Australian ballot had become a device for encouraging partisan voting.
The "party circle" was placed at the head of the column of party
candidates. A cross placed in the circle registered a vote for every
candidate nominated by the party designated by the circle. The question
of "distinguishing marks" invalidating entire ballots was ruled upon so
closely by the State courts, that many voters voted by means of the one
cross in the party circle to avoid the risk of having their entire
ballot denied counting because of technical defects that might creep in
if a divided ticket were voted. Had the "Party Circle bill" become a law
it would have eliminated the "party circle" from the ballot, leaving the
voter to select individual candidates of his choice. The one Assembly
vote that defeated this measure after it had passed the Senate, went far
toward bringing the San Francisco Graft Prosecution to an end.
The Direct Primary measure was not defeated, nor did the machine element
succeed in amending it into complete ineffectiveness. The anti-machine
Republicans and Democrats, by joining in non-partisan caucus on this
measure, succeeded in forcing the passage of the Direct Primary bill,
but they were not able to keep it free of defects. Harassed by the
machine at every turn, the anti-machine Senators and Assemblymen were
compelled to accept many undesirable provisions.[445]
One of these provisions bore directly upon the San Francisco election of
1909, and contributed to a large extent to the outcome.
This clause required a primary candidate to make affidavit giving "the
name of his party and that of the office for which he desires to be a
candidate; that he affiliated with said party at the last preceding
general election, and either that he did not vote thereat or voted for a
majority of the candidates of said party at said next preceding general
election, and intends to so vote at the ensuing election."
At the time this section was under consideration, anti-machine
legislators and the unhampered press pointed out that under it, District
Attorney Langdon could not, in all probability, have been nominated nor
re-elected in 1907; that Mayor Taylor's election of that year would have
been impracticable, if not impossible; that Judge Dunne would have been
hampered to the point of defeat in 1908; that under it, both in 1907 and
1908, the so-called "higher-up" element in the field of corruption would
have been given an advantage which the better citizenship of the
community would have had difficulty in overcoming.[446]
But the machine element denounced these not unreasonable objectors as
"enemies of the Direct Primary bill," and under cover of the
denunciation, and the fight for practical expression of popular choice
for United States Senators, the objectionable clause was permitted to
remain in the bill.
No sooner had the Legislature adjourned than judicial interpretation of
the partisan clause of the Direct Primary Act became necessary. The San
Francisco primary election was at hand, and the partisan provisions of
the new law proved the first snag which the various candidates
encountered.
Although the members of the Legislature, machine as well as
anti-machine, voted for the bill, believing that the partisan clause
restricted primary nominations to members of the party of the
candidates' affiliation, the San Francisco Election Commissioners held
there was nothing in the law to prevent the name of a Republican
appearing on the Democratic ticket, or of a Democrat on the Republican
ticket, provided the candidate made affidavit of the party of his
affiliation.
Under this ruling it appeared that, in spite of the objectionable
partisan provision of the Direct Primary law, the San Francisco election
could be held on the non-partisan basis which had resulted in the
election of Taylor and Langdon two years before. The one issue before
the San Francisco electors was continuance of the Graft Prosecution. The
supporters of the prosecution, Republicans as well as Democrats, desired
to vote for Heney. McCarthy was the avowed Labor Union party candidate
for Mayor. The Union Labor party was considering the nomination for
District Attorney of Charles M. Fickert. The prospects were good that
Heney would receive the Republican and Democratic nominations, as
Langdon had two years before. He was supported by the better element of
both parties, and opposed by the anti-prosecution element of both. This
opposition found expression in the Republican party in a committee of
twenty-five, at the head of which was I. W. Hellman, Jr., of the Union
Trust Company.[447] The better element of the party planned the
nomination of Heney, as did the better element of Democrats.
On a non-partisan basis, such as had prevailed in 1907, the Union Labor
party would have nominated McCarthy for Mayor, and Fickert for District
Attorney, while the anti-machine, pro-prosecution Democrats and
Republicans would have nominated a strong candidate for Mayor, and Heney
for District Attorney.
Conditions were thus shaping themselves admirably for continuance of the
non-partisan administration of municipal affairs, which had at least
blocked corruption, even though it had not beaten down the barriers of
technicality, which stood between the corruptors of the municipal
government and law-provided penalties.
But this developing non-partisan arrangement was suddenly overturned in
an opinion rendered by the Supreme Court, reversing the ruling of the
Election Commissioners.
The court held that the partisan provisions of the Direct Primary law
prohibited the name of a primary candidate appearing upon any primary
ticket except that of the party of the candidate's affiliations.
Under this ruling, Fickert's name could not go on the Union Labor party
primary ticket, for Fickert had affiliated with the Republican party.
The Hellman committee of twenty-five (Republican) immediately took up
the Union Labor party candidate for District Attorney, whose name could
not go on the Union Labor party primary ticket, Mr. Fickert being
apparently quite as satisfactory to Mr. Hellman and his associates as he
was to Mr. McCarthy.
Heney, under the Supreme Court's ruling, found himself in a more
difficult position. With other California Progressives, Heney had in
1908 supported Taft for the Presidency. His political affiliations were
therefore, under the provisions of the Direct Primary law, Republican.
His name could be placed on the Republican primary ticket, but not on
the Democratic. But it soon became evident that if his name went on the
Republican ticket he would be defeated at the primaries.
The registration of voters under their party designation to enable them
to vote at the partisan primaries showed an astonishing condition. The
machine, anti-prosecution element was discovered to be massing its
strength in the Republican party. Two years before, Daniel A. Ryan, the
Republican candidate for Mayor, had received only 9255 votes in San
Francisco, while Taylor, the Democratic candidate, had received 28,766,
and McCarthy, Union Labor, 17,583. But for the 1909 primaries, no less
than 47,945 registered as Republicans, a gain of 38,609 over Ryan's
vote,[448] while the Democratic registration was 17,632 only, 11,134
less than Taylor's vote, and the Union Labor registration, 10,546, or
7037 less than McCarthy's vote in 1907. Heney's name could not go on the
Democratic ballot. If he permitted it to go on the Republican ballot,
the tremendous Republican registration indicated that the anti-machine
Republicans would be outvoted by "machine" members of all parties who
had registered as Republicans.
By another provision of the election laws, Heney, should he be defeated
at the primaries, could not become an independent candidate; defeat at
the primaries barred him from running at the final election.
Heney was effectively shut out from participating as a primary
candidate. And this, in face of the fact that the anti-machine
Republicans and the anti-machine Democrats were striving to make him
their candidate.
Had the 1909 primary law prevailed in 1907, Langdon's re-election could
have been, and almost to a certainty would have been blocked, and the
Graft Prosecution brought to an end two years before it was.
At the 1909 Primary election, Heney's name, although he was the choice
of the anti-machine element of all parties, did not appear on any of the
primary ballots.[449] Nevertheless, 4594 Republicans wrote Heney's name
on their primary ballots. But this was not sufficient to give him the
nomination. Fickert, whose name appeared on the Republican ballot, as a
regular candidate, received 12,480 votes, which gave him the Republican
nomination.
On neither the Democratic nor Union Labor primary tickets did the name
of any candidate for District Attorney appear. The McCarthy element
urged that Fickert's name be written in by Union Labor party voters.
They carried their point, Fickert being nominated by the Union Labor
party by 3308 votes. But even here there was registered protest at what
was going on. Union Labor party voters to the number of 617 wrote
Heney's name on their ballots.
In the same way, a determined effort was made to give Fickert the
Democratic nomination also. He received 2298 votes. But the
pro-prosecution Democrats rallied to Heney's support, and nominated him
by a vote of 2386. Thus out of a total of 28,967 who voted for
nomination of District Attorney, no less than 7597, or more than 25 per
cent., wrote Heney's name on their ballots, in protest against the
partisan conditions which made his regular nomination impractical.
The law was new; the election, the first held in the State under the
Direct Primary. It was difficult to make the electors understand they
could vote to nominate Heney by writing his name on the ballot. Of the
38,385 who voted at the primaries only 28,967 voted for District
Attorney. Unquestionably, a large percentage of those who did not vote
at all, would have written Heney's name on the ballot had they known
that such a course was permissible. But they did not know, and more than
25 per cent. of those voting did not vote for District Attorney. As the
Rev. Charles N. Lathrop put it: "They have Heney sewed up in a bag, and
the bag is the partisan features of the Direct Primary."[450]
Out of this confusing primary election, Fickert came with two party
nominations, the Union Labor and the Republican, while Heney had one
nomination, the Democratic. This meant that Fickert's name would be
printed twice on the final ballot under partisan designation, while
Heney's would be printed but once. Thus, for every chance Heney had for
a "party circle" vote Fickert had two.
The prosecution forces had supported Byron Mauzy for Republican
nomination for Mayor, but Mr. Mauzy[451] was defeated by William
Crocker, who received the Republican nomination. The Democrats nominated
Thomas B. W. Leland for the mayoralty office, while the Union Labor
party named P. H. McCarthy. The mayoralty-district attorney tickets
were, therefore: Republican, Crocker and Fickert; Union Labor, McCarthy
and Fickert; Democratic, Leland and Heney. But the issue before San
Francisco, continuance of the Graft Prosecution, had no partisan
significance at all. It was supported and it was opposed by members of
both parties. The whole fight was over the election of Heney. But never
had candidate for office opposition which had more at stake.[452]
Men with apparently unlimited means at their disposal, realized that
Heney's election would in all probability mean for them a term in the
State prison. They were fighting for their liberty. The commercial
interests were warned that, in the words of I. W. Hellman, Sr., the
banker, the Graft Prosecution was hurting business.[453] The anti-Graft
Prosecution press insisted day after day that bribery of public
officials, while bad, is the most common of crimes and the most
difficult to prove; that San Francisco had tried to convict, had failed
and might as well give up. So-called "improvement clubs" went so far as
to adopt resolutions not only protesting against further prosecution,
but demanding that the Supervisors withdraw support given the District
Attorney's office in its efforts to land bribe-givers behind the
bars.[454] And finally, the large business interests opposed to the
prosecution, threw strength to McCarthy; not that they liked
McCarthy--they united against him two years later--but because the
election of McCarthy would go far toward the defeat of Heney. Members of
the labor unions were, to a large extent, supporters of the prosecution.
Their votes had made Langdon's election sure in 1907. During the 1909
campaign, and down to the very day of election, the sentiment among
laboring men was to vote for McCarthy and Heney. But Heney's name did
not appear on the Union Labor ticket.
Labor's support of Heney was vigorously opposed. Appeal was made to
workingmen to stay by their class; to vote for the labor candidates,
McCarthy and Fickert. On the Monday night before the election, the
writer, with Professor George H. Boke of the University of California
Law School, joined a group of working men who were discussing the merits
of the several candidates. Apparently all but one of them were for
McCarthy and Heney. The exception was for Leland and Heney. He was
defending himself, when the writer joined the group, against the charge
that in voting for Leland he was "voting outside his class."
