A Note from Cottonwood Corners

The Supreme Court deliberated a little more than three weeks before they made a decision in the case involving the county seat conflict in Gregory County.  The question as to which town was entitled to the county seat hinged on whether Fairfax at the time of the November 1916 election was the permanent or temporary county seat.

The March 23, 1917, issue of the Omaha Daily Bee reported:  “The court by a divided opinion sustained the lower court, which held that the county seat of Gregory has been legally changed from Fairfax to Burke by the vote last fall.”

The court, by an evenly divided opinion, Judge E. G. Smith, not sitting in on the case, let the opinion of the circuit court stand.  The issue was whether or not Burke received the legal number of votes for removal of the county seat from Fairfax.

Justice Smith, in a former court battle had acted as circuit judge on practically the same issue so he declined to take part in the case when it reached the Supreme Court.  The other four members divided two and two on the issues in the case.  This in effect affirmed the lower court ruling and Burke legally became the county seat of Gregory County.

Even though the South Dakota Supreme Court had decided in favor of the city of Burke in the contest involving the county seat, the residents of Fairfax did not propose to surrender the county seat without a further fight.  Attorneys representing Fairfax filed a petition asking for a rehearing of the case before the Supreme Court.  If the rehearing would be granted by the Supreme Court, the Fairfax supporters would seek to have their earlier decision reversed.

The April 26, 1917, issue of the Pierre Weekly Free Press reported that: “The removal of the county records from Fairfax to Burke has been held up by application of Fairfax citizens for a rehearing of the county seat removal contest by the Supreme Court.”  The county commissioners had made arrangements for housing the county officials in Burke until permanent quarters could be provided.

A rehearing before the Supreme Court was held in Pierre on May 26.  One paper reported that attorneys representing the two rival towns proceeded to Pierre in force.  If the Supreme Court as the result of this rehearing held that Fairfax was originally selected as the permanent county seat, Fairfax would continue to be the site of the county courthouse.  If, on the other hand, the court would decide that Fairfax was originally selected as the temporary county seat, Burke would become the site of the courthouse.

Finally, a large number of South Dakota newspapers in July of 1917 printed the following story with a dateline of July 9 from Pierre:  “The county seat contest in Gregory County has at last been settled in favor of Burke.  The lower court had decided in Burke’s favor, instead of Fairfax, but when the case came to the supreme court, Judge Smith, because of former technicalities did not sit in the case, and the decision was therefore 2 and 2 , thus not reversing the trial court.  Finally Judge Smith still not sitting in the case and the remaining members of the court being divided, on questions of law in the case, the order appealed from is affirmed by a divided court, and that finally concludes the matter by leaving Burke the county seat.”

The Mellette County Pioneer (Wood, S.D.) on August 3, 1917, contained this headline:  “RECORDS TO BURKE — Fairfax Finally Gives Up Fight to Retain County Seat of Gregory.”

“After the county seat of Gregory County,” the paper reported, “had been a bone of the county since the early days of the county, the county records now have been moved to Burke, in accordance with the result of the election last November and court decisions rendered since that time.  The residents of Fairfax resisted to the last the removal of the county seat from their town.”

Recently, the South Dakota Supreme Court had rendered a verdict in favor of Burke.  The Burke citizens, at the time, feared that the residents of Fairfax would take further legal action to prevent the removal of the county records.  As a result, a number of Burke citizens went at top speed to Fairfax in automobiles and other conveyances to remove the records.

Before the ink was little more than dry on the Supreme Court decision, they commenced hauling the county records to Burke.  Two trips were required in order to carry all the county records to the new county seat.

The paper went on to say that: “Some of the more hot-headed residents of Fairfax were inclined to forcibly resist the removal of the county records, but the transfer was accomplished without bloodshed and without any of the residents of the two rival towns having their heads broken or sustaining other injuries.”

It was thought that the question of the county seat location had now finally been settled for all time.  To be doubly sure, they began immediately to have a permanent courthouse and jail erected.

When the county was organized, a special election was held on August 23, 1898.  Political arguments were made and two tickets were presented for the voters’ consideration.  However, party loyalty was lost in the bitter fight between Fairfax and Bonesteel for county seat honors.  Bonesteel lost by the narrow margin of seventeen votes.  That was the beginning of what would become a nineteen year dispute over the permanent location of the county seat.


Author Clarence Shoemaker, originally published in the Gregory-Times Advocate on February 24, 2021