partner and conducted successfully the Oneida Indians litigation. In 1854 he removed to Wisconsin and located in Janesville, then a promising city in the southern part of the state. He at once took rank with the leading members of :the local bar, including in the list such names as that of Matthew H. Carpenter, afterwards a United States Senator from Wisconsin, Judge John R. Bennett, of the state circuit court, Charles G. Williams, subsequently a member of Congress from Wisconsin, Judge David Noggle, of the state circuit court, and others. He was elected District Attorney of Rock County in 1858 and was re-elected in 1860. He was elected a Representative to Congress in 1862 and again in 1864. He continued to reside in Janesville until he removed to Madison, the capital of the state, in 1874. While in Madison, he formed a law partnership with Breese J. Stevens and W. A. P. Morris for practice under the firm name of Sloan, Stevens & Morris. His brother, A. Scott Sloan, was elected Attorney-General of the state at the annual elections in 1873 and 1875. During a portion of the term of his brother as AttorneyGeneral, Mr. Sloan was his Assistant Attorney-General. For a number of years during his residence in Madison he was a lecturer in the law department of the University of Wisconsin, and for ten years prior to 1890 he was the Dean of the Law Faculty of the University. He continued the practice of his profession at Madison until 1898. Failing health then compelled him to cease from active labor. He retired to his farm near the city of Janesville, the scene of his early labors and early triumphs, where he died on the 24th day of December, 1898, at the age of seventy-six years.

Thus is summarized, in a few sentences, the long and busy career of this able member of the Wisconsin bar.

But no

attempt has been made to direct attention to his valuable professional services to his adopted state and to the nation. And it is mainly with Mr. Sloan's career as a lawyer that we are most concerned. For, as a lawyer, his public services were of the herculean quality. Always great in a court of justice, he seemed greatest when engaged in legal argument before a bench of welltrained judges.

It has been already intimated that Mr. Sloan excelled before the court rather than before the jury, in forensic rather than in oratorical ability. This view seems to be quite generally entertained by his brethren of the bench and bar. One of these has said: "He did not carefully prepare or deliver addresses before the public on any topic.

He made no effort for oratorical display. His strength was in his great power of analysis and his logical and accurate expression of his conclusions. He was forceful and extremely persuasive in argument. He seized upon the strong point in his case and presented it with great cogency, relying almost wholly on his own reasoning and giving but little attention to the authorities. He did not weaken his arguments on the strong and decisive questions in his case by endeavoring to establish and sustain the doubtful and immaterial ones, but usually passed them with little or no notice."

Another lawyer, who was intimately associated with him for a number of years, says: "He was one of the foremost lawyers of the state and of great natural ability. He was not a laborious man, yet when interested in a legal question his interest would not fail by reason of his inclination to idleness. He worked then with diligence and force and great rapidity. His memory of what he had read, and where to look for

the law that he wanted to find, was unusual. . . . If I had at any time consulted him upon a matter which was for the time being dropped, and I again consulted him upon the same matter months afterwards, he would instantly begin with the matter where we had left it and recall all of the conversation that we had previously had upon the subject. He had little patience with technicalities. His mind was too broad for them and too profound. He was resourceful and faithful to his client, but was above the desire to win for the mere sake of winning."

It is interesting to note some of the observations of the members of the Rock County Bar Association. It is interesting because it is believed to be a fairly just estimate of the lawyer by those who knew him long and intimately. "The more important and difficult the question, the more manifest his great mental strength and self-command. In discussing questions of fact, he was logical, thorough and convincing, but his strength was better manifested in the discussion of legal questions, affording opportunity to deal with principles of law and reasons underlying them and governing their application. His handling of decisions was most masterly, but to his great praise be it said, he was not a case lawyer. His penetrating and analytical mind inclined him to seek for and rely upon foundation principles as the best guide to correct conclusions. The records of the cases in which he has taken part will be an enduring memorial to his ability and virtues as a lawyer."

Mr. Sloan was engaged in much of the far-reaching litigation in the state. One of the cases of commanding importance is that of Whiting against the Sheboygan and Fond du Lac Railroad Company and others, and is reported in the 25 Wis. 167. This was an action brought

by a taxpayer to prevent a county from aiding a railroad company to build a railroad through the county from one certain point to another by voting a tax upon the taxable property of the county for that purpose. for that purpose. A private law had passed the Legislature authorizing the assistance. Mr. Sloan's contention was that the proposed tax was for a private purpose and therefore invalid. The Supreme Court of the state held with his view in an exceedingly able and exhaustive opinion. And the case has become one of the leading cases upon the subject in this country. It has settled. the doctrine that municipalities, county, city or village, cannot raise money by tax to donate to railroads.

