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

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Against the Wright bill - 11.

For the Stetson bill - 11.

Against the Stetson bill - 8.

It was certainly not in the interest of the Stetson bill that the
measure was taken from the Judiciary Committee and sent to the Committee
on Corporations.

A glance at the personnel of the Committee on Corporations reveals a
significant state of affairs. The Committee consisted of the following
Senators: Bates, Welch, Wright, McCartney, Burnett, Bills, Walker,
Roseberry, Finn, Miller, Kennedy.

When the test came on the floor of the Senate, the nine of the eleven
Senators whose names are printed in italics voted for the Wright bill
and against the Stetson bill. The two members whose names are printed in
ordinary letters, voted for the Stetson bill, and against the Wright

The line-up of the Committee on Corporations, when the measures were
taken from the Judiciary Committee and sent to the Committee on
Corporations, was then:

For the Wright Bill - 9.

Against the Wright Bill - 2.

For the Stetson Bill - 2.

Against the Stetson Bill - 9.

The change was certainly not made in the interest of the Stetson bill.

The incident stirred up Campbell and other anti-machine Senators to the
fighting pitch. An arrangement was made, however, by which the measures
were to be sent back to the Judiciary Committee after the Committee on
Corporations got through with them that the Judiciary Committee might
pass upon their constitutionality. The arrangement had two effects - it
silenced the unquieting protest of the anti-machine Senators, and it
delayed consideration of the bills. But, as the sequel showed, the
arrangement did not help the Stetson bill in the least.

[62] The testimony was that of George J. Bradley, traffic manager of the
Merchants' and Manufacturers' Traffic Association of Sacramento. It was
as follows:

It is estimated on conservative figures that the increase in eastbound
California products, or Pacific Coast products, I should correctly say,
which is composed of canned fruits, canned vegetables and canned salmon,
of which there are several million cases, go from the North Pacific
coast through either San Francisco or through the North Pacific coast,
the minimum being forty thousand pounds to the car, and the increase
being ten cents per hundred pounds, means forty dollars a car increase.
Now, taking the number of cars of all those products that are shipped,
it amounted to about - and leather and other products - it amounted to
about four million dollars eastbound. Now, when the question of
westbound comes out, of course, it is practically impossible for any man
to say just exactly what that increase will mean in dollars and cents,
and the only way, therefore, to arrive at it is to take the percentage
of proportion now in their westbound tariff, which is composed of about
between eight hundred and a thousand items. They have raised the rates
from 10 to 25 cents on over two hundred articles, all of which move in
quantities; in other words, the process by which the tariff has been
amended has been that in every instance where there was a commodity
moving in quantities the rate has been advanced; wherever there was no
movement and they wished to encourage a movement, they reduced the rate.
Now, you take the five transcontinental lines that operate on the
Pacific Coast, namely, the Northern Pacific and the Great Northern on
the north and the Canadian Pacific; the Southern Pacific and the Santa
Fe and the San Pedro and Los Angeles on the south, give you six trunk
lines operating on the Pacific Coast. If you will take their gross
earnings, which amount to over four hundred millions, segregate that by
allowing fifty per cent of that to passenger service, which is a very
conservative estimate, because the passenger service does not amount to
that, leaves two hundred million dollars of gross freight earnings. Take
five per cent of that for terminal business, and business is based on
terminal rates from the coast, plus the local back, because the rate, of
course, is felt everywhere, the rates to the interior points are made on
the terminal rate, plus the local back. Take five per cent of that and
their increase in every instance has been 10 per cent, and in some cases
16 2/3 and 20 per cent; but take a very liberal conservative estimate
and put it at five per cent and you have ten million dollars; now, split
that in two and take two and a half per cent of it and you have got five
millions of dollars. Now, that and your four million dollars on
eastbound freight and you have nine millions of dollars increase in
freight rates, and I believe that that is a conservative estimate. I
don't see how you could get at it any closer, because every man, it
doesn't make any difference where he is, every man that buys pays that
ten to twenty per cent increase.

[63] Senator Caminetti on February 12 introduced a concurrent resolution
calling for the removal of the present Board of Railroad Commissioners
from office. The Committee on Corporations reported adversely, and on
March 15th the resolution was finally rejected.

Chapter XIII.

Machine Defeats the Stetson Bill.

Southern Pacific Attorney Succeeds in Clouding the Issue - Railroad
Claquers Active in Advocating the Maximum Rate, Which Was Designated as
Little Better Than No Rate At All - No Fight Over the Bill in the

Having succeeded in transferring the railroad regulation measures from
the Senate Judiciary Committee, the majority of whose members were
anti-machine, to the Committee on Corporations, the majority of whose
members were machine, the machine proceeded to discredit the Stetson
bill, by making it appear that the State Constitution by implication
prohibits the fixing of absolute railroad rates, and provides that the
Railroad Commissioners may fix maximum rates only. Peter F. Dunne was
brought to Sacramento to make this argument before the Senate Committee
on Corporations.

Dunne, in his address, showed greater ability than integrity. When he
had finished, even the anti-machine members of the Committee were
completely befuddled. Walker, one of the members of the Committee who is
not a lawyer, groped in utter darkness thereafter, until he finally
stumbled into the arms of Eddie Wolfe and Frank Leavitt and Jere Burke,
when the final vote on the railroad bills was taken. It was Walker's
only stumble of the session. But for his unfortunate vote against the
Stetson bill and for the Wright bill, Walker would have made an
exceptionally clean record.

Not only did Dunne befog the lay Senators of the Committee, he shook the
faith of men like Miller and Roseberry - both lawyers - on the
constitutionality of the absolute rate. Miller recognizes that the
absolute rate is the only practical rate; but until the end of the
session he was not prepared to say that it could be constitutionally
established. Dunne certainly did a good job. To be sure, his address was
a mass of misrepresentations, but of misrepresentations cunningly put.
He shattered the implicit faith of the anti-machine Senators in the
absolute rate. And that was what he had been sent to Sacramento to do.
The evil that Dunne did lived long after he had left the capital.

Curiously enough, neither the term "absolute rate" nor "maximum rate"
appears in the State Constitution.

Article XII, Section 22, of the Constitution, provides that the Railroad
Commissioners "shall have the power and it shall be their duty to
establish rates of charges for the transportation of passengers and
freight by railroad or other transportation companies."

Further on in the same section, it is provided that "any railroad
corporation or transportation company which shall fail or refuse to
conform to such rates as shall be established by such Commissioners, or
shall charge rates in excess thereof, * * * shall be fined not exceeding
$20,000 for each offense."

The dispute between those who stood for maximum rates - that is to say,
the members of the machine lobby, the machine Senators, the Southern
Pacific attorneys and those who wanted absolute rates - namely, the
anti-machine Senators and the attorneys representing large shipping
interests - waxed hot over the words in the above quotation which are
printed in Italics.

The advocates of the absolute rate held, with at least apparent reason,
that the words "fail to conform to such rates" mean just what the
dictionaries say they do: That the railroad charging a rate in excess of
that fixed by the Railroad Commissioners, or a rate less than that fixed
by the Commissioners, is not conforming to the rates. Such, at least,
seems reasonable construction of a very simple phrase.

But not so, insisted the railroad lobby. That aggregation of patriots
skimmed over the words "fail to conform to such rates," and saw only,
"or shall charge in excess thereof." Inasmuch, the pro-railroad element
held, as the Constitution says that the railroads shall not charge in
excess of the rates fixed by the Railroad Commissioners, the railroads
are at liberty to reduce the rates as fixed by the Commissioners at
will. In other words, according to the pro-railroad element, the
Constitution authorizes the fixing of maximum rates only.

The pro-railroad claquers even went so far as to claim that the Supreme
Court has decided that the maximum rate is the only rate that can be
fixed under the State Constitution. They referred the doubtful to the
notorious decision in the Fresno passenger rate case known as the Edson

But no question of maximum rates was involved in the Edson case. To be
sure, Chief Justice Beatty took occasion to say in his opinion in that
case that his understanding had been that the State Constitution
provides for the maximum rate. But this had no place in the decision,
was purely dictum, and is so regarded.

Attorney-General Webb has an ingenious but very plausible explanation of
Judge Beatty's much-discussed observation. General Webb points out that
previous to the adoption of the present State Constitution - 1879 -
Justice Beatty had been engaged in the active practice of the law in
this State. Up to the time of the adoption of the Constitution of 1879
the maximum rate had prevailed in California. About that time, Judge
Beatty went to Nevada and was absent from the State for several years.
Returning to California, after the State Constitution had been adopted,
Judge Beatty found no case in which the duties of the Railroad
Commissioners had been involved, until the Edson case came up.

"I am of the opinion," said General Webb in discussing this point, "that
when the Chief justice spoke of the maximum rate in the Edson case he
was governed by mental impressions received previous to 1879, when the
maximum rate was indeed the rule in California."

All this was a very pretty theory. To the common-sense mind "conform to
the rates fixed" might mean conform to them; the normal man might be
unable to dig out of the Constitution any prohibition of absolute rates.
But the confusion caused by the raising of the question got the Stetson
bill very much in the air.

During all the discussion, however, the Wright bill was not considered
at all. Nobody was thinking of the Wright bill - that is to say, nobody
outside of those scheming for its passage. Like a mongrel duck's egg
under a respectable hen, it was left to incubate undisturbed, to
surprise everybody at the hatching.

Finding themselves unable to clear away the doubt which raising the
question of the constitutionality of the absolute rate had created, the
anti-machine Senators and the attorneys of the shippers finally, after
the Wright bill had been forced into prominence, put the case something
like this:

"If the Courts decide that the maximum rate only is constitutional, then
the Wright bill, which provides for the maximum rate, will be
constitutional, and the greater part of the Stetson bill will also be

"But if the Courts decide that an absolute rate is the only rate
justified under the Constitution, then the Wright bill will be
unconstitutional and all the Stetson bill constitutional."

This somewhat loose argument unquestionably kept certain Senators who
recognized the impracticability of the maximum rate, but feared for the
constitutionality of the absolute rate, in line for the Stetson bill.

With the situation thus confused, all was in readiness to bring the
Wright bill before the public. This was done on February 17th. Up to
that date the writer honestly believes that not two minutes had been
devoted to public discussion of this measure, although the Stetson bill
had been discussed paragraph by paragraph, line by line, every word
weighed carefully.

The ceremony of giving the Wright bill prominence took place behind the
closed doors of an executive session of the Senate Committee on
Corporations. These executive sessions, by the way, are seldom held when
the best interests of the public are to be conserved. The proceedings
were evidently pre-arranged. Senator Wright opened by moving that the
policy of the Committee should be that the Railroad Regulation measure
to receive favorable consideration from the Committee must provide for
the maximum rate.

The vote was as prompt as it was decisive. Senator Wright's motion
carried by a vote of 7 to 3. The vote was as follows:

For the maximum rate - Bates, Welch, Wright, McCartney, Bills, Finn,

Against the maximum rate - Walker, Roseberry, Miller.

Burnett, the eleventh member of the Committee, was absent.

Gradually it dawned upon Walker, Miller and Roseberry that this meant
the favorable recommendation of the Wright bill. The next moment that
fact was hammered into them by the Committee deciding by the same vote,
7 to 3, to recommend that the Stetson bill do not pass; and that the
Wright bill do pass.

