CONGER: Speech to the White County Historical Society 03.23.09
by Robert Wick

 

Unless one had been blessed with special foresight, readers of the Carmi Weekly Times might not have noticed that something was afoot. In the August 19, 1879 edition, the Republican-leaning paper proclaimed a “love feast” had taken place a few days earlier at the home of Everton J. Conger. “The occasion” the newspaper reported, “was the serenading of his brother, Hon. O.D. Conger, of Michigan, who after the band had discoursed some of its best music, came forward and delivered a very able and interesting speech, touching up the evils of the teachings of states rights, the overbearance of the rebel brigadiers and offering words of cheer to the disheartened in this section.” The failure of reconstruction, which the Republicans abandoned in order to get Rutherford B. Hayes elected president in 1876, was still a bitter pill for many northerners.

If any wondered whether Omar Conger traveled from Washington to Carmi just to make a speech, it wasn’t mentioned in the paper. It’s likely few thought more of it than a son visiting his widowed mother, possibly for the last time, and two brothers. Indeed, in just three short years, his mother would join her husband in the Old Graveyard just a short distance from where we gather tonight.

However, there was much more to Omar’s visit than an attempt to restore familial ties. What that was would be revealed a mere five months later when the Times would report that out-going president Hayes had named Conger to the bench of the Territorial Supreme Court of Montana. Omar had come to Carmi to finalize the plans for the nomination.

About three weeks after the nomination was submitted, the Senate confirmed Everton to the bench, although the Senate journal called him Overton. It, however, did better than the Washington Post, which renamed the captor of Booth E.T. Cooper. In spite of these indignities, the city of Carmi was proud that one of its transplanted citizens was on his way to what they assumed had to be much greater glory than serving as police magistrate, although on the day it announced his confirmation, the Times opined that “one would think the office of Police Magistrate was the stepping stone to a seat on the Supreme bench, judging by the way candidates are coming out before any vacancy occurred in the office.”

Getting just over $2,500 for his property (or $53,000 in today’s money), Conger made preparations to move to Montana, a journey of approximately 1,600 miles. When Conger left in February of 1880, the newspaper reported that he was accompanied by a son. To be honest, I’m not sure that happened. We know for a fact that his wife, Emma, did not go with him. In fact, the census records of 1880 show the Conger family living in Fostoria, Ohio. For almost three years, Conger lived by himself in the Montana territory. I can remember when I interviewed Conger’s granddaughter, Helen P. Morgan in 1996. She told me that whenever her grandfather asked a man if he was married, and the man said he was, Conger would sadly shake his head and say “Oh, that poor man”. Turning serious, she told me “I guess their marriage wasn’t the best.” It is from this point, and what would happen later, that their marriage became strained.

One might not be too hard on Emma Conger if she didn’t want to travel to what could be best described as a God-forsaken wilderness. Why anyone would ask to become a territorial judge was a question with no easy answer.

Llewellyn L. Callaway, a former judge himself, once said "The judges came into an unsettled region, sparsely settled, the towns far apart, travel between arduous, mostly by stage coach". When the first courts were established in the 1860s, trial was often held in the dining room of a hotel or in whatever room was available.

Later, a Montana news paper described one "courtroom" as "devoted promiscuously to justice, dances, sermons, itinerant shows, and other useful and ornamental institutions.”

For the first three years of his term, Conger’s life on the bench was hectic. He detailed his life in Montana in a letter to his mother, dated Dec. 5, 1880, which the Times published 23 days later.

Traveling from city to city, Conger had been slowed by a snowstorm.

"It took two nights and one day to get thirty miles, with four and six horses on account of the snow drifts," he wrote.

Since he arrived, Conger had "held eight terms of Territorial Circuit Court, two terms United States District Court, one Supreme Court, traveled about 4,000 miles (since March!) and have commenced again, which will be continuous until some time about the last of January."

In a scene we today can only imagine, Conger reported seeing "40,000 buffalo within 1/4 of a mile to as far as I could see—and two days after, the coach coming along there had to stop for two hours as the herd was running across the road."

