USA > South Dakota > Who's who in South Dakota, Vol. I > Part 21
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22
STUDIED LAW
Upon the completion of his school work at Vermillion, he taught school-one year in Clay county, one in Yankton county, and one term in Nebraska. During this time, he saved his money and invested it in cattle which he turned into his father's herd, and which he hoped to sell later to raise money with which to put himself through the law school at Ann Arbor, Michigan. But the great flood of 1881 swept away his father's property, drowned all their cattle and destroyed everything they had, leaving the family penniless, and young Elliott to lay the foundation for his destiny all over again. Accordingly the next year he entered the law offices of Gamble brothers-John R. and Robert J .- at Yank- ton and began to read law for himself, while for a livelihood he slept in the office and kept books at night, dividing his surplus earnings with his parents and five sisters. In this connection it
258
WHO'S WHO IN SOUTH DAKOTA
may be well to state that no boy ever had a better opportunity to read law, for, without casting any reflection upon any other man, it is safe to state that John R. Gamble, who at one time was our congressman, was the brainiest and most brilliant attorney that has ever graced either of the Dakotas. It was a rare privilege for a young man of Elliott's temperament to have known him and to have studied under him. So thorough and so broad was his instruction and that of his brother Robert's to their devoted law student that today their young protege occupies the leading bench of the state, with no other legal preparation, save that secured under their tutelage.
AN HONEST ATTORNEY
Young Elliott was admitted to the bar in 1884, and he at once settled at Tyndall, where for twenty-seven years, he was on one side or the other of practically every case that was tried in court, or else associated with the lawyer who did try it. His learning was so broad, his conception of duty so high, that more than a hundred times during his Tyndall practice, aggrieved parties came into his office together, constituted him judge and jury, stated their grievances, took his verdict, abided by it and went home without going into court at all. This confidence arose from his noble manhood, from his exemplary life, and from the fact that he was never known to stoop to low scheming in order to win a case. Forgetful of self, he never urged litigation, but invariably sought to keep his clients out of court.
POLITICS AND IDEALS
In politics he is a complete master of the game. During those long years at Tyndall, he handled the politics of Ron Homme county in a masterly way, yet nobody fought his leader- ship; in fact they all sought it. He was made chairman of the republican state central committee in 1896. A number of his friends begged him to run for governor or for congress, and on one occasion the leaders of the state legislature urged him to leave Pierre and return to Tyndall, so that they might on the morrow elect him to the United States senate. But James Elliott emphatically refused. Unlike most politicians who always have "an axe to grind," Judge Elliott was in politics only for the good he might do his party and his personal friends. He never sought preferment for himself; rather, he incessantly refused it. Now, there was a reason for this When young Elliott was reading law in the Gamble brother's offices at Yankton, the only court in those days was the federal court which convened in
250
JUDGE ELLIOTT
Yankton which was the territorial capital. Here the lad saw federal court conducted, and saw the United States district at- torney in action. It appealed to him and it gave birth within him to some day become our United States district attorney and later on to sit on the bench as federal judge. With these two ideals before him, he never swerved from his realization of them. The percentage of men who realize their ambitions in life is so small that it perhaps does not exceed one in every ten thousand. Elliott is one of them.
REALIZED FIRST AMBITION
For the good work which he did in 1896 as chairman of the republican state central committee, in stemming the tide of pop- ulism that was sweeping the state, President Mckinley, almost immediately after his inauguration in the spring of 1897, ap- pointed Mr. Elliott United States district attorney for South Da- kota. His first ambition was realized. This position he held for ten years.
Then he became general attorney for the Milwaukee railroad company in the two Dakotas. Elliott named his own salary; the company accepted it. There was but one stipulation-he refused to do their political work. They exempted him from it. This new legal department out in the west for a great corporation needed organization; Eliott undertook it. So well did he succeed that the company raised his salary several thousand dollars before the end of the first year.
REALIZED SECOND AMBITION
But, what about that second ambition-the federal judgeship? Strangely enough, in the winter of 1910-11, a vacancy was created on the federal bench at Sioux Falls, by reason of Judge Carland's promotion to a position on the new Commerce Court created by special act of Congress. A scramble took place at once among politicians for this federal judgeship. One dignified lawyer looked calmly on and awaited the verdict, while his friends remained busy in his behalf. And in June, 1911, President Taft appointed to the vacancy that poverty-stricken lad from the Missouri bot- toms, the early teacher in the Dakotas, the lawyer who had mas- tered law outside of a law school, the Honorable James D. Elliott -now Judge Elliott, of you please.
