CHAPTER XXV.
THE BENCH AND BAR.
AN EXECUTION IN WYANDOTTE - THREE JUDICIAL DISTRICTS - COLORADO IN THE WYANDOTTE DISTRICTS - SECOND AND THIRD DISTRICTS - COURTS UNDER STATEHOOD - THE FIRST TERM - AN EARLY DAY COURT SCENE - DRAMSHOP CASES - EARLY MEMBERS OF THE BAR - A JUDGE WHO PLAYED POKER - THE COURT HOUSE BLOWN DOWN - THE JUDGES WHO FOLLOWED - THE GROWTH OF LITIGATION - THE DISTRICT COURT JUDGES - LAWYERS OF THE EARLY DAYS.
The first territorial courts of Kansas were organized in June, 1854, when Franklin Pierce, then president of the United States, appointed Samuel D. Lecompte, of Maryland and John Pettit, of Indiana, as chief justices. Saunders W. Johnston of Ohio, Rush Elmore of Alabama, Jeremiah M. Burrill of Pennsylvania, Sterling G. Cato of Alabama, Thomas Cunningham of Pennsylvania, and Joseph Williams of Iowa, were associate justices. When Kansas became a state, the court consisted of Judges Pettit, Elmore and Williams. Israel B. Donalson of Illinois was the first United States marshal; Andrew Jackson Isacks of Louisiana was the first United States district attorney, and James Findlay of Pennsylvania was appointed clerk.
Previous to that time justice was administered by the Wyandot Indians as leaders of the Confederacy. They had brought with them from Ohio, in 1843, a constitution and a code of civil and criminal laws that was put into operation and under it the Wyandots ruled the "Indian country," as it was known, wisely and well.
it was under this form of government that all differences between the Indians, or matters of dispute, were adjusted according to civil laws; and it was under this government and its code of criminal laws that offenses were punished.
The first and one of the very few executions in Kansas was in the village of Wyandotte. The victim was a young Indian, John Coon, who had killed Curtis Punch in a drunken brawl. Governor Walker was prosecuting attorney for the Wyandot Nation, and the defendant had for his counsel, Silas Armstrong. Governor Walker insisted that the defendant should only have been convicted of manslaughter, but the Head Chief let the verdict of murder stand. The defendant was taken to the Missouri river bottoms a short distance above where Jersey creek enters the valley and was shot on January 18, 1853.
On February 26, 1855, Governor Reeder divided the territory into three judicial districts. The first was assigned to Chief Justice Lecompte, the court to be held at Leavenworth; the second, to Judge Elmore, with court at Tecumseh; the third, to Judge Johnston, with court at Pawnee. On August 31, 1855, Charles H. Grover, H. A. Hutchinson and John T. Brady were commissioned as district attorneys, respectively, for the First, Second and Third districts. In 1858 Alson C. Davis of Wyandotte, became United States district attorney; E. S. Dennis, Isaac Winston, Philip T. Colby and William P. Fain were United States marshals. Andrew J. Rodigue, E. Noel Eccleston, James R. Whitehead and Laomi McArthur were among the last of the clerks of the territorial courts. Marcus J. Parrott, Thomas B. Sykes and John Martin held the position of reporters of the court. The first attorneys admitted to practice in the territorial court were Edmund Byerly, James Christian, Marcus J. Parritt and Richard R. Rees. P. Sidney Post of Wyandotte and Richard Henry Weightman of Atchison were appointed United States commissioners under the provisions of the fugitive slave act of 1850.
By an act of the territorial legislature, approved February 27, 1860, there were three judicial districts defined, with the times and places for holding therein the several courts. The division of the territory into districts and the judges for the courts are presented in the following: The counties of Doniphan, Atchison, Jefferson, Leavenworth, Wyandotte and Arapahoe constituted the First district, to which Chief Justice John Pettit was assigned. Section 10 of said act reads as follows: "The whole of the Delaware Indian reservation is hereby attached to the First judicial district for judicial purposes, as well as all the Indian territory lying and being within the border of Arapahoe county."