It’s not my intention this evening to go into a great amount of detail on the first three years of Conger’s term. Suffice it to say, he dealt with issues common to the west—mining claims, issues relating to Indians and issues relating to the Chinese laborers who were in the west helping build the railroads. It was because of those railroads, at least according to Conger, that his life would soon be turned upside down.

One of the interesting things about the Montana territory in the late 1800s is that if you had lived in Ohio, and had served in the Civil War, you had a better than average chance of serving in the territorial government. In addition to Conger, the Chief Justice of the Territorial Supreme Court, Decius Wade, was from Ohio. But there was one man in particular, also from Ohio, who would change Conger’s life forever.

Had Wilbur F. Sanders not done anything else in his life, his service to Montana in its early years would have guaranteed his fame. Born May 2, 1834 in New York, he eventually moved to Akron, Ohio where he studied law. At the outbreak of the Civil War he recruited a company of infantry and a battery of artillery in the summer of 1861 and was commissioned a first lieutenant in the Sixty-fourth Regiment, Ohio Infantry, of which regiment he was made adjutant. After his term of enlistment expired, he retired from the army.

When his uncle, Sidney Edgerton, was appointed by President Lincoln as territorial governor of Montana in 1863, Sanders went west with the family. Upon his arrival, it was soon clear that the territory was lawless and dangerous. Gold dust was the coin of the realm in that day and often times “road agents” as they were known would rob and kill innocent citizens. Speaking of Sanders in 1913, author C.C. Goodwin said:

“Colonel Sanders took his life in his hands and went about to subdue the lawless and to establish order. The decent people rallied to his support and the transformation was made. To do this it was necessary that a few of the worst of the ruffians should be hanged, and that duty was cheerfully performed. The transformation being made, the work of putting the region in order for the coming of full enlightenment was begun.

“Through the forty or more years of Colonel Sanders' life there, no one ever doubted his power or discounted his influence. If he did not have all the honors that were his due, no one was to blame but himself. His soul was as imperious as ever was Caesar's, and his tongue was perpetually firing poisoned arrows. He was tall and large and swarthy, and when excited his eyes were flames and like Job's war horse, his "neck was clothed with thunder."

He was not always right, but he always meant to be right. There was no compromise with him. Everything must be either right or it was all wrong, and when aught trenched upon the right, with him there was nothing to be done but crush the wrong. As all men cannot see alike, this disposition on his part made him enemies…” One of those enemies would become Everton J. Conger.

As he later remembered it, Conger felt he knew exactly when his troubles began.

“At Virginia City in November 1881 Col. Sanders presented to me complaints & asking an injunction to restrain the collector of Custer County from collecting certain taxes assessed against the NPRR Co. This request was denied but on the presentation of an amended and supplemental complaint in October 1882 I granted a preliminary injunction in the case.” That injunction was later overturned on what is known as a demurrer, which says a legal action is dismissed not because of its merits but because it didn’t fit as a point of law--in other words it was dismissed because of a legal technicality.

In the winter of 1882, Conger was asked by the treasurer of Custer County when a hearing would be scheduled to determine if the injunction against him collecting the taxes would be overturned. Conger, dumbfounded, said that no injunction had been granted. Later, when checking with the clerk of the court, he discovered that Chief Justice Wade, at the urging of Sanders, had issued an injunction. Furious at what he felt to be an usurpation of his territory, Conger at first refused to hear the case, but later relented.

Conger said in a statement that “While in Helena attending Supreme Court in January 1883, Col. James Callaway informed me that charges were to be preferred against me and asking for my removal, that he had been told by a lawyer in Helena, but declined to say who the person was and advised me to make some inquiry and make some effort to have them met. On this occasion I said to Col. Callaway “I know the person you have referred to, and the cause of the trouble. It is Col. Sanders and there are many reasons why he takes this course to persecute me, and I know an easy way out of the difficulty. You know that Custer County tax case is to be argued in court tomorrow. I have only to intimate a willingness to join or express a view that this Custer County tax case be reversed and go back so it can be started again, and no complaint will be heard from him. But I will not do it. I have honestly and conscientiously sustained the demurrer, have done but my duty and I will stand or fall by myself alone.”

