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Montana Politics, Legislation and Reform
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Having discharged the onerous duties of his office for a few months, Governor Smith returned to the states, and Meagher again came to the front. Once more he proclaimed a special session of the legislature, the motive of which was that a law had just been passed by congress and approved by the president convening the 40th congress on the 4th of March, whereas the election law of Montana, which fixed the day of general election on the first Monday of September, would leave the territory without a delegate from March until September. Not that a delegate had ever been of much service to the country, but that it was imperative the office should be filled. The proclamation therefore called upon the legislature to convene at Virginia City on the 25th of February, 1867, for the purpose of altering the election law so as to provide for the election of a delegate without loss of time, “as well as for the adoption of such other alterations and amendments as, under the present circumstances of the territory and the nation at large, it may appear expedient to enact.”
There was another motive for a special session, which was the passage of a number of toll road charters, a favorite method of taxing immigration and the traveling public generally. It was the same greed that had cursed eastern Oregon and Idaho. A few hundred dollars expended in grading odd bits of a natural roadway, and an exorbitant toll exacted for every man and animal that passed over it; or a few logs thrown across a stream, and another toll to be paid for that; after which, there was the ferry just beyond, for which a higher charge than either had to be paid. And these latter were also monopolies, their charters prohibiting any other bridge or ferry within a certain number of miles. Fifty-eight charters, chiefly of this sort, were granted at the November session, and a new batch was now to be allowed, if the legislature came together once more. In vain the press, which had the interest of the country at heart, opposed itself to these abuses; they had to have their day.
The legislature met on the 25th, and continued in session until the 6th of March. A number of local laws were enacted, and an attempt was made to amend the election law so as to held an election for delegate and county officers in April, and secure these places to their own party. But the measure failed, the legislature foreseeing that to tamper with so important a law, in the absence, too, of a number of the legislators, would be to invoke the displeasure of congress. Scarcely had they adjourned finally when the telegraph announced that all their law making, from the time when the first legislative body had failed to carry out the provisions of the organic act by passing an apportionment bill, had been declared invalid by congress, together with their numerous oppressive charters, except such as could be sustained in the courts.
The power they had abused was taken away from them. The salaries of the chief and associate justices were raised to $3,500 annually, and the pay of legislators left where it had been first fixed. The judges were authorized to define the judicial districts, assign themselves by agreement, and fix the times and places of holding court, not less than two terms yearly at each place. The governor was authorized to divide the territory into election districts, the election to be held at the time and place prescribed by the legislatures of 1864 and 1865, and the qualification of voters to be the same as in the original act, save restrictions by reason of race or color. There were two years and a half of legislative existence blotted out, and everything had to be begun over at the point where the first legislature left off in a fit of peevishness because the governor endeavored to check their extravagance and love of power. Nevertheless the legislative assembly was authorized to reenact, one by one, such acts of the bogus legislatures as they deemed beneficent.
The situation was unique for a territory which had contributed, in its brief existence of three years, thirty millions in gold to the world’s treasure. But it was this prodigality of wealth which drew to it the cormorants of avarice and crime. The republicans nominated for delegate W. F. Sanders, who received, out of 10,901 votes cast, 4,896. Cavanaugh was returned by a majority of 1,108. As to the legislature, Madison but they may, by general incorporation acts, permit persons to associate themselves together as bodies corporate for mining, manufacturing, and other industrial pursuits. Zabriskie’s Land Laws, 871.
County elected one republican, the only one elected in the territory, and he was ruled out, not because he was not elected by a majority, but because he was not wanted in that body, where, indeed, he would have been of little use.
