USA > Wisconsin > History of the bench and bar of Wisconsin, Vol. I > Part 51
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Col. Krez has left an excellent record as a lawyer, legislator, soldier and citizen. In politics he was a democrat, his creed being expressed by himself thus: "Believes in an indestructible union of states, subordi- nate to the federal government in all matters in which the same is clothed by the constitution with sovereignty, but in all things else sov- ereign themselves." The tedium of his law practice was relieved by literary labors, which gave him considerable renown as a poet, particu- larly in Germany and among educated German-Americans.
H. A. J. UPHAM.
H. A. J. Upham, younger of the two sons of Hon. Don A. J. Up- ham, has succeeded his father, as a member of the Milwaukee bar, and maintains the prominence of a name long a familiar and honored one in this connection. Born in Milwaukee August 14th, 1853, Horace Alonzo Jaques Upham belongs to the generation of young men who have been called upon to shoulder important responsibilities bequeathed
HAYpham.
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to them by the pioneers who were their immediate predecessors. He received his early education in the schools of Milwaukee and then entered the University of Michigan at Ann Arbor. He graduated from that institution in 1875, and upon his return to Milwaukee immediately began the study of law, first in the office of Wilson Graham and after- ward in the office of Jenkins, Elliott & Winkler, Judge James G. Jen- kins, now on the United States circuit court bench, being at that time the senior member of the firm. Admitted to the bar in 1877, he became identified two years later with one of the oldest law firms in the city --- that of Wells & Brigham. In 1852 Charles K. Wells and Jerome R. Brigham formed a partnership which had been in existence twenty- seven years when Mr. Upham entered the firm as junior member, and the firm name was changed to Wells, Brigham & Upham. With an established reputation as capable and successful lawyers in general prac- tice, the members of this firm had become noted as safe, conservative and candid counselors, and especially successful in litigation where large interests and difficult questions were involved; and when Mr. Upham entered the firm he took at once an active part in the important mat- ters of which it had charge. Real estate, commercial and corporation law, as well as the care of estates, the guardianship of trust funds, and watchfulness of financial investments of clients, were all parts of the practice of this firm, and in the conduct and management of the affairs committed to his charge Mr. Upham has evinced the tact, good judg- ment and business ability of a capable man of affairs, as well as the care and conservatism of a well-equipped and thoroughly competent lawyer.
Among the suits commenced by Mr. Upham is that of Hawley vs. Tesch, which was prosecuted by Mr. Upham for eight years, having been twice appealed to the supreme court. In this suit he was in every way successful. The suit has become noted on account of the large amount of property involved and the fact that as a result of the litiga- tion the clients of Mr. Upham have not only won their lawsuit but also recovered their property. (See volumes seventy-two and eighty-eight of the Wisconsin Reports.) By means of this litigation the heirs of Cyrus Hawley recovered several hundred thousand dollars' worth of
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property, of which they would never have become possessed except by the successful prosecution of this suit.
The deaths of Charles K. Wells in 1894 and of Jerome R. Brigham in 1897 left Mr. Upham the surviving member of the firm of Wells, Brigham & Upham. On May 1, 1897, the new firm of Fish, Cary, Upham & Black was organized, by the consolidation of the business of the two firms of Wells, Brigham & Upham and Fish & Cary; and since that date Mr. Upham has continued the practice of law as a member of the new firm.
Mr. Upham is in full sympathy with progressive movements of all kinds, and has contributed in many ways to the advancement of busi- ness enterprises of various kinds, and also to the advancement of social, moral and other reforms. He was married in 1889 to Mary Lydia, daughter of Thomas A. Greene, one of the older merchants, and for many years one of the best known citizens of Milwaukee.
WINFIELD SMITH.
