therefor." (82 v. 166, see 6881-1.)

For" an act to facilitate the construction of the electric telegraph." (45 v. 34, see 8035-227 et seq.)

For an act to authorize the construction of lines for conducting electricity for light and power." (83 v. 143, see 8035-233 et seq.)

SEC. 3454. [Powers of companies.] A magnetic telegraph company heretofore or hereafter created may construct telegraph lines, from point to point, along and upon any public road, by the erection of the necessary fixtures, including posts, piers and abutments necessary for the wires; but the same shall not incommode the public in the use of such road. [50 v. 274,2 47; S. & C. 299.]

See note to State ex. rel. etc. r. Telephone Co., 36 O. S. 297, under 3471.

The construction and maintenance of a telegraph or telephone line upon a highway, is a new and additional burden upon the fee, to which, when the highway was established, it was not contemplated it should be subjected, and for which the owner is entitled to additional compensation: Smith . Telegraph Co., 2 C. C. 259.

When such company constructs such line upon the highway, during the pendency of an action to enjoin them from so doing, against the objection of the owner, and without first acquiring the right so to do by contract with the owner, or otherwise, a court of equity will order the same removed: Ib.

SEC. 3455. [Powers of telegraph companies; unlawful to contract for exclusive right of way.] Any such company may construct, own, use and maintain any line or lines of magnetic telegraph whether described in its original articles of incorporation or not, and whether such line or lines are wholly within or partly beyond the limits of this state, and may join with any other company or association in conducting, leasing, owning, using or maintaining such line or lines upon such terms as may be agreed upon between the directors or managers of the respective companies; and such companies may

own and hold any interest in any such line or lines or may become lessees of such line or lines, upon such terms as may be agreed upon; but it shall be unlawful for any such company or companies, and the owner or owners of rights of way to contract for the exclusive use thereof for telegraphic purposes. [1880, April 15: 77 v. 264; Rev. Stat. 1880 62 v. 72, 6; S. & S. 154.]

SEC. 3456. [May enter upon and appropriate land.] Any such company may enter upon any land, whether held by an individual or a corporation, and whether acquired by purchase of appropriation, or in virtue of any provision in its charter, for the purpose of making preliminary examinations and surveys, with a view to the location and erection of lines of magnetic telegraph, and may appropriate so much thereof as may be deemed necessary for the erection and maintenance of its telegraph poles, piers, abutments, wires and other necessary fixtures, and for stations, and the right of way over such lands and adjacent lands sufficient to enable it to construct and repair its lines. [62 v. 72, 21; S. & S. 153.]

See note to Smith v. Telegraph Co., 2 C. C. 259, under 3454.

SEC. 3457. [Limitation upon such authority.] No such company shall, without the consent of the owner thereof, in writing, enter a building or edifice, or use or appropriate any part thereof, or erect any telegraph pole, pier or abutment in any yard or inclosure within which an edifice is situate, nor, in cases not provided for in section three thousand four hundred and sirty-one, erect any telegraph pole, pier, abutment, wires, or other fixtures, so near to any edifice as to occasion injury thereto, or risk of injury, in case such pole, pier, or abutment be overthrown, nor injure or destroy any fruit or ornamental tree. [62 v. 72, 21; S. & S. 153.]

See note to Smith ?. Telegraph Co., 2 C. C. 259, under 1⁄2 3454.

SEC. 3458. [When the land to be appropriated is held by a corporation]. When lands sought to be appropriated for lines of magnetic telegraph are held by a corporation incorporated under any law of this state, whether held by purchase or in virtue of any appropriation authorized by its charter or by any law of this state, the right of the company to appropriate such lands, shall be limited to such use of the same as shall not, in any material degree, interfere with the practical uses to which the company is authorized to put such lands under its charter; and no such company shall erect poles, piers, abutments, wires, or other necessary fixtures, in such close proximity to any other line of magnetic telegraph authorized by law to be constructed as to interfere mechanically with the practical working of such telegraph. [62 v. 72, ? 2; S. & S. 153]

