HISTORY OF TUSCOLA COUNTY

Page 21

JUDICIAL HISTORY

By Hon. B. W. Huston.

Tuscola County was organized in 1850, and the circuit court for Saginaw County given jurisdiction over the same. No business however, was transacted in the circuit court under the foregoing provision.

In 1851 the State was divided into eight judicial districts, the seventh being composed of Lapeer, Genesee, Saginaw, Shiawassee, Livingston, Tuscola, and Midland Counties. Hon. Sanford M. Green, now judge at Bay City, who resided at Pontiac, was the first circuit judge. At this time there was no railroad nearer to Vassar, where the courts were held, than Pontiac, the judge having to make the trip by stage and private conveyance. He usually came up from Flint, with some of the attorneys who were in te habit of attending court at Vassar. The court was held in May, the country sparsely settled, and the roads almost impassable at that time of the year. Judge Green gave great satisfaction to the people, and was, as he is now, an able and upright judge, having few peers on the bench.

The first term of court held in Tuscola County was May 25, 1852, Judge Green presiding, and the business transacted is best shown by the journal entry, which is as follows:

"At a special term of the circuit court for the county of Tuscola begun and held at the court-room of the township of Vassar, in said county, on Tuesday, the twenty-fifth day of May, in the year of our Lord, 1852; present, Hon, Sanford M. Green, circuit judge.

"There being no business to be transacted, the court adjourned without day."

Thus ended the first term of court for Tuscola County. Happy indeed would it have been if it could always have been thus; but there were no lawyers in Tuscola then.

The second term of the circuit court was held in Vassar, in May, 1854, continuing three days. The very first business of the court was the ordering of a grand jury. It was at this time the legal profession first made its appearance here. Hon. John Moore and Hon. J. G. Sutherland, both of Saginaw City, being present. Mr. Moore became one of the leading lawyers of the State, and was very popular with the pioneers of Tuscola. He was the first prosecuting attorney, in which capacity he was then acting. Mr. Sutherland was equally as prominent as Mr. Moore, and was afterward a member of congress and a circuit judge. He held two terms for Judge Turner, in this county. He is now at Salt Lake City, and has a large practice and a national reputation.

The names of the grand jury summoned were as follows: Wesley Armstrong, Lucius Preston, Frederick Bourns, Hugh Maxwell, Wing R. Bartlett, Samuel North, J. G. Belknap, Matthew D. North, Alonzo W. Davis, T. M. Histed, E. W. Perry, Eben Morse, James Whaley, Nelson Hews, Albert Haner, Benjamin Gardner, Paschal Richardson, O. A. Gibbs, Lewis H. Sturges, David G. Slafter, Edward Sturges, and William H. Randall. E. W. Perry was elected foreman of the jury. Of this jury, Mr. Richardson and Mr. Slafter were afterward members of the State legislature, and Mr. Bourns county clerk for eight years. So far as known, the following members of this jury are dead, viz: Lucius Preston, Hugh Maxwell, Samuel North, J. G Belknap, Alonzo W. Davis, E. W. Perry, James Whaley, Nelson Hews, Paschal Richardson, Lewis H. Sturges, and Edward Sturges. Mr. Preston was killed in the battle of Kenesaw Mountain, in 1864, and Mr. Hews died from disease contracted in the service. They were both members of Company D, Twenty-third Michigan Volunteers Infantry.

The jury found two indictments, which of course were the first indictments found in the county; one against Milton Whitney, a well-known justice of the peace at that time, and for several years after, of Arbela Township, the charge against him being "for undertaking to join in marriage William Hunter and Julia Ann Hammond, knowing of a legal impediment" to the proposed marriage. Whitney recognized for his appearance for trial at the next term of court, in the sum of $100. The other indictment was found against Mary E. McFarland, the crime charged being murder. She gave bail for her appearance for trial at the next term of court, in the sum of $1,000.

The other business transacted at this term of court was one certiorari case heard and reversed, an appeal case dismissed, and two judgments by default, aggregating $257.86

One year from this time the third term of court was held at Vassar in the ball-room of the old Vassar Hotel, which was destroyed by fire some years ago, one of the early landmarks on Cass River. Judge Green presided and the court convened May 22, 1855. Harvey Joslin was admitted to practice at this term, being the first attorney admitted in Tuscola County. He remained in the county a few months, then went to East Saginaw, where he was in practice several years, removing from there to Grand Rapids, where he now resides.

There was one judgment taken at this term of court by default: Mary E. McFarland was tried upon the indictment found against her at the last term of court, and acquitted.

