"The System," As Uncovered by the San Francisco Graft Prosecution

“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.

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.

CHAPTER XXIX.
Ruef’s Last Refuge Fails.

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[479] 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.

CHAPTER XXX.
Conclusion.

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.

Then again, the corporations involved in the scandals, have a heritage from the graft defense which seems destined to bring confusion upon them at every turn of their development. Late in 1912, for example, a year and a half after the trolley-graft indictments were dismissed, the United Railroads attempted readjustment of its bonded indebtedness. This could be done only with the consent of the State Railroad Commission. The Commission, willing to allow any proper adjustment upon competent showing, asked that the corporation’s books be produced. The books had, during the days of the prosecution, been sent out of the State. The United Railroads could not produce the books, and consent to its petition to readjust its financial affairs was withheld until the books should be forthcoming. Unofficial assurance was given officials of the corporation that investigation would not be made of its graft defense expenditures,[493] nor of any expenditures involved in the scandal of the alleged bribe-giving. But apparently even this assurance did not satisfy those connected with the United Railroads whose reputations, at least, were at stake.[494] The company’s books were not opened for the Commission’s inspection.

By far the greatest sufferer from the graft defense was San Francisco. Here it was demonstrated that even with a District Attorney intent upon the discharge of his sworn duty, with upright trial judges on the bench, the machinery of the criminal law broke down when men with practically unlimited means were brought to bar. To accomplish this required a four years’ contest, in which community resistance to political corruption was overcome, the people misled, their minds poisoned against that which is wholesome, and made tolerant of that which is base and bad.

Tenderloin interests at San Francisco now indicate even greater power in the community than they exerted during the worst days of Ruef-Schmitz regime. The same is in a measure true of the public service corporations.

When District Attorney Langdon announced in 1906 that public-spirited citizens would assist in meeting the expenses of running to earth the corruptionists that had San Francisco by the throat, prospect of law-enforcement through the regular channels was welcomed, and ugly talk of lynch-law prevalent at the time, ceased. The success of the graft defense meant that the efforts to reach the corrupters of the municipal government through the courts had failed. San Francisco was beaten. In the community’s present inability to protect itself against the encroachments of the public service corporations, and to correct vice conditions which are far worse than in the worst days of the Schmitz-Ruef regime, the effects of that beating are seen. San Francisco will be long in recovering from the effects of her defeat. Because of the results of it, she finds herself handicapped in her race for Pacific Coast supremacy with Los Angeles, Seattle and even Oakland. And the prospects are at the close of the year 1914, that the burden of this handicap will be increased before it is diminished. In the old days an invading army conquered a city and sacked it. The System conquered San Francisco and is exploiting it.

The defeat of the graft prosecution was a defeat for San Francisco alone. It was not a defeat for the State of California.

The evil influence of the graft defense did not reach beyond the metropolis. On the contrary, the success of the defense uncovered for the whole State the actual political conditions under which all California was laboring.

The registration of 47,945 Republicans at San Francisco to defeat Heney at the primaries, and the Republican vote of 13,766 at the final election, demonstrated the emptiness of partisan pretense. One of the immediate results was a uniting of all good citizens regardless of political affiliations for good government, and Hiram W. Johnson, Heney’s associate in the graft trials, was in 1910, elected Governor of California. Four years later, James D. Phelan, Rudolph Spreckels’s associate in financing the graft prosecution, was elected United States Senator from California, while Judge Lawlor was that year elected to the State Supreme Bench. Judge Dunne was in 1914 re-elected to the Superior Bench to serve until 1920.

Decisions from the higher courts—to the lay mind astonishing; to authorities on questions of law, vicious and unwarranted—which set free men who had been convicted of dangerous felonies; scandals which grew out of these decisions; the public’s demonstrated helplessness against them, aroused the State. By overwhelming vote California added to her Constitution a provision under which The People may by direct vote remove a corrupt or incompetent judge from the bench.

The public had assumed that men trapped in bribe-giving would be measured by a fixed rule of the law, and their proper punishment in due course be meted out to them. That anything else could be had not occurred to the average citizen.

But the astonishing performances at the graft trials, the extraordinary anti-prosecution publicity campaign, and, finally, the amazing technical defense, and the failure of the graft defendants to take the stand and manfully deny under oath the charges brought against them, opened the eyes of the public to the fact that the methods of criminal procedure were sadly inadequate.

