USA > Wisconsin > A political history of Wisconsin > 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 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39
239
A POLITICAL HISTORY OF WISCONSIN.
The Bennett law issue proved disastrous to the Republican party, as many loyal Republicans had predicted. It gave the con- trol of the State to the Democrats for four years, placed William F. Vilas and John L. Mitchell in the United States Senate in place of Philetus Sawyer and John C. Spooner, and enabled the Demo- crats in 1892 to cast the electoral vote of Wisconsin for the Demo- cratic candidate for President, the first time since 1856.
The Milwaukee Republican City Convention that met Feb- ruary 17, 1892, put forth the following declaration:
"The settlement of the unfortunate question which was made an issue at the last election should be a source of congratulation to all good citizens. The issue was unwarranted by existing condi- tions, and unwise from any standpoint it may be viewed. It gave offense to a large, intelligent and patriotic portion of our people, who, being naturally jealous of their religious liberties and private rights, took alarm at the enactment of a law which they believed to have been aimed at them as a class."
On May 5. of the same year, the Republican State Convention adopted a platform containing the following plank:
"We regard the education issue of 1800 as permanently settled in this State, not to be renewed in any of its phases by the Repub- lican party or under its auspices; and, this being true, we deprecate and denounce, upon considerations higher than party, as harmful in tendency, any further agitation of the subject, or any attempt by any one, or by any party, for any purpose, to create or foster division among our people by reason of it upon lines of religion, education or nativity."
As Governor Peck had swept the State in 1890 by a larger majority than had ever been cast for any Republican candidate, and as his administration had been satisfactory to his party. his nomina- tion was a foregone conclusion, and the Republicans put forth their strongest man against him. They nominated as their candi- date for Governor Colonel John C. Spooner, who had just con- pleted his first term in the United States Senate. This nomina- tion was conferred upon Senator Spooner, much against his will, but he was too good a soldier not to obey the call of his party. It was a forlorn hope from the start, the prejudice against
240
A POLITICAL HISTORY OF WISCONSIN.
the party on account of the Bennett law had not yet been obliter- ated, but Col. Spooner immediately went upon the stump and made it a campaign of education, not only as to the position of his party upon State affairs-the delicate and dangerous educa- tional question included-but discussed national matters with mas- terly ability and convincing eloquence. The result was that Peck's majority of 28.000 over Hoard in 1800 was cut down to 7.700, and many dissatisfied voters had been persuaded to return to the Republican fold. His splendid campaign work bore fruit two years later when Upham's plurality was over 53.000.
.
.
1
.
CHAPTER XXI.
THE TREASURY CASES-TWO APPORTIONMENT ACTS THAT FAILED.
During Governor Peck's first administration suits were brought against the former State Treasurers to recover the money which they had received as interest on deposits in the different banks of the State. For many years it had been the practice of the State Treasurers to make deposits of the State's money in banks for safe keeping, and convenience in transacting business, and the interest paid them by the banks for the use of such public funds the Treas- urers had always appropriated to their own use. The amounts thus annually received by the Treasurers were very large and made the office of State Treasurer exceedingly remunerative. At first nothing was paid to the Treasurers by the banks: next the banks paid a gratuity, or what Byron Kilbourn would have called "a pecuniary compliment." according to the amount of money depos- ited, and corresponding to the liberality of the banker. This money was usually sent to the Treasurer in a letter marked "per- sonal" and went into the private pocket of him to whom it was addressed, and no account of it ever appeared on the books of the Treasurer's office. As to the propriety of these acts of the State Treasurers. Chief Justice Lyon of the Supreme court, in deciding the case, said:
"These deposits were made in the name of the Treasurer, in his official capacity as such. No time of credit was given upon them. but they were payable whenever required by the Treasurer, and they could only be drawn on the official draft or check of the Treasurer. They were made in accordance with the usual and long-continued course of business in that department of the State government. They were not made primarily for the purposes of gain or profit to the Treasurer, but because the exigencies o! the business of the department, and the reasonable convenience of
(21)
241
.
-
242
A POLITICAL. HISTORY OF WISCONSIN.