The family from which Mr. Smith is descended has given him. through the gift of nature, many of the qualities of which his success has been the fruit. His father, Captain Henry Smith, of the United States army (Sixth infantry), and a graduate of West Point, was of Scotch-Irish descent, although born in Stillwater, New York; while his mother, Elvira Foster-also a member of one of the best families of New England, afterwards resident in Watertown, New York, where she was born-was a lady of unusual education and culture. The father saw severe military service in the Blackhawk war, but resigned his position in the army in 1835 or 1836, and for several years was in charge of important harbor improvements under the direction of the government, on Lake Erie. He also served for two terms as a member of the Michigan legislature. When war with Mexico was declared he immediately offered his services to his country, and was appointed in 1847 quartermaster on the general staff with the rank of major. He was on duty at Cincinnati in May of that year (1847) when he received orders to proceed immediately to Vera Cruz, and went directly to the seat of war. Knowing the dangers of the climate, he hardly expected
Nelke x mal _ ishe
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to return, and made his arrangements and addressed his farewells with that end in view. He reached his destination in the latter part of June, and assumed the discharge of his duties on July I. In about two weeks he was stricken with yellow fever, which was then raging with terrible violence, and died on the 24th of July .*
The son, Winfield Smith, was born at Fort Howard, in the terri- tory of Michigan, afterwards Wisconsin, where his father was then stationed, on August 16, 1827. The name bestowed upon the small stranger was in tribute to General Winfield Scott, of whose military family Captain Smith was a member for five years. As the advantages of the public and private schools were hardly to be secured in abun- dance in the day and environment of his youth, his education was a matter of unusual personal care on the part of his parents, and so fully did they amend and supplement such opportunities as he had that in 1844, then in his seventeenth year, he entered an advanced class in the Michigan state university and was graduated with high rank two years later. He developed remarkable aptitude in the sciences and mathe- matics, displaying a remarkable progress in both, and standing at the head of his class in the study last named. He had been behind his class in Greek upon entering, but soon caught up and held his own with the rest. As he had become thoroughly proficient in French while at school in Watertown, New York, in 1840, and as he learned the Ger- man after removal to Milwaukee, and also reads Italian fairly and speaks it somewhat, he may be regarded as a linguist of no ordinary grade and adds to his other lines of culture those possible only to one who has access to the learning and literature of other lands.
Upon his departure from the university in 1846 the young man took charge of a private school in Monroe, Michigan, where his father was professionally located, and which had been his home since 1833. In the year following he retired from the school and assumed the duties of private tutor to a small class in advanced classics, which gave him time to fulfill his long-cherished desire to commence the study of law.
*The proportion of the American soldiers who died of this disease in Vera Cruz, that summer, was greater than the proportion of those who were killed in all the . battles of that war.
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In 1848 he entered the office of Isaac P. Christiancy, afterwards a jus- tice of the supreme court of Michigan and later senator of the United States. He applied himself to his legal studies with earnest industry and mental thoroughness and when he was admitted to the bar it was with an equipment of knowledge and reading that few young lawyers possess. In October, 1849, he was led to the decision that the young and growing town of Milwaukee was. a promising place in which to commence the real labor of life, and accordingly decided to make it his home. He entered the office of Emmons & Van Dyke, a firm of high standing, where he still pursued his studies, and soon entered upon practice. In February, 1850, he was admitted to the supreme court of Wisconsin, over which Judge Whiton then presided. In 1851 he opened an office of his own and remained by himself until 1855, when he formed a partnership with Edward Salomon, afterwards governor of Wisconsin. This connection continued for fifteen years, and was only severed because of Mr. Salomon's departure to New York. From 1869 to 1875 he was associated with Joshua Stark, under the firm name of Smith & Stark, and in later years was also associated with Mat- · thew H. Carpenter and A. A. L. Smith, under the firm name of Car- penter & Smiths. Upon Mr. Carpenter's death the firm name was changed to Winfield & A. A. L. Smith. This association terminated in 1883.
