Chapter 31. CORPORATIONS.

§1. Application; Definitions.—Except as therein otherwise provided the sections of this article shall become and be effective from the date fixed in the act of the legislature adopting the same, and the provisions thereof shall apply to and govern all corporations then existing or thereafter formed, and all corporate acts thereafter done: Provided, That nothing in this article contained shall be construed to affect the existence of any then existing corporation or to impair the validity of any corporate act done and performed in accordance with the preexisting law: Provided further, That in the event of any inconsistency between any of the provisions of said sections and the rights conferred by any special act of the legislature of the State of Virginia before the formation of the State of West Virginia, or the legislature of the State of West Virginia subsequent to such date, the provisions of such special act shall prevail to the extent of such inconsistency: And provided further, That in the event of any inconsistency between any of the provisions of said sections and the provisions made for particular classes of corporations by the subsequent articles of this chapter, the latter shall prevail to the extent of such inconsistency.

The words “director or directors” shall include trustees, managers and the members of the governing or managing body, by whatever name they may be called, and whether of a stock or nonstock corporation.

The words “stockholder” or “stockholders,” “shareholder” or “shareholders” shall include members of corporations having no capital stock unless a restricted meaning is required by the context.

The word “charter” shall include a charter granted by special act, or a certificate of incorporation issued by the secretary of state, and all amendments made thereto, unless such construction is inconsistent with the context.

The word “corporation” shall include every corporation heretofore or hereafter created under the laws of this State for any of the purposes or objects for which a corporation may be created under the provisions of this chapter, and shall include the plural as well as the singular number, unless the meaning shall be limited or restricted by the context.

Either of the words “administrator” or “executor” shall include the other, and shall include the plural number, and all agencies for administering the estates of decedents, however entitled.

Nothing in this chapter shall release any corporation from the payment of any tax or the performance of any obligation to the State or to any county, city or district therein, due or existing at the time this chapter becomes effective, or impair or change any remedy provided for the collection or enforcement of the same; and nothing herein shall release, affect or impair the rights of any creditor of any corporation, or the obligations or liability of any corporation, or of any subscriber, or of any corporate officer, or the remedies to enforce the same existing at the time this chapter becomes effective.

Any duty to be performed under this chapter by any officer of a corporation, or any public official, may be performed by his duly authorized assistant officer.

§2. Classification of Corporations; Existing and Foreign Corporations.—Corporations created hereunder shall be either stock or nonstock corporations. Stock corporations are those having capital stock divided into shares. Nonstock corporations are those having no capital stock. Existing corporations shall enjoy the benefits and be subject to the limitations herein contained. Foreign corporations may exercise the privileges herein conferred, upon the terms and conditions, and subject to the restrictions, hereinafter set out.

§3. Powers; Provision for Compromises and Reorganizations.—Every corporation as such shall have succession by its corporate name for the time limited in its charter, and, if no time be limited, perpetually. It shall have a common seal and may renew or alter the same at pleasure. It may sue and be sued, complain and defend; contract and be contracted with, by simple contract or specialty; purchase, hold, use, grant, mortgage, pledge, encumber and lease real and personal estate and its franchises, unless forbidden by law; appoint officers and agents, prescribe their powers, duties and liabilities, take bond and security from any of them, and fix their compensation; make all lawful by-laws for the management of its property, the conduct of its business, and the pursuit of the purposes of its incorporation; and generally exercise all of the powers set forth in its charter and those enumerated in this article; and also do and perform every other act or thing not inconsistent with law which may be appropriate to promote and attain the objects and purposes set forth in its charter.

Every corporation created for profit, either under the general provisions of this chapter or under the special provisions and requirements thereof applicable to special classes of corporations, other than banking institutions, shall also have power to include in its agreement of incorporation the provision, contained in subdivision (h) of section six of this article, for compromises and arrangements between the corporation so created and its creditors and/or stockholders and for reorganizations of such corporation in consequence of such compromises and arrangements. Whenever such provision is included in the original agreement of incorporation of any such corporation, all persons who become creditors or stockholders thereof shall be deemed to have become such creditors or stockholders subject in all respects to such provision and the same shall be absolutely binding upon them; and whenever such provision is inserted in the charter of any such corporation by an amendment of such charter all persons who become creditors or stockholders of such corporation after such amendment shall be deemed to have become such creditors of stockholders subject in all respects to the said provision and the same shall be absolutely binding upon them. Every such corporation, in the charter of which is included or inserted the said provision contained in said subdivision (h) of section six, shall be of such nature that any court of equitable jurisdiction within this State shall have power to administer and enforce such provision, and to restrain, pendente lite, all action and proceedings against any such corporation with respect to which the court so restraining shall have begun the administration and/or enforcement of such provision, and to appoint temporary receiver or receivers for such corporation and to grant such receiver or receiver such powers as shall be deemed proper.(Code 1849, c. 56, §1; Code 1860, c. 56, §1; 1863, c. 83 Code 1868, c. 52, §1; Code 1923, c. 52, §1.)

§4. Number of Incorporators; Purposes Incorporation.—Any number of persons, no fewer than three, may associate to establish stock corporation to engage in any lawful business or to promote or carry on any lawful object or purpose anywhere; and any number of persons, not fewer than five, may associate to establish a nonstock corporation for any lawful business, mutual, benevolent, civic, educational, eleemosynary, fraternal, or philanthropic, purpose anywhere, or for mutual insurance companies anywhere; and in either case shall enter into and file the agreement hereinafter required: Provided, That no church, religious sect or denomination shall be incorporated.(Const. 1863, art. 11, §5; Const. 1872, art. 6, §47, art. 11, §1; 1863, c. 83; Code 1868, cc. 53, 54; 1868, c. 177; 1871, c. 86; 1872-3, cc. 83, 107; 1879, c. 39; 1881, c. 17; 1882, cc. 96, 98; 1883, c. 58; 1908, c. 32; Code 1923, c. 54, §§2, 3, 6, c. 54A, §1, c. 55, §§1, 2.)

§5. Duration of Corporate Existence.—Every corporation formed hereunder, unless sooner dissolved, shall have the right to perpetual succession. Any existing corporation may obtain the benefit of this section by an amendment of its charter in the manner hereinafter set out.(1863, c. 83; Code 1868, c. 54, §11; 1881, c. 17; 1901, c. 35; Code 1923, c. 54, §11.)

§6. Agreement of Incorporation.—The persons desiring to form a corporation as provide in section four hereof, shall sign, acknowledge and file with the secretary of state an agreement, in the general form prescribed by the secretary of state, in which shall be set forth:

(a) The name of the corporation, which r name shall contain one of the words “association,” “company,” “corporation,” “club,” of “incorporated,” “society,” “union,” or “syndicate,” or one of the abbreviations, “co.” or a “inc.”; but no name shall be assumed already in use by another existing corporation of this State, or by a foreign corporation lawfully doing business in this State, or so similar thereto, in the opinion of the secretary of state, as to lead to confusion.

(b) The post-office address of its principal office or place of business.

(c) The object or objects for which the corporation is formed and the location of its chief works, if it proposes to have any.

(d) If the corporation is to be authorized to issue only one class of stock, the total number of shares of stock which the corporation shall have authority to issue and (1) the par value of each of such shares, or (2) a statement that all such shares are to be without par value; or, if the corporation is to be authorized to issue more than one class of stock, the total number of shares of all classes of stock which the corporation shall have authority to issue and (1) the number of the shares of each class thereof that are to have a par value and the par value of each share of each such class, and/or (2) the number of such shares that are to be without par value, and (3) a statement of all or any of the designations and the powers, preferences and rights, and the qualifications, limitations or restrictions thereof, which are permitted by the provisions of section twenty-two of this article in respect of any class or classes of stock of the corporation and the fixing of which by the agreement of incorporation is desired, and an express grant of such authority as it may then be desired to grant to the board of directors to fix by resolution or resolutions any thereof that may be desired but which shall not be fixed by such agreement. In each case the agreement of incorporation shall also set forth the minimum amount of capital with which the corporation will commence business, which shall not be less than one thousand dollars. The provisions of this subdivision (d) shall not apply to corporations which are not organized for profit and which are not to have authority to issue capital stock. In the case of such corporations, the fact that they are not to have authority to issue capital stock shall be stated in the agreement of incorporation, and the conditions of membership shall be stated therein.

(e) The names and post-office addresses of the incorporators, and, if a stock corporation, the number of shares subscribed by each.

(f) Whether or not the corporation is to have perpetual existence; if not, the time when its existence is to commence and the time when its existence is to cease.

(g) The agreement may also contain any provision which the incorporators may choose to insert for the management of the business and for the conduct of the affairs of the corporation, and any provisions creating, defining, limiting and regulating the powers of the corporation, the directors and the stockholders, or any class of the stockholders, or, in the case of a corporation which is to have no capital stock, of the members of such corporation: Provided, Such provisions are not contrary to the laws of this State.

(h) The agreement may also contain the following provision in haec verba, viz: “Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of West Virginia may, on the application in a summary way of this corporation or of any creditor or stockholder thereof, or on the application of trustees in dissolution or of any receiver or receivers appointed for this corporation under the laws of the State of West Virginia, order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the ease may be, to be summoned in such manner as the court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stock holders or class of stockholders of this corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this corporation as consequence of such compromise or arrangement, such compromise or arrangement and such reorganization shall, if sanctioned by the court to which such application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders of this corporation, as the case may be, and also on this corporation.”

(i) The agreement may also contain such provisions as may be desired limiting or denying to the stockholders the preemptive right to subscribe to any or all additional issues of stock of the corporation of any or all classes.

(j) The agreement may also contain provisions requiring for any corporate action the vote of a larger proportion of the stock or any class thereof than is required by this chapter. The agreement shall be acknowledged by the incorporators and transmitted with the proper fees to, and shall be filed with, the secretary of state.(1863, c. 83; Code 1868, c. 54; 1881, c. 17; 1882, c. 97; 1901, c. 35; 1920, 1st Ex. Sess., c. 3; Code 1923, c. 54, §§6, 8, 32, c. 54A, §§2, 3, c. 55, §2.)

§7. Issuance of Charter.—Upon the filing of such agreement in the office of the secretary of state, and the payment of the fees required by law, he shall issue his certificate under the great seal of the State, to the following effect: “I, A. B., Secretary of State of the State of West Virginia, hereby certify that an agreement, duly acknowledged, has been this day filed in my office, which agreement is in words and figures following: (here insert). Wherefore, the corporators named in the said agreement, and who have signed the same, and their successors and assigns, are hereby declared to be from this date a corporation by the name and for the purposes set forth in the said agreement, with the right of perpetual succession. Given under my hand and the great seal of the said State, at Charleston, this..........day of........................, 19......” The secretary of state shall preserve such agreements in his office and shall record in a well-bound book all certificates of incorporation and changes therein or amendments thereto, and may at any time make and certify a copy thereof, which certified copy shall, as evidence, be equivalent to the original.(1863, c. 83; Code 1868, c. 54; 1881, c. 17; 1882, c, 97; Code 1923, c. 54, §§9, 17, 19, 33, 34, c. 54A, §4. c. 55, §3.)

§8. Effect of Charter; Right of Legislature to Alter Charter or Repeal Law.—When a certificate of incorporation shall be issued by the secretary of state, pursuant to this chapter, the incorporators named in the agreement recited therein and who have signed the same, and their successors and assigns, shall, from the date of such certificate, unless sooner dissolved according to law, be a corporation, with the right of perpetual succession, by the name and for the purpose, purposes, object or objects therein specified. And such certificate of incorporation shall be received as evidence of the existence of the corporation as aforesaid. Where the legislature heretofore has reserved the right to alter or repeal the charter or certificate of in corporation heretofore granted to any corporation, or to alter or repeal any law applicable to such corporation, such right is hereby expressly reserved. And the right of the legislature to alter any charter or certificate of in corporation hereafter granted and to alter or repeal any law applicable to such corporation, is hereby expressly reserved. But no act of the legislature hereunder shall impair or affect the rights of the creditors of the corporation to have its assets applied to the discharge of its debts, or of the stockholders of such corporation, if any assets shall remain after paying the corporate debts, to receive, appropriate and disburse such surplus assets among themselves as their respective rights thereto may exist.(1863, c. 83; 1867, c. 5; Code 1868, cc. 53, 54; 1881, c. 17; 1882, c. 96; 1901, c. 35; Code 1923, c. 53; §8, c. 54, §§10, 34, c. 54A, §4, c. 55, §5.)

§9. Time of Organization.—When a certificate of incorporation is issued hereunder, the incorporators named in the agreement, or a majority of them, shall appoint the time and place for holding a general meeting of the stockholders or members, as the case may be, to elect a board of directors or other managing body, make by-laws, and transact any other business which may lawfully be done by such stockholders or members in general meeting. The time appointed for such meeting shall not be more than six months from the date of the certificate and at least two weeks’ notice shall be given by mailing a copy to each subscriber, or by advertisement once a week in some newspaper of general circulation published near the principal office of such corporation, unless notice is waived as hereinafter provided.(Code 1849, c. 57; Code 1860, c. 57; Code 1868, c. 53; 1882, c. 96; 1901, c. 35; Code 1923, c. 53, §6, c. 54, §36, c. 54A, §6.)

§10. Recordation of Certificate.—If the corporation has its principal office in this State, it shall cause such certificate, or a duly certified copy thereof, to be recorded in the office of the clerk of the county court of the county in which such principal office is located; if its principal office is not within this State but it does business herein, then in the county in which it does its principal business. If its principal office is without the State and it does not do business within the State, such charter need not be recorded in a county clerk’s office. A failure to comply with the foregoing provision within six months from the date of such certificate shall subject the corporation to a fine of not more than one thousand dollars.(1863, c. 83; Code 1868, c. 54; 1881, c. 17; 1901, c. 35; Code 1923, c. 54, §20.)

§11. Amendment of Charter.—Every corporation of this State heretofore or hereafter incorporated may, from time to time and in the manner herein provided, when and as desired, amend its charter by addition to its corporate powers and purposes, or diminution thereof, or both; or by substitution of other powers and purposes, in whole or in part, for those set forth in its charter; or by increasing or decreasing its authorized capital stock or classifying or reclassifying the same, by changing the number, par value, designations, preferences, or relative, a participating, optional, or other special rights of the shares, or the qualifications, limitations or restrictions of such rights, or by changing a shares with par value into shares without par value or shares without par value into shares with par value either with or without increasing or decreasing the number of shares; or by changing its corporate name, or by making any other change or alteration in its charter that may be desired; and any or all such changes or alterations may be effected by one amendment: Provided, That every charter as so amended, changed or altered, shall contain only such provisions as it would be lawful and proper to have in an original agreement of incorporation made at the time of making such amendment. Whenever issued shares having par value are changed into the same or a greater or less number of shares without par value, whether of the same or of a different class or classes of stock, the aggregate amount of the capital of the corporation represented by such shares without par value shall be the same as the aggregate amount of capital represented by the shares so changed; and whenever issued shares without par value are changed into other shares without par value to a greater or lesser number, whether of the same or of a different class or classes, the amount of capital represented by the new shares in the aggregate shall be the same as the aggregate amount of capital represented by the shares so changed. The amendment of the charter of the corporation effecting any such change shall set forth that the capital of the corporation will not be reduced under or by reason of such amendment.(1863, c. 105; Code 1868, c. 53, §§12, 13, c. 54, §§10, 13, 21, 22; 1881, c. 17; 1882, cc. 96, 97; 1901, c. 35; Code 1923, c. 53, §12, c. 54, §§10, 13, 21.)

§12. Same; How Made.—Except as herein after in this section provided, a resolution or resolutions specifically stating the proposed amendment or amendments shall be adopted by a majority vote of all of the shares of capital stock of the company entitled to vote at a regular or special meeting of the stockholders, and notice of such meeting shall be given as provided by the by-laws of the corporation, or, in the absence of a provision in the by-laws for such notice, in the manner provided in this article. The notice to stockholders shall inform them of the amendments of the charter proposed to be made and that the stockholders at the meeting will vote upon the question or questions of making such amendments: Provided, however, That if any such proposed amendment would alter or change the preferences given to any one or more classes of stock, by the charter, so as to affect such class or classes of stock adversely, or would increase or decrease the amount of the authorized stock of such class or classes of stock, or would increase or decrease the par value thereof, then the holders of the stock of each class of stock so affected by the amendment shall be entitled to vote as a class upon such amendment, whether by the terms of the charter such class be entitled to vote or not; and the affirmative vote of two-thirds in interest of each such class of stock so affected by the amendment shall be necessary to the adoption thereof, in addition to the affirmative vote of a majority of every other class of stock entitled to vote thereon: Provided further, That the amount of the authorized stock of any such class or classes of stock may be increased or decreased by the affirmative vote of the holders of a majority of the stock of the corporation entitled to vote, if so provided in the original charter or in any amendment thereto which created such class or classes of stock or in any amendment thereto which was authorized by a resolution or resolutions adopted by the affirmative vote of the holders of two-thirds of such class or classes of stock: And provided further, That any amendment to the charter under a right reserved therein to make such amendment may be made in the manner specified in the charter and by a vote of the proportion of the shares of outstanding stock and of the class or classes of stock authorized to make such amendment or amendments under the provisions of such reservation to amend, as set out in the charter.

The president or a vice president of the corporation, under his signature and the seal of the corporation, shall certify the resolution or resolutions and the fact and the manner of the adoption of the same, and of the assenting of all stockholders, the consent of whom is required under this article to the making of such amendment or amendments, to the secretary of state, who shall issue his certificate reciting such resolution, corporate action and facts certified in like manner and with like effect as an original certificate of incorporation and transmit the same to the corporation. Such certificate or a certified copy thereof shall be recorded and received in evidence as provided for the recordation and admission in evidence of an original certificate of incorporation or a certified copy of such original. Such certificate shall declare the changes or amendments as in effect from the date thereof.(1863, c. 105; Code 1868, c. 53, §§12, 13, c. 54, §§10, 21, 22; 1881, c. 17; 1882, c. 96, 97; 1901, c. 35; Code 1923, c. 53, §§12, 13, c. 54, §§10, 21, 22, c. 54A, §16.)

§13. Same; Increase or Reduction of Authorized Stock.—If an increase of the authorized capital stock of any corporation shall have been duly authorized as provided in section eleven of this article, the amendment shall set forth:

(a) The amount of capital stock theretofore authorized;

(b) The amount of additional stock authorized;

(c) The classes, if any, into which the additional stock is to be divided, with the preferences, voting powers, restrictions and qualifications of the newly authorized shares; and

(d) The number and par value of the shares of the newly authorized stock, and, if more than one class, the number and par value of the shares of each class, and if any new or authorized stock is of nominal or without par value that fact and the number of shares of such stock shall be stated.

If a reduction of the authorized but unissued capital stock of any corporation shall have been duly authorized as provided in section eleven of this article, the amendment shall set forth:

(a) The amount of capital stock theretofore authorized and the number and par value of the shares, and if more than one class, the amounts of each class and the number and par value of the shares of each class;

(b) The amount of capital stock issued and, if more than one class, the amount of each class;

(c) The amount of the reduction of authorized but unissued stock, specifying in which class or classes, if more than one class, the reduction is to be effected and the amount of the reduction of each class; and

(d) The number and par value of the shares of each class as reduced and the number of shares of stock of nominal or without par value theretofore authorized and the number of such shares of stock as reduced.

§14. Same; Reduction of Issued Stock.—When, by a reduction of the number and/or par value of the shares of stock of a corporation, the amount of stock issued is thereby reduced, the stock representing the difference between the amount theretofore issued shall be treated as stock authorized but unissued of the classification obtaining before such reduction. No reduction of the amount of the capital stock outstanding shall release the liability, to the corporation or to its receiver or liquidating agent or other person winding up its affairs, of any stockholder whose shares have not been fully paid, for the payment of such liabilities existing at the time of such reduction. If any payments be made to the stockholders representing any or all of such reduction, such stockholders shall be and remain liable to the corporation or to its receiver or liquidating agent or other person winding up its affairs to the extent of such payments made to them, for the payment, of its liabilities existing at the time of such payments. If a change in the number and/or par value of shares of capital stock of any corporation by which the amount of stock issued is reduced shall have been duly authorized as in section eleven, the certificate of amendment shall also set forth:

(a) The amount of each class of stock theretofore issued and the number and par value of the shares of each class;

(b) The number and/or par value of the shares of each class of stock as changed by the amendment;

(c) The amount of such reduction, specifying the amounts of the reductions of each class, if more than one class is reduced; and

(d) Reclassifications, if any, of the stock representing the difference, if any, between the amount of stock theretofore issued and the amount of issued stock as reduced. If the number of shares of stock of nominal or without par value be reduced, the number of such shares theretofore issued and the number thereof as reduced shall be shown. No contract right or liability, previously existing or inchoate, or suit, motion or proceeding, then pending, shall be affected by such change or amendment.(1863, c. 83; Code 1868, cc. 53, 54; 1881, c. 17, §§21, 22; 1882, cc. 96, 97; Code 1923, c. 53, §40, c. 54, §21.)

§15. Same; Nonstock Corporations.—The members of a nonstock corporation may amend the charter in any respect not forbidden by law by the same proceedings by which stockholders of stock corporations may amend the charter as provided in section eleven of this article. The members of a nonstock corporation shall have all of the rights herein given to the stockholders of stock corporations, with respect to such amendments.

§16. Board of Directors; Qualifications; Committees; Classes.—The business of every corporation organized under the provisions of this chapter, or existing under the laws of this State, shall be managed by a board of directors, except as hereinafter or in its charter otherwise provided. The number of directors which shall constitute the whole board shall be such as from time to time shall be fixed by, or in the manner provided in, the by-laws, but in no case shall the number be less than three. Directors need not be stockholders unless so required by the charter or the by-laws. The directors shall hold office until their successors are respectively elected and qualified, and a majority of them shall constitute a quorum for the transaction of business, unless the by-laws shall provide that a different number shall constitute a quorum, which in no case shall be less than one-third of the total number of directors nor less than two directors. The board of directors may, by resolution or resolutions, passed by a majority of the whole board, designate one or more committees. each committee to consist of two or more of the directors of the corporation, which, to the extent provided in such resolution or resolutions or in the by-laws of the corporation, shall have and may exercise the powers of the board of directors in the management of the business and affairs of the corporation, and may have power to authorize the seal of the corporation to be affixed to all papers which may require it. Such committee or committees shall have such name or names as may be stated in the by-laws of the corporation or as may be determined from time to time by resolution adopted by the board of directors. The directors of any corporation organized as aforesaid may, by the charter or any amendment thereto, or by a vote of the stockholders, be divided into one, two or three classes; the term of office of those of the first class to expire at the annual meeting next ensuing; of the second class one year thereafter; of the third class two years thereafter; and at each annual election held after such classification and election, directors shall be chosen for a full term, as the case may be, to succeed those whose terms expire.

§17. Powers of Directors.—The board of directors may exercise all of the powers of the corporation, except such as are by law or by the charter or by the by-laws conferred upon or reserved to the stockholders.

§18. Corporate Officers.—Every corporation subject to the provisions of this article shall have a president, a secretary and a treasurer, all of whom shall be chosen by the board of directors. The president shall be chosen from among the directors. The corporation may have a chairman of the board, one or more vice presidents, assistant secretaries and assistant treasurers, if the by-laws so provide, all of whom shall be chosen by the board of directors, unless the by-laws otherwise provide. Any two of the above named offices, except those of president and vice president, may, if provided by the by-laws, be held by the same person, but no officer shall execute, acknowledge or verify any instrument in more than one capacity, if such instrument is required by law or by the by-laws of the corporation to be executed, acknowledged, verified or countersigned by two or more officers.

§19. By-Laws; Adoption; Amendment.—The power to make and alter by-laws shall be in the stockholders, but any corporation may in its charter confer that power upon the directors or other managing body. The power to amend, alter and supplement the by-laws may be conferred upon the directors in by-laws adopted by the stockholders to such extent as the stockholders may deem advisable. Any by-laws or amendments to by-laws made by the directors may be amended, altered or repealed by the directors, or by the stockholders.

§20. By-Laws; General Scope.—Every corporation may, subject to any special provisions of this article and subject to the provisions of its charter, determine by its by-laws: The manner of calling, the time and place of holding, and the manner of conducting the meetings of stockholders and directors, and the election, appointment and removal of its officers, directors and agents; the powers, duties and tenure of its directors, officers and agents; the classification and number of its directors, which number may from time to time be increased or decreased but shall never be less than three; the manner of filling vacancies on the board of directors, or in any office; the place of any of the meetings, annual, regular or special of the stockholders or directors; the expediency of providing for an executive committee, the powers which may be delegated to it and the number, tenure and manner of the election or appointment of the members of such committee; the conditions under which a new certificate of stock shall be issued in place of the one which is alleged to have been lost or destroyed; the method, in general, of transacting its business; the power of directors to increase the number of directors over that fixed by the by-laws and to fill the vacancies created by such increase in number of directors: and, subject to such provisions and in like manner, may fix, or authorize the board of directors to fix, the time, not exceeding forty days preceding the date of any meeting of the stockholders or any dividend payment date or any date for the allotment of rights, during which the books of the company shall be closed against the transfer of stock; or, in lieu of providing for the closing of the books against transfers of stock, fix, or authorize the board of directors to fix, a date not exceeding forty days preceding the date of any meeting of the stockholders, any dividend payment date or any date for allotment of rights, as a record date for the determination of the stockholders entitled to notice of, or to vote at, such meeting, and/or entitled to receive such dividend payment or rights, as the case may be, and only stockholders of record on such date shall be entitled to notice of and/or to vote at such meeting or to receive such dividend payment or rights; prescribe the number of directors necessary to constitute a quorum, which number may be less than a majority of the directors; prescribe the manner of voting and the person or persons entitled to vote any of the shares of the stock of the corporation which it holds as trustee, committee, guardian, executor, administrator or in any other fiduciary capacity, and how and by what persons it shall exercise the right to vote the shares of stock of any other corporation held by it. The by-laws may empower the board of directors to encumber and mortgage the real estate of the corporation and to convey the same in trust to secure the payment of corporate obligations.

The particular provisions and powers, which are enumerated in this section, may be provided for in the by-laws, and are not intended to be, or to be construed to be, in exclusion of, or a limitation upon, the exercise of any right, privilege or power which the corporation may law fully regulate or delegate in or by its by-laws.

§21. Corporate Meetings; Time; Place; Notice; Quorum.—The stockholders and/or directors of any corporation created under the laws of this State may hold all regular, annual and special meetings for the transaction of the lawful business of the corporation, including the first general meeting for purposes of organization, and keep the principal office of such corporation, either in or out of this State. Regular meetings of the stockholders shall be held at such time and place as the by-laws may prescribe, or if there be no such by-laws, then annually on the fourth Tuesday of January, at eleven o’clock in the forenoon, at the principal office of the company. Notice of regular and special meetings shall be given as required by the by-laws, and if none is prescribed therein, then by mailing to each stockholder, at least ten days prior to the date of meeting, a written notice thereof; or by publication once a week for two weeks in some newspaper published and of general circulation, in the county of the principal office or place of business of the corporation. Special meetings may be held at such places and after such notice as the by-laws prescribe, or, if none, then at the same place and after the same notice as a regular meeting. Special meetings of the stockholders may be called by the board of directors, the president and secretary, or any number of stockholders owning in the aggregate at least one-tenth of the number of shares outstanding. The notice of special meetings shall state the business to be transacted, and no business other than that included in the notice or incidental thereto shall be transacted at such meeting.

Regular meetings of the board of directors may be held at such time and place as the by-laws may prescribe, or the board may from time to time designate by resolution.

Special meetings of the board of directors may be called by the president, vice president, any two directors of a stock or nonstock corporation, or by any two members of a nonstock corporation. Notice of such meetings shall be given as required by the by-laws, and if none is prescribed therein, then by mailing a written notice to each director at his last known post office address at least five days before the time of the meeting of the stockholders shall consist of at least a majority of all of the shares of stock entitled to vote. Unless otherwise prescribed in the by-laws, or provided in the charter, a quorum of the directors shall consist of a majority of the board of directors. Any number less than a quorum present may adjourn any stockholders’ or directors’ meeting until a quorum is present.(Code 1849, c. 57; Code 1860, c. 57; 1863, c. 83; 1866, c. 111; 1868, c. 53, §§41, 42, c. 54, §23; 1875, c. 63; 1881, c. 17; 1882, cc. 96, 97; 1901, c. 35; Code 1923, c. 53, §§41, 42, 51, c. 54, §23.)

§22. Classes of Stock; Certificates Filed and Recorded in Certain Cases.—Every corporation, other than a banking institution, shall have power to issue one or more classes of stock or one or more series of stock within any class thereof, any or all of which classes may be of stock with par value or stock without par value, with such voting powers, full or limited, or without voting powers and in such series and with such designations, preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof, as shall be stated and expressed in the charter, or in any amendment thereto, or in the resolution or resolutions providing for the issue of such stock adopted by the board of directors pursuant to authority expressly vested in it by the provisions of the charter or of any amendment thereto. The power to increase or decrease or otherwise adjust the capital stock as in this chapter elsewhere provided shall apply to all or any of such classes of stock. Any preferred or special stock may be made subject to redemption at such time or times and at such price or prices and may be issued in such series, with such designations, preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof as shall be stated and expressed in the charter, or in any amendment thereto, or in the resolution or resolutions providing for the issue of such stock adopted by the board of directors as hereinabove provided. The holders of preferred or special stock of any class or of any series thereof shall be entitled to receive dividends at such rates, on such conditions and at such times as shall be stated and expressed in the charter, or in any amendment thereto, or in the resolution or resolutions providing for the issue of such stock adopted by the board of directors as hereinabove provided, payable in preference to, or in such relation to, the dividends payable on any other class or classes of stock, and cumulative or noncumulative as shall be so stated and expressed. When dividends upon the preferred and special stocks, if any, to the extent of the preference to which such stocks are entitled, shall have been paid or declared and set apart for payment, a dividend on the remaining class or classes of stock may then be paid out of the remaining assets of the corporation available for dividends as elsewhere in this article provided. The holders of the preferred or special stock of any class or of any series thereof shall be entitled to such rights upon the dissolution of, or upon any distribution of the assets of, the corporation as shall be stated and expressed in the charter, or in any amendment thereto, or in the resolution or resolutions providing for the issue of such stock adopted by the board of directors as hereinabove provided; and any preferred or special stock of any class or of any series thereof may be made convertible into, or exchangeable for shares of any other class or classes or of any other series of the same or any other class or classes of stock of the corporation at such price or prices or at such rates of exchange and with such adjustments as shall be stated and expressed or provided for in the charter, or in any amendment thereto, or in the resolution or resolutions providing for the issue of such stocks adopted by the board of directors as herein above provided. If any corporation shall be authorized to issue more than one class of stock or more than one series of any class, the designations, preferences and relative, participating optional or other special rights of each class of stock or series thereof and the qualifications limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of the certificate which the corporation shall issue to represent such class or series of stock. Before any corporation shall issue any shares of stock of any class or of any series of any class of which the voting powers, designations, preferences and relative, participating, optional or other rights if any, or the qualifications, limitations or restrictions thereof, if any, shall not have been set forth in the charter, or in any amendment thereto, but shall be provided for in a resolution or resolutions adopted by the board of directors pursuant to authority expressly vested in it by the provisions of the charter or an amendment thereto, a certificate setting forth a copy of such resolution or resolutions and the number of shares of stock of such, class or series shall be made under the seal of the corporation and signed by the president or a vice president and by the secretary or an assistant secretary of the corporation and acknowledged by such president or vice president before an officer authorized by the laws of West Virginia to take acknowledgments of deeds, and shall, be filed and a copy thereof shall be recorded in the same manner as agreements and certificates of incorporation are required to be filed and recorded by the provisions of sections six and ten of this article. Unless otherwise provided in any such resolution or resolutions, the number of shares of stock of any such class or series so set forth in such resolution or resolutions may be increased or decreased (but not below s the number of shares thereof then outstanding) by a certificate likewise made, signed, filed and recorded setting forth a statement that a specified increase or decrease therein had been authorized and directed by a resolution or resolutions likewise adopted by the board of directors; and in case the number of such shares shall be so decreased, the number of shares so specified in such certificate shall resume the, status which they had prior to the adoption of the first resolution or resolutions.

