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Kansas Historical Quarterly - County Seat Controversies in Southwestern Kansas

by Henry F. Mason

February 1933 (Vol. 2, No. 1), pages 45 to 65.
Transcribed by Lynn Nelson; HTML editing by Tod Roberts
digitized with permission of the Kansas Historical Society.
Numbers in brackets refer to footnotes for this text.

Kansas Historical Quarterly, February 1933THE county seat struggles in the southwestern counties of Kansas during the later eighties were but a particular phase of the general town-building boom of that period. The peculiar features of that singular phenomenon were perhaps more strikingly presented in that longitude than farther east. The disproportion between anticipation and realization was greater there than elsewhere, not because speculative values rose higher, but because they fell further. In other parts of the state the situation was the familiar one of an era of abnormal activity, followed by one of corresponding depression. While improvements were made and public expenses incurred far in advance of existing needs, the movement was, generally speaking, only premature. Conditions were present which required only time to justify, perhaps, the wildest predictions of the most enthusiastic optimist. But in the western end of the state the fact was sadly otherwise. The vast tide of immigration which started in 1885 and overflowed the short-grass prairies clear to the Colorado border and beyond was the result of a belief that every quarter section represented a farm -- 160 acres of as good agricultural land as the sun ever shone upon, sufficiently watered by nature's beneficence to produce crops year after year with only such an occasional failure as might be looked for even in the most favored region. This belief prevailed, notwithstanding that earlier unsuccessful attempts at settlement seemed to teach the contrary in unmistakable terms. It was urged that drought was no more to be feared then than it had been a few years before in eastern Kansas. It was said that the climate had changed, that cultivation of the soil had favored the retention of moisture and thereby increased evaporation, which in turn promoted further precipitation. The expressive epigram of the time

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was "the rain follows the plow." The theory that the general enlargement of the crop area in the longitude of eastern Kansas had tended gradually to push the eastern boundary of the semiarid belt farther west was at least entitled to serious consideration. But it was soberly argued that the amount of sod newly turned had within a twelve-month produced a revolution of physical conditions. This vast plain, that had dried and baked in the winds and suns of centuries, had been here and there scratched with the plow of the settler, and the idea was not too grotesque for general acceptance that this infinitesimal disturbance of its surface had worked ,a miracle worthy of omnipotence. The few cattlemen who scoffed at the proposition were discredited as having a manifest interest in discouraging immigration, in order that they might continue to range their herds at will over this wide expanse of priceless pasture. Schemes for irrigation were frowned upon because it was thought that they would tend to frighten timid investors by advertising a distrust of the sufficiency of the natural rainfall to insure the rewards of husbandry.

This was the state of public opinion when occasion arose for the organization of new counties carved out of the territory to which these remarks apply. In a few of them there were towns of such size and situation that opposition to their being made county seats was so evidently hopeless that their designation as such was acquiesced in by common consent. But in most cases there was no one town having any apparent advantage in that regard over others then existing or that might be established. In a considerable number of instances there were no towns whatever, and the field was open to any handful of speculators to acquire a site and enter the campaign with a reasonable prospect of success. In such circumstances it was natural that there should be many and vigorous controversies over the selection of county seats, and that the value of the prizes at issue should be greatly overestimated. As an illustration of this I recall that C. J. Jones, who delighted in the sobriquet of "Buffalo Jones," on being remonstrated with for his recklessness in becoming involved in some six or eight of these affairs, justified his course by saying that he could afford to lose in all of them but one; that if in any single instance the town which he was backing became the county seat he and his associates would not only from their profits be able to recoup their losses in all their unsuccessful efforts, but would have enough left to make them independent for life.

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A problem that has received considerable attention and has never been satisfactorily solved, is why the men who were engaged in these contests, most of whom were of at least average standing as citizens, and many of whom in all the ordinary relations of life -- social, political and commercial -- were of exemplary conduct, were willing to lay aside every conscientious scruple and to countenance, if not to indulge in, bribery, intimidation, ballotbox stuffing, subornation of perjury, and kindred offenses in support of the prospects of the town of their choice. One reason, no doubt, was that the belief that large financial interests were involved tended to soothe the pricks of conscience. Another was the development of a spirit of partisanship more violent than that engendered by any but the bitterest of political struggles. Another was a variation of the adage that the end justifies the means, expressed in the aphorism that it is necessary to fight the devil with fire, it being said, and doubtless believed, that every villainy resorted to was merely an offset to the unconscionable devices of the opposition.

There was little in the means adopted to assist nature in securing results in these contests that had sufficient novelty to merit special attention. The prevalent methods included the importation of illegal voters, direct and indirect bribery, stuffing of ballot boxes, forging of election returns, and coercion of electors by actual or implied threats of violence into voting against their wishes or remaining away from the polls. Quasi legal colonization schemes were nearly universal. Additions to town sites were platted and lots given to so-called actual settlers who would use them as the bases of claims of residence until after the election. To provide for the immediate needs of these pampered pioneers various devices were employed. Public improvements, such as the building of bridges and roads, were undertaken by county and township boards, bonds were issued for such purposes, and the proceeds were turned over to the campaign committee for use for the good of the cause. A simpler device available to the faction having control of the existing county government was to utilize it as a warrant factory -- turning out warrants nominally for legitimate claims, such as the employment of attorneys, but really to swell the corruption fund. These warrants, illegal and void in themselves, were later transmuted by the alchemy of refunding into valid obligations of the municipalities issuing them. To these practices is due the fact that many of the southwestern communi-

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ties are burdened with vast indebtedness but have no public buildings, roads, bridges or property of any kind to show for it.

