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Story of the Session of the California Legislature of 1909 by Franklin Hichborn

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Against the bill: Finn, Hare, Hartman, Leavitt, Reily, Weed, Wolfe - 7.

Chapter VIII.

The Direct Primary Bill.

Parallel Between It and the Walker-Otis Bill - Attempt to Placate the
Machine Weakened Position of Its Supporters - Most Serious Criticism
Came from Advocates of the Direct Primary Idea - What the Original
Measure Provided - Machine's Plan of Campaign.

The parallel between the Walker-Otis Anti-Racetrack Gambling bill and
the Wright-Stanton Direct Primary bill furnishes the most suggestive
feature of the Legislative session. Each was based on a demand of a
large majority of the people of the State for the correction of an
abuse; the one to prevent the prostitution of the race-course in the
interest of the gambling element; the second to prevent the domination
in public affairs of the corrupt, corporation-backed political boss.

Each had been discussed in the public prints for months previous to the
convening of the Legislature, and each had been made in the popular view
of affairs a sort of test by which the Legislature was to be judged.

Each had the support of not only the better element of electors, but the
better element of each House of the Legislature. Each had the determined
secret opposition, and so far as it dared, the open opposition of the

The campaign which the machine planned against the bills was practically
the same in each instance - to amend the measures into a condition of
ineffectiveness, and then pass them as sop to The People. This would
have given The People a Direct Primary law without a direct primary; an
Anti-Gambling law that would neither close poolrooms nor interfere with

And here the parallel ends.

The proponents of the Anti-Gambling bill introduced an Anti-Gambling
measure, showed that it was the best that could be drawn, and let it be
known that they (the supporters of the measure) would, if it were
amended by the machine, vote against it.

The proponents of the Direct Primary bill, on the other hand, seemed
possessed of the notion that they must placate the machine if any Direct
Primary bill were to be passed.

The backers of the Anti-Gambling bill treated the machine leaders as
recognized enemies of the measure, with whom there could be no
compromise. The backers of the Direct Primary bill treated the machine
leaders as friends and allies, inviting them to offer suggestion and

The results of the two campaigns speak for the effectiveness of the two
methods. The Anti-Gambling element put through an effective
Anti-Gambling bill, refusing to compromise on so much as the change of a
comma. But in the case of the Direct Primary bill, the machine not only
had the last word, but in the feature of the nomination of United States
Senators, the real bone of contention, amended the measure very much to
its liking.

Long before the Legislature convened it was common talk at San Francisco
that the backers of the Direct Primary bill were willing to accept any
sort of a bill, so long as a direct primary measure be passed. Inasmuch
as it is quite possible that a legislative enactment called Direct
Primary law may be a trifle worse than no Direct Primary law at all, the
jelly-fish attitude of the leaders in the movement caused no little
unfavorable comment.

It did not seem to occur to the self-constituted leaders that their
proper course was to draw up the most effective measure possible, let
its effectiveness be known to the people - as was done in the case of
the Anti-Gambling bill - and insist that the Legislature go on record
for or against it.

Instead, they endeavored to satisfy everybody, apparently attempted to
come to a compromise understanding with the machine, or at least to
please machine leaders. Their theory seemed to be that if the measure
were not made too effective, the machine would not seriously oppose its
passage, thus insuring a glorious and at the same time, easy victory.

However unwarranted this assumption from appearances may be, such
hidebound machine men as Wolfe and Leavitt were consulted and flattered,
apparently with the idea that although they had been abused like
pickpockets on previous occasions, they could be won over to the Direct
Primary cause.

The stupidity of this policy was shown at the end of the session, when
Wolfe and Leavitt dictated the terms under which the Direct Primary bill
should pass. Had the supporters of the Anti-Gambling bill pursued the
same policy, and treated the machine leaders as possible friends instead
of recognized enemies, Wolfe, Leavitt and the other machine leaders
would unquestionably have dictated the provisions of the Anti-Gambling
bill, and have forced that compromise which Wolfe in his speech on the
Walker-Otis bill regretted so bitterly had not been made.

The purpose of the Direct Primary is primarily to take away from the
political bosses the monopoly which the convention system gives them in
naming candidates for office, and to place such nomination in the hands
of The People. To this end, under the Direct Primary laws that have of
recent years been adopted, the boss-controlled convention is done away
with, and the candidate for office nominated by the direct vote of The

The play of the machine was to make the direct nomination difficult and
impracticable and, if possible, entirely ineffective. The real
supporters of the Direct Primary idea aimed to make the nomination as
simple as possible, and easily attained, that genuine expression of the
choice of the electors could be secured.

But instead of aiming at simplicity and direct methods, the Direct
Primary bill, introduced in the Senate by Wright and in the Assembly by
Stanton[35], threw a confusing mass of partisan detail about the
selection of the primary candidate. It was made practically impossible
for an independent citizen believing in the principles of a given party,
but withholding his right to exercise the citizen's judgment at the
polls, to become a primary candidate. Throughout, the measure made it
smooth sailing for the mere partisan and extremely hard for independent
Republican or independent Democrat to secure party nomination[35a].

For example, the candidate for party nomination, was, according to the
terms of the bill, required not only to set forth the name of the party
under which he might seek nomination, but to make affidavit "that he
affiliated with said party at the last preceding general election, and
either that he did not vote thereat, or voted for a majority of the
candidates of said party at said next preceding general election, and
intends to so vote at the ensuing election."

Thus, no citizen who had not supported the majority of his party
candidates at the previous election, and who was unwilling to take an
oath before their nomination, to support a majority of the candidates at
the next ensuing election, was to be eligible for primary nomination to

But this, and similar unfortunate provisions were practically lost sight
of in the fight made over the provisions for the nomination of United
States Senators, and remained in the measure as it was finally enacted
into law.

It may be, as the machine element contends, that provision for the
nomination of United States Senators has no place in a Direct Primary
law, but the fact remains that The People have inseparably linked with
the direct primary idea the selection of United States Senators by
direct vote.

The Federal laws provide that United States Senators shall be elected by
the Legislature. But in States where Direct Primary laws have been
adopted, provisions have been made by which the names of candidates for
the United States Senate are placed on the primary ballot the same as
the name of any other candidate for a State office. The same Direct
Primary laws give candidates for the Legislature opportunity to pledge
themselves to accept The People's decision, and as members of the
Legislature to cast their votes for such candidate for the United States
Senate as The People may have named.

The Legislature is thus made to abide by The People's will in electing
United States Senators, precisely as the Electoral College is made to
abide by The People's will in the election of the President.

To be sure, no candidate for the Legislature need take the pledge if he
does not care to do so, but it is recognized that where it is possible
for the voter to express a choice for United States Senator, the
legislative candidate who fails to pledge himself to respect The
People's choice would stand slim chances of election.

The Direct Primary law adopted by Oregon[35b] represents the highest
development of the plan for popular selection of United States Senators.
In that State the candidate for the United States Senate is nominated
the same as any other candidate, the names of each successful primary
nominee going on the regular ballot the same as that of any candidate
for State office.

The Senatorial candidate who receives the highest number of votes is
not, of course, elected to the United States Senate, but candidates to
the Legislature are given opportunity to pledge themselves to respect
the wishes of the voters and elect to the Senate the candidate who is
thus endorsed. The Legislative candidate may sign such a pledge, or he
may sign a statement that he will regard the popular vote for United
States Senator as merely advisory and not binding.

But it is noticeable that in Oregon and other States where such
wholesome direct primary measures have become laws the legislative
candidate signs the pledge to abide by the mandate of the electors.

Unquestionably The People of California expected some such provision in
the California Direct Primary law. Unfortunately, however, Senator
Wright, who had charge of the bill, is not at all in sympathy with the
Oregon plan. It is claimed that the framers of the bill were as little
in sympathy with the Oregon plan as Senator Wright himself. At any rate,
the bill, as a sort of compromise, gave the electors opportunity to
express their choice for United States Senator within party lines. The
candidate for the Legislature was to be given opportunity to pledge
himself to abide, not by the selection of the electors of the State, but
by the selection of the electors of his party[36].

The name of a candidate for the United States Senate did not, under the
original Wright-Stanton bill, go on the final ticket. His choice was
confined to the primaries and was at best to be regarded only by the
legislators of his own political faith. The People of California were
not to be given a direct vote in the selection of United States
Senators, as are The People of Oregon.

If the framers of the Wright-Stanton Primary bill thought that their
compromise on the United States Senator feature of the measure would
placate the machine, they were much disappointed. The machine fought the
arrangement for popular selection of United States Senators within party
lines as positively as it would have combated the Oregon plan itself.

Under either plan, the machine recognized there was always danger that
the selection of a United States Senator would actually be made by The
People. This would mean loss to the machine of Federal patronage, and
Federal patronage is the sure rock upon which the machine in California
is founded. Indeed, had either plan been incorporated into law, the
re-election of Senator Frank Flint would have been made practically
impossible. So the machine fought the Wright-Stanton plan as stubbornly
as it would have opposed the Oregon plan.

On the other hand, the best supporters of the Direct Primary idea were
much disappointed that the Oregon plan had not been incorporated into
the bill. Not a few of them grew lukewarm in their support of the
measure. The extreme partisanship of its provisions and the failure to
provide for popular selection of United States Senators hurt the measure
with its friends, and failed to placate its enemies. From the beginning
the most effective arguments against the bill were found in the bill

This was demonstrated at the public hearing, held January 26th, to
consider the various provisions of the measure. The principal speakers
were Hiram Johnson and Judge John F. Davis.

Mr. Johnson dealt with the Direct Primary in a general way. He spoke of
it in its relation to practical politics, showing that an effective
Direct Primary would place this Government of ours back into the hands
of The People. That is what was wanted. Every point Johnson made was
received with applause from the crowd that packed the Senate Chamber.
And when Johnson concluded with an appeal for "a Direct Primary law that
shall be a Direct Primary law in substance and not in form alone," he
was cheered to the echo.

Judge Davis was not so fortunate in his text as was Mr. Johnson. Davis
was there to discuss the details of the bill. He had scarcely begun
before he found himself between a cross fire of questions from those on
the one side who wanted an effective measure passed and on the other
from those who wanted no Direct Primary at all. The opponents of the
Direct Primary scored few points; the believers in the measure did.

To save himself from a ridiculous position, Davis had to evade the
question whether he would rather see an able and effective Democrat
elected to the United States Senate than a vicious and corrupt
Republican. He failed as miserably in attempting to justify the extreme
partisan features of the bill. And the questions which Judge Davis could
not answer came from men who wanted to see an effective Direct Primary
measure enacted, not from the opponents of the Direct Primary theory.

