CHAPTER XXI.
The San Francisco Election of 1907.

On the side of the defense, too, was the solid support of the powerful Southern Pacific Company, and of the various public service corporations, as well as the purchasable press. On the side of the prosecution stood the people of San Francisco, not yet worn out, nor misled, nor yet alienated from the policy of vigorous prosecution of the corrupters of the municipality. The people recognized that effective continuance of the prosecution required that Mr. Langdon be re-elected.

That the action of the prosecution in making Taylor Mayor, might be endorsed at the polls—thus receiving the stamp of public approval—Mr. Taylor’s election became quite as important as that of Mr. Langdon. The same was true of those of the Taylor-appointed Supervisors who became candidates for election. But the contest waged about the election of Taylor and Langdon.

Such was the issue which confronted San Francisco at the 1907 election.

There was but one issue. There were, however, three prominent political parties, Union Labor, Republican and Democratic. None of the three could be called the prosecution party, nor for that matter, the defense party; nor had any faction of any of the parties the temerity to declare against the prosecution of those trapped in corruption, however vigorously opposed to the prosecution this or that faction might be. But each of the three parties did divide on the question of the election of Langdon and Taylor.

Broadly speaking, the supporters of the prosecution in all parties demanded that Taylor and Langdon be nominated. The opponents of the prosecution, while declaring loudly for the prosecution of all offenders against the law, labored for their defeat. On this issue, not always clearly defined, the intraparty factions met at the primary polls. The prosecution, therefore, had three independent political fights on its hands.

Langdon had been elected by the Union Labor party. Taylor was a Democrat. But in the confusion of the times the principal primary fight was within the Republican party.

The Republican opposition to those roughly described as “pro-prosecution,” found expression in the remnants of the old-time machine—generally called Herrin—element. At its head were many of the experienced machine leaders. The Republican pro-prosecution forces were at first without definite leadership. But in this emergency most effective leadership developed.

Daniel A. Ryan, a young “Irish-American,” came to the fore as captain of the reform forces within the Republican party.

Ryan is of the highest type of his race, as developed under the advantageous conditions to which the immigrant and his descendants have, in these United States, been admitted. Well educated, forceful, a brilliant speaker, effective as an organizer, a lover of the political game, Ryan was soon the recognized leader of the new movement.

He was trusted implicitly. The selection of candidates for convention places was left largely in his hands. Under Mr. Ryan’s leadership the fight for effective continuation of the Graft Prosecution was carried on within the Republican party.

The division in the Union Labor party was scarcely less pronounced. The party, roughly speaking, divided with P. H. McCarthy heading the anti-prosecution side, and men of the type of Walter Macarthur, one of the founders of the party, leading the forces supporting Langdon and his associates.

But here again there was most confusing division. Thomas F. Eagan, chairman of the Union Labor Party County Committee, for example, was quoted within a week of the primaries, as announcing: “Schmitz is an ideal candidate (for Mayor). If available, he would be nominated by the delegates that will be elected on the regular Union Labor ticket.” Nevertheless, Mr. Eagan was unalterably opposed to Mr. McCarthy heading the ticket.

The Democratic division was less pronounced than in either the Republican or Union Labor party. The side favoring Taylor, without much reference to Langdon, went to the primary polls under the regular Democratic leadership, with Thomas W. Hickey, chairman of the Democratic County Central Committee, at its head. Prominent in the opposition was Lewis F. Byington, who had preceded Mr. Langdon as District Attorney. Mr. Byington was brother-in-law of General Tirey L. Ford, even then under trial for bribery, and one of General Ford’s attorneys.

In the confusion of these many-sided contests, the defense had its best opportunity for success. But the result, so far as the Democratic and Republican parties were concerned, was overwhelmingly successful for the prosecution.[320]

Of the delegates to the Republican convention the Ryan (pro-prosecution) forces elected 142, the “Herrin” (anti-prosecution) forces 7 only. Of the 164 delegates to the Democratic convention, 161 were elected by the regular (pro-prosecution) element, and 3 by the Byington (anti-prosecution) side. The popular vote within these parties was scarcely less pronounced.[321] On the other hand, within the Union Labor party the anti-prosecution forces were overwhelmingly successful, the McCarthy faction electing 185 delegates and the forces led by Walter Macarthur and his associates 13 only.