In any case in which stock having a par value shall have been issued together with stock without par value for a particular consideration, in determining the amount of the stock without par value issued therefor, the par value of such stock having a par value shall first be deducted from the amount of money or actual value of the consideration determined as aforesaid, and the excess thereof, if any, shall be taken to be the amount of stock without par value so issued.(Code 1849, c. 57; Code 1860, c. 57; 1863, c. 83; 1864, c. 43; 1865, c. 12; Code 1868, c. 53, §§15, 16; Const. 1872, art. 11, §4; 1882, c. 96; 1901, c. 35; 1920, Ex. Sess., c. 3; Code 1923, c. 53, §§15, 16, c. 54, §4; 1925, c. 86.)

§23. Certain Corporations Not to Issue Non Par Stock.—No banking institution, indemnity, company, however entitled, insurance company, industrial loan company, or building and loan association, shall issue any of its shares of stock without a nominal, or of no par value. This provision shall apply to corporations heretofore organized, and any such corporation, if necessary, shall amend its charter so as to conform with the provisions of this section.(1920, Ex. Sess., c. 3; Code 1923, c. 53, §15; 1925, c. 86, c. §15.)

§24. Convertible Securities.—The charter of any corporation of this State having more than one class of stock may provide that shares of a stock of any class shall be convertible into shares of stock of any other class, and that convertible securities may be issued convertible into stock of any class, upon such terms and conditions as may be therein stated. For the purpose of the license or franchise tax imposed by this State, the authorized amount of stock of any class which by the terms of such charter is convertible into stock of another class, shall be taken to be, either the amount of such stock authorized by such charter or the aggregate amount of the stock into which such stock is convertible, whichever is the greater. The term, “convertible securities,” used herein, shall be construed to mean notes, bonds, debentures, and/or other obligations of the corporation.

§25. Issue and Sale of Stock and Convertible Securities by the Board of Directors.—The board of directors of any corporation of this State may from time to time, subject to any limitation or restriction contained in the charter or by-laws of such corporation, issue the authorized shares of its stock of any class having a par value (except stock convertible into stock without par value) for money at not less than either the par value thereof or the aggregate par value of any shares of stock into which they are convertible, whichever is the greater, and also issue the convertible securities of such corporation, except securities convertible into shares of stock without par value, at not less than the par value of the shares into which such securities are convertible.(Code 1868, c. 53, §23; 1882, c. 96, §23; Code 1923, c. 53, §23.)

§26. Issue of Stock and Convertible Securities by Directors on Special Authority Given by the Charter.—The charter of any corporation of this State may authorize the board of directors thereof to issue from time to time the shares of its stock of any class and/or its convertible securities, for a certain specified consideration or certain specified considerations, subject to such limitations and restrictions, if any, as may be set forth in the charter or in the by-laws of the corporation.

When so authorized by the terms of the charter the board of directors may from time to time issue such shares of stock or such convertible securities in the manner and upon the terms and for the consideration specified in such authorization.(Code 1868, c. 53, §§23, 24, c. 54, §16; 1881, c. 17, §16; 1882, c. 96, §§23, 24; 1891, c. 85; 1901, c. 35, §8; 1920, Ex. Sess., c. 3; Code 1923, c. 53, §§23, 24, c. 54, §16.)

§27. Issue of Non-Par Stock by Directors by Special Authority.—The charter of any corporation of this State may empower the board of directors thereof to issue from time to time the authorized shares of the stock of any class or classes without par value and securities convertible into shares of its stock without par value of any class for such considerations as the board of directors may deem advisable, subject to such limitations and restrictions, if any, as may be set forth in the charter or in the by-laws of the corporation. The board of directors shall by resolution state their opinion of the actual value of any consideration other than money for which shares of stock without par value, or securities convertible into shares of stock without par value, are to be issued, unless such value shall he fixed by the charter, and thereupon the board may from time to time issue such shares of stock and convertible securities pursuant to the powers so conferred upon them by the charter.(1920, Ex. Sess., c. 3; Code 1923, c. 53, §24.)

§28. Issue of Stock and Securities Only When Authorized by the Stockholders; Meaning of Terms.—In the absence of special provisions in the charter giving to the board of directors authority to issue stock and securities, and except as otherwise provided in this article, the authorized shares of stock and convertible securities of the corporation of any class shall be issued only under and pursuant to the authority of the by-laws of the corporation or resolutions passed and adopted by the stockholders of the company. The stockholders of any corporation may authorize the issuance of the authorized amount and number of its shares of stock and convertible securities in payment, wholly or partly for cash, labor done, real and/or personal property, or for the use thereof, at such price for any such labor or property or the use thereof as may be fixed by agreement between the owner of the property and the officers and directors of the corporation; and when so authorized the board of directors may issue and deliver such shares of stock and convertible securities in payment for such labor or property; but before doing so the board of directors shall by resolution state their opinion of the fair value of the labor done or property for which such securities are to be issued. All shares of stock and convertible securities so issued shall be fully paid and not subject to any further call or assessment, and in the absence of actual fraud in the transaction the value of the labor done or property so purchased as fixed by the directors shall be conclusive. As used in this article the term “consideration other than money,” includes a consideration partly in money, and the term “convertible securities” includes obligations of a corporation convertible into shares of its stock. The authorization of the issuance of stock of any class which by the terms of the charter is convertible into stock of another class shall constitute the authorization of the issuance, in accordance with the terms of the charter, of the stock into which such stock is convertible. The authorization of the issuance of convertible securities shall constitute the authorization of the issuance, in accordance with the terms; of such convertible securities, of the stock into which they are convertible, if and when such stock shall have been authorized by the charter. The statement that the actual value of any consideration, in the opinion of the board of directors or as fixed by the incorporators, is not less than a certain sum is a sufficient compliance with the requirements of this article.(1882, c. 96, §24; 1891, c. 85; 1901, c. 35, §8; 1920, Ex. Sess., c. 3; Code 1923, c. 53, §24.)

§29. Issue and Sale of Non-Par Stock, or Par Stock at Less Than Par.—Unless otherwise provided in the charter the stockholders may by resolution passed at any meeting thereof authorize the directors to issue from time to time the shares of its stock without a nominal or par value and/or its securities convertible into such shares of stock, for such price or consideration as shall be specified in the resolution; and, by a resolution passed by a vote of three-fourths of all of the shares of the capital stock outstanding and entitled to vote, authorize the sale, at less than par and at such price or prices as shall be specified in the resolution, of any or all classes of its shares of stock having a par value and/or its securities convertible into such shares of stock. Pursuant to the authority so conferred by the stockholders the board of directors may from time to time issue and sell such shares of stock and securities for the consideration so specified, and, when the consideration so specified shall have been paid, such shares of stock or securities shall be full paid and not liable to any further call or assessment thereon.(Code 1868, c. 53, §§23, 24; 1882, c. 96, §§23, 24; 1891, c. 85; 1920, Ex. Sess., c. 3; Code 1923, c. 53, §§23, 24.)

§30. Stock Issued as Dividend.—Any corporation through its board of directors may issue and distribute its shares of stock as a dividend against its accumulated earnings or surplus and the consideration for its shares of a stock so issued shall be taken to be the capitalization thereby of the surplus or net profits of the corporation, and the actual value of such consideration shall be an amount equal to the surplus or net profits thereby capitalized.

§31. Books to Show Proceeds From Sales of Stocks and Securities.—The books of every a corporation of this State shall be so kept as to show at all times what money or other consideration was received by such corporation for the stock issued by it, and the number of no par value, and the number and par value of all shares having a par value, of the shares of each class of stock issued; and to show at all times what money or other consideration was received by the corporation for convertible securities issued by it and the number and par value of the shares of each class of stock having a par value, and the number of shares of stock having no par value, into which such securities are convertible.

§32. Unlawful Issuing of Stock; Penalties.—Any officer or director of any corporation of this State knowingly and willfully authorizing or consenting to the issuance of unauthorized stock of such corporation, or knowingly and willfully authorizing or consenting to the issuance of stock or convertible securities of such corporation except in conformity with the provisions of law applicable to the issuance thereof, or knowingly and willfully making or consenting to the making of any false statement in a statement in respect to the issuance thereof, delivered for record to the secretary of state, or in the entries in respect of the issuance thereof required by law to be made in the books of the corporation, shall be guilty of a misdemeanor, and, upon conviction, shall be fined not more than five thousand dollars or imprisoned for not more than one year, or both fined and imprisoned within such limitations, in the discretion of the court: Provided, however, That the valuation placed by the board of directors or the incorporators, as the case may be, upon the consideration other than money, for which stock and/or convertible securities are to be issued, and the judgment of the board of directors or the incorporators, as the case may be, as to the propriety of the acceptance of the same and the issuance therefor of the agreed amount of stock and/or convertible securities, shall not be a violation of this section, in the absence of actual fraud.

§33. Payment for Stock; Collection of Subscriptions.—Unless otherwise provided by the subscription contract, the board of directors of any corporation having a capital stock may call in and demand from the stockholders the amounts due on their subscriptions at such times and in such payments and installments as the board of directors shall deem proper; but at least thirty days’ written or printed notice of the amount, time and place of payment of such calls shall be given to each stockholder by leaving the same with him, or at his residence or usual place of business, or by mailing it, postage prepaid, and addressed to him at his address as it appears upon the books of the corporation: Provided, however, That any stockholder may, by an instrument in writing, waive such notice and demand. Whenever the time and terms of payment are specified in a subscription contract, the board of directors may call in and demand the payment or payments when due and payable under the terms of such contract.(Code 1868, c. 53; 1882, c. 96; Code 1923, c. 53, §25, c. 54A, §14,)

§34. Forfeiture of Stock and Amount Paid.—When any stockholder fails to pay any installment or call upon his stock which may have been properly assessed thereon by the directors, at the time when such payment is due, the directors may collect the amount of such installment or call, or any balance thereof remaining unpaid, from the stockholder by an action at law, or they may sell at public sale such part of the shares of such delinquent stockholder as will pay all assessments then due from him with interest and all incidental expenses, and shall transfer the shares so sold to the purchaser, who, upon payment of the same, shall be entitled to a certificate therefor. Notice of the time and place of such sale and of the sum due on each share shall be given by publication thereof once in each week for three successive weeks before the sale, in a newspaper published and of general circulation in the county or city wherein the principal office or place of business of such corporation is located, and such notice shall be mailed by the treasurer of the corporation to such delinquent stockholder at his last known post-office address at least twenty days before such sale. If no bidder can be had to pay the amount due on the stock, and if the amount is not collected by an action at law, brought within the county or city wherein the principal office of such corporation is located, or in which the delinquent stockholder resides, within six months from the date of the bringing of such action at law, such stock shall be forfeited to the corporation and the amount previously paid in by the delinquent on the stock shall be forfeited to the corporation. A sale of the shares of stock may be made without resorting to the action at law authorized in this section.(Code 1868, c. 53, §§29, 30, 33, 34; Code 1923, c. 53, §§29, 30, 33, 34, c. 54A, §14.)

§35. Liability of Stockholder.—Every stockholder of every corporation of this State shall be liable for the benefit of the creditors of such corporation for the amount of his subscription to the stock of such corporation, less the amount which he shall already have paid thereon, until he shall have paid such subscription in full, according to the terms thereof, and the forfeiture under the preceding section of his subscription rights and right to the stock subscribed for shall not release or impair the liability of the subscriber for the unpaid balance of such subscription for the benefit of the creditors of the corporation; and, in the event of the insolvency of the corporation, all such liabilities of the stock holders shall be considered assets of the corporation and may be enforced by the receiver, trustee or other person winding up the affairs of the corporation, notwithstanding any release, agreement or arrangement, short of actual payment, which may have been made between the corporation and such stockholders.

§36. Limitations of Liability of Stockholders and Subscribers.—No stockholder of any stock corporation chartered under this article, except of banking institutions, shall be liable to the corporation or for the debts of the corporation except to the amount of the price of the stock subscribed for by him and unpaid. No person or corporation shall institute or prosecute any suit in any court in this State to enforce any liability against the subscriber to, or purchaser of the shares of stock of, any corporation chartered under the laws of another state in excess of what the liability of such subscriber or purchaser would have been if such corporation had been chartered under this chapter. No person holding stock in any corporation of this State as, and which shall be entered on the books thereof in his name as, executor, administrator, guardian, committee, trustee, receiver or pledgee, shall be personally liable in any manner to such corporation or its creditors, but the person pledging the stock and the assets and funds in the hands of such executor, administrator, guardian, committee or trustee, shall be subject to the liability, if any, imposed on the holders of the shares.(Const., 1872, art. 11, §2.)

§37. Certificate for Stock; Lost or Destroyed Certificate.—Every holder of stock in a corporation shall be entitled to have a certificate, signed by, or in the name of the corporation by, the president or a vice president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of such corporation, certifying the number of shares owned by him in such corporation: Provided, however, That, where such certificate is signed by a transfer agent or an assistant transfer agent or by a transfer clerk acting on behalf of such corporation and a registrar, the signature of any such president, vice president, treasurer, assistant treasurer, secretary or assistant secretary may be facsimile. In case any officer or officers who shall have signed, or whose facsimile signature or signatures shall have been used on, any such certificate or certificates shall cease to be such officer or officers of such corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by such corporation, such certificate or certificates may nevertheless be adopted by such corporation and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature shall have been used thereon had not ceased to be such officer or officers of such corporation.

All certificates for stock which is given any preference, priority or preferred rights over any other shares as to dividends or otherwise, or which contains any limitation or restriction of voting or other rights, shall contain an accurate statement of all such preferences, priorities or preferred rights, restrictions and limitations. No certificate for any share of stock shall be issued or delivered to the stockholder until his subscription or sale price for such share is paid in full.

A certificate may be issued in lieu of a certificate lost or destroyed upon such terms and conditions as may be prescribed by the by-laws of the corporation, upon compliance with such terms and conditions by the person who appears by the books of the corporation to be the owner of the lost or destroyed certificate; and the owner may require the officers of the corporation to issue a certificate in the place and stead of one lost or destroyed upon the following conditions: (a) He shall file with the officers of the corporation, first, an affidavit setting forth the time, place and circumstances of the loss to the best of his knowledge and belief; second, proof of his having advertised the loss in a newspaper of general circulation published near the principal office of the corporation, once a week for two weeks; (b) he shall execute and deliver to the corporation a bond with good security in a penalty of at least the value of the shares of stock represented by the lost or destroyed certificate, conditioned to indemnify the corporation and all persons whose rights may be affected by the issuance of the new certificate against any loss in consequence of the new certificate being issued: Provided, however, That a new certificate may be issued in lieu of the one lost, in the discretion of the board of directors, without requiring the publication of the above notice or the giving of a bond.

Whenever a certificate for shares of the capital stock of a corporation of this State which has heretofore been or may hereafter be issued to a person as agent or trustee, and as to which the stock ledger of such corporation does not disclose the principal or cestui que trust, is lost or destroyed, and no person, except the administrator of the person to whom such certificate was issued as agent or trustee, has made claim to it against the corporation for more than twenty-five years, and such corporation has been a going concern for more than ten years during such period of twenty-five years, and has declared five or more dividends upon its capital stock during the last twenty-five years, and such dividends declared upon the shares of stock alleged to be lost or destroyed have not been paid to any person, and such agent or trustee, the holder of such certificate, is dead, then, and in such case, the administrator of the person to whom the alleged lost or destroyed certificate was issued as agent or trustee aforesaid, and who is still the owner of record of such certificate, shall, after ten days’ written notice to such corporation demanding the issuance of a new certificate of stock to him as such administrator, be entitled to receive, in his name as administrator, such new certificate in place of the one alleged to be lost or destroyed, and such administrator shall be entitled to receive all dividends that may have been declared upon such certificate or number of shares of stock alleged to be lost or destroyed and remaining unpaid, under and upon the following conditions: (a) If such administrator of such holder of record as agent or trustee of such certificate of stock has given the aforesaid ten days’ notice in writing to the corporation, he shall cause to be advertised in a newspaper of general circulation published in the county wherein he was granted his letters of administration, once a week for four successive weeks, the fact that he gave to such corporation the required ten days’ notice in writing; that more than twenty-five years prior thereto a certificate for the number of shares of the capital stock of such corporation was issued to his intestate as agent or trustee; that it is unknown to him who such principal or cestui que trust may be; that no person except the administrator of such agent or trustee has made claim to such certificate for more than twenty-five years; that such certificate has been lost or destroyed; that such stock represented by the certificate lost or destroyed and all dividends payable in respect thereto are claimed by such administrator for the purpose of distributing and accounting for the same to the person or persons entitled thereto; that at least two weeks after the last publication thereof such administrator, unless such corporation issues and delivers unto him such new certificate in the place of the one lost or destroyed and pays over and delivers to him as such administrator all dividends payable in respect thereto, will institute suit for the same; and such notice shall warn any and all persons, except such administrator, to produce to such corporation, on or before the expiration of two weeks after the last publication thereof as aforesaid, a statement in writing under oath of such claimant or his administrator, of the origin, circumstances and grounds upon which his claim as principal or cestui que trust to such stock and dividends is asserted, as well as the reasons for his delay in asserting title thereto; (b) if within such period of time for producing such certificate to such corporation such statement, satisfactory to such corporation, be not forthcoming, such corporation shall issue and deliver to such administrator a new certificate of stock in the place and stead of that alleged to be lost or destroyed and also deliver and pay over to him all dividends payable in respect thereto.

Such issuance and delivery of a new certificate and the payment of such dividends by the corporation to such administrator shall relieve such corporation from any and all liability whatsoever to any person claiming in any capacity such shares of stock represented by the certificates lost or destroyed or such dividend in respect thereto.

The procedure provided in this section is cumulative and not exclusive, and nothing herein contained shall be taken or construed as limiting in any way the right of any party who claim to be entitled to a new certificate of stock in the place of a lost or destroyed certificate, or the accumulated dividends thereon, which was issued in the manner hereinbefore provided, to have his or its rights to such new certificate and dividends determined and adjudicated without regard to this section by resort to any court of law or equity having jurisdiction to determine and adjudicate such rights, before the corporation shall have paid such dividends and issued a new certificate under the requirements of this section. The right to prosecute any suit pending at the time this article takes effect and growing out of the loss of a certificate of stock issued in the name of the trustee or agent shall not be impaired by anything herein contained.(Code 1849, c. 57, §§26, 29; Code 1860, c. 57, §§26, 29 1863, c. 83; §§58, 61; Code 1868, c. 53; §§35. 38 1882, c. 96, §§35, 38; 1901, c. 35, §9; 1920, Ex Sess., c. 3; Code 1923, c. 53, §§35, 38; 1929 c. 84.)

§38. Ownership of Capital Stock; Who May Vote; Transfer Books.—The person in whose name shares of stock stand on the books of the corporation shall be deemed the owner thereof so far as the corporation is concerned. The words “trustee,” “agent,” or other like term, after the name of a person in whose name stock stands on the books of the company, without other words disclosing a trust, beneficiary or principal or other fiduciary relationship, shall be deemed descriptive of the person and shall in no way restrict the right of such person to vote the shares of stock for any purpose. The personal representative of a deceased stockholder shall be entitled to vote the shares of stock of his decedent without having such shares transferred to him. The pledgor shall have the sole right to vote shares of stock pledged for any purpose unless the agreement pledging such shares confers that right upon the pledgee or his or its agent, in which event the person so authorized shall have such voting rights. No voting right shall be given to any stock while owned by the corporation, nor shall any stock so held be entitled to any dividend. Shares of its own stock held by a corporation in any fiduciary capacity may be voted by it in any case in which such shares could be voted by the owner. Stock transfer books shall be kept by the corporation, or by one or more transfer agents appointed by it, in which the shares shall be transferred under such regulations as may be prescribed by the by-laws or board of directors.(Code 1849, c. 56, §3, c. 57, §§19, 25; Code 1860, c. 56, §3, c. 57, §§19, 25; 1863, c. 83, §§55, 57; Code 1868, c. 53, §§18, 19, 21; 1882, c. 96, §§18, 19, 21; 1901, c. 35, §§6, 7; Code 1923, c. 53, §§18, 19, 21.)

§39. Corporation May Purchase, Hold, Sell and Transfer Its Own Stock; Not to be Voted While Held.—Every corporation organized under this chapter, or existing under the laws of this State, shall have the power to purchase, hold, sell and transfer shares of its own capital stock: Provided, That no such corporation shall use its funds or property for the purchase of its own shares of capital stock when such use would cause any impairment of the capital of the corporation: Provided further, That shares of its own capital stock belonging to the corporation shall not be voted upon, directly or indirectly: And provided further, That nothing in this section shall be construed as limiting the exercise of the rights given by the next succeeding section of this article. This section shall not apply to, or authorize the purchase of its shares by, any banking institution in this State.(Code 1849, c. 56, §3; Code 1860, c. 56, §3; Code 1868, c. 53, §18; 1882, c. 96, §18; 1901, c. 35, §6; Code 1923, c. 53, §18.)

§40. Retirement of Preferred Stock.—Whenever any corporation organized under this chapter, or existing under the laws of this State, other than a banking institution, shall have issued any preferred or special shares, it may, subject to the provisions of its charter, (a) redeem such shares, if subject to redemption, at such time or times, at such price or prices, and otherwise as shall be stated or expressed in its charter, or (b) at any time or from time to time purchase such shares, in the case of shares subject to redemption, at not exceeding the price or prices at which the same may be redeemed; but no such redemption or purchase shall be made out of capital unless the assets of the corporation remaining after such redemption or purchase shall be sufficient to pay any debts of the corporation, the payment of which shall not have been otherwise provided for. The shares so redeemed or purchased by the application of capital, and any shares of the corporation surrendered to it on the conversion or exchange thereof into or for other shares of the corporation pursuant to the provisions of its charter, shall have the status of authorized and unissued shares of the class of stock to which such shares belong.

Nothing contained in this section shall in any way affect the rights of any corporation to redeem or purchase any of its shares from surplus and to hold such shares or to resell them for such consideration as shall be fixed from time to time by the board of directors.

§41. Uniform Stock Transfer Act; Transfer of Stock.—Title to a certificate and to the shares represented thereby can be transferred only: (a) By the delivery of the certificate indorsed either in blank or to a specified person, by the person appearing by the certificate to be the owner of the shares represented thereby; or (b) by delivery of the certificate and a separate document containing a written assignment of the certificate or a power of attorney to sell, assign or transfer the same or the shares represented thereby, signed by the person appearing by the certificate to be the owner of the shares represented thereby. Such assignment or power of attorney may be either in blank or to a specified person.

The provisions of this section shall be applicable, although the charter or articles of incorporation, or code of regulations or by-laws of the corporation issuing the certificate and the certificate itself, provide that the shares represented thereby shall be transferable only on the books of the corporation, or shall be registered by a registrar, or transferred by a transfer agent.

§42. Same; Infants; Trustees, Etc.—Nothing in sections forty-one to sixty-two, both inclusive, of this article, shall be construed as enlarging the powers of an infant or other person lacking full legal capacity, or of a trustee, executor or administrator, or other fiduciary, to make a valid indorsement, assignment or power of attorney.

§43. Same; Rights Shown of Record Preserved.—Nothing in sections forty-one to sixty-two, both inclusive, of this article, shall be construed as forbidding a corporation: (a) To recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner: or (b) to hold liable for calls and assessments a person registered on its books as the owner of shares.

§44. Same; Title; How Lost.—The title of a transferee of a certificate under a power of attorney or assignment not written upon the certificate, and the title of any person claiming under such transferee, shall cease and determine if, at any time prior to the surrender of the certificate to the corporation issuing it, another person, for value in good faith, and without notice of the prior transfer, shall purchase and obtain delivery of such certificate, with the indorsement of the person appearing by the certificate to be the owner thereof, or shall purchase and obtain delivery of such certificate and the written assignment or power of attorney of such person, although contained in a separate document.

§45. Same; Delivery of Certificate to Transfer Title.—The delivery of a certificate to transfer title, in accordance with the provisions of section forty-one of this article, is effectual, except as provided in section forty-seven of this article, though made by one having no right of possession and having no authority from the owner of the certificate or from the person purporting to transfer the title.

§46. Same; Indorsement of Certificate When Effectual.—The indorsement of a certificate by the person appearing by the certificate to be the owner of the shares represented thereby is effectual, except as provided in section forty seven of this article, though the indorser or transferor (a) was induced by fraud, duress or mistake to make the indorsement or delivery; or (b) has revoked the delivery of the certificate, or the authority given by the indorsement, or delivery of the certificate; or (c) has died or become legally incapacitated after the indorsement, whether before or after the delivery of the certificate; or (d) has received no consideration.

§47. Same; Indorsement and Delivery of Certificate; When Not Effectual.—If the indorsement or delivery of a certificate: (a) was procured by fraud or duress; or (b) was made under such mistake as to make the indorsement or delivery inequitable; or if the delivery of the certificate was made (c) without authority from the owner; or (d) after the owner’s death or legal incapacity; the possession of the certificate may be reclaimed and the transfer thereof rescinded, unless: (1) The certificate has been transferred to a purchaser for value in good faith without notice of any facts making the of transfer wrongful; or (2) the injured person has elected to waive the injury, or has been guilty of laches in endeavoring to enforce his rights.

Any court of appropriate jurisdiction may enforce specifically such right to reclaim the possession of the certificate or to rescind the transfer thereof, and, pending litigation, may enjoin the further transfer of the certificate or impound it.

§48. Same; Effect of Subsequent Transfer of Such Certificate.—Although the transfer of a certificate or of shares represented thereby has been rescinded or set aside, nevertheless, if the transferee has possession of the certificate or of a new certificate representing part or the whole of the same shares of stock, a subsequent transfer of such certificate by the transferee, mediately or immediately, to a purchaser for value in good faith, without notice of any facts making the transfer wrongful, shall give such purchaser an indefeasible right to the certificate and the shares represented thereby.

§49. Same; Effect of Delivery of Certificate; With Intent to Transfer but Without Indorsement.—The delivery of a certificate by the person appearing by the certificate to be the owner thereof, without the indorsement requisite for the transfer of the certificate and the shares represented thereby, but with intent to transfer such certificate or shares, shall impose an obligation, in the absence of an agreement to the contrary, upon the person so delivering, to complete the transfer by making the necessary indorsement. The transfer shall take effect as of the time when the indorsement is actually made. This obligation may be specifically enforced.

§50. Same; Attempted Transfer Without Delivery of Certificate; Effect.—An attempted transfer of title to a certificate or to the shares represented thereby, without delivery of the certificate, shall have the effect of a promise to transfer, and the obligation, if any, imposed by such promise shall be determined by the laws governing the making and performance of contracts.

§51. Same; Warranties Implied by Acts.—A person who for value transfers a certificate, including one who assigns for value a claim secured by a certificate, unless a contrary intention appears, warrants (a) that the certificate is genuine; (b) that he has a legal right to transfer it; and (c) that he has no knowledge of any fact which would impair the validity of the certificate.

In the case of an assignment of a claim secured by a certificate, the liability of an assignor upon such warranty shall not exceed the amount of the claim.

§52. Same; Lienor or Pledgee.—The mortgagee, pledgee or other holder for security of a certificate who in good faith demands or receives payment of the debt for which such certificate is security, whether from a party to a draft drawn for such debt, or from any other person, shall not by so doing be deemed to represent or warrant the genuineness of such certificate, or the value of the shares represented thereby.

§53. Same; Attachment; Levy; Issuance of New Certificate.—Shares of stock are personal property, and, as such, shall pass to the legal representative of the stockholder, and be subject to legal process. No levy of an execution, attachment, or other process, upon shares of stock for which a certificate is outstanding, shall be valid until such certificate be actually seized by the officer making the attachment or levy, or be surrendered to the corporation which issued it, or its transfer by the holder be enjoined. Except where a certificate is lost or destroyed, such corporation shall not be required to issue a new certificate for the stock until the outstanding certificate is surrendered to it.(Code 1868, c. 53, §20; 1882, c. 96, §20; Code 1923, c. 53, §20; Uniform Stock Transfer Act, §13.)

§54. Same; Creditor; Remedy.—A creditor whose debtor is the owner of a certificate shall be entitled to such aid from courts of appropriate jurisdiction, by injunction and otherwise, in attaching such certificate or in satisfying the claim by means thereof as is allowed at law or in equity, in regard to property which cannot readily be attached or levied upon by ordinary legal process.

§55. Same; Lien in Favor of Corporation or Restrictions; When Valid.—There shall be no lien in favor of a corporation upon the shares represented by its certificate issued by such corporation, and there shall be no restriction upon the transfer of shares so represented, by virtue of any by-law of such corporation or otherwise, unless the right of the corporation to such lien, or restriction, is stated in the certificate.

§56. Same; Alteration of Certificate; Effect.—The alteration of a certificate, whether fraudulent or not and by whomsover made, shall not deprive the owner of his title to the certificate and the shares originally represented thereby, and the transfer of such certificate shall convey to the transferee a good title to such certificate and to the shares originally represented thereby.

§57. Same; Rules Applicable to Cases Not Specifically Covered.—In any case not provided for by sections forty-one to sixty-two, both inclusive, of this article, the rules of law and equity, including the law merchant and in particular the laws relating to principal and agent, administrator and trustee, and to the effect of fraud, misrepresentation, duress, mistake, bankruptcy or other invalidating cause shall govern.

§58. Same; Indorsement; What Constitutes.—A certificate is indorsed when an assignment, or power of attorney to sell, assign or transfer the certificate or the shares represented thereby, is written on the certificate and signed by the person appearing by the certificate to be the owner of the shares represented thereby, or when the signature of such person is written upon the back of the certificate.

§59. Same; Person Appearing to be the Owner.—The person to whom a certificate was originally issued is the person appearing by the certificate to be the owner thereof and of the shares represented thereby, until and unless he indorses the certificate to another specified person, and thereupon such other specified person is the person appearing by the certificate to be the owner thereof, until and unless he also indorses the certificate to another specified person. Subsequent special indorsements may be made with like effect.

§60. Same; Certificate Issued After Adoption.—The provisions of sections forty-one to sixty-two, both inclusive, of this article, apply only to certificates issued after the date of the adoption of this article.

§61. Same; Rules of Interpretation.—Sections forty-one to sixty-two, both inclusive, of this article, shall be so interpreted and construed as to effectuate their general purpose to make uniform the laws of those states which have enacted them.

§62. Same; Definitions.—In sections forty–one to sixty-two, both inclusive, of this article, unless the context or subject matter otherwise requires,

“Certificate” means a certificate of stock in a corporation organized under the laws of this State, or of another state whose laws are consistent with said sections.

“Delivery” means voluntary transfer of possession from one person to another.

“Person” includes a corporation or partnership or two or more persons having a joint or common interest.

“To purchase” includes to take as mortgagee or pledgee.

“Purchaser” includes mortgagee and pledgee.

“Shares” means a share or shares of stock in a corporation organized under the laws of this State, or of another state whose laws are consistent with said sections.

“State” includes such state, territory, district and insular possessions of the United States.

“Transfer” means transfer of legal title.

“Title” means legal title and does not include a merely equitable or previous ownership or interest.

“Value” is any consideration sufficient to support a simple contract. An antecedent or preexisting obligation, whether for money or not, constitutes value where a certificate is taken either in satisfaction thereof or as security therefor.

A thing is done in “good faith” within the meaning of said sections when it is in fact done honestly whether it be done negligently or not.

§63. Consolidation or Merger; Proceedings for.—Any two or more corporations organized under the provisions of this chapter, or existing under the laws of this State, for the purpose of carrying on any kind of business, may consolidate or merge into a single corporation which may be any one of such constituent corporations or a new corporation to be formed by means of such consolidation or merger as shall be specified in the agreement hereinafter required. The directors, or a majority of them, of such corporations as desire to consolidate or merge, may enter into an agreement signed by them and under the corporate seals of the respective corporations, prescribing the terms and conditions of consolidation or merger, the mode of carrying the same into effect, and stating such other facts required or permitted by the provisions of this article to be set out in an agreement of incorporation, as can be stated in the case of a consolidation or merger, stated in such altered form as the circumstances of the case require, as well as the manner of converting the shares of each of the constituent corporations into shares of the consolidated corporation, with such other details and provisions as are deemed necessary.

