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 43
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It is a disputed question as to whether a legal service of the peremptory mandamus was ever made upon the Judge. At all events, he called to his assis- tance two Justices of the Peace, and proceeded to recanvass the vote as ordered.
The Justices, John Turner and Elias Wolohan, were both Marietta men, and claimed that the order of the Supreme Court did not tell them how to canvass. leaving it discretionary with them. From this opinion Judge Smith dissented, but but was overruled by the two Justices, who proceeded to count the vote as it had pre- viously been counted, and declare Marietta the properly designated county seat.
The recanvass was made at Marietta, on the 6th day of January, 1859, and the following returns made and filed with the county Judge :
Abstract of the ballots in the several townships in the county of Marshall, State of Iowa, on Monday, the 5th day of April, 1858, for the county seat of said county of Marshall, in the State of Iowa :
Name of Township or Precinct.
Marshall.
Marietta.
Le Grand*
.....
Marshall.
204
...
..
Marietta
13
177
Liberty
1
103
Bangor
3
94
Iowa ..
126
106
Marion*
...
.....
Eden
18
30
Jefferson
79
1
Green Castle*
..
.....
Vienna.
18
8
Total
462
519
* A majority of the Board of County Canvassers decide that there is no return from this township.
377
HISTORY OF MARSHALL COUNTY.
STATE OF IOWA, COUNTY OF MARSHALL, SS : We, the undersigned Board of County Can- vassers in and for the county and State aforesaid, do hereby certify that we have this day can- vassed the votes cast for the county seat of said county of Marshall, in the State of Iowa, in the several townships in said county. on Monday, the 5th day of April, A. D. 1858, and find the result to be as follows, to wit : Whole number of votes cast for the county seat of said county of Marshall, in the State of Iowa, nine hundred and eighty-one, of which Marietta received five hundred and nineteen votes, and Marshall received four hundred and sixty-two votes, for the county seat of Marshall County, Iowa. Marietta, having received the highest number of votes for the county scat of the said county of Marshall, in the State of Iowa, is declared elected.
In witness whereof, we have hereunto set our official signatures (William C. Smith, County Judge, dissenting in opinion), and affixed the seal of said county of Marshall, at Marietta, this, the 6th day of January, A. D. 1859.
William C. Smith, County Judge, dissenting, he having decided that there were returns from the townships of Le Grand, Marion and Green Castle, and the majority deciding there were not. WILLIAM C. SMITH, County Judge, JOIIN TURNER, Justice of the Peace, [SEAL. ] ELIAS WOLOHAN, Justice of the Peace, County Canvassers.
STATE OF IOWA, MARSHALL COUNTY, SS .: I, William C. Smith, County Judge within and for said county, do hereby certify that the within and foregoing is a true and complete copy of the county canvass, had on the 6th day of January, 1859, of the ballots cast on Monday, the 5th day of April, 1858, on the question of the removal of the county seat of Marshall County, Iowa, from the town of Marietta to the town of Marshall, in said county.
Witness my hand, with the seal of said county hereto affixed, this 8th day of January, A. D. 1859. [SEAL. ] WILLIAM C. SMITH, County Judge.
The case was then taken to the District Court, and a writ of attachment issued against the Judge of the county, because of the recounting of the vote in favor of Marietta-that is, because of the action of the Justices. The Judge absented himself from the county temporarily, and thereby avoided arrest.
After the adjournment of the District Court, Mr. Smith returned, and ap- pealed the case to the Supreme Court, when, at the October term, 1859, the fol- lowing opinion was delivered :
The State of Iowa upon the Relation of WELLS S. RICE, r's. W. C. SMITH,
Marshall County, Appellants.
County Judge of Marshall County.
Henderson & Clarke for Petitioners; Eastman and Cole & Jewett for Re- spondent.
The same cause was before this Court at the December term, A. D. 1858. A peremptory writ of mandamus had been ordered by the Clerk of the District Court, and the defendant appealed.
The judgment of that Court was affirmed, and the writ issued accordingly. In the return to the alternative writ, the County Judge and Canvassers had stated that they had rejected the returns from the townships of Green Castle, Le Grand and Marion for insufficiency.
It was held they were not authorized to adjudge upon their sufficiency or validity, but if they were returns the canvassers must count them, and leave their sufficiency to be determined in some other proceedings, and that even this Court could not adjudicate this question in that cause.