Of course this dissatisfaction of the advocates of an effective law
encouraged the machine to action. The measure was deliberately left with
the Committee on Election Laws. The Anti-Gambling bill had passed both
Houses by February 4th, one month after the session had opened. But on
that date, the Committee had just begun consideration of the measure. To
be sure, the Election Laws Committee had been stacked against the Direct
Primary bill, but the Public Morals Committee had been stacked against
the Anti-Gambling bill as well. But the opponents of racetrack gambling
were satisfied with the Walker-Otis bill, while the proponents of the
Direct Primary for California were by no means satisfied with the
Wright-Stanton bill.

So the machine dared do with the Direct Primary bill what it did not
dare do with the Anti-Gambling bill. The Walker-Otis bill had a standing
which the Wright-Stanton bill did not have.

That the Committee on Election Laws did not act early in the session on
the Direct Primary bill was not because of the purpose of Senator
Estudillo, Chairman of the Committee. Time after time did Estudillo call
meetings for consideration of the bill, and repeatedly, he found only
himself, and Senators Stetson and Wright in attendance. Finally, in
February, Senator Estudillo succeeded in getting his committee together
for consideration of the all-important measure.

That the machine proposed to make the bill inoperative was recognized
from the moment the committee was called to order. The manner in which
this was to be done developed as rapidly. The machine's plan was as

(1) As to candidates:

The machine proposed to amend the bill so that either a majority or a
high plurality vote should be required to nominate candidates at the
primary election. In the event of no candidate for a given office
receiving a majority or the required plurality, the nomination was to be
made by a nominating convention as under the old convention system. With
such a provision it would have been easy for the machine to introduce a
large number of candidates at the primaries, thus making it
impracticable for any one of them to receive a majority or even a high
plurality vote. This would have thrown nominations into a convention.
Thus, while the State would have had a Direct Primary law, it would have
been practically impossible to nominate a candidate under its

(2) As to United States Senators:

To deny The People a voice in the election of United States Senators,
the machine had two plans:

(A) To cut all provisions for the election of United States Senators out
of the bill.

(B) Failing in this, to amend the bill so that candidates for the
Legislature would be required to regard the choice of the electors of
their several districts as advisory. The vote was in no way to be held
binding, nor was a legislative candidate to be required to sign a pledge
to regard in any way the wishes of the electors. Under this arrangement
there could be as high as 100 candidates for the United States Senate
endorsed at a single election - eighty from Assembly, twenty from
Senatorial districts. The effect would be, of course, the endorsement of
at least several candidates, with the result that the Legislature would
in the end be left to choose as under the present system. Thus, while
the State would have a law which apparently gave The People a voice in
the naming of Federal Senators, there would be no change whatever in the
manner in which the Federal Senators were nominated and elected.

[35] In addition to the Wright-Stanton bill, Senator Roseberry
introduced a measure providing for a postal primary. In the appendix
will be found Senator Roseberry's views on the postal primary plan.

[35a] The writer has been reliably informed that this concession was made
to the machine before a member of the Legislature reached Sacramento.

[35b] Senator Caminetti introduced a separate bill providing the Oregon
plan for the popular choice of United States Senators. He was requested
OF THE DIRECT PRIMARY BILL. The machine claquers is never at a loss for
an excuse for the defeat of a meritorious measure.

[36] The original Wright-Stanton bill provided two pledges, which the
candidate for the Legislature was given opportunity to sign. The first
pledge bound him to abide by the choice of the electors of his party for
United States Senator. It read as follows:

"I further declare to The People of California and to The People of the
.......... (Senatorial or Assembly) District that during my term of
office, without regard to my individual preference, I will always vote
for that candidate for United States Senator in Congress who shall have
received for that office the highest number of votes cast by my party at
the September primary election next preceding the election of a Senator
in Congress."

If the legislative candidate did not care to sign this pledge, he was
given the alternative of signing the following:

"I further declare to The People of California and to The People of the
... (Senatorial or Assembly) District that during my term of office I shall
consider the vote of The People at any primary election for United
States Senator as nothing more than a recommendation, which I shall be
at liberty wholly to disregard, if I see fit."

Chapter IX.

Machine Defeated in the Senate.

Reform Forces, Regardless of Party, Unite to Secure the Passage of an
Effective Direct Primary Law-Agree on a Compromise Measure and Succeed
in Forcing It Through the Senate - Machine Badly Beaten.

Senator Leroy A. Wright of San Diego introduced the Direct Primary bill
in the Senate on January 17th, and during the month that it slumbered in
the Senate Committee on Election Laws there was no reason to believe
that Senator Wright was not in sympathy with the provisions of the
measure. On February 1st, however, Senator Wright made the astonishing
confession before the Committee on Election Laws that he was not in
sympathy with that provision of his bill which gave legislative
candidates opportunity to pledge themselves to abide by the choice of
the electors of the State for United States Senator. From that moment
began Senator Wright's fight against his own bill, which finally landed
him in the camp of Leavitt, Wolfe and the other machine Senators.

At the meeting of the Senate Committee on Election Laws, held February
1st, the solid six on the Committee, Leavitt, Wolfe, Savage, Hartman,
Kennedy and Hare, had voted two amendments into the bill which rendered
it absolutely useless for practical purposes.

The first amendment provided that a majority instead of a plurality vote
should nominate, a provision as unconstitutional as impracticable. The
second amendment cut out of the measure all provision for popular vote
for United States Senators.

This decided action on the part of the machine had brought consternation
upon Estudillo and Stetson who wanted to see an effective measure
passed. Wright in this crisis took the floor to state his position.

"For my part," said Wright, "I would never sign a pledge to vote for the
candidate for United States Senator in Congress who shall have received
for that office the highest number of votes cast by my party. I do
believe, however, that the people of this State demand a partisan Direct
Primary law. But I think that the people of Oregon recognize that they
have made a mistake in going so far as they have. Under the pledge
required of candidates for the Legislature in the measure before us (the
Wright bill) a member of the Legislature might find himself compelled to
vote for a candidate whom the voters of his district opposed. I opposed
this provision when the bill was drawn, but my objection was overruled.
I now stand for the bill as it has been introduced."

Wolfe, Leavitt and the rest of the machine Senators grinned exultantly
as Wright stated that he did not approve the provisions of his own bill.
But the faces of Estudillo and of Stetson, who had been looking upon
Wright as their leader in the pro-primary fight, fell. To employ the
famous expression of Speaker Stanton of the Assembly, they felt the
ground slipping from under their feet. There was a sensation of farther
slipping, when Wright, author of the measure, pro-primary leader and
Call-heralded reformer, offered an amendment as substitute for popular
State-wide choice for United States Senator, by making the vote for
United States Senator advisory only[37].

The grin of satisfaction on the faces of the machine Senators broadened
as Wright read his amendment while the faces of Estudillo and Stetson
grew blanker. But the machine Senators were in no hurry. Things were
coming their way; there was no reason for them to rush matters. So they
lazily took twenty-four hours to think it over. Then they bluntly
rejected Wright's compromise, the solid six, Wolfe, Leavitt, Savage,
Hartman, Kennedy and Hare voting against its acceptance.

Estudillo and Stetson voted to accept the compromise. They explained
their votes. Their explanations showed their earnestness in working for
the best Direct Primary measure that could be passed - which indicates
what might have been done under other leadership - and a loyalty to
Wright, the accepted leader in the Direct Primary fight, which, to say
the least, was misplaced.

"With this amendment," said Senator Stetson, in explaining his vote,
"the bill is not one-half so strong as it was before. I do not like it.
But I must train with one side or with the other, and for that reason
shall vote for Senator Wright's substitute."

Senator Estudillo stated that he voted for the amendment against his
better judgment.

"I don't believe in your amendment, Senator Wright," said Estudillo,
turning to that gentleman. "I don't think it amounts to anything. I vote
with you against my better judgment. I do not believe that this
amendment will give The People what they want - an opportunity to vote
directly for candidates for the United States Senate. My opinion is that
we should pass a good bill or no bill at all. I shall, however, yield to
Senator Wright, who is the recognized leader in this Direct Primary
fight, and vote for his amendment."

And then the six machine members rejected the amendment.

There wasn't much left of the Direct Primary bill. The measure was, on
February 16th, two weeks after the application of the committee's
pruning knife, reported back to the Senate with all reference to
election of United States Senators stricken from it, and the
unconstitutional and impracticable majority vote required for the
nomination of candidates for office, instead of the constitutional and
practical plurality vote, as originally provided in the bill.

The fact should not be lost sight of that the two Senators on the
Committee on Election Laws who led the fight against the Direct Primary
bill, Leavitt and Wolfe, in the Committee on Public Morals led the fight
against the Anti-Gambling bill. Nor should it be forgotten that two of
their most docile followers in the Committee on Election Laws, Kennedy
and Hare, are "Democrats." There was no partisanship shown in the ranks
of the opponents of the Direct Primary bill; machine Democrats and
machine Republicans united for its defeat. But when anti-machine
Republican and anti-machine Democrats united for its passage, Wolfe and
Leavitt were shocked beyond measure.

Machine Senators denounced the anti-machine Republicans as mongrels,
enemies of the Republican party, and insisted that if the anti-machine
Republicans persisted in continuing with the anti-machine Democrats to
secure the passage of an effective Direct Primary law, the Republican
party in California would go to smash.

The arrogant course of the machine members of the Election Laws
Committee, had at least one good effect it drove the anti-machine
Republicans and the anti machine Democrats together as a matter of
self-defense. The anti-machine Republicans and Democrats saw the machine
Democrats and Republicans united to defeat the passage of an effective
Direct Primary measure. So the anti-machine Republicans and Democrats
organized that they might successfully combat the organized machine
Democrats and Republicans. For the first time in the history of the
California Legislature, so far as the writer knows, the Senate divided
on the only practical line of division for the enactment of good
measures and the defeat of bad ones - with the anti-machine Senators on
one side and the machine Senators on the other.

The "band-wagon" Senators of the Welch variety, and the doubtful
Senators, were left for the moment to herd by themselves.

The anti-machine forces held meetings - caucuses if you like - to decide
upon the course to be pursued. They numbered at first twenty members,
fifteen Republicans and five Democrats. The Republicans were Bell,
Birdsall, Black, Boynton, Burnett, Cutten, Estudillo, Hurd, Price,
Roseberry, Stetson, Strobridge, Thompson, Walker and Wright; the
Democrats, Caminetti, Campbell, Cartwright, Miller and Holohan. George
Van Smith, of the San Francisco Call, credited with being an expert on
Direct Primary legislation, was admitted to the deliberations of the

Senator Price, however, became alarmed at the irregularity of
anti-machine Republicans meeting with anti machine Democrats, gathered
his virtuous partisan skirts about him and fled in dismay.

