USA > Iowa > Hamilton County > History of Hamilton County, Iowa, Volume I > Part 30
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"That no part of it has ever been laid out in town lots, nor is any of the land adjoining thereto laid off into town lots, but after the severance of said territory there will still be left within the corporate limits of said city more territory un- plotted than is surveyed and plotted into lots, and more than will be needed for that purpose, or than will be used for other than agricultural purposes for gen- erations to come," etc.
Following is a list of the petitioners: A. A. Weaver, C. R. Bamber, Kate L. Howard, J. M. and W. M. Funk, B. F. Funk, J. D. McGuire. T. A. Conklin, Anna Frank, F. W. Entriken, G. W. Lee, Kendall Young, B. Monroe, Talmon Wiltsey, V. D. Bishop, J. S. Donald, J. N. Lyon, A. Cummings, Miller & Buell, J. D. Sketchley, J. H. Lee, D. Eyer, Wm. Greenwood, F. A. Edwards, John L. Richardson, C. A. Brennecke, J. O. Lenning. M. E. Richardson, Josephine How- ard, G. W. Blackwell, Charlie Gerber, Ellen Briggs, C. and E. Briggs, John Landers estate, Peter Yoost, W. S. Weston, A. B. Millard, J. M. Crist and C. C. Dakin.
Efforts were made to effect a compromise, but without avail and when the case was finally tried, the prayer of the petition. was denied. On appeal, the decision of the lower court was sustained.
THE 5,000 MARK REACHED
In 1895. the census returns showed Webster City to be a city of 5.102 popu- lation. Later she lost in numbers and it was nearly fifteen years before she again officially reached the 5,000 mark.
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THE CITY SCALES FIGHT
On December 10, 1895, J. W. Ewing, a grain buyer who had recently come to Webster City from Illinois and whose cribs were located in the west part of the town was arrested on the charge of violating the city scales ordinance, and now was commenced a stubborn fight to test the legality of that ordinance.
An account of the arrest and the reasons for it are given in the Freeman as follows :
THE CITY SCALES CONTEST
Thursday a. m. Mr. Ewing, a gentleman who is here buying corn to crib, was arrested on the charge of violating the city ordinance providing for the weighing of grain sold in the city. Mr. Ewing requested the council to give him permission to weigh grain bought by him on other than the city scales, which request was refused. No doubt Mr. E. violated the ordinance in order to test its validity and The Freeman is glad such a test is to be made. It is currently reported that quite a sum of money has been subscribed by men who are opposed to the present system of weighing in Webster City, and that the case will be fought for all there is in it.
THE PRELIMINARY SKIRMISH
The first round in the re-opened contest over the city scales ordinance took place at the law office of Olmstead & Weaver Thursday night. As above stated, J. W. Ewing was arrested for violating the city ordinance which requires corn and other produce in quantities of over 600 pounds bought or sold within the city limits to be weighed over the city scales, located at the market square. Mayor Young presided. City Attorney Weaver appeared for the city, and George Wambach represented the defendant.
The defendant, Ewing, entered a plea of not guilty.
City Marshal Hathway was sworn and examined. He testified to the effect that the defendant was buying corn and causing the same to be weighed over the scales located at the Crooked Creek R. R. depot. At the conclusion of Mr. Hathway's testimony the city rested its case. The defendant filed a motion to dismiss the case, assigning several reasons therefor, one of which was that the information did not state the amount of corn weighed, and another was that the ordinance was against reason and therefore void. The court overruled the de- fendant's motion. The defendant declining to offer any testimony the court declared the defendant guilty and assessed a fine of $5.00. An appeal was taken to the district court, F. E. Willson signing the appeal bond.
Jesse Donald, a farmer, was also arrested Friday for violating the ordinance in question. He was fined five dollars, which he paid. Mr. Ewing was also arrested again Friday, and had another hearing before the mayor that night.
