Chapter XIV: The Brown Impeachment Case

The discussion of law cases and the questions of fact and of law that they involved may be a little tedious to a non-professional reader, but they constituted so large a part in my life that it is impossible to give much of an account of myself and what I have been doing for so many years past, without at least a brief account of the nature of the suits in which I was engaged as counsel.

Probably the most important case in which I was engaged during my professional career was the celebrated impeachment case against John L. Brown, Auditor of the state of Iowa.

Mr. Brown was first elected to the office of Auditor of State in October, 1882, and took his office the following January. One of the important duties of this office was the duty of having the insurance companies, organized under the laws of Iowa and doing business in the state, examined from time to time to ascertain if they complied strictly with the law, and if their reports made to his office were just and true, and their business conducted in such a manner as to insure their solvency and ability to pay the losses of their policy holders. There had been in the state of Iowa for a number of years a number of failures of companies that were organized without capital and without experience or strict integrity upon the part of those who sought to insure the property of others, some of them having none of their own. I remember one insurance company organized in Des Moines by an enterprising young lawyer, without means, who obtained the names of a number of persons that he claimed had subscribed stock to his company. The law required twenty-five per cent of this stock to be paid up before the company was entitled to do business. The gentleman, of course, elected himself president of the company, and he drew his drafts upon the supposed subscribers to stock for the twenty-five per cent that the law required should be paid up, to constitute the capital of the company. He took these drafts to B. F. Allen, then a prominent banker in western Iowa and doing business in Des Moines, and deposited his drafts and obtained from Allen a certificate of deposit for so much money. This he exhibited to the Auditor of State, and upon the faith of this certificate of deposit obtained authority to transact business. His drafts were all dishonored so that he was proceeding to do business without any capital whatever, and actually issued some policies. It was only necessary to incur a loss to complete the bankruptcy of the concern. Of course the foregoing is an extreme case, but it illustrates how easily the law was evaded and how absolutely necessary it was to have a strict supervision of these companies that could incorporate themselves under the general insurance company laws of the state.

Mr. Brown had been a soldier in the Civil War and had lost an arm in its service, was very upright, and a downright man, and did not depend upon his suavity of manner for his success in life. He was a man of quick temper and abrupt manners, but was sensitive of his honor and at all times conscious of his integrity of purpose. In pursuance of his official duty he felt the necessity of strict supervision and a thorough examination of the insurance companies of the state, that had sprung up in almost every important town and city in the state, and the officers and directors of the different companies were not paying much attention to the detail of the affairs of their companies and would generally entrust the business to the persons who had organized the company and become its president and secretary. In selecting a person who could make these examinations with fidelity and thoroughness he deemed it necessary to engage some one who was not a resident of the state and who would not probably be influenced by local or political consideration in the discharge of his duties. He employed as chief examiner of these companies a gentleman who resided in Chicago, and whose reputation was beyond question as an expert, by the name of H. S. Vail. This gentleman charged for his services twenty-five dollars a day for the time actually engaged, and in addition thereto some five to ten dollars for assistant accountants. The law provided that the expenses of these investigations should be approved by the Auditor, and upon his certificate the several companies examined were required to pay the bill. These examinations proved to be very expensive in some cases, and perhaps in a few cases an unnecessary burden and expense to the companies, but the real cause of complaint was that the expert found many irregularities, and without fear or favor, reported them in writing to the Auditor for his action. In one case the president of an insurance company had been electing his board of directors by stock issued to himself, upon which he had not paid a dollar into his treasury, and was paying himself out of the limited income of the company the handsome sum of ten thousand dollars a year as president, and his son-in-law three thousand dollars a year as attorney of the company. In a number of cases the president of the company was found to have issued to himself stock upon which he had not paid a dollar, and the Auditor required all of these and many other like delinquencies to be corrected.

