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Company in a letter which the Company preserved and
used in defending the suit: "Give them nothing if they
fail, endow them richly if they succeed."

After the revocation of the land grant to the Portage
Company and the completion of the railroad by the Omaha
Company, the St. Paul Company called on the Omaha Com-
pany for its one-fourth of the 400,000 acres of timber land
and for its trackage right over the constructed sixty-two
miles of railroad. "Oh, no," said the Omaha Company, by
John C. Spooner and S. U. Pinney, "you blackmailed us
mto entering into that contract, which, as a matter of law,
is void because it is manifestly corrupt and unlawful in its
tendency, irrespective of the question whether anything
wrong was intended or accomplished that w^as either im-
proper or illegal."

To enforce this contract, the St. Paul Company, Sep-
tember 7, 1883, brought its suit in the Circuit Court of Dane
County, Wisconsin, sitting at Madison, which held the con-
tract valid. But on appeal, the Supreme Court of Wis-
consin (75 Wis. 224), resting its conclusion on Section 4482
of the Wisconsin statutes and the two opinions of the
Supreme Court of the United States to which we have just
referred, on the 3d day of December, 1899, sustained the
contention of the Omaha Company, that the contract was
corrupt and immoral, and therefore void.

January 23, 1882, the bill drafted by John C. Spooner
revoking the grant to the Portage Company and conferring
it on the Omaha Company was simultaneously introduced
in both houses of the Wisconsin legislature. Contempo-
raneous therewith the manager of the Portage Company


"ordered in" the Portage's engineering corps under whose
supervision Angle with 1,700 men in the wilds of Wisconsin
in midwinter, as John C. Spooner said, was prosecuting the
construction of the sixty-five miles of road. Immediately
attachments were levied by supply men and boarding-house
keepers on Angle's tools and personal property. Laborers
clamored for their pay and threatened violence in Duluth,
whose citizens telegraphed Governor Rusk to send troops
to preserve the peace. Jeremiah H. Rusk, as a member of
the Sawyer-Spooner regime, inaugurated for the first time
Governor of Wisconsin on the 2d day of January, 1882,
afterwards said his answer to the citizens of Duluth was:
"These men want bread, not bayonets."

The stories of Governor Rusk and Senator Spooner agree
as to what then happened. Within a few days after the
bill was introduced, and before the bill had passed either
house, Governor Rusk called in Senator Spooner and noti-
fied him in advance that the bill passing either house he
could not sign it unless some provision was made for the
payment of the laborers who were then destitute in the
wilds of Wisconsin. On the theory there was no obliga-
tion on the State to do so, Mr. Spooner said, "I told the
Governor I would report to Mr. Porter and take his instruc-
tions." Accordingly Mr. Spooner went to Chicago, re-
ported to Mr. Porter, and received Mr. Porter's consent to
pay out $78,000, $75,000 of it to be applied in part payment
of the laborers' and supply claims, and $3,000 to be used
by the State in bearing its expenses in making the distri-
bution. Mr. Spooner says he reported to the Governor
what Porter had said to him, and also that he would not
assume for the Omaha Company the payment of any other
of the obligations of the Portage Company to contractors
and subcontractors.

And thereupon on the i6th day of February, 1882,
Governor Rusk signed the bill, amended as Mr. Porter
desired, limiting the liability of the Omaha Company to

IS "equity a roguish thing?" 539

$78,000 and cutting out Angle. Here it was, the Governor
afterwards said, John C. Spooner "put it over" on him, and
offered to advance $50,000 if that should be necessary to
help Robert M. LaFollette put Spooner out of the United
States Senate. But in those formative days General Rusk
thought his old army comrade of the Army of the Tennessee,
as the trial judge in the Angle case, did not have the regard
for the executive and legislative that should obtain under
our separate and independent departments of government.

Governor Rusk's biographer attempts to justify the
Governor's course by showing that he forced the Omaha
Company to pay the laborers the back wages the Portage
Company owed them. Why, then, in law^ morals, and
equity, said Walter Q. Gresham, did not the Governor force
the Omaha Company to reimburse Angle, the contractor,
the $341,000 (part of which liquidated pay rolls) that Angle
had expended on the partly constructed railroad before the
land grant on which that partly constructed railroad was
turned over to the Omaha Company and which the Omaha
Company completed December i, 1882?