THE CITY ENJOINED
Sheriff Corbin served a temporary injunction on Mayor Young Saturday, restraining the city from enforcing the ordinance requiring grain bought within
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the city to be weighed on the city scales. The injunction was granted by Judge Birdsall and "a good and sufficient bond"-$1,000 signed by Walter C. Willson and Cyrus Smith-filed to pay such damages to the city as may result because of such injunction. There are no new points involved in the present proceed- ing. It is a well established and fundamental principle of law that a judicial officer cannot be enjoined from discharging his duties, and the statutes of Iowa make it absolutely impossible to enjoin the enforcement of a criminal law. However desirable it may be to have the case again settled definitely, the present action cannot serve that purpose and the ordinance will probably have to be attacked in some other proceeding. In this case George Wambach and J. L. Kamrar appear as attorneys for the plaintiff, and the hearing upon which the temporary injunction was issued by Judge Birdsall at Fort Dodge Friday was entirely ex parte. A hearing on the motion to dissolve the injunction was had before the judge at Fort Dodge last evening. His decision had not yet been made public. In the meantime the city officers will keep tab on those who vio- late the weighing ordinance, to the end that justice may be done when the final adjudication of the case is reached.
Ewing was tried before the mayor for his second offense, found guilty and fined $20.00 and costs.
In the spring of 1896, a proposition was submitted to the people of Webster City to vote a tax for the support of the Public Library, but the tax failed to carry.
The councilmen elected at this time were J. D. Riste of the first ward, H. L. Litchfield of the second, G. H. Daniels of the third, and J. W. Allington of the fourth ward.
THE FIFTH WARD
The arrest of Ewing for buying grain of a farmer without having it weighed over the city scales, renewed the agitation against city scales and it became so strong that after the election of this spring it was evident that the council would be evenly divided for and against that proposition. The "down town" men plainly saw that if some radical steps were not taken, there was possibility that the up town men would secure control of the council and abolish the city scales. To make this impossible, the city council on March 3. 1896, passed an ordinance changing the boundaries of each of the city wards and establishing a new ward known as the fifth ward on the east side of Boone river. The ordinance gave the first ward all of the territory north of Division street and east of Des Moines street ; to the second ward, all of the territory south of Division street and cast of Des Moines street : to the third ward, all of the territory south of Division and west of Des Moines street ; and to the fourth ward, all of the territory north of Division street and west of Des Moines street, except that all of the territory east of Boone river was included in the new fifth ward. As cach ward was en- titled under the law to two councilmen, after the establishment of the fifth ward. the down town people found it an easy matter to control six members of the council while the up town people had to be content with four. The action of the coun- cil in changing the boundaries of the wards and creating a new one, called forth the most bitter denunciation from the up town partisans. Indignation meetings
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were held and speeches of the most scathing nature were made. To offset these meetings the down town people held meetings in which the acts of the council were warmly applauded. The establishment of the fifth ward settled for all time the city scales controversy, so far as its being a settled city policy. But an attack was now made upon the legality of the act of the council in establish- ing the new ward and suits were brought to test the legality of that action. The city council called a special election to elect councilmen from the fifth ward but it was necessary to postpone the election pending the decision in the legal proceedings. In these cases, nearly all the lawyers in town were engaged either for or against the city.
In the meantime the action of the city against Ewing was appealed to the district court and the action of mayor was sustained. It was afterwards appealed to the supreme court and there the action of the lower court was affirmed. The actions to test the legality of the establishment of the fifth ward were decided by Judge Hindman at the December term of court and came as a Christmas pres- ent to Webster City. Below we give the decision :
FINDINGS AND JUDGMENT OF THE COURT
I. This cause being of unusual importance, and several of the questions involved not having been directly passed upon by our courts, I have chosen to take sufficient time to make a full examination of the authorities bearing upon the questions involved as I have been able to find.
2. The exercise of purely discretionary power by ministerial and judicial officers is not subject to review.
3. The city council are elected to their offices on account of their supposed fitness for the positions ; and while their acts may be contrary to the wishes and interests of the electors, still, having entrusted the council with the discretion- ary powers, the citizens are bound by their acts unless there be such an abuse of the powers as to result in a wrong that cannot be fully righted and remedied by the electors at a subsequent election.
