USA > Indiana > Elkhart County > A standard history of Elkhart County, Indiana : an authentic narrative of the past, with particular attention to the modern era in the commercial, industrial, educational, civic and social development, Volume I > Part 13
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"Geographical position and features; Natural resources (stone, clay, gas, oil and coal) ; Agriculture ; Mining ; Manufacturing."
Under "The Rise of the American People," same institute:
"Discuss the fundamental problems of American development and show how they were solved by economic forces.
"What new national problems required consideration at this time and what disposition was made of them?
"Has the study of the Rise of the American People been worth while? Justify your answer."
Eighth Institute, under "Pioneer Life":
"Home Life; Occupations; Social Occasions; Religious Life." Ninth Institute, under "Indiana in War":
"Indian Wars; in the War of 1812; in the Mexican War; in the Civil War (politics in Indiana during the Civil War) ; in the Span- ish-American War."
Tenth Institute, under "Indiana in the Twentieth Century":
"Indiana's rank in the Union; a Century's Progress; Indiana's opportunity."
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PRESENT COUNTY SYSTEM OF EDUCATION
Under the law the county board of education consists of the county superintendent of schools, who is its head; the presidents of the city and town boards, and the township trustees. Since the abolition of the examinership in 1873 the superintendents have been as follows: A. S. Zook, David Mowry, Piebe Swart, S. F. Spohn, Geo. W. Ellis, A. E. Weaver. Mr. Zook served one year and then resigned; Mr. Ellis served for eighteen years and was suc-
CONSOLIDATED SCHOOL, BRISTOL
ceeded by Mr. Weaver in June, 1907. The term at first was two years, but later was changed to four years.
In 1915-16 the presidents of the city and town boards were as follows: E. G. Crone, Elkhart ; Milton Wysong, Goshen ; Dr. W. A. Price, Nappanee; Dr. A. S. Sensenich, Wakarusa, and Dr. B. F. Teters, Middlebury.
The trustees of the sixteen townships are: Herschel P. Dodge, Baugo Township (P. O., Elkhart) ; James A. Brown, Benton (Ligonier) ; W. L. Chamberlain, Concord (Elkhart), secretary of the board; W. F. Stiver, Clinton (Goshen) ; D. W. Neu, Cleveland (Elkhart) ; Robert E. Chatten, Elkhart (Goshen) ; Noah Dausman, Harrison (Goshen) ; Israel Immel, Jackson (New Paris) ; John E.
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Logan, Jefferson (Goshen); C. W. Johnson, Locke (Nappanee) ; D. S. Blough, Middlebury (Middlebury) ; Jeremiah Bechtel, Olive (Wakarusa) ; Fred E. Wilson, Osolo (Elkhart) ; Henry Mishler, Union (Nappanee) ; H. W. Kantz, Washington (Bristol) ; Frank Calvin, York (Vistula).
PRESENT STATUS OF SCHOOLS
A general idea of the condition of the county schools may be obtained through the figures compiled by A. E. Weaver, the county superintendent, which exhibit the following items: Number of commissioned schools, 9; number of non-commissioned schools, I; number of township teachers, 122; number of town teachers, 35; number of city teachers, 152; number of teachers in county, 309; total cost of education in county, $379,419.02.
The qualifications of all the teachers have been of an improved kind since 1907. In that year a law was passed which has had this effect. All our teachers began teaching before the fall of 1908 or else are graduates of high schools and have had from twelve weeks to three years of normal work, or a year or more of college work.
The vocational education law, passed in 1913, has brought about a decided change in the results that schools are striving for. This law requires the teaching of agriculture and domestic science in the seventh and eighth grades of all rural schools, and domestic science and industrial arts or agriculture in the town schools. The plan is not to reduce the amount of academic work required in the past, but rather to supplement it with the prevocational studies. In ex- ceptional cases, however, substitutions are allowed.
The state board of education is increasing the efficiency of the teachers by additional requirement in regard to training, and will ask the next state legislature to pass needed laws to assist them in reaching the goal of greater efficiency.
