Volume IX · Winter 1954 · Number 2
The William E. Werner Collection
--JOHN R. RUSSELL
The Library has recently received from Mrs. Frank E. Gannett, Mrs. Douglas Townson, and Mrs. Hawley Ward a collection of books and manuscripts that had been in the library of their father, judge William E. Werner. The collection includes correspondence, legal opinions and memoranda, speeches, scrapbooks filled with newspaper clippings, and notebooks containing legal citations and authorities. While the material relates chiefly to judge Werner's activities in his later years, a study of the collection will give one a picture of one of New York State's outstanding jurists and one of Rochester's most distinguished citizens.
William Edward Werner was born in Buffalo in 1855. His parents, Peter and Margaret Werner, had come to the United States from Germany at the time when so many people left their homes to find freedom and opportunity in America. William Werner's career demonstrated that their faith in the United States as a land of opportunity was fully justified, although they died when he was twelve years old and thus did not see how well their son fulfilled their hopes for him.
The early death of his parents forced William Werner to leave the public schools and go to work, first as an errand boy, then as a foundry worker, and later as a farmhand, this last occupation probably chosen because it permitted him to return to school in the Winter months. His eagerness for education brought him back to Buffalo, where he took a job in a factory and attended Bryant and Stratton's Business College at night, studying bookkeeping and commercial law. This soon led to a position as a bookkeeper in a wholesale grocery firm.
William Werner's study of commercial law must have intensified his interest in law, for in 1877 he moved to Rochester in order to study law in the office of William H. Bowman in the Powers Building. For his second term he moved to the office of Dennis C. Feely in the same building. His first appointment to a public position came in 1879 when he was twenty-four years old. The office was that of clerk of the Rochester Municipal Court. He was admitted to the bar in October of the following year and gave up the clerkship to establish a law partnership with Henry J. Hetzel which was continued for four years.
An account of the Republican County Convention of 1884 in the Rochester Post Express for September 16 of that year tells of William Werner's candidacy for his first elective office:
C. D. Kiehel presented the name of William E. Werner as candidate for the office of Special County judge. The nomination was warmly seconded by Cassius C. Davy in behalf of the delegation from the Seventh Ward ... Messers Hannan, McVean and Werner expressed their thanks in graceful terms.
In the editorial comment in the same issue the following information was given:
Mr. Werner was one of the organizers of the Lincoln Club and has held various offices in that association, having served three terms as its President. He has always been a zealous worker in the Republican party and is very popular with the German population of the city and county.
The Lincoln Club mentioned in the editorial was an organization of Republicans, chiefly the younger business and professional men in the party, who got together to discuss policies and debate important issues of the day. William Werner's active participation in it as a young newcomer to Rochester was indicative of his interest in civic and political affairs and in people.
The election of 1884 was a triumph for the young lawyer beginning his judicial career, for he ran two thousand votes ahead of his ticket, and defeated his opponent, A. P. Butts of Brockport, by seven thousand votes, the largest majority given to any candidate in Monroe County up to that time. That he performed the duties of his office well is shown by his renomination by the Republican Party in 1887, and the withdrawal of the Democratic candidate before the election, so he was re-elected Special County judge without opposition. After serving five years in this position he was nominated by the Monroe County Republicans for the office of County judge. The Union and Advertiser in an editorial appearing October 31, 1889, told of his nomination by the Democrats:
The Democratic County Convention having referred the matter of the nomination of a candidate for County judge to the Democratic County Committee, the latter body, by unanimous vote, has placed upon the ticket the name of Hon. William E. Werner, for the past five years Special County judge. This is one of those exceptional cases, under the general rule of strict party nominations, in which the endorsement of a candidate of another party for judicial office is justified, and commends itself to the approval of Democrats - Judge Andrews of the Court of Appeals and Judge Davy of the Supreme Court being precedents. Judge Werner, although a Republican, has during his five years' service upon the bench as Special County judge been so free from anything like party bias in his official actions, and so fair and just in all his proceedings, as to merit and receive the approbation of all citizens.
The Democrat and Chronicle, in commenting on his nomination in its issue for September 20, 1889, recorded another important event in Judge Werner's life:
Judge Werner was lately married to Miss Lillie Boller, a daughter of a prominent business man of Buffalo. If elected county judge he will be the youngest man who has ever held that office in Rochester, and will bring to the bench youthful vigor, with ripe experience and a sunniness of temper that is a most desirable quality in a judge, and that as a man has made him as many warm friends as there are people who know him.
At the Republican judicial Convention of September 3, 1894, over which C. D. Kiehel presided as chairman, Dennis C. Feely presented the name of William E. Werner to fill the vacancy on the Supreme Court of the District resulting from the death of judge Macomber. Mr. Feely spoke on the basis of his long friendship with Judge Werner, which began when Mr. Feely took him into his office as a law student:
For seventeen years I have watched the quiet current of his life, as a citizen, a lawyer, and a judge. I had abundant opportunity of observing his kindness of heart, his sympathy with the unfortunate, his courtesy to the profession, and his respect for the opinion of others.
