QTjje library of tfje ®mbers;ttpof jgortf) Carolina Cnbotoeb bp ^e jStalecttc ana PfjilaniJjrop ic H>orietie# -p3&5\|-n872.n J [Senate Document, No. 9.] [Introduced by Mr. Woodpin — Read the first time and passed. Ordered to be printed, and referred to the Com- mittee on Internal Improvements.] A BILL To incorporate the North Carolina and Western Railroad Company. I. Be it enacted by the General Assembly of the State of 2 North Carolina, and it is hereby enacted by the autho- 3 rity of the same, That, for the purpose of effecting a 4 railroad communication between. the North Carolina 5 Railroad, now being built, and the valley of the Mis- 6 sissippi, the formation of a corporate company, with a 7 capital stock of three millions of dollars, is hereby au- 8 thorised, to be called the North Carolina and Western 9 Railroad Company ; and,' when formed in compliance 10 with the conditions hereinafter prescribed, to have a 11 corporate existence as a body politic for the term^ of 12 ninety-nine years. II. Be it further enacted, That the said company be, 2 and the same is hereby authorised to construct a railroad 3 from any point on the North Carolina railroad that they 4 may choose, to any point on the Tennessee State line, 5 or to any point on the Little Tennessee River in Macon 6 county, that they may determine on, after the organiza- 7 tion of the company, and a survey under their direction. III. Be it further enacted, That, for the purpose of crea- 2 ting the capital stock of said company, the following 3 persons be, and the same are hereby, appointed commis- X tH«VU 48 4 sioners, namely: Hamilton C. Jones of Salisbury, Jas» 5 W. Osborn, of Charlotte, of States- 6 ville, of Newton, Tod R. Caldwell 7 of Morganton, Elisha P. Miller of Caldwell, William H„ 8 Miller of Rutherford, Haywood W. Guion of Lincolnton, 9 William McCarson of Marion, David B. Miller of Hen- 10 dersonville, James W. Patton of Asheville, A. E. Bain 11 of Madison, J. W. McElroy of Burnsville, William John- 12 ston of Waynesville, and Joab L. Moore of Franklin, in 13 Macon county. That it shall be lawful to open books 14 in the town of Salisbury under the direction of Burton 15 Craig, Hamilton C. Jones, George W. Brower, Horace 16 L. Robards, Nathaniel Boy den, and Hon. D. F. Cald- 17 well, or any three of them. At Charlotte under the di- 18 rection of Joseph H. Wilson, James W. Osborn, N. 19 Hutchinson, John Irwin, Bailey Oats, and Green W. 20 Caldwell, or any three of them. At Statesville under 21 the direction of Andrew Allison, George F. Davidson, 22 Robt. Cowan, Walter P. Caldwell, Dr. Parks, Samuel R. 23 Bell, J. W. Stockton and J. K. Nesbit, or any three of 24 them. In the town of Newton under the direction of 25 Jonas Borst, Lock McCocle, Cline, Wilkey 26 Henry Robeson, or any three of them. In the town of 27 Lincolton under the direction of H. W. Guion, John 28 F, Hoke, Taylor Alexander, Benjamin Johnston, Leo- 29 nard Thompson, Jacob Ramsour, C. C. Henderson, L. SO D. Chiles and James A. Caldwell or any three of them. 31 In Rutherfordton under the direction of William M. 32 Shipp, Gen. Edmnud Bryan, William H. Miller, H. D. 33 Carrier, Wilkins, J. G. Bynum, James M. Webb, Dr. 34 John Cray ton, Dr. J. C. Calloway, and Dr. John Mc- 35 Entire, or any three of them. In the town of Boon 36 under the direction of Jordan Counsel, Jonathan Hor- 37 ton, Reuben Mast, and John Morris or any three of them. 38 In the town of Morganton under the direction of I. T. 36 Avery, James C. Smith, Robert C. Pearson, Thomas 40 Walton, William F. McKesson, T. R. Caldwell, W, W*Vi ! 49 41 & Erwin and Dr. VV. McRea, or any three of them, in 42 the town of Lenoir, under the direction of James Har- 43 per, sen., L. . M. Tuttle, Walter Lenoir, William B. 44 Dola, Samuel F. Patterson and Cornelius Clark, or any 45 three of them. In the town of Marion under the direc- 46 tion of W. L. Gill, A, Higgins, Jason H. Whitson, Alna 47 Burgin, William M. Carson, C. P. Davis and Dr. S. A. 48 Erwin or any three of them. In the town of Shelby 49 under the direction of 50 or any three of them. In the 51 town of Asheville under the direction of John Reynolds., 52 James M. Smith, B. J. Smith, M. Patton, W. D. Ran- 53 kin, A. B. Chunn, J. W. Patton, William Williams, A. 54 T. Summey, J. W. Woodfin, James M. Edney, Hugh 55 Johnston, J. B. Sawyer, Augustus S. Merriman and 56 Daniel Reynolds, or any three or more of them. In the 57 town of Hendersonville under the direction of David 58 B. Miller, Joseph Dunlap> Benjamin Posey, James Brit- 59 tain, William Bryson, Dr. Whither, Andrew Miller, 60 John Baxter