CHAPTER VII
THE BENCH AND BAR
THE TERRITORIAL COURTS-FEDERAL JUDGE PARKE REBELS AGAINST TERRITORIAL JURISDICTION-CIRCUIT COURT ESTABLISHED- UNDER THE STATE-COURTS OF COMMON PLEAS-COURT OF APPEALS ESTABLISHED-REVISIONS OF THE LAWS-JUDGE AND JURY IN CRIMINAL CASES-PERSONAL SOURCES OF LOCAL INFOR- MATION-FIRST MEETING OF THE CIRCUIT COURT-THE COUNTY CLERK AND THE THOMAS FAMILY-BEFORE JUSTICE HAD A HOME-COUNTY COURTS AND JUDGES IN THE '40S-JUDGE EBENEZER M. CHAMBERLAIN-JUDGE HENRY D. WILSON- JUDGES JOHN H. AND FRANCIS E. BAKER-JUDGE JOSEPH D. FERRALL-JUDGE JAMES S. DODGE-JUDGE JAMES S. DRAKE- CHARLES W. MILLER-AARON S. ZOOK-WILLIAM J. DAVIS- LOU W. VAIL-ELMER E. MUMMERT-ANTHONY AND BENJA- MIN F. DEAHL-E. A. DAUSMAN-ELKHART SOLDIERS AND LAWYERS-VETERAN GEORGE T. BARNEY-JUDGE JOSEPH D. ARNOLD-WILLIAM B. HILE-LOUIS A. DENNERT-YOUNGER LAWYERS OF PROMISE-THE ELKHART COUNTY BAR ASSO- CIATION.
The judicial system through which justice is administered in Elkhart County has been created by legislative enactment of the Indiana commonwealth, although before its territory became a part of the American domain it was legally subject to the laws both of France and England. Such jurisdiction, when the country was Old World property, had no effect upon its people, their customs or their institutions, for the very logical reason that there were no settled white populations to be affected. As settlers did not com- mence to arrive until about 1827, the first courts to actually have
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jurisdiction over the affairs of its people were constituted by virtue of the State Constitution of 1816.
THE TERRITORIAL COURTS
It is of historic interest, however, to briefly trace the connection between the territorial courts and those created by the state. Under the Ordinance of 1787 the governor and judges of the Northwest Territory were authorized to adapt existing laws of the original states to the new domain. But when the three judges met at Marietta, Ohio, they tried their hands and heads at original law- making, against the advice of Governor St. Clair. The latter ignored the Marietta code as illegal, and in 1795 the governor and judges met at Cincinnati and promulgated a number of adapted laws, as authorized by the ordinance. In 1799, however, the Territorial Legislature adopted the laws devised at Marietta, and in 1800 Indiana Territory was created, with Gen. William Henry Harrison as governor. But the laws that had been enacted at Cincinnati were in force in the new territory until they were superseded by others adopted by its special court.
William Clark, Henry Vanderburgh and John Griffin were ap- pointed judges of Indiana Territory. What follows, in explanation of the main lines along which the courts have been developed to the present, is from William Henry Smith's well known "History of Indiana," to which the author is much indebted. The governor and territorial judges met in Vincennes, in January, 1801, and passed ten laws on various subjects, one of which was to establish courts of general quarter sessions of the peace in the counties of Knox, Randolph and St. Clair. The first court held legally in Indiana began its first session on the 3d of March, 1801. A grand jury was impaneled and the machinery of the territorial government was fully set going. In 1807 all the laws of the territory were revised and reenacted by the General Assembly, thus making those of doubtful validity legal. According to this revised code, treason, murder, arson and horse stealing were punishable with death. Whipping was recognized as a sufficient punishment for a number of smaller crimes and misdemeanors, such as hog stealing, bigamy, burglary, larceny, and disobedience to parents.
