History of Dakota Territory, volume I, Part 109

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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company in, and relating to the said first division of said railroad, and all its right, title, interest and equity of redemption therein, that is to say, all the railroad of said company now made and to be constructed, extending from, at or near Sioux City 10 said City of Yankton, including the right of way therefor, roadbed, superstructure, iron, ties, chairs, spikes, bolts, nuts, splices, and all the depot grounds, station houses, depots, viaducts, bridges, timber and materials, property, and property purchased or to be purchased, for the con- struction of the first division of said railroad, and all the engines, tenders, cars, and machin- ery, and all kinds of rolling stock now owned, or to be hereafter purchased by said company for, and to be used upon said first division of said railroad, and all the franchises and rights of said company relating thereto, and property acquired by virtue thereof now in possession, or hereafter to be acquired, including machine shops, tools, implements and personal prop- erty used therein or along the line of said first division of said railroad, to be held in trust as aforesaid ; and

Whereas, A printed form of deed of trust is now submitted, dated May 21, 1872, and is hereby adopted as the one to be executed as above provided for ; therefore be it further

Resolved, That the same be executed in manner as aforesaid, and duly acknowledged and delivered to said trustee, as the deed above provided for, to secure the said bonds in manner and form as in said deed expressed.

This action of the railway company was regarded as premature by the principal stockholder, which was Yankton County, and the county, it appeared, had not been consulted in regard to it. At this time the work of construction had barely commenced, and though there was general confidence that the work would be pushed to completion as early as practicable, it was thought too early to anticipate its completion by such an important step, which under the circumstances would be regarded as exceedingly presumptuous on the part of the company, whose railway was in an embryonic condition, and gave to the project the appearance of a speculative scheme instead of a substantial industry and important improvement such as Dakota was vitally interested in. Under the law of Congress Yankton County's interest in the railroad or rather its connection with the corporation had been radically changed from the original plan of a donator of the $200,000 of bonds voted, to that of a stockholder, the law requiring the railroad company to issue to the county $200,000 of paid up stock in return for its bonds. This gave Yankton County the right to be heard in the official proceedings of the company, and also made it its duty to participate, the position of stockholder carrying with it certain responsibilities as well as rights. There was such manifest dissent to this mortgage proceeding that no further steps were taken to carry it into effect during the time occupied in the construction of the road, and in fact until some time after the road had been completed to Yankton and opened for traffic.

On the 12th of June, 1872, the County Commissioners of Yankton County executed and delivered to Wicker, Meckling & Co., the first $100,000 of county- railroad bonds, requiring a bond of the construction company to secure the county against loss in case of failure on the part of the construction company to comply. with its contract ; James M. Stone, W. W. Brookings, J. R. Hanson and John J. Thompson became securities for the construction company.

In October, 1872, the railroad company applied for the remaining $100,000 of Yankton County bonds, submitting, with its application, the following statement of the amounts it had already expended in the construction of the road. At this time the line was practically completed as far as Elk Point and work was being energetically pushed on the unfinished portion, with a strong probability, if favored by good weather, of reaching Yankton with the track by the first of January. 1873. The statement of expenditures follows :

Railroad ties $ 77,330

Twenty-two miles grading completed. 22,000

Bridges and culverts 10,000

Right-of-way Sioux City to Elk Point.

10,000

One engine and ten cars 15,000

Eighteen miles road completed 210,000

Four hundred tons iron delivered in territory. 10,000

Total

$300.330

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The county board appears to have taken no action regarding the issue of bonds. The county attorney, O. B. Orton, filed a protest against a further issue at this time. The board, however, was not a unit on the proposition, and the difference must have been serious as it resulted in the tender of Commissioner Eiseman's resignation as a member, and the board adjourned, reconvening again on the 27th of November, when Commissioner Eiseman appeared as a member, and action was taken authorizing the issue of the second $100,000 of county bonds; stipulating, however, that the bonds should be deposited in the First National Bank of Sioux City ; the company to receive $50,000 in case the road is completed to the Yankton County line by the 12th of December, and the remaining $50,000 in case the road is completed to the City of Yankton, by the ist of January, 1873. The company declined to receive the bonds with the stipulation regarding completion, alleging that the uncertainty of having suitable weather for track laying during the remainder of 1872 made it hazardous to agree to the stipulations. There was further investigation made by the county authorities, the differences amicably adjusted, and the bonds were delivered during December.

