In Re: Booth

3 Wis. 1 (1854)

What has become known as the Booth case is actually a series of decisions from the Wisconsin
Supreme Court beginning in 1854 and one from the U.S. Supreme Court, Ableman v. Booth, 62
U.S. 514 (1859), leading to a final published decision by the Wisconsin Supreme Court in
Ableman v. Booth, 11 Wis. 501 (1859). These decisions reflect Wisconsin’s attempted
nullification of the federal fugitive slave law, the expansion of the state’s rights movement and
Wisconsin’s defiance of federal judicial authority. The Wisconsin Supreme Court in Booth
unanimously declared the Fugitive Slave Act (which required northern states to return runaway
slaves to their masters) unconstitutional. The U.S. Supreme Court overturned that decision but
the Wisconsin Supreme Court refused to file the U.S. Court’s mandate upholding the fugitive
slave law. That mandate has never been filed.

When the U.S. Constitution was drafted, slavery existed in this country. Article IV,
Section 2 provided as follows:

No person held to service or labor in one state under the laws thereof, escaping
into another, shall in consequence of any law or regulation therein, be
discharged from such service or labor, but shall be delivered up on claim of the
party to whom such service or labor may be due.

Based on this provision, Congress in 1793 passed a law that permitted the owner of any
runaway slave to arrest him, take him before a judge of either the federal or state courts and prove
by oral testimony or by affidavit that the person arrested owed service to the claimant under the
laws of the state from which he had escaped; if the judge found the evidence to be sufficient, the
slave owner could bring the fugitive back to the state from which he had escaped. The law also
set a penalty of $500 for obstructing its execution or concealing a known fugitive slave.
The law remained intact until 1850, by which time the moral sentiment of the North
against slavery had become aroused; the Liberty Party had been organized, the underground
railroad had flourished and northern men and women refused to act as slave catchers or assist in
perpetuating slavery. As northern sentiment against slavery grew, the sentiment in the South in
favor of the “divine institution” became more determined.
Because of the increasing difficulty the slave holders faced in reclaiming runaway slaves,
Congress passed the Fugitive Slave Act of 1850. The law placed the mechanism for capturing
runaway slaves in the hands of federal officers. It provided that these cases would be heard by a
federal judge or court commissioner and allowed the slave owner to prove the debt owed by the
slave but precluded testimony from the fugitive entirely. The new law also increased the penalties
for resistance and for concealment of fugitives.
Although it was intended as a compromise, the new law actually fueled the flames of anti-
slavery sentiment and from 1854 to 1861, Wisconsin politics was dominated by the question of
whether the state had to defer to the federal government’s efforts to enforce the Fugitive Slave
Act.
In the spring of 1852, a slave named Joshua Glover escaped from a Missouri plantation
and made his way to Racine, where he found work at a sawmill. Two years later, his owner,
Bennami Garland, tracked him down and had him apprehended by federal marshals under the
Fugitive Slave Act. Glover was held in the Milwaukee County Jail pending a hearing.
When Sherman M. Booth, editor of the Milwaukee abolitionist newspaper, The Free
Democrat, heard of the capture, he mounted his horse and galloped through the streets of
Milwaukee shouting: “Freemen! To the rescue! Slave catchers are in our midst! Be at the
courthouse at 2:00!” Booth sought counsel from James H. Paine and his 27-year-old son, Byron,
both Milwaukee lawyers, on legal measures that could be taken to free Glover. The lawyers
persuaded a Milwaukee County Court judge to issue a writ of habeas corpus directing the U.S.
marshal to bring Glover before the county judge and justify his detention.
Before the hearing could take place, Booth appointed a committee to prevent the
“kidnapping” of Glover by the federal authorities. After Booth made a fiery speech, a mob led by
one of the other committeemen, John Ryecraft, battered down the jail doors, freed Glover and
spirited him away to Canada.
The federal authorities filed complaints against Booth charging him with unlawfully
assisting Glover’s escape. Booth was released on bail but two months later, at his own request,
the bondsman delivered him to the U.S. Marshal requesting that he be detained. Booth’s
voluntary surrender was calculated to bring a test case challenging the constitutionality of the
fugitive slave law in state court. On the day after the surrender, Booth’s attorney, Byron Paine,
successfully applied to Wisconsin Supreme Court Justice Abram D. Smith for a writ of habeas
corpus.
At that hearing, Smith asked the parties to address the constitutionality of the fugitive
slave law. Paine, citing Thomas Jefferson’s writings, asserted that the states possessed the right
to impose their authority where their sovereign rights are violated by the federal government.
Paine argued that Congress had no authority to make laws based on Section 2, Article IV (the
Fugitive Slave Clause of the Constitution) and that the Act of 1850 was unconstitutional because
it denied a trial by jury and vested judicial powers in court commissioners.
On June 7, 1854, Smith ordered that Booth be released. Justice Smith not only found the
warrant of commitment defective, but then also adopted Payne’s points and declared the fugitive
slave law unconstitutional. In Re: Booth, 3 Wis. 1 (1854).
When United States Attorney General Kaleb Kushing in Washington D.C. was
informed of Booth’s release, he directed U.S. Attorney Sharpstein to petition the Wisconsin
Supreme Court for a full court certiorari review of Justice Smith’s decision. With the approval of
President Franklin Pierce, Sharpstein retained an eminent Wisconsin lawyer, Edward G. Ryan
(later to become Chief Justice of the Wisconsin Supreme Court), to assist him in the argument
before the full state court and also to help prosecute Booth and Glover’s other rescuers in federal
court.
When the case of Ableman v. Booth was heard before the full Wisconsin Supreme
Court in late June of 1854, Attorney Payne made substantially the same arguments he had made
before Justice Smith. U.S. Attorney Sharpstein and Attorney Ryan on the other hand, citing
grounds of comity, the primacy of the federal judiciary in cases involving the federal constitution
and laws, and the lack of power in both federal and state courts to discharge each other’s
prisoners upon habeas corpus, insisted that the acts of the federal court commissioners were acts
of the federal court and that the jurisdiction of the federal court could not be ousted. Sharpstein
asserted that Booth’s writ of commitment contained “mere formal inaccuracies” which did not
entitle Booth to habeas corpus; Sharpstein also vigorously defended the constitutionality of the
fugitive slave laws of 1793 and 1850.
Finding the writ of commitment defective because it did not precisely state that
Booth had aided a “fugitive from labor” to escape from custody, the Wisconsin Supreme Court on
July 19, 1854, unanimously affirmed Justice Smith’s earlier decision releasing Booth. In separate
opinions, Chief Justice Edward V. Whiton and Justice Smith declared the 1850 law
unconstitutional while Justice Samuel Crawford, although finding Booth’s writ of commitment to
be invalid, concluded the fugitive slave law was constitutional. Ableman v. Booth, 3 Wis. 49
(1854). (Justice Crawford took the unpopular position that the laws of the United States and the
judgments of the federal courts within their proper jurisdiction were supreme and could not be set
aside by state courts. His opinion in the Booth case contributed significantly to his defeat when
he ran for reelection to the Wisconsin Supreme Court in April, 1855; his successful opponent in
that election was Orasmus Cole.).
U.S. Attorney Sharpstein urged U.S. Attorney General Kushing to appeal the
decision of the Wisconsin Supreme Court to the U.S. Supreme Court on writ of error. While that
request was being considered, the U.S. Federal District Court convened in Milwaukee and a
grand jury returned indictments against both Booth and John Ryecraft for aiding, assisting and
abetting the escape of Glover. Booth again applied to the Wisconsin Supreme Court for another
writ of habeas corpus. This time, however, the Wisconsin Supreme Court unanimously denied the
writ on the ground that jurisdiction had now attached to the federal court and could not be
interfered with by state process before a judgment was rendered in the federal court. Ex parte
Booth, 3 Wis. 134 (1854). The court applied the familiar rule of comity which provides that when
jurisdiction of a matter has been acquired by one court, another court of concurrent jurisdiction will not
interfere.
Both Booth and Ryecraft were then tried in federal court, found guilty, and sentenced
to short terms of imprisonment in the county jail and ordered to pay fines of $1,000. The Wisconsin
Supreme Court then issued writs of habeas corpus after the court concluded that on habeas corpus
review it could address the question of the jurisdiction of the federal court and could discharge
prisoners, even when the federal court had tried the case and passed judgment upon them. In Re:
Booth and Ryecraft, 3 Wis. 157 (1855).
In the meantime, U.S. Attorney General Kushing had decided to appeal the Wisconsin
decisions by writ of error to the United States Supreme Court. Two writs of error were subsequently
issued by U.S. Supreme Court Chief Justice Roger Taney directing the clerk of the Wisconsin Supreme
Court to make a return of the record in both the 1854 case of Ableman v. Booth, and the 1855 case of
In Re: Booth and Ryecraft. A return was made to the first writ of error without objection; however,
when the second writ was issued and served in June of 1855, the justices of the Wisconsin Supreme
Court directed the clerk to make no return to the writ. The Wisconsin justices asserted that no writ of
error could run from the U.S. Supreme Court to the supreme court of a state, and that the federal
Judiciary Act of 1789 purporting to authorize such a proceeding was unconstitutional.
The court’s action in refusing to make a return to the writ of error issued by the U.S.
Supreme Court was tantamount to judicial nullification of § 25 of the 1789 federal act which by that
time had served as the basis for federal review of almost 200 cases, including one from Wisconsin
(Walworth v. Kneeland, 15 How. 348 (1853)). This refusal to make a return to the writ of error was
also inconsistent with the Wisconsin Supreme Court’s earlier action in 1854 when it had assented to a
writ of error in the Ableman v. Booth case; it was also inconsistent with Wisconsin Supreme Court
Chief Justice Edward Whiton’s acknowledgment in his original opinion in that case, that the decisions
of the federal supreme court were final and conclusive upon all state courts.
The Wisconsin Supreme Court’s refusal to return the record in obedience to the writ of
error issued by the U.S. Supreme Court did not prevent the consideration of the case by the U.S.
Supreme Court, but it did delay it. In the meantime, Jeremiah S. Black became the new Attorney
General of the United States when President Buchanan took over from President Pierce. When it
became apparent that no official return would be made to the writ of error, the U.S. Supreme Court
ordered that a certified copy that Black had obtained would be sufficient. The two cases were then
argued together before the U.S. Supreme Court in January of 1859.
U.S. Attorney General Black argued the case for the United States but no counsel
appeared on the other side. However, Booth had sent to the U.S. Supreme Court a pamphlet
containing a copy of the argument Byron Payne had made in the Wisconsin Supreme Court, along with
copies of the opinions issued by the Wisconsin Supreme Court in the Booth matter.
On March 7, 1859, Chief Justice Taney, speaking for a unanimous U.S. Supreme
Court, reversed both Wisconsin decisions. Ableman v. Booth and U.S. v. Booth, 21 How. 506 (1859).
Chief Justice Taney vigorously insisted on the constitutionality and necessity of the U.S. Supreme
Court’s appellate jurisdiction; his opinion for the U.S. Supreme Court denied the power of state judges
and courts to interfere by habeas corpus before or after trial to defeat the jurisdiction of federal
tribunals. In addition, the U.S. Supreme Court pronounced the Fugitive Slave Act to be constitutional.
The opinion also prescribed the course to be followed by federal marshals when confronted with state
writs of habeas corpus: Chief Justice Taney explained that if a state by use of judicial process or
otherwise, should attempt to deprive the U.S. Marshal of custody of a federal prisoner, “it would be his
duty to resist it, and to call to his aid any force that might be necessary to maintain the authority of law
against illegal interference.”
Angered by that opinion and unwilling to accept the logic of Chief Justice Taney who
had written the infamous Dredd Scott case, the Wisconsin legislature passed a series of resolutions
denouncing the actions of the U.S. Supreme Court as “an arbitrary act of power ... without authority,
void and of no force,” and urging “positive defiance” by the states as the “rightful remedy.”
Only a month after the U.S. Supreme Court issued its opinion in the Booth matter,
Byron Payne was elected to succeed Justice Smith on the Wisconsin Supreme Court. That election
was seen as a referendum on the state’s rights position advocated by Payne in his representation of
Booth and an approval by the state electorate of the idea that the state could and should nullify and
defy a law of the United States--even one which the federal courts had pronounced constitutional and
valid--provided such law was thought by the courts of the state to be unconstitutional.
Coincidentally, only a short time after that election, on April 12, 1859, Chief Justice
Winton died. Governor Randall appointed 34 year old Luther S. Dixon to fill the vacancy. Thus,
Byron Payne, who was then only 32, and Dixon took seats upon the Wisconsin Supreme Court on the
same day.
Those two new and young Wisconsin Supreme Court Justices, along with Justice
Orasmus Cole, were soon confronted with a request to file the U.S. Supreme Court’s mandates
reversing the judgments and dismissals in the Booth cases. Justice Payne recused himself because he
had been Booth’s lawyer. Thus, the issue of determining whether the U.S. Supreme Court’s mandates
in the Booth case should be filed in this state fell to Chief Justice Dixon and Justice Cole. Justice Cole,
reaffirming his earlier view that the federal court had no power to review the judgments of the state
supreme court, voted not to file the mandates in the Booth cases. That meant that the mandates would
not be filed no matter how Justice Dixon voted because even if Justice Dixon thought the mandates
should be filed, there would be an equal division of the two justices participating and consequently, no
affirmative action could be taken. However, Chief Justice Dixon, displaying political courage, voted to
file the U.S. Supreme Court mandates and issued a formal opinion explaining his reasoning. Ableman
v. Booth, 11 Wis. 501 (1859). Although he personally agreed that the Fugitive Slave Act was
unconstitutional, Chief Justice Dixon admonished the state’s rights advocates that in their desire to
strike a blow at slavery, they should not cripple the rule of law. Chief Justice Dixon exposed the flaw
of the state’s rights position when he wrote:
[The state’s rights position] would place it in the power of any one
state, beyond all peaceful remedy, to arrest the execution of the
laws of the entire union, and to break down and destroy at pleasure
every barrier created and right given by the constitution ... [even] if
it be granted that both Congress and the Supreme Court have
improperly discharged the high trusts reposed in them by the
American people, it has no tendency to prove or disprove the
existence of this power. Ableman v. Booth, 11 Wis. at 513.

