USA > Iowa > Boone County > History of Boone County, Iowa, Volume I > Part 32
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Among the worthy physicians and surgeons locating in Boone was Dr. Theodore DeTar. He was a native of Franklin County, Indiana, and attended a course of lectures at the Evansville Medical College. He came to Boone County in 1854 and engaged in practice in Boonesboro. During the Civil war he assisted in recruiting Com- pany D, Thirty-second Iowa Infantry, and was commissioned as captain. At the battle of Nashville he lost his right leg, but was retained in the service until the close of hostilities, when he returned to Boone and resumed the practice of medicine. He was the father of Dr. David N. DeTar, who graduated from the medical depart- ment of Ann Arbor University. He, as his father before him, became prominent in his profession. Both have passed away.
Dr. P. S. Moser was considered one of the best physicians who ever practiced medicine in Boone County. All these worthy pro- fessional men have long since passed to their final account.
Dr. A. A. Deering was another physician who secured a high and enviable place in the ranks of his profession in Boone County. He first settled at Moingona in 1868 and later took up the practice
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and his residence at Boone, where he continued to distinguish himself in the profession until his death, which occurred a few years ago.
Dr. M. Garst first came to Boone County from Champaign County, Ilinois, in 1858. He returned to Champaign County but again took up a permanent residence on a farm near the City of Boone. He had applied his energies for years before coming here to the practice of his profession, but it appears he had discarded medics for the more charming life of a tiller of the soil.
Dr. H. D. Ensign was an Ohioan by birth. He served three years in the Civil war and while residing in La Salle County, Illinois, engaged in the drug business, read medicine and graduated from the Chicago Medical College in 1875. In December of that year he came to Boone and practiced here for many years with great success until his death.
Dr. Robert M. Huntington was a New Yorker by birth. He drifted out West, attended a year's lectures at Hillsdale, Michigan, and from there received his diploma from the University of Missouri in 1861. He was an assistant surgeon in the Confederate service during the Civil war. He went to Kalamazoo, Michigan, after the surrender of Lee and in 1871 began the practice of homeopathy in Boone.
It is difficult to learn the names of all the carly physicians who practiced their profession in the county and it is not the province of this article to mention their names here, for the reason that Judge Lucas, who has ably and interestingly prepared the history of the different townships, has left nothing of historical importance go by him; so that, it would show a repetition here if the various pioncer physicians in the various townships should be given place in this chapter. Another thing, it is not the intention, nor has there been any attempt made in this place, to speak of men of the profession now either in active professional life or living in retirement, for the reason that extended sketches of most of them will be found in the second volume of this work.
CHAPTER XXXIII
THE BENCH AND THE BAR
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lowa has an interesting territorial history. By an act of Congress, approved June 28, 1834, the Iowa country was attached to the Terri- tory of Michigan. On April 20, 1836, it was made a part of the original Territory of Wisconsin, and two years later, on June 12, 1838, Congress passed an act establishing the Territory of Iowa. After eight years of territorial existence, Iowa was admitted to the Union as a state on December 28, 1846.
There really was no judicial districting of the Iowa country during the two years that it formed a part of the Territory of Michigan. However, on September 6, 1834, by an act of the legis- lative council the territory lying west of the Mississippi and north of a line drawn due west from the lower end of Rock Island to the Missouri River was organized into the County of Dubuque. The territory south of this line was organized as the County of Demoine.
Moreover, section three of this act of the Legislative Council of the Territory of Michigan provided that "County Court shall be and hereby is established in each of the said counties;" while section six declared that "Process, civil and criminal, issued from the Circuit Court of the United States for the County of Iowa, shall run into all parts of said counties of Dubuque and Demoine, and shall be served by the sheriff or other proper officer, within either of said counties ; writs of error shall lie from the Circuit Court for the County of Iowa, to the county courts established by this act, in the same manner as they now issue from the Supreme Court to the several county and circuit courts of the territory.