On the 2d day of February, 1882, Angle brought his
suit in the United States Circuit Court for the Western
District of Wisconsin at Madison, against the Portage
Company for $750,000 damages sustained by him by reason
of the breach of the contract of August 18, 1881, in that it
had not made cash payments to him as the work progressed,
as the contract provided, and in the event he should fail
on that theory, to recover the value of the w^ork he had
performed on the sixty-five miles of railroad, and on the
3d day of February, 1882, he brought in the same court his
suit in attachment in aid and levied on the 400,000 acres
of the land grant timber lands.

And this was the w^ay Ex-Governor Schofield, the presi-
dent of the Portage Company, who claimed he had an inter-
est in the stock standing in Barnes's name, was rounded up.

Februar}'- 8, 1882, in the Circuit Court of Cook county,


Illinois, at Chicago, Ransom R. Cable, as plaintiff in a suit
that day brought by Charles M. Osborne, an eminent
member of the Chicago bar, secured, without notice, an
injunction against Schofield, as president, and the Portage
Company, from issuing any further stock or bonds or mak-
ing any transfer of any stock already issued. At this time
the Grand Trunk Railroad Company of Canada was con-
sidering the purchase of all of the stocks and bonds of
the Portage Company. The other officers and directors of
the Portage Company were left free to act. In this bill it
was set up that Cable was then the sole owner of all the
valid stock of the Portage Company then outstanding, but
as to how Cable acquired it not a word was said. There
was not a reference to that remarkable contract of January
20, 1882. As a matter of fact. Cable did not and never had
owned a dollar of Portage stock.

Charles J. Barnes became surety on the injunction bond
Cable was required to give under the agreement of the
Omaha Company to indemnify him. As soon as there
was notice of this injunction, the Grand Trunk Company
withdrew from the scheme and the collapse of the Portage
Company was complete.

March 7, 1883, the legislature of Wisconsin confirmed
the Act of February 16, 1882, in the face of the claim that
it was void and unconstitutional because the grant to the
Portage Company did not expire until May i, 1882.

These acts of the Wisconsin legislature Walter Q.
Gresham held did not debar Angle's suit, on the law side,
and neither, whether corruptly or uncorruptly passed, did
he believe they should have that effect on the equity vside
of the court.

August 6, 1882, H. C. Angle died in Chicago as the result
of his financial misfortunes, and Sarah R. Angle, his wife,
was appointed administratrix of his estate by the Probate
Court of Cook County, Illinois, and was substituted as
plaintiff in his suits. The Angles were New York people,
but when the construction work on the Portage Railroad

IS "equity a roguish thing?" 541

was begun, they had taken up their residence in Chicago.

By December i, 1882, the Omaha Company having
completed the construction of the railroad from St. Croix
Lake to Superior on Lake Superior, H. H. Porter sold out
his holding of stock in the Omaha Company to the Chicago
& Northwestern Railroad Company, the control of which
had previously been acquired by the Vanderbilt interests.
Porter retired as president of the Omaha Company, but
Senator Philetus Sawyer continued as a director and as
one of its vice-presidents. Senator Sawyer, as we have
seen, sustained Walter Q. Gresham when as Postmaster-
General he incurred the wrath of the Louisiana Lottery
people, and most cordial were our relations. But the
Senator thought the judge was all wrong in so guiding the
proceedings in a law suit, as to lay the foundation for an
attack on one of the Senator's favorite railroad corporations
and on his official integrity.

Angle's attachment suit was heard before Judge Bunn
from September 9 to 15, 1884, then taken under advise-
ment and the attachment vacated and discharged April 13,
1885. Judge Bunn thought the Sawyer-Spooner- Vanderbilt
combination in Wisconsin would support Judge Gresham
for President. Judge Gresham was of a different opinion.

January 14, 1887, the Angle case against the Portage
Company for the breach of contract came on for trial at
Madison before a jury and Circuit Judge Gresham as the
trial judge.

