USA > Wisconsin > History of the bench and bar of Wisconsin, Vol. I > Part 28
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sisted in that work by E. E. Bryant and R. M. Bashford. The total cost of the revised statutes of 1878 to the state, including the cost of the extra session of the legislature and the compensation voted the joint committee, was about $71,700.
In 1895 the initiatory step for another revision of the statutes was taken by the enactment of a law authorizing Arthur L. Sanborn and John R. Berryman to prepare and publish the public general laws in force at the close of the session of the legislature of 1897, and by ap- pointing them a committee, without compensation, to prepare and re- port to the legislature of 1897 bills for the correction of such errors and to harmonize such discrepancies in the statutes as they deemed advis- able, together with such additional sections as they shall deem proper to carry out the general design and spirit of the statutes. Pursuant to such authority, they prepared a bill of nearly twelve hundred pages and submitted it to the legislature early in January, 1897; accompanying the bill were notes showing the sources whence the several sections were drawn, and explaining the substantial changes recommended. In their report they said, in explanation of the method adopted to attain the objects aimed at, that "it has been taken for granted that the very ex- cellent revision of 1878 was acknowledged to be the basis upon which our work was to be performed; that no material change in the method of arrangement or the general plan of that work was contemplated, except in so far as it has been indicated by legislation since 1878. This ac- knowledgment of the merits of that revision is fully warranted by its excellencies. Constant use of it and comparison between it and the revisions of other states have so impressed us with the comprehensive- ness of its merits as to feel very loath to make any attempt to disturb its parts or mar its symmetry. Hence our task has been wisely limited to the adaptation of the laws enacted since 1878 to such form as will per- mit them to become a part of the new statutes, which will be, in effect, the revision of 1878 brought down to 1898."
Substantially the same course was adopted by the legislature in respect to this bill as was pursued in 1878. The bill was referred to a joint committee of the legislature composed, on the part of the senate,
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of Daniel E. Riordan, Julius E. Roehr and John M. Whitehead; on the part of the assembly, of William H. Flett, David F. Jones, William G. Wheeler and Leslie C. Harvey. On the 24th of April the legislature ad- journed until the 17th of August, at which time the joint committee re- ported that it had examined the bill, incorporated therein the per- manent general laws of 1897, and recommended various amendments to the bill. Objections were made to some of the amendments reported by the committee, and on the 18th of August the bill was recommitted to it; the next day and the day following, the bills having been con- sidered by the committee on revision and the judiciary committee of each house, and a few amendments recommended, the legislature adopted these and, without making further amendments, passed the bill.
The distinguishing characteristic of the statutes of 1898 is their an- notations. These have been the growth of years, and have been ex- panded and revised from the time of their original preparation in 1883 for publication in the supplement to the revised statutes of 1878. At the time of this writing the statutes of 1898 have not taken effect, hence there has been no opportunity to test the extent of their demerits. The report of the committee on the revision said of the work of the re- visers: "We have found that the bill submitted by the revisers has been prepared with the greatest care and accuracy, and is worthy of the high- est commendation. Where they have rewritten the law it has always been done in a very terse and clear style, with the most painstaking care, and with the result of considerably reducing the amount of matter. Their arrangement of the bill has been made in the most logical order, and the amendments proposed by them have, in the main, been found to be well calculated to carry out the purpose and to harmonize the pro- visions of the statutes."
GENERAL COMPILATIONS OF STATUTES.
The first compilation of the laws of Wisconsin was published in June, 1852, and was entitled "Supplement to the revised statutes of the state of Wisconsin, containing all the general laws and amendments enacted since the revision of the statutes (of 1849) up to the present date, being,
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with the revised statutes, a complete transcript of all general laws now in force in this state." This volume of 164 pages was published at Kenosha by C. Latham Sholes. Nothing appears to show who pre- pared it for publication. Its publication does not appear to have been authorized by the legislature. The occasion for, and the nature of, the work are thus stated in the "advertisement:" "One or two consid- erations have induced the compilation and publication of this volume. A very general complaint is made, in the first place, that it is very difficult to obtain a copy of the annual enactments of the legislature; and, in the next place, such is the mass of local laws among which the general laws are scattered, and the imperfect character of the indexes and references, that it is a work of great labor, after copies are obtained, to discover and ascertain the exact character of our laws. All laws of the state, in any respect general in their character, and all amendments of the volume of the revised statutes have been carefully compiled and . correctly published. Those of 1850 and '51 are published in the order in which they appear in the volume of session laws, and the year and page of each will be found correctly noted alongside the title. This order could not be followed with reference to those of '52 for the reason that the authorized annual volume of laws had not yet been published, and copies could not conveniently be procured from the state depart- ment in any prescribed order. This, however, is unimportant, as care has been taken in making the index to enable the searcher to find with- out difficulty any desired matter contained in the volume. To overcome also the difficulty of ascertaining readily what statutes (sections) of the revised volume have been changed, a list, in regular order, of every chapter and section altered since the revision will be found in the index, by reference to which will be seen, at a glance, all alterations."
