1904 History of Cherokee County Kansas


CHAPTER IV, part 3.


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The jury returned a verdict for plaintiff, $500; and the defendants now move the court to set aside the verdict and grant a new trial for error of law in the said instructions to the jury. The particular excepted to is that part of the charge in reference to exemplary or punitive damages. The defendants claim that as the compensatory or actual damages sustained by plaintiff were but nominal, he can not recover exemplary damages. In support of this rule counsel have cited two cases: Stacy versus Portland Publishing Company, 68 Maine 287; and Maxwell versus Kennedy, 50 Wis. 647.

The former case was an action for libel, and the latter for slander. In the action for libel, the trial court refused to instruct for plaintiff for exemplary damages eo nomine, but told the jury they might add as actual damages for any elements of aggravated injury occasioned by the express malice of the person who published the article complained of.

The jury gave the plaintiff one dollar damages, and the court refused to reverse the case and remarked, among other things, as follows: "Taking the case as it resulted, we are satisfied that the plaintiff has sustained no injury in this respect. The legal signification of the verdict is, either that there was no actual and express malice entertained toward plaintiff, by the defendant's agent, or that, if there was, it did the plaintiff no injury.

In the slander case, the trial court instructed the jury that certain mitigating circumstances shown by defendant should be considered by them in reduction of compensatory damages only, and not exemplary damages. The appellate court held this to be error; that no distinction should have been made between the two classes of damages in respect to mitigation. Both cases support the rule contended for by these defendants, in case of this kind. Whether that doctrine may generally be regarded as accepted law in such cases. I have not sufficiently examined the books to form an opinion; but if such is the fact. I do not think that the rule can be applicable to a case of this kind.

In Day versus Woodworth, 13 How., 371, the Supreme Court laid down the law as follows: "It is a well established principle of the common law, that in actions for trespass and all actions in cases for tort, a jury may inflict what are called exemplary, punitive or vindictive damages upon a defendant, having in view the enormity of his offense, rather than the measure of compensation to the plaintiff. * * * By the common, as well as by statutory law, men are often punished for aggravated misconduct or lawless acts, by means of a civil action, and the damages, inflicted by the way of penalty or punishment, given to the party injured."

In Milwaukee Railroad Company versus Armes, 91 U. S., 493, the court, speaking of damages, says: "In ascertaining its extent the jury may consider all the facts that relate to the wrongful act of the defendant, and its consequence to the plaintiff; but they are not at liberty to go farther, unless it was done wilfully or was the result of that reckless indifference to the rights of others which is equivalent to an intentional violation of them. In such case the jury are authorized, for the sake of public example, to give such a dditional damages as the circumstances require. The tort is aggravated by the evil motive, and on this rests the rule of exemplary damages."

The Supreme Court of Kansas has held, in a case of trespass quare clousum fregit, that exemplary damages may be recovered where the compensatory damages are but nominal. Hefley versus Baker, 19 Kan., 9.

Southerland on Damages, Vol. I, pages 724-748, states the rule, in the following language: "If a wrong is done wilfully; that is, if a tort is committed deliberately, or by wilful negligence, with a present consciousness of invading another's rights, or of exposing him to injury, an undoubted case is presented for exemplary damages. One who does an act maliciously must be careful to see that the act is lawful; otherwise, though the actual injury may be slight, the exemplary damages may be considerable."

In the case at bar the plaintiff is deprived of a clear legal right, through the wrongful and wilful conduct of the defendants. They alone have the power to levy the tax, and it is their duty, under the law and the command of the court, to levy it. By no other means can the plaintiff obtain his rights, and it cannot be denied that the action of the defendants is wrongful and oppressive. It was held by the court that the plaintiff's compensatory damages are but nominal, as he has not lost his debt, but has only suffered delay in its collection. But it is in the power of these defendants, and their successors in office, by defying the law, to delay him indefinitely in its collection. It is said that the defendants can be, and have been, punished for contempt in refusing to obey the writ of mandamus. That is true; but that punishment is not to be reduced to the wrong done the plaintiff, but it must rather vindicate the dignity and authority of the court.

The defendants have been committed to the custody of the marshal, for imprisonment, until they comply with the demands of the writ; but in a community where the popular sentiment is all adverse to levying the tax, it is likely that the imprisonment of the defendants, like the plaintiff's compensatory damages, would be but nominal. A tax-ridden people are deserving of sympathy, especially when the burden has been fraudulently imposed, though it was done by the dishonesty of their own agent; but neither courts nor communities can afford to deny to any orator the exact letter of his legal rights, and it is not a pleasant or consistent thing to inveigh against nullification of the laws and cry out "law and order," and, in the same breath, applaud nullification, lawlessness and disorder.

The motion to set aside the verdict and for a new trial must be overruled.

On the back page of the pamphlet Mr. Wilson quotes a charge which Judge Krekel, of the United States Circuit Court of the Western District of Missouri, gave a grand jury, at Jefferson City, on the subject of repudiation. The charge is quoted, no doubt, in the hope that the people of Cherokee County who might read his pamphlet would be indirectly warned against any further attempt at obstructing the processes of the court. The charge of Judge Krekel is here given:

UNITED STATES CIRCUIT COURT, WESTERN DISTRICT OF MISSOURI.

