and at Kearny city; if so, at whose instance and for what purpose? Answer. I was at Fort Kearny, and also at Kearny city, or Dobytown, as it is called. I went at the instance of Mr. Daily, for the purpose of getting a copy of the poll-book, and investigating the matters of the elections held there and at Nebraska-Centre and Centralia, in Buffalo county. 3d question. Will you describe the place you call Kearny city, or Dobytown? Answer. It lies on the south side of the Platte river, two miles west of Fort Kearny. I judge there are not over eight houses--three business houses I was in; two of them used as ranches, keeping groceries, liquors, &c., the other was a drinking house or saloon. Rankin's ranch was the largest of any; it is a one story sod or adobe house, also covered with sod; it is about twenty or twenty-two feet wide and sixty long. The other houses are of the same material and one story high, but not as large; the dram shop is probably sixteen by eighteen feet, and the other buildings are about the same size. 4th question. State whether or not the other buildings: are occupied as domicils (sic)? Answer. I think they were all occupied with the exception of the one they call the "town house" or "state house," and I do not know whether that was occupied or not; I saw no signs of any one living there.35 5th question. State whether or not Kearny city is on the direct line of thoroughfare between the Missouri river and the mines; and whether that is a point where they cross the Platte river? Answer. I think it is. I know of no other thoroughfare from a point on the Missouri north of Leavenworth. It is the main crossing place for those travelling west from the Missouri river on the north side of the Platte. 6th question. State whether or not there has been a large amount of travel on the north side of the Platte river, over this route, during the past summer and fall, to and from the mines? Answer. There has been. 7th question. State what is the southern boundary of Buffalo county. Answer. It is bounded on the south by the Platte river. |
8th question. In what direction is Buffalo county from Kearny city? Answer. Directly north on the other side of the Platte river; Kearny city being on the south side of the river. 9th question. State how many men you saw at Kearny city, apparently residents of the place and not connected with the army or the fort. (Objected to by the counsel for Mr. Estabrook . . .) Answer. I saw not to exceed fifteen. I saw two parties from the mines driving through there, who stopped and made some purchases. 10th question. State whether or not you saw any evidences of agricultural improvement about Kearny city. (Objected to by counsel for Mr. Estabrook on the ground of irrelevancy.) Answer. I did not see one acre of cultivated land or a farm house. 11th question. State whether, during your visit there, you were at Fort Kearny, and what number of troops there are there, and what other settlers connected with the army? Answer. I was at the fort, and was informed there were three companies; I could not say how many others, but suppose a considerable number, judging from the number of teams I saw hauling wood from the island. 16th question. How long were you at Nebraska Centre, and how many men did you see there apparently residents of that place? Answer. I was there above eighteen hours, and I saw only three persons there who appeared to be residents. 17th question. Describe the place called Nebraska Centre. Answer. It has one dwelling-house, one storehouse, one barn or stable, and one warehouse.36 18th question. What number of votes purports to have been given there, according to the certified copy of the poll-book now in the hand of the witness, and for whom given for delegate to Congress? (Objected to by counsel for Mr. Estabrook on the ground that it is not the best evidence.) Answer. Thirty-eight votes were given, and all of them for Experience Estabrook. |
19th question. Describe the placed called Centralia. Answer. There is no such town as Centralia, but [that] is the name given to a precinct. The election purports to have been held at the house of Mr. Johnson, on Wood river.37 20th question. What evidence did you discover, if any, of settlements and improvements in the neighborhood of Nebraska Centre? Answer. I saw one farm at Nebraska Centre under cultivation, and one or two this side of there just opening for cultivation. There might have been one or two farms more opened, but I cannot swear there were any more. 21st question. State whether or not Nebraska Centre and Centralia are on the direct line of thoroughfare from the Missouri river to the mines. Answer.. They are. 29th question. You state that you went
to Centralia; how many houses did you see about there? 36th question. Of how many distinct papers did the copies of the returns consist, which you brought in from Buffalo county? Answer. Two from Buffalo county, and one from what is called the Kearny city precinct. 37th question. In what way were the different slips of paper on which those copies were made connected together when you received them from the clerk of Buffalo county? Answer. By mucilage. 40th question. Has any person written anything or added anything to those copies since they came into your hands? Answer. There has been on the one from the poll-books of Kearny city precinct. It was done by me to satisfy my |
self as to the number of actual voters in that precinct. I have added to the name of M. F. Nichols the words, in pencil, "lives in Elkhorn." Opposite the name of William D. Thomas, I have written in pencil "Elkhorn." Opposite the name of L. B. Jenks, I have written with pencil the word "Elkhorn." Opposite the name of Samuel Armstrong, 1. have written in pencil the word "soldier." Opposite the name of Elisha T. Eldrin, I have written with pencil the word, "Omaha." Upon the other copies there is no writing. 1st question. Opposite many of the
names on the copy of the poll-book from Kearny city I see
short pencil marks. Explain those marks. |
