USA > Iowa > Louisa County > History of Louisa County, Iowa, from its earliest settlement to 1912, Volume I > Part 27
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TILDEN POUN
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for our money. Yet the bondholders want us to vote 'yes' and having adopted their compromise law they expect us to issue them new and valid bonds for their old and doubtful ones, with all the accrued interest."
In the litigation connected with the payment of these railroad bonds from beginning to end, the board of supervisors employed many able lawyers and did everything in their power to prevent the payment of the bonds. D. C. Cloud, of Muscatine, perhaps had more to do with the defense of these cases on the part of the county than any other one lawyer, and the following article from him, written to the Chicago Post, contains much interesting information and shows the position taken by the county at the time. We take Mr. Cloud's article from the Wapello Republican of December 26, 1869:
"As the attention of the public is at the present time somewhat engaged in discussing the apparently belligerent attitude of the people of those counties in the state of Iowa who issued their bonds to railroad companies, and as we are neither nullifiers nor secessionists, nor even repudiators, permit me to attempt to give what I understand to be our position. To do this intelligently, I must go back to the time of the issuing of the bonds. Prior to the year 1853 it was a question frequently discussed in all those parts of the state where the people expected railroads to be constructed, as to whether municipal corporations could aid in their construction. Most all those persons who pretended to any legal knowledge contended that such power did not exist : that it was expressly denied or withheld by the constitution of the state and that there was no statute author- izing it. About this time a case was made in Dubuque county, and report said that our supreme court had decided that the power existed under the constitu- tion, and that Section 114 of the Code of 1851 gave the corporations power to subscribe stock to railroad companies. I say report said so, for in fact no opinion was filed with the clerk of the court as provided by statute, nor was it ever seen until it appeared in 4th Greene's Reports, published in 1858. When this volume was published it contained an opinion by the majority of the court in favor of the authority. Nearly all of the bonds ever issued in this state were issued and negotiated before any opinion or decision was written, filed with the clerk of the court, or published : consequently, those who took the bonds from the railroad companies did so upon mere report as to what the court had decided, and did not act upon any knowledge derived from an adjudication of the question involved; in other words, they were not 'innocent purchasers.' I do not know fully the history of the issning of these bonds, save in one or two counties. Louisa county subscribed $100,000 stock to the Philadelphia, Fort Wayne & Platte River Railroad Company in 1856, at a time when the nearest point upon which any work was being done on said road was at least two hundred miles distant. Yet in order to get possession of the bonds of this county, the company began work in the county, called for and got the bonds of the county as fast as they could, and so soon as they had got the full amount. suspended work, and until the present time have done nothing on the road. They disposed of the bonds for a small consideration (some as low as twenty- three cents to the dollar), and the county got nothing for them. The railroad company guaranteed the payment of principal and interest of the bonds, and put the proceeds in their pockets. Muscatine county issued bonds to the amount
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of $150,000 to the Mississippi & Missouri Railroad Company in January, 1854, under the following circumstances: The company organized as a corporation under the laws of Iowa to build three divisions of their railroad in Iowa. The first division extended west from Davenport via Iowa City, the second from Muscatine west to the Missouri river, and the third extending from Muscatine to Cedar Rapids.
"The proposition whether the county should aid in the construction of the second and third divisions of this road by subscribing $150,000 stock was sub- mitted to the voters of the county in October. 1853, and the vote being in favor of the proposition, the county judge issued the bonds to the above amount. These bonds were issued and sold, upon the guarantee of the company, before any decision of the supreme court was written or filed, and did not upon their face refer either directly or indirectly to the authority under which they were issued to aid in the construction of the railroad. They simply recited that the county owed George C. Stone, or bearer, the sum of $1,000 (that being the amount of each bond) for money borrowed, and that the faith of the county was pledged for the payment of the interest and principal, as they matured. neither the second nor third divisions of the road were ever built, yet our bonds were taken and sold, and we are called upon to pay them.
"Many of the other counties were swindled as badly and some even worse than those above named.
