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special provisions shall govern, unless it clearly appear that the provisions are cumulative; and no corporation shall, by anything in this title, be relieved from any liability in actions now pending, or causes of action heretofore accrued.

$ 3269-1. Dividends from surplus profits only

It shall not be lawful for the directors of any corporation organized under the laws of this state to make dividends except from the surplus profits arising from the business of the corporation. 85 O. L. 182.

"Dividends" is a term also applicable to a distribution of part or whole of the capital stock. Larwill v. Burke, 19 C. C. 449.

Irregularity in dividing property as dividend directly among the stockholders, or other acts injurious to no one, though irregular, may be valid if acquiesced in. Larwill v. Burke, 19 C. C. 513.

$ 3269-2. Unpaid interest not included in profits

In the calculation of the profits of any corporation previous to a dividend, interest then unpaid, although due, on debts owing to the company, shall not be included. 85 O. L. 182.

$ 3269-3. Rules for ascertaining surplus profits-Prohib

iting advertisement of capital not subscribed

and paid in In order to ascertain the surplus profits, from which alone a dividend can be made, there shall be charged in the account of profit and loss, and deducted from the actual profits

1. All the expenses paid or incurred, both ordinary and extraordinary, attending the management of the affairs and the transaction of the business of the corporation.

2. Interest paid, or then due or accrued, on debts owing by the corporation.

3. All losses sustained by the corporation, and in the computation of such losses, all debts owing to the corporation shall be included which shall have remained due without prosecution, and no interest having been paid thereon for more than one year, or on which judgment shall have been recovered, and shall have remained for more than two years unsatisfied, and on which no interest shall have been paid during that period; and no such corporation shall advertise a larger amount of capital stock than has actually been subscribed and paid in; also, shall not advertise a greater dividend than what has been actually earned and credited or paid to its stockholders or members. 86 O. L. 228.

§ 3269-4. Penalty for violation of 3269-3

Every director who shall violate, or be concerned in violating, any provision in the preceding sections of this act contained, shall be liable personally to the creditors and stockholders respectively of the corporation of which he shall be a director, to the full extent of any loss they may respectively sustain from such violation. 85 O. L. 182,

COMMISSIONER OF RAILROADS AND TELE

GRAPHS.

SECTION 245. How appointed, and term; who eligible. 246. Bond. 247. Duties as to railroad bridges, tracks,

or other structures. 247a. Gates and flagmen, at what public road

crossings; penalty. 247b. How, when, where built; keepers of,

etc.; penalties. 247d. Crossing over grade crossing without

stopping. 247e, Petition for safety devices. 247f. Compulsory interlocking. 2479. Crossing without stopping if interlock

ing device used. 247h. Penalty for violation of commissioner's

order. 248. Shall examine into what violations of

law. 248a. Duty of, as to differences between com

mon carriers and citizens. 249 His office, where; clerk, appointment

and duties of. 250. Commissioner's right of free transit on

railroads. 250-I. Additional statements required. 250-2. Expenses of commissioner to be borne

by companies. 250-3. Penalty for violation of act.

SECTION 251. Annual reports of railroad companies. 251a. Mileage tax on railroads; penalties,

fees. 252. Blanks shall be furnished to railroad

and telegraph companies. 253. Penalty on railroad officers for failuro

to report. 254. Annual reports of telegraph companies;

penalty. 255. Defective returns, when to be amended. 256. Railroad companies, on demand, shall

make returns as to contracts with

express and freight lines, etc. 257. Superintendents to notify commissioner

of all fatal casualties. 258. Powers of commissioner in investiga

tions. 259. Penalty for refusing to answer; railroad

liable therefor. 260. List of officers and their residence. 261. Penalty for not furnishing. 262. How prosecutions carried on. 263. Civil action for penalty; by whom

brought. 264. Annual report of commissioner. 265. Moneys collected shall be paid into the

state treasury; fees of prosecuting attorneys.

$ 245. How appointed, and term-Who eligible

A commissioner of railroads and telegraphs shall be appointed by the governor, by and with the advice and consent of the senate; and he shall hold his office for two years; no person is eligible to the office who is an officer or employe of a railroad company, or who owns or is interested in the stock or bonds of a railroad company. 64 V. III, S 1; S. & S. 76.

$ 246. His bond and oath of office

The commissioner, before entering upon the discharge of his duties, shall give bond to the state in the sum of five thousand dollars, with two or more sureties, to the acceptance of the governor, conditioned for the faithful performance of his duties; which bond, with his oath of office and the approval of the governor indorsed thereon, shall be deposited with the secretary of state. 64 V. III, § 2; S. & S. 76.

