USA > Wisconsin > History of the bench and bar of Wisconsin, Vol. I > Part 12
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"Then coming down to the period of the civil war, in the case of Griner, reported in 16th Wis. Rep., Judge Cole delivered the judgment of the court-and it was most instructive and exhaustive-sustaining the power of the President to call out the militia to execute the laws of the Union, and his authority, for that purpose, to draft and call into the field the quota of militia assigned to the state. And in the same volume is reported his opinion with those of two other eminent judges, Dixon and Paine, in the case of Kemp, wherein it was adjudged that the proclamation of the President suspending the privilege of the writ of habeas corpus was not a legal and valid exercise of executive power, under the constitution and laws.
"In Jones vs. The Estate of Keep, reported in 19th Wis., Judge Cole delivered the judgment of the court that the provision of the act of Congress of 1862, which required stamps to be affixed to 'writs or other original process by which any suit is commenced in a court of record,' was unconstitutional and void, holding that such writs or other processes were essential means by which the state governments exer- cised their functions, and therefore exempt from taxation.
"Other causes involving important public questions in which Judge Cole promulgated the law, such as Delaplaines' case, reported in 42d Wis., which presented the great subject of riparian rights, might be al- luded to, but with all of them the courts and the bar are familiar.
"Human ambition may well cease its struggle, and intellectual effort may exchange activity for repose, when both have been crowned with
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a life work so useful and complete. To nobly and honorably connect one's name with the jurisprudence of a nation or a state, is to achieve that character of fame which no changes of time or circumstance can efface. The work of the artist's brush or the sculptor's chisel, highly wrought and finished as it may be, may perish in the scourge of the destroying elements, and be lost even to memory. But though the memorial, whether in portrait or statue, become extinct, the fruits of the learning and research and toil of the subject of that memorial remain in their richness and excellence, and are imperishable.
"Generations may come and go, but the judge on the bench and the lawyer at the bar will continue to appeal for support and justifica- tion to the jurists who have stamped their judgments with the character of commanding authority. For they are such as have lived
'To clutch the golden keys, To mould a mighty state's decrees.'
"Thirty-seven years measure the period of many a professional life- time. It has been the happy fortune of the judge whose service on the bench of this court we commemorate, to have faithfully and honorably discharged the functions of his high office for nearly that whole period. We of the bar take just pride in such a record of judicial achievement. But the testimony to the worth and value of the work of Judge Cole is not limited to such as springs merely from local regard and pride. He has achieved honorable place among the jurists of the land. He was a pure judge, an upright judge, a just judge. He mastered the facts and enunciated the law. Patient, thoughtful, laborious, kind, attentive and true to every dictate of conscience and sense of duty, he stands as a model for judge and lawyer to copy."
On behalf of the court, Mr. Chief Justice Lyons responded as fol- lows:
"Judge Dyer: My brethren have placed me under a great obliga- tion by awarding me the privilege of expressing to you our united thanks for your generous donation of the portrait of Judge Orsamus Cole, late the chief justice of this court. It has been placed and will 8
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remain with the portraits which adorn these walls of several former justices of the court with whom he served. The artist has happily suc- ceeded in catching and perpetuating upon the canvas the calm, benig- nant expression of face and feature which beamed upon more than a generation of lawyers who practiced in this court while he was one of its members,-an expression which never darkened and which always in- spires respect and affection.
"My brethren also especially desire that you be assured of our united appreciation of your timely and most eloquent remarks on this occasion, in which, in fitting terms, you have rendered just tribute to the fidelity and usefulness during his long judicial career, as well as to the great ability, of our friend and former official associate. And, better than all else, what you have said of the loveliness of his character finds a cordial response in each of our hearts.
