SEC. 75. [May construct railroad.]—Such corporation shall be authorized and empowered to lay out, locate, construct, furnish, maintain, operate and enjoy a railroad with single or double tracks, with such side tracks, turnouts, offices and depots as shall be necessary, between the places of the termini of the said road, commencing at or within, and extending to or into any town, city, or village, named as the termini of said road, and construct branches from the main line to other towns or places within the limits of this state. [Amended 1871, 104.] SEC. 76. [Capital stock.]-The capital stock of such company shall be divided into shares of one hundred dollars each, and consist of such sum as may be named in the certificate; such shares shall be regarded as personal property, and shall be subject to sale or transfer, and to execution at law.

SEC. 77. [Installments.]-An installment of ten per cent. on each share of stock, shall be payable at the time of making the subscription, and the residue thereof shall be paid in such installments and at such times and places as may be required by the directors of such company.

SEC. 78. [Collection of unpaid installments.]-If any installment of stock shall remain unpaid for sixty days after the time it may be required or specified in the call by order of the board of directors, whether the said stock is held by an assignee, transferee, or original subscriber, the same may be collected by action of debt, or the directors may, at their election, serve upon such stockholder, in case he shall be a resident of the state, thirty days notice in writing, that such installment has been due and unpaid for the term aforesaid, or in case such stockholder shall be a non-resident of this state, publish in some newspaper printed at the capital of this state, and of general circulation in this state, a like notice that such installment has been due and unpaid for the term aforesaid; and if the said installment shall not be paid, with all the charges and expenses incurred in the proceedings hereby prescribed, within ninety days after the service of notice or the last publication provided for as aforesaid, the said stock, and all the right, title and interest of the said assignee, transferee, or original subscriber therein, shall, by virtue of such failure, and without further action by such company, become forfeited, and may be disposed of by said company as it sees proper.

SEC. 79. [Increase of capital stock.]-Whenever any railroad company heretofore incorporated or created or incorporated under the provisions of this subdivision, shall, in the opinion of the directors thereof, require an increased amount of capital stock, they shall, when authorized by the holders of a majority of capital stock, file with the secretary of state, a certificate setting forth the amount of such desired increase, and shall give public notice of such increase of the capital stock of such company by publishing the same for sixty days in a newspaper published in the county in which it maintains its public and principal office, and thereafter such company shall be entitled to have such increased capital as is fixed by said certificate. [Amended 1879, 79.]

SEC. 80. [Opening subscription books-Election of directors.]The persons named in said certificate of incorporation, or any three of them, shall be authorized to order books to be opened for receiving subscriptions to the capital stock of said company, at such time or times, and at such place or places as they may deem expedient, after having given at least thirty days notice in a newspaper published or generally circulated in one or more counties where books of subscription are to be opened, of the time and place of opening books; and so soon as ten per centum on the capital stock shall be subscribed, they may give like notice for the stockholders to meet at such time and place as they may designate, for the purpose of choosing seven directors, who shall continue in office until the time fixed for the annual election, and until their successors are chosen and qualified. At the time and place appointed, directors shall be chosen by ballot by such of the stockholders as shall attend for that purpose, either in person or by lawful proxies. Each share shall entitle the owner to one vote, and a plurality of

SEC. 80. For method of voting at such election, see Const. Art. XI, sec. 5, ante page 34.

votes cast at such election shall be necessary for a choice; but after the first election for directors, no person shall vote on any share on which any installment is due and unpaid. The persons named in such certificate, or such of them as may be present, shall be inspectors of such election, and shall certify what persons are elected directors, and appoint the time and place for holding their first meeting. A majority of said directors shall form a board, and be competent to fill vacancies therein, make by-laws not inconsistent with the provisions of this subdivision or the laws of this. state, and alter the same at pleasure, and transact all business of the corporation. A new election shall be annually held for directors, at such time and place as the stockholders at their first meeting shall determine, or as the by-laws of the corporation may require; and the directors chosen at any election shall, so soon thereafter as may be cc.ivenient, choose one of their number to be president, and shall appoint a secretary and treasurer of the corporation. The directors shall, from time to time, make such dividends of the profits of the said company as they may think proper, and the said by-laws and all alterations and revisions thereof shall be recorded and preserved in the office of the secretary of state, in the same manner as the certificate provided for in section seventy-three of this chapter.