In Gray county the candidacy of the town of Ingalls for the county seat was due to the ambition of A. T. Soule, [2] who had been made a millionaire by the advertisement and sale of "Hop Bitters," to have a county seat of his own as a sort of toy to beguile his idle moments. As an aid to his project he built a railroad from Dodge City to Montezuma which, for want of anything to carry, was afterwards torn up, and the Eureka Irrigating Canal, which was a great work of engineering and lacked only one thing to make it a glittering success, namely, water. His efforts added greatly to the circulating medium and raised the local per capita distribution to an abnormal figure.

In Grant county the Ulysses people established a thoroughly businesslike system, by which voters were paid at the rate of ten dollars apiece as they cast their ballots, the rights of each party to the transaction being protected by appropriate checks and counter checks. It seemed a perfectly fair method, for under it every one received just what he bargained for, but it failed to meet the approval of the supreme court and the election was set aside on account of it.

In the mere matter of adding names to the voting lists and putting corresponding ballots in the box no great amount of originality was ordinarily shown. The election officers usually lacked even imagination enough to invent fictitious names, but had recourse to old city directories and to the pages of ancient and modern history. In one instance, however, a degree of ingenuity in this regard was exhibited that is perhaps worthy of mention. The election officers carefully prepared a list of all the persons who had at some time lived in the vicinity, but had moved away. They wrote their names on the poll books as having voted, but in each instance made some slight variation, such as the change of an initial. The beauty of this method was that if in a contest it was claimed that a given name was fictitious, evidence could be produced that its bearer was known in the community. If, however, conclusive proof were made that the particular person indicated did not vote, then attention could be called to the fact that the name was not the same.

A great amount of litigation resulted from these controversies, much of it being settled in the supreme court. The disputed ques-

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tions were for the most part those of fact rather than of law, and their decision contributed little to the development of our system of jurisprudence. However, in Martin v. Ingham and State v. Martin, 38 Kan. 641, growing out of the contests in Grant and Hamilton counties, the supreme court for the first time considered the doubtful, difficult and interesting question of how far the judicial department of the state government might interfere with the executive branch, and held that the court had the power in certain cases to control the action of the governor, either by mandamus or by injunction, although in particular instances it declined to do so. Another decision by which the literature of the law was enriched was that rendered in State v. Commissioners of Seward County, 36 Kan. 236, where it was held with becoming caution that a secret canvass of the vote cast at a county-seat election, made by two members of the board of commissioners without notice to the third, or to anyone else, held on the open prairie at three o'clock in the morning by the light of the moon, without poll books, ballots or tally sheets, and without any record being made at the time, was "not only irregular, but invalid."

The most picturesque, if not the most effective, of the reprehensible campaign practices referred to was the employment of mercenaries technically known as "killers." These were the real and imitation "bad men" who frequented Dodge City. The purpose in enlisting their services was in part, wherever practicable, to overawe opposition by the mere terror inspired by their fearsome reputation, and in part to have them in readiness for the carrying out of any desperate project that might require physical courage and the utter disregard of all restraints of the law. They formed a recognized part of the machinery of the ordinary county seat fight. They commanded good pay, were treated with the greatest deference, and fairly lived in clover while the wars lasted. Their presumed value was graduated by the nearness of their approach to the conventional type of frontier ruffian -- the "Alkali Ike" of the funny papers. While they were all thugs, toughs, and sure thing gamblers, only a few of them had in fact done anything to earn the right to be considered dangerous characters. The rest were vain pretenders. Their presence was believed to be, and doubtless was, a menace to the peace of society, but in fact they did little to earn their wage and, generally speaking, their part in the drama was confined to the moral effect of their presence-the immoral effect, perhaps I should say. It is true that one of them, while awaiting orders for active

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service, did shoot and kill an inoffensive citizen, and upon the earlier reports of the affair it was assumed that the tragedy was the outcome of an election fight, but it turned out that the killing was entirely accidental -- an unlooked-for and unpreventable casualty, such as continually occur, which, however regrettable, afforded no just ground for impugning the motives of the unfortunate instrument -- the involuntary agent of an inscrutable Providence. It seems that it had been his purpose, animated by a mere exuberance of animal spirits, as a matter of pleasantry, to shoot a hole through the hat of a bystander -- a form of practical joke of high repute in the cow-boy days. But through no fault of his own -- probably by reason of unsteadiness of nerve occasioned by an inferior quality or an excessive quantity of liquor -- the bullet ranged low and perforated the brain as well as the hat of the victim. In justice to the survivor it must be said that he appreciated to the full his error, regretted its distressing consequences, and made every reparation in his power by tendering most ample apologies to the friends and relatives of the dead man. Of course, this closed the incident. What more could William Tell have done had his arrow been similarly deflected?