"Owing to a diversity of opinion in the different courts, we have got into an unsettled state upon this bond question. The first decision of our state supreme court that was filed and published was the case of Clapp vs. Cedar county, 5 Iowa, page 15. In that case a majority of the court decided in favor of the validity of the bonds, because of the decision of the Dubuque case, but say they had not yet seen the opinion in the case ; but, as it had been decided, they would adhere to that decision, and, at the same time, state that the authortiy to sub- scribe stock to railroads was not conferred by Section 114 of the Code of Iowa (the section that Judge Greene when he published his fourth volume, decided did confer the power). This decision was made in 1857, and after most of the bonds of the different counties had been negotiated. Following this decision some three more were made of the same import in 1858 and 1859. All of these decisions were made by a divided court, one of the three judges ( Judge Wright) dissenting. Following these decisions, commencing in 1859, the supreme court of this state rendered some six of seven decisions reversing former decisions, and deciding that the power did not exist under the constitution of the state, nor had the legislature enacted any law by which these municipal corporations could become stockholders in railroad companies. These decisions were made by a unanimous court, and have become the fixed and settled law of the state, and were made before the question was passed upon by the United States su- preme court. The case of Gelpeke vs. the City of Dubuque ( Ist Wallace. page 175). is the first in which the United States courts decided adversely to the decisions of our state courts, and we think that decision unjust and in conflict with the laws of the United States, and the rule of decisions as established by that court. In the case of Leffingwell vs. Warren, decided but one year before the Gelpeke case, Justice Swayne .in the opinion of the court, says, that in
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questions arising under state laws, the United States courts will follow the de- cisions of the state courts; that such decisions are as binding upon them as the text, and that when state courts change their decisions, the United States courts would follow the last settled decision (I do not quote verbatim, but give the substance).
"In the Gelpeke case Justice Swayne, while he recognizes the rule in the case of Leffingwell vs. Warren, says: 'It cannot be expected that this court will follow every such oscillation, from whatever cause arising, that may possibly occur.' In other words, he calls the first decisions made by a divided court, at one time, based on the ground, and then on a new and distinct ground, without harmony or order, 'settled decisions,' and calls the uniform and unanimous deci- sions of the state courts for a number of years, decisions that are in harmony with the constitution and laws of the state oscillations, and refuses to follow them as we think, in violation of the express law of congress enacted in 1789, and now in full force. We are now in an oscillating situation. On the one hand we have the decisions of our courts against the validity of these bonds; on the other, the United States courts in favor of the validity of the bonds, with writs of man- damus coming thick and fast. The edict of this court has gone forth and we are commanded to pay whether we can or not. The United States court is send- ing its officers among us, commanding us to submit, and threatening us with the military power of the government if we do not yield. Some of us have resolved to adhere to the decisions of our state courts, believing that some rights are still left to the states, and that under the laws of the United States even the supreme court must respect those rights, and while we do not expect to secede from the Union, or arise in our majesty to resist forcibly the power that is crushing us to the earth, we do expect to use all legal means we have in the vindication of our rights. We will resist as long as we can, and if we must pay in, will get off as cheaply as possible. We do not recognize the debt as just ; we claim to have been swindled; we do not look upon ourselves as repudiators, but claim that the bonds having been obtained by fraud, and sold and guaranteed by the railroad companies, the holders of those bonds should look to the companies with whom they have dealt for their pay. By order of the United States courts, taxes have been levied in some of the counties as high as six per cent. We cannot pay them. If we cannot get rid of these levies, of course property will be seized and effort made to sell it. We do not intend to purchase each other's property. The bondholders must purchase, and as they leave our counties with a long train of lame and blind horses, worn out mules, no-horned cows, old wagons and steers, with a few old threshing machines, and other articles too numerous to mention, they will probably feel disposed to sell out at a discount, or should they attempt to sell real estate (which they cannot do if there is per- sonalty), they will not find it possible to prosecute a suit in each in lividual case. Our position is to defend as long as we can ; and if no satisfactory settle- ment can be had, then by all lawful means to retard and prevent the collection of these unjust judgments, in the hope of being able to compel such a settlement as we can accept, and not without a faint hope that the supreme court of the United States, as it oscillates from one position to another, may oscillate so far as to decide in accordance with the settled decisions of our own courts, and
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relieve us from the oppression resulting from fraud in the first instance, fol- lowed by unjust decisions of courts."
