History of Dakota Territory, volume I, Part 107

Author: Kingsbury, George Washington, 1837-; Smith, George Martin, 1847-1920
Publication date: 1915
Publisher: Chicago, Ill. : S.J. Clarke Publishing Company
Number of Pages: 1198

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The citizens of LeMars were almost unanimous in support of the project, and willing to go to the extent of their financial ability to construct that portion of the line east of the Big Sioux. Representatives from LeMars, Messrs. I. C. Flint and B. O. Foster, visited Yankton and consulted with the Dakota Southern officials, and the parties agreed fully upon the importance of the line in pro- moting the prosperity of their respective localities, and it was agreed upon informally that the road should be constructed from Yankton to LeMars at the earliest day practicable. But contrary to the encouraging tone of the vice presi- dent's letter, already given, this project was not encouraged by the Illinois Central Company, which at that time was operating the Dubuque & Pacific to LeMars over leased property, and did not appear to look upon the Yankton extension as a move in their interest.

The Dakota Southern Company was the last one of the projected lines that had been organized at the capital of Dakota, beginning in 1867, nearly all of them having in view a terminus on the Missouri River at some point above Sioux City, and owing to its excellent natural steamboat landing and other advantages, Yankton appeared to be that favored point. In addition to the corporations formed within the territory, the McGregor & Western through Northern lowa ; the Southern Minnesota ; the Yankton & Columbus, and the Dakota & North- western, were all projected toward the capital of the territory.

Sioux City received its first railroad gratis under the Union Pacific Railroad grant, from Missouri Valley. in 1867, and that point enjoyed much prosperity as a consequence of being the terminus, and found that its Dakota trade was one of the principal factors in contributing to its business growth ; its influence was not therefore friendly to an extension of the railway into the territory; but it had observed the growing sentiment in favor of a road from LeMars through to Yankton, and rightly divining that such a line, backed by the Illinois Central, then the leading railroad corporation in the west, and already at LeMars, would prove

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exceedingly detrimental to their business interests. As the LeMars connection was much preferred to Sioux City by the Yankton people, and there appeared te be, at that time, at least, an equal chance of securing the cooperation of the Illinois Central and the certainty of the unanimous and enthusiastic support of LeMars as well as the moral support of the settlers in the northern portion of Union County, peopled at the time, however, very sparsely ; the Sioux City oppo- sition to an extension from that place underwent a surprising modification, and in place of opposing, the influences there set to work, through their railroad inter- ests, including the Sioux City & Pacific, to dissuade the Illinois Central from cooperating with LeMars. The Sioux City & Pacific was vitally interested in the matter, perceiving that the LeMars line would be a material and permanent detri- ment to its traffic. The result of this combination of influences coupled with Yankton's feverish haste to secure railway facilities as early as possible, and a further factor not remotely connected which was found in Yankton's dependence on the friendship of the leading men in both Clay and Union counties in its political as well as railroad ambitions, finally forced the Dakota Southern to unite at the Big Sioux River with a new project called the Sioux City & Pembina, which was designed to build from Sioux City to the Big Sioux River and there to unite with the Dakota Southern, and then to continue up the Sioux and furnish a railway to Canton and Sioux Falls and Pembina.

While these preliminary movements were in progress and the indications were encouraging, nothing definite had been accomplished toward securing the funds to build and equip the road. Considerable commotion had been excited, but that which had been actually accomplished was about all on paper.

While much encouragement had been given by Nebraska parties who wanted a line from Columbus on the Union Pacific to Yankton, also by the Chicago & Milwaukee Company which now owned the line west from McGregor, lowa, and one or more construction companies had visited the territory, by their representa- tives, and looked the ground over, no arrangements had been made or seemed probable of being made on any basis that did not include a land grant or a sub- stantial money bonus. It would have been an impossibility to have raised a bonus by private subscription of sufficient amount to have attracted the favorable atten- tion of railway builders, and Congress was averse to making a grant of land to aid an enterprise in the southern part of the territory, though a magnificent dona- tion had been made to the Northern Pacific in the northern portion; but that was looked upon as a national highway. There seemed to be but one way by which an attractive bonus could be raised and this was by an issue of territorial or county bonds : but here again there was no law under which such a donation could be voted and made or that would permit the issue of bonds, or validate them if issued. The Legislature had adjourned when this phase of the question came to be seriously considered and would not meet again for nearly two years.