This was the first jury case in the circuit court, and the following named gentlemen composed the jury, to wit: DeWitt Norton, Milo Gates, Dennis Spooner, John D. Joslin, David G. Slafter, Alfred Holmes, Elliot Burnett, Joshua D. Smith, John Baker, Oliver A. Dickinson, Charles Anthony and David H. Andrews. John Moore was prosecuting attorney and tried the case on behalf of the people, and the writer defended. It appears by the above that the first criminal case tried in the court we are now referring to was that of murder. Hons. William Norton, now circuit judge at Flint, Levi Walker, of Flint, J. G. Sutherland, William L. Webber and some other attorneys were present.

May 27, 1856, the court again convened. Judge Green was present and presided, this being the last term of court he held in the county.

Old citizens will remember the intense excitement that prevailed among the people when the grand jury brought in, as it did at this term, an indictment against three of the leading citizens of the county on a charge of conspiracy. The case was tried at the next term of court and the defendants acquitted without the jury retiring from their seats. Gov. Wisner was present as counsel for the defendants. A large number of attorneys were present from Flint, Saginaw and other counties, and the little village of Vassar was full of people. The two hotels could not furnish beds, and attorneys, jurymen, sheriffs and witnesses obtained a night's rest by

Page 22

sleeping on the floor at the hotels or otherwise as best they could. H. P. Atwood, of Caro, appeared on record in some cases for the first time, and he has remained in practice to the present date.

Jacob Allen, a well-to-do farmer of Juniata Township, was admitted to citizenship at this term of court. He was the first person admitted to citizenship in Tuscola County.

It was at this term of court that a well-known attorney, in a divorce case, had his bill of complaint dismissed because some of the pages were "wrong end up."

In the spring of 1857 Hon. Josiah Turner, of Howell, Livingston County, was elected circuit judge of the Seventh Judicial District, term to commence January 1, 1858. Judge Green, however, having resigned, Judge Turner was appointed to the vacancy, and held his first term in this county at Vassar, May 26, 1857. Judge Turner continued to fill the position of judge of the Seventh Judicial District until the organization of the Twenty-fourth District in 1879, which consists of Huron, Sanilac and Tuscola Counties. During the most of this time he was very popular with the people as well as the attorneys. He was an upright judge, lacking somewhat in industry. Had he brought more industry to the bench he would have been the equal in ability of any judge in the State.

When Judge Turner came to the bench, Bay County had been organized and attached to the Seventh District, and during his long and honorable period of service, the judicial districts were trebled, a number of new judicial districts being carved out of the Seventh. Large and flourishing cities had grown up where there were only woods, among which is the third city of the State, there being now the cities of East Saginaw, Saginaw, West Bay City and Bay City, which were mere hamlets, that in the aggregate have at this time 75,000 population.

The present judicial district, composed of Huron, Tuscola and Sanilac Counties, was formed in 1879. At the annual town meetings in the spring of that year Hon. Levi L. Wixson was elected circuit judge for two years, and re-elected for six years in the spring of 1881. At the time of his election Judge Wixson resided at Lexington, in Sanilac County. He now resides at Caro, the county seat of Tuscola County. Judge Wixson was born January 9, 1829, admitted to the bar in 1861, graduated from the law department of Michigan University in 1862, graduated form the law department of Michigan University in 1862, and was in practice from that time until his election as judge. He was three time elected prosecuting attorney and three times judge of probate of Sanilac County. He is an able, honest and painstaking judge.

It may be well, at this point in this sketch, to refer to some of the most prominent members of the bar in this county in the last quarter of a century. Henry P. Atwood, who commenced practice in this county in 1856 and still continues in practice, has during all that time, been prominently before the people. He was born April 13, 1822, in Tompkins County, N. Y. He came to Ingham County in this State, in 1836. He was county clerk in Ingham County in 1848 and 1849; was a member of the house of representatives from Tuscola County in 1855. He was elected prosecuting attorney in 1860, his opponent being the writer, and re-elected in 1862 and 1864 without opposition. He was in 1872 again elected prosecuting attorney, his opponent being C. P. Black, and re-elected in 1874. No man, owing to his long residence in the county, his prominence at the bar, and the public positions he has held, is better known to the people of this and surrounding counties than is Mr. Atwood. He is now and has been one of the leading lawyers of the county.

C. P. Black is an able lawyer, and owing to his having been a candidate for congress several times, has a State reputation. He came to Tuscola County in 1866 and was admitted to the bar in 1867. In 1873 he went to Marquette and was elected prosecuting Attorney of that county. He afterward returned to Tuscola County and now resides at Caro. He is a representative of the Second Representative District of the county in the State legislature. Mr. Black is an able lawyer, very popular with the people and justly has many warm friends.