And the further fact was emphasized that while the weak points in the methods of bringing an offender to punishment could be used to advantage by the rich man, they were unavailable to the man without the means to employ a lawyer to present the technicalities governing his case.

Out of this conviction, came agitation for reform of the methods of criminal procedure. An elaborate plan for such reform was presented to the 1909 Legislature.[495] But the machine element controlled the committee organization of both houses, and the measures were defeated.

At the 1911 session of the Legislature, after Johnson had been elected Governor, measures for the reform of the criminal procedure similar to those defeated by indirection at the 1909 session, were introduced. Many of them became laws. But, unfortunately, certain labor leaders were made to believe that the measures were aimed at Labor. This led to opposition which resulted in the defeat of several of the proposed reforms.

One important constitutional amendment was, however, presented to the people that goes far toward correcting the abuses which attended the graft trials. This amendment provides that “no judgment shall be set aside, or new trial granted in any criminal case on the ground of misdirection of the jury or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless, after an examination of the entire cause including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”

Not a vote was cast against this amendment in either house of the Legislature. The feeling against the use of trifling technicalities for the release of convicted criminals which the graft cases had displayed so glaringly, was shown in the popular vote on this amendment; 195,449 voted for the amendment, while only 53,958 voted against it.[496]

The San Francisco graft prosecution succeeded in sending but one of the corrupters of the municipal government to State prison. He, too, would in all probability have escaped imprisonment but for the absence from the State of a single member of the Supreme Court at a critical moment.

But the graft prosecution did something infinitely more important than the sending of a few corruptionists to cell and stripes. It awakened a State to its helplessness against a corrupt system. The People arose in rebellion against the “System,” and is laboring to throw the “System” off.

In 1910 and 1911 a political revolution was worked in California.

But the revolution had its beginning back in 1906, when Rudolph Spreckels guaranteed the expenses of the prosecution of the corrupters of the municipal government of San Francisco, and Francis J. Heney, as his share in the campaign, pledged his services.

Had there been no San Francisco graft prosecution, there would, in 1910, have been no successful political uprising in California. Hiram W. Johnson would not have been a candidate for Governor. The accomplished reforms which are the boast of the State, and the models which other States are adopting, would still be the unrealized dreams of “reformers.” The “System” would still be in the saddle.

The graft defense has left its mark of ill upon San Francisco. That city has borne the brunt of the injury because of it.

The graft prosecution, by forcing the “System” out in the open, where all its power for evil can be seen, worked California inestimable good. And here, San Francisco, in common with the whole State, gains also.

APPENDIX

JUDGE LAWLOR’S RULING ON MOTION TO DISMISS GRAFT CASES, AUGUST 3, 1910.

Two things are chiefly responsible for the Court’s action in respect to the remaining indictments since the District Attorney moved to dismiss them on February 7th, 1910—first, the Court’s apprehensions based on the declared attitude of the said District Attorney toward the remaining indictments, and, second, the absence from the State of James L. Gallagher, a material and indispensable witness in the said causes. The second reason will now be considered.

It was the theory of the People in the five trials referred to that Abraham Ruef represented the defendants in the alleged bribery of the members of the Board of Supervisors, and that James L. Gallagher, one of its members, in turn represented Abraham Ruef in the transactions. In this way the Court is able to determine that the testimony of this witness is material, and now holds, as a matter of law, that unless additional testimony is produced, it is indispensable to the establishment of the res gestae.

In the early part of December, 1909, it became known that the witness had departed from the State. Up to the present time it has not been shown whether he had been formally subpoenaed or was otherwise under the authority of the Court to appear as a witness in the trials of the remaining indictments. If he is subject to the authority of the Court in any of these cases his absence would constitute a criminal contempt, and he could be extradited from any other State having provisions of law similar to those of this State. (Sub. 4, Sec. 166, and Sec. 1548 Penal Code.) In this connection it may be proper to point out that practically ever since issue was joined on these indictments they have been on the calendar for trial, and that during the trials referred to the cases not actually on trial were from time to time called and the witnesses admonished by the Court to appear on the deferred date. But it has not been ascertained whether on this manner the missing witness has been so admonished to appear so far as the remaining indictments are concerned.