. creditors of the State, rendered it almost absolutely necessary that State funds should be kept in different portions of the State. and in the cities of Chicago and New York, against which the Treasurer . might draw to pay appropriations .. Such netho:ls had prevailed. and deposits had been made in banks, and drawn against, by all the different State Treasurers. for thirty years or more before the execution of the bond in suit. A large portion of the public funds were thus kept on deposit during that whole pericd. and disbursed through the instrumentality of tens of thousands-even of hundreds of thousands-of drafts or checks drawn by the respective Treasur- ers in their name of office against. such deposits. To say of any adult citizen residing in the State during any considerable portion of that period, especially if he was a member of the Legislature. that he did not know of such course of business, would be an impeach- ment of his intelligence. Under these circunstances it is reason- able to hold that the State Treasurers were justified in transacting the business of their department as they did transact it, and as such . business is almost invariably conducted in the commercial world, unless those methods were prohibited by some statute of the State."
.
Later on there was an agreement or understanding. verbal or written, between the bankers and the Treasurer as to the amount of interest to be paid and the manner of its payment. When George W. Peck was nominated for Governor the Democratic party promised that if the people placed it in power it would bring suits against all these ex-Treasurers and their bondsmen to recover this interest. The suits were brought according to prom- ise, and after a hotly contested litigation in the courts, judgment was obtained against Messrs. MeFetridge, Guenther, Harshaw, Baetz and Kuch for a sum aggregating $7 25,000.
This was considered the crowning glory of the Peck adminis- tration. Great credit was accorded to J. L. O'Connor, the Attor- ney General, for the able manner in which he pressed those suits to a successful issue.
A majority of the Legislature which met in 1Sot was Demo- cratic. A bill was introduced in that Legislature authorizing the Commissioners of Public Lands, to-wit, the Treasurer, Secretary of State and Attorney General, with the approval of the Governor,
243
A POLITICAL HISTORY OF WISCONSIN.
to settle and compromise the judgments. The law was passed, but nothing was ever done under it.
At the close of the Peck administration there was $52,000 still due on the MeFetridge judgment, and $228.000 on the judgment against Kuehn and Bactz. By an act of the Legislature of 1895 a bill was passed releasing the full amounts of the Kuehn and Bartz judgments, and the balance of $52.000 on the McFetridge judgment. The bill was supported by both Democrats and Republicans. The cases against Kuehn and Baetz were brought on for trial at the first term of the court, and judgment rendered in favor of the State. From that judgment they appealed to the Supreme Court, and the cases were ready for argument when the Peck administration went out of office. They never were brought to trial in the Supreme Court. Attorney General Mylrea was directed by the Legislature to go into court and dismiss the cases, which he did.
It is proper to say that the practice of taking interest on deposits was not confined to the Republican Treasurers. A Democrat had control of the State Treasury for two successive terms under Gov- ernor Taylor, beginning in 1873. but he pocketed the interest the same as his predecessor had done. However, he formally reported the fact to the Legislature.
In 1890, on the issues growing out of the controversy over the so-called Bennett law, the Democratic party carried the State of Wisconsin by upwards of 28,000 plurality, electing its nominees for State officers, and a majority of both houses of the Legislature. This enabled that party to eleet a United States Senator at the leg- islative session of 18gt in the person of .W. F. Vilas, who succeeded John C. Spooner. The census having been taken in ISgo, when the Legislature convened, the duty imposed upon it by the consti- tution was to "apportion and district anew the members of the Sen- ate and Assembly, according to the number of inhabitants, excluid. ing Indians not taxed, and soldiers and officers of the United States army and navy." (Sec. 3. Art. 4. Constitution of Wisconsin.) "Such districts to be bounded by county, precinct. town, or ward lines, to consist of contiguous territory, and be as compact in form as practicable." (See. 4. Art. 4. Constitution of Wisconsin.)
The census of regn disclosed the fact that Wisconsin had a
244
A POLITICAL HISTORY OF WISCONSIN.
population of 1,686,880. As the Assembly is composed of 100 members and the Senate of 33. the unit of representation in the Senate for the new apportionment was 51,117; in the Assembly, 16,86S.