By issuing that opinion, Chief Justice Dixon almost guaranteed that when he came
up for election in 1860, he would have opposition. State’s rights advocates nominated Andrew
Scott Sloan (who later became the Wisconsin Attorney General who successfully prosecuted the
railroad cases in 1874) to run against him. The April 1860 election was very close with Dixon
succeeding but with only a 395 vote margin.
In the meantime, Booth was still involved in legal difficulties. In May of 1859, he
was accused of “seduction” by a 14 year old girl. He was prosecuted on that charge by Attorney
Edward G. Ryan (later Chief Justice Ryan); that trial, however, resulted in a hung jury. In
addition, Booth had still not paid his fine nor served the jail time imposed following his
convictions in federal court. D.A.J. Upham, the U.S. Attorney in Milwaukee who had replaced
John Sharpstein when the Buchanan administration took over, had asked the Wisconsin Supreme
Court to file the U.S. Supreme Court’s mandates in the Booth matter; after that was refused, he
filed a motion in federal court in Milwaukee asking Judge Miller to order the re-arrest of Booth.
Booth was then re-arrested and placed in federal custody in Milwaukee on March 1, 1860.
Another petition for habeas corpus was filed in the Wisconsin Supreme Court, but an evenly
divided court then refused to grant it. Ableman v. Booth, 11 Wis. 517 (1859) at 555-558.
Booth’s short term of imprisonment thereafter expired but he remained confined in the federal
custom house in Milwaukee because he refused to pay his fines. Requests that his fines be
remitted or that he be pardoned were rejected by President Buchanan and U.S. Attorney General
Black.
After eight unsuccessful attempts to free Booth, on August 1, 1860 several armed
men forcibly rescued Booth from the federal custom house in Milwaukee and took him to
Waupun where the State Prison Commissioner, Hans Heg (whose statue commemorating Heg’s
heroism and death in the Civil War now stands at the Main-Pinckney Street entrance to the State
Capitol) gave him protection. Booth continued to speak out in support of state’s rights position
at numerous political meetings in the area. Finally, on October 8, 1860, Booth was recaptured by
federal marshals at a meeting at Berlin, Wisconsin and again taken back to the custom house at
Milwaukee. After Abraham Lincoln’s election to the presidency but before he was inaugurated,
Booth again applied to President Buchanan for a pardon. This request was vigorously opposed
by U.S. Attorney General Black who asserted “the fact that in all this criminal folly and insolence,
he [Booth] has been aided, comforted and abetted by a state court and by other lawless persons
who pretend to justify him, makes the vindication of the law in this particular case absolutely
necessary by way of example.”
In his fourth annual message to Congress on December 3, 1860, President
Buchanan stated that the universal judicial acceptance of the constitutionality of the Fugitive Slave
Act of 1850 was marred only by the defection of the Wisconsin Supreme Court. That decision,
however, President Buchanan continued, “has not only been reversed by the proper appellate
tribunal, but has met with such universal reprobation that there can no longer be danger from it as
a precedent.”
On the day before President Lincoln’s inauguration, outgoing President Buchanan
pardoned Booth. *

* Sources utilized in this report are Winslow, The Story of a Great Court (1912). Beitzinger,
“Federal Law Enforcement and the Booth Cases,” 41 Marquette Law Review 7 (1957). Ranney,
“Molders and Shapers of Wisconsin Law;” Wisconsin Lawyer, March, 1993.

In a eulogy for Paine, Ryan recalled this case:

The first opportunity I had of forming an estimate of his high ability, was in the famous case under the
fugitive slave act, in 1854 and 1855. He was employed for the defendant; I, for the United States. We
both brought to the case, not only ordinary professional zeal, but all the prejudices of all our lives. He was
a frank and manly abolitionist. I was as decidedly what was called pro-slavery. We were both thoroughly
in earnest… I thought him a fanatic. He probably thought me one. Possibly we both were.

Attorney General ex rel. Bashford v. Barstow

4 Wis. 567 (1856)

This case established the independence of the Wisconsin Supreme Court (which was then in its
infancy) and also established the important principle that the Court has the power to construe
the state constitution. In a unanimous opinion, a three-justice panel entered a judgment
removing an incumbent governor from office. Chief Justice Edward V. Whiton wrote the
opinion.

The attorney general filed suit seeking to remove William Barstow, the Democratic
incumbent, from the office of governor. Although Barstow had been certified by the board of
canvassers as the winner (by a 157-vote margin) of the 1855 election, it was later discovered that
his victory was the result of fraudulent returns from nonexistent precincts.
The attorney general asserted that Coles Bashford, the Republican challenger and a former
state senator, had in fact won the election and that he, and not Barstow, was entitled to hold the
office of governor.
 Barstow claimed that the result of the canvass was conclusive and that the Supreme Court
did not have the authority to remove him from office. Barstow argued that the executive,
legislative and judicial branches of government were coordinate branches and that each was the
final judge of the election and qualification of only its own members. The Supreme Court
disagreed, saying under Wisconsin’s constitution and laws, it was the election to an office and not
the canvass of the votes that determined the right to the office. The court also held that it had the
same power to remove a person who had unlawfully intruded into the office of governor as it had
in case of intrusion into any other office.
Barstow also argued that the Supreme Court could not entertain a proceeding to remove a
sitting governor from office because such an action was without precedent. The Court rejected
this argument, saying, “Cases frequently arise from which no precise precedent can be found” and
“[n]ever before was a cause defended, or the jurisdiction of a court denied, on the ground that the
counsel had been unable to find any case exactly like it.”
Justice Smith, concurring, urged the court to look to the Wisconsin Constitution for
guidance:

I have felt bound to sustain that fundamental law – the constitution of the state,
according to its true intent and meaning. That is the great charter of our rights,
to which the humblest may at all times appeal, and to which the highest must at
all times submit. (emphasis added)

Let us then look to that constitution, adopted by the people of Wisconsin, and
endeavor to ascertain its true intent and meaning… . [L]et it be remarked, that
our conclusions must be guided and determined, not by theories of speculators
upon the science of government, not by the opinion of jurists of other states
reasoning upon philosophical abstractions or political postulates, but by the
plain, simple, but authoritative and mandatory provisions of our own
constitution. We made it ourselves. We are bound to abide by it, until altered,
amended or annulled… .

The people then made this constitution, and adopted it as their primary law.
The people of other states made for themselves respectively, constitutions
which are construed by their own appropriate functionaries. Let them construe
theirs – let us construe, and stand by ours.

The Court concluded that it did have jurisdiction to act in the matter. It further found that
Bashford was the duly elected governor of the state and it entered a judgment of ouster removing
Barstow from office.