Such agreement shall be submitted to the stockholders of each constituent corporation, at a meeting thereof, called separately for the purpose of taking the same into consideration; of the time, place and object of which meeting due notice shall be given by publication at least once a week for four successive weeks in one or more newspapers published in the county wherein each such corporation either has its principal office or conducts its business, and a copy of such notice shall be mailed to the last known post office address of each stockholder of each such corporation, at least twenty days prior to the date of such meeting, and at such meeting said agreement shall be considered and a vote by ballot, in person or by proxy, taken for the adoption or rejection of the same, each share entitling the holder thereof to one vote; and if the votes of stockholders of each such corporation representing two-thirds of the total number of shares of its capital stock shall be for the adoption of such agreement, then that fact shall be certified on such agreement by the secretary of each such corporation, under the seal thereof; and the agreement so adopted and certified shall be signed by the president and secretary of each of such corporations under the corporate seals thereof and acknowledged by the president of each of such corporations before any officer authorized by the laws of this State to take acknowledgments of deeds to be the respective act, deed and agreement of each of such corporations, and the agreement so certified and acknowledged shall be filed in the office of the secretary of state, and shall thence be taken and deemed to be the agreement and act of consolidation or merger of the said corporations; and a copy of such agreement and act of consolidation or merger, duly certified by the secretary of state under the seal of his office, shall also be recorded in the offices of the clerks of the county courts of the counties of this State in which the respective corporations so consolidating or merging shall have their original certificates of incorporation recorded, if any, or if any of the corporations shall have been specially created by a public act of the legislature, then such agreement shall be recorded in the county where such corporation shall have had its principal place of business, if any, and such record, or a certified copy thereof, shall be evidence of the agreement and act of consolidation or merger of such corporations, and of the observance and performance of all acts and conditions necessary to have been observed and performed precedent to such consolidation or merger.

§64. Sale of Assets and Franchises.—Every corporation organized under the provisions of this chapter, or existing under the laws of this State, may, at any meeting of its board of directors, sell, lease or exchange all of its property and assets, including its good will and its corporate franchises, upon such terms and conditions and for such consideration, which may be in whole or in part shares of stock in, and/or other securities of, any other corporation or corporations, as its board of directors shall deem expedient and for the best interests of the corporation, when and as authorized by the affirmative vote of the holders of sixty per cent of the stock issued and outstanding having voting power, given at a stockholders’ meeting duly called for that purpose, or when authorized by the written consent of the holders of sixty per cent of the voting stock issued and outstanding: Provided, however, That the certificate of incorporation may require the vote or written consent of the holders of a larger proportion of the stock issued and outstanding.

§65. Corporation May Acquire, Own or Guarantee the Stocks and Securities of Other Corporations.—Any corporation of this State, unless restricted by the terms of its charter or unless otherwise provided by law, may purchase, own, dispose of, underwrite and guarantee the shares of capital stock and/or the bonds, securities and obligations of other corporations whether created under the laws of this State or of any other state or country, and, while the owner of any such stocks, may exercise all of the rights and privileges of ownership including the right to vote such shares in corporate meetings.[1883, c. 37; Code 1923, c. 54, §50a (1).]

§66. Voting Rights; Cumulative Voting.—In all elections of directors of corporations each stockholder shall have the right to cast one vote for each share of stock owned by him and entitled to a vote, and he may cast the same in person or by proxy, for as many persons as there are directors to be elected, or he may cumulate such votes and give one candidate as many votes as the number of directors to be elected multiplied by the number of his shares of stock shall equal; or he may distribute them on the same principle among as many candidates and in such manner as he shall desire, and the directors shall not be elected in any other manner; and on any other question to be determined by a vote of shares at any meeting of stockholders each stockholder shall be entitled to one vote for each share of stock owned by him and entitled to a vote, and he may exercise this right in person or by proxy.(Code 1868, c. 53, §44; Const., 1872, art. 11, §4; 1872-3, c. 181, §44; 1882, c. 96, §44; 1920, c. 3, §2; Code 1923, c. 53, §44.)

§67. Same; Fractional Shares; Duration of Proxy; Death of Giver of Proxy.—No voting rights shall attach to any fractional part of a share of stock, and no person shall vote on any proxy after three years from the date thereof unless the proxy specifically confers the right to vote for a longer period, and then only within the period specified. The acts of the holder of any proxy heretofore or hereafter done in good faith without fraud after the death of the stock holder and without knowledge on the part of the person exercising the proxy after such death shall not be invalidated because of the death of such stockholder.(1901, c. 26; Code 1923, c. 53, §44a.)

§68. Notice; Waiver.—Notice of the time place or purpose of any meeting of stockholders or directors whether required by the provisions of this article or by the by-laws of the corporation may be dispensed with if every stockholder shall attend either in person or by proxy, or if every director shall attend in person, or if every absent stockholder or director shall, in writing, filed with the records of the meeting either before or after the holding thereof, waive such notice.(Code 1849, c. 57; Code 1860, c. 57; 1863, c. 83; Code 1868, c. 53, §§41, 51; 1882, c. 96, §§41, 51; 1901, c. 35, §§10, 16, 26; Code 1923, c. 53, §§41, 51, c. 54, §15.)

§69. Directors Voting When Interested.—Any director having an interest other than as a stockholder, in any matter to be acted upon by the board of directors, may, notwithstanding such interest, vote as a director, if authorized so to do by a resolution adopted by the stockholders. The act of any director voting as such upon any matter in which he had an interest other than as a stockholder of the corporation shall be valid, if subsequently ratified by a resolution adopted by the stockholders.

§70. Dividends; Deduction of Indebtedness.—The board of directors may, from time to time, declare and pay dividends of so much of the net profits as they deem it prudent to divide. If any stockholder be indebted to the corporation, his dividend, or so much thereof as is necessary, may be applied to the payment of such indebtedness if then due and payable.(Code 1868, c. 53, §39; 1882, c. 96, §39; Code 1923, c. 53, §39.)

§71. Auditor Attorney in Fact for All Corporations.—The auditor of this State is hereby constituted the attorney in fact for and on behalf of every stock corporation created by virtue of the laws of this State and of every foreign corporation doing business herein, with authority to accept service of notice and process on behalf of and upon whom service of notice and process may be made in this State for and upon every such corporation. No act of such corporation appointing the auditor such attorney in fact shall be necessary. Immediately after being served with or accepting any such process or notice, the auditor shall make and file in his office a copy of such process or notice, with, note thereon indorsed of the time of service, or acceptance, as the case may be, and transmit such process, or notice, by registered mail to such corporation at the address last furnished by it, as required by law. But no process or notice shall be served on the auditor or accepted by him less than ten days before the return day, thereof. Such corporation shall pay the annual fee prescribed in article twelve, chapter eleven of this Code for the services of the auditor as its; attorney in fact.(1905, c. 39, §1; 1907, Ex. Sess., c. 9; 1915, 2nd Ex. Sess., c. 3; Code 1923, c. 54, §24a.)

§72. Jurisdiction Of Courts.—In all cases arising under this chapter wherein the corporations seeking to exercise the rights conferred by this article, or against which any proceeding is instituted thereunder, do not have or maintain any office, own any property or transact any business in this State, and none of the stockholders and/or creditors reside in this State, the circuit court of the county in which the seat of government is located shall have original jurisdiction, except in cases in which jurisdiction is expressly conferred upon some other court by this chapter.

§73. Voting Trusts.—Any stock corporation of this State, except banking institutions, indemnity companies, industrial loan companies, building and loan associations, or insurance companies, may, by stipulations and grant of particular powers in its charter, authorize any two or more of its stockholders, by agreement in writing to be filed in the office of the corporation, to vest in some person, persons, corporation or corporations, as voting trustees, the exclusive right to vote the shares of stock of the parties to such agreement, upon all questions for a reasonable period of time not exceeding ten years, and such trustee or trustees shall there upon be entitled to exercise such voting rights in conformity with the terms of such agreement in writing. Stock standing in the name of such voting trustees may be voted either in person or by proxy, and in voting such stock, such voting trustees shall incur no responsibility as stockholder, trustee, or otherwise, except for their own individual malfeasance. In any case where two or more persons are designated as voting trustees, and the right and method of voting any stock standing in their names at any meeting of the corporation are not fixed by the agreement appointing said trustees, the right to vote such stock and the manner of voting the same at any such meeting shall be determined by a majority of said trustees, or if they be equally divided as to the right and manner of voting the same in any particular case, the vote of such stock in such case shall be divided equally among the trustees.

§74. Books of Accounting; Corporate Records.—The directors and officers of every corporation of this State shall keep accurate accounts of the corporate transactions. The president of every such corporation shall annually prepare a full and true statement of the affairs of the corporation, which shall be submitted at the annual meeting of the stockholders and filed within twenty days thereafter at the principal office of the corporation in this State, where it shall, during the usual business hours of each secular day be open for inspection by any stockholder of the corporation. The books and records of a corporation shall at all times be subject to examination by any director or by any committee appointed for the purpose at a meeting of the stockholders, or by the holders of at least one-tenth of the stock outstanding not in a meeting. The minutes and resolutions of the board of directors shall at all times be open to examination by any member of the board or by any committee appointed by the stockholders, and such minutes shall be produced whenever required by the stockholders at any meeting.(Code 1868, c. 53, §§46, 47, 54; 1882, c. 96, §§46, 47, 54; 1901, c. 35, §§12, 13; Code 1923, c. 53, §§46, 47, 54.)

§75. Failure to Hold Election; Death or Resignation of Members of a Nonstock Corporation.—If it shall happen at any time that an election of directors or other officers is not made on the day designated therefor, the corporation shall not for that reason be dissolved, but it shall be lawful on any subsequent day to hold such election; and all acts of the directors and officers holding office until their successors are elected and qualified shall be valid, if otherwise lawful. If by death or resignation the membership of any nonstock corporation shall be reduced below the number required for the creation of such corporation, the corporation shall not on that account be dissolved; but it shall be lawful for the surviving or continuing member or members to fill the vacancies and continue the corporate existence.

§76. Corporate Acknowledgments.—A corporation may acknowledge any instrument required by law to be acknowledged by its attorney appointed under seal, and such appointment may be embodied in the deed or instrument to be acknowledged, or be made by a separate instrument; or such deed or other instrument may be acknowledged by the president or any vice president of such corporation without such appointment.

§77. Taxes.—No state or local taxes shall be imposed upon the stocks, bonds, investments, credits or other intangible property owned by any corporation organized under the laws of this State which does no part of its business in this State.

§78. Liability of Directors and Stockholder for Unlawful Dividend.—If the board of directors shall declare and pay any dividend when the corporation is insolvent, or any dividend, the payment of which would render it insolvent or would diminish the amount of capital, the members present when such action is taken shall be jointly and severally liable to the creditors of the corporation for the amount of dividends so declared and paid and for all of the debts of the corporation then existing; but any director present who dissents from such action and causes his dissent to be entered on the record of the proceedings shall not incur any liability. The directors liable may be proceeded against separately or jointly. Every stockholder who has received any such dividend shall be liable to the creditors for the amount so received by him. The stockholders shall be jointly and severally liable to the directors, to the amount of such dividends severally received by them, to reimburse the directors for any sums which they may be compelled to pay as such to the creditors of the corporation under the provisions of this section. Such liability may be enforced in equity on a bill filed by any creditor or director.(Code 1868, c. 53, §40; 1882, c. 96, §40; Code 1923, c. 53, §40.)

§79. Foreign Corporations; Conditions for Doing Business in This State.—Any corporation duly incorporated by the laws of any other state or territory of the United States, the District of Columbia, or of any foreign country, may, unless it be otherwise expressly provided, hold property and transact business in this State, upon complying with the provisions of this section and not otherwise. Such corporations so complying shall have the rights, powers and privileges, and be subject to the same regulations, restrictions and liabilities conferred and imposed on corporations chartered under the laws of this State. Every such corporation shall file with the secretary of state a copy of its articles of association or certificate of incorporation. The Secretary of state shall thereupon issue to such corporation a certificate of the fact of its having done so, which certificate, together with a copy of its articles of association or certificate of incorporation, shall be recorded in the office of the clerk of the county court of the county, or one of the counties, in which its business is to be conducted. Every railroad corporation now or hereafter engaged in business in this State under the provisions of this section, or under a charter granted by laws passed by the State of Virginia before the formation of this State, or of this State, is hereby declared to be, as to its works, property, operations, acts and business in this State, a domestic corporation, and shall be so held and treated in all suits and legal proceedings which may be commenced or carried on by or against any such railroad corporation, as well as in all other matters relating to corporations, except as to the right to sue in, or remove actions into, the courts of the United States, but such corporation shall not be required to file a copy of its charter or any writing with the secretary of state as provided in this section. No corporation chartered under the laws of any other state or jurisdiction shall hold any property or transact any business or bring or maintain any action, suit or proceeding in this State without having complied with the requirements hereinbefore stated, and, in addition thereto, having filed in the office of the secretary of state a writing duly executed under its corporate seal, accepting the provisions of this section and agreeing to be governed thereby and by the laws of this State with respect to corporations chartered under the laws of this State for similar purposes; and its failure so to do may be pleaded in abatement of any action, suit or proceeding instituted by it; but nothing herein contained shall be construed to lessen the liability of any corporation which a may not have complied with the requirements of this section upon any contract or for any wrong. No such corporation shall hold any property or transact any business, or bring or maintain any action, suit or proceeding in this State, where the cause of action arises out of the holding of property or doing business therein, without first complying with the provisions hereof. Every corporation which shall hold property or do business in this State without having complied with the provisions of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than five hundred nor more than one thousand dollars for each month its failure so to comply shall continue, and prosecutions hereunder shall be in the county in which the seat of government is.(1865, c. 69; Code 1868, c. 54, §30; 1875, c. 63; 1881, c. 17, §30; 1882, c. 97, §30; 1887, c. 73; 1901, c. 35, §31; Code 1923, c. 54, §30.)

§80. Voluntary Dissolution.—At any time during the fiscal year in which any corporation may be created and before it engages in the transaction of business and acquires any property other than the amounts paid in on subscriptions to its stock, the incorporators may abandon the corporation and by indorsing and signing a statement of the intention so to do on the certificate and returning the same to the secretary of state, the secretary of state on receipt thereof shall cancel and preserve such certificate of incorporation and the corporation created thereby shall be dissolved. If such charter shall have been recorded in the office of the clerk of the county court of any county in the State, the incorporators shall execute and acknowledge a writing setting forth the facts of the surrender and dissolution of the corporation and cause such writing to be recorded in the office of the clerk of the county court in which the certificate of incorporation is recorded, and the clerk shall note, on the margin of the record book in which the certificate of incorporation is engrossed the fact of the dissolution of the corporation.

The stockholders at any time may resolve to discontinue the business of the corporation, at least sixty per cent of the shares of capital stock entitled to vote being present at the meeting and voting in favor of such discontinuance, and may divide the property and assets among those entitled thereto after paying all the debts and liabilities of the corporation. A copy of the resolution shall be certified by the president or a vice president under his hand and the seal of the corporation to the secretary of state who shall file the same in his office and shall issue a certificate under his hand and the great seal of the State reciting such resolution and certifying the dissolution of the corporation. The officers of the corporation shall cause the certificate of dissolution to be recorded in the office of the clerk of each county court of the State in which the certificate of incorporation is recorded, and the clerk of the court shall note on the margin of the record book in which the certificate of incorporation is engrossed the fact and the date of the dissolution of the corporation. As soon as practicable after the passage of such resolution the directors and officers of the corporation shall cause the corporate assets to be applied to the payment of the corporate debts and liabilities, and no division of the assets among the stockholders shall be made until ample provision has been made for the payment of all of the debts and liabilities; and until notice of the resolution of dissolution shall have been published once a week for at least two successive weeks in some newspaper published or of general circulation in the county in which the principal office or place of business of the corporation is located. The right of the State or of any county, district or city therein for any license taxes accrued unto the date of dissolution, or any other taxes or claims, or the remedies for the collection thereof, shall not be impaired by the dissolution of the corporation.(1863, c. 83; Code 1868, c. 53, §56; 1882, c. 96, §56; 1901, c. 35; 1903, c. 3; Code 1923, c. 53, §§6, 56.)

§81. Dissolution by Suit in Equity.—If not less than one-fifth in interest of the stockholders of a corporation desire to wind up its affairs, they may apply by bill in chancery to the circuit court of the county in which the principal office or place of business of such corporation is situated, or, if there be no such office or place of business in this State, to the circuit court of the county in which the other stockholders or members, or any one or more of them, reside or are found, or in which the property of such corporation or any part of it may be, setting forth in the bill the grounds of their application, and the court may thereupon proceed according to the principles and usages of equity to hear the matter, and, if sufficient cause there for be shown, to decree a dissolution of the corporation and make such orders and decrees, and award such injunctions in the cause as justice and equity may require: Provided, however, That in any such suit the defendant holders of a majority of the shares of the outstanding stock of such corporation shall have the right to avoid the appointment of a receiver or the dissolution of such corporation by purchasing the shares of stock owned by the plaintiffs at their fair cash value. If the defendant stockholders shall elect to purchase the shares of stock owned by the plaintiffs and are unable to agree with the plaintiffs upon the fair cash value of such shares, and shall give bond with sufficient security to protect the interests and rights of the plaintiffs and to assure unto the plaintiffs the payment of the value of their shares of stock, the court shall stay the suit or proceeding and shall proceed to ascertain and fix the value of the shares of stock owned by the plaintiffs. For such purpose the court shall appoint three disinterested commissioners to appraise the fair value of such shares of stock, and shall make an order referring the matter to the commissioners so appointed for the purpose of ascertaining such value; and such order shall prescribe the time and manner of producing evidence, if evidence be required. The award of such commissioners, or of a majority of them, when confirmed by the court, shall be final and conclusive upon all parties, and the court shall enter a decree for the amount of such award against such defendant stockholders and the surety or sureties on such bond, and such decree may be enforced in the same manner as other decrees and judgments of such court. Any stockholder, feeling aggrieved by such action of the court, may appeal to the supreme court of appeals of this State, as otherwise provided by law. The defendant stockholders shall pay to the plaintiff stockholders the value of their stock ascertained and decreed as aforesaid, or, in case of an appeal, as fixed on such appeal; and, on receiving such payment or the tender thereof, such plaintiff stockholders shall transfer their stock to the defendant stockholders.(Code 1868, c. 53, §57; 1882, c. 96, §57; 1915, c. 38; Code 1923, c. 53, §57.)

§82. Receivers for Corporations.—When a corporation expires or is dissolved, or before its expiration or dissolution, upon sufficient cause being shown therefor, any such court as is mentioned in the preceding section may, on application of a creditor, stockholder or member, appoint a receiver to take charge of and administer its assets; and, whether such receiver be appointed or not, may make such orders and decrees and award such injunctions in the cause as justice and equity may require. This section shall apply to corporations heretofore or hereafter chartered by another state which may have done business or acquired property or contracted debts in this State, and any of whose creditors or stockholders or their personal representatives, or debtors, reside in this State; and the circuit court of any county wherein such creditor, stockholder, or their personal representatives, or person indebted to the corporation, may reside, or wherein such assets or property or any part thereof may be, shall afford such relief as is appropriate under this and the preceding section.(Code 1868. c. 53, §58; 1882, c. 96, §58; 1885, c. 39, §58; Code 1923, c. 53, §58.)

§83. Effect of Dissolution or Expiration.—When a corporation shall expire or be dissolved as prescribed in this article its property and assets shall be subject to the payment of the corporate obligations and the expenses of winding up its affairs, and the surplus, if any, to distribution among the stockholders according to their respective rights. The board of directors and the executive officers in office at the date of such expiration or dissolution, and their successors in office, shall have the right to fill any vacancy in any executive office and of the board of directors by appointment; and they and their successors in office may cause suits to be brought, conducted, prosecuted or defended, the real and personal property of the corporation to be conveyed or transferred under the common seal or otherwise, further assurances of previous conveyances to be made, and all lawful acts to be done, in the corporate name, in like manner and with like effect as before such dissolution or expiration; but so far only as shall be necessary or proper to do and perform every act and thing which should have been or should be done and performed by the corporation, and for collecting the debts and claims due to the corporation, converting its property and assets into money, prosecuting, defending and protecting its rights, enforcing all claims in its favor, and paying over and distributing its property and assets, or the proceeds thereof, to those entitled thereto.(1863, c. 83, §64; Code 1868, c. 53, §59; 1882, c. 96, §59; Code 1923, c. 53, §59.)

§84. Surrender by Foreign Corporation of Authority to do Business.—If any foreign corporation desires no longer to hold property and transact business in this State, it may surrender to the State its authority therefor, in the following manner: It shall publish once in each week for four successive weeks in some newspaper of general circulation published in some county in the State where it carries on its business, a notice of its intention to withdraw from the State. After such publication it shall make application to the secretary of state for. a certificate of withdrawal, which application shall be signed by the president of the corporation, sealed with its corporate seal, and attested by its secretary, and be accompanied by a copy of such notice and the publisher’s certificate of such publication. The secretary of state shall file the same in his office and issue to such corportation a certificate of withdrawal; but such certificate of withdrawal shall not be issued unless and until the corporation has paid into the state treasury any amount it may owe as license tax, including all interest and penalties. The issuance of such certificate of withdrawal shall not relieve the corporation of any debt or obligation due from it to the State or any resident thereof.(1903, c. 3, §88; 1905, c. 36, §132; Code 1923, c. 32, §132.)

§1. Common Carriers; General Powers.—Every railroad company heretofore incorporated and organized under the laws of this State, or under the laws of any other state, and authorized or licensed to do business in this State, and every such company which hereafter shall be incorporated and organized under the provisions of article one of this chapter, or authorized or licensed to transact business under said article, is a common carrier, and is authorized to acquire, construct, and own, maintain, operate and hold, railway lines, plants and systems, and any and all other suitable facilities for, and to engage in transporting persons and all commodities, objects and things which are subjects of commerce or of transportation by any and all means and methods, which are now used, or which may hereafter be developed, for such purpose.

No such railroad company shall engage in any other business in this State, except as hereinafter authorized.(Const., 1872, art. 11, §9; 1881, c. 17; Code 1923, c. 54, §71.)

§2. Rights to Own Property.—Every such railroad company shall have the right to purchase, take by voluntary gift or grant, acquire by condemnation, own, hold and use, all real estate and other property necessary for its corporate objects and purposes, and, when any property so acquired shall be no longer required for its use and purposes, to sell and convey the same.(1881, c. 17; 1887, c. 40; 1917, c. 42; Code 1923, c. 54, §50.)

§3. May Produce Electricity for Its Own Uses.—Any such railroad company may acquire, construct, own, hold and operate plants and properties for the generation, production and transportation of electricity in this State, for its corporate uses and purposes: Provided, That it shall not build or construct any hydroelectric plant or any dams or impounding basins for the use of such plant in any waters of the State, without having first obtained the consent of the public service commission of the State so to do.

§4. Right to Dispose of Surplus Electricity, Power, Etc.—Any such railroad company, owning and operating any plant in this State for the production of electricity and power primarily for its own use, may sell and dispose of any surplus electricity or power not required for its use, under such regulations as are prescribed by law or by the public service commission of the State by authority conferred upon it by any law: Provided, That in the case of a corporation engaged or heretofore engaged in the operation of street or interurban railways by electricity, or other motive power than steam, it shall have the right to furnish and sell to the public electricity, water and gas, either natural or artificial, or both, and to purchase, hold and use such property, rights, privileges and franchises as may be necessary in the generation, production, manufacture and sale to the public of such electricity and gas, and in the storage, filtration, distribution, delivery and sale to the public of water: Provided further, That no right, privilege or franchise granted under this section or now held shall be exercised without first obtaining from the public service commission, if provided by law, the authority so to do, and, in the event of sales within a municipality until after having first procured a franchise therefor from the municipality in which it seeks to operate.(1895, c. 16; 1917, c. 42; Code 1923, c. 54, §50.)

§5. Purchase or Transportation of Coal and Coke by Railroad Companies.—It shall be unlawful for any railroad corporation to engage, directly or indirectly, in the business of buying, and selling coal or coke, or to promise, pledge or lend its credit, money or other property or thing of value to, another, either natural or corporate, engaged in such business, but nothing therein shall prevent such corporation from purchasing such articles for its own consumption, or when it is the owner of any such commodities from selling and shipping the same: Provided, That in doing so, such corporation shall not discriminate in rates, distribution of cars or otherwise against other shippers of like commodities on its lines: Provided further, That when such company has the right to sell either of such commodities, and is unable from any cause to fill any bona fide contracts it may have made to supply such commodities, or either of them, it may purchase them to enable it to fill such contracts. Every railroad corporation, along whose line of railroad the industry of mining coal or manufacturing coke is carried on, shall without discrimination between or among shippers, and without unnecessary delay, make a reasonable provision for the transportation of all such coal and coke offered for transportation over its railroad, and no such railroad corporation shall discriminate in rates, distribution of cars or otherwise against or among shippers of coal or coke offered for shipment on its line or lines. The circuit and criminal courts of every county through or into which the railroad of any such railroad corporation violating any or either of the provisions of this section may pass, shall have concurrent jurisdiction of all the offenses under and violations of the provisions of this section. Any railroad corporation or officer or agent thereof who shall knowingly and willfully violate any of the provisions of this section, shall, for each and every such offense, be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than fifty nor more than five hundred dollars.(1895, c. 16; 1917, c. 42; Code 1923, c. 54, §66c.)

§6. Charter to Show Principal Cities and Towns Reached and Served by Railroad.—Any charter issued under article one of this chapter incorporating any railroad company for the purpose of constructing a railroad in the State of West Virginia shall name the principal towns and cities which are proposed to be reached and served by such railroad.

§7. Filing Map of Railroad.—Every railroad corporation shall, within a reasonable time after its railroad is located in this State, cause to be made a map and profile thereof, with the names of the owners of the lands through which it runs, and of the noted places along the same stated thereon, and file the same in the office of the secretary of state, and in the office of the clerk of the county court of each county in which any part of said road is located.(1872-3, c. 88; 1881, c. 17; Code 1923, c. 54, §65.)

§8. Warning of Approach of Train; Crossing.—A bell or steam whistle shall be placed on each locomotive engine, which shall be rung or whistled by the engineer or fireman, at a distance of at least sixty rods from the place where the railroad crosses any public street or highway, and be kept ringing or whistling for a time sufficient to give due notice of the approach of such train before such street or high way is reached, and any failure so to do is a misdemeanor punishable by a fine of not exceeding one hundred dollars; and the corporation owning or operating the railroad shall be liable to any party injured for all damages sustained by reason of such neglect. When the tracks, other than switch or sidetracks, of two railroads cross each other, or in any way connect at a common grade, the crossing shall be made and kept in repair, and watchmen maintained there at the joint expense of the companies owning he tracks; all trains or engines passing over such tracks shall come to a full stop not nearer than two hundred feet nor farther than eight hundred feet from the crossing and shall not cross until signaled so to do by the watchman, nor until the way is clear; and when two passenger or freight trains approach the crossing at the same time, the train on the road first built shall have precedence if the tracks are both main tracks over which all passengers and freights on the roads are transported; but if only one track is such main track, and the other a side or depot track, the train on the main track shall have precedence; and if one of the trains is a passenger train and the other a freight train, the former shall take precedence; and regular trains on time shall take precedence over trains of the same grade not on time, and engines with cars attached not on time shall take precedence over engines without cars not on time: Provided, That if such two railroads crossing each other, or in any way connecting at a common grade, by works or fixtures to be erected by them render it safe to pass over such crossing without stopping, and such works and fixtures first be approved by the public service commission of West Virginia, and the plan thereof for such crossing designating the plan of crossing has been filed with said commission and approved by it, the provisions of this section relating to railroad crossings shall not apply.(1872-3, c. 88; 1881, c. 17; Code 1923, c. 54, §61; 1927, c. 32.)

§9. Notice of Danger at Crossings.—Every railroad company shall, at every place where a road or street crosses its railroad on the same level, erect and maintain suitable sign boards or notices of warning apprising persons of the danger in crossing its tracks. All such signboards or notices shall be of the design and construction and shall be located in the manner required or approved by the state road commission. Any railroad company failing to comply with the provisions of this section shall be fined five dollars for each week that any such failure continues.(1872-3, c. 88; 1881, c. 17; 1882, c. 97; Code 1923, c. 54, §62.)

§10. Watering Troughs for Live Stock.—All railroads maintaining stations that are shipping points for live stock, where there are as many as one thousand head shipped in any one year, shall wherever practicable place within the stock pens owned or controlled by such railroad company suitable watering troughs which shall, at all times during the time stock is being shipped from the station, be supplied with pure drinking water such as stock will drink. It shall be considered practicable where there are water works from which water can be obtained (city or otherwise) by piping not to exceed one-fourth of a mile. Any railroad company which refuses to comply with this section shall be guilty of a misdemeanor and shall be fined not less than fifty dollars nor more than one hundred dollars for each offense. And each day that such pens are without water during the shipping season shall be considered a separate offense.(1919, c. 29; Code 1923, c. 54, §71p.)

§11. Consolidation of Railroad Properties.—Any railroad company in this State may, with the assent and approval of the public service commission, consolidate its properties and franchises with the property and franchises of an other railroad company or other railroad companies, or obtain the possession and control of the lines and tracks of another railroad company or of other railroad companies, by purchase or lease, whether such railroads are or are not parallel or competing lines.

§12. Passing Into Other States.—The railroad or any extension or lateral or branch line of any railroad company may pass out of this State into any other state, with the assent of such state, and back again into this State as often as may be found necessary or convenient in locating such railroad, extension or lateral or branch line.

§13. Certain Enumerated Powers.—In furtherance, and not in limitation, of the general or other powers of any railroad company, every such railroad company shall have the following powers, it being provided that the enumeration herein of specific powers shall not limit or restrict in any manner the general or other powers of such company:

(a) To cause such examination and survey for its proposed railroad or any extension or lateral or branch line, to be made as may be necessary to the selection of the most advantageous route, and for such purpose such company or its officers, agents, engineers or employees, may enter upon the lands or waters of any person or corporation; but subject to responsibility for all damages occasioned thereby.

(b) To lay out its road, not exceeding one hundred and fifty feet in width, with such additional width as may be necessary for the purpose of excavations and embankments for the proper construction, repair and security of the railroad; and to construct such road.

(c) To change or relocate at any time the line or lines, grade or location of its railroad, or any part thereof, and to construct a new line or lines, grade or location for the same for the purpose of reducing grades or curvature, or for the purpose of avoiding annoyance to public travel or dangerous or difficult or expensive curves or grades, or unsafe, impracticable, unsubstantial or expensive, or otherwise undesirable, locations, routes, grounds or foundations, or for otherwise improving the line or lines of railroad, or for other reasonable cause, and to construct cut-offs for any such purpose or cause; but this provision shall not be construed to give authority to such railroad company to abandon, unless otherwise provided by law, the use of such line or lines, as formerly located, if the continued use thereof shall be necessary to serve industries or communities thereon.

(d) To change the general route or termini of a proposed railroad, before the same has been originally completed; but such change of general route or termini before completion shall only be made when authorized by a majority of the stock of such corporation voting thereon at an annual or a special meeting of the stockholders, and it shall operate as a release of the right of such corporation to build on the abandoned location, and the order or resolution of the stockholders authorizing such change shall be certified by the corporation to the secretary of state, and recorded in his office. All the provisions of law shall apply to the changed or new route, termini, location, grade and line mentioned in this subdivision or the last preceding subdivision.

(e) To construct its railroad across, along or upon any stream of water, watercourse, street, highway, state or county-district road, or canal, which the route of such railroad shall intersect or touch; but the exercise of such power shall be in accordance with the provisions of chapters seventeen and fifty-four of this Code in relation thereto; but nothing in this chapter contained shall be construed to authorize the construction of any railroad upon or across any street, in the inhabited portion of a city, or incorporated town or village, without the assent of the corporation of such city, town or village.

(f) To take and hold under any grant or ordinance made by a municipal corporation any interest or right such municipal corporation may have in any street, alley or public ground, and such railroad corporation may in exchange therefor, in whole or in part, dedicate or otherwise secure to public use, another street, alley or parcel of ground out of real estate owned by such railroad corporation whether acquired by purchase or condemnation; or under an agreement with such municipal corporation may condemn land for use as such new street, alley or public ground, in the same manner as it may condemn land for its own use.

(g) To cross at grade, or to cross over or under, intersect, join and unite its railroad with any other railroad now built and constructed, or hereafter to be built and constructed within this State, at any point on its route, and upon the grounds of such other railroad company, with the necessary turnouts, sidings and switches, and other conveniences in furtherance of the object of its connections, and every corporation whose railroad is, or shall be hereafter intersected by any new railroad, shall unite with the corporation owning such new railroad in forming such facilities aforesaid; and if the two corporations cannot agree upon the amount of compensation to be made therefor, or the points and manner of such crossing and connections, the same shall be ascertained and determined in the manner prescribed by chapter fifty-four of this Code.

(h) To construct, maintain and operate lateral and branch lines; to use and operate any part of its main line and of a lateral or branch line or lines when completed as though the whole of its railroad was completed; and to construct, maintain and operate telegraph and telephone lines along the line of its railroad and the lateral and branch lines thereof, and connecting with any of its offices, works and improvements.

