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GEN
ALLEN COUNTY PUBLIC LIBRARY 3 1833 00302 4459
Gc 977.2 M74c v. 2 MONKS, LEANDER JOHN, 1843- 1919. COURTS AND LAWYERS OF
C. P. Martin
Courts and Lawyers of Indiana
LEANDER J. MONKS, LL. D. Editor-in-Chief
LOGAN ESAREY, Ph. D. ERNEST V. SHOCKLEY, Ph. D. Editors
VOLUME II
ILLUSTRATED
1916 FEDERAL PUBLISHING CO., Inc. Indianapolis
Copyright, 1916, By Federal Publishing Co., Inc.
303012
CONTENTS-VOLUME II.
Chapter
XIII-Attorney-Generals
389
Chapter
XIV-Federal Courts of Indiana
403
Chapter
XV-The New Bar
425
Chapter
XVI-Indiana State Bar Association
456
Chapter
XVII-Legal Education in Indiana
470
Chapter XVIII-Law Libraries 487
Chapter
XIX-Statutory and Documentary Material of Indiana
491
Chapter
XX-Legal Writers of Indiana
500
Chapter
XXI-Present Judicial System
517
Chapter
XXII-County Courts of Indiana
535
MAR 1 8 1938
CHAPTER XIII. ATTORNEY-GENERALS.
INDIANA TERRITORY.
The office of attorney-general was created by the Legisla- ture of the Northwest Territory, with the act of December 19, 1799. When the Northwest Territory was divided by the act of May 7, 1800, the newly organized Indiana territory adopted, among other laws, the one providing for an attorney-general. During the territorial period of Indiana (1800-1816) there was no specific law adopted by the Governor and Judges or by the Legislature providing for an attorney-general, so it is very evident that the four attorney-generals appointed be- tween 1800 and 1816 held their office by virtue of the act of Decembed 19, 1799.
The appointment of the first three of the attorney-gen- erals during this period (1800-1816) is given in the Executive Journal of Indiana Territory, but the appointment of Elijah Sparks, the last one to hold the office while Indiana was a ter- ritory, is, for some reason, not mentioned in the Executive Journal. It seems evident that Sparks was so appointed, if the Vincennes Western Sun, in its issue of August 21, 1813, is to be believed. In this issue, the Western Sun makes a statement that Sparks had been appointed by the President of the United States and, if this is a fact, he must have re- signed on or before September 18, 1814, since on that date he was commissioned judge of the Third Judicial circuit of In- diana Territory. The records in the secretary of state's office do not disclose the appointment of Sparks, nor, in fact, of any attorney-general after Thomas Randolph. The four at- torney-generals of Indiana Territory, with the dates of their incumbency, are as follows :
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COURTS AND LAWYERS OF INDIANA
Jolın Rice Jones January 29. 1801, resigned in 1804.
Benjamin Parks August 4, 1804, resigned in 1808, when he was made the Territorial Judge by the President of the United States.
Thomas Randolph June 2, 1808, served until killed at the battle of Tippecanoe, November 7, 1811.
Elijah Sparks August. 1813-September, 1814.
1816-1851.
The Constitution of 1816 did not provide for an attorney- general, but by the act of December 31, 1821, the office of at- torney-general was established by the Legislature, the act providing that he should be elected by joint ballot of both houses of the General Assembly. The tenure was fixed at three years and an annual salary of two hundred dollars was provided for the office. Pursuant to this act, the Legislature on the same day (December' 31, 1821), elected Harbin H. Moore, of Corydon. The Revised Laws of 1824 lists the act of December 31, 1821, but the Legislature which met in Indi- anapolis in January, 1825, repealed the act providing for an attorney-general. It was apparent that there was hardly a sufficient amount of business to justify the maintenance of an attorney-general, so it was provided (January 20, 1826), that the prosecutor of the Fifth judicial circuit, which in- cluded Marion county, should "be compelled to superintend and prosecute or defend on the part of the state, all pleas whatsoever that may be appealed or brought up by writ of error to the Supreme court." In other words, the prosecutor of this judicial circuit became in effect the attorney-general of the state. The prosecutors in 1831 were allowed one hun- dred and fifty dollars per annum, while the prosecutor of the Fifth judicial circuit was given an extra fifty dollars because of his added duties as the attorney for the state. This same provision was adopted in the Revised Statutes of 1838, and again in 1843. In the Revised Statutes of 1843, the provision for the prosecuting attorney of the Fifth judicial circuit in his relation to the Supreme court is amplified into an article of four sections. Since this is the last definite statement under the old Constitution concerning the office, it seems per-
.