and M. Patton, or any three of them. In 61 the town of Burns ville under the direction of M. P. 62 Pendfeam, J. W. McElroy, Joseph Sheppard, J. W. 63 Garland and John Stradley, or any tffi-ee of them. In 64 Madison at Smith's and Baird's under the direction of 65 A. E. Baird, John Peck, David Farnsworth, Hezekiah 66 Bernard, Job Ramsey, and J. J. Gudger, or any three of 67 them. In Waynesville under the direction of W. 68 Welch, W. Johnson, Samuel ; Fitzgerald, E. B. Herren, 69 John S.Smith, and A. T. Murray, or any three of them. 70 In the town of Franklin under the direction of Jesse R. 71 Tiler, Joab F. Moore, Dr. H. G. Woodfin, D. R. Low- 72 ery, Stephen Munday and IN. G. Alman or any three 73 of them. Whose duty it shall be to direct the opening 74 of books for subscription of stock, at such times and 75 places, and under the direction of such persons, as they 76 or a majority of them may deem proper, and the said 77 commissioners shall have power to appoint a chairman 50 78 of their body, treasurer, and all other officers, nnd to 79 sue for, and recover all sums of money that ought, un- 80 der this act, to be received by them. IV. Be it further enacted, That all persons who are, 2 or may hereafter be authorized to open books for sub- 3 Ascription of stock by the commissioners herein appoint- 4 ed for that purpose, shall open said books at any time 5 after the ratification of this act, twenty days' previous 6 notice being given in some one or more of the public 7 newspapers in this State ; and that the said books, 8 when opened, shall be kept open for the space of thirty 9 days at least, and as long thereafter as the commissioners 10 first above named shall direct ; and that all subscription of 11 stock shall be in shares of one hundred dollars, the sub- 12 scriber paying, at the time of making such subscription, 13 the sum of five dollars on each share thus subscribed, 14 to the person or persons authorized to receive such sub- 15 scription ; and, in case of failure to pay said sum, all 16 such subscriptions shall be void, if the commissioners 17 choose to declare it, or they may direct it to be recovered IS by suit or otherwise ; and, upon closing the books, all 19 such sums as shall have been thus received of subscribers, 20 on the first cash instalment, shall be paid ov^r to the 21 general comnftssioners herein before named by the per- 22 sons receiving them; and for failure thereof, such person 23 or persons shall be personally liable to said general com- 24 missioners before the organization of said company, and 25 to the company itself after its organization, to be recov- 26 ered in the Superior Court of law within this State, in 27 thecounty where such delinquent resides, or, if he reside 28 in any other State, then in any court in such State hav- 29 ing competent jurisdiction. Then thesaid general com- 30 missioners shall have power to call on, and require, all 31 persons empowered to receive subscriptions of stock, at 32 any time, and from time to time, as a majority of them 33 may think proper, to make a return of the stock by them 34 respectively received, and to make payments of^all sums 51 35 made by the subscribers ; that all persons receiving sub- 36 scriptions of stock shall pass a receipt to the subscriber 37 or subscribers for the payment of the first instalment, 38 as heretofore required to be paid ; and, upon their settle- 39 merit with said general commissioners as aforesaid, it shall 40 be the duty of the said general commissioners, in like 41 manner, to pass their receipt for all sums thus received, 42 to the person from whom received, and such receipts shall 43 be taken and held to be good and sufficient vouchers for 44 the persons holding the same, V. Be it further enacted, That it shall be the duty of said 2 general commissioners to direct and authorise the keep. 3 ing open of books for the subscription of stock in the 4 manner above described, until the sum of one million of 5 dollars shall have been subscribed to the capital stock of 6 said company ; and as soon as the sum of one million T.o.t dollars shall have been subscribed, and the first in- 8 stalment of five dollars per share on said stock shall have 9 been received by the general commissioners, said com. 10 pany shall be regarded as formed ; and the said com- 11 missioners or a majority of them, shall sign and seal 12 a duplicate declaration to that effect, with the names 13 of the subscribers appended, and cause one of the said 14 duplicates to be deposited in the office of the Secretary 15 of State; and thenceforth, from the closing of