USA > Kansas > Montgomery County > History of Montgomery County, Kansas > Part 19
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Among the disputants in the disagreements arising in the settlement of the county were some daring and reckless men, who occasionally chose to attempt a disposition of their disputed affairs "outside of court,"
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and without the aid of counselors. Usually their efforts resulted in the creation of more serious troubles in which the State of Kansas became the party plaintiff, and the lawyer found himself blessed with two cases, instead of one.
While a large element in the first population was cosmopolitan, the people at once began to take steps to encourage the building of railroads, bridges and other public improvements. These were soon seenred at ruinously extravagant prices, in exchange for municipal bonds, many of which are yet a burden upon the people and wealth of the county. In accomplishing these purposes much employment was afforded to the members of the bar.
Adventurous merchants often failed for want of caution in making purchases, buying too much on trust, and extending credit too far. Farmers who had not reckoned upon the disastrous drought of 1874 and the ruinous visitation of the festive red-legged grasshopper, and other unlooked for woes, came to financial grief. These misfortunes opened the way to the attorney to make collections by foreclosing mortgages, and in other snits, including attachments, receivers, etc.
The location of the county on the border of the Indian Territory, which then furnished a comparatively safe retreat for criminals, encour- aged the commission of crime. Many of the less discreet among these lawless men, often ventured from their asylums of safety, into the State, and were sometimes apprehended by the officers of the law; and others of them were occasionally, by daring officers without warrant of law, forced into the State. The prosecution and defense of these men fur- nished many handsome fees to the first lawyers who came to the county.
Besides these unusual sources of income to the members of the bar, that arose out of the rapid settlement and improvement of the county, and the peculiar conditions that surrounded it, the ordinary opportuni- ties for the lawyer, in all countries, were ever present here.
SECTION 11.
The District Courts
Prior to 1867. the Osage Indians were in the exclusive and rightful possession of all the territory of the present Montgomery County, except a traet known as The Cherokee Strip, about two and one-half miles wide on the south border of the county, and another strip about three miles wide on the east side of the county, that was a part of the Osage Ceded Lands. This Indian right remained intact until, by treaty concluded near the month of Drum Creek, on September 10, 1870, these occupying Indians relinquished all claims to the lands forever.
In 1867, a few adventurous settlers located in the country and these were reinforced by others during the next year. In the latter part of 1868 the immigration began to flow in constantly increasing streams,
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which continued till the first United States census for 1870 was taken, which showed a population of 7,638, exclusive of Indians. This was ap- proximately the population of the county at the time its first District Court convened at Independence on May 9, 1870.
Before that date. improvised tribunals of justice had afforded relief to the wronged, and inflicted punishment for the infraction of those rules that were by common consent adopted as a guide. These courts, if they may be dignified by that name, antedated the justices of the peace of the three original townships ( Drum Creek. Verdigris and Westralia), created in June, 1869, by the first board of county commissioners (H. C. Crawford, H. A. Bothuren and R. L. Walker), and assumed to exercise jurisdiction. in some matters, after the creation of the succeeding town- ship courts.
Before the first District Court convened, the question of the location of the county's permanent capital had been the subject of many heated controversies. Governor James M. Harvey, on June 3. 1869, by procla- mation. created the county and named Verdigris City as its temporary county seat. In the fall of that year an election for county officers and to locate the permanent county seat was held. A spirited rivalry sprang up. On the west side of the Verdigris, where the county was more sparse- ly settled. Independence, then less than six months old. was an active candidate ; a projected city called Tipton, located just east of the present Elk City, divided the vote on the west side of the river. On the east side of the river, in the beginning, three formidable candidates were pre- sented. These were Montgomery City on the north side and near the month of Drum Creek ; Liberty on the hill, about three-fourths of a mile east from the present "MeTaggart's Bridge" across the Verdigris; and Verdigris City (the temporary seat) located about the same distance southeast from the present "Brown's Ford" on the river.