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ATTORNEY-GENERALS
tinent to insert in this connection the provision of this article in full. It follows (Revised Statutes 1843, page 640) :
Sect. 100. It shall be the duty of the prosecuting attorney of the judicial circuit of which the county of Marion shall form a part, to appear, by virtue of his office, on behalf of the state of Indiana, as attor- torney for the state, and superintend, prosecute and defend all indictments, pleas, suits, matters, and proceedings whatsoever, which may be appealed or brought into the Supreme Court by writ of error or otherwise, in which the state is a real party, or has any interest.
Sect. 101. In any matter or suit specified in the preceding section, the attorney who may have prosecuted or defended the same on the part of the state iu the court below, may, with the consent of the Supreme Court, be associated with such attorney for the state, in the prosecution or defence of such matter or suit, or he may, with the consent of the attorney for the state in the Supreme Court, and with leave of such court, have the sole management and control of such case: and then such attorney for the state shall be exonerated from all further attention to the same.
Sect. 102. In case of the absence of the attorney for the state, the Supreme Court may appoint an attorney to supply his place, who shall receive such compensation therefor as to the court shall seem reasonable, to be drawn from the state treasury on the allowance of the court. and shall be deducted from the salary of such attorney for the state, which he is authorized to receive for his services as such attorney.
Sect. 103. Such attorney for the state. whenever requested by the governor. secretary of state, treasurer of state or auditor of public accounts. shall prepare drafts for contracts, obligations, and other in- struments which may be wanted for the use of the state; he shall also, when required by any of said officers, give opinions and instructions upon any legal question which may arise in the performance of any of the duties of any such officers.
1851-1915.
The Constitution of 1851, like that of 1816, made no pro- vision for the office of attorney-general, nor did the Legisla- ture make any provision for the prosecutor of the circuit to which Marion county was attached to handle the suits of the state. The office of attorney-general came into existence as a result of the act of February 1, 1855, the act providing that it should be filled by the qualified voters of the state. The General Assembly, on March 5, 1855, appointed James Morri- son to fill the office until the next general election.
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COURTS AND LAWYERS OF INDIANA
The act of 1855 creating the office did not specify in detail its duties and made no provision for the attorney-general to submit a report. An act passed June 3, 1861, defined the duties of the office, but it was still thought unnecessary to ask the attorney-general to make a report to the governor or Leg- islature. It was not until March 10, 1873, that the Legisla- ture passed an act requiring the attorney-general to write out his opinions and submit them to the governor. This act provided that the attorney-general should give a written opin- ion in certain cases and further required him to keep a record of all the moneys collected by the office and make a report to the secretary of state on November 1 of each year. An an- nual report was required from 1873 until 1885, when, by the act of April 13 of that year, the attorney-general was re- quired to submit a biennial report only.
The following table shows in detail where the annual re- ports of the attorney-general from 1873 to 1885 may be found :
1873 Documentary Journal, 1873-No. 4.
1874 Documentary Journal, 1874-75-No. 9.
1875 Documentary Journal, 1875-No. 13.
1875-76 __ Documentary Journal, 1876-77-No. 8.
1877-78 __ None issued.
1879-80 __ Documentary Journal, 1880-No. 4.
1881-82 __ Pamphlet giving official opinions only.
1883-84 __ Documentary Journal, 1884-No. 6.
Since 1885 the biennial reports of the attorney-general have been issued in a separate volume, although in some cases they have been issued in two volumes.
The next legislative act touching the office of the attorney- general was passed March 5, 1889. This act made the attor- ney-general responsible for the prosecution and defense of all suits instituted by or against the state and also required that he represent the state in all criminal cases in the Supreme and Appellate courts, and defend all suits brought against the state officers.
The present salary of $7,500 per year was fixed by the act of March 11, 1895, the same act specifying that the deputy attorney-general should be paid $1,800 and the second deputy attorney-general $2,400. The attorney-general, as well as both
GEH Donald
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ATTORNEY-GENERALS
of his deputies, was allowed actual traveling expenses when traveling on business connected with the office. From the creation of the office in 1855 until 1909, the attorney-general was allowed fees in certain cases, but by the act of March 4, 1909, the attorney-general was required to turn over moneys collected by the office to the general treasury of the state.
There have been twenty-two attorney-generals since the office was created in 1855 and it is to the credit of the voters of the state that well qualified men have uniformly been chosen to fill the office. A brief sketch of all the incumbents of this office is given in the succeeding paragraphs.