The Democratic newspapers had frequently complained that the Republicans, in the making of the various apportionments for each State and United States census, had treated the Democrats unfairly. This complaint on the part of the Democrats was briefly and intel- ligently stated by Mr. John Johnston in his speech nominating George W. Peck for Governor in the Democratic State Conven- tion which assembled at Milwaukee August 28, 1890. He said:
"The arrogance and hypocrisy of the Republican party have seldom been better illustrated than in the outery they have raised about the disfranchisement of the colored voters of the South, and the need of a force bill, while they have themselves disfranchised two out of every three of the Democratic voters of Wisconsin by the outrageous way in which they have gerrymandered the State. The 176,000 voters in Wisconsin who voted for Harrison have seven representatives in Congress, while the 155,000 who voted for Cleveland have only two members; that is, every 25,000 Repub- lican votes has a member in Congress, while it takes 77,500 Demo- cratic votes to send one."
But no attempt was ever made prior to the date hereinafter referred to, to test the validity of any of the legislative apportion- ments, the opinion generally prevailing that there was no remedy in the courts in such cases. In many cases the Democrats had been treated with such fairness, notably in 41882, that there was substantially no opposition to the bill providing for such apportion- ment; the act of 1882 having passed the Senate unanimously and the Assembly by ayes, 51; nays, 25, a majority of the Democrats voting in the affirmative.
It must, in fairness, be admitted that these apportionments were not always models to be introduced into equity practice; the Republicans, however, were never forced to the hard necessity that the Democrats were in their endeavor to retain the control of the Legislature, the Democratic votes being bunched, as it were, on the lake shore section of the State. while the Republican vote
Chast Parte.
245.
A POLITICAL. HISTORY OF WISCONSIN.
was so distributed over the western and northern sections as to enable the Republicans to carry a majority of the counties and legislative districts. How to make an apportionment to retain the control of the State, became a serious problem for the Democrats. Instead of putting districts together, as they formerly had been, with some reference to community of interest, convenience and population, the Democrats found themselves compelled to divide the State into districts of all sorts of shapes without reference to the conditions heretofore named.
In addition to disregarding geography in the make-up of the districts comparatively little attention was paid to population. Brown county, for example, was made a senatorial district with a population of 12,676 less than the unit of representation: Outaga- mie county, with a population of 13.350 less: La Crosse county, with a population of 12,316 less than the unit of representation. It is probably unnecessary to state that it was expected that the Democrats would control all the districts named. On the other ยท hand. the districts which it was expected that the Republicans . would control were made with a population very much in excess of the unit of representation, i. e., the Fifth senatorial district of Milwaukee county contained a population of 16.975 in excess of the unit of representation: the Seventeenth Senatorial district, parts of Walworth and Rock counties, a population of 10.343 in excess of the unit of representation: the Twenty-seventh Senatorial dis- trict, Columbia. Sauk and Marquette counties, a population of 17,484 in excess of the unit of representation.
The same relative disproportion and disregard of population was pursued in the making of the Assembly districts. A few illus- trative cases will suffice. The Assembly districts of Waushara and Adams counties had a population in excess of the unit of repre- sentation of 6.044: Chippewa county 8.275 in excess of the unit of representation : one district of Walworth and a part of Rock county had a population of 7.173 in excess of the unit of representation. La .. Crosse county, with a population of 38.Sot inhabitants, was given one member of the Assembly only, while Manitowoc county, with a population of 37531. 970 less, was given three members of the .Assembly.
,
246
A POLITICAL HISTORY OF WISCONSIN.
The foregoing examples will sufficiently illustrate the inequality in population of which the Republicans complained. Many efforts were made by individual members to modify the provisions of the proposed bill. All of these proved ineffectual. The bill was pre- pared outside of the legislative committee. The committee met and elected Wendell A. Anderson of La Crosse clerk. After some days the committee were called together again by thechairman, and the clerk reported the bill which had been agreed on, and without any time or opportunity for examination the majority ordered it reported back for passage.