the books 16 of subscription as aforesaid, the said subscribers to the 17 stock shall form one body politic and corporate, in deed 18 and in law, by the name and style of the North Caro- 19 Una and Western Railroad Company. VI. Be it further enacted, That, whenever the sum 2 ot one million of dollars shall be subscribed, in manner 3 aforesaid, the subscribers, their executors, administrators 4 and assigns, shall be, and they are hereby declared to 5 be, incorporated into a company by the name and style of 6 " the North Carolina and Western Railroad Company; 52 7 and by that name shall be capable, in law and equity, of 8 purchasing, holding-, leasing and conveying estates, real, 9 personal and mixed, and of acquiring the same by gift 10 or devise, so far as shall be necessary for the purposes 11 embraced within the scope, object and intent of this char- 12 ter, and no further; and shall have perpetual succession ; 13 and by their corporate name may sue and be sued, plead 14 and be impleaded in any court of law and equity in the 15 State of North Carolina; and may have and use a com- 16 mon seal, which they may alter and renew at pleasure ; 17 and may have and enjoy all other rights and immuni- 18 ties which other corporate bodies may and of right do 19 exercise; and may make all such by-laws, rules and 20 regulations as are necessary for the government of the 21 corporation, or effecting the object for which it is cre- 22 ated, not inconsistent with the constitution and laws of 23 the United States or of the State of North Carolina. VII. Be it further enacted, That notice of process upon 2 the principal agents of said company, or the president or 3 directors, or any of them, shall be deemed and taken to 4 be due and lawful notice of service ot such process 5 upon the company, so as to bring it before any. Court 6 within the State of North Carolina. VIII. Be it further enacted, That, as soon as the sum of 2 one million of dollars shall have been subscribed, in 3 manner aforesaid, it shall be the duty of the general i commissioners, appointed herein, to appoint a time for 5 the stockholders to meet at Asheville, which they shall 6 cause to be previously published, for the space of thirty 7 days, in one or more newspapers, as they may deem pro- Si per ; at which time and place, the said stockholders, in 9 person or proxy, shall proceed to elect twelve directors 10 of the company, and to enact all such by-laws, rules 11 and regulations, as may be necessary for the govern- 1-2 mentof the corporation and the transaction of its busi- 13 ness. The persons elected directors at this meeting, 53 14 shall serve such a period as the stockholders may cli- '15 rect; and at this meeting, the stockholders shall fix on 18 the place or places, where the subsequent election of di- 17 rectors shall be held ; and such elections shall thereafter 18 be annually made ; but, if the day of the annual 19 election should pass without any election of directors,, 20 the corporation shall not thereby be dissolved, but it 21 shall be lawful on any other day to hold and make such 22 election in such manner as may be prescribed by the 23 rule's or by-laws of the corporation. IX. Be it further enacted, That the affairs of the com- 2 pany shall be managed and directed by a general board, .3 to consist of twelve directors, to be elected by the stock- 4 holders from among their number, at the first and 5 subsequent general annual meetings, as prescribe^ in the 6 eighth section of this act. X. Be it further enacted, That the election of directors 2 shall be by ballot, each stockholder having as many votes 3 as he has shares in the stock of said company; and 4 the person having a majority of all .the votes polled, 5 shall be considered as duly elected : Provided, That 6 said company may fix any other scale of voting to go- '7 vem all subsequent elections. XL Be it further enacted, That the president of the 2 company shall be elected by the directors from among 3 their own number, in such manner as the regulations 4 of the company shall prescribe. XII. Be it further enacted, That, at the first general 2 meeting of the stockholders, directed to be called under 3 section eighth of this act, a majority of all the shares 4 subscribed shall be represented before proceeding to 5 business ; and, if a sufficient number do not appear on 6 the day appointed, those who do attend shall have 54 7 power to adjourn from time to time, until a regular 8 meeting shall be thus formed; and at such meeting I 9 the stockholders may provide by a by-law, as to the 10 number of stockholders and the