Senator Caminetti also left the meeting. Caminetti is a strong advocate
of the Oregon plan for the election of United States Senators. When
Caminetti found Senator Wright, the accepted leader of the pro-primary
forces, opposed not only to the Oregon plan, but to any plan that would
give electors a State-wide vote for United States Senators, he refused
to go to Wright's assistance. Later on, however, when Wright went to
Caminetti pleading for support, Caminetti agreed to abide by the
decisions of the anti-machine caucus. Curiously enough, after the
machine had worn the anti-machine forces out, Caminetti was the only
Senator who refused to accept the machine's amendments to the bill which
the anti-machine caucus had agreed upon.

With Price and Caminetti out, the anti-machine forces were reduced to
eighteen Senators, although it was known that Rush sympathized with the
movement but was not present because he had been unavoidably detained.

The eighteen organized by electing Senator Estudillo chairman, and
Senator Boynton secretary. Senator Wright made a short address in which
he virtually threw up his hands. He told what the Wolfe-Leavitt element
had done with the bill in committee, and stated that unless the
anti-machine forces got together, the machine would amend the measure
into ineffectiveness. Following Wright's address the anti-machine
Senators considered the original Wright-Stanton bill under three heads:

(1) Shall a mere plurality, or a majority, or a high plurality be
required to nominate at a primary election?

(2) Shall the partisan features be eliminated from the measure?

(3) Shall the provisions of the measure be extended to the election of
United States Senators?

The first question was brought up on Stetson's motion that a twenty-five
per cent plurality be required to nominate. The machine aimed to fix the
plurality at forty per cent, but even the twenty-five per cent
compromise was denied. The motion received but four votes, in its favor.

Then came discussion of the clause quoted in the previous chapter, which
requires of each primary candidate that he make affidavit that he
supported his party ticket at the previous election, and proposes to
support it at the coming election. It was understood by all who had any
thing to do with the Direct Primary bill that the clause made it
impossible for a primary candidate to run on two primary tickets.
Cartwright moved that the clause be stricken from the bill. The motion
was lost by a vote of 14 to 4. Senators like Black of Santa Clara voted
against the motion in the interest of harmony, although personally they
favored the elimination of all partisan features.

The question of primary nomination of candidates for the United States
Senate was then taken up. Senator Wright moved that the vote for
Senators be advisory only, and that it be by Assembly and Senatorial
districts instead of State-wide, as the original bill provided. The vote
was as follows:

For Wright's motion - Burnett, Wright - 2.

Against Wright's motion - Bell, Birdsall, Black, Boynton, Cartwright,
Cutten, Holohan, Miller, Roseberry, Stetson, Strobridge, Walker - 12.

Excused from voting - Campbell, Estudillo, Hurd, Thompson.

A scene of great confusion followed. Campbell, who had refused to vote
because he insisted upon the Oregon plan of electing United States
Senators by direct vote of The People, insisted that the provision be
incorporated into the bill. He refused to be bound by any plan that
would restrict the election within party lines. So they blocked Campbell
in one corner of the room with a table, and reasoned with him.
Twenty-one votes were required to pass the Direct Primary bill in the
Senate. At that time counting Rush, who was not present at the caucus,
the anti-machine forces had only nineteen. They could not afford to lose
even one of their number.

Above the confusion, Senator Holohan managed to make his voice heard.

"Gentlemen," he said, "I would like to have the Oregon plan incorporated
into this bill, But that seems to be impracticable at this time.
Eventually, I am sure California will adopt the Oregon plan of naming
the United States Senator, which to my way of thinking is the most
common sense, the fairest, the most American plan. But if we are to pass
a Direct Primary measure at the present session, we must reach a basis
of compromise. Let us now get together and stand together on a measure
upon which we can all agree. Let us pledge ourselves to abide by the
decision of this meeting, and stand or fall by the bill which we have
agreed upon."

Holohan's counsel prevailed. The Senators present pledged themselves to
abide by the decision of the meeting and to stand or fall by the bill
which they had agreed upon. And Senator Leroy A. Wright was among them
and was bound in honor as every Senator present was bound in honor to
stand by the bill which had been agreed upon.

The uniting of the anti-machine Senators to fight the combined machine
Democrats and Republicans called down upon the anti-machine element the
denunciation of the machine press. The Catkins newspapers, for example,
sputtered their condemnation of Republican Senators who would unite with
Democratic Senators in "rump caucus."

On the other hand the San Francisco Call, at that time warmly supporting
the anti-machine movement in the Senate, was extreme in denouncing
Lieutenant-Governor Porter, presiding officer of the Senate, Leavitt,
Wolfe, and all others who were opposing the passage of the Direct
Primary measure as it had originally been introduced by Wright, and as
it had been agreed upon in the reform caucus[38].

The fight in the Senate came on the second reading of the bill February
18th. On the 16th, however, the setting for the contest had been fixed
by the majority of the Committee on Election Laws, which reported with
favorable recommendation the measure as the Committee had cut it to
pieces. The minority of the Committee, Estudillo, Stetson and Wright,
reported back the bill agreed upon by the non-partisan caucus of
anti-machine Senators.

But the fight did not come over either report. When the bill came up on
the 18th for second reading and amendment, Senator McCartney, on behalf
of the machine forces, introduced a resolution over which the contest
waged. McCartney's resolution provided that the bill should be so
amended that the primary vote for United States Senator should be by
districts and advisory only, and that for county and local offices a
vote of 25 per cent and for State offices a vote of 40 per cent should

The debate was over this resolution. The motion for its adoption was
defeated by a vote of twenty-seven against to thirteen for[40].

Incidentally, the debate settled one of the most important questions
affecting the bill, namely, the percentage of votes to be required for
primary nominations. The machine, to render the measure inoperative, was
contending for a majority or at least a high plurality vote, while the
anti-machine element was contending for a mere plurality. The debate
developed the fact, that any provision for other than a mere plurality
vote would be unconstitutional. This service was performed by Senator
Cutten of Humboldt[41]. Senator Cutten's clear presentation of this much
discussed point, settled the vote percentage question right there. When
the measure was under consideration by the Assembly Election Laws
Committee, Grove L. Johnson did suggest that a 40 per cent plurality be
required to nominate. But no serious attempt was made so to amend the
bill, after Cutten's speech, and the defeat of the McCartney amendment.

Naturally, the anti-machine forces felt warmly encouraged by this
complete defeat of the machine. The San Francisco Call, the recognized
advocate of the Direct Primary bill, the next day, February 19th, said
of the outcome:

"Twenty-seven Senators at Sacramento stood true to their party
pledges, and voiced the will of the people in their votes on the
Direct Primary bill yesterday. Thirteen other Senators wrote into
the record conclusive proof of their unfitness for the offices they
hold, when they voted against the Wright-Stanton bill, and for the
corrupt political machine which is the Southern Pacific Railroad.
Every man of these thirteen confessed corruptionists knew what he
was doing, knew whose will he was putting above The People's. Every
one of these thirteen betrayers of the public weal has written the
epitaph of his political tombstone."

The Call was as generous in its praise of the anti-machine Democrats and
Republicans as it was bitter against the machine Senators who had
endeavored to force the McCartney amendment into the bill. While that
paper printed the names of the thirteen in bold, black type on the first
page under the heading, "These Men Voted for the Machine," in type just
as bold and just as black it printed in an honor column the names of the
twenty-seven who had voted against the McCartney amendment, under the
heading, "These Men Voted for the People."

Said the Call in its admirable report of the defeat of the McCartney
amendment, of the original nineteen anti-machine Senators who had
organized to resist the machine:

"Genuine manhood has been on tap at every conference of the
independents. They have not squabbled for partisan advantage. They
have worked together to give The People an honest and genuine
Direct Primary measure. Senator Wright won a brilliant fight. He
won it with and through the earnest co-operation of the unbossed
Democrats and Republicans."

Said the Call of the measure itself in its issue of February 18th - the
day of the defeat of the machine Senators:

"The Direct Primary bill is The People's bill. Such men as Dooling,
Wright, Stanton, Davis and Cartwright made it. There is no honest
argument against it, there will be no honest Senators against it."

Such was the view of the Call on February 18. Few were willing to
believe on that date that within a month the Call would have thrown its
influence on the side of Leavitt and Wolfe and Warren Porter in an
attempt to force part of the McCartney amendment into the Direct Primary
bill. It did not seem possible then that within a month the Call would
be denouncing, ridiculing and misrepresenting Senators whose efforts had
resulted in the defeat of the McCartney amendment because of the refusal
of these anti-machine Senators to join with the machine Senators whom
they had once defeated, and accept the amendment which they had once
rejected. It did not then seem possible that on March 18th the Call
would be behind the thirteen "betrayers of the public weal," itself
betraying the Senators whose "genuine manhood" had on February 18
appealed to its editors so strongly.

But such was to be. And, too, the combination of Calkins Syndicate,
Lieutenant-Governor Porter, Senator Leroy A. Wright, the San Francisco
Call and the thirteen "betrayers of the public weal" proved too much for
the little band of anti-machine Senators. And what is more, backed by
the Call, the machine leaders finally amended the Direct Primary bill,
which on February 18th the Call had stated very positively no honest
Senator would be against.

[37] Wright's amendment had been carefully typewritten before the
meeting. It read as follows,

"Party candidates for the office of United States Senator shall have
their name placed on the official primary election ballots of their
respective parties in the manner herein provided for State Office,
provided, however, that the vote for candidate for United States Senator
shall be an advisory vote for the purpose of ascertaining the sentiment
of the voters in their respective parties."

[38] On February 17th the Call said of Senator Eddie Wolfe's opposition
to the bill:

"The fight (Direct Primary) promises to be both spirited and bitter.
Eddie Wolfe of San Francisco, picked by the machine to make its fight
for the garroting of the Direct Primary bill, by the injection of a
majority nominating clause, has served notice that he proposes to tear
the reformers to pieces."

Of Leavitt and other machine Senators, the Call on the same date said:

"Leavitt, who bossed the fight against the Otis-Walker bill, will
furnish the brains for the fight against the Direct Primary bill, and
every one of the seven who voted against the Otis-Walker bill, are more
or less frankly against the primary bill. Savage, who did not vote
against the Walker-Otis bill because his vote would have done no good,
and Hartman and Hare, who did vote against the Otis-Walker bill, have
gone on record against honest direct Primaries, as members of the
majority of the Senate Committee on Election Laws. Savage is frank
enough to admit that he is opposed to any direct primary law."

[39] The McCartney resolution was in full-as follows:

"Resolved, That Senate Bill No. 3, and all pending amendments thereto,
be and the same is hereby referred to the Committee on Elections and
Election Laws, with the following instructions:

"1. Amend the bill so as to give an advisory vote by districts on United
States Senators."

"2. Amend the bill by providing for a percentage of votes before
nomination by direct vote of the people, as follows: If the highest
candidate for any county or local office receive less than 25 per cent
of the vote of his party, and if the highest candidate for a State
office receive less than 40 per cent of the vote of his party, that the
nomination shall be referred to a convention of delegates elected at the
same time that candidates are voted on by direct vote."

