Statement of the Case.

by which the defendant company was to continue to use the road for the time being, in order to prevent serious loss arising

authorized to take the acknowledgment of a deed; and file one of such articles in the office of the Secretary of State, another with the clerk of the county where the enterprise, business, pursuit, or occupation is proposed to be carried on, or the principal office or place of business is proposed to be located, and retain the third in the possession of the corporation.

"SEC. 3. The articles of incorporation, or a certified copy of the one filed with the Secretary of State or the County Clerk, is evidence of the existence of such corporation.

"SEC. 4. The articles of incorporation shall specify: 1. The name assumed by the corporation, and by which it shall be known, and the duration of the corporation if limited; 2. The enterprise, business, pursuit, or occupation in which the corporation proposes to engage; 3. The place where the corporation proposes to have its principal office or place of business; 4. The amount of the capital stock of the corporation; 5. The amount of each share of such capital stock; 6. If the corporation is formed for the purpose of navigating any stream or other water, or making or constructing any railroad, macadamized road, plank road, clay road, canal or bridge, the termini of such navigation, road, canal, or the site of such bridge.

"SEC. 5. Upon the making and filing of the articles of incorporation as herein provided, the persons subscribing the same are corporators, and authorized to carry into effect the objects specified in the articles, in the manner provided in this act; and they and their successors, associates and assigns, by the name assumed in such articles, shall thereafter be deemed a body corporate with power: 1. To sue and be sued; 2. To contract and be contracted with; 3. To have and use a corporate seal, and the same to alter at pleasure; 4. To purchase, possess and dispose of such real and personal property as may be necessary and convenient to carry into effect the object of the incorporation; 5. To appoint such subordinate officers and agents as the business of the corporation may require, and prescribe their duties and compensation; 6. To make by-laws, not inconsistent with any existing law, for the sale of any portion of its stock for delinquent or unpaid assessments due thereon, which sale may be made without judgment or execution; Provided, That no such sale shall be made without thirty days' notice of time and place of sale, in some newspaper in circulation in the neighborhood of such company, for the transfer of its stock, for the management of its property, and for the general regulation of its affairs."

"SEC. 9. . . . From the first meeting of the directors, the powers vested in the corporation are exercised by them, or by their officers or agents, except as otherwise specially provided in this chapter."

“SEC. 11. . . . The powers vested in the directors may be exercised by a majority of them, and any less number may constitute a quorum at all regular or stated meetings authorized by the by-laws of the corporation in all

Statement of the Case.

from the disruption of the relations of the two railroads, but that such use was not to be construed as being under the

the cases when either the directors or incorporators shall have filed with the Secretary of State and county clerk a written statement designating such less number sufficient to form a quorum. . . ."

"SEC. 19. Any corporation organized under the provisions of this act may, at any meeting of the stockholders which is called for such purpose, by a vote of the majority of the stock of such corporation, increase or diminish its capital stock or the amount of the shares thereof, or authorize the dissolution of such corporation and the settling of its business and disposing of its property and dividing its capital stock; provided, however, that the capital stock of any corporation formed under this act, except corporations formed for the purpose of making and constructing a railroad, shall never exceed the sum of two million of dollars, and any corporation that shall violate this provision of this act shall forfeit its corporate rights.

"SEC. 20. Any corporation formed for the purpose of navigating any stream or other water, may, by virtue of such incorporation, construct any railroad, macadamized road, plank road or clay road, or canal or bridge, necessary and convenient for the purpose of transporting freight or passengers across any portages on the line of such navigation, occasioned by any rapids or other obstructions to the navigation of such stream or other water, in like manner and with like effect as if such corporation had been specially formed for such purpose; but no corporation formed under this act or heretofore or hereafter incorporated by any special act of incorporation, passed by the Legislative Assembly of this State or otherwise, for the purpose of navigating any stream or other water of this State, or forming the boundary thereof in whole or in part, nor any stockholder in such corporation, shall ever take or hold stock, or any interest directly or indirectly in the stock of any corporation which may be formed under this act, for the purpose of building or constructing any road in this act mentioned; nor shall any such corporation ever purchase, lease or in any way control such road or the corporate rights of such last-named corporation; provided further, that corporations heretofore incorporated or which may hereafter be formed under this act for the purpose of establishing and keeping a ferry across any stream or other water of this State or forming the boundary thereof, in whole or in part, shall not be deemed a corporation for the purpose of navigating such stream or water within the meaning of this act, nor shall the stockholders thereof be restrained from taking or holding stock in a corporation formed under this act for the purpose of constructing or building any road."

(c) An act passed October 18, 1878, to amend section twenty (above quoted) so as to read as follows:

'Any corporation formed for the purpose of navigating any stream or other water may, by virtue of such incorporation, construct any railway,

Statement of the Case.

lease, nor as binding either party beyond what the law would imply if this arrangement had not been made. There is also

macadamized road, plank road, or clay road, or canal, or bridge necessary or convenient for the purpose of transporting freight or passengers across any portage on the line of such navigation, occasioned by any rapids or other obstructions to the navigation of such stream, or other water, in like manner, and with like effect, as if such corporation had been formed for such purpose."

(d) "An act to authorize foreign incorporations to do business and exercise their corporate powers within the State of Oregon, passed October 21, 1878. "SEC. 1. That any foreign incorporation incorporated for the purpose of constructing, or constructing and operating, or for the purpose of or with the power of acquiring and operating any railway, macadamized road, plank road, clay road, canal or bridge, or for the purpose of conducting water, gas or other substance, by means of pipes laid under ground, shall, on compliance with the laws of this State for the regulation of foreign corporations transacting business therein, have the same rights, powers and privileges in the exercise of the rights of eminent domain, collection of tolls, and other prerogative franchises as are given by the laws of this State to corporations organized within this State, for the purpose of constructing any railway, macadamized road, plank road, clay road, canal or bridge, or for the purpose of conducting water by means of pipes laid under the surface of the ground.