Thus it will be seen that during the Michigan period the Iowa country formed an area which was subject to the jurisdiction of the Circuit Court of the United States for the County of Iowa.
Section nine of the Organic Act establishing the original Terri- tory of Wisconsin made provision for dividing the territory into three judicial districts. Accordingly, among the first acts passed by Vol. 1-23
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the first Legislative Assembly was one entitled "An act to establish the judicial districts of the Territory of Wisconsin, and for other purposes." By this act the counties of Dubuque and Des Moines were constituted the second judicial district and Judge David Irwin, of the Supreme Court of the territory, was appointed district judge. During the Wisconsin period, therefore, the lowa country formed a distinct and independent judicial district.
The first act of the Legislative Assembly of the Territory of lowa relative to judicial districts was one entitled, "An Act Fixing the Terms of the Supreme and Districts Courts of the Territory of lowa and for Other Purposes," approved January 21, 1839. This act divided the territory into three judicial districts. Other judicial districts were subsequently created by the Legislature, the history of which does not add materially to the interest of this article. How- ever, it appears, in the first constitution of the State of Iowa, that the following provisions found a place in that great magna charta, to wit: "The judicial power shall be vested in a supreme court, district courts and such inferior courts as the General Assembly may from time to time establish."
JUDGES OF THE DISTRICT COURT IN BOONE COUNTY
William McKay, of Des Moines, was the first district judge who sat upon the bench in this county, then being in the fifth judicial district.
C. J. McFarland, of Boonesboro, was appointed a judge in this district in 1854 and was elected to fill the office in 1855; but his election was contested. The district then included Marion, and in that county the ticket had his initials transposed. Upon this techni- cality the votes were rejected upon the final count, which declared William W. Williamson elected. McFarland contested and the Supreme Court of lowa sustained the contest. He continued as judge four years. The district was then changed in number to the eleventh and this county has continued to remain in the eleventh judicial district to the present time.
In 1858 John Porter, of Eldora, was elected, and was reelected in 1862, but resigned and D. D. Chase, of Webster City, was appointed in his stead in 1866. He was elected twice thereafter.
1. J. Mitchell, of Boonesboro, was elected in 1874; James W. McKensie, of Hampton, was elected in 1878; Henry C. Henderson, of Marshalltown, was elected in 1882; D. D. Miracle, of Webster
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City, was elected in 1886; John L. Stevens, of Ames, and Silas M. Weaver, of Iowa Falls, were elected at the same time. The district was at this time and thereafter under the jurisdiction of three judges.
D. D. Miracle had been one of the judges of the Circuit Court when it was abolished, and in the act disposing of this court it was provided that all the circuit judges whose terms of office had not expired should be district judges in their respective districts for the balance of the term then to be completed. Judge Miracle died before his term expired and David R. Hindman, of Boone, was appointed in 1888 in his stead. He was elected to the office in 1890 and reelected in 1892.
John L. Stevens was reelected in 1890 and resigned. M. B. Hyatt, of Webster City, was appointed, in 1893, in his stead; Silas M. Weaver was appointed and reelected three times.
J. R. Whittaker, of Boone, was elected in 1898.
Benjamin P. Birdsall, of Clarion, Wright County, was elected in 1892 and reelected in 1896. He resigned in 1898 and William S. Kenyon, of Fort Dodge, was appointed to take his place. He was elected in 1899 and served until 1902.
J. H. Richards, of Webster City, was elected in 1901 and was reelected ; W. D. Evans, of Hampton, was elected in 1902 and was re- elected, but resigned; R. M. Wright, of Fort Dodge, was elected in 1906 and was reelected; C. G. Lee, of Ames, was elected and re- elected ; Charles E. Allbrook, of Eldora, was elected in 1908 and was reelected in 1910; John M. Kamrar, of Webster City, was appointed in 1914, Lee having resigned.