amount of stock to be II held by them, which shall constitute a quorum for the 12 transaction of business at all subsequent regular or occa- 13 sional meetings of stockholders and directors. XIII. Be it further enacted, That at all elections, and 2 upon all votes taken, in any general meeting of the 3 stockholders, upon any by law or any of the affairs of 4 said company, each share of stock shall be entitled to 5 one vote, and that any stockholder in said company C^may vote by proxy ; and proxies may be verified in such 7 manner as the stockholders by law may prescribe. XIV. Be it further enacted, That the general com- 2 missioners shall make their return of the shares of stock 3 subscribed for, at the first general meeting of stock- 4 holders, and pay over to the directors elected at said 5 meeting, or their authorized agent, all sums of money 6 received from subscribers ; and, for failure thereof, shall 7 be liable to said company, to be recovered at the suit of 8 said company, in any of the Superior Courts of law in 9 this State, within the county where such delinquent or 10 delinquents may reside, and in like manner from said 11 delinquent or delinquents' executors or administrators, 12 in case of his or her death. XV. Be it further enacted, That the board of directors 2 may fill all vacancies which may occur in it during the 3 period lor which they have been elected, and, in the ab- 4 sence of the president, may appoint one pro tempore, 5 from among their number. XVI. Be it further enacted, That all contracts Degree- s' mentSj authenticated by the president and secretary of 55 3 the board of directors, shall be binding on the company 4 without a seal, or such a mode of authentication may b$ 5 used as the company, by their by-laws, may adopt. XVII. Be it further enacted, That the company shalf 2 have power and may proceed to construct, as speedily 3 as possible, a railroad with one or more tracks, to be 4 used with steam power, which may be extended from 5 such point on the North Carolina railroad, as the 6 company hereby incorporated shall fix upon, to such 7 point on the Tennessee State line, or Tennessee river, 8 in Macon county, as the said company shall determine; 9 and skid company may use any section or part of said 10 road, made by them, before the whole of said road is 11 completed. XVIII. Be it further enacted, That the said company 2 shall have the exclusive right of conveyance or transpor- 3 Ration of persons, goods, merchandise and produce over 4 the said railroad, to be by them constructed, at such 5 charges as may be fixed on by a majority of said com- 6 pany. XIX. Be it further enacted, That the said company may, 7 2 when they see fit, farm out their right of transportation 3 over said railroad, subject to the rules above mentioned ; 4 and the said company, and every one who may have re- 5 ceived from them the right of transportation of goods, 6 wares and merchandise over the said railroad, shall be 7 deemed and taken to be a common carrier, as respects 8 all goods, wares, produce and merchandise entrusted to 9 them for transportation. HXX. Be it further enacted, That the board of directors 2 may call for the payment of the sums subscribed as 3 stock in said company, in such instalments as thein- 4 terest of said company may, in their opinion, require ; 56 5 the call for each payment shall be published in one or 6 more newspapers published in this State, for at least 7 one month before the day of payment ; and, on 8 failure of any stockholder to pay each instalment, as 9- thus required, the directors may sell, at public auction, 10 on a previous notice of ten days, for cash, all the stock 11 subscribed for in said company, by such stockholder, 12 and convey the same to the purchaser at said sale ; and 13 if the said sale of stock do not produce a sum sufficient 14 to pay off the incidental expenses of said sale, and the 15 entire amount, due to said company, for such subscrip- 16 tion of stock, then, and in that case, the whole of such 17 balance shall be held as due at once to said company, 18 and may be recovered of such stockholder or his ex- 19 ecutors, administrators or assigns, at the suit of said 20 company, either by summary motion in any Court of Su- 21 perior jurisdiction in the county where the delinquent 22 resides, on a previous notice of ten days to such delin- 23 quent subscriber, or by action of assumpsit in any 24 Court of competent jurisdiction, or by a warrant before 25 a Justice of the Peace, when the sum does not exceed 26 one hundred dollars ; and in case of the assignment of 27 stock, before