Machine Defeats the Stetson Bill.
Southern Pacific Attorney Succeeds in Clouding the Issue - Railroad
Claquers Active in Advocating the Maximum Rate, Which Was Designated as
Little Better Than No Rate At All - No Fight Over the Bill in the
Assembly.
Having succeeded in transferring the railroad regulation measures from
the Senate Judiciary Committee, the majority of whose members were
anti-machine, to the Committee on Corporations, the majority of whose
members were machine, the machine proceeded to discredit the Stetson
bill, by making it appear that the State Constitution by implication
prohibits the fixing of absolute railroad rates, and provides that the
Railroad Commissioners may fix maximum rates only. Peter F. Dunne was
brought to Sacramento to make this argument before the Senate Committee
on Corporations.
Dunne, in his address, showed greater ability than integrity. When he
had finished, even the anti-machine members of the Committee were
completely befuddled. Walker, one of the members of the Committee who is
not a lawyer, groped in utter darkness thereafter, until he finally
stumbled into the arms of Eddie Wolfe and Frank Leavitt and Jere Burke,
when the final vote on the railroad bills was taken. It was Walker's
only stumble of the session. But for his unfortunate vote against the
Stetson bill and for the Wright bill, Walker would have made an
exceptionally clean record.
Not only did Dunne befog the lay Senators of the Committee, he shook the
faith of men like Miller and Roseberry - both lawyers - on the
constitutionality of the absolute rate. Miller recognizes that the
absolute rate is the only practical rate; but until the end of the
session he was not prepared to say that it could be constitutionally
established. Dunne certainly did a good job. To be sure, his address was
a mass of misrepresentations, but of misrepresentations cunningly put.
He shattered the implicit faith of the anti-machine Senators in the
absolute rate. And that was what he had been sent to Sacramento to do.
The evil that Dunne did lived long after he had left the capital.
Curiously enough, neither the term "absolute rate" nor "maximum rate"
appears in the State Constitution.
Article XII, Section 22, of the Constitution, provides that the Railroad
Commissioners "shall have the power and it shall be their duty to
establish rates of charges for the transportation of passengers and
freight by railroad or other transportation companies."
Further on in the same section, it is provided that "any railroad
corporation or transportation company which shall fail or refuse to
conform to such rates as shall be established by such Commissioners, or
shall charge rates in excess thereof, * * * shall be fined not exceeding
$20,000 for each offense."
The dispute between those who stood for maximum rates - that is to say,
the members of the machine lobby, the machine Senators, the Southern
Pacific attorneys and those who wanted absolute rates - namely, the
anti-machine Senators and the attorneys representing large shipping
interests - waxed hot over the words in the above quotation which are
printed in Italics.
The advocates of the absolute rate held, with at least apparent reason,
that the words "fail to conform to such rates" mean just what the
dictionaries say they do: That the railroad charging a rate in excess of
that fixed by the Railroad Commissioners, or a rate less than that fixed
by the Commissioners, is not conforming to the rates. Such, at least,
seems reasonable construction of a very simple phrase.
But not so, insisted the railroad lobby. That aggregation of patriots
skimmed over the words "fail to conform to such rates," and saw only,
"or shall charge in excess thereof." Inasmuch, the pro-railroad element
held, as the Constitution says that the railroads shall not charge in
excess of the rates fixed by the Railroad Commissioners, the railroads
are at liberty to reduce the rates as fixed by the Commissioners at
will. In other words, according to the pro-railroad element, the
Constitution authorizes the fixing of maximum rates only.
The pro-railroad claquers even went so far as to claim that the Supreme
Court has decided that the maximum rate is the only rate that can be
fixed under the State Constitution. They referred the doubtful to the
notorious decision in the Fresno passenger rate case known as the Edson
decision.
But no question of maximum rates was involved in the Edson case. To be
sure, Chief Justice Beatty took occasion to say in his opinion in that
case that his understanding had been that the State Constitution
provides for the maximum rate. But this had no place in the decision,
was purely dictum, and is so regarded.
