Judgments from our Past—the 1920s

As SCOWstats ranges back into the 1920s, beyond the point of living memory, cases turn up more frequently that have the aura of curiosities.  Perhaps the facts seem quaint, the issues remote, or the analysis surprising—at any rate, something in the litigation evokes a different era.  Many such cases are to be found among the hundreds processed by the supreme court in these years,^[1] and today’s post offers a small sample covering topics as provocative as the Ku Klux Klan, abortion, a perilous train ride, and a requirement that litigants pay extra for a jury trial.^[2]

Driving kids to school in something short of a “redoubtable Ford” (Andrews v. School District, 183 Wis. 255).
The school district in the town of Knapp (Jackson County) appealed a circuit court judgment in favor of a father (Andrews) who sought reimbursement for transporting his children to school.  According to the school district, Andrews did not qualify for reimbursement because (1) the children failed to attend school for the requisite number of days; (2) Andrews did not transport the children himself; and (3) the method of transportation was not “safe, comfortable and convenient.”

Andrews had five children of school age, the oldest a daughter of 15 years.  She, rather than her father, usually drove the children to school in an open single-seat buggy.  Three children rode on the seat, with the other two at various times perched on the rear of the buggy or on a board across the buggy or strapped to the seat.  The daughter generally left the horse in a barn from which the children walked the last quarter of a mile to the schoolhouse, while on some occasions she dropped off the youngest children at the school before driving back to the barn.  A law provided compensation (40 cents per day per child) to parents who transported their children to schools more than two miles from their homes, if (1) the children attended school for at least five months during the year and (2) the transportation was “safe, comfortable and convenient.”

The supreme court ruled unanimously for Andrews even though his daughter drove the buggy most days.  The justices rejected the school district’s contention that Andrews had violated another law requiring children to attend school for six months a year.  That was a separate matter, ruled the court; what counted for travel reimbursement was that the children attended for more than five months.  Apropos the “safe, comfortable, and convenient” argument, Justice Walter Owen concluded: “Different times, cycles, and communities, even families, have their peculiar standards of comfortable and convenient conveyances. He who is inured to the luxurious comforts of a richly upholstered limousine, or even he who pretends satisfaction with the redoubtable Ford, might disdain the comforts and convenience afforded by the conveyance furnished by the respondent to his children, although its service would have been welcomed by our fathers, who regarded the ox team and the lumber wagon as a satisfactory means of conveyance.”

The perils of rail travel on a “real dark night” (Larson v. Green Bay & W. R. Co., 179 Wis. 510).
Sigvald Larson was traveling by train to Blair, Wisconsin, when the brakeman mistakenly called out “Blair” before the train had actually reached the station.  The train had in fact stopped at a water tank before the station, which left part of the train on a bridge across the Trempealeau River.  The bridge was no more than the width of the railroad ties, with no railings, and it was a dark and rainy night.  According to the brakeman’s own testimony, anyone who stepped off the train at that point would likely fall right into the river, and so it was with Larson.  Once “Blair” was announced and the train stopped, Larson stepped out of the train car, fell into the river, and drowned.  His parents sued the railroad company for wrongful death, and when the case reached the supreme court, the justices sided unanimously with them (and also rejected the railroad company’s claim that the damage award of $1,500 was excessive).

The “Oleo Wars” (John F Jelke Co. v. Emery, 193 Wis. 311).
Beginning in the late 19^th century, Wisconsin dairy farmers and butter producers lobbied effectively to secure passage of laws banning the production, sale, and even possession of oleomargarine in the state.  By the 1920s, however, cracks appeared in these prohibitions, as demonstrated by the following case regarding uncolored oleomargarine.  As for colored oleomargarine (dyed yellow to resemble butter), another half century would have to pass before all Wisconsin’s anti-margarine laws were repealed.

In Emery, a unanimous court declared unconstitutional a Wisconsin law prohibiting the manufacture and sale of uncolored oleomargarine.  Justice Marvin Rosenberry’s strenuous opinion emphasized that judicial decisions from other states and the U.S. Supreme Court “could not make plainer the fact that any law which prohibits the manufacture and sale of uncolored oleomargarine violates the constitution of the United States and of the state of Wisconsin.  In this connection we are moved to observe that the mandates of the constitution are just as binding upon the conscience of the legislator as upon the conscience of the judge.”  He found no sound basis for banning “a healthful, nutritious food” that was sold in a manner that enabled consumers to easily distinguish it from butter.

If not on health or nutrition grounds, couldn’t oleomargarine be proscribed to protect Wisconsin’s dairy industry, as urged by the state’s Dairy and Food Commissioner?  Unmoved, Justice Rosenberry described this argument as “addressed to the proposition that in order to promote one important industry the legislature may, in the exercise of its power to promote the general welfare, cripple or destroy another competing industry.”  The court, he chided, “supposed that the constitution was devised for the express purpose of withdrawing from legislatures the power to do that very thing.”

