John Jacob Metzger, who was defeated by Judge Cummin in 1878, became his successor in 1888. He was the regular Democratic nominee and Benjamin Stuart Bentley, Jr., son of Judge B. S. Bentley, was the Republican nominee. Bentley, Jr., had come within eighteen votes of being elected Mayor of Williamsport in 1878 as a Greenbacker. The campaign for Judge was conducted quietly, although a large vote was cast and the contest was close. The figures were as follows: Metzger 7,074; Bentley 7,030; Ames, Prohibition candidate 189. Metzger’s plurality was thus 44, the total vote 14,293.
The closeness of the contest was a surprise to both major parties, and it gave rise to suspicion on the part of some of Mr. Bentley’s friends that fraud had been committed by the Democrats and a contest was talked about.
John B. Emery, Republican County Chairman, took steps to bring about a judicial investigation, under Section 6 of the Act of May 19, 1874. He and fifty-six other qualified electors petitioned Hon. W. S. Kirkpatrick, Attorney General of Pennsylvania at that time, charging said election return was “a false return and undue election of John J. Metzger as President Judge and they contest his right to the said office. . . .”
The Attorney General found the petition in due form and transmitted it to John A. Beaver, the Governor, who, on December 5, 1888, issued a commission to the Hon. William M. Rockefeller, President Judge of the Eighth Judicial District composed of the County of Northumberland; Hon. Joseph C. Bucher, President Judge of the Twentieth Judicial District composed of the counties of Mifflin, Snyder and Union; and Hon. Charles A. Mayer, President Judge of the Twenty Fifth Judicial District composed of the counties of Clinton, Cameron and Elk, being the three President Judges residing nearest the Court House of the County of Lycoming to act as a Judicial Commission and to hear and determine the complaint of such petition.
The Commission met promptly on December 8, 1888. (Lycoming County No. 337, March Term 1889, C. C. P.) The contestants were represented by H. C. and S. T. McCormick, Candor and Munson, and John T. Fredericks. The Respondent was represented by Robert P. Allen, H. C. Parsons, H. W. Watson and William W. Hart, who later served as President Judge of Lycoming County from January 1, 1902 to January 1, 1912 when he declined re-election.
Errors alleged were errors in registration, illegal voting on age, non-residence, non-registration, not naturalized citizens, one voter non compos mentis, and in two townships, Wolf and Armstrong, that the polling places were located outside the territorial limits of said townships, and within adjacent boroughs.
At first there seems to have been a great deal of maneuvering and jockeying for position, so to speak, after the initial original petition had been filed. The contestants later filed two amended petitions, and all three petitions had to be answered by the Respondent.
The following is apparently a newspaper account which was typed and filed with the record:
“The judiciary contest in this county is destined to proceed, and no one can tell where the end will be. Since the meeting of the Commissioners, on Saturday, the fifteenth [Dec. 15, 1888], when the motion for the dismissal of the case was filed, the majority of the people are sanguine in their belief that the contest would be brought to an abrupt termination but it was confidently expected that after the arguments yesterday, the whole thing would be quashed. The action of the Court, therefore, falls with great force upon those who had been looking for such a result. After a steady flow of eloquence, lasting nearly six hours yesterday, from the learned counsel upon either side in their endeavors to impress upon the distinguished Judges their reasons for and against this dismissal of the proceedings, Judge Mayer, as spokesman for the commission, ruled adversely on the motion in part, and expressed a similar view as to those parts in which a final decision was reserved. This means that the case must go on. At the same time, the petitioners, on a motion of the respondent, which was granted, were instructed to file a bill of particulars within three days. This will be filed before Saturday, at which time the answer of Mr. Metzger to the allegations of the petition will be submitted.
“It was nearly eleven o’clock yesterday when Judges Mayer, Rockefeller and Bucher took their seats on the bench. Previous to that time, counsel for the parties had taken their places in front of the tables, on which were piles of books and legal documents fully prepared for the legal competition in which they were about to engage. At a word from Judge Mayer court was formally opened by Cryer [sic] Hepburn [i. e. Huston Hepburn, son of Judge Hepburn and one of the last two associate lay judges]. The statement was then made by Judge Mayer that counsel for the respondent would be entitled to the first and last arguments, and also that the court had decided to allow two and one half hours on each side.
“Hon. H. C. Parsons then opened his argument on behalf of the respondent. He spoke for an hour, and quoted largely from the authorities applicable to the case at issue. He asserted that this case was the most important action ever brought in this county, and it was the first of its kind in the State [i.e. since the establishment of the new procedure under the Constitution of 1873. Such matters were formerly heard before the State Senate]. In referring to the petition, he said that not a single illegal voter had been mentioned, and that the petitioners had failed to aver a single specification as required by law. At twelve o’clock Mr. Parsons concluded. He was followed by H. W. Watson, Esq., who read a carefully prepared written argument touching upon all the questions at issue. When Mr. Watson concluded court was adjourned until two o’clock.
“Upon reconvening at two o’clock, Hon. H. C. McCormick delivered his argument, a most forceful as well as eloquent effort against the motion to dismiss. He quoted numerous authorities. Mr. McCormick spoke nearly two hours, and his remarks were listened to with rapt attention by the vast audience present.
“At nearly four o’clock, Hon. R. P. Allen arose to deliver the concluding address in favor of the motion. He read the law in relation to contests and the various forms in which they are required to be brought, and concluded with reference to the different kinds of contests. In the case of a judiciary contest he quoted the law, going into details as to the proper manner to proceed. In this case he said the action was not in due form for the reason specified in the motion. It was nearly five o’clock when Mr. Allen concluded.
