USA > North Dakota > Early history of North Dakota: essential outlines of American history > Part 45
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was no Fargo or Moorhead. Not one settler had yet entertained the idea of occupying the rich lands in its immediate vicinity. Grand Forks was not even a voting precinct, and all of the valley was Pembina County, which was the only civil organization in what is now the state. There was a postoffice at Pembina, Fort Totten, old Fort Ransom, and Abercrombie, but that was all. Much of the state was an unknown land, visited only by Indians, traders, missionaries and Government expeditions. Fremont visited Devils Lake in 1839. Catlin came and saw but went away without conquering, in 1841. Sully and Sibley visited parts in 1862 and 1863. Hatch's battalion occupied Pembina in 1862. Lewis and Clark had visited the Missouri River region in 1805, and it was their report which gave the world the first idea of the unparalleled resources of the North- west and led to its general occupation by traders. The John Jacob Astor Com- pany, formed in 1808, occupied the Missouri and the James River Valley for a time, but the War of 1812 forced their consolidation with the North-Western, which in turn was consolidated with the Hudson's Bay Company. Then came the Columbia Fur Company, which occupied all of this region for a time, but gave place to the independent traders who disputed the ground with the Hud- son's Bay Company until after the settlers of 1870 came into possession of a goodly portion of the land. The theme is interesting, but let us glance at the later development.
"Twenty-five years ago, in all North Dakota there were only watchers and waiters for the Northern Pacific Railroad crossing the Red River, bent on town- site speculation, and these could be counted on the fingers of your two hands, outside the settlement at Pembina, and the occasional wood chopper or keeper of the stage stations along the river and those at the military posts. * *
"In the early history of the Red River Valley the Hudson's Bay Company had a line of vessels running from Hudson's Bay to England, which made annual trips, bringing the mail and supplies once a ycar and carrying back the following summer the winter catch of furs. In mid-winter dog sledges were sometimes sent through to Montreal with later communications and orders for goods to be delivered the following August. Subscribers for the London papers received 365 copies at one time and even in our day the wife of our oldest settler, Mrs. Cavileer, a descendant of one of the original Selkirk settlers, informs us the subscriber read only one copy a day, that of the corresponding day of the year before. It was not until Commodore Kittson arrived at Pembina in 1843 and established a trading post, which soon led to monthly mails, that the system of yearly mails was improved upon."
PART IV
CHAPTER XXIV
DIVISION OF THE TERRITORY
The Territory of Dakota was organized by the Congress of the United States by the act of March 2, 1861. Prior to the passage of this act by Congress, a few enterprising spirits had crossed the confines of Minnesota and. Iowa, and estab- lished homes along the banks of the big Sioux and Missouri rivers, and founded the cities of Sioux Falls, Vermilion and Yankton, but settlements in North Dakota were principally at Pembina, until the Northern Pacific Railroad crossed the Red River and founded the City of Moorhead on the east bank and Fargo on the west. From that time forward settlers, attracted by the liberal provisions of the home- stead law, and the rich agricultural lands of the Red River Valley, poured into North Dakota in streams, and the population increased from 2,405 in 1870 to approximately one hundred and eighty thousand in 1889, when Dakota was divided on the seventh standard parallel and North Dakota admitted as a state in October, 1889. The act of Congress creating the territory is known as the "Organic Act"-it was the constitution of the territory, its charter of govern- ment. A territory is a state in a chrysalis form, and the bonds which clothe this chrysalis form are broken only with the consent of Congress.
In states, all the sovereign power is in the people, but so far as a territory is concerned, the sovereign power is lodged in Congress. A territory has no ori rinal or sovereign power of legislation, all its powers are delegated by Congres., and while the people of the state may create governments with legislative, executive and judicial powers, the people of a territory cannot do so until authorized by Congress.