Many useful statutes were now placed upon record. One, an act to amend an act to locate the seat of government, which removed the capital to Helena, subject to the vote of the people, failed. The governor, who had once approved the measure, now thought fit to veto it, for the bill called for votes on two places only, he said; there might be another more suitable. The surveyor-general’s report showed that when the county lines came to be adjusted, Helena might fall in Jefferson County, and Virginia City in Beaverhead. The Northern Pacific railroad, which all expected to be built in a few years, would naturally be an important factor in the location of the seat of government. For these and other reasons he advised them to let this matter rest for a few sessions, or until the affairs of the territory should shape themselves more definitely. Not satisfied, the legislature passed another bill naming three localities to be presented to the vote of the people, which received the governor’s veto for the same reasons, and other technical objections. It was reconsidered and lost, yet it continued to crop up at succeeding legislation until 1874, when the capital was permanently located at Helena. The penitentiary, however, was located at Deer Lodge City, by act of this legislature, and without active opposition.
That part of the amendment to the organic act which required the election law to conform to the new condition of the country with regard to race and color failed to receive that attention demanded by the mandate of congress, and while the Montana legislators amended the election act of 1864-5, they left upon the statute the interdicted phrase, “white male citizen,” which contempt, when it came to the ears of the government, came near causing the annulment of all the laws of this session, a repeal of the organic act of Montana being threatened, whereupon the discriminating phrase was expunged. Another way of emphasizing their anti-union tendencies was shown in the apportionment act, which was still made to call for the maximum number of legislators, less two in the house of representatives, leaving nothing for the future expansion of the population to build upon. They memorialized congress for permission to form a state constitution while the territory was still deeply in debt, and at the same time, for more than a million dollars to pay the Indian war debt. A good deal of this money would come into the itching palms of the politicians and all the state officers, if they succeeded in getting an enabling act passed. To give increased flavor to the proceedings, the chief justice of the territory and Judge Munson were asked, by resolution, to resign, as I have before mentioned. By this time the legal forty days’ term was exhausted, but an extra session was called, which met on the 14th of December and sat for ten days. Then congress enacted that the territories should held their legislative sessions biennially after July 1, 1869. This change, as usual, gave rise to fresh opportunities. The legislature of 1868 enacted that the next session should convene on the first Monday in November 1870, under the impression that the law was in conformity with the act of congress, which decreed that the representatives of Montana should be elected for two years, and that the legislature at its first session after the passage of the act should provide for carrying into effect the provisions of the statute. But the Montana law was passed on the 15th of January, in anticipation of the act of congress, which was approved in March following, and made no change in the term of the election of legislators. A legal question was involved, but they would hold the session, and settle the question at law afterward. To the legislature of 1868 was elected one republican, from Gallatin County, namely L. S. Wilson. In 1869 the democracy in Deer Lodge County bolted, and the best men of the party inviting the best men of the republican party to join them, formed a people’s party, to correct abuses, and succeeded in sending three members to the legislature. A few republicans were elected to county offices in different parts of the territory, enough to show a growing sense of the evils of a one-sided administration.
In the meantime a new governor had been appointed, James M. Ashley of Ohio. His course in politics had been that of a republican radical, which made him repugnant to the reigning party in Montana. While endeavoring to conciliate this party, hoping, it was said, to become delegate to congress, he subjected himself to its scorn, and failed in his administration, while he was declared to be, in many respects, the best executive that Montana had had. The legislature of 1869, in an effort to deprive him of the appointing power vested in him by the organic act, passed a law relating to the tenure of office, which was vetoed by the governor, and passed over his head, the intent of which was to keep in place certain territorial officers, at a severe cost to the tax-payers. In consequence, there was a suit in the courts, whereby it was decided that neither the legislature nor the governor, the one without the other, had power to appoint, and a bill was before congress in 1870 which proposed to deprive the Montana legislature of all appointing power, and to bestow it upon the governor, as well as to make the secretary ex-officio superintendent of the public buildings in progress of erection, or thereafter to be erected, and prescribing such an oath of office as few leading democrats in Montana could take without perjuring themselves. The bill failed, to the chagrin of Ashley, who instigated it.