Chamberlain v. Milwaukee and Mississippi Railroad Company

11 Wis. 248 (1860)

In an early effort to give rights to injured workers, the Wisconsin Supreme Court determined in
this case that an employer can be held responsible when the negligent actions of one employee
result in injury to another employee. Justice Byron Paine wrote the opinion. Justice Orsamus
Cole wrote a concurring opinion.
 Chamberlain, the plaintiff, was working as an express messenger for James Holton &
Company and was a passenger on a Milwaukee and Mississippi Railroad Company freight car
traveling from Milwaukee to Madison and back. Prior to departure, railroad Deputy
Superintendent Merrill asked Chamberlain (a minor) to act as brakeman for the trip. While
employed as brakeman he was thrown from the train and seriously injured as a result of the
negligent conduct of the engineer.
This case came before the Wisconsin Supreme Court twice. The first time, the Court
ordered a new trial. At that trial, the lower court sought to determine whether Chamberlain was,
at the time of his injury, a passenger or an employee of the railroad. The judge instructed the jury
that if it found Chamberlain was a passenger and if he was in an improper place for a passenger at
the time of the accident, “then the injury resulted from his own carelessness, and the defendant is
not liable.” The jury returned a verdict for the defendant. Chamberlain appealed.
The case came back before the Supreme Court. This time, the central issue was the
instruction the circuit judge gave to the jury at the second trial. Justice Paine wrote that the trial
judge’s refusal to instruct the jury that if Chamberlain was in an improper place for a passenger
because of a request from the company, then the company could be held liable, was “calculated to
mislead the jury.”
The Court also sought to determine whether an employee could recover damages from a
company for injuries caused by the negligence of another employee. While most other cases
regarding this issue found that the employee could not recover, Paine wrote that it was not the
Court’s duty to simply “count the cases on each side of a question,” but analyze the development
of the law. He wrote: “The great object of this common law principle is not to protect those in
one department against those in another, but to protect every one from injury by the negligence of
another.”
The Court dismissed the argument that prohibiting employees from recovering damages
for injuries caused by a colleague would encourage all employees to take more care in their
duties. Paine wrote that just the opposite was true, saying that employers, faced with such
liability, would hire the most qualified individuals to reduce the chances of an incident.
Justice Cole’s concurring opinion, agreeing that the circuit court improperly instructed the
jury, did not judge whether an employee could recover damages from an employer in this
situation. He wrote: “decisions upon that point … are quite unanimous that recovery could not
be had under such circumstances. But whether these decisions rest upon sound reason and an
enlightened public policy, I will not now undertake to say.”

In re Kemp
16 Wis. 382 (1863)

In this case, the Wisconsin Supreme Court ruled unanimously in favor of the petitioner, Nicholas
Kemp. Separate opinions were written by each justice: Chief Justice Luther S. Dixon, Justice
Byron Paine and Justice Orsamus Cole.
 In this case, the Wisconsin Supreme Court ruled that the president of the United States
could not suspend the writ of habeas corpus (which preserves one’s right to due process) for
civilians when martial law was not in effect.
Here are the facts: On November 10, 1862, during the Civil War, Nicholas Kemp and
others staged a riot in Port Washington (Ozaukee County). They allegedly destroyed draft
records and violently resisted the draft. Governor Edward Salomon requested that military troops
seize the men involved. Two days later, Kemp was arrested and imprisoned at Camp Randall.
On December 4, the Wisconsin Supreme Court issued a writ of habeas corpus to General
W. L. Elliot, commander of the Northwest Department, ordering him to bring Kemp before the
Court on December 16. The Court said that Kemp’s “riotous behavior,” if proven, violated state
law and therefore, only a civil or criminal tribunal could order his detention— making Kemp’s
military imprisonment illegal. Elliot responded with a letter to the Court claiming he held the
prisoner by order Number 1411*, issued by President Abraham Lincoln, which declared all those
offering “resistance to volunteer enlistments or militia draft” subject to martial law and made legal
the suspension of the writ of habeas corpus. The U.S. attorney general also wrote a letter to
support Elliot’s position.
Kemp, the petitioner, was represented by Attorney Edward G. Ryan (who later joined the
Wisconsin Supreme Court and served as chief justice from 1874-1880). The respondent chose
not to appear before the Court.
The Wisconsin Supreme Court addressed three main points in this case:
• the legality of a suspension of habeas corpus;
• state of law in Wisconsin (was martial law declared?) and
• the president’s power to change law.
Addressing the first issue, Chief Justice Dixon referred to Article I, Section 9 of the
Constitution** which states that a writ of habeas corpus cannot be suspended “unless when in
Cases of Rebellion or invasion the public Safety may require it.” He said that Kemp’s actions did
not endanger public safety, thus the suspension was illegal.
Justice Cole acknowledged that the president, by order of Chapter 201, Laws of the
United States, could call a militia draft, but could not declare “the act of discouraging enlistments
or resisting militia draft” subject to martial law. He further stated that allowing military
jurisdiction and suspending habeas corpus in this circumstance would “render void all the
guaranties of personal rights secured by the Constitution.”
Justice Paine, in a concurring opinion, said the “power to suspend the writ of habeas
corpus would naturally have been entrusted to the legislature, and not to the executive alone.”
Because of Wisconsin’s geographic distance from the “theater of war” and because civil
authorities were able to preserve the order, the Court unanimously agreed that the state was not

1
*
Order 141 (issued on September 24, 1862) said: “all persons discouraging volunteer enlistment, resisting militia
drafts, or guilty of any disloyal practice affording aid and comfort to rebels against the authority of the United
States, shall be subject to martial law, and liable to trial and punishment by courts martial or military commissions.
Second, That the writ of habeas corpus is suspended in respect to all persons arrested, or who are now or hereafter
during the rebellion shall be imprisoned in any fort, camp, arsenal, military prison, or other place of confinement.
By any military authority, or by sentence of any court martial or military commission.”
**
U.S. Constitution, Article I: “The Privilege of the Writ of Habeas corpus shall not be suspended, unless when in
Cases of Rebellion or invasion the public Safety may require it.”
under martial law. Since this was the case, military commanders had no authority to imprison
Kemp.
The Court also found that the president’s order, Number 141, changed the existing laws.
Paine wrote: “The power to issue the writ is given by law. It requires a law to change a law, and
the president cannot make a law.” The responsibility to change and write law rested then, as it
does today, in Congress; the president’s charge was to execute existing law, a distinction which
applied even in war time.
In his opinion, Paine also considered justifications made by the U.S. attorney general, who
argued that the president had the “political power” to “arrest those whom he believes to be friends
of and accomplices in the insurrection.” The attorney general wrote that the judicial branch,
having no “political power,” could not “take cognizance of the political acts of the president, or
undertake to reverse his ‘political decisions.’” Paine responded:

On the contrary, that matter [the writ of habeas corpus] was deemed of such vital importance that
the people regulated it in the fundamental law of their politics, and provided that “no person shall
be deprived of his life, liberty or property without due process of law.” The constitution knows no
“political” process, no political cause of imprisonment. There must be “a process of law,” a legal
cause of restraint. And the power to determine what is a legal imprisonment, and to discharge from
any that is illegal, is, except when the writ is suspended, a power conferred on the judicial
department.

While the Wisconsin Supreme Court ruled that the writ of habeas corpus could not
lawfully be suspended, they did not free Kemp. Hoping to avoid a clash between state and federal
government they instead issued their opinion, believing, as Cole stated: “They [federal authorities]
will undoubtedly review their action, or take such steps in the premises as may be consistent with
justice and public tranquillity.”
10/97
 Whiting v. Sheboygan & Fond du Lac Railroad Co.
25 Wis. 167 (1870)

This split decision established the important principle that a tax for a private purpose is invalid. In
an opinion by Chief Justice Luther S. Dixon, joined by Justice Orsamus Cole, the Supreme Court of
Wisconsin reversed a circuit court decision in favor of the defendant railroads. Justice Byron Paine
filed a dissent.

This case concerned the validity of an 1867 state law that allowed Fond du Lac County to
provide financial assistance for the completion of a railroad that linked the cities of Fond du Lac, Ripon
and Sheboygan. The railroad was to be owned by the named defendant and another, both private
companies. While the county would not be given ownership interest in the railroad lines or the
companies, it would be able, for a ten-year period, to require the railroads to carry wheat between
these locations. This was important for the local agricultural economy.
Specifically, the law allowed the county board to provide the companies with $150,000 (a
considerable sum at the time) if voters approved the expenditure on a referendum. The board could
then levy a tax on county residents to raise the funds.
A vote was held and voters approved the scheme. Then, the plaintiff (a county taxpayer)
challenged implementation of the plan. This person would apparently have gained nothing from the
wheat-hauling arrangement but would have to pay his share of the tax..
The two-member majority on the state Supreme Court held that this was not a legitimate
exercise of the government's taxing power.
While acknowledging that railroads are public entities in a limited sense because they have the
power of eminent domain (that is, authority to condemn private land in order to construct tracks), the
Court held that railroads otherwise are private corporations "in the fullest sense of the term." The fact
that they served a public purpose – as did, for example, steamboats and stagecoach lines -- did not
change their status. The majority suggested that this taxation scheme was "legal robbery, less
respectable than highway robbery."
In his dissent, Justice Paine labeled the ‘legal robbery’ comment "idle exaggeration." Paine
would have ruled that since the railroad lines would serve a public purpose, their "technical character"
as a private corporation should be ignored. He was significantly influenced by his perception of
railroads as the "great public highways of the world along which its gigantic currents of trade and travel
continually pour...the most marvelous invention of modern times."
Paine downplayed the railroads’ profit motive, calling their profit from operation of the lines
“comparatively petty and unimportant."
 Gillespie v. Palmer and others
28 Wis. 544 (1866)

In a unanimous opinion, the Supreme Court reversed the Milwaukee County Circuit Court. The
majority opinion was written by Justice Jason Downer. A concurring opinion came from Chief
Justice Luther S. Dixon Justice Orsamus Cole wrote a one-paragraph statement agreeing with
both Downer and Dixon.

In this case, the Wisconsin Supreme Court extended the right to vote to black residents of
the state.
The issue before the Court was whether a vote in a November 1849 general election truly
extended the right of suffrage to “persons of African descent” by amending Article III, Section 1
of the Wisconsin Constitution.* Voters in the November 1849 election had approved the question
of extending the vote to blacks by 5,265 in favor to 4,075 opposed.
However, when a black man (Gillespie) attempted to vote in the November 1865 general
election, election inspectors (Palmer and others) turned him away. They argued that the vote in
November 1849 which extended the franchise to black people was invalid.
They said the Wisconsin Constitution mandated that any single issue on the ballot in a
general election must be approved by a majority of all votes cast in that election. In other words,
if 100 people voted in the election, 51 would have to vote to extend the franchise to blacks. This
question had been approved by a majority of votes cast on this specific issue, but not by a
majority of all votes cast in the election. To continue the example of the 100 voters, perhaps just
60 of them answered the question on extending the vote to blacks. If the vote were 31 to 29,
Gillespie would argue that blacks won the right to vote, while Palmer and the other election
inspectors would argue that the question failed by not receiving at least 51 votes.
Gillespie, through his attorney, Byron Paine (a well-known abolitionist who had been a
justice of the Wisconsin Supreme Court from 1859 to 1864, and re-joined the Court in 1867),
argued that the election inspectors “wrongfully and illegally refused to receive the plaintiff’s vote,
or to deposit the same in the ballot box, for the sole reason that he was a person of African
descent.”
In his opinion, Justice Downer said it was obvious that the framers intended the vote to be
counted on each separate issue:

To declare a measure or law adopted or defeated – not by the number of votes cast directly for or
against it, but by the number cast for and against some other measure, or for the candidates for
some office or offices not connected with the measure itself, would not only be out of the ordinary
course of legislation, but, so far as we know, a thing unknown in the history of constitutional law.
It would be saying that the vote of every person who voted for any candidate for any office at such
election, and did not vote on the suffrage question, should be a vote against the extension of
suffrage.
11/14/97 AKT
12/4/97 AKT