CIRCUIT JUDGES
In 1867 a. circuit court was created in the eleventh judicial district, divided so that Boone County became part of the first circuit. Henry Hudson, of Boone, was elected for four years. At the end of that time the circuit courts were consolidated and in 1871 John H. Bradley, of Marshalltown, was elected and reelected, but in 1886 the Circuit Court was abolished to take effect January 1, 1887, and Judge Miracle served out the balance of the Circuit Court term as district judge.
THE DISTRICT COURT
It is a matter of fact and the records show that at the time of the organization of Boone County, or to be more explicit, the first term
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of the District Court held in Boone County, was in the month of October, 1851. It was the fortune of Boone to be a component part of the fifth judicial district, in which it remained until the creation of the eleventh district in the winter term of the General Assembly in 1866.
FIRST TERM OF THE DISTRICT COURT
The first term of the District Court held in the County of Boone, State of lowa, was convened on the 6th day of October, in the year 1851, Judge William McKay on the bench.
It will not be out of place here to digress and quote George W. Crooks, who is at this time one of the oldest living members of the local bar. To inform the writer of this work and in this connection, Mr. Crooks, in speaking of other things, gave out the following facts, adding very largely to the history of Boone County's bench and bar. In substance he had this to say upon request : "In the early days of lowa, the judicial districts of the state were so conformed as to necessarily embrace a large number of counties. When Boone was organized it was placed in the fifth judicial district, which em- braced the counties of Webster, Marion, Polk, Dallas, Madison, Warren, Jasper, Story and Boone. The courts were held in some of the counties twice a year and in others sometimes, but not always, once a year.
In those primitive times, notwithstanding that Iowa had reached the pinnacle of her first ambition, in becoming a member of the Union as a state, still being in her infancy clothes and with nothing but the resources, bountifully laid at her door by a gracious Creator, had within her boundaries men not only of daring proclivities, hardi- hood and a will to do, but also among them were characters who subsequently attained national reputation. Boone was very for- tunate in getting a share of these master minds, many of whom became the nucleus of the Boone County bar, and started on a career that has always stood out prominently as a landmark of local history.
The first case tried in Boone County before the District Court, as has before been related, came up for judicial disposal in October, 1851. It was in the matter of William A. Jordan vs. Jonathan Boles, an action in debt, which was dismissed at the cost of the defendant. A similar case was that of David Noah against Lewis Rinney, which was decided in favor of the plaintiff.
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James W. Lacy was sheriff of the county. He had been in- structed under legal forms by the judge of the court to issue his subpoenas for a grand and petit jury. His returns, as shown by the records, are as follows for the grand jury : Jefferson Hoffman, James M. Carson, William Dickinson, Solomon Smith, James Hull, Amos Rose, S. Z. Tomlinson, William Enfield.
The record makes it clear that the sheriff was not successful in bringing into the court a sufficient number of jurors under the panel, so that he was put to the further trouble of supplying the deficiency, which was filled by the selection of certain bystanders in the court- room, who answered to the names of D. F. Hamilton, David Noah, William Ball, William Thomas, W. D. Parker, William Payne and S. Y. Godfrey. S. Z. Tomlinson was selected as foreman and this first inquisitorial body legalized to act in its official capacity after having received instructions from the court retired for delibera- tion under the charge of James Corbin, bailiff. No attorney having been elected to represent the county and the State of Iowa, Madison Young was appointed by Judge Mckay to act in that capacity, and it was during this first term of court that Wesley C. Hull, having been presented to the court and certified that "He is of good moral character and possesses the requisite qualifications for an attorney at law, signed by P. M. Cassady and B. Granger, Esquires, heareafter appointed by the court for that purpose, it is therefore ordered that Wesley C. Hull be admitted to practice as an attorney at law and solicitor in chancery in this court," whereupon Mr. Hull appeared to take the required obligations as an attorney at law and was duly admitted.
