USA > Wisconsin > A political history of Wisconsin > Part 22
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"Under Section 5, Article IV., Constitution. Senate districts must each consist of entire Assembly districts and be formed of contiguous territory: and under Section 3 they must be as nearly cqual in population as other constitutional requirements will per- mit."
In other words, it was decided:
First-That the Court had jurisdiction.
Second-That the act of the Secretary of State in giving notice of election was ministerial and hence subject to control by the Court.
Third-That the act in question was unconstitutional. because county lines were broken in the formation of Assembly districts.
Fourth-That in the formation of Senate and Assembly dis-
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tricts, they must be as nearly equal in population as the constitu- tional requirements will permit.
The announcement of the decision of the Court was well received by a majority of the people of the State. They felt that a way had now been found not only to get rid of the gerrymander of 1891, but to prevent similar outrages by any party in the future. The decision attracted attention outside of Wisconsin as well as within its limits. and inspired discussion in political and legal cir- cles. That the courts could and would set aside a gerrymander was a new thing in the jurisprudence of the country; but it was generally accepted as a wholesome restraint upon Legislatures. Proceedings of a somewhat similar nature were subsequently com- menced in several States, and the decision of our court upon the point in question was generally followed. It became a leading case in the jurisprudence of our country. Its wholesomeness and its righteousness cannot be questioned, and the persons who thought out and conducted the proceedings which forced this decision, rendered a very great public service not only to the people of Wisconsin, but to the people of the United States.
. The Court having held the Apportionment law unconstitutional. Governor Peck found himself compelled to call an extra session of the Legislature to pass another act of apportionment, or to elect the coming Legislature in the fall of 1892 under the legislative apportionment passed by the Republicans in 1877. By this time this apportionment had become unequal owing to the change in population and the rapid growth of certain sections of the State: and it had been naturally made, so as to give the Republicans such advantages as are permitted by the terms of the constitution. Hence, in accordance with what seemed to be public sentiment. of both Democrats and Republicans. Governor Peck, on the Ist day of June, called a special session of the Legislature to meet on the 28th day of June. 1892, to appor- tion and re-district the State into Assembly and Senate districts. The Legislature convened at the time appointed. The soreness which had been engendered by the success of the Republicansinthe courts had not sufficient time to be alleviated, hence the Demo- cratic managers, pursuing much the same policy they had pursued
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in the making of the former apportionment bill, gave little heed to the desire of the minority; and after three days of deliberation reported the bill which was passed, adjourning on the Ist day of July, 1892. In making this apportionment, profiting by the expe- riences in the former suit, the Democrats did not break county lines, but the inequality of population was still very great in the different districts; and the Republicans determined to make another test in the Court, basing their complaint upon the inequality of the population in the several districts. The papers were prepared in proper form and submitted to the Attorney-General, Mr. J. L. O'Connor, with a request that he bring the action, as he had in the former case. This he declined to do, and reported his reasons to the Court in writing, as follows:
"To the Honorable, the Supreme Court of the State of Wis- consin: The consideration I have been able to give the petition of Charles F. Lamb to bring action in the Supreme Court to test the . validity of the Apportionment act passed at the special session of the Legislature, had led me to the conclusion that said act cannot be rightfully challenged because of its unconstitutionality. More- over, if I regarded the doubt of the unconstitutionality of the law as sufficiently serious to justify an action, there are other important public reasons why, in my judgment, the action should not be instituted at this time, and which are sufficient to cause me to decline. I therefore deem it my duty to decline to commence said snit in this Court to test the validity of the apportionment act passed at the special session of the Legislature upon the relation of Charles F. Lamb, as petitioner or otherwise, and, must refuse my consent to have such suit brought or conducted in the name of my office as Attorney-General. Most respectfully yours, "J. L. O'CONNOR, Attorney-General."