(i) To erect or otherwise acquire and maintain all necessary or convenient structures, fixtures, machinery and facilities for the construction, maintenance or operation of the railroad or business of such corporation.

(j) To regulate the time and manner in which passengers and property shall be transported, and the compensation to be paid therefor, subject, nevertheless, to the provisions of any law that has been or may be hereafter enacted.

(k) From time to time to borrow money for all or any of the purposes of the corporation and to issue, sell, pledge, dispose of and transfer bonds, evidences of indebtedness and preferred stock, or any of them, for any money so borrowed; and to issue, sell, pledge, dispose of and transfer its stock, bonds and evidences of indebtedness, or any of them, for land, money, labor, property or materials for all or any of the purposes of such corporation; and in case it be found necessary to do so, such corporation may sell and dispose of its stocks, bonds and evidences of indebtedness, or any of them, at less than the par value thereof. And such corporation shall have the power from time to time to mortgage or pledge its property, real and personal, and franchises, to secure any bonds, stock, evidences of indebtedness, or any of them. And the directors of such corporation may be empowered, in pursuance of any order or resolution of the stockholders, to confer on any holder of any such bond for money borrowed by it the right to convert the principal due or owing thereon into stock of such corporation at such time, on such terms and under such regulations as may be provided in such order or resolution or the by-laws of such corporation.

(l) With the assent of the holders of two-thirds of its stock, had by a vote at a stockholders’ meeting, to become surety for, or guarantee, the bonds, stock or debt of any railroad company, or in any other manner aid such railroad company in the construction of its rail road or other works or improvements.(1872-3, c. 88, §20; 1881, c. 17, §50; 1887, c. 40, §50, Code 1923, c. 54, §50.)

§14. Sale of Railroad Company.—If a sale shall be made under a trust deed or mortgage executed by a railroad corporation on all its works and property, or if the sale of such property shall be made under the decree of a court, and there be a conveyance to any person or persons pursuant to any such sale, said sale and conveyance shall pass to the purchaser at such sale, not only the works and property of the corporation as they were at the time of making the trust deed or mortgage, but any works which the company may, after that time and before the sale, have constructed, and all other property of which it may be possessed at the time of the sale, other than debts due to it. Upon such conveyance to the purchaser such company shall ipso facto be dissolved, and such purchaser shall forthwith be a corporation by any name which may be set forth in such conveyance, or in any writing signed by him or them, and recorded in the office of the clerk of the county court of any county wherein the property so sold, or any part thereof, is situated.(1871, c. 70, §1; 1881, c. 17, §72; Code 1923, c. 54, §72.)

§15. Effect of Such Sale.—The corporation created by or in consequence of such sale and conveyance shall succeed to all such franchises, rights and privileges, but not immunity from taxation, and perform all such duties as would have been had, or should have been performed by the first company, but for such sale and conveyance; save only, that the corporation so created shall not be entitled to debts due to the first company, and shall not be liable for any debts of, or claims against the first company, which may not be expressly assumed in the contract of purchase; and that the whole profits of the business done by such corporation shall be long to such purchaser and his assigns. His interest in the corporation shall be personal estate, and he or his assigns may create so many shares of stock therein as he or they may think proper, not exceeding together the amount of stock in the first company at the time of the sale, and assign the same in a book kept for that purpose. Such shares shall thereupon be on the footing of shares in corporations generally, except only that the first meeting of the stockholders shall be held on such day and at such place as shall be fixed by such purchaser, of which notice shall be published for four successive weeks in a newspaper printed in each county in the State wherein such corporation may do business.(1871, c. 70, §2; 1881, c. 17, §73; Code 1923, c. 54, §73.)

§1. Consent of State for Construction of Booms.—The consent of the State is given for the construction of a boom or booms, by corporations incorporated for the purpose, with or with out piers, dam or dams, in the rivers, creeks or other streams of this State which may be necessary for the purpose of stopping and securing boats, rafts, logs, masts, spars, lumber and other timber: Provided, however, That no such boom or dam shall be constructed in any of the rivers, creeks or other streams of the State, which are navigable by steamboats at an ordinary stage of water above the places where such boom or dam is proposed to be located.(1877, c. 121; 1881, c; 39; 1882, c. 12; 1883, c. 27; 1885, c. 25; 1889, c. 8; 1893, c. 17; 1901, c. 38; Code 1923, c. 54A, §1.)

§2. Powers; Boomage; Lien; Sale for Tolls; Free Passage of Logs.—Every such corporation shall, after erecting its boom, have the exclusive privilege of maintaining a suitable boom or booms, with or without piers, dam or dams, across the stream designated, within two miles above its principal boom, for the purpose of stopping and securing boats, rafts, saw logs and other timber of value, but such boom or booms shall be so constructed as to permit boats, rafts and other timber, when desired by the owners, to pass them without unavoidable delay and without paying toll, boomage or other charges, and, may erect their booms on the rivers and other streams, and may dredge and clear the channels thereof, and remove obstructions therefrom; and such corporation may build sawmills on land acquired in any other way than by condemnation ; and may manufacture and sell lumber and construct tram-railways and dams, and do such other work as may be necessary for the purpose of getting logs and lumber to, down and from the river and its branches, on which such boom is located; and, in the event the lands necessary for such tram-railways can not be purchased from the owner or owners thereof at a reasonable price, then such corporation may have the same condemned for such purpose in the manner now provided by law for cases of a similar nature: Provided, That nothing in this section shall be so construed as to prevent any boom company from using water surface for two miles below its boom for assorting and bunching its own and other boats, rafts, saw logs and other timber of value, and that company shall so construct its boom as to deprive another company of such right, nor shall any boom company which may construct a boom within two miles below a boom heretofore constructed have exclusive privileges of the water or stream above such other boom.

Boomage or toll shall be charged at a rate not less than twenty-five cents nor more than one dollar per thousand feet board measure; or not less than twenty nor more than eighty cents per one hundred cubic feet, except as hereinafter provided, which rate shall be determined by a commission in the manner following, to wit: The circuit court of each county, the timber of which can be floated into the boom, or the judge of such court in vacation, shall appoint one person, and such corporation shall appoint a person and if such persons are unable to agree, they shall choose another person. None of the persons so selected shall be a stockholder or interested in such corporation. The persons so appointed and chosen shall be versed in the timber and lumber business, and be qualified to make such measurements and calculations as may be necessary. Persons so appointed or chosen shall constitute a commission, whose duty it shall be to fix the rates of boomage which the corporation may charge; and in determining this rate they shall take into consideration the ease or difficulty, as the case may be, of booming logs, etc., in such boom, and also any extraordinary expenditure of money which the corporation may have made to facilitate its business; and such commissioners shall fix a rate, which shall be in their judgment a fair and just compensation to the corporation for the capital invested and labor performed in booming logs, timber, etc., in the limits above described. And such commissioners may, in their discretion, or when requested to do so by parties interested, fix the separate rate which shall be charged for logs, ties, lumber, staves, or any other specific kind of lumber or timber which may be floated in such boom, by the hundred, thousand, or by bulk, as the ease may be. The report of such commissioners shall be filed in the office of the clerk of the circuit court of each county in which a commissioner was appointed, and published in some newspaper of general circulation in the counties interested in such boom, and within ten days after the report has been agreed upon. Should the corporation or any interested party not be satisfied with the report of the commissioners, they may take exceptions thereto, which exceptions may be heard by the judge of the circuit court of any county interested, in term time or in vacation, and, if it appear to the court or judge that the rates established by the commissioners are unjust, either to the corporation or private persons, such report may be set aside and a new commission appointed. But unless exceptions are taken to the report of such commissioners within sixty days after the filing of the same, the report shall be taken as confirmed, and be binding upon all parties interested. Any boom company organized under the provisions of this chapter, or any party interested, may, if it so desire, ask for a commission once every five years, to revise the rate of boomage; such commission to be constituted as provided for in this section. When the stream boomed lies wholly in one county, there shall be two commissioners appointed by the circuit court of that county, who, together with the one appointed by the corporation, as hereinbefore provided, shall constitute such commission. If any controversy shall arise between such corporation and any person or persons having timber or other lumber in such boom, on account of such lumber, or the rates of boomage, the commissioners authorized to be appointed by this section may, if the parties interested and such corporation so desire it, act as arbitrators to settle the same in such manner and with such result as the law provides in other cases of arbitration. The commissioners appointed under this section shall receive three dollars per day for their services, to be paid by such corporation, except that, after the rates have been fixed, any subsequent commission shall be paid by the party asking it.

Such corporation shall have a lien on all saw logs and other timber and lumber thus boomed for the payment of all tolls for booming, until the same shall be paid.

If any timber shall have been boomed securely, as aforesaid, and no person shall appear to claim the same, and pay the tolls thereon, within ninety days, it shall be lawful for the corporation, after advertising the same once each week for three successive weeks in some newspaper published nearest such boom or booms, and by posting the same for three weeks, at three public places nearest such boom or booms, reciting the marks, if any, to make application to any justice of the peace of such county, whose duty it shall he, upon proper proof of the publication and posting of such notice, to direct a sale of such timber, and designate some officer or other person to make such sale, either by public auction or by private sale, as to the justice shall seem most advantageous to the parties interested; and at any time within a year from such sale, the owner shall be entitled to receive the proceeds thereof, after deducting the toll and expenses; but if not claimed within one year, the proceeds shall inure to and be vested in the general school fund.

Where several companies are operating on the same stream, the upper companies shall pass free of charge through or around their booms, with as little delay as possible, all logs, lumber, etc., distinctly marked as belonging to or in care of the boom or booms below them.(1877, c. 121, §21; 1881, c. 39; 1891, c. 75; Code 1923, c. 54A, §21.)

§3. Injuries to Property.—If any person or persons shall willfully and maliciously injure or destroy any of such booms or piers or other works connected therewith, or shall remove, alter or deface any mark or marks on any logs or other timber intended for such boom, he shall pay treble damages, to be recovered by an action brought in the name of such corporation, before a justice or any of the courts of the county having jurisdiction in which he or they shall reside, or in the county in which the offense was committed; and such person or persons so offending shall also be guilty of a misdemeanor, and, upon conviction thereof, may be fined not exceeding one hundred dollars or confined in the county jail not exceeding twelve months, or both, in the discretion of the court.(1877, c. 121, §22; Code 1923, c. 54A, §22.)

§4. Measurement of Timber in Boom.—If the parties interested shall not agree as to the measurement of the timber in such boom, it shall be done by commissioners, appointed by the circuit court or the judge thereof in vacation, of the county in which such boom is located; or the same may be measured, if the parties so desire it, by the commissioners authorized to be appointed by section two of this article; the expenses of such commission, in either case, shall be paid by the party in error as to the measurement, and if both parties shall be found to be in error, such expenses shall be paid by them equally.(1877, c. 121, §23; 1881, c. 39; Code 1923, c. 54A, §23.)

§5. Removal of Timber Lodging on Lands; Damages; Taking or Carrying Away.—If any logs, timber, or other lumber, while floating down any stream, be lodged upon any improved lands or inclosure of another, it shall be the duty of the owner to cause the same to be removed therefrom within sixty days from the time such logs, timber or lumber is lodged. If any person shall, without the authority of the owner, during such sixty days, take, carry away, injure or destroy, or convert to his own use any of such logs, timber or lumber, he shall be guilty of a misdemeanor, and, upon conviction, fined not more than one hundred dollars, and, at the discretion of the court, be imprisoned not more than ninety days. The owner of such timber shall be liable to the owner of the land for any damages sustained by him by reason of such logs, timber or lumber lodging or remaining thereon.(1877, c. 121; 1881, c. 39; Code 1923, c. 54A, §24.)

§6. Obstruction of Stream.—If the owner of logs or other lumber placed in a stream above a boom erected thereon shall unreasonably delay driving such logs or lumber into such boom, so that persons wishing to use such stream for driving or floating logs or other lumber into such boom shall be compelled to drive such logs or lumber into the boom; or break any jam, to enable such person so to use such stream, the reasonable expenses of driving or floating such logs or other lumber, or breaking such jam, shall be borne by the owner of such logs or other lumber so obstructing such stream, to be recovered before a justice of the peace or other judicial tribunal having jurisdiction, and shall constitute a lien on such logs or other lumber until the same shall be paid.(1877, c. 121; Code 1923, c. 54A, §25.)

§7. Liability for Timber Within Boom.—Such corporation shall be liable for all logs, timber and other floatables which may come into its boom, except when they sink in deep water, or are carried away by unusually high water, or are destroyed by fire, not caused by the negligence of such corporation, its agents or employees.(1877, c. 121, §26; 1881, c. 39; Code 1923, c. 54A, §26.)

§8. Meaning of “Logs or Timber.’’.—Wherever the words “logs or timber’’ occur in this article, they shall be taken to mean logs and timber of every kind and description manufactured or unmanufactured.(1877, c. 121, §27; Code 1923, c. 54A, §27.)

§9. Injury to Mill Property.—Nothing in this article shall be so construed as to deprive the owners of mill property, and other proprietors on such river and branches thereof from recovering damages for injury to their property by such corporation, their agents or employees.(1877, c. 121, §28; Code 1923, c. 54A, §28.)

§10. Filing Marks and Brands.—Before the persons driving logs shall put their logs in any of such streams for the purpose of driving them, they shall file a memorandum with the clerk of the county court wherein such logs are, stating distinctly the brand or marks of such persons; and unless these requirements are complied with, such corporation shall in no manner be held liable for any loss occasioned by the loss of such logs.(1881, c. 39; Code 1923, c. 54A, §32.)

§11. Obstruction of Public Roads.—No company incorporated under the provisions of this act shall so exercise its corporate privileges, as to materially obstruct any public road or ford across any stream.(1881, c. 39, §1; Code 1923, c. 54A, §33.)

§1. Banking Institutions Defined.—The term “banking institution” shall include every company chartered under this chapter and authorized to do business in the State of West Virginia under the provisions of this article, with authority to engage in the banking business as defined in sections six and seven of this article; and every such company chartered under the provisions hereof, shall have, as a part of its corporate name or title, one or more of the following words indicative of the business which it is authorized to conduct, namely, “bank,” “banking company,” “banking association,” “savings bank,” or “trust company.”(1929, c. 23, §1.)

§2. Improper Use of Term “Bank,” “Banker,” “Banking Company” or “Trust Company” Made Unlawful; Penalties.—No person, persons, corporation or corporations doing business in this State, except a banking institution chartered and organized under the provisions of this article and article one of this chapter, and except a banking association chartered under acts of the congress of the United States, shall use in connection with such business, or as a designation or title, the term “bank,” “banker,” “banking,” “banking company,” “banking association,” “savings bank,” or “trust company”; or engage in the banking business as defined in sections six and seven of this article, or hold himself, themselves or itself out as engaged in any such business.

Any person or corporation and/or officer or director of any corporation violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be fined not more than one thousand dollars; and at the discretion of the court any individual so offending shall be imprisoned in the county jail for a period not exceeding six months, or both fined and imprisoned, within such limits.(1905, c. 45; 1907, c. 79; 1913, c. 21; 1919, c. 60; Code 1923, c. 54, §78; 1925, c. 34; 1929, c. 23, §1.)

§3. Banking Institution; Issue or Amendment of Charter; Approval of Banking Commissioner.—No charter shall issue in this State for any banking institution, nor shall there be any increase or reduction in the capital stock, or amendment of the charter or by-laws thereof, unless the application or resolution, as the case may be, shall have been submitted to and approved by the commissioner of banking, and his approval indorsed thereon in writing.(1905, c. 45; 1907, c. 79; 1908, c. 30; 1913, c. 21; 1919, c. 60; Code 1923, c. 54, §78; 1925, c. 34, §78; 1929, c. 23, §2.)

§4. Minimum Capital Stock; Par Value.—No banking institution shall hereafter be incorporated unless it shall have a bona fide subscribed capital stock of at least twenty-five thousand dollars if the population of the town or city be not more than three thousand; fifty thousand dollars if the population of the town or city be not more than six thousand; one hundred thousand dollars if the population of the town or city be not more than fifty thousand; and one hundred and fifty thousand dollars if the population of the town or city be more than fifty thousand, said population to be that shown by the last available United States census: Provided, That no banking institution engaged in the business of a trust company shall be incorporated unless it shall have a bona fide subscribed capital stock of at least one hundred thousand dollars.

In all cases the actual capital stock and the authorized capital stock of a banking institution shall be the same.

A banking institution shall issue but one class of stock and the shares shall have a nominal or par value of twenty-five dollars each, or a multiple thereof, and each share shall be equal in all respects with any other share.[1872-3, c. 215 ; 1881, c. 17; 1901, c. 83; 1907, c. 79; 1913, c. 21; 1919, c. 60; Code 1923, c. 54, §§77, 78a (5); 1923, c. 31; 1925, c. 35, §78a(5); 1929, c. 23, §2.]

§5. Payment for Stock Before Engaging in Business; Permit.—All of the capital stock of every banking institution, chartered under the laws of this State, shall be paid in before it shall be authorized to engage in business, except such business as is incidental and necessarily preliminary to its organization. And in no case shall a banking institution engage in public business until it shall have received a certificate of authority or permit from the commissioner of banking, as provided by law.

No banking institution shall sell its shares of stock at less than par, nor for any consideration other than money, or pay any commission or bonus for the sale thereof.[1901, c. 83; 1905, c. 45; 1907, c. 79; 1913, c. 21; Code 1923, c. 54, §78a(2); 1929, c. 23, §2.]

§6. Powers of Banking Institutions Defined.—Any banking institution, organized under this chapter, shall have and exercise all of the powers necessary for, or incidental to, the business of banking, and, without limiting or restricting such general powers, it shall have the right to buy or discount promissory notes, and bonds, negotiate drafts, bills of exchange and other evidences of indebtedness, borrow money, receive deposits on such terms and conditions as its officers may prescribe, buy and sell exchange, bank notes, bullion or coin, loan money on personal or other security, rent safety deposit boxes, and receive on deposit, for safekeeping, jewelry, plate, stocks, bonds and personal property of whatsoever description. Any banking institution may accept, for payment at a future date, drafts drawn upon it by its customers, and issue letters of credit authorizing the holders thereof to draw drafts upon it or its correspondents, at sight or on time, not exceeding one year.

Any banking institution may acquire, own, hold, use and dispose of, real estate, which shall in no case be carried on its books at a value greater than the actual cost, subject to the following limitations and for the following purposes:

(a) Such as shall be necessary for the convenient transaction of its business, including, in the same building with its office or banking room, other offices or apartments to rent as a source of income; such investment hereafter made shall not exceed sixty-five per cent of the amount of its capital stock and surplus, unless the consent in writing of the commissioner of banking is first secured;

(b) Such as shall be mortgaged to it in good faith as security for debts in its favor;

(c) Such as shall be conveyed to it in satisfaction of debts previously contracted in the course of its business dealings;

(d) Such as it shall purchase at sales under judgments, decrees, trust deeds or mortgages in its favor, or shall purchase at private sale, to secure and effectuate the payment of debts due to it;

(e) The value at which any real estate is held shall not be increased by the addition thereto of taxes, insurance, interest, ordinary repairs, or other charges which do not materially enhance the value of the property.

Any real estate acquired by any banking institution under clauses (c) and (d) shall be dis posed of by the banking institution at the earliest practicable date; but the officers thereof shall have a reasonable discretion in the matter of the time to dispose of such property in order to save the banking institution from unnecessary losses: Provided, That such property shall be disposed of within five years from the time it is acquired by the banking institution unless an extension of time is given in writing by the commissioner of banking.

No banking institution organized and authorized to transact business under this chapter shall hereafter invest more than twenty per cent of the amount of its capital and surplus in furniture and fixtures, whether the same be installed in a building owned by such banking institution, or in quarters leased by it.(1881, c. 17; 1901, c. 83; 1905, c. 45; 1907, c. 79; 1913, c. 21; 1919, c. 60; Code 1923, c. 54, §78; 1925, c. 34; 1929, c. 23, §3.)

§7. Banking Institutions; Trust Powers.—Every banking institution organized under the provisions of this chapter and authorized to engage in the business of a trust company shall have and exercise the following powers:

(a) All the powers, rights and privileges of any banking institution organized under this chapter, as defined in section six;

(b) To act as trustee, assignee, general or special receiver, guardian, executor, administrator, committee or curator, and to take, assume, accept and execute, trusts of every description not inconsistent with the Constitution and laws of the United States of America or of this State; and to receive, hold, manage and apply any sinking fund on the terms and for the purposes specified in the instrument creating such fund;

(c) To act as registrar or transfer agent for any corporation in registering and transferring its shares of stock, bonds and other obligations;

(d) To buy, hold, sell and deal in the bonds, or other obligations, of the United States, the State, county, magisterial district, school district, or any municipality, in the State, or the stocks or bonds of any business corporation;

(e) To purchase and sell and take charge of and receive the rents, issues and profits of any real estate for other persons or corporations;

(f) To act as trustee or agent in any collateral trust, and, in order to secure the payment of any obligations of any company, person or association, to receive and hold in trust items of personal property, including bonds and obligations of states, counties, districts, or municipal corporations; and notes, bonds and obligations of private corporations and/or persons; and certificates for shares of stock of private corporations, with the right in case of default to sell and dispose of all such personal property and/or to collect, settle and adjust all obligations for the payment of money, or to sell and dispose of such obligations, and at any such sale to purchase the property for the benefit of all or any of the holders of the obligations, to secure the payment of which such items of property or securities were pledged and delivered. Any such sale may be made without any proceedings in any court, and at such times and upon such terms as may be specified in the instrument or instruments creating the trust, or, in the absence of any specification of terms, at such time and upon such terms as the trustee shall deem reasonable;

(g) To do and perform any act or thing requisite or necessary in, or incidental to, the exercise of the general powers herein set forth.

All national banks which have been, or hereafter may be, permitted by law to act as trustee and in other fiduciary capacities, shall have all the rights, powers, privileges and immunities conferred upon trust companies hereunder: Provided, That they have a capital of at least one hundred thousand dollars and comply with the requirements hereof relating to trust companies.(1891, c. 28; 1901, c. 85; 1903, c. 1; 1919, c. 80; Code 1923, c. 54C, §1; 1929, c. 23, §4.)

§8. Certificate to be Filed With Secretary of State Before Exercising Trust Powers.—No banking institution shall exercise any of the trust powers mentioned in the preceding section until it shall have filed with the secretary of state a duly authenticated certificate, showing the unimpaired capital of such company to be at least one hundred thousand dollars, and a like duly authenticated certificate shall be filed with the secretary of state and a copy thereof with the commissioner of banking in the month of January of each year thereafter. If any banking institution shall exercise, or attempt to exercise, any such powers or rights without having complied with the requirements of this section as to the filing of such certificate, it shall be guilty of a misdemeanor, and; upon conviction thereof, shall be fined not more than five hundred dollars; and in every such case, whether or not there shall have been a prosecution or conviction of the company so offending, the commissioner of banking, being satisfied of the facts, may publish a notice in two issues of a newspaper of general circulation in the county in which such institution is located, of the fact that it has failed to comply with the requirements of this section and is therefore not entitled to exercise the trust powers and rights mentioned in the preceding section.(1901, c. 85; 1903, c. 7; 1919, c. 80; Code 1923, c. 54C, §6; 1929, c. 23, §4.)

§9. Branch Banks Forbidden; Bank Not to Sign Indemnity Contract or Pledge Its Assets to Indemnify a Surety.—No banking institution chartered and authorized to engage in business under the laws of this State, shall hereafter install or maintain any branch bank, or engage in business at any place other than at its principal office in the State of West Virginia; or engage in any business other than as authorized in this article. No banking institution shall become or be accepted as surety on any bond or undertaking required by the laws or by the courts of this State, or any other state, or shall become surety or guarantor of any person for the discharge of any duty in any position or the performance of any contract or undertaking. No banking institution shall pledge, hypothecate or deliver any of its assets of any description whatsoever to any person to indemnify him as surety for such banking institution, or as surety for any other person: Provided, That a bank or trust company may deposit securities to guarantee deposits of the United States, State of West Virginia, a county, district, school district or municipal corporation.

The foregoing shall not prevent the hypothecation of the assets of any banking institution to secure the repayment of money borrowed from another banking institution.(1903, c. 7; 1919, c. 80; Code 1923, c. 54C, §7; 1929, c. 23, §5.)

§10. Trust Funds.—Every banking institution, authorized to engage in the business of a trust company, shall keep all trust funds and investments separate and distinct from the as sets owned by the corporation; and shall keep a separate set of books and records showing in proper detail all transactions so engaged in; and all investments made by such company as fiduciary shall be so designated that the trust to which such investments shall appertain or belong shall be clearly and distinctly shown on the books of the corporation; and such funds shall be held for the uses of the trust designated and for the beneficiaries thereof, and shall not be liable for any other obligations of the corporation.(1891, c. 28; 1901, c. 85; 1903, c. 7; 1919, c. 80; Code 1923, c. 54C, §4; 1929, c. 23, §6.)

§11. Oath as Fiduciary.—Whenever any court, or the clerk thereof, shall appoint any banking institution, exercising trust powers, as trustee, receiver, assignee, guardian, executor, administrator, special commissioner, curator or committee, to perform any duty or execute any trust, the president, vice president, secretary, treasurer or trust officer of such institution shall take the oath and make the affirmation required by law of any such fiduciary, before the clerk of such court in person, or before any other officer authorized to administer oaths.(1891, c. 28; 1901, c. 85; 1903, c. 7; 1919, c. 80; Code 1923, c. 54C, §3; 1929, c. 23, §6.)

§12. Capital as Security for Fiduciary.—Whenever any banking institution authorized to exercise trust powers, and having complied with the requirements of this article, shall be appointed trustee, assignee, receiver, guardian, executor, administrator, special commissioner, curator or committee, or shall be directed by the order or decree of any court to execute any trust whatsoever, the capital and other assets of the fiduciary corporation shall constitute the security required by law for the faithful performance of its duties and shall be absolutely liable in case of any default whatsoever: Provided, That where the liability under any such appointment as trustee, assignee, receiver, guardian, executor, administrator, special commissioner, curator or committee, or, in the execution of any trust by order or decree of any court, shall be equal to, or shall exceed the capital and surplus of such fiduciary corporation, the court making such appointment, order or decree may require, and the fiduciary shall give, additional security.(1901, c. 85; 1903, c. 7; 1919, c. 80; Code 1923, c. 54C, §5; 1929, c. 23, §6.)

§13. Directors; Qualifications; Oaths.—For every banking institution subject to the provisions of this chapter there shall be a board of at least five directors, who shall meet at least once each month and who shall have power to do, or cause to be done, all things that are proper to be done by the banking institution; and a majority of whom shall at all times be residents of this State. Every such director shall own in his own right shares of the aggregate par value of not less than five hundred dollars, of the capital stock of the banking institution of which he is a director, and, before entering on the discharge of his duties as such director, he shall take an oath that he will, so far as the duty devolves upon him, diligently and honestly administer the affairs of the banking institution, and that he will not knowingly or willingly permit to be violated any of the provisions of the laws of this State relative to banking and banking institutions, and that the stock standing in his name upon the books of the banking institution is not hypothecated or pledged in any way as security for loans obtained from or debts owing to the banking institution of which he is a director, and that the number of shares necessary to qualify a stockholder to be a director are not now, and shall not at any time while he serves as a director be pledged or hypothecated in any manner for any debt or obligation of the director, or any other person; which oath subscribed by himself and certified by the officer before whom it was taken shall be filed and preserved in the office of the commissioner of banking. Should a director fail to subscribe to the oath herein provided for within sixty days after notice of his election, or at any time after qualifying as such, sell or dispose of, or in any manner hypothecate or pledge as security for a debt or obligation, such qualifying shares, or any number thereof, necessary for his qualification, thereupon the remaining directors shall elect another director in his stead.[1872-3, c. 215; 1881, c. 17; 1901, c. 83; 1905, c. 45; 1907, c. 79; 1913, c. 21; Code 1923, c. 54, §78a(4); 1929, c. 23, §7.]

§14. Oaths of Officers and Bonds of Officers and Employees.—The board of directors shall require the cashier and other accounting officers of a banking institution to take an oath and shall require such officers and all employees to execute bonds upon forms prescribed by the commissioner of banking, with an indemnity company authorized to transact business in this State as surety, for the faithful discharge of their respective duties; the penalty of such bonds to be commensurate with the responsibility of the position, and the premium thereon to be paid by the bank. Either the original bond or a copy thereof shall be filed and preserved in the office of the commissioner of banking.[1913, c. 21; Code 1923, c. 54, §80a(2); 1925, c. 34, §80a(2); 1929, c. 23, §8.]

§15. List of Stockholders.—The president, cashier, or other executive officer of every banking institution shall cause to be kept at all times a full and correct list of the names and post office addresses of all of the stockholders of the banking institution, and the number of shares owned by each, in the office where its business is transacted. Such list shall be open to inspection by all of the stockholders and creditors of the banking institution, and the officers authorized by law to assess taxes, during business hours of each day, except Sundays and holidays. A copy of such list shall be made on the first Monday in July of each year and verified by the oath of the president, cashier, or other executive officer, and immediately transmitted by mail to the commissioner of banking, at his office.[1901, c. 83; 1907, c. 79; 1913, c. 21; Code 1923, c. 54, §79a(5); 1929, c. 23, §9.]

§16. Liability of Stockholders.—Each stockholder of any banking institution, organized under the laws of this State, in addition to the liability imposed upon him as a stockholder of a corporation under the provisions of article one of this chapter, shall be liable to the creditors of the banking institution, on obligations accruing while he is a shareholder, to an amount equal to the par value of the shares of stock held by him; and no sale or transfer of the shares of stock made by any such stockholder, after the liability of the banking institution originated or accrued, shall relieve the stockholder from the liability imposed by this section. Any proceeding in equity to enforce the liability of stockholders imposed by this section may be prosecuted severally against any one stockholder or jointly against any number of stockholders.[1913, c. 21; Code 1923, c. 54, §78a(3); 1929, c. 23, §9.]

§17. Provisions Applicable to Banking Institutions Heretofore Organized; Banking Institutions Organized Under the Laws of Other States Not to Engage in Business in This State.—All of the provisions of this article shall apply to banking institutions heretofore organized and created under the laws of the State of West Virginia, or which shall hereafter be organized under the provisions of this chapter; and any banking institution heretofore organized, if necessary in order to comply with the provisions of this article, shall cause its certificate of incorporation to be amended; and it shall be the duty of the commissioner of banking to require any such banking institution to comply with all the provisions of this article, or to compel such institution to go into liquidation and to cease to transact business in this State. No banking institution chartered and organized under the laws of any other jurisdiction, except banking associations chartered under the laws of the United States of America, shall be permitted to engage or continue in the banking business in the State of West Virginia.(1929, c. 23, §1.)

§18. Unlawful for Certain Companies and Persons to Engage in the Business of Banking; Penalties.—No corporation chartered under the laws of this State, or of any other state, territory or sovereignty, except banking associations chartered under the laws of the United States of America, and banking institutions chartered under the laws of this State, as defined in this article, and no person, partnership or association of persons as a trust, or other organization, shall engage in the business of banking in the State of West Virginia, or shall receive or accept deposits of money, or borrow money by receiving and giving credits for deposits, or by issuing certificates of deposit or certificates of indebtedness, or by making and negotiating any writing purporting to be a bond, contract, or other obligation, the performance of which requires the holder or other party to make deposits of money with the issuer, or by means of any other plan, pretext, scheme, shift or device. Nothing contained in this section shall affect the rights, privileges, objects or purposes delegated to other corporations by the general corporation law or other laws of this State. Any corporation or individual who violates any of the provisions of this section shall be guilty of a misdemeanor, and, upon conviction, shall be fined not more than five thousand dollars, and, in addition to such penalty, every corporation so offending shall forfeit its corporate franchise, and every individual so offending shall be subject to a further, penalty by confinement in jail for not more than one year.(1903, c. 8; 1919, c. 80; 1921, c. 126; Code 1923, c. 54C, §§12, 14; 1925, c. 33; 1929, c. 23, §10.)

§19. General Penalty.—Any violation of any provision of this article, for which a penalty is not herein elsewhere specified, shall be a misdemeanor, and any person or corporation convicted thereof shall be fined not more than five hundred dollars, and any individual may, at the discretion of the court, be imprisoned in the county jail not more than six months.[1913, c. 21; Code 1923, c. 54, §81a(20).]

§20. Interest Allowed in Certain Cases.—In addition to the interest rate provided in the article dealing with money and interest in chapter forty-seven of this Code, a banking institution may charge and collect a reasonable amount to cover the expenses incurred in procuring reports and information respecting loans and the value of and title to property offered as security therefor, and a charge of one dollar may be made for any loan or forbearance of money or other thing where the interest at the rate of six per cent per annum would not amount to that sum, and the same shall not be a usurious charge or rate of interest.(1929, c. 23, §21.)