The passage of this measure naturally aroused indignation among the Republicans of the State, and the press of that political faith were almost unanimous in condemning it. Many of the Democrats did not approve of the action of their party. Those who did, justified it on the ground that they were treating the Republicans as the Republicans treated them. Mr. A. J. Turner of Portage, who was well acquainted with the history of the con- stitutional convention and the making of the legislative apportion- ments, prepared from time to time, and printed in the local press, short statements of the unfairness of the apportionment, and argu- ments to show that the same was unconstitutional. These were subsequently elaborated, and in the summer of 1891, were pub- lished in pamphlet form under the title of the "Gerrymander of Wisconsin." The document made a pamphiet of twenty-six pages. It was a very exhaustive review of the subject, and, coming from a layman, was highly complimented by the legal fraternity. C. E. Estabrook, who was Attorney-General in 1887-90, contended that the reapportionment was unconstitutional. because it deprived numerous citizens of their public rights, and declared that the proper remedy was to apply to the Supreme Court for an injune- tion to restrain the Secretary of State from giving notice of election at the next election according to the provisions of Chapter 482 of the Laws of 1891, being the so-called "Gerrymander," for conven- ience designated as Gerrymander No. I.
As soon as Senator Spooner returned from his duties at Wash- ington he took the leading part in conducting proceedings for the overthrow of the apportionment. In beginning these proceedings
217
A POLITICAL HISTORY OF WISCONSIN.
the attorneys who appeared for the Republicans were obliged to seek out a new course of procedure. How to get into court became an important question. It was thought wisest to have some public bodies in the districts most affected, direct that proceedings be begun. For that purpose the Board of Supervisors of Adams county passed a resolution in the annual session in November, 1891, directing the district attorney of that county to institute pro- ceedings in the Supreme Court to test the validity of the Apportion- ment law. . A substantially similar resolution was passed by the Board of Supervisors of St. Croix county, the intention being first to attempt to test the validity of the law by application for an injunction, and if that failed, then to apply for a writ of mandamus. The rules of the Supreme Court required, in a proceeding of the nature the Republicans desired to commence, that application must first be made to the Attorney General to make the necessary peti- tion to the Court for leave to sue. This was done and the Attorney General, James L. O'Connor, signed and filed the necessary peti- tion, and on February 2, 1892, leave was granted the Attorney . General to bring the action. The necessary papers had been pre- pared by Messrs. Spooner and Estabrook, and the action was promptly commenced. Mr. George W. Bird, of Madison, a lead- ing Democratic lawyer of the State, was employed as associate counsel. The action was commenced in the name of "the State of Wisconsin ex rel. vs. Cunningham." In due time, Gen. Edward S. Bragg appeared for the Secretary of State and moved to dis- miss the information for the following reasons:
"I. The complaint states no facts showing the relator to have any interest in the subject matter thereof which entitles him to a standing in court to petition for relief from grievances real or sup- posed.
"2. It appears upon the face of the complaint that this court has no jurisdiction of the subject matter thereof; and its recital and averments state no wrongs, real or supposed, cognizable in a court of law or equity.
"3. That the complaint of the relator fails to show any violation of the Constitution of Wisconsin, either in letter or spirit. in the bill or act apportioning the members of the Legislature for the
248
A POLITICAL HISTORY OF WISCONSIN.
State of Wisconsin upon the federal enumeration of population of 1890 .- Si Wis .. p. 447."
