Chapter XV More Law Cases
In the summer of 1874 the city of Des Moines was thrown into a state of considerable excitement by the fact of finding the body of a murdered man on the sidewalk near the corner of Walnut and Second street. There was a house of bad repute in the vicinity, and the coroner’s jury made a thorough investigation, seemingly as far as practicable, as to the cause and origin of the death. The inhabitants of the house referred to were examined under oath, and the women who boarded there denied any knowledge whatever of the cause of the man’s death. The Governor of the state offered a reward of five hundred dollars for the discovery and conviction of the murderer. At the next session of the grand jury of Polk county two of the women boarders at the house of bad repute referred to, and who had denied all knowledge of the murder, appeared before the grand jury and testified with much detail that Charles Howard, a man who had frequented their house, had been guilty of the murder and had carried out the dead body and laid it upon the sidewalk. The grand jury indicted Howard accordingly for murder in the first degree. The trial came on at the December term of the Polk county district court, and in view of the public excitement, which was largely kept alive by the daily press, Howard, by his attorney, made a motion for a change of venue on the ground of prejudice of the inhabitants of the county. Under the peculiar provisions of our statute, counter affidavits were permitted for the purpose of showing that there was no feeling in the community that would prevent Howard from receiving a fair trial. The sheriff informed me that in walking two squares from the court house he had met two hundred men who were willing to sign such counter affidavits, and had obtained a large number of them, which were filed accordingly. The district judge, H. W. Maxwell, overruled the motion for a change of venue, and the trial proceeded. The only testimony introduced in the conviction of Howard was that of the two bad women who had testified before the coroner’s jury that they had no knowledge whatever in regard to the killing of Johnson. I was not personally engaged in any way as an attorney in this case, but about ten o ‘clock at night after the jury had retired to consider their verdict, Judge Maxwell sent for me to come to the court house for consultation. I found he had also sent for a like purpose for Mr. D. O. Finch, one of the oldest members of the Polk county bar. The judge advised us that the jury had not agreed upon their verdict, but that some one had through the bailiff sent a note in to the jury room threatening the jury with violence in case they failed to convict the defendant. Judge Maxwell was much excited and asked Mr. Finch and myself what he ought to do under the circumstances. We advised him by all means to have the defendant conveyed for safe keeping to some place outside of the county, in charge of the sheriff, and to have it done secretly and immediately lest the mob might seize the accused and commit violence. We also advised him to discharge the jury from a further consideration of the case, as their verdict found under the influence of threats would be worthless, and that he ought also in vindication of his own court to thoroughly investigate the question as to who was guilty in sending or permitting a threat to be communicated to the jury. Instead of being influenced by our advice Judge Maxwell had the jury brought into the courtroom for further instructions, and told them that great excitement and feeling prevailed in the community in regard to the case, and that it was important that the jury should not disagree but should find a verdict in the case. The next morning the jury brought in a verdict of guilty, and the defendant waiving time for sentence, Judge Maxwell had the prisoner brought into court. The courtroom was crowded by an excited mob, and the judge took occasion to harangue the prisoner, denouncing his conduct in the most vehement manner. He then sentenced the prisoner to imprisonment in the penitentiary for life. That night the excited mob broke open the jail, took the prisoner from his cell with a rope tied around his neck, and hung him to a lamp post in the court house square. The opinion of most of the persons who paid any attention to this trial was that there was no reliable evidence of Howard’s guilt, and that the probabilities were that the whole case was manufactured for the purpose of securing the reward offered for his conviction. Whether or not the reward was ever paid I have not been able to ascertain, but certain it is that the cowardice of the court and the indiscretion of the public press were responsible for the murder of a man who, to say the least of it, was never proved guilty by any competent evidence.
