History of Dakota Territory, volume III, Part 131

Author: Kingsbury, George Washington, 1837-; Smith, George Martin, 1847-1920
Publication date: 1915
Publisher: Chicago, Ill. : S.J. Clarke Publishing Company
Number of Pages: 1146

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In August, 1904, the State Bar Association held a two days' session at Dead- wood. At this time E. C. Ericson, of Elk Point, was president of the association. Strong and able papers were read by C. L. Wood, of Rapid City; Thomas Ster- ling, dean of the law department of the State University ; and T. H. Null. Judge Granville G. Bennett, of Deadwood, delivered an interesting address on old times in South Dakota. He told many interesting stories to illustrate the crude prac- tices in early courts. Judge A. J. Plowman, of Deadwood, called attention to the excessive charges of the reporter system of the state courts. At this time the bar association had about two hundred members. This was one of the most inter- esting sessions thus far held. The papers read covered points of extreme interest to the members of the bar and pointed out weaknesses in procedure and indicated reforms and improvements that should be made.

Late in August, 1904, in the midst of his campaign for re-election as judge of the Third Judicial Circuit, Judge Julian Bennett died suddenly at Watertown.

In November, 1904, the Minnehaha County Bar Association held their meet- ing at the Cataract Hotel. The speeches were made in the grill room; there were present about fifty lawyers and officers of the court.

In 1904 South Dakota secured a total judgment of $40,000 in the United States Supreme Court against North Carolina in the famous bond case which had been pending ever since territorial days. The court decided that they were not carpet bag bonds and therefore should be paid. North Carolina took position that a private citizen could not sue a state. They were general bonds and were worth $1,700 for each $1,000 invested by February, 1905.

In November, 1904, Judge John E. Carland held a session of Federal Court at Aberdeen. Several cases of larceny, cattle rustling, horse stealing, embezzle- ment, selling liquor to the Indians, etc., were tried. Many of the best lawyers of the state appeared in the various cases.

Under the law of January 30, 1897, the United States Government held that the Indians who had been admitted to citizenship had the right to purchase

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SOUTH DAKOTA: ITS HISTORY AND ITS PEOPLE

liquor exactly the same as the whites. This case was decided in the United States Supreme Court in April, 1905.

This year S. E. Wilson, former state senator from Fall River County and a lawyer of prominence, supported earnestly the bill which provided for a verdict in civil cases by three-fourths of a jury. He wrote a strong letter supporting the measure, which had considerable influence upon the Legislature and helped to induce them to pass the measure.

Early in 1905 Dick Haney, one of the three Supreme Court judges was ap- pointed to the position of United States district attorney for South Dakota. To fill the vacancy thus caused on the Supreme Bench, Governor Elrod appointed E. G. Smith, presiding judge of the First Judicial Circuit; John Holman, of Yankton, was appointed to succeed Judge Smith as judge of the First Circuit.

"It is generally understood that the big fellows who met with Senator Kitt- redge in Sioux Falls not many moons ago, decided that Judge Haney, of Pierre, should be United States attorney and Judge Smith, of Yankton, should be ap- pointed supreme judge. They also slated John Holman, of Yankton, for Judge Smith's position. But we understand the lawyers of the First Circuit would not stand for Holman, but are all agreeable to Hon. John L. Jolley, of Vermillion. This is not our fight, but we would be pleased to see John L. Jolley receive the appointment of judge, as he is one of the very earliest settlers of South Dakota. He is square and honest and doesn't wear a machine collar, for if he did he would be in Congress today. Mr. Jolley would make an excellent judge."-Elk Point Leader, April 13, 1905.

In August, 1905, the state banking law was held valid by the Supreme Court. Two cases of great importance were pending in the State Supreme Court and were conducted by Gen. John L. Pyle. They were the Milwaukee rate case and the Great Northern merger case. In December J. D. Elliott, of Tyndall, became United States district attorney.

