History of Dakota Territory, volume I, Part 117

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 MESSAGE

The governor's message was delivered to the assembly in joint convention on the third day. John A. Burbank was governor. The governor prefaced his recommendations by a reference to the abundance of the year's harvest; and said :

"Let us be thankful to Almighty God for the lavish abundance which has crowned the energies of our people, awarding full value to honest labor." Concerning education he said : "I have to urge upon your most searching attention, the laws already upon our statute books. with a view to their thorough revision, and to further enactments, which are required to place Dakota, if possible, on a footing with those states which are so justly celebrated for the perfect organization of their system of common schools. Educate the masses and the masses will take care of the nation. Negleet their education and the liberties of the whole people will be endangered." Concerning immigration he said: "Our best immigrant agents are the homestead and preemption laws, and these more than all other causes and instru- mentalities are inducing immigrants to people our broad and fertile acres. Our territory, with its natural advantages for comfortable homes, easy cultivation of the soil and prolific crops, has become so well known to the people of our immigrant producing states, and in Europe, especially to those wishing to better their condition in life by a permanent settlement in a free and productive country, that the filling up and development of our territory by a thrifty population, seems to be but a little way in the future; if we may judge by the sig- nificant promises of the present in the steady tide of settlers who are quietly and surely ex- tending over our fertile prairies."

Regarding Indian affairs: "Our borders have been uninterrupted by Indian outrages or any acts of violence worthy of official mention. So far, the present policy of the Govern- ment in dealing with the Indians has been generally successful. Civilization, restless and aggressive, is knocking at the barriers of our Indian reservations, and thrift and the plow- share are urgently demanding that idle savagery and the sealping knife shall surrender uncultivated lands to be dedicated forever to agriculture and material development ; yet peace with the Indians has been maintained. * * I am anxiously looking to the front * of this 'old and vexed question,' with the hope that your best consideration may assist in anticipating the wants of the future in regard to the final disposition of the Indian tribes."

Regarding a division of the territory: "There is a bill before Congress looking to a division of the territory along the forty sixth degree of north latitude, and providing a territorial government for the division north of that line. Dakota embraces 150.932 square miles, with sufficient territory for three states of average size. Our present population is not less than thirty thousand and is increasing rapidly. In its present condition and with its extensive boundaries, it is unwieldy and impracticable for the ordinary established machinery of territorial government. The diversity of local interests in so vast a territory has a tendency to fulminate sectional jealousies and provoke political conflicts. These would not be so liable to occur in a smaller area where the whole community would be brought to- gether in an almost daily contact, and where our interchange of ideas and opinions in regard to their wants would be uninterrupted. Should the proposed division be authorized by Con- gress at the present session, allowing Dakota to retain the present established government. the contemplated Territory of Pembina, north of the forty-sixth degree, will show a much larger population than any of the territories at the date of their organization prior to the establishment of Arizona, and since 1789."

Speaking of finance, the message said: "The finances of the territory are in a healthful state. and we have reason to be proud of their condition and management. There has been no debt incurred during my administration for which bonds have had to be issued, and there have been but few instances, if any, where warrants have been issued when public funds were not in the hands of the treasurer ready to pay them. Not having received the report of the auditor and treasurer, I am not able to give a detailed statement of the exact condition of financial affairs, but am assured that there are ample funds in the treasury to meet all legal demands which are liable to fall due and be presented for liquidation. In this connection 1 call your attention to the fact that the law has established an assessment of not to exceed two mills on the dollar for territorial purposes; however, it was found that one mill upon the dollar was sufficient to meet all demands upon the treasury for the year 1872, and I trust you will not find any legislation necessary to increase the rate of assessment as now fixed by law."

