USA > Wisconsin > History of the bench and bar of Wisconsin, Vol. II > Part 8
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The act creating this court was approved by the governor March 18, 1859, but it was not officially published until June 29th of the same year. As directed by the terms of the act, the first election of judge and clerk of the court was held on the first Tuesday of April, 1859. Erastus Foote, having been elected judge, proceeded at once to or- ganize the court, empanel juries, receive and try indictments, sentence persons convicted, and, in short, to exercise all the powers conferred by the act.
About this time the supreme court, construing a provision of the state constitution, decided that any act affecting general public inter- ests, though in terms applying only to a particular county or city, must be deemed a general law in the sense of that provision of the constitu- tion requiring that every general law must be published before it shall take effect. Attorneys quickly perceived the bearing of this decision upon the new court. The election for judge and clerk had been held before the act creating the court was published, consequently before the act went into force. The validity of the election and the authority of the judge were questioned and soon boldly denied. Proceedings were begun for the discharge of men imprisoned under sentence of the court. The greatest confusion prevailed to the prejudice of criminal justice until February 21, 1860, when the supreme court, on a quo warranto proceeding prosecuted by the attorney general, held the elec- tion invalid and gave a judgment of ouster against Judge Foote. The court held, however, that his judicial acts, done after the date of publica-
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tion of the act creating the court, were valid, as the acts of a de facto judge or court.
To meet the emergency, the legislature, then in session, promptly passed an act, which was approved and published March I, 1860, di- recting that a special election be held on the first Tuesday in April to fill the vacant offices of judge and clerk, and authorizing the governor to fill the vacancies meanwhile by appointment. James A. Mallory was both appointed and elected judge under this special act, and early in March, 1860, entered upon a period of judicial service which continued- with- out interruption for nearly thirty years.
In 1865 the legislature gave the court jurisdiction, concurrent with the circuit court, of all actions for breach of any recognizance given in the court in any criminal prosecution, requiring, however, that a tran- script of the judgment in any such action should be filed and the judg- ment docketed in the office of the clerk of the circuit court of the county to make it a lien on real estate. In 1879 the jurisdiction was further enlarged so as to be "concurrent and equal with the circuit court of the county in all cases of crimes and misdemeanors arising in the county." Since then the circuit court of Milwaukee county has exercised no criminal jurisdiction whatever, except in cases removed to it from the municipal court or from some other county for legal cause. For thirty- five years virtually the whole administration of justice in cases of crimes and misdemeanors of every grade, including prosecutions for violations of city ordinances and all sorts of petty offenses, was the function of this court exclusively.
The municipal judge devoted the morning of each secular day to the summary hearing and disposition of all cases brought before him by the city police or otherwise, with or without process, for the viola- tion of criminal laws of the state committed in Milwaukee county, or of the ordinances, laws, rules, regulations, resolutions and by-laws of the city of Milwaukee, and to preliminary examinations of persons charged with indictable offenses; and then, at the same place and in the same atmosphere, putting on the airs and assuming the dignity of a court of record, took up the formal trial of the gravest crimes. The only relief afforded the judge from the pressure of these varied and incongruous
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duties was found in the power given him in case of his absence, sick- ness, or inability for any cause to attend to his official duties, to desig- nate one of the justices of the peace of the city to temporarily discharge any of such duties, except the holding of a term for the trial of in- dictable offenses.
ERASTUS FOOTE.
This gentleman, of whom mention has been made, was born at Plymouth, Chenango county, New York, in 1809. He studied law and was admitted to the bar in the same county. Soon after his ad- mission to the bar he removed to Greene, in Chenango county, where he practiced his profession for a short time and then removed to Wis- consin, and located at Geneva, in Walworth county. In 1852 he re- moved to Milwaukee and for a short time was engaged in law practice in co-operation with H. L. Palmer. He was afterwards elected, as stated, judge of the municipal court of Milwaukee, the duties of which he discharged with a fair degree of satisfaction, for, although he was not possessed of remarkable abilities, he had a fair and equable mind and temper, by means of which the conclusions at which he arrived gave general satisfaction. He died at Milwaukee on the 16th of February, 1875.
JAMES A. MALLORY.