On January 4 and 5, 1906, the State Bar Association met at Sioux Falls with an attendance of about seventy-five members from all parts of the state. The annual address-one of unusual merit-was delivered by President Horner. He called attention to the fact that the judges in South Dakota were compelled to pay their own expenses out of their salaries, and that for this reason good lawyers in every considerable city had refused to become candidates for judges. He insisted that the law should be amended so that the judges' salaries should be . increased. At this time South Dakota had only three supreme judges. North Dakota with less population had five supreme judges, and had only one-half the business of the South Dakota courts. North Dakota paid its supreme judges a salary of $5,000 and allowed each $1,200 for additional expenses, and paid the circuit judges a salary of $3,500. South Dakota paid its supreme judges salaries of $3,000 per year, and the circuit judges salaries of $2,500; and allowed them nothing for expenses. Thus South Dakota paid its judges about one-third of what North Dakota paid its judges ; and in addition South Dakota had about twice as much work. President Horner brought out in strong terms and sarcastic language these important facts. At this meeting Judge Emlin McClain, of Iowa, delivered a masterful speech on the subject, "Written and Unwritten Constitutions in the United States." The meeting ended with a splendid banquet at the Cataract Hotel.

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By 1906 the courts after years of endeavor were slowly stamping out cattle rustling in South Dakota. At every former session the judges of all districts had occasion to handle such cases; now they were rapidly on the decline.

At the legislative session of 1907 a bill was introduced to increase the number of Supreme Court districts from three to five. District I was planned to include the counties of Butte, Meade, Pennington, Lawrence, Custer, Fall River, Wash- ington, Washabaugh, Shannon and Lugenbeel; District 2-Clay, Union, Lin- coln, Turner, Yankton, Bon Homme, Hutchinson, Douglas, Charles Mix, Greg- ory, Tripp and Meyer; District 3-Minnehaha, Moody, Lake, McCook, Miner, Hanson, Davison, Sanborn, Aurora, Jerauld, Buffalo, Brule and Lyman ; District 4 -Brookings, Deuel, Codington, Hamlin, Kingsbury, Clark, Beadle, Spink, Hand, Hyde, Hughes, Faulk, Potter, Sully Armstrong and Stanley; District 5-Grant, Roberts, Day, Marshall, Brown, Edmunds, McPherson, Walworth, Campbell, and all of the Sioux Reservation north of Armstrong and west of the Butte County line.

At the State Bar Association annual meeting held at Pierre January, 1907, Hon. Charles Elliott, of Minneapolis, one of the justices of the Minnesota Su- preme Court, delivered the principal address. At this meeting there was a large attendance. C. H. Dillon was elected the new president. By a vote of seventeen to fourteen they decided against a law requiring a residence of one year in the state to secure a divorce.

In August, 1908, the special Committee on Legal Reforms of the American Bar Association said that the treatment of appeals and writs on strained and purely technical grounds and the too rigid application of strict legal rules by every party, "have made the trial of a case a game in which the one wins who plays most skillfully, the merits of the controversy having no part;" and that the courts themselves, by entertaining writs of error sued out merely for delay, postponed the punishment of criminals "in violation of every principle of jus- tice." The committee recommended a change in this procedure, and declared that money "turned the trick" even in the courts.

In November, 1908, the Supreme Court of South Dakota, through no fault of its own, was far behind with its work. On the docket pending were 225 cases, some of which were four years old. The three supreme judges at this time had much more than they could do and were manifestly and unfairly over- worked. At the legislative session of January, 1909, a bill to select two additional supreme judges was introduced. The western part of the state was to be given two judges, owing to the great growth in that portion. It was decided that these two should be chosen from the Hills country. The great delay in the administra- tion of justice occasioned by the small size of the Supreme Court was rightfully looked upon as unfair and unjust to both the court and the people and as wholly inadequate in the settlement of cases. It was further believed that the few judges while doing their best were unjustly charged by many with the responsi- bility of this delay. It was pointed out by the newspapers and by the Legislature at this time that the courts were independent of the bar, were the vehicle of the people for the administration of justice, which important duty too often fell in the hands of unscrupulous lawyers and were thus made subject to the caprices and interests of private individuals and combines.