At last his cherished ambitions were realized. They had been harbored in his soul for twenty-nine years. Perseverance wins. In order to accept the honor he took a reduction in salary of $5,000 per year. But he could do this. Those early days in.
200
WHO'S WHO IN SOUTH DAKOTA
Dakota had taught him the art of saving. At present he owns sixteen farms in Bon Homme county, containing six sets of mag- nificent buildings. His income is sufficient for life without his judge's salary. If it had not been, he could not have accepted it, for the salary of the position is not commensurate with the financial obligations which it entails.
NO ENTANGLEMENTS
Immediately upon his appointment, Judge Elliott sold off every dollar of his bank stock and as far as possible liberated himself from all corporate influences. He also withdrew from politics and has isolated himself from all entangling matters, so as to make a great judge -one whom the people might love and revere as they did the young Tyndall attorney in days gone by. Thus far he has already adjudged some of the most important cases in the history of the state, yet not a single newspaper or in- dividual has found fault with his verdicts. In the one large case from Pierre which was carried to circuit court of appeals, he was sustained on every point, even though some new law had been written into it.
Said he to a friend not long since: "When I was sworn in as federal judge, I also registered a secret oath with my God that I would never knowingly misjudge or wrongly sentence any man. and that every person, rich or poor, black or white, accused of crime, would have to stand before me and have his guilt or inno- cence weighed in the same scales of justice, and I shall never break that oath." He never will!
Let us all unite in congratulating him on the achievement of his ambitions, and in hoping that the boys of the rising genera- tion may emulate his noble example!
261
E. E. WAGNER
OUR U. S. DISTRICT ATTORNEY
Dame Nature, true to her accustomed instincts for variety in mankind, created Edward E. Wagner, of Mitchell (our present United States district attorney for South Dakota) with a face so narrow that, as the polite westerner would say, "He can kiss a goat between the horns without any inconvenience." Yes; and she went farther; on that lean face she firmly placed a long thin nose as sharp and as pointed as a probe. Exactly so! and nature intended it for that very purpose -- to probe into subjects for lit- igation, the conduct of individuals and legal technicalities. In a case from Pennington county, recently tried in federal court before Judge Elliott, at Deadwood, and which Mr. Wagner as United States district attorney was called upon to prosecute, he had probed into the deal so deeply that he found the core and had rooted out over twenty distinct counts against the accused; and, furthermore, when he went into court, he made every one of them stick. Again, in the famous "white slave" case, tried only a few weeks since in Sioux Falls, he had ferretted out four counts instead of one against the defendant, and he proved every one of them.
Wagner is a mighty likable fellow-one, generous in his na- ture and willing to accord the right of private judgment to every man. It is a privilege indeed to know him. His present position has not "swelled" him up. In court, he's a vigorous prosecutor ; outside, democratic and companionable. Well read in law, keen and aggressive in its appilcation, he makes a public prosecutor for South Dakota whom criminals against the federal law need to dread, and a protector of the people's rights, of whom they may well feel proud.
PARENTAGE
Wagner's father, James H., was a sturdy Civil War veteran. His mother, Louisa E., was a faithful Christian woman. They lived in Linn county, Iowa, near Cedar Rapids. Becoming tired
262
WHO'S WHO IN SOUTH DAKOTA
of renting, and preferring to take chances on being thrown upon their own resources as pioneers, the young people, in the spring of 1870, packed up their scanty belongings, piled them into a wagon that was materially effected with age and heavy usage, covered it over with a piece of patched tentage, hitched on to it the old team of dreamy oxen; the faithful groom took his place on the hard seat-board beside his loyal bride, cracked the whip over the backs of Buck and Brindle, and the Wagners were off on their trying journey across unbroken prairies, through entang- ling forests, fording unbridged streams, for their future home in Lyon county, Iowa. This county is in the extreme northwestern part of that state. It lies just across the narrow Sioux river, from Lincoln county, South Dakota. Here they homesteaded in June, 1870, built a log house and settled down to work out their destiny.