DAKOTA LEGISLATURE IN EXTRA SESSION

Committees were again sent out to Chicago and other points to interview rail- way builders. As a rule these returned with tentative propositions to build and equip a road if sufficient inducement was given. This meant in every instance a bonus far beyond the resources of the Dakota Southern or any other local com- pany ; though one or two parties were found who suggested that they might favorably consider a proposition to accept territorial or county bonds as a bonus. This was the nearest to a definite proposition that could be obtained ; but under what authority could the territory or any county issue a valid bond? The Legis- lature only could give such authority, and as this promised the only way to secure the sinews of railway construction, it was determined, in a council of the Dakota railroad "magnates," to prevail upon the governor to call an extra session of the Legislature for the purpose of enacting the necessary law. This step was decided upon with many misgivings as to the authority of the governor to convene the

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Legislature in extra session. The organic act was appealed to by many who had never before had occasion to examine it. It was found to contain no provision for the exercise of such a power, nor was there any provision prohibiting it, which was a grain of comfort ; and therefore, under all the circumstances it was deemed best to make the effort. Governor Burbank was absent from the terri- tory and had been for a number of weeks, and his early return was not expected. Secretary Batchelder, who was acting governor, was therefore appealed to, and was persuaded with little difficulty to reconvene the legislative body, though he was aware that he had no funds to pay the expenses of an extra session. It was decided, however, to "pass around the hat" to defray this item. Accordingly we find the following proclamation from his excellency, the acting governor, issued as per date given :

Yankton, D. T., March 30, 1871.

His Excellency, George A. Batchelder, Secretary and Acting Governor of Dakota Territory : Sir: We, the undersigned, a committee appointed for the purpose at a meeting of the citizens of Yankton and vicinity would especially request that you call an extra session of the Legislature of the territory at an early day, for the purpose of considering the propriety of passing an act to authorize the people of the several counties to issue bonds to aid in the construction of railroads and for other purposes.

Signed by Newton Edmunds, S. L. Spink, J. M. Stone, W. W. Brookings, J. Shaw Gregory, Geo. W. Kingsbury, committee.

Readily responding to the request of these petitioners, Acting Governor Batchelder issued a proclamation convening the Legislature in words following :

Whereas, an emergency having arisen which, in my opinion, demands the consideration of the Legislature of this territory; and

Whereas, The above request of a committee of citizens meets the expressed wishes of the people of this territory that some immediate action shall be taken to provide the territory with railroad facilities and communication-

Now, therefore, the Legislative Assembly of the territory will assemble at the Capital Halls, Yankton, on Tuesday, the 18th day of April, 1871, at 12 o'clock, noon, to consider what legislation, if any, is necessary on this subject.

GEO. A. BATCHELDER, Secretary and Acting Governor, Dakota Territory.

In obedience to this proclamation, the Legislative Assembly convened on the said Tuesday, at 12 o'clock noon, April 18, 1871, Governor Burbank in the mean- time having returned. The following named members of each House were present :

COUNCIL MEMBERS

First District, Union, Lincoln, Minnehaha and Brookings counties-J. C. Kennedy, Emory Morris and W. M. Cuppett. Second District, Clay County- J. W. Turner, Nelson Miner, Silas W. Kidder. Third District, Yankton County- James M. Stone, C. H. McIntyre, Jacob Brauch. Fourth District, Bon Homme County-Hugh Fraley.

IIOUSE MEMBERS

Minnehaha County-Charles Allen, O. B. Iverson. Lincoln County-H. A. Jerauld. Union County-S. L. Parker, S. C. Sinclair. Clay County-F. J. Cross. A. J. Mills, R. Mostow. Ames F. Shaw, Philip Sherman. Yankton County-George H. Hand, A. P. Hammond, Eph. Miner, N. Learned, Ole Samp- son. Pembina County-John Hancock.