The machine had won the opening skirmish in the railroad regulation
controversy. Incidentally it had come out in the open squarely for the
Wright bill. From that moment the machine Senators labored openly for
the passage of the measure. However, the machine was not yet out of the
woods with its Railroad Regulation bill. The Senate Judiciary Committee
had still to pass upon it, and the majority of the Judiciary Committee
was anti-machine.

Wright followed the same course in the Judiciary Committee as he had
taken in the Committee on Corporations, namely, moved that it be the
sense of the Committee that the Railroad Regulation bill to be favorably
considered by the Committee should provide for the maximum rate.

Wright's motion was, however, lost by a vote of 8 to 10. The Committee
not only rejected the maximum rate, but endorsed the absolute rate, thus
reversing the Committee on Corporations. The vote by which this was done
was as follows:

Against the maximum rate, against the Wright bill and for the Stetson
bill - Campbell, Cutten, Miller, Stetson, Thompson, Caminetti, Boynton,
Roseberry, Curtin and Cartwright - 10.

For the maximum rate, for the Wright bill and against the Stetson bill -
Anthony, Martinelli, McCartney, Wright, Willis, Wolfe, Burnett and
Estudillo - 8.

Absent - Savage - 1.

Thus the Stetson bill after two months of machine effort against it,
went to the floor of the Senate from the Judiciary Committee with the
recommendation that it "do pass." Of the forty Senators, nineteen were
lawyers, and every one of the nineteen was a member of the Senate
Judiciary Committee. Thus the majority of the lawyers of the Senate, in
spite of the confusion which the machine claquers had created, were
willing to take their chances on the constitutionality of the Stetson

But in fairness it must be admitted that members of the Judiciary
Committee who voted for the absolute rate provision of the Stetson bill
were still in the befuddled condition in which Peter F. Dunne's
sophistry had left them. Senator Miller, for example, in explaining his
vote for the absolute rate, said:

"I take this stand, not that I am convinced that the Supreme Court will
decide the absolute rate to be constitutional; I fear that it may not.
But the maximum rate is little better than no rate at all. I wish the
absolute rate provided in this bill, that the Supreme Court may be given
opportunity to pass upon it."

Senator Roseberry, who voted for the absolute rate, confessed himself as
much at sea as was Senator Miller. Senator Estudillo, who voted for the
maximum rate, insisted that he had not been able to make up his mind
which should be adopted.

On the other hand, Senator Cutten, himself a lawyer and a close student
of the legal questions involved, stated that while he had thought
originally that the maximum rate is the only constitutional rate that
can be fixed, he had been forced to come to the conclusion that the
absolute rate alone is constitutional.

But in the end the Wright bill and not the Stetson bill passed the
Senate. It passed after a day of debate in which the issue became
clouded, if anything, worse than at any stage of the proceedings.
Leavitt and Wolfe, with Wright chipping in with a me-too word now and
then, led the debate in favor of the Wright bill. Senators Stetson,
Boynton, Cutten, Roseberry and Miller led the fight for the Stetson
bill. Significant enough was the fact that the line-up of Senate leaders
was precisely the same as that in the fight which the machine carried on
against the Direct Primary bill.

Miller's argument in favor of the Stetson bill showed the confusion
under which the advocates of effective railroad regulation were

"If we adopt the Wright bill," said Miller, "the railroads will be
satisfied and never dispute it in the Courts. Whereas, by the adoption
of the Stetson bill the railroads will almost be compelled to appeal to
the Courts, and then we shall have a quick decision on the question in
which we are all interested. If the Courts sustain the Stetson bill, we
shall have a law that will do all we want for the present."[64]

The debate on the measures was on a motion by Stetson that the Stetson
bill be substituted for the Wright bill. In this Stetson made a serious
mistake. He staked his whole bill on one issue, that of absolute or
maximum rates. On all other points, the Stetson bill was better than the
Wright bill. It was a mistake in policy for Stetson to stake the fate of
his measure on a single issue.

Stetson's motion was lost by a vote of 16 to 22; the Stetson bill was
accordingly not substituted for the Wright bill, and the Wright bill,
which had come from the Judiciary Committee with a minority report back
of it, went to third reading and final passage.

The vote by which Stetson's motion was defeated, was as follows:

To substitute the Stetson bill for the Wright bill - Bell, Birdsall,
Black, Boynton, Caminetti, Campbell, Cartwright, Curtin, Cutten,
Holohan, Lewis, Miller, Sanford, Stetson, Strobridge, Thompson - 16.

Against substituting the Stetson bill for the Wright bill - Anthony,
Bates, Bills, Burnett, Estudillo, Finn, Hare, Hartman, Hurd, Kennedy,
Leavitt, Martinelli, McCartney, Price, Reily, Savage, Walker, Weed,
Welch, Willis, Wolfe, Wright - 22.

Senators Roseberry and Rush were absent from the room when the vote was
taken but both were for the Stetson bill, which would have made the vote
22 to 18 in favor of the Wright bill.

The twenty Senators whose names are printed in Italics are the twenty
who voted with Leavitt and Wolfe to maintain the deadlock on the Direct
Primary bill that the measure might be so amended that the electors of
California would be denied a practical, State-wide vote for United
States Senators. But one of the twenty, Lewis, voted for the Stetson
bill, while nineteen of them voted for the Wright bill.

On the other hand, only three of the Senators, Estudillo, Anthony and
Walker, who stood out for an honest Direct Primary law, voted against
the Stetson bill and for the Wright bill. Walker had supported the
Stetson bill in the Committee on Corporations, but stumbled into the
machine ranks when it came to final vote. Had the anti-machine had an
organization, such as the machine Democrats and Republicans maintained,
Walker's blunder could have been prevented. Probably, too, Estudillo and
Anthony would have remained with the anti-machine forces[65]. This would
have given the Stetson bill twenty-one votes, and assured its passage.

Another vote that should have been saved to the reformers was that of
Burnett. Burnett was clearly tricked into voting for the Wright bill.
When the Stetson bill received the favorable recommendation of the
Senate Judiciary Committee, machine claquers filled the air with the
indefinite promise that in the event of the Wright bill becoming a law,
a constitutional amendment would be adopted, by which all ambiguity in
the State Constitution on the question of maximum and absolute rates
would be removed. The amendment was then pending before the Senate
Judiciary Committee, which finally reported it favorably.

After the Wright bill had been passed, the amendment was defeated by
machine votes, as will be shown in the next chapter.

In the closing days of the session, when Burnett was urging that steps
be taken for investigation into the increase of freight rates, he called
attention to the fate of that railroad-regulation amendment.

"I was led to vote as I did for the Railroad Regulation bill," he said,
"on the understanding that that constitutional amendment would be
adopted. As you know, it was defeated. My attitude on the regulation
bill would have been very different had I known that the amendment was
to be rejected."

The Wright bill met with practically no opposition in the Assembly,
being rushed through the Lower House in the closing hours of the
session. Had the Stetson bill passed the Senate, the machine would have
tried to block and amend it in the Assembly as was done with the Direct
Primary bill, but the measure would probably have been passed.

Had the anti-machine forces in the Senate been organized, the Stetson,
and not the Wright bill, would have passed that body. Without
organization, or even definite policy, in the face of organized machine
opposition, it is astonishing - and at the same time most encouraging -
that eighteen of the forty Senators stood by the Stetson bill to the

[64] The question to which Senator Miller referred was: Has the
Legislature power under the Constitution to authorize the Railroad
Commissioners to fix the absolute rate? a question upon which the
machine does not propose the Supreme Court shall be required to pass.

[65] Walker and Estudillo were bitterly condemned for their vote for the
Wright bill. Incidentally, the writer has been roundly criticized for
offering the excuse in their behalf that these two men indicated by
their attitude on other measures throughout the session that they would
have continued with the reform element in the matter of railroad
regulation, had the anti-machine Senators been organized to give
effective resistance to the machine. Perhaps the sanest of this
criticism, certainly the most reasonable, is from a gentleman who was a
close observer of the work of the session. He says:

"The course of the railroad rate bill from my point of view looked
somewhat different in many details, at any rate, from your account of
it. I cannot bring myself to think that it was defeated by any chance at
the hands of a friendly Legislature. I think that what chances there
were were mostly added to the number of votes the bill got and that the
attitude of men like Walker and Estudillo on that bill was fundamental
and to have been expected from the start. Of course what you say about
the woeful lack of organization amongst the individual men was only too
apparent. That phenomenon reaches back still deeper and is based upon
the quality of human nature which exerts itself more persistently and
more energetically and with soldier-like rhythm of compact organization
when private selfish interests are involved, than when the general
interest and somewhat vague uncentered end of public welfare is

But in spite of this very reasonable view, from a very reasonable
gentleman, the fact remains that in the Committee on Corporations,
Walker stood out against the machine on this very issue, and that in the
direct primary fight both Walker and Estudillo stood out against the
machine to the end. Had the anti-machine element been organized, the
Stetson bill and not the Wright bill would in all probability have been

Chapter XIV.

Railroad Measures.

Constitutional Amendment to Clear the Way for an Effective Railroad
Regulation Bill Defeated - Rate Investigation Delayed Until Too Late for
Effectiveness - Resolution to Continue Investigation Defeated -
Reciprocal Demurrage Bill Becomes a Law - "Error" in the Full Crew Bill.

The anti-machine members of the Legislature had not proceeded far in
their efforts to pass an effective railroad regulation law, before they
became convinced that at best only a make-shift measure is possible,
until certain alleged ambiguities of those sections of the State
Constitution prescribing the powers and duties of the State Board of
Railroad Commissioners have been removed. Where, to the common sense
mind, no ambiguities exist, machine claquers and Southern Pacific
attorneys can read them into the Constitution very easily, as in the
dispute as to whether the absolute or the minimum rate is

Advised by the attorneys representing the shipping interests, the
anti-machine members undertook to simplify the language of the sections
in dispute, so that a wayfaring man though a Judge on the bench or a
machine legislator need not err in the construction thereof.

Early in the session, Senator Campbell had introduced a constitutional
amendment to that end. The amendment went to the Judiciary Committee on
January 14th. The majority of the committee, openly against the machine,
favored the submission to the people of such an amendment. But it was
not until February 22d that the amendment - or rather a substitute for
it - was reported back to the Senate.

The day following, February 23d, Senator Campbell had the measure
re-referred to the committee, that an amendment better calculated to
meet the needs of the State might be prepared. The committee took until
March 5th to make its report. The anti-machine Senators on the committee
had to fight for every inch of the way toward securing a report upon an
effective amendment. This, however, they finally succeeded in doing. The
second substitute amendment smoothed out the ambiguities and the alleged
ambiguities of the Constitution, of which the machine legislators made
so much during the session, and of which it is feared the courts may
make much later on. For the long list of constitutional powers and
duties of the Railroad Commissioners, which are so worded as to confuse
the legal mind, the framers of the amendment substituted the following:

"The Commission (Railroad) and each of its members shall have such
powers and perform such duties as are now or may hereafter be provided
for by law." Under that simple permission there could have been no
question of the authority of the Legislature to empower the Railroad
Commissioners to fix a system of absolute rates. Section 23, Article
XII., of the Constitution, which at least confused the lawyers employed
by the railroads to prevent the passage of the Stetson bill, was
repealed entirely. The adoption of the amendment, would, had it been
approved by the people at the general election of 1910, have removed
every impediment which railroad attorneys claim to be in the way of an
effective railroad regulation law for California.