Conger was convinced that this simple legal maneuver against the Northern Pacific Railroad was the cause of his troubles, and that Sanders was the instigator. Although the letters between Conger and his brother, Omar, are lost, Conger must have asked Omar to act on his behalf in Washington. On June 18, 1883, Omar wrote a letter to Attorney General Benjamin Brewster concerning letters he claimed showed “the animus of this attack upon the judge” and asking that the attorney general demand that the letters be produced and sent to Montana for the hearing which was to be held. Sanders denied that such letters existed, although Omar said he was informed about them by Charles Gray, chief counsel for the Northern Pacific.

That Conger would receive a hearing on these charges attested to the power his brother held.  The man appointed to conduct the hearing, Peter Shannon, was a 62-year-old former Chief Justice of the Territorial Supreme Court of the Dakota Territory. In May of 1883, he arrived in Helena, telegraphed Conger that he wished the hearing to take place in Bozeman, and after Conger agreed, Shannon went to Bozeman to begin the process, which even he knew was unprecedented and threatened to be long and drawn out. “I must say that, contrary to my expectations and desires in the matter, the investigation lasted a long time,” Shannon later told a Congressional hearing called, in part, to investigate Conger’s hearing. “The charges were numerous,” Shannon added.

Conger had been charged with drunkenness, gambling and keeping companionship with certain low and vile people. He was accused of being, as one witness later put it, “a bawdy house ruffian.” Although he knew that in answering the charges he would be opening his life up to a point that most people would find unbearable, Conger believed it was the only way he could successfully fight what he believed to be unconscionable persecution. An insight into his feelings at the time comes from a letter he wrote on May 4, 1883 to John B. Rice, a friend who lived in Fremont, Ohio.

In answering Rice’s inquiry into Conger’s well-being, Conger replied that “I should have replied to your inquiry “all right” but at present I am not pleasantly nor happily situated. You know why. A more unjust and malicious persecution I never knew of. The reasons assigned were not the true ones, and was only used as a means to an end.” Conger then tore into Sanders, whom he called “a malign Satan in human form.” He charged that Sanders, after he became counsel for the NPRR, “began to threaten and make charges, soliciting my friends to assist in my removal, and this kept growing until it culminated in charges to the govt. and I was at once suspended.” Conger added that he didn’t think the charges would have stuck had it not been for the action of the newly appointed Governor of the Montana Territory, John Schuyler Crosby, who had just been appointed by the man who suspended Conger, President Chester A. Arthur. Crosby and Arthur, both from New York State, were personal friends.

Conger remained hopeful, if not a little naïve. “I think I shall come out all right, for such an injustice will not be permitted, and when it is done, I hope to get even with some of the officials from this Territory, who were so ready to cry out against a man in trouble,” he wrote Rice.

While several people testified that they saw Conger either gamble or drink to excess, probably the most dramatic testimony came from Sanders, who once he took the stand on June 13 wasted no time in promoting himself and his service against the “road agents” he took on in the 1860s. Asked by former Territorial Supreme Court Justice Henry Blake, who served as counsel for those against Conger, to state what he knew of Conger’s conduct while on the bench, Sanders replied “I know at each of these places he was in the habit of drinking intoxicating liquor to excess.” Sanders added that he believed this excessive drinking affected him on nearly every occasion he saw him on the bench.

Conger was an inveterate gambler, Sanders said, even going so far as to claim that Conger introduced a game called “stud horse” poker into the territory. Law enforcement officers at the time were so concerned about “stud horse” poker that many places outlawed it because as one said “it fosters idleness, and tempts many young men of weak resolution to steal from their employers.”

Under cross-examination from Col. Callaway, Sanders became furious when asked if he hadn’t drank with Conger on certain occasions. “In the language of the Attorney General of the United States,” Sanders retorted, “I am not on trial.” Callaway, pressing Sanders, asked “do you decline to answer?” Sanders, in what amounted to a speech, said he didn’t mind answering if Commissioner Shannon would so desire. Shannon said he would have to think before he could rule if Sanders had to answer the question. It appears that Sanders never did.

