Page:Federal Reporter, 1st Series, Volume 2.djvu/126

 FAKMBBS' li. & T. 00. V. BT. J. 4 D. 0. B. 00. 119 �■consolidation, it must be held to be within the proviso above quoted. That the contract in question, if given effect, amounted to a sale of part of the railroad, and of the rights, privileges and franchises connected therewith, there can be no doubt. It was, in effect, a sale of one-half of the road, with ail its privileges, between Hastings and Keamey, being by its terms a transfer thereof for the whole period of the grantor's charter. It would be impossible, consistently 'with the plainest rule of construction, to hold that under this in- strument no part of the property or franchises of the lessor ■was intended to be sold. The contract must, therefore, be held unauthorized and invalid, unless it can be shown that it was ratified by the stockholders as required by the statute. It devolved upon petitioner to show such ratification. If it be claimed that this can be shown I will give the petitioner the opportunity to show it, by directing a master to take proof and report upon that question. But if, as I suppose the fact to be, there was no such ratification, my decision is that nothing can be recovered upon the contract as such. �But inasmuch as the transaction is not tainted with any immorality, I hold that the petitioner is entitled to reeover, without regard to the contract, a just compensation for the use of its road and property during the time in controversy. And if the petitioner is content to take decree for the sum recommended by the master, less the disputed item for de- preciation of property, an order may be made accordingly. If this is not accepted the case will be sent to a master to take further testimony and report what would be a reasonable compensation for the use of the property during the period in question, including the depreciation caused by such use. In the event of such reference the question of the effect of the jreeeiver's admission of certain items as due under the contract "wilI be reserved. ����