In the certificate of the returns to the peremptory writ, the County Judge states that in recanvassing the returns of the election, in obedience to the per- emptory writ, a majority of the canvassers decided that the papers supposed to be returns from the three townships were not returns, the two Justices so hold- ing, and he dissenting ; and he sets forth the canvass made by them. In con-
378 .
HISTORY OF MARSHALL COUNTY.
sequence of this decision, the returns from those three townships were not counted.
In this stage of the case, the relator moved for a writ of attachment against the County Judge, and that the above certificate of return be set aside. This was set aside, and the writ of attachment was issued. There is strictly no re- turn to the peremptory writ ; it is to be obeyed, and a certificate is made of what has been done. (Tapp on Mand., top page, 61, 389, 445, 456, State vs. Jones).
A writ of attachment was issued, running against the County Judge, with- out naming him, a return of non est being made. an alias issued, and the same return was made, and a pluries was issued.
The defendant then appeared, by his counsel, and moved that it be quashed, for the reason that the writs ran against the County Judge, and the returns to the former writ of attachment showed that the individual was absent from the county, and could therefore do no act as a Judge (the former certificate having been made before the term of the court), and that the County Judge, " de jure or de facto " -- that is, the Judge or his legal substitute-was always present in the county.
The writ of attachment should run against who may be entitled as the County Judge, but it should not issue against the official canvassers. There was, however, occasion for such a writ. In the prior proceedings the returns from the three townships had been treated as returns. They had been rejected for insufficiency only, and the command of the peremptory writ was that they should be counted. After this, it did not lie in the power of the canvassers to say that they were not returns.
The order of the peremptory writ extends to the Justices as well as to the County Judge, in its legal effect. If it were not so, they might defeat the ob- ject intended, and so it would in this case. The Judge, with the Justices, as canvassers, must do what is commanded by the writ. Therefore, the writ of attachment should have issued against the Justices as well as the Judge. The County Judge cannot control them and their actions ; but this belongs to the District Court. The only discretion now left them is to compute the votes for the respective places.
The Judge having returned that he was willing to obey, cannot be made to suffer for disobedience, but he can still be caused to do the act.
The return of a copy of proceedings made by the County Clerk, and show- ing a subsequent canvass, with the assistance of still other Justices, cannot be regarded.
It is not certified nor returned by the Judge, and, besides, the Judge, with the two Justices first called under a peremptory writ, or a majority of them, must be caused to obey the writ. They have been called. and they are not yet discharged.
The appeal of the defendant is from the order setting aside the certificate of return and granting the pluries writ of attachment, and from them refused to set them aside. This writ should be set aside ; but, because it runs against the County Judge alone, and against him in his official name, and such a writ must issue against William C. Smith, the County Judge, and against John Turner and Elias Wolohan (who were the Justices of the Peace called to act as canvassers), to all of whom the command of the peremptory writ extended, and they are to be dealt with according to law in such case. Until they obey the peremptory writ of mandamus, the judgment of the District Court is, therefore. reversed, and a writ of procedendo will issue.
[Signed.] W. G. WOODWARD, Justice.
379
HISTORY OF MARSHALL COUNTY.
The newspapers waged as bitter a war as we have ever noticed, even in Western journalism. So emphatic were the utterances that quotation from the columns of those papers in this chapter would be an act of personal injustice to interested parties. It must be admitted, however, that the Marshall County Times was conducted with marked ability, coming into this struggle at a little later date than we have now reached. It began in 1858, and was conducted on the true basis of news. The Iowa Central Journal, a Marshall faction paper, published at Albion, and the Marietta Express, are conspicuous factors in the battle: but the files are so imperfect that the writer is unable to gather much of value therefrom. This careless preservation of these files is a fact to be seriously regretted by both newspaper men in the county and the historian.
At this juncture in the affairs of the two armies, the Marshall men, who were rendered more demonstrative by the articles published by Mr. H. C Henderson, in the Times, resorted to forcible means to attain their ends. Com- plaint was made by Sylvanus Rice against Judge Smith and his aids for mal- feasance in office, before N. F. Yeamans, a Justice of the Peace in Marshall : and warrants were issued for the arrest of the recalcitrant officials.
It is necessary to return to a date somewhat earlier than the arrest of the Canvassers to explain a measure proposed by the Marietta men, before proceed- ing with the account of the "trial" of Smith.
