USA > Michigan > Monroe County > History of Monroe County, Michigan > Part 51
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Soon after his admission to the bar, and while on a visit to his old home in Michigan, Mr. Smith was appointed to the office of United States Commissioner and Master in Chancery, by Judge A. G. Miller, of the United States Court. This honor was bestowed upon him without his knowledge or solicitation, but he accepted it and performed nearly all the busi- ness of that character in Milwaukee until his resignation in 1864. Some of the questions brought to his judicial decision were of great importance, as the period covered the exciting slavery agitation of 1850 to 1860, and the greater portion of the civil war. Among them were the fugitive slave riots, and the Booth prosecutions ; and although there was great popular clamor, and many personal influences to which a weaker will or a more flexible con- science would have bent, he performed his duties as they seemed clear to him, in accord- ance with the law and under the obligations of his official oath.
In 1862, when James H. Howe resigned the office of attorney-general of Wisconsin to enter the Union army, Governor Salomon, who was compelled to confront many crises and take many daring risks because of the exigencies of war-time, asked his old partner to accept the vacancy, knowing that in Mr. Smith he would possess an adviser whose knowledge of the law and whose patriotism was unquestioned, and whose personal friendship was of the most loyal character. The offer was accepted, and when the term expired in 1863, the people of Wiscon- sin ratified the choice of the governor by elect- ing Mr. Smith to the full term, which termi-
nated on January 1, 1866. He entered upon the discharge of his duties with the same intel- ligent devotion he had bestowed upon the busi- ness of his clients, and served the State as loy- ally as he would have served his own personal interests .* He never left his work to others, but appeared personally before the Supreme Court in all the cases in which the State was interested, with the exception of a few of a criminal character, which the district attorneys had prepared and desired to present in person. In this labor Mr. Smith was a pleader success- ful, with hardly an exception.
It was while holding the office of attorney- general that Mr. Smith was able to perform a large service to the State and to win a great measure of public applause, by his course in connection with the Milwaukee and Rock River canal claims, and the unadjusted accounts be- tween Wisconsin and the United States. The full history of that service can not be recounted within the limits of this sketch, but only enough to show the magnitude of the interests involved, and the difficulties that lay in the way of any settlement of advantage to the State.
Congress had granted to the Territory of Wisconsin, to aid in the building of a canal be- tween Lake Michigan and Rock River, a large amount of public land ; and it was the expec- tation of the Canal Company to obtain these lands when it should build the canal connecting the points designated. The work was com- menced, and all of the line that was ever built was one mile within what is now the city of Mil- wankee. From this it obtained an immediate benefit in the shape of valuable water-power, as it included a dam across the Milwaukee river. Claims for " relief" from the Territory had been suggested or advanced from time to time, and finally crystallized into a demand that all money expended by the Canal Company ought to be refunded by the Territory, as the latter had never given the company the lands obtained from the General Government for canal purposes. The company also set up the claim that it had been prevented from going on with its work because the Territory had re- fused to deliver these lands - that great dam- age had befallen its interests because of this refusal -and that instead of fostering its in-
# To quote General Fairchild's terse opinion of Mr. Smithi's labors : ".He was the best attorney-general Wisconsin ever had."
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BIOGRAPHIES OF PRESENT AND FORMER CITIZENS.
terests as expected, the Territory had dissolved all connection with the company and sold the lands to others. Not only was this claim ad- vanced at home, but presented to Congress ; and while that body did not do anything for the company's relief, it still gave enough atten- tion to the demand to withhold from Wisconsin the swamp land which, under other laws, was its due. The representative of the company claimed to have sufficient influence with Con- gress to prevent the State from securing not only these other lands but also cash proceeds, to a large amount, of the sales of other lands. In short, while the company made small ad- vance in the way of securing any benefits for itself, it was still able to embarrass Wisconsin by causing the General Government to defer its settlement with the State - which had suc- ceeded to the rights of the Territory - until the canal question was adjusted. All payments by the General Government to the State on account of sales of land were stopped. Mr. O. H. Waldo, one of the strong men of the Milwan- kee bar, was attorney for the company, and by plausible arguments caused members of Con- gress and others to believe that Wisconsin had really abused and injured the Milwaukee and Rock River Canal Company.
