USA > Iowa > Marshall County > The History of Marshall County, Iowa, containing a history of the county, its cities, towns, &c., a biographical directory of citizens, war record of its volunteers in the late rebellion, general and local statistics, portraits of early settlers and prominent men etc > Part 41
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51 | Part 52 | Part 53 | Part 54 | Part 55 | Part 56 | Part 57 | Part 58 | Part 59 | Part 60 | Part 61 | Part 62 | Part 63 | Part 64 | Part 65 | Part 66 | Part 67 | Part 68 | Part 69 | Part 70 | Part 71 | Part 72 | Part 73 | Part 74 | Part 75 | Part 76 | Part 77 | Part 78 | Part 79 | Part 80 | Part 81 | Part 82 | Part 83 | Part 84 | Part 85 | Part 86 | Part 87 | Part 88 | Part 89 | Part 90
To the Hon. Judge Williams, Chief Justice of the State of Iowa :
Your petitioners, William C. Smith, County Judge of Marshall County, Iowa, and Alexander Crow, of said county of Marshall and State of Iowa. respectfully represent to your Honor that heretofore, to wit, on the 12th day of July, A. D. 1853, your Honor granted to George Atwater, Prosecuting Attor- ney in and for the county of Marshall and State of Iowa (and he also claiming to be of said county), a writ of injunction against your petitioners, upon filing his affidavit before your Honor, in substance as follows, to wit : That at a spe- cial election held in said county on the 4th day of April, A. D. 1853, that one of your petitioners, to wit, the above-named William C. Smith, was elected County Judge in and for the county aforesaid, to serve for the term of two years and until his successor was elected and qualified ; and that the said Smith did, on and about the 9th day of April, A. D 1853-though without giving bond for their execution-enter upon the duties of County Judge, aforesaid ; and that, on the 18th day of May, A. D. 1853, under the provisions of an act of the General Assembly of the said State of Iowa, approved by the Governor January the 12th day, A. D. 1853, one William Wood, of Story County ; one William Taylor, of Tama County, and one Jesse Rickman, of Jasper County, all of the State of Iowa, were duly appointed by the Hon. William McKay, Judge of the Fifth Judicial District of the State of Iowa, and that within two months after receiving said notice of said appointment, to wit, on the 2d day of June, A. D. 1853, a majority of said Commissioners located said seat of jus- tice, naming the place, etc. ; and that your said petitioners did, on or about the 1st day of July, A. D. 1853, enter into a bargain with the said Crow, in the name and pretendedly by the authority of the county aforesaid, by which the said Crow agreeing to build a certain house at a point in Section, etc ; and the said Smith agreed to receive the same for the said county, to be used as a court house, and to pay therefor, from the funds of the county aforesaid, a large sum, to wit, the sum of nine hundred and five dollars, on the completion of said building; and goes on and charges your petitioners with corrupt confederacy, etc.
Now your petitioners, the said William C. Smith and Alexander Crow, would represent to your Honor that by an act of the General Assembly of the State of Iowa, approved January 21, A. D. 1851, that B. B. Berry, of the county of Mahaska ; Manly Gifford, of the county of Jasper, and W. W. Miller, of the county of Dallas, were appointed Commissioners to locate and establish the seat of justice of the county. of Marshall, State of Iowa. And the act fur- ther states that said Commissioners should meet at the same place in said county on the third Monday of April, A. D. 1851, or within six months thereafter. and, after taking the oath prescribed in the act, should proceed to locate said seat of justice.
361
HISTORY OF MARSHALL COUNTY.
And your petitioners would represent to your Honor that a majority of said Commissioners, to wit, Manly Gifford, of Jasper County, and W. W. Miller, of Dallas County, did meet in said county of Marshall, to wit, on the 18th day of August, A. D. 1851, and, after taking the oath prescribed by law before Jacob Hauser, Clerk of the District Court of said county of Marshall, State of Iowa, which oath is now on file and recorded in said office of District Clerk, said Com- missioners did proceed to locate said seat of justice of the county of Marshall, State of Iowa. Their certificate is as follows :
The undersigned Commissioners, appointed by an act of the Legislature, approved January 21, A. D. 1851, to locate the county seat of Marshall County. in the State of Iowa, having met and qualified according to law, have located the said seat of justice on the following described quarter section, viz. : the east half of the southeast quarter of Section 13, Township 84, Range 19 west, and the west half of the southwest quarter of Section 18, Township 84 north of Range 18 west. And the undersigned give said county seat the name of Marietta.