At the meeting of the State Bar Association at Pierre in January, 1909, there was adopted a complete code of professional ethics.

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SOUTH DAKOTA: ITS HISTORY AND ITS PEOPLE

In 1909 Watertown had in operation a Municipal Court which that city pro- nounced a great success. Sioux Falls took steps at this time through the Legis- lature to secure a similar local court.

At the legislative session of January, 1909, the plan of increasing the members of the Supreme Court was again considered by the Legislature. Five judicial districts were provided in this plan. For a long time the Circuit Courts had been overcrowded with business and it was believed no more than fair to enlarge also the number of circuits.

At this time the annual meeting of the State Bar Association was held at Pierre. There was an elaborate program and many prominent lawyers from all parts of the state were present, in addition to those who were members of the Legislature. Dean Pattee, of the Law School of the University of Minnesota, delivered the annual address. The association was also addressed at length by Judge C. S. Whiting, of this state, who was at this time president of the associa- tion. He had recently been appointed to the Supreme Bench.

In 1909 the United States Court of Appeals at St. Louis confirmed the ver- dict of a jury in the United States District Court at Deadwood, which in 1908 convicted Freeman Knowles, former congressman, and at this time editor of a socialist newspaper in Deadwood, of sending obscene matter through the mail. Knowles was sentenced by the United States District Court to pay a fine of $500 and took an appeal after serving a brief time in the Pennington County jail. This case attracted wide attention, owing to the prominence of Mr. Knowles.

The law of 1909 required the Supreme Court to promulgate a uniform set of rules of action in civil cases. Accordingly, the court in October of the same year, after due consideration, issued a small work containing twenty-six new rules.

In March, 1910, the State Bar Association met at Sioux Falls. Among the papers read were the following: "State Taxation," by John B. Hanton ; "Some Reforms in Criminal Procedure," by C. G. Sherwood. The annual address was delivered by Judge H. B. Deemer, of the Iowa Supreme Court.

In January, 1911, Judge John E. Carland was appointed and confirmed assist- ant justice of the Court of Commerce. He was succeeded on the United States district bench by Judge James D. Elliott. The latter was warmly endorsed by Senator Gamble and Governor Crawford.

When a bill for the admission of Arizona to the Union was pending in Con- gress in August, 1911, Senator Crawford attacked the provision in the Constitu- tion which permitted the recall of judges. He said, "I believe in the people, but they need self-restraint built up about them to protect them from the passions of the moment. Do we want our judges and executive officers submit- ted to the chance of being recalled by a temporarily maddened mob?" He said that the real remedy was midway between the two propositions: (1) The recall to correct everything ; (2) the recall by mob rule. Newspapers of the state said, "The county needs something of this kind to bring the courts of the land out of the haze of traditions and precedents and into sympathy with the progressive spirit of the age." About the same time the United States Senate passed the recall measure provided for in the Arizona constitution. In Oregon the recall for other officials than judges had been in use for several years. C. H. Dillon, candidate for Congress, said at this time, "The judiciary should not be above

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SOUTH DAKOTA: ITS HISTORY AND ITS PEOPLE

honest criticism. The court's delays and technicalities should be checked. The encroachment of the judiciary upon the legislative department of the Government should be prohibited."