The presiding officers and clerks were the same as those who had served in such capacities at the last regular session. After the two Houses had disposed of the necessary preliminary exercises, the following message was received from the governor :

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Gentlemen of the Council and House of Representatives :

You have assembled in extra session under the proclamation of the honorable secretary, and at the time acting governor of the territory, dated the 30th of March. On my return to the territory on the ist instant, I found questions raised in regard to the legality of the proposed session, and with the view of obtaining the opinion of the proper authority of the United States, I addressed a letter to the attorney general on the 3d instant, enclosing a copy of the proclamation and reciting the time of holding and the length of the regular session recently closed ; and asking whether or not authority existed for holding the special session as proposed. In response to this, I have this day received the following telegram :

April 18, 1871; by Telegraph from Washington. To John A. Burbank, Governor of Dakota, Yankton, D. T .:

The attorney general is of opinion that the special session is authorized. Signed, HAMILTON FISH, Secretary of State.

The object for which the special session is called is set forth in the proclamation. Believing that, as you are fresh from your constituents, and have not only the ability but the disposition to fully represent their wishes in regard to the matter proposed, 1 forbear making any recommendation on the subject, beyond the suggestion that you should, while you consider the wants of the territory, also remember that the ability of our constituents to bear heavy burdens is at this time by no means great, and that it would be a great misfortune to check or hamper our present vigorous growth by assuming responsibilities which may not readily be met. In any event, I trust no attempt will be made to bind the residents of the territory to any particular scheme for aiding private corporations, without giving them an opportunity to be heard directly upon the question.

JOHN A. BURBANK, Governor.

It will not be claimed that the purpose of this extra session was unanimously approved by the voters of the territory. There was quite a numerous element in Union and Clay counties opposed to any issue of bonds to aid railroads. At Elk Point, Union County, a well attended public meeting was held on the Sth of April, at which Emory Morris participated. D. M. Mills was chairman, and J. A. Wal- lace, secretary. After a long discussion of the object of the extra session, a com- mittee composed of George Stickney, J. A. Wallace, H. W. McNiel, Cyrell Montague, and William Olmstead reported the following resolution which was adopted without a dissenting vote:

Resolved, That the members of the Legislature from Union County be and are hereby instructed to oppose with all their influence and votes all acts and measures which may be brought forward in the extra session of the Legislature to be convened on the 18th instant, tending in any wise to induce the County of U'nion to lend aid in its corporate capacity for the construction of any railroad whatever.

Notwithstanding this declaration there was a very strong financial element at Elk Point that was willing to support an issue of bonds. A numerous body of Clay County people were not in favor of issuing bonds but were willing to help remove all lawful obstacles that would hinder other counties from using their corporate credit. It was apparent that the farming element and some politicians opposed the issue of bonds to aid in obtaining a railroad, while the inhabitants of the towns were in favor of it. A similar sentiment was prevalent in Yankton County as the sequel proved. After deliberating for three days the extra session of the Legislature passed a bill entitled :

An act to chable organized counties and townships to vote aid to any railroad. and to provide for the payment of the same, which was approved by the governor, April 21, 1871. Be it enacted by the Legislative Assembly of the Territory of Dakota :

Section 1. Whenever one hundred of the qualified voters, or a number equal to one-third of the voters, as indicated by the last general election, of any county or township in this territory, shall petition in writing, the board of county commissioners of such county, or the board of county commissioners of any county in which such township or townships may lie. to submit to the qualified voters of such county or township, a proposition to extend aid. either by donation, loan of credit, or subscription to capital stock of said railroad com pany, in the name of such county or township, to any railroad proposed to be constructed into or through such county or township, and shall in such petition designate the railroad company and the amount and kind of aid proposed to be given or extended, and the mode and terms of payment of the same, together with the conditions of such aid, it shall be the duty of the county commissioners to cause an election to be held of the qualified voters ot such county or townships, to determine whether such aid shall be given or extended