There were undoubtedly times in the history of each one of these controversies when conditions were ripe for physical encounters of the most desperate character -- when a slight disturbance might have precipitated a general slaughter. There were times when frightful consequences were narrowly averted. Looking back, even after the few years that have passed, it is difficult to realize the serious character of situations which in retrospect suggest comic opera rather than tragedy. One concrete instance may serve to illustrate this. In Grant county the contending towns were Ulysses and Appomattox. The former had the advantage of the earlier start, the better location and the more abundant "sinews of war." As the day of test drew near the confidence of its partisans increased and the spirit of doubt was more manifest in the opposing camp. In this situation a day or two before the election two of the leading supporters of the claims of Appomattox -- members of the town company -- conferred with the Ulysses managers and entered into a written contract by the terms of which it was agreed, among other things, first, that neither side should resort to bribery or any other wrongful method to influence the result; and second, that upon whichever banner victory might perch, the successful town company should reimburse its defeated rival for the expenses incurred

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in the attempt to build up an opposition town, which should thereupon be abandoned, all interests then to unite in the upbuilding of the place selected as the county seat.

Upon its face this agreement was perfectly mutual and entirely commendable. Its provisions were not intentionally made public by the parties to it, perhaps through fear of misconstruction. But in some way knowledge of its substance leaked out at Appomattox shortly before the polls closed. In an atmosphere of suspicion and distrust which was the usual accompaniment of such controversies, it was not strange that the transaction should have been looked upon as a selling out of the interests of the town -- a giving up of the fight by the managers in consideration of being themselves protected from loss. At all events that was the interpretation that was placed upon it by many of the Appomattox boomers. A crowd collected and the men accused of treachery were taken into custody and placed under guard. It soon developed that upon the face of the returns Ulysses had received a large majority of the votes cast in the county. This intensified the ill feeling already existing. The rougher element of the town's population, inflamed alike by the contemplation of their real or imagined wrongs and by the indulgence in frequent potations, clamored for summary vengeance and proposed that the prisoners pay the penalty of their offending with their lives. It required the utmost diplomacy on the part of the cooler heads to prevent the immediate carrying out of this plan. A variety of ingenious expedients were resorted to by them to give rise to discussion and so gain delay. Matters remained in this condition for over twenty-four hours, during every moment of which the lives of the imprisoned men were in imminent peril. As the excitement gradually subsided it became possible to consider proposals for appeasing the wrath of the leaders of the mob. It was finally agreed that the captives should be freed upon their making provision for the repayment to their captors of the amounts the latter were said to have expended in behalf of Appomattox in the course of the campaign. A schedule of such amounts was accordingly prepared and the prisoners, glad of relief upon any terms, drew checks upon their home bank for their payment. Money was advanced upon a part of the checks by the local bank, the funds were distributed and the imprisonment ended. None of the checks were ever paid, but the Appomattox bankers recovered judgment for such of them as they had cashed. This episode doesn't sound very thrilling in the telling. Perhaps this is due to a lack of graphic talent in the narrator. The

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average reader of the newspaper refuses to become excited over the familiar statement accompanying the report of some revolting crime that "it is rumored that the perpetrator will be lynched if caught." And it may be that in the case mentioned the danger of violence was not so great as it seemed. Still, no doubt on this point was ever entertained by those who were most directly concerned.

It was a noticeable feature of the turbulent times under consideration that the expected catastrophe seldom or never happened. In spite of the constant preparation for battle, perhaps because of it, the opposing forces seldom or never met in physical strife. If human life was ever intentionally taken in the course of a struggle for a point directly involved in any effort for the location of a county seat, I do not know of it. The fight at Coronado on February 27, 1887, in which three Leoti people were killed and several others badly wounded, is usually accounted such a case, but I think improperly so. While it was in a sense an outgrowth of the ill feeling generated by the rivalry between the opposing towns, it bore no direct relation to the issue between them. The participants were not struggling to gain any advantage for their locality. Of course there are two versions of the affair, and they are so absolutely conflicting that it is a hopeless task for one having no personal knowledge of its details to form a satisfactory judgment as to the real facts. This much is obvious and undisputed -- at a time when Coronado and Leoti were engaged in a campaign preceding the selection of a county seat, and while the excitement incident to such a situation was at fever heat, a party of the adherents of Leoti went to Coronado, where a battle ensued in which three of the visitors were killed outright and others were badly wounded. This is the story as told by the Coronado people: The Leoti party came to their town for the express purpose of causing trouble; they were drunk, quarrelsome and abusive; they visited upon inoffensive citizens all manner of indignities; they forced them to dance for their amusement, promoting activity in the exercise by firing bullets from their revolvers through the floor near the feet of the performers. This conduct was borne by the residents until endurance was no longer possible, when an effort to stop it brought on a general engagement. The record of at least one of the men killed -- Jack Coulter -- was such as to lend plausibility to this tale. He was a cowboy who delighted to be known as a desperate character and strove to live up to that reputation. The local tradition is that his trigger finger continued to twitch for half an hour after his death.