. Given under our hands this, the nineteenth day of August, A. D. 1851.
Signed, MANLY GIFFORD, W. W. MILLER, Commissioners.
And we peetitioners would further represent to your Honor that the fore- going certificate is now on file in the office of the Clerk of the District Court of said county of Marshall and State of Iowa. And, further, that in pursuance of said location, John B. Hobbs, acting County Judge in and for said county of Marshall, did, on the 19th day of July, A. D. 1852, contract with one of your petitioners, to wit, Alexander Crow, to build the before-mentioned Court House, agreeing to pay said Crow, on completion of said house, the sum of nine hun- dred and five dollars, and the said George Atwater drew up the writings between the parties. Said nine hundred and five dollars was to be paid out of the funds of said county.
Said contract failed, partly on the part of said Crow not being able to com- plete said building within the time specified in said contract.
And your petitioners would further represent to your Honor that the said William C. Smith was duly elected to the office of County Judge in and for said county of Marshall, State of Iowa, on the 4th day of April, and in accordance with the instructions of George W. McClary, Secretary of the State of Iowa, did not enter into bond until the 29th day of July, A. D. 1853.
And your petitioners would further represent to your Honor, that George Atwater, Prosecuting Attorney in and for said county of Marshall, State of Iowa, drew up a petition and circulated it around amongst some of the citizens of our county, keeping it a secret to at least one-half of the citizens of said county, and, as your petitioners are informed by Judge Mckay, misrepre- sented to him that the Commissioners that located said county seat of Marshall County, State of Iowa, were not sworn ; and that the oath, if they were sworn, was not on file, and that the certificate of location was not on file.
And Judge Mckay stated to one of your petitioners, to wit: Wm. C. Smith, that the person who presented said petition to him stated that there hadbeen a mass meeting held in Marietta, and that the entire people of the county were present, with but a few exceptions, and agreed to the relo- cation.
And your petitioners would represent to your Honor that there never has been a meeting in Marietta called for that purpose, and that we believe one- half the people of the entire county were entirely ignorant of the matter till the Commissioners were appointed by Judge Mckay. And Judge Mckay now says that he had no power to appoint Commissioners to relocate said seat of justice.
362
HISTORY OF MARSHALL COUNTY.
And your petitioners would further represent to your Honor that they fully believed Marietta to be the county seat of Marshall County, Iowa, and under said consideration contracted for the completion of said Court House, which said Court House is now completed.
And your petitioners pray your Honor to vacate and relieve your petitioners from said writ of injunction. Might it please your Honor to grant unto your petitioners to be relieved from said writ of injunction.
And your petitioners further represent to your Honor that they fully believe that it was and is the design of George Atwater and others connected with the town of Marshall, in the State of Iowa, to keep your petitioners from paying for or receiving pay on said Court House, that they may keep the county of Marshall from receiving said house in order to retard the progress of said town of Marietta, until the next session of the Legislature of the State of Iowa, that they may stand a chance for the county seat.
Your petitioners would further represent to your Honor that if the issue of said writ of injunction would come up for a hearing at the September Term of said District Court of Marshall County, then your petitioners would not pray to be relieved from said writ of injunction. But George Atwater declared to me. Wm. C. Smith, that Judge McKay should not try the merits of said writ, but that he would have a change of venue to another district.
Now your petitioners would further represent to your Honor that they believe that unless said writ of injunction is vacated, it will very materially injure said county, as the said county must undoubtedly engage in a most ruinous lawsuit. and. unless speedily put an end to, down to ruin she must go in spite of all her toil, by those who delight in lawsuits and refuse to till her soil.
Might it please your honor to grant unto your petitioners to be relieved from said writ of injunetion, which your humble petitioners believe not to be their petition only, but the petition and wishes of two-thirds of the legal voters of said county of Marshall, State of Iowa.
[Then follow the usual certificates .- EDITOR. ]
The result of this petition was the issuance of an order by Judge Williams on the District Court to which Marshall was attached, commanding a compli- ance with the prayer of the petitioners.
Judge MeKay had, meanwhile, been succeeded on the District bench by Judge McFarland. The order granting a stay of proceedings was brought back by Judge Smith and turned over to Sheriff Weatherly for service.
The papers had to be served personally upon Judge McFarland. At that particular time, he was holding court at Knoxville, and thither William H. Weatherly, Sheriff of Marshall County, proceeded with as little delay as possible.