Concerning the important subject of railroads and the past year having witnessed the construction of the first lines in the territory, the message said : "Through the enterprise an 1 munificence of our people, which was promptly recognized by Congress at its last session in confirming the action of the late called session of our Legislature in relation to the Pakot i Southern Railroad, that much needed thoroughfare has been almost completed to this point, and is now a channel of busy commerce. We cannot too highly value its import ice t> our growing community, so creditable to its projectors and the energies and foresight ot the people who backed the road with their money and their votes. The end fully justifes the means. The Northern Pacific Railroad will soon be completed over the northern extent of

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our territory, from east to west. It will be of the greatest value to that region of the terri- tory, and will be a potent agent in peopling and developing the country which it grasps and dedicates to progress and civilization. It is one of our greatest public works and cost the Nation a great price. I hope the end will justify the means."

His excellency appears to have been somewhat doubtful about the means employed receiving justification ; but as time passes the trend of events is favorable. Speaking of other railroad enterprises, and there were a number, the message notes particularly one that the governor wes personally identified with, having, with the delegate, been altogether instril - mental in getting the charter from Congress without any previous consultation with the people of the territory. His favorite line was named the "Grand Trunk Railroad." He says : "Congress granted a charter at its last session for the construction of a system of roads in Dakota, which will furnish complete railroad privileges for the southern portion of the ter- ritory for many years to come. The trust has been confided to able agents who are prop- erty holders in Dakota, and who are actively alive to the settlement and development of the territory. I have full confidence that they are equal to the undertaking and that they have at command the power and the resources commensurate with the work to be done minder the charter granted by Congress. The greater portion of the surveys of the road and its branches have been completed, and this work will be renewed with great activity early in the spring of 1873. This franchise granted by Congress for the building of over one thousand miles of railroad, does not extend assistance equal to that given the Northern Pacific Railroad for building three miles of railroad in the same territory."

"The Winona & St. Peter's Railroad is in rapid construction in the direction of the Sioux Valley, and will soon be finished to the extent granted by its charter. It will be a natural feeder to our system of roads from the Northwest. I have great faith in our pros- perity which will grow out of these great works. They are the means which the Spirit of Progress has placed in our hands for the perfect development of our territory, and while I believe no man is able to estimate our future from the standpoint of the present, I feel it my duty to call your attention to the consequent changes that must take place in our coun- try by means of these powerful agencies (vague and anticipatory as these changes may now present themselves), that you may be able to shape your legislation to suit the enlarged state of affairs that will inevitably follow."

Many other recommendations are made, such as a codification of the laws, regarding the territorial library and its care; to provide for the safe keeping of the territorial arms and ammunition ; recommending that the territorial officers be required to keep their offices at the capital, instead of their homes, as had been and was the custom. Commending the reelection of Pres. Ulysses S. Grant, the message perceives great benefits to follow to the whole country, and-"to a people so rapidly developing as we are, and engaged in so many enterprises requiring the aid of capital from abroad, such a policy (the financial policy), is not only beneficial but absolutely necessary to our continued prosperity." In conclusion the governor says : "In the performance of the constitutional duties of my office, I have endeavored to promote an honest and economical administration of affairs, and in all cases have endeavored to be more mindful of my duty and the strict letter of the law, than of disarming criticism or seeking an ephemeral popularity."

Yankton, D. T., Dec. 2, 1872.

JOHN A. BURBANK.

On the sixth day a resolution was presented by Councilman Bramble, demo- crat, that W. T. McKay, Moody republican from Charles Mix County, was not entitled to the seat he occupied, and that J. D. Flick, democrat, is entitled to such seat. The resolution was adopted with the aid of the Brookings republican votes, and Mlr. Flick was seated. McKay gave notice of a contest.

In the House, on the eleventh day, Mr. Garland, Brookings republican from Bon Homme County, was summarily unseated, and Norman B. Campbell, demo- crai, seated. This Mr. Campbell was a son of Gen. C. T. Campbell, later of Scotland.

Mr. Pettigrew presented a resolution providing for the appointment of a special committee of one from each county to whom all bills and matters relating to apportionment be referred. The resolution was adopted.