Mr. Mallory was born in Washington county, New York; when he was about six years of age he removed to the western part of the state; his general and legal education was received in his native state, and he was admitted to the bar in Buffalo. He came to Wisconsin in January, 1851, having practiced for a time in Buffalo. He was district attorney of Milwaukee county in 1855-58, being chosen for a second term with- out opposition. In March, 1861, he was appointed judge of the mu- nicipal court, and by repeated elections held that office until 1890. He was three times elected without opposition. In 1877 he was the demo- cratic candidate for governor, but was beaten by William E. Smith. It
Emil Krallber
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has been written of Judge Mallory that "as judge he was prompt, able, efficient and fearless, dealing out justice fairly and impartially, but with a positiveness and decision which struck terror to the hearts of the crim- inal class."
EMIL WALLBER.
Judge Mallory was succeeded in January, 1890, by Emil Wallber, the present municipal judge, who has proved a worthy and able follower of his veteran predecessor. Mr. Wallber is a type of the German-Amer- ican who is doing so much to weld into the national character those traits of thoroughness, perseverance and practical industry which have made the German himself so strong and masterful. He was born in Berlin (April 1, 1841), as were his parents, Julius and Henrietta (Krohn) Wallber. When Emil was nine years of age they emigrated to the United States, settling in New York city. Here he attended the public schools and the New York free academy, but having resolved to adopt the law as his life work, he decided to select Milwaukee as his home. As after events proved, both decisions were wise.
Settling in Milwaukee in 1855, when but fourteen years of age, young Wallber accepted a position as clerk for Charles F. Bode, then the most prominent justice of the peace in the city, and afterwards en- tered the law office of Edward Salomon and Winfield Smith, both dis- tinguished lawyers and public characters of note. Upon the death of Governor Harvey, in April, 1862, Mr. Salomon, then lieutenant gov- ernor, succeeded to the gubernatorial chair, and, until the end of his term, Judge Wallber served as chief clerk to his excellency. Admitted to the bar in 1864, he was appointed by Winfield Smith, attorney general of the state, as his assistant, holding that position until 1866.
Returning to Milwaukee, he so impressed his individuality upon the public that he was soon acknowledged as one of the city's leading law- yers, but was continually honored with official gifts. He represented the sixth ward as a school commissioner from 1870 to 1873, and was president of the board from 1871 to 1873. Judge Wallber was elected to the legislature of 1872 and served as city attorney from 1873 to 1878, and declined a renomination to the latter office. He was court commis-
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sioner for ten years, and from 1883 to 1890 was a member of the board of regents of the Wisconsin state normal schools. In 1884 he was elected mayor of Milwaukee and re-elected in 1886, serving two full- terms. Whatever Judge Wallber found to do he did with all his might and with such marked effects that he was advanced from one station to another until, in April, 1889, he was elected judge of the municipal court and re-elected in 1895. He succeeded James A. Mallory, who had remained upon this bench for many years.
In social and fraternal circles Judge Wallber has for many years been a conspicuous figure, being a member of Aurora lodge No. 30, A. F. & A. M., and of the order of Sons of Hermann. He has also been identified with the Turnverein Milwaukee, the Milwaukee Musical society and the Kindergarten Verein.
The multifarious powers and functions of the municipal court re- mained unchanged until the legislative session of 1895, when the office of police justice was again created and vested with the usual powers and jurisdiction of such inferior courts, the municipal court, over which Judge Wallber has been again chosen to preside, retaining only its appellate jurisdiction and its power, concurrent with the circuit court, for the trial of informations and indictments.
CHAPTER XVIII.
THE THIRD CIRCUIT, ITS JUDGES AND LAWYERS, AND THE COUNTY COURT OF WINNEBAGO COUNTY.
BY MOSES HOOPER. (I)
The third circuit comprises the counties of Winnebago, Green Lake and Calumet. Present judge, George W. Burnell.
Green Lake county is the only territory now in the circuit which formed part thereof as at first organized.
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The third circuit, comprised the counties of Washington, Dodge, Columbia, Marquette. Sauk and Portage. (2) Marquette then included the territory now Green Lake county, which was detached from Mar- quette and made part of the third circuit. (3) Its earlier judges were C. H. Larrabee, A. Scott Sloan and John E. Mann. Sketches of their lives are given in other chapters.
Winnebago county was originally in the fourth circuit. (4) It was detached from fourth and attached to tenth in 1858. (5) It was de- tached from tenth and attached to third in 1870. (6)
Calumet was originally part of fourth circuit but attached to Fond du Lac county for judicial purposes. (7) In 1850 it was organized for judicial purposes. (8) In 1881 it was detached from the fourth circuit and attached to the third. (9)
While the county of Winnebago was a part of the fourth circuit, its circuit judges were Alexander W. Stow and Timothy O. Howe. Judge Stow was elected judge of the fourth circuit on May 13th, 1848.