"3. Amend the bill by providing that the convention aforesaid shall
prepare the platform of the party and perfect party organization."

[40] The vote in full was as follows:

Against the McCartney amendment and in effect for the bill agreed upon
by the anti-machine Senators: Anthony, Bell, Birdsall, Black, Boynton,
Burnett, Caminetti, Campbell, Cartwright, Curtin, Cutten, Estudillo,
Holohan, Hurd, Lewis, Martinelli, Miller, Price, Roseberry, Rush,
Sanford, Stetson, Strobridge, Thompson, Walker, Welch, Wright - 27.

For the McCartney amendment and in effect against the bill agreed upon
by the anti-machine Senators: Bates, Bills, Finn, Hare, Hartman,
Kennedy, Leavitt, McCartney, Reily, Savage, Weed, Willis, Wolfe - 13.

[41] Cutten showed that Section 13, Article XX of the State Constitution
provides that "a plurality of the votes given at any election shall
constitute a choice where not otherwise directed in this Constitution."

Senator Cutten then proceeded to demonstrate that a primary election is
an election within the meaning of the terms used. The Supreme Court of
Indiana has so declared, and, coming nearer home, Cutten showed that the
California Supreme Court has so held also.

In The People vs. Cavanaugh, 112 California, the Supreme Court held that
any primary election that should become mandatory becomes an election
and only those primaries that may be optional with a party as to whether
or not they should be held, are not elections.

The Wright-Stanton bill and the Direct Primary amendment to the
Constitution make the direct primaries mandatory, nor is there anything
in the State Constitution providing that anything other than a plurality
vote shall be required to nominate. For the Legislature to have yielded
to the machine's demand that a majority or high plurality vote be
required to nominate and inserted such a provision in the Direct Primary
bill, would have been to render that measure unconstitutional, for under
the plain provisions of the Constitution only a plurality vote can be
required to nominate.

Were a majority or even high percentage plurality vote required to
nominate, the Direct Primary law would have been made unconstitutional,

1. A plurality might not be equal to the percentage or majority.

2. A percentage or majority contemplates a convention to nominate in
case the candidate does not receive the percentage or majority, and a
convention, the best authorities hold, is prohibited under the
constitutional amendment providing for the primary election.

Chapter X.

Fight Over Assembly Amendments.

Machine Succeeds in Amending the Direct Primary Bill in the Assembly -
Assemblyman Pulcifer at Critical Moment Votes with the Machine - Senate,
Although Held Up By Machine Element for a Week, Refuses to Concur in
Assembly's Action.

The machine Senators, having failed to amend the Direct Primary bill on
its second reading, apparently accepted their whipping, and allowed the
measure to go through third reading and final passage without

Twenty-seven Senators at the final roll call voted for it; not one vote
was cast against it. Even Leavitt and Wolfe voted for it. The
anti-machine Senators had won "a glorious victory."

But the victory was one tempered with grave misgivings on the part of
careful observers of machine trickery. The fact that the bill as it had
passed the Senate contained several serious clerical and typographical
errors, and that its title was unsatisfactory if not defective, worried
the genuine supporters of the bill not a little. The bill had been
loosely drawn to begin with, and as originally introduced contained most
unfortunate clerical errors, which bobbed up at most inopportune times.

At every stage of its passage in the Senate such errors were uncovered,
and after it had passed second reading, no less than eight serious
errors were discovered to be still in the bill. The only way these
errors could be corrected was by amendment.

The errors were called to the attention of Senator Wright and of George
Van Smith of the Call, who were urged to have them corrected in the
Senate that the bill might go to the Assembly letter perfect, and
without necessity of amendment[43]. But both Van Smith and Wright were
of the opinion that time would be gained by leaving the Assembly to make
the corrections.

The bill as it finally passed the Senate was a defective bill, the
defects of which could be corrected in the Assembly only by amendment.
In the end the fate of the measure was made to hinge on these clerical
and typographical defects.

The Assembly Committee on Election Laws had been stacked against the
passage of a Direct Primary bill, precisely as the Senate Committee had
been. At the first meeting held by the Committee to consider the
measure, it became evident that the majority of the Committee would, if
it could, put the McCartney amendments, which had been defeated in the
Senate, into the bill.

Leeds, Chairman of the Committee, moved that the primary vote for United
States Senator be made advisory and by districts only, while Grove L.
Johnson, in spite of the fact that such a provision is impracticable and
unconstitutional, stated that he wished a provision in the bill
requiring a 40 per cent plurality to nominate, instead of a mere

Leeds and Johnson, taken together, stood for precisely what the machine
had stood for in the Senate, namely, an advisory, district vote for
United States Senators and a 40 per cent plurality vote to nominate.

Speaker Stanton, although not a member of the Committee, was present at
the meeting, and although he had introduced the bill in the Assembly,
announced that he was for so amending the measure that the vote for
United States Senator should be made merely advisory and by districts.
This was pretty strong intimation that there was trouble ahead for the
Direct Primary bill. Stanton was in effect throwing down his own bill.

After several meetings, the Committee adopted amendments providing for
the Leeds - suggested advisory district vote for United States Senators,
providing for correction of the clerical and typographical errors, and
providing an oath from primary candidates that they would abide by the
platform of their party to be adopted after their nomination. This last
amendment was defeated in the Assembly.

The only real opposition in the Committee to the machine's plan to make
the primary vote for United States Senators advisory only and by
district, came from Assemblymen Hinkle of San Diego and Drew of Fresno.
Drew was ill most of the time and could not attend the meetings. The
brunt of the fight for a State-wide vote for United States Senators,
therefore, fell on Hinkle.

He fought well.

Every effort was made to pull him down. He was told that his bills would
be "killed."

He was deliberately misrepresented in papers which were endeavoring to
force into the bill the advisory district vote amendment, which, as
introduced in the Senate by McCartney, had been rejected by the
anti-machine Senators. Leavitt and Wolfe and Warren Porter were for the
amendment, but the anti-machine Senators continued against it as they
had on February 18th, the day of their "glorious victory" over the
machine in the Direct Primary fight.

But, astonishing as it may seem, the San Francisco Call[44], which up to
the passage of the bill in the Senate had fought the machine Senators so
valiantly, was giving indication of siding with Wolfe and Leavitt. In
its issue of March 6th, the Call stated that Hinkle was alone of the
Assembly Committee battling for the bill as it passed the Senate. In
another sentence the Call said: "Leeds, Rech, Hinkle and Pugh voted for
the advisory vote amendments."

That sentence was shown about the Capitol, and on it was based the story
that Hinkle had "fallen down," and would vote with the machine. All this
added to the confusion of the situation.

But Hinkle had not "fallen down." He was in the fight just as hard as
ever, and with Assemblyman Bohnett organized the reform element in the
Assembly to fight the machine amendments.

Those who were endeavoring to force the advisory district plan for
nomination of Senators into the bill took the most astonishing methods
to force it upon the anti-machine Senators. For example, the San
Francisco Call of March 4th said of it:

"The amendments proposed by Leeds and supported by Stanton are not even
remotely related to the McCartney proposition, which was voted down in
the Senate."

The Call's statement was easily disproved, but it unquestionably
confused the anti-machine legislators, who were insisting upon retaining
the provision for State-wide vote for Senators in the bill[45].

And then came the cry that those who were opposing the Leeds-McCartney
amendment were enemies of the Direct Primary, for the Assembly, it was
alleged, was overwhelmingly in favor of the amendment, and would not
pass the bill without it. Jere Burke, John C. Lynch, and other patriots
of their ilk were most insistent in expression of this fear. But such
men as Bohnett, Hinkle, Drew and other recognized anti-machine leaders
in the Assembly were not to be bluffed in this way. They stood firmly
for the passage of the bill as it had passed the Senate.

The fight on the floor of the Assembly came over Leeds' motion to amend
the bill by making the vote for United States Senator advisory only and
by districts. The vote on Leeds' motion was 37 to 37. The "overwhelming
majority" favoring the amendment, in spite of the use of every pull at
the command of the machine, had not materialized. As a majority vote was
necessary to read the amendment into the bill, a moment more and Speaker
Stanton would have been forced to declare the amendment lost. This would
have meant final defeat for the machine, and the Direct Primary bill as
it had passed the Senate would have gone to final passage.

At this critical moment in the bill's history, however, Assemblyman
Pulcifer[46], the Lincoln-Roosevelt League member from Alameda county,
got into action. He had voted against the amendment. But with his vote
really meaning defeat for the machine element, he promptly changed his
vote from no to aye. This made the vote 38 for the amendment and 36
against it. The amendment which the anti-machine Senators had fought so
valiantly and so effectively was finally read into the bill[47].

The amendments necessary to correct the typographical and clerical
errors which had been permitted to remain in the bill as it passed the
Senate, together with a number of ridiculous amendments - which were
finally rejected by both Houses - were then adopted, and the bill sent
to the Senate[48].

The fact developed almost immediately that if the Senate refused to
concur in the Assembly amendment forcing the advisory district vote into
the bill the Assembly would recede from the amendment. As a matter of
fact Assemblyman Collum, who voted for the amendment March 9th, voted on
March 22d to recede from it. Had the anti-machine forces in the Assembly
been held together, as they could have been had the question of receding
been put up to them fairly, few other changes with Collum's would have
been sufficient to assure success for the anti-machine forces.

But in spite of the situation in the Assembly, Senator Wright, who was
by this time working openly with Wolfe, Leavitt and Warren Porter to
secure the adoption of the Leeds amendment (which as the McCartney
amendment the Senate had already rejected), was insisting that the
Assembly would not recede, and that unless the Senate concurred with the
Assembly amendment, nothing could save the Direct Primary bill from
being cut to pieces in Free Conference Committee.

Nevertheless, the Senate by a vote of 19 against to 20 for concurrence,
did refuse to concur, 21 votes being necessary for concurrence.

Senator Stetson was absent when the vote was taken, being ill at his
home in Alameda county. Had he been present he would have voted against
concurrence in the amendments. This would have made the vote 20 to 20.

Originally, on February 18th, twenty-seven Senators had voted against
the Leeds-McCartney amendment, but when Senator Wright switched to the
machine, Senators Hurd and Burnett wobbled along after him. The four
band-wagon Senators, Lewis, Martinelli, Price and Welch, tagged along
after them. This made the vote:

Against concurrence in the amendment and for the bill as it passed the
Senate - Anthony, Bell, Birdsall, Black, Boynton, Caminetti, Campbell,
Cartwright, Curtin, Cutten, Estudillo, Holohan, Miller, Roseberry, Rush,
Sanford, Strobridge, Thompson, Walker - 19.

For concurrence in the amendment and against the bill as it originally
passed the Senate - Bates, Bills, Burnett, Finn, Hare, Hartman, Hurd,
Kennedy, Leavitt, Lewis, Martinelli, McCartney, Price, Reily, Savage,
Weed, Welch, Willis, Wolfe, Wright - 20.