Soon after his admission to the bar, and while on a visit to his old home in Michigan, Mr. Smith was appointed to the office of United States commissioner and master in chancery by Judge A. G. Miller, of the United States court. This honor was bestowed upon him without his knowledge or solicitation, but he accepted and performed nearly all the business of that character in Milwaukee until his resignation in 1864. Some of the questions brought to his judicial decision were of great importance, as the period covered the exciting slavery agitation of 1850 to 1860, and the greater portion of the civil war. Among them were the fugitive slave riots and the Booth prosecution.
In 1862, when James H. Howe resigned the office of attorney gen- eral of Wisconsin to enter the Union army, Governor Salomon, who was compelled to confront many crises and take many daring risks be-
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cause of the exigencies of war time, asked his old partner to accept the vacancy, knowing that in Mr. Smith he would possess an adviser whose knowledge of the law was reliable, whose patriotism was unquestioned and whose personal friendship was of the most loyal character. The offer was accepted, and when the term expired in 1863 the people of Wisconsin ratified the choice of the governor by electing Mr. Smith to the full term, which terminated on January. 1, 1866. He entered upon the discharge of his duties with the same intelligent devotion that he had bestowed upon the business of his clients and served the state as loyally as he would have served his own personal interests .* He never left his work to others, but appeared personally before the supreme court in all the cases in which the state was interested, with the exception of a few of a criminal character, which the district attorneys had prepared and desired to present in person. In this labor Mr. Smith was successful, with hardly an exception.
It was while holding the office of attorney general that Mr. Smith was able to perform a large service to the state, to win a great measure of public applause, and to demonstrate the possession of industry, abil- ity and legal knowledge, by his course in connection with the Mil- waukee & Rock River canal claims, and the unadjusted accounts be- tween Wisconsin and the United States. The full history of that service cannot be recounted within the limits of this sketch, but only enough to show the magnitude of the interests involved and the difficulties that lay in the way of any settlement advantageous to the state.
The canal company was an outgrowth of that spirit of improve- ment that was apparent at Milwaukee even in an early day. Congress had granted to the territory of Wisconsin, to aid in the building of a canal between Lake Michigan and Rock river, a large amount of public land; and it was the expectation of the canal company to obtain these lands when it should build the canal connecting the points desig- nated. The work was commenced, and all of the line that was ever built was one mile within what is now the city of Milwaukee. From this it obtained an immediate benefit in the shape of valuable water
*To quote General Fairchild's terse opinion of Mr. Smith's labors: "He was the best attorney general Wisconsin ever had."
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power, as it included a dam across the Milwaukee river. Claims for "relief" from the territory had been suggested or advanced from time to time, and finally crystallized into a demand that all money ex- pended by the canal company ought to be refunded by the territory, as the latter had never given the company the lands obtained from the general government for canal purposes. The company also set up the claim that it had been prevented from going on with its work because the territory had refused to deliver these lands: that great damage had befallen its interests because of this refusal, and that instead of fostering its interests as expected the territory had dissolved all connections with the company and sold the lands to others. Not only was this claim ad- vanced at home, but presented to Congress; and while that body did not do anything for the company's relief, it still gave enough attention to the demand to withhold from Wisconsin the proceeds of the swamp lands, which, under other laws, were due to the state. The repre- sentatives of the company seemed, as they claimed, to have sufficient influence with Congress to prevent the state from securing these and other lands, and the proceeds of their sales, to a large amount. In short, while the company made small progress in the way of securing any benefits for itself, it was still able to embarrass Wisconsin by caus- ing the general government to defer its settlements with the state, which had succeeded to the rights of the territory, until the canal ques- tion was adjusted. All payments by the general government to the state on account of sales of land were stopped. Mr. O. H. Waldo, one of the strong men of the Milwaukee bar, was attorney for the com- pany, and by many brilliant and plausible arguments caused many mem- bers of Congress, members of the legislature and others to believe that Wisconsin had really abused and injured the Milwaukee & Rock River Canal Company.
