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except in a few instances, make much reference to the facts offered
by Farns worth and answered by Rodgers. The findings are im-
portant, however, in that they did make some inquiry into the
fraudulence of the Ness county organization as well as determine
whether 250 votes had been cast in the Ness county election of
November 4, 1873. The findings are also important in that the
committee was the only official body that ever in any way con-
sidered the organization of Ness county.

The report first took up the fact that there had not been a 30-day
notice before the election, discussed it at great length but, after
pointing out that there should have been a 30-day notice, made no
finding that Rodgers was not entitled to his seat 114 because of the
lack of a 30-day notice. 115

The report next devoted one short paragraph to the clause in the
Farnsworth and Hickel affidavits relating to the falsity of the sworn
statement of Rodgers and others claiming 600 inhabitants. This
is the only part that bears in any way on the accusation that the
Ness county organization was fraudulent because the census was
false in claiming 600 inhabitants in October, 1873. The Farns-
worth statement was:

Deponent says he has seen the copy of the affidavits of S. G. Rodgers,
Maroney and others, who testified as to the number of inhabitants of said
Ness county, which were filed in the office of the Secretary of State . . .
Deponent saith that the contents of the said affidavits, as to the number of
inhabitants in said county, and the number of householders, is false, and an
over-estimate, and were given he believes, to fraudulently obtain an organi-
zation of the said county of Ness.

The only affidavit that Rodgers signed pertaining to the organi-
zation of Ness county was the affidavit attached to the memorial or
petition to the governor, which was also signed by Henry Maguire
and Edward Maroney. The exact words were, "They verily believe
there are six hundred inhabitants in the county/' The petition
requested the governor to appoint a census taker to find out if
there were 600 inhabitants. 116

The election committee in its report disposes of this charge of
fraud made by Farnsworth against Rodgers in the following words:

114. As has been explained before, this was often discussed by committees on elections,
but as the house was the sole judge of the qualifications of its own members, seats were
customarily not denied for this reason.

115. Apparently the reporter for the Topeka Commonwealth stayed only long
enough to hear this part of the report as his newspaper stated the next day that Rodgers
was denied his seat on this account.

116. One wonders if the charge of perjury entered in Ellis county against Dr. Rodgers
was not on this same basis.



DR. S. G. RODGERS, GENTLEMAN FROM NESS 343

Both of the foregoing affidavits [Farnsworth and Hickel] also set forth
that the sworn statements of S. G. Rodgers, John Maroney and others, claiming
six hundred inhabitants and asking a census taker to be appointed, are false.
These later statements concerning the application for organization being made
merely upon belief of S. G. Rodgers and others, the committee have not at-
tached any importance to the statements of Farnsworth and Hickel contro-
verting them.

It is believed that this decision meant exactly what it said. It
certainly was good legal judgment that prompted the committee
to refuse to find fraud on the basis of nothing more than Rodgers'
sworn statement of his belief. Rodgers did not swear there were
600 inhabitants, he merely swore that he thought so, at the same
time asking that they be counted. Farnsworth practically admits
the weakness of his charge when he uses the word overestimate.
An overestimate is not necessarily a proof of fraud, it may be only
a proof of poor judgment or poor information. A charge of fraud
was a very serious thing and no responsible court, attorney, or com-
mittee would countenance such a charge without very strong evi-
dence. It is not surprising that the committee refused to consider
such a charge on such evidence alone. 118

After this pronouncement, the report took time out to state that
the committee had informed Dr. Rodgers that any sworn state-
ments he might produce would be received in evidence and that Dr.
Rodgers had asked for authority to go to Ness county for the pur-
pose of taking evidence. The committee had advised that a com-
mission would be sent if desired to Hays City but declined to send
to Ness for the purpose of taking evidence because the inquiry in-
volved might be interminable in time and expense. 119

Then finally the committee got down to what it evidently felt
was its real task were there cast at the general election on the 4th
day of November, 250 legal votes in Ness county? Without stating
any doubt of the 600 inhabitants that the census taker said was in

117. The italics have been inserted by this writer.

118. It is to wonder if Farnsworth might not have made a more effective charge of fraud
against Rodgers or the organization. Tradition has said that there were not 40 householders
in the Rodgers colony. Farnsworth saw all the names signed to the petition or memorial
and yet he made no contention that any of these names were fraudulent and no such persons
existed. Are we to conclude that there were these 40 householders resident in the Rodgers
colony in October, 1873? This historian would like to know?