Judge Bartlett Tripp of Yankton died in November, 1911, of heart failure as the result of a stroke of paralysis which he had suffered a few days before. He came to Yankton in 1869 and was a leader of the democracy of this state for many years, and was often honored by the republicans, his political antagonists, from 1893 to 1897, although a democrat. He held many other positions of trust and honor with both distinction and credit. He was one of the leaders in South Dakota of every movement which meant permanent growth and development. He was born in 1842 in Maine, was a student at Waterville College, later Colby University from 1857-60; in 1867 took the law degree at Albany Law School ; was given the degree of LL. D. by the University of South Dakota in 1893; the same by Colby University in 1898, and the same by Yankton College in 1906. He practiced law at Augusta, Me., front 1867-69 and afterwards at Yankton. He was president of the Yankton School Board from 1875-85; was one of the incorporators of Yankton College in 1881 ; was a member of the first board of trustees of the University of South Dakota; a member of the commission for codifying the laws of Dakota Territory in 1877 and the laws of the state in 1902; was democratic nominee for delegate to Congress in 1878; president of the first constitutional convention in 1883; chief justice of the Supreme Court of Dakota Territory 1885-89; United States Minister to Austria 1893-97; delegate to the Democratic National Convention in 1872 and in 1882; member of the Samoan Commission in 1899; and a lecturer on constitutional law at the University of South Dakota from 1902 until a short time before his death.

Perhaps there was no member of the Supreme Court who was more attentive to business or more faithful in attendance than was aged Judge Corson in 1911. Every day when the court was in session he could be found on the bench with his colleagues and when the court was not in session he was at work in the office on the decisions which he handed down after doing his share of labor. The Supreme Court reports were printed in his office. In Volume 24, the last one issued at this date, eighty-four decisions were handed down by the Supreme Court. Of that number, Judge Corson wrote the opinion of the court in twenty cases. In Volume 25, out of ninety-four decisions handed down, he wrote nineteen of them. He was very industrious, painstaking, able and just. The state was lucky to have a man of his probity and honor connected with its greatest court for so inany of its early years.

The State Bar Association met at Aberdeen in Jaunary, 1912. James Brown of Chamberlain was chosen the new president. A special committee to assist in revising the school laws was appointed. Whether to abolish the County Court was considered at this time, also numerous changes in the laws relating to taxa- tion. The association asked for the following reforms: (1) Simplification of the record of appeals to the Supreme Court ; (2) court judges to be barred from active practice; (3) the Committee on Reforms to consist of five members instead of seven.

In his speeches in Congress Senator Crawford fastened upon that body much of the responsibility for the acknowledged inefficiency of the Federal Courts. He further declared that the Legislature of South Dakota shifted the burden of

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corporate control to the courts which thereafter received the odium which came from failure to control síich organizations.'

In January, 1913, while the State Bar Association was in session at Pierre, a banquet was given in honor of Judges Corson and Haney at the St. Charles Hotel. About two hundred attorneys and business men of the state participated in the ceremonies on this occasion. The press spoke of it as one of the finest bar association functions ever given in the state. A majority of the circuit judges in the state were present, all the members of the Supreme Court, and the two ex-judges in whose honor it was held. The speeches delivered on this occasion were of unusual strength, power and eloquence. Judges Corson and Haney re- sponded to the great honor done them with much feeling and eloquence. Music was furnished by Fischer's Orchestra, and the table service at the banquet was one of the best ever given in Pierre. At this session of the association, consid- erable time was spent in discussing legislative reforms. Many suggestions con- cerning court procedure secured the attention of the bar membership.

In January, 1913, Mrs. Lydia M. Johnson became a member of the State Bar Association and was thus the first woman member. The association at this meeting adopted five of the rules proposed by the executive board, and elected J. H. McCoy president of the association. In January, 1913, Judges Haney and Corson, members of the supreme bench, retired and were succeeded by Judges Polley and Gates.

Dighton Corson was born in Maine in 1827, was educated at Waterville and admitted to the bar upon arriving at manhood. He came west and settled in Wisconsin, and in 1857 was elected to the Legislature from Milwaukee, and served on the judiciary committee. In 1858 he served as district attorney of Milwaukee County, being elected by the votes of all parties. In 1861 he went to the Pacific Coast, finally settling in Virginia City, Nev. Here he was appointed district attorney for the First District when that territory was organized. He held the position for five years, but in 1877 came to the Black Hills and con- tinued the practice of law. He was a member of the constitutional conventions of 1885 and 1889, and upon the admission of South Dakota in 1889 became one of the Supreme judges, and was later chosen chief justice. He passed away at his home in Pierre in 1915. He was a gentleman of the old school, reserved but cordial, dignified but friendly, a man honored and respected above the average citizen for his recognized intelligence and sterling qualities. He retained his unusual faculties of mind to the last.