This Leland advocate was a most noticeable young man. He declared
himself to be a member of the electricians' union. Well under thirty,
clear-eyed and forceful, he was prepared to stand his ground. When his
immediate opponent became personal, the electrical worker, without
raising his voice, without excitement, or boast, or display, remarked
quietly: "Do not resort to personalities, for if it comes to
personalities, what chance have you against me?"
There were no more personalities.
Incidentally his argument was fast bringing out the fact that every
worker in the crowd was going to vote for Heney. The effect of it was
important. Suddenly from somewhere there appeared a new man to do his
part in molding public opinion.
The new-comer went through that crowd with the assurance of a practiced
football player through an aggregation of amateurs. In less than five
minutes he had addressed every man of the group. But he had none of the
marks of a worker, and nobody thought to ask for his "card." His was the
pasty face and the pudgy neck and the soft, unclean hand of the cadet.
His argument was curious and even ridiculous, but it was most effective.
It at least scattered the crowd.
"Of course Calhoun is a grafter," he said in effect. "They are all
grafters. Spreckels is a grafter. Of course, Fickert is Calhoun's man,
just as Heney is Spreckels's man. They are all out for graft. But if we
are to have grafting, let's keep the graft in our own class. Why should
you vote to let Spreckels's men do the grafting? You have a candidate of
your own. Vote for him. It is only a fight between millionaires anyhow,
and a toss-up which is right. Let us vote for the man of our class."
The effect of this running fire of words was immediate. The electrician
lost the attention of his associates. The discussion came to an end with
murmurs of approval of the newcomer's position. That he should have
changed a vote with such argument seems incredible. But that he had
created a doubt in the minds of those workingmen was apparent to all who
saw. He left them well prepared for the anti-prosecution workers who
would meet them at the polls the next morning.
But the laboring element was not the only "class" forced into opposition
to Heney. At the exclusive clubs, fashionable hotels, social functions,
support of Heney was denounced as treason to the exclusive, fashionable,
social class. It was quite amusing to hear first generation descendants
of honest steerage immigrants decrying the prosecution of rich men
trapped in bribe-giving on the theory that to do otherwise "would be
treason to our class."
Thus, Mr. Heney was called upon to meet the "class" opposition of the
laborer and the magnate. On the other hand, the unafraid, intelligent
people of San Francisco, who recognized no "class" issue, rallied to
Heney's support. But they were without the concerted plan of action
which the other side had perfected. The San Francisco press, with the
exception of The Bulletin and Daily News, gave Heney no editorial
support, but the country press, which had no circulation in San
Francisco, earnestly urged his election.[455]
Good citizens throughout the country wrote urging Heney's election. "To
rout the forces of the prosecution at this juncture in San Francisco,"
wrote Rabbi Stephen S. Wise of New York, "is to hoist the red flag of
anarchy, to proclaim that law and order are not always enforceable, or
that such enforcement is not always profitable."
But Rabbi Wise was in New York. His influence did not, unfortunately,
extend, in any important degree, to San Francisco.
On the day of election, the writer visited many voting places in the
districts in which the labor vote was strong. Working men by the scores
were taking less than a minute to mark their ballots. It was evident
that they were voting by means of the party circle. Every Labor Union
party vote of this kind was a vote against Heney. The last hope that
Heney would get this support was gone. One did not need wait for the
counting of the ballots. It was plain that Heney was defeated.
The election returns spoke eloquently of the means that had been
employed to defeat Heney. For the primary election 47,945 had registered
as Republicans, but Crocker, the Republican candidate for Mayor,
received only 13,766 votes at the final election. Although but 10,546
had registered for the primaries as members of the Union Labor party, P.
H. McCarthy received 29,455 votes, which, wherever voting was done by
means of the party circle, carried a vote for Fickert.
Fickert, with the two nominations, received 36,192. Heney, running on
the Democratic ticket, received 26,075 votes, 6481 more than Leland, the
candidate for Mayor. But the combination against Heney was too great for
him or any man to overcome. Fickert was elected.[456]
The Graft Prosecution had been defeated at the polls.
FOOTNOTES:
[443] See "Story of the California Legislature of 1909," Chapters
VIII, IX, X, XI.
[444] This reform was accomplished at the Legislative session of
1911. The undesirable provisions were also stricken by
amendment from the Direct Primary law. See "Story of the
California Legislature of 1911."
[445] "Before voting on this matter," (the Direct Primary
provisions) said Senator Stetson, an anti-machine leader in
explaining his vote, "lest any one in the future may think
that I have been passed something and didn't know it, I wish
to explain my vote, and wish to say that this permission
accorded a candidate to go on record to support that candidate
for United States Senate, who shall have the endorsement of
the greatest number of districts, comes from nobody and goes
to nobody. It means nothing--mere words--idle words. The only
way in which a candidate could have been pledged would have
been to provide a pledge or instructions to the Legislature.
The words 'shall be permitted' mean nothing and get nowhere. I
shall vote for this report, not because I want to, but because
I have to if we are at this session to have any Direct Primary
law at all."
Senator Stetson was referring particularly to the section
which denied the people by state-wide vote the right to
indicate their preference for United States Senator, but his
words would have applied as directly and as truly to other
sections of the measure.
Other good government Senators did, as a matter of fact,
denounce the very partisan clause which later contributed so
largely to Heney's defeat. Senators Campbell, Holohan and
Miller, for example, while voting for the bill, sent to the
clerk's desk the following explanation of their vote:
"We voted for the Direct Primary bill because it seems to be
the best law that can be obtained under existing political
conditions. We are opposed to many of the features of this
bill, and believe that the people at the first opportunity will
instruct their representatives in the Legislature to radically
amend the same in many particulars, notably in regard to the
election of United States Senators, and the provisions that
prevent the endorsement of a candidate by a political party or
organization other than the one that first nominated such
candidate."
[446] See files of Sacramento Bee for February and March, 1909, and
Senate Journal for March 22, 1909, page 1976.
[447] The Union Trust Company loaned $175,000 to the Calkins'
Syndicate, which published papers in opposition to the
prosecution. For the curious circumstances under which the
loan was made, see footnote 275, page 257. The Union Trust
Company officials were among the most effective opponents of
the prosecution, and most persistent in circulating the story
that the prosecution hurt business. The head of the
institution, I. W. Hellman, Sr., returning early in August
from a trip to Europe, when the 1909 campaign was opening,
said in an interview, published in the Chronicle, August 4,
1909: "In New York I found that there is still a great
difficulty in securing capital for San Francisco on account of
the Graft Prosecution, or the 'graft persecution,' as they
call it there. Of course, I do not know what changes have
occurred in the situation here since I left six months ago,
but I had an interview with certain people In New York and I
found that they were unwilling to send capital here as long as
this 'graft persecution' was continued."
[448] Ryan did not receive his full party vote (see chapter XXI)
while Taylor received the anti-machine vote of all parties.
Nevertheless, this does not account for the extent of the
astonishing changes in registration.
[449] It is interesting to note that the politicians responsible for
this condition, and who regarded Heney's position at the 1909
primaries with no attempt to conceal their amusement, were in
1912, loudest in their insistence that they had been
disfranchised because the names of Taft electors did not
appear on the California election ballot at the 1912 election.
It is also to be noted that their representations were based
on misrepresentation. They could, under the 1911 election
laws, had they had any intention of giving Taft genuine
support in California, have placed the names on the ballot by
petition, as was done in the case of the Roosevelt electors,
who, lest their regular nomination be questioned, were also
nominated by petition.
[450] The California Legislature of 1911 corrected the features of
the election laws which blocked free expression of the will of
the electors. San Francisco, by amendment of its charter, has
since placed all municipal elections on a strictly
non-partisan basis, with provisions under which no candidate
can be elected by a plurality vote. It is interesting to note
that although opposed by Mayor McCarthy and the group of
politicians about him, these amendments correcting the
weaknesses of the election laws, were adopted overwhelmingly.
McCarthy's vote in 1911 was practically the same as the vote
by which he was elected in 1909. Had the election been held
under the same conditions in 1911, as in 1909, McCarthy would
almost to a certainty have been re-elected.
[451] Mr. Mauzy had the active opposition of the anti-prosecution
element, which proposed that old sores be forgotten, and the
city be kept free of graft in the future.
"If you think," said The Chronicle, on August 17, 1909, "San
Francisco is suffering injury from the fruitless effort to
obtain convictions in cases in which evidence is lacking, vote
the Byron Mauzy ticket. If you believe that the sane thing to
do is to cease wasting money over the attempt to accomplish
the impossible, vote for candidates who can be depended upon
to give the city an administration from which graft will be
eliminated in future."
[452] The platform expressions on the Graft Prosecution issue are
interesting. The Republican platform made no reference to it
at all. There was some talk of providing that "the District
Attorney should do his duty," but not even this was provided.
The Union Labor party plank on this question read as follows:
"We believe in the principle of the equality of all men before
the law; that every guilty person should be prosecuted with
vigor, in accordance with the law of the land, and that the
administration of the law should be free from any and all
suspicion of private control. We condemn favoritism or
leniency in behalf of any offender before the law, or any
compromise with criminals. We demand that any and all
offenders be dealt with alike, and to such end we pledge our
nominees."
The Democratic plank alone pledged support to the Graft
Prosecution. It read:
"We pledge the Democratic party absolutely and unequivocally to
the support of the Graft Prosecution which for three years has
valiantly battled for the principle of the equality of all men
before the law, which has secured convictions against
disheartening odds and has paved the way for the clean
administration of public affairs which we now enjoy.
"The people must declare at this critical election for or
against municipal corruption; for the enforcement of the law,
or for its abandonment; for or against not only a greater but a
better San Francisco.
"Francis J. Heney, our candidate for District Attorney,
embodies these issues, and we pledge him the vigorous and loyal
support of the Democratic party."
[453] The "hurt business" argument was ably combated by businessmen
who were free of the graft mire.
"From all the available information at hand," said Colonel
Harris Weinstock, of the firm of Weinstock-Lubin & Co., in
replying to this argument, "I find that on the whole the
volume of business is greater in San Francisco than it ever
was before. I am, therefore, unable to see how business has
been hurt by the Graft Prosecution.
"The burden of proof on this point properly rests with those
making the charge. They should present facts and figures
verifying their statement that business has been hurt by the
graft prosecution before they can hope to have it accepted as
fact.
"So far as I have been able to find out, the Graft Prosecution
has not hurt business, but even if it had seriously crippled
business it would still be your duty and my duty and the duty
of every lover and well-wisher of our free institutions to hold
up the hands of those who are fighting your battle and my
battle in an effort to bring public wrongdoers to justice, and
thus prevent harm from coming to the republic. Let the work go
on."
The American National Bank of San Francisco, in a financial
letter issued August 25, 1909, gave figures which disproved the
Hellman idea.