On September 14, 1872, the voters of Clay County voted upon the proposition to aid the Dakota Southein Railroad by a subscription to the capital stock amount- ing to $30,000. The sentiment of the county was known to be strongly against the proposition, but the few friends of the plan who were made up of influential citizens and large taxpayers, prevailed upon the people to have a test vote. In the Bloomingdale Precinct there were 285 votes cast, and only two favored bonds, and in every precinct save Vermillion the vote was largely "No." The election was characterized by unusual bitterness against the proposition, the voters accompanying their negative votes by remarks indicating considerable feeling. The total vote in the county footed up 639; for bonds 168; and 471 against. It was supposed that every voter in the county cast a ballot.

There was finally an agreement made with Vermillion property owners under which the company was to locate a station at that point, in consideration of the citizens erecting a depot building to cost about four thousand dollars ; procure the right-of-way through Clay County, and deed to the company 150 city lots.

The stockholders of the railroad company met at Yankton on the 12th of December, 1872, and elected a new board of directors, as follows :

C. G. Wicker, president; W. W. Brookings, vice president; J. S. Meckling, general superintendent ; J. R. Hanson, secretary and treasurer ; J. O. Rutter. L. M. Scudder, John A. Burbank, George B. Hoffman, county commissioner, representing Yankton County. Judge Kidder was tendered a place on the board, but peremptorily declined owing to the official position he occupied. Judge Brookings occupied a similar official position, and while he did not manifest the slightest disposition to use it in his official capacity as an officer of the road, the attitude of the judge of the First District was warmly approved by the people and aided materially in electing Mr. Kidder to Congress in 1874. Burbank, the governor, had also committed a grievous error in soliciting and accepting a place on the board. These proceedings aroused considerable discontent among the people, and greatly increased the unpopularity of Governor Burbank, who had not been very highly regarded.

The first Dakota Southern rail was laid at Sioux City, August 29, 1872. The line from Sioux City to the Big Sioux River was built by Wicker, Meckling & Co., under the organization incorporated under the laws of Iowa and entitled the Sioux City and Pembina Railroad.

The first locomotive to cross the Big Sioux River on the Dakota Southern Railroad was named the "Judge Brookings," which made the crossing safely on the 1st of October, 1872. The cars of the construction train reached Elk Point, October 23, 1872, and the road was opened for general traffic to that place November 13th, following. The daily stages that had been running to Sioux City connected with this train. The stages left Elk Point whenever the train arrived from Sioux City, and the train left for Sioux City whenever the daily stage

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arrived from Yankton. The construction train reached Vermillion November 25, 1872, and the road was opened to general traffic to that place December 10th, following.

The Sioux City and Pembina Railroad, projected on the Iowa side of the Big Sioux River, formed the eastern end of the Dakota Southern Railroad in 1872, was graded along the eastern shore of the Big Sioux River as far north as the Plymouth County line, and a town established called Portlandville. The road was designed by its promoters and builders to run north up the Big Sioux Valley, to cross the Big Sioux at Canton, and continue on to Sioux Falls. The enterprise soon passed into the control of the Dakota Southern Company, which a few years later abandoned the Iowa line and made Elk Point the initial point of the Sioux Falls branch, as it is to this day.

The road was completed to Yankton on Saturday, January 25, 1873. The first locomotive to reach Yankton was named the "C. G. Wicker." It crossed the Rhine Creek the first time on Sunday, the 26th. Regular passenger trains to and from Sioux City to Yankton began running Ferbruary 3, 1873.

DAKOTA SOUTHERN OPENED FOR TRAFFIC

The railroad was opened for traffic from Sioux City to Yankton early in February, 1873, and an excursion from Yankton to Sioux City took place on Thursday and Friday, February 13 and 14, 1873. The officers of the excursion train were Superintendent J. S. Meckling; General Freight and Ticket Agent Geo. E. Merchants : Engineer Jim Whitney; Fireman Dan Gordon ; Brakeman R. E. Guthrie and E. L. Gregg. The train left Yankton at 11.30 A. M. the 13th, and returned at 3.30 P. M., Friday. It was agreed at the time among the excur- sionists that the names of all those participating in the journey should be enrolled and published as a memorial of the first excursion on a Dakota railroad, and the first railway to reach the Missouri River in the Territory of Dakota. The following are the names of the excursionists :