At the time the Attorney-General signed the necessary paper to bring the first action, he was highly commended by the Democratic press for the judicial fairness with which he treated: his political opponents. At that time it was the prevailing belief among the Democrats that the Court would not take jurisdiction on the action. and that the attempt of the Republicans must result in failure,
ThadPound,
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When the petition for them to bring the second suit was presented, the Court had determined that it had jurisdiction.
Thereupon the attorneys for the petitioner, Charles F. Lamb, applied to the Supreme Court on behalf of Mr. Lamb, to bring the action without leave of the Attorney-General. And after examination of the petition and papers presented. leave was granted by the Court to the petitioner to bring the action, unless the Attorney-General commenced the same before August 19. 1892. Some idea of the inequalities of population of which the Republicans complained can be gathered from the following:
The unit of representation was the same as in the former law. In the making of the Senatorial districts the Fourth senatorial dis- triet of Milwaukee had a population of 20,385 less than the unit of representation; the Ninth, Green Lake, Juneau, Marquette and Waushara counties had a population of 11,239 in excess of the unit of representation; the Seventeenth district, the counties of Green and Rock, had a population of 14,835 in excess of the unit of representation; the Thirty-first Senatorial district, a population of 13.002 in excess of the unit of representation. In Assembly districts, Vernon county had a population of 8,243 in excess of the unit of representation; while Langlade county had a population 7,403 less than the unit of representation. The counties of Buf- falo and Pepin were made Assembly districts with a population of 6,061 in excess of the unit of representation. Florence, Forest and Oneida counties were made Assembly districts with a popula- tion of 8,242 less than the unit of representation. In the city of Milwaukee, the Second and Sixth wards. were made Assembly districts with a population of 6,837 in excess of the unit of repre- sentation, while the Fourteenth ward was made an Assembly dis- trict with a population of 5.761 less than the unit of representation. This will sufficiently illustrate the inequalities in population of which the Republicans justly complained. The examples of such inequalities are by no means limited to the number given. In the subdivision of counties into Senate and Assembly districts many ill-shaped distriets were formed.
In addition to alleging the inequalities above set forth, the complaint contained the usual formal allegations which were (22)
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incorporated in the former one. The action in this case being entitled State ex rel. Lamb vs. Cunningham, due service was made upon the Secretary of State. The same counsel which appeared for the State appeared in this action, and in addition thereto, Mit. George G. Green, of Green Bay; and Senator William F. Vilas appeared for the defendant Secretary of State, taking a conspicuous part, and making a brilliant fight, in which, however, he was over- matched, owing to the inherent weakness of his case and the ability with which the cause of the people, represented by the relator, was championed by Senator Spooner.
On September 8, 1892, the defendant demurred to the com- plaint on the grounds: (1) "That the Court has no jurisdiction of the subject of the action; (2) that the plaintiff has not the right to sue in the name of the State upon the alleged cause of action; (3) that there is a defect of parties, in that the Attorney-General of the State of Wisconsin is the officer required by the law to prosecute the action aforesaid, and no cause of action is shown to exist in favor of the said relator." On the same day the Attorney-General, for the defendant, served upon the attorney for the relator a notice to the effect:
"Please take notice, that on Tuesday, the 20th day of Septem- ber, inst., at the opening of the Court on that day, or as soon thereafter as the counsel can be heard, the above named defendant. by the undersigned, his attorney, will move the said Supreme Court, at the Supreme Court room, in the capitol at Madison, for an order vacating and setting aside the order of said Court granted ex parte on the 9th day of August, 1802. giving leave to the said relator to commence and prosecute this action-reference being had thereto for its terms-and dismissing this action, for such other or further order as may be proper; and also to vacate and set aside said order of August 9, 1892, giving the relator leave to commence and prosecute this action, and to dismiss the same."
On September 8. 1892, the plaintiff served notice upon the attorney for the defendant to the effect that said relator would apply to the Court on September 13, 1892. at the opening of the Court on that day, or as soon thereafter as counsel could be heard, for an order striking out as frivolous the said demurrer of the defendant
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herein, and directing judgment in favor of the plaintiff as prayed for in said complaint. On September 9, 1892, the Court set down said motions respectively, and said demurrer, for full argument and consideration on its merits, for September 20, 1802. and the same were thereupon argued accordingly. 83 Wis., p. 94."
