USA > Missouri > Boone County > The bench and bar of Boone County, Missouri; including the history of judges, lawyers, and courts, and an account of noted cases, slavery litigation, lawyers in war times, public addresses, political notes, etc > Part 21
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COLUMBIA'S CASES
The city of Columbia has been a party to some noted and leading cases. Russell vs Columbia (74 Mo. 480) was one of the first cases to hold that a municipality was liable to one injured while walking on a public street at night. The plaintiff, a daughter of Col. F. T.
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Russell, returning home from church, fell into a ditch left open by the Columbia Gas Company, which was then laying pipes in different parts of the town, but the court held that the town must answer for the neglect of the gas company.
Boulton vs Columbia (71 Mo. App. 519) was similar in many respects to the Russell case, only the plaintiff, a young woman, suf- fered a sprained ankle while walking on a defective sidewalk at night. The sidewalk was on Elm street, just south of the Y. M. C. A. Building. The judgment in this case not being paid, the city officials were mandamused, and payment of the judgment was compelled (see State ex rel. Boulton vs Norvell, 80 Mo. App. 180).
State ex rel. Robinson vs Columbia et al. was perhaps the most noted case Columbia was interested in. J. DeW. Robinson, prosecut- ing attorney, instituted this suit to enjoin Columbia and its municipal officers from issuing bonds and erecting and maintaining a waterworks and electric light plant. The supreme court made the injunction per- petual, as did the circuit court (see 111 Mo. 365). No case in recent years caused as much bitterness as did the argument of this case in the circuit and supreme courts. Judge Alexander Martin, C. B. Sebastian, Lewis M. Switzler and Jas. A. Yantis were the attorneys for Co- lumbia ; and Gen. Odon Guitar, Col. S. Turner, H. B. Babb, Welling- ton Gordon and J. DeW. Robinson represented the relator. Numerous newspaper interviews were had by the respective attorneys, and per- sonalities were indulged in. In the petition, Judge Martin was referred to as an "astute legal Alex". And the attorneys for Columbia charged that the prosecuting attorney had been hired to bring this suit by the Columbia Gas Company. Of course, this was vehemently denied by Mr. Robinson ; and, in addition, he had some things to say regard- ing the integrity of his accusers. When the attorneys went to Jeffer- son City to appear before the supreme court, the hotel clerk stated that he was short of rooms, and suggested to Mr. Robinson that he would be compelled to put him in the same room with one of the attorneys for Columbia. Mr. Robinson respectfully declined, saying, "I won't stay in the same room with no grand rascal". During the argument of this case, Mr. Robinson, in referring to Gen. Guitar, said that he admired General Guitar, as a lawyer, but did not admire him politically.
The "Missouri Statesman" of November, 1896, gives the following account of one of the city's injunction suits :
The city council has lately commenced improving the streets in the third ward by making cuts and fills; the streets affected most by these grades are Seventh, Ninth, Tenth, Locust and Cherry; and on
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this hangs a tale. Mrs. Margaret E. Watson is the owner of a lot on Ninth street and also a lot on Tenth street; and the sides of both lots are just north of Locust street. When it was learned last Fri- day that a contract had been let to James H. Guitar for grading these streets, and after Mr. Guitar had commenced work with his plows and scrapers, Mrs. Watson brought suit in the circuit court for the purpose of enjoining the city of Columbia, its officers, agents, employees and contractors from cutting down the ground immediately in front of and on the sides of her premises. The petition is a long legal docu- ment, and states her grievances in full, among which she alleges that the city of Columbia is insolvent, that the damage she is about to re- ceive is a permanent one, an irreparable one, and one for which she would have no adequate remedy at law. She therefore prayed that the city be forever enjoined from making the cut on the west and south of her yard. As work had already begun on these streets, an application was made on Monday morning before Judge Jno. A. Hock- aday, in vacation, for a temporary injunction till the February term, 1897. Both parties were represented in Fulton, the plaintiff by Ed. M. Watson and Judge Alexander Martin, and the defendant by N. T. Gentry and City Attorney J. Sam Banks. One amusing part of the proceedings was the preparations made by both sides, in the event that Judge Hockaday should sustain the application and grant the writ, which everyone seemed to expect him to do. Mr. Guitar with twenty-six teams began plowing by moonlight on Ninth street at four o'clock Monday morning, while the application could not be made till ten o'clock of that day. Mr. Gentry and Mr. Banks arose before it was yet light and drove at a furious rate down to Fulton, resolved to resist if possible, or at least to delay the granting of the application. But the most careful preparations were made by Mr. Watson. He arranged for a relay of horses on his return trip. Knowing that the city and the contractors would work as fast as possible before he could return, he intended to make his homeward trip with all speed known to modern travelers. At proper intervals along the Fulton road, a horse was stationed ready to bring the young attorney with the extraordi- nary process of the court with the speed and rapidity of Paul Revere, on his midnight ride. After hearing the arguments pro and con, Judge Hockaday decided that he could not issue even a temporary writ of injunction. This was a test case, and a number of others will likely be governed by the one, but damage suits will follow very soon.
