Wisconsin Lawyer: Chief Justice Luther S. Dixon: The First of the Great Dissenters:

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    Chief Justice Luther S. Dixon: The First of the Great Dissenters

    Known as Wisconsin's first great judicial conservative, Luther S. Dixon defended the ideal of legal order against calls for quick legal and social change in a variety of areas during his political career. Because he often defended unpopular causes, each of Dixon's reelection campaigns became a battle for survival.

    Joseph Ranney

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    Luther S. Dixon

    The first period of the Wisconsin Supreme Court's history (1848-1875) produced three justices who made a permanent mark on the state's legal system. Two of them, Edward Ryan and Byron Paine, were colorful and controversial men, crusaders by temperament, who made their mark by trying to slay the dragons of social evil that they saw around them - in Ryan's case, excessive corporate power; in Paine's case, slavery.1 Luther S. Dixon was quite different. Basically a peaceable man, Dixon was Wisconsin's first great judicial conservative. He spent much of his time on the court acting as a counterweight to Paine and breasting the numerous waves of social and economic change that rolled through Wisconsin in the mid-19th century. In order to understand those waves of change and the unique nature of judicial conservatism in Wisconsin, it is important to understand Dixon's career.

    Rapid Rise and Early Challenge (1825-1859)

    Dixon was born in Vermont in 1825. He received a basic classical education, taught school as a young man to support himself, and then studied law with Luke Poland, one of Vermont's leading lawyers and politicians. Like Ryan, Dixon took advantage of the opportunities that the newer western states offered to young lawyers: he migrated to Wisconsin in 1850 and settled in Portage.2 Dixon was a moderate Democrat who slowly gravitated to the Republican camp as the nation's party structure shifted in response to the slavery crisis of the 1850s. One early biographer reported that Dixon "seems not to have been strongly litigious .... He was always a pacificator, when pacification was proper and possible."3

    Dixon lacked Ryan's fire and Paine's charisma, but he had a talent for making friends and being "one of the boys" that the other two judges lacked. One of the leading stories about Dixon that has been preserved is telling on this point. After he had spent a winter evening "with friends over cards, and the bottle [had gone] merrily around," a tipsy Dixon borrowed a friend's lantern to light his way home in a snowstorm. The next morning, after he told his wife that he could not have found his way home in the terrible storm without the lantern, his wife told him: "Luther, the next time you borrow a lantern to light your way home you had better see to it that it has a wick and some oil in it."4 It is inconceivable that Ryan and Paine would have wanted to be remembered by such a homely, human anecdote.

    Dixon's rise in the legal profession was meteoric. He was elected Columbia County district attorney twice and in 1858 Gov. Alexander Randall, a fellow former Democrat turned Republican, appointed him a circuit judge. In the spring of 1859, when Chief Justice Edward Whiton died suddenly, Randall elevated Dixon to the supreme court at the age of 34.5

    Dixon's tenure as chief justice (1859-1874) coincided with what was perhaps the most turbulent period of Wisconsin's history. Shortly before Dixon became chief justice, the U.S. Supreme Court, speaking through Chief Justice Roger Taney, reversed the Wisconsin court's 1854 Booth decision, in which Wisconsin had become the first and only state court to declare the federal Fugitive Slave Act unconstitutional. The Act required Northern state officials to assist in the capture and return of slaves who escaped from the South.6 When Taney's decision was transmitted to Madison, the court refused to file it.7 Dixon, who had only been on the bench a few months, then undertook what was unquestionably the most courageous act of his judicial career: in a dissenting opinion, he voted to accept the decision, and in so doing he gave new life to the federalist cause in Wisconsin.8 Dixon took pains to state that he personally believed the Act was unconstitutional, but he warned that the position his colleagues had taken 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."9 Dixon's opinion cost him renomination by the Republican party, then the dominant political power in the state, when his term expired in 1860; but he had persuaded enough people to his side that he won reelection as an independent by a very narrow margin.10

    Judging In a Turbulent Era (1859-1874)

