Cuyahoga County Circuit. car or train of cars, or upon any street railway car or cable railway car, locomotive switch or other property appertaining to any such railroad, street railway or cable railway or remove from, disarrange, or destroy any lock fastening, coupling or attachment on any track, car switch, stand, tool house, depot, or other property of any such railroad, street railway or cable railway. Any person violating any of the provisions of this section, shall, upon conviction thereof, be fined not more than five hundred, nor less than twenty-five dollars, and imprisonment in the penitentiary not more than ten years or in the county jail not less than thirty days." The statute passed May 9, 1908 (99 O. L. 484), which is claimed repeals the former statute, reads: "That whoever without authority unlawfully removes from any railway track over which locomotives or cars are operated or from any locomotives, motor, or cars the bond wires, nuts, bolts, angle bars, spikes, attachments, fastenings, switch stands, locks, feed wires, trolley wires, or other appurtenances, or any part or attachment thereof, or any bonds, nuts, bolts, wires, fastenings, journal braces, journal packing or parts thereto attached or belonging in which are necessary in the use or operation of said railway tracks, locomotives, motors or cars, and the removal of which may endanger life, or whoever buys, receives, or unlawfully has in his possession any of the afore said articles, shall upon conviction thereof be imprisoned in the penitentiary not more than five years or less than one year, or not more than six months in the county jail or workhouse at the discretion of the court, which is hereby authorized to hear testimony in mitigation or aggravation of sentence." It will be noticed that the statute last quoted provides only for the punishment of those who by removing the articles enumerated endanger human life, while Sec. 6861 R. S. makes it unlawful to do the things therein enumerated, without any reference to whether the doing of those things endanger human life or not, so that if the statute found in 99 O. L. 464, repeals the former statute by implication there would be left no penalty for doing those various things, except when the doing of them Pisko v. State. endangers human life. It is perfectly clear that the statute last named was not intended to take the place of Sec. 6861 R. S., and, therefore, does not repeal the former act by implication. But it is said that the indictment is bad under Sec. 6861 R. S. That statute, as is said in brief for the plaintiff in error, punishes first, him who places any obstruction upon any railroad or interferes with, removes, displaces, or disarranges any rail, cross-tie, switch, side track, locomotive, car or train of cars, or other property appertaining to any such railroad; second, it punishes him who interferes with, removes, displaces or disarranges any flag, lamp or other signal, and third, it punishes him who removes from, disarranges, or destroys any lock, fastening, coupling or attachment on any track, car, switch, stand, tool house, depot, or other property of any such railroad. Of course it is perfectly clear that the offense charged here does not come within the second class named in the statute. It is said that it does not come with the third class because there is no averment that the property interfered with was the property of any railroad, street railroad or cable railroad company. Conceding that this is true as to the third offense as named in the first clause of the section is clearly charged in this indictment. Not a necessary allegation is omitted. The language of the indictment is that the defendant "did remove and displace certain attachments to a railroad car, to wit, three triple valves." The language of the statute is that "it shall be unlawful for any person, without proper authority, to interfere with, remove, displace, or disarrange any car or other property appertaining to any such railroad." If these triple valves were attachments on a railroad car, then they appertained to such described car, and the fact that the word "appertaining" is used in describing the last of the three offenses named in the statute in nowise does away with the . fact that whatever attachment there is to a railway car "appertains" to such car. We reach the conclusion, therefore, that the demurrer was Iroperly overruled, and the judgment is affirmed. Winch and Henry, JJ., concur. Cuyahoga County Circuit. CORPORATIONS. [Cuyahoga (8th) Circuit Court, January 11, 1909.] Marvin, Winch and Henry, JJ. Frank H. Ginn, Assignee, V. Cleveland Sanitarium Co. 1. Refusal to Take Corporate Stock Subscribed no Relief Against Corporate Debts Subsequently Created. A subscriber for stock in a corporation can not be relieved of paying therefor simply by his declaration that he will not take the stock, even if made before any debts have been contracted by the corporation; but if all the stockholders consent to a cancellation of his subscription before any debts are contracted he is relieved therefrom. 