*
This mandated that the only qualified voters were: white males, over the age of 21, residents of the state for one
year preceding any election, citizens of the United States or people who had declared an intention to become
citizens “and also certain persons of Indian blood.”
 Attorney General v. Chicago & Northwestern Railroad Company
35 Wis. 425 (1874)
This case which has become popularly referred to as Attorney General v. Railroad,
marked the beginning in this state of the great struggle between corporate power and privilege on
the one hand, and the people represented by the legislature on the other. At the time this case
arose, two railway corporations were operating in this state, the Chicago, Milwaukee & St. Paul,
and the Chicago & Northwestern companies. These two railroads covered practically the whole
state, but their headquarters were in adjoining states. Both railroad charters issued by the state
gave them full powers to regulate freight rates and passenger fares as they chose; thus, the
railroads could either make or break a community or locality by setting rates. Many in the state
began to share the view that railroad freight rates were exorbitant, arbitrary and discriminatory.
By the 1873 state elections, a coalition of democrats and reform republicans holding this view
were elected to the legislature when William Taylor was elected governor. This anti-railroad
legislature was elected on the platform advocating rate regulation. Accordingly, in 1874, the
legislature enacted a law fixing maximum freight rates and passenger fares charged by the
railroads of the state; this act, known as the “Potter Law” (named after the state senator from
Waushara County who had sponsored the bill, was supported and approved by Governor Taylor.
The Potter Law divided the railroads operating in the state into three classes,
according to volume of business. The law fixed maximum passenger rates per mile for each class,
divided freight into special classes, and fixed the maximum rates to be charged for the
transportation of each class. This law also created a three-member Railroad Commission with the
power to investigate the actual cost of the railroads, their gross and net receipts and indebtedness,
and to set schedules of maximum railroad freight rates between points within the state.
Both railroads quickly challenged the Potter Law on the ground that it changed the
terms of their charters and thus constituted an unconstitutional impairment of contract. Attorney
John C. Spooner, who later became a three-term U.S. senator from Wisconsin, represented the
railroads and persuaded a circuit court to hold the law unconstitutional; however, the Potter Act
was upheld in two cases brought in Wisconsin federal courts. Wisconsin Attorney General,
Andrew Scott Sloan, then brought the case that was to become known as the Attorney General v.
Railroads. He filed motions in the state supreme court asking for writs of injunction against both
railroad corporations to restrain them from charging greater passenger and freight rates than were
permitted under the Potter Law. However, before the question of the power of the legislature to
regulate rates could be resolved, the supreme court had to address two preliminary questions: (1)
the extent of the original jurisdiction of the supreme court and whether such original jurisdiction
covered a case like this; and (2) whether the framers of the state constitution when they listed the
writ of injunction in § 3 Art. VII of the Wisconsin Constitution with what were strictly
“prerogative writs” (i.e. affecting sovereignty of the state) like mandamus and habeas corpus,
intended to imbue the writ of injunction with the functions of a prerogative writ, or whether the
framers intended to leave the injunctive writ simply as a judicial writ or order issued by a court in
aid of a judgment.
The supreme court held that its original jurisdiction was properly invoked in this
case because the question was one affecting the sovereignty of the state, its franchises and
prerogatives. This opinion was one of the first to clarify the previously ill-defined field of the
original jurisdiction of the supreme court. This case extended the reasoning in Attorney General
v. Blossom, 1 Wis. 317 (1853) where the supreme court held that the power to issue writs
enumerated in the third clause of § 3 Art. VII of the Wisconsin Constitution was not merely to
enable the court to enforce the jurisdiction conferred upon it by other parts of the constitution,
but constituted a grant of jurisdiction to issue the writs mentioned in all proper cases. The
Railroad case also went beyond the decision in State ex rel. Bashford v. Barstow, 4 Wis. 567
(1856) which held that the court had original jurisdiction of the writ of quo warranto.
In addition to clarifying the scope of the supreme court’s original jurisdiction, the
opinion in the Railroad case as written by Chief Justice Edward G. Ryan was also viewed as a
landmark case granting the legislature power of control over corporations. Chief Justice Ryan’s
opinion pointed out that § 1 of Art. XI of the Wisconsin Constitution reserved to the legislature
the right to amend corporate charters at any time. The court held that this provision gave the
legislature broad powers over railroads, short of destroying their essential identity, and that the
Potter Law constituted an amendment of every railroad charter in the state. Chief Justice Ryan in
language that still resonates today, expressed concern that the law in general was not keeping
pace with the growth of the railroads and other technological changes in society. He noted that
“the difficulty arises probably from applying old names to new things; applying the ancient
definitions of private corporations to corporations of a character unknown when the definition
arose.” He asserted that it was essential for the state to preserve its right to control “great
corporations [which were] independent powers within the states ... baffling state order, state
economy, state policy.” 35 Wis. 567-68.
As an historical footnote, the legislature’s victory in the Railroad case was short
lived. In the 1875 election, Governor Taylor and many of the legislators in the reform coalition
were defeated. The next year, the new legislature stripped the Railroad Commission of its
regulatory powers. The new law merely required railroad rates to be “reasonable;” however, it
did not create any mechanism by which the state could enforce that provision. Under the new
law, the Railroad Commission became little more than an agency for collecting statistics and
information. *

• Sources utilized in this report are Winslow, The Story of a Great Court (1912).
• Ranney, Joseph, “Law and Railroads in Wisconsin,” Wisconsin Lawyer June, 1993.
• Hunt, R.S., Law and Locomotives (1958).
 Motion to admit Miss Lavinia Goodell to the Bar of this Court
39 Wis. 232 (1875)
and
Application of Miss Goodell
48 Wis. 693 (1879)

In a unanimous opinion, a three-justice panel determined that women should not be allowed to
practice law before the Supreme Court. Chief Justice Edward George Ryan wrote the opinion.
Three and a half years later, on appeal (Application of Miss Goodell), the Court voted 4-1 in
favor of admitting her. Justice Orsamus Cole wrote the majority opinion granting Goodell’s
admission, while Ryan dissented.

This case stands as a testament to the obstacles women faced in the 19th century as they
attempted to work in traditionally male professions. It focused on the state statute governing
admission to the bar. This statute (then and now) refers to a “person” being admitted to the bar
and uses the masculine pronoun throughout. It was up to the Supreme Court to determine
whether the statute was intended to prohibit the admission of women to the bar.
In November 1874, Rhoda Lavinia Goodell, a Janesville lawyer, was retained to represent
a widow in a probate matter. The case presented a novel question and Goodell eventually
appealed it to the Wisconsin Supreme Court. At the time, practice before the Supreme Court
required admission to a separate bar. Customarily, this admission was automatic for lawyers who
already had been admitted to the circuit court bar (as Goodell had); however, since Goodell was
the first woman to seek admission to the Supreme Court bar, her application was carefully
scrutinized.
As Chief Justice Ryan was well-known for his belief that a woman’s place was in the
home, Goodell watched him closely when the Court convened to hear oral argument on whether
to admit her to the bar. Later, she wrote that Ryan “bristled all up when he saw me, like a hen
when she sees a hawk, and did not recover his wonted serenity during my stay. It was fun to see
him! I presume I was the coolest person present.”*
In making Goodell’s case for admission to the bar of the Supreme Court, Assistant
Attorney General I.C. Sloan, a leading Janesville lawyer, made it clear that he was presenting an
argument prepared by Goodell. The argument for admission centered on three issues:
First, Goodell (through Sloan) demonstrated that state law did not exclude women from
admission to the bar. The statute in question referred to admission of a “person” and used the
male pronoun in the text; however, another statute provided that male pronouns in state laws
should be construed as extending to females as well.
Second, she showed that, based on an Illinois case, a Supreme Court’s discretion on
whom to admit should be based on what will promote the proper administration of justice.
Through Sloan, Goodell argued that the proper administration of justice “would be better

*
Letter of December 20, 1875
promoted by the admission of women to the practice of law than by their exclusion” for several
reasons:

1. a class of people cannot truly obtain justice in courts where its members are not
represented;
2. the inclusion of women would result in a combination of “the peculiar delicacy,
refinement and conscientiousness attributed to woman with the decision, firmness and vigor of
men”;
3. it was unfair to the community to curtail “free and wholesome competition of the best
existing talent” and
4. it was unjust to shut anyone with ability and interest out of a lucrative and honorary
profession.

Finally, Goodell showed that only Illinois and Washington, D.C. (in the Court of Claims)
had refused women admission to the bar. On the other hand, women had been admitted in Iowa,
Missouri, Michigan, Maine, the District of Columbia and federal district courts in Illinois and
Iowa.
In February 1876, the Court denied Goodell’s petition. Writing for the Court, Ryan said
that the Legislature’s use of the masculine pronoun in the statute indicated an intent that it should
apply only to men. Reading the statute to include women would, he wrote, lead to “judicial
revolution, not judicial construction.”
Ryan then added his thoughts on why women were not suited to practice law, discussing
“the peculiar qualities of womanhood, its gentle graces, its quick sensibility, its tender
susceptibility, its purity, its delicacy, its emotional impulses, its subordination of hard reason to
sympathetic feeling.” He summed up with:
(I)t is public policy to provide for the sex, not for its superfluous members; and not to tempt women from
the proper duties of their sex by opening to them duties peculiar to ours. There are many employments in
life not unfit for female character. The profession of law is surely not one of these.
When Goodell learned that she had lost the case, she focused on legislation as the next
step.** She worked to have a bill introduced that would prohibit gender-based denial of bar
admissions. The Legislature passed it on a voice vote and Governor Harrison Ludington signed it
on March 22, 1877.
Goodell’s second application for admission to the bar of the Wisconsin Supreme Court
was heard on April 22, 1879. Sloan again made the motion on her behalf and on June 18, the
Court issued an opinion granting her petition. Chief Justice Ryan dissented.
Goodell died the following March, at age 40.
12/97

**
Catherine B. Cleary, “Lavinia Goodell, First Woman Lawyer in Wisconsin.” Wisconsin Magazine of History
(summer 1991)
 Vassau v. Thompson
46 Wis. 345 (1879)

In a 3-2 ruling, the Wisconsin Supreme Court affirmed a Polk County Circuit Court decision..
Justice Orsamus Cole wrote the majority opinion and Chief Justice Edward G. Ryan wrote the
dissent.