On the eleventh day, the House Committee on Elections reported on the case of E. A. Williams vs. Mr. Langlois, sitting member from the Fifth Representa- tive District, Buffalo County, including the Missouri crossing of the Northern Pacific Railway where Williams resided. The report gave Williams 164 votes ; and Langlois 51 votes. Mr. Williams was seated; he had not been identified with either faction of the republican party, but he was a republican. The con- test was decided on its merits. The same committee reported the case of William P'. Lyman vs. Foster T. Wheeler, Charles Mix County, giving Lyman 158 votes

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and Wheeler, 55. Wheeler was the sitting member. and a republican ; Lyman was a democrat. Lyman was awarded the seat.

Considering the state of party and factional feeling prevalent in legislative bodies, it is possible that action on these contests was influenced more by parti- sanship than justice. The combination of one faction of republicans with the democrats, and the programme evidently arranged for legislation during the ses- sion may have required a two-thirds majority in the Legislature in both houses. in order to override the veto of the governor, which it was probably apprehended would be occasionally interposed.

The great journalist. Horace Greeley, died at Tarrytown, New York, during the last of November, 1872. He had been the candidate of the liberal republican and democratic parties for President at the late election, held a few weeks before he died. It was currently reported that the campaign and its results had wor- ried him grievously and brought on his fatal illness. The Dakota Legislature adopted resolutions of respect and condolence at this session.

In the contested election cases before the House of Roberts vs. Pettigrew, and Wheelock against Wahl, in the Sixth Legislative District, composed of Turner, Lincoln, Minnehaha, Brookings and Deuel counties, two reports were submitted on the eleventh day by the Committee on Elections composed of Jacob Brauch, Yankton County: Silas Rohr, Union County: Martin Trygstad, Brookings County ; John W. Turner, Turner County ; and Bligh E. Wood, Bon Homme County. The three first named were members of the Moody faction ; Turner was the democratic member, and Wood the Brookings member. The following is the majority report :

Mr. Speaker: Your Committee on Elections, to whom was referred the contested elec- tion cases of Roberts against Pettigrew and Wheelock against Wahl, have had the same under consideration and beg leave to report that after taking a large amount of testimony on behalf of the contestants, and listening patiently to the arguments of counsel, they have arrived at the following conclusions :

The number of votes as returned and canvassed for Mr. Pettigrew by the registers of deeds of the different counties composing the Sixth Legislative District, was 591 ; and for Mr. Roberts, 392: for Mr. Wahl. 619; and for Mr. Wheelock, 392. This number of votes must be taken as the starting point, and unless the evidence overcomes the presumption in favor of the returns, they must stand as the relative number cast for each party. The committee has permitted the greatest latitude to the contestants in the presentation of their testimony. and while some of the evidence tends to throw some doubt upon a portion of the vote of Deuel County, still we have the positive testimony, introduced by the contestants themselves. that there were at least eighty voters residing in Deuel County, and there was no positive testimony that any one person, not qualified, voted in Deuel County. By counting only the number of legal votes shown by the testimony of the contestants, including the testimony of the governor, and not counting any other vote, it still elects both of the sitting members. The testimony of the contestants was not of that clear and positive character with reference to the illegality of the Deuel County vote, which would authorize your com- mittee to take action to that extent to say that the returns made by the sworn officers of the law were fraudulent and void, and that those men were guilty of a violation of their sworn duties. What testimony might have been produced your committee is unable to say : ample opportunity, all that was asked, has been afforded the contestants, and they have failed to produce the name of one person who voted upon that occasion, or to specify by name one person, who so voting was disqualified by reason of not residing in the territory. Therefore, the return must be taken as true, the contrary not being shown, your committee, in accord- ance therewith, recommends the adoption of the following resolutions :

Resolved, That R. F. Pettigrew is entitled to his seat.

Resolved, That J. M. Wahl is entitled to his seat.

(Signed )

INCOB BRAUCH, Chairman,

SILAS ROHR,

MARTIN TRYGSTAND.