The case was called for argument before the Supreme Court on the 9th day of February, 1892., Never before was seen such a crowd in the Supreme Court room as gathered there that morning to hear the opening of "the great Gerrymander case." The argu- ments continued through two days, the first part being on the question of the jurisdiction of the Court. On the 22d day of March, 1892, the Supreme Court announced its decision, in which the act in question was held unconstitutional. Three opinions were filed in the case, the principal opinion being by Mr. Chief Justice Orton, a Democrat in politics, coucurring the opinions filed by Chief Justice Lyon, a Republican, and Mr. Justice Pinney, a Democrat. All agreed in holding the act unconstitutional; but different views or reasons were presented for the same by the justices in their sev- eral opinions. Mr. Justice Winslow, a Democrat, appointed to the bench by Governor Peck to succeed the late Justice Taylor, con- curred in the opinion of Mr. Justice Piuney. The case is reported in 81 Wis., pp. 440 to 532. Eight pages of that report are devoted to a summary of the lucid and convincing argument of Senator Spooner, which was at once recognized among the legal fraternity as a contribution to the permanent literature of American constitutional law. One of the striking passages of his argument dealt with the necessity, in a constitutional apportionment, of the observance of county lines. He said:
"The act is unconstitutional and, as a whole. null and void, for the reason that in at least twenty-five instances it violates that por- tion of Section 4, Article IV, of the Constitution which requires 'such districts to be bounded by county, precinct, town or ward lines, to consist of contiguous territory, and to be in as compact form as practicable." It is absolutely impossible for the Court to give any effect to the word 'county' where it occurs in said section, unless it is construed to mean that wherever the town, ward or precinct lines, or all of them, forming the boundary of an Assembly district, fall upon or become coincident with a county line, the latter shall be a boundary line which cannot be broken or transcended. This construction is in entire harmony with the views of the fram-
C
2.19
A POLITICAL HISTORY OF WISCONSIN.
ers of the Constitution, so far as those views are discoverable from the scant report of the debates. But they afforded the strongest proof of what they meant by what they did. They made the first apportionment themselves, and in it there is no dismemberment of counties, no breaking of county lines: nor was there in the appor- tionment contained in the rejected constitution. Great weight is to be given to the practical and contemporaneous construction of the Constitution."
Justice Orton. in his opinion, declared his conviction that "the breaking up of the lines and boundaries of counties by the new Assembly districts must have been intentional," and added: "It was not necessary in a single instance, and there is no possible mar- gin for any legislative discretion. This is a most important restric- tion.on the power of the Legislature to make an apportionment. The people have a commendable pride in their own counties, and have more or less a common feeling and interests, and participate together in all their county affairs. They have a right to be repre- sented by their own members of the Legislature, and the members themselvescan better represent them and promote and protect their interests. They know each other. and have closer relations with each other. * That most dangerous doctrine. that these and other restrictions upon the power of the Legislature are merely declaratory, and not mandatory, should not be encouraged even to the extent of discussing the question. The Convention, in mak- ing a constitution, had a higher duty to perform than to give the Legislature advice."
In the decision of the Court. the points decided. as stated by the official reporter. were:
"The original prerogative jurisdiction of this Court extends to an action brought by the Attorney-General in the name of the State to enjoin the Secretary of State from issuing or publishing notices of election of members of the Legislature under an appor- tionment act alleged to be invalid. Such an action involves mat- ters publici juris -- the preservation of a constitutional Legislature and of the political rights and liberties of the people.
"The official acts of the Secretary of State in issuing and pub- fishing such notices of election are purely ministerial. and hence
,
250
A POLITICAL HISTORY OF WISCONSIN.
may be controlled either by mandamus or injunctions, as the exig- encies of the case may require.
"Since it cannot be determined whether the injunction should be refused or granted without first determining whether the appor- tionment act in question is or is not a valid law, the Court has jurisdiction to determine the question of the constitutionality of the act.
"The power to 'apportion and district anew the members of the Senate and Assembly,' vested in the Legislature by Section 3, Arti- cle IV., Constitution, is strictly a legislative power : and an appor- tionment act which violates the constitutional requirements may be declared void by the courts.
"Under Section 4. Article IV., Constitution, requiring Assem- bly districts to be 'bounded by county, precinct, town or ward lines,' the county is the primary territorial unit of representation in the Assembly, and the integrity of county lines must be preserved; so that no assembly district can be made to consist of one, or more than one county and a fraction of another county, or to include fractions of two or more counties.
"In the formation of Assembly districts in a county entitled to more than one member. the integrity of towns and wards must be preserved and the districts must cach consist of contiguous terri- tory, and must be as compact and as nearly equal in population as practicable.
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.