To go back a moment: These lands, on the line of the proposed canal between Milwaukee and Rock River, had come into great demand for actual settlers. The Territory retained posses- sion of them for some time, but was finally compelled to sell, rather than retard settle- ment by keeping them longer out of the mar- ket. A proposal was made to refund the money received in these sales to the General Government, but the latter declined to accept it. The Territory would not give it to the Canal Company, for the reason that it had already advanced the company more than enough money to pay for the proportionate share of the work donc.
I do not know the aggregate of the claims made by the Canal Company upon the State, but it is said to have been up in the hundreds of thousands of dollars. The small amount of knowledge held by the after generation as to the facts of the case, the difficulty of obtaining information, as all the books and documents were in the hands of the claimants, and the ingenuity and persistence of Mr. Waldo and his coadjutors, all combined to aid the com-
pany's cause ; and had the matter received only a superficial examination, or been left in hands of only ordinary competence, a settlement far less favorable to the State than was secured, would have been the result. The time came in 1862 when a formal movement was made to secure such settlement, and the legislature took steps leading in that direction .* A committee was appointed, and in 1863 Governor Salomon explained its action in a brief communication to the legislature, in which he said :
EXECUTIVE OFFICE, MADISON, February 2, 1863. 5
To the Senate and Assembly:
I lay before you the report of a Board of Commissioners appointed in 1862 to ascertain and settle the liabilities, if any, of the State of Wisconsin to the Milwaukee and Rock River Canal Company. The opinion of the attorney- general, which forms a part of this report, I commend to your especial and careful consid- eration.
The Governor added that it was the province of the legislature to determine what further steps should be taken. The commissioners, in their report, said that they had placed the matter in the hands of Attorney-General Winfield Smith to make an examination of the facts and to give his opinion of the law. His reply convinced them that the Canal Company had no claim against the State.
Mr. Smith's report, which was exhaustive, bore date of December 31, 1862. It recited the facts connected with the history of the case, disposed of the various claims, one after an- other, and summed up his conclusions in the following language :
" Upon the whole I conclude that the Mil- waukee and Rock River Canal Company ac- quired no rights through the act of Congress granting lands to the Territory for the pur- pose of aiding in opening the canal. That it acquired no rights through any subsequent act of the Territory (except, perhaps, for a time under a contract afterwards completely per- formed). That the Canal Company sustained no damage by the legislative act of which it now complains."
# It should be remarked in passing that a large share of credit should be awarded Hon. J. Allen Barber for having caused the postponement of the claim long enough to have it thoroughly understood.
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HISTORY OF MONROE COUNTY, MICHIGAN.
After the presentation of this opinion from the attorney-general of the State, the Canal Company was unable to get any legislation whatever from the State in its favor, yet still possessed enough influence in Congress to ob- tain action, which, it should be remarked, the State did not oppose. On July 1, 1864, Congress passed a joint resolution which or- dered that Wisconsin should be charged for the land given under the canal grant (125,431 acres); and that, on the other hand, the State should be credited with the amount expended in selling the lands, and whatever had been paid to the construction of the canal. It was further ordered that the State "also shall credit to the Canal Company such money as used in construction to that date, and in managing and keeping the same in repair" - this sum not to exceed the amount charged against the State of Wisconsin on the sales of said canal lands; the same to be received by the Canal Company in full satisfaction of all claims against Wisconsin or the United States.