INSTRUCTIONS TO THE GRAND JURY.

Resistance or interference with the execution of the laws of the United States, in many instances, takes the shape of interfering with the processes of the courts; and as offenses of the kind come within your jurisdiction, it will be your duty to examine and pass upon these cases that may come before you.

In order to commit an offense of the class referred to it is not necessary that the offender should present a gun, a pistol, or by any other direct means put the officer intrusted with the execution of the law or process of court into terror, but it may be done by indirect means, such as assembling in large numbers, acting and cooperating and by means of threats, or otherwise to overawe the officer and interfere with the discharge of his duty.

Thus a large number of persons may assemble and, by means of combinations and agreements not to bid for property offered for sale, and by threatening those who come for the purpose of bidding, with bodily harm, cause them not to bid. All such means the law denounces as interfering with its execution, and not to speak of the possible individual liability to those thus damaged. The law will not permit the judgments of its courts to be defeated by such means.

To tolerate such interference, without punishment, would be aiding in bringing about a demoralization which, while today may demonstrate its power for evil in resisting processes of the court, will to-morrow resist the government in its proper functions, not to speak of the utter disregard implied as to individual rights. The highest duty of the citizen, and his greatest interest, is that the law be obeyed and its violators punished, for on this he must ultimately depend for the protection of his person and property.

Jeremiah Luckey, of Salamanca township, has recently sent me a number of old papers relating to early affairs in Cherokee county. Among these is a "Notice to Settlers on the 'Joy Purchase' of the Cherokee Neutral Lands." I here give it in full:

CHEROKEE NEUTRAL LAND OFFICE.

GENERAL AGENCY.

FORT SCOTT, KANSAS, December 18, 1868.
Notice is hereby given that all persons who have made settlement and continued to reside on the Cherokee Neutral Lands, between the 11th day of August, 1866. and the 10th of June, 1868, will be permitted to make entry at this office, of the lands occupied by them June 1O, 1868, and at the date of entry; that the same may be held secure from sale to other purchasers.

In order to prevent delay or detention of the settlers at this office, in making entry of their lands, we have arranged to receive proofs, by townships, commencing with those nearest this office, during certain days herein specified; and all persons failing to make such entry, before or during the time herein named, respectively, will be understoood[sic] as waiving all privilege to purchase at the proposed rates of Mr. Joy, unless it shall be shown, by satisfactory proof, that such delay was unavoidable. Only one witness is necessary, in addition to claimant's affidavit, to establish a claim for entry, such witness knowing that claimant resided upon the tract claimed, prior to June 10, 1868, of his continued residence thereon.

In case of transfer, the evidence must show that the purchaser has been an occupant since his purchase from such recognized claimant. As soon as the entries are closed the lands will be valued, and by the first of March, next, a schedule of prices prepared, so that contracts may be made with settlers after that date. No contracts will be made prior to that date, except upon such lands as are known to be occupied, or where the settler has waived his right, and then only under special instructions.

That portion known as "The Eight Mile Strip," being six miles off the south end of Bourbon County and two miles off the north end of Crawford County, towit: Townships 26 and 27, Ranges 21, 22, 23, 24 and 25, will be entered during December 21, 22, 23, 24 and 26, 1868. Township 28, Ranges 21, 22, 23, 24 and 25, will be entered before or during December 28, 29 and 30, 1868, and January 4, 5, 6 and 7, 1869. Township 29, Ranges 21, 22, 23, 24 and 25, will be entered during or before January 8, 9, 11, 12, 13 and 14, 1869. Township 30, Ranges 21, 22, 23, 24 and 25 will be entered during or before January 16, 18, 19, 20, 21, 22 and 23, 1860. Township 31, Ranges 21, 22, 23, 24 and 25, will be entered during or before January 25, 26, 27, 28, 29 and 30, 1869. Township 32, Ranges 21, 22, 23, 24 and 25, will be entered during or before February 1, 2, 3, 4, 5 and 6, 1869. Township 33, Ranges 21, 22, 23, 24 and 25, will be entered during or before February 8, 9, 10, 11, 12 and 13, 1869. Township 34, Ranges 21, 22, 23, 24 and 25, will be entered February 15, 16, 17, 18, 19 and 20, 1869. Township 35, Ranges 21, 22, 23, 24 and 25, will be entered February 22, 23, 24, 25, 26 and 27, 1869.

Settlers must be prepared with the numbers of their lands, that there may be no unnecessary delay in preparing their proof
JOHN T. COX,
General Agent.

Among the papers sent me by Mr. Luckey is a circular addressed, "To the Voters of Cherokee County," and signed by "Many Voters." It is dated January 31, 1869, and it relates to the election then to be held February 16, 1869, for the purpose of ascertaining whether the people wanted the county seat to remain at Baxter Springs or to be moved to Columbus. I have elsewhere given an account of that election. The following is the circular, in full:

COUNTY SEAT CIRCULAR.