Mrs. Angle was represented by Francis J. Lamb, B. W.
Jones of the Madison bar, ex-Senator James R, Doolittle
of Chicago, and General Charles Ewing, then of New
York, where he had taken up the practice of the law after
he had failed as the Democratic candidate for the governor-
ship of Ohio. The Portage Company was represented
by Silas U. Pinney and A. L. Sanborn of the Madison
bar, and Charles M. Osborne. Mr. Sanborn subsequently
became the United States district judge for the Western


District of Wisconsin, and Mr. Pinney a member of the
Wisconsin Supreme Court.

Mr. Osborne was sent to Madison by the Omaha Com-
pany, expressly charged with the duty of making its de-
fense. He it was who had in February, 1882, tied up the
Portage Company in the Circuit Court of Cook County,
IlHnois, as Messrs. Porter and Spooner, in behalf of the
Omaha Company, were getting ready to cause the Wisconsin
legislature to wrest the land grant from the Portage Com-
pany. Mr. Osborne, in character, learning, and ability the
peer of any man at the bar, was one of Walter Q. Gres-
ham's especial friends. There were other things than good
fees that Charles M. Osborne valued. In addition to pay-
ing Mr. Osborne, the Omaha Company compensated the
other attorneys and bore all the expenses of the trial.

In his opening statement to the court and jury, Mr.
Osborne claimed the Omaha Company had done nothing
it was not in law justified in doing; that it was right for
the Omaha Company to buy the stock of the Portage Com-
pany under the conditions and circumstances in which it
made the purchases, and then "prick the bubble." It is
due to him as a lawyer to say that in this he was finally
sustained by the Supreme Court of the United States, but
not by the trial judge. Mr. Osborne claimed there could
be no recovery in any event under the law, even against
the Portage Company. The act of the legislature in revok-
ing the grant to the Portage Company and conferring it
on the Omaha Company was conclusive. And then, acting
on the theory that it was the best way to defend, Mr.
Osborne stated, "We will show that Angle was guilty of
fraud in inducing the Portage Company to enter into the
contract of August 16, 1881, with him, in that he had
agreed to give Schofield, the president of the Portage Com-
pany, one-half of the profits that would be realized on the
construction of the sixty-five miles of road," and in order
that the "swag" might be large, "the compensation agreed

IS "equity a roguish thing?" 543

to be paid Angle was unreasonably high beyond what was
usual for such work." All of Mr. Osborne's contentions
except the charge of fraud against Angle were swept aside.
Because the trial judge denounced from the bench the right
of the Omaha Company to "prick the bubble," Mr. Osborne
and his associates flinched and refused to produce the con-
tract of January 20, 1882, and it was not until the trial
judge threatened to send S. U. Pinney and A. A. Jackson
to jail for contempt of court that this extraordinary per-
fectly-proper contract was produced in court. With inter-
missions for Sundays, the trial lasted at Madison until
January 30, when the jury returned a verdict for Mrs.
Angle, assessing her damages at $351,965. 50 over and above
a credit of $132, 205. 65. Before leaving Madison there was
a judgment on the verdict for its full amount, subject to
motion for a new trial, which was promptly made by Mr.
Osborne and his associates.

The grounds urged for the new trial were the errors of
the trial judge in rejecting all the special defenses above
enumerated except that of fraud on Angle's part; errors
in admitting and rejecting evidence on this one question,
and the instruction to the jury on it. Especially was the
use of the word "clear," in connection with the words "pre-
ponderance of the evidence," criticized, "because," said Mr.
Osborne, "that word made the verdict." This portion of
the charge to the jury follows:

If you believe from the evidence that Schofield and Gaylord
were interested with Angle in the construction contract, and were
entitled to share with him any of the profits which might be
derived from it, then the contract was fraudulent and there can
be no recovery on it. Schofield and Gaylord, as directors and
officers of the company, were bound to use their best endeavors
to promote its welfare, and the law would not permit them to
deal with themselves, and thus profit at the expense of those
whom they represented, which they did if the charge in the
answer is correct.



And if an agreement existed whereby Schofield and Gaylord
were to be benefited as stated, and yet you find in awarding the
contract to Angle, they were not influenced by their interest in
it, it is nevertheless fraudulent and void.

It is sufficient to render the contract invalid, that Schofield
and Gaylord, or either of them, as stockholders and officers of
the company, secured an agreement with the contractor to profit
personally at the expense of the company.

