Joseph H. Kibbey: Go-To Guy of the Arizona Territory- Part 2

Part 2 covers some of Governor Kibbey’s lasting accomplishments as Governor, his second stint as an attorney in private practice, and his political and other activities in later life.

Portrait of Joseph Henry Kibbey

Governor Kibbey acted immediately on the biggest issue facing the Arizona Territory: the proposal pending in Congress to combine New Mexico and Arizona and admit them to the United States as a single state. On March 10, three days after taking the oath of office, he urged the Arizona Legislature to protest to the U.S. Congress. He noted that the opposition of the public and the Legislature was “practically unanimous”. Congress had dismissed multiple petitions sent by the public, public bodies, and private associations as not representative or not authentic. Governor Kibbey urged the Arizona Legislature to call a special election to allow Arizona voters to express their opinions. You can read his letter to the Legislature in the Legislative History, Arizona 1864-1912.

Excerpt from Legislative History of Arizona 1864-1912, page 241 (PDF page 270)

The Legislature did not call for an election, but lobbying persuaded Congress to require a referendum of New Mexico and Arizona voters on the question “Shall Arizona and New Mexico be united to form one State?”.  New Mexico voters approved the proposal, but it was soundly defeated by Arizona voters, effectively defeating the proposal in November 1906. Statehood for Arizona finally came on February 14, 1912. New Mexico had been admitted a month earlier, on January 6, 1912.

Arizona returns (with other official data) of the General Election held November 6, 1906
Excerpt from Legislative History, Arizona 1864-1912, page 247 (PDF page 276)

Another important issue was taxation. Mining was a major industry in the Territory, but Governor Kibbey maintained that the mines were not paying their fair share in taxes. At the time, property tax assessments on all taxable property except railroads and mines were based on 40-70% of their value. Mines were assessed between 3 and 5%.  First Governor Kibbey requested the resignation of the chairman of the Territorial Board of Equalization. Upon his resignation, the Board of Equalization increased the assessed value of the mines. Governor Kibbey advocated for another tax increase in his opening address to the 24th Legislature. A summary of his speech can be found in the Legislative History, Arizona 1864-1912.

From Arizona: Prehistoric, Aboriginal, Pioneer, Modern, page 358 (PDF page 6)

During the session, the lobbyists for the mines consented to a tax of 25% on the value of its gross product of bullion, believing that the Governor would veto a tax increase that was lower than he had requested. Instead, Governor Kibbey signed the new tax into law, reasoning that although the new tax was less than what was needed, the minimal increase was useful. Furthermore, Governor Kibbey believed that Statehood was imminent and that a more appropriate tax could be imposed by the State Legislature.

Governor Kibbey weighed in on a question posed by the local newspaper, the Arizona Republican, regarding whether Arizona residents should be called “Arizonans” or “Arizonians”. The newspaper preferred Arizonians. His lengthy letter to the editor gave his reasons for choosing Arizonans.

Arizona Republican, August 4, 1908

The 25th Territorial Legislature, which convened in 1909, was combative. They voted to disband the Arizona Rangers, a statewide law enforcement authority that was under the control of the state government. They also dismantled the office of the public examiner, which was an investigative office that oversaw government units to identify mismanagement. Governor Kibbey vetoed both bills but was overridden. The Legislature created the office of the State Historian. Sharlot Hall, a longtime leader and chronicler of Arizona history was passed over for the post, to the great disappointment of women’s organizations. The Governor conveyed that he, too, was an admirer of Hall, but that legislators had informed him that they would not create the office of the State Historian if a Republican were appointed to it. The Governor chose to compromise and appointed Mulford Winsor, who was later a delegate to the Arizona Constitutional Convention, legislator, and state librarian. After Kibbey left office, his successor Governor Sloan appointed Sharlot Hall to be the State Historian.

The 25th Territorial Legislature also enacted Arizona’s first direct primary law and established the Pioneer’s Home. A new county, Greenlee, was carved out of Graham County. The Legislature took steps to build the Territorial government by creating the office of the Territorial Engineer, the Horticultural Commission, and the Board of Embalming. 