Every one of the thirteen Senators who opposed the bill when it was
first before the Senate, voted to concur. Wright, Welch, Price,
Martinelli, Lewis, Burnett and Hurd joining them, made their number

Under the rules which govern the Senate, in the event of a tie vote, all
the Senators voting, the President of the Senate, in this case Warren
Porter, has the casting vote.

Had Senator Stetson been present, he would have voted with the
anti-machine Senators. This would have made the vote 20 to 20. Warren
Porter would then have had the deciding vote. He would have voted to
concur. Senator Stetson's illness temporarily saved the Direct Primary

In the ordinary course of legislative business, the Senate having
refused to concur in the Assembly amendment, the bill would have gone
back to the Assembly, the Assembly would have receded from the
amendment, and the machine's defeat would have been final. But the
quick-witted Wolfe saw a way to prevent such action. He promptly moved
that the Senate reconsider the vote by which it had refused to concur in
the Assembly amendment. Wolfe commanded twenty votes of the Senators
present, the anti-machine element nineteen. Wolfe required, however,
twenty-one to compel reconsideration. But when the question came up,
Wolfe still lacked the one vote necessary for reconsideration, the
anti-machine element was still without the necessary twenty votes to tie
the Senate, thus giving Warren Porter the deciding vote. Wolfe, however,
with his twenty votes, postponed consideration of his motion to
reconsider the vote by which the Senate had refused to concur. A
somewhat extraordinary parliamentary situation, to say the least. But it
answered the machine's purpose. For a week[49a] the machine was able to
hold the Senate in deadlock. All business was practically suspended. For
hours the reform Senators were compelled to sit in their seats waiting
the pleasure of President Porter and President Pro Tem. Wolfe to call
the Senate to order. The folly of permitting the machine to organize the
Senate was forced home to every good-government man present. The machine
because it controlled the Senate organization could and did arrogantly
override the rights of the Senate, giving the ultimatum that no business
should be transacted until the anti-machine Senators had concurred in
the machine amendments to the Direct Primary bill.

The machine's play was to bully, bluff or beg one of the anti-machine
Senators to desert to the machine, which would have given the machine
twenty-one votes, enough for concurrence, or, failing in this, to force
the attendance of Senator Stetson, which would have tied the Senate,
thus giving Warren Porter the deciding vote. But before Senator Stetson,
pale and plainly on the verge of breakdown, could be brought to
Sacramento, Senator Black became very ill and was obliged to go to his
home at Palo Alto. Thus when Stetson returned, the vote stood 20 to 19,
precisely where it had been before. Performer Porter was still denied
the privilege of casting the deciding vote. For once the machine found
itself squarely against a stone wall, with the sympathy of the public
strongly against its creatures and methods. Night after night as the
fight went on, the Senate gallery was packed with interested spectators,
who cheered the anti-machine Senators to the echo. There were no cheers
for the machine, but on one occasion at least the machine was hissed,
when one of its creatures attempted an attack on Senator Black.

Never did the machine work harder to switch anti-machine Senators to its
side. Jere Burke had characteristic corner conferences, Johnny Lynch
labored with anti-machine Senators openly on the floor of the Senate
chamber, as did Warren Porter. From a southern county came the Chairman
of the Republican County Committee to tell his Senator who was voting
with the anti-machine element what a mistake he was making. P. H.
McCarthy "happened in" and worked with George Van Smith of the Call and
Eddie Wolfe in the fruitless attempt made to "pull down" Senator
Anthony[49]. Anti-machine Senators found their pet bills being held up
in Assembly Committees.

But the nineteen anti-machine members stood firm, in spite of the fact
that Senator Wright, who had originally led them, and George Van Smith,
of the Call, who had originally advised them, and the Call, which had
originally backed them, were all working on the side of Leavitt and
Wolfe and Porter and the thirteen Senators of whom the Call had said on
February 19, when they had voted for the amendment which they were still
supporting, "Every man of these thirteen confessed corruptionists knew
what he was doing - knew whose will he was putting above The People's
will. Every one of these thirteen betrayers of the public weal has
written the epitaph of his political tombstone."

And then the machine forces attacked Senator Black. Although Senator
Black was lying ill at his home at Palo Alto, the Call on March 18
stated that he was in hiding in Sacramento.

The Call on the same date expressed its deep regret for and its utter
condemnation of, the "asinine filibuster, designed to prevent a tie vote
which would be decided by the Lieutenant-Governor, Warren Porter, in
favor of concurrence in the Assembly amendment to the Direct Primary

On February 18 the Call had objected very strenuously to Porter's
attitude toward the Direct Primary bill. The Call on that date said:

"To-day the wolves (a pet name for the machine Senators), urged by
their masters, will make their last stand in the Senate against a
people determined to be free. Warren Porter, the Lieutenant-Governor
of the fatted soul, who professes all the virtues and practices all
political evil, will be the whipper-in."

One month later, March 18, the Call was complaining bitterly that the
anti-machine Senators would not permit the same "Lieutenant-Governor of
the fatted soul" to whip them into line for the amendment to the Direct
Primary bill, which they had rejected on February 18, and for which the
Call had praised them generously. The Call's special representative at
Sacramento, George Nan Smith, was by this time working openly with
Porter, Wolfe, Leavitt, Hartman, Lynch and Burke to compel Senate
concurrence in the Assembly amendments, while Senators Boynton, Black,
Miller, Campbell, Holohan, Stetson and the other anti-machine Senators
whom the Call had formerly backed in their efforts against the machine,
had become "pin-head politicians," in the columns of the Call, intent
upon defeat of the Direct Primary bill.

The Call's extraordinary change and outrageous condemnation of the
anti-machine Senators of course brought its protest. The people of Palo
Alto met in mass meeting on March 21st, and adopted resolutions
condemning the Call's course[50]. Senator Black from his sick bed wrote
a letter showing the Call's insincerity and breach of faith with the
pro-primary Senators[51]. The paper was bitterly denounced on the floor
of the Senate.

But throughout the State the newspapers which stand for good government,
and incidentally for an effective direct primary law, were firm in their
support of the anti-machine Senators. Just before Senator Black was
taken ill, for example, at the time when Senator Stetson was unable to
be at the capital, the Sacramento Star, in an editorial article under
the heading, "Illness a Blessing," cleverly put in a nutshell what the
people were thinking and the reform press was saying. "We do not desire
to wish Senator Stetson any bad luck," said The Star, "but if his slight
indisposition should continue for a few days, or, in lieu of that, if
some other solon of the same faith as regards the Primary bill can only
contract some minor ailment, there will be more joy than sorrow among
the people who want something approaching a real direct primary."[52]

Matters were brought to a climax when the performers through Senator
Weed - who was, by the way, Chairman of the Committee on Public Morals,
which reported adversely on the Walker-Otis bill-introduced a
resolution, authorizing the Sergeant-at-Arms to bring Senator Black to
Sacramento, even though a special engine and coach be chartered for the
purpose[53]. The resolution brought forth indignant protest from the
anti-machine Senators, and a telegram from Senator Black to Warren
Porter, denouncing the unwarranted proceedings[54]. Nevertheless, Doctor
Douglass W. Montgomery of San Francisco, in spite of the fact that four
reputable physicians, Dr. Howard Black, Dr. H. B. Reynolds, Dr. J. C.
Spencer and Dr. R. L. Wilbur, had certified that Senator black's
physical condition did not permit of his being removed to Sacramento,
went to Palo Alto with the Sergeant-at-Arms to investigate the sick
Senator. Montgomery's investigations seem to have been confined to the
outside of Senator Black's house[55]. At any rate he did not see Senator
Black. The performance was given its sordid feature by Montgomery
charging the Senate $400 for his services.

The Montgomery incident demonstrated clearly that the machine was
whipped[56]. Senator Wolfe accordingly on Monday, March 22, after
holding the Senate in deadlock more than a week, moved that the vote
whereby the Senate had refused to concur in the Assembly amendment to
the Direct Primary bill, be reconsidered. This, the Senate as a matter
of courtesy, at Senator Wolfe's request, did. It then refused to concur
in the Assembly's objectionable amendment. For the second time, the
Senate went on record against the machine's advisory district-vote plan
for the election of United States Senators. For the second time the
anti-machine element in the Senate, in its efforts to secure the passage
of an effective direct primary measure, had, fighting fair, and in the
open, and above board always, defeated the machine. The machine
thereupon met the anti-machine element with a trick that completely
turned the tables, a trick by which the anti-machine forces were
defeated, and the machine element placed in a position to amend the bill
as it might see fit.

[42] Senator Wolfe, on the day of his defeat in the Senate, told the
writer that he would offer no further opposition to the passage of the

[43] Charles R. Detrick of Palo Alto, for example, called the attention
of both Wright and Van Smith to the errors, and offered his services for
their correction, but his offer was declined.

[44] The Call's course is all the more reprehensible from the fact that
it had for two years been declaring for an effective Direct Primary law,
and, indeed, assumed all the credit for the agitation for the reform.

[45] The Leeds amendment, which the Call stated was in no way related to
the McCartney amendment, read as follows:

"Party candidates for the office of United States Senator shall have
their names placed on the official primary election ballots of their
respective parties in the manner herein provided for State officers,
provided, however, that the vote for candidates for United States
Senator shall be an advisory vote for the purpose of ascertaining the
sentiment of the voters of the respective Senatorial and Assembly
Districts in the respective parties."

The McCartney amendment of that section of the bill dealing with the
nomination of Senators read:

"Amend the bill so as to give an advisory vote by districts on United
States Senators."

It will be seen that the Leeds amendment and the McCartney amendment
were not remotely, but very closely related; were, in effect, the same.

[46] A similar example of Pulcifer's trickiness attended the defeat in
the Assembly of Boynton's Senate bill providing for a nonpartisan column
on the election ballot for candidates for the Judiciary. The measure had
the backing of the reform element, and passed the Senate with but little
opposition. At that time it would have had even easier sailing in the
Assembly. But the machine succeeded in preventing action on the measure
In the Assembly until a few hours before adjournment. In the rush of the
close of the session, the measure, it is alleged, was made subject of
pretty vicious trading. But when it came to a showdown thirty-five votes
were cast for the measure and twenty-nine against. Six more votes would
have passed it. Had there been full attendance the bill would have been
passed. A call of the House was ordered to compel such attendance, but
was finally discontinued, by Pulcifer, who had voted for the bill,
voting for discontinuance, thus tying the vote. This gave Speaker
Stanton an opportunity to end proceedings under the call of the House,
by casting the deciding vote against continuance. Stanton, with
Pulcifer's assistance, thus cast what was practically the deciding vote
that killed the bill. Had the call of the House been continued until all
the Assemblymen were brought in, the measure would probably have been

[47] The vote in full was as follows:

For the amendment and against the bill as it had passed the Senate:
Barndollar, Beatty, Beban, Black, Butler, Coghlan, Collier, Collum,
Cronin, Cullen, Feeley, Greer, Hammon, Hanlon, Hans, Hawk, Grove L.
Johnson, Johnson of San Diego, Johnston of Contra Costa, Leeds,
Lightner, Macauley, McClellan, McManus, Melrose, Mott, Nelson, O'Neil,
Perine, Pugh, Pulcifer, Rech, Rutherford, Schmitt, Stanton, Transue,
Wagner, Wheelan - 38.

