History of Washington, Idaho, and Montana : 1845-1889, Part 73

Author: Bancroft, Hubert Howe, 1832-1918; Victor, Frances Fuller, 1826-1902
Publication date: 1890
Publisher: San Francisco : History Co.
Number of Pages: 880

USA > Idaho > History of Washington, Idaho, and Montana : 1845-1889 > Part 73
USA > Montana > History of Washington, Idaho, and Montana : 1845-1889 > Part 73
USA > Washington > History of Washington, Idaho, and Montana : 1845-1889 > Part 73

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661

RESIGNATION OF JUDGES.

it was stated that the Mexican laws not inconsistent with the laws of the United States, and applicable to the existing state of affairs, would remain in force, was the only authority for the opposite side of the argument. It was Judge Hosmer's opinion that the former laws remained in force until a Montana legis- lature enacted others, which should also be consistent with the constitution of the United States.

On the question of contracts, a large majority were of the opinion that contracts made while gold-dust was currency, for the payment of a given number of dollars, could only be liquidated by dollars of market value as measured by gold-dust. A few members of the bar, however, maintained that a promise within the United States to pay any number of dollars could always be liquidated by whatever the United States had declared to be the legal tender for the payment of debts. It does not appear that Judge Hosmer de- cided this question, but wisely left it to the legisla- ture, which held its first session before his court adjourned; and it 'soon ceased to be a disturbing question, popular sentiment in the mines being a unit in favor of gold.

Notwithstanding no ground of complaint could be found against the United States judges, except that they exercised their right to hold opinions in conso- nance with their convictions, shortly before the expi- ration of their terms judges Hosmer and Munson were warned by the anti-administration journals, and requested by the legislature, which had assigned them to the uninhabited counties of Bighorn and Choteau, to resign, and did resign, their places being filled by the appointment of Henry L. Warren, chief justice, and Hiram Knowles 29 associate. Williston remained

29 Knowles was threatened because in a case which concerned the adminis- tration of the estate of George Carhart, killed by Plummer's band at Plum- mer's bidding, Plummer pretending to take out administration papers in a miners' conrt and selling Carhart's interest in the Dakota mine to the Mon- tana Mineral Land and Mining company, the judge decided against the com- pany, and in favor of the proper heirs. Deer Lodge New Northwest, May 25, 1870. Knowles was from Keoknk, Iowa, and had resided in Nevada. He was appointed from Deer Lodge county, Montana, at the request of the bar. Virginia Montana Post, July 26, 1868.

662

POLITICAL AND JUDICIAL.

until 1869, when he was succeeded by George G. Symes.30

To return to the proceedings of the governor and legislature. Meagher was fond of proclamations, and considering that he was only, at the most, acting gov- ernor, drew upon himself the ridicule of the opposite party, who dubbed him, in a kind of merry contempt, the Acting One. He had called a third session of the legislature before the governor appointed to sue- ceed Edgerton arrived, October 3, 1866. This was Green Clay Smith of Kentucky, whose coming was without noise, and who assumed the executive office quietly and gracefully. The legislature which had been elected under the apportionment of the previous one, consisting of the maximum allowed by the organic aet, namely, thirteen in the council and twenty-six in the lower house,31 met November 5th, and proceeded to enaet laws. Governor Smith, in his message, rec- ommended some legislation looking to the establish- ment of a permanent and healthy system of education, and made some suggestions concerning such a system. He called attention to the debt of the territory, already amounting to $54,000, and to the manner in which the assessments and collections were made. While the assessment roll showed $4,957,274.53 of

30 Decius S. Wade was commissioned chief justice after Warren in 1871, and again in 1875. Knowles was retained two terms. John L. Murphy, commissioned Jan. 27, 1871, Franeis G. Servis Sept. 21, 1872, and Heury N. Blake July 30, 1875, were the associate justices down to a comparatively recent period. Con. Hist. Soc. Montana, 326-7.