    Dixon continued to attract controversy after the Booth cases came to an end. He and his colleagues incurred the wrath of many Wisconsinites in a controversy over debtor relief laws that lasted from 1858 to 1868. In the early 1850s Wisconsin, like many other states, was swept by a mania for railroads. Many Wisconsinites gave mortgages on their farms or residences so that they could purchase railroad stock; the railroads then sold the mortgages to Eastern financiers in order to raise capital.11 Wisconsin stockholders expected to pay the mortgage interest with stock dividends, but in 1857 a severe depression forced every railroad in the state into bankruptcy. Dividends dried up and the Eastern creditors began foreclosing.12

    The stockholders resisted. They formed antiforeclosure leagues throughout the state and, led by Janesville attorney James Knowlton, they persuaded the legislature to enact several relief measures during the late 1850s and early 1860s. The leagues also put Dixon and his colleagues on notice that their reelection might depend on their reaction to the relief measures. One league newspaper proclaimed: "[W]e who have the votes with which to manufacture judges intend to supply their places one of these days with men who have the nerve to grapple with great questions and are not to be warped from their line of duty by the clamorous voice of railroad thieves and stock jobbers."13 Dixon and his colleagues were in a bind: should they give priority to the Eastern investors' property rights or should they try to alleviate Wisconsin debtors' very real suffering?

    The only precedent available was a line of cases stemming from an 1843 U.S. Supreme Court decision, Bronson v. Kinzie, which held that laws "materially" changing contract remedies were unconstitutional impairments of contract, but that laws which did not make "material" changes would be upheld.14 The line between "material" and immaterial changes was largely unmarked. Under Dixon, the court followed a path of moderate conservatism: it generally chose to protect investors' rights under existing commercial law, but it upheld some of the legislature's milder relief measures. The court upheld an 1858 law allowing debtors six months to respond to foreclosure complaints and requiring creditors to wait at least six months after judgment before conducting a foreclosure sale. Dixon explained that where "existing remedies become so stringent ... that great and extensive sacrifices of property will ensue, without benefit to the creditor ... a relaxation of the remedies becomes a positive duty."15 But soon thereafter the court struck down a law abrogating the "holder in due course" rule that insulated the Eastern creditors from many of the defenses Wisconsin debtors would have had against the railroads (such as fraud and misrepresentation in connection with the original stock purchase). Dixon noted that the holder in due course rule was a basic "principle of mercantile law, with which all are familiar" and refused to change it.16

    In 1862 the court also struck down a law requiring testimony in foreclosure cases to be taken outside court;17 and in 1866 and 1868 it struck down laws permitting jury trials in foreclosure cases.18 As a result of the court's decisions, the antiforeclosure leagues ran candidates against Dixon and his colleagues at every election in the early 1860s and nearly succeeded in defeating them. Dixon was reelected in 1863 and 1868 only by very narrow margins.19 In the late 1860s, Wisconsin's economy and the fortunes of debtors improved, and as a result the foreclosure crisis ended.

    Legal dilemmas arising out of the Civil War also added to the court's burden. The Lincoln administration made unprecedented use of federal powers to prosecute the war. Among other things it detained key Northern war protestors, suspended habeas corpus, and instituted the nation's first military draft.20 These measures were deeply unpopular in much of the North, including Wisconsin. The draft law provoked a series of riots in the eastern part of the state in late 1862, the worst of which resulted in the burning of much of Port Washington.21 Dixon and his colleagues did not want to impede the Union war effort, but their instincts recoiled against curtailment of civil liberties and expansion of executive power at the expense of the judiciary. Accordingly, they had to steer a careful course.

    The court upheld the constitutionality of the draft, reasoning that it fell within the scope of the federal government's "ample powers of preservation and self defense."22 But in In re Kemp (1863), Dixon, speaking for the court, sustained a challenge to Lincoln's suspension of habeas corpus and released several alleged leaders of the Port Washington riot.23 Dixon concluded with obvious reluctance that the arguments of Lincoln's opponents were "unanswerable": only Congress, not the president, could suspend habeas corpus.24 But Dixon went out of his way to emphasize that his views were given "without the slightest disrespect to the president, who has in all his actions, been governed by the highest motives of patriotism, public honor, and fidelity to the constitution and laws."25 Soon thereafter, Congress ratified Lincoln's suspension of habeas, and the next year Dixon and his colleagues, obviously relieved, rejected a new challenge to the suspension.26 Shortly after the war, the court brought the cycle of Civil War cases to a close by dismissing a wrongful arrest lawsuit brought against the state by one of the Kemp detainees. The court recognized that "executive power [can be] dangerous to liberty [but] it is also absolutely necessary to every free government."27