It has perhaps not been sufficiently emphasized in this account how ingenious and safe
for the organizer was the fraudulent organization conspiracy. There was no easy way to
connect him with the conspiracy although it was known to all that he was the instigator.
Mowry of Comanche county was at one time indicted but the case was dropped on account
of insufficient evidence. Conceivably the census taker could have been held for making
a false census return but this was never done either perhaps because it was felt he was
really not to blame and perhaps because these indictments would have reflected on the
governor. The governor might have been fooled on the first appointment he made of a
census taker but not on the succeeding ones. We stress here again the moral responsibility
of the governor for these fraudulent organizations. They could not have happened had he
done as the law provided appointed competent, bona fide census takers.

119. Apparently Rodgers felt he still had friends in Ness county.



344 KANSAS HISTORICAL QUARTERLY

Ness county in October, the committee held that Dr. Rodgers, con-
tinuing to stand on the census report, had not offered any refuta-
tion to Farnsworth's and Hickel's claim that there were less than
250 legal voters on election day. Here Farnsworth had sworn to a
positive fact, the "poll books showed forty-eight votes cast/' 120
Dr. Rodgers offered in reply only "Farnsworth was there present
but two or three hours and was not able to, and, in fact, did not
know the number of votes cast" and he did not deny Farnsworth's
statement that the poll books showed only 48 votes.

. . . the committee unanimously report, in their opinion, there were
not two hundred fifty legal voters in Ness county at the last general election, and
therefore that S. G. Rodgers is not entitled to a seat on the floor of this House.
121

It is to be regretted from an historical stand point, that this in-
quiry did not bring out some evidence on how many persons were
resident in Ness county in 1873. As is well known 1873 was a ter-
ribly dry year and settlers left all the western counties. Farns-
worth's two censuses prove that people kept leaving the county as
the winter advanced. In his December census he enumerated 140
persons, while in January he could find but 79. There certainly were
at least 200, the figure given in Hickel's affidavit and also in the
petition for disorganization. It is quite possible that earlier there
were more, but it is believed that the number could scarcely have
ever reached 600 although that has never been proven one way or
another and must always remain simple conjecture.

The report of the election committee was adopted by the house
and Dr. Rodgers' tenure in the Kansas legislature ended and with it
any further effort by him to encourage the settlement of working
men in western Kansas. 122

120. It is at this point that the old tradition that Farnsworth was responsible for ex-
posing and eliminating Dr. Rodgers and his organization, comes at last to a qualified
verification. While the organization was not voided, it was Farnsworth's affidavit that
supplied the basis for Dr. Rodgers' rejection by the house.

121. We mention in this connection that at the moment the committee was rejecting
Rodgers because 250 votes had not been cast in Ness county, Booth was sitting, elected
by a county that had cast but 80 votes. Hanrahan was also sitting although the supreme
court had declared the Ford county organization void in January. The committee knew
all this. But the seats of these representatives had not been challenged in the house.
Rodgers' had, and that by a group that had real political power. This is not to say that
there were not grounds to reject Rodgers. There were, and the lawyers on the committee
made sure that he was rejected for a good valid reason. But it should be emphasized
that this rejection of Rodgers by the committee did not in any way convict Rodgers of
fraud or padding the census, regardless of what individuals might have thought of the
situation.

We might also add that Hanrahan and Ford county were saved from even going through
the committee on elections, were saved from any discussion of the organization by a simple
act passed by the legislature on March 7 of that year: "That the organization of Ford
county be and the same is hereby legalized. . . ." (Laws of the State of Kansas, ch.
12, p. 8.) We might also add that by this act Ford seems to have escaped the tarnished
reputation that historians so generously bestow on Ness.