Curiously enough the machine Senators who had been so much exercised
over the alleged ambiguities of the Constitution when the Stetson bill
was under consideration were found opposed to the submission of the
amendment to the people. Every Senator who voted against the amendment
had voted against the Stetson bill and had voted for the Wright bill.
Burnett, who had been led to believe when he voted for the Wright bill
that the amendment would be submitted to the people, voted for the
amendment. Walker also switched back from the machine. Wright and
McCartney, who had voted against the Stetson bill, also went on record
for the amendment. The remaining fourteen Senators who voted for it, to
a man, had voted for the Stetson bill and against the passage of the
Wright bill. But a two-thirds vote of the Senate was required for the
amendment's adoption. This meant twenty-seven votes. The amendment was
defeated, the vote being nineteen for submission of the measure to the
people, and sixteen against[66].

This ended all hope of a model railroad regulation law for California
until 1913, for the Constitution must be amended before such a law can
be realized. If a satisfactory amendment be adopted in 1911, it must
before going into effect be ratified by the people. This ratification
would come in 1912. The Legislature of 1913 would then be able to
proceed with the passage of the model statute.

An attempt to investigate the causes and the necessity of the arbitrary
increase in transcontinental freight rates failed as completely as did
the attempted amendment of the Constitution.

Early in the session, on January 18, to be exact, Senator Caminetti
introduced a resolution which directed the Senate Committee on Federal
Relations to inquire into the cause of the increase in freight rates,
and to report its findings to the Senate. Two days later Caminetti
introduced a second and companion resolution, which provided that
investigation should be made into the causes for the increase in express
charges. On Senator Leavitt's motion this last resolution was made a
special order for January 22, when the first resolution was to come up.
The Senate on the 22d re-referred the resolutions back to the committee.

The Senate Committee on Federal Relations was, by Caminetti's clever;
tactics in having the resolutions go to that body, forced into a
prominence which evidently worried the machine. It consisted of Burnett,
Black and Sanford. Black, Republican, and Sanford, Democrat, were
working openly against the machine. Burnett, while he managed to land on
the machine side of things at critical points in the progress of the
session, was by no means a machine coolie. Had it been known that the
Committee on Federal Relations was to be charged with an investigation
into railroad affairs, a very different committee would unquestionably
have been appointed. The machine's problem was to correct the blunder
made when the anti-machine forces were given a majority on what had
become a committee charged with the handling of an important railroad
issue. The ease with which the blunder was corrected speaks volumes for
the machine's resourcefulness.

The air at the capitol suddenly became permeated with the idea that a
committee of three was altogether too small to conduct so important an
investigation as that proposed in the Caminetti resolutions. Accordingly
the Committee on Federal Relations very readily recommended, when it
reported the resolutions back to the Senate with the recommendation that
the investigation be held, that two Senators be added to the committee,
making it a committee of five. Had the machine observed the unwritten
rules of Senatorial courtesy[67], which machine Senators insist upon so
loudly, the anti-machine element would have been safe enough in doing
this. Senatorial courtesy required that the author of the resolutions,
Caminetti, be made one of the two additional members. This would have
given the anti-machine element at least three members of the enlarged
committee, a condition which did not line with machine purposes at all.
So Senatorial courtesy was thrown to the winds, Senator Caminetti was
ignored, and Senators Wolfe and Bills were named as the additional
members of the committee. The machine seldom blunders, but when it does,
usually covers its blunders with astonishing directness and dispatch. A
glance at the records made by Senators Wolfe and Bills, which will be
found in Table "A" of the Appendix, will show the truth of this

The machine's next move was to delay the investigation. For one reason
and another the investigation was delayed. Finally, on February 19,
Caminetti gave notice that on the following Tuesday, he would move that
the committee be discharged and a second committee ordered to carry out
the instructions contained in the resolutions. This declaration of war
stirred the machine to action - machine action. Assurances were given
that the investigation would be held, but it was March 12, almost two
months after the resolution had been introduced, and only twelve days
before adjournment, before the committee placed its first witness on the

At that time the Senate was in the midst of the Direct Primary fight,
and in addition, the machine after months of planning was sending
literally hundreds of measures into Senate and Assembly for final
action. There was no time nor were the members of the committee in a
condition to conduct the investigation which the anti-machine element
had contemplated. But hurried hearings were held, and a mass of evidence
of railroad and express company extortion brought into the open. The
interested reader will find the testimony printed in the Senate journal
of March 23, 1909.

Men of the standing of Edwin Bonnheim[68], treasurer and manager of
Weinstock, Lubin & Co.; Russell D. Carpenter, auditor of Hale Brothers,
Inc.; J. O. Bracken, manager of the California Commercial Association;
C. H. Bentley of the California Fruit Canners Association; all testified
that the increase in express and freight charges has worked great
hardship upon the State. They showed that in the final analysis the
consumer pays the increased charges. Furthermore, testimony was produced
which at least indicated that the transportation companies, if
economically not to say honestly managed, would receive fair returns on
their legitimate investments, were even lower freight rates to be
charged than those exacted prior to the increase of 1908. It was also
shown that the State of California could institute and conduct an
examination into railroad affairs before the Interstate Commerce
Commission[69]. It was clear to all that thorough investigation under
the Caminetti resolutions would prove of enormous benefit to the State.
That the committee could do little or nothing in the short time
remaining before adjournment was also recognized. Burnett had come out
for thorough investigation, giving the anti-machine forces a majority of
the committee. Witness after witness representing the large shippers and
importers of the State urged that the investigation be carried on even
after the Legislature had adjourned. Burnett as chairman of the
committee was urging this course, but it was March 23, the day before
adjournment, before he could get his committee report ready, and filed
with the Senate, as basis for a resolution to continue the investigation
after the Legislature had adjourned. There were but eleven dependable
anti-machine Senators in addition to Burnett who were within reach of
the capitol. But the machine had a safe majority within call. Burnett's
resolution was defeated, the investigation denied, by a vote of twelve
for to sixteen against[70].

But two important railroad measures were finally passed by the
Legislature. The first of these was the "Full Crew bill," which required
adequate manning of railroad trains. After being held-up as long as the
machine dared, the bill was finally passed. But the "Full Crew bill" met
with one of those unfortunate "errors"[71] which played such important
parts in the passage of the Anti-Gambling bill and the Direct Primary
bill. When the Legislature had adjourned this error was discovered, and
Governor Gillett refused to sign the bill because of it.

The second important railroad measure passed was the Reciprocal
Demurrage bill, introduced in the Senate by Miller, and in the Assembly
by Drew. As finally passed the bill provides that railroad companies
which fail to supply shippers with cars when proper requisition has been
made for them, shall pay the injured shipper demurrage at the rate of $5
per car per day. On the other hand, shippers who fail to load or unload
cars after a stated time, are required to pay the railroad $6 daily as
demurrage. The extra dollar which the shippers are required to pay the
railroads is exacted to compensate the railroads for rental of the car.

Similar laws up to the time of the passage of the Miller-Drew bill had
been adopted by seventeen States of the Union, including Oregon and
Texas. During the recent car shortage, it is alleged that empty cars
needed in California, were sent into Oregon and into Texas, that the
railroads might escape the demurrage charges exacted in those two
States. California, without a demurrage law, was helpless. At the
session of 1907, however, the machine, in complete control of the
Senate, defeated a reciprocal demurrage bill. To be sure the demurrage
was higher in the measure proposed in 1907 than in that passed at the
session of 1909, but it was the principle of demurrage, not its amount,
that the machine was against in 1907. In 1909, however, not a Senator
voted against the bill. And in this connection there is a story told
which unquestionably had its bearing upon the fate of the Reciprocal
Demurrage bill at the 1909 session. The story deals with a political
adventure in the life of one Henry Lynch.

Mr. Lynch voted against reciprocal demurrage in 1907. He voted neither
for nor against reciprocal demurrage in 1909, for he was not at
Sacramento to vote. Mr. Lynch was not at Sacramento to vote in 1909, for
one reason at least, because he did vote against reciprocal demurrage in

Mr. Lynch hailed from the Thirty-first Senatorial District, which takes
in San Benito and San Luis Obispo counties. These counties are intensely
Republican; they are also farming communities. And since the one-time
Senator Lynch voted against the Reciprocal Demurrage bill, the farmers
have seen tons upon tons of their products rot in the fields because
they could not get cars to move their crops.

But while the farmers of San Luis Obispo and San Benito counties were
watching their products rot for want of cars to move them, it is alleged
that cars were being sent from California to Oregon to meet the
requisitions of Oregon shippers. Oregon had a reciprocal demurrage law
on her statute books; California had not.

Senator Lynch's vote against the Reciprocal Demurrage bill was made a
sort of issue in San Benito and San Luis Obispo counties at the election
of 1908. A. E. Campbell, Democrat, was running against Mr. Lynch,
Republican, for the State Senate. Right or wrong - the reader may judge
which - the farmers of the two counties credited the defeat of the
Reciprocal Demurrage bill not to the Republican Party, but to the
Republican machine, or better described perhaps as the
Republican-Democratic machine, that dominates the State, a machine
which the people of California are just now engaged in smashing.

Being good Republicans, the people of Mr. Lynch's district gave Mr. Taft
a plurality of more than 1,700; remembering the defeat of the Reciprocal
Demurrage bill, they gave Mr. Campbell, Democratic candidate for the
Senate, a plurality of 416. The fact that a United States Senator was to
be elected didn't influence the Republicans of San Luis Obispo County at
all. They elected a Democrat to the State Senate because they knew him
to be free from machine domination - a machine maintained for the
purpose of defeating good measures, such as the Reciprocal Demurrage
bill, and furthering the passage of bad ones.

But the influence of Lynch's vote against the Reciprocal Demurrage bill
was not confined to San Luis Obispo and San Benito Counties. It spread
over into the adjoining Twenty-ninth District, which takes in Santa Cruz
and San Mateo Counties. These counties are also intensely Republican.
They gave Taft a plurality of 2,799. But they gave the Democratic
candidate for the State Senate, James B. Holohan, a plurality of 677.
Holohan ran 3,476 votes ahead of his ticket in a district where only
9,483 votes were cast for State Senator. Holohan was known to be free of
machine influences. He could be counted upon to vote for a Reciprocal
Demurrage bill without first consulting the Southern Pacific's political
agent, Jere Burke. And the Republican whose place he took in the Senate
had voted against the Reciprocal Demurrage bill of 1907.

