N.D. Sup. Ct.: A Century of Advances: Ch. I.B. A Capitol Railroad Job

I. Leaving the Nineteenth Century
. . .
B. A Capitol Railroad Job

Capitol at Bismarck Amid much legal and political maneuvering, one historically significant decision of the Supreme Court of Dakota Territory approved relocating the territorial capitol from Yankton to Bismarck.

The 1883 Dakota Territory Assembly acted to remove the capitol from Yankton by authorizing a named commission to select its new site.⁽⁹⁾ Governor Nehemiah G. Ordway signed the act into law on March 8, 1883.⁽¹⁰⁾ The act directed the commission to "select a suitable site for the seat of government of the Territory of Dakota, due regard being had to its accessibility from all portions of the Territory, and its general fitness for a capital, when at least . . . $100,000 . . . shall be paid or guaranteed in money" by the town selected, and it had also conveyed at least 160 acres of land for the "capital buildings" and for other development.⁽¹¹⁾

Each member of the relocation commission had to file a $40,000 bond approved by a justice of the Supreme Court.⁽¹²⁾ The commissioners had to qualify and to meet at Yankton to organize within thirty days after the enactment, and they had to select the new location by July 1, 1883.⁽¹³⁾

A Yankton group soon challenged the legality of the act in court in an apparent attempt to delay action by the commission until after the July 1 deadline for its decision.⁽¹⁴⁾ Acting in his district court capacity, Chief Justice Alonzo J. Edgerton granted a temporary restraining order against the commission.⁽¹⁵⁾ But the commissioners all somehow evaded service of process long enough to qualify before Justice Jefferson P. Kidder and to file their bonds with the territorial Treasurer at Yankton.⁽¹⁶⁾ The commissioners then discreetly boarded a special train at Sioux City, and organized on it while stopped in Yankton.⁽¹⁷⁾ The commission thus timely began its work.

At the request of Yankton forces, Chief Justice Edgerton issued a quo warranto writ near April 3, 1883, to determine whether the capitol- relocation commission law was valid.⁽¹⁸⁾ Then, too, a territorial grand jury began probing allegations of bribery and corruption of the legislators who passed the capitol-relocation law.⁽¹⁹⁾ After the commissioners appeared before Chief Justice Edgerton on May 2, he set their civil case for trial during a special court term at Yankton scheduled to begin July 2, the day after the commission had to complete its work.⁽²⁰⁾ Also, May 8, the grand jury indicted many legislators for bribery and corruption on the capitol-relocation act.⁽²¹⁾ "No warrants, however, were ever issued for their arrest."⁽²²⁾

"Before making its choice, the commission visited many aspiring towns. It was entertained extravagantly at Bismarck."⁽²³⁾ The commission met at St. Paul, Minnesota, during the last days of May to make its decision, and then traveled to Fargo in Dakota Territory.⁽²⁴⁾ There, on June 2, they announced their selection of Bismarck for the new capitol.⁽²⁵⁾ "The Northern Pacific [Railroad] furnished the required 160-acre tract, . . . [and i]n September, 1883, Henry Villard, president of the Northern Pacific, laid the cornerstone of the new capitol."⁽²⁶⁾

Meanwhile, on July 25, Chief Justice Edgerton began hearing the quo warranto case against the commissioners.⁽²⁷⁾ He finished the trial on July 28 and, on August 27, decided against the commission.⁽²⁸⁾ He ruled the commission members were appointed illegally, and ousted them from office.⁽²⁹⁾ He did not file a written opinion then, gave no reasons, and really said nothing about the legality of relocating the capitol.⁽³⁰⁾

The commission appealed Chief Justice Edgerton's ouster decision to the Supreme Court of Dakota Territory, which heard it on May 15, 1884.⁽³¹⁾ "The case was fought primarily on . . . [whether] the Territory Assembly had . . . authority to delegate its power to the capital com-mission."⁽³²⁾ Barely a week later, on May 23, 1884, a three-justice majority of the Dakota Supreme Court reversed Chief Justice Edgerton's judgment and directed the trial court to enter judgment on the pleadings upholding the commissioners.⁽³³⁾