He was visited by the friends and attorneys of these officers who were thus disturbed in their operations, and the Auditor was not found to be a very complacent or accommodating individual, but on the contrary an outspoken, determined, and unyielding man in the discharge of what he conceived to be his duties. The last resource of these afflicted insurance officers was an appeal to Buren R. Sherman, then Governor of Iowa, formerly filling the office of Auditor of State and under whose administration these insurance men had been undisturbed. He found Mr. Brown equally obdurate and unwilling to palliate or in any way overlook the delinquencies of these insurance companies, but he determined to afford his friends some relief, and upon the re-election of Mr. Brown as Auditor of State in the fall of 1884, he sought an excuse for refusing to approve of the official bond that Mr. Brown presented to him and which was necessary to the qualification of the Auditor for his second term of office. The first pretense of Sherman for refusing to approve the Auditor's bond was that Mr. Brown had not complied with the law in making report to the Treasurer of State as the law required of the fees of his office. As it turned out in the evidence on the trial, and as Sherman well knew the fact to be, the fees of the office had been reported and accounted for as the statute required, save only that the aggregate amount of the fees as shown by the fee-book in the Auditor's office had been reported and accounted for at the end of each month, and the details specifying from what source each item was received was not copied from the fee-book in the Auditor's office and filed with the State Treasurer. In addition to this the Governor also obtained information from a discharged clerk in the Auditor's office that the clerks in the office frequently received compensation of small sums for giving information and collecting statistical matter at the request of individuals where no official duty was enjoined by law upon the Auditor or his assistants and no fee was prescribed. As no account was kept of these small sums of money and they were paid to the clerk who did the voluntary work for persons requesting it, no statement could be made of the amounts or dates, or the services rendered.

In the meantime the controversy spread, the insurance companies through their officers and agents taking an active part as against Mr. Brown, and Mr. Sherman becoming more and more arrogant. He finally determined to remove Mr. Brown from office.

We had upon the statute book a law whereby the Governor of the state was authorized to suspend a subordinate officer, if indeed there was any such thing as a subordinate officer under our constitution, by appointing a commission to examine his books and papers and the affairs of his office, and if, upon making such report to the Governor, it was apparent that the public safety required a suspension of the officer from official duties, he might issue such order of suspension. Sherman found three men willing to do his bidding in this respect and appointed them commissioners to examine the affairs of all the state officers. The commissioners understood that this meant only Brown and meant only that they should put into form Sherman's side of his controversy with the Auditor. The committee accordingly performed what was required of them and reported to the Governor that the public safety and public good required the suspension of the Auditor. They reported no facts in addition to those already recited in regard to the money received by the clerks in the office for matters outside of their official duties, save and except fees paid by certain banks for bank examinations under the law, for which no fee was provided by law, and which they advised the Governor that the Attorney General claimed did not belong to the state treasury, but were illegally charged and paid. They also informed the Governor that in the year of 1883, the correspondence notifying the Auditor of the requirements of the insurance companies in regard to the appointment of agents had been destroyed. As all of these appointments were matters of record and the fees for their issuing were also regularly entered upon the books of the Auditor, this was one of the extraordinary finds of this extraordinary committee. They also advised the Governor in this report that the law required the reports of fees should be sworn to, and their interpretation of the law was that the Auditor himself should have made the affidavit, and instead thereof it was made by a clerk in the office.