"Judge Cole is the last of the elected chief justices of this court. This portrait will occupy the panel reserved for it with the portraits of the other chief justices by election,-Whiton, Dixon, and Ryan,-to- gether with that of Chief Justice Dunn of the territorial supreme court. All these were able jurists and were prominent and useful in laying the foundations of our jurisprudence in broad and enduring principles. The fame of some of them is national. It is no disparagement to the memory of the others to say that in symmetry of character, in untiring, well- directed industry, in strength and accuracy of judgment, in love of justice, in obedience to the law, in unswerving fidelity to duty, Chief Justice Cole is the peer of any of them. We pay honor to the memory of either of those great chief justices when we say of him that he was the peer of Chief Justice Cole. For more than thirty-six years he was an honored member of this court, and during that time took part in the adjudication of thousands of causes. Many of them involved questions of vast importance to the state-some were of national concern-and all of them affected rights of person, reputation or property. Their de- termination required careful study and wise discrimination, so that the law should be correctly stated and applied. In the discharge of these high duties. Judge Cole patiently listened to argument and the views
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of his brethren, carefully weighed the same and investigated for himself, and, when convinced, gave judgment, and gave it in obedience to the law and in fear of God. He feared none else. Such a man can never be moved by applause or censure, no matter from whence it comes.
"During the last few years of Judge Cole's service here, the business of the court was conducted almost entirely by lawyers who were ad- mitted to practice in this state after he became one of its members. It is a great satisfaction to know that in what we are saying on this occa- sion we voice the unanimous sentiment of all who ever practiced before him, as well as of all the people of our state who have had opportunity to know his services and worth.
"The record of Judge Cole's judicial life, and the evidences of his great ability, are contained in seventy-eight volumes of Wisconsin re- ports-from volume 4 to volume SI inclusive-in which are reported the opinions and judgments of the court in about eight thousand causes. Besides those in which he wrote the opinions, nearly all the others passed the scrutiny of his conscientious investigations both of fact and law,-a record of judicial labor which has seldom been surpassed. I should do violence to my feelings were I to abstain from reproducing here what you said of Chief Justice Cole, when, two years ago this day, exercises were had in this place in memory of Chief Justice Dixon, then lately deceased, on which occasion you were one of the speakers. These were your words: 'For more than thirty-six years he sat upon this bench, administering justice to his fellowmen in a spirit and with a devotion perfectly consonant with his pure and stainless life. A record without a blemish. A name imperishably associated with the judicial annals of the commonwealth. Having been in early years the contem- porary and associate of Whiton, Smith, Dixon, Paine, and Downer, and thenceforward of Ryan and Taylor, and the present members of this court, his memory covers a period of judicial history replete with inter- esting retrospect and reminiscence. Happy logic of events it was, that crowned such a career with the chief justiceship of a court which is the pride and glory of the state. With head whitened in public service, he has carried with him in his retirement not alone the reverent respect and
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high esteem of his brethren of the bench and bar, but he shall go laden with the spontaneous tributes of their affection and with the earnest wishes that many years of health and happiness may yet be his lot and portion.' "
From 1876 until 1892 the editor of this work was in almost daily con- tact with Judge Cole, and, notwithstanding disparity in years, attain- ments and position, flatters himself that he enjoyed some measure of that distinguished gentleman's respect. Such knowledge of him as has thus been gained has been one of the delights of life and has led to a measure of respect which is beyond expression, though it would fain pay some tribute to him. Instead of attempting anything because of the appre- hension that due moderation might not be observed quotation is made of language applied by Hon. Seymour D. Thompson to the late Judge Howell E. Jackson: "As a lawyer, he was studious, careful and accurate. As a statesman, he was incorruptible, moderate and just. As a judge, he was laborious, impartial, patient and urbane. As a man, he was a char- acter to be envied, and a model to be imitated. Possessed of that un- affected gentility which is the result of a mingling of self-respect with respect and kindness for others; always self-restrained; never giving nor unduly resenting offense. Not a prodigy; not a genius, not pos- sessed of those commanding powers which in other men make leader- ship and sway so easy; but amply endowed, and making the best use of the powers he had. Not a religious fanatic, but a firm and consistent Christian. . Not a moral enthusiast, but a moral example. A character abounding in lines of beauty, and showing scarcely a blemish or defect. Nowhere exaggerated, but everywhere strong. No extraordinary de- velopment in any direction, but everywhere well filled out:
'Strong, without rage; without o'erflowing, full.'"