In this paper there is much other literature on this subject, some of which will be of interest as indicating the rather curious legal positions taken at that time. The following is an extract from an article in reply to the article of Andrew Gamble which we have heretofore given: "Again we are admonished to pay such judgments and bonds for the reason 'that these debts are a lien upon every foot of land in Louisa county.' That proposition is startling, and may have induced some persons to pay who otherwise would have not. It is equally as absurd as startling. Let us see : Who are these judgments against ? Louisa county. To whom must these judgment creditors look for their money? Louisa county. Who owns the land and town lots in this county? Surely Louisa county does not own every foot. Louisa county may own some swamp land and upon that the lien may exist, but on no more."
The same paper contains the position of Hon. Rush Clark, of Iowa City, who at a railroad bond convention held at Muscatine a short time before that had delivered one of the principal addresses. This convention, by the way, was attended by delegates from eight counties, viz: Lee, Muscatine, Johnson, Washington, Louisa, lowa, Poweshiek, Jefferson and Cedar, and was presided over by J. B. Grinnell, governor, and Samuel J. Kirkwood was chairman of the committee on resolutions. Among other things Mr. Clark said: "We are told the courts have disposed of this question and decided against us, but resting on the merits of the question, we deny that judgments by the federal courts are a lien upon the property of citizens. The judgments are conclusive as to corporations, but not as to citizens ; as to county or city, but not as to people. Private property is safe from the debt of a municipal corporation. It is the same as a creditor saying that if he cannot collect what A owes him he will col- lect from B. His neighbor. the bondholder, took the worthless bonds from the county and city in their own trust and now demand that individual taxpayers shall pay it. Let them take the property of the county. What if that property is exempt from execution? The bondholders should have thought of that when they took the bonds. We are not counties-I am not Johnson county. There is a refuge for the people which we should have and will have if we stand firmly by our rights."
The Muscatine convention before referred to declared that the recent de- cisions of the federal courts involving railroad bonds seemed "subversive to the authority and dignity of our state courts, and dangerous to the rights and privileges of the citizens of the states if not positive and unwarranted encroach- ments upon the jurisdiction of the state courts, and recommended the payment of all taxes except the railroad bond tax, and a refusal to pay that until all legal and practical remedies were exhausted."
The voters of the county at the election on December 29, 1869, refused by an overwhelming majority-almost unanimously-to accept the proposition to settle the bonded indebtedness under the recent act of the legislature, the people resting in the belief that the federal courts either could not or would not enforce the payment of the taxes. This belief had been strengthened by reason of the fact that in the early part of the year 1869 or perhaps earlier, an application had been made to the federal court in a case concerning Washington or John-
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son county bonds for the appointment of a commissioner to levy and collect the taxes, and this application had been heard in Des Moines by Supreme Court Justice Sammuel F. Miller, and overruled, and it was hoped that the United States supreme court would take the same view of it. But this hope was ground- less. The United States supreme court reversed Justice Miller's decision, and as a result the United States marshal was sent here and began the collection of the taxes. After he had collected some taxes ( we have not been able to ascer- tain just the amount, but believe it to have been about $6,000) the marshal de- parted. As this is the only case in which a "foreign" officer has ever been sent to collect taxes in this county, the notice issued by the United States marshal at that time was published in the papers of the county will doubtless be of interest :
"To the Taxpayers of Louisa County :
"The undersigned has been appointed by the U. S. Circuit Court at Des Moines to collect the tax levied to satisfy certain judgments in favor of Francis Fellows and Adolph Knipper. I can be found at the County Treasurer's Office, where all persons who have neglected to do so are requested to call and pay their R. R. tax. These taxes bear one per cent a month for the first three months after the Ist day of March, two per cent a month for the second three months, three per cent a month for the third three months, and four per cent a month thereafter until paid. And the Court has directed me to collect from the delinquent taxpayers my costs and the costs of the Court.