    A Voice of Caution Against Legal Instrumentalism

    Dixon also served as the leading voice of caution in Wisconsin against the rise of legal instrumentalism. Many 19th century lawmakers believed that law should be shaped to encourage economic expansion and modernization and should favor entrepreneurs over landowners and other groups that had dominated the pre-industrial American economy. In the words of one scholar, instrumentalism required "the quiet citizen [to] keep out of the way of the exuberantly active one." Instrumentalism played an important role in shaping such diverse areas as tort and contract law and land and water use rights.28 Dixon never formally declared himself an opponent of instrumentalism, but during his tenure on the court he was the driving force behind several decisions that went against the court's generally instrumentalist tilt.

    For example, beginning in the 1830s American courts molded tort law to fit instrumentalist values primarily through the contributory negligence and fellow servant doctrines. The contributory negligence doctrine held that any negligence on the part of an accident victim, no matter how minuscule, would bar recovery; this greatly reduced the liability exposure of railroads and other businesses for injuries to employees and customers. The fellow servant rule held that businesses were not liable for employee injuries caused by other employees.29 In its first tort decisions, the Wisconsin Supreme Court adopted the contributory negligence doctrine;30 but in 1859, shortly after joining the court, Dixon persuaded his colleagues to make several important modifications to the doctrine: a victim's ordinary negligence would not bar recovery when the defendant was "recklessly" or "grossly" negligent or when the victim's negligence was a "remote" cause and the defendant's negligence a "proximate" cause of the accident.31

    In 1860 Dixon joined Justice Paine in a 2-1 decision that made Wisconsin the first state to abandon the fellow servant doctrine.32 However, Dixon's judicial conservatism ultimately prevailed over his anti-instrumentalist beliefs: in 1861, he reversed his position and, as a result, the court readopted the fellow servant rule, again by a 2-1 vote.33 Dixon candidly admitted, "I recede more from that deference and respect which is always due to the enlightened and well considered opinions of others, than from any actual change in my own views."34 Wisconsin did not completely abandon contributory negligence and the fellow servant rule until the Progressive era.35

    In 1870 Dixon's innate conservatism came to the fore again. In two landmark cases decided that year, Kellogg v. Chicago & Northwestern R. Co.36 and Whiting v. Sheboygan & Fond du Lac R. Co.,37 Dixon and Paine engaged in a wide-ranging debate concerning the limits of instrumentalism. In Kellogg, which involved the issue of railroads' liability for fires caused by sparks from steam locomotives, Dixon and Justice Orsamus Cole held that landowners who placed flammable materials on their property adjacent to railroad tracks were not liable for contributory negligence no matter how obvious the risk. Dixon relied heavily on the pre-industrial legal rule that landowners had an absolute right to do with their property as they wished.38 Dixon also held, contrary to the rule in many industrial states, that railroads' liability was not limited to damage to property struck by the sparks: it extended to all damages that were reasonably foreseeable and occurred in a "direct and continuous" chain of events.39 Paine dissented on both points.40

    In Whiting, the court addressed another economic dilemma that railroads had created for Wisconsin. During the 1850s and 1860s many Wisconsin municipalities had subsidized local railroad development through stock purchases and issuance of bonds; when the railroads failed, the consequence often was crushing local debt. In Bushnell v. Beloit (1859) the court had rejected an attempt to limit municipal subsidies. The mortgage foreclosure cases that came before the court during the 1860s, together with other widespread evidence of the human distress that railroad failures were causing, apparently wore heavily on Dixon. In Whiting, he and Cole tried to fashion a judicial limit on municipal subsidies: they held that corporations that were merely "under public regulation as to tolls" were eligible for indirect aid such as municipal stock purchases but not for direct grants.41 "Thus far shalt thou go," Dixon concluded, "and no further."42 Paine again dissented. Dixon's decision was widely criticized but remained the law in Wisconsin thereafter.43