Liberty was located between and abont an equal distance from each of its competitors on that side of the river, and, during the campaign, its advocates, by a shrewd piece of political diplomacy, secured the vote theretofore divided between the three aspirants, and by that means ob- tained more votes than either of its competitors on the west side of the river.
A bitter contest was begun in the Probate Court of Wilson County, to which Montgomery was then attached for judicial purposes. The court before which such contest had been instituted decided there had been no anthorized election and hence no contest could properly be enter- tained.
Mr. Goodell Foster, then but twenty-six years of age. was a leading attorney on the side in favor of maintaining the validity of the election. He had been elected county attorney but declined to qualify after the adverse decision of the court.
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After the trial had progressed two days, Mr. Foster retired at night, confident of victory on the next day. Ile had, late on the second day, presented a legal precedent that seemed to turn the "tide of battle" in his favor.
Few law books had been appealed to as authority to sustain the views presented by counsel on either side; indeed law books were a rare luxury here in those days. In legal fights, arguments and oratory ren- dered in loud and aggressive tones, were the weapons relied upon.
Many hours before sunrise on the third day, L. T. Stephenson arrived on the scene of conflict. He had. during the night. ridden horseback, with his attorney. F. A. Bettis, from Oswego, a distance of fifty-four miles. Mr. Bettis brought an Iowa "case in point." and on that author- ity the invalidity of the election was judicially declared ; and then and there the fond hopes of the friends of Liberty vanished never to return.
The site selected in 1869 for the permanent county seat is now an uninviting spot. Clusters of low sumae, dwarf persimmon trees and other illgrown bushes flourish on those portions where short grasses fail to grow between the lime rocks that peep from beneath the surface. Near the west line of this projected townsite is the point of a high hill from which can be seen a most beautiful landscape, which extends for miles up the timber-fringed Verdigris and over broad aeres of rich bottom lands and fertile up-lands and valleys; and to the north and east, some two miles or more from the same townsite, is a spot at the summit of a hill from which one can look upon Independence, Cherryvale and Lib- erty ; the latter the successor of her departed namesake.
The decision of the Wilson County Probate Court, so fatal to the prospects and hopes of old Liberty, was quietly acquiesced in, until the vexed question of the location of the permanent county seat was settled at a legal election held in November, 1870. At this election Independence was selected by an overwhelming majority.
At its annual session in 1870, the Legislature passed an aet, which was, on the 2nd day of March, in that year, approved by the Governor, creating the Eleventh Judicial District, comprising the counties of Crawford, Cherokee, Labette, Montgomery and Howard. By this law the Governor was authorized to appoint a judge for the newly created district, whose term of office should commence April 1st, 1870. It also provided for the election of a judge. for four years, at the annual election to be held in November of that year, and fixed his term to commence on the 2nd Monday in JJanuary, 1871.
This act, by its terms, was to take effeet and be in force from and after its publication in the Kansas Weekly Commonwealth, a newspaper then published in Topeka.
On the 16 day of March, 1870. the Governor appointed Hon. Wmn. C.
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HISTORY OF MONTGOMERY COUNTY, KANSAS.
Webb, of Fort Scott, Judge of the District, notwithstanding the law creating it and conferring the power to make the appointment was not published and hence did not become operative until the 24th day of that month.
While the appointment was premature and unauthorized, a better selection could not have been made, either at the time or after the law went into force, seven or eight days later.
One of the novel features of the law was that by its first section it made Howard county a part of the district, and in its next section pro- vided "the County of Howard is hereby attached to the County of Mont- gomery for judicial purposes."
The law makers may have been influenced to the inconsistency in the first and second sections of the act, by the impression that Montgom- ery county afforded the only convenience to be had. in the two counties suitable for holding court and in that view were doubhless correct. yet they may not have fully realized the lack of commodions, not to say lux- urious, appointments for such purpose, that they obtained in this, now the sixth county in the state.
The law also fixed times for convening the terms of court "on the second Monday of May and the second Monday after the third Monday of October in each year.
On the second Monday in May, 1870, which was the 9th day of that month. Judge Wm. C. Webb promptly appeared in the county to open his term of Court. This, under the law, must be held at the County seat; and Judge Webb was always unusually technical in the strict observance of all laws, so much so, had he known the weakness of his title to the office, he probably would not have attempted to exercise its duties.