122. Technically speaking, Rodgers was in no worse situation than when he had
been rejected by the house in 1873, except for the perjury charge in Ellis county. We



DR. S. G. RODGERS, GENTLEMAN FROM NESS 345

The case for perjury was still pending against Rodgers in Ellis
county. Since Ness earlier had been attached to Pawnee county
for judicial purposes, 123 this case had no business in Ellis county.
But if it were kept hanging over Rodgers, it would likely discourage
any ideas he might have had of returning to Ness. This case came
up at the April, 1874, term of court. Neither Dr. Rodgers or his
sureties appearing, the bond was forfeited, bail was set and the case
continued. 124 Finally on April 1, 1875, the county attorney entered
a "nolle proseque" and the charge against Rodgers was terminated,
the county paying the costs. 125

It is worthy to note here that on July 31, 1875, two promoters from
Ellis county came down to Ness county and organized the Walnut
Valley Town Company 126 with- the declared purpose of building a
town by the name of Ness not more than a mile from the site of ill-
fated Smallwood. The project included the building of a flouring
mill on the Walnut and was capitalized at $50,000, this capital to be
raised by selling shares at $25 each. This scheme never came to
fruition either.

Among the papers in the hands of the election committee of the
house in 1873 was a petition to the governor asking that Ness county
be disorganized, because

The number of inhabitants is not large enough as the law requires, there
being not over two hundred inhabitants in the whole county; that fraud has
been used by one Samuel G. Rodgers and others to have said county organized;
that the present organization is onerous and burdensome upon the people
living in said county, who can illy afford to pay the taxes required to support a
county organization.

This petition was signed by 22 Ness county residents including
three of the Rodgers' colony.

conjecture, however, that lack of money was a more serious deterrent to Rodgers than
anything else. If he had sold the bonds as some may contend in spite of the fact that
they were never presented for payment Rodgers would have had money. He could then
have prevented the loss of his Buffalo House at Petersburg (Kinsley), for on April 1, 1874,
it was sold under "the foreclosure of the numerous liens for lumber and labor existing
upon it." The price was $750 and it was paid by W. C. Edwards and A. D. Clute, their
guarantor being no other than Henry Booth. A short time afterwards this property was
insured for $5,000. There is no evidence that Rodgers was present or tried to prevent
this foreclosure.

It is to wonder under these circumstances why although he had been unable to sell
them through regular channels Rodgers did not now go out and sell the bonds with a
suitable discount in that market, which chroniclers of that time (T. A. McNeal) state was
always open to bonds on the streets of Topeka. Considering the ease with which other
organizers sold their greater amounts of bonds at this very same time, it is impossible to
believe that Rodgers could not have sold his bonds had he been willing to sell in this sly,
under-cover market.

123. The Laws of the State of Kansas, 1874, p. 101.

124. Clerk of the court, Ellis county, "Journal A," p. 84.

125. Ibid., "Trial Docket A," pp. 28, 50.

126. "Corporation Charters (official copybooks from office of secretary of state, now
in Archives division, Kansas State Historical Society)," v. 7, pp. 38, 39.



346 KANSAS HISTORICAL QUARTERLY

Because in the end, Dr. Rodgers was denied his seat, the petition-
ers evidently thought their request for disorganization had been
granted. This was not true. The governor had no power to dis-
organize a county. If suit had been brought, the supreme court
could have tested the validity of the organization as was done in
the case of Pawnee and other counties. 127 But no such suit was ever
brought.

The county organization after 1874, ceased to function and no
other elections were held. This inaction did not however destroy
the organization. A municipal organization once created continues
to exist in an active state or in a dormant state until dissolved by
law. Ness county after 1874 was subsequently mentioned as an
organized county in various acts of the state legislature. In 1875
the legislature considering the case of organized counties where
less than 250 votes were cast, 128 listed Ness county as an organized
one, along with some 11 others, although Ness had not held an elec-
tion or reported any votes cast.

Early in 1876, the question as to whether or not Ness county was
fraudulently organized became a moot question. On this date the
legislature passed an act disorganizing Ness and other counties.
Governor Osborn refused to approve the act and it did not become
a law. 129 The passage of the act by the legislature was a recogni-
tion of Ness county as an organized county. As the legislature said
specifically here that Ness was an organized county, this cured any
defect or fraud in the organization. This legal opinion follows the
state supreme court decisions in the various cases on county or-
ganizations, Harper, Pawnee, and Stevens. 130 It also follows two
United States Supreme Court decisions that concerned county or-
ganizations of Harper and Comanche. 131 The organization of Ness
county before March 2, 1876, might only have been a de facto
organization, but according to the above decisions on that date it
became a de jure organization.