    Last Years (1874-1891)

    Dixon, like Ryan, had difficulty living on a judge's salary. In 1867 the legislature increased the salary of court members to $3,500, and in order to get around the constitutional provision prohibiting increases in compensation to state officers during their term of office, Dixon resigned from the court and was immediately reappointed by the governor. His maneuver was controversial and nearly cost him reelection in 1868.44 In 1874, tempted by more lucrative opportunities in private practice and feeling that he might be passing his prime, Dixon again resigned from the court, this time permanently.45

    Joseph A. RanneyJoseph A. Ranney, Yale 1978, is a trial lawyer with DeWitt Ross & Stevens S.C., Madison. He is the author of Trusting Nothing to Providence: A History of Wisconsin's Legal System (1999) and has taught as an adjunct professor at Marquette University Law School.

    Dixon's experience in private practice was mixed. He quickly attracted lucrative cases, but on several occasions he was placed in the odd situation of having to argue against positions he had adopted as a judge. In 1875 the federal government retained him to prosecute federal revenue officials in Milwaukee who were accused of taking bribes. Dixon made a bargain with the attorney for one of the defendants, Rindskopf, to recommend a lenient sentence in exchange for Rindskopf's testimony against other officials. When Rindskopf refused to pay his attorney, Dixon's successor on the court, Chief Justice Ryan, refused to enforce the fee agreement and denounced Dixon's bargain as a "compounding [of] public offenses" and "essentially immoral." Deeply stung, Dixon wrote to the court pointing out that his actions were authorized by Congress and approved by senior federal officials, but Ryan was unmoved and refused to reconsider his decision.46 In the mid-1880s Dixon, who was plagued by asthma as he grew older, moved to Colorado for his health. He continued to practice law in Denver, where he died in 1891.

    Conclusion

    It is ironic that Luther Dixon's geniality and his inclination to be a "pacificator" took him to the summit of Wisconsin's legal system in a very unpacific era. It was with considerable reluctance that Dixon took on the role of curbing his colleagues' most extreme manifestations of enthusiasm for shaping Wisconsin law in order to promote industrial growth and opposition to slavery. Dixon defended the ideal of legal order against calls for quick legal and social change in a wide variety of areas during his judicial career. In order to do so, he was forced to defend several unpopular causes, including federal laws favoring slavery; the civil rights of war protestors; the rights of Eastern creditors against Wisconsin debtors; traditional rights of landowners, which he viewed as threatened by instrumentalism; and limits on aid to railroads. As a result, each of his reelection campaigns became a battle for survival.

    Dixon's most enduring legacy to Wisconsin law is the example he set as the court's first great contrarian. His geniality, which is reflected in the tone of his opinions, probably made his contrarian views more palatable to Wisconsinites and gained such views more serious consideration than they would have received if they had been espoused by a more dour judge - for example, a Ryan. Dixon's courage and persistence in taking unpopular positions despite the risk of electoral defeat set an example for later lawyers and judges, as did the civil tone of his contrarian opinions. These traits also are found in the careers of later prominent contrarians on the court such as Roujet Marshall and Edward Fairchild, who will be profiled in future articles. Those justices surely were influenced by Dixon's example.

    Endnotes

    1 Ryan's and Paine's careers are described in previous articles in this series. Joseph A. Ranney, Chief Justice Edward G. Ryan: A World in Which Nothing is Perfect, 75 Wis. Law. 18 (Sept. 2002); Ranney, Concepts of Freedom: The Life of Justice Byron Paine, 75 Wis. Law. 18 (Nov. 2002) [hereinafter Ranney, Paine].

    2 John B. Winslow, The Story of a Great Court 122-23 (Chicago, 1912); 81 Wis. xxxi, xxxii (1891) (memorial to Dixon).

    3 8 Rep. Wis. State B. Ass'n 173 (1908), quoted in Winslow, supra note 2, at 123-24.