the whole amount has been paid to the 28 company, then for all sums due on such stock, both the ,29 original subscribers, and the first and ail subsequent 30 assignees, shall be liable to the company, and the same 31 may be recovered as above described. XXI. Be it further enacted^ That the debt^of stockhol- 2 ders, due to the company for stock therein, either as 3 original proprietor, or as first or subsequent assignee, 4 shall be considered as of equal dignity with judgments 5 in the distribution of assets of a deceased stockholder, 6 by his personal representatives. XXII. Be it further enacted, That said company shall 2 issue certificates of stock to its members ; and said stock 3 may be transferred in such manner and form as may be 4 directed by the by-laws of .the company. 57 XXIII. Be it further enacted, That the said company H may at any time, increase its capital to a sum sufficient 3 to complete said road, not exceeding one million of dol- 4 lars, by opening books for the subscription of stock, or 5 by selling such new stock, or by borrowing money on 6 the credit of the company, and on the mortgage of its 7 charter and works, and the manner in which the same 8 shall be done, in either case, shall be prescribed by the 9 stockholders in a general meeting. XXIV. Be it further enacted, That the board of direc- 2 tors shall, once in every year at least, make a full report 3 on the state of the company and its affairs to a general 4 meeting of the stockholders, and oftener if required by 5 a by-law ; and shall have power to call a general meet- 6 ing of the stockholders, when the board may deem it 7 expedient ; and the company may provide, by their by- 8 laws, for occasional meetings being called, and prescribe 9 the mode thereof. XXV. Be it further enacted, That the said company 2 may purchase., have and hold, in fee, or for a term of 3 years, any lands, tenements, or hereditaments which may 4 be necessary for the said road, or the appurtenances 5 thereof, or for the erection of depositories, store houses, 6 houses for the officers, servants or agents of the com- 7 pany, or for workshops or foundries, to be used for the 8 said company, or for procuring stone or other materials 9 necessary for said company in the construction or re- 10 pairs of the road, or for effecting transportation thereon, 11 and for no other purposes. XXVI. Be it further enacted, That the company shall 2 have the right, when necessary, to construct the said 3 road across or along any public road or water course ; 4 Provided, That said company shall not obstruct any 5 public road, without constructing another equally as 6 convenient and good. 58 XXVII. Be it further enacted, That when any lands or 2 right of way may be required by said company for the 3 purpose of constructing their road, and for the want of 4 agreement as to the value thereof, or from any other 5 cause, the same cannot be purchased from the owner or 6 owners, the same may be taken at a valuation to be 7 made by five commissioners, or a majority of them, to 8 be appointed by any Court of record having common 9 law jurisdiction in the county where some part of the 10 land or right of way is situated. In making the said 11 valuation, the said commissioners shall take into con- 12 sideration the loss or damage which may accrue to the 13 owner or owners in consequence of the land or right of . 14 way being surrendered, and the benefit and advantage he » 15 she or they may receive from the erection or establish- 16 ment of the railroad or work, and shall state particularly 17 the value and amount of each ; and the excess of loss and 18 damage, over and above the advantage and benefit, shall 19 form the measure of valuation or right of way ; Provided* 20 Nevertheless, that if any person or persons over whose 21 land the road may pass shall be dissatisfied with the 22 valuation of said commissioners- then, and in that case 23 the person or persons so dissatisfied may have an appeal 24 to the Superior Court, in the county where the said valua- 25 tion has been made, or in either county in which the land 26 lies, when it may lie in more than one county, under 27 the same rules, regulations and restrictions as in appeals 28 from judgments of Justices of the Peace. The proceed- 29 ings of the said commissioners, accompanied with a full 30 description of said land or right of way, shall be returned, 31 under the hands and seals of a majority of the commis- 32 sioners to the Court from 'which the same issued j 33 there to remain a matter of record. And the lands or 34 right of way so valued by the