“All the arguments were able, masterly and eloquent pleas, and held the vast audience closely and deeply interested throughout the long session.
“Upon the conclusion of the arguments, Judges Mayer, Bucher and Rockefeller spent a half hour in conference. Judge Mayer then said that the objection as to the particularity and conciseness of the petition were sufficiently concise in those particulars to comply with the requirements of the Act of Assembly. As to the constitutionality of the question affecting the electors of Wolf and Armstrong Townships the Court would render no decision at present, as even if they did, if the other allegations in the petition were sustained by proof, it would change the result. As to the affidavits, the Court was under the impression that it was a sufficient compliance with the 6th section of the Act of 1874, but they would not, however, be bound by their opinion at this time on that point. A decision as to that question would, however, be reserved until final hearing.
“A motion was then made for a rule on the petitioners to file a bill of particulars within three days.
“Mr. McCormick, of counsel for Mr. Bentley, objected stating that the matter was premature; that before being required to file a bill of particulars the answer should be filed.
“The Court granted the motion and adjourned until next Saturday.
“Mr. Metzger will now have to file his answer to the petition already on record in this case.”
The contestants later filed two supplemental or amended petitions, which respondent was obliged to answer in addition to the original petition.
Because of the complexity of the issues involved, the Court suggested that each side nominate an examiner for the purpose of taking the testimony of witnesses, and also of securing delivery and custody of the ballot boxes. So after the case was declared at issue, on January 12, 1889, the contestants named James L. Meredith,33and the respondent chose Frank P. Cummings, for many years City Solicitor for the City of Williamsport. The Court ratified these nominations. The examiners on the same day selected George F. Graff and Charles F. Fritcher as stenographers to take the testimony to be heard before the examiners. The Court further ordered the examiners “to collect all the ballot boxes containing the ballots cast for President Judge . . . at the last election and to be by them placed in a suitable vault or place of deposit so as to secure against fire as well as spoilation, there to be left in the strict custody of the examiners, until further called for by the Court. The said ballot boxes not to be opened or interfered with until further order of the Court.”
The examiners brought the fifty-nine ballot boxes to Williamsport, and according to Meginness, stored them in a cell in the county jail. In the meantime, John J. Metgzer took the oath of office, having received his commission subject to the decision of the Judicial Commission, ascended the bench and presided at the January 1889 Sessions.
The Court directed that two hundred copies of the testimony should be printed in pamphlet form, including all docket entries, copies of all papers on file and orders of Court, in the order in which they were made. The work of taking the testimony of contestants was to be completed within thirty days or by February 15, 1889, and to be begun on two days notice to respondent. Subsequently, additional time was allowed contestants.
In several instances, witnesses who were subpoenaed by the examiners, to a total of about twenty-five persons, failed to appear and it was then necessary for the Court to make an example of several of them by issuing attachments to the Sheriff to bring them in. Of course the examiners were not in daily session, because of other engagements on their part, as well as engagements of counsel, and so consequently frequent adjournments took place. The testimony when completed consisted of 3,797 printed pages — the record, including the opinion, made 488 pages, respondent’s brief, 166; contestants, 116. The total number of pages relating to the contest was 4,567. It was December 10, 1889 before the examiners completed their labors. By that time all the ballot boxes had been opened by the Court and the ballots examined, as well as the registry lists and affidavits.
An interesting situation developed in Wolf and Armstrong Townships, for in both cases, the polling place was actually in an adjacent borough. This situation arose under the former Constitution of 1838, and these polling places had been permitted thus to exist outside the territorial limits of the respective townships by the legislature. But under the Constitution of 1873, Article VIII, Section I, Clause 3, a voter had to offer his vote in the election district where he resided. This was the basis for Judge Mayer’s dissent from the majority of the Judicial Commission, as to these two townships, and he dwelt on this constitutional provision at great length in his opinion, citing numerous authorities. He also felt that the entire Cogan House Township vote should not be thrown out, for the reason that the polling place had been changed to another place half a mile distant from the legally advertised polling place, (contrary to the majority opinion).
“Tabulated Statement Made by C. A. Mayer, P. J.:
|Whole vote in the County, as computed by Judge Cummin, for John J. Metzger
|Deduct illegal votes for John J. Metzger
|Deduct votes cast in Wolf Township as illegal, being the majority for John J. Metzger
|Deduct vote cast for John J. Metzger in Armstrong Township as illegal, being majority for Metzger
|Add 3 votes in Jordan Township for Metzger
|Add 1 vote in Jordan Township not counted for Metzger
|Add 3 votes in 1st Wd., Williamsport, not counted by the
election board, for Metzger
* * *
|Whole vote in County, as computed by Judge Cummin, for Benjamin S. Bentley
|Deduct illegal votes cast for Benjamin S. Bentley
|Add 2 votes in Woodward Twp. for Benjamin S. Bentley and thrown out by election officers
|Add 1 vote 1st Wd,, Williamsport, thrown out
|Add 2 votes 7th Wd., Williamsport, on recount by the court
|For Metzger 6,707
|For Bentley 6,648
59 Majority for Metzger.”
The majority opinion was filed the same day, January 18, 1890. They reported that after an examination of the ballots cast, by illegal voters, they found 333 thereof were cast for John J. Metzger and 387 for Bentley — the same figure as used by judge Mayer. They then deducted said illegal votes and arrived at the following result:
|“Whole vote in the County for John J. Metzger, as compiled by Judge Cummin<
|Deduct votes cast for John J. Metzger in Cogan House Township, included in above<
|Deduct 333 illegal votes
|Add votes in Jordan Twp. not included above
Add 1 double vote
|Add 3 votes in Williamsport
|* * *
|>Whole vote in the County for B. S. Bentley
|Deduct votes in Cogan House for Bentley
|Deduct illegal votes for Bentley
|Add 2 votes in Woodward Twp for Bentley thrown out by election officers
|Add 1 vote in 1st Wd., Williamsport thrown out
|Add 2 votes in 7th Wd.
|For Metzger 6,650
|For Bentley 6,521
|129 Majority for Metzger.”