This case shows a humorous side to the Court, and is an example of the type of cases the
courts handled in the 19th century.
The case focuses on the actions of the defendant’s dog, which chased the plaintiff’s cow
and bit its tail – resulting in its death. The jury found the defendant’s dog guilty of killing the cow
and ordered the defendant to pay $45, the value of the cow.
The defendant appealed, claiming there was no evidence that he had any prior knowledge
of his dog’s “mischievous disposition” and therefore he was not responsible for the animal’s
actions. He also argued the lawsuit should be dismissed because there was no cause of action,
meaning that the plaintiff had no legal right to sue.
The plaintiff’s attorney argued that the cause of action was the defendant’s alleged order
to his dog to chase the cow. The jury found that the evidence supported this claim.
The Supreme Court said that the complaint against the defendant was “defective,” but still
upheld the jury’s verdict since it was based on sufficient evidence.
In a colorful dissent, Chief Justice Ryan stated there was no evidence to suggest the dog
was acting on his master’s command. He wrote: “The subject of the complaint is a dog and a
cow, hereditary enemies since the days of the House that Jack built. But in this case, it was the
dog that killed the cow… .this dog presumably acquired a personal taste for oxtail.” Ryan stated
that it would be “a violent and irrational presumption” that an animal who had been trained to do
something (in this case, bite cow’s tails) would never “indulge in the vice for his own gratification,
without orders.”

11/97

Brown v. Phillips and others

 71 Wis 239 (1888)

In a unanimous opinion, the Supreme Court reversed the Racine County Circuit Court. Justice
John B. Cassoday wrote the opinion for the Court.

In this case, the Wisconsin Supreme Court declined to expand women’s right to vote. In
doing so, the Court ruled that Chapter 211 of the Laws of 1885 could not be broadly interpreted
to extend the rights of suffrage for women beyond school-related elections.*
Here are the facts of the case: Olympia Brown attempted to vote in a Racine municipal
election. On the ballot were candidates for mayor, city clerk, comptroller, alderman and
supervisor. Brown argued that these were positions pertaining to school matters and that,
therefore, women should be allowed to cast ballots.
The respondents (the election inspectors who refused to receive her vote) countered with
the argument that under Article III, Section 1 of the Wisconsin Constitution only citizens who
were male and at least 21 years old were allowed to vote.** The Court disagreed. Justice
Cassoday wrote: “(T)he language is not ‘that the legislature may at any time extend, by law, the
right of suffrage to’such other ‘male’persons or classes having the general qualifications
mentioned, but ‘to persons [emphasis in original] not herein enumerated.”
But the Court declined to interpret the statute broadly, as the petitioner requested. The
justices asserted that they had “no power to grant suffrage to any one . . .To attempt, . . .to
extend the act to objects beyond its purpose, would be nothing less than the usurpation of powers
not only belonging to the legislature but to the qualified electors of the state.”
The Court then examined the legislative history preceding the passage of the bill. At the
same time that the statute governing who would be allowed to vote was working its way through
the Legislature, a bill to extend the right of suffrage to women was defeated. The Court stated it
did not believe it possible that the same body could, on the same day, take two completely
antithetical stands on women’s suffrage. Therefore, the Court concluded, “we are necessarily
forced to the conviction that it was never intended thereby to extend an unlimited right of suffrage
to women.”
10/97

*
Chapter 211 of the Laws of 1885 gave women the right to vote in elections “pertaining to school matters.”
**
 State ex rel. Weiss and others vs. District Board, etc.
(aka Edgerton Bible case)
76 Wis. 177 (1890)

In an unanimous opinion, the Wisconsin Supreme Court reversed the Rock County Circuit Court.
The opinion was written by Chief Justice William P. Lyon. Concurring opinions were issued by
Justices John B. Cassoday and Harlow S. Orton.

In this case, which came to be known as the Edgerton Bible case, the Wisconsin Supreme
Court determined that Bible reading in public schools is unconstitutional.
The Court ruled that this constitutes sectarian instruction, in violation of Article X,
Section 3* and Article I, Section 18** of the Wisconsin Constitution.
The issue was brought before the Court after the petitioners— Edgerton residents,
taxpayers and parents of children attending the public school— appealed to the district school
board and Rock County Circuit Court without success. They were outraged by some teachers’
practice of reading the King James version of the Bible to pupils during school hours. The
readings were not followed by comment or instruction. As members of the Roman Catholic
Church, they viewed the King James version of the Bible as an incorrect and incomplete
translation. They also believed the Catholic Church was the only “infallible” interpreter of the
scriptures and feared the reading of the Bible by non-authorized teachers could lead to
“dangerous errors.”
Because the Edgerton school was a public school, the parents argued that the Bible
readings amounted to use of state funds to support a place of worship and that the readings
violated the separation of church and state.
Responding to the petitioners’concerns, the school board said students were not required
to remain in the school during the Bible readings, but rather were “at liberty to withdraw during
such reading if they desire to do so.” They also denied that the Roman Catholic Church is the
only “infallible” interpreter of the Bible, stating “that every person has the right to read the Bible
and interpret it for himself.”
The board also argued that the Bible was used as a “textbook” for teaching a “universal”
moral code and for general instruction. The board said it had the right and authority, under state
law, to determine which textbooks should be used and that the King James Bible was a valid
textbook because the state superintendent of public instruction recommended it for use in public
schools.
Chief Justice Lyon’s majority opinion addressed the board’s argument that the drafters of
the state Constitution did not intend to ban reading of the Bible in public schools. Lyon
recounted the period and climate in which the Constitution was drafted. He suggested that the

*
Wisconsin Constitution, Article X, Section 3: The legislature shall provide by law for the establishment of district schools,
which shall be as nearly uniform as practicable; and such schools shall be free and without charge for tuition to all children
between the ages of 4 and 40 years; and no sectarian instruction shall be allowed therein; but the legislature by law may, for the
purpose of religious instruction outside the district schools, authorize the release of students during regular school hours.
**
Wisconsin Constitution, Article I, Section 18: The right of every person to worship Almighty God according to the dictates of
conscience shall never be infringed; nor shall any person be compelled to attend, erect or support any place of worship, or to
maintain any ministry, without consent; nor shall any control of, or interference with, the rights of conscience be permitted, or
any preference be given by law to any religious establishments or modes of worship; nor shall any money be drawn from the
treasury for the benefit of religious societies, or religious or theological seminaries.
framers were eager to see the state develop and grow; therefore, the intent of the Constitution,
and Article X, Section 3 in particular, was to ensure that:
(I)n addition to the guaranties of the right of conscience and of worship in their own
way, the free district school in which their children were to be, or might be, educated,
were absolute common ground, where the pupils were equal, and where sectarian
instruction, and with it sectarian intolerance, under which they had smarted in the old
country, could never enter.

Lyon further stated that it is “universally known” that there is a difference between the
King James and the Douay (adhered to by the Roman Catholic Church) versions of the Bible in
that many details representing important components of various religious sects’canons differ.
Furthermore, certain passages read at the Edgerton school suggest the divinity of Jesus Christ,
predestination and eternal punishment. These ideas are not accepted by all religious sects, thereby
showing Bible reading as sectarian instruction.
Justices Cassoday’s and Justice Orton’s concurring opinions considered whether the
reading of the Bible in public school forced taxpayers to support a place of worship and addressed
the issue of the separation of church and state. They agreed with the petitioners that the only use
of state treasury funds, by law, must be entirely secular. They stated that many, if not most,
religious sects view the reading of the Bible as a part and even the essence of worship, therefore
the practice in question is a violation of the Wisconsin and U.S. Constitutions.
The Supreme Court concluded that even though the State Department of Public
Instruction recommended the King James Bible as a textbook, the issue was a question of law, not
to be decided by the “learned chiefs” of educational policy. They ruled that Bible reading in
public schools is illegal and issued a writ of mandamus, ordering the district board to end Bible
reading in the Edgerton public school.

10/97
 The State ex rel. Attorney General v. Cunningham
81 Wis. 440 (1892)
and
The State ex rel. Lamb v. Cunningham
83 Wis. 90 (1892)

From the time Wisconsin gained statehood, there have been various power struggles between the
three branches of government. These cases involved a dispute between the Wisconsin Supreme
Court and the Legislature. The Supreme Court held that that an act to apportion and district the
members of the state Senate and Assembly was unconstitutional. The first decision was
unanimous and Justice Harlow S. Orton wrote the opinion. In the second case, a split court
reaffirmed the principles set forth in first decision. Justice John B. Cassoday wrote the majority
opinion. Justice John B. Winslow dissented.

In these cases, the court outlawed “gerrymandering,” which is creating legislative districts
to preserve partisan political advantage.
Article IV of the Wisconsin Constitution provides that every ten years the Legislature shall
“apportion and district anew” the members of the Senate and Assembly, according to the number
of inhabitants in each district. Assembly districts are to be bounded by county, precinct, town or
ward lines, to consist of contiguous territory (that is, a block of land rather than islands here and
there) and be as compact as practicable. Senators are to be elected by single districts of
convenient contiguous territory. No Assembly district may follow the same exact lines as a
Senate district.
In the first case, the attorney general appeared on behalf of the state to ask the Court to
stop the secretary of state from giving the notices of the election for members of the Senate and
Assembly under the new apportionment act. The attorney general argued that the apportionment
act violated the constitutional provisions discussed above because:
• districts were not drawn according to the number of inhabitants;
• many Assembly districts were not bounded by county, precinct, town, or ward lines;
• many districts were not as compact as practicable and
• some Senate districts did not consist of convenient contiguous territory.
The lawyer representing the secretary of state argued that the attorney general had no
authority to challenge the law and that only a person who has suffered an actual injury to himself,
his property or rights may make such a challenge. The attorney general argued that the question
involved was one of public right in which all the citizens of the state were concerned and that the
person bringing the suit need not have any individual or private interest.
The Supreme Court concluded that since the issues raised were of public right, the case
was appropriately brought by the attorney general. It then found the act unconstitutional.
After the first decision, the Legislature reconvened and passed another apportionment law.
This time, a private citizen asked the Supreme Court to stop the secretary of state from giving
notice of the election.
The majority of the court held that the private citizen had a right to bring the action and
that the apportionment law was again unconstitutional. While the first law had formed assembly
districts that crossed county lines, the second law created districts with a significant disparity in
population. The majority explained:

The requirement that assembly districts must be as nearly equal in population

as the other constitutional provisions will permit is just as applicable to two or
more assembly districts in a single county as to an assembly district composed
of two or more counties. While the act here in question in the main conforms to
those requirements of the constitution which prevent equality of representation,
yet it almost wholly disregarded the only constitutional requirement particularly
designed to secure such equality as near as practicable. (emphasis added)

Justice Winslow dissented, saying he would conclude that the private party who brought
the suit had no right to sue because he had suffered no wrong as a result of the law. He also said
he did not believe the disparity in population between the districts was significant enough to
render the act unconstitutional. Winslow said he feared the Court was entering into a period in
which the Legislature would keep enacting laws and the Court would keep striking them down.
He wrote: “By the time this process has been repeated several times more, it will be a serious
question whether the law finally resulting is the offspring of the legislature or of the court… . Has
not the court in fact made the law, and thus invaded the province of its co-ordinate branch of the
government?”
 Nunnemacher v. State
129 Wis. 190 (1906)

The Wisconsin Supreme Court found for the respondent, the State of Wisconsin, in this case.
Justice John B. Winslow wrote the majority opinion and Justice Joshua Eric Dodge and Chief
Justice John B. Cassoday filed dissenting opinions.