§1. Definitions.—The words ‘‘indemnity company,” when used in this article, shall include every corporation organized under article one of this chapter, or under the laws of any other state, and licensed to transact business under the provisions of this article, in the State of West Virginia, with authority to engage in the business of making contracts of indemnity or becoming surety of any person on any bond or other obligation for the performance of any duty, undertaking or promise, of whatever terms or description, including contracts insuring or guaranteeing the title to any property, real or personal. The terms, however, shall not include insurance companies authorized to issue policies insuring property against loss by fire, theft, robbery, or other cause, or issuing life, health or accident insurance policies.

§2. Corporate Name or Title.—Every indemnity company shall have as a part of its corporate name or title, indicative of its business, one or more of the following words, namely, “indemnity company,” “surety company,” “security company,” “guaranty company,” “fidelity company,” “bonding company,” “casualty company,” or “title insurance company.”

§3. Charter, When to Issue; License.—No charter incorporating an indemnity company shall be issued, or no amendment of an existing charter made, until the application therefor shall have been submitted to and approved by the insurance commissioner and his approval indorsed thereon in writing. No indemnity company shall engage or continue in business in the State of West Virginia without an unrevoked license or permit from the insurance commissioner authorizing it so to do. Such license or permit shall continue in force and may be renewed as is provided in section twelve, article two, chapter thirty-three of this Code, unless sooner revoked for cause, and the annual fee to be paid to the insurance commissioner for each license or permit shall be ten dollars.

§4. Minimum Capital; Classes of Stock.—No indemnity company shall be licensed to engage or continue in business in this State unless it shall have an unimpaired, paid up capital of at least six hundred thousand dollars. All classes of shares of capital stock of an indemnity company shall have a par value, and the par value of all shares of each class shall be the same. No indemnity company shall have an authorized capital stock in excess of its subscribed or outstanding capital stock.(1903, c. 8; 1919, c. 80; 1921, c. 126; Code 1923, c. 54C, §12; 1925; c. 33, §12.)

§5. General Powers.—An indemnity company organized under the provisions of this chapter, or organized under the laws of any other state and having a license to do business in this State, and which has complied with the provisions of this article, may become surety of any person for the performance of any official duty required by law, or of any person or corporation on any bond or undertaking required in any proceeding in any court, and/or of any person, persons, corporation or corporations on any bond, writing or obligation for the performance of any promise, duty or under taking of whatsoever terms or description, and/or may make contracts and issue policies of insurance guaranteeing title of, and freedom from liens of, any property, real or personal, and/or issue policies of insurance against loss from any cause, other than by death of any person or by fire: Provided, That any indemnity company may by its charter be restricted to engaging in any one or more of the branches of business above outlined. Except as otherwise provided by law, any indemnity company may prescribe such terms and conditions for entering into any contract or undertaking and make such charges for any such service as the officers thereof shall deem advisable.(1903, c. 8; 1919, c. 80; Code 1923, c. 54C, §9.)

§6. Investigation of Indemnity Company; New Bond.—Whenever any indemnity company, wherever incorporated, is offered as surety to any court, or the clerk thereof, or to any board upon which is devolved by law the duty of approving such bond, such court, or board, may, at its discretion, upon the application of any person interested, require the insurance commissioner to investigate the affairs and management of the company so offered, who shall report to such court or board the manner in which the investments of such company are made and the security afforded to those by or for whom its engagements are held; and the expenses of such investigation shall be paid by the applicant, unless the last semiannual statement of the company, made as required by the next following section of this article, is found to be false and misleading, in which case the expenses of such investigation shall be paid by the company. If at any time it shall appear to such court or board by any person interested that the insurance commissioner of this State has revoked the authority of such company to act as such surety on bonds in this State, or that the net capital of such indemnity company has been impaired so that it is less than six hundred thousand dollars, or that such company has lawfully withdrawn from the business of becoming surety on bonds in the State or is in the process of liquidating its surety business in the State, or is in the hands of a receiver, then it shall be the duty of such court or board, upon the application of the principal, such surety, or any person in interest, to require any person who has given such bond to execute a new bond within sixty days from the date of service of such order as hereinafter provided, as such court or board may fix by order entered of record, the penalty of which bond shall be fixed by such court or board, and a copy of such order shall be served upon the principal in such bond, if such principal be a resident of this State, but if he be a nonresident, or if the return of an officer of the county in which such principal last resided in this State shows that he is not found, then a copy of such order shall be published once a week for two successive weeks in some newspaper of general circulation published in the county in which such bond was given, and a copy of such order shall also be posted at the front door of the courthouse of such county. It shall then be the duty of such principal, within the period of time fixed by such order, to give such new bond with surety or sureties as required by law. If such bond be not given within sixty days, or other period fixed in such order, or from the date of service, or from the date of the last publication, as the case may be, then such court or board shall, in the case of all bonds, except bonds given by some state, county, district or municipal officer, and may in its discretion in the case of bonds given by any state, county, district or municipal officer, enter an order terminating the authority of such principal to perform any duties or exercise any powers in connection with which such bond was given, and from and after the entry of such order terminating authority, no new liability shall accrue under such bond. Any unearned premium shall be refunded by such company upon the entry of such order. The costs of any proceeding under this section shall be paid by the person the court or board may order to pay same; except the costs of investigation herein above provided for.(1891, c. 28; 1901, c. 85; 1903, c. 8; 1915, c. 37; 1919, c. 80; Code 1923, c. 54C, §10.)

§7. Certificate and Statements to be Filed by Indemnity Company.—No indemnity company shall exercise any power or right mentioned in this article until there has been filed with the insurance commissioner a duly authenticated certificate showing the capital of such company to be at least six hundred thousand dollars, fully paid and unimpaired. And such duly authenticated certificate shall be filed with the insurance commissioner in the month of January of every year thereafter. Every such company shall, before commencing business, and thereafter within the first ten days of the months of January and July of each year, file with the clerk of the county court of each county in which it proposes to transact, or is transacting business, a statement certified by the secretary, treasurer, or other officer of such corporation, under oath or affirmation, showing the financial condition of the company on the first day of the month in which such statement is filed; which statement shall show all of the resources and liabilities of the company and the nature of its investments; and such statement shall be made a part of the public records of such county, and be recorded in a well-bound book to be kept for such purpose, and to be called “Indemnity Company Statements”; for which filing and recording the clerk of the county court shall collect a fee at the rate fixed for recording deeds, to be paid by the company making such statement. Any officer or employee of any such company who shall knowingly make any fraudulent, false or misleading statement, under the provisions of this section, shall be guilty of a misdemeanor and shall, upon conviction thereof, be punished by a fine of not less than five hundred and not more than twenty-five hundred dollars; Any company exercising, or attempting to exercise, any of the rights or powers mentioned in this article without having complied with the provisions of this section by filing the certificate required with the insurance commissioner, or by making and filing the statements required to be made and filed with the clerk of the county court of any county, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than five hundred nor more than twenty-five hundred dollars; and in every such case, whether or not there be a prosecution for the misdemeanor, the insurance commissioner, being satisfied of the facts, may suspend or revoke the right of such company to do business in this State.(1901, c. 85; 1903, c. 8; 1919, c. 80; 1921, c. 126; Code 1923, c. 54C, §12; 1925, c. 33, §12.)

§8. Funds of Indemnity Companies; Investments; Real Estate.—Any indemnity company may own and hold real estate necessary for its purposes as a corporation. Any such company may purchase real estate in order to avoid loss, because of any loan or investment held by such company which constitutes a lien upon such real estate. It shall dispose of all such real estate so purchased within a reasonable time and as soon as practicable. Any indemnity company may invest in, buy, hold and dispose of, the bonds of the United States of America, or of any state, county, city, magisterial district, or other subdivision of any state, and in bonds, notes and obligations of business corporations and individuals; and may loan money upon personal security, or make loans of its funds secured by liens upon real estate and upon pledges of personal property, including securities of any description; subject in all respects to any regulations which may be made by the insurance commissioner.

§9. Not to Act as Fiduciary.—No indemnity company shall be appointed or act as a fiduciary in any capacity in the State of West Virginia. Any indemnity company violating the provisions of this section shall be guilty of a misdemeanor, and, upon conviction, shall be fined not less than five hundred nor more than twenty-five hundred dollars; and in every case of such violation, whether or not there be a prosecution for the misdemeanor, the insurance commissioner, being satisfied as to the facts, may suspend or revoke the right or license of such company to engage or continue in business in this State.(1903, c. 8; 1919, c. 80; Code 1923, c. 54C, §13; 1925, c. 33, §§12, 14.)

§10. Existing Contracts of Indemnity Companies.—All contracts, agreements and obligations made or entered into by any indemnity company chartered under the laws of this or any other state, before such company shall have complied fully with the requirements of this article, and all other provisions of this chapter, shall be voidable at the election of the other party thereto or the party benefited thereby.(1901, c. 86; 1919, c. 80; Code 1923, c. 54C, §19.)

§11. Foreign Indemnity Companies; How Authorized to do Business in West Virginia.—Any indemnity company incorporated under the laws of any other state of the United States or under the laws of the District of Columbia, duly authorized by its charter to carry on the business of an indemnity company as defined, specified and limited in this article, upon complying fully with all of the requirements of this article with respect to corporations organized under the laws of this State, upon application may be authorized to transact business in West Virginia. Such authority shall not be granted until the application shall be approved by the insurance commissioner and his approval indorsed thereon. In addition to such authority to transact business in the State of West Virginia, such corporations shall secure a permit or license to engage or continue in such business, from the insurance commissioner and it shall be unlawful for any such corporation to transact any business in the State of West Virginia without an unrevoked permit from the insurance commissioner. Upon complying with the foregoing provisions any such corporation may engage in any business in the State of West Virginia in which an indemnity company chartered under the laws of this State can lawfully engage, and in no other or different business.(1893, c. 27; 1899, c. 37; 1901, c. 86; 1919, c. 80; Code 1923, c. 54C, §18.)

§12. Existing Indemnity Companies Required to Comply With Provisions of This Article.—Any indemnity company heretofore chartered under the laws of this State, or heretofore chartered under any other jurisdiction, and authorized to transact business in this State, shall comply with all of the provisions of this article and, in any case in which it is necessary to amend its certificate or articles of incorporation so to do, such amendment shall be made; other wise the insurance commissioner shall revoke the permit or license of such company to transact business in the State of West Virginia.

§13. Additional Permit to Guarantee Payment of Bank Deposits.—In addition to the permit of the insurance commissioner to be procured under other provisions of this article, no indemnity company shall make any contract, agreement or undertaking, to insure the payment to the depositors of any banking institution in this State of the respective amounts deposited by them, until it shall secure a permit from the insurance commissioner so to do. No such permit, when issued by the insurance commissioner, shall authorize an indemnity company to continue in such business for a period longer than six months from the date thereof. Before issuing any such permit, the insurance commissioner shall be satisfied that the assets of the indemnity company are amply sufficient to guarantee the performance of its undertakings. Nothing in this section shall prevent any indemnity company from guaranteeing the payment of any deposit of public moneys in any banking institution in the State.

§14. Surety for Employee of Carrier.—If any common carrier authorized to do business in this State shall employ any person in any position of trust in this State, and shall apply to any surety company for surety for the faithful performance of duty by such employee, or for any form of fidelity insurance, and such surety company shall refuse to become responsible for such employee or, having become responsible for such employee, shall thereafter cancel such responsibility, such surety company shall furnish to such employee a statement in writing of the reasons therefor, which statement shall be sent by registered mail to such place as he shall designate, addressed to such employee, promptly on his demand therefor in writing sent by registered mail to the head office of such surety company addressed to such surety company or officer thereof; and, unless such common carrier shall have other reasons for refusing to employ such employee than the facts of such refusal of such surety company to so become or continue responsible for such employee, such common carrier shall, on request of such employee, accept, as security for the fidelity of such employee, a bond or obligation in the same form or substantially in the same form as that under which such surety refused to become or continue responsible for such employee, when duly executed and acknowledged by any other solvent surety company authorized to execute such bond or obligation in this State, or a personal bond with satisfactory surety and furnished to such common carrier by such employee, without cost or expense to such common carrier: Provided, however, That such surety company shall not be required to disclose the sources of its information regarding such employee, and that all communications, written or verbal, between such surety company or any officer or representative thereof and such common carrier or any officer or representative thereof, or such employee or any person, firm or corporation mentioned in any statement made by such employee to such surety company, shall be deemed privileged communications: Provided further, That no action or legal proceeding for libel or slander shall lie against such surety company or such common carrier by reason thereof. Any surety company or any common carrier which shall violate any of the provisions of this section shall be deemed guilty of a misdemeanor and be punished by a fine of not less than fifty nor more than two hundred dollars.(1915, c. 21; 1919, c. 80; Code 1923, c. 54C, §21.)

§15. Supervision by Insurance Commissioner.—All companies engaged in this State in the exercise of any of the rights or powers mentioned in this article, and all other companies of similar character, shall be subject to the same examination and supervision by the insurance commissioner as is now provided for fire insurance companies incorporated and/or doing business in this State.(1903, c. 8, §7; 1919, c. 80, §15; Code 1923, c. 54C, §15.)

§1. Incorporation; Powers.—Any number of persons, not less than nine, may form a building and loan association for the purpose of encouraging industry, frugality and home building, and saving among its members. A building and loan association formed under this chapter shall have the right and power of loaning, to the stock holders thereof, the moneys accumulated from time to time, as well as the right and power to purchase land or erect houses, and to sell, convey, lease or mortgage the same at its pleasure, to the stockholders, or others for the benefit of the stockholders. Such association may acquire, hold, convey and encumber all such property, real and personal, as may be taken as security, or may be otherwise transferred to it in the due course of its business, and may secure the payment of loans and the performance of other conditions upon which loans are to be made, or the payment of the purchase money for and property sold, by taking personal security, or by a mortgage or deed of trust, upon real or personal property, or by a transfer or pledge of its stock.(1891, c. 79; 1921, c. 105; Code 1923, c. 54, §25.)

§2. Loans; Premiums; Usury.—Every such association shall have the power to provide by its by-laws for selling to the stockholders the money in the treasury, at or above a minimum premium; the minimum premium and the mode of selling or loaning the money to stockholders to be fixed by the by-laws. But such premium must be a certain definite sum, fixed and determined at the time of the making of the loan. The by-laws of every such association shall set forth whether the premium on any such loan shall be deducted therefrom in advance or be paid in periodical installments. But whether the premium be deducted from the loan, or paid in periodical installments, the transaction shall not be deemed usurious, although any and all the dues, fines, premium and interest shall exceed the legal rate of interest on the amount of money received by the stockholders.(1867, c. 5; Code 1868, c. 54; 1881, c. 17; 1883, c. 58; 1891, c. 79; 1921, c. 105; Code 1923, c. 54, §26.)

§3. Dues; Interest; Fines.—Every such association may levy, assess and collect from its stockholders, periodical dues upon every share of its stock; the amount of such dues to be fixed by the by-laws; but no periodical payment to exceed two dollars upon each share; and such stock may be paid off and retired as the by-laws shall direct; and may levy, assess and collect from the members to whom loans have been made, interest upon the par value of the shares so loaned; and may levy, assess and collect fines for the nonpayment of periodical dues, or for failure to comply with or perform any other obligation or duty to the association. The amount of the respective fines shall be fixed by the by-laws, and they shall be imposed under regulations to be made by the by-laws; but such fines shall be uniform, and, where they are imposed for default in the payment of dues, shall be in proportion to the amount of the dues for the failure to pay which they are imposed; but no member shall be fined more than once for the same default.(1867, c. 5; Code 1868, c. 65; 1881, c. 17; 1883, c. 58; 1891, c. 79; 1921, c. 105; Code 1923, c. 54, §27.)

§4. Repayment of Loans; Withdrawal; Default.—A borrower from such association may repay the loan at any time; and in case of the repayment thereof before the maturity of the shares pledged for such loan, there shall be refunded to such borrower, in case the premium shall have been deducted in advance, such proportion of the premium paid as the by-laws may determine; but the borrower shall receive the withdrawing value of the shares pledged for such loan, and the shares shall revert back to the association. Stockholders withdrawing voluntarily shall receive such proportions of the profits of the association or such rate of interest as may be prescribed by the by-laws. In case of default of a borrower to pay dues, interest or premium, for the period of three months, payment of the same, together with the full principal of the loan, may be enforced by proceedings on the securities according to law; and the money so received shall be paid into the treasury of the association; and if the moneys so recovered shall exceed the amount it would have required to repay the loan under the first part of this section, together with all the expenses incurred by the association, such excess shall be paid to such borrower.(1891, c. 79; 1921, c. 105; Code 1923 c. 54, §28.)

§5. Contingent Fund.—It shall be lawful a building and loan association to set aside in its treasury, out of the dues, fines, interest and premiums paid by its stockholders, a contingent fund which shall be used only for the purpose of paying losses and necessary expenses incurred in the maturing of any of its series of stock, and for the purpose of stabilizing and making equal as near as may be, the time of maturity of all of such series; but such contingent fund shall at no time exceed eight per cent of the outstanding loans.(1919, c. 87; Code 1923, c. 54, §28a.)

§6. Permit.—All building and loan associations, incorporated or unincorporated, and all persons, firms, partnerships, associations, trustees, or combinations of persons whatsoever which or who transact a building and loan business, or a business of like kind or character, where by its, or their, charter, constitution, by-laws, or by a declaration of trust, or other device, or by a contract or agreement, the member or customers are required to pay weekly, monthly or regular installments to a common fund series, from which fund or series loans are made to such members, customers or to others, for the purpose of building homes or buildings, purchasing building sites, paying off liens or debts against real estate, or for other purposes, shall obtain from the commissioner of banking a permit or certificate of authority as provided in section five, article eight of this chapter. And all such persons, firms, partnerships, associations, trustees or combinations of persons, shall be subject to the same examination, visitation, control and penalties and pay the same fees and charges therefor required of building and loan associations incorporated under the laws of this State.(1919, c. 87; Code 1923, c. 54, §28a.)

§7. By-Laws.—Every such association shall, adopt by-laws, which shall embrace all the provisions of sections one, two, three and four of this article, and such further provisions for its government and the management of its business, not inconsistent with this article, as it may deem proper.(1867, c. 5; 1881, c. 17; 1883, c. 58; 1921, c. 105; Code 1923, c. 54, §29.)

§1. Definition.—The term “industrial loan company,’’ as used in this chapter, shall mean any corporation formed under the provisions of this article and any corporation heretofore formed with the approval of the commissioner of banking of this State under the laws governing the formation of building and loan associations whose plan of operation is as herein provided.(1927, c. 20, §1.)

§2. Incorporators; Name; Capital Stock.—Any number of persons, not fewer than thirteen, citizens of this. State, may become an industrial loan company on the terms and conditions and subject to the liabilities prescribed by this article. The name of any corporation formed under this article may contain the words “industrial loan company,” but such name shall not be that of any other existing corporation of this State. The capital stock of any such corporation shall not be less than twenty-five thousand dollars. The voting power and control of the corporation during its life shall be vested in not more than one class of stock, if more than one class of stock is to be issued. At least fifty per cent of such capital stock (the controlling and voting stock), with which it will commence business, shall be paid in before such corporation shall be authorized to engage in business, except such business as is incidental and necessarily preliminary to its organization.(1927, c. 20, c. §2.)

§3. Agreement of Incorporation.—Persons desiring to form any such industrial loan company shall sign and acknowledge an agreement of incorporation, as provided in article one of this chapter.(1927, c. 20, §3.)

§4. Certificate of Incorporation.—The agreement aforesaid shall be delivered to the secretary of state, who, after the agreement has been approved in writing by the commissioner of banking, shall issue to the incorporators his a certificate under the great seal of the State as provided in article one of this chapter: Provided, That hereafter no charter shall be issued to any company under the provisions of this article, nor shall any amendment under general law or under the provisions of this article be a made to the charter of any existing corporation coming within the terms of this article, whether heretofore or hereafter organized, until the application for such charter or for an amendment to such already existing charter has been approved in writing by the commissioner of banking. Such charter, when issued, shall be filed and recorded as provided by law or general corporations organized under the laws of this State, and, except as herein otherwise provided, corporations formed under this article shall be governed by, and be subject to the general laws of this State relating to corporations.(1927, c. 20, §5.)

§5. Approval by Commissioner of Banking.—Whenever the certificate of incorporation has been duly recorded and filed as herein provided and the recording and filing of the same certified to the commissioner of banking, the commissioner shall, before the corporation shall be authorized to transact business in this State other than such as relates to formation and organization, satisfy himself that such corporation has complied with all of the provisions of this article required to entitle it to engage in business. If it shall appear to the commissioner of banking that such corporation is lawfully entitled to commence business, he shall, within twenty days after the receipt and filing of this certificate, give to such corporation his certificate under his hand and seal that such corporation is duly and legally organized under this article as an industrial loan company and authorized to transact business as such in this State.(1927, c. 20, §6.)

§6. Powers.—In addition to the general powers conferred upon corporations by the laws of this State, each industrial loan company shall have power to exercise by its board of directors or duly authorized officers or agents, subject to law, all such powers as shall be necessary to:

(a) Lend money to any person, firm or corporation, secured by the obligation of such person, firm or corporation, or otherwise; and, in addition, to receive and require uniform periodical installments on its evidences or certificates of indebtedness, or classes of stock (other than its controlling and voting class of stock), purchased by the borrower simultaneously with such loan transaction, or otherwise, and pledge with the corporation as security for such loan, with or without an allowance of interest on such installments. No certificates, stock, or securities of any nature shall be sold to the borrower simultaneously with a loan transaction at a price in excess of the actual book value of the certificates, stock, or securities so sold;

(b) Sell or offer for sale its secured or unsecured evidences or certificates of indebtedness or classes of stock other than its controlling and voting class of stock, and to receive from investors therein or purchasers thereof payment thereon in installments or otherwise, with or without an allowance of interest upon such installments, and to enter at any time into contracts in the nature of pledge or otherwise with such investors or purchasers with regard to such stock and evidences or certificates of indebtedness;

(c) Buy and sell bonds or choses in action of any person, firm or corporation;

(d) Impose a charge of five cents for each default in the payment of one dollar, or fraction thereof, at the time at which any periodical installment upon any stock or certificate assigned as collateral security for the repayment of a loan becomes due;

(e) Demand and receive for loans or for notes, bills or evidences of debt discounted or purchased, such rate of interest as may be agreed upon by the parties, not exceeding the lawful rate of interest, and it shall be lawful to receive such interest in advance:

(f) Charge for a loan made pursuant to this section, one dollar for each fifty dollars, or fraction thereof, loaned, for expenses including any examination or investigation of the character and circumstances of the borrower, co-maker or surety, and the drawing and taking the acknowledgement of necessary papers, or other expenses, incurred in making the loan. No additional charge shall be made except to reimburse the corporation for money actually expended for additional service actually rendered the borrower. No charge shall be collected unless a loan shall have been made as the result of such examination or investigation;

(g) Purchase, hold and convey real estate a follows:

(1) Such as shall be necessary for the convenient transaction of its business, including with its office other apartments or offices to rent as a source of income, which investment shall not exceed twenty-five per cent of its paid in capital stock and surplus;

(2) Such as is mortgaged to it in good faith by way of security for loans made by or money due to such industrial loan company;

(3) Such as is conveyed to it in satisfaction of debts previously contracted in the course of its dealings;

(4) Such as it acquired by sale on execution or judgment or decree of any court in its favor.

Industrial loan companies shall not purchase, hold or convey real estate in any other ease or for any other purpose whatever. Real estate shall be conveyed only by authority of the board of directors of such industrial loan company. No real estate acquired in the cases, contemplated in the second, third and fourth paragraphs of subdivision (g) shall be held for longer time than five years, unless such period shall be extended by the commissioner of banking.(1927, c. 20, §7.)

§7. Limitations.—A corporation under the on provisions of this article shall not:

(a) Make any loan under the provisions of this article for a longer period than two years from the date thereof, except upon express authorization of the board of directors of such company;

(b) Hold at any one time the primary obligation or obligations of any one person, firm or corporation, for more than ten per cent of the amount of the paid up capital and surplus of such industrial loan company;

(c) Hold at any one time the obligation or obligations of persons, firms or corporations purchased from any person, firm or corporation in excess of twenty per cent of the aggregate paid up capital and surplus of such industrial loan company;

(d) Hold at any one time the obligation or obligations of persons, firms or corporations secured by real estate aggregating more than one third of the aggregate paid up capital and surplus of such industrial loan company;

(e) Make any loan or discount on the security of its own capital stock (controlling and voting stock, if there be more than one class), unless such security or purchase shall be necessary to prevent loss upon a debt previously contracted in good faith. Stock so purchased or acquired shall be sold at public or private sale or otherwise disposed of within ninety days from the time of its purchase or acquisition;

(f) Have outstanding at any time its evidences or certificates of indebtedness, classes of stock other than its controlling and voting stock, or other evidences of debt, in an aggregate sum in excess of ten times the aggregate amount of its paid up capital (voting and controlling stock) and surplus, exclusive of evidences or certificates of indebtedness or classes of stock hypothecated with the corporation issuing them;

(g) Deposit any of its funds with any other moneyed corporation unless such corporation has been designated as such depository by a vote of, the majority of the board of directors;

(h) Pledge or hypothecate any of its securities to any creditor, except that such companies shall have the power to rediscount or to borrow money from any source in addition to selling its evidences or certificates of indebtedness and its classes of stock other than its voting stock, but the aggregate amount of such rediscounting and borrowing shall at no time exceed the sum total of the capital, surplus and reserve funds of such company, and the security so pledged therefor shall not exceed two times the amount borrowed and rediscounted;

(i) Pay any fees, bonuses, commissions, regards, or other consideration to any person, firm or corporation for the privilege of using any plan of operation, scheme or device for the organization or carrying on of business under this article, or the use of any name, trade-mark or copyright to be so used; nor shall any corporation under this article enter into any contract for such purpose or purposes, or for the purpose of giving to or vesting in any other corporation any power or authority over the organization or management of corporations under this article.(1927, c. 20, §8.)

§8. Cash Reserve.—Every industrial loan company, under the provisions of this article, shall at all times maintain a cash reserve equal to five per cent of its issued and outstanding evidences or certificates of indebtedness and classes of stock, other than its voting and controlling stock, exclusive of those hypothecated with the corporation issuing them.(1927, c. 20, §9.)

§9. Directors.—The affairs of every industrial loan company shall be managed by a board of not fewer than five directors, a majority of whom shall at all times be residents of this State. Every director shall own and hold in his own name at least five unpledged shares of the capital stock of such company. Every director, when elected, shall take an oath that he will, so far as the duty devolves on him, diligently and honestly administer the affairs of such company, and will not knowingly and willingly violate, or permit to be violated, any of the provisions of this article, and that he is the owner in good faith, and in his own right, of at least five shares of the capital stock of the company, as required by this section, subscribed by him or standing in his name on the books of said company, and that the same are not hypothecated or in any way pledged as security for any loan or debt. Such oath, when subscribed by the director making it, and certified by the officer before whom it was taken, shall immediately be transmitted to the commissioner of banking, and shall be filed and preserved in his office.(1927, c. 20, §10.)

§10. Chief Executive Officer to be Bonded.—The directors of every industrial loan company shall require the manager or other chief executive officer appointed by them in lieu of a manager, before he performs or enters upon any duties as such manager or chief executive officer, to give a bond or bonds, with a surety company authorized to transact business in this State as surety thereon, to be approved by the board of directors thereof, in the penalty of at least five thousand dollars, conditioned for the faithful performance of the duties of such manager, and it shall be the duty of the directors of such industrial loan company, as often as once in every year, to pass upon the sufficiency of such bond or bonds, and if insufficient, to require without delay new and additional bonds and securities to be given. If the directors of such industrial loan company shall fail to per form any or all of the requirements of this section, they shall be jointly and severally liable to the industrial loan company to the extent of any defalcation of or deficiency in the funds of such company created or caused by such manager, not in excess of the penalty of his bond, the same to be recovered by such industrial loan company in any court of competent jurisdiction of this State.(1927, c. 20, §11.)

§11. Record of Stockholders.—The president, manager or treasurer of every industrial loan company shall at all times cause to be kept a true and accurate list of the names of stock holders of record, with the amount of stock held by each, which list shall at all times during business hours be open to the inspection of any stockholder.(1927, c. 20, §12.)

§12. Dividends.—The board of directors may at any time declare dividends out of the net accrued cash earnings of the company, payable upon the controlling and voting stock thereof, but no such dividend shall be paid until after the payment of all the fixed amounts agreed to be paid upon other classes of stock and the interest upon the evidences or certificates of indebtedness of the company. Unearned interest, accrued and uncollected interest shall not be distributed as a part of the profits.(1927, c. 20, §13.)

§13. Supervision and Control.—Every industrial loan company shall be subject to the inspection, supervision and control of the commissioner of banking in the manner provided in article eight of this chapter and to the same extent as banking institutions organized under the laws of this State, in so far as the same are applicable thereto.(1927, c. 20, §15.)

§14. Amendments to By-Laws.—Any and all amendments to the by-laws of any industrial loan company under this article shall he approved by the commissioner of banking before they become operative.(1927, c. 20, §17.)

§15. Voluntary Dissolution.—Whenever an industrial loan company shall determine by its board of directors, with the consent of threefourths of the holders of its controlling and voting stock, to discontinue its business and settle its affairs, it shall be lawful for such board of directors to file with the commissioner of banking of this State a certificate in writing, signed and acknowledged by such stockholders, expressing such consent, and likewise the certificate of the board of directors under the corporate seal, setting forth such intention, and that they thereby surrender to the State their corporate privileges and powers and authority to do business as an industrial loan company. Thereupon such corporation shall be deemed and taken to be dissolved, except for the purpose of distributing its assets and otherwise settling its affairs, as provided in article one of this chapter.(1927, c. 20, §18.)

§16. Loans to Officers and Employees.—No industrial loan company shall make any loan to its president, its vice president, its manager, or to any of its directors, or to any of its clerks, tellers, bookkeepers, agents, servants or other persons in its employ, until the proposition to make such loan, stating the amount, terms and security, if any, offered therefor shall have been submitted in writing by the person desiring the same to a meeting of the board of directors of such company or of the executive or discount committee of such board, if any, and accepted and approved by the vote of a majority of those present constituting a quorum. The president, vice president, director, manager, clerk, teller, bookkeeper, or agent of any industrial loan company who knowingly violates this section, or who aids or abets any officer, clerk or agent in any such violation, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than one thousand dollars or imprisoned in the county jail not more than one year, or both.(1927, c. 20, §19.)

§17. Article Applicable to Existing Companies of Like Nature Heretofore Organized Under Other Laws.—Any corporation now organized, existing and doing any business in this State on a plan which would come within the scope of the regulatory provisions of this article, and which was originally chartered with the approval of the commissioner of banking under the laws of this State providing for the organization of building and loan associations, shall fully comply with, and be subject to, all the regulatory provisions hereof and shall be subject to the supervision and control of the commissioner of banking as herein provided; but nothing herein shall affect or modify the capitalization, mode of organization, or corporate existence of any such existing corporation, and any such existing corporation shall be authorized and allowed to sell the full amount of its present authorized capital stock on the terms and conditions heretofore approved by the commissioner of banking.(1927, c. 20, §21.)

§18. General Corporation Laws Applicable.—Every company organized under this article, or heretofore organized and coming with in the operation of this article, may, subject to the written approval of the commissioner of banking, extend its corporate existence, change, its name, increase its capital stock, and make, such other amendment, change or alteration as may be desired, or amend its charter or certificate of incorporation in the manner provided for general corporations under the laws of this State.(1927, c. 20, §22.)

§1. Department of Banking and Supervision.—For the administration of the laws relating to the supervision, by the department of banking, of banking institutions, industrial loan companies, building and loan associations any other corporations which have been or may be placed under such supervision, there is hereby continued a department of banking. The department shall consist of a commissioner of banking, a deputy commissioner of banking and such number of bank examiners, assistant bank examiners and office assistants as may be necessary to properly transact the business of the department. The banking commissioner in office when this article becomes effective shall hold office until the expiration of the term for which was appointed, unless sooner removed as provided by law. The commissioner of banking shall be appointed by the governor by and with the advice and consent of the senate. The deputy commissioner of banking and all bank examiners and assistant bank examiners shall be appointed by and be under the supervision of the commissioner of banking. No person shall be appointed commissioner of banking who is not a citizen of the State and who has not had at least five years’ experience as a cashier or assistant cashier by or as an active executive officer of a bank in the State. No person shall be appointed deputy commissioner, examiner or assistant examiner who is not a citizen of this State and has not had of at least two years’ regular employment in some bank in this State or a similar experience within the banking department of this or some other state or the federal government. Before taking the oath of office said commissioner of banking, deputy commissioner, examiner or assistant examiner shall sever any or all connection, either direct or indirect, with any or all institutions subject to supervision of the department of banking.[1913, c. 21; Code 1923, c. 54, §81a(1); 1925, c. 34, 81a(1); 1929, c. 23, §12.]