THE STORKS' ERRAND
Wishing to people the "fabled golden west," and, as a re- sult, to convert its sleeping domian into productive fields, Prov- idence-as has been His custom for all these thousands of years - sent out a trusted Stork one day in 1870, carrying in its talons a huge basket filled with promising October babies:
"Little chest expanding crooners from the sky - Bright and happy angel-faces Sent to occupy the places Of little people, such as Pa and I,".
with instructions to distribute them among the families of north- western Iowa, wherever they might be needed as "Little minstrels of the stilly, chilly night, Making papa promenade the stage in white."
The stork had had a busy day. Nightfall of October 22 was upon it. Only one baby remained in the basket. Where? where? oh! where? shall I leave it?" muttered the tired stork.
Just then it crossed over the line into Lyon county, and sighted in the far distance a dimly-lighted cabin beside of a deep ravine heavily timbered and in which numerous Indians were camping while elk were feeding in the moonlight along the hill- sides not far away. Hastening toward it the weary stork flew directly into the open door of the cabin, just as its tired talons gave way, and it dropped the basket and all into the receptive lap of Mrs. Louisa Wagner, -then it disappeared; and thus was born the first white child in Lyon county, Iowa, Edward E. Wag- ner, the worthy subject of this sketch.
EARLY EXPERIENCES
When Edward was three years of age, the family moved to
263
E. E. WAGNER
another farm near Rock Rapids, Iowa. Here, the lad entered public school, at five years of age, and remained in school until his father's untimely death in 1884. The loss of his father forced the lad to leave school and as- sist his mother on the farm for the next five years. How- ever, at nineteen, he entered the law office of H. G. Mc- Millan, attorney for Lyon county, and subsequently United States district attorney for northern Iowa, and took up the study of law. For sup- port he harvested and threshed each fall. Finally, on May 11, 1893, at the age of twenty-two, our young stork-gift found himself in chambers before the supreme court of the state of Iowa, where he passed a very creditable examination and was promptly admitted to the bar.
OFF FOR DAKOTA
In the early part of the succeeding month he ap- E. E. WAGNER proached his mother one morn- ing, with a long face. He said: point in central South Dakota to practice law. I haven't a penny to my name. Couldn't you loan me $25? I'm sure I'll make good and can soon pay it back."
"Mother, I want to go to some .
"Wouldnt' it be better to stay here among friends and ac- quaintances, Edward?" calmy argued his thoughtful mother. "They know you and they would no doubt turn you quite a little business."
"I've been watching this thing for several years while I have been reading law with Mr. McMillan, mother," said young Wagner "and I am positively convinced in my own mind that it is better for a young lawyer to seek a strange place. Dakota is a new country, settled by mixed nationalities who have not as yet become accustomed to each other. For several years there will be a lot of litigation. I believe I better go."
"Very well," said his yielding, well-wishing mother; "I
264
WHO'S WHO IN SOUTH DAKOTA
will loan you the money, but you needn't be in a hurry about paying it back."
Stepping into a small bed-room, she took from the bottom of an old dresser drawer a tiny Indian bag made of deer skin and ornamented with beads, loosened the draw-string and picked out of it a small roll of bills; counted out $25, handed it to her am- bitious son, and said with tears in her eyes: "Edward you will take with you my benediction, and may God bless you and keep you a man !"
The next day young Wagner landed in Chamberlain, South Dakota. Here he had an interview with the late Judge Morrow, the purpose of which was to form a partnership for the practice of law. These negotiations failed. So, after a few days, the young fellow made his way back to Mitchell where he landed with but $2.65 in his pockets. He at once engaged a room at the old Raymond hotel; sent his linen to a laundress, had it renewed, got a shave and a hair cut, had his suit pressed, returned to the hotel and found himself possessor of but fifty cents. The next morning was Sunday-that sacred day that brings, or at least should bring, to the surface the best there is in every man. Wag- ner was standing on the porch of the hotel, meditating over an uncertain future. In his clean linen, pressed suit, etc. he looked like a Greek god --- one possessed of all the good things that this life affords, in superabundance. (A bold front has brought suc- cess to many a man. )
Up stepped a hungry old negro. Taking off his torn hat, and looking Wagner squarely in the eye, the darkey said : "Mistah, I'm awful hungry; couldn't you spare a colo'd gentle- man the price of a meal?"