Perhaps no body of men, not excepting the clergy, may exercise a greater influence for good in a community than those who follow the profession of the law, and it must be admitted that to no other body, not even to the so-called criminal classes, are committed greater possibilities for an influence for evil. What that influence shall be depends upon the character of the men who constitute the bar of the community-not merely on their ability or learning, but on their character. If the standard of morality among the members of the bar is high, the whole community learns to look at questions of right and wrong from a higher plane. If the bar, consciously or uncon- sciously, adopts a low standard of morality, it almost inevitably contaminates the conscience of the community. And this is true not only in the practice of the profession itself, not only because of the influence of members of the bar as men rather than lawyers, but in
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the effect upon other professions and occupations to which the bar acts as a feeder. The members of the Legislature are recruited largely from the legal profession. How can legislation, designed solely for the welfare of the public, be expected from one whose honor as a lawyer has not been above suspicion? And since lawyers, outside of the Legislature, have a great influence in shaping the law. how can the people expect that influence to be exerted in their behalf when the bar itself is unworthy? Still more does the character of the bar effect the judiciary, which is supplied from its ranks. It is not always, perhaps not generally, the case that members of the bench are chosen from those lawyers who have attained the highest rank in their profession. If a judge be industrious and honest, but not of great ability, or if he be able and honest, though lacking industry, the rights of the litigants are not likely to suffer seriously at his hands. But there have been instances where judicial office was bestowed solely as a reward for political service; and while it is sometimes realized that one who has been a strenuous and not too scrupulous politician up to the moment of his elevation to the bench, has thereafter forgotten that there was such a trade as politics and has administered justice without fear or favor, the experiment is a dangerous one. No one need be surprised if in such a case the old maxim holds true : "He who buys the office of judge must of neces- sity sell justice." Let our judges be men who are subject to other influences than those of the facts submitted to them and the law applicable to those facts, let them lack that independence which is an imperative requisite to one who holds the scales of justice, let a well founded suspicion arise that their decisions are dictated by some- thing outside of their own minds and consciences, and the confidence of the people in the maintenance of their rights through the agency of the courts is destroyed.
It has been the good fortune of the City of Boone and the County of Boone that the members of the bar here have been, for the most part, men of high character as well as of ability and learning, so that its bar has won a high and honorable reputation throughout the rest of the state, and because of the high character of the bar it has followed that those of its members who have been elevated to the bench have enjoyed the confidence and respect of the public and have been honored not only in their own locality but in many cases throughout the state and in other states.
Yet the preparation of a history of the bar, so far at least as that part of it which lies back of one's own generation is concerned, is
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attended with considerable difficulty. Probably few men who in their time play important parts in the community or even in the state or nation, leave so transient a reputation as lawyers do. A writer on this subject who took for his text, The Lawyers of Fifty Years Ago, said : "In thinking over the names of these distinguished men of whom I have been speaking, the thought has come to me how evanescent and limited is the lawyer's reputation, both in time and space. I doubt very much if a lawyer, whatever his standing, is much known to the profession outside of his own state." Those who attain high rank in the profession must realize that with rare excep- tions, their names are "writ in water." One may turn over the leaves of old reports and find repeated again and again as counsel in different cases the name of some lawyer who must have been in his time a power in the courts, only to wonder if he has ever seen that name outside of the covers of the dusty reports in which it appears. Hamil- ton, in the conventions, in the Federalist and in the treasury, and Webster in the senate and in public orations, have perpetuated and increased the fame of lawyers Hamilton and Webster, but were it not for their services outside the strict limits of their profession, one might come upon their names at this date with much the same lack of recognition as that with which one finds in a reported case the names of some counsel, great perhaps in his own time, but long since forgotten.
And there is another difficulty in preparing such a history as this, brief and therefore necessarily limited to a few names, and that is that some may be omitted who are quite as worthy of mention as those whose names appear. It is not often that any one man stands as a lawyer head and shoulders above the other members of the pro- fession ; and the same may be said of any half dozen men. In many cases the most careful measurement would fail to disclose a difference of more than a fraction of an inch, if any. Lives of eminent men who have at some period been practicing lawyers, have contained the assertion that while they were engaged in the practice of their profession they were the "leaders of the bar," but there is almost always room for doubt as to whether the title is now a brevet bestowed by the biographer alone. Therefore, the mention in this article of certain lawyers must not be taken as any disparagement of those who are not mentioned, and finally, it is to be observed that this article, so far as the bar is concerned, will treat not only of those members who are past and gone, but will make mention of some of those now in the flesh.
