nership formed for any such or like purpose; and all persons interested as aforesaid are hereby declared ineligible for any such office or appointment. (R. S. 1889, § 2555.)

SEC. 1048. Penalty for holding office in violation of the preceding section.-If any person shall be elected to any office or appointed to any position in violation of the preceding section, and shall hold any such office or appointment, he shall forfeit and pay the sum of one hundred dollars for each and every day that he shall exercise the functions of said office, which amount may be recovered at the suit of any stockholder of the company in which the office or appointment shall be unlawfully held. Such suit shall be in the name of the company, and one-half of the amount received shall go into the treasury of the company, and the other half to the stockholder prosecuting. (R. S. 1889, § 2556.)

SEC. 1049. Capital stock may be reduced, when and how. Any railroad company incorporated by the laws of this state may at any time reduce the amount of their capital or common stock by a vote of three-fifths in interest of all the stock of such company to be affected thereby, at a stockholders' meeting, called in conformity to the by-laws of such company; and if so voted for, said capital stock may be reduced upon the plan in detail thus submitted to the stockholders: Provided, that such reduction shall be so made as to affect the interest of all stockholders alike: Provided, that nothing in this section shall be so construed as to permit the reduction of the capital stock of any company below the minimum amount prescribed by law. (R. S. 1889, § 2557.)

SEC. 1050. Preferred stock may be issued, when. -Any railroad company organized under the laws of this state may issue a preferred stock for such amount, and upon such terms and conditions, as the board of directors may prescribe. But before any issueof such preferred stock shall be made, the question of issuing the same, together with the terms, conditions and privileges upon which the same is proposed to be issued, shall be submitted to a vote of the stockholders of said company, at a regular annual election for the directors thereof, or at a special meeting of the stockholders of said company called to consider the same, if at such election all the stockholders shall consent. At all elections called to consider the question of issuing preferred stock, as provided in this section, no person shall be permitted to cast any vote as a proxy for the owner of any share or shares of stock without he shall produce written authority, signed by the owner thereof, and duly acknowledged before some officer having authority to take the acknowledgment of deeds; and a record of such authority showing the name of the owner of the stock, and the name of the person casting such vote in his behalf, shall be entered upon the records of the company in a book to be kept for that purpose; and it is also further provided, that when a dividend of ten per cent. per annum shall have been declared upon the preferred stock of any company, issued in pursuance of this section, then all other dividends shall be declared and distributed pro rata until the dividends on the common stock shall equal the dividends on the preferred stock, among all the stockholders of such corporation; and provided further, that nothing contained in this section shall be so construed as to give the holders of the preferred stock herein provided for any other or greater power in the control and management of any corporation, or in the election of the officers thereof, than is exer

cised by the owners of the original or common stock of such company. Said preferred stock shall be offered to all the common stockholders pro rata in proportion to the amount of common stock held by them. If any common stockholder shall fail to take such preferred stock after thirty days' notice by publication in two daily newspapers in St. Louis, and written notice to clerks of counties holding stock, then any other person may buy said stock. (R. S. 1889, § 2558.)

SEC. 1051. Road-bed may be changed-gauge.-The directors of any railroad company heretofore incorporated under any general or special law, or that may hereafter be organized under the provisions of this article, may, by a vote of two-thirds of their whole number, at any time change their road-bed, or road-line, or any part thereof, for the purpose of shortening the line or to overcome natural objections thereto, or to secure economy in its construction; and when the capital stock of such company subscribed, and the amount paid thereon, shall be equal to or exceed the amount per mile, including the proposed extension, which, by section 1036, is required to be subscribed and paid before filing the original articles of association, then such company may, by a like vote of its directors, at any time extend its line or road-bed from either terminus named in its original charter to such other point as shall be named in such proceedings of such company. And whenever the business of any railroad company which may have heretofore organized or which may hereafter organize to construct a railroad of any gauge may demand a change of the gaugethereof, or whenever for other causes such change of gauge may become necessary or desirable, such company may, by a like vote of its directors, change its gauge, if a narrow, to a broad or standard, and if a broad or standard, to a narrow gauge railroad: Provided, that if such railroad desiring such change of gauge be a narrow gauge railroad, such change of gauge shall not be made unless the capital stock of said company shall be at least ten thousand dollars per mile of such road constructed, or shall be increased in the manner provided in this chapter to such sum, nor unless there shall be subscribed in good faith at least one thousand dollars per mile of such road constructed or proposed to be constructed, and five per cent. thereon paid in cash, nor until such company shall pay into the state treasury the sum of five dollars for every ten thousand dollars of increased capital stock made necessary by such change of gauge. Such proceedings in relation to the extension of their road shall be entered on the record of the company, and a copy of such proceedings, with an affidavit as required by section 1036 indorsed thereon, shall be filed in the office of the secretary of state, and by him recorded and certified as the original articles of association. But nothing contained in this article shall be so construed as to authorize such company to change the general route of their line or road-bed, or to avoid running their road through any point named in the original articles of association, or either terminus named therein, or to change the last established terminus except by extension of their road as aforesaid. (R. S. 1889, § 2559—i.)