"It is significant of San Francisco's credit standing in the
world at large," the letter read, "that the bonds of this city
command prices that compare favorably with the issues of other
large municipalities, as measured by the low interest return
which investors are willing to accept. To illustrate: For every
$1,000 put into municipal bonds at present figures, the
purchaser would receive per annum:
"From San Francisco bonds $39.00
"From Philadelphia bonds 37.00
"From Cincinnati bonds 37.50
"From Cleveland bonds 37.50
"From St. Louis bonds 38.80
"From Pittsburg bonds 37.00
"From Chicago bonds 38.50
"From Minneapolis bonds 38.50
"From Milwaukee bonds 39.00
"From New York bonds 39.50
"Considering these facts, and the readiness with which the San
Francisco bonds are being taken, it does not appear that this
city is suffering in reputation, as some people affect to
believe, by reason of certain trials which have engaged the
attention of the criminal courts for two years past."
"I have no patience," said Heney, in discussing the Hellman
argument, "with this talk that we hear from merchants and
bankers that the Prosecution is hurting business. They heard
the same talk in Boston when our Revolutionary sires threw tea
overboard. It would hurt business, they said, to have a war
with England. I can see the picture, when Thomas Jefferson was
signing the Declaration of Independence, of a large man, who
looked like the cartoonist's representation of a corporation
official, coming through the door behind him and shouting,
'Hold on, Tom, you'll hurt business.' And when Washington was
spending that terrible winter with his army at Valley Forge,
the same class of men who are now crying at us in San
Francisco were shouting for the war to stop. 'Damn principle,'
they were crying. 'It's hurting business. This war must
stop.'"
[454] "It is," said the Chronicle, commenting upon the adoption of
such resolutions, "a matter of common knowledge that there is
a widespread feeling among those whose good citizenship cannot
be disputed that the city, having done its best for three
years, without success, to find legal proof which would
connect officials of the corporations which profited by the
corruption of the Schmitz administration with the crime of
bribery, it is necessary to discontinue the effort. Hitherto
no one has been willing to formally approach the authorities
in the matter lest he should appear to show sympathy with
evildoers. The Richmond Club, however, has formally
memorialized the Supervisors to withdraw further support by
appropriations on the ground that it has become apparent that
success is impossible, and that further effort would be not
only a waste of money and energy but serve to keep before the
world the memory of a most disgraceful epoch in our history.
"Bribery of public officials is the most dangerous of crimes.
It undermines the very foundation of government by the people.
And yet it has been in this and all other large American
cities the most common of crimes. In the public mind, and in
common speech, any person or firm which has habitually done
business with our city government has been held to have on
himself the burden of proof that he was innocent of bribery.
And then came the riot of debauchery under the Schmitz
administration, with corruption in all forms permeating every
department of the city government. We have had nothing like
that before, and yet until the election of the present Board
of Supervisors this city has almost never had a Board on which
some members were not believed to be corrupt and constantly on
the watch for opportunities to 'hold up' those seeking to do
business with the city. It is not believed that any franchise
now in existence has been obtained without bribery or operated
without continuous bribery. It has been generally assumed that
whoever undertook to do business with the city must buy his
way in by some form of corruption.
"Bribery is a crime for which conviction is almost impossible.
Occasionally proof can be got through a decoy, as in the case
of the Schmitz Supervisors. What was exposed in that way,
however, was no legal proof against the higher officials of the
beneficiary corporations. For that other proof must be had, and
thus far, except in one case, no conviction has been had. And
unless the courts reverse themselves that conviction will not
stand. The question then arises as to the duty of the city.
Shall we continue to expend energy in striving to accomplish
what we all see to be impossible, or shall the city, having
done its best, turn its energies into more hopeful channels? As
to that there will be differences of opinion, nor is it
possible for anyone to know to what extent those differences
are founded in reason, and how much on personal hatreds and a
desire for notoriety.
"There is doubtless a feeling that the continuance of these
prosecutions is now doing great harm, which could only be
counterbalanced by conviction based on clear legal proof, for
which it is impossible to hope. In the first place, it is
enormously costly and has introduced a universal system of
spying which is exciting animosity against both sides of these
cases. Decent citizens are coming to resent secret efforts to
induce them to compromise themselves on the one side or the
other. Secondly, the awful exhibitions of perjury in order to
escape jury duty are shocking the moral sense of the community
as severely as it was shocked by the exposure of the bribery.
And the examination of the jurors are resulting in expressions
of opinion by prospective jurors which do not do the city any
good. Finally, the conduct of these trials is turning into a
farce processes which should be the most solemn exhibitions of
the authority of the law. We must all recognize that it is
common talk that society ought not to seek to imprison one
possible criminal at the cost of the imprisonment for months at
a time of innocent citizens dragged from their homes and
compelled to listen to the interminable quarrels of counsel
over matters having no legitimate bearing on the case and
injected solely for the purpose of confusing jurymen. Everybody
sees that it will be impossible in the case now on trial to get
a jury fit to be intrusted with the fate of a dog. Every
intelligent citizen has been 'disqualified' by reading the
testimony before the Grand Jury.
"It is a most difficult situation. No reputable citizen is
willing to seem to impede the course of justice. But, now that
an organized body has formally raised before the Supervisors a
question which has long been a daily subject of discussion
whenever two men have met, it will be necessary to frankly face
the situation and decide where duty lies."
[455] The following from the Fresno Republican is very good example
of this excellent but unavailing newspaper support:
"Good people of San Francisco, give heed and take notice, the
way it looks in the clearer perspective of an outside view.
"Francis J. Heney is a candidate for District Attorney, and he
is the issue. It is stop the Graft Prosecutions, or go on with
them. Your votes will determine it.
"You are 'tired of the Graft Prosecutions.' How long did it
take you to get tired of the graft? Can you not be patient as
long with militant honesty as you were with sneaking crime?
"You may stop these Prosecutions, if you so vote. But remember
the whole civilized world is looking on, and will judge you by
that vote. It is the good name of San Francisco that you are
voting up or down.
"Banker Hellman says not. He has been to New York and he says
'New York' wants the Prosecutions stopped, and 'New York' will
not lend any more money until they are stopped.
"What is Banker Hellman's 'New York?' It is certain banks and
certain syndicates in New York. And it is the San Francisco
officials of precisely these syndicates that you are now
prosecuting. Of course, Patrick Calhoun, of New York, wants the
prosecution of Patrick Calhoun of San Francisco stopped. It is
Banker Hellman's privilege to have a mere pendulum which swings
from his San Francisco office to his New York office and thinks
it is in New York. But it is not incumbent on you to share that
mental deficiency. If Banker Hellman should announce in New
York that he was going to discuss the San Francisco situation,
his audience would consist of the New York partners of the San
Francisco grafters. He thinks that is 'New York.' The real New
York would neither know nor care. It never heard of Banker
Hellman. But if Francis J. Heney should be announced to discuss
the San Francisco situation in New York, there is not a place
of assemblage in the city big enough to hold the people who
would want to hear and see him. The whole nation knows Heney
and it has made up its mind about him. It is waiting to see
what you do, before it makes up its mind about you, too.
"'The prosecutions must stop, some time,' to be sure. But who
has earned from San Francisco the right to say when? When
Francis J. Heney says it is time to quit, then it is time; not
before. He has given his time, his strength, and almost his
life for you. He has purified your politics and regulated your
government. He has redeemed your city's name in the esteem of
the world. He is making for you a fight which no one ever had
the courage, the persistence or the ability to make before. He
is not tired yet and he has not surrendered yet. Suppose you
leave it to him, when it is time to quit.
"People of San Francisco, the world is looking on. It cannot
determine your decision. Neither can you determine what it will
think of that decision, when it is made."
[456] Heney on the day after the election issued the following
statement:
"The first battle for equality before the law has been fought
and lost, but the war against graft will continue to be waged
by all true soldiers who have been fighting with me in the
great cause of common honesty, common decency, and civic
righteousness.
"The fight between the forces of evil and the forces of good
is and must be a perpetual one. The first battle of Bull Run
cast gloom over the entire earth, but that disaster only
inspired the immortal Lincoln and his followers with stern
resolution and fresh courage.
"San Francisco has received a sad blow and the cause of
equality before the law a great setback, but be of good cheer
and take fresh courage, you many thousands of good men and
women who have joined in this fight for the maintenance of the
purity and protection of our homes and the uplifting of the
moral standards of our city!
"We have been defeated in this election, but the sober moral
sense of the community will again reassert itself and San
Francisco will vindicate herself before the world.
"I retract nothing that I have said during the recent campaign.
On the contrary, I reassert the truth of all that I have stated
from the public platforms. I have no regrets except that for
poor San Francisco and the many thousands of people who fought
shoulder to shoulder with me in the good fight.
"Let us all to-night firmly resolve that we will continue the
battle for equality before the law with unabated vigor until
success has crowned our efforts."
* * * * *
The following statement was issued by Rudolph Spreckels:
"While the defeat at yesterday's election of the principles for
which I have fought is regretted by me, it will speedily bring
about a truer estimate of my real motives.
"One of the compensations of this defeat is that I have so
quickly been given an opportunity to disprove the charges so
frequently made that I have been actuated by sordid or
vindictive motives. The individuals against whom it is alleged
that I have entertained malicious and selfish designs are
entirely removed from the possibility of harm at the hands of
the so-called Prosecution.
"Attempting to punish was an unpleasant and incidental portion
of the public work which I set out to do. I am glad that the
people have taken that task off my hands and left me free to do
the more important part of my undertaking.
"Feeling that the people will fully realize this, I desire to
say that I shall continue the work of civic regeneration with
undiminished hope and earnestness."
CHAPTER XXVIII.
DISMISSAL OF THE GRAFT CASES.
At the time of Mr. Fickert's election to the District Attorney's office,
the second trial of Patrick Calhoun for offering a bribe was well under
way. As at the other graft trials, there had been delays [457] so that
after five months the jury was only half complete. That the trial could
not be finished before Mr. Fickert assumed the duties of his office
became evident. The case was, for that reason, on December 9, continued
until January 10, in order that Mr. Fickert might participate in the
selection of the trial jurors. But on that date, Mr. Fickert, who had
been in office only two days, very frankly admitted himself to be
unfamiliar with the facts, and not prepared to go to trial. Further
continuance was accordingly granted until January 31, and then until
February 7.
In the meantime former Supervisor James L. Gallagher, the pivotal
witness in the case, had disappeared. Gallagher was known to have been
in San Francisco for some three weeks after Fickert's election. About
December 1 he dropped out of sight. He was supposed to have gone to
Europe.[458]
On February 7, Mr. Fickert moved the dismissal of the case pending
against Mr. Calhoun on the ground that there was not sufficient legal
and competent evidence to warrant him submitting the case to a
jury.[459]
Judge Lawlor denied the motion. In denying it, Judge Lawlor stated that
in the view of the court the action should be tried by a jury and a
verdict should be rendered by a jury, if that were possible, in the full
operation of the law.
Fickert stated in the discussion which followed that he wanted his
motion to apply to all the other graft cases of the same class as
Calhoun's, with the exception of the defendants Ruef and Schmitz. But
here again did the Judge deny the District Attorney's request.
After Judge Lawlor's ruling, Calhoun's attorneys announced themselves
ready to proceed with the trial of the case. Fickert stated that he
would be ready in a week. Judge Lawlor thereupon questioned Fickert very
closely about the absent witness, Gallagher. Fickert gave assurance that
diligent hunt was being made for the witness.