To go back a moment: These lands, on the line of the proposed canal, between Milwaukee and Rock river, had come into great demand for actual settlers. The territory retained possession of them for some time, but was finally compelled to sell, rather than retard settlement by keeping them longer out of the market. A proposal was made to re- fund the money received in these sales to the general government, but
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the latter declined to accept it. The territory would not give it to the canal company for the reason that it already had advanced the com- pany more than enough money to pay for the proportionate share of the work done. The territory had already borrowed ten thousand dollars at a great sacrifice; and it became evident after a time that the company never could and never would construct the canal; that the proceeds of the grant of land would pay but a trifling part of the cost of the canal, and that the corporation had no other means with which to build it. The territory, therefore, very wisely refused to entrust to the corpora- tion the lands or the proceeds thereof, which would have been simply lost to the public.
We do not know the aggregate of the claims made by the canal company upon the state, but it is said to have been up in the hundreds of thousands of dollars. The small amount of knowledge held by the after generation as to the facts of the case, the difficulty of obtaining information, as all the books and documents were in the hands of the claimants, and the ingenuity and persistence of Mr. Waldo and his coadjutors all combined to aid the company's cause; and had the mat- ter only received a superficial examination or been left in the hands of ordinary competence, a settlement far less honorable to the state than was secured would have been the result. The time came in 1862 when a formal movement was made to secure such settlement and the litiga- tion took steps leading in that direction .* A commission was appointed and in 1863 Governor Salomon explained its action in a brief communi- cation to the legislature in which he said:
"Executive Office, Madison, Feb. 2, 1863.
"To the Senate and Assembly: I lay before you the report of a board of commissioners appointed in 1862 to ascertain and settle the liabilities, if any, of the state of Wisconsin to the Milwaukee & Rock River Canal Company. The opinion of the attorney general, which forms a part of this report, I commend to your especial and careful consideration."
*It should be remarked, in passing, that a large share of credit should be awarded J. Allen Barber for having caused the postponement of the claim in the legislature long enough to have it thoroughly understood.
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The governor added that it was the province of the legislature to determine what further steps should be taken. The commissioners, in their report, said that they placed the matter in the hands of the at- torney general, Winfield Smith, to make an examination of the facts and to give his opinion of the law. His reply convinced them that the canal company had no claim against the state.
Mr. Smith's report, which was exhaustive and showed complete re- search, bore date of December 31, 1862. It recited the facts connected with the history of the case, disposed of the various claims, one after another, and summed up his conclusions in the following manner:
"Upon the whole, I conclude that the Milwaukee & Rock River Canal Company acquired no rights through the act of Congress grant- ing lands to the territory for the purpose of aiding in opening the canal. That it acquired no rights through any subsequent act of the territory (except, perhaps, for a time under a contract afterward com- pletely performed). That the canal company sustained no damage by the legislative act of which it now complains."
After the presentation of this opinion from the attorney general of the state the canal company was unable to get any legislation what- ever from the state in its favor, yet still possessed enough influence in Congress to obtain action, which, it should be remarked, the state did not oppose. On July 1, 1864, Congress passed a joint resolution which ordered that Wisconsin should be charged for the land given under the canal grant (125,431 acres); and that, on the other hand, the state should be credited with the amount expended in selling the lands, and what- ever had been paid to the construction of the canal. It was further or- dered that the state "also shall credit to the canal company such money as was used in construction to that date and in managing and keeping the same in repair"-this sum not to exceed the amount charged against the state of Wisconsin on the sales of said canal lands; the same to be received by the company in full satisfaction of all claims against Wiscon- sin or the United States.
The claims of the company against the state had been great, and this resolution gave it all it had proper claim to-not to exceed the amount received by the state from sales of the canal lands. The state
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stood ready to effect a settlement, and had been in that condition of readiness for years.