The enterprising, virile people who had established homes in the territory had come largely from the old states, though many came from the northern states of Europe and Canada. They understood the principles upon which this government was founded, and were restive under the territorial form, regarding it as servile, and therefore intolerable. They wanted relief from the irresponsibility of appointed rulers and judges, and a voice in the selection of those who should govern them. The rapid increase in the population and material wealth demanded, as its people believed, for the promotion of their welfare and the betterment of the varied interests, a more permanent form of government than was possible under the territorial form prescribed by Congress.
The division of the Territory of Dakota into two states or territories on an east and west line along the seventh standard parallel was a burning question from the creation of the territory until its consummation in 1889. Hence a brief review of the territorial days is essential to a clear understanding of the causes and Vol. I-24
369
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influences which induced Congress to form the State of North Dakota. and admit it as a sovereign state to the Union.
The Territorial Legislature of 1871 adopted a memorial to the Congress, pray- ing for the division of the territory on the forty-sixth parallel of latitude, and similar memorials were adopted by the Legislatures of 1872, 1874, 1877. The construction of the Northern Pacific Railroad across the state to Bismarck in 1873 intensified the interest of the people in division, and from that time forward the movement for division constantly figured in congressional annals.
As early as 1873, Senator Ramsey of Minnesota introduced a bill in the United States Senate for a territory for the north half, to be known as Pembina. The bill was defeated. In 1875, Senator Windom of Minnesota introduced a bill in the United States Senate for the creation of the Territory of North Dakota, and providing a temporary government therefor. This bill was favorably reported from the committee on territories in the Senate and passed by the Senate. It went to its death in the committee of territories in the House. The question of division and admission was before every session of Congress, either by bills on division and admission, by petitions of residents of the territory, memorials of its Legislatures or by resolutions of conventions called to consider the subject, for a period of sixteen years.
The real battle for division and admission began in the territorial legislative session of 1883. That assembly established a university at Grand Forks, an insane asylum at Jamestown, and a penitentiary at Bismarck. It authorized the issuance of bonds to construct necessary buildings, and provided that in the event of division, the bonds should be assumed and paid by North Dakota, and made quite liberal appropriation, in view of the financial condition of the territory, for the maintenance of these institutions for the ensuing two years. It also located an agricultural college at Fargo, but made no appropriation therefor. The loca- tion was conditioned upon the donation of a suitable site of at least forty acres by the citizens of Fargo. The condition was never complied with, and there was no agricultural college in the north half of the territory until statehood. It located the Normal School at Minto, in Walsh County, but made no appropriation there- for. That assembly also passed an act for the removal of the capital from Yank- ton, through a capital commission of nine persons, who were authorized and empowered to remove the capital from Yankton, and locate it at some place more convenient and accessible to the people generally. It was urged as a reason there- for that the great railroad systems which now traverse the State of South Dakota would, in the selection of a site by the Legislature, control the location to the detriment of the people, whose interests would be better safeguarded by a com- mission. The Legislature left the selection of the site to the judgment of the commission, but as a majority of the commission were from that part of the territory now constituting the State of South Dakota, it was assumed that some town in the central portion thereof would be selected.
Some members of the Legislature who voted in favor of the law creating the commission claimed there was a passive understanding, in fact an agreement by the proponents of the measure, that the commission would select as a site for the "seat of government" the Town of Redfield, situated in nearly the central part of South Dakota, and save for this understanding the commission scheme would have been defeated. No proof of such agreement was ever forthcoming, and the
RICHARD F. PETTIGREW
Came to Sioux Falls in 1869. Territorial legislator, delegate to Congress in 1881 and first United States senator from Sonth Dakota.
MORGAN T. RICH
First settler Wahpeton, for whom Richland County was named.
JUDGE JEFFERSON P. KIDDER, 1865
Delegate to Congress from 1875 to 1879. Judge of the United States District Court. first Dakota district from 1865 to 1875 and from 1879 to 1883. Died in office.
HENRY CLAY HANSBROUGH
First mayor of Devil's Lake: first mem- ber of Congress from North Dakota 1889- 1891; United States senator 1891-1909.