The Court then closed its opinion in the following words:
“We find as the result that the said respondent, John J.. Metzger, received the greatest number of legal votes cast at the said election, and 129 votes more than Benjamin Stuart Bentley, and that the said John J. Metzger was duly elected to the office of president judge, and is therefore entitled to the same.”
Thus ended the great judicial contest which had commenced on December 8, 1888, and closed August 12, 1890. Nothing more remained to be done by the court but to fix the matter of costs and expenses. This was done on October 11, 1890, by declaring that “there was probable cause for this contest, and that the costs and expenses shall be paid by the County of Lycoming. The Court having made a careful examination of all bills presented, and having called before them the respective parties who had claims for costs and expenses, and such witnesses as were decided necessary,” made an allowance of the claims. I give here the Court’s recapitulation:
|George E. Graff, Stenographer
|Charles E. Fritcher, Stenographer
|James L. Meredith, Examiner
|Frank P. Cummings, Examiner
|Scholl Brothers, Printer
|Isaiah Gulliver, Tipstave
|Huston Hepburn, Court Crier
|John J. Metzger, Respondent
|J. B. Emery, Contestant
|John L. Guinter, Prothonotary
|Gazette & Bulletin, Printers
|James S. Eaton
|James M. Wolf, Sheriff
|The Sun and Banner
|Add amount already paid on account by County
|Total amount of costs
“It is therefore ordered, adjudged and decreed that the commissioners of Lycoming County draw their order upon the Treasurer of Lycoming County in favor of the following persons for the following sums, to wit - . . . (Above figures repeated).”
Meginness says that the total cost to the county was $16,060.92. In addition the Commonwealth paid the judges as follows: William M. Rockefeller, $2,220; C. A. Mayer, $2,241; Joseph C. Bucher, $2,400, or a total of $6,861. The direct and in direct cost of the contest, therefore, was $23,024.92. Besides this, both the contestants and respondent each paid fully $3,000 for private expenses which did not appear in the bill of costs.
This was the first contest of its type in the State under the Act which relieved the Senate of conducting such investigations. It had attracted much attention throughout the State, and the proceedings were everywhere watched with great interest. While much bitterness had been engendered between the contestants and the friends of the respondent, the outcome was certainly very gratifying to the latter. And while the trial was indeed a costly one, it was no doubt productive of good resulting from more care being taken in the conduct of elections.
I was naturally interested in learning who received the two hundred copies of the printed record, ordered by the Judicial Commission. On November 3, 1890, the Court made distribution of the printed copies as follows:
|“To each of the twelve counsel engaged in the case,
4 bound copies
|To each of the examiners, 2 copies
|To each of the stenographers, 1 copy
|To each of the Judges, 12 copies
|To Benjamin S. Bentley
|To John J. Metzger
The balance to be distributed by Hon. John J. Metzger.
One can only wonder what Judge Metzger did with his 108 copies, for to date I have been unable to locate a single copy, although both John G. Candor and Malcolm Muir are continuing to look in their respective offices. Surely some one will turn up with a copy some day. [Editor's note - The James V. Brown Library in Williamsport maintains a copy of the 4 volume set of the record. GW-2004.]
John Jacob Metzger was born in Clinton Township, Lycoming County, Pa., June 20, 1838, the son of George and Susan (Dietrick) Metzger, and was reared on his father’s farm. He was educated in the Clinton Township public schools and was. graduated from Williamsport Dickinson Seminary, now Lycoming College. He then taught school for five terms, and began the study of law with Aaron Jared Dietrick (a relative?), and later completed them with Charles D. Emery. He was admitted to the local bar in April 1860. He became active in his profession and was noted for his success in criminal law.
In 1862, he was elected District Attorney and served three years. In 1866, he was a member of the Williamsport City Council, and served on the Williamsport School Board from 1869-72. He formed a partnership in 1871 with Guy C. Hinman. In 1872-73, he was a member of the Constitutional Convention which framed our present constitution. He was a delegate to the Democratic National Convention at Cincinnati in 1876 and voted for Tilden.
As set forth above, Judge Metzger served 10 years from 1889 as President Judge, and was re-elected in 1898. He had both the Democratic and Republican nominations. His opponent was again Herbert T. Ames, the Prohibition nominee. His margin of victory was 3,000 votes.
Judge Metzger died while in office on September 27, 1900. He had been ill from a complication of diseases for several years. In 1897, he had gone to Pinehurst, N. C., where the climate gave him some relief. His funeral was largely attended, by the thousands, according to the newspapers of the day. Rev. J. M. Anspach, D.D., the editor’s great-uncle, is credited with having preached a splendid funeral sermon.