SEC. 81. [Exercise of the right of eminent domain.]-Such corporation is authorized to enter upon any land for the purpose of examining and surveying its railroad line, and may take, hold, and appropriate so much real estate as may be necessary for the location construction and convenient use of its road, including all necessary grounds for stations, buildings, workshops, depots, machine-shops, switches, side-tracks, turn-tables and water-stations; all materials for the construction and repair of said road and its appurtenances; and a right of way over adjacent lands, sufficient to enable such company to construct and repair its road, and a right to conduct water by aqueducts, and the right of making proper drains; Provided, That the lands held, taken and appropriated, otherwise than by the consent of the owner, shall not exceed two hundred feet in width, except for wood and water stations, and depot grounds, unless where greater width is necessary for excavations, embankments, or depositing waste earth; Provided further, That no appropriation of private property, for the use of any corporation provided for in this subdivision, shall be made, until full compensation therefor be first made or secured to the owners thereof.

SEC. 82. [Change of location and grade.]-Whenever any railroad company, heretofore incorporated, or which may hereafter be incorporated, shall find it necessary, for the purpose of avoiding annoyance to public travel, or dangerous or difficult curves or grades, or unsafe or unsubstantial grounds or foundations, or for other reasonable causes, to change the grade or location of any portion of their road, whether heretofore made, or hereafter to be made, such railroad companies shall be and are hereby authorized to make such changes of grade and location, not departing from their general route. And for the purpose of making any such change in the location and grades of any such roads as aforesaid, such company shall have all the rights, powers and privileges to enter upon, and appropriate such lands, and make surveys necessary to effect such changes and grades, upon the same terms, and be subject to the same obligations, rules and regulations as are prescribed by law; and shall also be liable in damages, when any may have been caused by such change, to the owner or owners of lands upon which such road was heretofore constructed, to be ascertained and paid, or deposited as herein provided; but no damages shall be allowed, unless claimed within ninety days after actual notice in writing of such intended change shall be given to such owner or owners residing on the premises, or notice by publication in some newspaper in general circulation in the county, if non-resident.

SEC. 83. [Occupation of streets, alleys, etc.]-If it shall be necessary, in the location of any part of any railroad, to occupy any road, street, alley, or public way or ground of any kind, or any part thereof, it shall be competent for

SEC. 81. Purchase of side tracks and depot grounds. 7 Neb. 37. Opinion of witness on needs of road not admissible. 13 Id. 362. See also 15 Neb. 367. SEC. 83. Cited 14 Neb. 554.

the municipal or other corporation or public officer or public authorities, owning or having charge thereof, and the railroad company, to agree upon the manner, and upon the terms and conditions upon which the same may be used or occupied; and if said parties shall be unable to agree thereon and it shall be necessary, in the judgment of the directors of such railroad company, to use or occupy such road, street, alley or other public way or ground, such company may appropriate so much of the same as may be necessary for the purposes of such road, in the same manner and upon the same terms as is provided for the appropriation of the property of individuals by the eighty-first section of this chapter.

SEC. 84. [Borrowing money.]-Such company shall have power to borrow money on the credit of the corporation, and may execute bonds or promissory notes therefor, and to secure the payment thereof, may pledge the property and income of such company.

SEC. 85. [Rights of way.]-Such company may acquire, by purchase or gift, any lands in the vicinity of said road, or through which the same may pass, so far as the same may be deemed convenient or necessary by said company to secure the right of way to such as may be granted to aid in the construction of such road, and the same to hold or convey in such manner as the directors may prescribe; and all deeds and conveyances made by such company shall be signed by the president under the seal of the corporation, and any existing corporation may accept the provisions of this subdivision, by filing in writing their acceptance thereof, under the seal of said corporation, in the office of the secretary of state. And upon filing such acceptance, such corporation shall, from the date thereof, succeed to, and become invested with all the rights, privileges, immunities and powers conferred by this subdivision, without reorganizing. The said secretary shall record and preserve such acceptance in his office, and a copy thereof, duly certified by said secretary, under the seal of the state, shall be evidence in all the courts of this state of such acceptance. [See. 15 Neb. 529.]