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fact that Aberdeen, Huron, Sioux Falls and Pierre, in South Dakota, vigorously competed for the location seemingly negatives such claimed agreement.
The committee visited all the localities in South Dakota which offered induce- ments for the capital location, and inspected a location at the south end of Devils Lake, and also Bismarck, in North Dakota.
The act creating the commission left it untrammeled in the selection of the site, save that the place chosen should donate to the territory at least 160 acres of land and contribute $100,000 for the erection of a capitol building. Bismarck complied with these conditions and in June, 1883, at a meeting of the commission held at Fargo, Bismarck was selected by a vote of five to four, as the "seat of government."
The business men of Fargo filed a protest against the selection of Bismarck, and demanded that Burleigh F. Spalding, a resident of Fargo, and a member of the commission, vote against Bismarck. Alexander Hughes, William E. DeLong and John P. Belding of South Dakota, Alexander McKenzie and Milo W. Scott of North Dakota, voted for Bismarck. B. F. Spalding voting for Redfield. This selection surprised the people of the territory. South Dakota was wild in its protestations, denouncing the act of the commission in the strongest possible terms.
Upon the relation of the district attorney of Yankton, an action was instituted in the nature of "Quo Warranto" to oust the commission from office, on the ground that the law was in contravention of the "Organic Act," which provided that the seat of government should be selected by the governor, and the Legislative Assembly, and that the Legislature could not lawfully delegate the right and power to a commission to remove the capital and locate it elsewhere.
The commission answered this complaint, and the cause was tried before Chief Justice Edgerton, at Yankton. Motions for judgment were made by both parties upon the pleadings. The motion of the district attorney for Yankton was sus- tained and on August 27, 1883, Judge Edgerton rendered judgment :
"That said defendants, and each of them, be and they are hereby forever ousted and excluded from said office of commissioners mentioned in said action in the complaint described, and from all franchise and privileges made, enumer- ated or included therein."
The chief justice filed no written opinion stating the grounds upon which the judgment was based. From this judgment the commission appealed to the Supreme Court of the territory. The leading counsel for the commission was William F. Vilas, of Madison, Wis., who afterwards became a member of the cabinet of Grover Cleveland. He was ably assisted by W. P. Clough of St. Paul, later vice president of the N. P. Railway, and Alexander Hughes of Yankton, who was a member of the commission, and also the attorney-general of the terri- tory, an office which had been created by the Legislature of 1883. The respond- ents were represented by Bartlett Tripp, a notably able lawyer; Gideon C. Moody, afterwards a United States senator from South Dakota; John R. and Robert J. Gamble, later elected to Congress and the United States Senate, respectively, from South Dakota; and Ellison G. Smith, the district attorney, all being resi- dents of Yankton.
This array of counsel filed exhaustive briefs covering every phase of the subject and supplemented the briefs by oral argument to the court. A majority
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of the court after due consideration reversed the judgment of the District Court, deciding :
"That in their opinion the appellants were lawfully entitled to exercise the duties of their appointment under the act in question."
Chief Justice Edgerton dissenting held:
"From the whole case I must conclude that the act of the Territorial Legis- lature creating the capital commission was unwarranted and invalid."
The act of the commission in selecting Bismarck as the seat of government unified the people of North Dakota. It increased the discontent prevailing in the southern part of the territory and hastened division.
CONVENTIONS
A convention of 188 delegates representing thirty-four counties in the south- ern portion of the territory assembled in Huron in June, 1883, and demanding a division of the territory on the forty-sixth parallel, provided for a convention to meet at Sioux Falls and frame a constitution. This convention met in Septem- ber, 1883, and after a session of fourteen days formulated a constitution and submitted it to the electors in the forty-two counties of South Dakota, by whom it was adopted. This constitution was submitted to Congress and on February 29th Benjamin Harrison, then a senator from Indiana, and chairman of the Committee on Territories, reported from that committee a bill to enable the peo- ple of that portion of the state south of the forty-sixth parallel to become a state. The bill was recommited by the Senate, but again reported on March 19, 1884. It was considered by the Senate December 9, 1884, and passed the Senate December 16, 1884. It was messaged to the House and failed of passage there.