The commissioner of the land office was ap- pointed to audit the claims, and determine what should go to the company and what to the State. Attorney-General Smith had been carefully investigating all the sources of infor- mation at his command, and proceeded to Washington fully prepared to produce the truth and defend the interests of the State. He spent the greater portion of the winter of 1865 in the National capital, Mr. Waldo being present in behalf of the Canal Company. The result of that extended hearing can best be given in the final report as made by Mr. Smith to the Governor of Wisconsin on March 24, 1865. The Governor, James T. Lewis, on for- warding it to the legislature made use of the following appreciative words:
" I enclose herewith a report from the attor- ney-general to me, of his action in the prem- ises, and take occasion to say that he is entitled to great credit for the energy and ability he has displayed in aiding to bring about this ad- justment."
The report gave a detailed statement of the labor required to get at all the facts in the case. In conclusion the attorney-general said :
" I take pleasure in announcing that with these exceptions [certain minor sums which are enumerated] every item claimed by the State
was finally allowed by the commissioner and the claim was settled at $56,527.44.
" The account then passed to the Secretary of the Interior. In his office it was carefully reviewed, and I furnished explanations upon the points which were misunderstood or doubted, including some which had not been previously objected to. I had reason to feel that these explanations were satisfactory and that the amount allowed by the commissioner would not be reduced. I was at this point summoned to Madison to attend a certain pressing office business, and therefore I was unable to remain until the account should be formally passed. I learn that the adjust- ment has since been completed, without mak- ing any changes.
" The summing up of the canal fund account now stands thus :
Amount charged by the United States for canal lands, at $1.25 per acre $156,789 77 Amount received on loan, which, with the interest paid, is now allowed to the State by the United States 1,000 00
Total $157,789 77 Deducting expenditures of the State allow- ed on above $56,527 44
Amount due from the State $101,262 33
" This adjustment opens to the State the en- joyment of the five per cent. fund, so called, which has been retained by the United States until the moneys received by the Territory on sale of the canal lands should be accounted for. The amount of that fund was on the 31st day of December, 1862, $250,139.11. Deduct from this $101,262.33, the balance fund due from the State as above, and the remainder, now owing to this State, is fixed at $148,876.78."
Every dollar of this sum, and the far larger sums since flowing into that fund, have been paid over to the State without further delay or objection. The amount that went to the Canal Company was just what it had expended, and no more ; what the State was willing it should get, and what the attorney-general believed was its proper and legal due.
During the terms he held this office he took an active part in the general management of the affairs of the State, and in connection with legislative committees devised and prepared several important measures which met satis- factorily the necessity of the State and of its
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loyal majority in those days of the civil war. Among these were chapter 45, relating to habeas corpus ; chapter 233, relating to the commissioners of public lands; chapter 261, relating to mortgages due to the State; chap- ter 455, relating to State lands, and chapter 481, improving the jury system in Milwaukee county - all in 1864. The exigencies of the war imposed many unusual duties upon him, which were faithfully and zealously discharged.
In 1872 Mr. Smith was elected the represen- tative of the seventh Milwaukee ward in the State legislature. He was not a candidate for the place and did not wish it, but the people of that ward - one of the most intelligent in the city -- insisted upon it, and he could not well refuse. He gave three months of the hardest work of his life to his duties in that capacity, and from the first was one of the recognized leaders of the House. He was chairman of the judiciary committee at a time when im- portant amendments to the constitution had just been adopted, and it threw severe and continued labors upon that committee, whose duty it was to see that all legislation was in accordance therewith. The greater part of the work performed by Mr. Smith in this capacity was therefore of a negative character; and so busy did it keep him that he had time and oc- casion to draw up but one bill, which was one of the shortest ever placed upon the statute books :
SECTION 1. The day of the general election shall be a legal holiday .*
Mr. Smith procured the passage of several acts, among which was one that must be re- garded as of great' practical importance. It was the law authorizing the school lands com- missioners to loan from the school and other trust funds of the State, to the city of Milwau- kee, money for the construction of the water- works of the city, then about to be undertaken. This plan of making several questions answer
each other, and all for the public good, was originated by Mr. Smith, and had the advan- tage of providing for the use of State funds then lying idle by a loan made perfectly secure ; and also of furnishing money to the city at a time when its credit was not as good as at present - of increasing the school fund and promoting the water-works. This plan was opposed at first as a novelty, but before the end of the session its advantages were so clearly seen that its supporters were largely in the majority. Mr. Smith also strongly sup- ported the law making an annual appropria- tion of ten thousand dollars for the State University, in addition to the funds it already possessed.