The opinion by Justice Church for the majority was filed nearly four months later on September 20, 1884.⁽³⁴⁾ The majority ruled that the relocation act was a lawful delegation and exercise of legislative authority that had properly designated the commissioners by name.⁽³⁵⁾ The decision meant that the capitol of Dakota Territory had been lawfully moved to Bismarck.⁽³⁶⁾ "The Dakota Supreme Court, however, continued to meet at Yankton as required by Territory statutory law."⁽³⁷⁾

Not surprisingly, Chief Justice Edgerton, in reviewing his own decision, wanted to affirm it and so dissented.⁽³⁸⁾ The majority included two justices appointed after the enactment of the relocation law, Justices William E. Church and Cornelius S. Palmer, along with Justice Sanford H. Hudson.⁽³⁹⁾ "Governor Ordway . . . appears to have had a hand in the appointment of W.E. Church . . . . Ordway and Alexander McKenzie led the successful fight for the Governor's land speculating and county organizing partner--C.S. Palmer--to replace [deceased Justice] Kidder."⁽⁴⁰⁾

Accusations against Territory Governor Ordway, Alexander McKenzie, and others allied with the Northern Pacific Railroad, for improper tampering with the legislative and judicial processes, haunted the proceedings.⁽⁴¹⁾ Among the accusations were that Northern Pacific operatives had directly contacted individual justices in the short time after the Supreme Court had heard the appeal and before it quickly ruled.⁽⁴²⁾ "At least eight newspapers agreed that [Justices] W.E. Church, Palmer, and Hudson's votes in this case were controlled by the Northern Pacific Railroad's Ordway-McKenzie political machine."⁽⁴³⁾

The Yankton forces quickly appealed to the United States Supreme Court, but their efforts to advance the case on that docket were futile.⁽⁴⁴⁾ Their appeal inexplicably languished at the U.S. Supreme Court for five years without being heard or decided.⁽⁴⁵⁾ Statehood in 1889 eventually mooted and ended the litigation.⁽⁴⁶⁾

This "politically charged" litigation was "among the most important ever to have been considered by Dakota courts," Hyatt declared.⁽⁴⁷⁾ As he concluded, this decision of the Dakota Territory Supreme Court loomed large "became the removal of the capital from Yankton and the selection of Bismarck along the right way of the Northern Pacific Railroad . . . was one of the primary reasons for the division of Dakota at statehood."⁽⁴⁸⁾ The separate statehood of North Dakota thus may well be attributable to the political impact of the Northern Pacific Railroad and its allies upon the composition and conduct of the Supreme Court of Dakota Territory.⁽⁴⁹⁾

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Footnotes:

9. See Laws of Dakota ch. 104, at 217 (1883). Among the nine members named to the commission was Alexander McKenzie. See id. § 2.

Although McKenzie could scarcely write his own name, the Northern Pacific chose him as its political agent in northern Dakota, and he came to represent the powerful interests of Minneapolis and St. Paul, which held the region as a colony. McKenzie was to be Republican national committeeman for North Dakota until 1908; he was to become "Alexander the Great, Boss of North Dakota"; he was to die a millionaire and, even though he never held a state office, to be given a funeral in the state capitol at Bismarck.

Elwyn B. Robinson, History of North Dakota 200 (1966) (quoting Kenneth J. Carey, Alexander McKenzie, Boss of North Dakota, 1883-1906 (1949) (unpublished M.A. thesis, University of North Dakota)).

+ The act also named Burleigh F. Spalding, a Fargo lawyer, to the commission. He was later appointed and elected to the North Dakota Supreme Court (January 31, 1907-December 31, 1914). Justice Spalding's papers and his autobiographies are held by the State Historical Society of North Dakota. (SHSND MSS 10001). Included in Justice Spalding's materials are some original handwritten minutes of the commission's meetings, as well as some typed transcriptions of meetings.