In the spring of 1868 John P. Hoyt came to Vassar and settled. He was a young attorney looking for a place to locate. He went into the law office of B. W. Huston, was elected prosecuting attorney in the fall, re-elected in 1870, and elected to the house of representatives in 1872, re-elected in 1874, and on the convening of the legislature was elected speaker. In June 1876, he was appointed by the President, secre3tary of Arizona Territory and subsequently governor. He is now one of the judges of the supreme court of Washington Territory. Mr. Hoyt was only an average advocate, but as a lawyer Tuscola County has yet had, either on the bench or at the bar.

One of the most promising young men that was ever admitted to the Tuscola bar was Prof. L. D. Keyes, the first principal of the Vassar Union School. He was a man of energy and pluck. On the breaking out of the rebellion he raised a company, went into the service as captain and was killed in battle in October, 1862.

John L. Richardson, of Tuscola, at present a member of the bar, was in the army as lieutenant and did good service for his country. Mr. Richardson is a good lawyer, and has many friends.

Also among the prominent attorneys in the county may be mentioned R. P. Edson, B. L. Rainsford and T. C. Quinn, of Caro, E. H. Taylor, of Vassar, at present prosecuting attorney, A. B. Markham, of Mayville, and D. E. Dozer, of Unionville. There are in addition to the foregoing the following members of the bar, some in practice and some not. D. G. Wilder, of Watrousville, Henry Dozer, of Unionville; E. B. Landon, H. Butler, of Cass City; William N. West, Fred S. Wheat, L. H. Orr, H. H. Markham, William C. Buchanan, T. W. Atwood, George F. Gilly, George W. Davis, of Caro; D. B. Richardson and J. M. Torry, of Millington; H. S. Hadsall, George S. Sales, F. L. Fales, of Vassar.

In March, 1860, Oliver L. Spaulding, now of Chicago, was admitted. His examination consisted of his singing the song. "He was a fine old Deutcher Shentleman."
In 1860 the county seat case arose. The board of supervisors assumed to remove the county seat from Vassar to "Moonshine." The latter was the name given to a point near Cass City on the bank of Cass River and only three or four miles from the county line between Sanilac and Tuscola Counties. The excitement was at white heat at the special meeting of the board and the friends of removal persistent. The history of this matter is elsewhere given. The injunction case went through the courts and the injunction was sustained.

Some amusing incidents occurred at the sittings of the court during the early years of the county. In 1860, Hon. A. P. Davis, of Flint, who was then State senator, was present. He was a man easily imposed upon. He was anxious to be nominated to congress by the Republicans, and during the term he and his political friends determined to hold a Republican meeting in the court-room. There was a large number of lawyers present, and among them Hons. J. G. Sutherland, Sumner Howard, William Newton and C. H. Wisner, all royal good fellows, lovers of fun and at that time nearly all Democrats. Knowing Mr. Davis' weakness the boys determined to capture the organization of the meeting, and did so by being on hand before the prominent Republicans knew what was projected. Mr. Sutherland was duly elected chairman of the meeting and made one of his witty speeches in introducing Mr. Davis as the speaker

Page 23

For the evening, calling the attention of the people to the great obligations they were under to Mr. Davis for his proposed amendment, in the senate, to the game law by changing the orthography of the word "woodcock." The Democrats gave Mr. Davis rounds of applause and kept him speaking more than two hours to their amusement and the disgust of Republicans. A committee of Democrats was appointed to draft resolutions which were drawn up, presented and adopted with due solemnity and to the great delight of Mr. Davis, who presented them to the Tuscola County Pioneer for publication. He also took them to Flint and had them published in the Democratic paper there, remarking that "Bartlett would not publish them in the Pioneer because they spoke of the bad roads in Tuscola County."

It was at this term of court that a lover of fun sent a attorney, who had driven into Vassar to attend court for the first time, up the Vassar hill to find the hotel where the "lawyers stopped." The Vassar hill at that time of the year, on account of a spring about half way up, was impassable and in a short time lawyer and horse were floundering in the mud.

We have referred to Milton Whitney the Arbela justice. A case was brought before him to recover for a horse accidentally killed. The defendant appeared with two attorneys, the plaintiff with one and the justice – the case was to be tried by jury. Before the trial began the justice took the plaintiff's attorney one side and said to him. "If there is any evidence you do not want to go to the jury, object, object strong, and it will be all right." The trial commenced; the plaintiff's counsel followed instructions, and the justice and the two attorneys for the defendant had it "hot and heavy" all night, and the justice won the case.

It was the same justice who in another case decided that if a party proved one item of his account it proved the whole and the other party could not introduce any evidence against it.