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Of course, the essential features of the Coronado version were denied, but this important fact is beyond dispute -- if the Leoti folk came upon any legitimate errand whatever, it was not one having any relation to the county seat matter. Whether the homicides were felonious, justifiable or excusable, they were not committed in any effort to make Coronado the county seat, and were only indirectly attributable to the rivalry between the towns. A number of arrests were at once made, the militia being called out to keep the peace. The defendants waived preliminary examination and were placed in charge of the sheriff of Finney county to await trial. After a few days their restraint was only nominal. In a short time they applied to the supreme court to be let to bail, alleging that their waiver of examination had been due to fear of violence. Upon a hearing in which the merits of the case were pretty thoroughly gone into they were released upon bond. The final disposition of the case was somewhat singular. The defendants asked for a change of venue, upon the ground that a fair trial could not be had in Wichita county. Over their protest the case was transferred, not to another county of the judicial district, but to a county situated in a different district. There they raised an objection to being tried outside of the district where the homicide was committed, which was held good by the district court and also by the supreme court on appeal. This ended that prosecution, and the whole matter having then become an old story no further arrests were made.

A fatal shooting in Gray county would form an exception to the statement made, but for the fact that it was said to be, and probably was, entirely accidental, in the sense that the person who fired the shot had no purpose to injure the one who was killed. This was the only occasion upon which the "Hessians" were called upon to perform the peculiar services for which they were supposed to be especially employed. The county seat was temporarily at Cimarron. An Ingalls man had been elected county clerk. It was conceived to be a brilliant stroke of strategy for him to proceed to Cimarron with sufficient assistance, take forcible possession of the records of his office, and remove them to Ingalls. An expedition was organized with this in view. A dray guarded by a select band of ruffians was driven into Cimarron and up to the door of the court house, where the work of loading up the archives was at once begun. Perhaps if any considerable degree of tact had been employed no physical resistance would have been made. The hireling assistants

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had been sworn in as deputy sheriffs and were nominally acting in that capacity. Had this pretense of legal procedure been kept up it is possible that there would have been an effort to meet it only by recourse to the machinery of the law. But the haste and lack of ceremony with which the invasion was conducted stamped it as a forcible ravishment rather than the peaceful assertion of a lawful right. Before the spoliation of the office could be completed the citizens of Cimarron had resorted to arms and opened up a lively fire upon such of the invaders as were outside of the building, with the result that, without stopping even to rescue two members of the party who remained inside, the driver whipped up and made a quick retreat back to Ingalls. The two thus abandoned took refuge in the second story of the court house, where they remained at bay, responding by a desultory fire to the fusillade that continued for some time from the street. It was in the course of this more or less aimless shooting that a peaceable resident of Cimarron, who was standing perhaps a hundred feet from the building, was killed. The two prisoners were held in captivity until the next day, their captors in the meantime, so it is said, making every effort to compass their destruction. Their friends in Dodge City, learning of their desperate plight, began preparations for a rescue party. But wiser counsels prevailed and, chiefly through the intervention of residents of Ford county who had the confidence of the leaders of each faction, peace was restored. In course of time, after the passions aroused by the unfortunate occurrence had measurably subsided, the members of the Ingalls party were brought to trial upon the charge of murder, the attorney general conducting the prosecution. The result was an acquittal. While, of course, this was unsatisfactory to the Cimarron element, it was recognized everywhere that the trial had been a fair one, and the result was accepted as final and acquiesced in with better grace than might reasonably have been expected.

But, although no lives were lost in the collision of the opposing forces upon the direct issue of the location of any county seat of southwest Kansas, there grew out of the Stevens county contest a series of assassinations worthy of a Kentucky feud or a Sicilian vendetta. In 1885 practically the first settlement in that county was made at Hugoton, and plans were at once formed to make that place the county seat. In the preliminary steps that were taken for the speedy organization of the county with this in view, there is no room for doubt that the grossest fraud was practiced. This, how-

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ever, would probably have passed unchallenged but for the arrival upon the scene of Sam Wood. [3] He, with his friends, started the of Woodsdale, and in its interest began legal proceedings to prevent the premature organization of the county. The Hugoton people regarded him as an interloper, maliciously seeking to interfere with what they considered their firmly established vested rights.

The first sensational incident, which was to be followed by a long line of tragedies, was the kidnapping of Wood. To get rid of him for the time being, until the pending efforts for effecting a temporary county organization could be carried out, the Hugoton supporters caused him, in August, 1886, to be arrested, upon a warrant charging him with libel. Bail was refused and he was placed in the charge of several guards and taken out of the state and into what is now Beaver county, Oklahoma. To account for his absence it was given out that he had been induced by the payment of a sum of money to abandon his fight and had gone into the territory on a hunting trip. This report was not for a moment credited by his friends. A party was organized to search for him. On their way south they found a note secretly penciled by Wood and thrown upon the trail. Thus assured that they were upon the right track, they increased their speed and shortly overtook and surrounded Wood's captors, who yielded to superior numbers and surrendered. The tables thus being turned Wood organized a triumphal march to Garden City, metaphorically dragging his kidnappers at his chariot wheels. Civil and criminal proceedings were begun against the Hugoton leaders upon charges of conspiracy but were permitted to slumber and were finally dismissed without trial.

The proceedings brought to prevent the organization of Stevens county would probably have been successful but for a counter movement. In the legislative session of 1887 an act was passed legalizing the steps already taken, and the effect of the pending litigation was thus evaded. The fight for the county seat then proceeded, Hugoton being temporarily successful. The next disturbance grew out of an election to vote bonds for a railroad which Woodsdale favored and Hugoton opposed. In a meeting held in May, 1888, at a neutral point -- Voorhees -- for the discussion of this issue, a minor altercation took place, in which Sam Robinson, the, marshal of Hugoton,

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assuming to act as a peace officer, struck the under sheriff with his revolver. Nothing more serious took place at the time, but within a few days a warrant was issued against Robinson, charging him with assault and battery, and placed in the hands of Ed Short, the marshal of Woodsdale, and a constable as well. Short proceeded to Hugoton where he seems to have attempted to arrest Robinson. At any rate, the two men engaged in a gun fight in which each emptied his revolver without injury to either.

