Edward E. Wagner Biography This file contains the biography of Edward E. Wagner from "Who's Who in South Dakota" by O. W. Coursey (1913) Scanning by John Rigdon , final editing by Joy Fisher from a book in the possession of Joy Fisher. This file may be freely copied for non-profit purposes; all other rights, including the right to publish this file in any format is reserved. OUR U. S. DISTRICT ATTORNEY Dame Nature, true to her accustomed instincts for variety in mankind, created Edward E. Wagner, of Mitchell (our present United States district attorney for South Dakota) with a face so narrow that, as the polite westerner would say, "He can kiss a goat between the horns without any inconvenience." Yes; and she went farther; on that lean face she firmly placed a long thin nose as sharp and as pointed as a probe. Exactly so! and nature intended it for that very purpose-to probe into subjects for lit- igation, the conduct of individuals and legal technicalities. In a case from Pennington county, recently tried in federal court before Judge Elliott, at Deadwood, and which Mr. Wagner as United States district attorney was called upon to prosecute, he had probed into the deal so deeply that he found the core and had rooted out over twenty distinct counts against the accused; and, furthermore, when he went into court, he made every one of them stick. Again, in the famous "white slave" case, tried only a few weeks since in Sioux Falls, he had ferreted out four counts instead of one against the defendant, and he proved every one of them. Wagner is a mighty likable fellow-one, generous in his na- ture and willing to accord the right of private judgment to every man. It is a privilege indeed to know him. His present position has not "swelled" him up. In court, he's a vigorous prosecutor; outside, democratic and companionable. Well read in law, keen and aggressive in its application, he makes a public prosecutor for South Dakota whom criminals against the federal law need to dread, and a protector of the people's rights, of whom they may well feel proud. PARENTAGE Wagner's father, James H., was a sturdy Civil War veteran. His mother, Louisa E., was a faithful Christian woman. They lived in Linn county, Iowa, near Cedar Rapids. Becoming tired of renting, and preferring to take chances on being thrown upon their own resources as pioneers, the young people, in the spring of 1870, packed up their scanty belongings, piled them into a wagon that was materially effected with age and heavy usage, covered it over with a piece of patched tentage, hitched on to it the old team of dreamy oxen; the faithful groom took his place on the hard seat-board beside his loyal bride, cracked the whip over the backs of Buck and Brindle, and the Wagners were off on their trying journey across unbroken prairies, through entang- ling forests, fording unbridged streams, for their future home in Lyon county, Iowa. This county is in the extreme northwestern part of that state. It lies just across the narrow Sioux river, from Lincoln county, South Dakota. Here they homesteaded in June, 1870, built a log house and settled down to work out their destiny. THE STORKS' ERRAND Wishing to people the "fabled golden west" and, as a re- sult, to convert its sleeping domain into productive fields, Prov- idence-as has been His custom for all these thousands of years - sent out a trusted Stork one day in 1870, carrying in its talons a huge basket filled with promising October babies: Little chest expanding crooners from the sky- Bright and happy angel-faces Sent to occupy the places Of little people, such as Pa and I," with instructions to distribute them among the families of north- western Iowa, wherever they might be needed as "Little minstrels of the stilly, chilly night, Making papa promenade the stage in white." The stork had had a busy day. Nightfall of October 22 was upon it. Only one baby remained in the basket. Where? where? oh! where? shall I leave it?" muttered the tired stork. Just then it crossed over the line into Lyon county; and sighted in the far distance a dimly-lighted cabin beside of a deep ravine heavily timbered and in which numerous Indians were camping while elk were feeding in the moonlight along the hill- sides not far away. Hastening toward it the weary stork flew directly into the open door of the cabin, just as its tired talons gave way, and it dropped the basket and all into the receptive lap of Mrs. Louisa Wagner, - then it disappeared; and thus was born the first white child in Lyon county, Iowa, Edward E. Wag- ner, the worthy subject of this sketch. EARLY EXPERIENCES When Edward was three years of age the family moved to another farm near Rock Rapids, Iowa. Here, the lad entered public school, at five years of age, and remained in school until his father's untimely death in 1884. The loss of his father forced the lad to leave school and as- sist his mother on the farm for the next five years. How- ever, at nineteen, he entered the law office of H. G. Mc- Millan, attorney for Lyon county, and subsequently United States district attorney for northern Iowa, and took up the study of law. For sup- port he harvested and threshed each