Judge Metzger was a member of the G. A. R., having served as a private in Company K, 3rd Regiment, Militia of 1862.
Following the death of Judge Metzger, Governor William A. Stone wrote Addison Candor, a prominent member of our bar, the following personal letter in longhand:
“October 26, 1900
“Addison Candor, Esq.
My Dear Sir,
After a careful consideration, I have appointed you judge to succeed the late Judge Metzger. I believe this to be best for the whole people of Lycoming County. I did this upon my own responsibility without any recommendations or assurances that you would accept the appointment. I believe that your appointment will meet with general satisfaction and sincerely hope that you will accept it.
Very truly yours, William A. Stone.”
Another letter followed to Mr. Candor from William W. Griest, Secretary of the Commonwealth officially notifying him of the appointment. It took Mr. Candor less than a week to make up his mind that he would not accept the appointment. For on October 31, 1900, he wrote a letter to his son John, then a Princeton undergraduate, informing him of his decision:
“. . . . However, this afternoon, I finally decided to decline the appointment and in this mail goes a letter to the governor to that effect.
“Of course it was a very high honor, but my professional and business relations were such as to force me to decline. There are plenty wanting the position and may joy go with the one who obtains the prize, but ‘for me and my house,’ we are ‘not in it.’34
Upon receiving the decision of Mr. Candor, Governor Stone then appointed Max L. Mitchell, a registered Republican, who evidently received the appointment because of his party affiliations, the governor too being a Republican. Thus Judge Mitchell served from November 19, 1900 until January 6, 1902. He sought election for the full ten year term, but Lycoming County, with a Democratic voting majority, put William W. Hart into office in place of Mitchell.
Max Louis Mitchell was born in Williamsport, Pa., January 13, 1886, the son of Rev. Thompson Mitchell, D.D. and Temperance (Turner) Mitchell.
Rev. Dr. Mitchell was born in Mifflin County, Pa., March 22, 1817, the son of George and Jeanette (Baird) Mitchell. George Mitchell was born in McVeytown, Pa., in 1784, and he was the son of George Mitchell and Elizabeth (Thompson) Mitchell. This George Mitchell was a native of Ireland arid came to the United States during the Revolutionary War.
Dr. Mitchell was reared on a farm in Mifflin County, and received his early education in the common schools. In 1839 he became a member of the Baltimore Conference of the Methodist Episcopal Church, and continued in the ministry of that denomination for more than 45 years, serving in various charges. He was President of Williamsport Dickinson Seminary, now Lycoming College, from 1856-59. In 1842 he married Temperance Turner, daughter of Samuel Turner, a native of New Jersey.
Dr. Mitchell died May 9, 1897, at his home in Williamsport. His widow died March 6, 1900. Both are buried in Wildwood Cemetery in Williamsport.
To Dr. Mitchell and his wife were born ten children, of whom six reached maturity. Judge Mitchell was the youngest.. He began his education in the preparatory department of Williamsport Dickinson Seminary. He attended the public schools of Huntingdon and Altoona, Pennsylvania, and afterward be came a student at Dickinson Seminary where he was graduated’ with honors in 1895. Two years later he graduated from Dickinson College, again with honors. He subsequently studied law with Hon. Samuel Linn. He was admitted to the Lycoming County bar in 1889, and the following year was appointed Clerk of the United States District Court for the Western District of Pennsylvania, at Williamsport, in which capacity he served until 1900. As above related he was appointed President Judge, serving until January 1902. Following his retirement from the bench, Judge Mitchell again engaged in the practice of his profession, and later John C. Youngman became his associate upon the latter’s admission to the bar.
On January 18, 1902, he married Anna L., daughter of William H. and Mary E. (Neafie) Whitaker,, of Philadelphia. They were later divorced, and subsequently on May 26, 1934, Judge Mitchell married Maude Brown Rogers, who survives him.
Judge Mitchell enjoyed a high reputation as a trial lawyer, not only in Central Pennsylvania, but even beyond the boundaries of this state. He had a quiet, impressive manner, was extremely courteous at all times, and when cross-examining all eyes in the room were focused upon him. He would pick up his chair at the counsel table, and move it closer to the witness box and jury as though straining to catch every word. Then after seating himself, he would remove his prince-nez, and solemnly and deliberately ask his questions, sometimes even lowering his voice. Naturally every one in the court room was literally hanging on his very words, as if the whole point of the case was about to be revealed. If he wished to be especially impressive, he would then rise from his chair with great dignity, drawing himself up to his full height, thus making an imposing appearance, and slowly and distinctly continue his questioning. But for all his suavity, he was a dangerous opponent in court, fully as dangerous as he was at bridge. He had a scintillating mind, a keen but dry sense of humor, and the ability to express himself in a very witty, if sometimes, sarcastic manner.
Judge Mitchell was particularly interested in the Lycoming Historical Society and was its President for a number of years.
After his retirement from the bench, Judge Mitchell continued to practice, as stated above, until failing health compelled his retirement a few years before his death, during which time he endured sickness and suffering from which there was no hope of relief. He died July 3, 1941, in a sanitorium at Laurel, Mary land, where he had been a patient for a year and a half.
Judge Hart, having won the election for the full ten year term over Judge Mitchell, took his seat on January 6, 1902. He was born in Clinton Township, Lycoming County, Pa., August 23, 1843, the son of Adam and Eleanor (Pollock) Hart. Adam Hart was born near Warrior Run, Northumberland County, May 6, 1788, and died May 8, 1890, having attained the extreme age of 101 years, 10 months and 2 days. He settled, when a young man, in Black Hole Valley, where he spent his long and useful life. His wife, Eleanor (Pollock) Hart died nearly twenty-five years before him, at the age of 68, and bore him nine children.
