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 46
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The objections next to be noticed are those relating to the returns them- selves. It is alleged that the returns from the townships of Le Grand, Marion and Green Castle are insufficient, and should be rejected. Copies of the poll books of the election are made exhibits to the bill.
At the head of the poll list in each of these is a caption, showing it to be the poll of an election on the proper day, in the above townships respectively, and in the county of Marshall. The exceptions, therefore, that they do not appear to be returns from these townships, nor from townships in the county. are based upon errors of fact, and must fail. Each of these contains a certifi- cate of returns, signed by three persons styled the Judges of Election, and attested by two who are styled Clerks of Election.
It is not fatal that full particulars of time and place are not contained in these returns, for the caption and certificate may be taken together, and thus, every defect of one is supplied by the other.
A more manifest fault is in the fact that neither the Judges nor the Clerks of the Election appear to have been sworn. In the case of each of these town- ships before named, the officers signed a form of oath, but there is no evidence of the oath having been administered. It is urged that this defect entirely vitiates these three returns. But the law is not so. Whilst it is the law that the Canvassers cannot adjudicate upon the sufficiency of returns, as we have held in the former case, where a case of this kind comes into a court of justice, such court, or a jury trying it, not only may, but it is their duty to, look behind the returns, and even behind the ballot-box in some cases. Thus, were the case on trial upon the facts, the court might receive evidence of these officers having been sworn. (People vs. Cook, 14 Barb., 298; People vs. Ferguson, 8 Cow., 102; People vs. Vail, 20 Wend., 12; People vs. Seaman, 5 Denio, 409.)
And this might be the course in the present case ; but the law goes yet fur- ther. Neither the election nor the particular returns would be vitiated and sub- ject to rejection if the above officers were not sworn. (People vs. Cook, 14 Barb., 286. 287, 297 ; Greenleaf vs. Low, 4 Denio., 168; Weeks vs. Ellis, 2 Barb .. 320; People vs. Covert, 1 Hill, 674; People vs. Hopson, 1 Denio. 575; In matter of Mohawk & Hudson R. R. Co .. 19 Wend. 135.)
Much more might be said, enlarging upon these points, but the length of this case forbids, and we will but make reference to other authorities, upon sim- ilar occasions, showing that the election, and not the returns, is the foundation of the right. (3 Mass., 230; 6 Wend., 486; 3 Hill, 43; 12 Wend .. 481; 11 Wend, 604: 19 Wend., 143; 5 Cow., 269; 4 Cow., 297 ; 7 Hill, 9; 20 Pick .. 489, 490; 25 Maine, 507; 26 Maine, 491; 2 Carter, Ind., 423.)
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HISTORY OF MARSHALL COUNTY.
Another objection, and one going to the validity of the election itself, is- that bribery and unlawful means were made use of by the citizens of the town of Marshall, to influence the result. The first instance of this is that the citi- zens of Marshalltown agreed to pay $500 to those of Marion Township to build a bridge connecting the two townships ; the second was that the citizens of the former town conveyed certain real estate in Marshalltown to the citizens of the county ; and the third is, that two certain persons, named Rice, gave their promissory notes, indorsed by others, to the County School Company, for $3,000 and $1,000 respectively-which charges are accompanied by pertinent allegations of corrupt intent, of agreement, and of votes being procured thereby in numbers sufficient to change the result of the election.
We do not think the growing facilities for the public convenience to the whole county, such as furnishing a building for the courts and officers, and thus relieving the county from a burden of expense, amounts to bribery. Nor would the giving property, though not of that specific character, but yet adapted to reducing the expense of a change.
If the people of a town desire a county seat located at such place, there is no wrong and no corruption in their offering and giving facilities to produce that result. Either in buildings or in offices direct, for the use of the public, or in property, or in money to procure the facilities, they may offer to take away or to lessen the pecuniary burden which would come upon that public-the county-by the location or by a change of location. And this cannot be brib- bery. And it may be doubted whether such an act can become bribery when the offer is to the whole county, and upon a matter of county interest only. In a case like the present, there is no duty upon the county from which it or its citizens may be induced to swerve. They may adopt which place they see fit, and it is offering additional inducements only in favor of one, to offer as above mentioned.