31 In the council, Charles S. Bagg, A. A. Brown, William H. Chiles, J. E. Galloway, T. J. Lowry, Mark A. Moore, Sample Orr, E. F. Phelps, J. G. Spratt, David Tuttle, F. B. Waterbury, E. S. Wilkinson, G. G. Wilson. Bagg president. William Y. Lovell, F. W. A. Cunningham, C. V. D. Lovejoy, C. C. Menaugh, clerks. J. B. Caven sergeant-at-arms; Henry Catlett door- keeper. Mont. Jour. Council, 3d sess., 4. In the house, A. E. Mayhew, Ray W. Andrews, C. P. Blakely, I. N. Buck, M. Carroll, T. D. Clanton, John Donegan, A. M. Esler, J. Gallaher, T. L. Gorham, H. Jordan, W. W. John- son, A. S. Maxwell, J. L. MeCullough, Peter MeMannus, Lonis McMurtry, R. W. Mimms, John Owen, J. W. Rhodes, M. Roach, J. H. Rogers, A. J. Smith, H. F. Suelling, J. B. Van Hagan, J. W. Welch, J. B. Wyle. May- hew speaker. A. H. Barrett, James K. Duke, Hedges, McCaleb, clerks. O. P. Thomas sergeant-at-arms. William Deascey door-keeper. Mont. Jour. House, 3d sess., 4. Meblaunus killed a man in 1867, and was soon himself killed. Boisé Statesman, Ang. 3 and 17, 1867.

663

LEGISLATIVE TROUBLE.

taxable property, the treasurer's report showed only $20,316.95 paid in taxes from eight counties. The county of Choteau paid no tax, and refused to organ- ize or conform to the laws. The governor recom- mended the repeal of the law creating the county, thereby throwing it back into Edgerton county, whose officers would do their duty. But the treasurer of Edgerton county had 32 neglected to collect taxes, and left it in debt, when it was amply able to appear solvent. Two other counties, Meagher and Beaver- head, also failed to make any returns, for which evil the legislature was directed to find a remedy. Indeed, with all the legislating that had been done, the affairs of the young commonwealth were in a sad way, and not likely soon to be amended, under the existing practices of the legislature, which, while it affected economy in cutting down the salaries of federal officers, doubled the number of territorial officers, and paid them well for doing their duty ill.33 Indeed, they did not think twelve dollars a day high pay for mak- ing laws which congress might repudiate, but for which the territory had to pay.34 In addition to the debt, apparent and acknowledged, there was a large amount of scrip outstanding, of which there was no official record. The governor recommended the legis- lature to inquire into this matter, and the request was complied with, the inquiry resulting in findmg the debt of the young commonwealth to be over $80,000. The $20,000 in the treasury was supposed to be applied to liquidation, as far as it went, and the remaining $60,000 was funded at a high rate of in-

33 This was P. H. Read. His excuse was that he had no time to attend to his official duties, being employed in a mercantile house ! Virginia and Helena Post, Sept. 29, 1866.

33 The sheriff of Madison county, A. J. Snyder, was indicted for forgery. According to the Helena Republican of Sept. 20, 1866, he was able to escape the consequences of his crime by a free use of money among lawyers. The same paper says, 'We have a police magistrate, Mccullough, said to have belonged to a band of guerillas.' The 'left wing of Price's army' was not all in Idaho, although Montana early officials were not so notoriously corrupt as in the sister territory.

"+ The pay of a legislator, under the organic act, was $4 per day. Zabriskie's Land Laws, 868.

664

POLITICAL AND JUDICIAL.

terest for the tax-payers of the future to pay. Even this was not all, there being over $28,000 due the members of the second and third legislatures, which they had voted themselves.