The state was divided into the twelve circuits, the judges of which held office for four years and received an annual salary of $2,500 payable quarterly. The First Judicial Circuit consisted of the counties of Bon Homme, Charles Mix, Douglas, Hutchinson, Turner and Yankton; two terms were held in each county annually ; Second Judicial Circuit-Lincoln, Minnehaha, McCook, Moody, Lake and Union, two terms held annually; Third Judicial Circuit-Brookings, Clark, Codington, Deuel and Hamlin, two terms were held annually in each county; Fourth Judicial Circuit-Aurora, Davison, Buffalo, Jerauld, Sanborn, Hanson and Brule, two terms were held in each county annually; Fifth Judicial Circuit- Brown, Day, Grant, Marshall and Roberts, a term was held annually in each county ; Sixth Judicial Circuit-Hughes, Hand, Hyde, Sully and Stanley, terms were held in each county annually; Seventh Judicial Circuit-Custer, Fall River,

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SOUTH DAKOTA: ITS HISTORY AND ITS PEOPLE

Pennington, Lugenbeel, Shannon, Washington Washabaugh, terms in each county annually ; Eighth Judicial Circuit-Lawrence, Meade and Butte, terms in each county annually ; Ninth Judicial Circuit-Beadle, Kingsbury, Spink and Miner, terms annually in each county ; Tenth Judicial Circuit-Potter, Faulk, Edmunds, McPherson, Campbell and Walworth, each had an annual term; Eleventh Judicial Circuit-Lyman, Gregory, Tripp, Bennett, Mellette, Todd and Washabaugh, each had an annual term; Twelfth Circuit-Harding, Perkins, Corson, Dewey and Ziebach, each had an annual session.

Judge H. G. Fuller was born in New York in 1851, but moved to Jackson County, Iowa, and lived on a farm near Maquoketa. He received a common school education and commenced reading law at home. In 1871 he attended his academy at Eldora for one year; then taught school and finally served as principal of one or more union schools for several years. He read law with Henry L. Huff and was admitted to the bar in 1881. Immediately thereafter he served two terms as county superintendent of Hardin County. He came to what is now South Dakota in 1886. In 1889 he was elected judge of the Sixth Judicial Circuit, and was re-elected in 1893. He resigned in July, 1894, to take a position on the Supreme bench to supply the place recently occupied by John D. Bennett. He passed away in 1908.

Judge Richard Haney was born in 1852 at Lansing, Iowa, and was educated in the common schools there. He attended the Iowa Wesleyan University at Mount Pleasant for three years; then entered the law department of the State University, and was graduated therefrom in 1874. He began the practice of his profession at Lansing in 1885. He later came to Plankinton and there prac- ticed law until South Dakota was admitted to the Union. In 1888 he served as district attorney of Aurora County, and became county judge in 1889. In 1896 he was appointed Supreme judge in place of A. G. Kellam, who had just resigned. He was a democrat previous to 1884, but after that was a republican.

In 1913 Senator Crawford worked through Congress a bill preventing United States courts from interfering or conflicting with state courts over questions of railroad rates, etc.

The annual meeting of the State Bar Association was held at Sioux Falls in January, 1914, with Judge James H. McCoy, president, in the chair. C. J. Morris, president of the Minnehaha County Business Men's Association, delivered the welcoming address and President McCoy responded on behalf of the asso- ciation. The report of the committee on legal reformis occasioned a sharp and prolonged discussion. Judge Dick Haney was elected the new president. James G. Stanley read an interesting paper and pointed out numerous court reforms that should be made. Several other interesting addresses were made and were published in the local newspapers.