We had among the distinguished judges that acted as teachers in our law school at Transylvania University a very eminent jurist who sometimes when he felt merry treated the class to that which was not only instructive but also entertaining. On one occasion he delivered to the class the following:
Young Gentlemen: You will find that the general principles of the law are few and easily comprehended, but in their application to the ever-varying transactions of human life the best of minds will differ, hence arises what we denominate the glorious uncertainties of the law whereby we have our bread.
The case that I am about to cite would satisfy the most credulous that there are other causes that produce uncertain results besides the difference in applying the general principles of the law to different cases.
Section 3, article XI of the constitution of the state of Iowa, provided as follows: “No county or other political or municipal corporation shall be allowed to become indebted in any manner or for any purpose to an amount in the aggregate exceeding five per centum on the value of the taxable property within such county or corporation, to be ascertained by the last state or county tax list previous to the incurring of such indebtedness.” In November, 1870, the taxable property, real and personal, within and subject to taxation by the said city of Des Moines, as ascertained by the last state and county tax list, amounted to the sum of $3,140,805 and no more, and that five per centum on said amount was only the sum of $157,040.25. In the month of May, 1869, the city had by ordinance authorized the issuing of bonds to the amount of $50,000 for the purpose of funding outstanding warrants, and afterwards in May, 1870, they had enacted a further ordinance authorizing the issuing of bonds for funding outstanding warrants on the city treasurer to the amount of $75,000, all of which bonds had been duly issued and were outstanding at the time of the commencement of the suit hereinafter mentioned. In addition to these bonds aggregating $125,000 there were also outstanding warrants upon the treasury to the amount of $55,000, making an aggregate indebtedness of the city $180,000. On the 7th of July, 1870, the city passed a further ordinance authorizing the issuing of bonds to the amount of $130,000 for the building and repair of certain bridges across the Des Moines and Raccoon rivers, thus exceeding the constitutional limit upon the city’s indebtedness.
George Sneer, a citizen and taxpayer of the city of Des Moines, applied to me to bring a suit to test the validity of this last bond issue of $130,000, informing me that the bonds had been placed in the hands of B. F. Allen, then a banker of the city of Des Moines. I informed him I was willing to take the case provided that the suit should be maintained in good faith, that I was satisfied that the bonds were absolutely void whether in the hands of Allen or any other person, being issued in plain violation of the constitution of the state, and that every person purchasing any evidence of indebtedness against the city was bound to take notice of the existing indebtedness of the city and was charged with knowledge thereof, as it was a matter of record and easily ascertained. Mr. Sneer informed me that he desired the question of the validity of the bonds tested in good faith, and that if I undertook the case I might prosecute it to the end. He contracted to pay me the sum of two hundred dollars for my services, and I accordingly prepared the bill for a perpetual injunction against the city council, city treasurer, and B. F. Allen. No one was made defendant to the petition except Allen and members of the city council and the city treasurer. Answers were filed by Mr. Withrow for B. F. Allen and by Seward Smith, his partner, for the city of Des Moines and members of the city council, and the case was submitted on bill and answer. There was no denial of the facts set forth in the petition in regard to the indebtedness of the city, nor did anyone appear in the case claiming to be bona fide purchasers of the bonds, but the answer of Allen was to the effect that he acted as agent for the city and had sold the bonds to one George P. Opdike & Co. of New York City. Maxwell was judge of the district court, and to my surprise entered the following decree in the case:
This cause coming on for final hearing on the plaintiff’s petition, and answer made thereto, and the defendant’s answer and cross petition, and thus heard upon the pleadings alone, and the court having heard the argument of counsel, inspected the said record and being fully advised in the premises, doth order, adjudge and decree, that the plaintiff’s bill be dismissed; that the bridge bonds described therein be treated as in every respect binding obligations of the city of Des Moines according to the tenor thereof, and that the parties thereto and those in privity with them be forever concluded from asserting or maintaining any defense against the payment of said bonds, and the interest thereon, on the grounds that the same were irregularly issued in excess of the constitutional limitation upon the power of the said city to become indebted; that the money now in possession of the defendant Allen, be applied by the proper officers of the city of Des Moines to the purposes for which the same was raised; and that the defendant have and recover the costs herein taxed at —— dollars, and that execution issue therefor. To which plaintiff excepts.
