USA > Kansas > Cherokee County > History of Cherokee County, Kansas and representative citizens > Part 6
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AND REPRESENTATIVE CITIZENS.
contract with Browning. and to assign to him the contract of the American Emigrant Com- pany. Such is a very brief outline of the strange transactions by which the 'rings' cast lots for the garments of the settlers, and pro- pose to divide among themselves the gains of this most infamous of all 'jobs' for robbing the settlers of the West.
"During the administration of President Buchanan a considerable number of families, attracted by the beauty and fertility, and the genial climate of this section of the country, and finding no opposition from any source, came upon these lands. For political reasons a movement was set on foot to remove these set- tlers. Soldiers, without any proper authority, were brought here, and a few worthless build- ings were burned. The indignation of the set- tlers, at such unwarranted proceedings, was such that the soldiers desisted from their work of ejectment, and the citizens sent a delegation to see President Buchanan. He told them to return to their homes and occupy them; told them to encourage the settlement of the coun- try, and that the land would soon come in under the preemption law. The soldiers whom poli- ticians had procured to be sent here were with- drawn, and the settlement of the country went on.
"During the Rebellion the Neutral Lands were held alternately by the two parties, the settlers not being able safely to remain at their homes. Thousands of Union soldiers cam- paigned back and forth over these lands; and when the war was over thousands of them brought their families here to make homes. The Indians directly and indirectly encouraged the settlement of the country.
"In March, 1866, President Johnson wrote us : 'Go on and settle it up and make a country
of it, and you shall be protected in the home- stead and preemption right.' Senators Lane, Pomeroy and Ross, by many letters, some of which are yet preserved, stimulated our occu- pation of the country, and assured the settlers of their safety, under the land policy and the laws of the nation.
"The fall of 1866 saw several thousand families occupying claims, some in such rude, temporary shanties as they could erect, some in tents, and some under wagon covers only. From their former homes many of the people had brought a few choice cattle: but that fall four-fifths of these fell victims to the 'Texas fever,' brought here in the herds of cattle driven from the South. February and March. 1867, proved very hard on the few remaining cattle and on the horses of the settlers. Witli- out grain and sufficient shelter, many of the hay-fed animals perished in the sleet and cold rain storms of the season. Disaster seemed to attend the settlement of the land, and many of the faint hearted became discouraged and went elsewhere; but an intelligent appreciation of the country itself, and an abiding trust in the government, that the homes they were strug- gling for would be secured to them and their families, sustained the more stable of the set- tlers through all their trials and anchored them fast to the country of their choice. The few patches of sod corn planted in 1867 produced very well, but only a small fraction of what the people needed. Every nerve was strained to get in as large a crop as possible in the spring of 1868, and the coming of 'garden truck' and the ripening of the corn was looked to with earnest hope, as a time of relief from a pressure which, because of its weight and duration and the inability of the people to stand it, had be- come simply terrible. And yet upon this added
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misfortune came. About the middle of June there came the worst drought that Southern Kansas ever knew. Corn everywhere was a failure, and, as but little small grain had been sown, there was scarcely any relief. The grass was short, thin and parched, so that only a lit- tle of very poor hay could be made. Under these circumstances nothing but a most favor- able winter could save the people from further calamity ; but that mercy came, and the people were saved. Stock wintered well on the range ; but how the people managed to live is known only to themselves. The half of the story of the winter of 1868-69 will never be told.
"Fully to expose Mr. Joy's bad faith, in his attempted dealings with our people, would re- quire much of our and the reader's time. Briefly, his course, from first to last, has been marked by the very essence of despotism, and by an utter disregard of our rights. Evidently he has supposed that he could play the mission- ary, the benefactor and the guardian, believing that we could not see through the velvet which concealed the claw, the sheepskin which cov- ered the wolf or the thin coating of the sugar- covered pill which he had with so much care prepared for us."