You must not forget, however, that the burden is upon the
defendant to show, by a clear preponderance of the evidence, that
the contract was fraudulent. The law indulges in no presump-
tion against the good faith of the officers of the company or against
the validity of the contract. On the contrary, the presumption
is that the officers acted honestly, and that the contract is free
from fraud, and unless upon a fair consideration of all the evidence
you think there is a preponderance in support of the charge of
fraud, you will sustain the contract. Nothing short of an agree-
ment or understanding that Schofield and Gaylord, or one of them,
was to have a share in the profits of the contract, is sufficient to
render it invalid. Mere talk of such an agreement or under-
standing would not render the contract void if the parties really
came to no understanding or agreement.

It was to the words, "clear preponderance of the evi-
dence," that Mr. Osborne especially objected. The word
"clear" was more than the law allowed.

The motion for a new trial was deferred from time to
time until finally Justice Harlan could come to Chicago
and hear it, sitting with the circuit judge. There was an
extended argument on June 20, 1887. Justice Harlan de-
livered an oral opinion, which went into the bill of excep-
tions. After adverting to the rule of the Supreme Court
of the United States, where there was a clear conflict in
the testimony on a controverted point, that a case should
never be withdrawn from a jury, he said:

I have carefully examined the charge given by the circuit
judge upon that and other questions in the case and am of the
opinion that the charge contains no error. The only ground

IS "equity a roguish thing?" 545

entitled, it seems to me, to consideration, on that branch of the
case, is the objection made to the sentence in the charge of the
court in which the phrase, "clear preponderance of the testimony "
is found. Counsel for the company seize upon the word "clear"
in that connection, and argue that the jury were required to find
more than the law required them to find in order to come to the
conclusion that the contract was fraudulent; but that sentence
is to be taken in connection with what follows:

Taking all the sentences together, the jury could not have
understood the court to mean more than that which the court
had a right to say — that before imputing fraud to any one the
evidence must be of such a character as to satisfy the jury, reason-
ably, that such was the fact. The words, "clear preponderance
of testimony," in the connection in which they are used, mean
no more than a preponderance of testimony. I do not think,
therefore, that error can be laid against that part of the charge
of the court. It is hardly necessary to go over other portions of
the charge to which exception was taken. I am satisfied that the
scales of justice were held very evenly balanced throughout
the trial.

It struck me at the time the case was opened that the recovery
was rather an extraordinary one, larger than the facts justified,
to be attributed in part to the natural feeling that jurors would
have at the injustice which it was proposed to do the contractor —
I have no doubt largely due to the argument of counsel who closed
the case before the jury.

We are of the opinion that, upon any fair view of the evidence,
the verdict is in excess of the fair amount by $146,745. The
motion for a new trial I recommend to the circuit judge — I say
"recommend " for I did not hear the witnesses, and the order should
more properly come, I think, from the judge who tried the case —
will be denied, provided the plaintiff shall, within ten days, remit
from the verdict $146,745, and in default of their so doing, the
verdict will be set aside and a new trial ordered.

"Such an order will be entered," said Judge Gresham.

Mrs. Angle remitted $146,745 from the judgment.
Mr. Osborne, on behalf of the Portage Company, but in
the interest of the Omaha Company — for he was in its


pay — presented a bill of exceptions which showed every
step in the case down to over-ruling the motion for the new
trial and the remitter, which was signed by the trial judge
and filed in the office of the clerk of the United States
Circuit Court at Madison. From the order over-ruling the
motion for the new trial the Portage Company sued out
and lodged with the clerk of the Supreme Court at Wash-
ington a writ of error, that is, a complete transcript of all
that had occurred in the jury trial and down to the over-
ruling of the motion for the new trial. To the Supreme
Court the Portage Company said in this writ of error that
Judge Gresham and Justice Harlan had erred in entering
the judgment for Mrs. Angle. But the Portage Company
did not make this writ of error a supersedeas; that is, it did
not give a bond conditioned, if it dismissed the writ before
the Supreme Court passed on it, or if the Supreme Court
sustained the judgment, that it would pay the judgment.
Such a bond would have stayed an execution on the judg-
ment. The bond the Portage Company gave was con-
ditioned only to pay Mrs. Angle the costs she might be put
to in the Supreme Court. It was in the penalty of $i,ooo.
And after a line was obtained on what would be the view
of the judges on the equity side of the court to which they
knew Mrs. Angle would have to resort in order to enforce her
judgment against the 400,000 acres of land then in the
possession of the Omaha Company, the writ of error was