SEC. 86. [Crossing roads and streams.]-Any railway company may construct and carry their railroad across, over, or under any road, railroad, canal, stream, or water-course, when it may be necessary in the construction of the same; and in such cases, said corporation shall so construct their railroad crossings as not unnecessarily to impede the travel, transportation, or navigation upon the road, railroad, canal, stream, or water-course so crossed. Said corporation shall have the right to change the channel of any stream or water-course from its present location or bed, whenever it may be necessary in the location, construction or use of their said road, provided they do not change its general course, or materially impair its former usefulness.

SEC. 87. [Office.]-Such corporation shall, upon commencing business, establish an office at some point on the line of its road, and may change the same at pleasure.

SEC. 88. [Annual report.]-Each and every railroad company, incorporated under this subdivision, and such as shall hereafter accept the same, shall annually, in the month of January, make, upon the oath of the president, secretary or treasurer, a full report of the condition of its affairs to the auditor of the state, showing the amount of the capital stock of such company, the gross amount of receipts during the previous year, the cost of repairs and incidental expenses, the net amount of profits, and the dividends made, with such other facts as may be necessary to a full statement of the affairs and condition of such road; and the auditor shall incorporate an abstract thereof in his annual report to the legislature.

SEC. 89. [Consolidation.]-Whenever the lines of railroad of any railroad companies in this state, or any portion of such lines, have been or may be constructed, so as to admit the passage of burden or passenger cars over any two or more of such roads continuously, without break of gauge or interruption, such companies are hereby authorized to consolidate themselves into a single corporation, in the manner following: The directors of the said two or more corpora

tions may enter into an agreement, under the corporate seal of each, for the consolidation of the said two or more corporations, prescribing the terms and conditions thereof; the mode of carrying the same into effect; the name of the new corporation; the number of the directors thereof, which shall not be less than seven; the time and place of holding the first election of directors; the number of shares of capital stock in the new corporation; the amount of each share; the manner of converting the shares of capital stock in each of said two or more corporations into shares in such new corporation; the manner of compensating stockholders in each of said two or more corporations, who refuse to convert their stock into the stock of such new corporation, with such other details as they shall deem necessary to perfect such consolidation of said corporations; and such new corporations shall possess all the powers, rights, and franchises conferred upon such said two or more corporations, and shall be subject to all the restrictions, and perform all the duties imposed by the provisions of this subdivision; Provided, That all stockholders in either of such corporations who shall refuse to convert their stock into the stock of such new corporation, shall be paid the market value of said stock, at the date of such consolidation.

SEC. 90. [Approval by stockholders.]—Such agreement of the directors shall not be deemed to be the agreement of the said two or more corporations until after it has been submitted to the stockholders of each of the said corporations separately, at a meeting thereof, to be called upon a notice of at least ninety days, specifying the time and place of such meeting, and the object thereof, to be addressed to each of such stockholders, when the place of residence is known, and deposit in the post office, and published at least for six successive weeks, in one newspaper in one of the cities or towns in which each of said corporations has its principal office of business, and has been sanctioned by such stockholders, by the vote of at least two-thirds in the amount of the stock represented at such meeting, voting by ballot in regard to such agreement, either in person or by proxy, each share of capital stock being entitled to one vote. And when such agreement of the directors has been so sanctioned by each of the meetings of the stockholders, separately, after being submitted to such meetings in the manner above mentioned, then such agreement of the directors shall be deemed to be the agreement of the said two or more corporations.

SEC. 91. [Agreement filed with secretary of state.]-Upon making the agreement mentioned in the preceding section, in the manner required therein, and filing a duplicate in counterpart thereof, in the office of the secretary of state, the said two or more corporations (mentioned or referred to in the last two preceding sections, or any other law of this state,) shall be merged in the new corporation provided for in such agreement, to be known by the corporate name therein mentioned; and the details of such agreement shall be carried into effect as provided therein.