Against the amendment and for the bill as it passed the Senate:
Beardslee, Bohnett, Callan, Cattell, Cogswell, Costar, Dean, Drew,
Flint, Gerdes, Gibbons, Gillis, Griffiths, Hayes, Hewitt, Hinkle,
Holmquist, Irwin, Johnson of Placer, Juilliard, Kehoe, Maher,
Mendenhall, Moore, Odom, Otis, Polsley, Preston, Sackett, Silver,
Stuckenbruck, Telfer, Whitney, Wilson, Wyllie, Young - 36.

[48] When a bill passed by the Senate is amended in the Assembly the
measure goes back to the Senate. If the Senate concur in the amendments,
that settles the matter. But if the Senate refuse to concur, then the
bill goes back to the Assembly, where that body may recede from its
amendments or refuse to recede.

If the Assembly recede, the measure goes to the Governor just as it
passed the Senate. If the Assembly refuse to recede, the measure is
referred to a conference committee of six, three appointed by the
Speaker of the Assembly and three by the President of the Senate.

The Conference Committee may consider only the amendments adopted by the
Assembly. If the Conference Committee fail to agree, or if either Senate
or Assembly reject its report, then the bill goes to a Committee on Free
Conference. The Committee on Free Conference is permitted to make any
amendment it sees fit. If its report be rejected by either Senate or
Assembly, the bill gets no further; is dead, without possibility of

Such was the maze of technicality into which Lincoln-Roosevelt Leaguer
Pulcifer threw the Direct Primary bill when he changed his vote from no
to aye on the Leeds amendment.

[49a] The postponements were made from hour to hour. The reform Senators
would be informed that the matter would be taken up at eleven o'clock in
the forenoon. At that hour, the machine would postpone consideration
until three o'clock in the afternoon. At three o'clock, further
postponement would be ordered until eight o'clock. At eight o'clock
there would be postponement until the next morning. Twenty-one votes
were necessary for concurrence in the Assembly Amendments, but a
majority of those voting was sufficient to secure postponement. The
machine on this issue controlled twenty votes, one short of enough for
concurrence, but one more than the nineteen controlled by the
anti-machine element, and hence enough to postpone from hour to hour
consideration of Wolfe's motion.

[49] It is very amusing less than three months later to see those
partners of the Direct Primary fight, P. H. McCarthy and the San
Francisco Call, in fierce political conflict at San Francisco.

[50] The resolutions adopted at Palo Alto read: "Resolved, That we note
with disapproval the changed attitude of the San Francisco Call upon the
Direct Primary bill, and its attempt to discredit Senator Black and
other friends of good government in the Legislature."

[51] Senator Black's letter covered the situation fully. It was
addressed to the press of the State, and was as follows: "No decent
primary law would have been possible but for the combination of thirteen
Republicans and seven Democrats in the Senate who have stood together
throughout this whole fight. Senator Wright and the 'Call' were
powerless in the contest until these twenty Senators got behind them.

"One of the conditions of this combination was a State-wide vote on
United States Senator, and the 'Call' fought with us against Senators
Wolfe and Leavitt on this proposition. Immediately after the bill left
the Senate and got into the Assembly the 'Call' began to display a lack
of interest in the primary fight. If it had maintained its attitude in
favor of the original bill these amendments never would have been
proposed by the Assembly."

"When the question of concurring in the Assembly amendments comes up, we
find the 'Call' and Senator Wright deserting the men who made the
primary fight in the Senate and going over to the camp of the 'push'
politicians, who have always favored the district plan of nominating
United States Senators."

"I take issue with the 'Call' when it says: 'As a matter of fact, the
whole question of the United States Senatorship is of little importance
to the people of California,' etc."

"The United States Senatorship is the most important office to be filled
by the people of California under the provisions of the proposed Direct
Primary law. The so-called district plan for nominating United States
Senators is worse than a makeshift. it provides for no pledge on the
part of candidates and would be purely a straw vote, binding on nobody."

"The stubborn fact remains that the 'Call,' after leading in the fight
for an honest Direct Primary law for two years and a half, has deserted
the cause of the people at the most critical moment of the struggle."


[52] The Star's clever editorial article is worth preserving. It was in
full as follows: "There are times, it appears, when the illness of a
statesman is good for the people. We do not desire to wish Senator
Stetson any bad luck, but if his slight indisposition should continue
for a few days, or, in lieu of that, if some other solon of the same
faith as regards the Primary bill, can only contract some minor ailment,
there will be more joy than sorrow among the people who want something
approaching a real direct primary.

"As explained in The Star's news columns, had Senator Stetson not been
ill, a tie vote on the proposition to concur with the Assembly in
amending the primary bill, presumably in the interest of Senator Frank
Flint and generally to machine advantage, would have occurred. And then
- it's unkind to say such things - any person with a grain of sense
would know that Mr. 'Performing' Porter, our honored and distinguished
Lieutenant-Governor, would break the tie by casting his vote for the

"The evident intention of Senators who stand for the Wright bill in its
original form, which is a start toward a real direct primary (and that
doesn't include Senator Wright, more's the pity) to dodge the
possibility of the tie vote by absenting themselves without leave is
regrettable - regrettable only because it is necessary. Their action,
with the aim of serving the best interests of the people, is highly
honorable compared with the tactics of the powers that be, even unto the
Governor himself, who have been trying every means to club legislators
into line to stand by the 'organization' and defeat the will of the

"It's hard to be very sorry just now over Senator Stetson's illness, but
he deserves a vote of thanks for contracting that cold. And another for
being on the right side."

[53] The Weed resolution reads as follows: "Resolved, By the Senate of
the State of California, That the President of the Senate be and he is
hereby authorized to instruct the Sergeant-at-Arms to Proceed at once to
Palo Alto with a competent physician, to be named by the President of
the Senate, for the purpose of ascertaining whether it is safe for
Senator Black to proceed at once to Sacramento, to attend as a member of
the Senate the thirty-eighth session of the California Legislature, and

"Be it further resolved, That in the event that such examination results
in disclosing a state of health wherein it will be safe for Senator
Black to be present, then the Sergeant-at-Arms shall bring him at once
to Sacramento and, if necessary, to secure an engine and coach for that

[54] Black's answering telegram was in full as follows: "I beg to inform
you (Lieutenant-Governor Porter) and through you the Senate of
California that I regard the resolutions adopted last Saturday in
reference to my absence, as discourteous, as a reflection on my honor
and integrity and as proposing an infringement on my privileges and
rights as a Senator and citizen. I have, therefore declined to see the
persons sent here under that resolution, and shall continue to decline
to see them until my physicians inform me that I can with safety return
to Sacramento.

"Ample evidence of my physical condition has been presented to your
representatives by four reputable physicians, and these physicians have
furnished and will furnish evidence of my condition from time to time as
requested by you or by the Senate.


[55] Dr. Montgomery's $400 report will be found in the appendix.

[56] The schemes resorted to to get Black back to Sacramento are almost
beyond belief. It was even intimated to him that his bills would be held
up if he did not return. The following telegram scarcely requires

Sacramento Cal Mch 20-09
Hon. Marshall Black,

Palo Alto, Cal.

Your bill to issue bonds for general improvement fund before me. I would
like to have you here to explain its provisions and the necessity for
12-50Pm J. N. GILLETT.

Chapter XI.

Machine Amends Direct Primary Bill[57].

By Trick Prevents Senate From Concurring in Amendments to Correct
Clerical and Typographical Errors, Thus Creating a Situation Which Threw
the Measure Into a Committee on Free Conference With Power to Amend.

It is a very good rule to be sure that your rattlesnake is dead before
placing yourself in a position to be bitten. The reform Senators
neglected this rule, with the result that after they had the machine
element whipped on the direct primary issue, they placed themselves in
a position where the "performers" struck at them viciously, and snatched
victory from them.

As was shown in a previous chapter, the Direct Primary bill, after it
had originally passed the Senate in the face of machine opposition, was
allowed to go to the Assembly containing several serious clerical and
typographical errors. The Assembly corrected these errors by a series of
ten amendments. It was necessary for the Senate to concur in these
amendments to get the bill into proper form. The amendments added in the
Assembly to which the anti-machine Senators took exception, were seven
in number and dealt principally with the changing of the method of
electing United States Senators, from the plan of State-wide vote, to
that of district, advisory vote. The seven were known as the "vicious
amendments"; the ten correcting the typographical errors were called the
"necessary amendments." There is no good reason why the ten necessary
amendments should not have been made before the bill was first sent to
the Assembly. But they were not, and the errors which were thus left in
the bill served the machine most advantageously when the final fight
came. After Wolfe had given up hope of compelling the reform Senators to
concur in the vicious amendments read into the bill in the Assembly, his
play was to bring about a situation by which the bill would be thrown
into a Committee on Free Conference. The committee would be appointed by
President Porter of the Senate, and by Speaker Stanton of the Assembly.
Such a committee would, of course, be in sympathy with machine policies,
and could be counted upon to amend the bill to the machine's liking.
There is little doubt that the machine leaders in the Senate and the
machine leaders in the Assembly acted in conjunction in the proceedings
which followed Senator Wolfe's action in abandoning his efforts to force
the anti-machine Senators to support the so called vicious Assembly

Wolfe's first move was to ask as a matter of courtesy that the Senate
adopt his motion to reconsider the vote by which it had the week before
refused to concur in the Assembly amendment. This request the reform
element granted, purely as a matter of courtesy. Wolfe then edged up a
step nearer.

No sooner had he received the courtesy of reconsideration than both he
and Leavitt were to the fore with a suggestion that the Senate should
refuse to concur in all the amendments and let them be threshed out in
the Assembly. The purpose of the two machine leaders was apparent.

Had the Senate concurred in the ten Assembly amendments made necessary
to correct typographical errors, and refused to concur in the seven
objectionable amendments, all that would have been necessary would have
been for the Assembly to recede from its objectionable amendments. But
if Wolfe could so engineer matters that the Senate would refuse to
concur in all the amendments, then it would be necessary for the
Assembly to recede from all its amendments, including those intended to
correct typographical errors, or send the bill to a conference
committee, to be selected by Stanton and Porter. From a Committee on
Conference to a Committee on Free Conference, also to be appointed by
Stanton and Porter, and with full power to amend the bill to its liking,
was but a step. The Committee on Free Conference was Wolfe's aim. He
eventually got it.