4. In a strict legal sense a question of discretion is not a law question. Our statute empowers a city council to increase or reduce the number of wards of a city, and the citizens have full knowledge of this power when they elect their councilmen.
5. The determining whether or not a new ward is needed or shall be es- tablished in the city is exclusively a question within the jurisdiction of the city council, and is a matter for the exercise of their discretion.
6. Upon mature consideration of the law and the evidence of this case, I find that the plaintiff's petition and the relief therein prayed for, must be re- fused, and all staying and restraining orders entered in this case are hereby vacated and set aside; the costs of this case are adjudged against the plaintiff and under the stipulation between the parties entered of record in this case, the plaintiff is given forty-five days to prepare and file its bill of exceptions.
To all of which plaintiff excepts.
D. R. HINDMAN,
Judge of the Eleventh Judicial District of Iowa. Dated, Boone, December 23, 1896.
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The election of Mckinley made it evident that a new postmaster at Webster City would be appointed. The down town people presented the name of Capt. F. E. Landers as a candidate. He was opposed by C. D. Hellen, editor of the Tribune.
The voters of the fifth ward at a special election held in January elected F. R. Mason and C. C. Dakin, councilmen.
A city convention held in February, nominated for mayor, W. C. Burleson; for city solicitor, J. H. Richard; for treasurer. R. E. Jones; and for assessor, C. P. Hide. The ticket was elected without opposition. The councilmen elected were: From the first ward, P. Mathre; from the second ward, G. W. Crosley ; from the third ward, J. W. Lee; from the fourth ward, W. N. Merrill; and from the fifth ward, F. R. Mason. The proposition to vote a library tax was again submitted at this election and was again defeated.
In August, 1897, an effort was made to move the postoffice to the Chase build- ing, about a block east, but it failed, for the inspector sent to investigate the mat- ter recommended the location remain unchanged.
In February, 1898, the city council established a fire alarm system in Webster City consisting of ten boxes. The electrical companies were anxious to secure the contract and proposed to charge $1,400 for the system, but the fire committee of the council, in conjunction with Superintendent Fred Mullen, devised a system that has always worked satisfactorily and installed it at a cost of about $400.
At the March election in 1898, the old members of the council whose terms expired were all reelected without opposition except in the fourth ward. In that ward, S. C. Guthrie was chosen to succeed J. W. Allington.
In 1899, H. A. Crandall was elected mayor; J. H. Richard, city attorney ; H. E. Shultz, assessor; and R. E. Jones, treasurer. The councilmen elected were : From the first ward, C. E. Howard, from the second ward, C. A. Williams ; from the third ward, M. R. Dalbey; from the fourth ward, C. F. Miller, and from the fifth ward, F. R. Mason. Mr. Crandall declined to accept the office and in April, a city convention nominated A. H. Austin to fill the vacancy. A mass meeting was called at which J. W. Lee was nominated as an independent candi- date. At the election held May first, Austin was elected.
CHAPTER XIV
RIVER LAND TROUBLES
THE DES MOINES RIVER LAND GRANT-THE RIVER LAND COMPANY-THE RESOLUTION OF 1861-AN INDIGNATION MEETING-UNITED STATES VS. THE NAVIGATION CO. -THE INDEMNITY BILL.
RIVER LAND TROUBLES
From the first settlement of the county down until 1895, there runs through the history of Hamilton county, a series of contests known as the river land troubles. These troubles became so acute and prejudices were so strong that at times it was not safe for a man representing the River Land company to venture alone and unarmed in the neighborhood of Hook's Point and Homer. The Des Moines Navigation and Railroad Company, a foreign corporation, and certain settlers known as river land settlers were claiming the same lands and since the claimants on both sides of the controversy could trace their title direct to the United States government, it may be well to enquire into the laws and official acts that are responsible for this unpleasant situation.
THE DES MOINES RIVER LAND GRANT
By act of congress, dated August 8, 1846, there was granted to the territory of Iowa, "for the purpose of aiding said territory to improve the navigation of the Des Moines river from its mouth to the Raccoon Forks in said territory, one equal moiety in alternate sections of the public land remaining unsold and not otherwise disposed of or encumbered or appropriated, in a strip five miles in width on each side of said river to be selected within said territory by an agent or agents to be appointed by the governor thereof."