James Morrison was born in Ayrshire, Scotland, in 1796. He came to this country with his parents when a boy and settled at Bath, New York. He secured a limited elementary education and studied law under William B. Rochester. When admitted to the bar he moved to Indiana and located in Charleston, Clark county, where he practiced for ten years. In 1828 he was elected secretary of state and moved to India- napolis. Later he was Circuit Judge, and was president of the old State Bank for ten years. He was the first attorney- general and served by appointment from March 5, 1855, to December 17, 1856. He died on March 20, 1869.
Joseph Ewing McDonald, attorney-general of Indiana from 1856 to 1860, was born in Butler county, Ohio, August 29, 1819. His father died when he was an infant and his mother later married John Kerr. The family moved to Montgomery county, Indiana, in 1826 and it was here that McDonald re- ceived such education as the public schools and Wabash Col- lege afforded. As a youth he was apprenticed to a saddle- maker and worked at the trade for six years. During this time he read widely in the library of Dr. Isaac B. Camby and laid the foundation for his future career. In 1840 he worked on the old Wabash & Erie canal and during part of the same year was a student at Asbury University at Greencastle. In 1842 he began to read law with Zebulon Baird at Lafayette and the following year was admitted to the bar and at once elected prosecuting attorney, being re-elected two years later When thirty years of age he was elected to Congress and served one term (1849-1851). In 1856 he was elected attor-
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COURTS AND LAWYERS OF INDIANA
ney-general of the state and was re-elected at the expiration of his first term. In 1859 he formed a partnership with Addison L. Roache, who had just resigned from a seat on the Supreme bench. In 1864 McDonald made an unsuccessful race for governor against Oliver P. Morton. The Legislature elected him United States senator in 1875 to succeed Daniel D. Pratt, but he was defeated six years later by Benjamin Harrison. In the campaign of 1884 he was one of the promin- ent candidates before the Democratic national convention, but was defeated by Grover Cleveland. The last fifteen years of his life he practiced law in Indianapolis in partnership with John M. Butler. He died on June 21, 1891.
James G. Jones was born at Paris, Kentucky, July 3, 1814, and came with his parents to Vanderburg county, Indiana, in 1819, settling in Union township. His education was confined to the subscription schools of his community. By dint of hard work he became a lawyer. He was county recorder and also served as county surveyor. In 1840 he was city attorney of Evansville, and at one time served as town trustee. He was the first mayor of Evansville and in 1850 was re-elected to a second term. In 1860 he was elected attorney-general, but resigned in 1861 to become colonel of the Forty-second Regiment, Indiana Volunteer Infantry. Later he was provost marshal of the state and head of the recruiting bureau. At the close of the war he resumed the practice of law. In 1869 he was appointed by Governor Baker as judge of the Fifteenth judicial circuit. His death occurred on April 5, 1872.
John Palmer Usher was born in Brookfield, New York, January 9, 1816. He came to Indiana when a young man, studied law and was admitted to the bar. In 1850 he was elected to the Legislature and on November 10, 1861, was ap- pointed attorney-general to fill out the unexpired term of James G. Jones. On March 20, 1862, he was appointed first assistant secretary of the interior in Lincoln's cabinet, and on the resignation of Caleb B. Smith, succeeded him as head of the department on January 8, 1863, holding the office until he resigned, May 15, 1865, to become attorney for the Union Pa- cific Railroad. He died in Philadelphia, Pennsylvania, April 13, 1889.
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ATTORNEY-GENERALS
John F. Kibbey was born in Richmond, Indiana, May 4, 1826, and was the son of John C. and Mary (Espy) Kibbey. He received his rudimentary education under the instruction of his father, and at the age of nineteen entered Miami University, at Oxford, Ohio, where he remained three terms. In 1849 he began the study of law under Oliver P. Morton and was ad- mitted to the bar in 1852, forming a partnership with his pre- ceptor, which relation continued until Morton was elected lieu- tenant-governor of Indiana in 1860. While studying law Kibbey served as surveyor of Wayne county and was re-elected to that position, serving until 1856. On March 19, 1862, Kibbey was appointed attorney-general of the state to fill the vacancy caused by the resignation of John P. Usher and served until November 3, 1862, when he was succeeded by Oscar B. Hord. In 1863 Kibbey was appointed military commander of his con- gressional district to raise volunteers for the war and provide for their maintenance until mustered into the service of the United States. In 1865 he was appointed judge of the Wayne county Common Pleas court, and held the office by subsequent re-election until 1873, when the court was abolished. In 1873 he was elected judge of the Circuit court of Wayne county and served until 1885.