The county of Arapahoe was attached to the county of Leavenworth for judicial purposes, except that in the county of Arapahoe the process of subpoena issuing from Leavenworth county, should have no force or effect if served in said Arapahoe county. This county embraced the Pike's Peak region, which became the prominent portion of Colorado, with Denver as an objective point.
Excepting nine counties in the eastern tiers, the remaining portion of the territory was in the Second district, to which Rush Elmore, associate justice of the supreme court, was assigned. Provisions were made for holding courts at Burlington, Emporia, Council Grove, Junction City, Marysville, Hiawatha, Holton, Topeka and Lawrence. The counties of Osage, Woodson, Wilson, Greenwood, Godfrey (now Elk and Chautauqua), Butler, Hunter (now Cowley), Chase, Marion, Saline, Dickinson, Clay, Washington, Riley, Wabaunsee, Pottawatomie and Nemaha were attached to their adjoining most contiguous counties for judicial purposes. The Pottawatomie, Kaw, Otoe, Chippewa and Ottawa, and Sac and Fox and Kickapoo Indian reservations were attached to this judicial district.
The counties of Johnson, Miami, Linn, Bourbon, Cherokee, Neosho, Allen, Anderson and Franklin constituted the Third district, and Associate Justice, Joseph Williams, was assigned to it. For judicial purposes Cherokee county was attached to Bourbon; Dorn to Allen, and the New Fork Indian reservation was attached to this district for judicial purposes. In section 9 of this act, it was provided "Where a county is attached to another for judicial purposes, the jurisdiction of the county to which it is attached shall be as if it formed a part thereof, unless the county attached has its own organization and officers."
When Kansas donned the robes of statehood, its constitution ordained, as now, that the judicial power should be vested in the supreme court, district courts, probate courts, justice's courts, and such other courts inferior to the supreme court as might be provided by law. The supreme court consisted then, as now, of one chief justice and two associate justices, whose term of office after the first was six years.
At the election of the state officers, held December 6, 1859, under the Wyandotte Constitution, the supreme judges chosen were as follows: Thomas Ewing, Jr., chief justice, term six years; Samuel A. Kingman, associate justice, four years; Lawrence D. Bailey, associate justice, two years.
Under the Wyandotte constitution, five judicial districts were formed, and at the first election under it, December 6, 1859, judges were chosen. Wyandotte, Leavenworth, Jefferson and Jackson counties constituted the First district, and William C. McDowell was elected judge. The counties of the Second judicial district were Atchison, Doniphan, Brown, Nemaha, Marshall and Washington. The counties of Washington, Republic and Shirley (now Cloud) were attached to Marshall for judicial purposes. Albert J. Lee was the first judge. The counties of Shawnee, Waubaunsee, Pottawatomie, Riley, Davis, Dickinson and Clay constituted the Third district. Clay, Dickinson, Ottawa and Saline were attached to Davis for judicial purposes. Jacob Safford was the first judge. Douglas, Johnson, Lykins (now Miami), Franklin, Anderson, Linn, Bourbon, and Allen counties made the original territory of the Fourth district. Solon O. Thacher was the first judge of the district. The original territory of the Fifth district comprised the counties of Osage, Breckenridge, Morris, Chase, Madison, Coffey, Woodson, Greenwood, Butler and Hunter, and the unorganized counties in the "southwest." E. O. Leonard was the first judge.
The act of congress admitting Kansas into the Union as a state was approved by the president, January 29, 1861, and from that time forward the First judicial district remained the same until an act of the state legislature, approved February 25, 1869, changed Wyandotte county to the Tenth Judicial district, and made the latter consist of the counties of Wyandotte, Johnson and Miami. This district continued to be composed of the same counties, until an act of the general assembly, approved March 5, 1874, detached Linn county from the Sixth judicial district and attached it to the Tenth judicial district. In 1876 an act was passed and approved, which changed Linn county back to the Sixth judicial district, thus leaving the Tenth to consist, as before, of the counties of Wyandotte, Johnson and Miami; and so it continued until an act, approved March 5, 1887, created the Twenty-ninth judicial district, consisting of Wyandotte county only, as it now exists. The act creating this district set the time for the commencement of the several sessions of each year on the first Monday of March, the first Monday of June, the third Monday of September and the first Monday of December.