North Dakota also held conventions. One was called to meet at Fargo Jan- uary 4, 1882, to take some action favoring the admission of the territory as a whole, or its division. It appointed a committee to proceed to Washington and urge Congress to divide the territory.
In 1887 the north half of the territory sent delegates to a convention which assembled at Aberdeen. Brown County was the only county in South Dakota represented. This convention adopted a resolution which declared that the ter- ritory should be divided into two states, the north half to be named North Dakota.
A third convention met at Jamestown in 1888. It adopted a memorial on the division of the territory in the two parts and the admission of both North and South Dakota as states, and appointed a committee to present this memorial to Congress.
The Territorial Legislature which assembled at Bismarck in January, 1885, adopted and forwarded to Congress a memorial providing for the admission of South Dakota as a state. This memorial was an able document. In intense, pertinent and trenchant language it enumerated reasons why division should be had, and the admission of South Dakota as a state be granted, but Congress failed to act thereon until December 15, 1885. In the meantime a second consti- tutional convention was held at Sioux Falls, in September, 1885; it framed and submitted a constitution which was ratified by the people of South Dakota, by an overwhelming vote.
This constitution and the memorial of the Legislature of 1885 were pre-
.
ARTHUR C. MELLETTE
Tenth governor of Dakota Territory, March to November, 1889
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EARLY HISTORY OF NORTH DAKOTA
sented to the Senate by its president pro tem., John Sherman, on December 15, 1885. Senator Harrison introduced a bill to admit South Dakota as a state, and to organize the Territory of North Dakota, on that date. This bill with an amend- ment substituting Lincoln instead of North Dakota, as the name of the new terri- tory, passed the Senate February 5, 1886. It was reported adversely by the House Committee on Territories.
Bills were introduced in January, 1886, to admit the entire territory as a state, to divide the territory on the Missouri River, to organize the Territory of Lin- coln, to enable the people of the territory east of the Missouri to frame a consti- tution and be admitted as a state, to admit the entire state and to organize the Territory of North Dakota.
In the congressional sessions of 1887 and 1888, other bills were substituted for these. Bills which proposed the admission to statehood of Washington, Dakota, Montana, and New Mexico. A bill to admit Dakota passed the Senate, no bill to divide the territory and admit the states of North and South Dakota passed either house of Congress in 1887-1888.
The Territorial Legislature of 1887 submitted the question of division to a vote of the people, at the general election in November, 1887. The governor of the territory was empowered to proclaim the result of the election when it was certified to him by the proper canvassing board. The full returns of the election were not received until January 10, 1888, and on January 12, 1888, Governor Church issued his proclamation showing that 67,618 votes were cast, of whichi 37,784 favored division, and 32,913 opposed. A majority of 4,871 for division. The counties in North Dakota gave a majority of 10,284 against division. Only four counties in North Dakota favored it, viz. : Burleigh, Grand Forks, Ramsey and Ward.
LEGISLATIVE ACTION
The resentment of South Dakota resulting from locating the capital at Bis- marck was forcibly shown in the Legislature of 1888. It re-enacted the law of 1883 locating the agricultural college at Fargo, and authorized the issuance of bonds for the university to cover deficiencies incurred in the course of the con- struction.of its buildings. It extended the time one year in which the citizens of Fargo could comply with the conditions prescribed in the law of 1883, but did not authorize the issuance of bonds to construct buildings, nor appropriate for its maintenance.