From Yankton : Mr. Ingwerson and wife, Miss Nelfie Brookings, Mr. M. M. Matthiesen, W. W. Brookings and wife, S. McCook and wife, Miss Fannie Parmer, L. D. Parmer and wife, J. M. Washburn and wife, W. G. Press and wife, G. W. Kingsbury and wife, Fannie L. Kingsbury (now Mrs. Grigsby), D. T. Bramble and wife, G. H. Wetmore and wife, Miss Julia Davidson, Mrs. John A. Weeks, Dr. J. B. Van Velsor, Miss Fannie Todd, Clarence Van Tassel, C. II. McIntyre, Miss Hannah MeIntyre, J. M. Stone and wife, L. M. Griffith and wife, Geo. N. Jenkins, M. Grady, Miss Rose Grady, J. R. Sanborn and wife. Mrs. John Treadway, J. G. Edgar, Miss Dix, F. C. Herring, W'm. Tobin, Joe Sanborn, Benj. Hays, Miss Lizzie Hays, Will Vance, Mrs. S. Vance, Justus Schnell, Henry Meyer, Jas. Henne, Peter Fox, John Hartert, Thos. Hughes, J. V. Norton, A. P. llammon, Jerry Waldron, J. J. Duffack, O. H. Platt and wife, Win. Pound and wife, D. S. Warren and wife, Ed Highbec, Jolın Cunningham, S. V. Clevenger, Mrs. Thwing, J. R. Hanson, E. H. Van Antwerp, John Lawrence, Belle Stanley, Herman Fuffer, Judge L. Congleton, John Carey, James Stanage, Ilugo Riemer, Herbert W. Pike, Zina Richey, Francis Delaney, J. F. McNamara, Wmn. Gem- milf, Dr. Luke Lavery, M. P. Ohlman, Miss A. Rossteuscher, Albert Zemlicka, Theodore Schorregge, Win. Leeper and wife, Judson LaMoure, Miss Belle Moore, Frank VanTassel, J. I1. Burdick and wife, Geo. It. Hand and wife, Richard Dawson, Miss Josephine Dawson, Mrs. S. L. Spink, Miss Ada Cooley, Mrs. S. J. Morrow, Ole Sampson and wife, F. M. Ziebach, Alonzo Stone, George Stafford, Wm. Bause, O. H. Carney, John Cloudas. J. W. Albright, F. Dunlap, Frank Bronson, Louis Vele, Jas. Noonan, Lars Sampson, Chas. P. Edmunds, Emory R. Guild, C. A. Marshall and wife, G. A. Batchelder, Alex Daniels, Gco. W. Kimber, Geo. J. Foster, A. W. Howard, George Pike, L. M. Kee, J. C. Blanding, E. A. Edwards, J. W. Evans, John Kodylik, F. A. Ofney, Geo. Bronson, Alex Daniels, W. C. Brown, F. C. Hayward, Charley Spink, Irving Spink, Henry Heard, Henry Clay.

Band boys: J. M. Faust, leader ; John Buchman, Fred Schnauber, Ed Iverson, S. D. Presba, Felix Vinatieri, Christ Lutz, John F. Lenger, Emile Roth, Joseph Tyrack.

Additional excursionists : L. D. F. Poore and 11. F. Bonesteel, Springfield ; L. D. Pettit, Walled Lake, Minnehaha County; M. Grigsby, Sioux Falls.

From Vermillion : Ole Bottolfson, Miles Russell and wife, G. B. Bigelow, II. P. Han- son, Capt. Nelson Miner, C. F. Rhodes and wife, Sitas W. Kidder, C. F. Armington. Amos Shaw, T. R. Jewell and wife, B. F. Beflows, T. A. Robinson, Chas. H. True and wife, Jas. Leital, Judge J. P. Kidder, L. Lewison and wife, John L. Taytor, James McNamee, Samuel

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Bird, Knute Larson, N. V. Ross, Miss Freddie Miner, Miss Eva Rhodes, Col. B. F. Campbell, W. W. Deming.

From Canton: G. W. Harlan, B. 11. Miller, N. C. Nash, I. N. Menor, W. W. Fowler, J. B. Bertrand, Jr., W. S. Reynolds, George Kellen.

From Eden: Capt. A. B. Wheelock, J. A. Fowler, C. F. Ball.

John Smith, Lincoln; M. B. Kent, Liberty; J. L. Fisher, Lodi; Rev. T. L. Riggs, Fort Sully; A. Baker and wife, Mattoon, Turner County ; George Washington Kellogg, McCook ; John Holverson, Henry Oleson, St. Helena, Neb.