Some of the arguments presented to the Supreme Court are interesting and will bear reproduction. Among them. Mr. Sloan said, "that the only solid ground upon which the distinction between a public and a private purpose, in the use of money raised by taxation, can rest is, that in the one case the title to the thing constructed or acquired with the money vests in the public, and in the other it vests in an individual or a private corporation. We admit that money may be raised by taxation by a municipal corporation, if authorized by the legislature, to build a railroad, and we do not see why it might not also be so raised to operate a horse railroad, a line of stages, a bank, a store, a hotel, a mill, or a merchant's shop, to be owned by the municipal corporation. But we deny that money can be so raised to build or operate any of these things. for an individual or a private corporation. Yet the incidental benefit to the public would be the same whether any of these enterprises were owned and conducted by the municipal corporation or by a private corporation. The only difference would be, that in the one case

the direct benefits (that is, the profits, if any) would go to the taxpayers whose money is taken; and in the other they would not. No court has gone to the length of holding that money raised by taxation can be donated to a private corporation."

On a rehearing Mr. Sloan took up other questions not before considered. Among these questions is the right of eminent domain. His exposition of the subject is certainly a law classic. He says: "It is said that the power of eminent domain can be exercised only when the property is taken for a public use. And it is assumed that the same public use which will authorize a right of way to be taken under the power of eminent domain, will also authorize money to be raised by taxation and paid over to any individual or private ccrporation in whose favor the power of eminent domain can be exercised. But these two branches of sovereign power are distinct, and proceed upon different principles. The one takes specific property for public use, but awards full compensation. The other is defined to be a rate or sum of money assessed on the person or property of a citizen by government, for the use of the nation or state. We apprehend that an important distinction between these powers is, that property taken by the power of eminent domain may be taken for the use of the persons who compose the public, in their individual capacity. Such is the case when the right of way is taken for a railroad, or when land is taken to create water power for a mill, or for a turnpike. In none of these cases has the government of the state any connection or concern beyond the act of delegating the power of eminent domain to the individuals or private corporations engaged in these enterprises. On the other hand, money raised by taxation is taken for the use

of the state or nation in its organized political capacity as a government. It results from this distinction that property might well be taken under the power of eminent domain, which would remain the subject of a perpetual use by the individuals who compose the public as the people of the state, although the title be transferred to a private corporation. It would in such a case be a matter of comparative insignificance to the owner of the property taken, whether the title went to the government or to a private corporation, as in either case full compensation must be made before it can be taken. And it would be of as little importance to the people generally, as the use for which it would be taken and held would be secured to them equally in either case, for the moment such use ceased it would revert to the original owner. But the use of money raised by taxation consists wholly in its exchangeable value or purchasing power; and it can only be exacted by the state or nation to defray the public charges. In other words, the state takes money from individuals as their share of the public burdens. And it is an inexact use of language to say that money raised by taxation is taken for the public use, without distinguishing between a use by the people in their individual capacity as citizens, and a use by the government in its organized capacity. The legislature can raise money by taxation without limit for the use of the government of the state, or to discharge the burdens resting upon it; but it cannot raise money by taxation for the use of, or to discharge the burdens resting upon, the persons who compose the public, in their individual capacity as citizens. It is this distinction which makes the boundary line between the power of eminent domain and that of taxation."

A summary of Mr. Sloan's most cogent

argument concludes with these terse sentences: "It us true that there is no express constitutional prohibition upon the exercise of the power of taxation here claimed. The reason undoubtedly is, that while history furnishes many examples of the rapacious conduct of governments in taking the property of citizens for their own purposes without compensation, no government of any civilized country, however despotic, had ever claimed, or attempted to exercise, the right to take, without compensation, the property of one class of citizens and give it to another. In these latter days the attempt has sometimes been made, as this case shows; but whenever it has been made, courts have everywhere held that no such power has been granted to the legislative branch of government, and that all acts having such an object in view were wholly void; and the prohibition is as imperative as though found in the express provisions of the Constitution."

It is to be noted that Mr. Sloan's argument was almost entirely independent of reference to authorities. And yet his arguments were so well put and forcible as to be convincing to the majority of the judges of the Supreme Court as to their correctness. The doctrine of this case has been followed in a large number of cases.2

Phillips and others v. Town of Albany and others, 28 Wis. 340, 357; Judd and another v. Town of Fox Lake and others, 28 Wis. 583, 585-6; State ex rel. McCurdy v. Tappan, Town Clerk, 29 Wis. 664, 685; Rogan v. City of Watertown, 30 Wis. 259, 264; Lawson v. Schnellen and others, 33 Wis. 288, 292; The State v. West Wisconsin Railway Co., 34 Wis. 197, 215; The Attorney-General v. Railroad Companies, 35 Wis. 425, 571; Bound v. Wisconsin Central Railroad Co., 45 Wis. 543, 559; Nevil and another v. Clifford et al., 55 Wis. 161, 172; Lynch v. Eastern, LaFayette & Miss. R'y Co., 57 Wis. 430, 435; S. C. id. 470; Willard and others v. Comstock and another, 58 Wis. 565, 574 and 5; Sage and others v. Town of Fifield and others, 68 Wis. 546, 550, 1 and 2; Pedrick and others v. City of Ripon and others, 73 Wis. 622, 625; Ellis v. Northern Pac. R.R. Co., 77 Wis. 114, 118, 19 and 20; S. C. 80 Wis. 459, 463; Fowler v. City of Superior, 85

It may be said in passing that the case of Olcott v. The Supervisors, 16 Wall. 678, holds that a railroad is a public highway, a road for public use, and that therefore a state may impose a tax in furtherance of that use, though the road be owned by a private corporation. That view has never been accepted in Wisconsin as the correct one. Nor does it find general support in the courts of last resort in the several states.