The questioning of the District Attorney was continued ten days later
when the case again came up. Judge Lawlor asked Fickert to tell
definitely whether he proposed to put the issue before a jury in the
absence of his material witness.
Fickert replied that Gallagher's absence greatly weakened the State's
case, and that in his belief certain facts could not be proved without
Gallagher being present. But as for that, Fickert insisted that even
with Gallagher present he did not believe that the State could make out
a case.[460] Nevertheless, he continued to insist that he was ready to
proceed to try the action even in the absence of the witness Gallagher.
But Judge Lawlor announced that he did not propose to proceed with the
trial of the action:
(1) If a material witness were without the jurisdiction of the court.
(2) If the court did not believe that the cause were to be prosecuted
with the vigor and fidelity that the law contemplates.[461]
Fickert also stated his position. He insisted that he did not believe
that any evidence had ever existed against the trolley-graft defendants
Abbott and Mullally, and did not believe it to be his duty as District
Attorney to prosecute men against whom there was no evidence. Fickert
even attempted to commit Judge Lawlor to this proposition, by stating
that the Judge in chambers had confessed as much. This Judge Lawlor
denied. Mr. Fickert's assistant, Mr. Berry, had been present during the
discussion in chambers between Mr. Fickert and Judge Lawlor, but Mr.
Berry failed to sustain his chief's contention.[462]
"In these cases, the cases against Mr. Abbott and Mr. Mullally," said
Fickert, "I shall never proceed in them because there is absolutely no
evidence which at all gives even a suspicion."
In respect to the other cases, Mr. Fickert announced that he intended to
take the same course that he had in those under discussion, and stated
that if the Judge so desired he would advise him before hand as to which
of the cases he intended to make a motion for dismissal.
"In view of the statement you made on February 7,"[463] replied Judge
Lawlor, "the Court will not feel called upon to grant any application
looking to a dismissal of any of those cases. The Court will finally
deal with them in the manner prescribed by the law. And if that
situation is not reached so that the Court can proceed with the trial,
the Court will be under the solemn obligation of setting down in its
minutes the reason why a trial has not been had in any particular
instance, and why cases are dismissed or disposed of without the trial
of the general issue. The Court cannot escape its responsibilities. I
have pointed out that under the law it is for the Court to say finally
what shall become of cases that are not pressed to conclusion, and when
the Court does that it must give its reasons--the law says so. In this
State, since the formation of the government therein, the power has not
for any considerable length of time lodged in the District Attorney to
dispose of actions; that matter is confided to the Court. Counsel will
be doing injustice to his own position if he assumes that the Court has
any other attitude than to finally dispose of these matters according to
the law without doing injustice to any person, either to the District
Attorney or any person who is unfortunate enough to be involved. But
when the Court comes to write down its action it will be based upon what
it believes to be the fact and upon nothing else."
Fickert replied that he was ready to proceed with the matter. To this
Judge Lawlor reiterated that the Court was not going to permit the
District Attorney to proceed in the absence of a witness, who, according
to the District Attorney's own statement, was material.[464]
Nor did the earnest plea of attorneys for the defense for dismissal move
Judge Lawlor. In the absence of the material witness, Gallagher, he
continued the case, on the Court's own motion, until April 25.[465]
On that date, Calhoun's attorneys moved for dismissal of all the
indictments pending against their client upon the ground that his trial
had been postponed and continued for more than sixty days without his
consent and over his objection and exception.
Fickert submitted the motion, fortifying it with a statement that he did
not believe that the District Attorney's office would be justified in
asking continuance until Gallagher's return.
Judge Lawlor postponed determination of the motion until July 14.[466]
His ruling was announced on August 3.
Judge Lawlor went exhaustively into the situation presented.[467] He
pointed out that a material and indispensable witness was absent from
the State; he stated that the Court was called upon to intervene
"because the District Attorney has at practically every turn followed
the lead of these defendants"; he held that through the influence of
unusual agencies, so far as the graft cases were concerned, the law had
broken down, and that the crimes charged are of the most serious nature,
"because such criminal activity tends to sap the very foundations of
government"; he insisted that before the indictments should be finally
disposed of every reasonable effort should be made to get at the truth
of the situation.
"The disposition of grave charges other than on their merits," he
concluded, "is not to be encouraged and should not be allowed, except in
the face of a strict legal necessity." He continued the cases until
August 29.
Stanley Moore, one of Calhoun's attorneys, when Judge Lawlor had
concluded, demanded that he be permitted to reply. This demand was
refused.
There followed one of the most extraordinary scenes ever recorded of a
court of justice. The defendant's attorneys, the District Attorney, and
even the prisoner at bar, openly and contemptuously defied the Judge on
the bench.
Stanley Moore charged him with "doing politics from the bench that you
stultify in your occupancy." A. A. Moore, another of Calhoun's lawyers,
accused him of being "a partisan, a bitter partisan, and doing dirty
politics."
"And," Stanley Moore hastened to add, "have been before these
indictments were ever filed in this court, as the events of that
midnight deal in which you participated on April 29 amply
demonstrate."[468]
District Attorney Fickert, in the face of the Court's direction that he
take his seat, denounced "the statements and aspersions you have tried
to cast upon me" as "false in each and every particular."
A third of Mr. Calhoun's attorneys added his denunciation. Mr. John
Barrett decried the proceedings as "infamous."
Judge Lawlor sentenced Calhoun's three attorneys to serve five days each
in the county jail for contempt and ordered the Sheriff to take charge
of them.
But the extraordinary scene was not concluded. The prisoner at the bar
had not yet been heard. Calhoun took the floor to tell the judge on the
bench that should the Judge send him (Calhoun) to jail for contempt "it
will be heralded all over this country as an honor."[469] The Court
attempted to interrupt the angry defendant. The interruption was
ignored. The prisoner at the bar was exhibiting himself as more powerful
in San Francisco than the Judge on the bench. When he had said his say,
he took his seat.
The trolley-graft cases dragged along for more than a year after this
astonishing scene in Judge Lawlor's courtroom.[470] The defendants
applied to the Supreme Court in habeas corpus proceedings, but failed to
secure interference. They then went to the State District Court of
Appeal, where they secured a writ of mandate directing Judge Lawlor to
dismiss the indictments in the cases of the trolley-graft
defendants.[471] The District Attorney's office announced to Judge
Lawlor that the District Attorney had no intention of prosecuting an
appeal from the judgment and order of the District Court.
Judge Lawlor thereupon dismissed the cases as directed. He also included
the cases against Frank G. Drum, Eugene de Sabla and John Martin, which
were governed by much the same considerations as the trolley cases. Four
years and a half had passed since the indictments had been brought.
Little by little, the influence of those of the community who were for
law and order and impartial law enforcement had been sapped and broken
down. The prosecution had been worn out; the community had been worn
out. The defense had shown greater staying qualities than either peace
officers or community. It had been pretty thoroughly demonstrated that
convictions could not be had.[472]
The dismissal of the trolley-graft and gas-graft cases was the final
breaking down of San Francisco's efforts to have the cases tried upon
their merits. To be sure, the indictments against the telephone-graft
defendants and the prizefight-graft defendants, and against Schmitz and
Ruef still stood. Glass, a telephone-graft defendant, had been
convicted, but the Supreme Court had reversed the decision on
technicalities.[473] The absent witness, Gallagher, was not a material
witness in the Glass case. But when along in August, 1912, a year after
the dismissal of the gas and trolley-graft cases, Glass's case was
called, it was found that important witnesses had disappeared. The
incident was taken by the papers, not as a reflection upon the
community, but as a joke on Judge Lawlor.[474] The Glass cases were
finally dismissed.
Former Mayor Schmitz in February, 1912, was brought to trial. Ruef was
brought over from San Quentin prison to testify against him. But Ruef
refused to testify unless the Ruef indictments were dismissed. This,
Judge Dunne,[475] before whom many Ruef indictments were pending,
refused to do. Ruef did not testify. Schmitz was acquitted. The other
indictments against Schmitz were eventually dismissed.
The same course followed in the cases of the other graft defendants. The
graft defense had beaten San Francisco; its record of shameful success
was complete.
FOOTNOTES:
[457] The second trial of Patrick Calhoun (No. 1437) was begun July
19, 1909. Owing to the illness of one of Mr. Calhoun's
counsel, the trial was suspended on August 16th, and resumed
September 30th. The following day the defendant secured
further continuance until November 15th, upon the ground of
the pendency of a municipal political campaign. After the
election the trial was resumed. On December 9th, it was, by
agreement between the parties continued until January 10th,
when the new District Attorney should be in office.
[458] The motives which prompted Gallagher to flee the city are
among the undetermined elements of the graft cases. Perhaps
recollection of his attempted assassination had something to
do with it. It may be that the defense, which had done so many
extraordinary things during the course of the graft trials,
made it worth his while to go. Gallagher is known to have been
plentifully supplied with money while he was away. An attempt
was made to create the impression that agents of the
Prosecution had been instrumental in getting Gallagher out of
the State. But the attempt, while it confused the situation
somewhat, was not taken seriously. When in August, 1911, Judge
Lawlor dismissed the indictments against the alleged
bribe-givers in the trolley case, he took occasion to say: "I
am more convinced now than I was when these same motions were
urged more than a year ago, that James L. Gallagher is
remaining out of this jurisdiction for a specific purpose. The
future will make that point entirely clear. When his
importance as a witness in any of these so-called graft cases
has ceased there is no doubt that James L. Gallagher will be
again in our midst. If I were able to lay the responsibility
for that situation upon any individual or set of individuals I
repeat that appropriate proceedings would have been instituted
to have the law redressed in that behalf."
Judge Lawlor was right. After the dismissal of the graft cases
Mr. Gallagher returned to San Francisco.
To the intimation of District Attorney Fickert that Gallagher
left the State to embarrass the District Attorney's
administration, Judge Lawlor on one occasion said in an
opinion: "That the former administration may have distrusted
the official intentions of the District Attorney toward these
indictments might be assumed from all the surrounding
circumstances. But it does not seem probable that the former
administration would induce a material and indispensable
witness to leave the State and thereby make it easy for the
District Attorney to secure a result which otherwise might
entail serious embarrassment. So far as the showing is
concerned there is no tangible proof tending to support the
charge of the District Attorney, nor is there any proof which
would justify such an inference."
[459] Fickert's motion had been prepared in advance and was read to
the court. "Since the calling of this case on January 10th,"
he said, "I have made a thorough and careful examination of
the evidence left in the District Attorney's office by my
predecessor, Mr. Langdon, and he informed me on my accession
to the office, that he had delivered to me all the evidence of
every kind and character in his possession or under his
control in this case. I have also examined the transcript of
testimony given at the former trial of this defendant; besides
this, I have made independent search for further evidence.
These examinations convince me that there is not sufficient
legal and competent evidence to justify me, as a sworn officer
of the law, to present this case to a jury.
"My opinion is confirmed by the fact that 42 out of 48 jurors
sworn to try this defendant and the defendant, Tirey L. Ford,
upon the same state of facts, voted 'Not Guilty.' I,
therefore, 'In furtherance of justice,' move the dismissal of
this indictment, on the grounds that the evidence is wholly
insufficient to warrant another trial of this case."