Judge Werner was unanimously nominated, and won in the election in November, taking his place on the Supreme Court of the Seventh Judicial District January 1, 1895. At the end of his fifth year on the Supreme Court he received the following letter from Governor Theodore Roosevelt which foretold his appointment to the Court of Appeals, the highest court of the state:
State of New York
Albany Dec. 29th, 1899
Mr. Justice William E. Werner,
Rochester, N. Y
My dear judge: --
It gives me pleasure to say that I intend to appoint you to the Court of Appeals. This is, of course, to be kept entirely confidential. I do not have to say to you that in your new position as in your old position, all I have to ask is, what you would give anyhow, that is, the assurance by your every action that when you are on the Bench you know neither republicanism nor democracy - nothing but law, justice and the true welfare of the people. With great regard, believe me,
Early in his career as a Special judge of the Court of Appeals, Judge Werner wrote the principal decision in the Roland B. Molineux case, one of the most famous murder cases of the period. Molineux had been convicted of the murder of Mrs. Katherine Adams. His case was appealed, and the Court of Appeals ordered a new trial. A great deal of conflicting evidence had been given by several so-called handwriting experts which was one of the reasons for this decision. At the new trial the jury took only twenty-five minutes to return a verdict of not guilty. Because of the publicity given the case and the question of expert witnesses involved in it, Judge Werner's decision, unanimously supported by the other members of the court, received wide acclaim.
Governor Benjamin B. Odell reappointed judge Werner as a Special judge in 1902, and in 1904 he was elected a regular member of the court for a term of fourteen years. Many interesting cases came before the court while he served as Associate judge. Another famous case which went to the Court of Appeals and which focused attention on Judge Werner was that of Charles Becker, a policeman in New York City who was convicted of the murder of a notorious gambler, Herman Rosenthal, in 1912. The case was appealed, and in February, 1914, the Court of Appeals granted a new trial. Judge Werner dissented and stated in his minority opinion that the Court of Appeals had usurped the function of the jury in allowing a new trial. Editorial opinion favored Judge Werner's position and decried the granting of the new trial. When the second trial was held in 1914, Becker was again convicted, the Court of Appeals refused to grant a third trial, and Becker was electrocuted.
One of the most important cases to come before the Court of Appeals while Judge Werner was a member was the Ives workmen's compensation case. The legislature had passed the Wainright Compensation Act in 1910, after a commission had devoted two years to the study of compensation laws, most European countries having adopted them before 1910. The celebrated case, "Ives v. Southern Buffalo Railway Co." was brought before the Court of Appeals in 1911, and because it was the first test of a comprehensive workmen's compensation law in this country, it received a great deal of attention. Judge Werner wrote the decision, which was unanimous, declaring the act unconstitutional. In the decision judge Werner said:
Under our form of government courts must regard all economic, philosophical, and moral theories, however attractive and desirable they may be, as subordinate to the primary question whether they can be molded into statutes without infringing upon the letter or spirit of our written constitutions. In that respect we are unlike any of the countries whose industrial laws are referred to as models for our guidance. Practically all of these countries are so-called constitutional monarchies in which, as in England, there is no written constitution, and the parliament or law-making body is practically supreme.
In our country the Federal and State Constitutions are the charters which demark the extent and the limitations of legislative power; and while it is true that the rigidity of a written constitution may at times prove a hindrance to the march of progress, yet more often its stability protects the people against the frequent and violent fluctuations of that which for want of a better name we call public opinion.
While editorial comment shows that some approved and others disapproved of this decision, the public opinion to which Judge Werner referred in the decision itself was apparently against the court, and because Judge Werner wrote the decision, against him. Actually the decision, logically organized and clearly expressed as were all Judge Werner's decisions, showed what would have to be done in order to have the kind of workmen's compensation law that was desired. The State Constitution was amended, and a second law passed in 1913.
The Ives case had an unfortunate effect on Judge Werner's career. In 1913 he was nominated as the Republican candidate for the office of Chief Judge of the Court of Appeals to succeed Judge Edgar M. Cullen. The Democrats nominated Judge Willard Bartlett, of Brooklyn, who had been on the State Supreme Court from 1884 to 1906, and on the Court of Appeals since 1906. During the campaign the Ives case was used to influence the labor vote against Judge Werner, although Judge Bartlett had concurred in the decision. The vote was very close. At first it appeared that Judge Werner had won, and a number of his friends, including Rush Rhees, Nicholas Murray Butler, and William Bausch wrote him letters of congratulation. The letter from President Butler, while incorrect as to the outcome of the election, gives an indication of the reason for his defeat:
in the City of New York
November 7, 1913
Judge William E. Werner
Court of Appeals
Albany, N. Y.