"No property found," being the return on the execu-
tion against the Portage Company, Sarah R. Angle filed
her bill against the Omaha Company on the equity side
of the United States Circuit Court for the Western District
of Wisconsin at Madison. In this bill she set up, in prop-
er legal verbiage, the facts we have recited, expressly al-
leging that the Omaha Company had practiced bribery and
corruption on the Wisconsin legislature. In truth and in
fact, it was the act of the Omaha Company operating

IS "equity a roguish thing?" 547

through the Wisconsin legislature that secured the property,
400,000 acres of land with its $2,000,000 worth of valu-
able timber on it and bettered by the partially constructed
railroad that Angle had built. Because of its wrongs the
Omaha Company held this property as a trustee for the
benefit of the creditors of the Portage Company, especially
the widow of the contractor, Angle, and therefore was lia-
ble to have these lands and the proceeds of such of them
as had been sold, subjected to the payment of Mrs. Angle's

The bill concluded with the old English jurisdictional
formula: "In tender consideration whereof, as your ora-
trix is remediless in the premises by the strict rules of the
common law, and is only relievable in a court of equity,
where matters of this kind are properly cognizable, your
oratrix prays . . . . "

To this bill the Omaha Company promptly demurred,
that is, it said Mrs. Angle was not entitled to relief in a
court of equity.

Contemporaneously with the filing of Mrs. Angle's bill,
the Farmers Loan & Trust Company, trustee under the
mortgage heretofore spoken of which the Portage Company
had executed several years before, filed against the Portage
and Omaha companies its bill on the equity side of the
United States Circuit Court for the Western District of
Wisconsin, on the same theory and on the same facts that
Mrs. Angle set forth in her bill. This bill was even stronger
than Mrs. Angle's in charging bribery and corruption on
the part of the Omaha Company.

But instead of demurring to the Farmers Loan & Trust
Company's bill, the Omaha Company by answer relied on
the acts of the Wisconsin legislature, and denied there was
any bribery, fraud, undue influence, or deceit practised by
it in securing the passage of that legislation. Evidence
was taken on both sides. Both cases were heard together
by Justice Harlan, while'on the circuit at Madison, in June,


1889. Charles M. Osborne was still the chief counsel for
the Omaha Company.

On July 10, 1889, Justice Harlan announced his con-
clusions in an elaborate opinion. He came right up to the
dead line. The proof was ample that corruption and im-
proper influences on the part of the Omaha Company caused
the legislature of Wisconsin to revoke the grant to the
Portage Company and confer it on the Omaha Company,
and invalid as was the act of February 16, 1882, it broke
the credit of the Portage Company; still the act of con-
firmation was an act of the legislature, binding on a Federal
court, sitting as a court of equity. Therefore he turned
out of court the Farmers Loan & Trust Company, on its
proofs, and Mrs. Angle on the allegations of her bill.

The Supreme Court reversed Justice Harlan at first in
the Angle case and then sustained him. But in finally
turning Mrs. Angle out of court, Justice Brewer, as the
spokesman of the Supreme Court, made no mention of
the testimony of Porter and Spooner, of the decision of the
Supreme Court of Wisconsin condemning as immoral the
contract of January 20, 1882, and the former decisions of
the Supreme Court of the United States on which the Wis-
consin court in part rested its conclusion. Still they would
go behind the legislative act. But in order to do so they
said, and so did Judge Brewer and the Court of Appeals
for the Seventh Circuit, that it was necessary to show that
money was actually paid to some member of the Wisconsin
legislature and that was not shown.

Justice Harlan in a formal written opinion agreed with
his brethren in their conclusion but dissented from their
method of reaching that conclusion. "Sure," he said,
some of that money had reached the members of the Wis-
consin legislature, but because it was a legislative act, that
act, no matter how corruptly brought about, was binding
on the courts. The utter variance between Justice Harlan
and his brethren as to the most important fact in the case


not only disgusted some of his brethren, but impeached the
conclusions he and his brethren had reached, and justified
Walter Q. Gresham in quoting to Justice Harlan the couplet:

Those who have been in court declare,

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