State v. Kennard

• Decision Date: 05 October 1898
• Docket Number: 10322
• Citation: 76 N.W. 545,56 Neb. 254
• Parties: STATE OF NEBRASKA v. THOMAS P. KENNARD
• Court: Nebraska Supreme Court

76 N.W. 545

56 Neb. 254

STATE OF NEBRASKA v. THOMAS P. KENNARD

No. 10322

Supreme Court of Nebraska

October 5, 1898

ERROR from the district court of Lancaster county. Tried below before CORNISH, J. Reversed.

REVERSED AND REMANDED.

C. J Smyth, Attorney General, and Ed P. Smith, Deputy Attorney General, for the state.

Tibbets Bros., Morey & Ferris and Talbot & Allen, contra.

RYAN C.

OPINION

RYAN, C.

This action was begun in the district court of Lancaster county under the sanction of a resolution of the house of representatives of the legislature of 1895 permitting the institution of such a suit against the state, and there was a judgment for the sum of $ 13,521.99, for the reversal of which these proceedings are prosecuted by the judgment defendant. There were several matters urged by way of defense in the district court, but the view which we take of the case dispenses with a consideration of other questions than those which shall now receive attention.

On February 8, 1873, there was approved the following joint resolution, which had been adopted by the legislature then in session, to-wit:

"Be it enacted by the Legislature of the State of Nebraska:

"That the governor be, and he hereby is, authorized and empowered to appoint an agent or agents in behalf of this state to prosecute to final decision before congress, or in the courts, the claim of this state for the five per cent due to the same from the United States upon the land of this state disposed of by Indian reservations and by the location of military land warrants and land scrip issued for military service in the wars of the United States and for agricultural college scrip and railroad lands; and

"WHEREAS The government of the United States has allowed various states large amounts of swamp and overflowed lands lying within their borders; and

"WHEREAS, No such allowance of swamp and overflowed land has ever been received by this state for the large area of land lying within its limits subject to overflow: Now, therefore,

"Be it resolved by the Senate and House of Representatives of the State of Nebraska, That the governor is hereby authorized and empowered to appoint a competent and reliable agent or agents as provided by section one of this act, and that said agent or agents shall receive such compensation from said lands or money as may be agreed upon by said agent or agents and the governor conditioned that the state shall be put to no expense whatever unless said agent or agents shall be successful in whole or in part in securing the aforementioned claims: Provided that the foregoing shall in nowise apply to the five per cent cash school fund accruing to the state." (General Statutes 1873, p. 869, ch. 59.)

On October 15, 1874, Robert W. Furnas, as governor of Nebraska, entered into a written agreement with Thomas P. Kennard by the terms of which the latter was to receive fifty per cent of the amount to be collected by him as agent for the state of Nebraska under the terms of the joint resolution above set out. In his petition in the district court Mr. Kennard alleged that he had prosecuted the claims of the state of Nebraska for five per centum due to the state of Nebraska on account of Indian reservation lands, and in the said prosecution he had expended large sums of money, and, to quote his own language used in said petition, that he, "as a result of such prosecution, obtained from the department of the interior, one of the executive departments of the United States government, a decision on the 14th day of January, 1881, whereby the state of Nebraska was authorized to receive five per cent of the proceeds of all sales of lands upon what was known as the Pawnee Indian reservation within the borders and limits of the state of Nebraska, and by such decision of the said department the state of Nebraska was awarded five per centum of said sales." This action was for one-half of the net amount which had been received by said state from the sales of land in the Pawnee Indian reservation.

The enabling act by virtue of which Nebraska became a state contained the following provisions: "Sec. 12. And be it further enacted, that five per centum of the proceeds of the sale of all public lands lying within said state, which have been or shall be sold by the United States prior or subsequent to the admission of said state into the Union, after deducting all expenses incident to the same, shall be paid to said state for the support of common...