Upon this remarkable report of this remarkable commission Sherman at once made an order, not suspending but removing Mr. Brown from office, and appointing J. W. Cattell, formerly Auditor of State, to take his place. Mr. Cattell was in no very great haste to do this, but after the order was served by the sheriff upon Mr. Brown he very wisely entered into a negotiation with Brown to see if the difficulty could not in some way be adjusted, and have Brown make such reports to the Governor as would be satisfactory. Mr. Cattell was an honorable and honest man, and really desired that these matters should be satisfactorily arranged, but this was not the purpose of the Governor as manifested by his conduct, and he determined to have his own way. He accordingly filed information before a justice of the peace accusing Brown of a misdemeanor in holding the office after his order of suspension or removal, and upon this affidavit he obtained a warrant for the arrest of Mr. Brown. The constable served the warrant upon Brown, and Mr. Brown was about to give bond for his appearance to answer the charge, when the Governor, having previously ordered and arranged with the Adjutant General so to do, appeared with an armed force of the Governor's Guards, so-called, who, with set bayonets and loaded muskets took charge of the Auditor's office. Hearing that something of an extraordinary nature was transpiring at the capitol, I left my office and went over to the state house to see what could be done for my client, and was proceeding to the Auditor's office when I was stopped by two of the soldiers crossing bayonets in front of me, one of them cocking his rifle and threatening to shoot me if I proceeded any further. Fortunately the captain commanding the squad had a little sense left and told the soldier to put up his gun, and so my life was saved. The Governor in addition to the use of the militia as above recited, also employed ex-Governor William M. Stone to assist Mr. Galusha Parsons, and they filed a petition in the name of Jonathan W. Cattell against John L. Brown in the district court of Polk county under the provision of the statute for proceedings in "quo warranto" by which the right and title to an office could be tested. We were fortunate in having for district judge at that time William Connor, a good lawyer and an honest man. Mr. Parsons and Governor Stone attempted upon the presentation of their petition to get some peremptory order for the removal of Mr. Brown from office, but the court called their attention to the express provision of the statute that he had no authority to make any order in the premises until the final trial, and that the case must go upon the docket and be tried upon its merits before any order or removal could be made. Upon the impeachment trial Sherman under oath denied that he had employed counsel to commence this suit, and Mr. Cattell testified that he had nothing to do with the employment of any counsel to bring the suit. The suit was finally dismissed, nobody appearing to care about any investigation of the merits of the proceeding. We accordingly had Mr. Brown, who had given bail, surrender himself to his bondsmen, and we applied to the supreme court of the state, then sitting at Davenport, for a writ of habeas corpus to test the constitutionality of the statute under which, without trial and without investigation and without hearing, the Governor had attempted to deprive Mr. Brown of his office. The supreme court decided this case at the Dubuque term in 1885, Seevers, judge, delivering a dissenting opinion, and Beck, judge, taking no part in the decision as he was not present at the submission of the cause. Adams, judge, delivered the opinion of the three remaining judges; to-wit, himself, Rothrock, and Reed. The majority of the court held that the law under which the Governor acted did not authorize any removal from office, and that it was only constitutional upon the hypothesis that Brown should have a hearing and trial. The dissenting opinion of Judge Seevers holds that as the law made no provision for any hearing or trial, and the suspension was for an indefinite time and might at the pleasure of the Governor be perpetual, it was therefore void and did not authorize the proceedings. Thus matters stood until the fall of the year 1885, when the people elected William Larrabee as Governor instead of Sherman, whose term of office would expire on the first of January ensuing.

The presumption indulged in by the majority of the court in its opinion that Mr. Brown's removal from office was only a temporary suspension, and that the Governor certainly would give him a hearing as to the matters complained of and found by the special commission, is made to appear more absurd by the subsequent action of Mr. Sherman himself, who, on the 9th of December, 1885, made the following entry in the executive journal, and assumed to appoint J. W. Cattell to fill what he was pleased to call a vacancy in the office of the Auditor of State. The entry is as follows:

DECEMBER, 9, 1885.

Whereas, at the general election held on the 4th day of November,
1884, J. L. Brown was re-elected to the office of Auditor of State;
and

Whereas, the said J. L. Brown, re-elected as aforesaid, neglected
and refused to qualify as such re-elected officer, and because
thereof his official bond as such officer was not approved nor
filed, and continued in such refusal until the 3rd day of March,
1885, and unto this time, and on account thereof on the day last
aforesaid Jonathan W. Cattell was duly appointed as Auditor of
State and immediately qualified by giving bond and taking the oath
of office as required by law, which said bond was duly approved
according to law; and

Whereas, at the general election held on the 3rd day of November,
1885, there was no person elected to the said office of Auditor of
State, as ascertained by the official canvass this day concluded by
the state board of canvassers; and

Whereas, it is incumbent upon me to fill the vacancy in said office
now held under appointment; therefore

Jonathan W. Cattell is hereby appointed Auditor of State, to have
and to hold the same until the next general election in November,
1886; and upon his qualifying thereto by giving bond and taking the
oath of office, as required by law, he will be obeyed and respected
accordingly.

BUREN R. SHERMAN

A legislature was elected that fall, and as the only opportunity for a hearing and a vindication of Mr. Brown, he sent a communication to the house of representatives requesting an investigation and an impeachment, to the end that he might have a trial before the senate.

The insurance agents of the state who had been wounded by the investigation of their affairs, Sherman and his political adherents filled the lobbies of the legislature, and were anxious also for Brown's impeachment. Finally the house of representatives brought in articles of impeachment, containing thirty counts, and the senate ordered Mr. Brown arrested and brought before them for trial. As I had been Mr. Brown's counsel throughout all of these difficulties, he came to me for aid and wished me to act as his counsel. In the meantime he had received a number of letters from "Tom, Dick, and Harry" throughout the state, lawyers who wished to do some cheap advertising of themselves, offering to attend to his case without compensation. I told Mr. Brown that I would undertake his case on condition that I might select my own assistants. I realized that the court, to-wit, the fifty senators then entitled to seats in the senate, was of rather peculiar construction. We had in the first place a large majority of republicans, but we also had a number of very able and influential democrats in the senate. We had some Germans and some opposed to prohibition. It was necessary, in selecting attorneys, to consult the peculiar constitution of the senate and its make-up, and political partialities and proclivities. Mr. Brown agreed to my terms and I named Mr. J. C. Bills, of Davenport, and Mr. Fred W. Lehmann, of Des Moines, as the attorneys I desired to assist me in his defense. Mr. Lehmann was an excellent lawyer and a rising young man, very popular at that time with the democrats of the state. Mr. Bills was then nominally a republican, but had opposed the prohibitory law and stood well with that political element, besides being a good lawyer.