Mr. W. found the court adjourned, and the Judge absent from the village on some festive mission bent. The dignity of the law was not always main- tained by his Honor, as this history shows elsewhere: and it is necessary to remark here merely that the bar was fully represented, in a profane way, by the Judge alone. He was given over to the free and reckless use of language more emphatic than choice, as he was to the too profuse indulgence in alcoholic stimulants.
A friend recognized the Sheriff, and surmised his business there. Calling him into his room at the hotel, the lawyer informed Mr. W. that the best time to find the Judge would be when he went over to an adjoining saloon for his morning toddy. The lawyer remarked, also, that he would very much like to be present when the papers were served. to " hear the Judge swear."
363
HISTORY OF MARSHALL COUNTY.
In the morning, Sheriff Weatherly stationed himself at a convenient post, and watched the coming of the Judge. Presently he bore down, with his usual martial tread, toward the place of refreshment. The Sheriff hastened to meet him, but did not succeed in reaching him until the " Court " had taken his drink and started back. Then, in the center of the street, he accosted him :
" You are Judge MeFarland, I believe ?"
" Yes, sir : that is my name," replied the massive jurist as he gazed upon the Sheriff.
" My name is Weatherly. I am Sheriff of Marshall County, and I have a paper to serve on you," said the Sheriff.
By this time the Judge's acquaintances had gathered around him in full numbers, awaiting an explosion. It came and with fury enough for almost any occasion. The " atmosphere was blue," said our informant. The Judge cursed the Supreme Court and swore that he would not obey any orders from it, and gave vent to all sorts of expressions but polite ones.
Later in the day, Judge McFarland called a friend to the bench and retired to a private room with Mr. W., where the subject was fully discussed. He admitted that the Supreme Court had power to compel his obedience, but that he " would not say so before that pack of d-d lawyers." He agreed to hold his next court at Marietta, but publicly declared, for the benefit of his own pride, that Sheriff Weatherly would have to move down to Marshall.
Mr. W. laughingly replied that, if the Judge wanted to hold court in Mar- shall, he knew where to find the county officers and could send for them.
The case, The State of Iowa rs. The Judge of Marshall County, was brought up in the District Court, but was taken to Iowa City, before Judge Smythe, of Marion, Linn County, in February, 1856. It was argued in chambers by Enoch Eastman and Mr. Templin for the defendant (Mr. Smith), and W. Penn Clark, of Iowa City, for the Marshall men.
Judge Smythe decided that Marietta was the legal county seat. This ended the first chapter of the struggle, except as concerns Atwater.
The investigation of the foregoing case resulted in the discovery that At- water had made oath before the Supreme Court that he had notified the County Judge of his intended motion for an injunction and mandamus. This being false, Mr. Smith instituted legal proceedings against Atwater. and secured the issuing of a writ of attachment against him. Atwater's bondsmen in the office of Prosecuting Attorney, had been relieved by Judge Smith of pecuniary liability, in August, 1853, on the manifest exhibit that Atwater proposed to leave the county. The young attorney suddenly quitted Marshall, and word was returned that he had hanged himself at Dubuque. This rumor was designed as a misleading report, to prevent a continuance of the suit against him.
It appears that Atwater returned to Circleville. Ohio. There he was visited by Thomas B. Abell, who purchased Atwater's claim against the county for services as Prosecuting Attorney and Acting Judge, in June, 1856.
Another page is discovered in the somewhat cloudy history of the fight. It is a matter of fact, in liber D, page 332 of the county records, that George Atwater quit-claimed Lots 1 to 12, Block 3; Lots 1 to 12, Block 10; Lots 1 to 12, Block 14; Lots 1 to 12, Block 21 : and all his interest in the village of Marshall, "acquired by purchase or otherwise." to Thomas B. Abell. for $150, on June 12, 1856.
The statement has been made that Atwater was bribed to co-operate with Marshall, and this evidence proves that he had a valid interest in a portion of the village. Rumor has it that he had forgotten the exact description of the
364
HISTORY OF MARSHALL COUNTY.
lots owned by him, and that, in order to cover and embrace all, his deed read by lots and in total, rather than by specific property. Certain facts lead us to regard Atwater's position as anomalous: He was compelled to leave the county under fear of arrest; he was far from wealthy while he resided here ; but he was able to transfer a valuable share of village property to Mr. Abell.
Atwater died shortly after the events above related transpired.