In 1870 Benjamin F. Potts of Ohio was appointed governor. He had been a major and a major general in the civil war, and was a republican in principle; but the democrats of Montana made a distinction between republicanism in a mild or a radical form. Even the republicans had become disgusted by Ashley’s overtures to the enemy; so that in consequence of these complications Potts was welcomed by both parties. The democrats pronounced him not a brilliant man, but honest, and affected a good-natured toleration of him. But when in 1872 congress amended the organic acts of all the territories, by giving the governor power to fill vacancies during the recess of the council, in the offices of treasurer, auditor, and superintendent of public instruction, great indignation prevailed in certain quarters, and the governor’s head was threatened. It might have been supposed that such an amendment would have been welcomed at that time, the result of the previous course of the legislature in enacting once that these officers should be elected by the people, which was contrary to the organic act, and again that they should be elected by the legislature, while the organic act said they should be appointed or nominated by the governor and confirmed by the council, having been that the territorial treasurer had been unable to settle his accounts, and the bonds of Montana had gone to protest, that there had been no superintendent of public instruction, and that the auditor had illegally retained his office for four years. Yet it was said by democratic journals that Governor Potts had urged the amendment out of spleen, because the legislature had not confirmed his appointments, while others contented themselves with laying of the blame of territorial subordination to congress at the door of the constitution of the United States.
Changes in the executive office could have little effect against the power of a united legislature. At the seventh session an act was passed prohibiting a foreign born person who had declared his intention of becoming a citizen from voting in the territory in defiance of the organic law, which act congress was certain to disapprove, and which had, like other obnoxious and idle statutes, to be expunged by the following legislature. The election law was the weapon with which these having control of it could punish non-sympathizers. According to the act of congress making the sessions of the legislature biennial, the seventh session was held in December and January 1871-2. During this interregnum of legislative power much uneasiness was manifested, and an effort was made to bring about an extra session by importuning the then delegate, William H. Claggett, to procure the passage of an act postponing the election for delegate in 1872 to October, and granting an appropriation for an extra session. Claggett refused to ask congress to interfere with territorial legislation by introducing such a bill, and when a member of congress was found who would do so, objected to its passage, in consequence of which it failed, and there was no extra session in 1872, nor was that delegate returned to congress at the August election. Indeed, that Claggett, who was a republican, should have been in congress at all was an anomaly in early Montana politics, and was only to be accounted for on the ground that he was not a political aspirant, but was an able man, and belonged to the ‘west side,’ where a majority in some instances had been obtained against the regular democratic ticket. He was nominated in a convention of the representatives elect, and ran against E. W. Toole, beating him by a majority of over five hundred. He proved to be a useful and influential delegate, doing more for Montana in the first eight months of his term than the two preceding delegates had done in seven years.
But that did not prevent the legislature from passing a bill at the session of 1871-2 changing the time of the election of his successor to 1872, thereby shortening his term to one year. Congress, as it happened, passed a bill changing the time of election of representatives and delegates to the 43d congress to the first Monday after the first Tuesday in November 1872, so that the Montana act was partly shorn of its force. In opposition to his better judgment, these who desired his reelection persuaded him to run a second time in 1872, when he was defeated by the well-organized Democratic Party, and Martin Maginnis elected by a majority of about three hundred.
The extra pay of the legislature had been abolished and forbidden by congress, which paid all the legislative expenses. An obstacle was thus removed, and in March 1873 Governor Potts issued a proclamation calling an extra session for the 14th of April, the nominal excuse for which was the imperfections in the laws passed at the late regular session, but the real reason for which was that there existed in Montana a numerous faction, or ring, who were determined in their efforts to inveigle the tax-payers of Montana, already overburdened with debt, into pledging the faith of the territory to build a railroad which was to enrich them if it ruined the commonwealth. There had been much discussion of the question of the legality of a tax levied for such a purpose, some of the journals taking strong ground against it, on the side of the people.
The governor in his message gave a statement of finances, showing an increase of debt in sixteen months of over $29,000, which he did not hesitate to say was due to the “extravagant expenditures of the last legislative assembly, which reached nearly the sum of $45,000;” or to tell them that the finances of the territory had been so managed by the law-making power as to give little hope for its future.