said commissioners, shall 35 vest in said company so long as the same shall be used 36 for the purposes of said railroad, so soon as the valua- 37 tion may be paid, or when refused, may have been ten- 59 38 dered ; Provided, That, on application for the appoint- 89 ment of commissioners, under this section, it shall be 40 made to appear to the satisfaction of the Court, that at 41 least ten days previous notice has been given by the 42 applicant to the owner or owners of land so proposed to 43 be condemned, or if the owner or owners be infants or 44 non compos mentis, then to the guardian of such owner 45 or owners, if such guardian can be found within the 46 county, or if he cannot be so found, then such appoint- 47 ment shall not be made unless notice of the application 48 shall have been published at least one month next pre- 49 ceding, in some newspaper printed as convenient as may 50 be to the Court House of the county, and shall have 51 been posted at the door of the Court House, on the first 52 day at least of the term of said Court, to which the ap- 53 plication is made ; Provided further, That the valua- 54 tion provided for in this section shall be made on oath 55 by the commissioners aforesaid, which oath any Justice 56 of the Peace or Clerk of the Court of the county in 57 which the land or a part of it lies, is hereby authorized 58 to administer ; Provided further. That the right of con- 59 demnation hereby granted shall not authorise the said 60 company to invade the dwelling house, yard, garden or 61 burial ground of an individual without his consent. XXVIII. Be it further enacted, That the right of said 2 company to condemn in the manner described in the 3 27th section of this act, shall extend to the condemn- 4 ing one hundred feet on each side of the main track of 5 the road, measuring from the centre of the same, unless 6 in case of deep cuts and filling, when the said company 7 shall have power to condemn as much in addition 8 thereto, as may be necessary for the purpose of con- 9 structing said road ; and the company shall also have 10 power to condemn any appropriate lands in like manner, 11 for the constructing and building of depots, shops, ware- 12 houses, buildings for servants, agents and persons em- 60 13 ployed on the road, not exceeding two acres in any one 14 lot or station. XXIX. Be it further enacted, That, in the absence of 2 any contract or contracts with said company, in rela- 3 tion to lands through which the said road or its branches 4 may pass, signed by the owner thereof, or by his agent, 5 or any claimant or person in possession thereof, which 6 may be confirmed by the owner thereof, it shall be pre- 7 sumed that the land upon which the said road or any of 8 its branches may be constructed, together with one hun- 9 dred feet on each side of the centre of the said road, 10 has been granted to the said company, by the owner or 11 owners thereof ; and the said company shall have good 12 right and title thereto, and shall hold and enjoy the 13 same as long as the same shall be used for the purposes 14 of said road and no longer, unless the person or persons 15 owning the said land at the time that part of the said 16 road which may be on the said land, was finished ; or 17 those claiming under him, her or them, shall apply for 18 an assessment of the value of said lands, as hereinbefore 19 directed, within two years next after that part of the said 20 road, which may be on the said land, was finished : 21 and in case the said owner or owners or those claim - 22 ing under him, her or them, shall not apply within 23 two years next after the said part was finished, 24 he, she or they shall be forever barred from recovering 25 said land, or having any assessment or compensation 26 therefor : Provided, That nothing herein contained shall 27 affect the rights of feme coverts or infants, until two 28 years after the removal of their respective disabilities. XXX. Be it further enacted, That all lands not hereto- 2 fore granted to any person, nor appropriated by law to 3 the use of the State, within one hundred feet of the 4 centre of the road, which may be constructed by t he 5 said company, shall vest in the company as soon as the 6 line of the road is definitely laid out through it, and 7 any grant of land thereafter shall be void. 61 XXXI. Be it further enacted, That if any person or 2 persons shall intrude upon the said railroad by any 3 manner of use thereof, of the rights and privileges con- 4 nected therewith, without permission or contrary to 5 the will of the said company, he, she or they may