The following documents, found among the musty paper in the Auditor's office, furnish something of a clue to the feeling in Marietta against Atwater, at the time of his desertion of the town for Marshall. They are given as an aside to the drama :
To GEORGE ATWATER, PROSECUTING ATTORNEY OF MARSHALL CO., IOWA :
SIR : You are hereby notified that on the 3d day of August, A. D. 1853, we will proceed to file a petition in the office of the County Judge of Marshall County, Iowa, for relief as your sureties upon your bond as Prosecuting Attor- ney of said county, filed on the 9th of Aug., A. D. 1852, upon the following grounds, to wit :
1st. That you, the said Atwater (as Prosecuting Attorney), have not settled with the county of Marshall and are a defaulter to said county in the sum of $25, and are wholly and totally insolvent, and unable to pay said sum of money, and the same could not be collected from you by execution.
2d. Said Atwater is about to abscond and leave the county of Marshall without paying said sum of $25, and is in other respects endangering your petitioners by making them liable on said bond.
Said petitioners pray that you be ordered to give a new bond, and to sup- ply the place of petitioners as your sureties, etc. At which time and place you may appear if you wish, and show cause, if any, why the prayer of the peti- tioners should not be granted.
WILLIAM DISHON, ALEXANDER CROW, By J. G. Templin, their Attorney.
WILLIAM DISHON AND ALEXANDER CROW, vs.
In County Court, in and for Marshall County and State of Iowa, Aug. 3d, A. D. 1853, 2 o'clock P. M., of said day.
GEORGE ATWATER.
TO THE HON. WM. C. SMITH, COUNTY JUDGE OF MARSHALL CO., IOWA :
Your petitioners, Wm. Dishon and Alexander Crow, would respectfully rep- resent to your Honor, that on the first Monday in August, A. D. 1852, the said defendant, George Atwater, was duly elected Prosecuting Attorney of Marshall County, Iowa, and that on the 9th day of August, A. D. 1852, your petitioners executed a bond jointly with the said defendant, for the faithful discharge of his duties, according to law, as such Prosecuting Attorney, and that said bond was approved and filed by your Honor's Court, on the said 9th day of August, A. D. 1852, which said bond is hereto attached, and made a part hereof by a true copy of the same. Your petitioners further represent that they conceive themselves in danger of suffering by remaining surety for said defendant, and desire to be relieved of their said obligation. Your petitioners would respect- fully state the following grounds for conceiving themselves in danger of suffer- ing, as aforesaid, to wit :
1st. The said Atwater has not settled with the county of Marshall, and is a defaulter to said county in the sum of $25, and is wholly and totally insolvent, and unable to pay said sum of money, and the same could not be collected of him by execution.
365
HISTORY OF MARSHALL COUNTY.
2d. Said Atwater is about to abscond and leave the county of Marshall without paying said sum of $25, and is in other respects endangering your petitioners by making them liable on said bond.
Your petitioners therefore pray that the said George Atwater may be ordered to give a new bond, and to supply the place of your petitioners as his sureties within a reasonable time, to be prescribed by this Court, and that your petitioners be declared discharged from all liability on their said bond for the future acts of the said Atwater. And your petitioners, etc. WILLIAM DISHON, ALEXANDER CROW, By J. D. Templin, their Attorney.
The following is a true copy of the bond referred to in the above petition, and made a part thereof, to wit :
Know all men by these presents, that we, George Atwater, William Dishon and Alexander Crow are held and bound unto the county of Marshall, in the State of Iowa, in the sum of $2,000, to be levied of our goods and tenements if default be made in the condition following, that is to say : Whereas, the said George Atwater has been elected to the office of Prosecuting Attorney of the county aforesaid ; Now, therefore, if as said Prosecuting Attorney, he render a true account of his doings therein to the proper authority when required thereby, or by law, and promptly pay over to the person or officer entitled thereto, all money which may come into his hands by virtue of his office, and promptly account for all balances of money remaining in his hands at the termination of his office, and if he shall hereafter exercise all reasonable diligence in the preservation and lawful disposal of all money, books, papers. securities or other property appertaining to his said office, and deliver them to his successor, or to any other person authorized to receive the same, and faithfully and impartially, without fear, favor, fraud or oppression discharge all other of the duties now or hereafter required of his office by law, then this obligation to be void. Otherwise, to be in full force.
GEORGE ATWATER, WILLIAM DISHON, ALEXANDER CROW.