S 247. Duty to examine tracks, bridges, etc., supposed to

be dangerous—Shall prescribe rate of speed for passing over same, or wholly stop the trains from passing over same-Punishment of officers and others for disobeying his orders,

and penalty against companyWhen the commissioner has reasonable grounds to believe, either on complaint or otherwise, that any of the tracks, bridges, or other structures of any railroad in this state are in a condition which renders them, or any of them, dangerous, or unfit for the transportation of passengers, he shall forthwith inspect and examine the same; and if, on such examination by himself or his agent, he is of opinion that any of such tracks, bridges, or other structures are unfit for the transportation of passengers with safety, he shall immediately give to the superintendent, or other executive officer of the company operating such road, notice of the condition thereof, and of the repairs or reconstruction necessary to place the same in a safe condition; and he may also prescribe the rate of speed for trains passing over such dangerous or defective track, bridge, or other structure, until the repairs or reconstructions required are made, and the time within which such repairs and reconstructions must be made; or if, in his opinion, it is needful and proper, he may forbid the running of passenger trains over such defective track, bridge, or other structure; and if a superintendent or other executive officer receiving such notice and order neglects for two days after receiving the same to direct the proper subordinate officers to run the passenger trains over such defective track, bridge, or other structure, at a speed not greater than that sɔ prescribed, or if the running of passenger trains is so forbidden, then to stop running passenger trains over the same; or if any engineer, conductor, or other employe knowingly disobeys such order, every superintendent, officer, engineer, conductor, or employe, so offending, shall be fined in any sum not exceeding five hundred dollars, or imprisoned in the jail for any period not exceeding one year, or both, at the discretion of the court; and the company operating such road, if it neglects or without good cause fails to make the repairs or reconstruction prescribed by the commissioner within the time by him limited, shall for each day that such repair or reconstruction is delayed beyond the time prescribed, forfeit and pay to the state the sum of one hundred dollars. 64 v. 111, $ 6. S. & S. 77.

$ 217a. Gates, alarm-bells, devices or flagmen at danger

ous crossings-PenaltyWhen, in the opinion of the commissioner of railroads, the public safety requires that a gate or gates, automatic alarm-bell, or other mechanical device be erected and maintained at any place where a public road or street is crossed at the same level by any railroad, and which crossing has been declared by said commissioner to be a dangerous one, or that a flagman be stationed and maintained at such dangerous crossing, he shall give the superintendent, manager or other officer in charge of such railroad, a written notice that the same is required, and such company, person or corporation owning or operating such railroad shall erect or station the same within such time thereafter as said commissioner shall prescribe. Any company, person or corporation neglecting or refusing to erect or maintain such gate or gates, automatic alarm-bell, or other mechanical device, or to maintain such flagman, when so required as aforesaid, shall forfeit and pay to the state, for every such neglect or refusal, the sum of one hundred dollars, and the further sum of ten dollars for every day while such neglect or refusal shall continue. 91

0. L. 353

$ 247b. Regulations as to such gates, bells, devices or

flagmenAll gates, bells or devices, which by the provisions of this act are under the direction of the commissioner of railroads, shall be built in such a manner, and within such a time, and of sucli material as shall be approved by the commissioner of railroads, and shall be located on the highway or street, on one or both sides of the railroad track or tracks as the commissioner may deem the public safety to require, and shall be so constructed as, when closed, to obstruct and prevent any passage across such railroad or railroads from the side on which the gate may be located; or said bell shall be made to ring before the approach of each and every train of cars or of a locomotive within three hundred feet of such crossing, or more, according to the speed of the train, and continue to ring until the train of cars or the locomotive shall have reached the crossing. There shall be a person in charge of every such gate, and it shall be his duty to close the same at the approach of every train of cars, or of a locomotive, and to keep it open at all other times. In case an automatic alarm-bell, or other mechanical device, shall be required at any such crossing, it shall be the duty of the railroad company at all times to keep such bell or device in good working order. For every neglect of such duty such person or railroad company, upon conviction thereof, shall pay the sum of twenty-five dollars. When more than one railroad crosses a public highway or street at such dangerous crossing, the expense incurred in the erection and maintenance of gates, bells or device provided for in this section, and of the necessary gate-keepers, or of a flagman, shall be shared equally by the railroad companies alongside whose tracks the gates, bells or device shall be located. Provided that an automatic alarm-bell, or other mechanical device as provided for in this and the preceding section, shall not be erected within the limits of any city of the first class or of any city of the first, second, third and fourth grades of the second class, upon the order of the commissioner of railroads and telegraphs; but nothing herein contained shall prohibit any railroad company from using such automatic alarm-bell or other mechanical device, if it desire, at any public railroad crossing not declared dangerous by said commissioner of railroads and telegraphs; and provided further, that where a gate or gates has or have been erected, and is or are maintained by the railroad company, or where a flagman has been stationed, and is maintained by the railroad company, shall not be abandoned, and any automatic alarm-bell or other mechanical devices be substituted therefor. 91 0. L. 363.

[ 2470. This is an act referring to Hamilton county only. 91 0. L. 350.]

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