3 S.D. 580 | S.D. | 1893
This case comes before us' on a petition for a rehearing. It was decided at the April, 1892, term of this court, and is reported in 52 N. W. Rep. 1062. The appeal was from an order sustaining a demurrer to the complaint, and the facts are fully stated in the opinion. The action was instituted to recover the sum of $1,800 alleged to have been paid by the assignor of the plaintiff for the grant Of a lease for a ferry, which it is alleged in the complaint, was invalid, because the law under which the same was granted was in contravention of the organic act. This court held — assuming, as contended by counsel for the appellant, that the law of the territorial legislature was in conflict with the organic act — that the mistake as to the validity of the law was one
In order to determine whether or not the position of the counsel has sufficient merit to entitle him to a reargument, we have examined the question and authorities he presents, and have reached the conclusion that his position is untenable, and cannot be sustained. His contention is, as we understand it, that the grant of the ferry lease was either a sale of a chattel interest, or a lease of an incorporeal hereditament, and in. either case there was an implied covenant of warranty, — in the former case of title, and in the latter case of quiet enjoyment by the, lessee of the privilege granted, — and for a breach of this implied covenant he can recover in this action. We are of the opinion that the grant of the lease in question was neither a sale nor a lease of property, incorporeal or otherwise, as usually understood by the use of the term “lease.” The grant was of the right to maintain and operate a ferry over the Missouri river between the city of Pierre and Ft. Pierre, and to collect tolls for transporting persons and property, for a period of seven years, upon the payment of about $1,000 annually. The right to so maintain and operate such ferry and collect tolls is a franchise. It is a right only vested in individuals by grant from the government. It is a sovereign prerogative, and in this country vests in an individual only by a legislative grant; and it makes no difference whether the grant be made directly by the legislature or by a subordinate body to whom the power is delegated; it' is still, a grant emanating from the authority of the state. Turnpike Road Co. v. Campbell, 44 Cal. 89; Charles River Bridge Co. v. Warren Bridge Co., 11 Pet. 536; Tied. Lim. Police
The cases cited by the counsel for appellant to sustain his position have no application, we think, to a case like the one at bar. Mayor v. Mabie, 13 N. Y. 151, was a case where the city leased the privilege of collecting certain wharfage, of which the city was the owner, and the court held there was an implied warrant for quiet enjoyment. It was the lease of an incorporeal hereditament, it is true, but not made by the city as the agent of the state, but of its own city property, and the rents collected therefrom went into the city treasury for city purposes. The cases of Grogan v. City of San Francisco, 18 Cal. 590, and Pimental v. Same, 21 Cal. 351, known as the “City Slip Cases,” were actions brought to recover back money paid for property belonging to the city, to which the title of the purchasers were held invalid by reason of the failure of the city to comply with the law in making the sales. The city owned the property and had full power to convey it in a prescribed manner, which the city failed to observe in making the sale, but it received the consideration and applied it to city purposes; and the court, in their decisions, say it would be manifestly unjust for the city to retain the property and money paid for it also. The case of Hurd v. Hall, 12 Wis. 112, much relied on by counsel, was a case of the sale of school-land certificates held by a private party, which were wrongfully issued by the state-land commissioners. The court held that the purchaser’s “ignorance that said lands had not been offered for resale at public auction by said commissioners (as the law required before new certificates could be is
The case at bar is clearly one — if the contention.that the law was invalid is correct — of a mutual mistake of the parties as to the law. Both supposed it to be valid, and the lease was granted and received upon that theory. If, as claimed by the counsel for appellant, the law was invalid, and the appellant or his grantor did not obtain the privilege he expected under the grant, it was his misfortune, for which the law affords him no remedy. We do not wish to be understood as expressing any opinion as to the validity of the law under which the lease was assumed to be granted. There is nothing, we think, stated in the complaint in this case to take it out of the general principle that when a party, without mistake of fact, or fraud, duress, or extortion, voluntarily pays money on a demand which is not enforceable against him, he cannot recover it back. The lessee in this case was at liberty to take the lease or not, as he saw ñt. A refusal to pay would have resulted merely in his not obtaining the ferry privilege. He could and did use his own judgment as to the validity of the law, and when he decided to take the lease, and pay his money, it was a purely