Should a woman be offended when called a “sport”? (Grant v. Yates, 184 Wis. 236).
An action for slander alleged that during a circuit court trial in Polk County a defendant made the following accusation about Marjorie Grant, who was involved in the case: “‘I know damn well she … is a sport, … and if you don’t believe it you just try her and you will find out ….’”  The action included an explanation that the use of the word “sport” meant that Grant was promiscuous—and that this was understood by those who heard it.^[3]

Upon leaving the circuit court, F.E. Yates, an attorney for the defendant who had made the derogatory comment about Grant, turned toward her and asserted in the presence of witnesses, including members of the school board where she was employed: ““I will open her [Grant’s] eyes. If she don’t quit now her reputation will be ruined entirely. It is the truth and we can prove it.’”  Grant sued Yates for slander.

Chief Justice Aad Vinje’s unanimous opinion allowed the assumption that Yates’s statement to Grant referred to the remark made earlier during the trial in which his client had called Grant a “sport.”  Even so, Vinje ruled, no dictionary available to him defined the word “sport” as tarring a woman “with having had unlawful sexual intercourse or of being a prostitute.”  Perhaps, Vinje added, “in a certain locality among a certain class of persons the word may have the significance alleged, … [b]ut the word does not have that meaning generally.  On the other hand it may have laudable significance, especially when preceded by the word good or real.”  The court upheld the dismissal of Grant’s case.

How many rocks falling on your property are too many? (Klagus v. Baraboo, 182 Wis. 503).
The case involved a quarry operated by the City of Baraboo on land leased from the owners of a farm.  This had not been a problem prior to 1922, but in that year the city began blasting in a manner that showered rocks on the farming couple’s fields, farm buildings and home (roughly half a mile away).  After the circuit court enjoined Baraboo from operating the quarry in this way, the city appealed to the supreme court, arguing that the lower court’s ruling would make profitable use of the quarry impossible.

The supreme court’s unanimous opinion sided with the landowners, but with this qualification: “While the language of the [circuit court’s] decision, taken literally, might be construed to prevent the defendant from casting any stones whatever on the premises of plaintiffs, we give the language a fair and reasonable construction, and, so construed, the defendant is enjoined from casting stones on plaintiffs’ premises so as to endanger life or to materially damage crops.”  Smaller stones, or fewer stones, might have been another matter.

The Ku Klux Klan in Wisconsin (Shields v. State, 187 Wis. 448).
Unlike the first iteration of the Ku Klux Klan, confined mainly to southern states shortly after the Civil War, the second wave quickly spread nationwide after emerging early in the 20^th century.  The Klan reached its peak in the Midwest, including Wisconsin, by the mid-1920s—when an incident occurred in Boscobel that spawned Shields v. State.

The mayor of Boscobel gave the Ku Klux Klan permission to march through the city on the night of August 16, 1924.  Word had spread about the event, and a crowd of six or seven thousand people assembled to watch the march of 80 to 100 Klansmen.  Boscobel had two police officers—one for the day and one for the night, the latter called the night watchman.  As the march proceeded along Main Street the night watchman, George Shields, stepped toward the marchers, who were wearing their masks and long robes.  When he attempted to raise the masks of a couple of the marchers, another punched him on the side of the head.  Shields staggered back into the crowd.  Upon regaining his balance, he drew his revolver, pointed it at the man who had punched him, and pulled the trigger.  However, his pistol did not fire; the crowd grabbed him, and the parade continued.

Shields was convicted of assault with intent to do great bodily harm, and the supreme court affirmed this judgment, but not unanimously.^[4]  The majority ruled that Shields had no authority to interfere in a parade that had been approved by the mayor and was proceeding in orderly fashion.  They also rejected his self-defense argument, stating that Shields’s personal safety was not in danger, and a single punch to the head did not warrant a response with a deadly weapon.

Paying extra for jurors (La Bowe v. Balthazor, 180 Wis. 419).
Municipal Court Act, ch. 244, Laws 1921 required a litigant to pay the court clerk $2 per juror to have a jury trial in a municipal court.  The supreme court, in a unanimous decision, declared the law unconstitutional.  Lesser fees ($12 for a jury trial in Milwaukee County, for instance) might be acceptable, the justices allowed, but $2 per juror was going too far—contrary to practice at the time that the state’s constitution was adopted.  Moreover, the law had the effect of discriminating against poorer litigants, who were most likely to appear in municipal courts.  Although these courts were created “no doubt, for the laudable purpose of taking care of minor cases involving less than $1,000 efficiently and economically,” Justice Charles Crownhart concluded, “it was quite clearly the intention of the legislature [in the Municipal Court Act] to impose the high jury fee in order to discourage trials by jury.”  This, the legislature could not be permitted to do.  “Manifestly, the municipal court will deal with the poorer classes of litigants, but these litigants are entitled to the same rights and privileges under the constitution as those of larger possessions.”