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Sec. 2. The board of county commissioners shall make an order for the holding of the election contemplated in the preceding section, and specify the amount of bonds proposed to be issued either as a donation or in payment or subscription to the capital stock of such railroad company, the mode and terms of payment, the interest, if any; the extent of time said bonds shall run, the name of the railroad company, and all conditions pertaining to such proposed aid as may be named in such petition, the day of election, and shall also prescribe the form of the ballots to be used at such election for and against such aid; provided, that in case such bonds are taken in exchange for capital stock in such railroad, such bonds shall be taken at par, nor shall any such bonds be negotiated at less than go cents on the dollar either by such townships or counties, or by the said railroad companies; provided, further, that such bonds shall not be issued by the county commissioners or delivered to such rail- road companies until said railroad is completed and in running order through said such county or township voting aid as aforesaid, or such assurances given that such railroad will be so completed as the county or township voting aid shall require; provided, the bonds shall not be given to any railroad company or individuals except in payment for the grading, tie- ing, building or other necessary work for such railroad and then such an amount may be given as will cover the cost of the work performed, the time of holding the next general election, after work performed.

Sec. 3. If the time of holding the next general election, after the date of making the order in the last section provided, shall not be more than sixty days, the said election provided for in the two preceding sections shall be held on the day of said next general election, and notice shall thereof be given and the election held, and returns thereof made, and the result ascertained and proclaimed as provided by law for general elections.

Sec. 4. If the next general election is more than sixty days from the reception of such petition, then the board of county commissioners shall order a special election to be held within forty days, and make an order for the same, specifying in the order the preceding sec- tions, and also specifying in the order how notice shall be given, which shall be by publication in some newspaper, if there be one published in the county or township, and also by a copy of the order posted up in three public places in each election precinct in the county or town- ship twenty days before said election. In all other respects the said election shall be held, the returns thereof made, and the result ascertained and proclaimed as provided by law for general elections. And it shall be the duty of the clerk of the board of county commissioners, upon the reception of such petition, to call a special meeting of said board within five days.

Sec. 5. If the majority of electors voting at such election vote for the issue of bonds, the board of county commissioners shall cause such bonds as may be required by the terms of said vote, to be issued and delivered in accordance with section second of this act, in the name of such county or township, to be signed by the chairman of the board of county commissioners and attested by the register of deeds under the seal of the county.

Sec. 6. Whenever any bonds shall be issued in pursuance of the foregoing provisions, it shall be the duty of the board of county commissioners annually to proceed to levy and collect a tax on all the taxable property in the county or township voting such tax, sufficient to pay the interest on said bonds; provided, that not more than 2 per cent of the assessed valuation of the property in any county or township, shall be raised in any one year under the provisions of this law, either for the payment of interest or bonds.

Sec. 7. Said bonds shall not be made payable in less than ten years, neither shall they run more than twenty years, and after the expiration of five years from the date of issue, a sinking fund shall be provided which will redeem said bonds at maturity.

Sec. 8. Such tax as is provided in the foregoing section shall be collected in cash or the coupons of such bonds which may be due and such tax shall be collected as county taxes are collected, and paid out by the treasurer on presentation of the coupons or bonds when duc, and all county officers acting under the provisions of this act, shall be entitled to the same fees as are allowed by law for similar services, and liable to the same fines and penal- ties for noncompliance. Before the treasurer, or any officer now, or who may be hereafter, authorized by this act, shall proceed to collect the taxes levied under this act or any portion thereof, he shall give a bond to the county commissioners in double the amount to be col- lected. for the faithful discharge of his duties; and any officer loaning, using. or failing to pay over any portion of the money collected under the provisions of this act, shall be guilty of a misdemeanor, and on conviction thereof shall be imprisoned in the penitentiary not less than three and not more than ten years.

Sec. 9. If any county or township tax shall be assessed and collected from any railroad which may have been built in whole or in any part in any town or county which may have subscribed stock as provided in the foregoing sections, all such county or township tax aris- ing from said railroad within said county or township, shall be set apart and held by the treasurer for the benefit of such county or township, and applied to the payment of the interest and principal of said bonds.