Soon after the recanvass by Turner and Wolohan, a meeting was secretly called at Marietta, of which Judge Smith was in ignorance. At that meeting, the subject of compelling the settlement of the contest by the erection of an ex- pensive Court House at Marietta was freely discussed. The prime mover in the matter was William Dishon.
The day following this meeting, Dishon approached Smith with the scheme, which was the issuance of county bonds, in a large sum, to Dishon, in payment for a Court House building that would be so fine as to preclude the probability of a continuance of the struggle. It was hoped thereby to reach the pockets of enough disinterested voters to carry the day; for the erection of county buildings was a matter not to be treated lightly.
Smith refused to entertain the proposition at first, but consented to attend a secret meeting on the following night, The meeting was held, and each man in attendance was sworn to secrecy. There were present H. E. J. Boardman, William Dishon, Thomas Mercer, James L. Williams, Thomas B. Abell and many others. The question was fully argued. Dishon stated that he had con- ferred with the leading men of the county, and found them almost unanimous in favor of the plan, which would end the tiresome controversy. It is said there was a diversity of opinion in the meeting, however. Smith opposed the matter, according to his own statement made to the writer. The account here given is almost a literal copy of his report. After a lengthy arguing of the case, Smith consented that Dishon should go to Des Moines and consult with Messrs. Crocker, Cole and Casady, lawyers. If they thought it legal and prudent, he would consent. Dishon went to Des Moines, and was absent during the proceedings which we are about to relate.
Sylvanus Rice charged the Board of Canvassers, Smith, Turner and Wolo- han with crime and malfeasance in office, entering his complaint before Justice Yeamans, at Marshall, and procured warrants for their arrest. Sheriff Harris proceeded to Marietta with the warrants, and at once took Turner and Wolohan into custody. The County Court being then in session, presided over by Judge Smith, the Sheriff refrained from serving the warrant upon the Judge until the adjournment of the Court in the evening. He then took the three Canvassers
380
HISTORY OF MARSHALL COUNTY.
into his charge and prepared to return to Marshall. The citizens of Marietta opposed Smith's going, anticipating trouble from the Marshall men ; but the Judge replied that he would go as freely to answer this charge as he would go to his supper. A number of the Marietta men accompanied the Judge.
When within a mile and a half of Marshall, the party was met by a large number of men, who manifested considerable feeling. The Judge had no idea of the real condition of affairs in Marshall, and the appearance of this body of men naturally aroused in his mind a sense of alarm.
When he reached the town, he found many hundred persons surrounding the Court House. It was then about 7 o'clock in the evening. After calling Court, to which the Sheriff responded with his prisoners, Justice Yeamans adjourned the same for supper. After the adjournment, Mr. Woodbury invited Smith to go with him to tea. The Judge responded that he did not know whether he was at liberty to do so, since he was in the custody of the Sheriff. Mr. Harris gave him permission to go with Mr. Woodbury, and they proceeded to the house of the latter, where a social meal was enjoyed until about 8 o'clock. There was at that time an alarm at the door. Upon opening it, Mr. Wood- bury discovered the Rev. Mr. Babcock, a Methodist clergyman, located at Marshall, who expressed an earnest desire to see Mr. Smith. The Judge stepped out of the door, when Mr. Babcock conducted him around the house to a retired place, and there told him that he had come to him as a friend. Mr. Babcock assured him that he must recanvass the vote and declare the same in favor of Marshall, or he would certainly be lynched before morning. The Judge responded to him that he did not then know what he should do, but that he most strenuously refused to make a voluntary canvass of the votes, or to comply with the request.
The gentlemen were then joined by Messrs. Woodbury, Brown, Hepburn and Glick, and a general conversation ensued. The weather was cold, and Mr. Woodbury invited the party into his office, where the conversation was continued. The Judge was again assured of the necessity of the recanvass in order to pacify the people and prevent personal violence to himself. The Judge met all these propositions with a firm refusal to entertain the same, but suggested his willingness to submit the matter to a competent jury of unbiased lawyers, and said that he was willing to abide by their decision, after a full presentation of both sides of the case. This proposal was at once rejected by the Marshall men. He told them that he realized that he was in their power, and might be compelled through the exercise of force to obey their commands, but that he was opposed to such proceedings, and that if he did recanvass, it would be against his will and by compulsion, and consequently would not be legal.