The committee, after going on at much length as to the treaty through which the Che- rokee Indians passed their lands to the United States, in trust, have this to say :
"We hold, in short, that the whole transac- tion is a base swindle, not only upon the whites, but also upon the Indians themselves, and that, in the language of the opinions given by Judge William Lawrence, Hon. George W. Julian, Gen. Benjamin F. Butler and Judge William Johnson, January 28, 1869, 'We hold, there- fore, that the sale of the Cherokee Neutral Lands to James F. Joy, is void ; that any patent
which may be issued to him will be void; that the purchaser from him will acquire no valid title. * * To remove all doubt, it is further our opinion that Congress has the power, and that it is a duty, to abrogate, by law, so much of the municipal regulation of the Cherokee treaty as purports to authorize a sale.' We ask all thinking, honest men and women thoroughly to investigate not only this case, but this general, wholesale and shameless disposal of the people's lands to railroads and other monopolies. The public domain is the heritage of all the people. We ask whether this robbery of the people shall be permitted to go on, until monopolies, always aggressive, aristocratic and oppressive, shall have coutrol of the Legislature of every State in the Union, and of the government of the United States itself, or whether you will join us in our effort to stop it now and to overthrow it forever. To this end we petition you, for we deem the dan- ger imminent. Aristocracy never did, in any age or nation, so flourish, except when based upon the soil; but if we read the signs of the times aright, this extensive engrossment of the public domain by a few, is the result of an aris- tocratic tendency in this government, which if not defeated will prove as destructive of our in- stitutions as a dissolution of the Union, or as a successful foreign war would be. It is equally true that republican institutions, in or- der to flourish, must be based upon the soil. They cannot stand upon any narrow founda- tion. The people to be free, must own the soil. As well might we attempt to pull down the sun from heaven, or to do any other impos- sible thing, as to attempt to maintain free in- stitutions of government upon any other or different principles than liberty for all, and a division of the public domain at least among
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all the people who wish to cultivate the same, in small areas, each family being sole lord and proprietor of its little spot of earth, sufficient to feed, clothe, educate and provide for the household; for in whatever country or neigh- borhood the lands are in the hands of the few. there will be found serfs, toiling men and women irredeemably poor. The Congress, as well as the court, has the power to undo our wrongs, and the House of Representatives, to its honor let it be said, has twice resolved that it shall be done, while the Senate has as often tabled the resolution. Many of the ablest and best Senators, however, are in our favor, and will, we believe, concur with the House in what it is trying to do.
"The West is being smothered by land monopoly. Principality after principality has been bestowed upon corporations of the most gigantic proportions, and the progress is on- ward, with a vigor increased by every success- ful grab of the people's heritage. The govern- ment no longer purchases the Indian's title of occupancy. and allows the pioneer to settle upon it, under the homestead and pre-emption laws ; but railroad companies purchase the Indian lands for a mere song, that they may wring untold millions of money from one of the most useful and energetic classes of the citizens of the United States.
"The departure from the land policy of the government began in 1861. At that time S. C. Pomeroy entered the United States Senate, from Kansas, as the standard bearer of a party which from every stump had sent up the cry, 'Free homesteads for the landless millions.' He was at that time a man of moderate means. Follow him for a few years. In 1865 we find him as president of the Atchison & Pike's Peak Railroad Company. A treaty was carried
by him through the Senate, by which that com- pany purchased 123.832 acres of rich land in Kansas, embracing the beautiful Kickapoo Res- ervation, thirty miles west of the city of Atchi- son, for a mere song. The reservations of the Sac and Fox tribes, those of the Kansas, Dela- ware, Ottowa and Kickapoo tribes, and the Cherokee Neutral Lands have all passed into the hands of railroad corporations and other speculating companies, and Pomeroy has been the 'Big Injin' of the whole ring. From the day he was clothed with Senatorial honors, he has been energetic and unscrupulous in subvert- ing the policy of our government, with regard to the public lands. Congress has granted fifty- seven million acres of the public domain to various Western and Southern railroad com- panies since 1861; and the Pacific Railroad Company has been granted one hundred and twenty-four million acres. The commissioners of the General Land Office, speaking of these immense grants of land which properly be- longs to all the people, that it 'is of empire ex- tent, exceeding, in the aggregate, by more than five million acres, the entire area of the six New England States, with New York, New Jersey, Pennsylvania, Ohio, Delaware, Mary- land and Virginia.'"