The railroad bond election had in the meantime been held, but the vote had not been canvassed. There was a dispute as to the regularity of the returns in one precinct, and it was felt that a conflict could hardly be averted at the time of the canvass unless protection should be afforded from the outside. The sheriff wired Gov. John A. Martin asking that militia be sent to preserve the peace. Brig. Gen. Murray Myers was at once sent to the scene of hostilities to examine and report. He found each town a fortified camp, the inhabitants fully aroused and ready and willing for a general engagement. Believing that bloodshed was imminent he brought on two companies of militia and disarmed the belligerent forces. The canvass of the election returns having been completed, the excitement having subsided, and the intended arrest and prosecution of Robinson having apparently been abandoned, the militia was withdrawn, having been in camp from June 19 to June 24. In writing to Sam Wood as mayor of Woodsdale, General Myers took occasion to comment upon the unwisdom of the placing of the warrant for Robinson in the hands of Short.

A month passed by without fresh incident and it might well have been supposed that there was no danger of further trouble. But on July 22 Short was at Voorhees and there learned that Robinson was with a picnic party in the neutral strip. Returning to Woodsdale he procured the assistance of several friends and started in pursuit of him. The two parties came together, but Robinson mounted a race horse and made a temporary escape. Short and his companions followed and succeeded in surrounding Robinson, but feeling the need of more help in effecting his capture sent to Woodsdale for reinforcements. [John M.] Cross, the sheriff, with four others, responded to the call and started in search of Short but, not finding him, stopped for the night at a haymaker's camp near Wild Horse Lake, a depression in the prairie in which storm waters gathered. In the meantime, Robinson's friends had reached Hugoton, organized a rescue party, and returned to the strip in quest of him. He,

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having escaped the vigilance of Short, met and joined the rescuers. Shortly afterwards they came upon the camp where Sheriff Cross and his men were asleep. Then ensued what came to be known as the Haymeadow Massacre, in which four of the Cross party were killed and the fifth wounded and left for dead. According to the Hugoton account, this was the result of a running fight, but by the report of Herbert Tonney, the one member of the Woodsdale party who survived, which was corroborated by the haymakers and seemingly by all the known circumstances, the victims were taken by surprise, captured, and shot down in cold blood. Nothing can be said in extenuation of the act, yet it is but fair to add that the murdered men were not clean handed. The encounter was primarily of their own seeking, and in that sense they were the aggressors. They had followed Robinson into the neutral strip with the unlawful purpose of kidnapping him, for obviously the warrant in the hands of Short conferred no authority to make an arrest outside of the state. Moreover, apart from any technical consideration, the effort to follow up the prosecution of Robinson lacked the appearance of good faith, for if the interests of society were thought to require it, the time to have undertaken it was while the militia were still on the ground and the power of the state could have been had in support of any laudable endeavor to enforce the law.

The militia was again called out and the community practically placed under martial law. Arrests were made and then the remarkable fact was developed that apparently no court had jurisdiction of the crime. The territory within which it was committed, popularly known as "No Man's Land," had seemingly been overlooked in providing for the administration of justice in the federal courts. Colonel Wood charged himself with the duty of bringing the assassins of his associates to trial. He devised a reasonable theory for finding jurisdiction in one of the federal courts of Texas. It was not necessary to test that theory, for congress by new legislation placed the jurisdiction there. In time a trial was had, ending in a conviction. This result was due in a large degree to the persistence and energy of Wood, acting as a voluntary assistant to the prosecuting office. Upon review the jurisdiction of the trial court was upheld, but a reversal was ordered by reason of a manifest error which can only be accounted for by supposing that the judgment of the attorneys in charge of the prosecution was clouded by their zeal. At the time of the homicide the then

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attorney general of the state, S. B. Bradford, [4] made a personal investigation of its circumstances, visiting for that purpose Stevens county and the haymeadow camp, and getting all the information possible at first hand. He made a written report of his conclusions to the governor in which he expressed the unqualified opinion that the killing was a deliberate murder. Mr. Bradford's term of office having expired, he was retained to assist in the defense. He was not called as a witness by the defendants, having indeed no such personal knowledge of the facts as to make him competent to testify. But the prosecution called him for the government and asked him if he had not made such an investigation and report as those just described. He replied that he had, but that the report was based upon hearsay evidence which he later discredited. Upon this obviously insufficient foundation the prosecution introduced in evidence the report to the governor made by Bradford as attorney general. Upon the hearing in the supreme court it was confessed that this proceeding was error requiring a reversal and a new trial was ordered. The attorney general of the United States became convinced that the district attorney had at least lacked discretion in the conduct of the case -- that he had given too much leeway to Colonel Wood in its management, and he was on that account removed. Energetic and finally successful efforts were then made to have the prosecution discontinued, and so far as the courts were concerned the matter ended there.

