How the Change of Venue Bill Was Passed.
Slipped Through the Assembly Without Serious Opposition in Closing Days
of the Session - Passed by Trick in the Senate Although a Majority of
That Body Were Opposed to Its Passage - Typical Case of Machine
"Generalship."
Given the presiding officers of the Senate and Assembly and the
appointment of the Committees of both bodies, the machine minority in
the Legislature had comparatively little difficulty in preventing the
passage of desirable measures. Thus, the Commonwealth Club bills to
simplify and expedite proceedings in criminal cases, or, if you like, to
prevent quackery in the practice of the criminal law, were, by clever
manipulation, defeated, although if fairly presented to Senate and
Assembly they undoubtedly would have become laws[74].
But when it came to passing vicious measures in the face of the
opposition of the unorganized majority of both Houses, the machine had a
harder job on its hands. A majority vote of each House is required for
the passage of a measure. To get through its bills, then, the machine
had to create a situation in which vicious measures could be rushed
through without the unorganized reformers knowing what was being done.
By preventing action on a large majority of the measures pending before
the Legislature until the end of the session, such a situation was
created. In the confusion of the closing days of the session, not only
were good bills denied passage, but vicious bills, in spite of the
opposition of a majority of the Legislature, were passed. Some normally
anti-machine members in such a situation become worn out, get
discouraged and vote for machine policies to secure machine support for
measures, the passage of which their constituents at home are demanding.
Others, in the confusion of a whirlwind close of the session, vote for
measures which they have no time to read, and which they cannot
understand. Thus, even with a majority of Senate and Assembly against
machine policies, the clever machine leaders often slip through measures
which could not be passed early in the session, when the members have
opportunity to study the bills upon which they are called upon to act,
and before the ranks of the reform element have been broken.
This was very well illustrated at the Session of 1909 by the passage of
the so-called Change of Venue bill[74a]. This measure was introduced in
the Assembly by Grove L. Johnson. Under its provisions a person charged
with crime would have been permitted upon his whim or caprice to allege
bias and disqualify the Judge before whom he was to be tried. The
Legislature of 1907 was admittedly controlled by the machine, but even
the Legislature of 1907 did not dare pass the Change of Venue bill. The
reform Legislature of 1909, however, did pass it. The manner in which it
was passed is a lesson in machine methods. To the credit of Governor
Gillett let it be said, however, that he vetoed the measure[75].
Grove L. Johnson having introduced the bill, it was referred to
Johnson's committee, the Judiciary Committee of the Assembly. The
Committee held it until February 5, when it was referred back to the
Assembly with the recommendation that it "do pass." On March 13, eleven
days before adjournment, it passed the Assembly, by a vote of 42 to 15,
41 votes being required for its passage. Assemblymen like Drew, Telfer,
Wilson and Stuckenbruck, men who fought the machine and machine policies
from the beginning to the end of the session, voted for the bill. The
negative vote of any two of them would have defeated it[76].
The passage in the Assembly of an important reform measure as late as
March 13, would have meant its defeat in the Senate. Though in the
majority the anti-machine Senators could not have forced a reform
measure through the machine-controlled committees, machine-controlled
even when a majority of a committee was anti-machine[77]. Measures of
the Change of Venue bill stamp, however, had a clear way. The Change of
Venue bill was on March 15 referred to the Senate Judiciary Committee.
On March 16, twenty-four hours after, the Committee returned the bill
with the recommendation that it do pass. On March 19, with twenty-two
Senators opposed to its passage, and eighteen favoring it, with
twenty-one votes necessary for its passage, the bill passed the Senate.
This apparently impossible feat was, in the last two weeks of the
session, a comparatively easy task for the machine.
To begin with, Senator Black, who opposed the bill, was ill at his home
at Palo Alto. This left twenty-one Senators against the measure and
eighteen for. The line-up was as follows:
For the Change of Venue bill - Anthony, Bates, Bills, Finn, Hare,
Hartman, Hurd, Leavitt, Martinelli, McCartney, Price, Reily, Savage,
Weed, Welch, Willis, Wolfe, Wright - 18.
Against the Change of Venue bill - Bell, Birdsall, Boynton,
Burnett[76a], Caminetti, Campbell, Cartwright, Curtin, Cutten,
Estudillo, Holohan, Lewis, Kennedy, Miller, Roseberry, Rush, Sanford,
Stetson, Strobridge, Thompson, Walker - 21.
On the face of it, the outlook for the passage of the Change of Venue
bill in the Senate was not good. The machine, however, planned to pass
the bill on March 19.