Under the alignment, it was expected that the Republicans and Democrats would unite without hesitation upon Taylor and Langdon, leaving the cause of the indicted corporation managers to find expression in the Union Labor party platform and candidates.[322]

But scarcely had the primary returns been made public than the San Francisco Call, generally regarded as staunchly on the side of the prosecution, brought confusion upon the pro-prosecution element, by suggesting the candidacy of Mr. Ryan for Mayor and belittling the candidacy of Mayor Taylor.

“That the Democrats will nominate Mayor Taylor,” said The Call, “is more than doubtful. Mayor Taylor was drafted into the city’s service. He has not given any indication of a desire to serve the city as the head of its government after the time when a popularly selected successor could be qualified. If the Democrats do not nominate Dr. Taylor, the Republicans would scarcely be expected to do so. The fact that the men who will make up an almost exclusive majority of the Republican convention seem to be committed to the idea of nominating Ryan appears to preclude the nomination of Taylor by either party.”

The source of The Call’s information is not apparent. Up to the time of the publication of its article, August 15, there was no sentiment in San Francisco for the election of Mr. Ryan to the Mayoralty. On the contrary, the understanding was that Mr. Ryan had entered the contest from motives of good citizenship only, and that he was in no sense a seeker of office for himself.[323] Such had been the understanding during the primary campaign; such was the sense of the community after the primary vote had been cast.

All recognized, however, that Mr. Ryan was in a position of great power. He had been trusted implicitly. The selection of anti-Herrin candidates for delegates had been left largely in his hands. Few thought, however, that he had selected delegates for the purpose of giving himself the Republican nomination for the Mayoralty. Then, again, aside from the confusion his candidacy would work in the ranks of the anti-Herrin, pro-prosecution element, Mr. Ryan, while a pleasing young man and clever politician, it was generally recognized had few qualities usually looked for in the Mayor of a community of half a million people.

To add to the confusion, The Examiner, which was now in active opposition to the prosecution, came out strongly against Mr. Ryan’s candidacy, denouncing it as “a grotesque piece of effrontery.” “For the primary leader,” said The Examiner, “to appropriate the office to himself, is like the agent of a charity fund determining that he is the most worthy object of the charity, and putting[324] the money in his own pocket.”

But Ryan’s candidacy was not to be defeated by adverse criticism. Mr. Ryan had been largely instrumental in selecting the Republican delegates who were to name the candidates. Besides, he had the clever support, in its local columns at least, of the San Francisco Call. He had about him a number of enthusiastic young men who were ambitiously active in urging his candidacy.

“Every time the Taylor boomers gain a man they lose one,” announced Perry Newberry, Secretary of Mr. Ryan’s organization, and Ryan’s right-hand man. “As far as the Republicans are concerned Daniel A. Ryan is as good as named. It will be Ryan, not Taylor, who will sweep the city.”

With the advocacy of Ryan’s candidacy, came quiet, systematic opposition to the nomination of Langdon.

With Mr. Ryan and his associates in control of the convention that was to nominate, it began to look as though the victory which the pro-prosecution Republicans, under Mr. Ryan’s leadership, had won at the primaries, was barren indeed.

Among the Democrats, the opposition to Langdon and Taylor was even more discouraging. Langdon had been candidate for Governor two years before on the Independence League ticket. Theodore A. Bell had had the Democratic and Union Labor nominations. Bell had been defeated by a plurality. Bell ascribed his defeat to Langdon. The so-called Bell Democrats accordingly made this an excuse for objecting to Langdon.[325] As to Taylor, with the ability of the forces at work to defeat the prosecution considered, opinion gained daily that the failure of the Republican convention to nominate Taylor, would be followed by a refusal of the Democrats to give him nomination.

Thus with the supporters of the prosecution overwhelmingly successful at the Republican and Democratic primaries, there was grave danger that their purposes would be set aside by political manipulation.

