Evans v. Hughes Cnty.

• Decision Date: 31 October 1888
• Citation: 6 Dak. 102,50 N.W. 720
• Parties: Evans v. Hughes County.
• Court: South Dakota Supreme Court

50 N.W. 720

6 Dak. 102

Evans

v.Hughes County.

Supreme Court of the Territory of Dakota.

Oct. Term, 1888.

Appeal from district court, Hughes county; James Spencer, Judge.

Action by Fred T. Evans against Hughes county to recover amounts paid by plaintiff's assignor to defendant under an alleged illegal lease. A demurrer to the complaint was sustained. Plaintiff appeals. Affirmed.

The complaint alleged that William P. Ledwich, being the highest bidder for a certain ferry privilege, received a seven-years lease therefor from defendant county; that he had paid the sum of $1,800 thereunder; that he assigned his interest in the contract to plaintiff; and that the county had no power or authority to grant the lease, and that its implied warranty of title to convey same had therefore failed. Pol. Code Dak. c. 29, under the authority of which the lease was granted, provides (section 54) that “it shall be unlawful for any person to establish, maintain, or run upon any waters within this territory any ferry upon which to convey, carry, or transport any persons or property, for hire or reward, without first having obtained a license therefor. *** When any ferry lease has been granted, no other lease shall be granted within a distance of two miles thereof across the same stream,” etc. Section 55 provides that “the board of county commissioners of the county to whom application shall be made for a ferry in the manner hereinafter provided are hereby authorized, and it shall be their duty, to grant a lease of such ferry, for a term not exceeding 15 years, to such person or persons who shall bid and secure the payment of the highest amount of rent for the same,” etc.

H. E. Dewey, for appellant. Coe I. Crawford, for respondent.

PER CURIAM.

The judgment in this case is affirmed (1) because the respondent had a right to lease the ferry privilege to Ledwich, the assignor of the appellant, by virtue of its police power, and in so doing did not violate the provisions of section 1889, Rev. St. U. S.;¹ (2) because there was no such privity of contract existing between the parties as would enable the appellant to maintain this action against the respondent. All of the justices concur.

1. Rev. St. U. S. § 1889, provides that “the legislative assemblies of the several territories shall not grant private charters or especial privileges,” etc.