Justice Spalding left two autobiographical sketches. A short one, consisting of 83 unnumbered pages, "was dictated in the spring of 1924, when the Judge was recovering from his first serious heart attack." (SHSND MSS 10001, box 1, folder 1) A later and longer one of 171 pages is entitled "Burleigh Folsom Spalding Papers," with no date given (hereafter "Justice Spalding Papers") (SHSND MSS 10001, box 1, folder 2). His account of the creation and conduct of the commission contributes many new details to the story of the capitol relocation.

This is Justice Spalding's explanation of how the relocation act evolved.

Before Mr. McKenzie got away from Yankton [while there to "secure[] the passage of a bill dividing the county of Griggs and creating the County of Steele"], that place was hit by a blizzard and the roads were blockaded for nearly three weeks, so McKenzie could not leave.
It appeared that the Northwestern and Milwaukee Railroads, which were covering most of South Dakota with their lines and locating most of the townsites had come to an understanding that eventually [the capital] should not be re-located until they had substantially determined upon their main lines of railway and their townsites. They would then agree on a location for the capital and take the steps necessary to secure the change. In some way the members of the legislative assembly were informed of this understanding between the railways and got together and decided that they might as well locate the capital themselves as to have the railways do it, and accordingly a bill was prepared and introduced, removing the capital from Yankton and naming a commission of nine members who were empowered to receive bids and select a new location and construct buildings at the place selected. Of course, the City of Yankton and the southern part of the Territory was greatly incensed at the removal of the capital from Yankton and most intense feelings and enmities were [aroused] on the question, but the bill finally passed. Much of this occurred while Mr. McKenzie was blockaded in Yankton, by reason of which he was enabled to take part in the game and was named as one of the commissioners to re-locate and build the capitol.

Justice Spalding Papers at 11-12.

10. See Laws of Dakota ch. 104, at 222 (1883).

11. Id. § 4, at 218. The act was "decided by nearly a two-thirds vote to change the seat of government to some more central and accessible locality." Lounsberry, supra note 1, at 374. George W. Kingsbury, II History of Dakota Territory 1301-08 (1915) has a detailed account of the enactment of this measure and the proceedings of the relocation commission.

12. See Laws of Dakota ch. 104, § 3, at 218 (1883).

13. See id. §§ 3, 4.

14. See Hyatt, supra note 2, at 533.

15. See id.

16. See id.

17. See id. + Justice Spalding describes the organizational trip:

The members met in Sioux City, Iowa, as a starting point on the way to Yankton to organize. We were detained there several days by my illness. Rumors were current that an attempt would be made to enjoin the commission from organizing and that proceedings for that purpose had been instituted at Yankton, and that papers were ready for service.
. . .[N]o sooner had the act become a law than all the railroads became deeply interested and they furnished special trains without expense to the territory or the commission to carry its members on their quest for the most suitable site. After remaining two or three days in Sioux City, we boarded a train furnished by the Milwaukee road and started some time after midnight on the 3d day of April for Yankton. The speed of the train was so timed that we arrived at Yankton just as the sun was rising. We were all up with everything prepared for perfecting the organization. We stopped a few minutes as we drew into Yankton where the proper motions were made and the commission organized with Alexander Hughes as President, Ralph W. Wheelock, then of Mitchell, Secretary, and Milo W. Scott of Grand Forks, treasurer.
* * *
It is needless to say that the Sheriff had no opportunity to board the train to serve papers, if he had any. As the train left Yankton one long blast of the whistle of our locomotive was sounded. This was the first intimation the people of Yankton had of our visit. Instead of returning the way we came, we proceeded to Scotland, northwest of Yankton, then northeast to Parker, and from there to Canton. When we reached Canton the adjourned meeting was held . . . .

Justice Spalding Papers, supra note 9, at 149-150.

18. See Territory ex rel Smith v. Scott, 3 Dakota 357, 20 N.W. 401 (1884).

19. See Hyatt, supra note 2, at 533.

20. See Hyatt, supra note 2, at 533-34.

21. See Hyatt, supra note 2, at 534. "To discredit Governor Ordway, Yankton parties caused his arrest and fixed his bond at $50,000. McKenzie furnished that amount of currency for his bail, which was reduced to a reasonable sum and nothing every came of the prosecution." Lounsberry, supra note 1, at 377.