William W. Hart attended the public schools in his neighborhood and later Tuscarora Academy and Dickinson Seminary. He then began the study of law under Hon. John J. Metzger, and was admitted to the bar of Lycoming County in 1869.
In 1874, he was elected District Attorney, and was re-elected in 1877. In 1882, he was elected to the State Senate representing the district composed of the counties of Lycoming, Sullivan, Columbia and Montour, and served his full term of four years. During his incumbency he served as a member of the Judiciary Committee, also the committees on Municipal Affairs and Education, as well as that on Inland Navigation. In 1884, he was an alternate delegate to the Democratic National Convention held at Chicago, and four years later he represented the Sixteenth Congressional District at St. Louis, casting his vote for Grover Cleveland for President of the United States. He was always an ardent advocate of the principles of Democracy as laid down by Thomas Jefferson. He served a number of years as County Solicitor.
He was counsel for John J. Metzger, the respondent in the election contest narrated above.
Judge Hart was married, in December 1877, to Florence L. Montgomery, daughter of Dr. Hugh Montgomery, of Muncy, Pa. He and his wife were members of the First Presbyterian Church, Williamsport, Pa. He died at his home, 726 West Third Street, September 19, 1916, of apoplexy, shortly before five o’clock P. M. Mrs. Hart who had been blind for a number of years heard her husband groaning in his room to which he had retired, and called a maid. By the time Dr. Nutt arrived, the Judge had expired.
When Judge Hart declined re-election, the Democrats nominated Harvey Washburn Whitehead. In a four-way fight, he won the judgeship from the Republican candidate, William H. Spencer, who had twice been elected District Attorney. Judge Whitehead polled 8,771 votes, Spencer received 5,800; Sidney A. Schwartz, Socialist, got 1,018, and Charles L. Hawley, Prohibitionist, 269.
In the primary election preceding, Judge Whitehead had received 3,394 votes, George B. M. Metzger 2,825 votes and Charles J. Reilly, 1,190 votes, for the Democratic nomination.
Judge Whitehead took office in January, 1912. He was reelected in 1921, with the Democratic, Republican and Prohibition nominations. He had a 6,000 majority over Arthur A. Smith, whom he defeated at the Republican primary. Mr. Smith then entered the November election on the Socialist ticket.
Harvey W. Whitehead was born in DuBoistown, Pennsylvania, August 7, 1854, the son of Charles and Elizabeth (Gable) Whitehead. His father was born in Seneca County, New York, and was a millwright by trade. He was employed as a foreman in the erection of some of the early sawmills in and near Williamsport. He built the first saw mill at DuBoistown for John DuBois, and then became superintendent for Mr. DuBois, which position he held until his death. His wife was a native of Williamsport, and Harvey was one of eight children.
Harvey attended the public schools and the Muncy Normal School, the alma mater of so many lawyers, doctors and teachers of Lycoming County. He also attended the Williamsport Commercial College for two terms. He was then elected principal of the DuBoistown Schools and served in 1884, 1885 and part of 1886. He had earlier worked on the Williamsport Boom, as well as in the saw mills and lumber woods, where he had the misfortune to lose parts of several fingers. He also tutored privately with Jonathan F. Strieby in the higher branches of study.
He was appointed Clerk to the County Commissioners, January 1, 1881, and served three years. He was elected County Treasurer in the fall of 1883, and took office January 1, 1884 where he served three years, during which time he also studied law in the office of Jonathan F. Strieby. He was admitted to the bar in 1889 and practiced until the first Monday of January 1912.
Judge Whitehead was twice married. His first wife was Laura, daughter of Henry and Harriet Rodearmel Aurand, of DuBoistown, whom he married September 17, 1882. She died July 18, 1899. They had five children. His second wife was Annie Crooks, daughter of William D. Crooks and Elizabeth (Nichols) Crooks whom he married December 16, 1903. They had two children.
In addition to being a life long Democrat, Judge Whitehead was a member of Messiah’s Lutheran Church, B. P. 0. E., I. 0. 0. F., Rotary Club, Larry’s Creek Fish and Game Club, and the Isaac Walton League. Every year after his ascension to the bench, it was the custom of Judge and Mrs. Whitehead to hold open house at their Central Avenue home, during the Christmas holidays, for the members of the bar, and their other numerous friends and acquaintances.
Judge Whitehead served his two full terms, and died at his South Williamsport home just before 6 p.m. on January 11, 1934.
During the 1931 session of the Legislature, an Act was passed creating a second judgeship in the 29th Judicial District. In the election that fall, Lycoming Countians voted for the first time for two law judges, although they had formerly, until 1871, voted for two associate lay judges, in addition to the one law judge.
The candidates for Judge on the Democratic ticket were George B. M. Metzger and Otto G. Kaupp, with Don M. Larrabee and Clarence L. Peaslee on the Republican ticket. Larrabee had been Republican County Chairman and Secretary of the Williamsport Chamber of Commerce in his earlier years. Kaupp had been District Attorney in 1898-1901. Peaslee had been Assistant District Attorney.