From Elk Point: E. W. Miller, J. H. Thorne, U. H. Akers, J. E. Millett, A. C. Freeman, J. S. Talcott, R. H. Miller, Michael Flynn, Charles Miller, J. A. Wallace, D. W. Hassen, G. O. Vaughn, M. Hoffman, R. S. Collins, J. H. Brown, B. O. Reandeau, E. W. Laird, J. H. Shannard, E. B. Wixson, Alex. Hughes and wife, George Stickney and wife, Michael Curry and wife, John Gulwinsk, John Coverdale, P. H. Sweeney, M. G. Laird, Charles Mallahan, John R. Wood.

The long agony was now said to be over, which was largely true as to the great majority of the people of the settled portion of the territory, who had been supplied with their most important material need at the time-ample transporta- tion facilities for the shipment of their surplus agricultural products to a cash market on a basis of profit to the producer; commercial facilities that enabled the merchants to transact their business much more satisfactorily and economi- cally ; and not least a modern highway connecting the southern portion of the territory with the United States and its tens of thousands of people who were making preparations for founding new homes in the farther west, including the sturdy emigrants from foreign shores who were journeying to America as rapidly as the ocean fleets could carry them, and in constantly increasing num- bers. To all Dakotans whose employment was identified with the legitimate purposes of the railroad, "the agony was over :" but in this instance, the novel methods which had attended the securing of the road, had left open opportunities not only for unfriendly criticism, but unprofitable and prolonged litigation, as the history of the time discloses.

NEW JUDGES APPOINTED-ASSIGNED BY GOVERNOR

In March and April, 1873, an important change occurred in the federal judic- iary of the territory. Chief Justice French, who had been assigned to the Third or Red River of the North District, was succeeded by Peter C. Shannon, of Penn- sylvania : and Associate Justice W. W. Brookings, who presided in the Second District at Yankton, was succeeded by Alanson H. Barnes, of Wisconsin. Judge Kidder had been reappointed, and presided in the First District at Vermillion.

Whereupon Governor Burbank, by virtue of the authority and power in him vested by the organic act, issued the following proclamation :

Whereas, section 15 of the organic act of the Territory of Dakota provides that "Temporarily and until otherwise provided by law the governor of said territory may define the judicial districts of said territory and assign the judges who may be appointed for said territory to the several districts, and also appoint the times and places for holding courts in the several counties or subdivisions in each of said judicial districts by proclamation to be issued by him; but the Legislative Assembly at their first, or any subsequent session, may organize, alter or modify such judicial districts, and assign the judges, and alter the time and place of holding courts, as to them shall seem proper and convenient."

And whereas, The Legislative Assembly has at various times defined the judicial districts of the territory, and fixed the times and places for holding courts therein, but has never assigned the judges who have been appointed for said territory to the districts thus defined by law :

And whereas, No existing proclamation of the governor clearly or definitely assigns the judges now holding office in the territory to the districts as they now exist;

And whereas, The opinion has been expressed by the attorney general of the United. States that "in the absence of any legislation by the territory assigning the judges, the gov- ernor has the power to assign them." Now, therefore,

1, John A. Burbank, governor of the Territory of Dakota, do proclaim that until other- wise provided, by the Legislative Assembly, or in default of that by the executive of the territory, the several judges of the Supreme Court of the territory shall be and they are hereby assigned to the following districts, respectively :

J. P. Kidder, to the First Judicial District; A. H. Barnes, to the Second Judicial Dis- trict ; P. C. Shannon, to the Third Judicial District.

.....

COLONEL MELVIN GRIGSBY Sioux Falls, 1872

GENERAL CHARLES T. CAMPBELL Founder of Scotland and veteran of the Mexican and Civil war-

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In testimony whereof I have signed my name and have caused the great seal of the Territory of Dakota to be hereunto affixed.

Done at Yankton, the capital of said territory, this twelfth day of April, 1873. ( Seal ) By then governor, JOHN A. BURBANK.

EDWIN S. MCCOOK, Secretary.

RAILROAD MORTGAGE BONDS STIR UP A LAW-SUIT

The railway company had promised certain improvements incident to the operation of the road, involving the employment of a number of mechanics and others at Yankton, in the way of repair shops and their accessories, and in supplying these it may have been that the company failed to furnish all that was expected, or it may have been tardy in performance; whatever the cause it gave ground for some open complaint ; and it was further charged that the company had concluded to, and had already bestowed these favors on Sioux City, where temporary arrangements had been made with the other roads centering at that point, to use their repair facilities. These reports, aggravated by sectional and personal rivalries, created an unfriendly sentiment at Yankton, which was shared by the county commissioners, who in their official capacity represented the county as a stockholder in the railroad company to the amount of $200,000, and now began to insist upon having a voice in the management of its affairs.