In 1858 Thomas Rutherford sued N. W. Perkins before A. Pennell, Esq., the proprietor of the People's House at Vassar, for damages done to his growing potatoes by Perkins' hogs. Each of the parties had his attorney present, both of whom are still practicing in the county. The plaintiff proved the trespass and the damages. The defendant then proved that the plaintiff had no fence around his field as required by law at that time. To meet this position the plaintiff's attorney made a long and elaborate argument, during which he read considerable law, though none of it met the case as there was no such law, to prove the law unconstitutional that prohibited recovery in such cases without having a lawful fence. The defendant's counsel made a long and eloquent argument in reply, insisting among other things that it was "absurd" for a justice of the peace to pass upon the constitutionality of the acts of the legislature. When he closed the justice said, "I decide that law unconstitutional; "whereupon the defendant's counsel forgetting the respect due the bench, shook his clenched fist under the justice's nose and indulged in the following comment, "You d –d old fool." The plaintiff had judgment and obtained pay for the potatoes. At this time both of these attorneys resided at Vassar; one of them always brought his suits before Pennell, the other before J. G. Belknap, another justice, and it is well known that neither or them ever lost a case. On one occasion the attorney who had influence in Belknap's court "got even" with his friend who was the favorite in Pennell's court. A case was pending before Belknap that was not properly brought; the defendant's counsel moved to dismiss, read the law and referred to the authority in Tiffany's justice guide. When he had concluded his remarks the justice said, " I beg leave to differ with Mr. Tiffany," and overruled the motion. When Mr. Atwood was a candidate for representative, Mr. Belknap was at the polls, worked hard for Mr. Atwood all day, forgot to vote himself.

Time and space will not permit relating any further experiences in justice court though a large volume might be filled with them.

When the writer commenced practice in the spring of 1855 there were only two postoffices in the county-one at Tuscola and one at Vassar. The scattered settlers for over forty miles up the Cass River, at Sebewaing and as far as Port Austin in Huron County, received their mail at Vassar. There was no postoffice in Huron Co9unty and one between Vassar and Lexington. The roads were only Indian trails and lumber roads cut through the woods to lumber camps along the streams. There was no livery at Vassar; the writer was too poor to own a horse and frequently went in those early days to suit and legal business on foot to Sebewaing and other points thirty and forty miles distant. The attorney of to-day can have no adequate idea of the hardships and incidents of the practice in justice courts at that time. To obtain a jury it would not infrequently be necessary to obtain every available man for miles around, even at a distance of six to ten miles, requiring a day or more of time. When engaged in justice court practice the attorney usually made his home in the primitive house of his client or in some lumber camp. In that early day the wants of the attorney were moderate and the pay the same. A trip to Sebewaing on foot, taking three days' time, a distance of thirty-two miles, was worth $15. Four dollars a day were an outside figure, and in a long case deductions were made. I refer to the above so that the curious may contrast the great change that has taken place in legal practice in the last twenty-eight years in this county, as well as in all that makes a people wealthy, happy and prosperous.

A POETIC INCIDENT

It is not usual to sift the sweepings of a court room for poetry, but the following shows that such a search would sometimes be rewarded. In June, 1878, among the criminal cases being tried in the circuit court at Caro was that of a young man named Myers, charged with stealing a horse while on his way from Bay City to some point in Tuscola County. Myers claimed to have found the horse by the roadside and being weary borrowed it temporarily for a ride. He was defended by Hon. C. P. Black, of Caro. O. J. Atkinson, a lawyer from Port Huron, was trying a case and agreed with Mr. Black that if he would make the plea in his case, he, Atkinson, would write an argument for Mr. Black in his Myers' case. Mr. Black made the plea, during which Mr. Atkinson wrote a poem, which Mr. Black read to the jury, and submitted his case without anything additional. The jury acquitted the prisoner. The allusion to "Moonshine" will be understood when it is remembered that when the county seat was located at Cass City the place was called Moonshine. The poem was as follows:

Myers was on his way to Moonshine,

Where sage justice took her seat;

When the sun poured down hot terror,

Myers trod with weary feet

Up the sandy road to Moonshine,

Up where frogs and lizards meet.

Myers was tired; his feet were weary;

Walking long his strength had tired,

And seized with moral kleptonmania

Myers resolved to take a ride

Up the sandy road to Moonshine,

Up where frogs and lizards hide.

So he took a horse found grazing

On the highway, near the hill,

Scorning saddle, girt or bridle,

Guiding only by his will

Riding up the road to Moonshine,

Where frogs and lizards still.

Page 24

But the people-God forgive them-

By their scion of the law,

Looking at this whole proceeding,

Crimes and misdemeanors draw

Such a people, such a scion,

None but Moonshine ever saw.