The first session of the Wyandotte district court was held in Constitution Hall, Wyandotte, the record of which read as follows:
"The Territory of Kansas
"County of Wyandotte."Be it remembered that at a district court for the Third Judicial District of said Territory, sitting within and for the county of Wyandotte, begun and held at the court house in the city of Wyandotte, in said county, on and from the sixth Monday after the Fourth Monday in April, A. D., 1859, towit: On the sixth day of June, one thousand eight hundred and fifty-nine.
"Present, Hon. Joseph Williams, presiding judge."
The first action of the court was to approve of the appointment of William Roy as deputy clerk of the court. N. C. Claiborn, D. E. James and E. W. O. Clough then severally applied to the court for admission to the bar as practicing attorneys and solicitors in chancery, and having produced to the court satisfactory evidence of their qualifications as such, they were admitted, and each took the oath required by law. The first civil case on the docket, Gottlieb Kneipfer vs. George Lehman, was then dismissed, on motion of the plaintiff and at his cost.
The first grand jury was then empaneled, consisting of William Walker, foreman, R. M. Gray, Christopher Snyder, John Collins, R. L. Vedder, George W. Veal, J. N. Cook, Valorious Rice, James McGrew, Frank Betton, Charles E. Sawyer, S. S. Bradey, Alfred Robinson, Geo. Parker, Joseph W. N. Watson, Chester Coburn, David H. Toomb, Darius Crouch and James W. Craft. Upon being duly sworn and charged by the judge as to their duties, they retired to their chamber to consider such matters as might be brought before them.
Among other civil actions the case of Lois Kinney vs. Charles Robinson, Abelard Guthrie, Samuel N. Simpson, doing business under the style and description of the Quindaro Town Company, and Charles H. Chapin, Otis Webb and Samuel N. Simpson, was called, and, the defendants defaulting, judgment was rendered against them in favor of the plaintiff in the sum of $393.25 and the costs in the matter expended. This was the first judgment of money rendered by the court. After transacting some other business, the court adjourned until Wednesday, June 8th, when, after convening, Charles S. Glick and Daniel B. Hadley were appointed master commissioners for the county. Both of these gentlemen then filed their bonds in the sum of $1,000 each, and otherwise became qualified for the duties of their offices. On this day S. A. Cobb, Jacob S. Boreman, Thomas J. Williams and M. D. Trefren severally applied to the court for admission to the bar as practicing attorneys and solicitors in chancery, and upon the production of the proper evidence were admitted and qualified accordingly. Also on this day the grand jury, by their foreman, presented in open court the following:
"To the Hon. Joseph Williams, Associate Judge of the Territory of Kansas and Judge of the Third Judicial District: The grand jury for the county of Wyandotte and territory aforesaid beg leave to make the following report: That there is no jail in said county or place for the confinement of prisoners, and would recommend that the county commissioners procure a suitable place for the confinement of prisoners.
(Signed)WILLIAM WALKER, Foreman."
Whereupon the court ordered the report to be spread upon the record of proceedings, and also ordered the clerk to transmit a certified copy of the same to the board of supervisors doing county business.
On the third day of the term, cases were docketed against C. N. H. Moor and John D. Brown for the offense of "selling liquor."