On his arrival, he was confronted with a peculiar state of affairs respecting the location of the county seat. The Governor, in his pro- clamation creating the county, had designated Verdigris City as its temporary county seat ; the canvas of the vote cast at the election in 1869 attested that the permanent county seat was fixed at Liberty, and the election resulting in favor of Liberty had been judicially declared a nullity.
Ordinarily, this disturbing problem would have been easy of solution in the well trained legal mind of Judge Webb. Logically, the county seat would have been where the Governor located it, unaffected by the futile efforts to change it. However, other complications inter- vened. It was the duty of the County Commissioners to provide, at the county seat, a suitable place for holding court; and it was likewise the duty if the commissioners to hold its sessions at the same seat. The crude and diminutive court room that had been constructed at Verdi- gris City no longer remained there. Under the compromise between the
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three aspirants on the east side of the river, the primitive court house had been removed from its former site to Liberty, and the few inhabi- tanis who had dwelt on the land platted as the temporary county seat had hopelessly abandoned it and linked their fortunes with those who lived on the site of its former rival, after its barren victory at the polls.
Besides, the new Board of County Commissioners (W. W. Graham, S. B. Moorehouse and Thomas H. Brock) was friendly to Independence, at which place it held its sessions, and on May 5th, 1870, made an order as follows: "Be it known that. finding no suitable place at Verdigris
FIRST COURT HOUSE
City in which to hold the District Court of Montgomery County, it is hereby ordered that said court shall be held at Independence."
These were the conditions when Judge Win. C. Webb, in company with his former law partner, Mr. R. J. Hill, arrived, with the team of their law firm, at the log structure that had been known at Verdigris City as the court house of the county, and moved to and re-erected at Liberty for the same purpose. This small log house still stands, where it then stood, neglected and in a sad state of decay.
Afier the team in which JJudge Webb came was hitched, he walked into the supposed court house and at once. in the most emphatic manner, declared to its empty walls that it was wholly unfit for the purpose de- signed and he positively declined to open court under its roof.
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HISTORY OF MONTGOMERY COUNTY, KANSAS.
When Judge Webb and Mr. Hill arrived, there was no one at the building, but in a few moments a crowd was attracted to the spot-more from idle curiosity than otherwise-and in a short time Sheriff White arrived from Independence; the clerk of the court, L. T. Stephenson, a powerful friend in those days of Independence, had remained where his love and friendship centered.
After a short consultation between the judge, sheriff and Mr. Hill, these gentlemen drove on to Independence when the order of the board was made known to the judge and a new school building located on lot 17, block 52, the present site of the United Brethren church, was tender- ed for a court room.
After some hesitation, the judge opened his court there and directed the order of the board of county commissioners to be spread upon the records, where it will now be found copied on the first page of the first journal of the first term of the District Court ever held in the county.
This was the only term of conrt held in the county by Judge Win. C. Webb, and at that term but little business of importance, beyond the ad- mission of attorneys to practice. was transacted. Court adjourned on May 17th, 1870, after having continued most of the cases and admitted a number of the earliest members of the bar to practice.
At this term of court, Charles White was sheriff, J. N. Debruler, under sheriff, L. T. Stephenson, clerk, and Clate M. Ralstin, county at- torne1.
SECTION III. The Judges of the District Court
The gentlemen who have presided over the District Court of Mont- gomery county since its creation. have, for the most part, been men of far more than ordinary ability; and when the comparison is indulged with judges in this and other states, who have occupied the same exalted positions. there could be little or nothing found to complain of or eriti- cise in onr judges. It is well known in the legal profession, that the of- fice of judge of a trial court of general jurisdiction is one that is most difficult to acceptably fill. To properly perform its duties requires aceu- rate knowledge of the law, and of the rules of pleading and of evidence, together with business tact and administrative ability.
