§ 129 — Approval of securities

§ 129. Approval of securities. A common carrier existing, or hereafter\nincorporated, under or by virtue of the laws of the state of New York,\nmay issue stocks, bonds, notes or other evidences of indebtedness\npayable at periods of more than twelve months after the date thereof, or\na receiver of such a corporation, if duly authorized by law, may issue\nreceiver's certificates, when necessary for the acquisition of property,\nthe construction, completion, extension or improvement of its\nfacilities, or for the improvement or maintenance of its service or for\nthe discharge or lawful refunding of its obligations or for the\nreimbursement of moneys actually expended from income or from any other\nmoneys in the treasury of the corporation not secured by or obtained\nfrom the issue of stocks, bonds, notes or other evidences of\nindebtedness of such corporation, within five years next prior to the\nfiling of an application with the commissioner for the required\nauthorization, for any of the aforesaid purposes except maintenance of\nservice and except replacements in cases where the applicant shall have\nkept its accounts and vouchers of such expenditure in such manner as to\nenable the commissioner to ascertain the amount of moneys so expended\nand the purposes for which such expenditure was made; provided and not\notherwise that there shall have been secured from the commissioner an\norder authorizing such issue, and the amount thereof and stating the\npurposes to which the issue or proceeds thereof are to be applied, and\nthat, in the opinion of the commissioner, the money, property or labor\nto be procured or paid for by the issue of such stock, bonds, notes or\nother evidences of indebtedness is or has been reasonably required for\nthe purposes specified in the order, and that except as otherwise\npermitted in the order in the case of bonds, notes and other evidences\nof indebtedness, such purposes are not in whole or in part, reasonably\nchargeable to operating expenses or to income; but this provision shall\nnot apply to any lawful issue of stock, to the lawful execution and\ndelivery of any mortgage or to the lawful issue of bonds thereunder,\nwhich shall have been duly approved by the board of railroad\ncommissioners before July first, nineteen hundred seven. Stock may be\nissued to stockholders as a stock dividend provided that there shall\nhave been secured from the commissioner an order authorizing such issue\nand a transfer of surplus to capital in an amount equal to the par or\nstated value of the stock so authorized and stating that a sum equal to\nthe amount to be so transferred was expended for the purposes enumerated\nin this section. The issue of stocks, bonds or other evidences of\nindebtedness, within the meaning of this section, shall include the sale\nby any such corporation of any such securities previously issued in\ncompliance with this section and subsequently reacquired by such\ncorporation, provided, however, for good cause shown the commissioner\nmay exempt from the restriction hereof stocks, bonds or other evidences\nof indebtedness. For the purpose of enabling him to determine whether he\nshould issue such an order, the commissioner shall make such inquiry or\ninvestigation, hold such hearings and examine such witnesses, books,\npapers, documents or contracts as he may deem of importance in enabling\nhim to reach a determination. Such corporation shall not without the\nconsent of the commissioner apply said issue or any proceeds thereof to\nany purpose not specified in such order. Such common carrier may issue\nnotes for proper corporate purposes and not in violation of law, payable\nat periods of not more than twelve months without such consent but no\nsuch notes shall, in whole or in part, directly or indirectly, be\nrefunded, by any issue of stock or bonds or by any evidences of\nindebtedness running for more than twelve months without the consent of\nthe commissioner. The commissioner shall have power to require every\nsuch carrier to file with the commissioner after the issuance of stocks,\nbonds, notes or other evidences of indebtedness, issued with or without\nthe approval of the commissioner as herein provided, a notice of such\ntransaction in such form as the commissioner may prescribe. Provided,\nhowever, that the commissioner shall have no power to authorize the\ncapitalization of any franchise to be a corporation nor to authorize the\ncapitalization of any franchise or the right to own, operate or enjoy\nany franchise whatsoever in excess of the amount (exclusive of any tax\nor annual charge) actually paid to the state or to a political\nsubdivision thereof as the consideration for the grant of such franchise\nor right, nor to authorize the issuance of any stocks or other\nsecurities for any purposes other than those enumerated in this section;\nnor shall the capital stock, bonds and other evidences of debt of a\ncorporation formed by the merger or consolidation of two or more other\ncorporations, exceed the sum of the capital stock, bonds and other\nevidences of debt of the corporations so consolidated, at the par value\nthereof, or such sum and any additional sum actually paid in cash; nor\nshall any contract for consolidation or lease be capitalized in the\nstock of any corporation whatever; nor shall any corporation hereafter\nissue any bonds against or as a lien upon any contract for consolidation\nor merger.\n