USA > Texas > The bench and bar of Texas > Part 36
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455
A. J. PEELER.
When the convention to form a State Constitution under President Johnson's scheme of reconstruction was called, Mr. Peeler was made Secretary of that body, and to him the convention confided the duty of arranging and publish- ing the Constitution. Upon the adjournment of the con- vention he was appointed by Provisional Governor Marvin with the Hon. Chas. H. Dupont, ex-chief justice of the Supreme Court, and the Hon. M. D. Papy, ex-attorney- general, to report a revision of all the laws of the State to the first Legislature to be held under the new Constitution - the object of the revision being to adapt the laws to the changed condition of things, brought about by the abolition of slavery, etc. Mr. Peeler was elected a member of this Legislature, and the fact that he had been a member of this commission and that the greater part of the labor of the Legislature was devoted to the consideration of the matters covered by its report, and with which he was nec- essarily more familiar than any other member of the body, gave to him a special prominence in its deliberations. Though always afterwards taking an active interest in the political affairs of the State, from 1866 up to the time of his removal to Texas, he declined to be a candidate for any other political place, devoting himself exclusively to his practice, which constantly increased, both in number and importance of the cases. He was a delegate to the first National Demo- cratic Convention after the war, held in Tammany Hall, in New York, in 1868, and regularly attended as a delegate all the State Conventions, besides discharging the full measure of his duty upon the stump whenever called upon, being always, and at all times and under all circumstances, a staunch Democrat. For several years before Mr. Peeler removed to Texas he represented, in connection with his partner, the Hon. M. D. Papy, the Jacksonville, Pensacola and Mobile Railroad Company in its most important litiga- tions. He also represented the Trustees of the Internal Improvement Fund of the State in an equity case in the United States Circuit Court, involving very large interests and presenting questions of unusual difficulty and import- ance. Some idea of the questions involved in this case
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may be gathered from Vose v. Reed et al., Trustees, de- cided by Mr. Justice Bradley, and reported in 1 Woods, 647, where Mr. Peeler's name appears as first among counsel for defendants. He also, in connection with the Hon. George P. Rainy, then his partner and afterwards attorney-general and now associate justice of the Supreme Court represented Governor Reed in his celebrated quo warranto proceedings before the Supreme Court of the State. The contest in this case was between Reed, the Gov- ernor, who had been impeached by the Senate, and Glea- son, the Lieutenant-Governor, who insisted that he was entitled to the reins of government pending the impeach- ment. Though the fight was a fight between the two wings of the Republican party, which at that time had control of the State, it was one to which no citizen of the State could be indifferent, threatening, as it did, bloodshed and anarchy, destructive alike to the interests of all. Though exceed- ing, perhaps, in feeling and excitement the celebrated contest between Bashford and Barstow (4 Wis. 567) for the governorship of Wisconsin, it resembled that case in many of its features. The argument of Mr. Peeler before the Supreme Court was given wide publicity in the papers, and to his effort and that of his able associate is due in a great measure the judgment rendered in their favor, which resulted in the peace and order of society which soon followed. An elaborate report of this case will be found in 12 Florida Reports, p. 190. Gleason after his defeat made an ineffectual attempt to carry the matter to the Supreme Court of the United States (Gleason v. Florida, 9 Wall. 779).
Notwithstanding Mr. Peeler's prominence at the bar of Florida and his large and valuable practice, like many others he grew tired of the constant turmoil and passion so constantly incited and maintained by the dominant party between the two races and determined to seek a new home. Austin being the capital of Texas, with Supreme and Fed- eral courts - courts with the practice of which Mr. Peeler was familiar, he determined to make it his future home, and where since the early part of 1873he has resided. Mr.