The people during the times of anxiety, when they were having trouble with James F. Joy, concerning land titles and their rights under the claims which they had taken in Cherokee County, left no means unemployed that offered even a showing of aid. They held meetings, passed resolutions, drew up and signed petitions, published articles in the friendly newspapers and besought their Repre- sentatives in Congress and their Senators at Washington to help them in gaining the mas- tery over their adversaries. They appealed
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to every motive that could move men to help their fellows who were in distress. I have before me a letter, written by Hon. William Lawrence, of Ohio, to A. V. Peters, an elder brother of W. H. Peters, one of the present county commissioners of Cherokee County. Mr. Peters was a captain in the Federal Army, in an Ohio regiment, and having a personal acquaintance with Judge Lawrence, who was then a member of Congress, from that State, he hoped that some good might be obtained at his hands, in getting a settlement of the troubles which had so long disturbed the peo- ple here. The letter, copied from the original, is given below :
HOUSE OF REPRESENTATIVES, WASHINGTON, D. C., April 13, 1868. A. V. PETERS, EsQ. :
Yours of the Ist inst. is received. I thank you for the approving words you wrote in reference to my efforts in behalf of the poor and landless people of the country. I am their friend. They need friends. If we do not stop this scheme of delivering over the public lands to speculators, the poor of the country are doomed to toil and poverty, with no home wherein to dwell. You, and the true men like you, have a remedy. It is not merely in writing letters. Call meet- ings, pass resolutions and demand action of Congress. Send them to every Senator and Representative. De- nounce their treaties which seek to rob the poor. They are all void. Not one good land title can be made under them. But if they go on, Congress will, after a while, ratify them. Now is your time to strike. Do not delay an hour. Kansas is deeply interested. Let Kansas be heard. But if you rest in peace, all will be lost. My efforts will do no good, unless you people come up to the rescue. The men who speculate under these treaties, and crowd God's poor away from homes on God's earth, are powerful, active and busy. Every county in Kansas should speak out for hier people. Will you do so? Let me hear.
Respectfully, WILLIAM LAWRENCE.
Captain Peters also wrote to Gen. John A. 1
Logan, who was at that time a member of the House of Representatives. General Logan answered briefly. The original letter is before me, and of it the following is a copy :
HOUSE OF REPRESENTATIVES,
WASHINGTON, D. C., June 13, 1868. A. V. PETERS, ESQ., PETERSVILLE, KANSAS
My Dear Sir-Your letter of June 4 is received. In reply I will state, with pleasure, that I agree with you fully, in reference to the just claims of our soldiers and sailors, upon the gratitude of the government. I am in favor of giving them who fought our battles an opportunity to select homes which shall embrace both convenience and value. I will keep your sugges- tions in mind. As an opportunity may offer wherein it would be of service to our friends, I am always glad to aid in any enterprise which has in view the soldiers' interest.
Yours very truly, JOHN A. LOGAN.
The troubles of the people were not over, even when they had come to know their condi- tion with respect to the Joy land matter, and were settling down to accept it. It seemed that they, like many communities in the West and in the South, had to have their experience with the bond-sharks who were abroad in the land for a good many years following the close of the war. Salamanca township, which includes the city of Columbus, early voted bonds, in aid of a rail- road company. The bonds were issued and de- livered to the company, and the company sold them to an "innocent purchaser," who was in the market for such securities. The road was never built ; but the courts held that the bonds were good, and that the people would have to pay them. I have before me a small pamphlet, written by William C. Wilson, into whose hands the bonds finally fell. It is addressed, "To the Law-Abiding People of Cherokee County," but it bears no date. The following is the preface to the pamphlet :
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AND REPRESENTATIVE CITIZENS.
The municipal township of Salamanca, having de- faulted in the payment of interest on its honds held by me, the United States Circuit Court gave judgment and peremptory mandamus, commanding your county com- missioners to levy a tax to pay the same; but as they "unlawfully, contemptuously and oppressively" refused to do so, the court incarcerated them in jail for thirty days.
I also brought suit against them, personally, in a civil action for damages, and a Kansas jury awarded me a verdict for the small sum of $500 and costs ; upon which their attorneys made a motion for a new trial, which, after argument by Messrs. Webb, Ritter and Williams, was emphatically overruled by Judge Foster.