But at this crisis a new element was injected into the situation.

Citizens who stood for enforcement of the law hastily formed a non-partisan organization to uphold the hands of the prosecution.[326] They called their organization the Good Government League. Taking for their motto “CITIZENSHIP ABOVE PARTISANSHIP,” they boldly announced their support of Langdon for District Attorney, and of Taylor for Mayor.

The attitude of San Francisco toward the Graft Prosecution was shown by the reception given the new organization. Citizens by the thousands sent in their application for membership. Funds for the purposes of the campaign were forwarded by men in all walks of life.

The Democratic leaders were the first to appreciate the significance of the reception given the new movement. What was practically a combination between the two forces resulted. This insured the nomination of Langdon and Taylor by the Democrats. It also assured the nomination of Langdon by the Republicans, for after the stand taken by the Good Government League, for either Republican or Democratic party to have rejected Langdon would have been an exhibition of “poor politics.” But Ryan still controlled the Republican convention. The Republican convention nominated Mr. Ryan for Mayor.

Mr. Ryan’s nomination was not accomplished without protest. The citizens who attended the convention as spectators were overwhelmingly for Taylor. Taylor received 53 out of the 148 convention votes, 95 being cast for Mr. Ryan. The minority charged that in the nomination of Mr. Ryan, the Republicans of San Francisco had been betrayed, and that they would not be bound by the nomination nor support the nominee.[327]

The Union Labor party, following out its policy of opposition to the prosecution, nominated P. H. McCarthy[328] for Mayor, and Frank McGowan for District Attorney.

The planks of the several parties dealing with the prosecution were characteristic of the conventions from which they issued.

The Union Labor plank definitely pledged its candidate for District Attorney to prosecution of the Supervisors who had confessed to bribe-taking although it had been clearly pointed out that such prosecution would bar effective prosecution of those responsible for the bribe-giving.[329]

The Republican plank left the reader in doubt as to whether or not the delinquent Supervisors were to be prosecuted. The Democratic plank alone pledged unqualified support to the prosecution “in any effort it may make to convict any guilty person.”[330]

The new alignment which followed the clearing of the atmosphere by the nomination of candidates, and the adoption of platforms, involved some astonishing changes.

The Examiner, which, on September 19, preceding the nominations, had described Mr. Ryan’s candidacy as “a grotesque piece of effrontery,” and compared him to the custodian of a trust fund who puts the money in his own pocket, announced its support of Mr. Ryan for Mayor. On October 20, a month and a day after publication of the custodian-of-a-trust-fund editorial article, The Examiner “unhesitatingly recommended to all the voters of San Francisco,” Mr. Ryan, “as the man best qualified to be the next Mayor of the city.”

On the other hand, The Call, which was the first to suggest Mr. Ryan’s candidacy, describing him a heroic young “boss buster,” to whom the Democrats could logically turn for a mayoralty candidate, after his nomination, described him as “a cheap politician itching for office,”[331] whose candidacy was the one element which threw a doubt upon the election of Mayor Taylor. Following the conventions, The Call supported Taylor as against the field.

The Chronicle tactfully refrained from taking sides until after the nominations were announced.[332] Then The Chronicle gave support to Taylor. If the shifting policy of the newspapers had raised a doubt as to where the people of San Francisco stood on the issue, that doubt was dispelled by the opening meeting of the Taylor-Langdon campaign. The largest auditorium in San Francisco was packed to the doors,[333] with citizens whose one purpose, expressed by approving cheers every time the subject was mentioned, was support of the prosecution which had broken up the Schmitz-Ruef organization, and which bade fair to bring to book the corrupters of the municipal government.

The meeting was thoroughly representative. Labor touched elbows with capital. Among the speakers were representative Labor Union leaders, who had definitely broken with the Union Labor party.

“It is inconceivable to me,” said Walter Macarthur, one of the organizers of the Union Labor party, in a ringing address, “that any honest thinking labor man would stand for the proposition that those men who have debauched the officials of our city should go scot free while the victims of their cupidity be sent behind the prison bars alone. I believe that labor will join with all honest people in declaring that if the corrupt bribe-taker is punished the man who is at the head of this corruption must be punished also. That is the issue of this campaign and I believe that election day will prove the virtue of my faith.”