be 6 indicted for misdemeanor, and upon conviction may be 7 fined and imprisoned by any Court of competent juris- 8 diction in this State, XXXII. Be it further enacted, That if any person shalj 2 wilfully and maliciously destroy, or in any manner hurt 3 or damage, or obstruct, or shall wilfully and maliciously 4 cause or aid, or assist or counsel, or advise any other 5 person or persons to destroy, or in any manner to hurt, 6 damage or destroy or injure or obstruct the said railroad, 7 or any bridge or vehicle used for, or in transportation 8 thereon, any water tank, warehouse, or any other prop. 9 erty of said company, such person or persona so offending 10 shall be liable to be indicted therefor, and on convic 11' tion, shall be imprisoned not more than six, nor less 12 than one month, and pay a fine not exceeding five 13 hundred dollars, nor less than twenty dollars, at the dis- 14 cretion of the Court before which said conviction shall 15 take place ; and shall be further liable to pay all ex- 16 penses of repairing the same ; and it shall not be compe- 17 tent for any person, so offending against the provisions 18 of this clause, to defend himself by pleading or giving in 19 evidence, that he was the owner, agent or servant of 20 the land where such destruction, hurt, damage, injury, 21 or obstruction was done, at the time the same was done 22 or caused to be done. XXXIII. Be it furiher enacted, That every obstruction 2 to the safe and free passage of vehicles on the said road 3 or its branches, shall be deemed a public nuisance, and 4 may be abated as such by any officer, agent or servant 5 of said company ; and the person causing such ob- 62 6 struction may be indicted and punished for erecting a 7 public nuisance. XXXIV. Be it is further enacted, That the said com- 2 pany shall have the right to take at the store houses, 3 erected by them on the said railroad, or connected 4 therewith, or on its branches, goods, wares, mer- 5 chandise and produce intended for transportation, pre- 6 scribe ihe rules of priority and charge, and receive such 7 just compensation for storage, as they by rules, may es- 8 tablish, (which they shall cause to be published) or as 9 may be fixed by agreement with the owner, which may 10 be distinct from the rates of transportation : Provided, 11 That the said company shall not charge or receive 12 storage on goods, wares, merchandise, or produce which 13 may be delivered to them at their regular deposito- 14 ries for immediate transportation, and which the said 15 company may have power to transport immediately. XXXV. Be it further enacted, That the profits of the 2 company, or so much thereof as the general board may 3 deem advisable, shall, when the affairs of the company 4 will permit, be semi-annually divided among the stock- 5 holders in proportion to the stock each may own. XXXVI. Be it further enacted, That, whenever it shall 2 appear to the board of internal improvements of this 3 State, by a certificate under the seal of said company, 4 signed by their treasurer and countersigned by their 5 president, that one-third has been subscribed for and ta- 6 ken, and that at least five hundred thousand dollars 7 has been paid to said treasurer in cash and in labor per 8 formed on said road, and accepted by said company, 9 as payment on the stock subscribed, the said board of 10 internal improvements shall be, and they are hereby 11 authorized and required to subscribe, on behalf of the 12 State, for stock in said company to the amount of two 63 1.3 millions of dollars to the capital stock of said company, 14 and the subscription shall be paid in the following man- 15 ner, namely : The one-fourth part as soon as the said 16 company shall commence work, and one-fourth thereof 17 every six months thereafter, until the whole subscription 18 on behalf of the State shall be paid in; Provided, the lO treasurer and president of said company shall, before 20 they receive the aforesaid instalments, satisfactorily as- 21 sure the board of internal improvements, by the certifi- 22 cates, under the seal of said company, that an amount ot 23 private subscription has been paid in equal proportion to 24 the stock subscribed by the State. XXXVII. Be it further enacted That if, in case the pres- 2 ent Legislature shall not provide the necessary and 3 ample means to pay the aforesaid stock subscribed for on 4 be half of the State, as provided for in the 36th section 5> of this act, and in that event, the board of internal im- 6 provements aforesaid, shall, and they are hereby autho- 7 rised and empowered to borrow, on