In the month of January, 1910, the Court directed that all persons who could give testimony concerning the absence of the witness be subpoenaed. On January 24th, 1910, the first hearing was had, and on several occasions thereafter witnesses have been orally examined on the subject. From this oral testimony it is difficult to determine the intentions of the witness concerning his departure from and his return to the State. It seems that in the latter part of November, 1909, he left for Europe, accompanied by his wife. Robert F. Gallagher, a brother of the witness, testified in effect that the witness never stated he intended to absent himself as a witness in the graft cases and made no suggestion of that nature; that he, Robert F. Gallagher, gained no such impression from anything he did say, except that it was a disagreeable situation for him to be a witness; and that their talk proceeded along the line that there was not going to be any future trial in the graft prosecution. This brother testified further:

“He did state on one occasion something to the effect that Burns had disappeared and that Heney had disappeared and that there wasn’t any prosecution; that the incoming District Attorney would not certainly be in earnest in the prosecution.”

Other witnesses testified to a variety of facts touching the departure of the witness from San Francisco and his declarations on the general subject. Dr. Alexander Warner gave testimony to the effect that he went to Europe on an Atlantic steamer with the witness and his wife. Thomas J. Gallagher, another brother, among other things quoted the witness to the effect that he was going to Europe, that he might settle in an eastern State, that he made no secret of his purpose, and that William J. Burns, special agent of the former administration in the District Attorney’s office, knew of his intention to leave. Nothing definite appears in the oral showing concerning his intentions on the subject of his return, and so far as that showing is concerned the point is more or less involved in conjecture. But on July 29th, 1910, Frederick L. Berry, the Assistant District Attorney, assigned to this department of the Court, filed an affidavit embodying clippings from the local newspapers of the previous month, which state that the witness was, at the time the articles were written, in Vancouver, B. C. From these clippings it appears that the witness intended to permanently locate in Vancouver. The only tangible evidence from the witness himself, however, is found in his letter to Thomas J. Gallagher under date of June 29th, 1910, in which this excerpt appears:

“In reply to your inquiry I cannot state when I shall return to San Francisco, if at all. I may remain here.”

In my judgment a review of the showing up to this time leads to the inference that the witness left this jurisdiction and is remaining away because of some form of understanding or agreement. The circumstances under which he left California clearly show that he was acting guardedly, notwithstanding the testimony, which there is no reason to doubt, that he informed several persons of his intention to take a trip. When the quoted statement of Robert F. Gallagher was first made I was disposed to assume that the witness left the State principally because he believed the prosecution was at an end, and that he made his plans quietly so that the step would not occasion comment. In other words, that he did not believe there would be any further attempt to prosecute the so-called graft cases. But from a study of the entire showing I cannot adhere to that theory. I repeat that up to the time his presence was discovered in Vancouver, the showing was uncertain as to whether he really intended to return to California, and if so, when he would return. It was to be seen that the action of the Court would be influenced by this uncertainty, so when the exigencies of the situation called for a definite showing as to the witness’ intentions, he seems to suddenly appear in Vancouver, where, under the treaty conditions, he would be safe from extradition, and is promptly discovered by the reporter of a New York paper. In the clippings his quoted statements on the subject of his intentions are unequivocal. He is to make his home in Vancouver. But his personal communication to Thomas J. Gallagher, already referred to, which he probably realized would be produced in Court, is significant in tenor and he is apparently less certain of his intentions. This would tend to make his future action consistent should he hereafter return to California. From the entire showing I do not entertain any serious doubt as to what his real purpose is. I am inclined to believe that when the necessity for his presence as a witness has passed he will return. To entertain any other view, or be in serious doubt on the point, is to ignore the inherent probabilities of the showing and to deny a fair consideration to the known history of this litigation.

Now, it must follow that if the witness has left and is remaining away from the State because of an arrangement of some nature affecting these cases, the responsibility for his absence should be placed where it belongs. On April 25th, 1910, the District Attorney stated to the Court:

“... and it appearing also that James L. Gallagher left with the consent and connivance of those who had preceded me in office, I at this time do not wish to assume any responsibility for his disappearance. Whether he shall return or not I cannot say. Some of the witnesses who were called here testified that he went away with the intent and with the purpose of embarrassing my administration and that he was supposed to keep away until such time as certain persons would request his return....”

The foregoing fairly states the position of the District Attorney on this point, as repeatedly expressed in Court since he first moved the dismissal of these indictments. If the charge that the former administration entered into a bargain with the witness to default be true, there would be no alternative but to dismiss the indictments without delay. But I have found no evidence in the showing tending to support so grave a charge, and upon sound reasoning it would seem to be opposed to every reasonable probability. According to the showing, William J. Burns left the State about three weeks in advance of the witness, and, so far as the Court is advised, he has not since been in the State. 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.