fall. Finally, on May 11, 1893, at the age of twenty-two, [photo - E. E. WAGNER] our young stork-gift found himself in chambers before the supreme court of the state of Iowa, where he passed a very creditable examination and was promptly admitted to the bar. OFF FOR DAKOTA In the early part of the succeeding month he ap- proached his mother one morn- ing, with a long face. He said: "Mother, I want to go to some point in central South Dakota to practice law. I haven't a penny to my name. Couldn't you loan me $25? I'm sure I'll make good and can soon pay it back." "Wouldn't it be better to stay here among friends and ac- quaintances, Edward?" calmly argued his thoughtful mother. "They know you and they would no doubt turn you quite a little business." "I've been watching this thing for several years while I have been reading law with Mr. McMillan, mother," said young Wagner "and I am positively convinced in my own mind that it is better for a young lawyer to seek a strange place. Dakota is a new country, settled by mixed nationalities who have not as yet become accustomed to each other. For several years there will be a lot of litigation. I believe I better go." "Very well," said his yielding, well-wishing mother; "I will loan you the money, but you needn't be in a hurry about paying it back." Stepping into a small bed-room, she took from the bottom of an old dresser drawer a tiny Indian bag made of deer skin and ornamented with beads, loosened the draw-string and picked out of it a small roll of bills; counted out $25, handed it to her am- bitious son, and said with tears in her eyes: Edward you will take with you my benediction, and may God bless you and keep you a man!" The next day young Wagner landed in Chamberlain, South Dakota. Here be had an interview with the late Judge Morrow, the purpose of which was to form a partnership for the practice of law. These negotiations failed. So, after a few days, the young fellow made his way back to Mitchell where he landed with but $2.65 in his pockets. He at once engaged a room at the old Raymond hotel; sent his linen to a laundress, had it renewed got a shave and a hair cut, had his suit pressed, returned to the hotel and found himself possessor of but fifty cents. The next morning was Sunday-that sacred day that brings or at least should bring, to the surface the best there is in every man. Wag- ner was standing on the porch of the hotel, meditating over an uncertain future. In his clean linen, pressed suit, etc. he looked ike a Greek god-one possessed of all the good things that this life affords, in superabundance. (A bold front has brought suc- cess to many a man.) Up stepped a hungry old negro. Taking off his torn hat, and looking Wagner squarely in the eye, -the darkey said: "Mistah, I'm awful hungry; couldn't you spare a colo'd gentle- man the price of a meal?" "Sure!" exclaimed the young attorney as he reached into his pocket to divide his last half-dollar with the black man whom his own dead father had served four years in the war of the re- bellion to help liberate from his slave master. "Thank you, Colonel, thank you," said the Ethiopian as he gripped the twenty-five cent piece and hastened away to a nearby cafe. "I wonder," thought Wagner, "how soon I'll be asking for a similar favor from some other man." (Only twenty-five cents left. It took courage). But Wagner was not without hope, plus faith (the substance of things hoped for). On the previous morning, Saturday, he had borrowed a state code from old Judge Powers and had prac- tically concluded arrangements to open a one-book law-office in the back part of the Judge's real estate rooms, on the following Monday morning. But, strangely enough, that same evening he had run across Dave Mizener whom he had once before met, and Mizener told him that he had a lot of land contests to be tried; and during the conversation he invited Wagner to try them for him. Before the young fellow scarcely realized it, he was shocked to hear his own voice in court; and his career as an at- torney at law had been begun. He remained with Mizener until the summer of 1894; then he set up in business for himself and practiced law in Mitchell until November, 1899, when he returned to Rock Rapids and be- came identified with his old friend, McMillan. In May, 1899, he came to Alexandria, South Dakota, and es- tablished himself in the practice of his chosen profession at that place. He remained in Alexandria for eleven years, during which time he worked up such a large practice not only locally but throughout the state, that he was compelled to seek a partner. He finally took in W. E. Van Demark, a graduate from the law school of our state university, and a promising and vigorous young prosecutor who has since risen to distinction as states at- torney for Hanson county and who is now retained as one of Mr. Wagner's assistants in his extensive federal court practice. POLITICAL REWARD In 1901-2, Mr. Wagner served as states attorney for Hanson county, and in 1905-6 as state senator from the same county. At the state republican convention, in 1906, he was made chairman of the commmittee on resolutions, and as such he gave to the state