"The late period at which this order has come into my hands will prevent me from making personal demand or selling personal property, except in those cases where the taxpayer has no real estate. The real property of all persons who fail to pay their taxes will be duly advertised and sold.
"G. W. CLARK, "U. S. Marshal. "By J. S. CLARK,
Deputy.
"WAPELLO, Ist July, 1870."
The matter was arranged so as to dispense with the presence of the United States marshal and to have the taxes collected in the ordinary way by our county officials. This arrangement was largely brought about my Andrew Gamble, Francis Springer and W. S. Kremer on the part of the county, and Grant & Smith, of Davenport, attorneys for the principal bondholders. The people gen- erally began to pay these taxes in August, 1870, and the greater part of them were paid by December, 1873. The amount of taxes paid for these Air Line bonds from November, 1869, to January, 1879. amounts to $275,806.25.
The following report made by County Auditor Allen, in June, 1870, shows the expenses of the litigation that had been paid at that time and an estimate of those still unpaid :
"To D. C. Cloud for Atty. fees $1,241.50 To Henry O'Connor for Atty. fees. 324.50
To C. H. Phelps for Atty. fees 224.49
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To D. N. Sprague for Atty. fees. 500.00
To Tracey & Hurley for Atty. fees 175.00
To J. Tracey for Atty. fees. 325.00
To J. S. Hurley for Atty. fees. 340.00
To Bird & Sprague for Atty. fees. 25.00
To G. B. Corkhill, Clerk U. S. Court. 571.80
To G. W. Clark, U. S. Marshal .. 192.00 Expenses of Board in attending U. S. Court and Special Sessions. . 1,463.00
Costs Pd. in Case of Bolter vs. County 173.28
Total Paid $5.555-57
Amount of Court & Atty. fees now due and unpaid estimated at. $1,000.00
Total costs $6.555:57
"Respectfully submitted, "WVM. G. ALLEN, Co. Auditor."
Another item of expense is the taxes originally levied in 1856, 1857, 1858 and 1859, for the payment of the interest on these bonds. The amount collected in taxes then was about $16,299.70. The total cost of our Air Line railroad experience therefore was about $298.665.52.
Here we close a subject which has been both interesting and expensive to the people of this county. At the time the road was first proposed a great majority of the people were anxious to aid it because they believed in it. After it failed. the great majority of the people of the county criticised and condemned many of the men who had been instrumental in furthering the project. Looking at the matter from this distance and considering the immense benefit that would have accrued not merely to Wapello and to Burris City, but to the entire county, by the building of this road, the men who favored it were partly in the right. We know now, however, and have learned it at a great cost. that it would have been better to listen to the voice of those who pointed out the fact that the enterprise did not have sufficient capital behind it, and who were anxious that the obligations of the county should be issued in such a way that they would only be payable in the event that the county secured the railroad.
CHIAPTER XIV.
OUR COURTS AND LAWYERS.
FIRST COURT-JUDICIAL DISTRICTS-JUDGES-SOME EARLY LAWSUITS, ETC .- LOUISA COUNTY LAWYERS.
The act of congress, approved June 28. 1834. attached what is now Iowa to the territory of Michigan, for the purpose of temporary government ; and on Sep- tember 6th of the same year, the legislative council of Michigan divided what is now Iowa, into two counties, Dubuque and Des Moines, and these counties were made subject to the jurisdiction of the United States circuit court for Iowa county, Michigan Territory. This Iowa County was east of the Mississippi, and had no relation to what afterward became Iowa Territory.
The organic act of Wisconsin Territory, approved April 20, 1836, by which the Iowa country was made a part of Wisconsin Territory, provided for a division of Wisconsin Territory into three judicial districts. And accordingly by an act approved November 15, 1836, the Wisconsin territorial legislature established the judicial districts and made the counties of Dubuque and Des Moines con- stitute the second judicial district, and provided in the same act that Judge David Irvin of the supreme court should perform district court duties in the second district.