That the contest for the District Attorney’s office overshadowed in importance the mayoralty fight was fully recognized. The Union Labor party, which had nominated and elected Langdon in 1905, had repudiated him, and named Frank McGowan as Langdon’s only serious opponent. The Republicans and Democrats, who had under a fusion arrangement in 1905 opposed Langdon’s election; united, in 1907, to fight for his continuance in office. The public service corporations, especially those whose officials were under indictment, generally opposed Mr. Langdon’s election, and supported the candidacy of his Union Labor party opponent.

This was particularly astonishing in the case of the United Railroads, whose president, Mr. Patrick Calhoun, was even then posing as a “labor union buster,” while the United Railroads was very effectively grinding to pieces the San Francisco Carmen’s Union.[334]

Nevertheless, there was certain consistency in the political course taken by the United Railroads. Whatever the differences President Calhoun, in his role as a “union buster,” may have had with the labor union, there was much in common between him and the San Francisco Union Labor party as headed by Mr. McCarthy.[335] President Calhoun and his company opposed the prosecution vigorously. Mr. McCarthy and his party went quite as far in this opposition. President Calhoun was most emphatic in his denunciation of those who had made the graft prosecution possible. Mr. McCarthy was scarcely less emphatic in his denunciation. Indeed, Mr. McCarthy opened his campaign with an attack upon the graft prosecution. Inasmuch as the one issue before the people was the continuance of the graft prosecution along the lines that had proved so distasteful to Mr. Calhoun and those in the same predicament as himself, the support of the Union Labor party candidate for District Attorney by a union-labor-busting corporation was not entirely inconsistent.

And yet, Mr. McGowan, the Union Labor party candidate, definitely pledged himself to continue the prosecution, but he promised that the prosecution which he would carry on should not “disturb business,” that Heney[336] should no longer be retained as special prosecutor, that the Supervisors who had confessed to bribe-giving should be prosecuted[337] as well as those who had given bribes.

This last was one of the chief arguments advanced in support of Mr. McGowan’s candidacy. On the ground that a mistake had been made, if a wrong had not been done, when the Supervisors were granted immunity,[338] it was urged that Mr. Langdon should not be continued in the District Attorney’s office.

The election returns[339] were conclusive of San Francisco’s attitude on the several issues raised. Taylor was elected Mayor, with a clear majority of 415 over all his competitors. Langdon’s majority over all competitors, including the Socialist candidate, was 13,510, his plurality over McGowan being 14,808. And with the election of Taylor and Langdon[340] were elected all the Good Government League candidates for Supervisors.

The Graft Prosecution had successfully passed another crisis. It had, too, received overwhelming endorsement of The People at the polls.

CHAPTER XXII.
Higher Courts Free Schmitz and Ruef.

The following day, January 9, the Appellate Court, for the First District, handed down a decision in the Schmitz extortion case, which, later sustained by the Supreme Court, unlocked the prison doors not only for Schmitz, but for Ruef also.[341]

The decision was the first serious setback in the graft cases that District Attorney Langdon’s office had received.

The prosecution had prevented Ruef seizing the District Attorney’s office; had defeated the efforts of the defense to have the indicting Grand Jury declared an invalid body; had overcome the resistance of the defendants to facing trial jurors; had, after meeting the clever opposition of the best legal talent obtainable for money, forced trials before juries and secured convictions; and finally, the prosecution had met the defense before the larger jury of The People, and, at the polls, had won again. But, with a stroke of the pen, the Appellate Court swept aside the greater part of the accomplishment of fifteen-months struggle against corruption. The court found the indictment under which Schmitz had been convicted of extortion to be insufficient and ordered the defendant to be discharged as to the indictment.

In as much as Ruef, Schmitz’s co-defendant, indicted jointly with him for extortion, had plead guilty to the same indictment as that under which Schmitz had been convicted, the effect of the decision was to free Ruef as well as Schmitz.