The election of Holohan and Campbell unquestionably had its influence on
the passage of the Demurrage, bill. Not a member of the Senate cast his
vote against it, although several of the Senators who had voted against
the bill two years before, sat in the Senate of 1909. Among these were
ten Senators who, during the session of 1909, were conspicuously on the
wrong side of most questions. They were Senators Bates, Hartman,
Leavitt, McCartney, Reily, Savage, Weed, Willis, Wolfe and Wright. The
ten, for example, constituted half the twenty Senators who opposed the
plan to give The People State-wide popular vote in the selection of
United States Senators. Only seven Senators voted against the
Anti-Racetrack Gambling bill. Five of the seven - Hartman, Leavitt,
Reily, Weed and Wolfe - had voted against reciprocal demurrage in 1907.
But there was a harkening to the demand of The People in 1909, which had
been wanting two years before. Seven of these ten Senators, who voted
against reciprocal demurrage in 1907 - Bates, Hartman, McCartney,
Savage, Willis, Wolfe and Wright - voted for reciprocal demurrage in
1909. Three of them - Leavitt, Reily and Weed - did not vote at all.

[66] The vote was as follows:

For the amendment: Bell, Birdsall, Boynton, Burnett, Caminetti,
Campbell, Cartwright, Curtin, Cutten, Holohan, McCartney, Miller,
Roseberry, Rush, Strobridge, Sanford, Thompson, Walker, Wright - 19.

Against the amendment: Anthony, Bills, Estudillo, Finn, Hartman, Hurd,
Kennedy, Leavitt, Lewis, Price, Reily, Savage, Weed, Welch, Willis,
Wolfe - 16.

[67] Machine Senators habitually exact the utmost consideration and
courtesy from the anti-machine Senators, and habitually repay it with
deceit and trickery. The curious feature of this is that the
anti-machine Senators continue to extend the courtesy and continue to be
tricked and imposed upon. A shutting off of "Senatorial courtesy" would
go far toward solving the problem of machine domination of the

[68] Mr. Bonnheim testified that prior to the new schedule of express
rates enforced between New York and the city of San Francisco, the rate
was $8.00 per hundred for shipments of from 10,000 to 20,000 pounds;
$9.00 per hundred for 5,000 to 10,000 pounds; $10.00 per hundred for
2,000 to 5,000 pounds; $11.00 per hundred from 1,000 to 2,000 pounds.
and $12.00 from 500 to 1,000 pounds; $13.50 from 100 to 500 pounds.

That the withdrawal of the bulk rates in December, 1908, resulted in an
advance of 35 per cent by the withdrawal of the 2,000 pound rate, and an
advance of 50 per cent by the withdrawal of the 5,000 pound rate; an
advance of 66 3/4 per cent by the withdrawal of the 10,000 pound rate,
and that the withdrawal of the 20,000 pound rate amounted to an advance
of 92 8/10 per cent.

[69] Senator Cartwright actually introduced a resolution calling upon
the Attorney-General to institute proceedings before the Interstate
Commerce Commission:

To determine whether existing rates are reasonable or unreasonable.

To ascertain, fix and establish a reasonable schedule of freight rates,
and to enforce the same.

To determine whether or not any existing rate is discriminatory.

And to prevent further discrimination between persons or places.

The resolution carried an appropriation of $25,000 to ensure competent
legal and expert assistance.

The resolution was introduced on February 4. It went first to the
Committee on Federal Relations, then to the Judiciary Committee, then to
the Committee on Finance, from which it emerged March 1 with the
recommendation that it be adopted. On March 2 it was sent back to the
Committee on Finance and was never heard from again. The enormous
benefit to the State if such an investigation could be honestly and
effectively carried on, will be recognized.

[70] The vote was as follows:

For the resolution: Bell, Birdsall, Boynton, Burnett, Caminetti, Cutten,
Estudillo, Holohan, Roseberry, Rush, Sanford, Thompson - 12.

Against the resolution: Anthony, Bates, Bills, Finn, Hartman, Hurd,
Kennedy, Leavitt, Lewis, Martinelli, Reily, Savage, Weed, Willis, Wolfe,
Wright - 16.

[71] E. F. Mitchell, Executive Secretary to Governor Gillett, makes the
following statement regarding this particular error:

The electric companies which run interurban trains, also claimed that
the bill, as prepared, applied to them, and would place upon them an
unnecessary burden and expense.

"There is no doubt that section three of the act applies to motor cars
and electric cars. The language is very plain. Section one of the bill
describes passenger trains, section two refers to freight trains, and
section three says "all other trains not propelled by steam
locomotives." Now, there are only two classes of cars that are not
propelled by steam locomotives, and those are motor and electric cars.
In the Governor's opinion, an error was made in endeavoring to amend it,
so it would not apply to motor cars and electric cars. The amendment was
prepared, and we had here in the office, during the argument on the
bill, the original committee amendments proposed. The amendment was to
be made after the word "train" on the second line and had this amendment
been made as contemplated, it would have excluded motor cars and
electric cars, but instead of having been made on line two, as expected,
it was carried into line three, where it gave the bill an entirely
different meaning, It was one of those unfortunate things that crept
into legislation through an oversight of somebody, which could have been
readily corrected if the bill had been watched. The insertion of this
amendment in the wrong place, instead of excluding motor cars and
electric cars, as intended, included them. This error was not discovered
until the bill came up before the Governor for consideration."

Chapter XV.

Defeat of the Commonwealth Club Bills.

Drawn By Committees of the Ablest San Francisco Attorneys Not Under
Retainer of Prison-Dodging Captains of Industry - Measures Not Allowed
to Reach Senate or Assembly, but Killed in Committees - Grove L.
Johnson's Keen Opposition.

The graft prosecution at San Francisco not only brought the fact
squarely before the public that large corporations sometimes catch the
easiest way to achieve their purposes by bribing public officials, but
that it is a deal easier to pass a camel through the eye of a needle
than a millionaire offender through the legal cobwebs of technicality to
a cell at San Quentin or Folsom[72].

That the technical defense in criminal cases was subject to grave abuses
had been generally recognized. But it took the graft cases at San
Francisco to fairly rub this unpleasant fact into the law-abiding
element. Because for the first time in the practice of criminal law in
California, unlimited wealth was available to employ the best legal
talent to defend men under indictment.

The defending lawyers took advantage of every technicality. They
emphasized the most trivial of them. Gradually it began to dawn upon The
People that here were legal refuges, based upon the most absurd of
technicalities, the sweeping away of which would in no way injure the
substantial rights of a person charged with crime, refuges which were
available to the rich man but denied to the poor or moderately

To be sure, any person accused could make his technical defense if he
had the means to employ the necessary counsel. But in face of the
astonishing performances going on in the courts at San Francisco, it
soon became apparent to the thoughtful, that no man, whose fortune was
expressed in terms of less than five ciphers could make such a defense.

Thus the unpalatable truth was forced home, that we have in California a
technical defense available for the rich man charged with crime, which
is in effect denied even those of the so-called middle classes.

With this conviction came demand of reform of the criminal laws to

(1) A prompt trial of an accused person on the merits of the case.

(2) A prompt judgment in the case of a verdict of guilty.

(3) A prompt hearing of the case in the Court of Appeal.

The machine was, of course, against any such "wicked innovations," as
Assemblyman Grove L. Johnson would have called them.

However, at San Francisco, three considerable bodies, the Bar
Association, the Commonwealth Club and the Citizens' League of Justice,
took the matter up, and for months had the ablest lawyers of the State -
at any rate the ablest not retained for the defense of capitalists under
indictment - at work wrestling with the problem of simplifying the
criminal codes and doing away so far as possible with technical defense,
except in such cases as the substantial rights of the defendant might be

A committee consisting of J. C. McKinstry, J. J. Dwyer, Lester H.
Jacobs, Oscar Cushing and Warren Olney Jr. was appointed for this
purpose by the Citizens' League of Justice. The Commonwealth Club
appointed Beverly L. Hodghead, Orrin K. McMurray, Alex. G. Eells,
Fairfax H. Wheelan, Sidney V. Smith, Lester H. Jacobs and Joseph
Hutchinson. One would go far before finding more representative or more
public-spirited bodies of citizens, or more able exponents of the law.

The labors of the several committees resulted in what may in a broad way
be regarded as two sets of bills being prepared.

The first, known as the Commonwealth Club bills, were sixty-five in
number, and were introduced in the Senate by Campbell, and in the
Assembly by Butler. The second set was known as the Bar Association
bills. They were introduced in the Senate by Burnett. They were nine in
number, and while apparently covering much of the ground of the
Commonwealth Club bills, were in no respects so complete as to method or
detail. The Bar Association bills pin-pricked an abuse; the Commonwealth
Club bills drove the knife in deep.

The sixty-five Commonwealth Club bills were readily divided into three
groups, those dealing with Grand Juries and indictments, with trial
juries and verdicts, and with appeals to the higher courts.

The general purpose of the measures dealing with Grand Juries was to
make those bodies purely accusatory, to make their findings conclusive
and not subject to attack. The basis of the proposed amendments and
additions to the laws governing Grand Juries was that Grand Juries are
primarily required to investigate secret offenses, and should be
regarded as purely accusatory bodies. On this theory the Commonwealth
Club bills made the indictment of a Grand Jury as binding as the action
of a committing magistrate who holds a defendant to answer. Had the
Commonwealth Club bills become laws there would have been no more
placing of Grand Jurors on trial for having found indictments against
persons able to employ crafty criminal lawyers.

But lest the defendant under investigation might be wronged, the
Commonwealth Club measures so amended the codes that a Grand Juror in
any way biased against the defendant was required to absent himself from
the Grand Jury room when the defendant's case was under consideration.
Under the proposed laws each Grand Juror was required to take oath "not
to participate in the inquiry as to any matter or affecting any person
as to which or whom he is biased or could not vote freely either way
that the evidence presented would in justice require him to vote."

The Commonwealth Club amendments regarding trial juries dealt with the
problem in the same broad spirit. The chief object sought was to avoid
the trying of citizens called for jury service[73]. The proposed laws
obviated this by leaving it with the Judge to determine the
qualifications of the juror, that is to say, the examination of jurors
in criminal cases was to have been taken out of the hands of the lawyers
and required of the Judge. To compensate the defendant for whatever
substantial disadvantage he might suffer, the number of his peremptory
challenges was materially increased.

To prevent the setting aside of judgments on trifling technicalities,
the proposed amendments provided that the Judge should fix the legality
of the jury panel by general order, after which challenges could not
apply to the whole panel, although they still held as to individual

One of the most important of the provisions regarding trial jurors was
that the reading of mere newspaper reports of a case should not
disqualify a trial juror, unless it were shown that the newspaper
article purported to be a true copy of the official testimony.

The fact that under the present law the term "reasonable doubt" is not
given legal definition paves the way for frequent miscarriages of
justice. The Judge is required to define the term for the jury. The
defendant may take exception to the definition, thus paving the way for
technical defense in the upper Courts. The Commonwealth Club bills
defined "reasonable doubt" to be, "that state of the case which, after
the entire comparison and consideration of all the evidence in the
cause, leaves the minds of the jurors in that condition that they cannot
say they feel an abiding conviction to a moral certainty of the truth of
the charge."

Amendments were also proposed to the law governing instructions to
juries. Under the present rule, each side presents a long list of
instructions for the Judge to give to the jury. If the Judge refuse to
give the instructions as requested, objections to his refusal can be
taken and made basis for a technical defense[73a]. Under the proposed
amendments objection could be made only to such instructions as were
given, not to those which were not presented to the jury.