The other instance, that of agreeing to pay money to erect a bridge between the townships, partakes somewhat more of the nature of an inducement to neg- lect the public good, and consult personal interest or convenience only. But yet, as there is no duty upon the citizen to vote one way or the other, but he- may act his pleasure from however personal an interest, as the offer is to all the inhabitants of a township, and still more, as the thing offered or the pur- pose intended is of a public nature, a public convenience, and that, too, one only facilitating intercourse between the two townships, we cannot view it in the light of bribery.
Bribery may be defined to be the giving (and perhaps offering) to another anything of value, or any valuable service, intended to influence him in the dis- charge of a legal duty. It does not apply to a mere moral duty. Our State punishes criminally the bribery of public officers (Section 26, 47-57), and of Electors, and the Judges, Clerks and Canvassers of Elections (Sections 2,691, 2.699), and declares (Section 339) that the election of any person may be con- tested when the incumbent has given or offered any Elector, etc., any bribe or reward, in money or property, for the purpose of securing his election.
It does not seem that provisions like these can be extended to a case where, as in the present one, the question is only a local, county question, and the party to be influenced is the entire county, or a whole community, which is a portion of itself; and the thing offered is of a public nature, pertaining to the public and not to individuals, consisting of public facilities only.
The remaining instance of alleged bribery is, that two persons gave their promissory notes, indorsed by others, to the Marshall County High School
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HISTORY OF MARSHALL COUNTY.
Company. It is to be noticed that the consideration of these notes was, that the citizens of Iowa Township, and not merely those connected with this com- pany, should vote for Marshalltown. This is somewhat different from the pre- ceding case, in the nature of the thing offered, as it partakes of a private char- acter ; but it is still an offer of a gift of facilities to the public of a township, and even of the county. The inducement is public in its nature, and is held out to the entire people of the township.
We here repeat the idea that there is no duty incumbent upon this people which they are tempted to violate. Neither are the public officers, legislative, executive or judicial. They are voters who are sought to be influenced in the choice of a county seat by gathering around one of the places proposed certain advantages promotive of the common convenience and welfare. These are wanting the elements requisite to constitute a bribery, or a corrupt or unlawful influence.
In a motion to dissolve the injunction, the respondents assigned thirty causes, embracing those above considered, and in view of the positions taken in respect to these, it becomes unnecessary to examine the remainder. Regarding it as a motion, the conclusion is that the injunction was properly dissolved, and the order should be made perpetual. Regarding the motion as a demurrer. in which light it was argued, the result is, that the facts and grounds alleged in the bill are not sufficient to invalidate the election.
No attention has been given to that part of the bill relating to the forced canvass by the County Judge, since under the views taken, it becomes imma- terial, for it is not one of the grounds of the bill that the canvassers have not declared the result of the election : and for the purposes of this bill, it can have no effect whether there has been such a declaration or not.
In conclusion, regarding the motion as one to dissolve the injunction, we are of the opinion that it was properly sustained ; and viewing it as a demurrer (in which light it was argued), we think the facts shown in the bill are not sufficient to invalidate either the election or the returns from the three town- ships of Le Grand, Marion and Green Castle.
Therefore, the decree of the District Court is affirmed.
The Marietta men finally became convinced that the only way in which an adjustment of the long and wearisome controversy could be made was to yield to Marshall, and accept the inevitable with good grace. This conclusion they communicated to the Marshall faction, and great rejoicing was indulged in by the people. Men and women joined in the work of preparing to receive the records when Marietta should decide to voluntarily relinquish them.
The hall at Marshall, which had for so long a time been awaiting the advent of the county property to assume the dignity of "Court House." was transformed into a banqueting chamber. The ladies vied with each other in preparing for the grand event.
The Marshall County Times, of January 4, 1860, gives the following account of the festivities. It is so thoroughly characteristic of the feeling of the chief combatants that it must be reproduced entire. During the fight everybody was for war to the knife ; at the dawn of peace. all joined in hand- shakings and songs of rejoicing. The article given below was published by Mr. Henderson as an editorial.
