Thomas Kennard v. State of Nebraska

• Decision Date: 02 June 1902
• Docket Number: No. 261,261
• Citation: 46 L.Ed. 1175,22 S.Ct. 879,186 U.S. 304
• Parties: THOMAS P. KENNARD, Plff. in Err. , v. STATE OF NEBRASKA
• Court: U.S. Supreme Court

186 U.S. 304

22 S.Ct. 879

46 L.Ed. 1175

THOMAS P. KENNARD, Plff. in Err.,

v STATE OF NEBRASKA.

No. 261.

Submitted May 2, 1902.

Decided June 2, 1902.

Messrs. A. S. Tibbets and T. S. Allen for plaintiff in error.

Messrs. F. N. Prout and Morris Brown for defendant in error.

Mr. Justice Shiras delivered the opinion of the court:

In May, 1897, in the district court of Lancaster county, state of Nebraska, Thomas P. Kennard brought an action against the state of Nebraska, seeking to recover the sum of $13,521.99,—being 50 epr cent of a certain sum paid by the United States to the state of Nebraska, and which plaintiff alleged had been so paid by reason of his services, as a duly appointed agent of the state, in procuring the allowance of the claim of the state. The petition further stated that, in pursuance of an act of the legislature of the state, the governor had contracted with the plaintiff to promote the claim of the state, and had agreed that plaintiff was to receive 50 per cent of the amount recovered. It also alleged that by a resolution of the legislature he was authorized to prosecute his claim in the courts of the state of Nebraska.

The cause was put at issue, and came to trial, a jury being waived, and on March 11, 1898, upon the pleading and evidence, the court found for the plaintiff the sum of $13,521.99, and entered judgment accordingly. The cause was taken to the supreme court of Nebraska, where, on October 5, 1898, the judgment of the trial court was reversed (State v. Kennard, 56 Neb. 254, 76 N. W. 545); and again, on February 9, 1899, upon a rehearing, the same conclusion was reached. A writ of error was allowed, January 17, 1901, and cause brought to this court.

The facts of this case appear, sufficiently for our purposes, in the following extract from the opinion of the supreme court of Nebraska, filed upon a rehearing of the case in that court:

'This is a rehearing of State v. Kennard, 56 Neb. 254, 76 N. W. 545. By § 12 of the cnabling act passed by Congress, April 19, 1864 (13 Stat. at L. 47, chap. 59), the United States donated to the state of Nebraska 5 per centum of the proceeds of sales of all public lands lying within the state of Nebraska which had prior to that time been sold, or which should subsequently be sold, by the United States, after deducting expenses incident to such sale. At the time the state was admitted into the Union a tribe of Indians, known as the 'Pawnees,' occupied in common a tract of lands in this state known as the 'Pawnee Indian reservation.' After the state was admitted into the Union the United States took such steps as resulted in the extinguishment of the rights of these Indians to the lands in this reservation, sold the lands, and, it seems, used the proceeds of the sale to defray the expenses incident thereto in procuring other lands for the Indians elsewhere, and placed the remaining proceeds of the sale of these lands in the United States Treasury to the credit of the Indians. By an act passed by the legislature of the state of Nebraska in February, 1873 (see Gen. Stat. 1873, chap. 59), it seems that the legislature was of opinion that by reason of § 12 of the enabling act the United States was indebted to it for 5 per cent of the value of the lands lying within the state used as Indian reservations, and 5 per cent of the value of all lands on which private parties had located military land warrants and land scrip issued for military service in the wars of the United States, and 5 per cent of the value of all such as had been donated by the United States to railroads.

'It is also recited in said act that the United States had donated to other states swamp and overflowed lands lying within their borders, but that no such donation or allowance of swamp and overflowed lands had been made to this state, and it seems to have been the opinion of the legislature that all the swamp and overflowed lands lying within the state belonging to the United States should by it be donated to the state.

The act under consideration authorized the governor to employ an agent in behalf of the state, to prosecute to final decision before Congress or in the courts, the claim of the state of Nebraska against the United States for the 5 per cent of the value of the lands disposed of by the United States for any of the purposes already mentioned and for the purpose of procuring from the United States a donation of the swamp and overflowed lands within its borders. The act left the compensation of the agent to be agreed upon by the governor and the agent, but provided, in effect, that the agent should not be entitled to any compensation for collecting from the United States any part of the 5 per cent cash school fund which had been donated to the state by the United States by § 12 of the enabling act aforesaid. The governor of the state entered into a contract with Kennard in pursuance of the act of the legislature just mentioned, in and by which he authorized Kennard to prosecute and collect the claims of the state against the nation in conformity with the act of the legislature, and that the state should pay him one half of all moneys, except such cash school...