"Sure!" exclaimed the young attorney as he reached into his pocket to divide his last half-dollar with the black man whom his own dead father had served four years in the war of the re- bellion to help liberate from his slave master.
"Thank you, Colonel, thank you," said the Ethiopian as he gripped the twenty-five cent piece and hastened away to a nearby cafe.
"I wonder, thought Wagner, "how soon I'll be asking for a similar favor from some other man." (Only twenty-five cents left. It took courage).
But Wagner was not without hope, plus faith (the substance of things hoped for). On the previous morning, Saturday, he had borrowed a state code from old Judge Powers and had prac- tically concluded arrangements to open a one-book law office in the back part of the Judge's real estate rooms, on the following
265
E. E. WAGNER
Monday morning. But, strangely enough, that same evening he had run across Dave Mizener whom he had once before met, and Mizener told him that he had a lot of land contests to be tried; and during the conversation he invited Wagner to try them for him. Before the young fellow scarcely realized it, he was shocked to hear his own voice in court; and his career as an at- torney at law had been begun.
He remained with Mizener until the summer of 1894; then he set up in business for himself and practiced law in Mitchell until November, 1899, when he returned to Rock Rapids and be- came identified with his old friend, McMillan.
In May, 1899, he came to Alexandria, South Dakota, and es- tablished himself in the practice of his chosen profession at that place. He remained in Alexandria for eleven years, during which time he worked up such a large practice not only locally but throughout the state, that he was compelled to seek a partner. He finally took in W. E. Van Demark, a graduate from the law school of our state university, and a promising and vigorous young prosecutor who has since risen to distinction as states at- torney for Hanson county and who is now retained as one of Mr. Wagner's assistants in his extensive federal court practice.
POLITICAL REWARD
In 1901-2, Mr. Wagner served as states attorney for Hanson county, and in 1905-6 as state senator from the same county. At the state republican convention, in 1906, he was made chairman of the commmittee on resolutions, and as such he gave to the state the pronouncedly progressive platform of that year. His po- litical activity as well as his rare legal ability, soon found re- ward; and in June, 1907, President Roosevelt appointed him United States district attorney for South Dakota.
PRESIDENT STATE BAR ASSOCIATION
The legal profession made suitable recognition of Mr. Wag- ner's ability, in 1909, by electing him president of the State Bar association. He had, at the 1909 session, delivered before the convention a masterful address on "The Federal Income Tax." We regret that the salient features of this able speech cannot herein be discussed, but space forbids.
However, at the 1910 session, over which he presided, he delivered another address on "The Legislation of the Session of the Legislature of 1909" which was very able, and which has been preserved to us in its entirety by the courtesy of the bar as- sociation. In it he showed that the 1909 session of the legisla-
266
WHO'S WHO IN SOUTH DAKOTA
ture had enacted 301 laws, and he then proceeded to discuss some of the more vital ones. We herein reproduce a few extracts from this speech which are worthy of most thoughtful consideration by every citizen of our state:
"Among the needed changes suggested to my mind by recent judicial decisions is the modification or repeal of Section 486 of the Code of Civil Procedure, which provides that in a civil action or proceeding by or against an executor, administrator, heir, etc., neither party shall be allowed to testify as to any transaction or statement by the testator our intestate, unless called to testify thereto by the opposite party.
*
"I believe the experience of most lawyers has proved that injustice rather than justice results from the application of this statute. Its purpose of course, is apparent; death having sealed the lips of one party, this law proposes to close the mouth of the other. In theory it seems all right, but when applied to the ac- tual experiences of mankind in ordinary transactions it is an in- strument of oppression and wrong.
* *
"Although this statute in its original form came down to us from the system of jurisprudence that excluded the defendant in criminal cases, and disqualified the wife to testify in support of her husband's case, and is as much a relic of antiquity as either, the tendency in this state has been to enlarge rather than to res- trict its effect. This is evidenced by the act of the legislature of 1901, which extended the rule so as to include the assignor or any person who has ever had any interest in the subject of the action, as well as the testator of intestate.