SEC. 3459. [When such land is held by a railroad company.] The right of such company to use lands held by a railroad company, for the permanent structures of such telegraph, shall be limited to the land which lies within five feet of the outer limits of the right of way of the railroad company, where it is practicable to erect the line within those limits; when the company seeks to appropriate lands that lie beyond those limits, its petition must set forth the facts showing that it is impracticable to erect such line within said limits, and designate, either by a survey and map, or by reference to monuments, or by other means of easy identification, the place or places where the company seeks to establish the line; the probate court shall, in all instances, determine, if it be controverted by the railroad company, whether the erection of the line at the place or places designated will, in any material degree, interfere with the practical uses to which such railroad company is authorized to put such land; and if the court is satisfied that it will so interfere, it shall reject the petition, or require the structure to be erected at such other place or places as the court shall direct; but nothing in this chapter shall be so construed as to authorize any company to appropriate the use of the track or rollingstock of any railroad company for the purpose of transporting poles, materials, or the employes of such telegraph company, or for any other purpose whatever. [62 v. 72, ? 3; S. & S. 154.]

SEC. 3460. [When the lands lie in more than one county.] Proceedings to appropriate lands to the use of a company, against a defendant whose adjoining or continuous lands lie in more than one county, may be instituted in any county in which any part of such lands lie, and the damages shall be assessed, in one proceeding in respect of all such lands of the defendant sought to be appropriated, whether lying in the county wherein the court is sitting or in other counties. [62 v. 72, % 4; S. & S. 154.]

SEC. 3461. [How right to use public ground acquired.] When any lands authorized to be appropriated to the use of a company are subject to the easement of a street, alley, public way, or other public use, within the limits of any city or village, the mode of use shall be such as shall be agreed upon between the municipal authorities of the city or village and the company; and if they can not agree, or the municipal authorities unreasonably delay to enter into any agreement, the probate court of the county, in a proceeding instituted for the purpose, shall direct in what mode such telegraph line shall be constructed along such street, alley, or public way, so as not to incommode the public in the use of the same; but nothing in this section shall be so construed as to authorize any municipal corporation to demand or receive any compensation for the use of a street, alley, or public way, beyond what may be necessary to restore the pavement to its former state of usefulness. [62 v. 72, 5; S. & S. 154.]

See note to Smith ". Telegraph Co., 2 C. C. 259, under 1⁄2 3454.

SEC. 3462. [Must receive and transmit dispatches for other lines.] Every company, incorporated or unincorporated, operating a telegraph line in this state, shall receive dispatches from and for other telegraph lines; and from or for any individual; and on payment of its usual charges for transmitting dispatches as established by the rules and regulations of the company, shall transmit the same with impartiality and good faith, under a penalty of one hundred dollars for each case of neglect or refusal so to do, to be recovered with cost of suit, by civil action in the name and for the benefit of the person or company sending or forwarding or desiring to send or forward the dispatch. [1880, April 15: 77 v. 264; Rev. Stat. 1880; 62 v. 72, 28; S. & S. 155.]

See note to State ex rel., etc. r. Telephone Co., 36 O. S. 297, under sec. 3471.

While a telegraph company may, by special agreement or by reasonable rules and regulations, limit its liability to damages for errors or mistakes in the transmission and delivery of messages, it can not stipulate or provide for immunity from liability, where the error or mistake results from its own negligence: such a stipulation or regulation, being contrary to public policy, is void: Telegraph Co. v. Griswold, 37 O. S. 301.

Where, in an action against the company for damages resulting from an inaccurate transmission of a message, such inaccuracy is made to appear, the burden of proof is on the company to show that the mistake was not attributable to its fault or negligence: Ib. Okey, J. dissented.

SEC. 3463. [When to forward messages by mail.] When the person who sends a dispatch desires to have it forwarded over the lines of other telegraph companies, whose termini are respectively within the limits of the usual delivery of such companies, to the place of final destination, and tenders to the first company the amount of the usual charges for the dispatch to the place of final delivery, the company shall receive the same, and, without delaying the dispatch, shall pay to the succeeding line the necessary charges for the remaining distance; and the succeeding line shall accept the same, and forward the dispatch in the same manner as if the sender had applied to it in person, and paid the usual charges, and for the omission so to do it shall be liable to a like penalty, as provided in the last section. [62 v. 72, 8; S. & S. 155.]