In the meantime the territory was admitted as a state and the grant was accepted by the state government. Agents were appointed and they reported that they had "selected the odd sections." The title to the land having thus been vested in the state, a board of public works was created by the legislature, whose duty it was to dispose of the land and apply the proceeds, as required by the grant.
A question now arose as to the extent of the grant. Some claimed that it only extended from the mouth of Des Moines river to the Raccoon Forks (the present location of the city of Des Moines), while others insisted that the grant extended from the mouth to the source of the river.
In February, 1848, the commissioner for the general land office announced that it was the opinion of his office, that the state of Iowa was entitled to "alter-
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nate sections within five miles of the river throughout the whole extent of the river within the limits of Iowa."
In the meantime the president in a proclamation offering public lands for sale, offered some of the lands north of the Raccoon Forks claimed by the state as parts of the River land grant, to which the board of public works protested, alleg- ing that in view of the opinion of the general land office, the state had let addi- tional contracts for river improvements and that she would be embarrassed by "any impediment to her prospects in this regard."
In December, 1848, the legislature addressed a memorial to congress, claim- ing that the grant extended, not only to the state line, but many miles farther north to the old territorial line and in response to this claim the secretary and the treasurer gave it as his opinion that it extended "on both sides of the river from its source to its mouth, except as to land on the Missouri side of the river in the state of Missouri." Pursuant to this opinion lists were made of the lands claimed, but when, in March, 1850, they were submitted, the secretary of the interior gave it as his opinion that the grant did not extend north of the Raccoon Forks and returned the lists without his approval. The president was appealed to and he referred the matter to the attorney general who announced that the grant ran "the entire length of the river within the then territory of Iowa." But the controversy was not yet settled for after the death of President Taylor, and the formation of a new cabinet, the new attorney general, Mr. Crittenden. gave it as his opinion that the grant "did not extend north of Raccoon Forks."
According to one view, the grant included about 300,000 acres of land, while according to the other view it contained about 1,300,000 acres. As the amount in controversy was large, the state again carried the whole matter to the pres- ident and his cabinet where it was decided that the controversy would have to be settled by judicial tribunal. The secretary of the interior then announced that he was "willing to recognize the claim of the state and approve the selec- tions without prejudice to the rights, if any there be, of other parties," and ac- cordingly lists aggregating 225,616 acres were in this manner approved.
In the meantime some work had been done in the way of river improvement and in regard to this Governor Hempstead in his message to the General Assembly on December 7, 1852, reported as follows :
Referring to a commissioner's report he proceeds, "By this report it will be found that all work, or nearly so, when these officers entered on the discharge of their duties, was suspended. There were no funds on hand and no part of the work was completed. Of the lands below the Raccoon Forks 188,466 acres had been sold, realizing the sum of $235,708.81, all of which had been expended, and there remained only 133,401 acres, worth at $1.25 per acre, $166,752.36. Over and above the money already expended, there was an outstanding debt due the contractors of not less than $65,000 and unliquidated claims for damages of over $80,000 on suspended contracts. The estimated cost of completing the works between St. Francisville and Keosauqua, excluding the canal, was $201,000. Thus showing an absolute deficiency in means to be hoped for from lands lying below the Raccoon Forks, to meet the actual indebtedness and the estimated cost of $108,- 250, aside from claims for unliquidated damages."
The legislature immediately passed an act intended to secure a more vigorous prosecution of the river improvement. A commission was empowered and
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authorized to sell and dispose of any lands "which have been, or hereafter may be, granted by congress for the improvement of the Des Moines river in such manner as they may deem most expedient for the early completion of said im- provement." It was provided that land should not be sold for less than $1.25 per acre and that the proceeds should be used for the payment of debts and the completion of the work as far as practicable. The commission was empowered. if they deemed it necessary or for the best interest of the improvement, to con- vey in fee simple to any individual or company any portion of the land to procure a fund to carry on the improvement, provided however, that no agreement should be made which did not stipulate for at least $1,300,000 to be faithfully expended in the payment of debts and the completion of the improvement to the greatest extent practicable, and that in no event should the state be liable on any contract thus made, but that the contracting party should look alone to the funds belong- ing to the improvement.