The next personage to become involved in the imbroglio was Theodosius Botkin. [5] In 1889 six counties in the southwest corner of the state, into only one of which a railroad ran, were erected into a judicial district. Gov. [Lyman U.] Humphrey appointed Botkin judge on the score of old personal friendship, in spite of protests made on the ground of his well-known tendency to over indulgence in drink. His election followed in the same year, Sam Wood being one of his supporters. Botkin had been concerned in the county-seat contest in the neighboring county of Seward, but was not directly involved in the Stevens county trouble. His unpleasant re-

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lations with Wood began in 1890, either through Botkin's candidacy for congress or through a disagreement in court, or through both of these matters. Botkin was intolerant of opposition. Wood was, in a way, rather easy-going but would fight and fight hard in self defense. The character of the men was such that it was inevitable that the feeling between them should become intensely bitter. Botkin was a man of much native ability and good education. He was lawyer of no little strength. He understood legal principles and mew how to apply them. Granting that he was not corrupt, and even leaving out of account the fact that he was a drunkard and a gambler, his administration of the judicial office was foredoomed to failure. He was by temperament a partisan. He could scarcely witness a dog fight without taking sides. He could not hear the most ordinary law suit, even if disinterested at the start, without becoming biased upon one side or the other. And as in each of the counties composing his district the county seat controversies had left bitter animosities, he straightway become involved in factional quarrels.

Next to his instinct of partisanship Botkin's most unfortunate characteristic was the extent to which he carried the doctrine of judicial notice. The accepted formula is that courts will take cognizance without proof of whatever is a matter of common knowledge. Judge Botkin did not stop at this. He took notice not only of all that was publicly known but of much that was only privately suspected. If he failed to take official cognizance of everything that occurred in his district the omission was more than compensated for his taking judicial notice of much that never did occur. He was continually making orders based upon what he himself stated to be vague rumors. Upon such information he would order the county attorney to institute prosecutions, arraign offenders before himself to answer as for contempt, disbar attorneys, and imprison citizens for what amounted to lese majesty. The newspaper man who ventured any criticism of his conduct, on or off the bench, was likely to be haled before him to answer for his temerity in a summary proceeding peculiar to that jurisdiction -- a curious blend of court martial, examination for contempt, and prosecution for criminal and libel. The lawyer who with reasonable vigor tried a case before him for a client with whom the judge was out of sympathy was deemed to have achieved a triumph of forensic skill and diplomacy if he escaped being committed to the county jail.

Naturally enough Botkin soon reduced his district, already suf-

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ficiently distracted by the tumultuous confusions of local war, to a state of anarchy. Yet, strange to say, he attracted adherents even among some of the most respectable residents. In every community there was a sharp division into factions. But this division was no longer along county seat lines. It was into Botkin and anti-Botkin parties. Sam Wood gradually came to be regarded as the anti-Botkin leader, and against him were directed all the influences controlled by Botkin. Attempts were made to arrest him at Topeka upon charges lacking in any reasonable pretense of good faith -- but, as Wood no doubt conscientiously and not unreasonably believed, for the purpose of taking him among his enemies with a view to his assassination. Then came the session of the legislature of 1891, Wood being officially clerk of the judiciary committee of the house and actually the ruling spirit of that body, the majority of which were populists, as he was. Botkin was impeached, and the impeachment was tried by a senate all members of which, save two, were Republicans. Although a majority voted for conviction, the requirement of a two-thirds vote to convict caused a failure of the prosecution. Botkin was acquitted but not vindicated.

Aside from the general accusations of drunkenness and petty tyranny, the principal charge against him was based upon his conduct with reference to the finances of the city of Springfield. Bonds of that municipality had been issued for the construction of water works. The bonds had been sold and the proceeds partially expended for that purpose. Disputes arose with reference to the validity of a part of the proceedings in relation to the matter. In March, 1890, Judge Botkin made a written order reciting that complaints of the conduct of the city council had come to his notice, and that it had been represented to him that the county attorney had refused to institute proceedings against them and requiring that officer to do so at once or to show cause why his office should not be declared vacant and he himself be attached for contempt. Shortly after this the county attorney began an action to enjoin the city officers from recognizing in any way the validity of the bonds referred to. A temporary injunction was allowed. The city at the time had on hand cash to the amount of about $7,500. According to his own statement, Judge Botkin, having heard street talk to the effect that his injunction might be disregarded, feared that this sum would be improperly expended if vigorous measures were not taken to prevent. He, therefore, upon his own motion made an order in the pending action appointing a receiver to take charge of this fund.

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A few weeks later the action was dismissed, "with prejudice," and the receiver was discharged, having in the meantime paid out with the approval of the court over $5,250 for attorneys' fees for which no visible services had been rendered either to the city or to the receiver. Such a transaction was obviously incapable of palliation or excuse, but a number of senators justified their votes against conviction by attributing it to bad judgment, free from any wrongful motive. Comment would be superfluous.