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Peeler, soon after settling in Austin, received retainers In several important cases, especially in the Supreme and Federal courts, and began at once to build up a practice. Messrs. W. J. Montgomery and A. S. Fisher were asso- ciated with him in the practice about two years, when, owing to the increase of business in the Supreme Court and the inability of the attorney-generai to give it personal atten- tion, the Legislature from the necessities of the case, created the office of assistant attorney-general, and it was tendered to Mr. Peeler by Governor Coke. Mr. Peeler accepted and was the first to hold the position. His term having expired, he was a second time appointed by Governor Coke, and was in each instance unanimously confirmed by the Senate. At this time the Hon. George Clark was attorney-general, and it may be said without disparaging any of the dis- tinguished gentlemen who have since held these places, that the office of attorney-general as conducted by the Hon. George Clark and Mr. Peeler gave entire satisfaction to the courts, the bar and the people. So conspicuous were Mr. Peeler's services at the Tyler term of the Supreme Court in 1875, that upon the conclusion of its labors at that place the following complimentary note was handed to him: -
" SUPREME COURT ROOM " TYLER, December 15, 1875.
" Col. A. J. Peeler, Assistant Attorney-General -
" SIR: In closing the labors of a three months' session of the Supreme Court, upon which you have attended as the representative of the government, we deem it proper to express to you our entire satisfaction at the manner in which you have discharged the very arduous duties devolved upon you and our conviction that the interest of the public and the citizen has alike been protected by your labors.
"O. M. ROBERTS,
" R. A. REEVES,
" GEORGE F. MOORE,
" ROBERT S. GOULD,
" JOHN IRELAND."
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1
An examination of the 43, 44 and 45 Texas Reports will show the extent of Mr. Peeler's labors in behalf of the State before the Supreme Court. But perhaps the most important duty discharged by him while holding the office of assistant attorney-general was in making a thorough and exhaustive examination of the management of the State penitentiary at Huntsville and in preparing and submitting an elaborate report of his investigation. Under the law creating the office of assistant attorney-general, power was given to the Governor to assign to this officer such duties as he thought proper. In the early part of 1875 the public mind of the State was greatly excited over newspaper reports of alleged mismanagement and cruel treatment of convicts by the lessees of the penitentiary. Governor Coke appointed a commission consisting of Messrs. Peeler, D. H. Triplett and Tillman Smith to thoroughly investigate the matter. The investigation was continued for some two months - the commissioners visiting the penitentiary, the various camps where convicts were stationed, and examining many witnesses. Upon the conclusion of their labors Mr. Peeler, from the large mass of material before him, prepared a report which was printed by the State and was used by the departments of the government, the Constitutional Conven- tion of 1876, and succeeding Legislatures as a book of ref- erence. Instead of submitting a mere sensational report, Mr. Peeler went thoroughly into the whole subject - giv- ing a full history of the penitentiary from its organization, compiling all the laws in relation to it, setting out the leases, giving copies of all documents and explaining the relation of the lessees to the State and their rights and lia- bilities under their contract and the management of the penitentiary while under their control. This report also contains a great deal of valuable matter collected from outside sources showing the policy pursued in other States in the discipline and treatment of convicts. No official report in this State, up to that time, had been more com- plete and exhaustive and none could have been read with greater interest.
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Apprehending that the State might be compelled at any
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time to resume control of the penitentiary, Mr. Peeler, at the request of Governor Coke, drafted the law authorizing its resumption by the State, which will be found in the General Laws of the Fifteenth Legislature, page 193, and which was passed as prepared by him without any material change. This law afterwards made an important figure in the litigation between the State and the lessees. Mr. Peeler also, at the request of Governor Coke, drew the forgery law of July 28, 1876 (see General Laws, p. 59). The extent to which land forgeries were being committed at that time and the boldness of the perpetrators of these frauds, both within and without the State, was an overshadowing evil-one, in the suppression of which prompt and severe measures were required. Mr. Peeler was engaged several weeks in the preparation of this law, carefully examining the forgery statutes of the United States and of other States and Territories in the Union. No law could be drawn with more exact regard to every conceivable detail in this class of crime. And through this law forgeries of land titles in Texas were so completely crushed that it is a rare thing now to find a forgery case upon the criminal docket. The able commissioners who prepared the present revision of the laws of Texas thinking this subject perhaps sufficiently covered by the more gen- eral provisions of the criminal code, omitted the law pre- pared by Mr. Peeler, but the Legislature being unwilling to take the chances of dispensing with a law which had accom- plished such useful results, restored it in totidem verbis, and it so stands on the statute book. It has often been discussed by the Court of Appeals, and though furiously assailed, upon constitutional and many other grounds, it has been sustained ; and it may be said that no single act of legislation affecting the criminal jurisprudence of the State has occupied a more prominent place than this law.