The South Dakota members strenuously resisted appropriations for the main- tenance of the university, penitentiary and insane asylum. The capital conimis- sion had issued warrants in payment of the excess of the cost of constructing buildings in a sum exceeding $30,000; it had incurred an indebtedness of $5,258.59 for furniture to equip the offices of territorial officers and legislative halls, $4.198.45 for carpeting the same, $10,561.46 for heating apparatus and $1,415 for plumbing. A prolonged struggle over these items continued until near the close of the session, when representatives of districts in South Dakota, in which public institutions were located, becoming alarmed at the possibility of the defeat of every appropriation to maintain them, agreed to the expedient of omnibussing all appropriations and combining with a solid North Dakota vote, passed in the
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House a law appropriating for all the institutions north and south, for the maintenance of the capitol and for payment of the indebtedness incurred by the capital commission excepting the warrants for capitol construction. The Legis- lative Council refused to concur in many of the provisions of this bill and it was referred to a conference committee to adjust the differences between the respective houses. The conference continued a number of days, the House adhered to the omnibus bill and the Council finally yielded its opposition, and agreed to the bill with a proviso added :
"Not to be construed as a ratification or endorsement of the acts of the com- mission locating the capital at Bismarck."
As a further step in the direction of statehood, this session made provision for a census. It divided the territory into two districts, and Maj. Alanson W. Edwards, of Fargo, was selected to superintend the taking of the census of North Dakota. He reported to the national Government a total population of 152,199 in North Dakota. This was greater than the ratio prescribed for a congressman, and the question of sufficient population to entitle North Dakota to statehood was settled.
The difference between North and South Dakota gradually widened in 1886- 87. South Dakota refused to be reconciled to the removal of the capital from Yankton. It controlled the Legislature of 1887, and the intention to continue the fight against the commission and other institutions was manifest in the early days of the session. Better counsels, however, prevailed and both sections were treated fairly in the distribution of the funds of the territory. It submitted, however, the question of division to a vote of the people at the general election in Novem- ber. The heavy vote against the division in North Dakota was a surprise, and was accounted for on the theory that the then democratic national organization was hostile to division and was unfavorable to admission to the Union, either as one or two states. The only evidence introduced to support this theory was the open opposition of leading democratic officials in both sections of the territory to division.
The democratic counties polled heavily against division. The election of Benjamin Harrison as President in 1888 had a most salutary effect upon the divi- sion and admission of the Dakotas. As a senator he was a staunch advocate of division and admission. It was claimed that he might call a special session of Con- gress in March to take action on this subject. Confronted with this possibility, members of the House who had antagonized admission of any more states, "changed front" and pledged support to the Springer omnibus bill, which the House early in January considered. It amended the act which provided for the admission of Dakota, Montana, Washington, Idaho and New Mexico, by adding the words "In lieu of the State of Dakota, the states of North and South Dakota," and passed the bill as so amended. The Senate refused to concur in the House bill and eliminated Idaho and New Mexico therefrom, and requested a conference of the two Houses to compromise their differences and at once appointed the Senate conferees. The House agreed to the conference February 2d. The con- ference later reported a disagreement to the respective Houses. Their report was considered by the House, instructions were given and a second conference granted. The report of this conference was presented to the Senate on February 20th and agreed to without division. It was forthwith transmitted to the House,
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which adopted the report and thus passed the bill which admitted the four states of North and South Dakota, Montana, and Washington into the Union.
The bill was presented to President Cleveland for his signature, and he com- plied with the suggestion of Springer, who for reasons of sentiment desired the bill signed on the anniversary of the birth of George Washington, first President of the United States, and affixed his signature to the Enabling Act on February 22, 1889.
The last Territorial Legislature convened at Bismarck, in January, 1889, and in anticipation of statehood enacted but few laws outside of appropriations. There was no contest over these as in former years, and all institutions were allotted an equitable share of the prospective income of the ensuing two years. It authorized an election be held April 7, 1889, to choose delegates to a constitu- tional convention to be held at Grafton, on the second Tuesday of May, 1889, the act to be inoperative if Congress passed an "enabling act" prior to the date of holding the election.
This was the most important act passed and over which a good natured con- test was had in designating the place of holding it. The South Dakota members of the Legislature left the selection to the North Dakota members, and agreed to vote for the place which received a majority vote of the North Dakota mem- bers. Grafton won.
The following statement as to Governor Ordway was written by this writer in 1889:
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