Page:Federal Reporter, 1st Series, Volume 2.djvu/125

 118 FEDEBAIi BSPOBTEB. �and tear of the road during the time it was used by the lessee. �The lease was not signed, but having been reduced to writ- ing, acted upon, and partly performed by both parties, it muBt be considered as binding as if signed. By its terms it was to continue in force during the life of the charter of the said Burlington & Missouri Eiver Eailroad Company in Ne- braska, and this, it is claimed, made it a lease in perpetuity, Whether this be true or not, the stipulated term was for a long period. �It is insisted on behalf of the receiver that the contract or lease was ultra vires, and void. By the Eevised Statutes of Nebraska, § 152, p. 204, it-is provided that "any railroad Company * * * m^y mortgage or lease, sell or eon- vey, the whole or any part of its railroad situated within this state, and the rights, privileges, and franchises connected therewith, and other property pertaining thereto, to any per- son or persons, on such terms and conditions as may be agreed upon. * ♦ ♦ Provided, however, that no sale or purchase shall be made of a railroad situated within thi» state, of companies without this state, or consolidations ef- fected as provided in this act, until the terms of such sale or consolidation shall have been approved by a majority of the stockholders in interest, in person or by proxy," etc. It doe» not appear that the lease in question was approved by the stockholders, and it is therefore insisted that it is void under this proviso. It will be observed that the authority to lease is given in terms by the section quoted, while the proviso, in expressing the limitation upon that power, uses only the words "sale," "purchase," and "consolidation," omitting the word "lease." Unless, therefore, the contract in question amounted by its terms, upon a fair construction, to a sale by the Burlington & Missouri Eiver Eailroad Company in Ne- braska "of the whole or any part of its railroad," and the rights, privileges and franchises connected therewith, the lim- itation does not apply. �The statute must be held to apply to the transaction in its essence. If a sale is made under the name of a lease or of a ����