The public debt was in excess of half a million of dollars, which the territory, being possessed of great resources, might pay, but which should not be increased. This advice came after congress had applied the remedy, by prohibiting extra compensation from the territorial treasury, and advancing the pay of the legislators to a compromise between penury and extravagance. The governor recommended legislation which should prevent the sheriff of Madison County charging $222 for taking a convict to the penitentiary at Deer Lodge, a distance of 120 miles, and similar unnecessary wastefulness of the public money, without taking into account that to held offices and spend the people’s money freely were prerogatives of the party dominant in Montana at that time, with which they could never be persuaded to part voluntarily.
On the proposition to vote county bonds to aid in constructing a railway from the Central Pacific to Helena, the governor had an opinion decidedly un-favorable to the project, which he pronounced suicidal. As to the legality of imposing a tax for such a pur-pose, he held that taxes must be imposed for a public and not for a private purpose; and that when taxation was prostituted to objects not connected with the public interests, it became plunder. Some of the governor’s suggestions with regard to retrenchment were carried out; but the railroad bill, the main object for which an extra session had been brought about, was passed and approved by the governor, namely, “A bill for an act enabling and authorizing any county or counties within the territory of Montana to aid in the construction of a railroad, and to subscribe to the capital stock of the same.”
By this act it became lawful for the county commissioners of any county to submit to any incorporated company a proposition to subscribe to the building: of a railroad from the Union Pacific, the Central Pacific, or the Utah Northern into or through the territory of Montana, not exceeding twenty per cent of the taxable property of the county; but upon condition that Madison, Jefferson, and Gallatin Counties should subscribe fifteen per cent, two per cent to be paid as soon as the road reached these counties, and thirteen per cent when it should be completed. A similar proposition should be presented to the other counties, with the difference that the amount to be subscribed was ten per cent in Meagher and twenty per cent in Lewis and Clarke counties, with other provisions, the chief of which was that an election was to be held, at which the people should vote upon the question of subsidy, yes or no.
The failure to secure a grant from congress of a right of way for railroads across the public lands, and the disinclination of the people to be any more heavily taxed than they were, kept the question from being put to a vote before the eighth session of the legislature, occurring in January and February 1874. From the message of Governor Potts, it is evident the Montana law-makers had not much amended their habits of extravagance. The reforms recommended by the executive had not yet reached county commissioners, whose per diem was ten dollars; nor sheriffs, who received three dollars a day for subsisting prisoners in jail; nor prosecuting attorneys, who received three thousand dollars per annum. Under the existing law the cost of collecting taxes was four times greater than in the states east of the Missouri. Only two counties had paid any of their indebtedness the last year. Deer Lodge and Beaverhead. All the other counties had increased their debt, Lewis and Clarke owing $148,550.39; and in Meagher County the commissioners had refused to levy a school tax of three mills, their economy beginning by closing the public schools. These revelations did not prepare the people to regard favorably any scheme which should increase their burdens, and for the time railroad legislation was interrupted.
Meantime a lively interest was felt in the subject of transportation, and much discussion was being had in the public prints as to which route should have the preference. The Northern Pacific, dear to the people of Montana from a sentiment dating back to the days when the United States senate debated a route to China via the mouth of “the Oregon River,” and now plainly a necessity of this commonwealth to open up a vast extent of rich mineral and agricultural lands, was the first choice of the whole of eastern Montana; while the counties along the line of the projected extension of the Utah Northern to Helena would have liked, could they have afforded it, to see that road constructed.
After the passage of the right-of-way act of congress in March 1875, a railroad convention was held at Helena April 21st, at which, among other declarations, it was resolved that a committee of one from each county should be appointed to solicit propositions from the Northern Pacific, Utah Northern, Portland, Dalles, and Salt Lake, Union Pacific, and Central Pacific railroad companies, and to gather information bearing upon the subject of railroads. The only company, which availed itself of the invitation extended by the convention to send commissioners to the legislature, which convened January 1876, was the Northern Pacific. This company appointed its vice-president, George Stark, and its chief engineer, W. Milnor Roberts, a committee to confer with the legislature relative to a plan by which their road could be extended from the Missouri, at Bismarck, to the Yellowstone River, and up the Yellowstone Valley two hundred or more miles, during 1876-7.