It is said that Herbert T. Ames had personally solicited both Metzger and Larrabee to run. He circulated a petition for Mr. Larrabee, and wrote hundreds of letters in longhand asking his friends to vote for Mr. Larrabee on the Republican ticket. More than any other one man, he was credited with the election of these two men. Metzger had not run since his defeat in the primary at the time of Judge Whitehead’s first election. This 1931 primary was very hotly contested, and partisan feeling ran high. As an illustration, I recall some rather scurrilous street gossip current during this primary. It was said that Kaupp was a stubborn Dutchman, who thought his client was always right and the other lawyer’s client always wrong, and therefore he would not make a fair judge; and as for Peaslee, well, he was an atheist.
Needless to say, Larrabee and Metzger won, Metzger receiving some 1,200 more votes than his nearest rival. Larrabee, however, had the honor of being the first Republican elected to the bench in the history of the 29th Judicial District, dating back to 1868. Two Republicans, Judges Benjamin S. Bentley and Max L. Mitchell, had been appointed by Republican governors, but each failed of election when seeking full terms. Curiously enough, the same thing later happened to two other appointees — Mortimer C. Rhone who was appointed by Governor Earle and defeated by Samuel H. Humes for the full term; and Spencer W. Hill, appointed by Governor Martin, was likewise defeated by Judge Charles S. Williams. It would seem as though governors’ appointments were not popular with the Lycoming County electorate, inasmuch as no such appointees have ever won an election.
In order to determine which man should become the President Judge, as their commissions both bore the same date, it was necessary to draw lots. Judge Metzger suggested that they cut for high card. Judge Larrabee drew a nine spot, while Judge Metzger cut a jack and won.
About a year before his death while in office, Judge Metzger’s health began to fail, and he became critically ill in October, 1937. He died March 18, 1938, while in the Williamsport Hospital, and was succeeded by Judge Larrabee as President Judge, the vacancy caused by his death was filled by Judge Rhone, as above mentioned.
Judge Metzger married Mary Wagner, of Easton, Pennsylvania, who died in 1925. Five daughters were born to them, of whom four survived, as well as grandchildren. Judge Metzger was a member of St. Paul’s Lutheran Church, and both the York and Scottish Rite Masonic bodies. He was an ardent sportsman, until afflicted by an attack of typhoid fever which left him some what crippled.
To us lawyers he was known as a “Lawyer’s Lawyer”, and prior to his going on the bench, his professional advice was eagerly sought by both younger and older lawyers alike. He would never, even after he became Judge, decide any matter involving a statute without first carefully searching to see whether or not there had been recent legislation which had changed the law as he knew it. This reminds me of Lord Coke, who when asked if he knew the Statute Law of England, said he would be ashamed to say he knew the Statute Law, for Parliament might repeal all he knew, but he would likewise be ashamed to say he did not know the Common Law. So when a lawyer came to Judge Metzger with a petition or an order to be signed, he first of all wanted to know whether the lawyer had looked up and found all the law on that subject. Only after he was completely satisfied in his own mind, would he sign the order.
Following the death of Judge G. B. M. Metzger, Judge Larrabee became President Judge by reason of the seniority of his commission.
Don Marshall Larrabee was born March 11, 1877, in Emporium, Pennsylvania, the son of Marcellus L, and Georgiana Mayo Larrabee. Judge Larrabee was descended from the New Englander, Green field Larrabee, who appears in the New London, Conn. records as early as 1637. One of his descendants, John Spaulding Larrabee, was a civil engineer, who settled in Vermont about 1790, on the eastern shore of Lake Champlain at what is still known as Larrabee’s Point, opposite the site of Fort Ticonderoga.
Judge Larrabee’s grandfather, Willet Larrabee, was born in Pownal, Vt., in 1794, studied law and removed to Allegheny County, N. Y. One of his sons, Hon. D. C. Larrabee, also read law, located at Coudersport, Pa., in 1860, and became a partner of Hon. A. G. Olmstead until the latter was elected judge. Mr. Larrabee then had as a partner, W. L. Lewis. D. C, Larrabee died in 1889.
Marcellus M. Larrabee, father of Judge Larrabee, was born in Almond, N. Y. He enlisted in 1862, at Elmira, N. Y., in Company F, 109th N. Y. Infantry, saw active service and was wounded on the second day of the Battle of the Wilderness. After the war, he located in Emporium, Cameron County, Pa., where he was a merchant. He died in April 1920. Through his mother, Georgiana Mayo Larrabee, Judge Larrabee is descended from the Mayos, one of the oldest families in New England.
Judge Larrabee was educated at Allegheny College, Meadville, Pennsylvania, and received his A.B. degree from that institution in 1899. Thereafter he entered the Law School of the University of Pennsylvania, taking his LL. B. degree in 1902. He was business manager of The American Law Register, as the University of Pennsylvania Law Review was then called, during his second year in law school. His Alma Mater, Allegheny College, honored him with an LL. D. degree in 1940.
Judge Larrabee was admitted to the Philadelphia bar in June 1902. He had worked his way through law school by selling insurance for the New York Life Insurance Company. Immediately following his graduation from law school he continued in the life insurance business in Philadelphia and was later transferred to Harrisburg, Pennsylvania, where he became general agent for his company. He remained there about one year.
He was married October 7, 1903, to Olive Elizabeth Moore, of Summerville, Pennsylvania. Three children were born to this marriage: Don Lincoln, later a member of Lycoming County Bar; David M., a geologist with the U.S. Geological Survey; and John A., of Williamsport, terminal manager of the Gulf Oil Company. Mrs. Larrabee predeceased her husband by about two years.