In none of those proposed amendments could the substantial rights of the
defendant be said to be encroached upon. But the proposed laws did clear
away a mass of technicalities which has kept many a scamp out of jail.

The proposed amendments dealing with appeals in criminal cases aimed at
prompt judgment and sentence after conviction, prompt appeal and
conclusion of the case.

To this end, the measures provided that upon conviction the defendant
must be sentenced forthwith, and if appeals were taken, taken on the
judgment. Instead of the cumbersome bill of exceptions, which required
weeks and sometimes months to prepare, it was provided that the entire
testimony given at the trial, together with the complete minutes of the
proceedings, should be sent to the higher tribunal. This would place
before the Appellate and Supreme Courts all the facts and testimony
which the Lower Court had considered. This feature of the Commonwealth
Club bills was also covered by the measures which had been prepared by
the Bar Association.

Under the proposed Commonwealth Club amendments, the defendant was not
permitted to appeal on questions referring to the trial jury panels or
the Grand jury, nor on any error not affecting his substantial rights.
Error in an immaterial issue, or of not sufficient importance to affect
the substantial rights of the defendant, was not, under the provisions
of the Commonwealth Club bills, to be held ground for reversal.

"We believe," said the Committee which drew up the Commonwealth Club
bills, "that what we have proposed is in no way revolutionary and
deprives the accused person of no substantial right. The amendments
proposed are merely designed to make the present law more effective, to
relieve the Courts from the necessity of considering trivial matters and
to aid in determining more promptly whether a person accused of crime is
innocent or guilty."

The bills as introduced in the Assembly were referred to the Assembly
Judiciary Committee. In the Senate, the bills went to the Senate
Judiciary Committee.

The promoters of the Commonwealth Club bills made the mistake of
treating the machine Senators and Assemblymen as men who could be won
over with reason and plain statement. Instead of fighting for their
bills and demanding their passage, the agents of the club were willing
to listen courteously to suggestions from tricksters intent upon the
defeat of the measures, who were only playing for time.

Carroll Cook was at Sacramento lobbying against the bills, as were
others of that gentleman's view of affairs. Cook actually appeared
before the Assembly Judiciary Committee on invitation of one of its
members. The courtesy shown him by Grove L. Johnson, chairman of the
Committee, was touching or nauseating, as one might view it. Johnson,
who was in effect the Committee, took occasion on the day of Cook's
appearance to denounce the measures as revolutionary, unconstitutional,

It is interesting to note that sixty-three of the sixty-five bills as
introduced in the Assembly never got beyond Johnson's Committee. They
died right there. The two exceptions got out of the Committee in the
closing days of the session, one on March 10th, the other on March 20th.
They were reported out with the recommendation that they do pass. It was
then too late to take any action on them. They died on the Assembly

Those who were making a fight for the measures were kept running between
the Judiciary Committee of the Assembly and that of the Senate. The
Senate Committee, while a majority of its members were against the
machine, was led by men who were not at all in sympathy with any plan
that was calculated to clear away legal cobwebs. On the pretext that the
reforms proposed were covered by the Bar Association bills, or that the
measures were duplicated by other bills, or that they were loosely
drawn, on any pretext, in fact, the Senate Committee recommended that
fifty-two of the sixty-five measures be withdrawn. And they were
withdrawn. Of the thirteen remaining, seven stuck in the Committee, died
there; five, just before the session closed, were referred back to the
Senate with the recommendation that they do not pass. They didn't. Of
the sixty-five bills, the Senate Committee gave only one favorable
recommendation. This lone recipient of Committee approval got back to
the Senate on March 5th. It died on the files.

Such was the fate of the measures prepared under the direction of the
Commonwealth Club for reform of the methods of indictment, trial and
appeal in criminal cases. The Bar Association bills received somewhat
better treatment.

Of the nine so-called Bar Association bills, eight passed the Senate;
the other died in the Senate Judiciary Committee. Of the eight which got
through the Senate, two were defeated in the Assembly, while six passed
that body and went to the Governor.

Four of the six Bar Association bills which passed dealt with the repeal
of those sections of the code which provide for bills of exceptions in
criminal cases and substituted the plan, described in considering the
Commonwealth Club bills, of providing the higher Court with complete
record of the testimony and the proceedings in the trial Court.

One of the two remaining measures requires sentence to be imposed upon a
convicted felon in not less than two nor more than five days after the
verdict or plea of guilty, with the right reserved for the Court of
extending the time to ten days. The sixth measure defines "a motion in
arrest of judgment."

Such was the outcome of the effort made by reputable lawyers and public
spirited laymen to eliminate quackery from the practice of the criminal
law. But measures calculated to make the practice of the criminal law
even more involved and technical than it is were granted more
consideration. Many of them passed both houses. How they were passed and
what they are will be considered in another chapter.

[72] No sooner had the indictments been returned in the San Francisco
cases than the validity of the indicting Grand Jury was attacked. For
months that issue occupied the attention of the Courts. One by one the
members of the Grand Jury were dragged into Court, and in effect placed
on trial that technical disqualification if such existed might be
established. The greater part of a day was, for example, consumed in
thrashing over the question whether one or three motions had been made
in nominating the stenographer to the Grand Jury.

Then came appeals to the higher Courts which occupied more months and
all but endless labor and expense.

When the attacks on the Grand Jury had been met and disposed of, and the
defendants brought to the trial Court, the Prosecution found its labors
scarcely begun. Every trial juror was placed on trial. Weeks and even
months were required, because of technical objections, to secure a trial

Just before the Legislature convened, Abe Ruef, had, as example, been
convicted by a jury in the securing of which the metropolis of the State
had been raked as with a fine-tooth comb for talesmen who were not
technically disqualified to serve. Thousands were available who would
have given the defendant a fair trial, but in all San Francisco very few
could be found who were not because of one technical reason or another

After conviction came the defendant's appeal, in which the Most trivial
reasons were accepted for freeing the defendant whose technical defense
had failed him in the lower Courts. Former Mayor Schmitz of San
Francisco, after conviction of extortion, and Abe Ruef, after having
pleaded guilty to the charge, were given their freedom under
circumstances which, to put it mildly, shocked the whole State.

[73] A prominent San Francisco attorney told the writer recently that
"the criminal lawyer too often questions a talesman needlessly, not so
much to disqualify him, as to get technical error into the record."

[73a] It was on a technicality of this kind that the District Court of
Appeals found excuse for reversal of the judgment in the case of Louis
Glass, convicted of bribing a member of the San Francisco Board of
Supervisors. E. J. Zimmer, the auditor of the Pacific States Telephone
Company, of which Glass was an official, refused to testify at Glass'
trial. The trial court refused to instruct the jury to disregard the
refusal. The Appellate Court held this to be a fatal error.

Chapter XVI.

How the Change of Venue Bill Was Passed.

Slipped Through the Assembly Without Serious Opposition in Closing Days
of the Session - Passed by Trick in the Senate Although a Majority of
That Body Were Opposed to Its Passage - Typical Case of Machine

Given the presiding officers of the Senate and Assembly and the
appointment of the Committees of both bodies, the machine minority in
the Legislature had comparatively little difficulty in preventing the
passage of desirable measures. Thus, the Commonwealth Club bills to
simplify and expedite proceedings in criminal cases, or, if you like, to
prevent quackery in the practice of the criminal law, were, by clever
manipulation, defeated, although if fairly presented to Senate and
Assembly they undoubtedly would have become laws[74].

But when it came to passing vicious measures in the face of the
opposition of the unorganized majority of both Houses, the machine had a
harder job on its hands. A majority vote of each House is required for
the passage of a measure. To get through its bills, then, the machine
had to create a situation in which vicious measures could be rushed
through without the unorganized reformers knowing what was being done.
By preventing action on a large majority of the measures pending before
the Legislature until the end of the session, such a situation was
created. In the confusion of the closing days of the session, not only
were good bills denied passage, but vicious bills, in spite of the
opposition of a majority of the Legislature, were passed. Some normally
anti-machine members in such a situation become worn out, get
discouraged and vote for machine policies to secure machine support for
measures, the passage of which their constituents at home are demanding.
Others, in the confusion of a whirlwind close of the session, vote for
measures which they have no time to read, and which they cannot
understand. Thus, even with a majority of Senate and Assembly against
machine policies, the clever machine leaders often slip through measures
which could not be passed early in the session, when the members have
opportunity to study the bills upon which they are called upon to act,
and before the ranks of the reform element have been broken.

This was very well illustrated at the Session of 1909 by the passage of
the so-called Change of Venue bill[74a]. This measure was introduced in
the Assembly by Grove L. Johnson. Under its provisions a person charged
with crime would have been permitted upon his whim or caprice to allege
bias and disqualify the Judge before whom he was to be tried. The
Legislature of 1907 was admittedly controlled by the machine, but even
the Legislature of 1907 did not dare pass the Change of Venue bill. The
reform Legislature of 1909, however, did pass it. The manner in which it
was passed is a lesson in machine methods. To the credit of Governor
Gillett let it be said, however, that he vetoed the measure[75].

Grove L. Johnson having introduced the bill, it was referred to
Johnson's committee, the Judiciary Committee of the Assembly. The
Committee held it until February 5, when it was referred back to the
Assembly with the recommendation that it "do pass." On March 13, eleven
days before adjournment, it passed the Assembly, by a vote of 42 to 15,
41 votes being required for its passage. Assemblymen like Drew, Telfer,
Wilson and Stuckenbruck, men who fought the machine and machine policies
from the beginning to the end of the session, voted for the bill. The
negative vote of any two of them would have defeated it[76].

The passage in the Assembly of an important reform measure as late as
March 13, would have meant its defeat in the Senate. Though in the
majority the anti-machine Senators could not have forced a reform
measure through the machine-controlled committees, machine-controlled
even when a majority of a committee was anti-machine[77]. Measures of
the Change of Venue bill stamp, however, had a clear way. The Change of
Venue bill was on March 15 referred to the Senate Judiciary Committee.
On March 16, twenty-four hours after, the Committee returned the bill
with the recommendation that it do pass. On March 19, with twenty-two
Senators opposed to its passage, and eighteen favoring it, with
twenty-one votes necessary for its passage, the bill passed the Senate.
This apparently impossible feat was, in the last two weeks of the
session, a comparatively easy task for the machine.

To begin with, Senator Black, who opposed the bill, was ill at his home
at Palo Alto. This left twenty-one Senators against the measure and
eighteen for. The line-up was as follows:

For the Change of Venue bill - Anthony, Bates, Bills, Finn, Hare,
Hartman, Hurd, Leavitt, Martinelli, McCartney, Price, Reily, Savage,
Weed, Welch, Willis, Wolfe, Wright - 18.

Against the Change of Venue bill - Bell, Birdsall, Boynton,
Burnett[76a], Caminetti, Campbell, Cartwright, Curtin, Cutten,
Estudillo, Holohan, Lewis, Kennedy, Miller, Roseberry, Rush, Sanford,
Stetson, Strobridge, Thompson, Walker - 21.

On the face of it, the outlook for the passage of the Change of Venue
bill in the Senate was not good. The machine, however, planned to pass
the bill on March 19.