THE "RIVER LAND" COMPANY
On June 9, 1854, the Des Moines Navigation & Railroad Company (known by the settlers as the River Land company), a corporation organized under the laws of Iowa, and composed of eastern capitalists, entered into a contract with the state, the material provisions of which were as follows :
The company agreed for considerations named to make and finish the im- provement from the Mississippi river to the Raccoon Forks, the work to be com- pleted on or before July 1, 1858, one-fourth part of it each year, commencing July 1, 1854; to pay all debts outstanding against the improvement December 23. 1853, provided the amount did not exceed $60,000, to meet which liabilities it paid over to the commissioner the sum of $55,000; and on the other hand should be entitled to receive all moneys due to the improvement from the general govern- ment and all claims and demands against the general government, together with various other sums specified and was required to pay from time to time the sal- aries of the commissioner, register, engineer and other officers and employes of the improvement. The state and the commissioners were to sell and convey to the company in the manner and upon the terms therein provided, all of the lands donated to the state for the improvement by the act of congress, remaining un- sold by the state, December 23, 1853, for which the company agreed to pay $1,300,000 in the manner also therein provided. Whenever the company should do work to the amount of $30,000 according to estimates made by the acting engineer, the proper agent of the state was to convey to the company lands be- longing to the improvement to the amount of $30,000 at the rate of $1.25 per acre. deducting 15 per cent to be adjusted on final settlement, and so, as to each suc- cessive estimate of $30,000, until work should be done to the amount of $1,300,- 000, if so much land should remain unsold from and after December 23, 1853. and until the work should be completed. Upon the expenditure of the $1.300.000 and the completion of the work, all of the lands remaining unconveyed, if any. were to be conveyed to the company. All money paid by the company to the register or commissioner of the improvement in the payment of liabilities on account of the former prosecution of the work by the state, was to be deemed expended on the improvement by the company for which the register should convey lands to it at $1.25 per acre, equal to the amount so paid, which amount
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should be included as part of the $1.300,000. For all moneys advanced by the company for salaries and pay of officers, and agents or servants, for rights of way. damages to mill owners, and other matters not covered by actual work done on the improvement, lands were also to be conveyed to it at the stipulated price of $1.25 per acre. The prices for the different kinds of work, according to which the engineer was to make his estimates, and by which the parties were to be governed in the conveyance of lands were specified as far as practicable, and when not specified were to be fixed by the engineer, who was to be appointed by the joint assent of both parties. The work was to be done under the joint supervision of the board of public works and engineers, except as otherwise pro- vided in the contract. The company was to look alone to the funds belonging to and arising from the improvement for compensation, the state in no event to be liable therefor.
In May 1856, the old question as to the extent of the grant again arose and Attorney General Cushing suggested a compromise whereby the state and its assigns were to receive the lands to the state's north line but were to release any claim to land north of that point. As the contract between the state and the navigation company contemplated a conveyance to the company of all the land included in the grant, the company as parties in interest would not agree to the compromise, and it was not made.
About this time, congress granted to the state for the construction of four railroads, alternate odd numbered sections for six miles on each side of each road. One of these roads was the Dubuque & Pacific railroad, and its proposed line ran east and west across the state from Dubuque to Sioux City and crossed the Des Moines river at Fort Dodge. While the railroad grants excepted lands, already disposed of, the Dubuque and Pacific railroad company was not willing to accept an interpretation of the River land grant that would deprive it of several thousand acres of land where the two grants intersected, and it therefore insisted that the River land grant only extended as far north as the Raccoon Forks.
Suit was instituted to test the matter and in December, 1859, the supreme court of the United States in the case of Dubuque & Pacific Railroad Co. vs. Litchfield. Reported in 23, Howard 65, held that the grant did not extend north of the Raccoon Forks.
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