Oscar B. Hord was born at Maysville, Kentucky, August 31, 1829, and was the son of Francis T. Hord, a lawyer and judge of a Kentucky Circuit court. Oscar B. Hord read law in his father's office and, when twenty years of age, located at Greens- burg, Indiana. In 1852 he was elected prosecuting attorney. He formed a partnership with Colonel Gavin, of Greensburg, and together they prepared "Gavin & Hord's Statutes". In 1862 he was elected attorney-general of the state and upon retiring from the office in 1864 he formed a partnership in Indianapolis with Thomas A. Hendricks and Samuel E. Perkins. Later A. W. Hendricks and Conrad Baker were asso- ciated with this firm. Hord died on January 15, 1888.
Delano Eccles Williamson was born in Florence, Boone county, Kentucky, August 19, 1822, and was the son of Robert and Lydia (Madden) Williamson. His parents moved to Cov- ington, Kentucky, when he was a child, and in 1833 moved to Vermilion county, Illinois, where he remained until his nine- teenth year. He attended the district schools and in 1841
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COURTS AND LAWYERS OF INDIANA
went to Greencastle, Indiana, with the idea of entering college, but changed his plans and went to Bowling Green, the county seat of Clay county, to work in the county clerk's office. There he remained for two years, studying law during his leisure moments. Williamson returned to Greencastle in 1843, where he continued his studies in the office of Eccles & Hanna and soon afterward was admitted to the bar. Locating in Clay county, he practiced until 1850, when he was elected to the Legislature. He removed to Greencastle in 1853, and ran for the Legislature on the Democratic ticket, but was de- feated. At the outbreak of the Civil War he was a strong Union man and allied himself with the Republican party. In 1864 he was elected attorney-general and held the office for six years.
Bayless W. Hanna was born in Troy, Ohio, March 14, 1830. He was the son of James and Nancy (Tilford) Hanna. In 1836 the family removed to Crawfordsville, Indiana, where James Hanna became one of the founders of Wabash College, in which institution his son was educated. After leaving college in 1852, Hanna entered the law office of Joseph E. McDonald and afterward studied under Wilson & McDonald. On account of failing health, he went to Natchez, Mississippi, where, after finishing his studies under Josiah Winchester, he was examined and admitted to the bar in 1855. Returning to Crawfordsville, he was elected prosecuting attorney in 1856. In 1857 he opened a law office and established his home in Terre Haute. In 1862 he was elected to the lower house of the Indiana Legislature; in 1864 he went to the Senate, and in 1870 was elected attorney-general. Hanna served as attorney- general from November 3, 1870, to November 6, 1872.
James C. Denny, attorney-general of Indiana from 1872 to 1874, was born in Knox county, Indiana, August 8, 1829. His father came from Kentucky and his mother from Tennessee. Denny was educated in the common schools of Knox county, in private schools and at the Vincennes University. His earlier years were spent on the farm, but when about twenty- one he entered a store and clerked for four years. During the last two years he read law at night, and then, as deputy county clerk, he read law two years longer. Soon afterward he was admitted to the bar and began practice with Samuel
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ATTORNEY-GENERALS
Judah. The partnership lasted six years. Denny became judge of the Circuit and Common Pleas courts of Knox county prior to his election as attorney-general of Indiana in 1872.
Clarence Augustus Buskirk was born at Friendship, Alle- gany county, New York, November 8, 1842, and was the son of Andrew C. and Diantha (Scott) Buskirk. He attended Friendship Academy until seventeen years of age, and after- ward became a student in the University of Michigan. He studied law in the office of Balch & Smiley, at Kalamazoo, Michigan, attended a course of law lectures at Ann Arbor, and was admitted to the bar in 1865. Coming to Indiana in 1866, he located at Princeton. He was elected to the Legisla- ture in 1872. In 1874 he was elected attorney-general and was re-elected in 1876, occupying the office from November 6, 1874, to November 6, 1878. In recent years he has spent considerable time as a lecturer for the Church of Christ, Scientists.