[460] Judge Lawlor was also careful to make clear that if the court
proceeded with the formation of a jury, jeopardy would attach
to the case. He also pointed out that the statute of
limitations had run against the alleged crimes. The following
is from the transcript, the questions being directed to Mr.
Fickert:
The Court: You are aware that if you proceed to form a jury to
try this issue, and the witness does not appear, that jeopardy
has nevertheless attached and that the defendant will be
entitled to ask for his deliverance at the hands of that jury,
whether that witness is produced or not.
"Mr. Fickert: Yes, I am aware of that, if your Honor please.
"The Court: And you are aware further that the alleged
criminal act set up in the indictment is outlawed within the
meaning of Section 800 of the Penal Code; that is to say, that
more than three years have intervened since it is claimed that
that act was committed.
"Mr. Fickert: That is correct, if your Honor please.
"The Court: The witness, James L. Gallagher, gave testimony in
the trial of case 1436 against this defendant. You are aware
that the testimony relating to an indictment cannot be read to
a jury on a retrial of the action; in other words, that if
James L. Gallagher does not appear in this trial his testimony
cannot be presented to the jury."
Fickert suggested that counsel might stipulate that the
evidence be read. But counsel for Mr. Calhoun hastened to
assure Mr. Fickert that counsel would stipulate to nothing of
the kind.
[461] "At the present time," said Judge Lawlor in making this
announcement, "it is the intention of the Court to deal with
this matter, so far as the absence of that material witness is
concerned, and to suspend judgment as to the ultimate attitude
of the District Attorney in respect to this and other causes
before the Court. I do not intend to sit here and preside over
a trial if for any reason, whether it seems sufficient to the
District Attorney or not, the Court reaches the conclusion
that the case is not being prosecuted in good faith. The
Court, in pointing out the duty of the District Attorney on
February 7th, was not inviting a suggestion that we should
proceed to trial without regard to the outcome of that trial
or to its particular features or the manner in which it should
be tried. The Court will try no case, it will not consume its
own time, it will not consume the time of others, it will not
allow the expenditure of public money for the mere purpose of
going through the forms of a trial. The Court must feel in the
end that the people are represented. Now, what its final view
shall be as to the District Attorney will be announced when
the Court deems that announcement pertinent and proper. The
Court has its own views as to what may be done within the
exercise of its prerogative in the event that it does not feel
that the people are represented, and will act upon its own
judgment when that time arrives. At this time the witness
being absent from the jurisdiction of the Court, the Court
points out to the District Attorney his duty under Section
1052 of the Penal Code, to move for a proper continuance of
this action until the Court can be advised as to whether or
not that witness can be produced."
Later, when Fickert suggested that all criminal causes be
transferred to some other department where the judge might be
of a different opinion, Judge Lawlor said:
"I have had no occasion to find fault with your acts in
respect to any other causes that have been brought before this
Court. I am endeavoring to have your mind concentrated upon
one thing, and that is the matters which are before this
Court, and for the prosecution of which you, under your sworn
oath of office are required to give your full attention to.
Your own statement in support of your motion to dismiss this
case evinces in my judgment a disposition not to do your duty.
However, I still say that this matter I bring to your
attention, and ask you to give full reflection upon the
matter. I have no desire in any manner to hamper you. The
process of this Court is at your disposal at all times, in all
causes, and if any person or set of persons be found to be
interfering with the due administration of Justice you will
have a full hearing before this Court in order that you shall
not be so hampered. Your statement concerning these cases is
calculated not alone to affect the fortune of these
undetermined cases, but it is well calculated to affect the
disposition of the other causes and other charges wherein
convictions were had against other persons growing out of this
alleged transaction, and which cases are now on their way for
a determination to the courts of appeal in this State."
[462] "I think your Honor well knows," Fickert had said, "that
certain defendants in this particular class of cases, that
there have not been produced here in Court, and I do not think
ever existed, any evidence against them. I allude to Mr.
Abbott and Mr. Mullally. And I so informed you in your
chambers, and you in words confessed that proposition."
Judge Lawlor took this statement up. The following is from the
transcript:
"The Court: Now, before you pass to those other cases, in
regard to these two cases do you make the statement that I
made any statement to you, in the presence of Mr. Berry, that
I said there was not sufficient evidence?
"Mr. Fickert: I so informed you, and you, in effect, so
stated.
"The Court: Did you so understand it, Mr. Berry?
"Mr. Fickert: That there was no evidence against those men?
"Mr. Berry: I remember Mr. Fickert saying he did not consider
there was any evidence against those men, but I do not
remember the Court's reply: I do not remember that the Court
did reply.
"The Court: I did not. It is not the province of the Court to
pass upon the facts in a criminal case. The facts are placed
before a jury, and the jury pass on the facts.
"Mr. Fickert: I am certainly not mistaken in that matter.
"The Court: You are certainly mistaken in that matter; I was
careful not to make any such statement."
[463] See footnote 459, page 426.
[464] "In dealing with the attitude of the District Attorney," said
Judge Lawlor, "as is manifested by all that I have said upon
that subject, I have endeavored to deal justly with him, to
reach no conclusion myself definitely as to the attitude of
the District Attorney. I sincerely hope that in these cases,
as in all cases that may come before the Court, the District
Attorney will do his full duty. I desire it equally
understood, however, that if the District Attorney in any case
fails of his duty the Court is not going to be recreant and it
is not going to sit here as a minister of justice and permit a
travesty in any form, for any purpose, whatever the views of
the District Attorney may be. Now, I have endeavored to make
it clear that there are two considerations that will affect
the Court in the final disposition of this business: First,
that it will not proceed with the trial of any action where
material testimony is not forthcoming. That would be the
disposition of the Court in any case, but it is especially its
attitude in this case in view of the sweeping statement of the
District Attorney made on February 7th that there is no
sufficient evidence upon which to proceed to trial against any
of these four defendants."
[465] The statement was made repeatedly that Gallagher was not under
subpoena when he left the State. The statement was even
contained in the opinion of the Appellate Court, granting the
writ of mandate that preceded the dismissal of the graft
cases. Judge Lawlor at the proceedings when the cases were
finally dismissed, touched upon this feature as follows:
"The Court: The statement has been made in the opinion that I
am not able to account for its appearance in the showing. This
statement was made that no service had been made upon James L.
Gallagher or that he was not under the order of the Court.
That is a proposition of fact which has never been resolved by
this Court and I am unable to determine how it could be
determined elsewhere, how it could be declared elsewhere, in
the absence of such testimony as I might be able to give on
the subject. I expressly refrained, on an occasion when I made
an extended statement covering these cases, from making any
final word on that subject. I am not prepared now to say so,
because I don't know.
"Mr. Berry: I will state to the Court that I have made a very
careful inquiry in the District Attorney's office, and of the
records, and of the officials in that office in the previous
administration, and I have been unable to secure or to get any
definite information on that point."
[466] Judge Lawlor, in announcing this decision, said in part:
"Section 13 of Article I of the Constitution provides in
part: 'In criminal prosecutions in any court whatever the
party accused shall have the right to a speedy and public trial.
* * *.' Section 1382 of the Penal Code declares in part: 'The
court, unless good cause to the contrary is shown, must order
the prosecution to be dismissed in the following cases: * * *.
2. If a defendant, whose trial has not been postponed upon his
application, is not brought to trial within sixty days after
the finding of the indictment, or filing of the information.'
"This provision has repeatedly been declared to be a statutory
expression with reference to the section of the constitution
to which the Court has referred. It has been held to mark the
period within which a party accused of crime is to be brought
to trial, unless good cause to the contrary is shown. About
the general proposition of law involved in the determination
of the present motion there can be little ground for
contention. The perplexity usually arises in the determination
of what the reserve language of Subdivision 2 of Section 1382
of the Penal Code may be included to cover. An application of
this character must be determined according to the peculiar
circumstances surrounding the application." * * *
"The Court is of the view that so far as the determination of
the motion itself is concerned the onus is on the People to
show good cause, which would take the case out of the
operation of the constitutional provision and the statute
referred to. The Court, in that view of the matter, has
addressed the District Attorney as to what his attitude is
with respect to the motion, and the District Attorney has made
it plain that it is not his intention to take any step toward
meeting the application of the defendant to have the causes
dismissed. In the view which the Court takes of the general
attitude of the District Attorney toward the four defendants
at bar, the Court feels it is a case where it must act, and to
the extent that it may be needed, to protect the public
interests. The Court has judicial knowledge of the history of
the charges against these four defendants. It knows judicially
that a material, and, it is claimed, an indispensable witness
to the prosecution of these charges is without the
jurisdiction of the State. It is not prepared, on any evidence
before it, to charge the responsibility of the absence of that
witness either to the former administration or to the present
administration in the District Attorney's office. The fact,
however, that the witness is absent from the State and not
within reach of the process of the Court, is a fact
established before the Court at this time.
"It is not the intention of the Court to disregard the rights
of this or any other defendant, that may be urged before this
Court, but, it is likewise the disposition of the Court, to
see that the public interests are safeguarded, and that no
arrangement between the defendants and the sworn officer of
the law shall be suffered to direct and control the action of
this Court. And in that view of the matter the Court has
reached the conclusion that it is its duty to continue these
causes further, in order to see whether or not the missing
witness can be secured, and if he cannot be secured within
such time as this Court may deem to be proper and which would
take the case out of the exception contained in the provision
of the statute, and the constitutional provision, then to deal
with this motion.
"It is therefore ordered that the determination of the pending
motion in the causes against the four defendants named be
continued for further hearing until 10 a. m., Thursday, July
14, 1910."
[467] Judge Lawlor's decision will be found in full in the Appendix,
page i.
[468] See Chapter XV.
[469] Calhoun's denunciation of Judge Lawlor was as follows:
"Mr. Calhoun: May it please your Honor: I have been educated,
sir, to have respect for the courts. I have sat in your court
under circumstances that would have tried the patience of any
American. Throughout these trials I have sought, sir, to give
you under most trying circumstances that respect to which your
office entitles you. But, sir, I cannot sit quiet and listen
to the vile insinuations which you yourself have stated there
was no evidence before you to justify. There have been
periods, sir, when the greatest honor that could come to a man
was to go to jail; and as an American citizen I say to you
that if you should send me for contempt it will be heralded
all over this country as an honor. You have seen fit, sir, to
send three of the most distinguished counsel of this State to
jail. Why? Because they have sought to express in terms of
respect, and yet in terms of strength, their protest against
injustice----
"The Court: Mr. Calhoun----
"Mr. Calhoun: There is a time--pardon me, your Honor--when
every man has a right to be heard----
"The Court: Mr. Calhoun----
"Mr. Calhoun: Now, before I take my seat, I desire further to
say this, that any insinuation that implies either that I was
a party to any obstruction of justice, or that I was a party
to the absence of this witness, or that I have sought to
control the District Attorney's office of this city is untrue.
There is no evidence before this Court. You yourself know it."