At the time of this writing Judge Cole is residing in Milwaukee with his son, Sidney H. Cole. His health enabled him to attend the semi- . centennial exercises commemorative of the organization of the state at Madison in early June, 1898. He was the only member of the second constitutional convention present; though but for the sudden death of
Suthe & Ouxove
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A. M. Carter, of Rock county, at the Mendota hospital on the 7th of June, he would have probably had the pleasure of meeting one of his fel- low-members in that body.
The death of Judge Whiton, in April, 1859, made the next change in the membership of the court; to fill the vacancy thus caused Gov- ernor Randall appointed Luther S. Dixon as chief justice; he qualified April 20, 1859, and served until June 17, 1874, when he resigned.
LUTHER S. DIXON.
Mr. Dixon was born in Milton, near Burlington, in the valley of the Lamoille, Vermont, June 17, 1825. He came of the sturdy stock of the farmers of that vicinity. He was educated in the common schools and academies of that region and, in addition, was, for a year or two, a student at the Norwich military academy. It is said that he took high rank there as a student, being especially strong in Latin. The means necessary to defray his expenses as a student were procured by teaching school. His legal education was obtained in the office of Luke P. Poland, a widely known lawyer, judge of the Vermont supreme court, United States senator and member of Congress. Mr. Dixon was ad- mitted to the bar in 1850. In 1851 he came to Wisconsin and entered upon the practice of his profession at Portage. While resident there he was twice elected district attorney of Columbia county, and while dis- charging his duties as such was brought into local prominence by the trial of a murder case in which he was opposed by two of the older and ablest lawyers of the state. On the resignation of A. L. Collins as judge of the ninth circuit Governor Randall appointed Dixon his successor in 1858. Of his career as circuit judge Mr .. Pinney has said that "by his frank, genial and manly bearing he won his way to public confidence and esteem. Few of our public men have had the faculty of so readily attracting friends and admirers, and no one had less inclination to seek political honors at their hands. He came to the bench of the ninth cir- cuit at an early age, with a professional experience of not more than seven years. He manifested great facility and fairness as a trial judge.
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His calm, deliberate, and patient, but resolute methods, united to a skill in the exercise of that judicial discretion that a trial judge has almost constant occasion to use, with readiness in the application of legal principles, rendered him a most acceptable and satisfactory judge. Liberal in the administration of the practice of the court, he took care that liberality did not beget looseness of practice, and that it did not operate to the prejudice of the opposite party."
In 1859 the death of Chief Justice Whiton made it the duty of Gov- ernor Randall to appoint a person to fill that office. He appointed Judge Dixon, who was then thirty-three years of age, and had but a few months' judicial experience, and who was comparatively unknown throughout the state as a lawyer and jurist. The appointment was re- garded with some distrust for these reasons. This was removed soon after opportunity came to the appointee to show what manner of man he was.