D. B. Hadley and "Billy" McDowell were earnestly engaged in arguing an important case in the district court, when Judge Johnson called the case of Lewis M. Cox as administrator vs. Margaret Getsler, in the probate court. This case elicited great interest, as two women appeared in court, each claiming to be the lawful wife of the deceased, Andrew Getsler. The assets of the estate consisted of one small house, several barrels of Monongahela whisky, besides numerous jugs, bottles and demijohns of liquor. The little house just west of the old Brevator building was the one owned by the deceased, but possession of that portion of the estate had but little attraction in comparison with the desire to secure control of the liquid portion of it. The attorneys were General A. C. David and Colonel G. W. Glick. These gentlemen entered into the contest with spirit, and the case was conducted in such a manner as to create a feeling of bitterness in the minds of the counsel toward each other; the result was that the trial partook more of the nature of a personal quarrel between attorneys than of a case in a court of justice. General David was probably one of the finest orators that ever addressed a court in Kansas, and as he warmed up with his case he became very eloquent. Glick, fearing the impression David would make on the jury, if permitted to proceed with his argument, attempted to badger him. As counsel grew excited it was impossible to proceed with business in the district court on account of the noise. Judge Williams ordered the sheriff to notify the probate judge if he did not keep better order he would arrest him for contempt. Judge Johnson, on being so informed by the sheriff, sent back word to Judge Williams that he did not recognize his authority to interfere in affairs of his court, and that he had better not, if he did not want to be sent to jail for thirty days. Just at this junction of affairs Vol Rheincher and John Moody, at that time boys about seventeen years of age, passed by the hall playing Yankee Doodle on a drum and fife; Judge Williams being passionately fond of music sang out, "Mr. Sheriff adjourn court until 10 o'clock tomorrow morning," and, making a dive for his hat, at the same time disappeared down the stairs and followed the boys around in the hot sun until he was literally exhausted, thus happily preventing a conflict of authority between the district and probate courts.
On the fourth day of the session Philip B. Hathaway, upon application, was admitted to practice as an attorney at law and solicitor in chancery in the several counties of the territory. The same day a case was docketed, upon an indictment, against John F. Wise for the offense of "keeping a dram-shop." Thus it appears that the conflict between temperance and intemperance began in the first term of the Wyandotte district court. The conflict still goes on, but the heavy fines now assessed for the violation of the liquor laws show that the cause of temperance generally wins. At this first term of court John Burk, Thomas Purtie and Francis Tracy, natives of Ireland, and John Link, a native of Prussia, were, upon application naturalized as citizens of the United States.
The first term of the Wyandotte district court continued in session seven days. Many civil and a few criminal cases were docketed, nearly all of which were continued. The attorneys admitted and composing the bar were Daniel B. Hadley, D. A. Bartlett, Glick, Bartlet & Glick, W. L. McMath, J. W. Wright & Son, William Roy, D. E. James and B. O. Demming.
The original official seal of the Wyandotte district court consisted of a green wafer seal, with the picture of some species of plant thereon, but without any letters or figures whatever. Afterward, in February, 1860, a new seal, containing the picture of a balance and the words "First District Court, Territory of Kansas," was adopted.
The first petit jury empaneled in the county was composed as follows: V. J. Lane, foreman; Matthew Mudeater, Hugh Gibbons, Perley Pike, Elisha Sorter, Elias S. Busick, Leonard Lake, David Pearson, W. D. Ferguson, Daniel Croyle, Thomas Sherman and C. H. Carpenter.
The probate records of the county show that some probate business for persons living within the Wyandotte purchase was transacted while it belonged to Leavenworth county; the first letters of administration having been issued May 11, 1857, to Charles B. Garrett, upon the estate of Henry Garrett, deceased. The first probate business transacted in Wyandotte county was the granting of letters of administration, on April 5, 1859, to Mrs. Josephine S. Cann, on the estate of her deceased husband, William B. Cann. Catherine Warpole was the first guardian appointed in the county, she being appointed April 22, 1859, as guardian of James, Daniel and Lydia Warpole, minor heirs of Catharine M. Warpole, deceased. These minor heirs were the first wards in the county. On April 28, 1859, John H. Miller was appointed curator of the estate of John Warpole, deceased. Jacques W. Johnson was the first probate judge of the county. A list of all his successors appears elsewhere in this work under the head of "county officers."
The first session of the Wyandotte district court, which convened June 6, 1859, was presided over by Hon. Joseph Williams, associate justice of the territory of Kansas. He also presided at the fall term of the court in the same year. The next year, Wyandotte county having been transferred from the Fort Scott to the Leavenworth district, the Hon. John Pettit, judge of that district, presided over the Wyandotte district court, holding two terms, the last one being the term held under the territorial organization.
