not organizing under the general law. The court held that such declaration was not necessary.1 As a matter of fact very few organizations were affected under the law of 1849, and it is believed that no railroad company in the state now holds its franchises under that act, or any general statute ante-dating the present constitution. Those originally organized thereunder either secured special charters afterwards, or reorganized under the statute of 1872.

§ 35. The most notable instance of beginning under the general law, and then securing a charter, occurred under the administration of Gov. Matteson, in 1854. As it was ultimately made a test case in the courts it deserves notice. The Mississippi and Atlantic railroad company found it difficult to raise money and preferred a special charter. The governor called an extra session of the general assembly, specifying, among other things, this object, "to pass laws recognizing the existence of, and conferring additional powers upon, corporations formed, or which may be formed prior to the action of the legislature thereon under the act to provide for a general system of railroad incorporations." It was claimed that organization having been effected under the general law there could be no transference of the company to a charter basis. The court did not take this view of the case. It held, on the contrary, that such legislation was valid.3

1 Johnson v. Joliet & Chicago R. R. Co. 23 III. 203.

2 People v. Mississippi and Atlantic R. R. Co. 14 Ill. 440.

3 There was an eminent array of counsel in the case. C. Beckwith, conspicuous in the latest test railway case, was associated with Messrs. Constable, Gillespie and Blackwell as

§ 36. The right of the legislature to cure defects of organization was the principle of chief importance set forth, in the opinion of the court, in that case. The doctrine of the validity of retroactive corporate legislation has been reaffirmed in several cases, and alluded to always as a settled point.1 If the legislature had the right to cure organic defects by special legislation it has the right to do so by general legislation. This is a vital point in view of a law passed in 1873 for the purpose of curing defects in railway organization.2

§ 37. Some railroad companies organized under the general railway law of 1849, amended in 1869, have since organized under the law approved March 1, 1872. A few companies possessing special charters have seen fit to organize under that law, in accordance with a provision therein contained. The mode of procedure in such cases is the same as in effecting an entirely new organization. We need only add of the law of 1849 that it was amended in 1857, and again in 1869, and the whole repealed, except certain specified sections, by the law of 1872.3

§ 38. In addition to positively forbidding the creation of corporations by special enactment, except those

counsel for the people; Lyman Trumbull, B. C. Cook, J. A. Glover, V. Worthington and Gen. McClernand, appeared for the corporation.

1 Goodrich v. Reynolds, Wilder & Co., 31 Ill. 490.

Laws of Illinois, Twenty-Eighth General Assembly, First Session, page 140.

3 The sections not repealed are 34, 35, 36, 37, 38, 39, 40, 41, 42 and 45. All except the latter apply entirely to the operating of the road. That defines the companies to which the law is applicable.

for charitable, educational, penal, or reformatory purposes, and which are to be and remain under the patronage and control of the state, the constitution provides that the general assembly shall [not may] by general law make provision for the incorporations thereafter to be created.1 It would have been competent for the legislature to have passed a statute analogous to the British law called "The Companies Act of 1872," which applies to all corporations; but as a matter of fact the general incorporation acts of Illinois do not apply to railroads.2

39. The main statute for the formation of railway companies was approved March 1, 1872. It contained an emergency clause, and consequently became at once operative. The supplemental act was approved April 26, 1873, and went into effect July 1, 1873.3

§ 40. Any number of persons, not less than five, may form a railway company. In organizing an ordinary corporation the number must not be less than three, nor more than seven.

§ 41. The articles of incorporation must set forth the facts on each of the eight following points, viz.: 1. The name of the proposed corporation. 2. The

1 Illinois Constitution, art. xi, sec. 1.

2 There is an act authorizing the formation of union depots, the details of which will be explained hereafter. Besides railway laws there are three general incorporation acts non-applicable to railroads. The first gives the details of procedure in creating and operating stock companies; the second is purely supplemental to the first, and the third is designed to enable associations of persons to raise funds to loan only to their members. See Gross Statutes, vol. 2, pp. 124, 556 and 571.

3

3 The first is given in Gross Statutes, vol. 2, p. 64; the second in the statutes of the state of Illinois, 1973, p. 117.

places from and to which it is intended to construct the proposed railroad. 3. The place at which shall be established and maintained the principal business office of such corporation. 4. The time of the commencement and the period of continuance of such corporation, the same not to exceed fifty years. 5. The amount of capital stock. 6. The names and places of residence of the several persons forming the association. 7. The names of the members of the first board of directors, and in what officers or persons the government of the proposed corporation and the management of its affairs shall be vested. 8. The number and amount of shares in the capital stock of the corporation.

§ 42. These articles of incorporation must be signed by the corporators and recorded in the office of the recorder of deeds in each county through or into which the railroad is proposed to be run, also in the office of the secretary of state.

$43. The filing and recording having been effected, the persons named as corporators thereupon become a body corporate, clothed with the usual powers of a corporation, and duly authorized to proceed with the business in hand. The statute defines this authority to be the power to have succession; sue and be sued; plead and be impleaded; have and use a common seal, which it may alter at pleasure; declare the interest of its stockholders transferable;1 establish by-laws, and make all rules and regulations for the management of its affairs in accordance with law.

1 The old idea that a corporation can only act under its corporate seal is obsolete. See New England Fire and Marine Ins. Co. v. Schatler, 38 Ill., 166.

844. A copy of any articles of incorporation, filed and recorded as the law directs, certified as correct by the secretary of state or his deputy, must be accepted as prima facie evidence of the incorporation of the company and of the facts therein set forth.

845. Under the obsolete law of railway incorporation there had to be at least twenty-five original incorporators. The life of the company was limited to fifty years, with no provision for renewal.1 Under the present law the corporation may renew from time to time, for a period of not longer than fifty years, provided that three-fourths of the votes cast at any regular election held for that purpose shall be in favor of continuance; and provided, further, that those desiring to renew shall purchase, at its current value, the stock of those opposed to continuance, in case any of the stockholders are opposed thereto.

$46. The original by-laws and all subsequent amendments must be recorded in the office of the secretary of state, and of the county recorder, or recorders, the same as the articles of incorporation. The copy must be certified. This record must be made always within ninety days after the adoption of the

same.

$47. As transfers of stock generally precede, to a greater or less extent, any actual operation, it should be mentioned in this connection that all such transfers must be made at the headquarters of the company in the state. In the case of ordinary stock companies. incorporated in Illinois, all transfers of shares not fully

1The mode of procedure in reorganizing an old company under the existing general law is precisely the same as in organizing a company de novo.