The machine leaders went at the job systematically. When the Senators
took their seats that Friday morning, they found that at Senator Bates'
request, Assembly Bill 6 (the Change of Venue bill) had been put on the
Special Urgency File. The Special Urgency File was to be considered at 8
o'clock Friday evening. Senator Bates stated in an interview that he had
placed Assembly Bill No. 6 on the Special Urgency File "at the request
of a fellow Senator." Who the fellow Senator was, Bates refused to say.
Bates insisted, however, that he knew nothing about Assembly Bill No, 6,
and could give no reason why it should be made a matter of "special
urgency." Senator Bates has since the Legislature adjourned been given a
position of trust in the United States Mint.

With the Change of Venue bill on the Special Urgency File, the next step
was to get it considered at the moment most favorable for machine
purposes. Along about 11 o'clock in the forenoon - the reader should
keep in mind that in the ordinary course of the Senate's work the
Special Urgency File would not have been considered until 8 o'clock that
evening - Senator Wolfe moved that the Special Urgency File be taken up
out of order. But before the Change of Venue bill could be reached,
Senator Wright, who favored the passage of the measure, was found to be
absent from the Senate chamber. On Senator McCartney's motion, the
Change of Venue bill was temporarily passed on file. With the constant
coming and going of Senators, there was no time while the file was under
consideration, that the eighteen Senators counted on to vote in a solid
block for the bill, were all present. The Senate concluded consideration
of the Special Urgency File, and still the Change of Venue bill had not
been taken up. The Senate then took up the second reading of Assembly
bills, and then the Special File of Appropriation bills. A communication
from Dr. Howard Black and Dr. Harry D. Reynolds was read setting forth
that Senator Black was too ill to leave Palo Alto. Bills were passed and
bills were withdrawn. Senator Strobridge reported that Senate Bill No.
862 had been correctly engrossed. And through it all the machine was
watching for the favorable moment to force the passage of the Change of
Venue bill.

The moment came just before noon. Like the snap of a trap Leavitt asked
for unanimous consent to take up Assembly Bill No. 6, out of order. The
anti-machine Senators are never guilty of discourteous treatment of a
fellow Senator. They granted the request.

Senator Wright vouched for the bill. He stated that it was a good bill
and should be made a law. Senator Wolfe spoke for it, in fact led the
debate to secure its passage. On the other hand, Senator Boynton very
pointedly told Senator Wright that the bill was not a good measure and
should not be passed "Judges of the Supreme Court tell me," said
Boynton, "that this is a bad bill."

Senator Cutten made a strong speech against the bill, which he denounced
as bad in principle. Holohan stated that if the measure became a law it
would give a bunco steerer a chance to disqualify every decent Judge in
the State. Roseberry denounced the measure as vicious.

When the vote was taken, every Senator who supported it was in his seat,
but Burnett, Estudillo and Rush were absent. This would have made the
vote 18 to 18, the backers of the measure requiring three more
affirmative votes for its passage. But Miller and Lewis were led to vote
for the measure, which made 20 votes for the bill and 16 against it. At
this point the bill lacked one vote of passage. Estudillo was, however,
brought in under call of the Senate, and under what amounted to
misrepresentation, voted for the measure. This passed the bill by a vote
of 21 to 18. Boynton changed his vote from no to aye, to give notice
that on the next legislative day he would move to reconsider the vote by
which the bill had been passed. But before he could give notice the
Senate took its noon recess. Boynton under the rules had all day in
which to notify the Senate of his intention, but to make assurance
doubly sure, he told the clerk at the desk not to send the bill to the
Assembly for he would as soon as the Senate re-convened, give notice of
his motion to reconsider.

Nevertheless, when the Senate reconvened, Boynton found that the bill
had been rushed over to the Assembly, "to save time," according to the
excuse given.

Senator Boynton insisted that the bill be returned from the Assembly.
Wolfe asked Boynton "as a matter of Senatorial courtesy," to permit the
vote on the bill to be taken on a motion to have it returned from the
Assembly. This request was so ludicrous, in view of the treatment that
had been accorded Boynton, that it provoked a smile. Boynton refused to
be "courteous," the bill was returned from the Assembly and regularly
reconsidered the next day.

With 21 votes against the measure, there seemed little doubt that it
would be reconsidered and defeated. Twenty-one votes were necessary for
reconsideration. Lewis and Miller had thought better of their vote of
Friday and were prepared to vote against the bill. Estudillo,
understanding the measure thoroughly, was anxious to set himself right
in the record by voting against it. These, with Burnett and Rush, gave
twenty-one votes, enough to force reconsideration and to defeat the

But there was a weak link in the combination,Kennedy. Senator Kennedy
voted throughout the session consistently with the Wolfe-Leavitt
element, but he voted against the Change of Venue bill. When Saturday
morning came, however, Kennedy could not be found. When reconsideration
of the bill came up, Burnett and Rush were out in the hallway. Miller
and Lewis voted to reconsider, which made the vote eighteen to eighteen.
Twenty-one votes were necessary for reconsideration. With Kennedy,
Burnett and Rush, reconsideration could be forced and the bill defeated.
The only way the absent Senators could be reached was through a call of
the Senate, which required a majority vote of those present. A motion
for a call of the Senate was defeated by a vote of eighteen to

This was the real test vote on the Change of Venue bill. It will be seen
that Miller and Lewis and Estudillo, who had voted for the bill the day
before, voted for a call of the Senate. They would, on reconsideration,
have voted against the bill, and its passage on reconsideration would
have been impossible. Had Kennedy or Rush or Burnett been present, the
motion for a call of the Senate would have prevailed, the vote on the
Change of Venue bill been reconsidered, and the measure defeated.

Half an hour later, when Kennedy's vote was necessary to enable the
machine to continue the deadlock on the Direct Primary bill, Kennedy
turned up to do his part in that not very creditable performance.

In this way did the machine element secure the passage of the Change of
Venue bill. It was a question of good generalship, or, if you like,
trickery. Perhaps trickery is the better name for it.

[74] Black's Senate bill, 1,144, came very near being defeated in the
Assembly by similar "good generalship." The measure in effect prohibits
the sale of intoxicating liquors within a mile and a half of Stanford
University. Assemblyman Bohnett was in charge of the bill.

Bohnett, the day that the bill was to come up, was called from the room
to attend a committee meeting. Immediately did the Assembly show
astonishing activity in consideration of the file. So fast did they go
that the Stanford bill seemed destined to be reached while Bohnett was
out of the room. Had it been reached with Bohnett away it could have
been dropped to the bottom of the file, where it would have been lost,
so far as the session of the Legislature of 1909 was concerned.

Charles R. Detrick, of Palo Alto, happened to go to the Assembly chamber
at this critical moment and took in the situation at a glance. He
accordingly hunted up Bohnett, who got back to the Assembly chamber
before the bill could be reached on file. For once "good generalship"
had failed at the legislative session of 1909.

[74a] In 1907, the Change of Venue bill was slipped through the
Assembly, but in a form not to affect the San Francisco graft cases. In
the Senate, however, it was amended to apply to Ruef, Schmitz and their
associates. The exposure of this turn raised such a storm that the bill
was not brought to vote. However, on the night before adjournment, the
measure was slipped through the Senate as an amendment tacked on another
bill. But the trick was discovered in the Assembly and defeated.

[75] Governor Gillett's reasons for vetoing the bill are set forth in
footnote 1, Chapter 1.

[76] The Assembly vote on the change of venue bill was as follows:

For the Change of Venue bill - Barndollar, Beatty, Black, Cattell,
Coghlan, Collier, Collum, Cronin, Drew, Feeley, Flint, Gibbons,
Griffiths, Hammon, Hans, Hawk, Hayes, Hewitt, Hinkle, Holmquist, Johnson
of Sacramento, Johnson of San Diego, Juilliard, Lightner, Macauley,
Maher, McClellan, McManus, Melrose, Mendenhall, Moore, Mott, Pugh, Rech,
Schmitt, Silver, Stuckenbruck, Telfer, Transue, Wagner, Wheelan, and
Wilson - 42.

Against the Change of Venue bill - Baxter, Bohnett, Butler, Callan,
Cogswell, Dean, Gerdes, Gillis, Kehoe, Otis, Polsley, Preston, Sackett,
Whitney, and Young - 15.

[77] The Senate Judiciary Committee for example.

[76a] The Senators whose names are printed in italics became involved in
the confusion which led to the passage of the measure.

[78] The vote was as follows:

For the call of the Senate - Bell, Birdsall, Boynton, Caminetti,
Campbell, Cartwright, Curtin, Cutten, Estudillo, Holohan, Lewis, Miller,
Roseberry, Sanford, Stetson, Strobridge, Thompson, Walker - 18.

Against the call of the Senate - Anthony, Bates, Bills, Finn, Hare,
Hartman, Hurd, Leavitt, Martinelli, McCartney, Price, Reily, Savage,
Weed, Welch, Willis, Wolfe, Wright - 18.

Chapter XVII.

Passage of the Wheelan Bills.

Measures Extended Abuses Which the Commonwealth Club Bills Had Been
Drawn to Prevent - Went Through Both Houses Without the Members
Thoroughly Understanding Their Significance.

The so-called Wheelan bills were passed in much the same way as was the
Change of Venue bill. These measures will perhaps be better understood
in comparison with certain of the Commonwealth Club bills which were
considered in a previous chapter.

Among the Commonwealth bills was one which denied a defendant under
indictment a copy of the testimony taken in the Grand Jury room. The
measure was drawn on the theory that Grand Juries deal principally with
secret offenses, and that the testimony had better be brought out before
the trial Court. One object of the proposed law was to prevent the
defendant giving out testimony with the deliberate object of prejudicing
the entire community against him, and thus increasing the difficulty of
getting petty juries to try him.

Furthermore, there are instances, as when Abe Ruef was before the Grand
Jury at San Francisco, when the ends of justice require that the
testimony given shall be kept secret. But, in spite of these and other
considerations, the measure in question was allowed to die in Committee.

On the other hand two bills requiring that transcript of such testimony
be given the defendant passed both Senate and Assembly. They were
introduced by Wheelan of San Francisco.

Section 925 of the Penal Code, as it stood up to the time of the opening
of the session, provided that "the Grand Jury whenever criminal causes
are being investigated before them, on demand of the District Attorney
must appoint a competent stenographic reporter to be sworn and to report
the testimony that may be given in such causes in shorthand, and reduce
the same upon request of the District Attorney to long hand or
typewriting." It was thus left with the District Attorney to say whether
the stenographic reporter should be present, and whether his notes
should be transcribed.

The first of the Wheelan bills, Assembly bill 221[79], amended the law
by cutting out the words in italics "on demand of the District Attorney"
and "upon request of the District Attorney," making it mandatory upon
the Grand Jury to have the reporter in attendance.

Further on in the section and in Assembly bill 222[79], it was provided
that a true copy of the testimony thus taken should be given the
defendant at the time of his arraignment.

These two measures passed both Senate and Assembly.