Thomas Wheeler Woollen was born in Dorchester county, Maryland, April 26, 1830, and was the son of Edward and Anna (Wheeler) Woollen. He worked on his father's farm until 1845, when he moved to Baltimore. In 1848 he came to Indiana and located at Madison. He served as deputy county clerk in Jefferson county and also as deputy treasurer. In 1856 he left Madison and entered the clerk's office at Vernon, in Jennings county. Meantime he had been studying law and, after a brief residence at Vernon, he moved to Franklin, and, in connection with Jeptha D. New, opened a law office in that city. In 1862 he was elected to the Legislature from Johnson county, and in 1868 was elected judge of the Common Pleas court, which office he held for two years, resigning to take charge of the First National Bank, of Franklin. In 1870 he resumed the practice of law and in 1872 was re-elected to the Legislature. In 1878 he was elected attorney-general to succeed Clarence A. Buskirk, and served one term.
Daniel Pratt Baldwin, attorney-general of Indiana from 1880 to 1882, was born in Madison county, New York, in 1837. He was educated in the public schools, Cazenovia Academy and Madison University. He graduated from the Columbia Law School in 1860. Shortly afterwards he moved to Logan- sport and became a partner of his uncle, Daniel D. Pratt. In
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COURTS AND LAWYERS OF INDIANA
1870 Baldwin was elected to the vacancy in the court of Com- mon Pleas, and later was re-elected. In 1877 Madison Uni- versity conferred upon Judge Baldwin the honorary degree of Doctor of Laws. During his whole life he was much inter- ested in literature and wrote much in the form of newspaper articles, letters and lectures. Judge Baldwin was an active worker for the Republican party in every campaign from 1860 to 1892. In 1880 he was a candidate for Republican nomina- tion for judge of the Supreme court, but was defeated. In 1892, after a misunderstanding with President Harrison, Bald- win gave his support to the Democratic party, but later re- turned to the Republican ranks. He died suddenly on Decem- ber 13, 1908.
Francis T. Hord was born at Maysville, Kentucky, Novem- ber 24, 1835, and was the son of Francis T. and Elizabeth S. (Moss) Hord. He secured his education at the seminary of Rand & Richeson, at Maysville, where he graduated in 1853, and at once began the study of law with his father. He was admitted to the bar in 1856 and the following year located at Columbus, Indiana, where he opened a law office. In 1858 he was elected prosecuting attorney and in 1860 was appointed county attorney. In 1862 he was elected to the State Senate. Hord was elected attorney-general in 1882 and was re-elected in 1884. He was elected judge of the Ninth judicial circuit in 1892 and served until 1904. He was a brother of Oscar B. Hord, who was attorney-general from 1862 to 1864. He died at Indianapolis, March 8, 1912.
Louis Theodore Michener was born near Connersville, In- diana, December 21, 1848, and was the son of William and Mary A. Michener. His educational training was limited to the common schools of the county and one year at Brookville College. He began the study of law in 1870 with James C. McIntosh, at Connersville. When admitted to the bar in 1871 he began to practice at Brookville and the same year was appointed deputy district attorney for Franklin county, serv- ing two years. In 1873 he removed to Winfield, Kansas, where he remained one year, and then returned to Indiana and located at Shelbyville, where he formed a partnership with Thomas B. Adams. He was elected attorney-general in 1886 and was re-elected in 1888, serving two full terms. He
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ATTORNEY-GENERALS
has been a practicing attorney in Washington, D. C., for several years.
Alonzo Greene Smith was born in Meigs county, Ohio, September 6, 1848. His education was obtained in the common schools, supplemented with a partial course at Franklin Col- lege, Ohio. In 1867 he came to Indiana and located at North Vernon, where he was admitted to the bar two years later. In 1884 he was elected to the State Senate, and served in the sessions of 1885 and 1887, being president of the Senate dur- ing the latter session. Smith was elected attorney-general in 1890 and was re-elected in 1892, serving from November 22, 1890, to November 21, 1894.
William A. Ketcham was born in Indianapolis in 1846, and is the son of John L. and Jane (Merrill) Ketcham. He attended the public schools of Indianapolis until he was thir- teen years of age and then spent two years in the schools of Germany. In 1861 he entered Wabash College at Crawfords- ville and remained there until February, 1864, when he en- listed in Company A, Thirteenth Regiment, Indiana Volun- teer Infantry. By successive promotions he rose to the rank of captain before he was mustered out in September, 1865 .. After the War he entered Dartmouth College and graduated in 1867. He then entered upon the study of law with his father and David McDonald and was admitted to the bar in 1869, beginning practice with his father and Major Mitchell. Later he was associated with Judge Newcomb and Solomon Claypool. He was elected attorney-general in 1894 and was re-elected in 1896. For the past twenty years he has been practicing law in Indianapolis.
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