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FEDERAL JUDGE PARKE REBELS AGAINST TERRITORIAL JURISDICTION
When the territory entered upon its second state of political existence, Benjamin Parke, James Scott and Waller Taylor had been appointed judges of the general court of the territory by the President. In 1814 Congress authorized the Territorial Legislature to lay off the territory into five districts, each of which was to elect a member of the Territorial Council. By this time the question of the jurisdiction and powers of the various courts which had been established began to be troublesome. In January, 1814, the General Assembly of the territory had attempted to reorganize the judicial system. By this law the state was divided into three judicial dis- tricts. One of the judges appointed by the President was to act as presiding judge in each of these districts, and provision was made for the appointment of three "associate" judges in each county, who were to sit with the presiding judge in the trial of all causes. This did not suit the judges appointed by the General Government, and was in conflict with the powers conferred by Congress on the court. Benjamin Parke, one of the judges, and one of the ablest jurists Indiana has ever known, soon after the passage of the act referred to, addressed the following letter to Governor Posey: "By an act, entitled 'An act reorganizing courts of justice,' passed at the late session of the Legislature, the Territory is divided into three dis- tricts, in each of which a circuit court is established-the court to consist of one of the judges appointed by the government of the United States for the Territory, as president, and three associates, commissioned under the authority of the Territory, and to have jurisdiction in all cases, at law and in equity. The first circuit, com- prising the counties of Knox, Gibson and Warrick, is assigned to me. The Legislature is empowered to make laws, in all cases, for the good government of the Territory, not repugnant to the laws of the United States. In the delegation of power, that which is not expressly given is reserved. Implications cannot be admitted fur- ther than to carry into effect the power given. The laws of the United States being paramount to the laws of the Territory, if they are found in conflict, the latter must yield to the former. Congress has defined the jurisdiction of the judges appointed by the general government, and made one judge, in the absence of the others, competent to hold a court. The judges are co-ordinate, and their jurisdiction extends over the whole Territory. They are judges in Vol. I-9
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and over, and not of a part of the Territory. As the judges derive their jurisdiction and power from the government of the United States, they cannot be controlled, in the exercise of their functions, by persons deriving their authority from the government of the Territory. The judges appointed for the Territory, are limited, by the laws of the United States, to the exercise of a common-law jurisdiction. The act, therefore, as it regards the organization and jurisdiction of the circuit courts, is repugnant to the laws of the United States, and neither confers any powers, nor imposes any duty, on the judges appointed for the Territory by the United States. The General Government has appointed for the Territory three judges, with a common-law jurisdiction ; but when, where, or in what manner they are to hold a court-or rather exercise the jurisdiction with which they are invested-Congress has not provided. I con- sider it is the duty of the Legislature to do it. To you, sir, it belongs to watch over the affairs of the Territory, and to see that the laws are faithfully executed; and, on account of the relation in which I stand to the Territorial government, I have thought it my duty to make this representation to you. The peculiarity of the case leaves me no other mode of stating my objections and the cause of my not conforming to the law. The Legislature has organized certain courts, and assigned me to perform certain duties; but the law, constituting the one, and directing the other, is unconstitutional; and as I can derive no authority from it, it imposes no obligation. I shall, therefore, not hold the courts for the circuit."
CIRCUIT COURT ESTABLISHED
Thus the elaborately wrought out judicial system was knocked out and the territory was left to the judges appointed by the General Government. Governor Posey realized the situation and called the General Assembly to meet at Corydon, August 15, 1814. The main duty of that session was to organize some kind of a judicial system. That the difficulties in the way may be better under- stood, it is well to turn to a memorial address by the Legislature at that session to Congress. The memorial said: "By a law of Congress, one of the judges, appointed by virtue of the ordinance for the government of this Territory, is authorized to hold a court. Thus, one of the judges being competent to hold a court, may decide a principle or point of law at one term; and, at the next term, if
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the other two judges are present, they may decide the same principle or point of law different. Thus, the decision of the Superior Court, organized, we presume, by the General Government, finally to settle in uniformity the principles of law and fact, which may be brought before them by the suitor, may be, and frequently are, in a state of fluctuation; hence the rights of persons and property become insecure. There is another evil growing out of the system of one judge being competent to hold the Superior Court, or that court which forms the last resort of the suitor in any government, and particularly in the Territory, for appeals are taken from all the courts of inferior jurisdiction in the Territory, to the court organ- ized by the ordinance, which inferior courts are never constituted of less than two judges. Thus, the suitor in the Territory is fre- quently driven to the necessity of appealing from the judgment of two men to that of one. But this dilemma only constitutes a part of the solecism for the next Superior Court, as the other two judges may overturn the principles of the decision of their brother judge at the preceding term. Hence, the want of uniformity in the decisions of the court of last resort. Anger and the warmth of suitors, and a confusion in our system of jurisprudence, is the result."