The limits of this article will not permit of a too extended reference to the litigation in which Mr. Sloan was interested and of which he was so large a part. But any consideration of his professional career would be both unsatisfactory and incomplete, if it failed to take into account his great public service to the state and to the nation by reason of his intimate connection with the litigation growing out of the Potter Law, so called, the Granger Railroad legislation enacted by the Wisconsin Legislature in the early part of the winter of 1874. This law proposed to fix the maximum rate for the carriage of passengers or freight in Wisconsin by railroad, express and telegraph companies. It was claimed to be drastic in its operation and the railroad companies insisted that it involved an unwarranted exercise of legislative power. On the other hand, it was claimed that the constitution of the state gave to the Legislature the right to exercise this power; that unless it could be made to appear that the exercise of the power in the instant case amounted to confiscation, the parties affected by the law would

Wis. 411, 425; Lund v. Chippewa County and others, 93 Wis. 640, 650 and 1; Wisconsin Keeley Institute Co. v. Milwaukee County, 95 Wis. 153, 159; Chi. and N. W. Railway Co. v. Morehouse and another, 112 Wis. 1, 10; The State ex rel. City of New Richmond v. Davidson, St. Tr., 114 Wis. 563, 574; The State ex rel. Garrett v. Froehlich, Sec. of State, 118 Wis. 129, 135; The Citizens' Savings and Loan Ass'n v. City of Topeka, 20 Wall. 655; Kennicott v. Supervisors, 16 Wall. 452, 463.

have to submit to its enforcement. The railroad companies refused to submit without a struggle in the courts. The case is found in the 35 Wis. 425, and is there entitled The Attorney-General v. The Chicago & Northwestern Railway Company. A similar action was pending against the Chicago, Milwaukee and St. Paul Railway Company, and both cases were considered as one action as the identical legal questions were involved in them. Substantially the same questions were raised in the case of Peik v. Chicago & Northwestern Railway Company and reported in the 94 U. S. Reports, on page 164. It may be said, however, that the opinion of Chief Justice Ryan in the Wisconsin court is far more able and exhaustive than is the opinion of the Supreme Court of the United States. Indeed, it may be said of Justice Ryan's opinion that he left nothing more to be said upon the subject of which it treats. It at once placed its author in the front rank of the great American jurists of the country.

The legal questions considered by the Wisconsin court were numerous, were vital and were vastly important to the material interests of the population of the state. They included the original jurisdiction of the Supreme Court and its exercise in injunctional proceedings; the legislative regulation of railroad tolls and the extent of its power to alter railroad charters and limit charges under the provisions of the Constitution; informations by the Attorney-General involving new questions of practice. All of these matters were brought to the professional attention of Mr. Sloan, who was the Assistant Attorney-General at the time. And how well he acquitted himself in that litigation will appear, in a small way, in what follows. His arguments in that contest are spoken of by those who heard the case before the

court as among the ablest ever made by any lawyer in the West.

In this case, Mr. Sloan was very insistent in his claim that the Supreme Court has original jurisdiction in equity to the extent of issuing writs of injunction to restrain the commission of unlawful acts under sec. 3 of Art. VII of the Constitution. He cited a number of cases in our state court which adhere to this view. But the decisions in other state courts were also cited to show the same view. This he follows with the statement that courts of equity can restrain by injunction a corporation from exceeding its corporate powers, and if the exercise of the usurped power causes special injury to the property or rights of an individual, he can maintain a suit in equity to enjoin the exercise of such power. These propositions he fortifies with well-considered authorities. To the suggestion that there is a remedy at law in the instant case he answers as follows: "The information in the nature of quo warranto to forfeit the charter of a corporation is in the nature of punishment, and the proceeding was formerly regarded as strictly criminal, and is still quasi criminal. But the remedy by injunction is for the prevention of injury, and not for punishment. The ground of the application is not that the act is crime, but that it occasions irreparable injury to several persons. The defendants, in order to succeed, must establish the principle that because the act is crime it is entitled to favor and protestation in a court of equity." See also Attorney-General v. Cleaver, 18 Ves. 214. Mr. Sloan argues exhaustively and quotes authorities without number to show that the instant case is properly before the right court. and that the correct proceeding is now seeking adjudication.

Discussing the validity of the law of