Acting upon my theory as to first impression, I made an opening statement to the senate giving them a very careful and detailed history of the case, and of the facts that we expected to prove upon the several counts of the indictment or impeachment. In addition to these two counsel we also had the assistance of E. S. Huston, of Burlington, a relative of S. F. Stewart, the deputy auditor. Mr. Huston especially looked after and cared for the interests of the deputy during the trial. The managers upon the part of the house of representatives were Messrs. S. M. Weaver, John H. Keatley, L. A. Riley, G. W. Ball, J. E. Craig, R. G. Cousins, E. C. Roach. The trial continued about three months. I found I had made no mistake in selecting my assistant attorneys. We had a room set apart for us in the capitol, where we were in counsel arranging the program for the day's work before the senate, and assigning to each attorney his particular share of the work of the day. I always dreaded in coöperating with attorneys in the trial of causes, having some one to assist me who would be an annoyance and a drawback rather than a help, but I found in Mr. Lehmann and Mr. Bills two good lawyers and men of good judgment and discretion, and we had a most agreeable as well as a successful time of it on our side of the trial table.

The trial had not progressed more than a few weeks before we were able to turn the tide of feeling and sentiment in our favor, or rather in favor of our client, and the case, instead of being a prosecution of John L. Brown, actually became an exposure of the petty tyranny and foolishness of Buren R. Sherman, and the managers on the part of the house were forced into the position of recognizing Sherman as their client and recognizing the necessity of defending his conduct rather than of convicting Mr. Brown of any serious offense against the law.

It also was apparent before we had proceeded very far in the case that the managers of the prosecution did not entirely agree from time to time between themselves as to the part that each should take in the proceedings. Some of the men had evidently hoped to make a great reputation for themselves as lawyers, and were being disappointed in the result as to that particular.

We had one serious hindrance and drawback in our case. F. S. Stewart, the deputy auditor, proved a very heavy load to carry. He had many winning ways by which he made no friends, and his conduct proved him to be a greedy, grasping man, and if the impeachment had been against him instead of Mr. Brown we should have found "Jordan a hard road to travel." In addition to his regular salary he had drawn a very considerable sum of money for extra pay and compensation for work he had done in the Auditor's office, as he claimed, out of regular hours. He had also collected as bank examiner from the various banks he examined a considerable amount of fees for which there was no provision or warrant of law, and had taken the money to his own use. The only serious charge against Mr. Brown and the only one from which we apprehended any danger, grew out of the examination of the Bremer County Bank, situated in Waverly, Bremer county, Iowa. That bank had for its rival another bank in the locality, that probably would have profited by having it go out of business, and they were entirely disappointed and dissatisfied because the examination of the bank by Mr. Brown in person and by an assistant proved the bank to be a solvent concern. After the examination of the bank and after Mr. Brown had given in for publication a certificate of their solvency, and without any previous request for compensation or suggestion of payment from any source, the cashier of the bank had paid to Mr. Brown voluntarily the sum of one hundred dollars as compensation for his extra services and expenses during the investigation of the affairs of the bank.

The charge in the articles of impeachment was that this was a bribe to Mr. Brown that had induced him to certify fraudulently and falsely to the solvency of the bank. We proved beyond controversy that the bank was solvent and continued to be so for several years after the investigation, and that the certificate of solvency given to it was just and right and proper, and there was no foundation for the charge that it was given from any corrupt motive. This matter of the Bremer County Bank did not constitute any part of the original trouble or accusation against Brown by the Governor, but it was trumped up by Brown's enemies and was soon gathered in by the Governor's "muck-rake."