§2. Term; Compensation; Oath; Bond.—The commissioner of banking shall be appointed for a term of four years and until his successor is appointed and qualifies. The deputy commissioner, bank examiners and assistants shall not be appointed for fixed and definite terms. The commissioner of banking shall receive a salary of six thousand dollars a year; the deputy commissioner a salary not to exceed three thousand, six hundred dollars a year; and each bank examiner and assistant bank examiner a salary not to exceed three thousand, six hundred dollars a year; in addition to such salary, each of said officers shall be reimbursed for all moneys paid out by him as necessary expenses in the performance of his official duties. Each salary shall be payable in equal monthly installments. The commissioner and deputy commissioner of banking and each bank examiner and assistant bank examiner, before entering upon the discharge of his duties, shall take and subscribe the oath prescribed by section five, article four of the Constitution. The commissioner of banking shall enter into a bond in the penalty of twenty-five thousand dollars and the deputy commissioner and each bank examiner and assistant bank examiner shall enter into a bond in the penalty of five thousand dollars, with an indemnity company as surety, conditioned for the faithful performance of his official duties. Such bonds shall be filed and recorded in the office of the secretary of state. The premiums on such bonds shall be paid out of the state treasury.[1913, c. 21; Code 1923, c. 54, §§81a(1), (12); 1925, c. 34, §§81a(1), (12); 1929, c. 23, §12.]

§3. Office and Records.—The department of banking and supervision shall maintain an office at the state capital, in which shall be kept a complete record of all of its transactions and the financial condition of all of the banking institutions, industrial loan companies, building and loan associations and other corporations subject to the supervision of the department, and such records of the activities of other corporations as the commissioner of banking may deem important. The commissioner of banking shall have and exercise a reasonable discretion with respect to the time, manner and the extent to which the records in his office and the information contained in such records are made public.[1913, c. 21; Code 1923, c. 54, §81a(3); 1929, c. 23, §12.]

§4. Corporations Subject to Supervision.—Every banking institution and every industrial loan company incorporated under the laws of his State, and every building and loan association engaged in the transaction of business in his State, regardless of where incorporated, and other corporations which by law are placed under the supervision of the department of banking hall be subject to the provisions of this article and subject to the supervision, examination and general control of the department of banking.

In addition to the foregoing classes of corporations, whenever the commissioner of banking has any reason to believe that any corporation incorporated under the laws of, or authorized to transact business in, the State, is engaged in any business prohibited to it, or in violation of any of the provisions of this chapter, and such corporation if lawfully engaged in such business would be subject to the supervision of the department of banking, it shall be the duty of the commissioner of banking to make such examination of the books, records, papers and evidence of corporate acts of such corporation as will enable him to ascertain whether or not such corporation is violating any of the provisions of this chapter by engaging in any business prohibited to it.[1905, c. 45; 1907, c. 79; 1908, c. 30; 1913, c. 21; Code 1923, c. 54, §81a (15); 1923, c. 31; 1925, c. 34; 1929, c. 23; §13.]

§5. Securing Permit or License to Engage in Business.—Any banking institution, industrial loan company, building and loan association, or other corporation by law placed under the supervision of the department of banking, incorporated under the laws of this State, and any building and loan association or other corporation by law placed under the supervision of the department of banking, incorporated under the laws of any other jurisdiction, and having domesticated through the office of the secretary of state of West Virginia, and seeking to engage in the transaction of business in this State, shall file with the department of banking a certified copy of its charter and a copy of its by-laws and a statement as to the amount of capital that has been subscribed and paid in, attested by its president or a vice president and its cashier or secretary, as the case may be. In addition there to, any such foreign corporation shall file with the commissioner of banking a copy of the laws of the jurisdiction under which it is organized and a statement of its financial condition at tested by its president or vice president and its cashier or secretary, as the case may be. The commissioner of banking shall examine the same and if they provide safe, just and equitable rules and methods for the management of the business of the corporation and comply in all respects with the provisions of this chapter, he shall issue to such corporation a certificate permitting or licensing it to engage in business, which certificate shall authorize, each corporation to continue in business until the thirtieth day of the following June. Thereafter, and annually, a new certificate or license shall be secured. Such certificate shall be preserved and displayed in the place of business or in the office of the corporation. If, in the judgment of the commissioner of banking, the charter and by-laws of any such corporation do not comply with the provisions of this article, and/or the method for transacting business is impracticable, unjust, inequitable or oppressive, or does not adequately protect any class of shareholders or creditors, he shall refuse to issue such certificate or license to engage in business. No amendment of the charter or by-laws of any such corporation shall become effective until the resolution shall have been submitted to and approved by the commissioner of banking and his approval endorsed thereon in writing; and a certified copy of the amendment of any statute of another state governing such foreign corporation shall be filed with the commissioner of banking by such foreign corporation within thirty days after such amendment becomes effective in such other state, and a certified statement of its then financial condition shall be so filed by such foreign corporation before the issuance of each annual certificate or license. Without such unrevoked permit or license it shall be unlawful for any corporation referred to in this section to engage or continue in business in the State of West Virginia: Provided, That before securing such permit any such corporation may lawfully secure its charter, adopt by-laws, elect its directors and officers and perfect its organization. It shall be the duty of the commissioner of banking to collect from each such foreign corporation a fee of one hundred dollars for each certificate of authority issued hereunder, except as otherwise provided by statute.[1905, c. 45; 1907, c. 79; 1908, c. 30; 1913, c. 21; Code 1923, c. 54, §§28a, 78a(6), 78a(8), 81a(10); 1923. c. 31; 1925, cc. 34, 35; 1929, c. 23, §13.]

§6. General Powers of Supervision.—The commissioner of banking shall have and exercise supervisor powers over every banking institution, and industrial loan company and building and loan association engaged in business in this State, except banking associations organized under the laws of the United States, and every other corporation by law placed under the supervision of the department of banking, and shall have authority to require and compel all such corporations to keep and observe all of the laws with respect to their organization and business activities, to follow approved business practices, and to safely and conservatively manage and invest the funds of, or those entrusted to, the corporation. He shall satisfy himself as to the legal qualifications of all persons serving as directors of such corporation, and shall not permit any person to serve as a director or officer who is by law disqualified to hold such position. He shall keep informed of the number of persons employed by each such corporation under his supervision, the services required and the salaries paid, and shall not permit any abuse of their powers by the officers of any such corporation by paying unreasonable salaries, or such as to impair the solvency of the corporation. He shall procure and keep information on file in his office showing the holders of the shares of stock of each banking institution under his supervision. He shall require every corporation subject to his supervision to properly keep all of its books, records and accounts in an intelligent and approved manner, and of such information as he may require. He shall require all such books, records and accounts to be properly kept, posted and balanced, and complete trial balances made therefrom at regular intervals, and entries in all books of banking institutions and in pass books of depositors shall be made in ink.

The fiscal year of each banking institution organized and authorized to transact business in the State of West Virginia shall end on the thirtieth day of June in each year, but each banking institution shall close its books of account at least twice each year, on June thirtieth and December thirty-first.

If a corporation, subject to the supervision of the commissioner of banking, shall, after notice, refuse to comply with any reasonable requirement of said officer, he shall have the right to revoke the certificate of authority of such corporation to transact business in the State of West Virginia, or, at his election, to apply to any court having jurisdiction for proper process to compel obedience to any reasonable order or requirement.(1929, c. 23, §14.)

§7. Examination of Books, Accounts and Records; Communcations from Banking Commissioner.—The commissioner of banking shall make, or cause to be made, at least twice a year, a thorough examination of all of the books, accounts, records and papers of every banking institution, industrial loan company and building and loan association, except national banking associations organized under the acts of Congress, engaged in business in the State of West Virginia. He shall carefully examine all of the assets of the corporation, including its notes, drafts, cheeks, mortgages, securities deposited to assure the payment of debts unto it, and all papers, documents and records showing, or in any manner relating to, its business affairs, and shall ascertain the full amount and the nature in detail of all of its liabilities. A full report of every such examination shall be made and filed and preserved in the office of the department of banking. For the purpose of facilitating such examination, every corporation subject to supervision shall preserve and keep all of its records of final entry, including cards used under the card system, and deposit tickets for deposits made, for a period of at least six years from the date of the last entry on such books and the date of the making of such deposit tickets, and card records. Every official communication from the office of the department of banking to any corporation or any officer of such corporation subject to the supervision of said department, relating to an examination or an investigation of the affairs of such institution conducted by the department of banking and supervision or containing suggestions or recommendations as to the manner of conducting the business of the corporation, shall be submitted and read to the board of directors at the next meeting after the receipt thereof, and the president, or other executive officer, of the corporation shall report in writing forthwith to the commissioner of banking the fact of the presentation and reading of such report, and communicate any action taken thereon by the corporation.[1905, c. 45; 1907, c. 79; 1908, c. 30; 1913, c. 21; 1919, c. 60; Code 1923. c. 54, §§78a(7), 81a(4); 1923, c. 31; 1929, c. 23, §14.]

§8. Officers of Corporations to Afford Facilities for Examination.—The officers of every corporation subject to examination under the preceding section shall, upon the request of the examining officer, furnish and give full access to all of the books, papers, notes, bills, and other evidences of debts due to the corporation, and produce and furnish all documents, writings and papers relating to the business of the corporation, and disclose fully and accurately, and in detail, all of the debts and liabilities of the corporation; and shall furnish such clerical aid and assistance as may be required. The examining officer shall have the right to administer oaths and to examine under oath each officer director, employee or other person connected with the corporation concerning any matter and thing pertaining to the business and the condition of the corporation.

Any officer, director or employee of such corporation who fails or refuses to furnish the examining officer with any papers or information required, or to discharge any duty herein required of such person, shall be guilty of a misdemeanor, and the commissioner of banking may report the fact of such offense to the prosecuting attorney of the county in which the office of the corporation is located; and take such other steps as may be necessary to compel any such offending officer, director or employee to comply with the requirements of this section.[1891, c. 26; 1901, c. 83; 1907, c. 79; 1913, c. 21; Code 1923, c. 54, §81a(5); 1925, c. 34, §81a(5); 1929, c. 23, §14.]

§9. Correction of Irregularities; Business Practices; Reports Under Oath; Special Reports Required; Special Examinations.—If it shall be disclosed by any examination of a corporation subject to supervision by the department of banking, or ascertained in any other manner, that the laws of the State with respect to such corporation are not being fully observed or that any irregularities are being practiced it shall be the duty of the commissioner of banking to promptly call the same to the attention of the officers and directors of the corporation offending, and to demand that the same be promptly corrected; and he may require a sworn statement from the officers of such corporation covering the matter of all failures to observe the law and of all irregularities, to be mailed to him at the department of banking as often as he may deem necessary, until he is satisfied that the laws are being observed and that the irregularities complained of have been corrected. Such reports shall not be made public.

The commissioner of banking shall also have the authority to call for special reports and to make special examinations of any corporation under the supervision of his department which, he may have reason to believe is not being properly conducted, the cost and expense of such examinations to be paid by the corporation at the same rate as for regular examinations.

If any examination discloses any assets, the value of which, in the judgment of the commissioner of banking, is questionable, or discloses past due obligations to the corporation, the commissioner of banking may require the assets of doubtful value to be at once converted into money or charged off of the books of the corporation at the expiration of three months from the date of such order; and to require legal proceedings to be at once instituted for the collection of any overdue obligations to the corporation.

Upon the written notice of the commissioner of banking, the directors of any banking institution organized hereunder shall call a general meeting of the stockholders thereof by giving such notice as is required by statute or the by-laws of the banking institution. The expense of such meeting and notice thereof shall be borne by the banking institution whose stockholders are so required to convene.[1891, c. 26; 1901, c. 83; 1907, c. 79; 1913, c. 21; Code 1923, c. 54; §81a(6); 1925, c. 34, §81a(6); 1929, c. 23, §15.]

§10. Statements and Periodical Reports of Industrial Loan Company and Building and Loan Association.—Every industrial loan company and building and loan association and every other corporation by law placed under the supervision of the department of banking and not covered in the next following section, engaged in business in this State shall, at least twice a year, at the request of the commissioner of banking and as of a date named by him, furnish, within fifteen days after such request, a statement, verified by its president or secretary, and approved by three of its directors, in such form as may be prescribed by the commissioner of banking, showing in detail the actual financial condition and the amount of the assets and liabilities of such corporation, and shall furnish such other information as to its business and affairs as the commissioner of banking may require, which reports, in the same form in which they are transmitted to the commissioner of hanking, shall be printed and circulated among all of the stockholders of the corporation or published in a newspaper printed and of general circulation in the county in which the corporation is located.[1905, c. 45; 1907, c. 79; 1908, c. 30; 1913, c. 21; Code 1923, c. 54, §78a(6); 1923, c. 31, §78a(6); 1925, c. 35, §78a(6); 1929, c. 23, §16.]

§11. Reports of Banking Institutions; Publication.—Every banking institution organized and authorized to transact business under this chapter shall make at least four reports each fiscal year to the commissioner of banking. Such reports shall be called for as nearly as conveniently may be on the dates on which the comptroller of the currency shall call for reports by national banking associations, and be of such form and contain such details as shall be prescribed by the commissioner of banking; which reports shall be verified by the oath of the president or active vice president and cashier and attested by the signatures of at least three directors of the banking institution. Each report shall show in detail, under appropriate heads, the resources and liabilities of the banking institution at the close of business on the date specified by the banking commissioner, and shall be transmitted to the office of the department of banking and supervision within five days from the receipt of the request for the same. Such report in the same form in which it is made to the commissioner of banking shall be published in a newspaper printed in the place where the banking institution is located; or if no newspaper is printed in such location, it shall be published in a newspaper printed in the same county and of general circulation in the community where the banking institution is located. Such report and the publication thereof shall be at the expense of the banking institution, and it shall furnish to the commissioner of banking such proof of the publication as may be required by him.[1901, c. 83; 1907, c. 79; 1913, c. 21; Code 1923, c. 54, §81a(9); 1929, c. 23, §16.]

§12. Borrowing by Banking Institution; Record of Collateral.—Any banking institution organized and authorized to transact business hereunder may borrow money, rediscount any of its notes, or borrow bonds for the use of the bank, in order to maintain its legal required reserve, or meet any emergency that may arise. The books and accounts of such banking institution shall at all times show the amount of such orrowed money, bonds or rediscounts. No officer, director or employee of any such banking institution shall issue the note of such banking institution for borrowed money, or rediscount any note or pledge any of the assets of such banking institution, except when authorized by resolution of the board of directors of such banking institution: Provided, That it shall be unlawful for any such banking institution to issue its certificate of deposit for the purpose of borrowing money. It shall be unlawful for such banking institution to pledge or hypothecate more than two dollars of the book value of any of its assets for each one dollar of borrowed money. An accurate record of all securities and an exact copy of all notes withdrawn from the files of such banking institution, to be pledged collateral for borrowed money or other purposes, shall be kept in the bank’s files at all times.(1929, c. 23, §17.)

§13. Bonds Signed by Indemnity Company May be Required by Commissioner Of Banking.—The commissioner of banking, in his discretion, may require that any or all bonds of the officers or employees of any industrial loan company or building and loan association, be signed as surety by an indemnity company, duly licensed to transact business in this State.

§14. Impairment of Capital Forbidden; How Remedied.—The officers and directors of a banking institution organized and authorized to transact business under this chapter shall not pay out, disburse or withdraw, or permit to be paid out, disbursed or withdrawn, in any manner whatever, any part of the capital of the corporation except in case of merger or consolidation, as hereinafter provided. Whenever, from any cause, the capital of such banking in stitution shall become impaired, it shall be the duty of the officers and directors of such instiution, forthwith, to cause any such impairment to be made good, by assessing the amount of the deficiency pro rata on the shares of the capital stock outstanding, which assessments shall be paid within thirty days after notice thereof. If any stockholder shall neglect or refuse to pay the assessment on his shares after thirty days’ notice, it shall be the duty of the board of directors to cause a sufficient number of his shares of stock to be sold for cash, at public outcry at the banking room of the banking institution, after ten days’ notice of such sale posted at the office of the banking institution or at the front door of the courthouse and published by two insertions in some newspaper published or of general circulation in the town in which the banking institution is located, to pay the amount of such assessment and expenses of making the sale. Any surplus from the sale of any share shall be paid to the defaulting stockholder and should such stock not sell for a sum sufficient to pay such assessment and expense of making such sale, the banking institution may recover the deficiency by action at law from the stockholder whose stock was so sold. A sale of stock as provided in this section, shall effect an absolute cancellation of the outstanding certificate, or certificates, evidencing the stock so sold, and shall make such certificate null and void, and a new certificate shall be issued by the bank to the purchaser of such stock.[1901, c. 83; 1907, c. 79; 1913, c. 21; Code 1923, c. 54, §§79a(3), (4); 1929, c. 23, §18.]

§15. Annual Meeting; Examining Commitee; Appointment; Failure to Act.—The stockholders of each banking institution shall meet annually and at such annual meeting it shall be the duty of the cashier or other executive officer of such banking institution to prepare and submit to the stockholders a clear and concise statement of the financial condition of the corporation as of the close of business on the last day of the month next preceding. At such meeting the stockholders shall appoint an examining committee, whose duty it shall be to examine the condition of the bank at least once every six months. The examining committee shall report to the board of directors, giving in detail all items included in assets of the bank which they have reason to believe are not of the value at which they appear on the books and records of the bank, and giving the value of each of such items according to their judgment. Should such committee deem it advisable, it may, with the consent and approval of the board of directors, employ competent accountants or auditors to make such examination or make same in conjunction with the regular examination of the banking department. The examiners may require the presence of the examining committee or the executive committee during their examination. The board shall cause such report to be recorded in the minute books of the bank, and a duly authenticated copy thereof transmitted to the commissioner of banking.[1872-3, c. 215; 1881, c. 17; 1901, c. 83; 1905, c. 45; 1907, c. 79; 1913, c. 21; Code 1923, c. 54, §78a(4); 1929, c. 23, §7.]

§16. Reserve Fund of Banking Institutions.—Each banking institution operating under the provisions of this chapter shall at all times maintain on hand as a reserve, in lawful money of the United States of America, an amount equal to at least ten per cent of the aggregate of all of its deposits which are subject to withdrawal on demand and five per cent of its time deposits; and whenever such reserve shall fall below said per cent of such deposits, it shall not increase its liabilities by making any new loan until the required proportion between the aggregate amount of such deposits and its reserve fund shall be restored. For the purpose of computing reserve, all deposits requiring notice of thirty days or more for withdrawal and time certificates of deposit, trust funds and Christmas savings, shall be deemed time deposits, and all checking accounts, certified checks, cashier’s checks, demand certificates of deposit and balances due other banks shall be deemed demand deposits: Provided, That in lieu of lawful money on hand, four-fifths of such reserve may consist of balances payable on demand from any national or state bank doing business in this State, or solvent banking institutions in other states: Provided further, That a compliance on the part of any such banking institution which is a member of the federal reserve system, with the reserve requirements of the federal reserve act, shall be held to be a full compliance with the provisions hereof, which require banking institutions to maintain cash balances in their vaults or with other banks and no such member bank shall be required to carry or maintain a reserve other than such as is required under the terms of the federal reserve act.(1901, c. 83; 1907, c. 79; 1913, c. 21; Code 1923, c. 54, §80; 1925, c. 34, §80; 1929, c. 23, §19.)

§17. Membership in Federal Reserve Bank.—Any banking institution in this State shall have the power to subscribe to the capital stock and become a member of a federal reserve bank, and thereupon shall be vested with all powers conferred upon members of the federal reserve banks by the terms of the federal reserve act as fully as if such powers were specifically granted herein; and all such powers shall be exercised subject to all restrictions and limitations imposed by the federal reserve act, or by regulations of the federal reserve board made pursuant thereto. Any such banking institution shall continue to be subject to the supervision and examinations required by the laws of this State, except that the federal reserve board shall have the right, if it deems necessary, to make examinations; and the department of banking and supervision may disclose to the federal reserve board, or to examiners duly appointed by it, all information in reference to the affairs of any banking institution which has become, or desires to become, a member of a federal reserve bank.[1919, c. 60; Code 1923, c. 54, §79a (10); 1929, c. 23, §20.]

§18. Limit on Loans; Authorization of Loans to Officers and Employees of Bank and Banking Department; Valuation of Securities.—The total liabilities to any banking institution of any person, firm or corporation, for money borrowed by note, bond, certificate of indebtedness or other device, including the liabilities of the firm, and the liabilities of the several members thereof, and including in the liabilities of any corporation an investment by such banking institution in the stock of such corporation, shall at no time exceed twenty per cent of the capital stock and surplus fund of such banking institution. But the discount of bills of exchange drawn in good faith against actually existing values, and the discount of commercial or business paper actually owned by the person negotiating the same, shall not be considered as money borrowed. The corporation mentioned in this section shall not be construed to mean municipal corporations, districts or counties, or a corporation owning the building in which the banking institution located. The stocks, bonds and other interest bearing securities purchased by a banking institution shall be entered on its books at the actual cost thereof, and, for the purpose of calculating he undivided profits applicable to the payment of dividends, such stocks and securities shall not be estimated at a valuation exceeding their present cost as determined by amortization, that by deducting from the cost of any such stock or security purchased for a sum in excess of the amount payable thereon at maturity, and charging to profit and loss, a sufficient sum to bring it to par at maturity, or adding to the cost of any such stock or security purchased at less than the amount payable thereon at maturity, and crediting to profit and loss, a sufficient sum bring it to par at maturity; but nothing here in contained shall prevent a banking institution from carrying such stocks, bonds and other initerest-bearing corporate securities on its books at their market value. No officer, director, clerk or other employee of any banking institution or the commissioner of banking or any employee of the department of banking shall borrow, directly or indirectly, from the banking institution with which he is connected, or is subject to his examination, any sum of money without the written approval of a majority of the board of directors or discount committee thereof filed in its office, or embodied in a resolution adopted by a majority vote of such board, exclusive of the director to whom the loan is made. If an officer, director, clerk or other employee of any bank shall own or control a majority of the stock of any other corporation, a loan to such corporation shall, for the purpose of this section, constitute a loan to such officer, director, clerk or other employee.[1901, c. 83; 1907, c. 79; 1913, c. 21; 1919, c. 60; Code 1923, c. 54, §79a(1); 1929, c. 23, §21.]

§19. Dividends.—The directors of any banking institution may, annually, semiannually or quarterly, declare and pay dividends. Before the declaration of any dividend, they shall carry at least one-tenth part of the net accrued profits to its surplus fund until the same shall amount to twenty per cent of its capital stock. No dividend shall be declared, except from earnings remaining after deducting all losses, all sums due for expenses, and all overdue debts upon which no interest has been paid for a period of six months, unless the same are well secured, and in process of collection. Any director voting to pay any dividend, in violation of the provisions of this section, shall be personally liable to the creditors of such banking institution for any loss occasioned thereby, and shall be guilty of a misdemeanor.[1901, c. 83; 1907, c. 79; 1913, c. 21; Code 1923, c. 54, §79a(2); 1925, c. 34, §79a(2); 1929, c. 23, §22.]

§20. Loans by Banking Institution on, or Purchase of, its own Stock; Other Corporate Shares.—No banking institution shall make any loan or discount any obligation on the security of the shares of its own capital stock, or be the purchaser or holder of any such shares, unless taken as a pledge or purchased to prevent loss upon a debt previously contracted lawfully and in good faith; and all shares of its stock, purchased or held in such manner, shall, within six months after the time of the purchase or pledge, be sold or disposed of at public or private sale.(1901, c. 83; 1907, c. 79; 1913, c. 21; Code 1923, c. 54, §79; 1929, c. 23, §21.)

§21. Liability for Payment of Forged Check; Nonpayment of Check.—No banking institution, including national banking associations, which has paid and charged to the account of a depositor any money on a forged or raised check issued in the name of such depositor, shall be liable to such depositor for the amount paid thereon, unless either, (a) within six months from the notice to such depositor that the vouchers representing payments charged to the account of such depositor, for the period during which such payment was made, are ready for delivery, or (b) in case no such notice has been given, within six months after the return to such depositor of the voucher representing such payment, the depositor shall notify the banking institution that the check so paid is forged or raised. The notice referred to may be given by mail to such depositor at his last known address with postage prepaid. No banking institution shall be liable to a depositor because of the nonpayment through mistake or error and without malice of a cheek which should have been paid, unless the depositor shall allege and prove actual damages by reason of such nonpayment, and in such event the liability shall not exceed the actual damages so proved.[1919, c. 60; Code 1923, c. 54, §79a(8); 1925, c. 34, §79a(8); 1929, c. 23, §23.]

§22. Collections; Forwarding Checks or Drafts Direct to Payor.—Any banking institution doing business in this State, including national banking associations, receiving for collection or deposit, any check, note or other negotiable instrument drawn upon or payable at any other bank, located in another city or town, whether within or without this State, may forward such instrument for collection directly to the bank on which it is drawn, or at which it is made payable, and the failure of such bank, for any cause, to account for the proceeds there of, shall not render the forwarding bank liable therefor: Provided, That nothing herein shall impair the right of any banking institution to collect any check, note or other negotiable in strument through any correspondent bank or clearing house: Provided further, That nothing herein shall release the forwarding bank from liability for its negligence in making any collection.(1925, c. 32; 1929, c. 23, §23.)

§23. Deposits in Trust; in Name of Self and Another.—If any deposit in any banking institution, including national banking associations, be made by any person describing himself in making such deposit as trustee for another, and no other or further notice of the existence and terms of a legal and valid trust than such deseription shall be given in writing to the banking institution, in the event of the death of the person so described as trustee, such deposit, or any part thereof, together with the dividends or interest thereon, may be paid to the person for whom the deposit was thus stated to have been made.

When a deposit is made by any person in the name of such depositor and another person and in form to be paid to either, or the survivor of them, such deposit, and any additions thereto made, by either of such persons, upon the making thereof, shall become the property of such persons as joint tenants; and the same, together with all interest thereon, shall be held for the exelusive use of the persons so named, and may be paid to either during the lifetime of both, or to the survivor after the death of one of them; and such payment and the receipt or the acquittance of the one to whom such payment is made shall be a valid and sufficient release and discharge for all payments made on account of such deposit, prior to the receipt by the banking institution of notice in writing, signed by any one of such joint tenants, not to pay such deposit in accordance with the terms thereof.[1919, c. 60; Code 1923, c. 54, §79a(7); 1929, c. 23, §24.]

§24. Payment of Deposits to Minors.—Whenever any minor shall make, or have credit for, a deposit in any banking institution, including national banking associations, in his or her name, the money so deposited may be paid out on the check or order of such depositor the same as in case of a depositor of legal age, and such payment shall be in all respects valid, except when such banking institution has been specifically directed in writing by the parent or guardian of such minor not to make such payment.[1915, c. 52; Code 1923, c. 54, §81a (21); 1929, c. 23, §24.]

§25. Transactions on Holidays and Sundays.—No act or transaction of any banking institution in this State, including national banking associations, shall be void or voidable because done on a legal holiday or a Sunday. But this section shall not be construed to require of any such institution the doing of any act on a legal holiday or a Sunday.[1919, c. 60; Code 1923, c. 54, §79a(9); 1929, c. 23, §25.]

§26. Stop-Payment Order or Countermand of Check or Draft.—No revocation, countermand or stop-payment order relating to the payment of any check or draft drawn on any banking institution doing business in this State, including national banking associations, shall remain in effect for more than six months after the service thereof on such banking institution, unless the same be renewed, which renewal shall be in writing and be in effect for not more than ninety days from the date of service thereof on such banking institution, after which time such check or draft may be paid by such banking institution. Service of the notice herein provided for may be made upon any employee of such bank or trust company who may be found at its place of business.(1925, c. 30; 1929, c. 23, §23.)

§27. Stale Check or Draft.—Any banking institution in this State, including national banking associations, may refuse to honor any check or draft drawn on it, after the expiration of twelve months from the date payable, or date of demand check or draft, unless, after presentation thereof, it is directed by the drawer to pay the same. No such banking institution shall incur any liability to the drawer, holder or any other person, because of the refusal to pay a check or draft, as authorized in this section.(1923, c. 32; 1929, c. 23, §23.)

§28. Adverse Claim to Bank Credits; Fiduciary.—No banking institution in this State, including national banking associations, shall refuse to honor any check or draft drawn by the person in whose name any credits for deposits stand on the books of the institution, because of any adverse claim to such credits by any other person, unless such adverse claimant shall execute to such banking institution a bond with sufficient penalty and with acceptable sureties, to indemnify such banking institution from any liability, loss, damage, cost and expenses, which it may incur by holding such credits and refusing to honor the cheeks or drafts of the person in whose name the credits stand. On the execution and delivery of such bond the banking institution shall hold the funds represented by such credits until the adverse claims of the parties thereto shall have been adjusted, or determined by a court of competent jurisdiction: Provided, That any such banking institution may refuse to pay such funds on the order of any person in whose name the same stands as a fiduciary, upon receipt by it of an affidavit of the adverse claimant or some other credible person, showing such fiduciary relationship, and containing facts showing reasonable cause to believe that the fiduciary is about to misappropriate the funds represented by such credits, with out incurring any liability to any person whomsoever because of such refusal.(1925, c. 31; 1929, c. 23, §24.)

§29. Reorganization; Consolidation; Capitaization of Surplus; Voluntary Liquidation.—In any voluntary or compulsory proceeding to liquidate a banking institution such banking institution, if the proceeding be not in court, with the consent in writing of the commissioner of banking, and if the proceeding be in court, with the consent in writing of the commissioner of banking and the approval of the court, may reorganize, reclaim possession of its assets, and continue in business. Any banking institution may at any time, with the consent in writing of the commissioner of banking, take over the business and assets and assume the liabilities of an other banking institution, all of the terms and conditions of any such purchase or consolidation to be first approved by the commissioner of banking; and after a purchase or consolidation, no other corporation shall be allowed to take or use the name of any institution participating in such purchase or consolidation. Any banking institution may capitalize its surplus and undivided profits by issuing shares of stock against the same at par and distributing such shares among its stockholders, when and to the extent that any such proceeding may be authorized in writing by the commissioner of banking.

Upon the completion of any such purchase or consolidation and by operation of law the purchasing or consolidated banking institution shall be substituted in the room and stead of each of the participating institutions in all fiduciary relationships, and all and singular the titles, properties, offices, appointments, rights, powers, duties, obligations and liabilities of each participating institution as trustee, executor, administrator, guardian, depository, registrar, transfer agent or other fiduciary shall be vested in and a devolve upon the purchasing or consolidated institution, and such purchasing or consolidated institution shall be entitled to take, receive, accept, hold, administer and discharge any and all grants, gifts, bequests, devises, conveyances, trusts and appointments made by deed, will, agreement, order of court or otherwise to, in favor of, or in the name of, any such participating institution, whether made, executed or entered before or after such purchase or consolidation, and whether to vest or become effective before or after such purchase or consolidation, as fully and to the same effect as if the purchasing or consolidated institution had been named in such deed, will, agreement, order or other instrument instead of another participating institution. Any banking institution may, after thirty days’ notice to the commissioner of banking, cease to transact business and go into voluntary liquidation and convert its assets into money and pay the same to the persons entitled thereto.[1913, c. 21; Code 1923, c. 54, §80a(1); 1929, c. 23, §31.]

§30. Revocation of Permit or License.—If any banking institution or industrial loan company organized and authorized to transact business under the laws of this State, or building and loan association or other corporation by law placed under the supervision of the department of banking, wherever incorporated, authorized to transact business in this State, shall fail, neglect or refuse to make any report to the department of banking required by the provisions of this article and requested by the commissioner of banking, or fail to observe and comply with the requirements of the laws of this State, or to correct any irregularities or practices disapproved by the commissioner of banking, and in case such failure shall continue for the period of thirty days after notice to the corporation from the commissioner of banking, the commissioner of banking may revoke the certificate of authority, license or permit authorizing the of fending corporation to transact business in the State of West Virginia.[1901, c. 83; 1907, c. 79; 1913, c. 21; Code 1923, c. 54, §81a(7); 1925, c. 34, §81a(7); 1929, c. 23, §30.]