REMOVAL OF THE COUNTY SEAT.
THE FESTIVAL-THE HATCHET BURIED.
" With emotions of unalloyed pleasure, we announce the final act and scene of the drama of the protracted contest between the towns of Marietta and Mar-
400
HISTORY OF MARSHALL COUNTY.
shall for the county seat of this county, under circumstances highly honorable to both places. On Saturday last, 31st ult., the records, safe and treasure of the county were removed from Marietta to this place by the citizens of Marietta.
" As this event was not expected just at this time, and will take some of our readers by surprise, we will state some of the facts and incidents preceding and and attending it.
" About the first of last week the decision of the Supreme Court affirming the judgment of the District Court, dissolving the injunction, brought by Marietta about a year since, to restrain the removal, was received in Marietta.
" A previous decision of the Supreme Court had declared that it was the duty of the County Canvassers to recanvass the votes, count the returns before rejected, and declare the result in accordance with the vote.
" The whole controversy being thus settled by the highest legal tribunal, Judge Smith, on Thursday evening last, called to his assistance, Esqs. Turner and Wolohan, recanvassed and declared Marshall the county seat.
" The next day, Messrs. Dishon and Whealan, of Marietta, came as a com- mittee to inform our citizens that they would move down the county property on Saturday.
" This was the first intimation that we received of what was in contempla- tion. At 3 o'clock Friday, our people assembled and resolved to signalize the event by a free supper to the citizens of the county, to supervise the preparation of which a committee of arrangements was appointed. A committee was also dispatched to Marietta to extend to her people, and those of the whole county, so far as the limited time would permit, a cordial invitation to participate in the festivities. At once the public spirited ladies of our town, summoning their culinary skill, began the operations of baking, roasting, stewing, etc. Through- out the evening these processes went cheerily and actively forward.
" Saturday morning came-clear, and though intensely cold, yet beautiful. Old Sol smiled forth his brightest beams, and flecked the snowy earth with gems of silver. On all sides resounded busy notes of preparation. Citizens from all parts of the county, heralded by the chime of merry bells, were constantly arriv- ing. At 11 o'clock, James L. Williams, the courteous and efficient Clerk of the District Court, brought, in his own conveyance, his records and desks, and placed them in a room in the Court House already selected by him.
" Soon after, other teams and other citizens from Marietta arrived, bringing the County Judge's and Treasurer's books. At 3 o'clock, the crowd was mar- shaled into procession by Capt. Hall, and repairing to the Marshall House, escorted our Marietta friends to the Town Hall. At the head of the proces- sion, 'discoursing sweet music,' was the Marietta Brass Band. Cherrily its merry notes rang forth, in 'spirit stirring' strains, on the cold, clear air. In the hall, 250 feet of tables, covered with substantials and delicacies, tastefully arranged by the ladies, proffered a bountiful repast.
" The company disposed in order, W. P. Hepburn, Esq., on the part of our people, tendered to our Marietta friends the hospitalities of the occasion, cor- dially thanking them for the act of justice thus honorably consummated, pro- posing that ' by-gones be by-gones,' and hoping that the fraternal spirit which animated all on the occasion might ever survive, to promote the common good of the county.
"On behalf of the people of Marietta. Thomas Mercer, Esq., responded, reciprocating these sentiments, in chaste and appropriate words. Rev. Father Danton then invoked the Divine blessing upon the multitude; after which, all hands proceeded to help themselves to the good things before them. A large
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HISTORY OF MARSHALL COUNTY.
number of ladies, from this place and from Marietta, graced the occasion with their presence, and ' all went merry as a marriage bell.'
" About dark, the safe, in charge of William H. Weatherly, Esq., and drawn by eight yoke of oxen, arrived, amid prolonged cheers, and was deliv- ered by Mr. W. in a neat speech. Judge Smith accompanied the safe, and was escorted to the table by the Committee of Arrangements, amidst the cheers of the crowd. At least 600 persons were in the hall at this moment.
" Supper over, Mr. Hepburn, on behalf of the citizens, addressing Judge Smith. tendered him ' the right hand of fellowship,' desiring him to forget the past and its difficulties ; to which the Judge feelingly responded in the same spirit.