Attorney-General Webb has an ingenious but very plausible explanation of
Judge Beatty's much-discussed observation. General Webb points out that
previous to the adoption of the present State Constitution - 1879 -
Justice Beatty had been engaged in the active practice of the law in
this State. Up to the time of the adoption of the Constitution of 1879
the maximum rate had prevailed in California. About that time, Judge
Beatty went to Nevada and was absent from the State for several years.
Returning to California, after the State Constitution had been adopted,
Judge Beatty found no case in which the duties of the Railroad
Commissioners had been involved, until the Edson case came up.
"I am of the opinion," said General Webb in discussing this point, "that
when the Chief justice spoke of the maximum rate in the Edson case he
was governed by mental impressions received previous to 1879, when the
maximum rate was indeed the rule in California."
All this was a very pretty theory. To the common-sense mind "conform to
the rates fixed" might mean conform to them; the normal man might be
unable to dig out of the Constitution any prohibition of absolute rates.
But the confusion caused by the raising of the question got the Stetson
bill very much in the air.
During all the discussion, however, the Wright bill was not considered
at all. Nobody was thinking of the Wright bill - that is to say, nobody
outside of those scheming for its passage. Like a mongrel duck's egg
under a respectable hen, it was left to incubate undisturbed, to
surprise everybody at the hatching.
Finding themselves unable to clear away the doubt which raising the
question of the constitutionality of the absolute rate had created, the
anti-machine Senators and the attorneys of the shippers finally, after
the Wright bill had been forced into prominence, put the case something
like this:
"If the Courts decide that the maximum rate only is constitutional, then
the Wright bill, which provides for the maximum rate, will be
constitutional, and the greater part of the Stetson bill will also be
constitutional.
"But if the Courts decide that an absolute rate is the only rate
justified under the Constitution, then the Wright bill will be
unconstitutional and all the Stetson bill constitutional."
This somewhat loose argument unquestionably kept certain Senators who
recognized the impracticability of the maximum rate, but feared for the
constitutionality of the absolute rate, in line for the Stetson bill.
With the situation thus confused, all was in readiness to bring the
Wright bill before the public. This was done on February 17th. Up to
that date the writer honestly believes that not two minutes had been
devoted to public discussion of this measure, although the Stetson bill
had been discussed paragraph by paragraph, line by line, every word
weighed carefully.
The ceremony of giving the Wright bill prominence took place behind the
closed doors of an executive session of the Senate Committee on
Corporations. These executive sessions, by the way, are seldom held when
the best interests of the public are to be conserved. The proceedings
were evidently pre-arranged. Senator Wright opened by moving that the
policy of the Committee should be that the Railroad Regulation measure
to receive favorable consideration from the Committee must provide for
the maximum rate.
The vote was as prompt as it was decisive. Senator Wright's motion
carried by a vote of 7 to 3. The vote was as follows:
For the maximum rate - Bates, Welch, Wright, McCartney, Bills, Finn,
Kennedy.
Against the maximum rate - Walker, Roseberry, Miller.
Burnett, the eleventh member of the Committee, was absent.
Gradually it dawned upon Walker, Miller and Roseberry that this meant
the favorable recommendation of the Wright bill. The next moment that
fact was hammered into them by the Committee deciding by the same vote,
7 to 3, to recommend that the Stetson bill do not pass; and that the
Wright bill do pass.
The machine had won the opening skirmish in the railroad regulation
controversy. Incidentally it had come out in the open squarely for the
Wright bill. From that moment the machine Senators labored openly for
the passage of the measure. However, the machine was not yet out of the
woods with its Railroad Regulation bill. The Senate Judiciary Committee
had still to pass upon it, and the majority of the Judiciary Committee
was anti-machine.
Wright followed the same course in the Judiciary Committee as he had
taken in the Committee on Corporations, namely, moved that it be the
sense of the Committee that the Railroad Regulation bill to be favorably
considered by the Committee should provide for the maximum rate.
Wright's motion was, however, lost by a vote of 8 to 10. The Committee
not only rejected the maximum rate, but endorsed the absolute rate, thus
reversing the Committee on Corporations. The vote by which this was done
was as follows:
Against the maximum rate, against the Wright bill and for the Stetson
bill - Campbell, Cutten, Miller, Stetson, Thompson, Caminetti, Boynton,
Roseberry, Curtin and Cartwright - 10.