After all the evidence had been put in, both upon the part of the prosecution and the defense, there remained one important question for us to decide--as to whether or not we would put Mr. Brown upon the stand as a witness in his own case. The only thing we had to fear from our client as a witness was his sensitiveness and pride and his determination to resent any insult or imputation against his honesty and integrity in office. We knew he had some enemies in the senate who were at the same time his judges and were to vote upon the question of his guilt, and these senators had the right to ask him any questions upon cross-examination they might see proper. It would not do for his counsel to object to the relevancy or propriety of any questions that might be asked, as it might appear if we did so that we had something to hide or from which to shield our client. We had a long conference with Mr. Brown before we decided what course to pursue upon this question of making him a witness. He continued to vow to us that he would not consent to submit to any insulting interrogatories, no matter from whom they came, and that he would talk back if any such were propounded. I finally had a private conference with Mr. Brown and urged upon him the absolute necessity that if he went upon the stand as a witness, of being perfectly cool and dispassionate and not manifesting any passion or resentment toward any of the senators who might question him. After a long conference upon this point, he finally promised me that he would do his best to suppress his indignation and his feelings, and would quietly answer any questions that might be asked him. The next day we put Mr. Brown upon the stand as a witness, and to his credit it may be said that he behaved himself most admirably, and won the respect and esteem of the senate by his dignified and courteous behavior.

The constitution of the state required, in order to convict the defendant, a vote of guilty by two-thirds of the members of the senate. Instead of this the highest vote against the defendant upon any article was fifteen votes, or less than one-third, and upon the first, second, third, fourth, and fifth articles that embraced the original controversy with Governor Sherman, upon which he refused to approve the Auditor's bond and appointed his subservient commission, there was not a single vote of guilty against the Auditor, but he was unanimously acquitted. Upon several of the articles it appears that some of the senators voted "guilty" upon a very slim and unwarranted basis. For instance one of the articles of impeachment was against the Auditor for drawing a warrant in behalf of his clerk for the month's salary, the warrant specifying the particular section and chapter of the law that made an appropriation for the purpose of paying this clerk. The fact of the service being within the personal knowledge of the Auditor, and the receipt of the clerk being upon the stub of the warrant issued, and yet the managers insisted that there ought to have been a paper filed stating the account as between the clerk and the Auditor, and because it was not drawn out and filed among the papers of the office, six of the senators voted to find him guilty and to impeach him. It was a mere technicality, extremely, finely drawn out, and showed a disposition to try and ruin a man and his reputation without conscience or any regard to their duty as men and their oath as senators. The vote of fifteen upon the Bremer County Bank question against the Auditor may be justified upon the theory that a public officer situated as the Auditor was, having an important duty to perform, should not accept of any gift or favor or money that might be construed as something he had hoped for or expected when he performed his official duty. The act of receiving the money under the circumstances, though not criminal, was one of those acts of doubtful propriety that could scarcely be justified in a public officer.

The acquittal of Mr. Brown was beyond question a righteous and just act. Governor Larrabee, the newly elected Governor, had already restored Mr. Brown to his office and discharged the appointee to fill the created vacancy, and the people of the state retired Mr. Sherman from public employment permanently. After retiring from office he engaged in managing an insurance company at his former place of residence in the state, in which he was unsuccessful.

The state of Iowa paid to the attorneys in the case selected by Mr. Brown the sum of six dollars a day. I charged Mr. Brown, however, one thousand dollars for my entire services in connection with his impeachment, and he gave me his note for the balance, deducting the amount I had received from the state. This note was signed by S. F. Stewart. Some months afterwards I received from Stewart's wife a very remarkable letter, full of tears and sympathy for Brown, begging me to remit the amount on the note as Mr. Brown was poor and had been much wronged and abused. I ascertained that Stewart at or about the time he signed the note, had obtained from Mr. Brown a transfer to some valuable stock in the _Iowa Homestead_ newspaper at much less than the real value of the stock, and that they had counted the amount due me on this note as part of the consideration of the transfer. Estimating Mrs. Stewart's sympathy for Mr. Brown at its true value, I insisted on my note being paid in full, which Mr. Brown cheerfully did.

Mr. Brown was further vindicated by the subsequent action of the general assembly of the state in making a reasonable appropriation to reimburse him for his expenses and attorney's fees paid out in making his defense against the articles of impeachment. The result of the investigation before the senate also had a very beneficial effect upon the home insurance companies in that it gave public confidence as to their solvency, and gave assurance that the proper department of state would make the investigation of their transactions from time to time thorough and real, and not as before merely nominal.