Before passing upon the sufficiency of the indictment, the court took occasion to deal with the points of error as raised by the defense. On five principal points the court found that error had been committed.[342] On this showing, the case could have been sent back to the Superior Court for re-trial. In that event, Ruef’s status would not have been affected. But the court went back of the trial to the indictment, on points raised in the defendant’s demurrer, found for the defendant, and held the indictment to be insufficient.

In the discussion of the decision which followed, criticism was confined almost exclusively to the court’s rulings on the sufficiency of the indictment. The point raised was that the indictment did not state facts sufficient to show that any public offense had been committed.

The court held in effect that the facts presented did not, under the definitions of the California codes, constitute the crime of extortion.

In the California Penal Code[343] extortion is defined as “the obtaining of property from another, with his consent, induced by a wrongful use of force, or fear or under color of official right.” The section following[344] defines “Fear such as will constitute extortion may be induced by a threat either: (1) to do an unlawful injury to the person or property of the individual threatened, or to any relative of his, or member of his family.”

The court found that the threat which induced the fear in the Schmitz-Ruef extortion cases, was a threat to prevent the parties from obtaining a liquor license, and thus to prevent them from carrying on the business of selling wines and liquors at retail. A license to sell liquor, the court showed, is not property in the ordinary sense of the word,[345] but a mere permission, and the license is but the evidence that the permission has been given by the proper authorities. “There is grave doubt,”[346] the court held, “as to whether a threat to prevent a party from obtaining a permission or license by one who has no authority in the premises, is a threat to injure property within the meaning of the sections quoted.”

But the court found it unnecessary to decide this question, for the reason it held the indictment insufficient “because it does not allege nor show that the specific injury threatened was an unlawful injury.”[347]

To the man on the street, the reading of the opinion conveyed the impression at least, that according to the Appellate Court, when Schmitz had shown his power to prevent the French Restaurants getting their licenses, thus endangering investments valued as high as $400,000, and Ruef because of the fear engendered by this showing, acting with Schmitz, had secured large sums of money from the enterprises thus threatened, the crime of extortion had not been committed.

The decision was received with protest[348] and denunciation. The Call dubbed it “bad law, bad logic and bad morals.” “Any ordinary intelligence,” said The Examiner, “would construe the threat to take away a license to sell liquor from a restaurant unless a certain sum of money was paid as the plainest kind of extortion.”

“When,” said Dr. William Rader of Calvary Presbyterian church, in a sermon preached on the evening of the Sunday after the decision was made public, January 12, 1908, “extortion is not a crime, when bribery is not even a wrong, when a confessed felon can learn that he is really righteous, and that his trial, confession and conviction have all been nothing but a mistake—a slight mistake—I repeat that however correct this may be legally and ethically, it has the effect of making us stand amazed at the rapid revolutions of the legal wheels. Perhaps tomorrow we shall learn that this last decision has been a mistake, too. I hope so; I believe so.”

“We of this city,” said Rev. Dr. Evans at Grace Episcopal Cathedral, “are dumbfounded by a judicial pronouncement which enables the high officials of our city to rob and plunder without any technical breaking of the law. It is enough—such an audacious mockery of the first principles of common sense—to justify the appointment of a lunacy commission to inquire into the sanity of men who could formulate such a judgment and it ought to provoke an explosion of righteous indignation from one end of the State to the other. We need not hesitate to declare that such an opinion as this has its inspiration in that place where public sentiment without a single dissenting note would give it its unanimous approval.”

The decision did not immediately release Ruef and Schmitz. The prosecution had still an appeal to the Supreme Court for a re-hearing and, pending such an appeal, the defendants remained behind the bars. This delay annoyed those interested in seeing the graft defendants go free. Stories were circulated that the prosecution would not appeal. But the prosecution did appeal. Three months later, the Supreme Court rendered its decision.[349]

The decision was against the prosecution.

“The (Supreme) court is unanimous in the opinion,” the decision read, “that the District Court of Appeal was correct in its conclusion that the indictment was insufficient, in that it did not show that the specific injury to the property of the restaurant-keepers threatened by the defendant was an ‘unlawful injury.’”