For the maximum rate, for the Wright bill and against the Stetson bill -
Anthony, Martinelli, McCartney, Wright, Willis, Wolfe, Burnett and
Estudillo - 8.
Absent - Savage - 1.
Thus the Stetson bill after two months of machine effort against it,
went to the floor of the Senate from the Judiciary Committee with the
recommendation that it "do pass." Of the forty Senators, nineteen were
lawyers, and every one of the nineteen was a member of the Senate
Judiciary Committee. Thus the majority of the lawyers of the Senate, in
spite of the confusion which the machine claquers had created, were
willing to take their chances on the constitutionality of the Stetson
bill.
But in fairness it must be admitted that members of the Judiciary
Committee who voted for the absolute rate provision of the Stetson bill
were still in the befuddled condition in which Peter F. Dunne's
sophistry had left them. Senator Miller, for example, in explaining his
vote for the absolute rate, said:
"I take this stand, not that I am convinced that the Supreme Court will
decide the absolute rate to be constitutional; I fear that it may not.
But the maximum rate is little better than no rate at all. I wish the
absolute rate provided in this bill, that the Supreme Court may be given
opportunity to pass upon it."
Senator Roseberry, who voted for the absolute rate, confessed himself as
much at sea as was Senator Miller. Senator Estudillo, who voted for the
maximum rate, insisted that he had not been able to make up his mind
which should be adopted.
On the other hand, Senator Cutten, himself a lawyer and a close student
of the legal questions involved, stated that while he had thought
originally that the maximum rate is the only constitutional rate that
can be fixed, he had been forced to come to the conclusion that the
absolute rate alone is constitutional.
But in the end the Wright bill and not the Stetson bill passed the
Senate. It passed after a day of debate in which the issue became
clouded, if anything, worse than at any stage of the proceedings.
Leavitt and Wolfe, with Wright chipping in with a me-too word now and
then, led the debate in favor of the Wright bill. Senators Stetson,
Boynton, Cutten, Roseberry and Miller led the fight for the Stetson
bill. Significant enough was the fact that the line-up of Senate leaders
was precisely the same as that in the fight which the machine carried on
against the Direct Primary bill.
Miller's argument in favor of the Stetson bill showed the confusion
under which the advocates of effective railroad regulation were
laboring:
"If we adopt the Wright bill," said Miller, "the railroads will be
satisfied and never dispute it in the Courts. Whereas, by the adoption
of the Stetson bill the railroads will almost be compelled to appeal to
the Courts, and then we shall have a quick decision on the question in
which we are all interested. If the Courts sustain the Stetson bill, we
shall have a law that will do all we want for the present."[64]
The debate on the measures was on a motion by Stetson that the Stetson
bill be substituted for the Wright bill. In this Stetson made a serious
mistake. He staked his whole bill on one issue, that of absolute or
maximum rates. On all other points, the Stetson bill was better than the
Wright bill. It was a mistake in policy for Stetson to stake the fate of
his measure on a single issue.
Stetson's motion was lost by a vote of 16 to 22; the Stetson bill was
accordingly not substituted for the Wright bill, and the Wright bill,
which had come from the Judiciary Committee with a minority report back
of it, went to third reading and final passage.
The vote by which Stetson's motion was defeated, was as follows:
To substitute the Stetson bill for the Wright bill - Bell, Birdsall,
Black, Boynton, Caminetti, Campbell, Cartwright, Curtin, Cutten,
Holohan, Lewis, Miller, Sanford, Stetson, Strobridge, Thompson - 16.
Against substituting the Stetson bill for the Wright bill - Anthony,
Bates, Bills, Burnett, Estudillo, Finn, Hare, Hartman, Hurd, Kennedy,
Leavitt, Martinelli, McCartney, Price, Reily, Savage, Walker, Weed,
Welch, Willis, Wolfe, Wright - 22.
Senators Roseberry and Rush were absent from the room when the vote was
taken but both were for the Stetson bill, which would have made the vote
22 to 18 in favor of the Wright bill.