Boynton and Walker were quick to see the trend of Wolfe's requests,
however, and Walker moved to vote on the seven vicious amendments on one
roll call, and on the ten correcting the typographical and clerical
errors on a second.

As a substitute Wolfe moved that the seventeen amendments be passed upon
under one roll call.

At first Senators Cutten and Stetson apparently could not see the trend
of Wolfe's scheming. In the debate that ensued Wolfe pretended
indignation that his motives were being questioned.

There was very good reason for questioning Senator Wolfe's motives, but
Cutten and Stetson and even Walker assured Wolfe that no reflection upon
him was intended. What these men should have done was to have denounced
Wolfe right there as a trickster and made no bones about it. But on the
absurd assumption that a member of the State Senate is necessarily a
gentleman, the much deserved denunciation did not come.

However, Wolfe's motion did not prevail and the amendments were taken up
one by one. Six of the seven vicious amendments were rejected, the first
of the six by a vote of 19 to 20.

This brought the Senate to the amendments intended to correct
typographical and clerical errors. And here the vote switched. The
reformers had up to this time been voting to reject the amendments,
because the amendments were objectionable, while the programmers in the
first instance voted for concurrence. But when it came to amendments
intended to correct typographical and clerical errors only, Wolfe and
his following, with the exception of Burnett, who refused to stand for
any such dastardly piece of work, voted to refuse to concur in the
amendments, while the anti-machine Senators, of course, voted to concur
in them.

Burnett, voting with the anti-machine element, gave them twenty votes,
leaving Wolfe and his following only nineteen. But twenty-one votes were
necessary for concurrence. The machine, while it could not force the
Senate to concur in the vicious amendments, could prevent the Senate's
concurrence in the amendments to correct the clerical and typographical
errors. The bill was accordingly sent back to the Assembly with the
typographical and clerical amendments still in dispute.

Even before the bill had reached the Assembly, Senator Frank Leavitt and
George Van Smith of The Call were on the floor of that body, fighting to
prevent the Assembly receding from its amendments.

When the Assembly grasped the fact that the Senate had refused to concur
in the amendments necessary for correction of typographical errors,
those who were working for an effective Direct Primary bill were thrown
into the greatest confusion. Speaker Stanton's rulings which followed,
were not calculated to relieve the situation. Speaking from the desk,
Stanton said:

"If you recede from some of these amendments and not from others where
will your bill be? It will be dead. The only thing that you can do to
save the Direct Primary bill now is to recede from all the amendments
and let the typographical errors remain in the bill, or refuse to recede
from any of the amendments and let the bill go into conference. If you
recede from some of the amendments and not from others, your bill is
dead. We cannot send this bill back to the Senate saying that the
Assembly has receded from some of the amendments and not from others."

Assemblymen Preston, Bohnett and others who were standing for an
effective measure, were amazed at the position which Stanton had taken.

"I cannot for the life of me," said Preston, "see why we cannot recede
from part of the amendments and refuse to recede from the others. Some
of these amendments are really necessary for the good of the bill.
Others should be rejected. Give me fifteen minutes and I will guarantee
to dig up authorities which will show us the course to be pursued."

Assemblyman Bohnett confessed himself unable to understand why the
Assembly could not send part of the amendments to conference and not the

By this time matters had got so warm in the Assembly that Senator
Leavitt found it necessary to lend dignity to the occasion by taking his
seat at the side of Speaker Stanton, whom he engaged in conversation.
The conference was, of course, carried on in whispers.

Assemblymen Young, Bohnett and others, finding that it would be
impossible under the assumption of the Speaker to refuse to recede from
part of the amendments while receding from the others, advised the good
government members to refuse to recede from all the amendments, and pass
the bill, typographical errors and all.

It was demanded of Bohnett if this would not lead to the practical
defeat of the measure. Bohnett insisted that it would not; that the
typographical errors, while deplorable, did not materially affect the

However, many of the better element of the Assembly did not dare to take
the risk, and the motion to recede was lost by a vote of 29 to 42[51].

Assemblymen who unquestionably stood for a good bill voted against
receding. Had the vicious amendments alone been under consideration,
they would have voted to recede. Among these were such men as
Assemblyman Drew of Fresno. The Assembly, having refused to recede from
its amendments, the bill went to a Committee on Conference, appointed by
Speaker Stanton and President Porter. The machine had gained its point.

The Conference Committee consisted of Senators Wolfe, Leavitt and
Wright, and Assemblymen Leeds, Johnson of Sacramento, and Hewitt. Of the
Committee, Hewitt[59] was the only member who favored a Statewide vote
for United States Senator, and opposed the advisory district vote. The
committee had scarcely been missed from Senate and Assembly chambers
before it was back to report that no agreement could be reached.

The same members were thereupon appointed as a Committee on Free
Conference, which gave them power to amend the bill. As a Committee on
Free Conference they recommended the advisory district vote plan for the
nomination of United States Senators[60].

Senator Wolfe, having got the bill in shape to his liking, with a suave
smirk upon his face, stated that he trusted that all the Senators
present would vote for the measure.

"Not on your life," came Caminetti's protest.

And Caminetti did not vote for the Free Conference Committee's report.

But in spite of Caminetti's protest, both Senate and Assembly adopted
the Conference Committee's report. They had to do so or defeat the bill
entirely. Caminetti was the only Senator who voted against it. The
machine, after a fight of nearly two months, in which it was twice
defeated in the Senate, and escaped defeat in the Assembly by only one
vote, that of Pulcifer, had carried its point, had succeeded in denying
the people of California the privilege of casting a practical,
State-wide vote for United States Senators.

What the anti-machine Senators[61] thought of the outcome is best
expressed in the little speech which Senator Stetson made his
fellow-Senators in explaining his vote to accept the report of the
Committee on Free Conference.

"Before voting on this matter," said Stetson, "lest any one in the
future may think that I have been passed something and didn't know it, I
wish to explain my vote, and wish to say that this permission accorded a
candidate to go on record to support that candidate for United States
Senate, who shall have the endorsement of the greatest number of
districts, comes from nobody and goes to nobody. It means nothing -
mere words - idle words. The only way in which a candidate could have
been pledged would have been to provide a pledge or instructions to the
Legislature. The words 'shall be permitted' mean nothing and get
nowhere. I shall vote for this report, not because I want to, but
because I have to if we are at this session to have any Direct Primary
law at all."

[57] The plain citizen will marvel at the lengths to which the machine
went to prevent a provision being incorporated into the Direct Primary
bill for the selection by State-wide vote of United States Senators. The
plain citizen does not, however, look upon a United States Senator
through the same eyes as the machine. To the plain citizen that United
States Senator is desirable who represents policies beneficial to his
country and his State; to the machine that United States Senator is
desirable who will in effect turn his Federal patronage over to the
machine. The election of United States Senators by State-wide vote would
take their appointment out of machine hands, which would mean loss to
the machine of Federal patronage. For this reason the almost
unbelievable lengths to which the machine went to prevent the provision
for State-wide vote for the election of United States Senators being
incorporated into the Direct Primary bill.

[58] The vote was as follows:

Ayes: Messrs. Bohnett, Callan, Cattell, Cogswell, Collum, Costar,
Flavelle, Gerdes, Gibbons, Gillis, Hinkle, Holmquist, Irwin, Johnson of
Placer, Juilliard, Kehoe, Maher, Mendenhall, Odom, Otis, Polsley,
Preston, Sackett, Stuckenbruck, Telfer, Whitney, Wilson, Wyllie and
Young - 29.

Noes: Messrs. Barndollar, Beardslee, Beatty, Beban, Black, Butler,
Coghlan, Collier, Cronin, Cullen, Drew, Feeley, Fleisher, Flint, Greer,
Griffiths, Hammon, Hanlon, Hans, Hawk, Hewitt, Johnson of Sacramento,
Johnson of San Diego, Leeds, Macauley, McClelland, McManus, Melrose,
Moore, Mott, Nelson, Perine, Pugh, Pulcifer, Rech, Rutherford, Schmitt,
Silver, Stanton, Transue, Wagner, Wheelan - 42.

[59] Hewitt voted against the amendments the day they were read into the

[60] The Free Conference Committee's amendment was in full as follows:

"By nominating petitions signed and filed as provided by existing laws
party candidates for the office of United States Senator shall have
their names placed on the official primary election ballots of their
respective parties, in the manner herein provided for State offices,
DISTRICTS IN THE RESPECTIVE PARTIES, and the Senatorial and Assembly
nominees shall be at liberty to vote either for the choice of such
district expressed at said primary election, or for the candidate for
United States Senator who shall have received the endorsement of such
primary election in the greater number of districts electing members of
his party to the Legislature."

[61] Stetson was not the only Senator to protest. Senators Campbell,
Holohan and Miller sent to the Secretary's desk the following
explanation of their votes: "We voted for the Direct Primary bill
because it seems to be the best law that can be obtained under existing
political conditions. We are opposed to many of the features of this
bill, and believe that the people at the first opportunity will instruct
their representatives in the Legislature to radically amend the same in
many particulars, notably in regard to the election of United States
Senators, and the provisions that prevent the endorsement of a candidate
by a political party or organization other than the one that first
nominated such candidate."

A second protest, signed by Senators Curtin, Cartwright and Sanford, was
also printed in the Journal. It reads as follows: "We voted to adopt the
report of the Committee on Free Conference on Senate Bill No. 3, not
because we believe it to be what is desired by the people of this State,
but because we believe it to be the only bill that can be adopted at
this late hour, as the Legislature is about to adjourn."

Chapter XII.

The Railroad Regulation Issue.

Recent Increase in Freight Tariff Had Brought About a Condition Which
Required Action - Senate Divided Into Supporters of an Effective and
Supporters of an Ineffective Measure - Manipulation by Which Measures
Were Placed in Hands of a Machine-Controlled Committee.

Some one has very well said that the real test of a Legislature is its
action on railroad measures. The Legislature of 1909, if estimated by
this standard would not appear to advantage. But to condemn the
Legislature of 1909 for its failure to give the State an effective
railroad regulation law, is to condemn every Legislature that has sat in
California since the present State Constitution went into effect thirty
years ago. The Constitution empowers the Legislature to pass effective
railroad regulation measures, but up to the session of 1909, the
machine, or system, or organization - one name is as fragrant as another
- had prevented the passage, if we exclude the ineffective Act of 1880,
of any railroad regulation law at all. The machine has ever moved
against the interests of the people and in the interest of its
dominating factor and at the same time its chief beneficiary, the
Southern Pacific Railroad Company. It has so manipulated the nomination
and election of Railroad Commissioners as to keep in that office men
utterly dominated by railroad influences.