In this case, the Court upheld the state’s right to tax inheritances, distinguishing itself from
many courts across the nation.
Nunnemacher had filed a complaint against the state, asking the Court to order
reimbursement for the amount of tax he paid on an inheritance. He argued that Chapter 44 of the
Laws of 1903*, which gave the state the authority to tax inheritances, was unconstitutional.
The Court had previously dealt with this issue in Black v. State*, but in that case found the
statute unconstitutional. However, the basis for that decision was that the law discriminated in its
classifications of who was, and was not, taxed.
In Nunnemacher, the Court did not question the belief that property rights were inherent
and protected by the government; however, it did question the assertion that inheritance taxes
were forbidden. The Court asserted that the inheritance tax was based on the right of
governments to regulate and tax certain transactions.
The petitioner argued that the Wisconsin Constitution only allowed for taxes to be
collected on property. Justice Winslow, writing for the Court, noted that the issue of whether
only property was taxable had not been dealt with previously: “it seems strange that,
notwithstanding the lapse of nearly three score years since the adoption of the Constitution, this
question has never been authoritatively decided in Wisconsin.” Examining records from the state
constitutional convention, the Court found that the framers did not intend to prohibit an
inheritance tax.
The Court also dealt with the issue of whether Chapter 44 of the Laws of 1903 provided
for the levying of taxes in a discriminatory manner. For discrimination to be justified, the Court
said, there must be a real basis for the different classifications. For example, the Court said, no
one would argue that a case involving the inheritance of a “wife or daughter deprived by death of
the care and support of her natural protector” called for the same treatment as a case arising from
the inheritance of a distant relative. The Court found that the classification in this law was not
unjustly discriminatory.
Justice Marshall wrote in his dissenting opinion that he believed the classifications to be
unjustly discriminatory. He wrote: “Nothing seems to me more an outrage upon equal rights than

*
Wis. Stat. ch. 44 (Laws of 1903) dealt with the tax rate which was determined based on the property value of the
inheritance: “(1.) Upon all in excess of twenty-five thousand dollars and up to fifty thousand dollars one and one-
half the primary rates. . . [in exemptions section] (2.) Property of the clear value of ten thousand dollars
transferred to the widow of the decedent, and two thousand dollars transferred to each of the other persons
described in the first division of section two shall be exempt.” These included brothers, sisters, nieces, nephews,
daughters-in-law, and sons-in-law of the deceased.
*
113 Wis. 205
discrimination by the law in favor of or against either the poor or the rich by reason of that fact,
and nothing seems more to threaten the permanence and safety of society.”
12/97
 Borgnis and others v. The Falk Company
147 Wis. 327 (1911)

In this case, the Wisconsin Supreme Court reversed a ruling of the Milwaukee County Circuit
Court. The majority opinion was written by Chief Justice John B. Winslow. Justices John
Barnes and Roujet D. Marshall wrote concurring opinions.

In this case the Wisconsin Supreme Court unanimously upheld the constitutionality of the
Workers Compensation Act of 1911.
The respondents in the case (Borgnis, et al) were employed in supervisory positions at
Falk Co., a Milwaukee manufacturing company. Falk argued that although workplace safety
conditions needed to be improved, the Act should not be extended to include people who were,
like Borgnis, working in “non-hazardous trades.” The Court disagreed.
Adding 32 sections to the Wisconsin Statutes, the Workers Compensation Act outlined,
Chief Justice Winslow wrote:
(A) way by which employer and employed may, if they so choose, escape entirely from that very
troublesome and economically absurd luxury known as personal injury litigation and resort to a system by
which every employee not guilty of willful misconduct may receive at once a reasonable recompense for
injuries accidentally received in his employment under certain fixed rules, without a lawsuit and without
friction.

Justice Marshall agreed on the value of the new law, writing:

May it (the legislation) be the beginning of a well rounded out constitutional system making every one
who consumes any product of labor for hire pay his proportionate amount of the cost of the creation
representing the personal injury misfortunes of those whose hands have enable him to secure the objects of
human desire…

Among other things the Act stated that all injured parties must have an examination by a
physician, upon the employer’s request. The Act also clearly spelled out the definition of an
employee.
Winslow stated that the Workers Compensation Act was a legislative response to a public
demand to meet or remedy a problem brought on by modern industrialism. Marshall said the
Legislature had intended to induce employers to voluntarily “become parties to the new system
designed to better conserve human life and human happiness.” The Court’s role, the justices
emphasized, was simply to determine if any provisions of the Act violated the Constitution.
12/97
 Wait v. Pierce
191 Wis. 202 (1926)

In a 4-3 ruling, the Wisconsin Supreme Court reversed the Winnebago County Circuit Court.
Justice Marvin B. Rosenberry authored the majority opinion and Justice Franz C. Eschweiler
wrote the dissent.

In this case, the Wisconsin Supreme Court broadly interpreted a state statute to grant
married women the right to sue their husbands.
The case arose when the plaintiff, Mathilda Wait, sued two defendants - Pierce and
Borenz - for injuries that resulted from negligent operation of a car. The car was driven by an
employee of Pierce and Borenz.
The defendants wanted Wait’s husband, George Wait, to be held liable for her injuries
because he had also been found to be partly responsible for the accident; however, the circuit
court ruled that Wait could not bring legal action against her husband to redress injuries caused by
his negligence. The case was dismissed and Pierce and Borenz appealed the summary judgment to
the Wisconsin Supreme Court.
The key issue for the Court was whether state law permitted a wife to sue her husband for
injuries. The justices noted that this was a novel issue and involved interpreting the scope of the
Amendment of 1881* which granted married women the right to legal action in the case of injury.
The Court first noted that there was no exception to the rule outlined in the statute. Citing
Chapter 17 of the Laws of 1905 and Chapter 529 of the Laws of 1921, the court concluded that
the Legislature intended to place women and men, regardless of their marital status, equal before
the law.*
In Thompson v. Thompson, supra*, the U.S. Supreme Court wrestled with similar issues
and reached a different result; however, the Wisconsin Supreme Court found that the reasoning of
the U.S. Supreme Court did not apply to the set of facts in this case.
In his dissent, Justice Eschweiler argued that the intent of the law was not to do away with
the “firmly established and well recognized common law rule” which prohibited spouses from
suing each other. He warned that the implications of the majority decision went far beyond what
was intended by the statute and argued that Chapter 539 of the Laws of 1921 should have been

*
Wis. Stat. ch. 99 (Laws of 1881): “And any married woman may bring and maintain an action in her own name
for any injury to her person or character the same as if she were sole, and any judgment recorded in such action
shall be the separate property and estate of such married woman, provided that nothing herein contained shall
affect the right of the husband to maintain a separate action for any such
*
Wis. Stat. ch. 17 (Laws of 1905) gave married women the right to maintain an action against a third person “for
the alienation of her husband’s affections and the loss of his society.” Chapter 529 of the Laws of 1921 (sec. 6.015
Stats.) states: “Women shall have the same rights and privileges under the law as men in the exercise of suffrage,
freedom of contract, choice of residence for voting purposes, jury service, holding office, holding and conveying
property, care and custody of children, and in all other respects. The various court, executive and administrative
officers shall construe the statutes where the masculine gender is used to include feminine gender unless such
construction will deny to females the special protection and privileges which they now enjoy for the general
welfare. The courts, executive and administrative officers shall make all necessary rules and provisions to carry
out the intent and purpose of this statute.
*
Thompson v. Thompson, supra, 218 U.S. 611, 31 Sup. Ct. 111
interpreted to create new rights for women but rather to remove barriers to the exercise of
previously established rights.

11/97
 John F. Jelke Co. v. Emery
193 Wis. 311 (1927)

In this case, the Wisconsin Supreme Court unanimously affirmed the ruling of Judge August C.
Hoppman, Dane County Circuit Court. Justice Marvin B. Rosenberry wrote the opinion.

In this case, the Wisconsin Supreme Court ruled that making and selling margarine was
legal.
This decision voided Chapter 279, Section 352.365 of the Laws of 1925* which had
prohibited the manufacture and sale of a butter substitute containing milk fats (known as
oleomargarine or oleo) in Wisconsin.
Emery was dairy and food commissioner for Wisconsin. Arguing that it was his duty to
enforce the provisions of Chapter 279, he petitioned the Court to prohibit the respondent, John F.
Jelke Company, from producing and selling oleo in the state.
Justice Rosenberry’s majority opinion called Chapter 279 an “exercise of the police
power” in that it prohibited the operation of a legitimate business and the sale of a product widely
accepted as wholesome. He stated that “prohibition can only be justified upon the ground that it
is necessary in order to protect the public health, public morals, public safety, prevent fraud, or
promote public welfare.” Rosenberry referenced numerous cases offering evidence that
oleomargarine was accepted as a “nutritious, wholesome, healthful food” which did not endanger
public health or safety.
Futher, while the Court agreed that oleo was a substitute for butter, it determined that the
oleomargarine industry marketed and sold the product based on its own merits— showing no
evidence of fraudulent activity. Rosenberry wrote that there was “certainly no question of
morals” regarding this issue.
Considering the petitioner’s argument that the sale of oleomargarine created “unfair
competition” for Wisconsin’s dairy industry, Rosenberry concluded that:
From the standpoint of constitutional right the legislature has no more power to prohibit the
manufacture and sale of oleomargarine in aid of the dairy industry than it would have to prohibit
the raising of sheep in aid of the beef-cattle industry or to prohibit the manufacture and sale of
cement for the benefit of the lumber industry.

The Supreme Court determined that prohibiting the sale of oleomargarine was to the
“advantage to a particular class of citizens and to the disadvantage of others.” Therefore, the
Court said it had a duty to nullify the “oppressive acts” of legislation.

11/97

*
Wis. Stat. ch. 279, sec. 352-365 (Laws of 1925): “It shall be unlawful for any person, firm or corporation, by
himself, his servant or agent, or as servant or agent of another, to manufacture, sell or solicit or accept orders for,
ship, consign, offer or expose for sale or have in possession with intent to sell, any article, product or compound
which is or may be used as a substitute for butter and which is made by combining with milk or milk fats or any of
the derivatives of either any fat, oil or oleaginous substance or compound thereof other than milk fat.”
 State ex rel. Drankovich v. Murphy
248 Wis. 433 (1945)

In this case, the Wisconsin Supreme Court, by a vote of 4-2, vacated a judgment and sentence of
the Marinette County Circuit Court. Justice Chester A. Fowler wrote the majority opinion and
Justice Edward T. Fairchild wrote the dissent. Justice James W. Rector did not participate.