Samuel W. Black, of lawful age, being first duly sworn according to law, makes the following answers to the questions proposed, to wit: 1st question. What is your age, occupation, and place of residence? Answer. Age, 42; Governor of Nebraska; and residence, Nebraska city. 2d question. State, if you please, whether you took any and what steps, and at what time, for the purpose of having an election held, last October, in the county of Buffalo? Answer. I took no steps whatever in reference to the October election in Buffalo county. But I wish to state all the connexion I had with Buffalo county, in my capacity as governor of the territory or otherwise. Some time in the month of May last, and shortly after my arrival in Omaha, which I think was my first visit subsequent to my appointment, I was either applied to or asked to appoint the county officers for Buffalo county; at or about the same time, applications were received from other portions of this Territory, in the west, requesting me, if I had the power, to organize counties. My belief was that I had no such power; but I investigated the law fully, and was confirmed in my belief that I did not possess the power. I also was satisfied from investigation that I had not the power to appoint officers in an organized county. I found by the statutes, I think of 1855, that Buffalo county was fully organized by the act of the territorial legislature. In some of the counties the legislature has merely defined the boundaries; in others, they make use of the language "organized, or erected into a county." This is my recollection of the language, without having recently examined the statute. In regard to Buffalo county, the title of the act is, "to organize Buffalo county;" and, now having the act before me, I find the language to be, "is hereby declared organized into a county to be called Buffalo;" and, further, "the seat of justice is hereby located at Nebraska Centre." I declined to appoint officers for Buffalo county, but investigated the law, in connexion with Judge Wakeley, who happened to be present when I was looking at the question. He and I agreed, however, about the course which was lawful and proper, so far as Buffalo county was concerned, or any other county in a like situation, which was, as nearly as I recollect, that the county commission- 17 |
ers of the nearest county on the east, and not as formerly, the probate judge, were authorized to take the initiative steps on the application of the people of the county, in which officers had never been elected. I do not pretend to give the instructions fully, but they were given in accordance with his belief and mine as to what was the law. The papers were returned to me purporting to set forth the choice of officers by the electors of Buffalo county. I think they set forth that the choice was made on the 25th of June, 1859. 1 cannot recollect all that the papers contained, but there was a request that the officers should be commissioned by the Governor in pursuance of the choice of the people. There was no action taken on this request until after my return from the Pawnee expedition. I directed commissions to be issued without considering them absolutely necessary, but because I understood that it was the desire of the people that the commissions should come from the executive. I ought to state here that I observed in the secretary's office, a day or two ago, in the minute book of that office, that the word appoint is used instead of commission. This I think is a clerical error, and does not correspond with the request contained in the proceedings transmitted to me. These commissions appear to have been issued July 26, 1859. 1 wish to state further distinctly that my action in regard to Buffalo county had no reference whatever to the last October election, nor to any other election; but because I was led to believe, and did believe, that the people of the county desired in good faith that the county should be put into working operation, and I am of the opinion (and this no doubt influenced me in some degree to aid them so far as possible and right) that as many inhabited counties as possible should be fully organized and invested with all their rights, not only as an act of justice to them, but they pay their share of the territorial taxes, which is an act of justice to the other counties of the Territory. From the 26th of July last, I had no further connexion with Buffalo county until I received the returns of the election. 3d question. Can you state, sir, whether the application or request of which you have spoken, in relation to Buffalo county, was in writing, and, if so, whether it is on file in the executive department? Answer. The first application, in May, was verbal, and |
I recollect very distinctly that I refused to have anything to do with it on a mere verbal representation, but stated to the person or persons that the proper course was for the people to make their application to me in writing, or to send any proceedings on which they wished me to act; and their proceedings, whatever they were, are, I believe, on file in the secretary's office. 4th question. You spoke of a return of the selection of officers made by the people; is that also on file? Answer. I believe it is, although I cannot speak positively of these or any other papers, as my habit is to hand them to the secretary or my private secretary. 5th question. You have said, sir, that applications were made to you for the organization of other counties besides Buffalo county; did you issue commissions for the officers of any of those other counties? Answer. I did not issue commissions, because those counties were not organized counties, and my judgment is that the legislature only can organize counties. The application to me, so far as Buffalo county is concerned, was not to organize the county, for that the legislature had already done.  SATURDAY
MORNING, December 24, 1859.6th question. Are we to understand it to be your opinion, then, that Buffalo county became an organized county in virtue of the act creating it, by reason of the title of the act and of the use therein of the words "organized into a county," instead of the words "erected into a county," or the words "constituted a county," used in other acts? Answer. I do not stop, as I have a perfect right to do, to. take exception to this most extraordinary and illegal question. I have already stated why I thought it right to pursue the line of conduct set forth in my testimony already given. I say the question is extraordinary and illegal, because the witness is asked to testify on oath as a witness to his present opinion of a purely legal question. My opinion is, that Buffalo county was organized into a county because the legislature said so. That passing an act entitled "An act to organize Buffalo county," which is as follows: "Section 1. Be it enacted by the council and house of representatives of the Territory of Nebraska, That all that portion of territory included in the following |
