Nixon v. Reid

• Decision Date: 18 April 1896
• Citation: 8 S.D. 507,67 N.W. 57
• Parties: NIXON et al., Plaintiffs and respondents, v. REID et al., Defendants and appellants.
• Court: South Dakota Supreme Court

8 S.D. 507

67 N.W. 57

32 LRA 315 (1896)

NIXON et al., Plaintiffs and respondents,

v.

REID et al., Defendants and appellants. South Dakota Supreme Court Appeal from Circuit Court, Potter County, SD Hon. Loring E. Gaffy, Judge Affirmed John A. Holmes, Crawford & DeLand Attorneys for appellants. Robt. B. Fisk, I. J. Eales Attorneys for respondents. Opinion filed April 18, 1896

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 far a second extension of five years; that 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 plaintiff.

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 not only have been brought by and in behalf of the state.

Appellants contend that the act of the territorial legislature (being Secs. 1361-1369, Comp. Laws) providing for the granting of ferry leases was in conflict with Sec, 1889 of the organic act of the territory, which prohibits the territories from “granting private charters or especial privileges.” It might he sufficient to say that the territorial supreme court passed upon this question in Evans v. Hughes Co., 6 Dak. 102, and held the law was not in conflict with the organic act. But, as the decision in that case was a memorandum decision we shall briefly state our reasons for concurring in the views expressed by that court.

The statute relating to the granting of ferry leases was passed, substantially in its present form, in 1866, No act of congress disaffirming it has ever been passed. We may conclude, therefore, that, in the view of congress, there was nothing in the statute conflicting with the organic act. When an act of the territorial legislature has been in force more than a quarter of a century, and acquiesced in by congress, it may be safely assumed that the law has received the implied sanction of congress. In Clinton v. Englebrecht, 13 Wall, 434, the supreme court of the United States, in speaking of a law of the territory of Utah, says:

“In the first place we have observed that the law has received the implied sanction of congress. It has been upon the statute books for more than 12 years. It must have been transmitted to congress soon after it was enacted, for it was the duty of the secretary of the territory to transmit to that body copies of all, laws on or before the 1st of the next December in each year. The simple disapproval by congress at any time would have annulled it. It is no unreasonable inference, therefore, that it was approved by that body.”

Section 1889 was amended or explained by congress in several acts, the last, to which we shall refer, being the act of July 30, 1886, in which it was provided that the territories shall “not pass special or local laws in any of the following enumerated cases: … Chartering or licensing ferries or toll-bridges.” It will be noticed that the terms used are “local or special laws.” In our view the law in, controversy is neither local nor special. It is a law applicable to all the counties of the state in which there are rivers or streams of sufficient magnitude to require the establishment of ferries and the right to bid for the lease is open and free to all. The law, therefore, is neither local nor special, in the sense those words are used in the act. The granting of ferry licenses or leases is peculiarly...