A history of Wyandotte, in speaking of Judge John Pettit, the second judge of the Wyandotte district court, says: "Pettit was ill-natured, petulant, high-tempered, profane, tyrannical and abusive, but withal as clear-headed and able a jurist as ever donned the judicial ermine of Kansas. It was nothing unusual for him to go to Kansas City and play poker and drink whisky all night. The bar generally had to suffer for it the next day. In this connection we cannot refrain from giving an incident that occurred at the Garno House during one of his terms of court. S. L. Norris, a young man from Vermont, who lived by his wits, brought out a carpet sack of bank notes on the St. Albans Bank, which had burst in the crash of 1857. Judge James, Colonel Weir, Norris and one or two other parties, set up a job on Pettit and got him to playing poker. The old man was permitted to win nearly every game, and every time he won the boys put out a $20 bill on the broken bank of St. Albans, Pettit making the change in good money. At the close of the term the old judge was in high glee, as his capacious wallet was filled with $20 bills. But when he came to pay Mrs. Halford his hotel bill and presented one of his $20 notes, he learned the bank was broken; a second and third tender meeting a refusal on the same grounds, he saw that he had been sold. He returned to Leavenworth minus about $300 in cash, with about $1,000 in worthless money, a sadder but wiser man."
One of those delightful zephyrs peculiar to Kansas was making everything hum the morning Judge Pettit first opened court in Wyandotte and after climbing up to the court room, which was on the fourth floor, he was nearly out of breath, being a very fat man. Just as he began to call the docket, an unusually stiff breeze sprang up, which made the structure tremble from foundation to turret. When the building began to vibrate he said:
"Mr. Sheriff, can't you get some room on the ground in which to hold court?"
That official replied that there was no room large enough unless he took one of the churches.
Just then a little stiffer breeze came, and the Judge fairly roared, "Mr. Sheriff, adjourn court until 2 o'clock and get a church - take a church." And he started for the street. He had scarcely gotten half way down when some one cried out, "the building is falling!" The crowd made a rush for the stairway, and soon the old Judge found himself crowded and pushed to the door, where he barely escaped injury from the brick and debris of the falling building.
Judge Pettit was succeeded by Hon. William C. McDowell, judge of the First judicial district of the state. He served until the close of 1864, and was succeeded by Judge David J. Brewer, who served for the next four years until 1869, or until Wyandotte county became a part of the Tenth judicial district. The court was then presided over for the year 1869 by Judge John T. Burris, of the Tenth district. In 1870 Hiram Stevens became judge of the Tenth district and served as such until 1882. He was succeeded by W. R. Wagstaff, who served until 1886, when James C. Hindman became the judge, serving until old Wyandotte county was made the twenty-ninth judicial district, in 1887.
When this district was formed the Hon. O. L. Miller was appointed judge thereof, and in the fall of 1887, was elected to the office. Before the expiration of the term for which he was elected Judge Miller resigned to engage in the practice of law with a large corporation clientage. The Hon. Henry L. Alden was appointed by the governor to fill the vacancy. He was chosen at subsequent elections and held the office until 1903, when the Hon. E. L. Fisher, who had been elected in the preceding November, came to fill the position of honor. The Hon. McCabe Moore was elected in the fall of 1904 and at the expiration of his term was succeeded by Judge Fisher, the present encumbent.
The growth of the city and its large interests at the mouth of the Kansas river brought with it a large increase of litigation, and it became necessary for the legislature to provide additional courts. The court of common pleas was created in 1891, by act of the legislature, and the Hon. Thomas P. Anderson was the first judge. He served the first term under appointment and one term by election, and was succeeded by the Hon. William G. Holt who served two full terms, but resigned during his third term. The Hon. L. C. True was appointed to the vacancy. He was succeeded at the election of 1908 by the Hon. Richard Higgins for the short term and the Hon. H. J. Smith for the full term.