Kibbey vetoed a bill requiring schools to segregate “African” students. In his veto message, Governor Kibbey wrote:

“It would be unfair that pupils of the African race should be given accommodations and facilities for a common school education, less effective, less complete, less convenient or less pleasant so far as the accessories of the school and its operation are concerned than those accorded pupils of the white race in the same school district; and the bill in its terms contemplates nothing less…This, I deem it, is a denial of not only a moral but a legal right.”

Acts, Resolutions and Memorials of the Twenty-Fifth Legislative Assembly of the Territory of Arizona

The Legislature overrode his veto, and the bill became law, as seen in Acts, Resolutions & Memorials of the 25th Legislative Assembly of the Territory of Arizona, Chapter 67, page 171. Later in private practice Kibbey would again assert his opposition to segregation.

In 1908, President Roosevelt appointed Kibbey for a second term but political opponents delayed confirmation for the remainder of Roosevelt’s term. Incoming President William Howard Taft appointed Richard Elihu Sloan as Governor. Governor Kibbey left office on May 1, 1909 and returned to the private practice of law. Territorial employees toasted the outgoing Governor with gifts.

Kibbey returned to practicing law, providing legal representation on issues he valued. The Arizona Territory was vulnerable to a destructive cycle of floods and droughts that flooded homes, killed livestock, and destroyed cropland. Kibbey participated in the creation of the Salt River Valley Water Users’ Association, in part to establish an entity that would make the Salt River Valley eligible for a federal program that would construct a storage dam. Kibbey served as its legal counsel. During his earlier time in private practice he participated in planning that ultimately led to the construction of Roosevelt Dam near the confluence of Tonto Creek and the Salt River that served as a model for future federal water projects. Construction began in 1903 but was delayed by extreme flooding. It began providing electric power in 1906 and was formally opened by President Teddy Roosevelt in 1911.

Photograph of the construction of Tonto Dam (Roosevelt Dam) in Gila County
Photograph of United States President Theodore Roosevelt at the dedication of Roosevelt Dam

Another legal issue that was important to Kibbey was segregation. Arizona statutes required that pupils of the ‘African’ race be segregated from pupils of the ‘Caucasian’ race. Segregation laws were on the books in Arizona until the 1950s. Here is a provision from the 1939 Arizona Code:

Representing a parent of school age children, Kibbey sued Phoenix School District 1. He argued that Black parents wanted their children to go to the best schools, just like the parents of white children. The trial court ruled that if facilities were equal, then segregation was legal. It found, however, that since children in the first 4 years of elementary school had to travel farther to the school, it was illegal. The case was appealed and heard by a new appellate court put in place after Statehood. The appellate court reversed the trial court judge and segregation continued (Dameron v Bayless, 14 Arizona 180, 1912).

Joseph Kibbey, an Arizona Territorial Governor

Kibbey continued to be politically active. Kibbey wrote policy positions in preparation for the Arizona Constitutional Convention that was held in 1910. In the special election held to choose delegates to the convention, Kibbey was not elected. As a Republican, he would have been part of a small minority. The Constitution drafted during the convention was submitted to Arizona voters between October and December of 2010.

In 1911 Kibbey was appointed as one of two local attorneys to the paving commission, created to determine which of Phoenix city streets would be paved and to work out the legal details. Paving had become necessary with the advent of the automobile. In the same time period, Kibbey and his wife learned to drive. She was an apt learner and a good driver. In contrast, Joseph Kibbey had difficulty controlling the automobile at high speed when the car was in third gear. He managed his worries by restricting himself to driving only in first and second gear.