The party then started to return to the Court House. The Judge observed that the house was surrounded by men. Upon the re-assembling of court, the Judge offered to waive examination as to the alleged malfeasance in office, and be bound over to appear at the next term of the District Court to answer to the charge. The Court refused to entertain the plea. He then applied for a change of venue ; said that he could get no justice in the tribunal before which he was arraigned, and made oath to the necessity of such procedure. This request was also refused. Mr. Smith now states that at this stage of the so- called trial, he distinctly heard from the men without the Court House (for the room could not contain all who were assembled) the eries of "Lynch him !" " Blow out the lights ! " ". Let us clean out the Marietta men ! "
At this juncture of affairs, when violence seemed imminent, Messrs. Wood- bury and Glick approached the Judge, and said to him, " Come with us." They
381
HISTORY OF MARSHALL COUNTY.
led him down into the street, one upon cither side, and asked him where he wanted to go. He told them that his first choice, of course, was to go home, but that, if he could not go there, he desired to be taken to his father's house. just across Linn Creek. They consented to go with him, and conducted him to the place mentioned. They led him to his father's gate, and told him to go in. to rest quietly, and to come up in the morning, and settle matters then.
The Judge went into the house and was engaged in telling his father of the affairs of the day, when some one rapped at the door. He opened the door and found two Justices of the Peace, Messrs. Jarvis and Haskins. He inquired their business, and was informed that they had come there to recanvass the vote. " To-night ?" asked the Judge. . " Yes," responded the Justices.
The moon was shining brightly, and Judge Smith was able to distinguish the forms of many men in the vicinity of the house. Parson Babcock put in an appearance, and told the Judge that he desired him to accompany him to his (the parson's) house. Smith asked what was wanted of him, and Babcock replied that he would find out after he got there.
The Judge stepped into the yard, when he was surrounded by men, two on each side, two in front and two behind. He was led up Linn Creek to the old mill, where the oil-mill now stands, thence across the dam and back to town. He was taken to Babcock's house, and conducted into an upper chamber. There Messrs. Woodbury and Hepburn expressed a desire to have the vote recanvassed. Smith assured the gentlemen that he would comply with their demands, but that the work was performed on compulsion, and would not stand in law. The Marshall men were willing to take all chances on this score, and ordered the Judge to proceed.
Some time prior to this, as though in anticipation of the events of the night, Mr. Woodbury had obtained an impression of the county seal upon blank paper, in a surreptitious manner, while at the Court House in Marietta. The returns of election were all made out, and required merely the signature of Judge Smith to give them the appearance of validity. The name was subscribed to these papers, as before related, and the following canvass made :
Abstract of votes cast for county seat on Monday, the 5th day of April, A. D. 1858, for the county seat of said county of Marshall, in the State of lowa.
WILLIAM C. SMITH, County Judge.
Abstract of the ballots cast in the several townships in the county of Marshall and State of Iowa, on Monday, the 5th day of April, A. D. 1858, for the county seat of said county of Marshall, in the State of Iowa :
Name of Township or Precinct.
Marshall.
Marietta.
Le Grand.
Le Grand
79
19
1
Marshall
204
...
.....
Marietta
13
177
...
Liberty
1
103
.....
Bangor
3
94
....
Iowa.
126
106
.....
Marion.
87
17
....
Eden.
18
30
...
. .
Jefferson
79
1
.....
Green Castle
39
7
.....
Vienna
18
8
....
Total
667
562
1
STATE OF IOWA, MARSHALL COUNTY, SS .: We, the undersigned Board of County Canvassers, in and for the county aforesaid, do hereby certify that we have this day canvassed the votes cast for the county seat of said county of Marshall in the State of Iowa, in the several townships in said county, on
382
HISTORY OF MARSHALL COUNTY.
Monday, the 5th day of April, A. D. 1858, and find the result to be as follows. to wit : Whole number of votes cast for the county seat of said county of Mar- shall in the State of Iowa, twelve hundred and thirty, of which Marietta received five hundred and sixty-two votes, and Marshall received six hundred and sixty-seven votes, and Le Grand received one vote for the county seat of Marshall County, Iowa.
Marshall, having received the highest number of votes cast for the county seat of said county of Marshall, in the State of Iowa, we therefore declare Mar- shall to be the county seat of said county.
In witness whereof, we have hereunto set our official signatures, with the seal of said county hereunto affixed, this, the 11th day of Jannary, A. D. 1859.