On September 27, 1892. the Court announced its decision overruling the demurrer to the complaint. Justice Winslow dissent- ing.
The point urged by Senator Vilas on the argument of the demurrer, was that a private citizen cannot, against the judgment and decision of the Attorney-General. prosecute in public right a suit in the name of the State to obtain an injunction to interrupt the legal administration of the laws of the State. In attempting to justify the granting of disproportionate power in the Legislature to the voters of a small Milwaukee district. Senator Vilas said, among other things: "Its [the Fourth district's] taxable prop- erty is twice that of any other Senate district in Milwaukee county, with a single exception, and the average taxable property of all the Senate districts is not much more than abont two-thirds of that of the Fourth Senatorial district." Referring to this, Senator Spooner in his argument observed: "It is men whose interests the Consti- tution seeks to guard. I heard with amazement the admission made by distinguished counsel, that in creating this Senate district with 30,000 population in the city of Milwaukee, the Legislature, in the exercise of its discretion, took in its wealth. * * The Constitution was protecting the interests of men, not property. It laid down a rule of population, thank God, not dollars. This is a government of men, not money." As the first gerrymander trial had seemed to resolve itself into an intellectual duel between Sena- tor Spooner and General Bragg, so the second gerrymander trial assumed the appearance of an intellectual duel between Senator Spooner and Senator Vilas. And in each case the side on which Senator Spooner fought was victorious; because he fought well and : on the right side.
In the second gerrymander case, the Court decided:
"I. The power of the Supreme Court. under Section 3. Article VII, Constitution, to issue its writ of injunction is in no way
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dependent upon the volition of the Attorney-General: and his refusal to bring the suit or to consent thereto will not prevent the Court from taking jurisdiction upon the relation of a private citi- zen in the name of the State.
"2. In an action to enjoin the Secretary of State from giving notices of election of members of the Legislature under an appor- tionment act alleged to be in violation of the Constitution, the question as to the validity of such an act is a judicial and not a political question.
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"3. Under Section 3. Article IV, Constitution, an apportion- ment must be made 'according to the number of inhabitants' as shown by the last previous Federal or State census, and the Legis- lature may not act upon the theory that certain counties contain more or fewer inhabitants than such census shows; nor can the standard of population be disregarded and the apportionment be based upon considerations as to the wealth of certain localities, the character of their population and business interests, or differences in the rapidity of the increase of population.
"4. The question being as to the validity of an apportionment act, the fact that the inequality of representation under it is no greater than under former apportionment acts is irrelevant, the language of the Constitution securing equality being plain and unambiguous.
"5. Under Section 3. Acticle IV. Constitution, providing that the Legislature 'shall apportion and district anew the members of the Senate and Assembly according to the number of inhabitants.' the districts must be as nearly equal in population as other consti- tutional requirements will permit. State ex rel. Attorney-General vs. Cunningham, SI Wis., 440, reaffirmed.
"6. This rule, securing equality of representation so far as it is practically attainable without violating other constitutional pro- visions, is applicable not only in the formation of an Assembly ·district out of two or more counties, but also in the formation of two or more Assembly districts in one county, there being in the latter case necessarily a new unit of representation.
"7. The requirement of Section 4, Article IV, Constitution, that 'Assembly districts shall be in as compact form as practicable,'
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being of lesser importance, may to some extent yiekl in aid oi securing a nearer approach to equality of representation.
"8. The unnecessary inequalities under the Apportionment Act of July. 1892, such, for example, as the formation of six Assembly
· districts, each containing one or more counties, with an aggregate population less than four times the unit of representation, when such counties might have been grouped into four districts in a county, when they might have been formed with a difference not exceeding 1,000 and with a gain in compactness; and the forma- tion of one Senate district from two Assembly districts with a popu- lation of 30.732, and of another Senate district from four Assembly districts with a population of 65,953. are held to render the act invalid .-- 83 Wis., pp .. 90. 91."