The next in order of time, though of a different nature, was "an appendix to the revised statutes and general laws, from 1859 to 1867, inclusive." This was prepared by D. A. Reed, an attorney then resident at Sturgeon Bay, and purports to have been authorized, the title page containing the words "in accordance with a resolution of the general assembly." This pamphlet of twenty-eight pages contains references to
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the acts amending the respective chapters and sections of the revised statutes of 1858; a list of general laws not amendatory of those statutes, and a list of laws amendatory of the laws of 1859-1867, both inclusive.
In 1871 there was published "the revised statutes of the state of Wis- consin, as altered and amended by subsequent legislation, together with the unrepealed statutes of a general nature passed from the time of the revision of 1858 to the close of the session of the legislature of 1871; arranged in the same manner as the statutes of 1858, with references showing the time of the enactment of each section, and also references to judicial decisions in relation to and explanatory of the statutes." These statutes were prepared by David Taylor, and were very generally used by the bench and bar previous to the publication of the revised statutes of 1878. Though not wholly free from errors, they were a great boon to the legal profession, and stand as a monument to the industry and learning of their compiler. They have a large practical value at this time because of the history of legislation in them. It is said in the preface that "in order to enable the reader to determine when the provisions of the revised statutes of 1858 were first enacted as the law of the state I have, either in a chapter note or by a reference under the section, "referred to the law in place of which the law as found in the revisions of 1858 is the substitute, and in all cases where the laws are of . such a nature that it may become important, in the determination of rights of property, to know the history of the legislation of the territory and state upon the subject, I have referred in a note to all the laws passed on that subject since the organization of the territory of Wisconsin."
This was the first statute of Wisconsin to give references to judicial decisions bearing upon the sections. Judge Taylor made notes of all Wisconsin cases then published affecting the statutes and notes of many cases in other states. One defect in the work is the absence of catch lines or side-notes to the several sections. These were omitted on the theory that the contents of each chapter, set out at the beginning of it. made them unnecessary; but this was a mistake.
Besides containing the statutes in force this compilation contained the rules of the supreme court, the circuit courts and rules in equity.
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Instead of setting out the unrepealed acts passed in relation to the civil war, a list of them is given on pages 2006, 2007. This was the first time it became necessary to employ two volumes for the publication of the statutes of the state. Including the index, the work covered 2,217 pages. Though these statutes were not formally authorized, they were everywhere recognized, and were bought by the legislature for its use.
In 1883 A. L. Sanborn and J. R. Berryman produced their "Supple- ment to the revised statutes of the state of Wisconsin, 1878, containing the general laws from 1879 to 1883, with the revisers' notes to the statutes of 1878, and notes to cases construing and applying these and similar statutes by the supreme court of Wisconsin and the courts of other states." The chief value of this work lay in the notes of de- cisions contained in it and in the notes of the revisers of 1878, which had become exceedingly scarce. The annotations, owing to the rapid increase in the quantity of case-law since the publication of Taylor's Statutes, were much more extensive than in that work, and the state- ment of the points was much fuller, with, perhaps, a better classification of the notes. Though, at first, the members of the bar were a little cautious about taking hold of the work, its usefulness soon became ap- parent, and it had a satisfactory sale. The legislature several times · recognized its value. It contained 1,015 pages.
The legislature of 1889 authorized A. L. Sanborn and John R. Berryman to prepare and publish or cause to be published the public general laws in force at the close of its session, together with notes of cases decided by the supreme court of this state which construe or apply such statutes, notes of such other cases and such other matter as they may deem proper. It was also provided. that such statutes should be evidence; and also, that no liability was assumed by the state on account of the law. The work so authorized was published in the autumn of 1889 in two volumes of 2,885 pages. It was entitled "Annotated statutes of Wisconsin, containing the general laws in force October I, 1889, also the revisers' notes to the revised statutes of 1858 and 1878, notes of cases construing and applying the constitution and statutes, and the rules of the county and circuit courts and of the supreme court."
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In these statutes the scheme of the supplement of 1883 is carried out to an enlarged extent; the annotations were greatly increased; the notes made by the revisers of 1858 were added to those made by the revisers of 1878, thus carrying the history of legislation back to 1849, and bringing it down to 1889. This work was well received and came into immediate and general use. The legislature provided for furnish- ing it to all courts of record, state, county, town, village and city officers. The confidence of the compilers that no unrepealed statute which ought to be in the work was omitted therefrom, was hardly justi- fied, there being at least two such omissions, both relating to terms of circuit courts.