" All the outgoing and incoming county officers were present on this occa- sion, and in the earlier part of the festivities responded to sentiments proposed in their honor.
" Our space will not permit us to give all the spirited toasts read, but will present one which was characteristic of the fraternal inspiration of the hour. It was read by Mr. Hepburn, President of the Day, as follows :
... Marietta and Marshall-the gems of the Iowa Valley ; may they grow in fraternal feeling, as they will in population and wealth.'
. Mr. Mercer responded, earnestly urging the necessity for union, in order to develop the latent wealth of our county, closing his pertinent remarks by using those noble words of Webster: 'Liberty and union-now and forever- one and inseparable.' This sentiment was greeted by prolonged and enthusi- astie applause.
" While the tables were being cleared, the hall was magnificently illuminated, and preparations were made by those who trip 'the light, fantastic toe' to wel- come in the New Year ' with music and the dance.'
-Let joy be unconfined ; No sleep till morn, when youth and pleasure meet, To chase the glowing hours with flying feet,
seemed the animating emotion of the hour.
" Thus ended, happily and pleasantly, this county seat contest, protracted through seven years of eventful struggle, setting neighbor against neighbor by the animosities it engendered, and seriously impeding the settlement and indus- trial progress of this, the best county in Central Iowa. And we believe this a finality.
" The citizens of our county, knowing by sad experience the deleterious in- fluence of local contests and jealousies, will evermore discountenance them, and substitute in their stead that generous rivalry to excel in substantial improve- ments and development of the common resources, which is consistent with the general good of the county.
" We learn that many of our friends, in various parts of the county, feel disappointed in not having received notice of the jollification on the occasion of the county seat removal, last Saturday.
"We regret exceedingly that the short notice given us did not permit a more general circulation of the news. We knew nothing whatever of the mat- ter till Messrs. Dishon and Whealan came down on Friday. From that moment every man and woman in town was 'busy as nailers,' preparing for the sup- per and reception to come off' next day, at 3 o'clock.
" It was impossible then to send out persons to notify the people. We trust our friends will accept these facts as our apology."
402
HISTORY OF MARSHALL COUNTY.
THE ALBION MOVEMENT.
The success achieved by Marshall was provocative of considerable feeling at Albion, and an effort was made by the citizens of Albion, in 1860, to secure the seat of justice for that place. Petitions were circulated by the Albion men, assisted by some of the Marietta people, and a large number of names obtained. It has been told us that over 1,300 signers were secured; but this must be an error. Since it is a fact that the vote for Governor in October. 1861, a year and a half later, was but 1,125, on both tickets ; and the popula- tion for 1860 was but 6,015, it is reasonable to believe that the only record found by us of the vote is about correct, viz .: 720 names. The papers quoted hereafter give what may be accepted as an official statement.
This large petition praying the County Judge to order an election in April. 1860, was met by a remonstrance which shows 775 names.
It is not our purpose to discuss the subject of the validity of the documents, since they were investigated before Judge Battin, County Judge, at the time The examination of them consumed about six days, and resulted in a ruling by the Court that the remonstrants were in the majority. The ruling of Judge Battin created a feeling of dissatisfaction in Albion, especially as the Judge was a resident of that place for several years after 1856. Suit was brought in the District Court to obtain a writ of alternative mandamus compelling him to order an election in April, 1861, or show cause for not doing so. The people were represented by William Parnell. The Court granted the mandamus at the April term, 1860, as follows :
STATE OF IOWA, 2 ss. Motion.
MARSHALL COUNTY.
In the matter of the State of Iowa ex rel. Wm. Parnell vs. The County Judge of Marshall County :
Now comes Wilson & Boardman, on the part of and in behalf of the above relator. William Parnell, and prays the court for an alternative writ of mandamus, directed to the County Judge of Marshall County, commanding him to order a vote on the relocation of the county seat of said county at Albion, according to law, or that, in default thereof, he show cause why he has not done the same, on or before the morning of the fifth day of the present term of the District Court of said county, at 9 o'clock A. M. WILSON & BOARDMAN,
Attorneys for Relator.
THE STATE OF IOWA, ?