As the people of Salamanca, "in mass meeting as- sembled," after parading to the music of a brass band, resolved that they would not patronize any paper that would publish any communication from me, and as there is a conspiracy and confederation to prevent the pay- ment of money lawfully owing to me, and also to hood- wink the people and keep them in ignorance of the true condition of affairs, freedom of speech and of the press being no longer tolerated in the mob-ridden city of Columbus, I herewith send you Judge Foster's opinion, and the charge of Judge Krekel, to the grand jury, upon combinations to repudiate debts and to re- sist the laws of the land. I do this in the hope that the time may speedily come when the honest, intelligent and wealthy people of Cherokee County will say to their commissioners, "We can no longer allow you to bring reproach upon our good name, by toadying to the defaulters of Salamanca township, as there is no good reason why they should not pay their honest debts."
Yours truly,
WILLIAM C. WILSON.
The author of the pamphlet then sets out the opinion of Judge Foster, which is as fol- łows :
UNITED STATES CIRCUIT COURT, DISTRICT OF KANSAS.
WILLIAM C. WILSON
versus No. 4362.
R. W. VAUGHN, JOHN RUSSELL AND W. E. SWANSON.
November Term, 1884 .- Filed March 4, 1885.
Bottsford & Williams, for Plaintiff. Ritter & Anderson, for Defendants.
MOTION FOR NEW TRIAL.
Opinion by Foster, J. :
This action was brought by the plaintiff against the defendants, who are the commissioners of the County of Cherokee, to recover damages for a wilful refusal, on the part of the said commissioners, to levy a tax on the taxable property of Salamanca township, in said county, to pay off a judgment held by plaintiff against said township, in obedience to a peremptory writ of mandamus from this court.
The recovery of the judgment, the issue and service of the writ commanding the levy of the tax, and the wilful disobedience thereof by the defendants, were admitted on the trial, and two of the defendants, on the witness stand, testified that it was not their pur- pose to levy the tax hereafter.
The plaintiff claimed, as his damages, the full amount for which the writ was issued, about $19,000. On the trial, the court instructed the jury as fol- lows :
"Gentlemen of the Jury :
"In this case, under the pleadings and evidence, the plaintiff is entitled to recover against the defend- ants, as it was clearly the duty of the defendants to levy the tax as commanded in the peremptory man- damus, and which they wilfully refused to do.
"The plaintiff is entitled to recover his actual dam- ages sustained by reason of such failure and refusal of the defendants. But, inasmuch as he has not lost his debt or judgment, or any part thereof, and as there is evidence to show that the debtor township is fully able to respond to his debt, and that the refusal of the de- fendants to levy the tax has only delayed the collec- tion of his debt and the accruing interest, his dam- ages are, consequently, presumed to be but nominal, and you will so find in your verdict.
"In this case there is also another element of dam- ages under which the plaintiff may recover, and that is exemplary or punitive damages. The action of the defendants, to say nothing of being contemptuous disre- gard of the mandate of this court, was oppressive to the plaintiff and a clear and wilful violation of his legal rights, and in my opinion presents a case for considera- tion of exemplary damages on the part of the plaintiff against the defendants. I can not lay down any definite rule to govern you in fixing these damages. They are given by the law as a punishment for an aggravated violation of plaintiff's rights, and they should be such as, under all the circumstances and facts shown, are commensurate with the offense; and this, you gentle-
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men, in the exercise of your sound judgment, are to fix and determine under the evidence produced in the case.
"The court instructs the jury that this being an action of that in which defendants' refusal was wilful, continuous and unlawful, you are at liberty to award plaintiff exemplary damages against defendants, in addi- tion to the damages awarded as and by way of com- pensation to plaintiff. The court instructs the jury that, in the issues made by the pleadings, and on the uncon- tradicted evidence in the case, your verdict must be for the plaintiff, finding the issues in his favor."
The jury returned a verdict for plaintiff, $500; and the defendants now move the court to set aside the ver- dict and grant a new trial for error of law in the said instructions to the jury. The particular excepted to is that part of the charge in reference to exemplary or punitive damages. The defendants claim that as the compensatory or actual damages sustained by plaintiff were but nominal, he can not recover exemplary dam- ages. In support of this rule counsel have cited two cases : Stacy versus Portland Publishing Company, 68 Maine 287; and Maxwell versus Kennedy, 50 Wis. 647.