At the election of November, 1914, the following was the result of the judicial contest : First Judicial Circuit-Robert P. Tripp, 9,140; Zenas R. Gur- ley, 5,159. Second Circuit-Joseph W. Jones, 9,651, no opposition. Third Cir- cuit-Carl G. Sherwood, 5,922, no opposition. Fourth Circuit-Frank B. Smith, 5,747, no opposition. Fifth Circuit-Thomas L. Bouck, 6,556; H. H. Potter, 3.446; S. A. Cochrane, 267 votes. Sixth Circuit-John F. Hughes, 3,550, no opposition. Seventh Circuit-Clarence L. Lewis, 2,061 ; Levi McGee, 2,351. Eighth Circuit-James McNenny, 3,745 ; Claude C. Gray, 1,842. Ninth Circuit-

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Alva E. Taylor, 5,500, no opposition. Tenth Circuit-Joseph H. Bottum, 4,316, no opposition. Eleventh Circuit-William Williamson, 4,287, no opposition. Twelfth Circuit --- Raymond L. Dillman, 2,681, no opposition. At this election the proposition for a constitutional convention was defeated by the following vote: For convention, 34,832; against convention, 51,585.

A pardon board consisting of the presiding judge of the Supreme Court, the secretary of state and the attorney general, formally organized in 1915 with the judge as chairman and the secretary of state as. clerk. At this time the board decided to have specific dates of meeting instead of leaving the date to irregular calls as in the past. The dates selected were the first Tuesdays of January, March, May, July, September and November, with special called meet- ings in case of emergency. Definite notices to state's attorneys and Circuit judges before whom a case might be called were an additional requirement demanded by the board in all applications for pardons in the future. With this demand there passed the right of any person to appear and protest by paper filed with the clerk of the pardon board, and specific dates were set for hearings in the published notices for applications.

In 1915 ex-President Taft, in addressing the New York State Constitutional Convention, advised that a censorship should be placed on the public press so that there could no longer be a trial by newspapers before cases came to trial before courts. The ex-President declared that under existing laws men were convicted by the public press in advance of their trial by the courts. The news- papers throughout the country took up the charge and pointed out that less than one man out of twenty accused of any crime graver than a misdemeanor was ever convicted by the courts. They thus insisted that newspapers had the best of the argument, because the guilt of such persons in almost every instance was shown up through the columns of the daily press. More than one editor declared that newspapers were greater instruments of justice than were the courts, and that it would be almost impossible to cite a case where a prominent criminal had been apprehended, tried and convicted, in which the newspapers had not played a more important part than the courts in collecting evidence, running down culprits and securing their conviction. It was stated that every public prosecutor who really prosecutes knew this to be true. It was declared that many men who were guilty escaped their just punishment, owing to the fact that all the processes of the courts and all the technicalities and presump- tions of the law were in favor of the accused; therefore, the only punishment such men received was the publication of the truth in the newspapers. It was- also maintained that the press was the only protection society had against scoun- drels and criminals of all kinds and degrees. A Chicago newspaper said: "Men who prey upon society fear newspaper publicity more than they do the jury box, or the judge's bench. To muzzle the press would be their delight and immunity. Innocent men who are convicted by the press in advance of their trial have other recourse. That so few such innocent men ever even attempt to avail themselves of this recourse shows with what injustice and impartiality newspapers try men. There are few appeals from the verdict of the public press. There are always appeals from the verdicts of the courts."

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History of Dakota Territory, volume III, Part 131

Author: Kingsbury, George Washington, 1837-; Smith, George Martin, 1847-1920 Publication date: 1915 Publisher: Chicago, Ill. : S.J. Clarke Publishing Company Number of Pages: 1146

Author: Kingsbury, George Washington, 1837-; Smith, George Martin, 1847-1920
Publication date: 1915
Publisher: Chicago, Ill. : S.J. Clarke Publishing Company
Number of Pages: 1146