HON. WILLIAM C. WEBB, of Fort Scott. Kans., was the first judge of the District Court. He held but one short term in the county and that was in a new school house on East Maple street in Independence. Suf- ficient allusion has been made to this feature in the preceding section of this article.
When Judge Webb convened the first district court here he was a man abont forty-six years of age and had before been recognized in this
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HISTORY OF MONTGOMERY COUNTY, KANSAS.
state as well as in the state of Wisconsin, from whence he came to this, as a lawyer deeply learned. accurate and profound in the profession.
After his first and only term in the county, he, on November 17th, 1870, resigned the office and shortly after became the official reporter of the Supreme Court of Kansas and, as such, thereafter produced fifteen volumes of the reports of the court (Vols. 6 to 20 inclusive.)
After retiring from the responsible and arduous duties of that office, he, with great credit to himself. filled various high public positions in the state and, at times, was, in a professional way, engaged in many impor- tant legal controversies. He became well known throughout the state, and was everywhere recognized as one of its most distinguished lawyers.
Before coming to Kansas, Judge Webb had served in the Civil war as colonel of a Wisconsin regiment, and had been a member of the Legis- lature of that state. Among the public places of trust he has filled in this state, outside of those already mentioned, may be named those of state senator, member of the lower house of the legislature, state super- intendent of insurance and judge of the Superior Court of Shawnee county.
In his old age, while bending under the burden of the heroic strife of a well spent life, he, in 1896, undertook and accomplished the compila- tion of the laws of Kansas. This was a herculean task and better fitted to the energy and physical endurance of the man as he was twenty-five years before.
Judge Webb died in 1898, at Topeka. at the ripe age of seventy-four years, lamented, honored and respected by all who knew him. At the January, 1898, term of the Supreme Court, it adopted and spread upon its records a handsome tribute to his memory.
HON. HENRY G. WEBB, at about the age of forty-five years, sue- ceeded his brother, Wm. C. Webb, on the bench. He was elected to the of- fice at the November, 1870. general election. and the term of his office be- gan in January, 1871. Under the law, as it then existed. the second term of court was to convene in the county on the "second Monday after the third Monday in October." At the appointed time Judge Wm. C. Webb failed to appear and open his court, whereupon the members of the bar selected Judge Henry G. Webb as judge pro tem, and he, as sneh pro tem judge, held the October or November, 1870, term of court, in a room upstairs on the east side of Pennsylvania avenue in this city, in a build- ing about 100 feet south of Main street.
At the time of his selection as such pro tem judge. he was a candi- date against Hon. Wm. Mathena, of Cherokee county, for the office and at the election held a few days after convening court, was chosen by a large majority.
After the election and while Jndge Webb was serving as judge in a
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temporary capacity, he disposed of at least one highly important matter arising out of what is now conceded to have been a fraudulent and cor- rupt election, held June 21st. 1870. It had been voted to issue county bonds in the sum of two hundred thousand dollars, to secure the build- ing of the Leavenworth, Lawrence & Galveston Railroad, from near the northeast corner of the county, via Cherryvale and Coffeyville, to the south boundary of the state. One of the first suits brought to question the validity of that election in the District Court of the county was the case of Asa Hargrave vs. Charles White. The court appointed Mr. A. C. Darlow, an attorney of Oswego, a commissioner to take testimony and re- port. Mr. Darlow, in a very brief time, made his report, whereupon, on November 2nd. 1870, the court rendered its judgment, tinding, among other things, that said election held on June 21st, 1870, on the question of voting $200,000 to said railroad company was a valid and legal election. Without venturing a criticism on the soundness of that ruling, it may be remarked, that shortly afterward the bonds were issued and now, after much litigation and the expediture of a large amount of money, in vain efforts to defeat them, a large portion of the debt still hangs as a burden on the county.
On the 9th day of November, 1870, Judge Webb pronounced, perhaps, the first divorce decree in the county. It was in favor of the wife, who was plaintiff, and on the grounds that the husband had been willfully "absent from said petitioner for more than one year prior to the filing of the petition."