SEC. 1052. Right of way through state lands.-The right of way is hereby granted to any railroad company through any unimproved land belonging to this state, through which their railroad may pass; and in case any more land belonging to this state shall be re

(i) This section relied on in return to writ of mandamus and return held sufficient. 80 Mo. 117. Duty of company to run trains, remedy by mandamus. 77 Mo. 143.

quired for the purpose of any railroad corporation than is needed for the track of the road, and in case any improved land belonging to the state shall be necessary for the purpose of any railroad corporation, the secretary of state shall have power to grant to any railroad company any land belonging to this state which may be required for the purposes of their road, on such terms as may be agreed on between said secretary of state and said company; or such company may acquire title thereto by appraisal, as in the case of land owned by individuals; and if any land belonging to a county, city or town is required by any company for the purposes of their road, the county or city or town officers having charge of such land may grant to such company, on such terms as may be agreed upon, or the land may be appraised in the manner aforesaid. (R. S. 1889, § 2560-j.)

SEC. 1053. Title to lands of persons not sui juris, how acquired. In case any title or interest in real estate required by any company formed under this article for the purpose of its incorporation shall be vested in any trustee not authorized to sell, release and convey the same, or in any infant, idiot or person of unsound mind, the circuit court shall have power by a summary proceeding on petition to authorize and empower such trustee, or the court having probate jurisdiction, or the special guardian of such infant, idiot or person of unsound mind, to sell and convey the same to such company, for the purposes of its incorporation, on such terms as may be just; and in case any such infant, idiot or person of unsound mind is not in charge of said court or guardian, the said court may appoint a special guardian for the purpose of making such sale, release or conveyance, and may require such security from such special guardian as said court may deem proper. But before any conveyance or release, authorized by this section, shall be executed, the terms on which the same is to be executed shall be reported to the court on. oath; and if the court is satisfied that such terms are just to the parties interested in such real estate, the court shall confirm the report and direct the proper conveyance or release to be executed, which shall have the same effect as if executed by an owner of said land, having legal power to sell and convey the same. (R. S. 1889, § 2561.)

SEC. 1054. School lands, how title acquired. — - In all cases when it becomes necessary for any railroad company to acquire title to any unsold sixteenth section, or other school lands, required for the purposes of the incorporation, it shall be lawful in proceedings instituted by such railroad company to acquire title thereto, to notify the county school commissioner of the county in which such land, or the greater part thereof, is situate; or, if there be no such commissioner qualified to act, then such notice may be served upon the presiding justice of the county court of the county in which such land, or the greater part thereof, is situate; and like proceedings shall be had as in other cases. (R. S. 1889, § 2562.)

SEC. 1055. May take and hold lands for side-tracks and depots. Any railroad company in this state shall have the right to take and hold all necessary ground for depots and side-tracks, and if the title thereof cannot be secured by agreement with the owners thereof, or if from any other cause the title may not be secured, such company may proceed to condemn the same, in the same manner and

(j) 138 Mo. 464.

with the same effect as is now provided by law for the condemnation of other lands. (R. S. 1889, § 2563—k.)

SEC. 1056. Shall file profile maps, when.-Every railroad company shall, before constructing any part of their road into or through any county named in their articles of association, and every company heretofore formed and now operating roads in any county in this state, shall make a profile map or maps of the route intended to be or already adopted by such company in such county, which map or maps shall show the actual survey, location and distance of the road-bed through the congressional sections through which such road runs, and also the location and number of miles of main and side-tracks of such road in such county, and which map or maps shall be certified by the president and engineer of the company or a majority of the directors, and filed in the office of the clerk of the county court of the county in which the road is to be or has been made. The company shall give written notice to all actual occupants of the land over which the route of the road is so designated, and which has not been purchased by or given to the company. (R. S. 1889, § 2564—1.)