Nor, on the other hand, do I find any formal evidence in the showing which tends to bring the responsibility for the disappearance of the witness home to these defendants. In the absence of tangible proof neither side should be charged with so grave an act. But if there has been complicity on the part of either of the parties, every effort should be made before disposing of these cases finally to establish the facts. It has been pointed out that if the former administration entered into a bargain with the witness looking to his absence, the application should be granted without delay. And clearly, if the defendants are responsible for the absence of the witness, under a familiar maxim of the law, the application should be promptly denied. (Sec. 3517 Civil Code.) There being no tangible proof, therefore, before the Court, of the complicity of the parties, should the pending application be granted at this time?

A person accused of crime is entitled to a speedy trial. (Sec. 13, Art. I, Const.) This fundamental right has been made the subject of statutory provision. The second subdivision of Section 1382 of the Penal Code provides that:

“Unless good cause to the contrary is shown, the court must order the prosecution to be dismissed if the indictment is not brought to trial within sixty days after the filing thereof.”

More than sixty days have run in favor of this application, and the question presented at this time is whether the showing touching the absence of James L. Gallagher shall constitute “good cause” within the meaning of the law. This term must be construed and applied according to the peculiar circumstances of each case. It should be interpreted so that the rights of both parties shall be equally recognized. The absence of a material and indispensable witness for the People would, under proper circumstances, constitute good cause, provided that good faith and diligence are shown in the effort to produce the witness. In re Bergerow (133 Cal., 349) is a leading authority on this question and is almost invariably cited in support of applications of this character. It is proper to point out that in the prevailing opinion the Court studiously eliminates from the pertinency of the authority the absence or illness of a witness for the prosecution.

The conclusion I have reached is that under the law, and the surrounding circumstances, including the recent action of the witness, that another reasonable continuance should be directed in order, if possible, that the duty of the Court in the premises shall be rendered more clear. At this time the Court is not satisfied that the relief sought should be granted. On the other hand it is realized that a final decision should not much longer be delayed. In the determination of this matter the Court, while fully recognizing the rights of the defendants, is mindful of the rights of the People and its own sense of responsibility, and is anxious to avoid a decision which will serve as a mischievous precedent.

It is idle to attempt to ignore the inherent probabilities of the situation presented. A material and indispensable witness is absent from the State, and the Court is called upon to intervene because the District Attorney has at practically every turn followed the lead of these defendants. Through the influence of unusual agencies the law has broken down, so far as these cases are concerned. The crimes charged are of the most serious nature, because such criminal activity tends to sap the very foundations of government. The statute of limitations has run against these charges and if the application is granted, therefore, there can be no further prosecution, no matter what developments may follow. (Sec. 800 Penal Code.) In the trial of Patrick Calhoun the Court admitted evidence of a most extraordinary character on the theory of the People that it tended to show guilty consciousness on the part of the accused. This evidence was not contraverted. It included the dynamiting of the home of the witness under circumstances which threatened not only his life, but also the lives of several other persons. A certain other building, the property of the witness, was subsequently blown up by the use of dynamite. If the apparent design on the life of the witness had been successful, the Court would be less perplexed in deciding a question of this character. It is possible that these experiences and not the suggested arrangement with the witness are responsible for his absence. The evidence also included an effort to suppress testimony by an attempt to induce a witness to leave the jurisdiction of the Court, and other matters of a serious nature.

And, finally, while the Court is clear that it should not base any action at this time upon the assumption that either side is responsible for the absence of the witness, yet reason and the exercise of a sound discretion dictate that the Court should act with prudence. 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 is not to be encouraged and should not be allowed, except in the face of a strict legal necessity. Let the cases be continued until 10 a. m., Monday, August 29th, 1910. So ordered.

HOW THE SUPERVISORS WERE BRIBED.