Mr. Justice Winslow dissented on the ground that the Supreme Court could not take jurisdiction without the consent of the Attor- ney-General. As stated above. the decision of the Court setting aside the second apportionment was announced on the 27th of Sep- tember. On the 10th day of October. the Governor issued a proc- lamation again convening the Legislature in special session on the 27th day of October, at 8 p. m., to reapportion the State into Sen- ate and Assembly districts. And the Legislature convened at the time appointed and passed the act under which Senators and Assemblymen were elected in November, 1892.
During Governor Peck's administration the Democrats had the privilege of electing two United States Senators, the first on January 28, 1891, when they selected William F. Vilas, who was chosen to succeed John C. Spooner, whose term of service had expired. Mr. Vilas was born in Vermont, July 9, 1840, and he came of good Yankee stock. His father. Hon. Levi B. Vilas, was prominent in Vermont politics, and still more active in the Demo- cratic party after he came to Wisconsin in 1851, serving in the Legislature, and being heartily supported as a candidate for Gov- ernor in the Democratic State Convention, which met in Fond du Lac in 1877. Senator Vilas was educated at the State University and was graduated from the Albany Law School in :86o. At the breaking out of the slaveholders rebellion, he raised a company and entered the Union army, and served with distinction, being
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rapidly promoted, until the close of the war. When peace was restored he resumed the practice of his profession at Madison, and he soon became recognized as one of the leading lawyers in the West. His superior mental equipment, fine scholastic attainments and unimpeachable Democracy soon called him to the front as a political manager and speaker, and he was often urged to accept the nomination of his party for Congress and for Governor of the State. To all these flattering solicitations he turned a deaf car, and bided his time. When General Grant came home from his tri- umphant trip around the world, a fine banquet was given in his honor by his admiring friends in Chicago at the Palmer House, at which many of the notable people of the nation were present-Senators, Representatives, Judges, Generals, Governors, members of the Cabinet, editors, soldiers and others. It was an historic and illustrious gathering, the like of which was never seen in the great West before or since. Mr. Vilas was selected to respond to the toast, "Our Old Commander," and its mere announcement by the toastmaster was enough to stir the blood and create enthusiasm. It was a great oration. admirably . conceived, splendidly delivered, and it electrified the audience and drew publie attention to its brilliant anthor. The great silent soldier had never heard the like of it before, and he was spellbound, as indeed were all the others. That speech made Col. Vilas famous, and when the Democratic National Convention met in Chicago in 1880 to nominate a candidate for the presidency he was made president of the permanent organization. He was spokes- man for the committee that went to Albany to apprise Grover Cleveland of his nomination, and his address on that occasion so captivated Mr. Cleveland that he made him Postmaster-General. In this important office he served with great acceptance for two years, when he was transferred to the Interior Department. Mr. Vilas was the only citizen of Wisconsin who was ever transferred from his private law office to a seat in the Cabinet. Alexander W. Randall had been Governor of his State for two terms and a for- eign minister before entering the Cabinet of Andrew Johnson, and Timothy O. Howe had served eighteen years in the Senate of the United States before receiving the appointment of Postmaster- General under President Arthur.