On the 11th of June, 1873, the directors of the railway company met, and by resolution cancelled the action had at a former meeting held in 1872, by which it was resolved to mortgage the railway property for $1,200,000; and in place of that resolution enacted a modified resolution for an issue of $600,000 first mortgage bonds, and $600,000 second mortgage bonds; and when in Atigtist following it took steps to carry out its bonding plan, it was met by the opposition of the commissioners of Yankton County who had applied to the District Court and had been granted an order temporarily restraining the company from further proceedings in that direction, until the case could be heard. The hearing followed the same month, resulting in the court's modifying the temporary injunction so far as to permit the company to go ahead with its bonding proceedings, but requiring it to give security, in the amount of $200,000, to indemnify Yankton County against the loss of its stock. Judge Barnes was the presiding judge.

This action of the court greatly incensed Governor Burbank, who was now one of the directors of the railroad company, and who very injudiciously if not scandalously, threatened to re-assign the judges and bring an official to the Second District who ( doubtless erroneously ) was supposed to be more favorably inclined toward the railroad company. The governor was said to have been so imprudent as to call upon the judge and threaten him with a re-assignment, but was informed that his threats would avail nothing in changing the judicial action, but if the governor persisted in his hostile declarations and unlawful course, he would subject himself to arrest and punishment for contempt of court.

Governor Burbank had been made a member of the Dakota Southern Board of Directors in recognition of his services at Washington in securing the passage of the curative act, and of the change made by the congressional enactment extending the western terminus from Yankton to Springfield, where the governor had acquired large interests. He had already, by proclamation, assigned the new judges, but this did not exhaust his authority in that direction. He had also secured the $15,000 of township bonds voted by Elk Point, as was publicly made known some years later.

The railway company did not favor a compliance with the modified order of the court ; it held that Yankton County, though a stockholder under the curative act of Congress, had in fact offered its $200,000 in bonds and delivered them as a donation in consideration of having the road constructed and operated, and had no just claim upon the property of the road, notwithstanding its position as stockholder, which had been given to it since the agreement between the company and county was made. The company, deeming the local and judicial sentiment

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hostile, then applied to the court for a change of venue, which the court denied at this time, but subsequently granted for reasons then stated which will be found fully and entertainingly set forth in the following pages. Matters remained in this situation for some weeks, the railway people and the county commissioners, in the meantime, aided by mutual friends, endeavoring to get together and stop the litigation. And it was for the purpose of harmonizing these differences that the railroad meeting was called by the citizens of Yankton, on the IIth of Sep- tember following, at which the fatal tragedy was enacted that resulted in the killing of Secretary McCook by Peter P. Wintermute; and here we have, apparently, a situation which in some of its features connects that deplorable event with the railway company; but this relationship does not appear to be justified in the narrative of the Wintermute case, elsewhere given.

During the day preceding the evening when McCook was shot, September 11th, the citizens of Yankton had engaged in entertaining the members of the St. Paul Chamber of Commerce, and the utmost good feeling prevailed. The affair had been a very successful one, and both McCook and Wintermute had been prom- inent in entertaining the visitors. It was because of this general amicable condition that the meeting was held, in hopes that it would result in some agreement or the adoption of resolutions, upon which the contending parties could get together and stop the litigation. The woeful tragedy put an end to the proceedings of the meetings, and but for one remark made by Wintermute who was in attendance, that "the people had no confidence in the railroad company," one would be at loss to find in the proceedings any marked hostility to the railroad people. Butit the bloody and deadly outcome of the assemblage had a sobering influence upon the public sentiment. There was a general desire for peace; and a horror of continuing any further litigation that might afford a pretext for further events of a kindred character, though from all the circumstances we conclude that the quarrel and the killing in this case would have been just as likely had the occasion been a political meeting.

But it will probably be generally recognized that the important events follow- ing this terrible crime and growing out of it, coupled with Governor Burbank's® resentful and vindictive disposition, had a demoralizing influence in the legal pro- cecdings instituted to punish the assassin.

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History of Dakota Territory, volume I, Part 109

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