In this case, the Wisconsin Supreme Court strengthened the right to legal counsel of
defendants in criminal cases by clarifying what trial judges must do in order to protect that right.
The Court said the judge must provide a defendant with a lawyer— at public expense if necessary
-- even if he or she does not request one. Further, the Court said that the defendant must be made
aware of his or her right to have a lawyer.
This is especially imperative, the Court said, where the defendant is poor, illiterate,
unacquainted with legal proceedings and isolated from friends and family. The Court said due
process, as provided in the 14th Amendment* to the U.S. Constitution, requires this.
In this case, Victor Drankovich, an immigrant from Poland who spoke very little English,
pleaded guilty to murdering Stanley Skibinski on December 26, 1934 and was sentenced to life in
prison on January 5, 1935. The judge did not specifically inform him of his right to counsel. On
the day of his sentence, Drankovich told the judge: “I don’t mean to kill (the victim) that day… I
was happy.”
After his sentence, Drankovich filed a petition for a writ of habeas corpus, asking the
Wisconsin Supreme Court to free him on the grounds that he had been tried and convicted
without a lawyer and had not been made aware that he was entitled to legal counsel.
The Court referred the case to Judge S.E. Smalley of the fifth circuit to determine the
circumstances under which the guilty plea was entered and sentence imposed. Judge Smalley
considered the evidence and took testimony from the murder victim’s wife on Drankovich’s
ability to speak and understand English. He found that Drankovich did not “intelligently waive”
the right to counsel.
With all the facts before them, the justices of the Supreme Court determined that the trial
judge should have refused to accept the guilty plea and instead should have appointed counsel at
public expense for Drankovich. The majority wrote: “It is true that the petitioner was by no
means feeble-minded, but he was, through ignorance of the law and illiteracy, utterly incapable of
making his own defense.”
The dissenting justices argued that Drankovich had been sufficiently advised of his rights,
noting that the trial judge initially refused to accept his guilty plea and appointed an interpreter to
confer with him. Justice Fairchild wrote: “The evidence satisfies me that he understood not only
the nature of the crime he committed but the consequences of his waiver of a trial and of his
pleading guilty.”
The Court (with two justices dissenting) vacated the judgment and sentence and ordered
that Drankovich be given a new trial.
10/97

*
U.S. Constitution, 14th Amendment: “… nor shall any State deprive any person of life, liberty, or property,
without due process of law… ”
 State v. Yoder
49 Wis. 2d 430 (1971)

The Wisconsin State Supreme Court reversed a Green County Circuit Court decision. The
majority opinion was authored by Chief Justice E. Harold Hallows. Justice Connor T. Hansen
concurred and was joined by Justices Horace W. Wilkie, Bruce F. Beilfuss and Robert W.
Hansen. Justice Nathan S. Heffernan dissented. The case was appealed to the U.S. Supreme
Court, which affirmed the state Supreme Court’s ruling in a 6-1 decision authored by Chief
Justice Warren E. Burger. Justice William O. Douglas dissented in part from the majority.
Justices William H. Rehnquist and Lewis F. Powell, Jr. did not take part in the case.

In this case, the Wisconsin Supreme Court held (distinguishing itself from other state
courts) that Amish parents could remove their children from public schools after the 8th grade as
an exercise of their right to religious freedom. The Amish separate themselves from modern
society and provide their children with their own system of education structured in accord with
their beliefs.
The appellants were the parents of three teenagers who had attended the New Glarus
public schools. The parents were fined for refusing to enroll the children in the high school in the
fall of 1968. This was in violation of the compulsory school law.* The respondent, the state of
Wisconsin, argued that the state had a legitimate interest in compelling children to attend school
and that this outweighed the interference with religious freedom.
In making its decision, the Court weighed the appellants’constitutional right to religious
freedom* against the state’s interest in compulsory education. In determining how heavy a burden
the statute placed on the Amish, the Court considered the beliefs of the Amish religion. Justice
Hallows wrote:

The period of adolescence is critical in the religious and cultural development of the child because at this
time the child enters gradually into the fullness of Amish life, is given responsibilities which would be
directly interfered with if he were compelled to go to high school . . To the Amish, secondary schools. . .
teach an unacceptable value system . . . We view this case as involving solely a parent’s right of religious
freedom to bring up his children as he believes God dictates.

The Court then looked at whether the state’s interest was compelling in this case. The
state argued that some Amish children may choose to leave their community upon reaching
adulthood, but forcing a “worldly” education on all Amish children, the Court determined, in
order to benefit the few children who might later leave, did not constitute a compelling state
interest.

*
Pertinent sections of Wis. Stat. sec. 118.15 are quoted in the Wisconsin Supreme Court decision: “(1) Unless the
child has a legal excuse, any person having under his control a child between the ages of 7 and 16 years shall
cause such child to attend school regularly, during the full period and hours, religious holidays excepted, that the
public or private school in which such child should be enrolled is in session, to the end of the school term, quarter
or semester of the school year in which he becomes 16 years of age.”
*
U.S. Constitution, First Amendment: “Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof . . .”
 Furthermore, while an individual is free to choose a religion as an adult, the Court ruled
that parents have the right to choose what religion they will raise their children. The state, the
Court declared, should not infringe on this right by enforcing educational requirements.
In closing, the Court articulated its belief in the importance of the guarantees of the First
Amendment, including: free speech, freedom of the press and freedom of religion. Hallows
wrote: “the right to worship your God or to practice your religious beliefs are as important as the
right to speak or print freely and may, to the individual involved, be more important.”
In Justice Heffernan’s dissent, he asserted that the majority had misinterpreted the facts of
the case. He wrote that the state did demonstrate a compelling interest and
he pointed out that the appellants had alternatives to sending their children to public school.
Other states had dealt with this issue and the Amish in these states established their own private
schools to satisfy compulsory education requirements. Heffernan was particularly concerned
about the rights of Amish children. He argued that under the majority opinion the state was not
preparing Amish youth for “modern American life.” He wrote:

On the basis of the religious beliefs of their parents, the Amish children are without a hearing consigned
to a life of ignorance - blissful as it may seem to the author of the principal opinion, who apparently views
the Amish as ‘the noble savage,’ uncorrupted by the world . . . No part of our law requires a student to go
to a school not of his own religious choice. It merely requires that he go to a school.

The case was appealed to the U. S. Supreme Court. The U.S. Court affirmed the state
Supreme Court, declaring that the state’s interest in education is not exempt from a “balancing
process” when dealing with fundamental rights. The U.S. Court agreed that the Amish
demonstrated that continuing their children’s education beyond the 8th grade would hinder the
exercise of their religious beliefs.
 State v. Stevens
123 Wis. 2d 303 (1985)

In the 1980s and 1990s many cases have come to the courts challenging the validity of a search
or seizure under the federal and state constitutions. In this case, the Wisconsin Supreme Court
on a 4-3 vote affirmed in part and reversed in part a decision of the Court of Appeals. Justice
Roland B. Day wrote the majority opinion and Chief Justice Nathan S. Heffernan wrote the
dissent. The case originated in Milwaukee County Circuit Court.

In this case, the Supreme Court determined that there is no reasonable expectation of
privacy in curbside garbage. And under the facts of this case, the Court said this includes garbage
obtained by a garbage collector who is working as a secret agent of the police and collects the
garbage for the sole purpose of turning it over to authorities.
The defendant, David Stevens, was under investigation for suspected drug activities. A
deputy from the Milwaukee County Sheriff’s Department wanted to search Stevens’garbage for
drug-related evidence. The deputy told the municipal garbage collector to bring Stevens’garbage
to him after the next scheduled pickup.
On the day that the garbage collector normally picked up Stevens’trash, he found the cans
empty and knocked on Stevens’door to ask for his garbage. Stevens did not know that the
collector was acting on behalf of the deputy. Stevens opened his garage door and let the collector
take the garbage from inside. The collector picked up four garbage bags and left. He then gave
them to the deputy to search.
The deputy found enough evidence in the garbage bags to obtain a search warrant for
Stevens’home. Cocaine, marijuana, drug paraphernalia and money in the home led to Stevens’
arrest. He was charged with possession of cocaine with intent to deliver and possession of
marijuana with intent to deliver.
The defendant claimed that searching his garbage was unlawful and, therefore, the warrant
to search his house (which was based on the evidence found in the garbage) was improperly
given. The trial court, Court of Appeals and Supreme Court all disagreed.
The Supreme Court found that the seizure and search of the defendant’s garbage did not
violate his rights under the U. S. or Wisconsin Constitutions.* Justice Day wrote:

(B)ecause there is no reasonable expectation of privacy in garbage that is removed by municipal garbage
collectors in routine collection, the defendant had no reasonable expectation of privacy in garbage which
was removed by the municipal collector pursuant to his consent.

Dissenting, Chief Justice Heffernan wrote:

It is difficult to believe that anyone would seriously contend that there is not a reasonable expectation of
privacy in garbage against the prying eyes of government… Almost all the intimate details of one’s
personal life may be revealed by what is placed in the trash, including personal matters which would cover

*
U. S. Constitution, Fourth Amendment and Wisconsin Constitution, Article 1, Section 11: “The right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.”
 the gamut from how one’s alimentary canal functions to the brand or quantity of liquor consumed in the
household.

Furthermore, Heffernan wrote, people must dispose of garbage. Since they know that the
purpose of garbage collection is destruction, it is reasonable, he wrote, that people have an
expectation of privacy and an expectation that the garbage will be handled in the usual manner,
without interception by state agents.

12/97
 State v. Mitchell
169 Wis. 2d 153 (1992)

This case illustrates legislative action against bigotry and the possible conflict between such
laws and the free speech guarantees of the federal and state constitutions. In an opinion
authored by Chief Justice Nathan S. Heffernan, the Wisconsin Supreme Court reversed a
decision of the Court of Appeals by a 5-2 vote. Justices Shirley S. Abrahamson and William A.
Bablitch wrote separate, dissenting opinions. The U. S. Supreme Court reviewed the case and
reversed the majority opinion.* The case originated in Kenosha County.

In this case, the Wisconsin Supreme Court declared unconstitutional a state statute which
enhanced the penalty a defendant could receive if the victim was selected on the basis of race,
religion, color, disability, sexual orientation, national origin or ancestry.** The U.S. Supreme
Court reversed that decision.
On October 7, 1989, Todd Mitchell, who was 19, was socializing with friends at an
apartment complex in Kenosha. The men were discussing a scene from the movie “Mississippi
Burning” in which a white man beats a young black boy who is praying. Mitchell asked the
group: “Do you all feel hyped up to move on some white people?” A short time later, a 14-year-
old white boy walked by the apartment complex. Mitchell counted to three and pointed at the
victim. The group beat him severely and stole his tennis shoes. He spent four days in a coma and
possibly suffered permanent brain damage.
Mitchell was convicted of aggravated battery, party to a crime. Because the jury found
that he had selected the victim on the basis of race, the hate crimes statute kicked in and the
maximum sentence jumped from two years to seven. Mitchell received a four-year sentence.
Mitchell appealed, focusing on the constitutionality of the hate crimes statute. The Court
of Appeals affirmed the trial court, finding the hate crimes statute to be neither overly broad nor
vague.
At the state Supreme Court, Chief Justice Heffernan wrote for the majority:

The hate crimes statute violates the First Amendment* directly by punishing what the legislature has
deemed to be offensive thought and violates the First Amendment indirectly by chilling free speech… A
statute specifically designed to punish personal prejudice impermissibly infringes upon an individual’s
First Amendment rights, no matter how carefully or cleverly one words the statute… Punishment of one’s
thought, however repugnant the thought, is unconstitutional.