SEC. 1057. Company liable to sub-contractors, laborers, etc., when. Whenever any contractor for the construction of any part of a railroad which is in process of construction, or any contractor for the repairing of any part of a railroad, shall be indebted to any sub-contractor or laborer, or other person, who shall do or perform any work or labor upon or furnish any materials for said road, such sub-contractor or laborer, or other person may give notice of such indebtedness to said company in the manner hereinafter provided; and said company shall thereupon become liable to pay such sub-contractor or laborer, or other person, the amount so due, and action may be maintained against said railroad therefor; such notice shall be given by said sub-contractor, laborer or other person, within twenty days after the performance of the labor or work, or the delivery of the materials, for which the claim is made; such notice shall be in writing, and shall state the amount and number of days' labor or work, and the amount, description and quantity of materials furnished and the time when the said labor or work was performed, and the time when the said materials were furnished, for which the claim is made, and the name of the contractor from whom due, and shall be signed by such sub-contractor, laborer or other person, or their attorney, and shall be served on an engineer, agent or other person employed by said company having charge of the section of the road on which said labor or work was performed, or such material furnished, personally, or by leaving said notice in the office or usual place of business of such engineer, agent or person having charge, with some person over fifteen years of age; but no action shall be maintained against any company under the provisions of this section, unless the same be commenced within ninety days after notice is given to the company by such subcontractor or laborer, as above provided. (R. S. 1889, § 2565-m.)

(k) 135 Mo. 646.

(1) 113 Mo. 458; 135 Mo. 556.

(m) Statute construed. 76 Mo. 161. 60 Mo. 290; 57 Mo. 304. Service upon agent of foreign railroad company, service upon company. 76 Mo. 161. All interested companies need not be made parties. 76 Mo. 161. As to subrogation of sub-contractors. 55 A. 107. Establishment of lien for materials furnished. 59 A. 6. Sufficiency of evidence as to authority to contract. 59 A. 6; 52 A. 516; 62 A. 677; 111 Mo. 329; 112 Mo. 463.

SEC. 1058. May take material for construction, when and how.-Any company shall have power, by themselves or agents, to enter and take from any land in the neighborhood of the line of their railroad, earth, gravel, stone, wood, water, or other material necessary for the construction and operation of said road, and also for the purpose of depositing thereon earth, stone, gravel, etc., and for the purpose of procuring water for their uses; may lay pipes, erect pumps, dams and reservoirs, and maintain and keep the same in repair, paying, if the owner of said lands and the said company can agree, the damages they shall do to said land or its appurtenances; or, if they cannot agree, then said company, before entering upon the land, shall apply to a justice of the peace of the county for the appointment of three commissioners, who shall be freeholders and disinterested, to ascertain the amount of the damages, who, being duly sworn by the justice impartially and faithfully to discharge the duties devolving on them, shall then ascertain the compensation, upon their own view of the grounds, and of the wood, earth, stone or gravel which may be taken therefrom, or the earth, stone, gravel, etc., that may be deposited tereon, and the injury done in taking them, or depositing thereon: Provided, that it shall be the duty of the party making the application to show to the justice of the peace that ten days' previous notice of the time of making the same has been given to the other party, or to some one of them; and no award which may be given under any appointment, without such notice, shall be obligatory or binding on the other party; and either party not satisfied with the award may appeal to the circuit court of the county in which said land may be, which may, at its discretion, confirm the said award and enter it of record, or, as often as may be deemed necessary, may supercede the said viewers, or any of them, appoint others in their stead, and direct another view and award to be made in the manner aforesaid. If any justice of the peace, or any freeholder, shall refuse or neglect to perform the duties assigned to them, respectively, or prescribed in this section, upon being thereto required by either party, as aforesaid, such justice or freeholder shall forfeit and pay to the party making the application a sum not exceeding twenty-five dollars, to be recovered before any justice of the peace of the county of which he is an inhabitant, and shall, moreover, be liable to the party aggrieved: Provided, that no property shall be entered upon or disturbed, or the title divested under the provisions of this section, until the amount assessed by the commissioners or the circuit court shall be paid to such land owner, or deposited with the justice, or in court or with the clerk thereof, for such owners. (R. S. 1889, § 2566-n.)

SEC. 1059. Companies may consolidate, when.-Any two or more railroad companies in this state, existing under either general or special laws, and owning railroads constructed wholly or in in part, which, when completed and connected, will form in the whole or in the main one continuous line of railroad, are hereby authorized to consolidate in the whole or in the main, and form one company owning and controlling such continuous line of road, with all the powers, rights, privileges and immunities, and subject to all the obliga

(n) Condemnation of land against owner's consent exacts strict compliance with statute. 89 Mo. 61; 61 Mo. 33; 51 Mo. 200. No waiver of trial by jury to ask appointment of commissioners; demand for jury may be made, when. 106 Mo. 458. Right of action for damages survives to representative of deceased. 114 Mo. 309; 101 Mo. 484; 124 Mo. 544.