The October 27, 1916 issue of The Mellette County Pioneer informed their readers that Fairfax had withdrawn from the county seat battle in Gregory County. The paper reported: “The county seat fight in Gregory County took a sudden and surprising turn by the withdrawal of Fairfax from the race, leaving the struggle between Herrick and Burke. Fairfax is the present county seat, but is located in the east end of the county. Realizing their inability to win in the pending fight, the committee in charge of their campaign withdrew the name of Fairfax and declared for Herrick. The indications are the latter town will win.”
One newspaper reported: “The new move has been a real sensation and has set the county politicians agog (full of intense interest and excitement).”
This sudden new change made many in the county to question the real motive behind this announcement. Some felt that this latest move was designed to deadlock the contest and was planned for Fairfax to hold the honor which it now professes to relinquish.
There was never any question of the desire of a majority of the voters to move the county seat nearer the center of the county. However, in all previous elections the division of strength between other competing towns enabled Fairfax to hold the balance of power — and the county seat.
One newspaper wrote this about Gregory County: “It is an unusually interesting situation and supplants all other election interests in this county.”
After the November General Election, Burke had been declared the winner and was designated as the permanent county seat of Gregory County, with a net majority of 256. The vote was: Burke, 1,541; Herrick, 1,137, and other communities, 148. However, it was expected that the situation would not be changed without a court contest.
It was presumed that the claim would be raised that the commissioners had no legal authority to remove Fairfax from the ballot. They planned to invalidate the election and hold the county seat in Fairfax.
A leading resident of Fairfax, C. A. Johnson, instituted an action requiring the county commissioners to show justification why a restraining order should not be issued to prevent the removal of the county records from Fairfax to Burke. Arguments on this application were heard in State Circuit Court on November 18, 1916.
Even though the South Dakota Supreme Court had previously ruled that Fairfax was established as the temporary county seat on August 23, 1898, the Fairfax proponents argued that Fairfax was the permanent county seat of Gregory County. As such, a two-thirds vote was required to remove the county seat to Burke or any other town. Burke had failed to secure two-thirds of the votes cast in the November 7th election.
The residents of Burke contended that the 1908 State Supreme Court, in a decision on the question at that time, rendered a decision to the effect that Fairfax was the temporary and not permanent county seat of Gregory County.
The question before the court on November 18th was Fairfax in reality the permanent or temporary county seat. Mr. Johnson, who initiated the court case, felt that there was a chance that the State Supreme Court would reverse itself on the temporary and permanent county seat question. Since the 1908 Supreme Court decision, the court had materially changed its membership. In an earlier case, E. G. Smith, of Yankton, who previously was a circuit judge had held that Fairfax was the permanent county seat. He was now a member of the State Supreme Court.
On December 1, 1916, Judge Williamson of the state circuit court who heard the November 18th case between Fairfax and Burke rendered his decision. He determined that Fairfax at the time of the election in November was the temporary and not the permanent county seat.
The residents of Fairfax immediately served notice of an appeal and applied for a restraining order. They asked that the county commissioners or the county officers be prevented from moving the county records from Fairfax to Burke pending a decision by the State Supreme Court. The attorney for Burke asked the Supreme Court to advance the case on its calendar so an early decision could be rendered.
Late in December of 1916, Fairfax supporters returned to the State Circuit Court and argued that Burke had won the election illegally. One newspaper reported: “It is alleged in the complaint of Fairfax that more than 50 farmers residing outside the city limits of Bonesteel and Dallas, voted at polling places within the city limits when they had no right to do so. These votes were cast largely for Burke, and Fairfax contends that they should not have been counted. If these votes were thrown out it would leave Burke short of the necessary number of votes to secure the removal of the county seat from Fairfax to Burke.”
Fairfax supporters had already indicated that if the circuit court rules against them, the case would be taken to the State Supreme Court.
Early in February, the State Supreme Court announced that they would hear oral arguments on February 23 or 24 on the legal contest between Fairfax and Burke for county seat honors.
Author Clarence Shoemaker, originally published in the Gregory-Times Advocate on February 17, 2021