Assembly bill 223[79], also introduced by Wheelan, provided another
cause for the setting aside of an indictment by the Court in which the
defendant is arraigned, upon such defendant's motion. The Commonwealth
bills aimed to prevent technical attacks upon indictments. The third of
the Wheelan bills - No. 223 - opened the way for further technical
attacks, by providing that the Court must set aside the indictment "when
it appears from the testimony taken before the Grand jury that the
defendant has been indicted upon a criminal charge without reasonable or
probable cause."

This measure passed both Houses. It opened the way for review before the
Court of the testimony taken in the Grand jury room, and endless
technical objections, all of which by clever counsel can be employed to
delay the case being brought before a trial jury, and in the end perhaps
wear out the prosecution, thus preventing the case being tried on its
merits. With that section in the law two years ago, it is a question
whether the defendants in the graft prosecution at San Francisco would
ever have been brought to trial.

It will be seen that while the Commonwealth Club bills aimed to decrease
the opportunities for technical defense of men charged with crime, and
thus permit the cases being tried on their merits, the Wheelan bills
increased opportunity for technical objection.

The history of the passage of the Wheelan bills is practically the same
in each instance.

The three bills were introduced by Mr. Wheelan on January 11th, and
referred to the Assembly Judiciary Committee. The Committee, which
pigeon-holed sixty-three of the Commonwealth Club bills, and reported
back the two remaining too late for passage, had better treatment in
store for the Wheelan measures. They were reported back to the Assembly
on March 6th, at a time when the Assembly was fairly swamped with
pending measures. On March 17th, in the midst of a mass of legislation,
they were slipped through the Assembly without many of the members
apparently knowing what they were. The Assembly journal of that date
shows that such men as Bohnett, Callan, Cattell, Cogswell, Flint,
Gerdes, Gibbons, Gillis, Hayes, Hewitt, Hinkle, Johnson of Placer,
Juilliard, Kehoe, Mendenhall, Polsley, Stuckenbruck, Telfer, Whitney,
Wilson and Wyllie, who ordinarily voted for good measures and against
bad ones, voted for the Wheelan bills.

With the exception of Bill No. 223, not one vote was cast against the
measures. The vote on Bill No. 223 was the last taken. Gillis, who had
voted for the two others, appears to have awakened to the fact that
something was wrong. At any rate, he voted against Bill 223.

His was the only vote cast against any of the three bills in the lower
House, They appear to have gone through the Assembly without thorough
appreciation of their significance. At any rate, there were members
enough present, who were usually against bad measures, to have prevented
the Wheelan bills securing the forty-one votes necessary for their

A reform measure passing the Assembly on March 17th would have had no
chance whatever in the Senate. The Wheelan bills were more fortunate.

The Senate Judiciary Committee, before which the Commonwealth Club bills
had dragged along for weeks, received the Wheelan bills on March 17th,
the day they passed the Assembly, and the same day, March 17th, reported
them back to the Senate with the recommendation that they do pass. On
March 18th the measures were read the second time in the Senate, and on
March 20th, three days after they had passed the Assembly, the Senate
passed them.

Such is the difference in action on machine-favored bills and bills
which the machine does not favor. Incidentally, it may be said that at
the time the Wheelan bills were before the Senate, the machine had that
body tied up in the fight on the Direct Primary bill.

The reform element - at the mercy of the Senate organization - was
compelled to devote its whole attention to the Direct Primary bill. The
machine was thus left to run committees and Senate at its own free will.
It was an admirable situation from the machine standpoint.

But by the time the Wheelan bills had been hastened to the floor of the
Senate, the reform Senators apparently awoke to the fact that some sort
of a job was on the way. When the bills came up for final passage,
however, the anti-machine Senators were apparently as much at a loss
concerning them as the anti-machine Assemblymen had been.

Bill number 221 came up first, and even Senator Bell, the staunchest
opponent of bad laws of them all, voted for it. With Senator Bell voted
Caminetti, Estudillo, Rush, Thompson and Walker, who were ordinarily
against the passage of bad bills. As the measure received but
twenty-three votes, any three of these by voting no could have defeated

Price, who had voted for the bill, gave notice, at the request of a
fellow Senator, that on the next legislative day he would move to
reconsider the vote by which the bill had been passed.

Before taking up Assembly bill 222, companion bill to 221, the Senate
passed three measures and considered several others. By the time
Assembly bill 222 was reached, Senator Bell had got his bearings, and
voted against it. Caminetti had also found himself, and although
Caminetti voted for the measure, he gave notice, that on the next
legislative day he would move for its reconsideration.

The third of the bills, No. 223, followed 222, and Walker, who had voted
for the two other bills, voted "no." The bill was passed by twenty-three
votes, Cutten voting "aye" for the purpose of giving notice to

The motions to reconsider were voted upon on the afternoon of Monday,
March 22, the day of the final fight on the Direct Primary bill in both
Senate and Assembly. Nobody was thinking of much of anything else that
day. In every instance reconsideration was denied[80]. The vote by which
they had passed the Senate stood.

[79] Governor Gillett signed Assembly bills Nos. 221 and 222. They are
now the law of the State. Assembly bill No. 223 he did not sign. It did
not, therefore, become a law.

[80] The Assembly history of March 23, fails to record that the motions
to reconsider were made on the three Wheelan bills. In an article
concerning these bills which the writer prepared for the Sacramento Bee,
governed by the official record of the measures, the History of the
House in which they originated, he stated that motions for their
reconsideration were not made. The Senate Journal of March 22, however,
pages 23 and 26, shows that these motions were made, and in all three
cases defeated.

Chapter XVIII.

Defeat of the Local Option Bill.

Peculiar Arrangement by Which the Bill Was Sidetracked in the Assembly -
Stanton Promised That It Should Pass the Lower House If It Passed the
Senate - How It Was Smothered in the Upper House.

Because there is no particular reason why California should not have a
Local Option law, in the face of popular demand for it, a large number
of very worthy citizens assumed that one would be passed. The fact seems
to have been lost sight of that the tenderloin element opposes such
legislation, and that the management of the so-called liquor interests
organized as the "Royal Arch," takes a shortsighted view of Local Option
provisions. The machine was thus interested. Its representatives in
Senate and Assembly did not propose that any Local Option bill should
pass. So the Local Option bill was smothered. The smothering process
most suggestively indicates how such things can be done.

The measure was introduced in the Assembly by Wyllie and in the Senate
by Estudillo. In the face of the popular demand for the passage of such
a bill, and the exasperation of a no small portion of the voters of the
State, at the mistake - or trick - by which in 1907 the only measure
resembling a Local Option law was rubbed off the statute books, it was
not good policy to fight the bill in the open. So the machine proceeded
to do covertly what would have been "poor politics" to do openly[81].

The same bill having been introduced both in Senate and Assembly, the
first step was to tie up either the Assembly or the Senate measure, so
that the whole crafty campaign against the bill's passage could be
confined to one House. The way in which this was done was simplicity
itself. The Wyllie bill, as introduced in the Assembly was, at the
request of Speaker Stanton, held up in the Assembly Committee on Public
Morals. Most plausible reason was given for this course. It was pointed
out that since the Assembly had gone on record before the Senate on the
anti-gambling bill, on women's suffrage[80a] and other "moral" issues,
it was unfair to compel the lower House to go on record before the
Senate on the Local Option bill. Speaker Stanton assured the proponents
of the measure that if it passed the Senate, it should pass the

Stanton accordingly recognized that the Assembly, given an opportunity,
would pass the bill. Had it passed the Assembly before the middle of
February, it would unquestionably have passed the Senate. But the
proponents of the measure consented to the plan to make the Senate act
first. The fight for the passage of the bill accordingly took place in
the Senate.

Before taking up the Senate measure introduced by Estudillo, the Wyllie
bill may as well be disposed of. It was introduced in the Assembly
January 8th, and was sent to the Committee on Public Morals. There it
lay until March 13th, two months and five days, when the proponents of
the measure, realizing that they were being tricked, made their protest
so loud that the measure was reported by the Committee, but without
recommendation. There was no time then to pass the bill, and on March
15th it was withdrawn by its author.

The Estudillo bill, as it was known on the Senate side of the Capitol,
had a more eventful history. Introduced in the Senate on January 8th, it
had gone to the famous Committee on Election Laws, which had been
stacked for the defeat of the Direct Primary bill. Estudillo was, to be
sure, Chairman of the Committee, but a lamb herding lions never had a
harder job on its hands than did Estudillo. He could not get his
committee together to consider the well-backed Direct Primary bill, let
alone the worthy but not politically supported local option measure.

Along about the middle of February, however, Estudillo succeeded in
getting the committee to act. By a vote of four to four the committee
refused to recommend the Local Option bill for passage. Senator Stetson,
who favored the passage of the measure, to compel committee action and
get the bill before the Senate, thereupon moved that the bill be
referred back to the Senate with recommendation that it do not pass.
Senator Stetson's motion prevailed.

Thus, the measure went back to the Senate with a majority committee
report that it do not pass. But in spite of this adverse report, the
Senate passed the measure on second reading and sent it to engrossment
and third reading. It looked very much just then as though the bill
would pass the Senate.

But the resourceful machine had other plans. When the measure came up
for final passage on February 24th, instead of being voted upon, and
passed or defeated, it was amended.

To amend a bill on third reading exasperates those who are supporting it
as nothing else can. The bill must, when thus amended, be reprinted and
re-engrossed before it can be passed. The delays thus caused very often
result in the defeat of the measure.

But the reprinted and re-engrossed Local Option bill got back to the
Senate on February 26th, and its supporters could think of no other
possible excuse for delaying its passage.

But the machine could, and did. On Senator Wolfe's motion - the reader
will no doubt remember that Senator Wolfe led the fight against the
Direct Primary bill, against the Anti-Gambling bill and against the
effective Stetson Railroad Regulation bill - on Senator Wolfe's motion
the Local Option bill, instead of being put on its final passage, was
sent to the Senate Judiciary Committee.

At that time, the closing days of February, the Judiciary Committee was
fairly swamped with important measures. The Railroad Regulation bills,
the Initiative Amendment, the measures providing for the simplification
of methods of criminal procedure and other bills of scarcely less
importance were pending before that committee. Prompt action on the
Local Option bill was out of the question. And, although a majority of
the committee favored the passage of the bill, the minority which was
against it took precious good care that no undue haste should attend its
consideration. Estudillo was in constant attendance upon the committee,
but to little purpose. It was not until March 4th that the committee
acted. The action was, of course, recommendation that the bill do pass.

The bill had been amended from time to time, but as it was finally
approved by the Judiciary Committee was a reasonably effective measure.
It provided that on a petition signed by 25 per cent of the electors of
any city, or town, or county, the question of license or no license must
be put on the regular election ballot. If a majority of the electors
voted against the issuing of liquor licenses in any city or town or
township, the governing body could no longer issue saloon licenses.
Outside incorporated cities and towns, the basis of prohibition was made
the township, although the vote was to be taken throughout the county.

After the measure had been returned from the Judiciary Committee of the
Senate, Estudillo fought manfully to have it considered. He finally
succeeded, on March 8th, in having the bill made a special order, that
is to say, he arranged that the Senate should consider it at 8 o'clock
of Thursday, March 11th.