22. See Hyatt, supra note 2, at 534

23. Robinson, supra note 9, at 201. + Justice Spalding describes the bidding and inspection process of the commission:

When we began to make inspections, the demand for passage on our special trains, by people looking for speculations was very pressing. Frequently we carried a number of such people, including several from outside the state. One or two members of Congress were constantly with us, among them Congressman Burrows of Michigan, afterwards Senator, and one of the distinguished orators of those days.
Each place offered $100,000, in cash and 160 acres of land, except Ordway 320 acres, Pierre 250 acres, Redfield 240 acres, and Bismarck which offered 320 acres, one-half of it being the quarter where the capital now stands, and the other half lying on the flat south of the city. This last was of practically no value, but made the bid look larger. We visited each place and inspected the site offered, and at each were entertained at least at one very elaborate banquet. All this was before the days of prohibition or even of local option, and champagne was a common beverage. At Pierre a unique celebration was staged. It included Sitting Bull and many members of his tribe. I recall that crowds of people gave a dollar each for the privilege of shaking hands with Sitting Bull.
. . . . We were often criticized for locating the capitol building at Bismarck so far from the business portion of town, but, as a matter of fact, no candidate where there was already a city or settlement, offered a site as near town as the one at Bismarck. Of course, there were three or four sites offered which were simply on the prairie.

Justice Spalding Papers, supra note 9, at 152. Justice Spalding elaborates on Bismarck's entertainment and its effects:

There was no serious thought of the Bismarck bid being considered until we, in due course, visited that city. When we reached Bismarck, we were surprised at the extent of the entertainment which awaited us. The Eleventh Infantry band had been brought from Ft. Keogh for music and a great number of Indians from the Standing Rock Reservation to provide a spectacle. One, and I think two banquets were set up in which hundreds of people participated. On the lot where Webb's Store now is, stood a little wooden building used as a public library. The books were removed and it became the headquarters of the entertainment committee where champagne was served freely.
When the people of Fargo and other northern cities learned of the expensive fete put on by Bismarck they recognized that it could not have been done simply from a desire to be courteous to the commission, and they began to look around. I shortly received a document setting forth the facts regarding matters and protesting against the capital being located at Bismarck. It was signed by practically every business and professional man of importance in Fargo.

Justice Spalding Papers, supra note 9, at 158.

24. See Hyatt supra note 2, at 534. + However, Justice Spalding reports that the selection vote actually took place in Fargo, although the Commission had traveled to St. Paul first:

We went from Bismarck to St. Paul by special train which stopped a short time in Fargo. While the train was waiting here, I was invited to step into the Headquarters Hotel and inspect a map. Mr. McKenzie happened to see this. That evening, after I had retired in my berth, he came to me and with much fervor and less tact upbraided me for examining the map and apparently assumed that I had promised to vote for some other location than Bismarck. Naturally and foolishly I got [mad] and told Mr. McKenzie that I could cast my own vote. I believe he never forgot this incident.
We returned to Fargo and met in the Court on the second floor of what was known as the Keeney Block at the corner of Broadway and Second Avenue North where the Central Barber Shop now is, and on the thirteenth ballot Bismarck received the vote of five commissioners . . . .

Justice Spalding Papers, supra note 9, at 158-59. Justice Spalding summarizes the voting:

During the voting I entered in a memorandum book which I still have, the result of each ballot and how each member [of] the Commission voted on the location. The votes were as follows:
SCOTT - on the first two ballots voted for Ordway, 3d and 4th Huron, and on next 9 for Bismarck.
MEYERS - thirteen times for Redfield.
BELDING - 11 times for Pierre and on last two for Bismarck.
DE LONG - On 1st ballot for Canton and the next 10 for Pierre and on the last two for Bismarck.
MATHEWS - voted 13 times for Huron.
THOMPSON - 13 times for Mitchell.
McKENZIE - On the 1st ballot for Bismarck, on the 2d for Steele and the next 11 for Bismarck.
SPALDING - 13 times for Redfield.
HUGHES - On 1st four ballots for Mitchell, on the next eight for Redfield and on the 13th ballot cast the deciding vote for Bismarck.