(1) Mr. Hooper is not responsible (5) Ch. 57, laws 1858.
for the biographies embodied in this chapter.
(6) Ch. 22, laws 1870.
(2) R. S. 1849, p. 41I.
(8) Ch. 84, laws 1850.
(9) Ch. 37, laws 1881.
(3) Ch. 17, laws 1858.
(7) R. S. 1849, p. 41I.
(4) R. S. 1849, p. 41I.
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He continued to hold this office until January, 1851, when Timothy O. Howe was elected his successor.
When Judge Stow was elected judge of the fourth circuit the con- stitution provided that "the judges of the several circuits shall be judges of the supreme court."(10) It also provided that "one of said judges shall be designated as chief justice in such manner as the legislature shall provide." (II)
The legislature provided that "the judges of the circuit court elected at the first election thereof shall be classified by lot to be publicly drawn by the secretary of state. The classes shall be numbered 1, 2, 3, 4 and 5, according to the time of service of each, the class having the shortest time to serve being number one, and the judge whose lot shall fall in class number one shall hold his office for two years and until his successor shall be chosen and qualified. The judge whose lot shall fall in class number two shall hold his office for three years and until his successor shall be chosen and qualified," &c. "And said judges shall then and there ballot for one of their number to be the chief justice, and the person having a majority of all the ballots cast shall be the chief justice." (12)
Judge Stow's lot was to rank as class one, term two years. He was elected on the ballot, and served as such chief justice until January, 1851.
Timothy O. Howe was elected judge of fourth circuit in 1850, and entered upon his duties in 1851. He did not hold through his term, but resigned in January or February, 1855.
Wm. R. Gorsline was, on February 24th, 1855, appointed to fill the vacancy and on April 3d, 1855, was elected to the office.
In 1858 Winnebago county was transferred from the fourth to the tenth circuit, wherein S. R. Cotton was judge. (13) He continued to hold court in Winnebago county until 1861.
Edwin Wheeler was elected judge of the tenth circuit on 2d April, 1861, and held the office until his death on January 23d, 1864.
(10) R. S. 1849, p. 29. Const., art. VII., sec. 4.
(II) R. S. 1849, p. 29. Const., art. VII., sec. 7.
(12) R. S. 1849, p. 760, sec. 4.
(13) Ch. 57, laws 1858.
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On February 2d, 1864, G. W. Washburn was appointed to the vacancy of judgeship of tenth circuit. Early in 1870 Washburn re- signed and on April 13th, 1870, Ezra T. Sprague of De Pere was ap- pointed to fill the vacancy. He held no term in Winnebago county, as it was, in 1870, transferred from the tenth to the third circuit. (14) D. J. Pulling was judge of the third circuit at that time. On transfer of Winnebago county to his circuit he removed to Oshkosh. He con- tinued to be judge of the third circuit until the fall of 1884, when he resigned and removed to Wasau. On September 30th, 1884, George W. Burnell was appointed to fill the vacancy in judgeship of the third circuit. He still holds the office.
Hence the circuit court of Winnebago county has been presided over by Alexander W. Stow, of Fond du Lac; Timothy Howe, of Green Bay; Wm. R. Gorsline, of Sheboygan; S. R. Cotton, of Green Bay, and Edwin Wheeler, G. W. Washburn, D. J. Pulling and George W. Burnell, of Oshkosh.
Judge Stow was the first chief justice of the state. He was entirely a judge. He was a man of rare frankness and sincerity. He never will- ingly took credit for being or doing other than what he was or did. He was held in high regard by the community and the bar, and by his associates on the bench, where he was in fact, as well as in law, chief. His avocation was farming. He was wealthy, a bachelor and a fine gentleman.
Timothy O. Howe's relations to the state were more political than judicial. Soon after he came to the bench of the fourth circuit the ju- diciary system of the state was changed by the organization of a su- preme court separate from the circuit judges. (15)
His judicial career, though limited to the fourth circuit, was thor- oughly creditable to his temper and ability. Many anecdotes related of him show his humorous, kind, but firm temper on the bench. Mr. was once about to argue an equity case before him. There was much testimony, and Mr. -- had set out an array of authorities. At the outset, the judge said: "Mr. - , the court doesn't care to
(14) Ch. 22, laws 1870.