the credit of the 8 State, a sum not exceeding two millions of dollars, as 9 the same may be needed by the requirements of this act. XXXVIII. Be it further enacted That, if, in case it 2 shall be necessary to borrow the money by this act 3 authorized, the public treasurer shall issue the necessa- 4 ry certificates, signed by himself and countersigned by 5 the comptroller, in sums not less than one thousand 6 dollars each, pledging the State for the payment of the 7 sum therein mentioned, with interest thereon at the 8 rate of interest not exceeding six per cent, per annum, 9 payable semi-annually at such times and places as the 10 treasurer may appoint — the principal of which certifi- 11 oates shall be redeemable at the end of thirty years 12 from the time the same are issued ; but no greater 13 amount of such certificates shall be issued at any one 14 time than may be sufficient to meet the instalments re- 15 quired to be paid by the State at that time. 64 XXXlX, B". if further enacted, That the comptroller 2 shall register the said certificates at lame in a book to 3 be by him kept for the purpose, at the time he counter- 4 signs the same ; and when he delivers the same to the 5 public Treasurer, he shall charge him in his books with 6 the amount thereof, and also with all such sums, if any, 7 as the public Treasurer may ob f ain by way of premium 8 on the sale of said certificates, an account of which 9 the public Treasurer shall render to the Comptroller 10 so soon as negotiations from time to time for the sale 11 of said certificates are closed. XL. Be it further enacted, That if it shall become ne- 2 cessary to issue the certificates aforesaid, the public 3 Treasurer shall advertise in one or more newspapers, 4 as he may think best, and invite sealed proposals for 5 such amount of the aforesaid sum of two millions of dol- lars as may be wanted at any one time ; and it shall 7 be his duty to accept tho^e terms which ma} T be most 8 advantageous to the State ; Provided, That in no 9 event shall any of the said certificates be sold for less 10 than their par value ; and any premium which may be 11 obtained on the sale of said certificates shall be placed 12 in the public Treasury, and used as other public funds 13 in the payment of interest on the debt hereby created. XLI. Be it further enacted, That, as security for the re- 2 demption of said certificates of debt, the public faith of 3 the State of North Carolina is hereby pledged to the 4 holders thereof, and in addition thereto, all the stock 5 held by the State in " the North Carolina and Western G Railroad Company," hereby created, shall be. and the 7 same is hereby, pledged for that purpose ; and any divi- 8 dends of profit which may, from time to time, be declared 9 on the stock held by the State, as aforesaid, shall be 10 applied to the payment of the interest accruing on said 11 certificates ; but until such dividend of profit may be 12 declared, it shall be the duty of the Treasurer, and he is 13 hereby authorized and directed to pay all such interest, 14 as the same may accrue, out of any moneys in the treas- 15 ury not otherwise appropriated. XLII. Be it further enacted, That the certificates oi debt 2 hereby authorized to be issued, shall be transferable by 3 the holders thereof, their agents or attorneys, properly 4 constituted, in a book to be kept by the Publie Treasu- 5 rer for that purpose ; and in every instance when a trans- 6 fer is made, the outstanding certificate shall be surren- 7 dered and given up to the Public Treasurer, and by him 8 cancelled, and a new one for the amount issued in its 9 place, to the person to whom the same is transferred. XLIII. Beit further enacted, That the State shall appoint 2 a number ol Directors in said company in proportion to 3 the stock subscribed, who shall be appointed by the Gov- 4 ernor, by and with the advice and consent of the council 5 of State, and removed in like manner. XLIV. Be it further enacted That the following offi- 2 cers and servants and persons in the actual employment 3 of the said company, be, and they are hereby exempted 4 from the performance of jury and ordinary military 5 duty : The president and treasurer of the board of 6 directors, and the chief and assistant engineers, the secre- 7 taries and accountants of the company, keepers of the 8 depositories, guard stationed on the road to protect it 9 from injury, and such persons as may be working the 10 locomotive engines and travelling with cars for the pur- 11 pose of attending to the transporting of produce, goods 12 and passengers on the road.