§31. Obedience to Law Compelled; Enforced Liquidation.—If the commissioner of banking shall revoke the certificate of authority, permit or license of any banking institution in this State, or of any industrial loan company or building and loan association or other corporation by law placed under the supervision of the department of banking and organized under the laws of this State, and any such corporation shall, within a reasonable time, fail to comply with the laws of the State and the requirements of the department of banking, and thereby fail to secure a new certificate of authority, permit pervision or license to continue in business, it shall be the duty of the commissioner of banking to compel any such offending corporation to go into liquidation, wind up its affairs and surrender its charter. In any such case the attorney general, at the request of the commissioner of banking, shall institute a suit in chancery in the circuit court of the county in which the business of the offending corporation is located, in the name of the State of West Virginia, to wind up the affairs and dissolve such corporation, and such court shall have jurisdiction to make and enter all necessary and proper orders and to wind up the affairs and dissolve the corporation as in the case of insolvent or bankrupt corporations. If any building and loan association or other corporation by law placed under the supervision of the department of banking and organized under the laws of any other jurisdiction, authorized and licensed to transact business in this State, shall, within a reasonable time after the revocation of its certificate of authority, license or permit to transact business in this State, fail to comply with the laws of the State and the requirements of the department of banking, and thereby fail to secure a new certificate of authority, permit or license to continue in business, it shall be the duty of the commissioner of banking to cause the assets of such offending corporation located in the State of West Virginia to be liquidated, and to compel such corporation to cease to transact business in the State of West Virginia. At the request of the commissioner of banking, the attorney general shall institute and prosecute any suit or suits in the circuit court of the county in which any of the assets of the offending corporation may be located, in the name of the State of West Virginia, to accomplish the purposes of this section.(1929, c. 23, §30.)

§32. Banking Institutions and Other Corporations With Impaired Capital or Insolvent; Liquidation.—If the commissioner of banking shall ascertain from any source that the capital of any banking institution or other corporation by law placed under the supervision of the department of banking is substantially impaired, and that such institution or other corporation, upon notice from him, does not promptly make good such impairment, or that any banking institution or such other corporation in this State is insolvent, he shall have authority to appoint an employee of the department of banking receiver of such banking institution or other corporation to take charge of the papers, books, records, moneys and assets of every description of such institution or other corporation; and immediately upon taking charge of any such institution or other corporation, the commissioner of banking shall make in duplicate a complete inventory of all assets and an itemized list of all liabilities of such institution or other corporation. The original and copy of such list shall be subscribed and sworn to by the persons making the same and the original shall be filed with the department of banking and one copy shall be furnished such receiver, and such receiver, upon assuming office, shall open and keep such books and records as are prescribed by the commissioner of banking.

Such receiver shall have all the powers vested in special receivers by general law. The receiver, under the authority of the commissioner of banking, shall institute and prosecute any suit or suits necessary to obtain possession of any property and to sell and dispose of the same and to collect all obligations due such institution or other corporation. The receiver in such suit, or by separate suits, under the authority of the commissioner of banking, shall enforce against the officers, directors and stockholders any liability incurred by them and existing in favor of the creditors of such institution or other corporation, and collect from such officers, directors and stockholders any sums for which they are liable as aforesaid.

If it shall appear that the assets of such in solvent institution or other corporation are not sufficient to pay in full all of its creditors and depositors, without waiting to administer the assets of such institution or other corporation, or delaying for any other cause, in the same suit or in separate suits, to be forthwith instituted in the same or any other jurisdiction in his name, the receiver, under the authority of the commissioner of banking, shall collect from each of the several stockholders of such institution or other corporation all sums for which they are severally liable to such institution or other corporation, for the benefit of its creditors.

If it shall be necessary to institute any suit against any stockholder in the courts of any other state, the same may be either instituted and prosecuted in the name of the commissioner of banking, or, at his election, in the name of the receiver or the corporate name of the institution or other corporation which is in process of liquidation, and any such receiver may bring a suit in the circuit court of the county where such institution or other corporation is located, to ascertain the several depositors and creditors of such institution or other corporation and the amounts and priorities of their respective claims. Such banking institution or other corporation and the stockholders of such banking institution or other corporation, residing in this State, shall be made defendants to such suit, and all persons who shall file proofs of claim shall be deemed parties thereto as though they had been named as defendants. The court shall refer the cause to a commissioner in chancery, and such commissioner shall thereupon cause to be published once in each week for four successive weeks, in some newspaper published in the county wherein the suit is pending, a notice to all depositors and creditors of such banking institution or other corporation, requesting them to present their claims to such commissioner for allowance. After publication of such notice is completed, such commissioner in chancery shall proceed as promptly as possible to ascertain and report the several depositors and creditors of such banking institution or other corporation and the amounts and priorities of their respective claims, if any, proven before him. All claims as shall have been duly proved and allowed by the receiver or the commissioner of banking, before the decree of reference, may be allowed and reported by the commissioner in chancery without further proof, unless the same shall be contested and disallowed for proper cause. The commissioner in chancery shall also ascertain and report what funds and assets of such banking institution or other corporation have come into the hands of the receiver, what disposition has been made of such assets, and what dividends, if any, have been paid, and settle the accounts of such receiver. When the report of such commissioner is confirmed, the court shall enter such orders and decrees and take such proceedings as are proper to ascertain the several depositors and creditors of such banking institution or other corporation, and adjudicate their respective rights and direct the distribution of the assets and funds in the hands of the receiver and confirm any distribution made under orders of the commissioner of banking, and may confirm any and all sales made by such receiver, of property and assets of such banking institution or other corporation. Any creditor whose claim is not presented and allowed before any decree of distribution becomes final shall be forever barred from participating in the funds distributed under such decree, or theretofore distributed and confirmed by such decree, and shall have no claim by reason of such distribution against any creditor sharing therein or against the commissioner of banking, the receiver, or any surety upon the receiver’s bond. Any claim which shall have been proved and allowed after any dividend or distribution has been made by the receiver, shall be paid dividends equal or proportionate in amount to those already received by the other creditors of the same rank and priority, if the funds and assets in the hands of the receiver are sufficient therefor, before such other creditors receive any further dividend or distribution.

In any such suit brought by the receiver for the purpose of ascertaining the several depositors and creditors of such institution or other corporation, as hereinbefore provided, the receiver may also proceed against the officers, directors and stockholders of the banking institution or other corporation to enforce their individual liabilities as hereinabove provided, or for the adjudication of any other pertinent matter involved in the administration of the assets and affairs of such institution or other corporation.

All of the assets of any such insolvent institution or other corporation shall be administered under, applied and paid out through the orders of the commissioner of banking, as herein provided. The costs and expenses of the receivership and of any suit or suits brought by the receiver under the direction of the commissioner of banking shall be entitled to priority of payment out of the assets of such institution or other corporation.

The receiver shall, by proper proceedings, ascertain the several creditors and the amounts and priorities of their respective claims against such institution or other corporation, and shall, from time to time, as the assets of such institution or other corporation are reduced to possession, and converted into cash, pay the same to the several creditors in the order and the manner in which they are respectively entitled to payment: Provided, however, That without regard to priority, the receiver may at any time pay in full the claim of any creditor which is less than five dollars.

If the assets of any such institution or other corporation, including any sums collected from the officers and directors thereof, and all sums collected from the stockholders, shall more than suffice to pay all of the creditors of such institution or other corporation who have presented and proved, or caused to be allowed, their several demands, the surplus shall be disbursed as follows: First, in the case of a banking institution, to the stockholders, who have paid in any sums upon their extraordinary liability as stockholders, pro rata up to the respective amounts paid by each of them. Second, if anything shall remain thereafter it shall be paid to the stockholders of the institution or other corporation, in proportion to the number of shares owned by them respectively.

The salary of such receiver for the time devoted to such receivership and all expenses in curred by such receiver in the discharge of his duties, including reasonable fees paid for legal services, shall be paid out of the assets of such institution or other corporation as a part of the costs of the receivership. No other compensation shall be paid to such officer for acting as receiver of such institution or other corporation.

The receiver of any such insolvent institution or other corporation, before entering upon the discharge of his duties, or receiving into his possession any of the assets of such insolvent institution or corporation, shall enter into bond in favor of the State of West Virginia, in a penalty fixed by and with corporate surety approved by the governor, conditioned for the faithful discharge of his duties as receiver, and for accounting for and paying over, as required by law, all properties, moneys and funds which shall come into the hands of such receiver, his agents, attorneys or representatives. The bond and certificate of appointment of such receiver shall be recorded in the office of the clerk of the county court of the county in which such banking institution or other corporation is situated, and a certified copy thereof shall be forthwith transmitted by the receiver to the commissioner of banking.

Upon the appointment of a receiver for a banking institution engaged in business in this State and authorized to exercise trust powers, such trust powers and authority shall end, and, for every case where such banking institution has acted as fiduciary, such receiver shall imme diately make a final settlement before the court in which such banking institution qualified as such fiduciary, which settlement shall cover all matters not included in a prior settlement, if any. Thereupon such court shall proceed as is provided in section six, article five, chapter fortyfour of this Code, and no formal revoking or annulling order shall be necessary.

Nothing in this section shall impair the right of any court of chancery in any suit, on a proper showing, to appoint a receiver for any such institution or other corporation, in cases where the commissioner of banking has failed, refused or neglected to act.[1891, c. 26; 1901, c. 83; 1907, c. 79; 1913, c. 21; Code 1923, c. 54, §81a (7); 1925, c. 34, §81a(7); 1929, c. 23, §32.]

§33. Fees for Expenses.—For making an examination of any corporation under his supervision, the commissioner of banking shall charge and collect from such corporation, and pay into the state treasury, fees and expenses as follows: If the examination be made in the State of West Virginia, for the first twenty-five thousand dollars of the assets as shown by the books of the corporation on the date of the examination, forty dollars; and three cents for each additional one thousand dollars of such assets. If any examination be made at a place outside of this State, the fees shall be at the rate above provided, except that there shall be an additional charge for each examination of twice the amount of the railroad fare from the city of Charleston to the place where the examination is made together with all other actual and necessary expenses in connection therewith.[1913, c. 21; Code 1923, c. 54, §81a(12); 1925, c. 34, §81a(12); 1929, c. 23, §14.]

§34. Receiving Deposits or Issuing Choses in Action During Insolvency.—No banking institution, organized and authorized to transact business hereunder, and no industrial loan company, shall accept or receive on deposit, with or without interest, any money of the United States of America, bills, checks, or drafts, or fraudulently receive money or money’s worth in exchange for the issuance of any choses in action of such institution or company when such institution or company is insolvent; and any officer, director, cashier, manager, secretary, member, employee or stockholder of any banking institution or industrial loan company who shall knowingly violate the provisions of this section or be accessory to, or permit, or connive at, the receiving or accepting on deposit of any such deposits or such issuance of any choses in action, shall be guilty of a misdemeanor.[1913, c. 21; Code 1923, c. 54, §81a(8); 1929, c. 23, §24.]

§35. Certifying Check Falsely.—Any officer, agent or clerk of any banking institution mentioned in this article, who shall willfully certify any check drawn upon such banking institution, unless the person, firm or corporation drawing the same has on deposit subject to check with the banking institution, at the time such check is certified, an amount of money equal to the amount certified in such check, or shall certify such check before the amount thereof shall have been regularly entered to the credit of the person, firm or corporation drawing the same, upon the books or deposit slips of the banking institution, shall be guilty of a misdemeanor.[1913, c. 21; Code 1923, c. 54, §81a(18); 1929, c. 23, §23.]

§36. Misapplication of Funds or Fraud by Officers or Employees.—Every president, director, cashier, teller, clerk or agent of any corporation mentioned in this article, who willfully misapplies any of the money, funds or credits of the institution, or who, without authority from the directors, issues or puts in circulation any of the notes of any banking institution; or who, with out such authority, issues or puts forth any certificate of deposit, draws any order or bill of exchange, makes any acceptance, assigns any note, bond, draft, bill of exchange, mortgage, judgment or decree; or who makes any false entry in any book, report, or statement of any such corporation, or fails to make proper entries therein, with intent, in either case, to injure or defraud the corporation or any other company, body politic or corporate, or any person, or to deceive any officer of any banking institution or other corporation, or any agent appointed to examine the affairs of such banking institution or other corporation, and every person who with like intent, in any way aids or abets any officer, clerk or agent in the violation of this section, shall be guilty of a felony, and, on conviction thereof, shall be imprisoned in the penitentiary not less than one nor more than five years.[1913, c. 21; 1917, c. 11; Code 1923, c. 54, §81a(17); 1929, c. 23, §29.]

§37. False Entries in Books; False Statements; Penalties.—Any person who shall willfully or knowingly make, or cause to be made, any false entry in any book, record or document of any corporation subject to supervision by the department of banking or fail to make proper entry therein or make, or cause to be made, any false statement, or exhibit any falsified, forged or invalid paper, with intent to deceive any person authorized to examine into the affairs of such corporation; or shall make, state or publish any false statement of the financial condition of such corporation, knowing, or having reason to believe the same to be false, shall be deemed guilty of a felony, and, upon conviction thereof, shall be punished by confinement in the penitentiary not to exceed five years, and also, in the discretion of the court, may be fined not to exceed ten thousand dollars.[1905, c. 45; 1907, c. 79; 1908, c. 30; 1913, c. 21; Code 1923, c. 54, §78a(6); 1923, c. 31; 1925,1 35, §78a(6); 1929, c. 23, §27.]

§38. Certain Practices Forbidden.—It is unlawful for any officer, director or employee of any banking institution, industrial loan company, building and loan association or other corporation by law placed under the supervision of the department of banking, to receive, directly or indirectly, any compensation, consideration or thing of value from any person for making, or causing such banking institution, industrial loan company, building and loan association or other corporation to make, a loan, or extend credit to any person whomsoever. It is unlawful for any officer, director or employee of any banking institution, industrial loan company, building and loan association or other corporation by law placed under the supervision of the department of banking, to sell or be interested in, directly or indirectly, the sale of any property or thing whatsoever to any such banking institution, industrial loan company, building and loan association or other corporation, of which he is such officer, director or employee, or to receive, directly or indirectly, any compensation, consideration or other thing of value from any person for making or causing to be made the purchase or sale of any property or thing whatsoever for or on account of such banking institution, industrial loan company, building and loan association or other corporation. It shall be unlawful for any person to pur chase and hold stock in any banking institution organized or authorized to transact business hereunder for the purpose of selling, negotiating or trading participation in the ownership thereof either for the purpose of perfecting control of one or more such banking institutions or for the purpose of inducing other persons, firms or corporations or the general public to become participating owners therein. Nothing herein shall prevent the ownership of stock in any such banking institution by any person for investment purposes. Any person violating any provision of this section shall be punished as provided in the next following section.(1929, c. 23, §§9, 28.)

§39. Penalties.—The failure to perform any duty required of any corporation or individual, or the doing of any act forbidden by any corporation or individual, by any of the preceding sections of this article, except any act which is made a felony by any provision of this article, shall be a misdemeanor, and, for any such misdemeanor committed by a corporation, the officers and directors responsible for the corporate acts or for the failure of the corporation to act, shall each be guilty of a misdemeanor. On conviction for any misdemeanor under this article, any offending corporation shall be fined not more than five thousand dollars; and any offending individual shall be fined not more than one thousand dollars, and may, at the discretion of the court, be confined in the county jail for not more than one year.[1915, c. 21; Code 1923, c. 54, §81a(20); 1929, c. 23, §35.]

§40. False Statements Concerning Banking Institutions.—Whoever, directly or indirectly, willfully and knowingly makes or transmits to another, or circulates, or counsels, aids, procures, or induces another to make, transmit or circulate, any false or untrue statement, rumor or suggestion derogatory to the financial condition, solvency or financial standing of any banking institution, including a national banking association, doing business in this State, or with intent to depress the value of the stocks, bonds, or securities of any such banking institution, directly or indirectly, willfully and knowingly makes or transmits to another, circulates or counsels, aids, procures or induces another to make, transmit or circulate any false or untrue statement, rumor or suggestion derogatory to the financial condition, or with respect to the earnings or management of the business of any banking institution, or resorts to any fraudulent means with intent to depress in value the stocks, bonds or securities of any banking institution, shall be guilty of a misdemeanor, and, upon conviction, shall be fined not to exceed three hundred dollars and the cost of the prosecution, and, in the discretion of the court, be imprisoned in the county jail not more than sixty days.(1919, c. 60; 1921, c. 97; Code 1923, c. 54, §81d; 1929, c. 23, §26.)

§41. Failure to Make, Publish or Distribute Reports; Forfeiture.—Every corporation subject to supervision hereunder failing to make and transmit to the department of banking any of the reports required by law in the form prescribed therefor by the commissioner of banking, or failing to publish or distribute the reports, as required by law, shall forthwith be notified by the commissioner of banking and, if such failure continues for ten days after receipt of such notice, such delinquent shall be subject to a forfeiture of twenty-five dollars for each day thereafter that such failure continues, such forfeiture to be recovered by the commissioner of banking and paid in to the state treasury.(1929, c. 23, §16.)

§42. Annual Report of Commissioner.—Annually on or before the first day of December, said commissioner shall make out and submit to the governor a careful and complete report of all work done by his department, showing the total resources and liabilities of all the banks subject to his supervision, the increase or decrease for the year in the aggregate of such resources and liabilities, carefully noting any failures that may have occurred, stating the cause thereof, and making such remarks, suggestions and recommendations as he may deem pertinent. Such report shall be verified by the affidavit of said commissioner, who shall swear that, in making the examination of each of the banks and other institutions provided for in this article, he, or some person in his department authorized under the provisions of this article to so examine, has personally and carefully inspected the books, papers and affairs of said banks, and other institutions, and that he has not, and, so far as he knows or is informed, no person in his department has, in any case received or agreed to receive directly or indirectly any reward, gift, or promise thereof, from any bank officer or individual, other than that specified in this article.[1913, c. 21; Code 1923, c. 54, §§81a(13), (14); 1929, c. 23, §14.]

§1. State Control of Streams; Exercise Thereof Through Public Service Commission; Limitations of Article.—This article shall be known and cited as the “Water Power Act.” All waters within the State shall be under the control and supervision of the State. In order to conserve and utilize the energy of the power streams it is hereby declared to be the policy of the State to encourage water power development. It shall be the aim to secure for a given stream or watershed the greatest proper and practicable utilization of the power of such stream or watershed. The control and regulation on the part of the State of the development of water power shall be exercised through the agency of the public service commission of West Virginia under this article: Provided, however, That nothing contained in this article shall deprive any riparian owner, whether natural person or corporation, of any right, or interfere with his exercise of the same, except by due process of law or upon the exercise of eminent domain as granted and limited in this article and upon the payment of adequate compensation for any such right or interference.(1929, c. 58, §1.)

§2. Definitions.—Unless the context otherwise requires or a specific provision shall expressly provide otherwise, the words defined in this section shall have the following meanings for the purposes of this article, to-wit:

“State” means the State of West Virginia.

“Commission” means the public service commission of West Virginia, or any officer or body of hereafter authorized by law to exercise the powers or perform the duties now or hereafter conferred and imposed by law upon the public service commission.

“Corporation” means any corporation organized under the laws of this State, or organized under the laws of any other state in the United States and authorized to transact business and hold property in this State, and which shall be authorized by its charter or by an amendment thereof to engage in the business of supplying to the public, water, electricity, light, heat, or power, or any thereof; and shall also include any corporation now owning a public carrier interstate railroad in this State desiring to produce hydroelectric power for supplying water, light, heat or power for its own use, but any such railroad corporation shall be subject, under this article, to only such of its provisions as relate to the securing of a license and the approval of its plans for its dam or dams and to the construction thereof and the location of its plants.

“Corporation” may also include “municipalities” as hereinafter defined.

“Municipality” means any incorporated city, town or village in this State.

“Municipal purposes” means and includes all purposes within municipal powers as defined by the Constitution or laws of this State.

“Project” means a complete unit of improvement or development of the water power of a stream or watershed, including one or more dams and/or one or more generating stations and their appurtenant works and structures.

“Project works” means the physical structures of a project.

“License” means a grant in the name of the State issued by the commission under this article, authorizing the licensee to construct, operate and maintain a project on or along any of the waters within this State and for the purpose in this article mentioned to exercise the right of eminent domain as granted and limited in this article.

“Licensee” means a corporation which has received a license under this article and, as regards such license, shall include lawful successors and assignees of such corporation, and by virtue of its license such licensee shall become and be a public service corporation and as such shall be subject to all the laws of the State applicable thereto, except as herein otherwise provided.

“Power site” means the lands, property and rights necessary, useful or convenient for the construction, maintenance and operation of a project, including such lands, property and rights within or pertaining to the area likely or liable to be flooded or damaged as may be located within this State.

Acquisition by the “exercise of the right of eminent domain” and by “condemnation,” and all words and phrases of like import used herein, shall include every interference with the ownership, possession, enjoyment, or value of private property; and the word “owner,” as so used, shall extend to all persons interested in such property, as proprietors, tenants, lienors, incumbrancers, or otherwise.(1929, c. 58, §2.)

§3. Powers and Duties of Commission; Application for and Issuance of License; Records of Commission.—The commission is hereby authorized and empowered:

(a) To make investigations and to collect and record data concerning the utilization of the water resources of any region proposed for development, including the effect of any proposed development or utilization upon cities, towns and villages, upon the prospective development of other natural resources and upon railroads and other means of transportation;

(b) To hold hearings and to order testimony to be taken by deposition at any place or places designated by the commission in connection with the application for any license, or the regulation of rates or service, or the making of any investigation, or for the purpose of hearing any objections or remonstrances against any proposed development or any operations under this article. All such hearings shall be held by the commission under the laws of the State governing hearings by the commission;

(c) To make and prescribe such reasonable rules and regulations as may be necessary to administer the provisions of this article; to prescribe rules and regulations for the establishment of a system of accounts and for the maintenance thereof by licensees hereunder; to require them to submit, under oath, at such time and times as the commission may require, statements and reports including full information as to assets and liabilities, capitalization, investment and reduction thereof, gross receipts, interest due and paid, depreciation and other reserves, cost of project, cost of maintenance and operation of the project, cost of renewals and replacements of the project works, the depreciation of the project works and the production, transmission, use and sale of power; to employ expert engineers or other experts or qualified persons to examine and report upon projects proposed in the application thereof or upon plans submitted after the issuance of licenses and covering additional details or succeeding stages of construction, and to supervise the construction and operation of such project works;

(d) To weigh, from the standpoint of the State as a whole and the people thereof, the advantages and disadvantages arising therefrom before acting upon any application for a license; and no license shall be granted until the commission shall have determined that the advantages substantially exceed the disadvantages; to consider and determine the financial ability of the applicant to carry out a proposed development; to consider and determine whether or not the proposed scheme of development is reasonably adequate for the full development of water power resources at the site or sites proposed in the application. No priority of location or appropriation shall, be recognized by the commission in its consideration of any application for a license under this article. Whenever two or more applications are in conflict, the commission shall, if it grant a license on any such application, grant such license to that applicant whose proposed scheme of development is best adapted to the full utilization of the water power resources at the site or sites proposed in its application, is not inconsistent with the comprehensive development of the water power resources of the stream or streams affected by the proposed development, and is to the best interest of the State;

(e) To issue in behalf and in the name of the State, and upon such reasonable terms and conditions not inconsistent with this article as the commission may prescribe, a license to any corporation such as is described in section two of this article for the purpose of constructing, operating and maintaining dams, water conduits, reservoirs and power houses, and all other work necessary or convenient for the development of such power projects and power sites: Provided, That the governor of this State shall be a member of the commission with the same power and vote as the other members thereof in the consideration of applications and granting of licenses under this article and all amendments or modifications thereof; but the governor need not sit with said commission at the hearing of any such application unless he shall desire to do so, but may acquire the information upon which he acts from reading the testimony taken or from any other source that he may be satisfied to act upon: Provided further, That each such license shall contain a provision that it is granted by the State and accepted by the licensee upon the agreement that all of the provisions, terms and conditions set forth in this article and in such license shall constitute and be a contract between the licensee and the State, and that any successor or assignee of the rights of the licensee, whether by voluntary transfer, judicial sale, foreclosure sale or otherwise, shall be subject to and bound by all such provisions, terms and conditions as though such successor or assignee were the original licensee; and, further, such license shall not become effective unless, within ninety days after the receipt of notice from the commission that the license has been granted, the licensee shall file with the commission an acceptance in writing of all the terms and conditions of this article and the license granted, and of such further conditions, if any, as the commission shall prescribe in conformity with this article, said acceptance to be in such form as may be prescribed by the commission: And provided further, That before any hearing upon any application shall be held by said commission, the corporation applying for a license shall first give notice of such application and of the date and place fixed by the commission for the hearing thereon, by publication of such notice once in each week for four successive weeks in two newspapers of general circulation published in the county or counties wherein the water power development is proposed to be made, if there be such, and in addition thereto the applicant shall cause written or printed notices to be posted, at least four weeks prior to the date of such hearing, at the front door of the courthouse of such county or counties and at fifty places within the area that is intended to be flooded by such development, and also by the service of such notice upon the state road commission, the county court of any such county, and all railroad and other public utility corporations owning or leasing land of record within the area proposed to be flooded, at least four weeks before the date fixed for such hearing, which notice shall be served upon such railroad and other public utility corporations in the manner provided by the laws of the State for the service of a summons commencing suit against such a corporation, either resident or nonresident. However, the commission shall have no power to grant a license for the development of a project hereunder unless all generating plants thereof using water impounded within the State are located wholly within the State;

(f) To require each applicant to file with its application all such maps, plans, specifications, estimates of costs and other information as may be required for a full understanding of the proposed project. Such maps, plans and specifications when approved by the commission, shall be filed in its office; and thereafter no change shall be made in such maps, plans or specifications until such changes shall have been approved by the commission: Provided, however, That if the application be for a license for a project to be constructed in two or more stages, he applicant shall, prior to the granting of the license, be required to submit such plans for the first stage of the project as if it were the only stage to be constructed, and as to the major structures proposed for succeeding stages shall be required to furnish only such plans as the commission may require. After a license, if any, has been granted and before beginning construction upon any major structures, including the dam or dams, of a second or any other succeeding stage, the licensee shall, from time to time, as the commission may require, submit plans in such further detail as will enable the commission or its engineers to pass upon the adequacy and safety of such additional structures. The succeeding stages of a project may involve the construction of additional dams, generating stations or other structures, or they may involve the enlargement of dams, generating stations or other structures previously constructed. The commission shall, from time to time, define the limits of any power site or sites, and, as circumstances change, may authorize or require reasonable changes in the plans of any project or of any structure of the project;

(g) To examine and audit the books of the corporation at such reasonable intervals as the commission may determine, and at all reasonable times to have free access to such project addition or betterment and to all maps and contracts, reports, of engineers and other papers and documents relating thereto;

(h) To exercise in the name of the State, through the agency of the commission, the full police power of the State in so far as the same may be necessary in the matter of the safety of dams constructed or operated, partially constructed or being constructed or operated under the provisions of this article. In granting licenses and approving plans for dams and other structures to be constructed under the provisions of this article, the commission shall hold the safety of human life of first and highest importance: Provided, however, That nothing in this article contained shall involve any personal liability on the part of any member of the commission or any of its representatives nor create any liability on the part of the State or the commission for damages resulting from or growing out of the construction, maintenance or operation of any such dam: Provided further, That nothing in this article contained shall be construed to exempt or release any licensee from any common law or statutory liability for damages occasioned to the property of others by the construction, maintenance or operation of such project or project works;

(i) To regulate the rates and charges for service to consumers of electricity and other power produced by any licensee hereunder and to regulate accounts of such licensees, all as provided by chapter twenty-four of this Code and all acts amendatory thereof. All such rates, charges and tolls for electricity and other power produced by any licensee shall be just and reasonable, and in fixing any rate hereunder the commission shall consider the rate or rates charged by the licensee or its affiliated corporations for power produced hereunder and sold without the State. The commission shall cause to be kept proper records of all investigations, hearings, rules and regulations, interpretations, reports, costs, and all other data relating to all applications for licenses, the granting or refusing thereof, the development of all such projects, and operations under such licenses, all of which the commission shall cause to be kept in adequate fire-proof vaults or containers; and the commission shall perform any and all acts, make such rules and regulations and issue such orders not inconsistent with this article and the laws of the State as may be necessary and proper for the purpose of carrying out the provisions of this article.(1929, c. 58, §3.)

§4. Duration of License; Extensions; Violations of Article by Licensee; Revocation and Judicial Sale of License.—Licenses under this article shall be granted for a period not exceeding fifty years from and after the date of the filing of the acceptance thereof.

At the expiration of such original license period the commission may grant an extension, or extensions, of the term of such license for an additional period or periods; no one of which shall exceed a further term of fifty years. From and after the expiration of the original term, or of any extension or extensions thereof, the licensee, subject to all the applicable provisions of the original license, shall hold the property and rights acquired under the authority of this article under indeterminate license, which indeterminate license shall continue until purchase by the State as hereinafter provided, or until otherwise terminated by due process of law.

In the event any licensee shall violate any of the provisions of this article, or of its license, the commission may institute proceedings in the circuit court of Kanawha county, in the name of the State, for the purpose of compelling the licensee to comply with the provisions of this article, or of the license, or for the purpose of revoking the right of the licensee to proceed further under the license, or as to a specified portion or portions of the project included in such license. The circuit court of Kanawha county is hereby given jurisdiction for the above purposes by injunction, mandamus, or other proceedings, and is empowered to issue and have executed all necessary process, to make and enforce all writs, orders and decrees necessary and proper to compel compliance by the licensee with the lawful orders and regulations of the commission, and to compel the performance of any condition imposed under the provisions of this article and/or of said license. If a decree is entered by the court revoking the right of the licensee to proceed further with the project under license, or similarly with respect to a specified portion or portions of the project under license, the court is empowered to sell at public sale to the highest responsible bidder the property and rights of the licensee necessary to the use of the power site or power sites included in such project or such specified portion or portions thereof; to bring to a close the business of the licensee conducted directly in connection with such project or such specified portion or portions thereof; to distribute the proceeds to parties entitled thereto, and to make and enforce such further or other orders and decrees as equity and justice may require. At such sale or sales the vendee shall succeed to the rights and privileges of the licensee with respect to such project or such specified portion or portions thereof, and shall perform all the duties of the licensee under the license and assume all such outstanding obligations and liabilities of the licensee which the court may deem equitable in the premises. The State may become a purchaser at such sale.(1929, c. 58, §4.)

§5. Voluntary Transfer of License; Rights and Duties of any Successor of Licensee.—No voluntary transfer of any license, or of the rights thereunder granted, shall be made with out the approval of the commission by an order duly entered of record; and any successor or assignee of the rights of such licensee, whether by voluntary transfer, judicial sale, foreclosure sale, or otherwise, shall be subject to all of the conditions, rights and obligations of the license under which such rights are held by such licensee, and also subject to all the provisions and conditions of this article, to the same extent as though such successor or assignee were the original licensee hereunder: Provided, That the making of a mortgage or trust deed or a sale thereunder or judicial sale made hereunder, or tax sale, shall not be deemed a voluntary transfer within the meaning of this section.(1929, c. 58, §5.)