"SEC. 2. Nothing in this act contained shall be so construed as to give to any foreign corporation or corporations, any other or further rights, powers, or privileges than may be acquired or exercised by corporations incorporated under the laws of this State; but only so as to give to foreign corporations the same rights, powers and privileges, on a compliance with the laws of this State, as may be acquired or exercised by corporations incorporated under the laws of this State."

(e) "Act of 22d October, 1880, entitled an act to grant the Oregonian Railway Company, Limited, the right of way and station grounds over the state lands, and terminal facilities upon the public grounds at the city of Portland."

"Whereas, the Oregonian Railway Company, Limited, is now engaged in the construction of a system of railways in the State of Oregon, from the city of Portland, the most used shipping port of this State, to the head of the Willamette Valley, and to a connection with the systems of railroads having a connection with those States and Territories of the United States situate east of the Rocky Mountains, and the building of the railway of said company will be of great benefit and lasting advantage to the people of this State: Now, therefore,

Statement of the Case.

an averment in the petition that the property was not in the same condition when the offer to return it was made as it was

"Be it enacted, &c., That there by [be] and is hereby granted to the Oregonian Railway Company, Limited, a corporation at this time engaged in the construction and operation of a railway in the State of Oregon, and to its assigns, the owners and operators of the railway now being constructed by it, and for the use of said railway, in the construction, use and operation thereof, the rights, privileges, easements, and property following, that is to say:

66

SEC. 1. Those certain premises situate in the city of Portland, in the State of Oregon, and commonly known as the public levee, to be held, used and enjoyed for occupation by track, side track, water stations, depot buildings, wharves and warehouses, and such other buildings and erections of such form and manner of construction as may be found requisite, necessary or convenient in the receiving, shipping and storing of produce, goods, wares, merchandise and generally of all kinds of freight, and for use generally and in the manner usual and ordinary for depot purposes, and as such to be under the exclusive management and control of the owners of said railway;

Provided, always, That the said Oregonian Railway Company, Limited, or its assigns, shall have no power to sell, convey or assign the premises or rights hereby granted, or any part or parcel thereof, to any person, persons, firm or corporation, save only with and as part and parcel of, and as appurtenant to the railway now built and owned by said company, and now in process of construction by it. . . ."

(f) The paper referred to by the Court in its opinion on page 29, entitled, "Public Statutes of Oregon recognizing the assignability of railroads.” "In addition to the Oregonian Railway Company's Act of 22 Oct., 1880, there are the following:

"1. The Oregon Railway and Navigation Co.'s Act

1880

Oregon Statutes, 25 Oct.

"Recites that the O. R. & N. Co. was duly incorporated on July 13, 1879, for the purpose, among other things, of,' etc. SEC. 1. That there be and there is hereby granted to the said O. R. & N. Co., its successors and assigns, the right of way through any and all lands belonging to the State of Oregon, etc. SEC. 2. Whenever said company, its successors or assigns, shall file, etc.

"2. Statutes of Oregon for 1880, p. 55

Co.'s Act.

...

Astoria and Winnemucca Railroad

"SEC. 1. That there be and is hereby granted to the A. & W. R. R. Co., and its assigns, the right of way, etc. SEC. 4. That the same company shall have the right, and it and its assigns are hereby authorized to construct bridges, etc.

Argument for Defendant in Error.

when it was received; but this is denied in the answer, and as no proof was taken in regard to that fact it can make no figure in the case as presented to this court.

Mr. J. N. Dolph and Mr. James C. Carter for plaintiff in

error.

Mr. Sidney Bartlett also filed a brief for plaintiff in error.

Mr. Attorney General and Mr. George F. Edmunds (with whom was Mr. Edmund Robertson on the brief) for defendant in error.

I. The lease was within the corporate powers of the defendant. It is admitted that the contract in question is covered

"3. Oregon Statutes, 1878, 55— Portland Bridge Co.'s Act.

"SEC. 1. That it shall be lawful for the Portland Bridge Co., a corporation duly incorporated under and in conformity with the law of Oregon, or its assigns, and that said corporation or its assigns be and are hereby authorized and empowered to construct, build, etc.

"4. Statutes of 1882, 7 — Oregon Short-Line Railway Co.'s Act-17 October. "SEC. 1. That there be and hereby is granted the said O. S. L. R. Co., and its successors or assigns, the right of way, etc.

"5. Statutes of 1872, 16- Portland, Dalles and Salt Lake R. R. Co.'s Act 15 Oct.

"SEC. 1. Grants proceeds of land sales. SEC. 2. Grants rights of way. SEC. 11. The rights and privileges of this company, hereby granted, shall not be assignable to any other company without the assent of the Legislature.

"6. Statutes of 1874, 14- Oregon Central Pacific Railway and Telegraphic Line 24 Oct. 1874.

"SEC. 1. That there be and is hereby granted to the Oregon Central Pacific Company and its assigns the right of way through any lands belonging to the State of Oregon, etc.

The following act is posterior to the litigation in this case, viz., ' An act to provide for the completion of the narrow-gauge system.' (24 Feb., 1885.) It recites the Oregonian Railway Co.'s Act of 22 Oct. 1880, and proceeds: Whereas, said Oregonian Railway Company, Limited, did, on the 1st day of August, 1881, then lease its constructed lines of railway in the Willamette Valley to the Oregon Railway and Navigation Company for the period of ninety-six years, etc."