During the session of the legislature Wood had been arrested upon a charge of bribery and had given bond for his appearance at the term of court in Stevens county, which began June 23, 1891. About the middle of the forenoon of that day Wood, accompanied by his wife and a Mrs. Carpenter, drove into Hugoton and to the door of a church where Judge Botkin was holding court. An adjournment was taken until two o'clock just before Wood reached the building. Wood entered it for the purpose of examining some records. While he was inside the judge and most of the court attendants left. Jim Brennan walked out at the front door and stood waiting until Wood came out, when he pulled a revolver and shot him in the back. Wood started to run around the corner of the building. Brennan followed him and shot him again in the back. All this was in the presence of Mrs. Wood and Mrs. Carpenter. A crowd gathered quickly. Wood was carried into the church, where he died in a short time. Brennan had been a witness for the defendants in the trial of the haymeadow murderers, and his evidence had been sharply criticized by Wood in his argument to the jury in that case. This was given out as the occasion for the assassination. Personal enmity doubtless had a place in inspiring this atrocious murder, but there were many circumstances that tended to lend probability to the theory, which was generally accepted by Wood's friends, that it was the result of a wide-spread conspiracy to which Botkin was actively or passively a party. Brennan was taken into custody, but only a half-hearted attempt was made to prosecute him. It was realized that it was impossible to find a sufficient number of qualified jurymen for the trial of the case in Stevens county. Only a few hundred men were eligible for jury service there and these, almost without exception, had been identified with one or the other of the contending factions. But had the fact been otherwise, had the county had a dense population of disinterested and dispassionate citizens, the very publicity of the butchery would still, under the curious application sometimes made of the law in this state, have

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disqualified all of them that had sufficient intelligence to form an opinion. After one or two futile attempts at a trial Brennan was discharged.

In 1911 another effort was made to bring him to trial, the increase in the population of Stevens county by immigration seeming to justify a belief that a qualified jury could be obtained there. He was arrested upon extradition papers in Oklahoma, but was released on habeas corpus upon the ground that having submitted himself to the process of the Kansas courts and been discharged he was not a fugitive from justice. The soundness of the decision is open to question, but it is not without support in the authorities.

The miscarriage of justice resulting from a failure to procure a jury naturally added to the popular distrust of the machinery of the law. It was believed by a large proportion, if not by the majority, of the people of the six counties composing the district that the judge was capable of every crime in the calendar and guilty of most of them, and that he was supported in his iniquity by the state administration. It had been seen that murder could be done in his district, almost in his presence, with impunity if not with judicial sanction. A reign of terror followed. No man felt his life or his property to be safe. No man dared appeal to the law for the protection of either. Just what plots and counter-plots were formed will probably be left to a later generation to discover. Rumors were rife of oath-bound bands leagued :for the destruction of Botkin. In December, 1891, word was brought to him of a definite plan to kill him while on his way to hold court at Springfield in the following month. It came through one who professed to have taken part in the deliberation of the plotters. It received scant credence, partly because many similar reports had proved unfounded, partly because of the emotional character of the informer. Nevertheless, it undoubtedly resulted in saving Botkin's life. On the 5th of January, 1892, court was to be opened at Springfield. The judge lived some three miles south of the town. By reason of the warning mentioned the sheriff with a posse was sent to reconnoiter the route thither just about daybreak. From a ravine lying near the road the party was fired upon and Sheriff [Sam] Dunn was killed. The killing was not through mistake. Although it is beyond doubt that Botkin was the victim primarily sought, Dunn himself was extremely obnoxious to the anti-Botkin element and was unquestionably slain on that account. Other members of the party could easily have been killed or captured, but were permitted to escape.

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Botkin immediately turned his residence into a military camp. Pickets were thrown out, arms accumulated and a state of siege was established. All persons approaching were halted, examined -- and, if it was thought advisable, searched. None was permitted to pass the outposts except after giving a satisfactory account of himself and his errand. Botkin wired the governor for assistance. Militia was promptly sent to his relief. He cursed the authorities for sending him soldiers instead of merely furnishing him with guns. His conduct for a few days led those who saw him to entertain the gravest doubts of his sanity. His words and actions were hysterical. Yet there was method in his madness. After the presence of the militia had apparently restored peace and removed the fear of further violence, the officer in command suggested that as he was there for the purpose of protecting the court, and as the protection offered was ample, there was no reason why the business of the term should not be proceeded with. But Botkin stubbornly refused to open court and as stubbornly declined to give any reason for delay. The reason which he afterwards assigned was this-a contest was pending for the office of sheriff; the candidate favored by Botkin was the contestor, his opponent having received the certificate of election; but it was understood that a decision was shortly to be rendered and that it would be in his favor. Judge Botkin's purpose in postponing from day to day the opening of court, as expressed to his friends, was in order to give his candidate time to get from the contest court a certificate of election in order that he might be in a situation to proclaim the opening of the district court and thereby obtain the benefit incident to being recognized as the de facto sheriff. Arrests were made of men supposed to have taken part in the killing of Dunn, but the impossibility of obtaining a jury led to the discontinuance of the proceedings. There are men still living in the vicinity who avow personal knowledge that the purpose of the ambuscade was to take the life of Botkin, who justify such purpose, and are at little pains to deny their own participation in it. Botkin came to Topeka shortly after the new homicide and, realizing that he was generally felt to be in a large degree responsible for this and other recent troubles, issued a formal statement justifying his acts, which bore a distinct family resemblance to the traditional defense made by Jim Lane to the charge of the murder of Jenkins. The statement in type occupied two newspaper columns and was little

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more than a labored attempt to prove that the widow of Sam Wood was with the party that killed Dunn.