A circuit court was organized in 1907, by special act of the Kansas legislature, and the Hon. F. D. Hutchings was appointed as the first judge. He was succeeded in 1908 by W. M. Whitelaw, who had been chosen at the election in November, 1907, but the court was abolished during his term.
The next effort to relieve the courts of a part of the burden of litigation resulted in the organization of the Second division of the district court under act of the legislature. The Hon. L. C. True, was the first judge by appointment. In the election of 1910 the Hon. F. D. Hutchings was elected judge, succeeding Judge True, and is now on the bench.
Judge William C. McDowell, the first one that served under the state organization, lived at Leavenworth. In politics he was a Democrat and a man of fine legal attainments. Soon after the close of the Civil war, about 1866, he visited St. Louis on business, and there fell from the driver's seat of an omnibus and was killed. Judge David J. Brewer also lived at Leavenworth. Some time after serving as district judge, he was elected to the supreme bench of the state of Kansas. Subsequently he was appointed and served as a United States circuit judge, and closed his long career as a jurist, and a member of the supreme court of the United States; his death occurred in 1909. Judge John T. Burris lived at Olathe, Johnson county, when he served as judge of the Wyandotte district court. He was a man of sound ability and was accredited by some as being the best judge who ever sat on the bench at Wyandotte. The home of Judge Hiram Stevens was at Paola, Miami county, but his law office was in Kansas City, Kansas. He served as judge of the court for twelve years. In politics he was a Republican. Judge Wagstaff also lived at Paola and was a Democrat. Judge Hindman resided at Olathe, and was a Republican. Judge O. L. Miller, living in Kansas City, Kansas, is a Republican. After his retirement from the bench Judge Miller served a term in congress as a representative from the Second district. He was for several years associated with W. J. Buchan and his brother, Charles A. Miller, in the law firm of Miller, Buchan and Miller, which was dissolved not long ago by the retirement of Mr. Buchan. Judge Henry L. Alden, now one of the oldest members of the Wyandotte county bar, is still engaged in the practice of his profession. He has held many offices of public trust, his last public service being as city counsellor during the administration of Mayor Dudley E. Cornell. Judge McCabe Moore, who made an enviable record on the bench, is now assistant United States district attorney, having succeeded Judge J. S. West who was elected associate justice of the state supreme court in 1910.
Of the former judges of the common pleas court since it was organized, Judge Anderson, Judge Holt and Judge Higgins, all are practicing law in Kansas City, Kansas. Judge Higgins is the present city counsellor.
Among the 135 attorneys residing in Wyandotte county and practicing in the courts, there are not to exceed a dozen who were there thirty years ago. Among those who have been there twenty-five years and longer may be mentioned a few. Judge Henry L. Alden, John A. Hale and Nathan Cree are perhaps the oldest members of the bar. Following them were Henry McGrew, L. W. Keplinger, J. O. Fife, W. J. Buchan, D. J. Maher, Judge T. P. Anderson, Thomas J. White, J. E. McFadden, James S. Gibson, James F. Getty, Junius W. Jenkins, A. L. Berger, L. C. True, F. D. Hutchings, James M. Mason, Winfield Freeman, Judge O. L. Miller, W. A. Snook, K. P. Snyder, the Littick Brothers, Judge McCabe Moore, I. F. Bradley and T. A. Pollock.
Among the lawyers of the old days, fondly remembered by the older citizens, were such men as Stephen A. Cobb, who represented the district in congress when Kansas was young, Judge Jesse Cooper, Judge Isaac B. Sharpe, Daniel B. Hadley, William S. Carroll, John B. Scroggs, Judge Hiram Stephens, Fred D. Mills, S. M. Garrett, Judge R. P. Clark, Alson C. Davis and Silas Armstrong.
Transcribed from History of Wyandotte County Kansas and its people ed. and comp. by Perl W. Morgan. Chicago, The Lewis publishing company, 1911. 2 v. front., illus., plates, ports., fold. map. 28 cm. [Vol. 2 contains biographical data. Paged continuously.]