(15) Ch. 395. laws 1852.
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hear any argument for the plaintiff." "But," says Mr. - , "my client has put me in charge of his case and I feel it my duty to make an argu- ment." The judge replied: "Can we not compromise? If you will forego the speech I will give the judgment you ask."
The judge once sent out a special venire for jurors, including Sena- tor Sawyer, who was then a sturdy, busy lumberman. The venire was served on Mr. Sawyer, who said, "I have other work on hand," and proceeded on his business. Having finished the business, and being at leisure, his mind turned to his disregard of the process of the court. He went to the court, reported to the judge, and found that process had been issued to arrest him for contempt. He frankly stated the facts. The judge said his own feelings were not much injured, and that he thought the state could well afford to forego the fine, but that the sheriff and clerk had bills for service. The lumberman took out his pocket-book, in his good-natured way, but no one would take any money. Then the two principal actors shook hands. Just here, in the courtroom (a hall over two stores in a balloon framed building) com- menced the acquaintance and friendship of two men who have since had much to do with the affairs of the state and nation. This friendship was warm, constant and lasted through the life of the then judge.
Some opinions of Judge Howe appear in Vol. 3 of Pinney's reports. They show sound judgment and learning.
Senator Sawyer says Mr. Howe was true and even chivalrous in his friendship, that his temper was to risk his own safety for the safety of his friend.
Wm. R. Gorsline resided at Sheboygan. I saw him on the bench but once, and can only say that he seemed to be a polished, suave, self- possessed judge.
Judge Cotton resided at Green Bay. Was a marked character. Be- sides being judge, he was a notable man at Green Bay. It was while he was holding court at Oshkosh that I commenced practice. I have always felt grateful to him for the kind attention he paid to the argu- ments of the callow practitioner. A reason from the tongue' of a boy was as weighty with him as if it came from a solon. His attitude to-
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wards the mere tyro was a great comfort to me. He impressed me as a man of great courage and devotion to principle.
It is said that a saloon-keeper had been fined ten dollars for selling without a license. Knowing that the judge was not a teetotaler, he appealed. His case being called in the circuit, he plead guilty, expect- ing to be fined a dollar. The judge, on hearing his plea of guilty, took in the situation. So he said: "Your plea of guilty is the best possible evidence of your guilt. I fine you fifty dollars and costs, and am sorry that I can't fine you more."
Judge Wheeler was a clear-headed, feeble-bodied man. In walking along with him you felt like taking his valise or package and carrying it for him as you would for a woman. But you felt no inclination to carry his mental load. His brain seemed clear and strong. though his hand was weak. Clear, calm, cool and with right instincts, he was al- ways equal to the occasion.
Judge Washburn still lives in Oshkosh. He was admitted to prac- tice in the supreme court of the territory of Wisconsin on July 20th, 1847. A list of attorneys whose admission to practice in that court was made matter of record appears on pages 1, 2, 3, of Ist Pinney. I know of but two of that list now living. They are Judge Washburn, and Judge Alex. L. Collins, who now lives with his son at Menasha.
Judge Washburn was considered, by all parties, exceptionally im- partial. His temperament and bearing were such that defeated parties felt sure that he had given them what seemed to him proper and just. The bitterness of defeat was never intensified by the feeling that there was inattention or prejudice on the part of the judge. Whatever the case, whoever the parties, there was implicit faith that the judge would do or had done what to him seemed right. There is often, no doubt, unjust suspicion that defeat has come through the neglect or prejudice of the judge. But no such suspicion arose regarding Judge Washburn. I think he was more entirely free from any suspicion of prejudice than any judge I ever knew.
I have understood that he resigned because he thought the salary inadequate to support a considerable family and provide a competency for declining years. Since his resignation he has succeeded as a man
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of affairs. I have heard him say that in the early days of Wisconsin he frequently dreaded to learn that the postoffice held a letter for him because he didn't know where to find ten cents to pay the postage.
Judge Burnell is a Vermonter. That is saying much in a few words. It means that he stands over six feet in his stockings, and has a long head as well as body; that he loves fair play and stands for a large measure of personal liberty.
The judge is a man of more than ordinary mental force, and fortu- nately that force finds its best use on the bench .. When at the bar he showed ability to originate reasons and arguments. On the bench he shows more ability to weigh and judge of reasons and arguments.