With the view of devoting himsalf exclusively to his pro- fession, Mr. Peeler resigned the office of assistant attorney- general in October, 1876. Governor Coke, in accepting his resignation, which he stated he did with extreme regret, said : " The rare ability and great labor and learn-
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ing which has distinguished your administration in the at- torney-general's office, and your honest fidelity to all the interests of the State under your official care, entitle you eminently to the plaudit ' well done,' so grateful to the conscientious public servant. I take great pleasure in tes- tifying to the thoroughness, watchfulness and skill which has characterized the discharge of your duties, and you" great efficiency as a public officer."
Attorney-General Boone, in a communication to Mr. Peeler touching his resignation, uses this language : " I would be doing injustice to you and a grosser injustice to my own sense of honor were I not frankly and cheerfully to acknowledge that your counsel and assistance have been to me invaluable. I have always found you ready, willing and able, conscientious and zealous in the discharge of your official duties and as jealous of the reputation of the Attor- ney-General's Department as of your own. I regret your resignation and feel that the State has lost a faithful, able, and efficient officer, and I, an assistant to whom I am in- debted in a very large measure for whatever of success with which the duties of this department have been discharged since I became its chief officer. I add with the greatest pleasure that you have always been kind and courteous; and our association, official and personal, has been to me most pleasant and agreeable." And among other complimentary notices from the press, the Galveston News said : " Those who have been conversant with the laborious and difficult duties of the office of the assistant attorney-general under the administration of Governor Coke, and the efficiency with which they have been discharged by Col. A. J. Peeler, will note with regret his resignation. An able and studious lawyer, a cultivated scholar, a conscientious and valuable public servant, as Col. Peeler proved himself to be, will not be permitted to withdraw himself from the public service without a proper recognition of his eminent usefulness. A professional man of such merit is not often appreciated by his political superiors, but the public will recognize him according to his worth."
Governor Hubbard, who succeeded Governor Coke, upon
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the election of the latter to the United States Senate, deter- mined, under the authority given by the act above mentioned, to resume control of the penitentiary. To resist this move- ment on the part of the State, Messrs. Ward, Dewey and Patton, the lessees, employed able counsel, Messrs. Han- cock & West, representing Ward and Dewey and ex-Gov. E. J. Davis representing Patton. The difficulties, to say . nothing of the magnitude of the interest involved, which con- fronted Gov. Hubbard in attempting this resumption were very considerable. Mr. Peeler having necessarily given much attention to the subject, while assistant attorney-general, was at once engaged to represent the State in the matter. It was under his advice and upon papers prepared by him that the Governor proceeded at every step in this important matter. To avoid, as far as practicable, the question of the right on the part of the State to seize the penitentiary and convicts against the wishes of the lessees, Mr. Peeler pre- pared the correspondence between the Governor and the lessees, in which the right of the State at a certain time to peaceably take control was conceded. The Hon. C. S. West, now of the Supreme bench, representing the lessees and Mr. Peeler representing the State, visited the peniten- tiary at the time of the resumption in April, 1877, for the purpose of advising as to the manner in which it was to be effected, and the property turned over, etc. Many questions of importance and difficulty had to be set- tled, notably the manner of taking the inventory and appraisement of the property -the State desiring on the one hand to incur no liability and pay no higher price for the property than under the law and contract of lease it was bound to pay, and the lessees who had erected buildings, added machinery and accumulated a large amount of prop- orty, desiring to have the same taken back by the State upon the most favorable terms to them. Patton, one of the lessees, protested against the right of the State to resume con- trol. The inventory and account being completed, showed as claimed by the State, a balance due to it of some $72,000. Ward, Dewey & Patton recognizing no such indebtedness, claimed that the State was indebted to them in a very large