    4 See Winslow, supra note 2, at 149-50.

    5 Id. at 122-23; 81 Wis. at xxxii; John Berryman, ed., History of the Bench and Bar of Wisconsin 1:121-33 (1898).

    6 3 Wis. 1 (1854); see generally Robert M. Cover, Justice Accused 8-82 (New Haven, 1975).

    7 Ableman v. Booth, 62 U.S. (21 How.) 514 (1859); Ableman v. Booth, 11 Wis. 501 (1859).

    8 11 Wis. at 501.

    9 Id. at 513.

    10 Joseph A. Ranney, Suffering the Agonies of Their Righteousness: The Rise and Fall of the States Rights Movement in Wisconsin, 1854-1861, 75 Wis. Mag. Hist. 83 (Winter, 1991-92); Ranney, Paine, supra note 1.

    11 Robert S. Hunt, Law and Locomotives 44-48 (Madison, 1958).

    12 Id.; Richard N. Current, The History of Wisconsin, Vol. II: The Civil War Era 1848-1873, at 243-50 (1976).

    13 Winslow, supra note 2, at 172 (quoting Home League newspaper, Oct. 27, 1860).

    14 42 U.S. (1 How.) 311 (1843).

    15 Laws of 1858, c. 113; Von Baumbach v. Bade, 9 Wis. 559, 583 (1859); see also Hunt, supra note 11, at 44-47.

    16 Laws of 1858, c. 49; Cornell v. Hichens, 11 Wis. 353 (1860).

    17 Laws of 1861, c. 88; Oatman v. Bond, 15 Wis. 20 (1862).

    18 Laws of 1864, c. 169; Truman v. McCollum, 20 Wis. 360 (1866); Laws of 1867, c. 79; Callanan v. Judd, 23 Wis. 343 (1868).

    19 Winslow, supra note 2, at 217.

    20 See generally James M. McPherson, Battle Cry of Freedom 287-90, 436, 493-94 (1988); James G. Randall, Constitutional Problems Under Lincoln 118-85 (1951).

    21 See Druecker v. Salomon, 21 Wis. 621, 623-24 (1867).

    22 In re Griner, 16 Wis. 423, 437 (1863).

    23 16 Wis. 359 (1863).

    24 Id. at 367-68.

    25 Id. at 370-71.

    26 Randall, supra note 20, at 131-35, 144-65; 12 U.S. Stats. at Large 755 (1863); In re Oliver, 17 Wis. 681 (1864).

    27 Druecker, 21 Wis. at 631.

    28 See Horwitz, The Transformation of American Law, 1780-1860, passim; Joseph A. Ranney, Trusting Nothing to Providence: A History of Wisconsin's Legal System 179 (Madison, 1999).

    29 Ranney, supra note 28, at 180-82.

    30 See Richards v. Sperry, 2 Wis. 216 (1853); Chamberlain v. Milwaukee & Mississippi R. Co., 7 Wis. 425 (1858); Dressler v. Davis, 7 Wis. 527 (1858).

    31 Stucke v. Milwaukee & Mississippi R. Co., 9 Wis. 202 (1859).

    32 Chamberlain v. Milwaukee & Mississippi R. Co., 11 Wis. 238 (1860).

    33 Moseley v. Chamberlain, 18 Wis. 700 (1861).

    34 Id. at 705.

    35 See Laws of 1905, c. 303; Laws of 1907, c. 254; Laws of 1913, c. 644; Ranney, supra note 28, at 197-201.

    36 26 Wis. 223 (1870).

    37 25 Wis. 167 (1870).

    38 26 Wis. at 231.

    39 Id. at 243-47.

    40 Paine's approach to instrumentalism is described in a previous article in this series. Ranney, Paine, supra note 1.

    41 25 Wis. at 196-97.

    42 Id. at 210.

    43 See Ranney, Paine, supra note 1.

    44 Laws of 1857, c. 102; Laws of 1867, c. 33; Wis. Const. of 1848, Art. IV, § 26; Winslow, supra note 2, at 250-51.

    45 Winslow, supra note 2, at 303-04.

    46 Wight v. Rindskopf, 43 Wis. 344 (1877); Alfons J. Beitzinger, Edward G. Ryan: Lion of the Law 136-39 (Madison, 1960).




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