[470] Judge Lawlor's term of office expired in January, 1913. At the
1912 November elections he was a candidate for re-election.
The force of the influence of the graft defense was thrown
against him. Nevertheless, he was re-elected to serve as
Superior Judge of the City and County of San Francisco until
January, 1919. In November, 1914, however, he was elected to
the Supreme Bench of the State, his term of office beginning
in January, 1915, and ending in January, 1927.
[471] Of the three Appellate Judges who granted this writ, one of
them, Kerrigan, was prominent in the flash-light picture taken
at Santa Cruz during the 1906 State Convention, in which Ruef
occupied the center position of honor. See Chapter IV.
[472] Assistant District Attorney Berry on the occasion of the
dismissal of the indictments said on this point: "If the men
who are involved in this transaction have transgressed the
laws they are sowing the wind possibly which may reap the
whirlwind by breaking down the institutions of the land. I
regret exceedingly, if these men are guilty of the offense
with which they have stood charged here, that they cannot be
convicted. I assure the Court and I state here that it would
be my purpose to follow these cases, if these defendants are
guilty and the evidence were had, to the uttermost in order to
bring about the ends of justice. It is no doubt in the minds
of the community that where men of prominence and where men of
wealth are concerned, and are brought before the bar of
justice and justice is not had, that those who are less
fortunate in influence and means are thereby made to feel and
believe that this is not a government for those who stand
before the law equal with those who stand with the tremendous
power of influence behind them."
[473] The seven Justices of the Supreme Court took no less than four
views of the points raised in the Glass case. The majority
opinion was written by Justice Henshaw, and concurred in by
Justices Melvin and Lorigan. Chief Justice Beatty concurred in
the judgment, but not in all the particulars of the opinion.
In signing the decision, the Chief Justice adds: "I concur in
the judgment of reversal and in most particulars in the
opinion of Justice Henshaw. I shall, if other pressing duties
permit, present my views in a separate opinion." (See 112
Pacific Reporter, page 297.) The dissenting opinion was
written by Justice Shaw and concurred in by Justice
Angellotti. A third opinion was written by Justice Sloss.
Justice Sloss, after defending the single point in the
majority opinion in which he concurs, concludes: "On each of
the other points discussed in the opinion of Justice Henshaw,
I agree with the dissenting members of the court (Shaw and
Angellotti) that no prejudicial error was committed."
The fourth opinion, which the Chief Justice intimated he might
file, was not filed.
[474] The following from the San Francisco Call of August 2, 1912,
indicates the completeness of the triumph of the defense
campaign:
"Mrs. Theodore Halsey, wife of Theodore V. Halsey, appeared
before Superior Judge Lawlor yesterday morning on a bench
warrant in the case of Louis Glass, indicted for bribery in
the telephone cases growing out of the so-called Graft
Prosecution. She was in court to explain the absence of her
husband from the State, whose appearance is wanted if Lawlor
orders Glass to trial.
"Attorney Bert Schlesinger appeared with Mrs. Halsey,
explaining the bench warrant was void inasmuch as Mrs. Halsey
was not a fugitive. He said he did not wish to impede the
trial in any way and would allow her to answer any questions
propounded by the Court.
"Lawlor asked Mrs. Halsey, through her attorney, where her
husband was. Mrs. Halsey was not compelled to take the stand.
She said Halsey left San Francisco six weeks ago because of
ill health, going to Nevada, and that she has not heard from
him in a week.
"Assistant District Attorney Berry said a motion was before
the Court to dismiss the indictments pending against Glass and
he wished to know the Court's intention. Lawlor said he
believed Halsey and Emil J. Zimmer, who is said to be in
Europe, were competent witnesses against Glass, and it was his
duty to try Glass again. He said the result of the former
Glass trials showed Halsey had knowledge of the source of the
bribe money and who paid it to the Supervisors.
"Lawlor continued the cases of Glass until August 12th, to
learn from the District Attorney if the Prosecution has
exhausted all its resources in the matter.
"Schlesinger and Mrs. Halsey were about to leave the courtroom
when Lawlor said, 'I trust, Mr. Schlesinger, you will inform
the Court of the whereabouts of Mr. Halsey, if you learn in
the meantime.'
"'I will assist the Court in any way possible,' replied
Schlesinger. 'But I regard all these Graft Prosecutions as
corpses and the mourners have long since ceased to mourn.'
"The Judge said nothing in the record showed such a condition.
Detective Sergeant Prool took the stand and said he had
learned nothing more of the whereabouts of either Halsey or
Zimmer."
[475] Judge Dunne, until the last, stood as staunchly for effective
prosecution of the graft cases as had Judge Lawlor.
CHAPTER XXIX.
RUEF'S LAST REFUGE FAILS.
That a jury of twelve men had found Ruef guilty of bribe-giving did not
mean necessarily that the broken boss would be confined at San Quentin,
the prison to which he had been sentenced to serve his fourteen-year
term. Indeed, the probabilities were very much against his suffering any
such indignity. Ruef had, at the test, continued "true to his class"; he
had not assisted the State in bringing the bribe-givers to account. Men,
powerful in financial, social and political circles were unquestionably
under the greatest obligation to him. He had not "gone back on his
class." His "class" owed it to him to save him from stripes, as Ruef by
his course had beyond question saved many of his "class" from stripes.
Having been convicted by a jury, the first move was for Ruef to appeal
to the trial judge for a new trial. This appeal was denied him. Ruef
then appealed from the judgment of the trial court to the District Court
of Appeal. The three justices of the District Court of Appeal found
nothing in Ruef's contention to warrant the granting of a new
trial.[476] Thus four judges found that Ruef's trial had been fair, even
technically fair. But Ruef's possibilities were not exhausted.
The Supreme Court could, if four of the seven members were so inclined,
grant him a rehearing, and to the Supreme Court Ruef applied.
The California State Constitution provides that "the Supreme Court shall
have power to order any cause pending ... before a district court of
appeal to be heard and determined by the Supreme Court. The order last
mentioned may be made before judgment has been pronounced by a district
court of appeal, or within thirty days after such judgment shall have
become final therein."
The District Court of Appeal found against Ruef on November 23, 1910;
this action became final thirty days later, or on December 23, 1910. The
Supreme Court had thirty days after December 23, that is to say, until
January 22, 1911, to grant Ruef a rehearing, if a majority of the seven
Supreme Justices so decided. If the Supreme Court failed to act before
the close of January 22, Ruef, unless pardoned or paroled, would have
to go to State prison.
Ruef, on December 31, 1910, petitioned the Supreme Court for a
rehearing. On January 23, announcement was made that the Supreme Court,
by a four to three decision, had decided to grant Ruef's petition. The
decision was received with protest from one end of the State to the
other.[478] The Legislature was in session at the time. Senator George
W. Cartwright of Fresno introduced a resolution requesting the
Assembly--where impeachment proceedings must originate--to take such
steps as might be deemed necessary for investigation of the Supreme
Court's conduct.
And finally there came the rumor--at first not generally believed, but
later confirmed by the Supreme Justices themselves--that one of the
Justices at least had signed the order granting Ruef his rehearing
before the Attorney-General had filed his brief in answer to Ruef's
petition. The Justice who had thus acted was Justice Henshaw, the same
Supreme Court Justice who occupied prominent position in the picture of
the banquet scene at the 1906 Santa Cruz convention, in which Ruef
appears in the central position of honor.[480]
The facts later brought out involved the following dates:
December 31, 1910--Ruef's petition for rehearing was filed in Supreme
Court.
January 10--W. H. Metson was granted permission to file a brief in the
case as _Amicus Curiae_.
January 10--Justice Henshaw signed the order granting Ruef a rehearing.
January 11--Justice Henshaw left the State and was absent until after
the order granting Ruef a rehearing had been filed.
January 12--Metson filed his brief as _Amicus Curiae_.
January 12--The Attorney-General filed his reply to Ruef's petition for
a rehearing.
January 19--Justice Melvin signed the order granting Ruef's petition.
January 20--Attorney-General filed reply to Metson's brief.
January 21--Chief Justice Beatty, and Justices Shaw, Angellotti, Lorigan
and Sloss met in the chambers of the Chief Justice for consultation
regarding Ruef's petition. Justice Lorigan signed the order granting the
petition. Justices Shaw, Angellotti and Sloss declined to concur in such
order, and Chief Justice Beatty reserved his decision in the matter
until January 22, 1911.
January 22, 1911--(Sunday, the last day on which the order could be
signed) Chief Justice Beatty signed the order, his being the fourth name
on the document, four signatures being necessary to make it effective.
January 23--A typewritten copy of the order was filed with the Clerk of
the Court, the original being retained in the office of the secretaries
to the Justices.
Up to this time, eleven judges had passed upon Ruef's case. Seven of
them--one Superior Judge, three Judges of the District Court of Appeal
and three Justices of the Supreme Court--had decided that Ruef had had a
fair trial, that no technicality could be invoked to save him. Four of
the eleven judges, in a way which, to the lay mind at least, was
somewhat irregular, had decided to grant a rehearing. The public was not
at all backward in expressing the opinion that this would mean a new
trial; and that under conditions as they were at San Francisco, Ruef
would not for a second time be convicted.[481] As is usual in such
cases, the public was dissatisfied, suspicious, indignant, but without
plan or remedy. Some demanded investigation at the hands of the
Legislature; others wanted impeachment[482] proceedings instituted. Mr.
William Denman, a leader of the California bar, urged before the Senate
Judiciary Committee that the Legislature owed it to the Supreme Court,
as well as to itself and to the public, to make thorough investigation,
and demanded of the committee if the Legislature on proper showing would
declare the office of a Supreme Justice vacant.
Senator Shanahan, a member of the committee, was quick to reply that
under such a showing the Legislature would certainly act. "But," added
Shanahan--and here he touched the weak point of impeachment
proceedings--"it would take months if not years. That is why impeachment
proceedings will not be instituted. Impeachment proceedings from the
trial of Warren Hastings to the present time have proved
unsatisfactory."
But, however individuals differed on the question of impeachment
proceedings, the general attitude was that the Attorney-General should
take steps, if such course were practical, to have the order granting
Ruef a rehearing set aside. This the Attorney-General did. He attacked
the order before the tribunal which had made it, the highest tribunal in
the State, the only one to which appeal could be made.
And the Supreme Court set the order aside, declaring it to be
"ineffectual for any purpose and void."
But the Supreme Court did not set the order aside because Justice
Henshaw had signed the document before the argument of the prosecution
had been heard. The order was set aside on the ground that Henshaw,
being absent from the State when the signature of the fourth Justice was
attached thereto, was at the time, being absent from the State, unable
to exercise any judicial function as a Justice of the Supreme Court.
Without Henshaw's signature, the signatures of but three of the Supreme
Justices appeared on the order. As the signatures of four of the
Justices were required to make the order effective the Court declared it
to be worthless.[483]
Thirty days from the time the judgment of the District Court of Appeal
became final having expired, the Supreme Court could not interfere
further. Ruef had lost his last technical play on a technicality. He
went to State prison.
