Delaware State journal and statesman., 1861-11-29
Opinion of Hon. James A. Bavard.
OF WILMINGTON, DEL.
Ropsm5sr ls, 1861.

OF WILMINGTON, DEL.
| have read attentively the opinion Of Mr.. d.
NJ Bates, and concur entirely in bis conclusions.
The Legislature OF Delaware, by the act of
1859, granted the right and privilege to Richard
France and his assigns, to draw Lotteries for
the term Of twenty years, and the consideration
was the payment Of the sum Of $720,OOO, in
seni-annual nstalments Of $4,000 each
The statute required security to be given by
the grantee and TO further insure the payment
of the consideration by him, the right of forgei-
ture was reserved for the benefit oil the State.
Tho form of laguage in which forfeiture for
default in payment by the grantee, is expressed,
matters little, and such construction should be
given as best effects the object for which the
section was inserted that object being to en-
force the payment Of the consideration money
expressed in the grant; it seems clear that a
construction which enables the grantee TO avoid
his obligations under it, by his own default,
cannot be correct.
The default in the payment of any instalment
for thirty days incurs a forfeiture by the gran
tee of the privileges granted but the enforce
ment or waiver of that forfeiture, at the option
OF the State, as a reserved right, seems to he
the rational construction as most beneficial TO
the State, and most in accordance with the
two general intents of the law the grant OF
a privilege for a definite period for the perso-
nal benefit of the grantee, and the payment ot
the money for the purposes ofthe State, as the
sole consideration for the grant Of the privi-
lege.
As the act deputies to no officer the disere-
tion of determining whether the interests Of
the State will be best subserved by enforcing
or waving the forfeiture, that discretion OBJ
viously remains in the Legislature as the gram
ting power.
II would be contrary to all equity to contend
that the Legislature could enforce the lorlei-
ture of the privileges, and yet demand pay
ment of the subsequent instalments. The au-
tborities cited in the opinion OF Mr. Bates,
and many others analogous, leave no question
on this point as to forfeitures in cases of lease
and contracts between individuals, andit would
be difficult to establish different rule Ot
equity applicable to grants made by the the
State.
Suppose a Ferry franchise had been granted
by the State for twenty years, subject to the
payment of sum certain in semi-annual pay
ments, by the grantee, during the TERM with
A clarse of forfeiture of the franchise in
case of default in any sem-annual payment
| for thirty days after it became due. Whether
the grantee had given bond and security for
the future payment OF the sum payable to the
State. would be immaterial us to the forfeiture
but would it admit of question, that II the
State enforced the forfeiture and abrogated
the franchise, it could not in equity enforce
the payment of subsequent instalments, wheh
the right to exercise the franchise in consider
alton of which the sum was payaDle, nau oeen
thus abrogated.
If this be so, then the necessary inference is,
that the default from which the forfeiture ari-
ses leaves it optional with the State to deter
mine the grant or to waive the forfeiture, and
compel the payment of the subsequent install
ments, if deemed most beneficial to its inter-
est Otherwise, If the grantee found the fran
chise less valuable than he anticipated ne
might, by his own default, escape from pay
ments which il would be the interest Of the
State to enforce.
am unable to see any difference in princi-
pie between the grant of n Ferry franchise
where the default in which the forfeiture de-
pends is the nLn payment OF money to the
State, and the grant of a privilege OF drawing
Lotteries, with a right of forfeiture reserved
in case Of non-payment OF money due to the
State under the grant.
The difference in the character of the two
grants is this That the grant of Ferry fran
chise imposes on the grantee public servi-
tude-the duty to the public of transportation
over the ferry by suitable means, and by nom
user such grant might be forfeited under a
quo -warranto for non-pertormance OF public
duty arising under it, irrespective of any re-
served right of forfeiture. But in this case, if
the grant of privilege to draw Lotteries, the
only obligation of the grantee is to pay to
the State the consideration money of the grant
at the times specified, and he may exercise the
privilege or not, as he sees fit; though il he
does exercise it, the further obligation arises
to nav faithfully the prizes which may be drawn.
There is no duty imposed to draw lotteries for
the benefit OF the public, but the privilege
granted is solely for his own emolument
am of opinion, that by default of payment
of the instalment due July LIST, 1861, for thirty
days the Lottery grant to Richard France be-
came subject to forfeiture, at the option of the
State, under the provisions of the fifth section
and that the exercise of that option not be-
l ing delegated in the statue to any officer, ant
being an act of high discretion, II rests witt
1 the Legislature to determine whether the for
9 feiture shall be enforced, and the privilege o
drawing lotteries cease, or whether the for
= feiture shall be waived, and the subsequen
instalments collected from France, his suret.
or his assignee.
Q am also of opinion that the privilege gran
a ted though subject to forfeiture, may be law
o fully exercised by the assignee Of France sine
, the payment of the instalment due July LIST
I 1851, though undoubtedly a Court of Equit
Il would have granted n temporary injunction
+ against the enjoyment Of the privilege willis
:. the overdue instalment remained unpaid un
= ill the Legislature had again assembled an
d determined either to enforce or waive the for
: feiture incurred by non-payment.
d In giving a construction to this statue hav
not regarded the pernicious influence of Lot
IS teries upon public morals, as affecting til
70 construction, because such considerations, how
e ever gravely they may address the lcgislatiy
a power, and whatever weight may be justly at
g tached to them in reference to the proprety {
the original grant, or the exercise of the rigl
l. of forfeiture by the Legislature, would nc
y Justify construction contrary TO the intent {
4 The law, and controvc ing the public policy
,r adopts and sanctions, however erroneous ma
e Individually deem that policy
h j. A. BAYARD.
ct November 1871 1861,