“One morning, some time after my election, the doorbell rang, a gentleman was at the door and wanted to see me. I went downstairs. He asked me if I was Mr. Lonergan. I said yes. He says, ‘The recently elected Supervisor?’ or words to that effect. I said yes. He says, ‘I don’t think you are the man I wanted. I came out here from the East a few years back with a Mr. Lonergan, and I thought he was the one that might have been elected.’ I said, ‘No, you are mistaken, it is the other one,’ or something like that. He then incidentally told me he was connected with the Pacific States Telephone Company, and would be pleased to take me around their works at any time that I would find it convenient. I answered him as well as I recall now, that I possibly would take it in some time. I subsequently went to the telephone company’s office. To the best of my recollection I saw Mr. Kraus in the meantime before going there, and made an appointment with him. I don’t well remember meeting him at the telephone company’s office. I think where I met him was on the corner of Mason and Market or Powell and Market, one or the other, around there. That was by appointment. Then I went with him to the telephone company’s plant on Bush street, I think, out in the Western Addition at that time. He took me through the works, showing me the works and the arrangements in connection with it, and how they treated their help, and stated to me they were installing another new plant, I forget now whether it was one or two or more. After we left there I had lunch with Mr. Kraus. I don’t well remember where. He spoke about an opposition company in that talk. The opposition company was spoken of, considering the appliances they had, and the amount of work they were then doing, and the new switchboards they would put in, that it didn’t appear necessary to have an opposition company here. Mr. Kraus paid for the lunch, I believe.

“I am acquainted with Mr. T. V. Halsey. I first met him, I think, either on Pine or Bush street, to the best of my recollection. I. N. Copus introduced me to him. To the best of my recollection it was some time after meeting Kraus and before I took office as Supervisor. That meeting was by appointment. Mr. Copus made the appointment I believe. To the best of my recollection that was my first meeting with Mr. Halsey. I think I was introduced to him by Mr. Copus at the time and place of the meeting. We adjourned to lunch at a restaurant that we were standing in front of. We went upstairs in the restaurant, had some lunch. Nothing particular was spoken of there outside of the current topics. The room we lunched in was not a public dining room. It was a private room. Copus went up to lunch with us. I believe Mr. Halsey paid for the lunch. We were there possibly an hour or an hour and a half. We had Sauterne wine to drink, as well as I remember. The next time I saw Halsey to the best of my recollection was at his office on Bush street, in the telephone building there. It was some time between the 12th and 14th and the 20th of February, 1906, I should judge. I think I went there on that occasion on the invitation of Mr. Kraus, as well as I remember, that Mr. Halsey would like to see me. I found Halsey when I got there. I am not conversant with the building; I suppose the part of the building I met him in was his office. I don’t remember whether there was any one else in the room. I had a talk with him in there. No one else was present while I was talking with him that I am aware of. Mr. Halsey, as well as I remember, spoke to me about the foolishness of having a second telephone system in San Francisco. He told me the same as Mr. Kraus had told me—all they had accomplished, and that they were going to accomplish, and that it would cost merchants twofold for the other telephone, and they wanted to know if I would not be friendly toward them. I told him I was deeply impressed with the workings as I had seen them, and that I felt that I could be friendly to them. I cannot remember the exact words he then said at the time. The substance of it was that it would be to my interest to be friendly, or rather, that they would make it to my interest to be friendly to them, and I was told—I think it was at that meeting—that there would be five thousand dollars in it for my friendship down, and $2,500 the following year, provided I did not accept a commission, or any such thing as that while I remained a member of the Board of Supervisors. To the best of my recollection at that time I received from him one thousand dollars in currency. I put it in my pocket and took it home. The next time I saw Mr. Halsey was some few days later. It was the Saturday previous to the passing to print of the ordinance relative to the Home Telephone Company. That meeting was held in a room in the Mills Building. I cannot well recollect whether I was telephoned for or not; I possibly must have been. The meeting was up in the building some few stories. To the best of my recollection it was on the side of the building that looked out on Bush street, and not very far from the corner of Montgomery street. I found Mr. Kraus there when I went in. There was no one else in the room where Kraus was. That room was furnished with a table and a couple of chairs. Well, he asked me if he could depend upon me as to my friendship in regard to the Pacific States Telephone Company, and I told him I saw no reason why he could not. I don’t remember whether anything was said about the Home Telephone Company franchise. There may have been. I can’t recollect just at this moment. He told me that he had a sufficiency of the members of the Board of Supervisors, to the best of my recollection, who were friendly towards the Pacific States, and that they did not particularly need Mr. Coffey, except that I had spoken well of him, and depending on my friendship, he gave me the four thousand dollars in currency. During our conversation I had mentioned Mr. Coffey as a friend of mine that I thought was particularly friendly towards them. I don’t well remember whether he then said he would see Mr. Coffey, or not, or whether he made answer. I do remember that he said at the latter meeting that they did not particularly need him, that he had a sufficiency of the members. I took it home and gave it to my wife.