In 1907, he began the practice of law in Williamsport. From 1909 to 1913, he devoted part of his time to the affairs of the Williamsport Chamber of Commerce, being its secretary- manager, helping to establish new industries to replace the vanished lumber industry. He served as Republican County Chairman in 1909-1910. He became associated in the practice of law with the late Nicholas M. Edwards and remained in this association until the death of Mr. Edwards on March 10, 1926.
At the centennial of the founding of Allegheny College, in June 1915, Mr. Larrabee delivered the address at the unveiling of a memorial commemorating the student days of William McKinley. He had been a member of a delegation of 100 students from the college who went to Canton, Ohio, on September 25, 1896, to greet McKinley then in the midst of his first campaign.
At the beginning of World War I, he was appointed Executive Secretary of the Lycoming Chapter of the Council of National Defense and Safety by State Chairman George Wharton Pepper. He also served on the local draft board as well as on the committee to give free legal advice and aid to families of soldiers. He was also chairman of the local finance committee during the war period.
In 1924 Don M. Larrabee published a book entitled “Journals of George Washington and His Guide on Mission to French Forts in 1753.” In that work he pointed out that the publicity given young Washington’s trip from Virginia to Fort LeBoeuf brought about, in later years, his appointment as commander in chief of the Continental Army.
In 1931, Mr. Larrabee became the first Republican to he elected to a judgeship in Lycoming County. Be it noted, however, that he was not the first Republican to serve in that capacity. That honor belongs to the late Honorable Max L. Mitchell, who was appointed to the bench by Governor Stone in November, 1900. Judge Larrabee shared his election with the Honorable George B. M. Metzger, wherefore there was a problem: who should be president judge? This was determined by cutting a deck of cards. Judge Larrabee lost, thus became additional law judge until Judge Metzger’s death on March 18, 1938, on which date Judge Larrabee became president judge.
Judge Larrabee was a member of the American Historical Association, Sons of the Revolution. He was a Methodist, a Mason and a Knight Templar. He also belonged to the Elks, the Odd Fellows, and, while in Allegheny, to the S.A.E. fraternity.
Judge Larrabee did much research pertaining to the era of the clipper ships, because of his mother’s people having been Captains in the China and East India trade.
At the invitation of the officers of Sigma Alpha Epsilon fraternity, in Evanston, Illinois, in 1940, he prepared an article on McKinley’s student days at Allegheny, which was published in that fraternity’s quarterly magazine, and also in the college alumni quarterly.
In 1941, Governor Arthur H. James appointed him chairman of a committee of county officials to set up the four local draft boards for Lycoming County. He was a member of the Williamsport Boy Scout Council, and its President, and also of the Lycoming County Council of Boy Scouts of America. All three of his sons were Eagle Scouts.
He also served as a trustee of Dickinson Seminary, now Lycoming College, from 1931 until his in 1960. He was a member of the board of managers of the Alumni Society of the University of Pennsylvania Law School, and president of the Congress Hall Law Society of Philadelphia from 1947 to 1949. While Judge Larrabee was attending the University of Pennsylvania Law School the school met in Congress Hall, adjacent to Independence Hall, in Philadelphia. There the law school was held from 1895-1900. The present law school building at 34th and Chestnut Streets was under construction at the time, but not yet ready for occupancy. Congress Hall was the seat of the Federal government from 1790-1800. Here sat Aaron Burr, as a member of the Congress, while Alexander Hamilton was Secretary of the Treasury. No doubt they frequently met, little knowing that they would meet later on and fight a duel which was to cost Hamilton his life.
The future judge became the first president of the Consolidated Sportsmen of Lycoming County. Throughout his long life, Don M. Larrabee was an ardent fisherman and hunter. He was the last surviving charter member of the Black Forest Hunting and Fishing Club, Slate Run, Pennsylvania.
While serving on the bench, Judge Larrabee took great pride in what may well be termed “fairness.” During his 20 years on the bench, he was rarely reversed, and this testifies to his great ability.
After his retirement in 1952, he resumed private law practice with his son, Don Lincoln Larrabee. Later Clinton W. Smith, Esquire, joined the firm. The judge remained industrious to the last. In spite of his failing health due to old age, he continued to attend to his daily duties at his office. In fact, he was leaving for his office when he was stricken with his last illness. He died on February 15, 1960.
Some Interesting Litigation
Some very interesting litigation arose in September 1945 before judge Larrabee, specially presiding by assignment of the Supreme Court of Pennsylvania in Northumberland County. This pertained to certain companies who had formerly owned coal lands and had failed to pay the taxes, and the lands were sold at tax sale and bought in by the County Commissioners of Northumberland County, but then the former owners continued to mine the coal from said lands without paying any royalties to Zerbe Township. He presided over these coal tax cases for a period of four years, until September 1949.
The bill in equity was presented in the Zerbe case on Sept ember 15, 1945, and Judge Larrabee granted an injunction restraining the removal of coal and timber from the county owned lands, by those who were removing the coal, and appointed Edward J. O’Rourke, cashier of the First National Bank of Treverton, as receiver of the coal lands and coal royalties.