the pronouncedly progressive platform of that year. His po- litical activity as well as his rare legal ability, soon found re- ward; and in June, 1907, President Roosevelt appointed him United States district attorney for South Dakota. PRESIDENT STATE BAR ASSOCIATION The legal profession made suitable recognition of Mr. Wag- ner's ability, in 1909, by electing him president of the State Bar association. He had, at the 1909 session, delivered before the convention a masterful address on "The Federal Income Tax." We regret that the salient features of this able speech cannot herein be discussed, but space forbids. However, at the 1910 session, over which he presided, he delivered another address on "The Legislation of the Session of the Legislature of 1909" which was very able, and which has been preserved to us in its entirety by the courtesy of the bar as- sociation. In it he showed that the 1909 session of the legisla- -ture had enacted 301 laws and he then proceeded to discuss some of the more vital ones. We herein reproduce a few extracts from this speech which are worthy of most thoughtful consideration by every citizen of our state: "Among the needed changes suggested to my mind by recent judicial decisions is the modification or repeal of Section 486 of the Code of Civil Procedure, which provides that in a civil action or proceeding by or against an executor, administrator, heir, etc., neither party shall be allowed to testify as to any transaction or statement by the testator our intestate, unless called to testify thereto by the opposite party. . . . . . . "I believe the experience of most lawyers has proved that injustice rather than justice results from the application of this statute. Its purpose of course, is apparent; death having sealed the lips of one party, this law proposes to close the mouth of the other. In theory it seems all right, but when applied to the ac- tual experiences of mankind in ordinary transactions it is an in- strument of oppression and wrong. . . . . . "Although this statute in its original form came down to us from the system of jurisprudence that excluded the defendant in criminal cases, and disqualified the wife to testify in support of her husband's case, and is as much a relic of antiquity as either, the tendency in this state has been to enlarge rather than to res- trict its effect. This is evidenced by the act of the legislature of 1901, which extended the rule so as to include the assignor or any person who has ever had any interest in the subject of the action, as well as the testator of intestate. "To repeal this statute and require corroboration or render admissible statements of the deceased party, as New Mexico and Connecticut have done, would be to proceed in harmony with the enlightened and progressive spirit of the present age. . . . . . . "The lawyer is called upon to apply and interpret the laws, and in his hands rests largely their enforcement. In this connec- tion the legal profession is the greatest instrumentality in the march of human progress. It is sometimes said lawyers are dis- honest. When taken as a class nothing could be further from the truth. Nearly all the dishonest and reprehensible transactions of all other classes are finally unloaded upon the members of this profession, and the obligation to render faithful service to a cli- ent in trouble brings us closely in touch with such transactions, and it is sometimes difficult to escape the shadow. The rule of professional confidence that binds the lawyer to secrecy often closes his lips to self defense." RETURNS TO MITCHELL His duties as United States district attorney added to his large private practice, made it necessary for him to seek a more accessible location, and so in January, 1910, he left Alexandria, and went to Mitchell, where, seventeen years before, he had first undertaken the practice of law with but twenty-five cents in his pocket; and formed a new partnership at that place with one of the ablest trial lawyers in the state-Hon. H. C. Preston; bought himself a home and settled down to enjoy life with Mrs. Wagner and their three children - Hazel, Ruth and Robert. SAVED HIS PARTY During the 1912 political campaign, when the state republi- can convention, for some reason, either wise or otherwise, nom- inated Bull Moose presidential electors and authorized the placing of these electors' names at the head of the regular republican ticket, and thus threatened the life of the republican party in this state, it became evident that something would have to be done to keep the state from going democratic. A conference of state leaders was held; Wagner was called in, and his judgment sought. Almost spontaneously he thought out a scheme of hav- ing these electors make a public statement that in case their votes in the electoral college would not elect the Bull Moose candidate they would cast them for the regular republican nominee. De- bated! Agreed! Wagner had saved the day, and the republican party reversed an almost hopeless fight and carried the state. His wisdom not only saved the electors, but it strengthened the entire state ticket, by unifying it. WAGNER IN ACTION Wagner's greatest