My dear Judge Werner.
I have written you two different letters according as the early returns indicated, first your election and then your defeat by a narrow majority. But by withholding both until this morning I am able to write you as I wanted to do, a line of hearty congratulation upon your election to be Chief Judge of the Court of Appeals. This seems to have been accomplished beyond peradventure, although owing to conditions in Erie, Onondaga and Rensselaer Counties the majority is not what we had hoped it would be. Nevertheless, the principle for which you stood has been vindicated by the people, and you yourself have the pleasure of knowing that the direct personal attacks so maliciously and unjustly made upon you have failed of their purpose.
It was no small satisfaction to know that even if you had been defeated so accomplished a jurist as Judge Bartlett would have been chosen as Chief Judge; but under the conditions that prevailed this year it was highly important not only for the interests of the Republican Party, but for the principle of an independent judiciary that you, who had been singled out for particular attack, should succeed.
With hearty congratulations, I am,
Nicholas Murray Butler
Judge Werner sent Judge Bartlett a congratulatory telegram on November 6, to which judge Bartlett replied as follows:
21 Pierrepont Street:
Brooklyn, November 6, 1913.
My dear Werner:
Your telegram struck me almost dumb! I had no idea of such a thing up to the moment I received it. Then word began to come from the local Republican leaders here, who assured me that the news was authentic - and you can imagine the rest.
I am sorry that my success involved your defeat. I am sure you know and believe that I confidently hope and expect to see you elected Chief Judge three years hence; and then all will be right.
Meantime, I thank you with all my heart for your kind congratulations and I bespeak your aid in the task before me.
The letter that Judge Werner wrote to Clark Bell of the Medico-Legal Society on December 31 gives the basic information about the election very clearly and shows why there are so many letters of congratulation in the collection:
Rochester, N. Y., December 31st, 1913.
My dear Sir and Friend:
Upon my return from an absence from home due to the illness of Mrs. Werner, I find upon my desk your favors of recent date. In the first of these you tender me your very hearty congratulations upon my election as Chief Judge of the Court of Appeals, and I am very sorry to be compelled to acknowledge that they are due to my opponent Judge Bartlett rather than to myself. The mistake is not unnatural in the circumstances which followed the election. At first there was a general report to the effect that I had been elected. On the day following, the Chairman of the Republican State Committee authorized the announcement that I had been defeated by about 7000. Twenty-four hours later this latter report was recalled and it was claimed that I had been elected by about 3500 to 4000 plurality. For ten days the matter stood thus, with some fluctuation in the figures, and meanwhile I was answering letters of congratulation received from every quarter. Then the belated official returns began to come in and it was discovered that a mistake of 3000 had been made in my favor in one of the Brooklyn districts and, acting upon this assumption, I took it for granted that I was defeated. This turned out to be the fact when the State Board of Canvassers met on the 15th of December and, after canvassing the vote, announced that Judge Bartlett's plurality up the State was 3018. I am very sorry both on my own account and yours, for I know how sincerely you have wished me well.
Referring to your letter of the 29th inst, conveying the courteous invitation of the Medico-Legal Society to attend a dinner to be given in honor of Judge Parker, Judge Cullen and myself, I assume that your invitation to me was predicated upon my being the Chief Judge-elect, and that you will probably desire to transfer the invitation to Chief Judge-elect Bartlett, to whom the honor rightfully belongs. Quite apart from these considerations, however, there is the difficulty of my getting to New York at all during the month of January, until the last day when the annual banquet of the State Bar Association will be held. I hope to be able to attend that function, but it is the very first day in the month that I shall have at my disposal. This is due to a combination of causes of which I need only mention two. Mrs. Werner has been very ill and much of the time which would ordinarily have been given to my work has been devoted to attendance upon her. In consequence of this I have been somewhat behind with my regular work, and am striving with the utmost of my ability to catch up. You will, of course, understand what this means.
Thanking you very, very much for your courteous invitation and good wishes, I beg to wish you A Happy New Year and to remain
Wm. E. Werner
Judge Bartlett's prediction that Judge Werner would succeed him did not come true. In fact, it was Judge Bartlett who read the Minute of the Court of Appeals in Reference to the Death of William E. Werner, an Associate Judge of the Court, who died March 1, 1916. The letters Judge Werner wrote during the fifteen months of his illness are a great tribute to his courage and faith. The many letters of condolence received by Mrs. Werner from friends and associates show how widely he was admired and respected. Anyone using the William E. Werner Collection will have the privilege of knowing a man of unusual ability and great strength of character, whose integrity was as unquestionable as was his love of his fellow men.