SEC. 3464. [Agent must indorse dispatch, when.] When application is made to any such company to send a dispatch, the officer, agent, clerk, or servant appointed by the company to receive dispatches at that station shall inform the applicant, and, if required by him, write upon the dispatch, that the line is not in working order, or that the dispatches on hand for transmission will occupy the time so that the dispatch offered can not be transmitted within the time required, if the facts are so; and for an omission

so to do, or for intentionally giving false information to the applicant in relation to the time within which the dispatch offered may be sent, such officer, agent, clerk, or servant, and the company by which he is employed, shall incur the penalty provided in section thirty-four hundred and sixty-two. [62 v. 72, į 8; S. & S. 155.]

SEC. 3465. [Penalties for not transmitting or delivering message.] Every telegraph company, incorporated or unincorporated, operating any telegraph line in this state, shall transmit and deliver all dispatches in the order in which they are received for transmission or delivery, under the like penalty of one hundred dollars, as provided in section thirty-four hundred and sixty-two; but arrangements may be made with the proprietors or publishers of newspapers for the transmission, for the purpose of publication, of intelligence of general and public interest, out of its regular order, and dispatches by officers of the state or the United States, on public business, may have preference over all private business, when the public interest requires such preference; no company shall be required to deliver dispatches at a greater distance from the station at which they are received than its published regulations require; and if an applicant direct a dispatch to be mailed at the place of delivery, and offer to pay the necessary postage thereon, the company shall affix the necessary postage stamp, and mail the dispatch in time for the first mail that departs after such dispatch is received at the office of delivery, and for the omission so to do the company shall be liable to a like penalty as provided in section thirty-four hundred and sixty-two. [62 v. 72, ? 9; S. & S. 155.]

In case of failure to deliver a telegraphic message, the company is only liable for such damages as naturally flow from the breach of contract, or such as may fairly be supposed to have been within the contemplation of the parties at the time the contract was made: Bank r. Telegraph Co., 30 O. S. 555.

If the telegraph company is in default, but its default is made mischievous to a plaintiff only by operation of some other intervening cause, such as the dishonesty of a third person, the rule "causa proxima non remota spectatur” applies, and the company can not be made responsible for the loss occasioned by such third person: Ib.

SEC. 3466. [Penalties against persons connected with companies.] Any person connected with a telegraph company, incorporated or unincorporated, operating a line of telegraph in this state, in any capacity, who willfully divulges the contents or the nature of the contents of a private communication, intrusted to him for transmission or delivery, or who willfully refuses or neglects to transmit or deliver the same, or willfully delays the transmission or delivery of the same, with a view to injure the sender or intended receiver thereof, or to benefit himself or any other person, shall be imprisoned in the county jail not exceeding three months, or fined not exceeding five hundred dollars, at the discretion of the court. [62 v. 72, % 10; S. & S. 156.]

SEC. 3467. [Penalties for knowingly transmitting dispatches forged, etc.] A person who knowingly transmits by a telegraph line any false communication or intelligence, with intent to injure any person, or to speculate in any article of merchandise, commerce or trade, or with intent that another may do so, or knowingly sends or delivers a dispatch that is forged, or not authorized by the person whose name purports to be signed thereto, shall be liable to the same penalty as is provided in section thirty-four hundred and sixty-two. [62 v. 72, 2 11; S. & S. 156.]

SEC. 3468. [When and how telegraph structures may be removed.] If, at any time after the erection of a line of magnetic telegraph upon lands held by a corporation, the corporation have occasion to use the land upon which a telegraph pole, pier, abutment, or other fixture has been erected, for any of the purposes authorized by its charter, the company shall remove such pole, pier, abutment or fixture, to such convenient place as may be designated by the corporation requiring the use of the ground, upon reasonable notice, given in writing, and erect the same in such new place, so as not to interfere with the practical uses to which the corporation is authorized to put such land; and if it is impracticable to erect a line of magnetic telegraph upon the lands of such corporation, in consequence of the uses to which the corporation put the lands, the telegraph company may appropriate adjoining lands, by a separate proceeding for that purpose. [62 v. 72, ¿ 12; S. & S. 156.]

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