WILLIAM C. SMITH, County Judge, J. H. JARVIS, Justice of the Peace, C. A. HASKINS, Justice of the Peace. County Canvassers.
STATE OF IOWA, MARSHALL COUNTY, SS .: Whereas, On this 11th day of January, A. D. 1859, I, William C. Smith, County Judge within and for said county, did take to my assistance C. A. Haskins, Esq., and J. H. Jarvis. Esq., two Justices of the Peace of said county, and canvassed the votes cast at the April election, A. D. 1858. in said county, on the question of the removal of the county seat of said county of Marshall, in the State of Iowa, from the town of Marietta to the town of Marshall. in said county, I do hereby declare Marshall to be the county seat of Marshall County, Iowa.
WILLIAM C. SMITH, County Judge.
It is shown, notwithstanding the denials, that the opportunity was then im- proved to serve upon the Judge the peremptory writ of mandamus ordering the removal of the records. The service was admitted in the following docu- ment :
LEGAL SERVICE OF PEREMPTORY WRIT.
Received the original writ (of which the within is a true copy), for service, this 11th day of January, A. D. 1859, and served the same original the same day by delivering the same to Will- iam C. Smith, the County Judge of Marshal County, Iowa, in person, at his office in Marietta, in said county.
Witness my hand and seal, the day and year above mentioned. [SEAL. ] L. L. HARRIS, Sheriff of Marshall County, Iowa.
When these returns and service of writ were made, the Judge proceeded to issue the following
ORDER FOR REMOVAL OF COUNTY PROPERTY.
STATE OF IOWA, MARSHALL COUNTY, SS .: To the Sheriff of Marshall County, Greeting :
Whereas, On the 11th day of January, A. D. 1859, Marshall was declared by authority of law to be the county seat of Marshall County, lown, you are, therefore, hereby authorized and required to remove, carefully and unharmed, all the records, books, papers, documents and other property belonging to said county, now in the town of Marietta, in said county, to the town of Marshall, in said county.
Witness my hand, this 11th day of January, A. D. 1859.
W.M. C. SMITH, County Judge.
After these formalities were completed, the Judge was shown to bed and no harm was done him. The house was guarded, however, during the entire night.
Mr. Woodbury came to the Judge and advised with him relative to the pro- ceedings of the Marshall men. Now that they were armed with the Judge's order to the officers of the county to deliver up the property, they were half
383
HISTORY OF MARSHALL COUNTY.
crazed. Mr. Smith advised a peaceful attempt to carry out the order, fearing that a forcible exhibition would provoke feeling and end in bloodshed.
Mr. Woodbury wanted the Judge to go to Marietta and urge the delivery of the archives; but Smith replied that such an act would place him between two fires and result in certain death. He could not go to Marietta and tell his townsmen that he had voluntarily consented to the issuance of the order. for that would be false ; nor could he consent to telling the people publicly that the order had been forced from him, for that would create so bitter an antago- nism among the armed Marshall men as to result in his bodily injury. For these reasons he refused to go to Marietta with Mr. Woodbury.
At this critical period, Mr. E. N. Chapin, who then lived at Albion, came to see the Judge and ascertain the true state of affairs. Mr. Smith speaks in warm- est praise of the disinterested friendship manifested for him at that alarming time by Mr. Chapin, who stood by him, in the name of justice, as no other person did.
Mr. Chapin says that he asked the Judge whether he had voluntarily made the recanvass. The Judge told him that he had made it because he considered it the safest thing to do; that he had not acted voluntarily in the matter, but . that he was actuated by fears for his personal safety. Mr. Chapin urged him to do what he considered right in the matter, and the Judge replied that he would be governed by the proper motives in all he did.
It may be overstepping the bounds of our office to interpolate the result of our investigations here; but, at the hazard of creating comment, we shall express what we consider the sentiment of both factions in the affair just related. No one has made a more exhaustive examination of this contest than we have done.
The courts have passed upon various legal phases of the question ; but those opinions were rendered in the height of the conflict, and were in themselves but fragments of the controversy. Brief histories have been prepared.by persons more or less interested here, and necessarily to that degree unconsciously biased by friendship or other causes. We are the first to literally mine out the volumi- nous records, and prepare a full and connected account of the "war." The posi- tion occupied by the historian is sufficiently elevated above interests local and personal and generally independent. to allow a free and unobstrueted view of the late field of battle. We therefore submit the following opinion of the pro- ceedings thus far, as the result of impartial consideration.
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