Mr. Turner from the same committee submitted the following minority report :

Mr. Speaker: A minority of the Committee on Elections to whom was referred to two cases of Wheeloek against Wahl and Roberts against Pettigrew, chiming seats (11 pied in this House by said Pettigrew and Wahl, would respectfully report that they Ius

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carefully examined the voluminous amount of evidence submitted for their consideration, as time would allow them to do. It appears by examining the abstract of votes cast and returned to the secretary's office, including Brookings and Deuel counties with Lincoln, Minnehaha and Turner, that the case would stand as follows: Wahl, 619: Wheelock. 392; Pettigrew, 502: Roberts, 392. And by excluding Brookings and Deuel counties, it would stand thus: Wahl. 341; Wheelock, 378: Roberts, 378; Pettigrew, 302.

That the evidence submitted is such that your committee is impressed with the belief that many illegal votes were cast which were included in the abstract of votes as returned to the secretary and now in the hands of your committee, which together with the testi- mony of the parties litigant introduced, is too voluminous to be embraced in this report. but all of which is herewith submitted for the consideration of the House. Your committee is of opinion that some fifty odd votes might properly have been cast in Deuel County if the organization was such as to entitle it to participate in the election in accordance with law. Your committee would further report that they have been unable to find any provisions of law attaching Deuel County to Brookings except for judicial purposes, and are at a loss to determine where Brookings County found authority for canvassing Deuel County votes and certifying them to the secretary with the Brookings County canvass. Your committee would therefore submit the foregoing with the accompanying resolutions and recommend that the House fill the blanks with the names of the persons entitled to the seats now occu- pied by Pettigrew and Wahl.

J. W. TURNER, B. E. WooD.

Resolved, That is entitled to a seat in the Legislative Assembly as a repre- sentative from the Sixth Representative District.

There was considerable skirmishing over these reports, and it seems that there had been considerable change in the sentiment of some of the members. A motion to adopt the majority report was lost. The House then resolved to make a special order for both reports at the afternoon session. The result of the special order in Committee of the Whole was a return of both reports to the House without recommendation. Five or six members absented themselves and on call of the House were brought in by the sergeant-at-arms. No further action was taken on the committee reports at the time, but a motion was made that Messrs. Roberts and Wheelock be admitted to the seats occupied by Petti- grew and Wahl. The motion prevailed by the following vote :

Affirmative-Ashmore. Becker, Bottolfson, Glynn, Hyde, Hamilton, Kings- bury, Knapp, LaMoure, Miner, O. C. Peterson, Turner, Williams Wood, and Mr. Speaker-fifteen.

Negative-Brauch. Clark. Campbell, Lyman, Norbeck, J. Peterson, Rohr, Thomson, and Trygstad, nine.

Pettigrew and Wahl not voting. Wheelock and Roberts were sworn in, and a motion to reconsider the vote by which they had been admitted and that the motion to reconsider be laid upon the table was adopted, and it seemed that the vexed question was settled ; but the next morning the committee reports were brought up as unfinished business, on a motion to insert the names of Petti- grew and Wahl in the blanks in the minority report, and that report be adopted. It looked as though there was "a cat in the meal-bag." The chair ruled the motion out of order. On appeal, the House overruled the speaker. Members kept withdrawing from the House, a call was ordered, and the sergeant-at- arms was kept busy bringing in the absentees ; and finally the House adjourned without disposing of the case.

The friends of Wheelock and Roberts evidently secured a safe majority for their case during the time following adjournment, for the first business at the following morning session was a motion by one of their supporters that the committee reports in the case be taken up and disposed of. The motion carried by a vote of fifteen to nine, which was followed by a motion by Repre- sentative LaMoure, of Pembina County, that the consideration of the reports be indefinitely postponed, which carried, and the matter was finally settled.