In national politics, the rivalry between Republicans Teddy Roosevelt and William Howard Taft dominated the news. The discord caused Arizona Republicans to send two slates of delegates to the national convention in 1912. Historians note that the party rank and file supported Roosevelt, while party officials favored Taft. Taft was chosen as the Republican candidate for President. Kibbey, an observer at the convention, noted that the Arizona divisions were typical of other states. He also believed that Roosevelt should have been nominated as the Republican candidate for President. Roosevelt’s response to his loss of the nomination was to form the Bull Moose party and run for President as a third party candidate. Kibbey was a supporter. Roosevelt lost nationally and in Arizona. Arizona favored Woodrow Wilson. In Arizona Roosevelt placed second, Socialist Eugene Debs came in third, and Taft was last among the major party candidates. As we know now, Taft was elected the 27th President of the United States. After the election, Kibbey returned to the Republican party.

In 1914 Kibbey ran unsuccessfully for U.S. Senate, losing to the incumbent Henry Fountain Ashurst, a Wilsonian Democrat who would represent Arizona in the Senate until he was defeated in the Democratic primary in 1940 by Ernest McFarland.

Kibbey continued to serve on the Republican state executive committee. In 1919 his many years of work on water issues were honored by his appointment by Governor Campbell as chairman of the Arizona Resources Board. The Board was charged with protecting Arizona’s interests in the development of the Colorado River.  

Kibbey lost his wife on October 22, 1923 after a long illness. Nora Burbank Kibbey was known in the community as a charming and talented woman. Governor Hunt ordered the flag at the Capitol to be lowered in her honor. Her loss was a great blow to Kibbey.

Joseph Kibbey suffered a stroke and passed away less than a year later, on June 14, 1924. His passing was the headline of the Arizona Republican the next day.

The Arizona Republican, June 15, 1924 (from microfilm)

The Arizona Republican published a tribute:

“It was during his term (as Governor) that the greatest number of social, civic and fiscal reforms were instituted in Arizona.”

The Arizona State Bar noted: “A good man, a strong man, a useful man, was Joseph H. Kibbey.”

He laid in state in the Arizona Capitol rotunda. He was buried at Greenwood Memory Lawn Mortuary & Cemetery. In the coffin were the ashes of Mrs. Kibbey. Pall bearers included his law partners and two former Arizona Supreme Court justices. Thousands of people paid their respects. Two years later a bronze plaque was placed in the Capitol.

Additional details:

Segregation of Arizona public schools would continue until 1954.  In 1951 HB 86 Hayzel B. Daniels and Carl Sims, the first Black legislators in Arizona history, won passage of HB 86 repealing racial segregation in public schools, (Laws 1951, Chapter 74, PDF page 243), but segregation continued. In Phillips vs Phoenix Union High Schools and Junior College District (Maricopa County case No. 72909), Hayzel B. Daniels and Herbert B. Finn sued over the segregation of Carver High School in Phoenix. Superior Court Judge Struckmeyer wrote in February, 1953 that “a half century of intolerance is enough”. He ruled that the Arizona law permitting segregation was unconstitutional and that Phoenix Union’s segregation of African-American students was illegal. (Dismissal of appeal).

While the appeal was pending before the Arizona Supreme Court, Phoenix Union School Board quietly voted to desegregate all of its schools and the case was dismissed as moot. Next Daniels and Finn sued the Wilson Elementary School District for violating the Arizona law which prohibited segregation on the basis of race. Superior Court Judge Bernstein ruled in November of 1953 that segregation in public schools was a violation of the 14th Amendment to the U.S. Constitution. While the appeal of Bernstein’s ruling was pending, the U.S. Supreme Court requested a copy of Judge Bernstein’s opinion and later ruled that school segregation on the basis of race is unconstitutional in Brown vs Board of Education, 347 U.S. 483 (1954).

Goff, John S., Joseph H. Kibbey, Arizona Biographical Series, Black Mountain Press, Cave Creek, Arizona,
1991

Connors, Jo. (1913). Who’s Who in Arizona (Vol. 1). PDF page 157.

Kelly, George H. (1926). Legislative History, Arizona 1864-1912, Manufacturing Stationers Inc, Phoenix.

McClintock, James. (1916). Arizona: Prehistoric – Aboriginal – Pioneer – Modern. (Vol. 2). Chicago, S.J. Clarke Publishing Company. PDF pages 4-5.