Inquiries to state officers in 1878 and 1879, when Ness county was
again showing signs of wishing to take up county responsibilities,
were invariably answered that the county had been organized and

127. Kansas Reports, v. 12, p. 426; v. 21, p. 210.

128. House Journal, 1875, pp. 277-282. Although Dr. Rodgers was refused a seat in
1874 because 250 votes had not been cast in Ness county in November, 1873, and the
constitutional amendment is clear, express and unambiguous on this point, still of the 12
counties concerned in 1875, the house seated five and declared vacant the seats of seven
others.

129. House Journal, 1876, p. 1453.

130. State ex rel vs Pawnee Co., 12 Kan. 426; State ex rel vs Harper Co., 34 Kan. 302;
State ex rel vs Robertson, 41 Kan. 200 (Stevens Co.).

131. Board of County Commissioners of Comanche Co. vs Lewis, 133 U.S. 604; Board
of County Commissioners of Harper Co. vs Rose, 140 U. S. 71.



DR. S. G. RODGERS, GENTLEMAN FROM NESS 347

was still organized. On September 12, 1878, Gov. Geo. T. Anthony
wrote R. J. McFarland a letter in part as follows:

That in order to set aside that organization or test its validity the readiest
way is to have officers appointed or elected; if you have none, or if you have
them, to bring an action directly in the Supreme Court ... by Quo War-
ranto denying their authority to act. In this manner it may be promptly and
inexpensively settled. 132

Such an action was never filed, however, and a new governor,
John P. St. John came into office in 1879. This governor also gave
an opinion as to the organization of 1873. 133 Unfortunately a care-
ful search for the letter in which this opinion was written, did not
discover it. We can only conjecture that St. John must have given
some encouragement to the action that resulted in the organization
of 1880.

On January 3, 1880, the following item was published in the Wal-
nut Valley Times at Clarinda, Ness county, N. C. Merrill, editor:

SMALLWOOD THE COUNTY SEAT COUNTY ALREADY ORGAN-
IZED and COUNTY SEAT QUESTION HOW CAN THE GOVERNOR OR-
GANIZE AN ALREADY ORGANIZED COUNTY? Ness County stands on
the books at Topeka an already organized county and Smallwood the county
seat although we ignore it. Has the Governor [St. John] by virtue of his posi-
tion the right to unorganize a county or is it the Supreme Court of the State of
Kansas, that does such things? These are questions we would like to have
answered.

The questions posed by the Walnut Valley Times have never been
answered. We only know that in the spring of 1880 a petition of
householders for the organization of Ness county was submitted,
accepted and acted on by the governor and the following routine of
county organization again gone through. The popular belief was
that the first organization was fraudulent and the county had been
disorganized by petition. The inhabitants of 1880 were much more
hotly interested in whether there should be a functioning organiza-
tion and who should control it and locate the county seat, than in
any legalistic arguments. No one protested the method employed
in reactivating the county and there remains to this day no actual
legal opinion as to whether the method used was legal or not and
whether the organization was a real one. 134 Nevertheless, it is be-
lieved that on a legal basis the governor had no power to organize
an already organized county. In the office of the secretary of state

132. Correspondence of the governor, Archives division, Kansas State Historical Society.

133. Letter dated June 23, 1879, written by Ross Calhoun to Governor St. John:
". . . the only communication Mr. Johnson produced, or could produce, was the one
in which you gave your opinion as to the legality of the organization of Ness County in
1873, which letter we think does you great credit. . . ."

134. It is believed that the reactivation of Ness county might just as handily have
been accomplished by petitioning the governor to appoint commissioners and set the
county going again. The proclamation of 1880 did appoint commissioners who set the
machinery in motion.



348 KANSAS HISTORICAL QUARTERLY

in Topeka are to be found the papers on which rests the lawful or-
ganization of each and every Kansas county. Among those for Ness
county are deposited the memorial of 1873 signed by Dr. Rodgers
and others, the census report of the governor-appointed census taker,
John Maroney, and the proclamation of Governor Osborn organizing
Ness county on October 23, 1873. The memorial of 1880 and the
census of that year are placed in the archives of the State Historical
Society. The proclamation of 1880 is in the secretary of state's
office.