In her dissent, Justice Abrahamson (who became chief justice of the Court in 1996) noted
that the case presented a difficult question in that it brought together three competing societal
values: freedom of speech, equal rights and protection against crime.

*
Wisconsin v. Mitchell, 508 U.S. 476 (1993)
**
Wis. Stat. sec. 939.645 (1989-1990)
*
U.S. Constitution, First Amendment: “Congress shall make no law… abridging the freedom of speech… ” (The
Wisconsin Constitution contains a similar provision in Article I, Section 3: “Every person may freely speak, write
and publish his sentiments on all subjects… ”
 Abrahamson disagreed that the statute punished abstract beliefs or speech, writing:
“Bigots are free to think and express themselves as they wish, except that they may not engage in
criminal conduct in furtherance of their beliefs.” She also wrote:

The state’s interest in punishing bias-related criminal conduct relates only to the protection of equal rights
and the prevention of crime, not to the suppression of free expression. The enhanced punishment justly
reflects the crime’s enhanced negative consequences on society. Thus interpreted the statute prohibits
intentional conduct, not belief or expression. The only chilling effect is on lawless conduct.

In his dissent, Justice Bablitch called the hate crimes statute “a law against discrimination
– discrimination in the selection of a crime victim.” Bablitch pointed out that numerous state and
federal laws exist which prohibit discrimination in the selection of, for example, who is to be
hired, fired or promoted. “Yet,” he wrote, “the majority says one is constitutional, one is not. I
submit it is pure sophistry to distinguish the two. In its effort to protect speech, the majority’s
constitutional pen gets too close to the trees and fails to see the forest.”
Writing for the U.S. Supreme Court, Chief Justice William Rehnquist agreed with both
Abrahamson’s and Bablitch’s reasoning. He noted that the U.S. Supreme Court previously
rejected First Amendment-based arguments against such legislation as Title VII of the Civil Rights
Act of 1964, which “makes it unlawful for an employer to discriminate against an employee
‘because of such individual’s race, color, religion, sex, or national origin.”
He further wrote that:
To be sure, our cases reject the view that an apparently limitless variety of conduct can be labeled ‘speech’
whenever the person engaging in the conduct intends thereby to express an idea… Thus a physical assault
is not by any stretch of the imagination expressive conduct protected by the First Amendment.
12/97
 Thompson v. Benson
199 Wis. 2d 674 (1996)

In an opinion authored by Chief Justice Roland B. Day, the Supreme Court voided the education
provisions of 1995 Wis. Act 27. Justice Jon P. Wilcox filed a concurring opinion and was
joined by Justice Donald W. Steinmetz.

In this case, the Wisconsin Supreme Court decided that the duties of the elected state
superintendent of public instruction could not be reallocated or diminished by the appointment of
an education commission and education secretary.
The petitioner, Governor Tommy G. Thompson, asked the Court to uphold an action that
would permit appointees of the governor to fulfill some of the duties of the state superintendent.
The respondent, State Superintendent John T. Benson, argued that such action would take away
powers granted to the elective office in Article X of the Wisconsin Constitution.*
In deciding the case, the Court interpreted 1995 [Link] 27*, focusing on four areas:
• the meaning of the words in the text;
• the debates over the amendment by the framers of the state constitution
• the context within which the amendment was written and
• the Legislature’s first interpretation of the amendment.
The governor argued that the wording of Article X, Section 1, “[t]he supervision of public
instruction shall be vested in a state superintendent and such other officers as the legislature shall
direct” implies that the superintendent’s power is to be shared.
However, the Court, when looking at the 1847-48 constitutional convention records,
found that, as the framers debated Amendment X, they “rejected the very framework proposed by
1995 [Link] 27.” Furthermore, the “other officers,” the Court found, were meant to be
subordinate to the superintendent of public instruction.
The Court found that “the constitutional difficulty with the education provisions of 1995
[Link] 27 is not that it takes power away from the office of the SPI, but rather that it gives the
power of supervision of public education to an ‘other officer’instead of the SPI.”
Justice Wilcox wrote in his concurring opinion that although he agreed that the provision
was unconstitutional he disagreed with the Court’s interpretation of Article X which concluded
that the “other officers” were meant to be subordinate. He argued that the Court’s decision
reduced the Legislature’s flexibility to administer future changes to Wisconsin’s educational
system.

12/97

*
1995 [Link] 27 created the Department of Education, a new Education Commission and a new office, the
Secretary of Education. This officer is appointed by the Governor and is head of the Department of Education.
*
The 1902 amendment to Article X, Section 1, of the Wisconsin Constitution states: “The supervision of public
instruction shall be vested in a state superintendent and such other officers as the legislature shall direct; and their
qualifications, powers, duties, and compensation shall be prescribed by law. The state superintendent shall be
chosen by the qualified electors of the state at the same time and in the same manner as members of the supreme
court, . . . The term of office, time and manner of electing or appointing all other officers of supervision of public
instruction shall be fixed by law.”
 Libertarian Party of Wisconsin v. Thompson
199 Wis.2d 790 (1996)

In a unanimous opinion, the Wisconsin Supreme Court upheld the constitutionality of a law
creating a special tax to raise funds for a new baseball stadium in Milwaukee. Justice William
A. Bablitch wrote the majority opinion for the Court. Chief Justice Shirley S. Abrahamson did
not take part in the decision.

In this case, the Court held that the Legislature could raise public funds to build a new
baseball stadium. The Libertarian Party argued – unsuccessfully -- that the Stadium Act (1995
Wisconsin Act 56* ) violated the state Constitution on several grounds.
Governor Tommy G. Thompson filed an original action in the Court asking it to declare
the statute constitutional. The Libertarian Party, which had previously begun an action in
opposition to the Stadium Act in Milwaukee County Circuit Court, was added to this case.
The Libertarian Party (the petitioner) argued that the Stadium Act violated the Wisconsin
Constitution in 15 separate ways. The Court considered only those alleged violations which it
determined might have merit.
The petitioners claimed the statute provided for a private law, which, they said, violated
Wisconsin Constitution Article IV** by creating a tax that applied only to five counties and
exempting the stadium from property taxes. The Court ruled that the statute “contains
classifications which are open, germane, and relate to true differences between the entities being
classified,” and therefore, did not create a private tax law.
The petitioner also argued that the Stadium Act did not serve a valid public purpose as
provided under Article VIII*** of the Wisconsin Constitution. The Court found that the Act’s
purpose was to “encourag[e] economic development and tourism, by reducing unemployment and
by bringing needed capital into the state for the benefit and welfare of people throughout the
state,” which it determined was a valid public purpose.
The Court further found that the Stadium Act did not violate the municipal debt limitation
or pledge state credit, but instead promoted the:

welfare and prosperity of th[e] state by maintaining and increasing the career and job opportunities of its citizens
and by protecting and enhancing the tax base on which state and local governments depend upon. It is clear that
the community as a whole will benefit from the expenditures of these public funds.
11/97

*
1995 Wisconsin Act 56, known as the Stadium Act, provides for “the creation of local professional baseball park
districts to include any county within the state with a population in excess of 500,000 and all counties that are
contiguous to the county and not already included in a different district… .A district is empowered to construct and
operate professional baseball park facilities, although the initial construction costs of the facility may not exceed
$250 million.”
**
Wisconsin Constitution Article IV, Section 32: “The legislature may provide by general law for the treatment of
any subject for which lawmaking is prohibited by section 31 of this article. Subject to reasonable classifications,
such laws shall be uniform in their operation throughout the state.”
***
Wisconsin Constitution Article VIII, Sections 4 and 7(2): “The state shall never contract any public debt
except… (t)o acquire, construct, develop, extend, enlarge or improve land, waters, property, highways, railways,
buildings, equipment or facilities for public purposes.”
 Risser v. Klauser
207 Wis.2d 177, N.W.2d (1997)

This case began and ended in the Wisconsin Supreme Court; the Court took original action rather
than sitting (as it normally does) as an appellate court. Its 4-3 decision served to define further the
veto power of the governor and, in the process, the constitutional separation of powers between the
executive and legislative branches. The majority opinion, written by Chief Justice Shirley S.
Abrahamson, stopped an attempt by the governor to expand his authority to veto pieces of the state
budget. The dissent, led by Justice N. Patrick Crooks, would have allowed it.

A 1930 amendment to the Wisconsin Constitution gave the governor what is popularly referred
to as a "partial" or "write-in" veto power. This permits the governor to approve, "in whole or in part,"
appropriation bills (bills that involve expenditures or set aside public funds for a particular purpose).
The scope of this power has been in dispute ever since.
This was the eighth in a series of cases going back to 1935 that have attempted to set
boundaries for the exercise of the veto power. The prior cases established that:
•the portion of the bill remaining must be complete, workable and related to the original bill;
•the veto can only be exercised on a bill that contains an appropriation; however, it can be used
to alter any part of such a bill, not just the appropriation amount;
•words and digits can be struck from the bill but not individual letters within a word;
•a smaller number can be written in for one that is struck so long as it relates to an
appropriation.
In this case, the plaintiffs -- primarily several Democratic state legislators -- sought to stop the
Republican governor and his administration secretary from lowering a revenue bonding limit in a
transportation appropriation bill. The governor's authority to lower the appropriation was not in
dispute; however, the bill also contained a monetary limit for the revenue bonds the state was going to
issue to raise the funds for the actual appropriation, a limit which the governor also attempted to alter.
The Court majority rejected the governor's argument that the veto power extended to all dollar
amounts in an appropriation bill, rather than just those figures relating to the actual appropriation, or, in
the alternative, that the bonding limit figure was actually an appropriation figure. Chief Justice
Abrahamson wrote that "the dangers of the Governor's approach are obvious" because:

At the core of our tripartite system of government is the principle that the power of each branch must know
limits. Wisconsin governors have perhaps more extensive power to alter legislation that do other state
governors. But a governor's power to craft legislation necessarily must have constitutional limits. A write-in
veto power which extends far beyond the reduction of appropriation amounts intrudes too far into the
constitutional grant of legislative power vested in the Senate and the Assembly. The court felt that well-defined
limits on the veto power are particularly appropriate so that both the executive and legislative branches of
government can define their actions accordingly without the constant intercession of the judicial branch to
resolve disputes.

The dissenting side would have held that the governor could alter any dollar amount in an
appropriation bill, particularly where – as the dissent believed to be the case here -- the various
amounts are "inseparably connected" to the actual appropriation.

12/97