Governor Smith recommended that instead of ask- ing for a mint, as was talked of, congress should be petitioned for an assay office. A surveyor-general was very much more needed 35 than a mint, if county boundaries and private land claims were to be cor- rectly established. Another good suggestion of Smith's was the adoption of the civil code of Califor- nia, by which the bar and courts of Montana would have the experience of many years of legislation under similar circumstances, and the opinions of the supreme court of the United States on questions likely to arise. As I have before said, this sugges- tion was carried out, although not by this legislature. Public buildings being still wanting, he recommended that congress be asked for means to erect those abso- lutely necessary for the preservation of the public archives, and auditor's and treasurer's books, and the safe-keeping of convicted felons.36 They were also advised to labor in behalf of the Northern Pacific railroad, to convince the national legislature of the great benefit of such a highway to the whole north- west territory, and especially to Montana.

35 Solomon Meredith was commissioned surveyor-general of Montana April 18, 1867. He was instructed to make the initial point of the surveys at Beaverhead rock, named by Lewis and Clarke. Lewis and Clarke's Journal, 257. But this not being convenient, the starting-point was fixed at a lime- stone hill 800 feet high, near the mouth of Willow creek, between that stream and Jefferson river, 12 miles from the three forks of the Missouri. The base line was run 30 miles east and 34 miles west from this point, and the standard meridian 42 south and 60 miles north from it in IS67. De Lacy, being draughtsman in the office of the sur .- gen., corrected his map by the survey. Tri- Weekly Mont. Post, Nov. 16, 1867. Orville B. O'Bannon was appointed register, and George McLean receiver, of the land-office. Meredith was succeeded in 1869 by Henry D. Washburn, who was followed in 1871 by John E. Blaine, who gave place in 1874 to Andrew J. Smith. The regis- ters following O'Bannon were Lorenzo B. Lyman, Addison H. Sanders, Wil- liam C. Child, and James H. Moe. The receivers after McLean were Richard F. May, Solomon Star, and H. M. Keyser, down to 1875.

36 Congress appropriated in 1866, for a penitentiary, $40,000 out of the internal revenue, to be collected annually for three years; this being the first appropriation for territorial buildings in Montana. Cong. Globe, 1866-7, app. 180; Virginia Montana Post, Feb. 23, 1867.

665

SEAT OF GOVERNMENT.

The seat of government, located at Virginia City when that was the centre of the mining population, was already coveted by other towns, centres of other rich mineral districts, and by the inhabitants of counties centrally located with reference to the whole territory. The legislature of November 1866 settled the question, so far as they were concerned, by re- moving the capital to Helena.37 The organic act required a vote of the people upon the final location of the seat of government, and other events were to occur which would nullify their action.

$7 Montana Jour. House, 3d sess., 165, 176, 271, 319.

CHAPTER IV.

POLITICAL HISTORY.

1866-1886.

SPECIAL LEGISLATION-ALL MADE NULL BY CONGRESS-USEFUL LAWS-THE CAPITAL QUESTION-PARTY ISSUES-THE SEVERAL LEGISLATURES- GOVERNOR ASHLEY-GOVERNOR POTTS-NEWSPAPERS-RAILWAY LEGIS- LATION-THE RIGHT-OF-WAY QUESTION-TERRITORIAL EXTRAVAGANCE -NORTHERN PACIFIC RAILWAY-LOCAL ISSUES-RETRENCHMENT AND REFORM.

HAVING discharged the onerous duties of his office for a few months, Governor Smith returned to the states, and Meagher again came to the front. Once more he proclaimed a special session of the legislature, the motive of which was that a law had just been passed by congress and approved by the president convening the 40th congress on the 4th of March, whereas the election law of Montana, which fixed the day of general election on the first Monday of Sep- tember, would leave the territory without a delegate from March until September. Not that a delegate had ever been of much service to the country, but that it was imperative the office should be filled. The proc- lamation therefore called upon the legislature to con- vene at Virginia City on the 25th of February, 1867, for the purpose of altering the election law so as to provide for the election of a delegate without loss of time, "as well as for the adoption of such other alter- ations and amendments as, under the present circum- stances of the territory and the nation at large, it may appear expedient to enact."1

1 Virginia Montana Post, Feb. 23, 1867.

(666 )

667

INVALID LEGISLATION.