The commissioner of the land office was appointed to audit the claims and determine what should go to the company and what to the state. Attorney General Smith had been carefully investigating all the sources of information at his command, and proceeded to Washington fully prepared to produce the truth and defend the interest of the state at all points. He spent the greater portion of the winter of 1865 in the national capital, Mr. Waldo being present in behalf of the canal com- pany. The result of that extended hearing can best be given in the final report as made by Mr. Smith to the governor of Wisconsin on March 24. 1865. The governor, James T. Lewis, on forwarding it to the legislature, made use of the following appreciative words:
"I inclose herewith a report from the attorney general to me of his action in the premises and take occasion to say that he is entitled to great credit for the energy and ability he has displayed in aiding to bring about this adjustment."
The report gave a detailed statement of the amount of labor required to get all the facts in the case-a herculean task in view of the long time that had elapsed. In conclusion the attorney general said:
"I take pleasure in announcing that with these exceptions (certain minor sums which are enumerated) every item claimed by the state was finally allowed by the commissioner, and the claim was settled at $56.527.14.
"The account then passed to the secretary of the interior. In his office it was carefully reviewed and I furnished explanations upon the points which were misunderstood or doubted, including some which had not been previously objected to. I had reason to feel that these explanations were satisfactory and that the amount allowed by the com- missioner would not be reduced. I was at this point summoned to Madison to attend to certain pressing office business, and, therefore, I was unable to remain until the account should be formally passed. I learn that the adjustment had since been completed, without making any changes.
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"The summing up the canal fund account now stands thus:
Amount charged by United States for canal lands at $1.25 per acre $156,789.77 Amount received in loan, which, with the interest paid, is
now allowed to the state by the United States 1,000.00
Total $157,789.77 Deducting expenditures of the state allowed on above. 56,527.44
Amount due from state . $101,262.33
This adjustment opens to the state the enjoyment of the five per cent fund, so-called, which has been retained by the United States until moneys received by the territory on sale of the canal lands should be accounted for. The amount of that fund was, on the 31st day of De- cember, 1862, $250,139.11. Deduct from this $101,262.33, the bal- ance fund due from the state as above. and the remainder, now owing to this state, is fixed at $148,876.78.
Every dollar of this sum and the far larger sums since flowing into the fund, have been paid over to the state without further delay or ob- jection. The amount that went to the canal company was just what it expended and no more; what the state was willing it should get and what the attorney general believed was its proper and legal due.
Another case of importance which contained matters of unusual public interest was that which concerned the celebrated draft riot, and the enforcement of the draft in Ozaukee county during the war, involv- ing the constitutionality of acts of Congress authorizing the con- scription of citizens and their enrollment in the military service of the country; also the power of the governor of the state to enforce those acts. It was a time of great excitement, and a crisis in public affairs, party spirit running high and every word and movement attracting an excited public attention. Upon the final appeal to the supreme court all the acts of Governor Salomon in enforcing the draft, including the arrest of citizens and their imprisonment in the military camp at Madi- son, were declared to be constitutional and in pursuance of law, and the power of the government to act for its own preservation fully sus-
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· tained. Mr. Smith, as attorney general, exhibited a complete mastery of all the features of the case, and his success in the final decision of the supreme court was due to close study, careful arrangement, and the full preparation made for the trial by the governor and himself, in which Mr. Carpenter voluntarily gave able assistance.
In 1872 Mr. Smith was selected as the representative of the seventhi ward of Milwaukee in the state legislature. He was not a candidate for the place and did not wish it, but the people of that ward-one of the most intelligent in the city-insisted upon it, and he could not well refuse. He gave three months of the hardest work of his life to his duties in that capacity, and from the first was one of the recognized leaders of the house. He was chairman of the judiciary committee at a time when important amendments to the constitution had just been adopted, and it threw severe and continued labors upon that commit- tee, whose duty it was to see that all legislation was in accordance therewith. The greater part of the work performed by Mr. Smith in this capacity was therefore of a negative character; and so busy did it keep him that he had time and occasion to draw but one bill, which was one of the shortest ever placed upon the statute books: "Section I. The day of the general election shall be a legal holiday."*
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