Ss.
COUNTY OF MARSHALL.
To the County Judge of Marshall County, Greeting :
Whereas, it has lately been represented unto the District Court of the County of Marshall, State of Iowa, on the behalf of William Parnell, that the said Wm. Parnell is a resident of the town of Albion, in said county, that he is the owner of real estate therein, and that he is beneficially interested in having the county seat of Marshall relocated at said town of Albion ; that on the 11th day of January, A. D. 1860, a notice was issued in the Marietta Weekly Express, a weekly news- paper published in said county, and the same was published for a term of twenty days there- after, notifying the citizens of said county that at the February term of the County Court of said county, being on the first Monday of February, A. D. 1860 a petition would be presented to the said court praying the relocation of the county seat of said county at the town of Albion, in said county ; that on the said first Monday of February, A. D. 1860, the said petition was presented to the said County Court, praying the relocation of the county seat of said county at the town of Albion, and praying the Court to order that at the next April election holden there- after, to wit : on the first Monday of April, that a vote should be taken between the said desig- nated place, Albion, and the existing county sent ; that said petition was signed by seven hundred and seventeen citizens of said county, six hundred and eighty-fire of which signers were legal voters of said county ; that an affidavit was made at the time of the presentation of said petition, before the County Judge of said county, by at least one credible witness, that all the signers were, as the affiant verily believed, legal voters of said county ; that proof of the publi- cation of said notice was duly made before the said County Court, previous to the publication of said petition ; that the number of voters in the county of Marshall, according to the last preced- ing census, previous to the presentation, was twelve hundred and eighty-four (1,284) ; that upon
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HISTORY OF MARSHALL COUNTY.
the presentation of said petition a remonstrance to the prayer of said petition was presented to said court, signed by seven hundred and seventy-eight (778) persons, claimed to be legal voters of said county, and the same was by affidavit in the same manner of petition; that afterward, the said cause having been continued until the 15th day of February, 1860, at which time a further remonstrance was presented, signed by twenty-two persons, and verified in the same manner ; that upon the presentation of said petition and remonstrances, certain proceedings were had before the said Court, in which and by which it was by the said Court decided and determined that of the names of persons signed to the said remonstrances there appeared to be but six hundred and ninety-five (695) legal voters, entitled as such to sign such remonstrance ; and to the said petition there appeared but six hundred and eighty-five names of persons, legal voters in said county, as such entitled to sign such petition ; that therefore the said County Court, then and there, refused to grant the prayer of the petition, and refused to make the said order, and still refuses so to do : that the said relator, nor the citizens of the county of Marshall, have any plain, speedy and adequate remedy at law.
These are, therefore, in the name and by the authority of the State of Iowa, to command you that you forthwith proceed to make and enter at length upon the proper record book of said County Court, an order that at the April election to be holden hereafter, to wit: on the first Monday of April. A. D. 1861, a vote shall be taken upon the relocation of the county seat of said county, between the town of Albion aforesaid and the town of Marshall, the existing county seat of said county ; or that in default thereof, you show to this honorable Court, on or before the morning of the sixth day of the present term of this court, why you have not done the same.
In witness whereof, I, James L. Williams, Clerk of the District Court of the County of Mar- shall, have hereunto set my hand and affixed the seal of said court, this fifth day of April, 1860.
JAMES L. WILLIAMS,
Clerk of the District Court of Marshall County, Iowa.
BOND.
We, the undersigned, acknowledge ourselves to owe and be indebted to the county of Mar- shall, in the State of Iowa, in the sum of Five Hundred Dollars.
To be void on condition that the undersigned shall pay or cause to be paid to the proper parties, or to the said county for the use of the proper parties, all costs incurred on behalf of the town of Marshall in a certain proceeding now depending in the County Court of said county. in the matter of a petition and remonstrance relating to an order for a vote on the question of relocating the county seat of said county between the town of Marshall, the present county seat, and the town of Albion, in said county. WELLS S. RICE,
H. D. HARTWELL.
On the 7th of April, Judge Battin subscribed the following demurrer to the mandamus :
STATE OF IOWA, COUNTY OF MARSHALL.
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