Sec. 10. Whenever any sum of the foregoing taxes, collected for interest or sinking fund, shall remain in the hands of the treasurer after paying all the interest due, if any, the board of county commissioners shall cause the treasurer to buy up the bonds at their market value, not exceeding par.

Sec. II. This act shall take effect and be in force from and after its passage and approval by the governor. JOHN A. BURBANK, Governor.

Approved, April 21, 1871.

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This act had been drawn by a committee consisting of Judge W. W. Brook- ings, Bartlett Tripp, S. L. Spink, Judge Ara Bartlett, Col. G. C. Moody and Geo. P. Waldron, who had been appointed for that purpose at a railroad meet- ing held in Yankton prior to the convening of the extra session.

EXTRA SESSION NOT AUTHORIZED

Something in the nature of consternation was created on the fourth day of this extra session by the reception of a corrected telegram, which read :

Washington, D. C., April 18, 1871.

Jolın A. Burbank, Governor of Dakota :

The attorney general is of opinion that the extra session is unauthorized. HAMILTON FISH, Secretary of State.

The first two letters of the word "unauthorized" had been omitted in the first dispatch. The Legislature had finished its business, however, passed a railroad subsidy enabling act, and was on the point of final adjournment when this corrected message came. It was at first conjectured that the first dispatch had been "doctored." after it reached Yankton, and some mild indignation was expressed by some of the outside members based on exparte evidence supported largely by suspicion only. It was well known that the railroad sentiment at Yankton was so earnest and general that a community less controlled by the moral code might have been unable to resist the temptation to behead the vital syllable in the attorney general's opinion. It may have been Yankton's proverbial good character that postponed the crystallization of an unfavorable public opinion, until the atrocity could be investigated. This the telegraph people set about doing, and were able to trace the first dispatch from Washington to Omaha, as it had been sent by the secretary of state, Fish. The next telegraph station after leaving Omaha was Missouri Valley, and here the message appeared shorn of its brief negative syllable. The files of that office disclosed that it was received "authorized." Either Omaha omitted that important prefix, or it went astray in the course of transmission. What had been done, however, could not then be undone. The railroad bill had been passed, and after a full and free ventila- tion of legislative opinion, in which the unknown parties to the outrage were subjected to a severe reprimand, while some consolation was derived from know- ing that the guilty party was not a Dakotan, there was a return to calmness and deliberation, and it was finally concluded to pass a memorial to Congress request- ing that body to legalize the unauthorized session and its proceedings, which it was presumed Congress would readily do when the facts stated in the memorial were laid before that body.

Leaving the work of the extra session in this condition, the unauthorized body adjourned late in the evening of Friday, the 21st, which occasion was mildly and good naturedly celebrated. The Yankton legislators and citizens joined with the visiting members in deploring the outrage committeed by the unknown telegraph operator, but there was so little body to their expressions of regret. that they were accused of shedding "crocodile tears."

The promoters of the railway were now supplied with a law of questionable legality under which an election could be held and county or township bonds voted to aid in the building of a road ; but notwithstanding this handicap of illegality, it was determined by the Dakota Southern Company to make an effort to secure the construction of the road with such aid as might be voted and with the prob- able favorable action of Congress in curing, by a special enactment, the disa- bilities of the territorial law. Influences had already been set at work to induce Congress to take such action, with the promise of a favorable result. In the meantime a committee consisting of Dr. W. A. Burleigh and Major Jas. M. Stone was dispatched to eastern railroad centers for the purpose of enlisting capital in the enterprise, which was looked upon at home as an investment that promised profitable returns independent of any aid granted in county bonds. This com

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History of Dakota Territory, volume I, Part 107

Author: Kingsbury, George Washington, 1837-; Smith, George Martin, 1847-1920 Publication date: 1915 Publisher: Chicago, Ill. : S.J. Clarke Publishing Company Number of Pages: 1198

Author: Kingsbury, George Washington, 1837-; Smith, George Martin, 1847-1920
Publication date: 1915
Publisher: Chicago, Ill. : S.J. Clarke Publishing Company
Number of Pages: 1198