But Ruef did not go to State prison because a jury of twelve men had
found him guilty of offering a bribe to a Supervisor; he did not go to
State prison because seven out of eleven judges who passed upon the
questions involved had found that he had had a fair trial. Ruef went to
State prison when he did because a member of the Supreme Court of
California was absent from the State at a time inopportune for Ruef.
Ordinarily, after his failure in the Supreme Court, Ruef would have had
two more chances for escaping the full penalty of his bribe-giving,
namely, parole at the hands of the State Board of Prison Directors, and
pardon from the Governor.
But again was Ruef unfortunate. Hiram W. Johnson, as Governor of
California, sat at Sacramento. He had gone into office pledged "to kick
the Southern Pacific machine out of the State government." He was
keeping his pledge. There was no pressure which men of Mr. Ruef's
"class" could bring upon Governor Johnson to move him to grant Ruef
freedom.
The possibility of parole was as remote, although the State Board of
Prison Directors--who in California are appointed for ten-year
terms--continued for a time under the old order.
One of the five directors was Tirey L. Ford[484] of the United Railroads.
Ruef went to prison convicted of a charge of bribing a Supervisor to
vote to give the United Railroads its overhead trolley permit. The
evidence indicated, if it did not show, and Mr. Ruef has since
confessed, that this money came to him from General Ford. Ruef, because
of the crime, found himself confined in a prison of which General Ford
was one of the five governors, with power of parole in his hands. But
it developed that Governor Johnson had power to set aside such parole.
So Ruef could expect little from even the Board of Prison Directors.
Scarcely had Ruef been placed behind the bars, however, than a
State-wide campaign was inaugurated to compel his pardon or parole. The
public was treated daily by the newspapers with descriptions of the
discomfitures[485] which Ruef was suffering. When he was found, for
example, smuggling sweet chocolates into prison, and was punished for
it, the Ruef-friendly press cried out at the cruelty and
unreasonableness of such punishment.[486]
The suffering which his imprisonment has brought upon the members of
his family is dwelt upon at length. Letters from them, pleading for
assistance for their imprisoned relative have been received by many
whose assistance it was thought might prove effective in securing his
release. But when Ruef was brought back from San Quentin prison to San
Francisco to testify at Schmitz's trial, the pathetic story was
published broadcast that these letter-writing relatives had been kept in
ignorance of his imprisonment, and thought him to be traveling in
Europe.[487]
One of the most contemptible stories circulated to create public opinion
for his release was that Ruef had been made scapegoat because of his
religion. Ruef is a Jew, circulators of this story insisted that he is
in prison because he is a Jew, while the gentile bribe-givers go free.
As a matter of fact, the gentiles associated with Ruef have gone free
because of Ruef's treachery to the graft prosecution, but this does not
prevent the circulation of the story.
A saner view, breathing of better citizenship, came from Rabbi Stephen
S. Wise of the New York Free Synagogue. "Israel," said Rabbi Wise, "is
not responsible for Ruef's crimes any more than the Roman or Protestant
Church is responsible for the crimes of its communicants. But we of the
House of Israel in America would be in part answerable for Ruef's
misdeeds unless we made it clear, as we do, that Israel is unutterably
pained by this blot upon its record of good citizenship in America."
By far the most astonishing support of the movement to free Ruef came
from the San Francisco Bulletin and Fremont Older, its managing editor.
Older was one of the strongest supporters of the graft prosecution, as
was the paper under his management. But once the graft prosecution was
concluded, Older and the Bulletin became the most persistent of the
supporters of the movement to secure Ruef his freedom.[488] Largely
through Older's influence, men of prominence throughout the
country--with apparently no very clear knowledge of the situation--have
been induced to express themselves as favorable to Ruef's release.
In the publicity campaign for Ruef's release which gives no indication
of abatement, Ruef, and those who seek his release, are praised in the
most extravagant terms, while those who will not enroll themselves in
his interests are as extravagantly condemned.[489]
But in spite of all that is being done to create public opinion
favorable to Ruef's release, the sober expression of machine-free press
and public is that Ruef should be treated both on the score of parole
and confinement precisely the same as any other prisoner.[490] This
attitude was clearly presented by the Fresno Republican at the time Ruef
was found smuggling chocolate sweets into the prison.
In the attitude of prison officials toward Ruef, the Republican pointed
out, there are two alternatives. "One," the Republican went on to say,
"is the course of Warden Hoyle, in treating Ruef like any other
prisoner, and disciplining him humanely but sternly, for any infraction
of the necessary prison rules. The other is to let Ruef have privileges
which the other prisoners do not and can not have. News travels nowhere
faster or surer than in prison. If Ruef bribes guards, the officials may
not know it, but the prisoners will. If Ruef may have smuggled sweets,
the other prisoner, whose every nerve-cell shrieks in agony for cocaine,
but who knows he will be thrown in the dungeon if he smuggles it, will
have no illusions about the smuggling privilege. If the very minions of
justice do injustice, as between Abe Ruef and Convict No. 231,323, every
man in that vast prison will be taught that he is the victim not of
justice, but of force and favoritism. And if Ruef, at the expiration of
a bare year, were to be paroled out, every other convict, whose very
application can not be heard until he has served half his term, will
know that he is suffering the penalty, not of his crime, but of his
poverty and friendlessness. Shall Abe Ruef be suffered to teach that
lesson? Shall he corrupt San Quentin prison as he did San Francisco? Or
shall there be at last one place found where even Abe Ruef gets exact
and equal justice?"
Ruef is getting equal justice at State prison, not because he corrupted
San Francisco, not because a jury of twelve citizens found him guilty,
not because seven out of eleven judges declared against him, but because
the political machine, of which Ruef was one of the most powerful
leaders, has been broken in California. Under the old order, to have
kept Ruef jailed would have been impossible.
FOOTNOTES:
[476] See Cal. App. Rpts., vol. 14, page 576.
[478] Said the Sacramento Bee in an editorial article discussing
this order, the day after it was made public, January 24,
1911:
It cannot be denied that this order, by a bare majority of the
Supreme Court and--with the single exception of the Chief
Justice, by the three of its members least esteemed and
respected by the public--has excited disgust and exasperation
throughout California. There is a strong popular feeling and
belief that the Supreme Court should not thus have interposed
to save from punishment the most notorious scoundrel and
corruptionist in California, a man known to everybody as
having enriched himself by systematic grafting and by the
bribery of public servants in the interests of corporations, a
man with many indictments resting against him, but convicted
only on one.
"What adds to this general disgust and indignation over the
Supreme Court's order is apprehension that the rehearing before
that tribunal may result in the grant of a new trial for Ruef,
a reversal which in all probability would be equivalent to a
final discharge. Such changes have taken place in San Francisco
in the last two years, especially in the office of the District
Attorney, that a new trial would have small chance of ending in
conviction.
"No reasons are given by the Supreme Court for its order for a
rehearing, but presumably they are of a purely technical sort,
for the fact of Ruef's guilt was abundantly proved on the
trial."
[479] The Cartwright resolution was in full as follows:
"Whereas, The Supreme Court of this State on or about the 23rd
of January, 1911, rendered a decision in the case of the
People of the State of California vs. Abraham Ruef, in which
the defendant is granted a rehearing; and
"Whereas, Various newspapers have published criticisms
condemning said decision, and intimating that the Justices
participating therein were controlled by corrupt and unworthy
motives; and
"Whereas, The integrity of our courts has been frequently
assailed by public speakers and by many of our citizens, all
of which tends to destroy the confidence of The People in the
purity and integrity of our courts of justice; be it
"Resolved, by the Senate, That the Assembly be requested to
appoint a committee of the Assembly, such committee to be
authorized, empowered and instructed to investigate the whole
subject matter and particularly to investigate said decision,
the grounds upon which the decision is based and the conduct
of the Justices of the Supreme Court in relation to said
decision, and that the committee report to the Assembly the
results of such investigation, with such recommendations as to
the committee may seem meet and proper in the premises; be it
further
"Resolved, That said committee shall have power to summon
witnesses, and to send for persons and papers and to issue
subpoenaes and compel attendance of witnesses when necessary."
[480] See Chapter IV.
[481] This view was entirely justified by the outcome in the Coffey
case. Coffey was one of the boodle Supervisors who had at the
test refused "to go back on his class." He was tried for
bribe-taking and convicted. In the Court of Appeal practically
the same points were raised in his favor as were raised in the
Ruef case. The Appellate Court refused to interfere. The
Supreme Court, by a three to four decision, granted Coffey a
rehearing and later a new trial. The line-up of the eleven
judges was the same in Coffey's case as in Ruef's--seven found
Coffey had had a fair trial; four found that he had not. The
four--under the rules of the legal game--were more potent than
the seven. The jury verdict was nullified. The indictments
against Coffey were finally dismissed. Had the Supreme Court's
order for a rehearing of the Ruef case stood, the outcome
would have unquestionably been the same.
[482] Some of the ablest men in the State urged impeachment
proceedings. "If the charges," said United States Senator John
D. Works in a letter to State Senator Hewitt, "made against
Judge Henshaw by the Attorney-General of this State, under
oath, are true, why is it the Legislature of this State before
this has not commenced impeachment proceedings against him?
"The legislature has no right to shrink from this duty and
responsibility and relieve itself from taking such a step by
relegating that duty and responsibility to The People of the
State by the enactment of recall legislation. If Judge
Henshaw, or any other judge, has violated his duty to the
State and betrayed his office as the charges made against him
indicate, the duty of the legislature is imperative, and that
duty should be performed without hesitation and without
delay."
Justice Henshaw, in discussing Judge Works' letter, in an
interview in the San Francisco Examiner, February 15, 1911, is
quoted as saying: "All the charges made by Attorney General
Webb in his affidavit attacking the Ruef rehearing order of
January 30th are true. The orders were signed in the manner
stated and I told him so when he visited my office. There was
nothing unusual about it. It was done in accordance with the
usual practice of this court.
"We seldom meet in session to sign the orders. There may be
twenty cases to be passed on in one week. Each Justice looks
them over at his leisure and signs what orders he agrees to.
"I was out of the State, as Mr. Webb says, and at the time
that he says. I did not even imagine that there was a legal
point involved. The practice never has been questioned
before."
[483] The following is from the Supreme Court decision revoking the
Ruef order for a rehearing (see California App. Reports, Vol.
14, page 576): "The moment Justice Henshaw left the State, in
view of the authorities already referred to, he became unable
to exercise any judicial function as a Justice of the Supreme
Court, in this State or out of it, and this disability
continued during the whole period of his absence. During that
time his situation was the same as if he had absolutely ceased
to be a member of this court. It is true that there was a
suspension, only, of his judicial power, instead of a final
abrogation thereof, but the suspension, while it continued,
was as absolute in its effect on his judicial power as would
have been a complete vacancy in his office. Assent to or
concurrence in a decision or order of the court being the
exercise of a purely judicial function, his previous proposal
to concur in a proposed order, one that had not yet been made
and one that had not yet received the assent of other justices
making it an accomplished decision, temporarily ceased to be
effectual for any purpose, and so continued ineffectual for
any purpose during the whole period of his absence. Such
previously indicated willingness to concur could not
accomplish that which the absent justice himself could not
accomplish. The time having expired before he returned it
follows that he never concurred with even a single other
justice in the purported order. (1) Admittedly this order, if
it ever did become effectual, did not become so until January
22, 1911, when the fourth justice appended his name. At that
time, however, Justice Henshaw could not effectually join
therein, because of his absence from the State, and his
previously indicated willingness to join therein could have no
legal effect. The result is that only three justices of this
court concurred in the purported order, and as such order
could be made only by the concurrence of four justices, it was
ineffectual for any purpose and void."