The machine leaders went at the job systematically. When the Senators
took their seats that Friday morning, they found that at Senator Bates'
request, Assembly Bill 6 (the Change of Venue bill) had been put on the
Special Urgency File. The Special Urgency File was to be considered at 8
o'clock Friday evening. Senator Bates stated in an interview that he had
placed Assembly Bill No. 6 on the Special Urgency File "at the request
of a fellow Senator." Who the fellow Senator was, Bates refused to say.
Bates insisted, however, that he knew nothing about Assembly Bill No, 6,
and could give no reason why it should be made a matter of "special
urgency." Senator Bates has since the Legislature adjourned been given a
position of trust in the United States Mint.
With the Change of Venue bill on the Special Urgency File, the next step
was to get it considered at the moment most favorable for machine
purposes. Along about 11 o'clock in the forenoon - the reader should
keep in mind that in the ordinary course of the Senate's work the
Special Urgency File would not have been considered until 8 o'clock that
evening - Senator Wolfe moved that the Special Urgency File be taken up
out of order. But before the Change of Venue bill could be reached,
Senator Wright, who favored the passage of the measure, was found to be
absent from the Senate chamber. On Senator McCartney's motion, the
Change of Venue bill was temporarily passed on file. With the constant
coming and going of Senators, there was no time while the file was under
consideration, that the eighteen Senators counted on to vote in a solid
block for the bill, were all present. The Senate concluded consideration
of the Special Urgency File, and still the Change of Venue bill had not
been taken up. The Senate then took up the second reading of Assembly
bills, and then the Special File of Appropriation bills. A communication
from Dr. Howard Black and Dr. Harry D. Reynolds was read setting forth
that Senator Black was too ill to leave Palo Alto. Bills were passed and
bills were withdrawn. Senator Strobridge reported that Senate Bill No.
862 had been correctly engrossed. And through it all the machine was
watching for the favorable moment to force the passage of the Change of
Venue bill.
The moment came just before noon. Like the snap of a trap Leavitt asked
for unanimous consent to take up Assembly Bill No. 6, out of order. The
anti-machine Senators are never guilty of discourteous treatment of a
fellow Senator. They granted the request.
Senator Wright vouched for the bill. He stated that it was a good bill
and should be made a law. Senator Wolfe spoke for it, in fact led the
debate to secure its passage. On the other hand, Senator Boynton very
pointedly told Senator Wright that the bill was not a good measure and
should not be passed "Judges of the Supreme Court tell me," said
Boynton, "that this is a bad bill."
Senator Cutten made a strong speech against the bill, which he denounced
as bad in principle. Holohan stated that if the measure became a law it
would give a bunco steerer a chance to disqualify every decent Judge in
the State. Roseberry denounced the measure as vicious.
When the vote was taken, every Senator who supported it was in his seat,
but Burnett, Estudillo and Rush were absent. This would have made the
vote 18 to 18, the backers of the measure requiring three more
affirmative votes for its passage. But Miller and Lewis were led to vote
for the measure, which made 20 votes for the bill and 16 against it. At
this point the bill lacked one vote of passage. Estudillo was, however,
brought in under call of the Senate, and under what amounted to
misrepresentation, voted for the measure. This passed the bill by a vote
of 21 to 18. Boynton changed his vote from no to aye, to give notice
that on the next legislative day he would move to reconsider the vote by
which the bill had been passed. But before he could give notice the
Senate took its noon recess. Boynton under the rules had all day in
which to notify the Senate of his intention, but to make assurance
doubly sure, he told the clerk at the desk not to send the bill to the
Assembly for he would as soon as the Senate re-convened, give notice of
his motion to reconsider.
Nevertheless, when the Senate reconvened, Boynton found that the bill
had been rushed over to the Assembly, "to save time," according to the
excuse given.
Senator Boynton insisted that the bill be returned from the Assembly.
Wolfe asked Boynton "as a matter of Senatorial courtesy," to permit the
vote on the bill to be taken on a motion to have it returned from the
Assembly. This request was so ludicrous, in view of the treatment that
had been accorded Boynton, that it provoked a smile. Boynton refused to
be "courteous," the bill was returned from the Assembly and regularly
reconsidered the next day.
With 21 votes against the measure, there seemed little doubt that it
would be reconsidered and defeated. Twenty-one votes were necessary for
reconsideration. Lewis and Miller had thought better of their vote of
Friday and were prepared to vote against the bill. Estudillo,
understanding the measure thoroughly, was anxious to set himself right
in the record by voting against it. These, with Burnett and Rush, gave
twenty-one votes, enough to force reconsideration and to defeat the
bill.