The former case was an action for libel, and the latter for slander. In the action for libel, the trial court refused to instruct for plaintiff for exemplary damages co nomine, but told the jury they might add as actual damages for any elements of aggravated injury occasioned by the express malice of the person who published the article complained of.
The jury gave the plaintiff one dollar damages, and the court refused to reverse the case and remarked, among other things, as follows: "Taking the case as it resulted, we are satisfied that the plaintiff has sus- tained no injury in this respect. The legal significa- tion of the verdict is, either that there was no actual and express malice entertained toward plaintiff, by the defendant's agent, or that, if there was, it did the plaintiff no injury.
In the slander case, the trial court instructed the jury that certain mitigating circumstances shown by defendant should be considered by them in reduction of compensatory damages only, and not exemplary damages. The appellate court hield this to be error; that no distinction should have been made between the two classes of damages in respect to mitigation. Both cases support the rule contended for by these defendants, in case of this kind. Whether that doc- trine may generally be regarded as accepted law in such cases, I have not sufficiently examined the books to form an opinion; but if such is the fact, I do not
think that the rule can be applicable to a case of this kind.
In Day versus Woodworth, 13 How., 371, the Su- preme Court laid down the law as follows: "It is a well established principle of the common law, that in actions for trespass and all actions in cases for tort, a jury may inflict what are called exemplary, punitive or vin- dictive damages upon a defendant, having in view the enormity of his offense, rather than the measure of compensation to the plaintiff. * *
* By the com- mon, as well as by statutory law, men are often pun- ished for aggravated misconduct or lawless acts, by means of a civil action, and the damages, inflicted by the way of penalty or punishment, given to the party injured."
In Milwaukee Railroad Company versus Armes, 91 U. S., 493, the court, speaking of damages, says: "In ascertaining its extent the jury may consider all the facts that relate to the wrongful act of the defendant, and its consequence to the plaintiff; but they are not at liberty to go farther, unless it was done wilfully or was the result of that reckless indifference to the rights of others which is equivalent to an intentional viola- tion of them. In such case the jury are authorized, for the sake of public example, to give such additional dam- ages as the circumstances require. The tort is aggra- vated by the evil motive, and on this rests the rule of exemplary damages."
The Supreme Court of Kansas has held. in a case of trespass quare clausum fregit, that exemplary damages may be recovered where the compensatory damages are but nominal. Hefley versus Baker, 19 Kan., 9.
Southerland on Damages, Vol. I, pages 724-748, states the rule, in the following language: "If a wrong is done wilfully; that is, if a tort is committed delib- erately, or by wilful negligence, with a present con- sciousness of invading another's rights, or of exposing him to injury, an undoubted case is presented for ex- emplary damages. One who does an act maliciously must be careful to see that the act is lawful; other- wise, though the actual injury may be slight, the exemplary damages may be considerable."
In the case at bar the plaintiff is deprived of a clear legal right, through the wrongful and wilful conduct of the defendants. They alone have the power to levy the tax, and it is their duty, under the law and the command of the court, to levy it. By no other means can the plaintiff obtain his rights, and it cannot be denied that the action of the defendants is wrongful and oppressive. It was held by the court that the plain- tiff's compensatory damages are but nominal, as he has
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not lost his debt, but has only suffered delay in its col- lection. But it is in the power of these defendants, and their successors in office, by defying the law, to delay him indefinitely in its collection. It is said that the de- fendants can be, and have been, punished for contempt in refusing to obey the writ of mandamus. That is true ; but that punishment is not to be reduced to the wrong done the plaintiff, but it must rather vindicate the dignity and authority of the court.
The defendants have been committed to the cus- tody of the marshal, for imprisonment, until they com- ply with the demands of the writ; but in a community where the popular sentiment is all adverse to levying the tax, it is likely that the imprisonment of the defend- ants, like the plaintiff's compensatory damages, would be but nominal. A tax-ridden people are deserving of sympathy, especially when the burden has been fraudu- lently imposed, though it was done by the dishonesty of their own agent ; but neither courts nor communities can afford to deny to any orator the exact letter of his legal rights, and it is not a pleasant or consistent thing to inveigh against nullification of the laws and cry out "law and order," and, in the same breath, applaud nul- lification, lawlessness and disorder.
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