"Very soon after his appointment his judicial fearlessness and stam- ina were put to the test. The court had previously decided the fugitive slave law unconstitutional, and that the state courts and judges could issue writs of habeas corpus and discharge prisoners from custody who were arrested by federal authority for violating it. Booth (as elsewhere stated) had been convicted in the United States district court, under Judge Andrew G. Miller, for assisting in the rescue of Glover, the fugi- tive slave, and had been convicted, and the supreme court of Wisconsin had, upon habeas corpus, discharged him. The court had also, in 1857, disregarded the writ of error sent down by the supreme court of the United States to call up the record for review, and had directed its clerk to make no return to it. In 1859 the supreme court of the United States, having obtained a copy of the record unauthenticated, proceeded to review and reverse the decision, in the case of Ableman vs. Booth, 21 How., 506, and sent down its mandate and remittitur. A motion was made to file them. On this motion Chief Justice Dixon filed a lengthy opinion in support of the appellate jurisdiction of the federal supreme court over the case. (II Wis., 498.) This raised a storm of censure in the republican party, to which Dixon belonged. The republican press
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opposed his election, which must be held in the spring of 1860. A 'state-rights' candidate was put in nomination. Chief Justice Dixon was called out to 'run independently.' The republican press quite generally opposed his election, though a very considerable portion of the repub- lican party did not endorse the ultra 'state-rights' position of the court in denying the appellate jurisdiction of the federal court of last resort in the fugitive slave law cases. Judge Dixon received his first election from the people by a majority less than 400, in a vote of about 113,000. The campaign was quite spirited, especially in the newspapers. A not- able event of the election was a speech by Hon. Abram D. Smith, ex- judge, in support of the decisions he had made, and an answer to it by Hon. Timothy O. Howe. These speeches were an elaborate discussion of the aspect of the 'state-rights' doctrines, which had attracted such wide attention.
"The war came on, and the 'state-rights' question soon became, to use the familiar phrase of the politician, 'a dead issue.' Judge Dixon's subsequent elections were without opposition,* except one which sig- nally demonstrated his strength with the people. He found it hard to support his family on the small pay allowed. In 1867 the salary was raised by law from $2,500 to $3,500, but by the constitution this in- crease could not apply to his then present term. He resigned, and the governor at once appointed him till the vacancy could be filled by elec- tion. The democracy were then organizing for the presidential cam- paign of 1868, and sought to make capital out of the fact that the chief justice had evaded the constitutional bar to increase of salary by a resig- nation and reappointment. They ran Judge Charles Dunn against him in the judicial election of 1868, but he was elected by a large majority. He was chief justice until 1874, when he resigned, in the midst of his term. The meager salary ($5,000) drove him to seek more lucrative employment at the bar. The bench and the bar greatly regretted to
*This is an error. In 1863 Judge M. M. Cothren was the democratic candidate for chief justice; and while he received a majority of the home vote the soldier vote in the field turned the scale in favor of Judge Dixon. A. Scott Sloan was the repub- lican candidate for chief justice in 1860.
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lose his judicial work, for he stood admittedly among the foremost judges in the Union. His reputation had become national."i
On leaving the bench, Judge Dixon took up his residence in Mil- waukee, and became the senior member of the firm of Dixon, Hooker, Wegg & Noyes, one of the strongest firms in the state. Soon there- after he appeared as counsel for the state in the celebrated "granger cases," which involved the power of the legislature to regulate rail- road charges. The origin of these cases and an account of Judge Dixon's appearance in them in the federal court has been thus written of: "The Patrons of Husbandry had become a strong order among the farmers. Strongly impressed with the idea that the railways were
fEdwin E. Bryant in vol. 9, Green Bag, 118. These observations have been made by Mr. Bryant concerning Judge Dixon's opinions: His decisions are always in- teresting reading. They are notable for their logical strength, and are never wanting in an unstudied eloquence and beauty of expression. He was a man of original mind. He did his own thinking and reached his own conclusions. Free from pride of opinion, he could review his own decisions, acknowledge errors, and reverse or over- rule himself. Usually of a serious and solid tone and style of discussion, there occa- sionally crept into his opinions some quaint phrase or metaphor or illustration reveal- ing the wealth of humor which bubbled out in his private conversation. In one case, where he was compelled to hold that the "married women's act," allowing the wife to hold and control her separate estate had not absolved the husband from liability for the ante-nuptial debts of his wife, he said: "The modern husband is twice happy. First, he is happy as the quiet spectator of his wife's enjoyment of her property; and again he is happy in paying her debts, or, if he refuses, in being sued and compelled to pay." (19 Wis., 336.) In another case he was combating the position that a per- son could build a store building, rent the lower floors, and live with his family in the fourth or fifth story, and claim the whole building as an exempt homestead, and he illustrates the absurdity, as it seemed to him, of the position. He says: "We are told in history that Diogenes. the celebrated cynic philosopher, at one time took 11p his abode in a tub belonging to the temple of Cybele. I suppose the tub became ipso facto a dwelling-house, in the ordinary sense of that word; and that hereafter strict propriety of language will require us to say that he lived in a dwelling-house belonging to the temple instead of a tub. Nay, more, I suppose the moment the phil- osopher got into the tub, that he might, had he been so inclined, have claimed it as exempt under the operation of a statute like ours." In a case under the statute for- bidding the selling of liquors to minors, the point urged in defense was that the defendant did not know that the vendee was a minor, and that the statute ought to be construed as if the word "knowingly" were in it. Judge Dixon took the other view, and succinctly states the law to be that the saloon keeper "must know that the person to whom he sells is a qualified drinker, within the meaning of the statute; and, if not, he acts at his peril."