Where Callaway intended to hit Sanders hardest was on the question of the influence of the Northern Pacific Railroad on the proceedings. Callaway first asked Sanders if he had, in his official capacity as attorney for the railroad, tried to make a settlement in the Custer County tax case with Willis W. Carland, who was treasurer of the county. Sanders denied this, saying he never believed Carland, who had been dismissed by a rump commission in the county, had any authority to make a settlement. Carland’s dismissal was eventually upheld by the Territorial Supreme Court after Conger’s term expired.

Deciding to meet the challenge head-on, Judge Blake in re-direct asked Sanders what effect, if any, the judicial action of Judge Conger had on the finances of the Northern Pacific Railroad. “Practically none, as I can see,” Sanders said, further testifying that the injunction he sought from Conger in 1881 was “not at that state of the difficulty a matter of any great importance as I believed it, for I confidently expected never to have occasion to use it, but anticipated an easy settlement of the matter when I got to Miles City.” Sanders said he never felt Conger had any “improper designs” in his decision in sustaining his demurrer.

Here it must be said that Sanders is being a bit disingenuous. Had the courts enforced the Custer County treasurer’s attempt to collect the taxes from the railroad, and had that decision been upheld, it would have set a precedent which would have cost the railroad a great deal of money. Add to that the pressure the line felt as it was attempting to complete the work in Montana (which it must be pointed out was going on even as the hearing was being held) and the Northern Pacific stood to lose a great deal should it lose this case, which of course, it didn’t.

Sanders also stood to profit greatly from his association with the railroad, and he had much to prove to his bosses. Railroads often found themselves at the hands of angry landowners and passengers often filed lawsuits over damaged items or other issues. Even a portion of that action made fortunes for various attorneys who found favor with the railroad. It must be pointed out here that in 1893, Sanders was appointed to the board of directors of the Northern Pacific, and it’s doubtful that an enemy of the road would receive such a promotion. In a period of a few years, not only was Sanders able to engineer the suspension of Conger from the bench, he also was able through his law firm to get Carland tossed out as Custer County treasurer, both actions which benefitted the railroad.
 
There were 40 witnesses who testified on behalf of Conger, five of whom were attorneys. However, many of Conger’s supporters were, as Shannon pointed out in his report, either under indictment for various crimes in the territory, including in one case, horse thievery, and 29 others either owned or were associated with gambling houses or saloons.

One thing I haven’t mentioned so far, but is a subtext to all the testimony of those against Conger, is the issue of prostitution. In the charges of keeping companionship with people of low or vile character, the accusation could otherwise be stated as consorting with prostitutes. This is a difficult area to investigate, since as far as I have read the transcript, and I admit that I haven’t read it completely, no one testified that they saw Conger actually visit a house of ill repute for those purposes, but where the gambling and drinking occurred, there also resided women often referred to as “soiled doves”. I think that much of the problems which later developed between Conger and his wife came from this implication, given that for a period of two years and nine months, Conger lived there without his family members.

While Conger never testified per se, he was given the opportunity by Shannon to read into the record a statement. Conger first answered charges that he wrote very few of the opinions of the court, saying he wrote as many as had been assigned to him. Some that he would have written had instead been written by Chief Justice Wade, whom Conger said asked him to allow this in order to help his chances of being reappointed to the bench. Conger even went so far as to write a letter to Omar promoting Wade’s reappointment.  “It should seem incredible that such ingratitude should be exhibited on the part of the Chief Justice,” Conger said.

In his statement, Conger even described one reason he moved from Carmi. “I have & do suffer at times great pain from wounds received in battle, and one cause of removal from Southern Illinois to this northern clime was the hope that the climatic changes would prove beneficial. My health has improved, and my suffering decreased,” he said. Conger admitted that when he arrived in Carmi he was suffering from an addiction to morphine. In this, he was not uncommon. It has been estimated that well over 400,000 soldiers suffered from addiction after the war, although that number has been questioned. He was able to break free from the drug, although later he was still using it. He claimed it was distributed under a doctor’s supervision. As late as 1906, Conger was still using the drug.