The result of this conference was that the Northern Pacific accepted the loan of the credit of the territory in the sum of three million dollars, at eight per cent interest, secured by a hen upon the traffic of the road to and from Montana. An argument in favor of such a loan was that Montana expended annually in freights by the way of the Union Pacific, and by wagons from Corinne, a million of money, to which was added another half million on freights by the way of the Missouri River, and wagons from Benton. The reduction on the cost of freights would soon amount to three millions, if the people could be brought to deprive themselves temporarily of that amount. A similar proposition concerning the Utah Northern was also to be entertained if that company accepted, which it did not, saying that Montana was not able to help build two railroads, and they would wait the action of the people on the Northern Pacific proposition. The election for or against the subsidy was held in April 1876, and there proved to be a majority of only 248 against it.
For such an outcome the legislature was prepared, and passed an act, vetoed by the governor and passed over his head, convening the next legislative body in January 1877. The ostensible reason for changing the time of meeting was to bring it nearer the time of election, as if to amend the election law were not a cheaper method of arranging this matter. Delegate Maginnis was notified to secure an appropriation from congress, and did so.
The Northern Pacific having been disposed of, the Utah Northern now came forward with a proposition to the legislature in session in 1877, and offered to build 300 miles of narrow-gauge railroad within three years, 100 hundred miles a year, starting at Franklin, in Idaho, to a point as far north as the Bighole River, and to be called the Utah Northern Extension, for a subsidy of $5,000 per mile in bonds of the territory, to be placed in escrow in New York, to be delivered at stipulated times, and to draw interest at eight per cent per annum from time of delivery, that is, at the completion of every twenty miles.
The proposition to build to the Bighorn was made to carry the road near or to the national park. But it would in that case pass through a rough and elevated region, not likely to be soon settled if ever, and chiefly outside of Montana, and the legislature in framing a bill changed the route to Fort Hall, Idaho, thence to Pipeston, Jefferson County, Montana, to terminate at or to come to Helena. But no survey of any route had been made, and the bill also was very loosely drawn, leaving it to the railroad company to stop at any point by forfeiting fifteen per cent of the proposed subsidy. If the company accepted the terms proposed in the bill as passed by the legislature, it was to signify its acceptance on or before the 25th of March, and their acceptance or non-acceptance was to be announced by a proclamation from the executive office. Whether it was the change in the route, or whether the tone of the most influential newspapers in Montana foreshadowed to the company the failure of the measure at the election which would follow their acceptance, they made no sign on or before the 25th of March, and the proclamation of the governor immediately after announced the conclusion of all this scheming and legislation, which obviated the necessity of a subsidy election on the 10th of April.
The same year, however, the Utah Northern extended its line northward, changing its route to Snake River, through Marsh Valley and Port Neuf Canon. In April 1879 the president of that company, Sidney Dillon, made a proposition to the governor of Montana to extend the road to the Montana line within the current year, and 130 miles into Montana within the year 1880, provided only that the legislature would, by act, exempt the road from taxation for a period of fifteen years. To be able to accept or reject this proposition, the governor issued a proclamation calling an extraordinary session, to convene on the 1st of July, and in his message strongly advocated the acceptance of the proposition, the message being referred to a committee composed of J. A. Hyde, W. C. Gillette, and W. O. P. Hays, the two former, constituting a majority, reported in favor of the governor’s suggestions, and the latter against them, upon the ground that the laws of the United States did not permit them to grant a special privilege to one company, which in this case they could not afford to extend to other roads, notably to the Northern Pacific, with its 30,400 square miles of land within the territory, besides its movable property when completed. Two bills were introduced, one to comply with the proposition of the Utah Northern, and another to empower the county of Lewis and Clarke to subscribe $300,000 in bonds to that road. In the former case, the law was absolute without being referred to the people; in the latter, it was subject to an election. Both met with much adverse argument, and both were finally defeated. The legislature adjourned on the 23d, having passed nineteen acts, among which were several tending toward a more economical use of the people’s money than had heretofore been the practice of the legislators of Montana.