asset when he is "in action," during court, is his mental alertness. His concepts are keen as a Da- mascened blade, and they are formed with a suddenness that is astounding. This element of his nature was splendidly demon- strated during the recent trial at Sioux Falls in the case of "The United States vs. Hortense Rich," for violation of the white slave law. The Rich woman was defended by the resourceful, eloquent Joe Kirby, the most prolific Bible-quoter in the legal profession of this state, Joe was making one of his characteris- tic arguments to the jury, when rising to an impassioned and ap- parently inspired outburst of soul-stirring eloquence, he pleaded with the jury to do as the Savior did when the unfortunate har- lot was heralded before him for judgment, in days of Bible lore, set her free and tell her to "go and sin no more." Quicker than a flash Wagner's keen intellect grasped the sit- ation, and, in replying to Kirby, he said he wanted her to go free; but the freedom he proposed for her was in the penitentiary where she would be free from the life of shame she had led. It was a startling rejoinder-evidently not anticipated by Kirby, the jury or the court. In fact it was so unique and so touching that we think it best to reproduce his own words herein, as trans- cribed from the stenographic notes: "Gentlemen of the Jury: The Scene in this courtroom now is one of the saddest I have ever had occasion to witness in a court of justice. It is a picture of the underworld with all the pain that can come to a parent with the downfall of a child found in the midst of a life of shame. "The story of this case is not the account of an ordinary transaction that has come into court for adjustment. It is not the case of a man who has yielded to a human weakness and taken that which is not his. It is not even to be compared with an act of violence that has taken a human life. It is more than all of that. It is a picture of the several stages of womanhood des- poiled by the lust of man and bereft of all that is sacred in the name of woman. Yonder sits the defendant far advanced toward the other end of her misguided life with all the appearances of a human wreck, caused by the life she has led. Behind her sits another inmate of her place, now well on toward middle life, wrecked by dissipation and soon to drop to the lowest depths to which humanity can descend; while here before us are these girls of nineteen just entering the bloom of womanhood with their marks of beauty still intact and with the blush of youth still fresh upon their cheeks, led to this life of shame and ruin by the woman now on trial. "In the midst of these surroundings I cannot conceive it to be my duty to speak ill of the accused. The time was when she was pure and when the door of hope was open to her, and it is not for you and me to know by what means she was led into this condition, and as I look upon her now I am reminded of that beautiful incident in the life of the Savior in which He proclaimed the redemption of woman. It is the story of the Pharisees who brought before the Savior the woman they had taken in adultery. They said to him: 'We have taken her in the very act,' and they demanded of him that she be stoned as prescribed by the laws of Moses. The Savior listened to them in silence and then He said: "He that is without sin among you, let him cast a stone at her;' and he stooped down and wrote upon the ground and the Pharisees who heard him, touched by the consciousness of their own guilt, departed one by one, and the Savior was left alone with the woman, and when He looked up and observed that only the woman remained He said to her, 'Neither do I condemn thee. Go and sin no more." That day he proclaimed the redemption of woman and made it possible for her to rise, no matter how low she may have fallen. "And so with this woman. There is hope if we remove her from her present surroundings; and in this case you, by your verdict, may afford her that chance. Send her to the federal prison, where she may hear again from the lips of the prison chaplain the story of this beautiful lesson and those lessons taught her at her mother's knee, and she may come back and spend her remaining years working for the uplift of fallen woman instead of going to the wicked city to drag down girls and lead them to the lower world. She may go among them with a message from the gospel of Christ and lead them back to lives of love and chas- tity. Say to her as her counsel asked you, 'Go and sin no more,' but do not turn her back to the life from which we have taken her. Give her liberty, but let it be a wholesome liberty. First liberate her from the bondage that has enslaved her to this life of shame and give to her a freedom of conscience; impress upon her the wages of sin and let the words of the Savior come as to that other woman of long ago. Bring her back to a better world and send her forth as a messenger to carry this sacred story to the world of vice; a missionary for the redemption of fallen women. Thus may you discharge your solemn duty as jurors and unite the cause of justice with the higher cause of the Great Missionary." Wagner won the case.