Abortion in the shadows and a puzzled supreme court (Werner v. State, 189 Wis. 26).
On the evening of Monday, December 9, 1924, twenty-year-old Alice McCormick went to the office of Dr. O. E. Werner.  She brought her night dress and remained in his office throughout the night, the next day, and the following night.  On Wednesday morning Werner discovered that a section of McCormick’s intestine had broken through the wall of her womb, and she was taken to a hospital—where she died.

Werner was charged with (1) performing an abortion (using an instrument to produce a miscarriage); (2) manslaughter for causing McCormick’s death; and (3) manslaughter for causing the death of the unborn child (which the circuit court dismissed for reasons not disclosed in the material at hand).  Unpersuaded by Werner’s defense that he had only been treating McCormick for syphilis, the jury convicted him of performing an abortion but acquitted him of the charge of manslaughter in causing McCormick’s death.  Werner appealed to the supreme court.

Although the justices affirmed the verdict from the circuit court, Justice Walter Owen’s majority opinion was uncomfortable with this outcome.  “The verdict of the jury is difficult to understand,” he explained. “The jury finds the defendant guilty of an intent to produce a miscarriage, and at the same time acquits him of manslaughter. These conclusions seem irreconcilable.  If he committed the abortion he was certainly responsible for the death of the deceased [McCormick].”  Were this a civil case, Justice Owen continued, the justices would probably not allow such a verdict to stand, but in a criminal case of this type they could not override the jury.^[5]

Smallpox (Vilter Mfg. Co. v. Industrial Commission of Wisconsin, 192 Wis. 362).
Prior to 1900, hundreds of thousands of people died from smallpox in the United States.  During the 20^th century the number of deaths dropped sharply due to more effective public-health practices along with the wider availability of vaccines and mandatory vaccine laws, but notable outbreaks occurred in the 1920s in some midwestern cities—among them Milwaukee in 1925, as evident in the following case.

After spending a fortnight in Hillsboro, Wisconsin, where two families were under a smallpox quarantine, Roy Jahncke was sent by the Vilter Manufacturing Company to work on a refrigerator at a Milwaukee isolation hospital for smallpox patients.  Later that month, he worked briefly at another location where an employee had recovered from smallpox in February.  Not long thereafter, Jahncke fell ill and was taken to the isolation hospital, where he died from smallpox at the end of the month.

Rather than focus on the case’s legal issues,^[6] I have included it to illustrate the persistence of smallpox.  The language in Chief Justice Aad Vinje’s unanimous decision does not portray the disease as unexpected or exotic.  Indeed, Milwaukee had “about twenty-six smallpox cases” on March 11, he noted, “and the number increased later.”  Clearly, smallpox remained an unsurprising threat in the 1920s—before declining precipitously to its final case nationwide a quarter century later.

[1] Cases have been selected from five terms in the mid-1920s: 1922-23 through 1926-27.

[2] Many of the court’s decisions hinged on business affairs, and no doubt some of these cases would seem archaic or otherwise peculiar to modern readers versed in commercial law—and, thus, suitable cases for this post.  As I lack this expertise, such cases do not appear among those selected.

[3] Here is the complete text, without my ellipses, from this portion of the action: “‘I know damn well she (meaning the said Marjorie E. Grant) is a sport (meaning and intending thereby to charge that said Marjorie E. Grant was guilty of sexual intercourse, and was so understood by his hearers), and if you don’t believe it you just try her and you will find out (meaning and intending to charge that if said W. R. Catlin, George Jansen, and H. J. Meeker did not believe that said Marjorie E. Grant was guilty of sexual intercourse to try her and they would find out, and was so understood by his hearers).’”

[4] In a rare and lengthy dissent, Justice Charles Crownhart argued among other things that (1) Boscobel had previously been “disturbed by Ku Klux Klan activities”; (2) Shields did not know that the mayor had approved the march, as this approval had been delivered orally with no public notice of the permission; (3) the authority to grant such permits belonged to the common council, not the mayor; (4) Shields tried to raise the masks of a few marchers in order to identify the leaders so that he could persuade them to march on a side street before encountering the crowd in the heart of town and thereby avoid serious disturbances; (5) the marcher who struck Shields was not someone whose mask Shields tried to remove; and (6) this marcher allegedly struck Shields with a blunt object (not just his fist, as claimed by the state) that raised a large lump on Shields’s head.  The dissent also contended that the jury instructions contained prejudicial error.

[5] Justice Franz Eschweiler dissented—but without writing an opinion to reveal his views.

[6] For instance, did Jahncke contract smallpox within the scope of his employment by Vilter Manufacturing Company, and should his widow be awarded compensation?  The supreme court answered “yes” to both questions.