Justice Spalding Papers, supra note 9, at 161. Earlier, Justice Spalding had explained why he did not vote for Bismarck:

I was informed at once that the understanding between the members of the legislature who supported the measure had been that the capital should be located at a point which would be fairly accessible to all parts of the state if the territory should be admitted as one state and at the same time would be fairly central as a location for South Dakota's capital, in case of division, and that it was agreed in view of the sparsity of the population in North Dakota, and the much larger number of people in South Dakota, that it should not go to any point in what is now North Dakota. I considered this agreement, without which the bill never would have passed, as morally binding on me as a commissioner.

Justice Spalding Papers, supra note 9, at 149.

25. See Hyatt supra note 2, at 534. The vote was five to four. See Robinson, supra note 9, at 201.

26. See Robinson, supra note 9, at 201.

27. See Hyatt, supra note 2, at 534. +

Justice Spalding comments only briefly on the litigation.

. . . [S]ome little time after our organization, most of the members of the commission were served with process directing them to proceed no further under the law. I was the youngest man of the commission and less known than most of the others and the papers were not served on me, but those who were served disregarded the writ. The proceeding went to the Supreme Court of the territory . . . . The litigation and the agitation had such effect that the sale of lots platted at Bismarck ceased, and the capital fund was prevented from receiving any great amount from such sales.

Justice Spalding Papers, supra note 9, at 161-62.

28. See Hyatt, supra note 2, at 534; Territory ex rel Smith v. Scott, 3 Dakota 357, 388, 20 N.W. 401, 402 (1884). "Edgerton's decision was made public on September 15 . . . ." Hyatt, supra note 2, at 534.

29. See Scott, 3 Dakota at 388, 20 N.W. at 402.

30. See Hyatt, supra note 2, at 534-35.

At a later day, Judge Edgerton filed his opinion in the case, a lengthy document, covering the numerous points in the case completely, which was highly commended by the bar and press as one of the ablest decisions rendered from the Dakota bench.

Kingsbury, supra note 11, at 1323.

31. See Hyatt, supra note 2, at 535.

32. See Hyatt, supra note 2, at 535.

33. See Scott, 3 Dakota at 417, 20 N.W. at 415.

34. See id. at 357, 20 N.W. at 401.

35. See id. at 391-417, 20 N.W. at 403-15.

36. During a debate in the second of the three constitutional conventions held in South Dakota before statehood, on a proposed clause to require the state Supreme Court's sessions "to be held at the seat of government," delegate Moody complained: ". . . our Capitol was stolen from us." I Dakota Constitutional Convention 258 (Huron, S.D., Huronite Printing Co. 1907). South Dakota held three constitutional conventions; in 1883, 1885, and 1889. See id. at 6, 46; II South Dakota Constitutional Convention 1258 (Huron, S.D. Huronite Printing Co. 1907). Additionally, a territorial convention for statehood, including delegates from all parts of Dakota Territory, met in 1887 to request Congress for "enabling legislation" permitting Dakota to enter the Union as a state. See Statehood for Dakota: Proceedings of the Territorial Convention held at the City of Aberdeen, Brown County, Dakota Territory, December 15, A.D. 1887 (Gibson Bros. Printers 1888), reprinted in XXI South Dakota Historical Collections (South Dakota State Historical Society compiler, Hipple Printing Co. Pierre, S.D. 1942).

37. Hyatt, supra note 2, at 383. The Dakota Supreme Court did, however, begin holding some sessions at Bismarck in 1884. See Hyatt, supra note 2, at 383. The 1885 Assembly attempted to transfer the Supreme Court from Yankton to Bismarck, but "John R. Gamble of Yankton, . . . Chairman of the Council's Judicary Committee, . . . was able to defeat the attempt." Hyatt, supra note 2, at 383. The 1885 Assembly did enact a law directing three separate annual sessions of the Supreme Court in Bismarck, Deadwood, and Yankton. See Hyatt, supra note 2, at 383. Yet, "confusion as far as Supreme Court sessions would remain throughout the Pre-Statehood Era." Hyatt, supra note 2, at 383.