SEC. 92. [Title of property.]-Upon the election of the first board of directors of the corporation created by the agreement in the preceding section mentioned, and by the provisions of this subdivision, all and singular the rights and franchises of each and all of said two or more corporations, parties to such agreement, all and singular the rights and interest in and to every species of property, real, personal and mixed, and things in action, shall be deemed to be transferred to, and vested in, such new corporation, without any other deed or transfer. And such new corporation shall hold and enjoy the same, together with the right of way and all other rights of property, in the same manner and to the same extent as if the said two or more corporations, parties to such agreement, should have continued to retain the title and transact the business of such corporations. And the titles and the real estate acquired by either of said two or more corporations, shall not be deemed to revert or be impaired by means of anything in this subdivision contained; Provided, That all rights of creditors, and all liens upon the property of either of said corporations, shall be, and hereby are, preserved unimpaired; and the respective corporations shall continue to exist, as far as may

be necessary to enforce the same; Provided, further, That all debts, liabilities and duties of either company shall henceforth attach to such new corporation and be enforced to the same extent and in the same manner as if such debts, liabilities and duties had been originally incurred by it.

SEC. 93. [Duties of the consolidated companies.]-When any two or more railroad companies shall become consolidated, as contemplated by the provisions of this subdivision, such companies so consolidated shall keep each and every railroad line that may come into its possession by such consolidation, in good running order, with sufficient rolling stock to transfer the freight and passengers. They shall not discriminate against the business of either, or any of such railroad lines, either directly or indirectly, by the detention of freight or passengers, or by charging more for freight, or passengers, than is charged in proportion upon any other railroad line under the control of said company so consolidated; and whenever any railroad company, persons, or person, their grantors, assignors, lessors, or mortgagors, shall have received any lands, bonds, moneys, or other valuable thing, to aid in the construction of any railroad in this state, such railroad company, persons or person, their grantees, assignees, lessees, or mortgagees, shall keep all such roads in good running order, and shall run all trains over the same, and shall cause the same to be listed for taxation as provided in section 17, of chapter sixty-six entitled, "Revenue," and for each and every violation of any condition, requirement or non-compliance with this act, the corporation, persons or person, so violating, or non-complying, shall be fined in any sum not more than five hundred dollars, to be paid to the person or persons so injured, and to be collected by the proper civil action, and shall, in the discretion of the court, forfeit its charter and franchises, and the property of such corporations, companies, persons, or person, so violating, or non-complying, shall be subject to execution without stay thereof, where the same has not been forfeited. [Amended 1875, 69.1

SEC. 94. [Aiding other railroads Leasing.-Any railroad company heretofore or hereafter incorporated may, at any time, by means of subscription to the capital stock of any other company, or otherwise, aid such company in the construction of its railroad, for the purpose of forming a connection of said last mentioned road with the road owned by the company furnishing such aid; or any railroad company existing in pursuance of law, may lease or purchase any part or all of any railroad constructed by any other company, if said company's lines of said road are continuous or connected as aforesaid, upon such terms and conditions as may be agreed on between said companies respectively; or any two or more railroad companies, whose lines are so connected, may enter into an arrangement for their common benefit consistent with, and calculated to promote the objects for which they are created; Provided, That no such aid shall be furnished, nor any purchase, lease or arrangement perfected, until a meeting of the stockholders of each of said companies shall have been called by the directors thereof, at such time and place and in manner as they shall designate, and the holders of at least two-thirds of the stock of such company, represented at such meeting either in person or by proxy, and voting thereat, shall have assented thereto.

SEC. 95. [Right of way-Damages.]—Any railroad corporation may purchase and use real estate for a price to be agreed upon with the owners thereof; or the damages to be paid by such corporation for any real estate taken as aforesaid, when not agreed upon, shall be ascertained and determined by commissioners to be appointed by the probate judge of the county wherein such real estate is situated, in conformity with the provisions of this subdivision; Provided, That if the company shall need or require, for the purpose of constructing said railroad, to take and occupy any real estate, in any unorganized county, or other unorganized country in this state, where there is no probate judge, then the probate judge of the first organized county, east of said lands upon the line of said road,

SEC. 93. The reference in this section to sec. 17 chap. 66 is to Gen. Stat., 900. That sec. 17 has been substantially re-enacted by laws of 1879, 292, amended 1881. See secs. 39 and 40 of chapter 77,post.