Mrs. Watson and Mrs. Ann Douglass did bring suits against the City of Columbia for damages, on account of such grading, and both were awarded damages. The Watson case was appealed to the court
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of appeals, and reversed and remanded; and afterwards compromised (see Watson vs Columbia, 77 Mo. App. 267). At the trial of that case, it developed in evidence that about six o'clock on that Monday morning, Mrs. Watson saw the contractor, Mr. Guitar, and asked him what time he commenced work on the street. Mr. Guitar told her that he did not know, because his baby broke his watch crystal. Mrs. Watson said, "Ah, Mr. Guitar, I fear you broke the Sabbath".
Rev. G. A. Hoffman, Mrs. Gillie S. Rives and Mrs. Jane H. Riggins also sued the city, as a result of that grading (see Rives vs Columbia, 80 Mo. App. 173, and Hoffman vs Columbia, 76 Mo. App. 553).
After damage suits of this character were started, Geo. R. Jacobs brought suit against the city of Columbia, and F. W. Peck, Jas. H. Guitar and Dr. B. A. Watson, for making a fill in front of his prop- erty on Hitt street, some three years before. The circuit court held the city was not liable, but that the three members of the street com- mittee, above named, were liable; and this judgment was affirmed by the supreme court, one of the first instances where damages were obtained against city officials for work that was done at the city's expense, but not officially done (see Reid vs Peck, 163 Mo. 333). It was during the trial of one of these cases that Col. Turner placed Walter Williams, then editor of the "Columbia Herald", on the stand and asked him about the value of Columbia real estate. Mr. Williams claimed not to be posted on real estate values; when Col. Turner asked, "Don't you publish in your paper every week a list of the sales of real estate in Columbia, sir?" Mr. Williams admitted that he did, but he said, "It is published for the benefit of lawyers and real estate men ; so I never read it".
In 1896, the free coinage of silver at the ratio of sixteen to one was the question uppermost in the minds of the people and once it crept into a trial in the police court. The city of Columbia prosecuted one Lindsey Johnson, colored, on a charge of playing at a game of chance commonly called craps. Seven witnesses of the same color of the defendant testified that he did play and that they took part in the game with him. Each one of the seven admitted that he was indulging in that sport, and was then paying the penalty therefor, and a hung jury resulted. The city by the next time the case was tried, had four additional witnesses making eleven, seven and eleven being considered important numbers in such a case. In talking with his attorney before the second trial, Johnson said that he was in favor of free silver and his attorney insisted on him telling that fact on the witness stand. At the second trial Johnson stated that the city's
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witnesses were prejudiced against him and gave the reason therefor that he (Johnson) was the only free silver negro in Columbia. When the jury retired, a foreman was elected, and he promptly put the question, "All who are in favor of clearing this free silver negro stand up." The jurors were unanimous, and in less time than it takes to tell it, the sixteen to one man was discharged.
SALOON CASES
Like slavery, saloons have furnished much litigation in Boone county. By section 4, page 128, of Session Acts of Missouri, 1891, an applicant for a dramshop license was required to be a male taxpay- ing citizen over twenty-one and of good moral character; and the county court had to enter of record its findings on those subjects. In 1897, Dr. Robert S. Martin, who was a party to many law suits in Boone county, remonstrated against the granting of a license to Mike Swillum, an Ashland saloon keeper. After the county court decided against Dr. Martin and granted the license, Dr. Martin applied for and obtained a writ of certiorari from the circuit court; the record of the county court was examined, held insufficient and quashed be- cause the record failed to state that the county court found that the applicant for license was a male citizen. It is said that Dr. Martin enjoyed this victory more than all his other legal contests.