On September 18, 1945, there was a hearing on the preliminary injunction and the judge granted a rule to show cause why the bill in equity should not be dismissed for want of jurisdiction, returnable September 27, 1945. After the defendants had presented their petition raising questions of jurisdiction, plaintiffs proceeded to offer evidence on the preliminary injunction, and the defendants’ attorney withdrew from the hearing, sat at one side of the court room and took no further part in the proceedings. The following morning, Judge Larrabee announced that he had received a telephone call from the Prothonotary of the Supreme Court staying all proceedings and issuing a writ of certiorari. The question on appeal was whether or not Judge Larrabee had abused his discretion in taking testimony within the five days provided by Equity Rule 38, when there was pending a rule on the question of jurisdiction under the Act of 1925. Here was a direct conflict between two sets of laws and apparently no decision on this point by the Supreme Court. Judge Maxey then made an order directing that all injunctions and appointments of receivers were to remain undisturbed, and Judge Larrabee was directed to proceed to determine the question of jurisdiction, during which time all proceedings on the merits were suspended. This was the only opinion written by the Supreme Court, and in effect, preserved the receivership which was the important thing. Then on October 20, 1945, Judge Larrabee filed an opinion deciding that the court had jurisdiction (54 D. & C. 427).
On October 26, 1945, the defendants took an appeal to the Supreme Court to Nos. 220-228 January Term 1945. On January 9, 1956, the Supreme Court handed down an opinion confirming Judge Larrabee’s decision (353 Pa. 162).
There were many other questions decided by Judge Larrabee. For example, on August 26, 1946, he filed an opinion regarding Nell Frantz, the lady who bought all the coal lands for $1.00 (60 D. & C. 611). Then there was another opinion filed by Judge Larrabee in the North Line Coal Company matter (61 D. & C. 355). The West Line Coal Company then took an appeal to the Supreme Court, No. 161, January Term 1947, but this appeal was quashed by the court as being interlocutory. On May 12, 1947, Judge Larrabee filed an opinion (59 D. & C. 424), wherein he decided that Marshall Reinhardt was entitled to royalties where he had redeemed within the two years.
Then on that same date, he decided that royalties after the two year period belonged to the county as trustee, and not to the former owners, and that the first installment under the Act of 1941 did not constitute a complete redemption (59 D.&C. 505).
On July 21, 1948, with Judge Fortney, Judge Larrabee filed an opinion deciding that the West Line Coal Company installment redemption agreement ended by their default on one annual payment. (20 North’d Co. Leg. J. 194).
On August 10, 1948, Judge Larrabee filed an opinion that the claim of the Commonwealth for state taxes be dismissed, (64 D. & C. 504).
The total amount of royalties involved amounted to more than $1,000,000.00. In fact the royalties for the year 1958 to date come to approximately $78,000, the greatest in the history of the receivership.
This litigation led our own Lycoming County Commissioners to look more closely into the matter of royalties on the coal lands owned by this county. In the case of Lycoming County Commissioners Petition, 62 D. & C. 1, the question arose as to the ownership of some $60,000 in royalties held in the county treasury. Harriet Horton Stanton claimed the right to redeem and to receive the accumulated royalties. Judges Larrabee and Williams decided that the royalties received by them after the primary period of redemption had expired belonged to the county, rather than to one subsequently redeeming under the Act of 1941. The court further held that if Harriet Horton Stanton did redeem, she was liable to pay a four-fold tax assessed on the mineral rights for each and every year taxes then remained due and un paid. Needless to say she did not redeem.
Another interesting case came before Judge Larrabee, specially presiding in Erie County. This was the case of Epstein v. Erie County Indemnity Company, etc., 39 D. & C. 117. The Supreme Court, sitting at Pittsburgh, on appeal from Judge Larrabee, after hearing counsel, held a brief consultation and affirmed “at bar” Judge Larrabee’s opinion in that case. This was a very unusual thing for the Supreme Court to do and very seldom occurs. (340 Pa. 417).
Other interesting litigation in this county, over which Judge Larrabee presided, arose out of the Austin Dam disaster. The A. & P. Corrugated Paper Box Company had a storage dam operated by them located less than a mile from the Borough of Austin. This dam burst after a flash flood in July 1942, causing great damage to stores and houses in the Borough of Austin, as well as to the Borough streets. Counsel moved the Supreme Court for a change of venue, and the Supreme Court directed the matters be tried before Judge Larrabee in Lycoming County. By agreement of counsel, it was stipulated that several claims for damages be tried before the Court without a jury, and several months were consumed in taking testimony regarding damage to stocks of merchandise in stores, as well as to dwellings. Judge Larrabee awarded damages totaling well over $100,000.00. The defendants took appeals in eight of these cases. The Supreme Court heard arguments in the case of Carison v. A. & P. Corrugated Paper Box Corporation, and affirmed Judge Larrabee in that case, as well as in the other appeals. (364 Pa. 217). Borough of Austin v. A. & P. etc. Co., (60 D. & C. 166) was another case arising out of the same subject matter.
Judge Larrabee was one of three judges appointed to try the election contest in Northumberland County at the time Charles K. Morganroth, of Shamokin, was the leading contender for the judgeship. The other two judges were Cyrus M. Palmer, of Schuylkill County, and Miles I. Potter, of Union and Snyder Counties, being the counties nearest to the Court House at Sunbury. While some ballot boxes were opened, and recounted, the change in votes was not sufficient to change the result and Morganroth was declared elected. He took office January 1, 1942. 50 D.& C.143.
33James L. Meredith was at this time a member of the Lycoming County Bar, and also had filled the position of City Recorder, from his election in the spring of 1871 to December 1, 1875, a position which has since that time been abolished.
34The above letters were made available to the editor by John G. Candor, the son John referred to above. The substance of this matter also appeared in the Williamsport Sun, November 1, 1955.