The following are the indorsements on the back of said bond, to wit ;
STATE OF IOWA, MARSHALL COUNTY, SS. I, George Atwater, do hereby sol- emnly swear to support the Constitution of the United States and the Consti- tion of the State of Iowa, and that to the best of my knowledge and ability, I will perform all the duties of Prosecuting Attorney, as provided by the conditions of the bond within written.
GEORGE ATWATER. Sworn to and subscribed before me, this 9th day of August, A. D. 1852. JOHN B. HOBBS, County Judge.
Approved and filed Aug. 9, 1852.
The second chapter of this history was opened before the first was closed. Fearing that their chances of gaining the suit through Atwater's machinations were very slight, and not altogether approving of a contest carried on in such a man- ner, an appeal was made to the County Judge, in the Fall of 1855, through the medium of petitions, for the ordering of an election on the subject, in April, 1856.
366
HISTORY OF MARSHALL COUNTY.
The petitioners secured the requisite order from the Court, and the election was duly held, with the following result :
Abstract of the number of ballots cast at the April election held in the county of Marshall, State of Iowa, April 7, A. D. 1856, for the county seat of said county of Marshall, State of lowa :
Townships.
Marshall.
Marietta.
Marietta
7
127
lowa.
18
151
Bangor
2
57
Liberty
....
63
Eden.
8
17
Marshall
152
Jefferson
54
..
Green Castle
23
3
Le Grand
54
19
Marion
35
45
Total
348
482
Majority for Marietta
134
The result of the vote of April, 1856, merely served to intensify the feel- ings of both factions. The Marshall men were determined to pursue the matter to the bitter end, and secure the county seat at all hazards.
On the 7th day of April, 1857, certain Marietta parties gave notice in the Iowa Central Journal, published at Albion, that a petition would be presented at the May term of the County Court asking for the removal of the seat one- half mile west of Marietta. This petition, however, was not presented, so far as any available records show, and was probably nothing more than a subter- fuge to either gain time or thwart the opponents of Marietta in some of their movements.
The forces on both sides had been greatly augmented by the increase of population in the county. Prominent among the Marietta men now appeared Mr. James L. Williams, Clerk of the District Court: John Turner, Elias Woelo- han, H. E. J. Boardman, Thomas B. Abell, J. G. Crookham and John W. Tripp.
Albion became a factor in the problem. In the struggle it was a question which way the vote of that place would be cast. Marshall favored the securing of the Albion vote, and for that desideratum proposed to work for the endow- ment of a County High School under the then existing law.
An act of the Legislature, approved in 1855, enabled counties of a certain population to establish a High School for the education of teachers. In accord- ance with the law, a High School Company was organized under Articles of In- corporation, and was used as a medium of securing the vote of Albion for the contending factions. It was supposed that Albion would cast her vote in favor of the locality contributing most generously to her institution. To this end Marietta raised a considerable sum, perhaps $4,000 in notes, conditional upon the securing of the requisite sum to establish the High School. Marshall im- mediately issued a larger amount of paper, and thereby obtained a controlling share of stock in the school. Marietta saw that there was no possibility of equaling her rival, as the latter held the longer purse, and quietly gave up that race. Marshall secured the vote of Albion. This fact became an element in the future contest in the courts, as will hereafter be shown.
In passing, we observe that Marshall never redeemed the notes thus issued, and they, together with the Marietta paper, never benefited the proposed school.
Further mention of this institution is made in the chapter devoted of Albion.
367
HISTORY OF MARSHALL COUNTY.
Marion Township also desired aid, but in a different channel. The Iowa River divided Marion from the market at Marshall, and bridges were highly essential to its prosperity. The Marshall men perceived the opportunity and at once pledged Marion aid in the work of bridging the river. This fact appears later in the records.
In the Fall 1857, Marshall conceived the idea of erecting a building suitable for a Court House, and deeding the property to the county on certain conditions. To this end a company was formed and styled the Marshall Town Hall Company. The corporation obtained a warranty deed from Henry Anson to Lot 5, Block 14, in the village of Marshall. The record of this transfer bears date January 14, 1858, and the consideration is stated at $325. The building, however, was begun in the Fall, and the foundation walls constructed at that season.
The property, consisting of lot and building in process of erection, was given to the county in the Spring of 1858, conditional upon the county seat being removed to Marshall by popular vote at the April election in 1858, which had been proposed in the Spring of 1857 by the Marshall men, and retained at Marshall thereafter. The result of the vote was the inauguration of the long and bitter contest related herein. The title of this property was confirmed in the county by subsequent events.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.