As we have already seen in Chapter VII, Judge Irvin held the first court in Louisa county in April, 1837. He also held another term of court in the spring of 1838. By the organic act of the territory of Iowa, approved June 12, 1838, it was provided that the territory should be divided into three judicial districts and that temporarily, and until otherwise provided by law of the legislative assembly, the governor should define the judicial districts of the territory and assign the judges who should be appointed for such territory, to the several districts, etc.
The first establishment of judicial districts in the territory of Iowa was made July 25, 1838, by the proclamation of William B. Conway, signing himself as "Acting Governor of the Territory of Iowa." Mr. Conway was at that time the duly appointed and qualified secretary of the territory, and had arrived on the scene of action before the newly appointed governor, Robert Lucas, and hence, Mr. Conway took it upon himself to "start things" in his own way. Mr. Conway's proclamation defined the judicial districts of the territory and the assignment of judges of the supreme court to their respective districts. Under this proclama- tion the second district was composed of the counties of Scott, Musquitine, Louisa, Slaughter and Johnson, and Judge Joseph Williams was assigned to hold district court therein, and the court term in Louisa county was to begin on the third
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Monday in October. Afterward, on January 21. 1839. the judicial districts of lowa Territory were established by the legislature, and the second district was composed of the counties of Louisa, Muscatine. Cedar, Johnson and Slaughter. with Linn county attached to Johnson, and with Jones county attached to Cedar for judicial purposes. Shortly after this the name of Slaughter county was changed to Washington.
We insert here the sketch of Judge Joseph Williams, taken from the pamphlet "Our Judges," written by George Frazee, Esq., of Burlington :
"Of the early history of Judge Williams I have not been able to obtain any information. Presumably he was a native of Pennsylvania, since he was ap- pointed from that state one of the associate judges of the territorial supreme court by Van Buren in 1838, came to Iowa to assume the duties of that position and became a resident of Bloomington, the name of which has since been changed to Muscatine. At that time he must have been of middle age, since, when I first became acquainted with him in 1849. he seemed to be verging on the downhill side of life.
"At that time the territory was divided into three districts, the southern, mid- dle, and northern. one of the judges residing in each, and individually presiding over the district courts held therein, from which appeals could be taken to the supreme court composed of the three sitting in bank presided over by Chief Jus- tice Charles Mason. All of these three were democrats, and that party being dominant at Washington during the territorial existence except during the short period of President Harrison's incumbency, all of the three, though appointed for terms of four years, were twice reappointed, once by Tyler, who, though elected by the whigs to the vice presidency, had gone into the ranks of the op- posite party, and secondly, by President Polk. The Hon. T. S. Parvin tells us how the last appointment was secured. Judge Williams, upon the accession to Polk and change of administration, fearing that he might be superseded, started for the capital himself to do what he could towards averting that danger. Of course he went by the only feasible route of those days, by river to Wheeling or Pittsburg, and thence by stage and perhaps partly by rail to his destination-a long and tedious journey. On the way he fell in with a lady, whose destination was the same as his own, with whom he made a traveler's acquaintance, without learning her name, and to whom in the course of conversation he communicated the purpose of his journey. The Judge was eminently social, running over with anecdote and repartee, and especially gallant towards the ladies. These qualities interested the lady, as well as others. On reaching the capital they parted, and a day or two afterwards the Judge called upon the President with the purpose of urging his re-appointment. He was received with manifest favor, and on stat- ing his errand was promptly assured that his desire should be gratified. The President then told him that he wished to introduce him to a lady, who in a few minutes entered the room, and who, to the Judge's surprise, proved to be Mrs. Polk, who, it seems had made her husband acquainted with his attentions on the way, and the favorable opinion she had formed in regard to him. The Judge being successful in his own case, ventured farther and suggested that his as- sociates on the bench were equally worthy, and left with the comforting assurance
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