The twenty Senators whose names are printed in Italics are the twenty
who voted with Leavitt and Wolfe to maintain the deadlock on the Direct
Primary bill that the measure might be so amended that the electors of
California would be denied a practical, State-wide vote for United
States Senators. But one of the twenty, Lewis, voted for the Stetson
bill, while nineteen of them voted for the Wright bill.
On the other hand, only three of the Senators, Estudillo, Anthony and
Walker, who stood out for an honest Direct Primary law, voted against
the Stetson bill and for the Wright bill. Walker had supported the
Stetson bill in the Committee on Corporations, but stumbled into the
machine ranks when it came to final vote. Had the anti-machine had an
organization, such as the machine Democrats and Republicans maintained,
Walker's blunder could have been prevented. Probably, too, Estudillo and
Anthony would have remained with the anti-machine forces[65]. This would
have given the Stetson bill twenty-one votes, and assured its passage.
Another vote that should have been saved to the reformers was that of
Burnett. Burnett was clearly tricked into voting for the Wright bill.
When the Stetson bill received the favorable recommendation of the
Senate Judiciary Committee, machine claquers filled the air with the
indefinite promise that in the event of the Wright bill becoming a law,
a constitutional amendment would be adopted, by which all ambiguity in
the State Constitution on the question of maximum and absolute rates
would be removed. The amendment was then pending before the Senate
Judiciary Committee, which finally reported it favorably.
After the Wright bill had been passed, the amendment was defeated by
machine votes, as will be shown in the next chapter.
In the closing days of the session, when Burnett was urging that steps
be taken for investigation into the increase of freight rates, he called
attention to the fate of that railroad-regulation amendment.
"I was led to vote as I did for the Railroad Regulation bill," he said,
"on the understanding that that constitutional amendment would be
adopted. As you know, it was defeated. My attitude on the regulation
bill would have been very different had I known that the amendment was
to be rejected."
The Wright bill met with practically no opposition in the Assembly,
being rushed through the Lower House in the closing hours of the
session. Had the Stetson bill passed the Senate, the machine would have
tried to block and amend it in the Assembly as was done with the Direct
Primary bill, but the measure would probably have been passed.
Had the anti-machine forces in the Senate been organized, the Stetson,
and not the Wright bill, would have passed that body. Without
organization, or even definite policy, in the face of organized machine
opposition, it is astonishing - and at the same time most encouraging -
that eighteen of the forty Senators stood by the Stetson bill to the
end.
[64] The question to which Senator Miller referred was: Has the
Legislature power under the Constitution to authorize the Railroad
Commissioners to fix the absolute rate? a question upon which the
machine does not propose the Supreme Court shall be required to pass.
[65] Walker and Estudillo were bitterly condemned for their vote for the
Wright bill. Incidentally, the writer has been roundly criticized for
offering the excuse in their behalf that these two men indicated by
their attitude on other measures throughout the session that they would
have continued with the reform element in the matter of railroad
regulation, had the anti-machine Senators been organized to give
effective resistance to the machine. Perhaps the sanest of this
criticism, certainly the most reasonable, is from a gentleman who was a
close observer of the work of the session. He says:
"The course of the railroad rate bill from my point of view looked
somewhat different in many details, at any rate, from your account of
it. I cannot bring myself to think that it was defeated by any chance at
the hands of a friendly Legislature. I think that what chances there
were were mostly added to the number of votes the bill got and that the
attitude of men like Walker and Estudillo on that bill was fundamental
and to have been expected from the start. Of course what you say about
the woeful lack of organization amongst the individual men was only too
apparent. That phenomenon reaches back still deeper and is based upon
the quality of human nature which exerts itself more persistently and
more energetically and with soldier-like rhythm of compact organization
when private selfish interests are involved, than when the general
interest and somewhat vague uncentered end of public welfare is
concerned."
But in spite of this very reasonable view, from a very reasonable
gentleman, the fact remains that in the Committee on Corporations,
Walker stood out against the machine on this very issue, and that in the
direct primary fight both Walker and Estudillo stood out against the
machine to the end. Had the anti-machine element been organized, the
Stetson bill and not the Wright bill would in all probability have been
passed.