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The first native-born citizen of Wisconsin to occupy a seat in the United States Senate was John L. Mitchell, a Democrat, who . succeeded Philetus Sawyer at the end of his second term on the 4th of March, 1893. Mr. Mitchell avas the only son and heir of Alex- ander Mitchell, who was, for nearly fifty years. the wealthiest banker and most prominent private citizen of Wisconsin, and who left the largest fortune ever accumulated in the State. John Lend- rum Mitchell was born in Milwaukee October 19, 1842, and . received an academic education. When the War of the Rebellion broke out he entered the Union army and was first lieutenant of Company E, Twenty-fourth Wisconsin Volunteer infantry; was adjutant of brigade, aide-de-camp and ordnance officer of division. He took part in many important battles, including Perryville, Mur- freesboro and Hoover's Gap: was mustered out of the service before the close of the war on account of his failing eyesight. He early developed a taste for political life, and was a State Senator in 1872- 73-76-77; he was president of the School Board of Milwaukee in 1884-85; member of the Board of Managers-of the National Home . for Disabled Soldiers in 1885; president of the State Agricultural . Society in 1889-90. Mr. Mitchell gives his occupation as that of a farmer, which he has pursued with great diligence and success. He was elected to the Fifty-second Congress for the full term beginning March 4. 18)1, receiving 24.679 votes, against 17.655 for R. C. Spencer, Republican. Two years later he was reelected to the Fifty-third Congress, but resigned his office February 10, 1803, when he was elected to the United States Senate. His candidacy for the Senate created a great deal of interest in the Democratic party, his opponent being Gen. Edward S. Bragg. who had long been known in Wisconsin as a distinguished soklier and politician. His victory over so gallant an opponent was con- sidered a triumph for the younger clement of the party. Mr. Mitchell enjoyed the distinction of representing the same district in the lower branch of Congress that his father had represented twenty years before, and when he entered the Senate lie found as his colleague William F. Vilas, who had preceded him two years. The State of Wisconsin had not before been represented in the Senate by two Democrats since 1855-a period of thirty-eight years.
CHAPTER XXII.
REPUBLICANS AGAIN AT THE HELM.
The nomination of Maj. W. H. Upham by the Republican Convention which met on July 25 .. 1894, caused surprise to the other gubernatorial candidates, and to a good many people who were somewhat familiar with political methods. There is nothing, however, strange about it, when the conditions are understood. In the first place, Upham had very magnanimously, and without the least ill feeling, withdrawn from the field the year before, to give place to Senator Spooner, whom the leaders of the party wished to see nominated. This produced a very kindly feeling toward Upham all over the State, and especially on the part of . many of the Republican leaders. It also strengthened him greatly . in his own section of the State, where it was felt that he had made a very great sacrifice in the interests of party harmony.
Then Upham was personally popular, especially among the Grand Army posts of the State. He had a hearty manner, was generous and bluff, and possessed many of those superficial traits which make for strength among the people. He was a success- ful business man, was aggressive and decisive in all his methods; somewhat headstrong but not too much for his own business suc- cess. Then, too, more than any of the other eight or ten candi- dates, he had what is known as second-choice strength. This is what Governor Upham and his immediate friends based their con- fidence upon prior to the convention, a confidence which the friends of other candidates did not then, and have never since quite under- stood. But it was a fact that Upham's personal popularity, his strength with the Grand Army and his withdrawal in favor of Spooner, together with the fact that he was from the northern- central portion of the State, combined to make him second choice of many of the delegates who were first for their respective candi- dates.
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Mr. Upham entered upon his duties as Governor of the State under unique circumstances-circumstances which have not been paralleled in the history of the Republican party. nor in the case of any former Governor of Wisconsin. The party had been out of power for four years, and the Democrats had taken every office within sight. The immense majority, which was the largest that had up to that time been received by any candidate for Governor, made the number of applicants for places larger than ever before.
This situation was aggravated by the unfortunate financial condition of the country. What made Upham's path peculiarly thorny in distributing offices, was the fact that hundreds of men who had in prior years been contributors of money and time to Republican party success, through business reverses had come to be office-seekers. Only one man could be appointed to each office, and hence the number of disappointed ones was very large. It is said that Upham had upwards of 5,000 applicants for place during his first year, and that he had less than 150 places to give, including places on the messenger and janitor roll in the capitol building. Upham was not a politician. He was a man of affairs, enterprising. decisive and aggressive in his business methods. but he was not as familiar as the circumstances seemed to require with the ways of the politician. This is another explanation of the dis- satisfaction and fault-finding with him.
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