In 1905, H. H. Tandy and others attempted to have the dramshop license of a Columbia saloon keeper quashed because one of the judges of the county court, at the time the license was granted, was related to the applicant. But as the writ of certiorari goes only to the record, and as the record did not disclose any relationship, the opponents of the license failed.
In 1883 and 1884, Jas. F. Grossman, a Rocheport saloon keeper, sold his saloon to Head & Denham, and allowed them to run under his name, in order to avoid taking out a new license. Not long after, Head & Denham failed, and the courts held Grossman responsible for all their liquor purchases.
In 1900, a Woodlandville farmer named Nowell brought suit on the bond of a Columbia dramshop keeper, named Victor, for selling liquor to the minor son of Nowell, without the parent's consent in writing. The jury awarded plaintiff the statutory penalty of fifty dollars on each of three counts. The two attorneys for the defendant insisted that the plaintiff was trying to extort money from the defend- ant, and that plaintiff's attorney was expecting to be paid out of that fund. In reply, the plaintiff's attorney admitted that he expected to
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be paid, and he said, "defendant's attorneys will also be paid for their services-paid in either money or merchandise".
A Harrisburg saloon keeper, who did not know that he could not recover for a bar bill, brought suit against a young man on such an account in the justice of the peace court. Of course, he lost his case; but the evidence disclosed the fact that the young man was under twenty-one. Then Prosecuting Attorney C. H. Gordon filed informations against the saloon keeper for selling liquor to a minor, without permission of his parent, and convicted him.
And a Centralia saloon keeper had his license revoked, upon pe- tition by certain citizens, because of his failure to keep an orderly house. It was alleged and shown that one or more persons had been killed in the saloon, that gambling was there permitted and a piano played therein ; and the court held that this was sufficient proof.
LIQUOR LAW CASES
In 1883, the "Three-mile Law", which was passed March 25, 1875, and prohibited the sale of liquor within three miles of the State University, was declared unconstitutional by the circuit court. An effort was made to have the case reviewed by the supreme court on writ of prohibition (State ex rel. Morse vs Burckhartt, 87 Mo. 533), but the court refused to do so.
In 1907, the general assembly passed an act, popularly called the "Pemberton Five-mile Law", which was written and championed by Representative M. H. Pemberton of Boone county, and which pro- hibited the granting of saloon license within five miles of a state edu- cational institution then having an enrollment of fifteen hundred stu- dents. In a short time, suit was brought to test the constitutionality of this law by Karl Kehr, who desired a saloon license in Columbia. The county court refused to grant him a license; and an application was made to the circuit court, Hon. Wm. N. Evans acting as special judge, for a writ of mandamus, compelling the county court to grant the license. The circuit court refused as it was of the opinion that the five-mile statute was constitutional; but on appeal to the supreme court, the law was held to be unconstitutional. E. W. Hinton and W. H. Rothwell represented the applicant for the saloon license; and F. G. Harris, Don C. Carter and M. H. Pemberton represented the county court and those opposing the granting of the license (see State ex rel. Kehr vs Turner, 210 Mo. 77).
The case of Karl Kehr vs City of Columbia et al., 136 Mo. App. 322, was a suit to contest the legality of the local option law in Co-
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lumbia. The circuit court, Judge A. D. Burnes sitting, held that there was no law authorizing such a contest ; and his opinion was affirmed by the court of appeals.
The case of State ex rel. Ousley vs Turner, 141 Mo. App. 323, was a suit to contest the legality of the local option election in Boone county, outside of Columbia. The point raised was that the notice was published in a Columbia newspaper instead of in a newspaper outside of Columbia. But the circuit court, Hon. R. S. Ryors, special judge, decided that the county court was right in refusing a dramshop license ; and this decision was affirmed by the court of appeals. Messrs. Clark, Bruton and Rothwell represented the applicants for saloon li- cense, and Messrs. Harris, Searcy, Murry, Walker and Sebastian rep- resented those opposed.
McCARTER vs BOONE COUNTY
One of the few cases that Boone county has had was a suit by J. A. McCarter, the contractor of the court house of 1909, for $13,000, the balance which he claimed was due him for extra work on the court house. The suit was brought in the United States district court at Jefferson City, and the court appointed Judge Jas. B. Gantt referee. Judge Gantt had just then retired from the supreme bench of the state, after twenty years' service. He came to Columbia, heard the evidence and found in favor of Boone county ; and his findings were sustained by the United States court. E. C. Anderson, E. W. Hinton and W. M. Williams represented the county, and the contractor was represented by Scott J. Miller, of Chillicothe.
