Nixon v. Reid

• Court: Supreme Court of South Dakota
• Writing for the Court: CORSON
• Citation: 8 S.D. 507,67 N.W. 57
• Parties: NIXON et al. v. REID et al.
• Decision Date: 18 April 1896

8 S.D. 507
67 N.W. 57

NIXON et al.
v.
REID et al.

Supreme Court of South Dakota.

April 18, 1896.

Appeal from circuit court, Potter county.

Action by Samuel Nixon and Charles J. Bailey against James G. Reid and others to restrain defendants from operating a ferry across the Missouri river, at Forest City, Potter county, S. D. Defendants demurred to the complaint, and, the demurrer being overruled, appealed. Affirmed.

[67 N.W. 58]

John A. Holmes and Crawford & De Land, for appellants. Robt. B. Fisk and I. J. Eales, for respondents.

CORSON, P. J.

This is an appeal by the defendants from an order overruling a demurrer to the complaint. The plaintiffs, under a claim to an exclusive franchise for establishing a ferry across the Missouri river at Forest City, in Potter county, instituted this action to enjoin the defendants from maintaining and operating an opposition ferry at that place. The demurrer is interposed upon two grounds, namely, that the complaint does not state facts sufficient to constitute a cause of action, and that the ferry lease, as alleged in said complaint, is illegal and void, under the laws of this state. The complaint states the facts very fully upon which the plaintiffs rely to maintain their action, but a brief summary is all that will be necessary to an understanding of the questions presented for our determination.

It is alleged that in April, 1889, the board of county commissioners of Potter county granted to one Francis B. Bullard a lease of an exclusive ferry privilege on the Missouri river, at a point on the east side of said river, known as “Steamboat Landing,” for a term of five years from and after April, 1889, with the refusal to said Bullard for a further term of five years, and for a second extension of five years; that a contract was duly entered into between said Bullard and the said board of county commissioners, a copy of which is given in the complaint; that said Bullard thereafter set up, operated, managed, and conducted a ferry, and continued to operate the same until March 27, 1894; that, upon the said last date mentioned, the said Bullard duly assigned and transferred to the plaintiffs all his rights and privileges under said lease, a copy of which assignment is made part of the complaint; that in April, 1894, the plaintiffs applied to the board of county commissioners of said Potter county for an extension of said ferry privilege for an additional term of five years, and for an approval of the transfer of said lease to these plaintiffs; that said board duly passed a resolution approving said assignment and transfer of said franchise to the plaintiffs, and extending said lease for the term of five years, which application and resolution are fully set out in the complaint; that the plaintiffs duly executed a bond as required by law, and since March 27, 1894, have been running, managing, operating, and conducting said ferry, with ample facilities for transacting all such ferry business; that they have paid to the county, as provided in said contract, all rents due thereon; that defendants have combined themselves into an association, calling themselves the “Citizens' Ferry Company,” and have caused to be built a ferryboat, and, without right or authority, have been running the same from said “Steamboat Landing,” in opposition to, and in competition with, said ferry of these plaintiffs; and that said defendants threaten to continue to operate said ferry, to the irreparable damage of the plaintiffs. Plaintiffs pray that an injunction may issue restraining the defendants from continuing to operate said opposition ferry.

The appellants contend: First. That the ferry law of this state was passed in contravention of the organic act of the territory, and is in contravention of the constitution of this state, and is therefore void. Second. The contract, being for a ferry across the Missouri river opposite an Indian reservation, is in contravention of the laws of the United States relating to intercourse with the Indian tribes, and is therefore illegal and void. Third. That the contract in excess of the five years specified as the first term was unauthorized and void; that, at the time this action was commenced, said lease had expired and terminated. Fourth. That a ferry lease is a franchise, and cannot be assigned or transferred; and that the assignment of said lease by said Bullard to the plaintiffs was void, vesting no right in the plaintiffs. All these propositions are controverted by the respondents, and they urge that, if all the positions taken by the defendants' counsel are conceded to be correct, yet the defendants cannot attack the proceedings or the franchise, as an action could only have been brought by and in behalf of the state.

Appellants contend that the act of the territorial legislature (being sections 1361-1369, Comp. Laws) providing for the granting of ferry leases was in conflict with section 1889 of the organic act of the territory, which prohibits the territories from “granting private charters or especial privileges.” It might be sufficient to say that the territorial supreme court passed upon this question in Evans v. Hughes Co., 6 Dak. 102, 50 N. W. 720, and held the law was not in conflict with the organic act....