At the same session the General Assembly established another court. It divided the state into three judicial circuits, and made provision for holding courts therein, and defined the jurisdiction of such courts. The governor was invested with the authority to appoint a presiding judge in each circuit, and two associate judges in each county. By the law the governor was required, in selecting his presiding judges, to choose men "learned and experienced in the law," who were citizens of the United States and "who had regularly practiced in some of the courts of the United States, or in this Territory, three years." Congress soon after the receipt of the memorial of the General Assembly, changed the law so as to require the presence of at least two of the judges to constitute a court.
UNDER THE STATE
The whole question was solved two years later by the admission of Indiana as a state into the Union. Benjamin Parke was appointed judge for the District of Indiana, by the President, and held that office until his death in 1835. Under the constitution of 1816 the
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judiciary powers of the state, both as to matters of law and equity, were vested in one Supreme Court, in Circuit courts, and such inferior courts as the General Assembly might establish. The Supreme Court was to consist of three judges to be appointed by the governor and confirmed by the Senate, and to hold their offices for a term of seven years. The General Assembly was given author- ity to give the Supreme Court original jurisdiction in capital or chancery cases where the president of the Circuit Court might be interested or prejudiced. The Circuit courts were to consist of a president and two associate judges; the presidents of the Circuit courts were to be elected by the General Assembly, in joint session, and the associate judges by the voters of the counties. Each county was to have two associate judges. The president alone or in con- nection with one of the associate judges could hold a court, and the two associates, in the absence of the president could hold a court, but could not try capital or chancery cases. The constitution also provided for the selection of clerks for the various courts, that for the Supreme Court was to be chosen by the court, and clerks for the Circuit courts were to be elected by the people, but no one could be elected who had not previously obtained from a judge or the Supreme or Circuit Court a certificate that he was qualified for the place. Under the constitution a competent number of justices of the peace were to be elected by the people.
The constitution of 1851 made several important changes in the judiciary. It provided for a Supreme Court, Circuit courts and such inferior courts as the General Assembly may determine upon. In- stead of being appointed by the governor the Supreme judges are elected by the people of the state, although they must be chosen from certain defined districts. The term of service was reduced from seven to six years. The General Assembly is empowered to give the Supreme Court such original jurisdiction as it may de- termine upon at any time. Under the constitution as originally adopted the Supreme Court was to consist of not less than three nor more than five judges, but several efforts have been made to increase this number. The Supreme Court is required to give a written opinion in every case, and upon every question arising in the record or in the decision of the lower court. The choice of a clerk of the court was taken from the court and given to the people. Associate judges were done away with in the Circuit courts. The new constitution provides that no one elected to any judicial office shall be eligible to any other office during the term for which they
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have been elected, other than a judicial one. The General Assembly was given authority to modify or abolish the grand jury system.
COURTS OF COMMON PLEAS
The first three judges of the Supreme Court, under the state administration were James Scott, John Johnson and Jesse L. Hol- man. Scott and Holman served until 1831, but Johnson only served a few months and was succeeded by Isaac Blackford, who served until 1853. In creating inferior courts the Legislature established what were known as courts of Common Pleas. These courts were given exclusive jurisdiction in probate matters, and concurrent jurisdiction with the Circuit courts, in some other matters. This created great confusion. All the courts assumed to pass upon the constitutionality of laws enacted by the General Assembly, and the state witnessed the anomaly of having laws enforced in one county, and declared unconstitutional in another. When the Legislature enacted the prohibitory liquor law in 1855, some of the circuit judges declared it constitutional and enforced it, while others de- clared it void. This lasted until the Supreme Court finally overthrew the law entirely. The confusion grew worse after the Common Pleas Court was established, for then some counties were operating under two different laws at the same time, according as the opinions of the judges differed. This confusion could not last, and finally the General Assembly abolished the courts of Common Pleas, and in counties where the business was too great to be transacted by the Circuit courts, Superior and Criminal courts have been established with well defined jurisdiction.
Several times the Supreme Court has been overburdened with work, and measures of relief have been sought. The first experi- ment was the establishment of the Supreme Court Commission, consisting of five members, appointed by the judges of the Supreme Court. The commission was to consider and pass upon such canses as might be assigned them by the Supreme Court. This commission was kept up for some years, but it presented so many anomalous features that it was also finally abandoned.
COURT OF APPEALS ESTABLISHED
In 1893, as a temporary experiment, the Legislature established a Court of Appeals, a sort of intermediate court between the Su-
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preme and Circuit courts. This court was to consist of five judges, elected from specified districts, and to continue for four years. The Legislature of 1897 continued the life of the court for another term of four years.