Mr. Smith might have spent a large portion of his time in public station had he followed the wishes of those about him, instead of consult- ing his personal choice and his love for the work of his profession. In 1859 he was nomi- nated for State senator by the Republican con- vention of the sixth district, but was con- strained to decline the honor because, as he said to those who had thus honored him by their choice, " There are confided to me in pro- fessional and various capacities, rights and in- terests of other persons, which demand my whole time and attention. I am not at liberty to neglect or lay down those trusts at this time, and I can not fulfill them consistently with that devotion to public interests which should be exacted from a senator representing one-half of Milwaukee county." In 1876 he was ten- dered the appointment of United States District Attorney to succeed Judge Levi Hubbell, re- signed, but declined to accept. When Judge Miller and afterwards Judge Howe retired from the bench of the United States Court for the eastern district of Wisconsin, Mr. Smith was upon both occasions urged to accept the place, as he was also urged to become a candi- date for the Supreme bench of the State upon Judge Ryan's death. In 1881 it was the almost unanimous wish of the bar and public that he should accept a Republican nomination or be- come an independent candidate for circuit judge, to succeed Judge Small, whose term was to expire that year. In all these cases he not only refused to take any step toward the ful- fillment of the general desire, but on the con- trary prevented his friends from using his name in connection with the positions.
* Some clerk of the assembly who could not make up his mind to sanction an act so contrary to his idea of proper legislation, added, under a general rule which gave him authority, another section which, although he did not know it, was an absurdity: " This act shall take effect from and after its pas- sage." It obviously could not take effect until the day of election, which would be in November, by which time it must take effect under the constitu- tional provision.
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HISTORY OF MONROE COUNTY, MICHIGAN.
Mr. Smith has been connected with the social and business life of Milwaukee in many ways other than political or legal, only a portion of which can be mentioned in this brief summary of his life's labors. He has been vice-president of the Wisconsin Humane Society, and an active worker for that noble organization; was the first president of the Milwaukee Chess Club; in 1851 he was secretary of the Young Men's Association, a society founded for the advancement of education and culture, and that laid the foundation of the great public library now under city control. He is president of and a large stockholder in the Cream City Street Railroad Company, and through that corporation and others has made his energy, ability and means contribute to the growth and development of Milwaukee's material in- terests.
That Mr. Smith has, almost from the day of his first appearance at the bar of Milwaukee, held a commanding position and been engaged in an extended practice, goes almost without the saying, in view of the outlines of public usefulness and public confidence given above. His clients have been among the leading men and firms or corporations of Wisconsin, and he has been connected with some of the most im- portant and intricate cases recorded in the legal history of the State. While it would be impossible to mention all these within the brief compass of this sketch, two can be referred to as containing matters of unusual public interest. One of these concerned the celebrated draft riot, and the enforcement of the draft in Ozau- kee county during the war. involving the con-
features of the case, "and his success in the final decision of the Supreme Court was due to close study, careful arrangement, and the full preparation he had made for the trial, and to the principles of law and justice on which he based his pleadings and argument."*
Still another case of importance with which he was connected at its various stages grew out of the controversy between the stockholders of the old Milwaukee and Prairie du Chien Rail- road Company and the old Milwaukee and St. Paul Railroad Company, in which the latter great corporation was enjoined from absorbing and destroying the former company until the rights and interests of its stockholders were protected in a satisfactory and equitable com- promise. "The national importance of the draft case," as one has said, "and the vast pecuniary interests involved in the. latter, greatly enhanced Mr. Smith's reputation at the bar, and led to an increased practice and to re- tainers in some of the most important litiga- tions of the period."