In the last three or four years the question has more than once been raised whether the necessity for such frequent revisions of the laws can be obviated. The answer depends upon the question whether the char- acter of legislation can be materially improved. The revisers of the Wisconsin statutes of 1898 gave this question some consideration in their report to the legislature of 1897. Because what was there said was put forth in a document which is not generally accessible and which will soon be beyond the usual reach of nearly all quotation is made of it here. They said that the labor of preparing their bill had "been greatly in- creased because of the inartificial form in which many of the laws have been expressed, because many of them are enacted without regard to their relation to or effect upon the body of the law to which they relate or the legal system or policy of the state. The result is conflicting legisla- tion, overlapping provisions and uncertainty as to the state of the law. This produces so many and important consequences that it is well worth while to consider whether a remedy can be found. Among the conse- quences directly attributable are largely increased litigation and the resulting public and private expense; the necessity for frequent revision or compilation of the statutes, and a lack of stability in the law. These results are unavoidable where legislative sessions are short, the amount of business large and the number of experienced legislators limited. We may perhaps be allowed to suggest that the remedy lies in providing for a small body of men to whom shall be entrusted the duty of passing
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upon the form and validity of measures which have reached that stage of legislative action which is equivalent to an approval of them, and whose duty it shall be to put such measures in proper form, as well as to sug- gest the amendment of other provisions affected by them, regard being had to what is already enacted on the subject, to what the common law is, to the construction given previous legislation germane thereto, the mischief sought to be remedied and the efficiency of the remedy pro- posed. With the conclusion of such a body before it and the reasons therefor the legislature would be inestimably aided in the performance of its duties, needless and harmful changes in the statutes would be les- sened, uncertainty as to the effect of laws would be diminished, the state and its citizens saved large expenditure of money, and other results at- tendant upon uncertainties and lack of stability in the law will be avoided. It is safe to say that the state will not long maintain a har- monious, systematic and well expressed body of statute law until some such course as is suggested is adopted.
The necessity of such a committee or body is much increased by the adoption of the amendment to the constitution prohibiting special legislation. All such special matters must now be covered by general laws. The result is that measures essentially local are pressed under the form of general laws, without regard to the effect they may have upon the state at large or upon the body of the general law. The judiciary committees are so overwhelmed with the great number of bills sub- mitted to them, and their duties as legislators, that they have no time whatever to devote to the question of the general effect and harmony of proposed measures. It is beyond the scope of our duty to do more than suggest the matter, leaving the remedy to those upon whom is devolved the duty of enacting laws.
COMPILATIONS OF STATUTES ON SPECIAL SUBJECTS.
In this paragraph notice will not be taken of such compilations as are made periodically pursuant to authority vested in certain officers, as the various compilations of laws relating to the assessment of taxes, the conduct of elections, fish and game, public schools, etc.
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In 1859 Walter S. Carter, of Milwaukee, prepared "the code of pro- cedure of the state of Wisconsin, as passed by the legislature in 1856, . and amended in 1857-58-59, with an appendix containing the rules of the supreme and circuit courts, the time of holding the terms of court in the various circuits, and of the United States district court." The occasion for this work lay in the fact that, by the revised statutes of 1858, the code of procedure was very materially amended, and the ar- . rangement of it greatly altered. One valuable feature of the work was the references it contained to the corresponding provisions as found in the annotated codes of New York. The book was printed in Milwau- kee, and contained 228 pages.
In 1858 the legislature directed the purchase from Elijah M. Haines of a sufficient number of copies of a work entitled "Laws of Wisconsin concerning the organization and government of towns, and the powers and duties of town officers and boards of supervisors, with numerous practical forms, by Elijah M. Haines, counselor at law," to supply each organized town in this state with six copies thereof, at a cost not to exceed fifty cents a copy, and also one thousand copies for distribution among new towns. The law referred to also provided that the governor should cause said laws to be translated into the German, Norwegian and Holland languages, and two thousand copies of the same to be printed in the German language, one thousand in the Norwegian and six hun- dred in the Holland. The writer does not know whether the translations were made or not, but inasmuch as only fifty dollars were appropriated for making them, it may be doubted. Mr. Haines was an Illinois lawyer and long afterward was speaker of the house of representatives of that state; he was also the author of some Illinois law books which had a large sale. His work appears to have been well done.
In 1869 the legislature provided for the purchase of a sufficient num- ber of copies of a work entitled "Laws of Wisconsin concerning the or- ganization and government of towns, and the powers and duties of town officers and boards of supervisors, with numerous practical forms, by J. C. Spooner and E. E. Bryant," to supply each town with seven copies, at a cost not to exceed sixty cents per copy, and also one thousand
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copies for subsequent distribution. This work was published the same year. The names of the authors is a sufficient guarantee that it was ad- mirably prepared.
The next work of this character was prepared and published in 1879, and had for its authors John C. Spooner and Hiram Hayes. The state paid $2,200 for the manuscript and all the rights of the authors therein, and published the work.
