Brown County v. Jenkins

• Decision Date: 17 December 1898
• Citation: 77 N.W. 579,11 S.D. 330
• Parties: BROWN COUNTY, Plaintiff and appellant, v. GEORGE W. JENKINS and P. T. Burns, Defendants and respondents.
• Court: South Dakota Supreme Court

11 S.D. 330

77 N.W. 579

BROWN COUNTY, Plaintiff and appellant,

v.

GEORGE W. JENKINS and P. T. Burns, Defendants and respondents. South Dakota Supreme Court Appeal from Circuit Court, Brown County, SD Hon. E. G. Smith, Judge Affirmed H. H. Potter Attorneys for appellant. L. W. Crofoot, George W. Jenkins Attorneys for respondent. Opinion filed December 17, 1898

FULLER, J.

This action to recover from the defendant the possession of a number of promissory notes executed by certain persons to the county during the years 1890 and 1891 for seed grain furnished upon a showing that their subsistence depended upon thus being provided for pursuant to Chapt. 72 of the Laws of 1890, was tried to the court without a jury, and resulted in a judgment dismissing the complaint, and for costs in favor of defendant, who, on the 17th day of December, 1896, purchased these notes from the county, paying an adequate compensation therefor. From the beginning, counsel for plaintiff and appellant has maintained that the board of county commissioners had no authority to sell such property, and that the purchase of the same by respondent while states’ attorney of the county is against public policy, and consequently illegal. More than three years prior to the transaction complained of the notes in controversy, together with others of similar character, were placed with respondent for collection under a contract by which he was to pay all expenses connected therewith in consideration of 25 per centum of all the money actually received by reason of such employment; and these apparently less available claims were still in his hands when, after a careful investigation by the board of county commissioners as to their real value, a proposition was made to sell and transfer the same to respondent for a certain consideration in cash, and in full settlement of a disputed claim against the county for salary as states’ attorney and for office rent, to which respondent deemed himself entitled. Upon this basis the sale was finally negotiated, and it appears that the board acted in good faith to promote the welfare of the county. Concerning the notes and respondents’ conduct the court found the following with reference thereto:

“That none of the makers had sufficient property exempt from execution so that payment could be enforced by proceedings at law; that about one-half of said notes were given in 1890, and more than six years have elapsed since their...