4 S.D. 213 | S.D. | 1893
This is an original action in this court, in which the plaintiff seeks to recover for trees and. shrubbery set-out and planted upon the grounds of the Agricultural College at Brookings, by the plaintiff, under an alleged contract with the board of directors of said college. The complaint set out the organization of the board under the laws of the territory, the making of the contract, its fulfillment by the plaintiff, its breach by the board and its successors and the state of South Dakota, the division of the territory into the two states of North and South Dakota, and the adoption of the college by the state of South Dakota. The defendant demurs on the
, The first question is important, not so much on account of its effect upon this particular case, as because the answer to it must in a measure determine the authority of other public boards and officers, invested by the legislature with similar powers, to bind the state in the making of contracts. The college was located and established by Chapter 3, Laws 1881, of the territorial legislature. By Chapter 2, Laws of 1883, the college was placed under the direction of a “board of regents,” who had “full power to employ a president and all necessary professors and assistants, and prescribe the course of study to be pursued in all the departments of said college, the requisites to graduation, and the degrees to be conferred thereupon, and to do all things necessary to the successful operation of said college.” By Chapter 22, Laws 1885, the management of the college was put under the direction of a ‘ ‘board of directors, ” with the same duties and powers which the abolished board of regents had performed and enjoyed. This was the law in force at the time when this alleged contract was made between the plaintiff and the board of directors. It is claimed by the plaintiff that this board was empowered “to do all things necessary to the successful operation of said school;” that the measure of this authority was to be gauged by their judgment of what was necessary; and that such determination was conclusive. This is too broad a rule by which to measure the authority of public officers as public agents. It must be qualified and controlled by a due consideration of existing and concurrent legislation upon the same subject. The legislature only has the right, and .upon it devolves the duty,,of providing means from the
Plaintiff contends that the subsequent acts of the board constitutes a ratification of the contract, but it is elementary that what the board had no power to do originally it could not afterwardSi make valid or binding by attempted ratification. It
It is further argued by the attorney general that the claim of plaintiff cannot be maintained against the state because it does not appear to have ever been adjusted between the States of North and South Dakota, as provided by Article 13 of the constitution. We do not think this contention is tenable. If it was a valid claim against the territory, it became, upon á division of the territory, a valid claim against either state. This is the settled law in England,' and it has been adhered to in this country., Burroughs, Pub. Sec. 68; Higginbotham’s Ex’x v. Com., 25 Grat. 627. Article 13 of the state constitution was designed to protect each state against claims against the territory