Politically Mr. Smith was of Democratic an- tecedents, but when he came to the full con- sideration of the great questions confronting the people of America in his early manhood, and saw the wrong and the dangers of slavery, he made his choice according to the dictates of patriotism and conscience. He gave a reason for this change of faith, and set it forth ably and fairly in a letter to his old legal instructor, Mr. Christiancy, in a letter bearing date of Septem- ber 20, 1856. In that communication he said : " I am among those Democrats who, having been always faithful to the party, were glad in then avowed and the pledges then made that the slave question was settled. How that principle has been abandoned, and that pledge violated, we all know. When the party [Demo- cratic] lent itself to that act of treachery [the repeal of the Missouri Compromise] by which territory for thirty years consecrated to free- dom was thrown open to slavery, the moral sense of the North was shocked. It was but partially lulled by the delusive cry of popular sovereignty, when it was again aroused by the practical illustration in Kansas of the principle as administered by its great exponent. Even then I hoped, with many others, that the out- rages perpetrated or sanctioned by the Presi-
stitutionality of acts of Congress authorizing - 1852 to vote for its candidate, on the principles the conscription of citizens and their enroll- ment in the military service of the country ; also the law power of the governor of the State, in enforcing those acts. It was a time of great excitement, and a crisis in public affairs, party spirit running high, and every word and movement attracting an excited public atten- tion. Upon the final appeal to the Supreme Court all the acts of Governor Salomon in en- forcing the draft, including the arrest of citi- zens and their imprisonment in the military camp at Madison, were declared to be constitu- tional and in pursuance of law, and the power of the Government to act for its own preserva- tion fully sustained. Mr. Smith, as attorney- general, exhibited a complete mastery of all the
# History of the Bench and Bar of Wisconsin.
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dent and his advisers might be chargeable only to them, and that the party would repudiate them and their deeds, and free itself of the bur- densome incubus. Those hopes were disap- pointed. The Cincinnati platform openly or tacitly approved of those acts, so hateful in the eyes of Northern men, and distinctly commit- ted the party to a continuance in the same course.
" Fremont was nominated on a platform mod- erate, conservative, and containing only those requirements in regard to slavery which the . North might rightfully demand. For the propriety, the right, the moral necessity of re- stricting slavery to its present limits, once un- disputed on this continent, are clear to my mind whether I consider the system abstractly or look at its practical effects. I then could not hesitate as to my choice. Whatever might be the force of party ties, of habits, names, associa- tions ; whatever might be the strength of one party or the weakness of the other; whatever might be the result, victory or defeat, I could not but determine to throw my influence in favor of the rights of the North, the rights of freemen everywhere. I could not join in any conspiracy to destroy liberty or promote slavery anywhere; and certainly not in this land where the question is vital to ourselves ; for if the plan of admitting slave States to the Union shall succeed, until the political power of the South shall predominate, the slight fore- taste we have had of their method of using power leads me to fear that we shall not be exempt from a more bitter experience of that tyranny. With these views, which subsequent reflection has confirmed, I determined to vote for those candidates who, personally highly acceptable to me, were pledged to carry out principles - more important than men.
Holding these views it was impossible for Mr. Smith to be anything but an carnest and outspoken friend of the Union cause when war was declared by the slave-holding power, and to labor in all possible ways for the success of the North. He was vice-president of the first committee organized in Milwaukee for the sup- port of the war. He had fully arranged to enlist and go to the field of actual service, when the demand was made upon him by Gov- ernor Salomon that he should go to Madison and give the same loyal and needed service in another line of duty. But he did not confine
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