As Mr. Miller often appeared in the courts of Boone county, and was a student at the University for a number of years, the following incident in his professional life may not be inappropriate. An Indian was indicted in the United States court for cutting timber on govern- ment land, and brought before Judge Jno. F. Philips. When the district attorney started to read the indictment to him, Judge Philips asked if the Indian could understand the English language; and when told that the Indian could not, the judge stopped proceedings, saying, "I don't propose to have any farce enacted in my court; I will continue the case and discharge the prisoner till the next term." When the next term arrived, the Indian was there, but the district attorney had been unable to procure an interpreter; so the case was again continued. At the succeeding term, the Indian again appeared and the district attorney again admitted his inability to procure an interpreter ; so the case was dismissed and the Indian told to go. He bowed and left the court room. Mr. Miller witnessed the success of
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the Indian, and was pleased to see a man released in the Federal court in such an easy manner. The next case on the docket was a prosecution of Mr. Miller's client for a similar offense, and of course he entered a plea of not guilty. Mr. Miller cross-examined the witnesses vigorously, argued points of law and evidence and made an earnest and eloquent appeal for his "poor, unjustly accused, fellow man". But in a few minutes, the jury returned with a verdict of guilty, and the court inflicted a sentence accordingly. Mr. Miller did not know what to do; so he walked out in the corridor of the court house and sought relief in the smoke of a good Havana. He met the Indian, and, holding out his hand, said, "How are you, boss?" The Indian looked straight at him and said, "White man, he talk too much."
THE CIGARETTE CASE
In 1915, the city officials of Columbia passed an ordinance pro- hibiting the sale of cigarettes, which caused a stir among dealers, smokers and anti-smokers of cigarettes. The Missouri Store Com- pany and other Columbia merchants brought an injunction suit to test the legality of the ordinance, claiming it was unconstitutional and not authorized by statute. Judge Samuel Davis, who tried the case, decided that the ordinance was unconstitutional, although he said that he was personally opposed to the use of such articles. Messrs. Starrett and Finley represented the city; and Boyle G. Clark repre- sented the merchants.
JAMES E. BOGGS
CHAPTER IX
NOTED CASES, CONTINUED
State vs Maxey. In 1825, Walter Maxey, who was described in the indictment as "a labourer", was indicted for stealing a heifer, the property of some unknown person. The defendant and witnesses lived near Nashville, a few miles below Providence. At the June term, 1826, the defendant was convicted by a jury and sentenced to pay a fine of twelve dollars, to have thirty-nine lashes on his bare back, and to stand thirty minutes in the public pillory. The defendant filed a motion for a new trial, alleging that the punishment assessed was severe and unusual, but the court overruled his motion, and the sheriff was sworn to execute the sentence. Warren A. Smith, now of Colum- bia, says that he has often heard his father, Capt. William Smith, talk of the trial and punishment of Maxey, and that he and Ira P. Nash witnessed the whipping. Mr. Smith says that a hickory tree was used as a whipping post and pillory; and that this tree stood in Smithton, afterwards known as Garth's pasture, and now known as the Edward Farley ground, between Third Street and Garth Avenue. Mr. Robert H. Smith, who is still an honored citizen of Columbia, says that he was then a small boy, but he heard of the whipping of Maxey, and that James Barnes, a Baptist minister, was the sheriff who adminis- tered it. He says that the sheriff stripped Maxey to the waist and tied him to a hickory tree and gave him five lashes; then the sheriff walked away ten steps, returned and gave him five more lashes, and so on till the thirty-nine lashes were given. Maxey was then left stand- ing and tied to the tree for thirty minutes.
It is said that it was several years before any other heifer was stolen in Boone county.