Joseph H. Kibbey: Go-To Guy of the Arizona Territory- Part 1

Joseph H. Kibbey: Go-To Guy of the Arizona Territory- Part 1

Joseph Henry Kibbey’s public service and legal career left an indelible mark on Arizona’s history. During his career he authored a legal opinion that established key principles of water law, represented Maricopa County in the Territorial Legislature, served as the Territorial Attorney General and Governor, and facilitated the construction of Roosevelt Dam, Arizona’s first major water retention structure. Kibbey Butte in the Grand Canyon is named for him. He was an educated man, a dedicated public servant, and well respected by colleagues and the public. It is little wonder that he was called many times to serve in a wide variety of public and important private sector positions.

Part 1 of this blog traces his early career as the attorney for a water delivery company, associate justice of the Territorial Supreme Court, legislator, his brief service as the Territorial Attorney General, and his nomination as Governor of the Arizona Territory.

Territorial governor Joseph Kibbey at an early age.

Joseph H. Kibbey was born on March 4, 1853 in Centerville, Indiana. His father, John F. Kibbey, was a trial judge who served in the Civil War. Young Joseph Kibbey trained as a lawyer and practiced law at his father’s law firm. He married Nora Burbank, the daughter of the Governor of the Dakota Territory. They had two children, Walter and Anne.

Kibbey suffered from respiratory ailments. Arizona had a reputation of being a healthy climate, spurring Kibbey to move West. He arrived in the Arizona Territory in 1888 and settled in Florence. His first job was working for the Florence Canal Company as secretary-treasurer and attorney. At the time the town of Florence was an agricultural community of about 750 people, connected to the outside world by stage lines. Most of the buildings were adobe. About half of the population was of Latin American ancestry. The primary crops were barley, wheat, and alfalfa. The water source for the town and its agriculture was the Gila River, and there were several canal companies that delivered water. Hopes for a railroad line never materialized.

Arizona Weekly Enterprise, June 15, 1889

Kibbey’s prestigious family connections and some fifty signatures of Florence residents persuaded President Benjamin Harrison to nominate Kibbey as a district court judge, which served as the Territorial Supreme Court. His family soon moved from Ohio to join him. The appointment was well received in Florence.

Although Justice Kibbey was an Associate Justice of the Territorial Supreme Court, all the justices also served as trial court judges and visited each of the counties to conduct trials. Judge Kibbey was appointed to the 2nd district, which consisted of Pinal, Graham, Gila, Maricopa, and Yuma Counties.

The District courts of the Territory of Arizona, 1864-1912, page 37 (PDF page 49)

After his first 2 years another judge was added in the Territory, reducing Justice Kibbey’s responsibilities to Pima, Gila, and Graham Counties. The justices would also meet twice a year in Phoenix to sit as the Supreme Court and issue written opinions. Justice Kibbey served with distinction, establishing legal principles that are considered fundamental today. In Santa Rita Land & Mining Company v Mercer, 3 Ariz. 181 (1890), he ruled that territorial appellate courts would not hear issues that had not previously been raised in the trial court.  In Don Yan v Ah You, 4 Ariz. 109 (1893) he recognized and set an early precedent for a cause of action for wrongful death lawsuits. In Yavapai County v O’Neill, 3 Ariz. 363 (1892), he interpreted the law of the territory and ordered that Sheriff Buckey O’Neill was to be reimbursed for expenses incurred in the course of his duties, which included pursuing train robbers and serving subpoenas on witnesses needed for court. He relied on paragraph 579 of the 1887 Revised Statutes of Arizona:

Revised statutes of Arizona, 1887

Justice Kibbey’s best-known ruling was in Wormser et al v Salt River Canal Company, Case #708 (1892). The dispute was between historic users of Salt River water and customers with ownership interest in the canal company to whom the company delivered water in times of drought. The “Kibbey Decision” established that water rights were linked to the parcels of land where the water was historically used rather than to the owner of the land. The decision upheld the principle of prior appropriation, often described as “first in time, first in right,” which is still the basis of surface water law today.