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amount. Under the resumption law, the.lessees, if not sat- isfied with the appraisement, were authorized to sue the State. As they declined to do this, Gov. Hubbard, after advising with Attorney-General Boone and Mr. Peeler, con- cluded to sue the lessees for the recovery of this alleged balance, deeming it best to have the matter settled by judi- cial determination than to leave it open to constant appeals for legislative relief. For this purpose he employed Mr. Peeler and his partner, T. S. Maxey, Esq., to institute suit. Suit was brought in the District Court of Travis County against the lessees and their bondsmen. The labor of the preparation of this suit and of the defense can hardly be overestimated. Several inventories consisting of hundreds of pages, with a vast mass of documentary testimony had to be examined with great care. Ward, Dewey & Patton, re- presented by the able counsel above mentioned, interposed every defense which could be made, and sought by way of reconvention to recover a judgment against the State for something like a half a million of dollars. A. S. Walker, judge of the Travis District Court, having at one time been of counsel for Ward, Dewey & Patton, being disqualified, J. H. Burts, Esq., now assistant attorney-general, was ap- pointed special judge. The case was tried before a jury and occupied two entire weeks, each day's labor beginning early in the morning and ending late at night. Every inch of the ground was stubbornly contested, and few cases have re- ceived so large a share of public attention. The responsibil- ity and anxiety of the counsel for the State, when a judgment for so large an amount was sought against it, can be readily appreciated. Hon. A. T. Mckinney, of Huntsville, who had also been retained by Gov. Hubbard in the matter of re- sumption, assisted Mr. Peeler in the trial of the case. The trial resulted in a verdict for the State in the sum of $15,000. The lessees carried the case to the Supreme Court, in which Mr. Peeler represented the State, and the judgment of the court below was affirmed. Thus ended one of the most important and difficult suits, perhaps, ever tried in any Dis- trict Court in the State.
Mr. Peeler, by special retainer, in conjunction with his
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A. J. PEELER.
former partner, S. R. Fisher, Esq., had previously repre- sented the State in the Supreme Court, in what is generally known as the " Rio Grande Cases," brought under the act to adjudicate claims to lands situated between the Nueces and Rio Grande Rivers. The case of the State v. Cardinas, and other cases to be found in 47 Texas, show the nature of the questions and the extent of the interests involved in these . suits. But the most important case with which Mr. Peeler has ever been connected, and one which stands almost un- precedented in the jurisprudence of the country, is what is known as the " Mercer Colony Case." The following com- munication from Mr. Peeler to the Governor of the State, together with the letters accompanying it, presents as suc- cinctly as possible the history of this most remarkable liti- gation : -
" LAW OFFICE, AUSTIN, TEXAS, February 2, 1885. " To His Excellency John Ireland, Governor of Texas -
" SIR: Having been retained by your predecessor to represent the State of Texas in what is generally known as the ' Mercer Colony Case,' I now have the honor to report to you the final disposition made of said cause; and in making this report it will be proper, as I have not been fully paid for my services, to give a brief history of the case that the nature and extent of such services may be understood.
" The suit grows out of a colony contract between the Republic of Texas and General Mercer, made January 29, . 1844. This contract was the leading subject of debate in the Constitutional Convention of 1845. The original bill was filed March 6, 1875, in the United States Circuit Court, at Austin, by George Hancock, a citizen of Kentucky, who claimed as chief trustee to represent the rights of Mercer and associates against J. J. Gross, Commissioner of the General Land Office of Texas. Upon the death of Hancock, General William Preston became complainant, and William C. Walsh, succeeding Gross as Commissioner, was made defendant.
" It was claimed in the original bill that Mercer and
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associates had introduced and actually settled under said colony contract 1,256 emigrant families, for which they were entitled to 1,256 sections of 640 acres each, being one section for each family, and in addition thereto 120 sections, being ten premium sections for each one hundred families, making in all 1,376 sections or 880,640 acres of land.