[484] Ford's term as prison director expired January 12, 1914. He
continued in office until his term had expired and his
successor had been appointed. After Ruef had confessed that
the trolley bribe money had come to him through Ford, the
Sacramento Bee of August 30, 1912, after reciting the
allegations of Ruef's confession, said:
"There, in brief, is the tale which Abraham Ruef tells with
much particularity. It is now in order for the Board of Prison
Directors to ask the resignation of Prison Director Ford.
"Undoubtedly, Governor Johnson would make a demand to that
effect were he in the State.
"Much sorrow, if not sympathy, has been felt for Tirey L. Ford
all over California. The Bee has expressed some itself. The
feeling has been that a man of naturally fine principles and
honorable sentiments had been warped by his environments, and
had done under instructions that at which his better nature
rebelled.
"It would be futile now to discuss what Tirey L. Ford should
have done and should not have done; or to declare that no
temptation should have led him to perform any other than legal
work for the United Railroads.
"The Bee will say as little as it can say conscientiously
under the circumstances. Human nature is human nature the
world over. And The Bee men cannot forget the long, long years
of intimate friendship with and faith in Tirey L. Ford. But
every consideration of the eternal fitness of things demands
that he should no longer remain a member of the State Board of
Prison Directors."
[485] The following is a fair sample of the articles descriptive of
Ruef's suffering in prison, which have been inflicted upon the
California public ever since Ruef donned stripes; it appeared
in The San Francisco Bulletin of December 21, 1912: "Ruef is
an epicure. As discordant sounds do violence to the feelings
of a musician gifted with an exquisite ear, so coarse, badly
cooked or tasteless food does violence to the epicure who is
gifted with exquisite nerves for inhaling, tasting and
appreciating delicate flavors. The gastric juices of the
epicure cannot become freely active on mere hunger as with men
not so endowed. Digestion with the epicure must wait upon the
fine dictates of the palate; and a stomach so guarded cannot
wantonly change to an extreme opposite without material
suffering. To eat merely to be filled, to overeat, to eat
hurriedly, is for the epicure, as one epicure puts it, 'to
commit moral sins.' Ruef since his imprisonment has been
compelled to do all these things."
[486] To this complaint of cruelty to Ruef, The Fresno Republican
made sharp answer: "A visitor," said The Republican, "smuggled
articles to Ruef--nothing more dangerous than sweet chocolate
and newspaper clippings, to be sure, but still a covert
violation of a necessary rule--so Ruef is deprived of visitors
and letters for two months, and the automatic application of a
general rule postpones his application for parole for six
months. Whereat there is wailing and woe, and the San
Francisco Call says that Ruef's friends regard it as
particularly unfortunate that he should be deprived of
visitors just at the time when a movement for his parole is
going on.
"To all: Let us be sympathetic. Only let us make it general.
Ruef shall have his sweet chocolate. But all the other
prisoners shall have it too. Ruef shall sneak things into
prison, inside his blouse, by bribing the guards. But all the
other prisoners shall have all the like privileges, though it
is known that some of them would prefer dope, daggers and
dynamite to sweet chocolate."
[487] Commenting upon this the Sacramento Bee, in its issue of
February 9, 1912, said: "In an effort to create sympathy for
Abraham Ruef, a story was originated at San Francisco, and has
found wide publicity as news, that the aged mother of the
felon has been kept in ignorance of his imprisonment, and does
not even know of his conviction for bribery.
"Yet letters purporting to come from and to be signed by
Ruef's mother, and pleading for his parole, have been received
by The Bee and other newspapers for months past. Either these
letters were forgeries and fabrications, or this tale of the
mother's ignorance of Ruef's confinement is mere fiction.
"In either case a contemptible trick has been played by some
agency both active and unscrupulous in seeking to promote
Ruef's release. After this the public and the newspapers may
well be suspicious of sympathetic stories respecting Ruef and
his confinement. If he is personally responsible for the
effort to exploit his mother in the manner here related, he is
even a more despicable specimen of humanity than the known
facts of his career would indicate."
[488] Older, in a letter to Dr. S. W. Hopkins, of Lodi, gives his
reasons for working for Ruef's release as follows:
"San Francisco, September 25, 1911. Dr. S. W. Hopkins,
President Board of Health, Lodi, Cal. Dear Sir: If you read my
article in the Survey, I think there is much in it that you
did not understand. Perhaps I did not make myself clear. I
tried to. I wanted those who read the Survey article to
believe that I at least no longer think we are going to better
the world by punishing men individually. I do not feel that it
is good for people or for the editor of the Pacific Christian
to want vengeance administered to our brothers and sisters. I
think vengeance, and by vengeance I mean punishment, makes us
all worse rather than better. I have asked for mercy for Ruef
because I felt that I, above all others, had done most to
bring about his downfall. If you have followed the long fight
the Bulletin has made during the past eight or nine years, you
will recall that I was fighting Ruef long years before the
city woke up. You will also recall that I attacked him
bitterly with all the invectives that I could personally
command, and all that I could hire. I cartooned him in
stripes. I described him on his way to San Quentin; told how I
thought he would act en route, and what his manner would be
when the barber shaved his head, and how he would feel when
locked up in a cell. I was vindictive, unscrupulous, savage. I
went to Washington and enlisted Heney in the fight. Burns
came, and Spreckels joined in the chase. Then I pursued with
the same relentless spirit in the wake of these men. At last,
after eight years of a man-hunting and man-hating debauch,
Ruef crossed over and became what I had wanted him to be, what
I had longed and dreamed that he might be--a convict, stripped
of his citizenship, stripped of everything society values
except the remnant of an ill-gotten fortune. It was then I
said to myself: 'I have got him. He is in stripes. He is in a
cell. His head is shaved. He is in tears. He is helpless,
beaten, chained--killed, so far as his old life is concerned.
You have won. How do you like your victory? Do you enjoy the
picture now that it is complete? You painted it. Every savage
instinct in your nature is expressed on the canvas.'
"My soul revolted. I thought over my own life and the many
unworthy things I had done to others, the injustice, the
wrongs I had been guilty of, the human hearts I had wantonly
hurt, the sorrow I had caused, the half-truths I had told, and
the mitigating truths I had withheld, the lies I had allowed
to go undenied. And then I saw myself also stripped, that is,
stripped of all pretense, sham, self-righteousness, holding
the key to another man's cell. I dropped the key. I never want
to see it again. Let it be taken up and held by those who feel
they are justified in holding it. I want no more jail keys.
For the rest of my life I want to get a little nearer to the
forgiving spirit that Christ expressed.
"Isn't what I am accusing myself of, true of all of us? Think
it over. Think of your own life. Think of the lives of those
around you, and see if you cannot discern that we are all
guilty. And then think whether or not you believe that society
will be benefited by denying Ruef a parole, which only gives
him a half liberty and still holds him under the restrictions
of the prison until his term is finished.
"I am surprised at the tone of the article you sent me,
published in the Pacific Christian. It reads like a chapter
out of the Old Testament rather than the New. But I fear that
the world is being governed more upon the lines of the Old
Testament than the New. I agree with the article about the
young men who have been sent to prison for years. I would
release them all if I could. But I can't. I can't even release
Ruef, because society has not advanced far enough to make it
possible. But I can at least be true to myself and express
what I honestly feel.
"I wish as a favor to me that you would send a copy of this
letter to the Pacific Christian, as I am leaving for the East
and will not have time. I should like them to know what I am
writing you. Sincerely yours,
"Fremont Older."
[489] The San Jose Mercury, controlled by Congressman E. A. Hayes,
in its issue of September 22, 1911, published one of these
Ruef campaign articles. The following description of Ruef
occurs:
"Not many months have gone since Ruef found domicile in States
prison. But what changes Time has wrought in that brief
period. The little man sits in his cell, lonely and solemn, as
he meditates on the singularities of mankind. With no
bitterness in his soul, without a thought of revenge twisting
his sense of peace and good will toward man, he passes the
time planning the comforts of his fellow unfortunates and
reading and rereading the letters that come so regularly from
the loved ones whose burdens he so gladly carried and to whose
joy he so gladly contributed. He is neither unhappy nor
without hope."
The same article contains another word picture--of Francis J.
Heney. It reads:
"But if Older has turned 'right about face,' Heney, the other
member of the firm, has not. He remains the unforgiving,
snarling, short-haired bulldog, with his hand against every
man, and every man's hand against him."
Such is the character of the publicity campaign to release
Ruef from prison.
[490] When in 1914 Governor Johnson became candidate for
re-election, extraordinary efforts were made to compel him to
pardon, or to consent to the release of Ruef on parole. So
persistent were Ruef advocates, that the Governor found it
necessary to issue a statement of his position regarding Ruef.
That statement will be found in full on page xxviii of the
Appendix.
CHAPTER XXX.
CONCLUSION.
After the McCarthy-Fickert election there were rumors that the graft
defense, flushed with its successes in the overthrow of the prosecution,
would resort to reprisals, by singling out persons prominent in the
movement to enforce the law, for trumped-up charges and possible
indictment. But aside from an abortive attempt to make it appear that
former Supervisor Gallagher had fled the State at the behest of William
J. Burns, reprisals of this nature were not attempted.
The reprisals came in more subtle form. Members of the Oliver Grand Jury
which had brought the indictments against Ruef and his associates, found
themselves marked men in business, political and social circles. A
member of the faculty of the State University who had been active in
defending the cause of the prosecution, found his salary remaining
practically stationary, while his associates received material advances.
When the directorate of the Panama-Pacific International Exposition
Company was formed, financiers who had supported the prosecution found
themselves barred from directorships. It may be said, however, that the
graft defense was well represented, one of the Exposition directors at
least, Thornwall Mullally, having been one of those indicted in the
graft cases.
When the suggestion was made that James D. Phelan be made Pacific Coast
representative in President Wilson's cabinet, at once the graft defense
pack was on his track, openly naming Mr. Phelan's assistance to the
prosecution cause as reason sufficient why he should not be given the
cabinet appointment.[491]
On the other hand, all danger of confinement in State prison being gone,
the graft defense, through its various newspapers, urged incessantly
that the past be forgotten, that San Francisco interests get together
for the good of San Francisco. But this "getting together" meant the
banishing from political, social, and, as far as practical, business
circles, all who had sided with the prosecution, thereby giving control
of all activities to sympathizers with the graft defense.
This is well recognized throughout the State, and the exclusive
"get-together" movements are received with general ridicule.[492] The
graft defense does not stand well in California. The "vindication" that
was heralded throughout the country when the indictments were dismissed
has not been accepted in California as generally as those most
immediately affected could have wished.