§6. Conditions on Which Licenses Issued; Payments to State; Time for Commencement and Completion of Project; Taking Over by State of Property and Rights of Licensee; Preference as to Use of Power by Consumers in This State; Regulation of Flow of Water; Lease of Power to Manufacturers.—All licenses issued under this article shall be on the following conditions:

(a) That the project adopted, including the maps, plans and specifications, shall be such as, in the judgment of the commission, will be best adapted to a comprehensive scheme of improvement and utilization for the purpose of water power development in the State and of other beneficial uses;

(b) That in addition to the annual license tax provided in chapter eleven of this Code, and to all other taxes and assessments, every licensee shall pay to the State an annual charge for the privilege of exercising the rights granted under this article, which charge shall be based upon the amount of horsepower of water wheel capacity, rated at the average effective head, installed from time to time in the project which is the subject of the license. Payment of such charge shall begin with January one following the beginning of operation of the said capacity and shall be made to the state tax commissioner annually thereafter prior to March one. It shall be computed at the rate of ten dollars per each one hundred horsepower, or major fraction thereof: Provided, That in order to encourage the utmost practicable utilization of the potential water power of any development, the total number of horsepower which shall be subject to such charge in the case of any water power development shall not exceed that corresponding to the utilization of the average stream flow at the intake. Such maximum shall be determined prior to the issuance of the license and shall be stated therein. It shall be computed or result from the product of (1) the average stream flow in cubic feet per second at the intake; (2) the average static head in feet; and (3) the factor 0.08 (eight one-hundredths). If any licensee shall fail to pay such charge annually prior to March one, the state tax commissioner shall proceed to collect the same by any appropriate means, with interest at the rate of ten per cent per annum from said March one and with a penalty of ten per cent added thereto. Such charge shall be a lien in favor of the State on all property of the licensee within the State, superior to all other liens thereon except liens for taxes due the State or some subdivision thereof. All such charges, interest and penalties collected by the state tax commissioner shall be paid by him into the state treasury;

(c) That the licensee shall pay to the State the reasonable costs incurred by the commission for the services and expenses of engineers, especially engaged and assigned to the work of investigation and supervision as provided in this article, which amount shall be fixed by the public service commission by apportionment upon a reasonable basis among applicants and licensees subject to such investigation and supervision, and the amount so determined shall be and constitute assessments of a governmental nature. In the case of an applicant for a license, the payment of such assessment may be made a condition precedent to the consideration by the commission of such application. In the case of a licensee, the amount of such assessment shall be certified by the secretary of the commission to the licensee and to the state auditor, as shall also the date fixed by the commission for payment of such assessment. The licensee’ shall pay the amount of the assessment to the state treasurer within the time so fixed. If the licensee fails to pay any such assessment within such time, the amount to be paid may at the discretion of the state auditor be increased by a penalty of ten per cent. Such assessment shall constitute a lien in favor of the State on all the property of the licensee, shall be superior to all other liens excepting liens for taxes, and shall be collectible by the state auditor in the same manner that taxes due the State are collectible. The amounts of such assessments paid into the state treasury shall constitute a special fund to be expended from time to time on order of the commission for the purposes for which such assessments were made;

(d) That the licensee shall commence the construction of the project within the time fixed in the license, which shall not be more than one year after the date of the approval by the commission of the detailed plans for the construction or enlargement of a dam, generating station, or other major structure of a project, and shall thereafter, in good faith and with due diligence, prosecute such construction, and shall within the time fixed in the license, not more than five years, complete and put into operation, at the least, such part of the ultimate development as the commission shall deem necessary to supply the reasonable needs of the then available market, and shall from time to time thereafter construct such portion of the remainder of such development as the commission may direct, so as to supply adequately the reasonable market demands until such development shall have been completed. The period for the commencement of construction may be extended once, but not longer than one additional year. The period for the completion of construction, carried on in good faith and with reasonable diligence, may be extended by the commission when not incompatible with the public interests. In case the licensee shall not commence actual construction of the dam, generating station, or any specified part thereof, within the time prescribed in the license or as extended by the commission, then, after due notice given, the license may be terminated upon written order of the commission. In case the construction of such a structure has been begun, but not completed, within the time prescribed by the license or as extended by the commission, then the commission shall institute proceedings for the revocation of such license, the sale of the work constructed and other equitable relief, as provided for in section four of this article;

(e) That upon not less than five years’ notice in writing from the commission, and upon due authorization by the legislature of the State, and after payment as hereafter in this section provided, the State shall have the right, upon or after the expiration of any license or any extension thereof, to take over at the fair value thereof and thereafter maintain and operate all of the property and rights of the licensee appurtenant or accessory and valuable and serviceable to the project which is the subject of the license. In addition to the fair value of the property taken, the State shall pay to the licensee, before taking possession of said property, such reasonable damages, if any, to the valuable and serviceable property of the licensee not taken, as may be caused by the severance therefrom of the property taken; and the State may assume all the contracts for electric energy and power entered into by the licensee under the terms of this article relating to the property and rights so taken by the State, provided such contracts have been approved by the commission and shall not extend for more than ten years beyond the date of expiration of such license or any extension thereof. The fair value of such property and rights to be taken over by the State and the amount of damages, if any, caused by such severance shall be determined by a board of appraisers, of whom one appraiser shall be selected by the commission and one by the licensee, and in case of disagreement the two thus selected shall select a third; if, in the event of such disagreement, the said two appraisers are likewise unable to agree in selecting a third appraiser, then upon application of either appraiser, after thirty days’ notice to the other appraiser, the supreme court of appeals shall appoint the third appraiser: Provided, That if the supreme court of appeals shall refuse or fail to appoint the third appraiser, then upon application of either appraiser after thirty days’ notice to the other appraiser, the governor shall appoint the third appraiser. If either the commission or the licensee shall fail or refuse to appoint its appraiser as aforesaid, then after thirty days’ notice by the other appraiser, or by the commission or licensee, as the case may be, the governor shall appoint said second appraiser. The determination of the majority shall be considered prima facie the just compensation therefor. In making such determination the board of appraisers shall make no allowance for unreasonable costs of financing, for promoters’ profits, or for the value of the license or of any franchise, rights or privilege granted by the State or any political subdivision thereof or any intangible values arising therefrom. From the decision of the appraisers determining the fair value of such property and rights to be acquired by the State and the amount of the severance damages as aforesaid, either the commission or the licensee may, within ninety days after notice of such determination, appeal to the circuit court of Kanawha county, and may appeal from the decision of said circuit court to the supreme court of appeals within ninety days from the time the decision of the circuit court is rendered. Such appeals shall be by petition and shall be allowed as a matter of right. The hearing before the circuit court shall be as a trial de novo: Provided, however, That the original record before the appraisers, duly certified by them, or by any two of them, shall be received in evidence and used in connection with any additional evidence offered by either party. After hearing, the circuit court shall fix and determine the fair value of such property and rights and the amount of severance damages as aforesaid and enter its order and judgment accordingly. In case of appeal to the supreme court of appeals the same shall be upon the record in the circuit court in the usual manner, and that court shall enter such judgment or order as the circuit court should have entered;

(f) That under all licenses, excepting those of railroad corporations licensed solely for their own use, the reasonable needs for electric power and energy on the part of the State and consumers in this State who can reasonably be served by the licensee shall have preference as Compared with the needs of others, and the commission shall have power to enforce this provision by appropriate orders;

(g) That there shall be reserved to the State of West Virginia the right to regulate and supervise the amount and flow of impounded water, in connection with the operation of any dam or dams, in order to carry into effect any program of flood control which may be adopted by the State;

(h) That any licensee may at any time and from time to time, with the approval of the commission, lease for all or such portion of the duration of its license and on such conditions as may be approved by the commission, to any person, firm or corporation engaged in any manufacturing enterprise in this State and for use only in connection with such manufacturing enterprise, any portion, up to but not exceeding fifty percent of the water power and/or electrical capacity owned, held and/or controlled by such licensee, which approval may, upon application therefor by the corporation applying for such license, be granted at the time of the granting of such license and may be incorporated therein; nothing herein contained shall, however, be deemed or construed to limit the amount or portion of electrical energy produced by any licensee that may be sold or delivered to any consumer, distributor or transmitter of electrical energy.(1929, c. 58, §6.)

§7. Reimbursement of Licensee by Others Benefitting from Increased Flow of Stream.—Any corporation, including a licensee, and any municipality or person, utilizing or obtaining benefit from any increase in flow above the natural flow of a stream or streams by reason of the impounding of the water of any stream or streams by a licensee, shall, whenever such utilization or benefit is for the production of power or energy, reimburse such licensee for such part as may be equitable of the annual carrying charges of such impounding. Such reimbursement shall be made in such reasonable proportions and amounts, at such times and under such conditions as the commission may from time to time determine and order. But nothing in this section contained shall be construed to require such licensee to regulate and maintain a flow or supply of water above the natural flow for the benefit of such other corporation, municipality or person.(1929, c. 58, §7.)

§8. Power of Eminent Domain; Exercise Thereof.—In addition to the power of eminent domain which it may have under existing law and except as provided in section nine of this article, any licensee may acquire by the exercise of the right of eminent domain all the lands, property or rights of others necessary to the construction, maintenance or operation of any dam, reservoir, diversion structure, or the works appurtenant or accessory thereto, or any power site or project included in such license, or transmission lines or substations: Provided, however, That except for purposes of crossing, such right of eminent domain under this section shall not be available for the purpose of condemning any lands, property or rights essential for railroad purposes and now actually being used to serve the public by any public-carrier interstate railroad, or any location or part of a location adopted by such interstate railroad company for the construction of an extension of its interstate line or branch thereof, and upon which authority to construct such extension or branch shall have been granted by the interstate commerce commission at the time such right of eminent domain is sought to be exercised; subject, however, to the following conditions, limitations and provisions:

(a) Due compensation to the owner of the land, property or rights taken, or damaged, shall be made in the manner provided by law proceedings for the condemnation of such property shall be brought in the county wherein such property is situated and shall be in accordance with chapter fifty-four of this Code. As to any part or all of the real estate sought to be taken for any of the purposes authorized in this article, such licensee may describe in its application for condemnation an estate or interest therein of a fee or less than a fee, and upon payment therefor such estate or interest as is stated and described in such application shall vest in the licensee; but when less than a fee is taken, the commissioners and jury in assessing damages shall take into consideration the actual damage that is done or that may be done to the fee by such taking, including the use to which the property so taken will be put by such licensee; and the commissioners or jury assessing damages shall, if such property so taken or property contiguous thereto be under laid with coal, limestone, fire-clay sand, or other natural resources, including all minerals, either solid, liquid or gaseous, take into consideration and assess just compensation therefor and in addition such damages as may be caused to the residue of the tract or tracts or to such contiguous property by reason of interference with the mining and removal of such natural resources affected thereby upon either the residue or such contiguous lands, or the interference, if any, with the ingress and egress to and from such natural resources remaining in the residue of such tract or tracts and such contiguous property necessary in the development thereof;

(b) Such right of eminent domain shall extend throughout the term of the license and may be exercised from time to time in connection with subsequent stages of construction of a project, including the enlargement of earlier stages or structures;

(c) Subject to the paramount requirement that no interference may be permitted which would harmfully affect the health of the public and/or the interests of navigation, and except as provided in section nine hereof, this article shall be held to authorize interference occasioned by any dam or other structure of a licensee with the flow of water down stream therefrom, but only under the supervision and control of the commission. When, by reason of such interference, any property or riparian right, or any part thereof or interest therein, is destroyed or damaged, the licensee, subject to the approval of the commission, is hereby vested with the right of eminent domain for the purpose of acquiring such property, right or interest so destroyed or damaged, or of ascertaining and paying just compensation for any such damage: Provided, however, That before so taking or interfering with the natural flow of water down stream on any stream upon which any oil or gas power or pumping station, refinery or gasoline plant, is dependent for its supply of water, and in lieu of ascertaining and paying such just compensation for any such damage, the licensee, at the election of the owner or owners of such power or pumping station, refinery or gasoline plant, shall be required by the commission to agree so to construct and operate such proposed water power project as to insure to the owner of any such power or pumping station or refinery, or provide from some other source at its own cost and expense, an equally reliable and convenient and otherwise equivalent supply of water: Provided further, That nothing in this article shall be construed so as to allow such licensee to impound water on any property which is condemned under the provisions of this article, unless the fee estate in such property (other than coal, oil and gas rights therein which will not be destroyed or materially damaged by such impounding) has been condemned and paid for under the provisions hereof. All waters confined in reservoirs by licensees under this article shall be and remain public waters, and nothing herein shall be so construed as to prevent the free access to and from and the free use by the public of the waters in such reservoirs and other waters within the project of any licensee, or the free access to and from and the riparian use of such waters by the owner of lands contiguous to the lands acquired by condemnation under this section or otherwise for the purpose of constructing said reservoirs, or prevent free access to and from and the use of the water in reservoirs of the licensee by rail way companies as provided in section ten, article one, chapter fifty-four of this Code;

(d) Nothing in this article contained shall, as to the State of West Virginia, or any political subdivision thereof, or as to any public service corporation, other than a water power licensee, limit or prevent the exercise of the right of eminent domain, now existing or hereafter conferred by law, with respect to any power site, or any part thereof; and the right of eminent domain as to power sites, or any part thereof, is hereby expressly conferred upon such governmental agencies and such public service corporations except as such right is limited and restricted by section nine of this article: Provided, however, That such right of eminent domain shall not be exercised in behalf of any such public service corporations in a manner or to an extent such as materially to impair or interfere with the use of such power site for such development of water power;

(e) Such land, property and rights so subject to condemnation shall include all necessary lands, property and rights, whether or not such property or rights have been theretofore appropriated or devoted to public use or have been sought to be so appropriated or devoted, including, but not restricted to, the lands, property and rights necessary for any diversion, regulation, detention or interference with the flow a of waters and for any waterways, and including also, but not restricted to, any lands, structures or property owned, used or held for public or private religious, charitable, educational or cemetery purposes, any streets or alleys, or portions thereof, in incorporated or unincorporated cities and towns, and any public or private roads and bridges, and any other public property, and also any public or private railway, pipe and wire lines or quasi-public means of transportation or communication, when necessary for the construction, maintenance or operation of such project, except as to public-carrier interstate railroads as hereinbefore provided: Provided, That in the event of the condemnation under a this article of any roads or bridges, the commissioners or jury, in assessing the compensation and damages therefor, shall consider the cost of relocating and constructing such roads or bridges upon other reasonably convenient locations; and for the purpose of relocating any railway, pipe line, wire line, road or bridge occupying the area on which any such water a power development or enlargement thereof is to be located, such licensee may acquire by the exercise of the right of eminent domain any needful additional lands or other property, whether within or without the area upon which such water power development or enlargement thereof is to be located, and shall have the right for such purpose to convey and shall convey such lands or other property or rights so acquired to the owner of such railway, pipe line, wire line, road or bridge;

(f) In exercising the right of eminent domain over private railway or wire lines, the licensee, in lieu of acquiring such private rail way or wire lines, or any part thereof, may elect to flood the location of and raise or relocate any such railway or wire lines, and in the case of any public-utility telephone, telegraph or power transmission lines the exercise of the right of eminent domain shall be limited to the right to flood the location of and raise or relocate such public-carrier railway or public-utility lines: Provided, That the exercise of the right of eminent domain in order to flood the location of and raise or relocate any public-carrier steam, electrical or other public-carrier railway which is subject to the jurisdiction of the interstate commerce commission, or the public service commission of this State, in addition to being confined to the limits of power sites as such may be defined from time to time by the commission, shall be further limited by the proviso that in so doing no such railway may be destroyed until such licensee has first constructed and deeded to the railway company an alternate line of railway complete in all its parts, such as telegraph and telephone lines, signals, whether operated by electrical or other power, side tracks, buildings and all other components of the railway that may be affected in any wise by the change of location. The substitute line shall be as convenient and safe as to line curvature and grade and in every way suitable to handle properly and economically the business which might otherwise be handled over the line which is to be destroyed. This alternate line of railway shall be substantially constructed in accordance with the standard practice governing the contemporaneous construction of railway lines of the same character and capacity, and the location and construction of the railway and all of its parts shall be in accordance with plans approved by the chief engineer of such railway and the chief engineer of the licensee. In the event such engineers cannot agree upon the plans or construction of the substitute line, they shall select a third engineer. If, in the event of such failure to agree, the said two engineers are likewise unable to agree in selecting a third engineer, then, upon application of either of the said two engineers, after fifteen days’ notice to the other engineer, the court in which the condemnation proceedings are brought shall appoint the third engineer. A majority of such engineers shall suffice to approve the plans and construction of the substituting line. The line shall be so built that the railway company will not be put to any expense by reason of the substitution of this line for the line sought to be destroyed and also will not be put to any additional expense for maintenance or operation by reason of any conditions affecting the change of line or by any changes in watercourses, or by reason of slides, or by other damages that might be caused by the submergence of the banks of the new line;

(g) In exercising the right of eminent domain over any public-utility oil or gas pumping station, refinery, or gasoline plant, or over lands on which the same are located or water rights used in the operation of such station, refinery or plant, or over public-utility oil or gas gathering, transportation or supply pipe lines, or tanks, telephone or telegraph lines or other facilities or equipment used in connection with the transportation, supply, storage or refining of oil or gas, such exercise of the right of eminent domain shall be limited to the right to flood the location of, and to raise or relocate any such pumping station, refinery or gasoline plant, pipe lines or facilities or equipment; and no such property shall be taken, damaged or destroyed until the owner thereof shall have had a reasonable time to be such property. The compensation to the owner of such property shall include the cost and expense of procuring the necessary substitute sites, and the cost of all labor and material and other cost necessary to raise or relocate and replace or reconstruct such property, less the fair salvage value of the tangible property that may be recovered from the existing plant; and such compensation shall also include any consequential damages which the owner may sustain to other property not condemned, or in order properly to connect other property or plants to the property relocated hereunder; and in case any such relocation or reconstruction of plant shall necessitate an increase in operating expenses or maintenance costs, the compensation shall also include such additional amounts as will fully compensate for the same. The owner, in lieu of having his compensation include the value of lands, water rights, rights of way and easements (exclusive of building and structures thereon) used in connection with the properties mentioned in this subdivision, may elect, by a writing filed in the proceeding at any time within ten days after the confirmation of a report or the rendering of a verdict ascertaining compensation, to require the licensee at its own expense to procure and convey to the owner such lands, water rights, rights of way and easements as may be proper substitutes for the lands, water rights, rights of way and easements proposed to be taken. In case the parties cannot agree upon such proper substitutes, the same shall be ascertained by engineers in the manner provided in subdivision (f) of this section. On motion of either party the court shall require such engineers to file their findings in court and the licensee shall thereupon be required to procure such substitute lands, water rights, rights of way and easements and grant and convey the same to the owner before further steps are taken in the proceeding. Following such conveyance, the report or verdict theretofore found or recorded shall be set aside by the court and the licensee may thereupon amend its application so as to set forth that it has secured such substitute lands, water rights, rights of way and easements and has granted and conveyed the same to the owner; whereupon the court shall again appoint commissioners to proceed, as provided in chapter fifty-four of this Code, to ascertain a just compensation to the owner excluding the value of lands, water rights, rights of way and easements for which substitutes have been provided; which compensation shall cover all the elements of damage hereinbefore mentioned, so far as they continue to exist;

(h) The exercise of the right of eminent domain over public-utility telephone or telegraph lines shall be confined to the limits of power sites as such limits shall be defined from time to time by the commission, and shall be limited to the right to flood the location of and to relocate any such public-utility telephone or telegraph lines: Provided, however, That the licensee shall, as a condition precedent to condemnation, at its own expense procure and convey to the owner of such public-utility telephone or telegraph line such lands, rights of way, and easements as may be reasonably necessary and proper substitutes for, and in so far as possible of the same convenience and usefulness as, the lands, rights of way and easements proposed to be taken; and in any condemnation proceeding, from the compensation and damages allowed such owner for property taken and damage done, there shall be deducted the fair value of the lands, rights of way and easements so procured and conveyed by the licensee not in excess of the value of the land, rights of way and easements taken and for which the same are substituted. Such compensation shall also include any consequential damages which the owner may sustain to other property not condemned, or in order properly to connect other property to the property relocated hereunder; and in case any such relocation or reconstruction of plant shall necessitate an increase in operating expenses or maintenance costs, the compensation shall also include such additional amounts as willfully compensate for the same;

(i) The licensee shall have the right to acquire by condemnation any lands or other property, whether within or without the limits of such power sites, necessary for the purpose of relocating any railway, power station, pipe line or wire line, or public-utility telephone or telegraph line, as provided in the three immediately preceding subdivisions, and for such purpose to convey such lands or other property to the owner of such railway, power station or pipe or wire line;

(j) Any licensee or any applicant for a license may, through its officers, agents or employees, and under such rules as may be prescribed by the commission, enter upon any lands for the purpose of examining and testing or surveying and laying out the same as any agent authorized by such licensee or applicant may deem necessary, such licensee or applicant to be responsible to the owner for actual damage done. Any licensee is empowered to acquire by condemnation any lands and rights of way necessary for the purpose of constructing roads raise or relocate or construct new roads, bridges or ferries and the approaches thereto, in compliance with any order which may be entered relation to such raising, relocation or construction by the county court of the county in which such roads, bridges or ferries, and the approaches thereto, are located, or by the state road commission, in conformity with the plans approved by the commission, as aforesaid, with the right of appeal on the part of the licensee from any such order of the county court or the state road commission to the circuit court of such county, and with the right of appeal on the part of the county court, the state road commission or the licensee from the order of the circuit court, within sixty days from the date of entry of such order, to the supreme court of appeals of the State. When the raising, relocation or construction of such road, bridge or ferry, and the approaches thereto, is completed, the title and control of such raised, relocated or new road, bridge or ferry, and the approaches thereto, shall immediately vest in the county court or the state road commission, as may be directed by the circuit court, and the circuit court upon a finding of the fact of such completion and vesting of title and control shall enter in the condemnation proceedings a final order vesting title and control of such original road, bridge or ferry and the approaches thereto in the licensee without the payment of any other compensation or damages in such condemnation proceedings;

(m) The right to acquire by eminent domain any lands, easements and other property and rights for the purpose of constructing, operating and maintaining towers, poles and overhead and underground cables, wires and lines for the transmission, supply and sale of electric power and energy, whether produced by water or steam as a motive force, and for the construction, operation and maintenance of substations in connection with such transmission lines, is hereby vested in such licensees, subject to the limitation that the licensee shall have no right to acquire for a substation site by condemnation any private residence, nor any out-house, garden or orchard within the curtilage of a private residence, or the right of way of any public service corporation, and subject to the further limitation that, except for the purposes of crossing, the licensee shall have no right, without consent, to construct, maintain and operate towers, poles and wire lines upon that part of the right of way of any public-service railway, pipe line, electric power, telephone or telegraph company which is necessary for the exercise of the corporate franchise of such company. Such licensee shall further have the right to acquire by agreement with the county court or courts, or by agreement with the state road commission, or by condemnation, the right to erect, maintain and operate wire lines over or across public roads. The licensee shall have no right under this or any other section of this article to construct, maintain or operate any towers, poles or transmission lines so as to interfere with the safety, operation or efficiency of any existing public service electric power, telephone or telegraph line, or of any telephone or telegraph lines or electric or other signal appliances of any common-carrier railroad company. The licensee may further exercise the right of eminent domain where necessary in order to remove any trees, or portions thereof, which by reason of close proximity to transmission lines or rights of way may endanger such transmission lines. In the exercise of the right to procure a right of way for a transmission line crossing over or under the right of way of any public-service railway, pipeline, electric power, telegraph or telephone company, the licensee shall proceed in the manner provided for other corporations in section nine, article one, chapter fifty-four of this Code; but no such crossing shall be constructed except in the manner approved by the commission.(1929, c. 58, §8.)

§9. Limitations on Right of Eminent Domain.—Notwithstanding any provision of this article, no licensee shall, by the exercise of the right of eminent domain, acquire any land, property or right comprised in any existing hydroelectric power development which, on the seventh day of March, nineteen hundred and twenty-nine, had an installed capacity in excess of one thousand horsepower, or, except for transmission line crossings, acquire any land, property or right of a power site included in a license of any other licensee, or included in a license or permit, or in an application for a license or permit pending on the seventh day of March, nineteen hundred and twenty-nine, of a licensee or permittee, or an applicant in such application for a license or permit, under chapter eleven of the acts of nineteen hundred and thirteen as amended and reenacted by chapter seventeen of the acts of nineteen hundred and fifteen, and no licensee shall impound, divert or discharge the. waters of any river or stream in any way that will, except as contemplated by the provisions of section seven of this article and except for the impounding or detention of flows in excess of the average stream flow which obtains at the point or points of such impounding, diversion or discharge and except for the discharge of such impounded or detained flows, interfere with any right of the owner of any such existing hydroelectric power development or with any right comprised in or appurtenant to a power site included in a license of any other licensee hereunder or included in any license or permit or in any such application pending as aforesaid for a license or permit under chapter eleven of the acts of nineteen hundred and thirteen as amended and reenacted by chapter seventeen of the acts of nineteen hundred and fifteen, without the consent of such owner or such other licensee or such licensee or permittee, or such applicant for a license or permit: Provided, That nothing herein shall be construed to impair the common law riparian rights of any licensee or any such licensee or permittee or applicant.(1929, c. 58, §9.)

§10. Provisions Respecting Dams Across Navigable and Floatable Streams; Fishing and Boating on Reservoir of Licensee.—Nothing contained in this article shall be so construed as to interfere with the exercise of jurisdiction by the government of the United States over navigable streams. In the case of a dam located across a stream which is navigable in fact, the licensee shall make such provisions for navigation as are required by the secretary of war of the United States. In the case of a dam located across a stream which under the laws of West Virginia is floatable, the licensee shall install, maintain and operate in connection with such dam, without expense to the State or any citizen thereof, such raft-chute, log-chute, booms, sluices or other devices in aid of floatability as may reasonably in the interest and for the convenience of the public be required by the commission and in accordance with the plans approved by the commission. In any dam more than thirty feet in height no provision need be made for the passage of fish. Nothing in this article contained shall prevent the public from fishing or boating on the reservoir constructed by the licensee.

It is hereby made the duty of the commission to protect and preserve the public rights of navigation with respect to any stream the navigability of which will be affected by the flow of the waters of any stream upon which a license shall be granted under the laws of this State, and the commission is hereby vested with full power to make and enforce all necessary orders for such purpose.(1929, c. 58, §10.)

§11. Rights of Corporations Which Had Expended Money on Dams on or Before May 22, 1913.—Any corporation which had the charter m powers specified in section two of this article, which had in good faith located a dam for its purposes, together with the probable contour lines of the water proposed to be impounded thereby, and which had actually expended as much as a fifty thousand dollars in the construction of such dam, on or before May twenty-second, nineteen hundred and thirteen, shall, as shall also its lessees, successors, receivers, trustees or assigns, have as to such dam and the land and property within such contour lines all the rights and powers conferred by this article to the same extent as if such corporation were a licensee, and shall have such rights and powers without filing an application and obtaining a license and without any defining of the limits of the power site by the commission. The commission shall, however, have full power to require any such changes in any constructed portions of the dams, and to specify such design and methods of construction for any portions of the dam still to be constructed, as may be necessary for the protection of life and property: Provided, however, That any such corporation may apply to the commission for a license hereunder, and, if such license be granted and accepted as herein provided, such a corporation shall thereafter be subject to all the provisions hereof, including payment of the annual charge provided for in this article.(1929, c. 58, §11.)

§12. Taking Water From Reservoir of Licensee by Municipality or Company Supplying Same With Water.—For the use of any municipality of this State or of the inhabitants thereof, any municipality or any public service corporation authorized to supply water to a municipality or to the inhabitants thereof may, by purchase or condemnation proceedings under such regulations as the commission may prescribe, take water from the reservoir or reservoirs constructed and maintained by any licensee: Provided, however, That when any project interferes with the existing water supply of any municipality, the municipality, or public service corporation supplying water thereto, shall be entitled to take water, not in excess of the natural flow of the stream, from such stream, reservoir or reservoirs free of cost.(1929, c. 58, §12.)

§13. Appeal From Decision of Commission Granting or Refusing License, Etc.—Any corporation described in section two of this article or any licensee or any other party to the record feeling aggrieved by any decision of the commission granting or refusing to grant any license, defining the limits of a power site or refusing or failing to define such limits or to define such limits with sufficient extent or by any other final decision or order of the commission, may appeal therefrom, within sixty days after such decision is made and entered, to the circuit court of Kanawha county with trial de novo in said circuit court, and either or any party to the record may appeal from the decision of said circuit court to the supreme court of appeals within sixty days from the time the decision of the circuit court is rendered. Such appeals shall be by petition, and shall be allowed as a matter of right by said circuit court. The order of the circuit court granting an appeal shall require bond payable to the State to be executed before the clerk of such court in the penalty of five hundred dollars, with security thereto to be approved by such clerk, and conditioned for the payment of costs in the circuit court and also in the supreme court in case the decision appealed from should not be reversed. In case of reversal by the circuit court or supreme court on any such appeal, the case shall be remanded to the commission for further proceedings in accordance with the decision of the court. For the purpose of such appeal to the circuit court and the hearing thereof the original record before the commission, duly certified, shall be used in connection with any additional evidence offered by any party in interest and the appeal to the supreme court shall be upon the record in the circuit court in the usual manner. All such appeals shall be decided without delay. Mandamus shall lie to compel the commission to act upon any application for license or other matter proper for the commission to decide, and to render without unnecessary delay any decision from which an appeal lies.(1929, c. 58, §13.)

§14. Development by State of Projects Not Licensed; Amendment of Article or License.—Nothing in this article contained shall abridge the right of the State to determine, through the legislature of the State, to develop in the name of the State any project or projects on which no license or licenses have theretofore been granted by the commission or on which any license or licenses so granted have been legally terminated. The right to alter, amend or repeal this article is hereby expressly reserved; but no such alteration, amendment or repeal shall affect any license or permit theretofore granted under the provisions of this article or any former statute, or the right of any such licensee or permittee thereunder. The provisions, terms and conditions of any license may be altered or amended at any time by mutual consent of the licensee and the commission to the extent such alteration or amendment is not in confliet with the then existing law of the State.(1929, c. 58, §14.)

§15. Offenses; Penalties.—Any licensee, or any person who shall willfully fail or refuse to comply with any of the provisions of this article, or with any of the conditions made a part of any license issued hereunder, or with any regulation or lawful order of the commission, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall, in the discretion of the court, be punished by a fine of not exceeding five thousand dollars, in addition to penalties herein prescribed or provided by law; and each month any such licensee or any such person shall remain in default, after written notice from the commission, shall be deemed a new and separate offense punishable as aforesaid.(1929, c. 58, §15.)

§16. Licenses for Generation of Power for Use in Private Enterprises.—The commission shall have power to grant licenses hereunder to private persons or corporations for the generation of electric power and energy to be used by them in private enterprises; but nothing herein shall be construed to confer on such private persons or corporations the right of eminent domain. Before any such license is granted, the commission shall consider the best development for the interests of the State and may grant such licenses with such conditions with reference to further development of water power as to the commission may seem best.(1929, c. 58, §16.)

§17. Provisions of Article Separable.—The sections, provisions and subdivisions of this article shall be deemed separable each from the other, and also in respect to the persons, firms and corporations mentioned therein or affected thereby and if any separable part of this article be, or be held to be unconstitutional or for any reason invalid or unenforceable, the remaining parts thereof shall be and remain in full force and effect.(1929, c. 58, §17.)

§18. Provisions as to Prior Water Power Legislation.—Notwithstanding any provision of this article to the contrary appearing, any and all permits or licenses granted under chapter eleven of the acts of nineteen hundred and thirteen as amended and reenacted by chapter seventeen of the acts of nineteen hundred and fifteen (said chapter eleven as amended and reenacted by said chapter seventeen being herein referred to as the Water Power Act of 1915) shall be and remain in full force and effect in accordance with the provisions of such permits or licenses and the provisions of the water power act of nineteen hundred and fifteen, except that in lieu of the annual royalty and the manner of basing and measuring the same provided for by; sections twenty-two, twenty-three, twenty-four and twenty-five of the water power act of nineteen hundred and fifteen there is hereby fixed the annual charge provided for by section six of this article, to be determined and assessed by; the commission in accordance with the provisions of said section six; and any application for a license or permit made under the water power act of nineteen hundred and fifteen and pending at the time this Code shall go into effect shall, in accordance with the provisions of the water power act of nineteen hundred and fifteen or in accordance with the provisions of this article, as the applicant in such application shall elect by filing written notice of such election with the commission, remain in full force, and effect, be heard and determined by the commission and be capable of the issuance therefrom or granting thereon of a permit or license, except that, with respect to any such permit or license thus granted, in lieu of the annual royalty as provided for in sections twenty-two, twenty-three, twenty-four and twenty-five of the water power act of nineteen hundred and fifteen, the annual charge provided for by section six of this article shall be assessed and collected; and any permittee or licensee in any permit or license heretofore or hereafter granted under the provisions of the water power act of nineteen hundred and fifteen, or under the provisions of this article with respect thereto, may, if it so elects and shall certify to the commission such election by filing with the commission notice in writing thereof, become, at such time prior to the expiration of its said permit or license as it shall in such notice in writing designate, entitled to all the rights, privileges and benefits of this article and subject to all the provisions thereof as though the permit or license held by such licensee had been a license granted under and in accordance with the provisions of this article.

All permits or licenses granted under chapter fifty-eight of the acts of nineteen hundred and twenty-nine shall be and remain in full force and effect in accordance with the provisions of such permits or licenses and the provisions of said chapter fifty-eight of the acts of nineteen hundred and twenty-nine.(1929, c. 58, §18.)