In 1885 another compilation of "town laws" was made by George B. . Carter, of the Grant county bar; and in 1897 Charles E. Estabrook, of the Milwaukee bar, was appointed to make a similar compilation, based on the statutes of 1898. At the time of writing this Mr. Estabrook's compilation has not been published.
In 1882 the legislature provided for a compilation of the original grant made by the United States government to the state of Wisconsin of swamp and overflowed lands, and of all the laws of the United States and of this state directly pertaining to this subject, together with all de- cisions of the department of the interior and messages of the governors of this state in relation thereto, and also such correspondence between. this state and the government of the United States respecting the accept- ance and selection of such lands as he (the secretary of state) shall deem necessary for a full explanation of the subject. That compilation was made and published in 1882. There is nothing in it to show who pre- pared it; the labor of doing it was considerable.
INDEXES TO LAWS.
In 1868 there was published a volume of 562 pages entitled "a digest of the laws of Wisconsin from the year 1858 to the year 1868, both years inclusive; to which is added an appendix, giving a list of all the laws and provisions of the constitution passed upon by the supreme court." This was prepared by E. A. Spencer, then of the Dane county bar, now deceased.
A few years later a more extended work of the same kind, entitled "a synoptical index to the general and private and local laws of Wis- consin from the organization of the territory to 1873 inclusive," was
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published. This work was copyrighted by Roger C. Spooner, and was probably prepared by him. It contains 381 pages.
REPORTS OF THE SUPREME COURT.
T. P. Burnett was the first reporter of the supreme court. Some of the earliest cases reported by him were published as an appendix to the laws of the territory. In 1844 there was published a volume containing cases decided in 1842 and 1843, but not containing some of earlier date, published as stated. This volume consists of 237 pages, and, singularly enough, is without any other index than a table of cases. Mr. Burnett died November 5, 1846; and no reporter seems to have been appointed until after the organization of the state. He had prepared abstracts of the cases and briefs of all causes argued and decided up to the close of the July term, 1846, for the purpose of writing them over and putting them in proper form for publication at some future time. Some use was made of these by Mr. Pinney in preparing his reports.
Daniel A. Chandler, of Milwaukee, was appointed reporter of the supreme court at its first organization under the constitution. In June, 1850, the printing of the first volume of the reports was completed; it embraced the decisions of the first year under the state government. On account of errors and imperfections in the work, it seems that it was never published. Instead of publishing it a proposal was submitted to the judges to reprint that volume, which they agreed to, and volumes one and two were published in the latter part of 1850. Mr. Chandler reported four volumes, covering the cases in which opinions were writ- ten from the January term, 1849, to and including the June term, 1852. Some of the later cases are without a statement of the facts or syllabus. At the close of the June term, 1851, Mr. Chandler resigned his office.
In 1870 the legislature provided that "the supreme court reporter or such other person learned in the law as the judges of the supreme court may designate is hereby authorized and directed to cause to be pub- lished the decisions and opinions of the supreme court of the late ter- ritory of Wisconsin." S. U. Pinney, of Madison, was appointed by the court to perform that duty. He collected and edited the cases pre-
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viously reported by Mr. Burnett and prepared for publication all the unreported cases decided by the supreme court of the territory, in which opinions were written. The first volume of his reports and the first seventy-four pages of his second volume cover the period from the July term, 1839, to the July term, 1847. Mr. Pinney also re-reported the cases in Chandler's reports and added a few not reported therein, thus covering the period from the July term, 1839, to the December term, 1852, when the supreme court was separately organized. Mr. Pinney's work was excellently done. In addition to discharging the duty im- posed on him he added notes of value to some of the cases. His first volume is prefaced with a brief sketch of the leading events in the political and judicial history of the territory, and the rules of practice of the territorial supreme court. The third volume prepared by him con- tains, in an appendix, the rules of practice of the district courts of the territory, and all rules of practice adopted for the county, circuit and supreme courts since the organization of the state; with sketches of the judges of the first supreme court of the state.
The first reporter of the decisions of the separate supreme court was Judge Abram D. Smith, who reported volumes I-II, inclusive. He was succeeded by Philip L. Spooner who prepared volumes 12-15, in- clusive. On Mr. Spooner's resignation, O. M. Conover became re- porter, and so remained until volume 58 was prepared. Of the volumes published while Mr. Conover was reporter, volume 16 was prepared by S. U. Pinney: volume 29 by James Simmons; volume 30 by James L. High; volume 37 by E. E. Bryant, and volumes 55-58, inclusive, by Frederick K. Conover. On the death of O. M. Conover, his son Fred- erick K., became reporter and so continues. He has reported volumes 59-95. inclusive, except that volumes 69, 79, 94 (in part), and 95 have been prepared for him by James Simmons.
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