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It is our province in this relation, as a matter of studied sequence, first to contemplate and in a desultory though careful manner, neces- sarily from want of space, to pass upon the men who distinguished themselves, and the bench and bar, in the judicial districts of which Boone County has been made a component part.
FIRST LAWYER IN BOONE
The first practicing lawyer in Boone County was Lewis Kenney, who came to the county from Ohio about 1848 or 1849. He was a fairly well prepared lawyer, but in the course of his practice was more inclined to rely upon technicalities than upon the merits of the case at the bar, hence he was not a very successful attorney.
The first lawyer to be admitted to the bar in Boone County was Wesley C. Ilull, who was admitted in October, 1851. He came to the county from Terre Haute, Indiana, practiced for a short time in Boonesboro and then removed to the State of Oregon.
The third attorney was Cornelius Beal, who came here about the latter part of the year 1851 or first part of 1852. He was fairly well prepared for his profession and was regarded at that day as an average lawyer, in the matter of practice. From that on for several years there was not a case of importance tried in Boone County but what Mr. Beal was in some way connected with it.
The next lawyer to come to the county was C. J. McFarland. He came from Mount Vernon, Ohio, in 1852. He was well educated and well informed in matters of law. He was a very fair trial lawyer. He was subsequently elected district judge and served four years, if not longer.
The next lawyer was John A. Hull, father of the present John A. Hull, attorney, in this city. He was from the time he entered the practice up to the time of his death regarded as one of the best attor- neys at the bar of Boone County. He was a man of very bright mind and was able to take in the issues of the case very readily. There never has been a lawyer who practiced in Boone County who excelled him in matters of the practice of law. He was able to present his theory of a case to a jury in a forcible manner and could induce the jury to adopt his theory in the case more than any man who practiced in the county. He died about 1887.
H. W. Hull, the son of the pioneer of 1846 and first white child born in Boone County, prepared himself for the practice of law, becoming a member of the bar when about thirty years old. He was
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fairly well versed in the law, but he was unable to apply the principles of law to a given set of facts and hence was not a very successful lawyer, too many times taking a wrong view of the law that applied to the facts of his case. He never made the law business very profit- able to himself, but remained in practice until about four years ago, when he died.
Isaac J. Mitchell, who was admitted to the bar about 1854 or 1855, came here from the State of Indiana. He was an extraordinary advocate before a jury. He was not so proficient a trial lawyer as Mr. Hull, but was able to make himself understood in a presentation of facts and the law.
C. W. Williams was from Ohio. He was admitted to the bar about 1857. He was a fairly well prepared attorney and was able to command a fair share of the practice. He was captain of Company D, Sixteenth Iowa Regiment, from the time of his enlistment in the latter part of 1861 until the close of the war. He practiced here after his return from the war, with about the same success.
N. W. Dennison, who came from Ohio, was also editor of the Boone County Democrat. He was a man with more than ordinary preparation for his profession and tried his suits upon the matter of justice and equity, never attempting to win a case upon technicalities, but only after a thorough investigation of facts and to obtain justice for his clients, if his client was entitled to win the case.
V. B. Crooks did but very little practice in this county. He moved to Greene County and practiced in Jefferson. He died in 1 863.
L. J. Mechem came from Kentucky. He was as well a prepared attorney for his profession as there was at that time at the bar of Boone County. He was strict and honorable in all matters of every kind. He remained here but a short time, going back to Kentucky, where he died a short time afterward.
About 1855 Richard Ballinger engaged in practice at the bar of Boone County. He was a man of more than ordinary intelligence, a smooth, nice appearing gentleman, careful in all his matters of busi- ness, social relations, etc. He was the father of Richard Ballinger, who has since been commissioner of the land office at Washington.
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