Evans v. Hughes County
| Citation | 3 S.D. 244,52 N.W. 1062 |
| Parties | EVANS, Plaintiff and appellant, v. HUGHES COUNTY, Defendant and respondent. |
| Decision Date | 17 August 1892 |
| Court | Supreme Court of South Dakota |
Appeal from Circuit Court, Hughes County, SD
Affirmed
H. E. Dewey
Attorney for appellant.
Loring E. Gaffy and Coe I. Crawford
Attorneys for respondent.
Opinion filed Aug. 17, 1892
The appellant sued the respondent county to recover back money paid under circumstances narrated in the complaint, and which will be noticed hereinafter. The county demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and the plaintiff appealed. The facts alleged in the complaint, and upon which this controversy is presented, are these:
In 1881 the board of county commissioners of the said Hughes county represented to the public, and particularly to the appellant and his assignor, that said county had the right to and might lawfully sell and let to said appellant and his assignor the exclusive privilege of maintaining and operating a ferry across the Missouri river at or near the city of Pierre for a term of years; that, at the request of said board, appellant and his assignor, fully believing and relying upon the representations so made, bid and offered to said respondent county a large sum of money for such exclusive ferry privilege, which bid or offer the said county accepted, and then and there undertook to sell and grant to appellant and his assignor such exclusive privilege for a stated term, for which appellant and his said assignor paid said respondent county the sum of $1,800; that afterwards by assignment this appellant became the sole owner of any and all rights under said grant from, or contract with, the respondent county, including the right to bring this action; that before its commencement appellant duly demanded the return to him, and the repayment of, the money so paid, which said county refused. These are the historic facts, to which is added in the complaint the further allegation that the respondent county did not own, nor had it any right or power to grant to appellant, such exclusive ferry privilege, in consideration of which it so received and keeps the money paid by appellant. It is not alleged that the respondent county did anything to hinder or obstruct appellant in the enjoyment of the privilege so bargained for, or failed to do anything required of it by the terms of the grant, except that it did not own, and could not, and consequently did not, convey, the privilege which it had thus assumed to own and convey. More briefly stated, the plaintiff’s cause of action is that he paid the defendant county money for a privilege which, under the law, it could not control or dispose of; that thus the consideration failed,—and this action is to recover back the money so paid, and for general damages. The plaintiff’s claim, as set out in his complaint and supported by an able and elaborate argument, is that section 55 of chapter 29, Pol. Code, being section 1362. Comp. Laws, which in terms authorized the board of county commissioners to grant a lease of ferry privileges as therein provided, and under which the grant in question was undertaken to be made. was nugatory and void, for reasons which will be more particularly noticed later.
We have been a little perplexed to know just how we ought to treat this case. Outside the record, this court cannot help knowing that this same question between these same parties was passed upon and judicially decided by the territorial supreme court, the predecessor of this court, for it is fully reported in 6 Dak. 102, 50 N.W. 720, where the pleadings are very fully reproduced. If this former judgment had been pleaded, or even if this court were at liberty to take judicial notice of the records in that case, we do not readily see how we could avoid considering the dominant question in this ease as res judicata; but the defendant, by demurring to the sufficiency of the complaint instead of pleading the former judgment, consents, we think, to a reagitation of this question as an original one in this court, though, in the view we feel obliged to take of this case, we do not find it necessary to reexamine such question. The right or authority of the county of Hughes to rent or lease the ferry privilege, as it is alleged was undertaken, is challenged by the plaintiff upon the ground that neither the county nor the territory owned or could control such privilege, but that it belonged to the United States, and that congress alone had the power of disposing of the same; and that said section 1362, Comp. Laws, under which the county assumed to act, was invalid and void, because not only unauthorized by congress, but in violation of section 1889 of the organic act, which prohibited the territory from granting private charters or special privileges; and upon the further ground that no part of the Missouri river over which this ferry privilege was to extend was within the territorial limits of Hughes county, but that it was wholly within Indian country, and so under the exclusive jurisdiction of congress.
In our treatment of this case we shall assume that plaintiff’s contention is plainly correct, and that the defendant county had no authority to grant the ferry privilege as it undertook to do. because the law forbade it. This is the only theory upon which it is or can be contended that the complaint states a cause of action, for, if the county could legally convey an exclusive ferry privilege, it is not claimed but that it did so in this case, and then there would be no failure of consideration, for the plaintiff would have gotten just what he contracted for. It is not claimed that the county was guilty of any fraud in the matter, or possessed any advantage over the plaintiff in knowing the law or the rights of the parties. It is entirely consistent with the allegations of the complaint, and it is undoubtedly true as a fact, that when the transaction occurred both parties understood that the county might legally dispose of the privilege. The contract was made and the money paid with that understanding on both sides, but it now turns out, as we are assuming, in accordance with the plaintiff’s contention, that the county did not and could not under the law control or dispose of any such right. Upon these premises each party to this controversy urges a different legal theory, leading to directly opposite results as to the rights of the parties. Appellant contends that this ferry privilege was a franchise; that a franchise is an incorporeal chattel; that in ceding it to appellant the respondent county impliedly warranted its title, and, the title failing, the consideration paid for it may be recovered back. Appellant’s understanding and definition of a “franchise” is undoubtedly correct,—a privilege emanating from the sovereign. In this case it purported to come from and be authorized by the territory. This would be the proper source of a franchise which the territory had the power to confer, but how if the territory itself possessed no such power? Nothing could emanate from the territory that was not there. The state may temporarily surrender to another a part of its sovereign power, or the right to exercise it, and that is a franchise, but it cannot surrender or delegate to another a right or authority it never had. Even though it assumed such power, it could not thereby create a franchise. Such is the doctrine of State v. Scougal,(1892). If the territory had no right to grant this privilege to plaintiff, or authorize Hughes county to do so, as appellant contends, it was because the law itself was against it and did not allow it. It was not because either the territory or the county had failed to do or have something done which would or might have qualified it to make such grant, nor because it had once possessed, but had already disposed of, such right. It being the law that neither the territory nor the county had any right to or could confer this privilege, both parties to this controversy are presumed to have known it, and so to have known equally well that the nominal subject of the grant or franchise had no legal existence; in other words, both knew that the county did not, because it could not, grant the privilege to plaintiff, and consequently that plaintiff took nothing by the pretended grant or lease of the ferry privilege. Plaintiff, however, alleges in his complaint that as a matter of fact he did rely upon and believe to be true the representations of defendant county that it possessed and had the right to let and sell the said ferry privilege. This, construed with the subsequent allegations of the complaint upon which the cause of action rests, that it never did have such right, is equivalent to saying that he was led into the transaction by and acted upon a wrong understanding of the law upon the subject, and the legal rights of the parties thereto. No misunderstanding of facts or conditions being alleged,—and this respondent contends is the case presented by this record,—we do not see any escape from this view...
To continue reading
Request your trial