The failure of the railroad bills did not have the effect to prevent railroad building. The Union Pacific Company could not longer defer competing with the Northern Pacific, which was now approaching the Montana territory with rapid strides. It therefore constructed ten miles of the Utah Northern within the limits of Montana before cold weather interrupted grading. In the following year it constructed 110 miles, and in 1881 reached Helena. With the opening of railroad communication a new era of prosperity, which had been slowly dawning since about 1876, greatly assisted the territory in recovering from its embarrassed financial condition. This, together with the restrictions placed upon reckless expenditure by congress, and the faithful admonitions of Potts, who still held the executive office to the satisfaction of both political parties, finally accomplished the redemption of the territory. When the governor found that at the meeting of the twelfth legislature the several counties still owed an aggregate debt of $619,899.86, he pointed out over again that this exhibit did not sustain their boasted ability for local self-government, and that it must deter immigration, and retard the admission of Montana as a state, recommending certain improvements in the laws regulating county affairs.
On the contrary, the improvement in territorial finances was encouraging, there being a net indebtedness remaining of only a little more than $20,000. Few reforms in county administrations were accomplished at this session, and at the meeting of the thirteenth legislature, in January 1883, the county indebtedness had reached the sum of $658,974.32, and this, while the assessed valuation of the territory reached the sum of $33,211,319.12. The revenue for territorial purposes amounted to $90,803.47, an the treasury of Montana had a surplus of over $14 000 in its coffers.
Here, at last, the territorial craft found clear sailing. With regard to the public institutions necessary to the peace, the penitentiary contained sixty-seven convicts, whose maintenance cost seventy-five cents day, ten of whom earned fifty cents daily at contract labor. During the year 1884 the central portion of the penitentiary building was in process of erection. Fifty-six insane persons were provided for and treated at the public expense, by the contract system. The school system of Montana had reached a condition of much excellence, the schools being graded, and none but competent teachers employed. The population had increased to 40,000, and there was a renewed movement toward a state constitution. Just at this period, after more than twelve years of wise administration. Governor Potts was removed, and Job Schuyler Crosby appointed to succeed him, who assumed office on the 15th of January, 1883, four days after the meeting of the legislative assembly. Crosby was soon succeeded in the executive office by B. Piatt Carpenter, who also served but a brief term, during which the fourteenth regular session of the legislative assembly was held. In 1885 the earnest desire of the people was gratified by the appointment of one of their own number, S. T. Hauser, governor of Montana. At this favorable period let us turn to the material history of the territory.
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Suit was brought in the district court of Virginia City, and appealed to the Supreme Court, and again appealed to the U. S. Supreme Court, which refused to consider it, and it came back to the Supreme Court of Montana. Meanwhile Rodgers held the office from 1867 to February 1874, four years of the time illegally. The territorial treasurers appointed from 1864 to 1875 were J. J. Hull, 2 years; John S. Rockfellow, l½ years; W. 0. Barkley, nearly 4 years, during which time Leander W. Frary was appointed, in 1869, but failed to obtain possession of the office; Richard O. Hickman, 4 years; Daniel H. Weston. The territorial auditors were John S. Lott, 2 years; John H. Ming, 1 year; William H. Rodgers, over 7 years, or from Dec. 1867 to Fob. 1874; James L. Fisk, appointed in 1869, but unable to obtain possession of the office; George Calloway, who resigned in Dec. 1874; Solomon Star, who held until Jan. 1876, and resigned; David H. Cuthbert. The superintendents of public instruction were, Thomas J. Dimsdale, 2 years; Peter Rowen and Alexander Barrett, both of whom immediately resigned; A. M. S. Carpenter, 1866 to 1867; Thomas F. Campbell, 2 years; James H. Mills, resigned; S. G. Lathrop, 1869; Cornelius Hedges, 1872. Con. Hist. Soc. Mont., 332-3.↵
John S. Tooker was Secretary of the Territory; the judges, the same as in 1883, except that John Coburn was in charge of the 1st district;
Attorney General, William H. Hunt. Mont. Jour. Council, 1885.↵
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