There was another motive for a special session, which was the passage of a number of toll-road char- ters, a favorite method of taxing immigration and the travelling public generally. It was the same greed that had cursed eastern Oregon and Idaho. A few hundred dollars expended in grading odd bits of a natural roadway, and an exorbitant toll exacted for every man and animal that passed over it; or a few logs thrown across a stream, and another toll to be paid for that; after which, there was the ferry just beyond, for which a higher charge than either had to be paid. And these latter were also monopolies, their charters prohibiting any other bridge or ferry within a certain number of miles. Fifty-eight charters, chiefly of this sort, were granted at the November session, and a new batch was now to be allowed, if the legislature came together once more.2 In vain the press, which had the interest of the country at heart, opposed itself to these abuses; they had to have their day.

The legislature met on the 25th, and continued in session until the 6th of March. A number of local laws were enacted, and an attempt was made to amend the election law so as to hold an election for delegate and county officers in April, and secure these places to their own party. But the measure failed, the legis- lature foreseeing that to tamper with so important a law, in the absence, too, of a number of the legisla- tors, would be to invoke the displeasure of congress. Scarcely had they adjourned finally when the tele- graph announced that all their law-making, from the time when the first legislative body had failed to carry out the provisions of the organic act by passing an apportionment bill, had been declared invalid by con- gress, together with their numerous oppressive char- ters,8 except such as could be sustained in the courts.

2 It cost $37.50 for each wagon from Salt Lake to Helena, and as much from Helena to Bighorn River.

$ 'The legislative assemblies of the several territories of the United States shall not, after the passage of this act, grant private charters or special priv-

668

POLITICAL HISTORY.

The power they had abused was taken away from them. The salaries of the chief and associate justices were raised to $3,500 annually, and the pay of legis- lators left where it had been first fixed. The judges were authorized to define the judicial districts, assign themselves by agreement, and fix the times and places of holding court, not less than two terms yearly at each place. The governor was authorized to divide the territory into election districts, the election to be held at the time and place prescribed by the legis- latures of 1864 and 1865, and the qualification of voters to be the same as in the original act, save re- strictions by reason of race or color." There were two years and a half of legislative existence blotted out, and everything had to be begun over at the point where the first legislature left off in a fit of peevish- ness because the governor endeavored to check their extravagance and love of power. Nevertheless the legislative assembly was authorized to reënact, one by one, such acts of the bogus legislatures as they deemed beneficent.5

The situation was unique for a territory which had contributed, in its brief existence of three years, thirty millions in gold to the world's treasure. But it was this prodigality of wealth which drew to it the cor- morants of avarice and crime. The republicans nomi- nated for delegate W. F. Sanders, who received, out of 10,901 votes cast, 4,896. Cavanaugh was returned by a majority of 1,108.6 As to the legislature, Madi-

ileges, but they may, by general incorporation acts, permit persons to associ- ate themselves together as bodies corporate for mining, manufacturing, and other industrial pursuits.' Zabriskie's Land Laws, 871.

"The organic act of Montana, in respect of qualification of voters, was the same as in the organic act of Idaho, which permitted 'every free white male inhabitant above the age of 21 years,' an actual resident, etc., to vote at the first election. The amendment to the organic act of Montana above quoted, 'saving the distinction therein made on account of race or color,' was an in- troduction of the 15th amendment to the U. S. constitution before that amendment had been adopted by congress.

" The telegram from Washington read as follows: 'Congress has annihi- lated the bogus legislature of Montana and annulled its laws. The election is fixed for September. U. S. judges' salaries fixed nt $3,500. Montaniane celebrate here to-night.'