Admitting also to the use of alcohol for medicinal purposes, Conger denied ever drinking to excess in his efforts to find relief from the near-constant pain he felt. He even claimed to deny himself the use of it sometimes, saying that when dawn broke and the electricity in the environment changed, he often found relief. As to the gambling charges, Conger said he never gambled for money, but only to pass the time, which he said was not uncommon in the territory.

After defending himself against his accusers, Conger became somewhat philosophical in his statement. “It is not for me to speak of my capability, integrity, and uprightness as a Judge – let others testify to that,” he said. “The cases referred to by the prosecutors of these charges, as those upon which blame would attach to me, have been proven by themselves and on examination of the papers by the Commission, to be so wanton, malicious and pusillanimous as to be worthy only of consideration of rebuke to my accusers.”

When Shannon issued his report, he determined that most of the charges against Conger were true, although he pointed out something I find interesting. Shannon writes “no charges against him have come from Madison or Beaverhead, two counties in his district. On the contrary, all the evidence from these two counties is decidedly in his favor, both in regard to his capability and efficiency as a judge, and as to his moral habits and conduct.” It seems ludicrous to believe that if Conger was so out of control, he would have acted one way in part of his district and completely the opposite in another part.

Shannon found no evidence that the Northern Pacific Railroad or Sanders had anything to do with Conger’s suspension. In closing, he suggested that perhaps the territorial supreme court should create a new district that would take away Gallatin and Custer counties. “I am of the opinion that he would now fill such Judgeship well, and with satisfaction to the people and attorneys there,” Shannon wrote. He added that “his honorable service in the War for the preservation of the Union, his crippled condition, and his physical sufferings, plead strongly for mercy, which I beg may be shown to him.”

Conger was allowed to finish out his term on the bench, although his request for reappointment fell on deaf ears. In 1884, he found himself out of a job. After this, Conger began to practice law, and at the close of the 19th century, he was elected prosecuting attorney in Beaverhead County.

So what can we make of all this?

First, there is no doubt in my mind that Conger was guilty, at least on the face of things. He himself admitted that he drank and was still taking morphine for pain. Given that, and the distance he had to cover to hold court, it wouldn’t be surprising that he often showed its ill effects. But this begs the question as to whether that rose to the level necessary for suspension. In that, I don’t think it did. Conger certainly wasn’t the only territorial official ever suspended from office, but his case was seemingly different. Most of those suspended were truly crooks or incompetent. He was neither. Another question which this raises is if Conger’s actions were so heinous, why did it take three years before anyone decided to complain? And what about Shannon’s observation that of the four counties in his district, only residents of two were of the opinion that Conger was a judicial derelict? This leads one to believe that something else was happening.

My belief is that Sanders, Crosby and other territorial residents conspired to get rid of Conger because his sustaining of the demurrer interfered with the Northern Pacific Railroad’s plans at a time when any delay would cost it money. At this point in my research I have yet to uncover those supposed letters written by Sanders to the chief counsel of the railroad, but I know they’re out there somewhere. Why would the chief counsel of the railroad tell the powerful brother of the accused of their existence? Sanders and others knew they could remain above suspicion where the railroad was concerned given that even Conger admitted to their chief complaints, i.e. his drinking and card playing.

Given what I’ve discovered about Conger’s reticence to “blow his own horn” sitting through the hearing must have been torture. Added to that the implication that while his wife was back in Ohio, he was consorting with known prostitutes could only have been highly injurious to his relationship with his wife. But Conger knew he had no choice but to suffer the embarrassment, because he believed himself to be innocent and, if you’ll pardon the term, railroaded. He went to his grave believing it was the territorial officials who were the guilty ones, not him.

As he said in his closing to the commissioner “the “shameless indecency” in the provinces, belongs…to Crosby and not to me. And if this accusation so falsely made, be the standing ground from which the governor throws his javelin of poisoned misrepresentation against me, in sight of the president of the united states… is it not inevitable that the followers of this governor, Sanders [and others] taking patter after him, have united to deceive the president in their promises by charges equally calumnious, supported by evidence equally distorted, shamelessly indecent and…wholly untrue.”