limits is hereby declared organized into a county to be called Buffalo: commencing at a point in the centre of the Platte river ten miles east from the mouth of Wood river; running thence westward, up the southern channel of the Platte, to the mouth of Buffalo creek; thence north thirty miles; thence east to a point directly north of the place of beginning; thence south to the place of beginning. The seat of justice is hereby located at Nebraska Centre. Section 2. This act to take effect from and after its passage. Approved March 14, 1855,"--did mean all that it said, and did organize the county in law. 1. answer further, it is not because the word used is "organized," instead of the words either "constituted" or "erected" into a county, but because the words of organization in this act, to my mind, are entirely sufficient to show the intention of the legislature. I consider the title of the act as indicative of the legislative intention, when taken in connexion with the body of the act. Further, and I am of the opinion that "constituting" or "erecting" into a county might have the same effect, or that other words of similar import might convey the same idea, as for instance, Douglas county, in which the capital of the Territory is situated, is "hereby declared to be known and called by the name of Douglas county," although there is no other language of positive organization. So Otoe county, in which Nebraska City is situated, was organized by the following language: "is hereby declared and called by the name of Otoe county," there being no other words of positive organization as to that county, except those which I have quoted. I might say further that I think there is a manifest distinction, in the territorial statutes, between organizing a county by positive enactment and merely defining their boundaries. 7th question. State, if you please, what, in your judgment, constitutes the essential difference between an organized and an unorganized county? Answer. I answer that I decline to give any opinion on that subject, inasmuch as I am not able to see that it has any connexion whatever with the matter in band, and is asking my opinion on a mere abstract question of law. 8th question. Supposing that at the date of the passage of the law creating the county of Buffalo, the district of country embraced within its limits was notoriously destitute of white inhabitants, would you still be of opin- |
ion that it became, in virtue of the act, de facto an organized county? (Objected to by counsel for Mr. Estabrook . . .) Answer. I answer first, that I know nothing about the condition of the Territory when this act was passed, and suppose that the legislature knew their own business. When I construe laws I endeavor to construe them by the well known rules laid down. And further, I have stated fully all that I know about the facts in this case, and have given my reasons for the course I thought it right to pursue; besides, I am not a law student under examination before this commission. 11th question. At the time you examined the laws and came to your final conclusion relative to Buffalo county, as stated by you yesterday, did you examine the act of 1855, at page 222, entitled "An act in relation to new counties?" Answer. My recollection is, that Judge Wakel[e]y and myself examined that act. 12th question. On what ground was it that you came to the conclusion that this act was inapplicable to the case of Buffalo county? Answer. We did not come to the conclusion particularly that it was inapplicable to Buffalo county as differing from any other county, but that the act itself was modified by laws of a later date as to the powers of a probate judge. 13th question. State, if you please, what laws you now refer to. Answer. We considered that the act of January 23, 1856, pages 70, 71, and 72, taken in connexion with other acts which we also examined, transferred the powers of the probate judge, in a great many respects, to the county commissioners, and this was one of them. 14th question. Mention, if you please, the other acts to which you have referred. Answer. I do not now recollect them, and it was difficult then to find them by the indexes; but I know that we made a very thorough examination of the laws, and agreed that the power now was in the county commissioners which had formerly belonged to the probate judge. 15th question. What power? Answer. The power to order an election, in the first instance, for county officers. |
16th question. Did you consider the act in relation to new counties to have been modified in any other particular except by the substitution of county commisioners (sic) for the judge of probate? Answer. I do not recollect that our attention was fixed on anything else but a modification of the powers of the probate judge generally. 17th question. Your answer seems to infer, then, that you were of opinion that the act in relation to new counties, modified in the manner you have stated, by the substitution of the county commissioners for the probate judge, was applicable to Buffalo county, in common with other counties; state, if you please, whether or no you design to be so understood. Answer. I did not say that in the way the question is put. 18th question. How, then, do you desire to be understood upon this point? Answer. I design to be understood as saying that whether that act applied to Buffalo county or not, the probate judge, as the law now stands, was not the person to order an election in the first instance. 19th question. I did not inquire as to that; answer the question as put, if you please. Answer. I have given what I think is a sufficient and fair answer. Other questions may have arisen then on that act, but I am not now able to recall them. 20th question. Do you remember whether, in answer to the applications that were made to you in behalf of Buffalo county, you referred the applicants to the act in relation to new counties as their guide? Answer. I do not think that we did; but under all the laws then in force gave them what we, or I, supposed was the right course to be pursued. 21st question. What is the course you prescribed? Answer. It would be very hard for me or any man to recollect all the details of the law, but I recollect that having all the laws before us we pointed out the course indicated by them, and directed the person or persons to see that the laws were followed. 22d question. State, if you remember, whether the directions you gave were in any respect variant from those |
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