But there was a weak link in the combination,Kennedy. Senator Kennedy
voted throughout the session consistently with the Wolfe-Leavitt
element, but he voted against the Change of Venue bill. When Saturday
morning came, however, Kennedy could not be found. When reconsideration
of the bill came up, Burnett and Rush were out in the hallway. Miller
and Lewis voted to reconsider, which made the vote eighteen to eighteen.
Twenty-one votes were necessary for reconsideration. With Kennedy,
Burnett and Rush, reconsideration could be forced and the bill defeated.
The only way the absent Senators could be reached was through a call of
the Senate, which required a majority vote of those present. A motion
for a call of the Senate was defeated by a vote of eighteen to
eighteen[78].
This was the real test vote on the Change of Venue bill. It will be seen
that Miller and Lewis and Estudillo, who had voted for the bill the day
before, voted for a call of the Senate. They would, on reconsideration,
have voted against the bill, and its passage on reconsideration would
have been impossible. Had Kennedy or Rush or Burnett been present, the
motion for a call of the Senate would have prevailed, the vote on the
Change of Venue bill been reconsidered, and the measure defeated.
Half an hour later, when Kennedy's vote was necessary to enable the
machine to continue the deadlock on the Direct Primary bill, Kennedy
turned up to do his part in that not very creditable performance.
In this way did the machine element secure the passage of the Change of
Venue bill. It was a question of good generalship, or, if you like,
trickery. Perhaps trickery is the better name for it.
[74] Black's Senate bill, 1,144, came very near being defeated in the
Assembly by similar "good generalship." The measure in effect prohibits
the sale of intoxicating liquors within a mile and a half of Stanford
University. Assemblyman Bohnett was in charge of the bill.
Bohnett, the day that the bill was to come up, was called from the room
to attend a committee meeting. Immediately did the Assembly show
astonishing activity in consideration of the file. So fast did they go
that the Stanford bill seemed destined to be reached while Bohnett was
out of the room. Had it been reached with Bohnett away it could have
been dropped to the bottom of the file, where it would have been lost,
so far as the session of the Legislature of 1909 was concerned.
Charles R. Detrick, of Palo Alto, happened to go to the Assembly chamber
at this critical moment and took in the situation at a glance. He
accordingly hunted up Bohnett, who got back to the Assembly chamber
before the bill could be reached on file. For once "good generalship"
had failed at the legislative session of 1909.
[74a] In 1907, the Change of Venue bill was slipped through the
Assembly, but in a form not to affect the San Francisco graft cases. In
the Senate, however, it was amended to apply to Ruef, Schmitz and their
associates. The exposure of this turn raised such a storm that the bill
was not brought to vote. However, on the night before adjournment, the
measure was slipped through the Senate as an amendment tacked on another
bill. But the trick was discovered in the Assembly and defeated.
[75] Governor Gillett's reasons for vetoing the bill are set forth in
footnote 1, Chapter 1.
[76] The Assembly vote on the change of venue bill was as follows:
For the Change of Venue bill - Barndollar, Beatty, Black, Cattell,
Coghlan, Collier, Collum, Cronin, Drew, Feeley, Flint, Gibbons,
Griffiths, Hammon, Hans, Hawk, Hayes, Hewitt, Hinkle, Holmquist, Johnson
of Sacramento, Johnson of San Diego, Juilliard, Lightner, Macauley,
Maher, McClellan, McManus, Melrose, Mendenhall, Moore, Mott, Pugh, Rech,
Schmitt, Silver, Stuckenbruck, Telfer, Transue, Wagner, Wheelan, and
Wilson - 42.
Against the Change of Venue bill - Baxter, Bohnett, Butler, Callan,
Cogswell, Dean, Gerdes, Gillis, Kehoe, Otis, Polsley, Preston, Sackett,
Whitney, and Young - 15.
[77] The Senate Judiciary Committee for example.
[76a] The Senators whose names are printed in italics became involved in
the confusion which led to the passage of the measure.
[78] The vote was as follows:
For the call of the Senate - Bell, Birdsall, Boynton, Caminetti,
Campbell, Cartwright, Curtin, Cutten, Estudillo, Holohan, Lewis, Miller,
Roseberry, Sanford, Stetson, Strobridge, Thompson, Walker - 18.
Against the call of the Senate - Anthony, Bates, Bills, Finn, Hare,
Hartman, Hurd, Leavitt, Martinelli, McCartney, Price, Reily, Savage,
Weed, Welch, Willis, Wolfe, Wright - 18.