REVISIONS OF THE LAWS
The constitution of 1851 provided that "The General Assembly, at its first session after the adoption of this constitution, shall provide for the appointment of three commissioners, whose duty it shall be to revise, simplify and abridge the rules, practice, pleadings and forms of the courts of justice. And they shall provide for abolish- ing the district forms of actions at law now in use, and that justice shall be administered in a uniform mode of pleading, without dis- tinction between law and equity." Under this section the laws of the state were codified, and a new system of rules and practice intro- duced. The laws were again revised in 1881 by a commission appointed by the General Assembly for that purpose, but this re- vision was never adopted by the General Assembly. Since then there has been no general revision. Under the constitution, no law can take effect until it has been printed and distributed to all the counties of the state, unless the act itself declares the existence of an emergency. It is proper to say that but few acts are permitted to escape the emergency clause, the framer always deeming that the demand for the enactment of his measure is so great that it absolutely amounts to an emergency.
JUDGE AND JURY IN CRIMINAL CASES
Under the constitution juries in criminal cases are the sole judges of both the law and the facts; they fix the degree of the crime and assess the penalty. While a judge has actually no voice in deciding the law of a case tried by a jury, if the jury errs in the law the judge does not hesitate to grant a new trial. Capital punishment has been abolished for all crimes except those of treason and murder in the first degree, and even for murder in the first degree the jury may, in its discretion, change the punishment to imprisonment for life. This power of the jury to determine the punishment to be assessed against the violator of the law has been materially modified by the law enacted in 1897, known as "the indeterminate sentence law." By this act the jury decides upon the guilt or innocence only,
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in many cases, and the judge, in pronouncing sentence leaves the term of the imprisonment to be determined by the Board of Prison Control. That is, the judge certifies to the prison authorities, the crime committed, the minimum and maximum term of imprison- ment fixed by the statute, and the good behavior of the convict determines the actual length of his confinement. If his conduct is such as to impress the authorities with the belief that he has re- formed, and if permitted to go at large will live as a law abiding citizen, they can release him at any time, but under no circumstances can they hold a prisoner for a greater length of time than the maximum term of imprisonment fixed by the statute, or release him before he has served the minimum. The constitutionality of this law has been questioned, and some judges have held it to be invalid, because of the fact that it takes from the jury the power to determine the extent of the punishment.
PERSONAL SOURCES OF LOCAL INFORMATION
The courts of Elkhart County were organized, as indicated by the foregoing sketch and, until the old court house was completed, as described by Mr. Ellis, in 1833, justice certainly was "knocked around from pillar to post"-to revive an ancient expression. Aside from the evidence furnished by the county records, the main facts connected with the pioneer period of the bench and bar have come down to us through the writings of Dr. E. W. H. Ellis, an arrival of 1838, and so long a leader in medicine, journalism and public affairs; and Philip M. Henkel, who located in Goshen a few years later, and made a good record for himself as county auditor and upright citizen. Dr. Ellis had preceded him in that office, the two performing its duties for nearly twenty years.
Dr. M. M. Latta, whose first appearance at the county seat was in 1840, as a studious youth of eighteen, and who afterward became widely known both in his profession and as a promoter of railroads and industries and other helpful enterprises, also contributed to the prevailing fund of information regarding the courts, the judges and the lawyers of the county.
FIRST MEETING OF THE CIRCUIT COURT
From such sources as those indicated, it is evident that, in accordance with the creative act of the Legislature the first meeting
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of the Circuit Court was held at the log cabin of Chester Sage, on the north bank of the St. Joseph River nearly opposite the mouth of the Elkhart River, on the 30th of November, 1830. The old Sage Farm is now a part of the city of Elkhart, and the location of this first temporary county seat is about sixty rods east of the bridge which crosses the St. Joseph at Main Street. As no presiding judge was present at the opening session of court, William Latta and Peter Diddy, the associates, attended to such routine mat- ters as were brought before the court. Mr. Latta, a successful busi- ness man, located near Goshen in 1828 and was one of the first to buy lots when the county seat was platted. He died in 1847. Peter Diddy was well known as a prosperous farmer. But they were neither trained in the law; only men of common sense who had the confidence of the settlers.
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