He is a man of large social capacity. He has a ready wit and makes an excellent after-dinner speech.
COUNTY ( OURT OF WINNEBAGO COUNTY.
In 1860 jurisdiction in other than probate cases was given to the county court of Winnebago county. (16) A. P. Hodges was then judge of this court, term to expire January Ist, 1862. In September, 1861, Hodges was re-elected for term, Ist January, 1862, to Ist January, 1866. On December 31st, 1861, he, having in November, 1861, been elected state prison commissioner, resigned, resignation to take effect January Ist, 1862. G. W. Washburn was appointed to fill the vacancy. On April Ist, 1862, votes were cast for county judge for unexpired portion of term 1862 to 1866-all for Earl P. Finch. Finch qualified, but Washburn held the office. Finch filed quo warranto against Washburn, but the court held Washburn entitled to the office for the full unexpired term, 1862 to 1866. (17) Washburn held accordingly. J. B. Hamilton was elected in April, 1865, for the term 1866 to 1870. In April, 1869, George Gary was elected for the term 1870 to 1874, and re-elected for terms 1874 to 1878 and 1878 to 1882, and 1882 to 1886. Gary resigned on April Ist, 1882, and J. B. Hamilton was appointed to fill the vacancy in the term 1882 to 1886. C. D. Cleveland was elected for the terms
(16) Ch. 361, laws 1860.
(17) State ex rel. Finch vs. Washburn, 17 Wis., 658.
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1886 to 1890, and 1890 to 1894, and 1894 to 1898. He still holds the office.
So we have had to preside over the Winnebago county court, with other than probate jurisdiction : A. P. Hodges, G. W. Washburn (who was also circuit judge), J. B. Hamilton, George Gary and C. D. Cleve- land. All but Hodges are now living.
Judge Hodges was a genial, gentlemanly man of affairs. He was well read, of good, sound judgment, but not especially devoted to the law. He was rotund, polite and affable. On taking the office of state prison commissioner, in 1862, he left Oshkosh and never returned to make his home there.
Judge Washburn is better known as judge of tenth circuit than as county judge.
J. B. Hamilton was a lawyer. He always showed, while on the bench, patient deliberation and the thorough training which he received in New York, from which state he came to Neenah, Wisconsin, at an early day. The bar and the people had confidence in his judgment and integrity. He was well fitted for judicial functions.
It was with him as an antagonist, and at Neenah, that I commenced to fight the professional battle. I remember his many courtesies. They seem brighter to me as memory gives them riper color.
'George Gary came to the bar at middle age. He is a brother of Judge Joseph E. Gary of Chicago. He was and is a pure, kind, generous, sympathetic man. He was and is loved by his friends and respected by those opposed to him. He was a good judge and served well on the bench. But he has been more useful to the profession through his work on Probate Law, the standard text-book upon that branch. He has well earned the respect he receives and much more money than has been paid to him. He has succeeded as a lawyer and as a judge more than as a man of affairs.
C. D. Cleveland now holds the office of county judge of Winnebago county. He is on his third term-eleventh year-of service. There has not been, at either of the three elections wherein he has been chosen, any opposition. The bar and the people have been and now are of one mind-that he was and is pre-eminently fit for the place. He has shown
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himself every inch a judge. He weighs proof and argument with very exact scales. A reason is to him a reason, no matter what its source. The place (the judicial office) fits the man and the man fits the place. His willingness to hold this office is the good fortune of the people.
DAVID J. PULLING.
David J. Pulling was born in Genesee county, New York, in 1814. His father was a successful physician and surgeon, and was desirous that his son should fit himself for the same profession, but on account of an accident in his youth young Pulling was compelled to abandon all study for a time, and later, being left to his own choice, took up the study of the law and was admitted to the bar in 1838. In 1845 he came west and located at Fox Lake, Wisconsin, on an island in the Fox lake which still bears the name, "Pulling's island." On arriving in Wisconsin he embarked in the business of merchandising. This proved a failure, and after a brief career as a merchant he returned to the prac- tice of his profession and moved to Portage City, where he continued in the successful practice of the law for a number of years. In 1859 he returned to Fox Lake, and resided there at the time of his election as judge of the third judicial circuit. He then moved to Beaver Dam, where he resided until 1870, when he removed to Oshkosh, remaining there until his resignation from the bench in 1884.
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