"To repeal this statute and require corroboration or render admissible statements of the deceased party, as New Mexico and Connecticut have done, would be to proceed in harmony with the enlightened and progressive spirit of the present age.
"The lawyer is called upon to apply and interpret the laws, and in his hands rests largely their enforcement. In this connec- tion the legal profession is the greatest instrumentality in the march of human progress. It is sometimes said lawyers are dis- honest. When taken as a class nothing could be further from the truth. Nearly all the dishonest and reprehensible transactions of all other classes are finally unloaded upon the members of this profession, and the obligation to render faithful service to a cli- ent in trouble brings us closely in touch with such tranasctions,
267
E. E. WAGNER
and it is sometimes difficult to escape the shadow. The rule of professional confidence that binds the lawyer to secrecy often closes his lips to self defense."
RETURNS TO MITCHELL
His duties as United States district attorney added to his large private practice, made it necessary for him to seek a more accessible location, and so in January, 1910, he left Alexandria, and went to Mitchell, where, seventeen years before, he had first undertaken the practice of law with but twenty-five cents in his pocket; and formed a new partnership at that place with one of the ablest trial lawyers in the state-Hon. H. C. Preston; bought himself a home and settled down to enjoy life with Mrs. Wagner and their three children-Hazel, Ruth and Robert.
SAVED HIS PARTY
During the 1912 political campaign, when the state republi- can convention, for some reason, either wise or otherwise, nom- inated Bull Moose presidential electors and authorized the placing of these electors' names at the head of the regular republican ticket, and thus threatened the life of the republican party in this state, it became evident that something would have to be done to keep the state from going democratic. A conference of state leaders was held; Wagner was called in, and his judgment sought. Almost spontaneously he thought out a scheme of hay- ing these electors make a public statement that in case their votes in the electoral college would not elect the Bull Moose candidate they would cast them for the regular republican nominee. De- bated! Agreed! Wagner had saved the day, and the republican party reversed an almost hopeless fight and carried the state His wisdom not only saved the electors, but it strengthened the entire state ticket, by unifying it.
WAGNER IN ACTION
Wagner's greatest asset when he is "in action," during court, is his mental alertness. His concepts are keen as a Da- mascened blade, and they are formed with a suddenness that is astounding. This element of his nature was splendidly demon- strated during the recent trial at Sioux Falls in the case of "The United States vs Hortense Rich," for violation of the white slave law. The Rich woman was defended by the resourceful, eloquent Joe Kirby, the most prolific Bible-quoter in the legal profession of this state. Joe was making one of his characteris- tic arguments to the jury, when rising to an impassioned and ap-
268
WHO'S WHO IN SOUTH DAKOTA
parenlty inspired outburst of soul-stirring eloquence, he pleaded with the jury to do as the Savior did when the unfortunate har - lot was heralded before him for judgment, in days of Bible lore, set her free and tell her to "go and sin no more."
Quicker than a flash Wagner's keen intellect grasped the sit- uation, and, in replying to Kirby, he said he wanted her to go free; but the freedom he proposed for her was in the penitentiary where she would be free from the life of shame she had led. It was a startling rejoinder-evidently not anticipated by Kirby, the jury or the court. In fact it was so unique and so touching that we think it best to reproduce his own words herein, as trans- cribed from the stenographic notes:
"Gentlemen of the Jury: The Scene in this courtroom now is one of the saddest I have ever had occasion to witness in a court of justice. It is a picture of the underworld with all the pain that can come to a parent with the downfall of a child found in the midst of a life of shame.
"The story of this case is not the account of an ordinary transaction that has come into court for adjustment. It is not the case of a man who has yielded to a human weakness and taken that which is not his. It is not even to be compared with an act of violence that has taken a human life. It is more than all of that,. It is a picture of the several stages of womanhood des- poiled by the lust of man and bereft of all that is sacred in the name of woman. Yonder sits the defendant far advanced toward the other end of her misguided life with all the appearances of a human wreck, caused by the life she has led. Behind her sits another inmate of her place, now well on toward middle life, wrecked by dissipation and soon to drop to the lowest depths to which hu nanity can descend; while here before us are these girls of nineteen just entering the bloom of womanhood with their marks of beauty still intact and with the blush of youth still fresh upon their cheeks, led to this life of shame and ruin by the woman now on trial.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.