The contest in the Council from the same district. between Jerry Geehon, democrat and contestant, against G. W. Harlan, sitting member, both from

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Lincoln County, came up in that body on the same day, and Mr. Gechon was seated. In order to figure Mr. Gechon ahead in the district, the vote of Brook- ings County had to be taken into the count, for Gechon had carried that county and needed the votes. Brookings County was a new county, organized only a few months prior to election. It then embraced both the counties of Moody and Lake ; and Flandreau was one of the voting precinets in Brookings County, and Medary was the other. Flandreau cast 5 votes for Harlan, and 47 for Gechon; and Medary cast o for Harlan, and 14 for Geehon. But the register of deeds, a young man named Packard, who had been appointed, had taken the liberty of throwing out the Flandreau vote because of "gross informalities and inac- curacies," and it was alleged that it had another mark of gross invalidity in that it was sufficient if allowed to overturn the register of deeds' majority. The Council however, had no such scruples, counted the vote, and admitted Geehon and excluded Harlan. There were 75 votes cast in Brookings County including the "Flandrean" vote, and 209 in Deuel County which had no organization. Evi- dently Denel County had been slow to recognize its voting strength, for it required only 50 voters under the law to entitle a county to an organization.

On the seventeenth day of the session, a party named J. H. Stone, of Fargo. through Councilman Bramble, presented notice that he would contest the seat of Enos Stutsman, of Pembina. This was a surprise, as no inkling of a contest from that quarter had been given out. It does not appear that any action, except to fix a time to hear the report of a committee was taken by the Council, and before this report was made Mr. Stone sent a communication to the Council that "business complications in the East demanded his immediate attention, on account of which he was compelled to withdraw from the contest." Mr. Stone disappeared and was not afterward heard from. Mr. Stone claimed to be a democrat elected on the Moody republican ticket, and his success meant an en- dorsement of the vote cast at Fargo which was rejected by the territorial board of canvassers, and would have elected Moody to Congress over Armstrong had it been counted. When Mr. Bramble and other democrats discovered this they hastened to notify Mr. Stone that his case was hopeless. Then followed the "business complications" mentioned above which urgently demanded that gentle- man's immediate attention elsewhere.

The Legislature adjourned on Friday, January 10, 1873, after a session of forty days, characterized a portion of the time by proceedings bordering on the scandalous, growing ont of the large number of illegal votes cast at precincts along the line of the North Pacific Railway, and also on the Winona and St. Peter's in Denel County. The objective point was to get recognition of this alleged fraudulent vote by the admission of legislators who would have been elected if it was allowed, and with this for groundwork, institute a contest before Congress, against Armstrong, for the seat of delegate. The surprising feature of the plan was that the democrats aided in the scheme for several weeks with- out discovering its ultimate purport.

Although this situation did not materially change before the final adjourn- ment and for possibly a year after, the year 1872 was the last of the open conflicts at the polls between the factions of the republican party.

Prominent among the laws enacted at this session were the following: To prevent accidents at railroad crossings ; to punish adultery ; relative to paupers ; for taking a census of Dakota for the year 1874 (the prime object of this law was to furnish a census of the newly settled counties in the north particularly, that would greatly aid the next Legislature in making an apportionment, and in various matters ) : creating new counties and defining their boundaries (it was at this session that the entire territory was carved into counties for the first time and named after the names of the members of the Legislature largely) : to appoint deputy county surveyors; to provide for a synoptical index to all laws in force in Dakota; to encourage the growth of timber ; to organize a system of town- ship government ; to provide for the revision of the general laws of Dakota ; 10

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prohibit the sale of intoxicating liquors on election days ; defining boundaries and naming counties west of the Missouri River ; defining the boundaries of Pen- bina County and naming new counties : to provide against the evils resulting from the sale of intoxicating liquors in the territory ; to divide the Sixth Council and Representative Distriet and create two new council and representative districts ; to pay the officers and members of the called session of the Legislature of 1870- 71, amount, $735.00; repealing the civil code of 1862, and amending the act to simplify and abridge the practice, pleadings and proceedings of the courts of this territory passed at the seventh session.

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History of Dakota Territory, volume I, Part 117

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