To the Voters of Cherokee County:
At the regular session of the Board of County Commissioners, held in January, last, a special election was ordered to be held on the 16th day of February, 1869, to vote upon the question of removal and permanent location of the county seat.
Under the law providing for the same, 603 petitioners, legal electors, were necessary in order for the board to call an election. The number of petitioners presented was 862. The petition of one township, signed by forty voters, did not get in, making the entire number of electors calling for the election over 900. The total number of votes cast in the county, at the presidential election in November, last, was 1,349, showing that a majority of 447 voters in the county are not satisfied with the county seat being located, as it is at present, on the extreme border of the county, or rather out of it. Notwithstanding the large majority in favor of a central location, a desperate effort is being made by the people of Baxter Springs again to thwart the will of the people. The most unblushing falsehoods are being circulated, hoping to divide the people and cause them to vote for different points. Lies that ought to blister the tongue of any person uttering them are unblushingly told. For instance, that the people of the west side of the county are "pulling the wool over the eyes of the people on the east side;" that they are going to work for Millersburg instead of Columbus. The people of the west side emphatically brand the assertion as basely false. They have never asked for Millersburg to be a point and shall not vote for it. Their vote, as at the last election, will be a unit for Columbus. They waive all selfish and personal preference, and they ask the people of the eastern, northern and southern and all other parts of the county, to join with them and, with an eye single to the prosperity and well being of the county, vote for Columbus. It being the geographical center of the county, justice, economy and expediency demand it. The prosperity of the whole county is our prosperity. The county seat rightfully belongs to the whole people of the county, and not to a few; and it is the right of every tax payer to demand that its location be central.

It is urged by the people of Baxter Springs that the question ought not to be brought again so soon; that it is a big expense to the county, and all that sort of thing. Does it not come with poor grace for them to cry "quits," after having so shamefully and rascally stolen the county seat, as it were. No man denies that Baxter Springs stuffed the ballot box, to the number of 4,000 votes, last May, when the question of moving the county seat was up. They do not deny it themselves. They admit it; and they plead, in justification, that other parts of the county did so; and, in order to be even, they did the same. But let us examine a little farther, in regard to the expense to the cou nty, in the proposed change in the location of the county seat. The greatest item of expense in the county, amounting to many hundreds of dollars, is in having to send our prisoners away for safe keeping, as we have no jail of our own. The amount we paid last year, for this item, would build us a jail that would answer, for the present. A seemingly natural answer would be, "Why don't you build one?" There is where the trouble lies. The people are not willing to be taxed to build one, or any other county building, in a place that is not, and never can be made, the permanent location of our county seat. Its location where it now is, is a mere question of time; and a very short time, at that. If it is not voted away, the probabilities are that we shall have to go into another state before long, for our county seat. It is already reported and believed that the treaty now pending for the Indian Territory south of us, out of which a new state is to be formed, will throw Baxter Springs out of Kansas. Such a result is not at all improbable. The very fact that no provision is being made for the sale of the government strip indicates that it is in the new state. * * *

One thing more the county should know: The offices of the county clerk, county treasurer and register of deeds are all in the barroom of a restaurant, the only room that could be had. Oh, shame, where is thy blush! All this, remember, is in a city of the second class. May the good Lord have pity on cities not of the second class!

In view of all the facts, we earnestly appeal to the voters throughout the county once more to stand up and demand their rights. The right to have the county seat at the center of the county is your right. See that you reclaim it at this election. Turn out and let us vote a unit for the county seat at Columbus. If we turn out our full strength, this vexatious question will be settled for all time to come. Just so long as the county seat is claimed and held at the edge of the county, just so long will we be harassed[sic] with special elections. Strife, animosity, ill will are sure to exist.

Remember the day, the 16th of February, and the style of the ticket, For County Seat, Columbus."
MANY VOTERS.

The undersigned proprietors of the claims upon which is laid the town site of Columbus, do propose to donate to the county, in the event of the county seat being located at Columbus, all lots necessary for county buildings, grounds for seminary, cemetery and fair grounds, said lots and sites to be selected by the Board of County Commissioners; also immediately to furnish a building that will answer for county offices, free of expense until such time as building can be put up.
J. N. LEE,
F. FRY,
H. SCOVELL,
DR. J. H. WALKER.


NOTE.--Elsewhere, in giving an account of the election concerning which the foregoing circular was put out, it is shown that there was a lot of ballot-box stuffing done in favor of Columbus. I have given this circular, for the purpose of showing how high the feeling was concerning the location of the county seat. I am glad it can truthfully be said that the relations between Columbus and Baxter Springs, while not altogether as amicable as they will yet become, have so much improved that the old troubles have almost been forgotten.--Editor.

NOTE.--Since writing the foregoing chapter I have received a copy of "Dodge's Sectional Map of the Cherokee Neutral Lands," which L. Conklin, of Pleasant View township, kindly sent the publishing company. The map is much worn, and it can not be reproduced. I desire to assure Mr. Conklin that his kindness is appreciated.--Editor.


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