Whether through fear of a more successful attempt upon his life, or by reason of pressure brought by his friends, Botkin concluded to resign, delaying only until thirty days before election, in order that his successor might hold for a year by appointment instead of only until the next general election. He removed to Hutchinson and was a member of the Kansas house of representatives in the session of 1897. He seems to have been regarded by his colleagues in that body as an elderly gentleman of mild manners and inoffensive disposition. How far the continuance of the condition of strife, disorder and crime throughout the district, which originated in the county seat quarrels, was due to his personal influence can be judged from this -- from the hour of his retirement there has been no more peaceable and law-abiding community in the state of Kansas or out of it, than that of the old thirty-second district. There and in the neighboring counties the passions excited in those troublous times have passed away. There may still linger here and there traces of the suspicion and hatred then engendered, but they are not obtruded. The effect of the debauchery of the public conscience then accomplished may not have wholly disappeared, but its display is rare.

The era of turbulent strife ended as suddenly as it began. Where the subsidence of the struggle found the county seat located otherwise than in its natural place a change was later effected practically without opposition. In Hamilton county at one time Coolidge, Kendall and Syracuse each claimed to be the county seat, and each maintained a full set of county officers and assumed to transact the county business. One who wished to pay taxes, or to begin a law suit, had to guess at his peril which was the de jure or the de facto government. Syracuse, the central town, was obviously the only place where the public would have been satisfied to have the county seat permanently established, and there it was finally placed. In Kearny county while the fever was raging Hartland succeeded in winning the coveted prize from Lakin; but after conditions had reverted to the normal a change was made by an overwhelming vote. In Gray county Soule's money ravished the county seat for Ingalls. In their haste to get it back the Cimarron people proceeded without a strict regard for the legal requirements and omitted some of the conditions precedent to a valid election. Nevertheless an election was held and the records and offices were transferred in accordance with the vote cast. The Ingalls contingent carried the matter to the

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district court but were denied relief. On appeal the decision was reversed, but in the meantime interest in the matter had become so lax that no one ever undertook to follow it up, and Cimarron has ever since remained the de facto county seat by mere common consent, although de jure the title is doubtless still in Ingalls. In Seward county Springfield won in the bitter fight there waged, but when Liberal, from its position on the railroad, became the business center of the county it was soon naturally and inevitably made the center of government as well.

It is said that assassination never changed the course of history. It did not do so in this case. Probably no single county seat in any of the counties in the region referred to is now in a different place from what it would have been had there been no boom, no frenzy of town building, no controversy, no bribery, no frauds, no murder. The losses of life and property incurred in the effort to influence such locations were net. No tangible beneficial results to any one remain to be placed against them. The outrages upon humanity and decency were ineffectual, and this is fortunate, for it makes it easier to regard the whole disgraceful episode as the hideous nightmare that it was and to speed it on its way to oblivion.

Notes

1. Justice Henry Freeman Mason was born in Racine, Wis., February 17, 1860. He was graduated from the University of Wisconsin in 1881. In 1886 he came to Kansas and opened a law office in Garden City. After serving two years as city attorney he was elected county attorney of Finney county in 1889 and served four years. He represented the county in the legislatures of 1899 and 1901, serving as chairman of the judiciary committee in the latter year. In 1902 he was elected to the supreme court of Kansas and remained in that body until his death on May 4, 1927. In 1919 he was awarded the degree of doctor of laws by Washburn college. -- Twenty-sixth Biennial Report, Kansas Historical Society, p. 83. [The paper printed here was read a number of years ago by Justice Mason before the Saturday Night Club of Topeka, without any thought of publication. It is published through the courtesy of Mrs. Henry F. Mason, of Topeka.]
2. Asa T. Soule of Rochester, N. Y., manufacturer and financier, was brought to Kansas by J. W. and G. G. Gilbert. He died in 1893.
3. Samuel Newitt Wood was born at Mount Gilead, Ohio, December 30, 1825 and removed to Kansas in July, 1854. He settled on a claim near Lawrence and immediately became an acknowledged leader of the free-state party. In 1859 Mr. Wood went to Chase county, and was sent to the territorial legislature from there in 1860-1861. In 1861 he was a member of the first state senate, and was four times a member of the state legislature. Mr. Wood established the first newspapers at Cottonwood Falls and Council Grove, and two newspapers in Woodsdale. He was killed on June 23, 1891.
4. Simeon Briggs Bradford was long prominent in Kansas politics. In 1875 he represented Osage county in the legislature and in 1880 was elected county attorney of Osage county. He was elected attorney-general of the state in 1884 and was reelected in 1886. In 1898 he became a United States commissioner in the Indian territory. He died at Ardmore, I. T., April 2, 1902.
5. Theodosius Botkin was born in Clarke county, Ohio June 25, 1846. In 1865 he came to Kansas, settling in Linn county. He was admitted to the bar in 1875 and served as probate judge of the county and police judge of Mound City. He was appointed judge of the thirty-second district in March, 1889, and removed to Stevens county. He resigned this judgeship October 11 1892 and settled in Hutchinson. Reno county elected him to the state legislature in 1896. In 1901 he moved to Salt Lake City, Utah. He was serving as U. S. consul at Campbellton, New Brunswick, Nova Scotia, when he died, May 27, 1918.