In the 1887 Assembly, a bill "moving [the] Yankton[ ] term to Redfield passed both houses of the Assembly; it, however, was [physically] lost. A duplicate of it was again [passed] by the Council, but it was allowed to die in the House. No further session tampering occurred." Hyatt, supra note 2, at 384.

38. See Scott, 3 Dakota at 417-44, 20 N.W. at 425-28 (Edgerton, C.J., dissenting).

39. See Hyatt, supra note 2, at 683.

40. See Hyatt, supra note 2, at 536.

41. See Hyatt, supra note 2, at 531-32, 535-37. Yankton forces

broadcast accounts of Ordways' corrupt dealings (he had, they said, offered positions as county commissioners for sale to the highest bidder); they charged that he had received thirty thousand dollars in cash for his part in moving the capital to Bismarck. President Chester Arthur finally removed Ordway as territorial governor in June, 1884, but the capital remained in Bismarck.

Robinson, supra note 9, at 201.

"During the 1885 Assembly, an attempt was made to remove the Territory capital from Bismarck to Pierre. The Assembly enacted a bill making the move; Governor Gilbert A. Pierce, however, vetoed it and the Assembly was unable to override the veto." Hyatt, supra note 2, at 383.

42. Hyatt, supra note 2, at 536-37. Compare today's standard of judicial responsibility: "A judge shall not initiate, permit, or consider ex parte communication, or consider other communication made to the judge outside the presence of the parties concerning a pending or impending proceeding," except in a few specifically defined circumstances. North Dakota Rules of Judicial Conduct Canon 3 (B)(7) (2000); see also North Dakota Rules of Professional Conduct Rule 3.5 (2000) ("A lawyer shall not: (a) seek to influence a judge . . . or other official by means prohibited by law including ex parte communications concerning pending or impending proceedings.").

43. . See Hyatt, supra note 2, at 537.

One of the harsh realities of North Dakota life was the power of the railroads.
. . .
. . . The federal government had given [the Northern Pacific Railroad] 10,700,000 acres of land in what was to become North Dakota. The land grant, 24 percent of the state's area, gave the Northern Pacific a huge economic stake in the government.

Robinson, supra note 9, at 198 (citing Robert S. Henry, The Railroad Land Grant Legend in American History Texts, XXXI Miss. Valley Hist. Rev., Sept. 1945, at 194).

44. See Hyatt, supra note 2, at 537

45. See Hyatt, supra note 2, at 537.

46. See Hyatt, supra note 2, at 537.

47. See Hyatt, supra note 2, at 531.

48. See Hyatt, supra note 2, at 538-39.

49. . Lounsberry effusively credited Ordway with a great deal of influence in Congress on bringing about statehood for North Dakota. Lounsberry noted Ordway's prior 12 years as sergeant-at-arms and paymaster in the United Stated House of Representatives, and says Ordway used this "Long and intimate acquaintance with the older and controlling members in both Houses of Congress" to bring "in the two Dakotas as the same time . . . " See Lounsberry, supra note 1, at 371, 375. Lounsberry also credits McKenzie, "even more than . . . Governor Ordway," with "the successful efforts in Congress to secure the division of Dakota and the admission of North Dakota as a state." Lounsberry, supra note 1, at 377.

Yet, Robinson believed the railroads generally opposed statehood:

They preferred the lenient territorial railroad laws, and could influence or control territorial appointments from Washington. After his removal, the Northern Pacific sent Nehemiah G. Ordway to Washington as a lobbyist against statehood. . . . McKenzie and the Bismarck leaders opposed statehood, preferring that Bismarck remain the capital of a large territory.

Robinson, supra note 9, at 202.

However, after the 1888 presidential campaign when the national Republican Party platform had called for admission of two states, "Ordway and the Dakota Democrats finally dropped their single-state bill. Both Republicans and Democrats voted for the Omnibus [Statehood] Bill of February 22, 1889, authorizing the framing of constitutions in North Dakota, South Dakota, Montana, and Washington." Robinson, supra note 9, at 203.

Were McKenzie and Ordway good lobbyists, or what?