" Ilelena Herald, Dec. 7, 1876; Virginia Montana Post, Oct. 5, 1867. Cava-

669

CHOICE OF CAPITAL.

son county elected one republican, the only one elected in the territory, and he was ruled out, not be- cause he was not elected by a majority, but because he was not wanted in that body, where, indeed, he would have been of little use.7

Many useful statutes were now placed upon record. One, an act to amend an act to locate the seat of government, which removed the capital to Helena, subject to the vote of the people, failed. The gov- ernor, who had once approved the measure, now thought fit to veto it, for the bill called for votes on two places only, he said; there might be another more suitable. The surveyor-general's report showed that when the county lines came to be adjusted, Helena might fall in Jefferson county, and Virginia City in Beaverhead. The Northern Pacific rail- road, which all expected to be built in a few years, would naturally be an important factor in the loca- tion of the seat of government. For these and other reasons he advised them to let this matter rest for a few sessions, or until the affairs of the territory should shape themselves more definitely.8 Not satisfied, the legislature passed another bill naming three localities to be presented to the vote of the people, which re- ceived the governor's veto for the same reasons, and other technical objections. It was reconsidered and lost, yet it continued to crop up at succeeding legis-

naugh is described as a man of good abilities, but he did not seem to have used them for Montana. He was a lawyer by profession, and was the first delegate from Minnesota. In 1860 he came to Colorado, residing at Central City until he went to Montana. After his delegateship he resided in New York City. In 1879 he returned to Colorado, settling in Leadville, but died soon after arriving. Denver Tribune, Oct. 31, 1879.

" The council consisted of Charles S. Bagg, president, John W. Corum, W. E. Cullen, Alexander Davis, Sample Orr, Jasper Rand, Thomas Watson; sec., Thomas B. Wade; asst sec., C. C. Menaugh; clerks, H. H. Showers, D. B. Jenkins; sergeant-at-arms, Stephen R. Elwell; door-keeper, John Thompson. The members of the lower house were Wellington Stewart, speaker, J. M. An- derson, N. C. Boswell, H. R. Comly, W. H. Edwards, James Gallaher, H. A. Kennerly, F. E. W. Patton, J. W. Rhodes, John A. Simms, W. Tennant, J. R. Weston, Samuel Word; clerks, H. A. Barrett, F. A. Shields, J. G. McLain, William Butts; sergeant-at-arms, O. P. Thomas; door-keeper, H. J. Hill. Mont. Jour. Council, 4th sess., 4.

8 Mont. Jour. House, 4th sess., 84-88; Deer Lodge Independent, Nov. 30, 1867.

670

POLITICAL HISTORY.

latures until 1874, when the capital was permanently located at Helena.º The penitentiary, however, was located at Deer Lodge City, by act of this legisla- ture, and without active opposition.10

9 An act was before the legislature in 1868 to remove the capital to Deer Lodge City. The majority of the committee to which it was referred-H. W. English, T. B. Edwards, and Sample Orr-reported against it; and the minority-Jasper Rand and Thomas Watson-in its favor. Mont. Council Jour., 5th sess., 90. The minority report prevailed, and the bill was finally approved, ou being amended to read Helena instead of Deer Lodge. The majority of votes was claimed for Virginia City, Madison county, in order to make sure of the result, casting between 1,800 and 1,900 votes, instead of her usual 1,200 or 1,300. Choteau county was thrown out altogether, on ac- count of alleged irregularities. Owing to a change in the periods of the legis- lature, which became biennial by act of congress in 1869, the capital question was not voted upon again until 1872, when Helena, Deer Lodge, and Gallatin contended for the boon, and Virginia City still managed to hold it. In 1874 a vote was again taken for the removal to Helena. The history of the strug- gle of Virginia City to retain the capital is one of dishonor. Forged election returns from Meagher county were substituted for the actual abstract. The canvass was made in the presence of the governor, Potts, the secretary, Cal- loway, and the U. S. marshal, Wheeler. It was said that the governor knew the returns to be fraudulent. However inconsistent that may be with his usual fair course, he made no effort to secure a fair recount when it was made apparent that there had been a forgery committed. The secretary is said to have planned the fraud, or to have been a party to it. He issued a circular requesting the returns to be sent through the express office, and allowed them to remain there 18 days, during which time the false abstract was made. The governor refused to offer a reward for the discovery of the criminal. A large reward was offered by others, but failed of its object. There was an effort made by Potts and Calloway to unseat Knowles, by whose judgment in the courts the electoral count was declared a fraud. The case was taken before the supreme court, and a recanvass ordered, which resulted in a majority of 457 for Helena. This ended a long struggle, in which all the dishonest practices of unscrupulous politicians were exhausted to defeat the choice of the peo- ple. Deer Lodge Independent, Sept. 21 and Oct. 2, 1874, Jan. 15 and 22, 1875; Helena Ilerald, Feb. 19, 1874; Deer Lodge New Northwest, May 9 and Aug. 8, 1874.