Ignoring the wealth of source materials concerning the invariably
irregular organizations of this period of Kansas history, historians
have most generally continued to use Ness county as at least one
of the horrible examples. 135 Likewise the tradition that Rodgers
was simply a crook who issued fraudulent bonds and then stole
the money, has come down by word-of-mouth in the county
itself. 136 This article has been written in the hope of correcting
some of these misconceptions. If the story of Rodgers is obscured
by the story of the organization of Ness county, that is because the
records that remain are chiefly legal and government records that
can be cited with definiteness and authority. It can be said posi-
tively that the 1873 organization was legal and valid although pro-
cured perhaps by fraudulent methods. It is not so easy to make
judgment of Dr. Samuel G. Rodgers. His time on our stage was
short and his appearances were few and inconclusive. And yet in
so many ways the man so stands out among his fellows that we can
say with pride that he was "the gentleman from Ness/'

Any estimate of Rodgers must stand against the Kansas back-
ground of the 1870's, and the nature of this background must be
stressed. Political morality was low. If it seemed desirable to get
things done, no one minded if a few corners were cut and a few
laws evaded. As has been said before, probably every county
organized in Kansas during this decade flouted in some way the
strict letter of the organization law. In most cases, no one was
sufficiently interested to even inquire into such evasion. Even when
the supreme court handed down decisions excoriating these organi-
zations, little attention was paid and the organizers went serenely
on to public offices of trust, elective, or appointive. The singling

135. Frank W. Blackmar, Kansas, a Cyclopedia of State History, v. 2, p. 352; T. A.
McNeal, Southwestern Kansas," Kansas Historical Collections, v. 7, p. 92- "Some of the
Lost Towns of Kansas," Kansas Historical Collections, v. 12, p. 469; Bliss Isely and W. M.
Richards, Four Centuries in Kansas (Wichita, 1936), p. 172.

136. Judge J. K. Barnd, editor of the Ness County News for many years, was the first
to doubt the traditional story of the 1873 organization and expressed his opinion in his
newspaper, pointing out that the Rodgers organization differed from others in that Ness
county did have a population and no bonds were sold. One such article was reprinted by
his son in the historical edition of the News on August 17, 1929, without crediting the
author. Nevertheless Judge Barnd's style is unmistakable as was his opinion at that time.



DR. S. G. RODGERS, GENTLEMAN FROM NESS 349

out of Dr. Rodgers for employing the "tactics of his day" was clearly
a political maneuver and undoubtedly his fellow organizers and his
associates in the house recognized it as such. In their view, he was
simply "outgeneraled."

Where Dr. Rodgers seems to us to have differed from other county
organizers, was in his purpose. Every evidence points to the fact
that he wanted to found a colony for workingmen in western Kansas,
and was so possessed with the idea that he scarcely spoke or wrote
a letter without stating it. He could not have merely wanted to sell
land because he charged almost nothing for membership in the col-
ony and he deliberately recruited men of little means. If he had
wanted a colony simply to vote the bonds, he need not have brought
a large group of families to the county for that purpose. A few
kindred souls would have been infinitely more manageable and the
bonds would have been just as good. Perhaps his dream was too
big for practical realization, but that does not mean that he deceived
his colonists with any intent to defraud. Undoubtedly he was just
as ignorant as they of the difficulties of settlement in western Kansas.
Who knew the difficulties of western Kansas in 1873?

The final evidence of the essential honesty of Dr. Rodgers' pur-
pose was that, faced with the impossibility of carrying out his origi-
nal plan, he did not sell the bonds. The bonds were voted and
issued. We can believe that there was no regular market for bonds
in that panic-ridden winter of 1873-1874, as Dr. Rodgers indicated.
But we cannot believe that the bonds could not have been sold in
that furtive under-counter market where all the larcenous organizers
sold theirs. And we cannot believe that the bonds might have been



Online LibraryKansas State Historical SocietyThe Kansas historical quarterly (Volume 20) → online text (page 41 of 76)