But when Thursday came it developed that Senators Stetson and Boynton
could not be present that evening, and they asked Estudillo to have the
vote on the measure postponed until noon of the next day, Friday. This
Estudillo attempted to do. The thing was done with other bills every
day. Had Wolfe made the request, for example, or even Estudillo on any
other measure than the Local Option bill, the request would have been
granted without thought or comment. But on Wolfe's objection Estudillo's
request was denied. The machine saw its opportunity and succeeded in
having consideration of the bill postponed until the following Monday,
March 15th. This meant the defeat of the bill. Even had it passed the
Senate on that date, filibustering tactics would have defeated it in the

Nevertheless, the backers of the measure - although pleaded with by
weak-kneed Senators to withdraw the bill - insisted upon a vote being
taken, when the measure came up on March 15th. This decision compelled
Wolfe to make his famous "Fate of the Republican Party" speech, in which
he predicted that if the Local Option bill became a law, utter wreck
would come upon the Republican party in California. Birdsall, Caminetti,
Holohan, Rush, Sanford and Strobridge, whose votes were ordinarily
recorded against the machine Senators, voted against the bill, as did
Anthony and Curtin. Wright voted for the measure, but otherwise those
who had voted against the Walker-Otis Anti-Gambling bill, against a
State-wide vote for United States Senators, against the Stetson Railroad
Regulation bill, in a word, those whom for the want of a better term we
call machine Senators, voted solidly against the Local Option bill[82].

The final showing for the Local Option bill was not a good one, but in
spite of it, many in touch with conditions in the Senate held that had
the vote been taken in the middle of February instead of the middle of
March, the bill would have had a good chance for passage. After the
delay of ten weeks from the time of its introduction until the final
vote upon it, there was no chance at all for it to become a law.

[81] Up to the legislative session of 1907, the County Government Act
provided that the Supervisors of a county could submit any question -
including the matter of regulating the liquor traffic - to the voters
for the purpose of ascertaining their opinion upon the issue. There was,
however, no way to compel the Supervisors to take the action that might
be thus decided upon by popular vote. The Supervisors could act upon the
vote or ignore it, as they saw fit.

The Legislature of 1907 transferred the County Government Act to the
Codes. For some reason, either by intention or oversight, the section
which permitted Supervisors to submit questions to the people for an
advisory vote was omitted. It has been held that this action of the
Legislature repealed the section by implication. It is held, therefore,
that no law is upon the Statute books by which the people may be
permitted to vote even in an advisory capacity upon any question of
police regulation or public policy.

[80a] A fine example of a lightning switch of plan on the part of the
machine came in the fight on the Women's Suffrage Amendment. The
tenderloin and liquor interests in general are opposed to the submission
of this amendment to the people, which means, of course, that the
machine is against it. To submit the amendment to the people, fifty-four
votes are required in the Assembly and twenty-seven in the Senate. This
year, the program was to let the amendment pass the Assembly and defeat
it in the Senate. Assemblymen were allowed to pledge themselves to its
support until there were fifty-eight Assemblymen down to vote for it.
Grove L. Johnson had introduced the measure in the Assembly, and its
adoption by that body seemed assured.

But the Anti-Racetrack Gambling bill got in the way of Woman's Suffrage
in a most curious manner. When the passage of this anti-gambling bill
became a certainty, that branch of the group of tenderloin Senators
whose interests were wrapped up in racetrack gambling, became "very
sore." In their disgruntlement they decided to give reform full swing,
and put the Woman's Suffrage Amendment through the Senate. This attitude
seriously alarmed the safe, sane and respectable leaders of the machine,
who see all sorts of trouble for the machine if women are given the
ballot. So to prevent its tenderloin associates in the Senate doing
anything rash, the machine decided rather late in the day to defeat the
amendment in the Assembly.

When this decision was reached, and the order to carry it into effect
given, the machine Assemblymen who had agreed to vote for the amendment
coolly forgot their pledges. Instead of fifty-eight votes, only
thirty-nine were cast for the amendment.

Grove L. Johnson, who had introduced it, and who pretended to support
it, agreed to move for its reconsideration. When the hour for the motion
for reconsideration came, Johnson huddled up in his seat, looking
neither to right or left, let the opportunity pass.

The vote by which the amendment was defeated was as follows:

For the amendment: Barndollar, Bohnett, Butler, Callan, Cattell,
Coghlan, Cogswell, Collum, Costar, Cronin, Drew, Gibbons, Gillis, Hayes,
Hewitt, Hinkle, Holmquist, Hopkins, Johnson of Sacramento, Johnson of
San Diego, Johnson of Placer, Juilliard, Kehoe, Maher, Melrose,
Mendenhall, Otis, O'Neil, Polsley, Pulcifer, Sackett, Silver,
Stuckenbruck, Telfer, Webber, Wheelan, Wilson, Wyllie, Young - 39.

Against the amendment: Baxter, Beardslee, Beatty, Beban, Collier,
Cullen, Dean, Feeley, Flavelle, Fleisher, Flint, Gerdes, Greer,
Griffiths, Hammon, Hanlon, Hans, Hawk, Johnston of Contra Costa, Leeds,
Lightner, Macaulay, McClellan, McManus, Moore, Mott, Nelson, Odom,
Preston, Pugh, Rech, Rutherford, Schmitt, Stanton, Transue, Wagner,
Whitney - 37.

[82] The vote on the local option bill was as follows:

For the bill - Bell, Black, Boynton, Campbell, Cartwright, Cutten,
Estudillo, Miller, Roseberry, Thompson, Walker, Wright - 12.

Against the bill - Anthony, Bills, Birdsall, Burnett, Caminetti, Curtin,
Finn, Hare, Hartman, Holohan, Hurd, Kennedy, Leavitt, Lewis, Martinelli,
McCartney, Price, Reily, Rush, Sanford, Strobridge, Weed, Welch, Willis,
Wolfe - 25.

Chapter XIX.

Defeat of the Initiative Amendment.

As in the Case of Other Reform Measures It Was Held Back Until Near the
Close of the Session - Principle Adopted by Many California
Municipalities - Machine Thoroughly Aroused to Its Importance.

A most estimable old lady once tried with indifferent success to hold
back the incoming tide of the Atlantic with a broom. As one watches the
efforts of the machine, through such agents as Gus Hartman, Eddie Wolfe
and Frank Leavitt, to stem the reform movement which is sweeping the
country, he is strongly reminded of the old lady's endeavor.

To be sure, the machine, at the legislative session of 1909, by trick
and clever manipulation succeeded in preventing any very effective
reform legislation going on the Statute books. But nevertheless the
machine was compelled in response to the popular demand to permit the
passage of a direct primary law, however inadequate and disappointing it
may prove to be, and a railroad regulation law, however ineffective.

The machine's success was not on the whole so much in its permanent
defeat of good measures as in delaying their adoption. The machine,
except in the case of the race-track gamblers, could and did put off the
day of the people's reckoning with machine-protected interests, but on
desperately small margins at times, and under conditions which point
plainly to the machine's ultimate undoing.

A bull once attempted to stop a freight train with his head. The train
was brought to a standstill and the animal driven off the track. A short
time later the bull tried the same experiment with an express train. The
train did not stop, nor was it seriously delayed.

The aim of the reform movement is to place the government of Nation,
State and city back into the hands of the people. To this end States and
municipalities throughout the country are trying the direct primary
system of nominating candidates for office, extending the principle of
local option, establishing the Initiative, the Referendum and the
Recall, and experimenting, often with admirable success, sometimes with
discouraging failure, with other "wicked innovations," as Assemblyman
Grove L. Johnson would call them.

Without the machine fully appreciating what has been going on,
California has for a decade or more been pushing rapidly to the fore in
the promotion of these reforms. In this State the reform policies have
found their best expression in recently adopted municipal charters.
These charters must be ratified by the Legislature, but up to the
session just closed their ratification - "wicked innovations and all"
- has met with no particular opposition.

Thus we find most of the modern charters of California municipalities
containing provisions for really effective primary nominations by the
people[83], for the initiation of laws, for the referendum, even for the
recall from office of corrupt officials, which have placed in the hands
of the people of the cities a club over the machine which has proved
most effective.

But the machine is now fully alive to what such provisions as the
initiative and the recall mean. When, for example, the machine in
control of the City Council attempted to deny the Western Pacific right
of way through the City of Sacramento, the people resorted to the
charter provision granting them the Initiative, and by their direct vote
awarded the right of way.

Even while the Legislature was in session, one of the machine's most
effective workers, Walter Parker, could not be present at his post at
Sacramento, because he was required at Los Angeles, where, because of
the "recall," the machine was in a peck of trouble.

The people of that city were employing the recall provision of their
charter against the machine Mayor trapped in corruption. Although the
then Mayor is a "Democrat" and Parker a "Republican," Parker's presence
was required at Los Angeles to back the machine's efforts to hold the
Mayor in his job.

So Parker could not be at Sacramento, where the machine really needed
him. The machine leaders did not think it possible that a real Mayor -
especially a machine Mayor - could be dismissed from office through such
a "fool innovation" as the recall. But that's what, in spite of machine
efforts, happened at Los Angeles.

These experiences and others like them, forced it upon the understanding
of machine leaders that the initiative, recall and similar
"innovations," have a business end; that they put altogether too much
power into the hands of the people for the machine's safety.

Up to the session of 1909 there had been practically no opposition to
the ratification of charters adopted by the several municipalities. But
this year the machine leader in the Senate, Wolfe, let it be known that
he would henceforth oppose "freak charters," "freak charters" to Senator
Wolfe being those of the initiative-referendum-recall order.

Several municipalities - Berkeley, San Diego, Palo Alto, Santa Barbara,
San Bernardino, Richmond, Los Angeles, Pasadena and Oakland - had either
sent new charters or important amendments to existing charters to the
Legislature for ratification. Many of the charters and amendments came
decidedly under Wolfe's ideas of "freak." But there are some extremes to
which the machine dare not go, and it did not dare to go on record as
against popular municipal government. Wolfe and his associates could and
did grumble, but they did not dare refuse the several charters and
charter amendments ratification.

So they let the charters and charter amendments go by them and braced
themselves against granting Statewide initiative.

That issue came up in the form of a proposed amendment to the State
Constitution introduced by Senator Black, which gave the people of the
State the power enjoyed by the people of Oregon and of the more advanced
California municipalities, the power to initiate laws.

Black's amendment provided that on petition of eight per cent of the
electors of the State proposing a law or Constitutional amendment, such
law or amendment must be submitted to a vote of the people at the next
general election, precisely as Constitutional amendments are now
submitted. If the proposed law or amendment received a majority vote it
was to become a law of the State, independent of Legislative action. In
a word, the people of California, had the amendment carried, would have
been able to initiate the laws which govern them.

Naturally, the machine, always on thin ice at best, thoroughly aroused
to what the initiative means, opposed any such "wicked innovation."

In its opposition, the machine was backed by that extreme conservatism,
which, while sincere enough, forever hangs on the coattails of progress;
the conservatism which even in New England as late as 1860 drew back its
respectable skirts from abolition; the conservatism which, dragged
protesting over a crisis, never fails to assume for itself all the
credit for what has been accomplished. Thus the machine had some very
respectable assistance in its efforts against the Initiative Amendment,
the measure which more than any other before the Legislature was
calculated to take the government of California out of machine

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