1º The corner-stone of the penitentiary was laid June 2, 1870, A. H. Mitchell being commissioner. The plan of the building was a central main structure 36 by 30 feet, with two wings 70 by 44 feet. It was built of brick, and one wing completed in October. Gov. Potts appointed Conrad Kohrs, Granville Stuart, and Jolin Kinna prison commissioners, and James Gilchrist warden. The penitentiary cost, when occupied, in 1871, $49,300. It was placed by law under the charge of the U. S. marshal, William F. Wheeler, and opened for the reception of 12 prisoners on the 2d of July of that year. The expenses of the prison, including salaries of officers, were paid by the general government, until May 15, 1873, when the territory assumed the ex- penses, and the government paid $1 per day for keeping its convicts. In Au- gust 1874 this rule was reversed, the government again assuming charge, and the territory paying $1 per day for its convicts. The actual cost of keeping prisoners was from $1.86 to $2.03 per day, in the first few years. It has grad- ually been reduced to $1.36. These statements are taken from a written account of the penitentiary by Marshal Wheeler, except the plan of the build- ing, which is copied from the printed documents of the period. The prisoners had no regular employment, although they had made many improvements in the prison, and manufactured their clothing, or performed any labor required.

671

MONEY WANTED.

That part of the amendment to the organic act which required the election law to conform to the new condition of the country with regard to race and color failed to receive that attention demanded by the man- date of congress, and while the Montana legislators amended the election act of 1864-5, they left upon the statute the interdicted phrase, "white male citizen," which contempt, when it came to the ears of the gov- ernment, came near causing the annulment of all the laws of this session, a repeal of the organic act of Mon- tana being threatened,11 whereupon the discriminating phrase was expunged. Another way of emphasizing their anti-union tendencies was shown in the apportion- ment act, which was still made to call for the maxi- mum number of legislators, less two in the house of rep- resentatives,12 leaving nothing for the future expansion of the population to build upon. They memorialized congress for permission to form a state constitution while the territory was still deeply in debt,13 and at the same time, for more than a million dollars to pay the Indian-war debt. A good deal of this money would come into the itching palms of the politicians and all the state officers, if they succeeded in getting an enabling act passed. To give increased flavor to the proceedings, the chief justice of the territory and Judge Munson were asked, by resolution, to resign, as I have before mentioned. By this time the legal forty days' term was exhausted, but an extra session was called, which met on the 14th of December and sat for ten days. Then congress enacted that

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History of Washington, Idaho, and Montana : 1845-1889, Part 73

Author: Bancroft, Hubert Howe, 1832-1918; Victor, Frances Fuller, 1826-1902 Publication date: 1890 Publisher: San Francisco : History Co. Number of Pages: 880

Author: Bancroft, Hubert Howe, 1832-1918; Victor, Frances Fuller, 1826-1902
Publication date: 1890
Publisher: San Francisco : History Co.
Number of Pages: 880