With weak and corrupt men as Railroad Commissioners, and
machine-dominated Legislatures which have neglected to pass laws which
would have made the Commission effective, or even provide funds for the
Commission to carry on its work, even had the Commissioners been so
inclined, California has been left helpless to oppose any extortion
which the railroad might see fit to exact. The system of charging all
that the traffic will bear has governed utterly. For this the Southern
Pacific Company can thank, and the People of California condemn, the

The cost to the people has been enormous. It was pretty conclusively
shown at the Legislative investigation into the cause of recent advance
of freight rates, that upwards of $10,000,000[62] a year has in this one
instance been added to the freight charges exacted from the people of
the Pacific Coast. The added burden falls upon the Pacific Coast
manufacturer, merchant, farmer, fruit grower, consumer. All from the
highest to the lowest help pay the tribute. Thirty years is a long
period, and the arm of the railroad tribute-taker far-reaching. The vast
sums which, unrestricted, the Southern Pacific has been able to exact
run into enormous totals. From a dollar and cent standpoint, it has paid
the Southern Pacific Company to control the machine.

But the railroad's absolute domination of the State could not continue
forever without protest that would eventually force a hearing. This
protest came toward the close of 1908. The increase in freight rates
made just before the Legislature of 1909 convened emphasized the
necessity for the enactment of a law that should galvanize the Railroad
Commission into activity; ensure the enforcement of constitutional
provisions for the protection of the public against dominant
transportation companies; in a word, provide effective railroad

Governor Gillett in his biennial message to the Legislature, and
Attorney General Webb in his biennial report gave expression to this
aroused public sentiment.

General Webb, after reviewing railroad conditions in California, on page
13 of his report says: "It is thus apparent that the shippers of the
State are practically helpless."

"I believe," continues the Attorney General, "that this review of the
situation will show the imperative necessity of prompt legislation on
this subject, and under the Constitution of this State, the Legislature
has ample authority to enact the required legislation."

Governor Gillett, in his biennial message, takes practically the same
stand as does Attorney General Webb.

"Our State," says the Governor on page 12 of his message, "has not kept
pace with the majority of the States of the Union in the enactment of
laws regulating railroads in their business as common carriers."

"I can virtually promise you," said General Webb at a meeting of the
Senate Committee on Corporations, held on the evening of January 25th,
"that in the event of this (the Stetson Railroad Regulation bill)
becoming a law, and the Railroad Commission refusing or neglecting to
act under its provisions, the Governor will call the Legislature
together in extraordinary session for their impeachment."[63]

There was no question of the aroused public sentiment in favor of the
passage of a railroad regulation measure. Even before the Legislature
convened it became evident that some sort of a measure would have to be
passed; even the railroad lobby saw that. The Legislature accordingly
divided on the question. As the fight was carried on in the Senate - the
Assembly in the rush of the closing hours of the session merely putting
its "O. K." on what the Senate had done - the division in the Senate
alone will be considered. The division in that body was:

(1) The minority, made up of the out and out machine Republicans and
Democrats, who were prepared to pass a measure which under the name
railroad regulation would leave the railroads practically independent of
effective State supervision.

(2) The majority, which stood for the passage of an effective law.

The minority had the best captains in the Senate and was backed by the
machine lobby made up principally of Southern Pacific attorneys.

The majority was poor in generals. But it had the backing of the
shippers of - the State, who sent able counsel to Sacramento to present
the shippers' side.

And in the end the machine minority wore out and defeated the majority.
A comparatively effective railroad regulation bill was rejected and an
ineffective measure passed.

Three railroad regulation measures were introduced in the Senate, their
authors being Campbell, Stetson, and Wright.

The Campbell bill had much to commend it, but was rejected without much
consideration by either side. Campbell was not in the program of either
railroad or shippers. But before the session was over Campbell had made
himself felt. He had, too, introduced a Constitutional Amendment for the
correction of railroad abuses, which was to figure later on, but his
bill was scarcely considered. The attorney for the shippers, in speaking
before the Senate Committee on Corporations, confessed that he had not
read the Campbell bill.

The attorney for the Southern Pacific Company, however, attempted to
split the anti-machine forces by praising the Campbell bill, and setting
the anti-machine Senators to disputing over the relative merits of the
Campbell and Stetson bills. But nothing came of this graceful little
coup. Campbell and his followers were too sensible to be caught by any
such trickery. They gave their loyal support to the Stetson bill, and
the Campbell bill was allowed to die in the Senate Judiciary Committee.
This narrowed the fight down to the Stetson bill and the Wright bill.

The Stetson bill had been prepared in the office of Attorney General
Webb, and at the instigation of Governor Gillett. As originally
introduced it contained certain defects, which were afterwards
corrected, but such Senators as Cutten, Caminetti, Black, Campbell,
Miller, Cartwright, Bell and Thompson, admitted that the measure could
be made the basis of as effective a law as could be prepared under the
present constitutional provisions for the regulation of transportation

The original measure was particularly weak in the section providing for
demurrage charges. This was finally corrected by the passage of a
separate reciprocal demurrage bill, which had been introduced by Miller.
Another weakness in the Stetson bill as originally introduced was that
the Railroad Commission was made a sort of barrier between the Courts
and those who had grievances against the transportation companies. This
objection was corrected by amendments.

Numerous other amendments adopted from time to time made the Stetson
bill probably as effective as a California railroad regulation law can
be made, under the Constitutional provision which places extraordinary
powers in the hands of the State Board of Railroad Commissioners.

Just where the Wright bill originated nobody seems to know for
certainty. But Senator Wright introduced it. Senator Wright was well
selected for the job. For two years he had been groomed as the reformer
who would introduce the State-saving Direct Primary Bill. So a railroad
regulation measure introduced by Senator Wright might at least be
calculated to bear the stamp of respectability.

Like the Stetson bill, the Wright bill was based on the constitutional
provisions which make the State Board of Railroad Commissioners the
center of railroad regulation in California. And here the parallel ends.

Comparison of the two measures is not at all to the advantage of the
Wright bill.

The Stetson bill provided fine and imprisonment as penalty for
infringement of its provisions; the Wright bill provided fine only.

The Stetson bill had a definite anti-pass provision; the Wright bill as
originally introduced had no such provision.

The Stetson bill authorized not only the Attorney-General, but the
District Attorney of any county of the State to proceed to enforce its
provisions; the Wright bill granted the Attorney-General alone such

The Stetson bill required the Railroad Commissioners to meet at least
once in every two weeks; the Wright bill provided that such meetings
should be held monthly.

The Stetson bill gave the Railroad Commissioners authority to make
physical valuation of railroad properties; the Wright bill contained no
such provision.

The Stetson bill recognized all discriminations to be unjust; the Wright
bill provided that no interference should be instituted unless the
discriminations complained of were shown to be unjust.

And finally, the Stetson bill provided that the State Board of Railroad
Commissioners should have power to fix absolute rates, thus insuring
stability of rate schedules, while the Wright bill provided that the
Commissioners should fix maximum rates only, thus permitting the famous
"fluidity" of schedules advocated by machine lobby and Southern Pacific

The contest between the supporters of the Wright and the supporters of
the Stetson bill, finally narrowed down to the question of providing for
absolute or maximum rates.

The provision for the maximum rate in Senator Wright's bill, authorized
the railroad regulating Commission to fix the highest charge which a
railroad may exact from a shipper. This is called the maximum rate. The
transportation company is authorized to lower the rate at will, but it
cannot charge a rate beyond the maximum as fixed by the Commission. This
leaves the railroads to fix a sliding schedule of rates, so long as they
do not exceed the maximum. It gives the railroads the advantage of that
"fluidity" of schedules, which railroad attorneys insist is necessary
for railroad prosperity.

The maximum rate is provided in the Interstate Commerce Act, but the
Interstate Commerce Commissioners, finding it impracticable, have for
years been clamoring for Congress to authorize the fixing of absolute
rates. The cry of the Interstate Commerce Commission has been taken up
by the shipping interests, and from one end of the country to the other
there is growing demand that authority be placed somewhere to make
railroad rates, when fixed by a regulating Commission, absolute.

The absolute rate, or the fixed rate as it is better called, which was
provided in the Stetson bill, can neither be lowered nor raised by the
railroads. Once fixed by the regulating Commission, it must remain until
the Commission grants permission for its change. The railroads cannot
lower it any more than they can raise it.

The advantages of the absolute rate are many. In the first place, where
the absolute rate is established, there can be no discrimination,
because the rate is known, it can neither be raised nor lowered, and the
railroads have no opportunity to favor one shipper at the expense of

In the second place, the shipper is guaranteed a stability of rate
schedules which is deemed necessary for settled business conditions. The
merchant, for example, includes transportation charges in the cost price
of the goods in which he deals. But if the transportation charges on the
same class of goods are subject to frequent change, the merchant can
never tell when his competitor is to be given the advantage of a sudden
lowering in freight rates. This uncertainty unsettles business. The
merchant holds that transportation rates should be just as stable as
tariff rates. On this account, the merchant advocates fixed rates and
stability of schedules as against maximum rates and constantly shifting

The supporters of the Stetson bill, then, backed the shipping and
merchant classes; while the supporters of the Wright bill backed the
contentions of the transportation companies.

The Campbell and the Stetson bills had been originally referred to the
Senate Judiciary Committee, while the Wright bill had been referred to
the Senate Committee on Corporations. For the first few weeks of the
session, no particular note had been taken of the Wright bill, attention
being centered on the amendment of the Stetson bill.

Things were going swimmingly with the Stetson bill, when the machine
lobby awoke to the fact that something was wrong in the Senate. There
was at least some indication that the Senate would pass an effective
railroad regulation measure.

And then, before the advocates of the Stetson measure could tell exactly
what was happening, the railroad regulation measures were taken from the
Judiciary Committee and placed in the hands of the Committee on

A glance at the personnel of the two Committees at least suggests why
this was done.

The members of the Judiciary Committee were Willis, Wolfe, Wright,
McCartney, Savage, Boynton, Anthony, Burnett, Cutten, Estudillo,
Martinelli, Roseberry, Stetson, Thompson, Curtin, Cartwright, Caminetti,
Miller, Campbell.

The nine Senators whose names are printed in Italics, when the issue
came to vote on the floor of the Senate, voted against the Stetson bill
and for the Wright bill; nine of the ten whose names are printed in
ordinary letters voted for the Stetson bill and against the Wright bill.
The tenth, Roseberry, was absent, but when he found that the vote had
been taken, stated that had he been present he would have voted for the
Stetson bill and against the Wright bill.

Furthermore, Estudillo, who finally voted for the Wright bill, did not
approve the measure and voted for it because he feared the absolute rate
feature of the Stetson bill to be unconstitutional.

Thus at the time the Stetson and the Campbell bills were taken from the
Judiciary Committee, the Committee was regarded as standing:

For the Wright bill - 8.

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