Upon the rendition of this decree I immediately entered an appeal in behalf of George Sneer, and perfected the same by filing the proper abstract of record in the supreme court of the state. The cause was submitted to the supreme court on printed arguments on April 4, 1871. At the October term of the supreme court, being an argument term held at Davenport at that date, the supreme court really decided the case by an opinion written by Judge Beck in behalf of a majority of the court, and the opinion was sent by Justice Day to the clerk about the time the court was to adjourn, with orders to file the same, and Mr. Charles Linderman, the clerk of the court, informed me that he had actually marked the opinion “Filed,” and that about the time that the filing was completed Judge C. C. Cole, then one of the judges of the supreme court, entered the clerk’s office and filed with him a paper signed by George Sneer dismissing his appeal, and that he entered upon the records of the court the following entry: “On application of appellant, it is ordered by the court that the appeal herein be, and the same is hereby dismissed.”
At the ensuing regular term of the supreme court held at Des Moines, December 5, 1871, the following entry was made in the case: “At the argument term held at Davenport in October last, on application of George Sneer per se, appellant herein, the court ordered that the appeal be dismissed.” Before this dismissal either at Davenport or at Des Moines Sneer had settled with me and paid me the fee agreed upon, and I had nothing further to do with the case except to reproach him for violating his agreement with me that I should prosecute the case to a final result.
It appeared from the sequel that Judge Cole had also prepared a dissenting opinion in the case, and these two opinions, that written by Judge Beck as the opinion of the court, and the one written by himself were both published in the Western Jurist the ensuing January, the one marked “B” and the other marked “C,” but suppressing the fact that the opinion marked “B” was the opinion of a majority of the court, and that none of the judges, except Judge Cole, agreed with the opinion marked “C;” and having the following extraordinary note printed in connection with the opinions, Judge Cole being then the editor of the Western Jurist: “These two articles, this and the following which advocates a different view of the same question, are from members of the profession in Iowa occupying equal prominence before the public, and whose opinions are entitled to consideration.” Whilst these opinions do not give the detail of the case that was submitted to the court and to which they relate, yet by carefully reading them you can easily see that they refer to an actual controversy that had been pending before the supreme court. The supreme court of Iowa subsequently decided the question that was involved in the case of Sneer vs. the City of Des Moines, establishing the principle as applied to this transaction to the effect that the bonds were absolutely void in the hands even of an innocent purchaser if such had been the case. See
McPherson vs. Foster, 43 Iowa, page 48.
Mosher vs. Independent School Dist., 44 Iowa, page 122.
French vs. Burlington, 42 Iowa, page 614.
Andrews vs. Orient Fire Ins. Co., 88 Iowa, page 579.
Holliday vs. Hildebrandt, 66 Northwestern Reporter, page 89.
The dismissal of the appeal by Sneer left the decree entered by Judge Maxwell in full force as though no appeal had ever been taken, and the parties procuring this result, after they had full knowledge of the fact that the majority of the judges of the supreme court held the bonds void, are fully entitled to all of the credit that their conduct merits, and I only record the matter here as a matter of history and as vindication of myself and to exonerate myself from any responsibility for the final result, as I had no knowledge of the dismissal of the appeal until long after the thing was done.
I have within the past few weeks examined the archives of the supreme court, and find that the original opinion of the court written by Judge Beck signed “B” and printed in the Western Jurist (see Vol. VI-1872) cannot be found, and also the paper signed by George Sneer dismissing the appeal is missing from the files of the court. I presume the city council, as they had by their attorney asked to be enjoined from disputing the validity of these bonds, had obtained a decree against themselves to that effect, very willingly paid the bonds when they matured, but of this I have no actual knowledge.