At the same term of court pro tem Judge Webb made an unique order in reference to the papers and files in the clerk's office, which, among other things, provided they should not "be loaned, borrowed, taken away, purloined. stolen or kidnapped from the office" and also that any person or attorney "wishing copies may have the same by giv- ing ample notice to the elerk and paying for the same at the price per folio allowed by law;" the order then made an exception in favor of the county attorney, who was allowed "to borrow papers by receipting for and returning the same in three (3) days."
Any of the early members of the bar who knew the clerk of the court in those days and his peculiar and aggressive style of composition, will not hesitate to aseribe the authorship of this positive order to L. T. Stephenson, who was always an intimate friend and a great admirer of the judge.
The May, 1871, term of court was held in the same room on Pennsyl- vania avenue and at that term Frank Willis appeared as county attor- ney, Judge Henry G. Webb was then "a full fledged" official with a term of about four years before him and had formed close social relations with a coterie of members of the bar and others. These friends of the judge,
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for some reason, so it was claimed by Mr. Willis, had formed an un- friendly feeling for the county attorney, which was shared by the judge. Out of this antagonism disputes arose that were sometimes aired in open court.
On November 30th, 1871, the court ordered the arrest of Mr. Willis for contempt of court. The specification stated that Mr. Willis had ut- tered the following insulting language in open court: "If the court wants to do so and dismiss the cases here publiely just for the purpose of stigmatizing me, why you can do that" and further it was specified that Mr. Willis had used in open court the following contemptuous lan- guage . "If you want to do such things in that way and dismiss these eases just because Bennett says so why just do it." What became of the contempt proceedings against Mr. Willis, the records do not show.
At this term of court, on December 2nd, 1871, in the case of the State vs. L. T. Stephenson, the defendant was tried and convicted of an assault, and by the court fined twenty-five dollars and the costs of the prosecution. Neither this fine nor the costs was ever paid, and no com- mitment issued. Long afterward and on August 30th, 1872, Mr. Stephen- son appeared in court, and, on his motion, the fine was remitted.
By an aet of the Legislature, which went into effect on March 6th, 1872, three terms of court were provided for the county. These were to convene respectively on the first Monday in April, August and December.
On the first day of the April, 1872, term of court Judge Henry G. Webb and the clerk, L. T. Stephenson, were absent. There were present, however, besides some of the members of the bar. J. E. Stone, sheriff ; J. B. Craig, deputy clerk ; and Frank Willis, county attorney, and the sheriff adjourned court 'till the next day.
On the next day, which was April 2nd, 1872, court, with a full corps of officers, convened in Emerson's hall, which was on the north side of Main street and just west of the present court house grounds, and re- mained in session for several weeks. The conveniences in these new quarters were much superior to those afforded in the rooms formerly used for court, but in some respects, in the opinion of Judge Webb, were still lacking; and to supply the needs, which, under the law, it was the duty of the county commissioners to provide, the court, on the 17th day of April, 1872, made an order directing the sheriff, at the expense of the county, to provide by the next term "sufficient matting of the best qual- ity to eover the bench and bar and also the aisles in the court room and that he lay the said matting securely on the floor and cause to be erected in said court room a platform of sufficient length and width to comfortably seat twelve jurors, and also a witness stand, and also a table six feet long and three feet wide and three and a half feet high for the use of the Judge of this Court."
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While publie officials often in the discharge of their duties, inno- cently overstep the bounds of the law, an order of this character, ema- nating from a court which is charged with the interpretation of the law and with defining its limits, becomes of serious import ; in other words, it usurped powers that belonged to the county commissioners.
At the August, 1872, term, and on the 22nd day of that month, in a ease then pending, in which a former county attorney was plaintiff and the board of county commissioners was defendant, it was, in open court agreed that the plaintiff should recover the amount that would result from dividing the aggregate of the amounts named by the mem- bers of the bar present, by the number of such members. The court ren- dered judgment against the county for the amount ($300) thus obtained on this unheard of proceeding. At the December, 1872, term of eourt a highly important murder case was pending; it being the case of the State vs Oliver P. Cauffman, George W. Ripley and Jasper Coberly.
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