The canal company did not appeal but ignored the decision. The Kibbey Decision was later upheld by the Territorial Supreme Court in Slosser v Salt River Canal Company, 7 Ariz. 376 (1901), Gould v Maricopa Canal Company, 8 Arizona 429 (1904), and Brockman v Great Canal Company, 8 Ariz. 451 (1904).

M. Wormser, et al., plaintiffs, vs. the Salt River Valley Canal Co., et al., defendants, no. 708 : decision

In 1893, incoming President Grover Cleveland appointed a different jurist to the Territorial Supreme Court and Justice Kibbey was out. After leaving the Court, Kibbey established a law practice in Phoenix. In his long career of public service, Kibbey was most proud of his work on the Supreme Court, believing that serving as a justice carried more responsibility than being a chief executive. For the rest of his life he preferred to be addressed as Judge. His deep respect for the judiciary may have been a tribute to his father and grandfather, both of whom had served as judges for many years.  

In private practice, Kibbey represented many “old-righters” who asserted their rights of prior appropriation. His law firm represented the water right holders in the Slosser, Gould, and Brockman cases. In each of these the Arizona Supreme Court opinions upheld the Kibbey Decision that he had authored as a justice in Wormser v Salt River Canal Company.

Kibbey was elected Phoenix City Attorney in 1897 and was later appointed Assistant District Attorney for Maricopa County. He chaired the Maricopa County Republican Party and the territorial central committee.

Acts, Resolutions and Memorials of the Twenty-Second Legislative Assembly of the Territory of Arizona

Kibbey was elected to the 22nd Arizona Territorial Legislative Assembly, which had two legislative chambers: the Council, comprised of twelve members, and the House of Representatives, comprised of twenty-four members. Kibbey’s term began in 1903. He represented Maricopa County in the Council and served as the Minority Leader.

Councilman Kibbey was a delegate to the 1904 Republican National Convention, where the Republicans nominated Theodore Roosevelt for President. In the General Election, Roosevelt was elected to the office he had assumed upon the 1901 assassination of President William McKinley.

On November 19, 1904, Governor Brodie appointed Kibbey Attorney General for the Arizona Territory. Two months later Governor Brodie resigned. Territorial Secretary William F. Nichols, himself a likely candidate for Governor, recommended Attorney General Kibbey instead.

On February 27, 1905 President Theodore Roosevelt appointed Kibbey to be Governor of the Arizona Territory. After confirmation by the U.S. Senate, he took the oath of office on March 7, 1905.

Additional reading:

Joseph H. Kibbey: Go-To Guy of the Arizona Territory- Part 2

“Arizona” or “Arizona”? The Story of Arizona’s State Anthems

In honor of National Poetry month, we present a short history of Arizona’s two state anthems.

In 1919, the Legislature decided that Arizona needed a state anthem. They chose “Arizona”, from a poem written by Margaret Rowe Clifford and music by Maurice Blumenthal, both residents of Cochise County. The lyrics, adopted by Laws 1919, Chapter 28, were:

History of the Arizona State Legislature 1912-1966, 1919, 4th Legislature, Regular Session PDF page 43

The Legislature directed the Commission of State Institutions to purchase an electrotype plate to produce enough copies to furnish all schools and public institutions with a copy. It appropriated $250.00 to acquire the copyright and $350.00 to produce and distribute copies. ($3800 and $5300 respectively, in 2021 US dollars).

Session laws, State of Arizona, 1919, Fourth Legislature, Regular Session, page 66 of PDF
Tombstone epitaph, August 31, 1919

The bill became law without the Governor’s signature, pursuant to Article 5, §7 of the Arizona Constitution. That section, essentially the reverse of the federal “pocket veto”, provides that a “bill shall become a law in like manner as if he had signed it” if it is not returned by the Governor within five days during the legislation session.