State vs Hinkson et al. As stated elsewhere, Robert Hinkson was the man for whom Hinkson Creek was named. He lived in Columbia township. In 1825, a judgment was rendered by a Colum- bia justice of the peace against Hinkson for $14.50 debt and $1.061/4 court costs ; and an execution was delivered to Peter Kerney constable. This writ commanded the constable "to levy the said debts of the goods and chattels of him the said Robert Hinkson, a laborer, and for want of sufficient distress, to take the body of the said Robert Hinkson and convey him to the common jail of said county". In attempting to take the defendant to the county jail, a difficulty arose, and Robert
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Hinkson. Polly Hinkson, his wife, and Jas. H. Hinkson were indicted for resisting an officer with process. The defendants afterwards moved to Washington county, and Robert Hinkson died, and the case against Polly Hinkson was dismissed. Jas. H. Hinkson failed to appear at the February term of court and his bond was forfeited. On proof that his failure was due to the fact that the Missouri river was filled with floating ice and the ferry had stopped running, the forfeiture was set aside. Jas. H. Hinkson was then tried, but the jury failed to agree. At the June term, 1829, Hinkson made affidavit that "he fears he will not receive a fair and impartial trial on account of prejudice of the judge". A change of venue was awarded to Calla- way county, where the case was dismissed.
The Mill Dam Cases. At the June term, 1832, in book "B", at page 56, of the circuit court records, there appears the following, which explains itself :
The sheriff this day returned into court his report of the jury em- panelled by him to find and determine upon the writ of ad quod dam- num of Edward Keith, sued out by him at the last term on his peti- tion to build a dam and mill on Perche creek, which report is in these words, to-wit: "Pursuant to a writ of ad quo damnum issued from the office of the Boon circuit clerk, directed to the sheriff of Boon county, commanding him to summon and empanell twelve fit and lawful men to meet on the land of Edward Keith, being the southwest quarter of section 20, township 48, range 13, on a creek called Perche, on the 15th day of February, 1832, we the undersigned having met accordingly on the lands aforesaid, after being first sworn as the law directs and receiving our charge from the sheriff, proceeded to view the lands the property of others above and below the place where the dam prayed for is to be built, and we also proceeded to level the water, and do find that a dam nine feet high will not overflow the mansion house of any such proprietor or the houses, curtelages, gar- dens or orchards thereto belonging; and we further do find that the fish of passage of ordinary navigation will not be obstructed, neither will the health of the neighborhood be annoyed by the stagnation of the water in consequence of the dam. Given under our hands and seals" (signed by twelve jurors).
Similar suits were instituted by Zadok Riggs, who wanted to construct a mill dam across Silver's Fork in section 12, township 50, range 14, and by David Gordon, who wanted to construct a mill dam across Hinkson Creek in section 8, township 48, range 12.
The Boat Case. In 1840, Jas. S. Lowry was constable of Mis- souri township, and an execution was given him against one Burch.
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On that day, the constable had pointed out to him a boat that Burch claimed. The boat was loaded with corn and tied up to the river bank at Pettus' Landing. Stephen D. Pettus at once appeared and claimed the property thus levied on, and the constable went to summon a jury to try the property rights, leaving four men to guard the boat and corn. When he returned, the boat, corn and guard had gone, and neither the boat nor corn could ever be found thereafter. It fur- ther developed that five armed men cut the boat's cable and expelled the guard. A suit on the constable's bond resulted, and the circuit court decided in his favor, but the supreme court reversed the case, and said that he must hold property once levied on, and if necessary summon a posse comitatus (see 8 Mo. 41). Jas. S. Lowry was the grandfather of Mrs. L. T. Searcy.
State vs Casey & Stone. In 1845, the grand jury of Howard county indicted John Casey, Frederick Stone and John Neff for forc- ible seizing and confining one Martin Light, with intent to cause said Light to be taken out of the state of Missouri against his will and without lawful authority. Neff was tried in Howard county and con- victed, so Casey and Stone took a change of venue to Boone. The case attracted considerable attention in Howard, Boone and St. Louis counties, also in Lancaster county, Pennsylvania, where Martin Light was charged with obtaining money and grain from three men under false pretenses. Light fled the country and concealed himself in Howard county, Missouri. A heavy reward was offered for his arrest, and Governor Porter of Pennsylvania, requested Sheriff Priddy, of St. Louis, to obtain proper papers from Governor Marmaduke, of Missouri. The requisition was honored and Light was ordered turned over to Sheriff Priddy, as soon as he could be found. After making several trips up the Missouri River and failing to find Light, the sheriff of St. Louis began corresponding with Casey, and agreed to give Casey one-third of the reward if he would arrest Light. Accordingly, Casey, Neff and Stone took possession of Light one dark night, and held him in their custody for several days until they could get word to Sheriff Priddy. Hence this prosecution. James M. Gordon, Circuit Attorney, represented the state, and Abiel Leonard and Wm. A. Ro- bards represented the defendants. Both defendants were promptly acquitted.
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