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charging exorbitantly for freight and passenger carriage, they made a special effort to carry the legislature in the fall of 1873 and the following winter. The democracy were shrewd enough to nominate for governor a prominent farmer and leader in the granges. The legislature and the governor were elected on the 'boom' of this new issue, and at the follow- ing session a law was passed fixing a limit to railway fares and freights within the state. The railway companies took advice from distin- guished sources, and having the written opinions of B. R. Curtis, William M. Evarts and George F. Hoar that the law was unconstitu- tional, refused to obey it, and so notified the governor. Thereupon suits were instituted-one by the state to enjoin the companies from disregarding the law, one in the federal court by some non-resident bondholders to enjoin the state railroad commissioners from taking any step to enforce the law. An able array of counsel appeared on both sides with ponderous printed arguments. Judge Dixon was retained in behalf of the state, and his friends were out in great force to hear 'the effort of his life' at the bar. They were a little surprised and disap- pointed when he began. He had no brief; he hesitated. He pulled first from one pocket and then another little scraps of paper on which he had jotted down points and authorities. His effort, to the audience, seemed a flat failure; but it is told that, when the judges met in the consultation room, Judge Davis remarked 'Dixon has told us the law of this case;' and the court, and later the supreme court of the United States followed his exposition and settled the then burning question as to legislative control over corporations."*
It is generally believed that Judge Dixon might, had he consented, been chosen United States senator in 1875, there being a dead lock between the candidates. When approached on the subject he said that he could not afford it.
Judge Dixon continued to reside and practice in Milwaukee until 1879, when he was obliged, by reason of asthmatic troubles, to remove to higher altitudes. He went to Colorado, and there built up a profit- able practice. His family remained in Milwaukee, and he considered
*9 Green Bag, 119.
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that his home. In the latter part of November, 1891, he came to Mil- waukee, after a professional visit to Washington. His disease had told upon him, and soon ran its deadly course. On the 6th of December, 1891, the end came. On the 29th of that month a committee of the bar-Edwin E. Bryant, Moses Hooper, George H. Noyes, A. A. Jack- son and James B. Taylor-presented a memorial of the deceased judge to the supreme court. The following paragraph will show the spirit of that memorial and the place of Judge Dixon in the estimation of the legal profession: "Among the many distinguished names on the roll of our profession in Wisconsin, none shines with brighter luster than his; none is more prominently associated with its judicial history, and he has graven deep and lasting lines of influence upon the jurisprudence of the state. Among our great jurists none will be longer remembered for the qualities that command admiration and kindle warm attachment than he, whose manly personality won the regard and confidence of men in every walk of life. To the members of the bar of the supreme court whose work reaches back to the period of his service there remains a memory of one who presided with eminent ability, with a befitting dig- nity so blended with kindness, patience, consideration for every advo- cate who appeared before him as to make him loved and honored by the whole brotherhood of the bar. To all these the announcement of his death brings a deep sorrow. The world seems more lonely when so manly, so strong and helpful and so gentle a spirit passes out of it; and our profession suffers a loss, the sense of which will long abide."
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