J. Morris Richards, in his History of the Arizona State Legislature, 1912-1966 tells the story. There was already a well-known Territorial song, “Arizona, Sunkissed Land”, by Mrs. Frank Cox and Mrs. Elise R. Averill, that was adopted by the Territorial Legislature in 1901:

Appendix to The Revised Statutes of Arizona Territory 1901

Since the lyrics in “Arizona, Sunkissed Land” included a reference to future statehood, when Arizona would become part of the “diadem of stars in the flag,” many felt that the State of Arizona needed a new official song. The entire legislative delegation of Cochise County proposed that the state song should be the poem composed by their constituent, Margaret Rowe Clifford, and put to music by another constituent, Maurice Blumenthal.

Not everybody liked the idea. Some musicians’ clubs suggested that the music was inferior. Some women’s clubs preferred the Territorial song. Letters and telegrams arrived in opposition. The Attorney General was asked for an opinion on whether it would be illegal to adopt a new song without repealing the 1901 bill adopting the prior one. Wiley E. Jones, the Attorney General, advised there would be no legal conflict. Governor Campbell and the members of the Senate were invited to hear the song in the House chamber during a recess. The Cochise County legislators stood firm against all opposition. When the bill passed (PDF page 40), some believed it was due to sympathy for elderly Mrs. Clifford and the steadfast support of the delegation from Cochise County.

History of the Arizona State Legislature 1912-1966, 1919, 4th Legislature, Regular Session, PDF page 40.
Photograph of a statue of Rex Allen in Willcox (Ariz.)

The next year, Rex Allen was born. An iconic singing cowboy, Allen grew up near Willcox and had a career in rodeo, radio, movies, and television. He was known as the “Arizona Cowboy”. Willcox now has a museum dedicated to his memory.

His son, Rex Allen, Jr. followed in his footsteps. He grew up near Willcox and became a singing cowboy, enjoying a long career as a country music singer and television star. In 2008 he joined his father in the Western Music Hall of Fame.

In 1981, Rex Allen Jr. released “Arizona”, a love song to his native state. He sang:

Instantly popular, there was soon sentiment to adopt it as the Arizona state song. In 1982 Representative Joe Lane, a future House Majority Whip and Speaker, introduced House Bill 2300 proposing that “Arizona” by Rex Allen, Jr. be adopted as the alternate state anthem. A gracious statesman, Representative Lane hailed from Willcox and also represented Cochise County. He didn’t want to swap the longstanding state anthem for a new one. From the time it was introduced, the proposal was to recognize Allen, Jr.’s “Arizona” as an alternate state anthem. His instincts were good: 31 co-sponsors signed on.

House Bill 2300 passed the House and Senate. It was signed by Governor Bruce Babbitt the day after the Statehood celebration, on February 15, 1982.

People were reminded of the alternate anthem during the preparations for Arizona’s statehood Centennial on February 14, 2012. Representative Brenda Barton, a fifth generation native of rural eastern Arizona, introduced House Concurrent Resolution 2051 proposing that Rex Allen Jr.’s Arizona be honored as the State Centennial Song. Though it passed the House, the Resolution was held in the Senate and not enacted. Representative Barton introduced it again as HCR 2021 in 2012, the year of the Centennial. Once again it passed the House but was not adopted by the Senate.

Where does this leave us? Arizona has a state anthem, “Arizona”, by Cochise County residents Margaret Rowe Clifford and Maurice Blumenthal, adopted as the state anthem by the Legislature in 1919. We also have an alternate state anthem, also titled Arizona, by Willcox native son Rex Allen Jr, adopted by the Legislature as the alternate state anthem in 1982.

If you’re looking for musical inspiration to sing in the shower, you’re on your own.

Additional information:

Rex Allen, Jr. performance of “I Love You, Arizona”

Dierks Bentley and The Phoenix Symphony performing Rex Allen, Jr.’s “I Love You, Arizona”

Performance of Clifford and Blumenthal’s “Arizona”

Sheet music for Arizona by Margaret Rowe Clifford and Maurice Blumenthal