2. Consent of Other Stockholders to Cancellation of One's Subscription by Unimpeached Acquiescence. The consent of all the other stockholders need not be express, if their acquiescence continues unimpeached, with full knowledge of the facts. [Syllabus by the court.] Error to common pleas court. Blandin, Rice & Ginn, for plaintiff in error. E. J. Foster, Scott & Parks, C. W. Dille and for defendant in error. MARVIN, J. White, The plaintiff here is the assignee, under the statutes of Ohio, for the benefit of the creditors of the Euclid Avenue Trust & Savings Company, a corporation. The suit is brought against the Cleveland Sanitarium Company, a corporation, and certain natural persons. Among the defendants is John W. Walton, and the only issue tried in this court is an issue between the plaintiff and said Walton, and that issue is upon the question of whether Walton is liable upon an unpaid subscription for stock of the sanitarium company. This company was incorporated on December 11, 1900. Walton was not one of the incorporators. Shortly after the incorporation books for subscriptions to the capital stock were opened and Walton subscribed for five shares of the stock. He was elected a director Ginn v. Sanitarium Co. and then by the vote of the directors he was elected president of the corporation. Shortly after that and before any certificates of stock had been issued to anybody and before any debts had been incurred, Mr. Walton, at a meeting of the stockholders, of which all the stockholders had notice, but which was attended by only a part of them, stated in the open meeting that he had been induced to subscribe because of representations made to him by the promoter, which he claimed were not being carried out, and he stated he would refuse to take out any stock. However, after some conversation among the stockholders present at this meeting he agreed to take one share and one share only of such stock. Several of the stockholders present affirmatively stated that this action of Walton's was acceptable to them, and no stockholder present made any objection in any wise to the position taken by Mr. Walton. Thereafter, Mr. Walton, so far as he was able to do, notified each stockholder whom he supposed might have been influenced to subscribe by the fact that he had subscribed for five shares, then that he withdrew such subscription and was to take out but one share. This fact seems to have been known early to all of the stockholders. One share of stock was issued to Mr. Walton, for which he paid, and on which he has since paid 100 per cent as his statutory liability. At a meeting of the stockholders later Mr. Walton appeared and voted one share and one share only of the stock. The claim made here by the plaintiff is that Walton having originally subscribed for five shares of stock and having paid for but one is still liable for the remaining four shares, both upon his subscription and upon his statutory liability as a stockholder. We recognize the law to be as claimed by the plaintiff that no subscriber for the stock of a corporation can be relieved of his liability by simply declaring that he will not take the stock, even though such declaration is made before any indebtedness is incurred by the corporation, but we understand the law further to be that so long as there are no debts of the corporation, the stockholders among themselves may, if all agree to it, release one who has subscribed for stock. This is necessarily Cuyahoga County Circuit. so, because all the stockholders may agree among themselves that they will abandon the corporation and none of them pay anything. And the question remaining is only whether Walton by unanimous consent of the stockholders was released from his subscription. It is said that since the issuing of certificates of stock is not necessary in order to constitute one a stockholder of a corporation, the fact that a certificate for but one share was issued to Mr. Walton does not release him from his obligation as a subscriber to the stock or as a stockholder, and this is true. But the fact that the certificate for one share was issued to him, as shown by the records of the corporation, and that he thereafter appeared at a stockholder's meeting and voted but one share, without any protest on the part of anybody, or claim that he was a stockholder in a larger amount, we think has a bearing upon the question of whether he was released by the unanimous consent of the stockholders. In Cook, Corporations Sec. 169, it is said: "A subscriber for stock in a corporation can not obtain a cancellation of his subscription except by the unanimous consent of the other subscribers. By unanimous consent, however, of the stockholders, a subscription may be canceled and a subsequent creditor of the corporation can not complain. The consent of all other stockholders need not be express, if the means of notice are sufficient so as to raise a clear presumption of knowledge and acquiescence and if the arrangement is left unimpeached by any one for many years no objection can be made." In this case before us there was an acquiescence by all of the stockholders. There has never been any complaint by any of them nor was any complaint made by anybody until after the bringing of this action. At the beginning of this action Walton was not made a party, but was brought in some time after the action was begun, and the claim against him is for the benefit of creditors at the time that Walton announced the withdrawal of his subscription, so that the creditors for whose benefit a recovery is |