" The nature of the relief sought by this bill is disclosed by an order for an interlocutory injunction granted April 12, 1879, as follows : -
" ' That a writ of injunction do issue out of this court, and under the seal thereof, directed to W. C. Walsh, Com- missioner of the General Land Office of the State of Texas, his clerks, draftsmen, subordinates, agents, servants, and employes, and all his successors in office, and all their clerks, draftsmen, subordinates, agents, servants, and em- ployes, and all officers or agents subordinate to him, or to any of his successors in office, or under the direction, supervision or control of him, or of any of his successor or successors in office, enjoining him and them, and each and every of them, from issuing or delivering, or causing to be issued or delivered, or permitting to be issued or delivered, to any person or persons or corporation any plat or plats with a view of making locations within said colony limits, certificate or certificates, patent or patents, for any lands or land within the boundaries of Mercer's colony, as set forth in the bill of complaint and the exhibits therewith filed, and therein defined, and from any further interference with or infringement of the land grant or land reservation known as Mercer's colony, and from doing or causing to be done any act or thing whereby there may issue any patent, cer- tificate, plat or grant of any lands within the boundaries of said Mercer's colony, as defined and set forth in the said bill of complaint and exhibits therewith filed, and as set forth in the copy of the contract made on the twenty-ninth January, 1844, by and between the Republic of Texas, by Sam Houston, President thereof, and Charles Fenton Mer- cer, filed herein, whereof the original is on file in the office of the Secretary of State of the State of Texas, and a copy
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is on file in the office of the Commissioner of the General Land Office of the State of Texas, except to the complain- ant, William Preston, until the final hearing of the case.'
" The injunction was granted by Judge Woods, then cir- cuit judge, and now on the Supreme Bench of the United States. His opinion delivered at the time will be found in 3 Wood's C. C. Rep., page 351. The demurrer was argued in behalf of the State by Hon. George McCormick, then attorney-general. After this, complainant filed an amended bill December 24, 1879, the main object of which was to compel by mandatory injunction the Commissioner of the General Land Office to issue certificates to lands of equal value to be located by them upon any part of the public domain of the State.
"Some time before this, Judge S. A. Willson, of the Court of Appeals, then associated with W. P. Gaines, Esq., was employed by the Governor to represent the State, and after his employment Peeler & Maxey were also retained. My connection with the case began with the preparation of an amended answer in response to amended bill, which was filed February 2, 1880. Judge Willson had in the mean- time given much attention to the matter of evidence, per- sonally visiting, in different parts of the State, old settlers of the colony, and obtaining from them information touching the performance of the contract by Mercer and associates, thus laying the foundation for obtaining testimony that afterwards proved of great value.
"Judge Willson and myself prepared and had printed and distributed from the General Land Office a number of ques- tions which were sent to every person in the State, through whom we thought it likely information material to the suit could be obtained. The replies to these questions were useful guides in taking the depositions of the witnesses for the defense. The testimony being complete on both sides, the case was brought to a final hearing at Austin, January 16, 1882, before his honor, Judge Pardee, the circuit judge.
" For the complainant, the case was argued by Mr. John Mason Brown, of Louisville, Kentucky, and Judge O. S.
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West, of Austin ; and for the State, by Judge S. A. Willson and myself. The hearing was concluded January 26, 1882, and on that day a final decree was rendered as follows : -
" ' This cause came on to be heard at this term on the twenty-sixth day of January, 1882, and was argued by counsel; and thereupon, upon consideration thereof, it was and now is ordered, adjudged and decreed as follows, namely :
"' First. That the complainant's allegations are found to be true and supported by the proof ; and that the order and writs of injunction heretofore granted and issued in this cause is hereby made perpetual ; and the defendant, W. C. Walsh, commissioner of the general land office of the State of Texas, and all and every his successors in office, and all his clerks, draftsmen, subordinates, agents, servants, and employes, and all officers or agents subordinate to him, the said defendant, or to any of his successors in office, or in any manner under the directions, supervisions, or control of him, or of any of his successors in office, be and hereby is and are restrained, prohibited, and forever enjoined from issuing or delivering, or permitting to be issued or delivered, to any person or persons, or to any corporation, any certificate or certificates, patent or patents, plat or plats, for any land or lands within the boundaries of Mer- cer's colony, as set forth in the bill of complaint and the exhibits therewith filed; and from any and all interference with, or infringement of, or upon, the land grant or land reservation known as Mercer's colony; and from doing, or causing to be done, any act or thing whereby there may issue any patent, certificate, plat, or grant of any land within the boundaries of said Mercer's colony, as defined and set forth in the bill of complaint and the exhibits filed, and as set forth" in the contract made on the twenty-ninth of January, 1844, by and between the Republic of Texas, by Sam Houston, President thereof, and Charles Fenton Mer- cer, filed herein, whereof the original is on file in the office of the Secretary of State of Texas, and a copy is on file in the office of the commissioner of the general land office of the
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