The Supreme Court went a step further than the Appellate Court had done and attacked the indictment on the ground that it had not set forth that Schmitz was Mayor at the time of the alleged extortion, nor that Ruef was a political boss practically in control of the municipal government.

The prosecution in its application for a rehearing had set forth that “it will be found and decided by this court that levying blackmail upon licensed businesses by the Mayor and the political boss of a metropolitan community is a crime under the law of California and should not go unwhipped of justice.”

This observation was denounced in the Supreme Court’s decision as “a gross misstatement of the case and of the question to be decided as presented by the indictment.”

“We again emphasize the fact,” reads the opinion, “that the indictment does not aver that Schmitz was Mayor, or that Ruef was a political boss, or that either of them had any power, or influence, or control over the Police Commissioners, or that they threatened to use such power, influence or control in preventing the issuance of a license.”

The storm of protest with which this opinion was received was even greater than that which followed the Appellate Court decision. Once more did press, pulpit and public, from one end of the State to the other, join in expression of indignation.

The court in return insisted that it was misrepresented and misunderstood. Chief Justice W. H. Beatty essayed the task of writing an explanation of the ruling, that “the man on the street” might understand.

The Chief Justice’s article appeared in the Sacramento Bee of April 29, 1908.[350] Again was the omission from the indictment of the fact that Schmitz was Mayor and Ruef a boss, emphasized.[351] And again, it may be added, did the stupid man on the street fail to understand. In fact, disapproval of the decision continued. Heney attacked it respectfully in tone, but with sharp criticism.[352]

James M. Kerr,[353] in his Cyclopedia Penal Code of California, published in 1908, declared in effect that in the Schmitz decision the Supreme Court of California formulated bad law and advocated bad pleading.

As for Ruef’s position as a political boss, Kerr contended, it was merely a matter of evidence, and not a matter to be pleaded. “The Supreme Court,” concludes the law writer, “seems to lose sight of the fact that the crime of extortion in this State is not confined to persons in office and exercising official influence.”

Dean John H. Wigmore of the Northwestern University School of Law, and author of the standard work, Wigmore on Evidence, in a crushing criticism of the decision and the various documents in the case, charged the Chief Justice with being “plainly inconsistent.”

“The truth is,” said Dean Wigmore, “that the learned Chief Justice in endeavoring to support his decision weaves a logical web and then entangles himself in it.”[354] The moral of the Schmitz decision is, Dean Wigmore concludes, “that our profession must be educated out of such vicious habits of thought.”

The extravagance of the criticism of the decision was more than equaled by the claims made by the opposition to the prosecution, of its effect upon the status of Schmitz and Ruef.

“Schmitz,” said a writer in The Chronicle, “is now thoroughly exonerated of the charge of having squeezed money from Malfanti, the French-restaurant man.”

However this may have been, the practical result of the decision was that both Schmitz and Ruef, with no convictions against them, by furnishing bonds in the bribery cases, were able to walk out of prison.

Schmitz did not return as a prisoner. Ruef enjoyed his liberty until November, 1908.

CHAPTER XXIII.
The Defense Becomes Arrogant.

The Call, supporting the prosecution, boldly charged that the graft defendants were in treaty with Ruef.[356] And this view the District Attorney’s office was finally forced to accept.

No sooner had the decision of the Appellate Court been made public than Ruef clamored for dismissal of the extortion charge to which he had plead guilty, but which the higher court had decided in the Schmitz case did not constitute a public offense. In this Ruef was backed by Rabbis Nieto and Kaplan.

Ruef, after the Schmitz-Ruef officials had been swept out of office, had been confined in the county jail. From the day of his jail imprisonment the two Rabbis besought the District Attorney day and night[357] not to force the broken boss to remain behind the bars.[358]

Langdon, not having decided at the time to appeal from the Appellate Court decision to the Supreme Court, finally yielded to the importunities of the two clergy-men and stated to Judge Dunne that Ruef wanted to make a motion to withdraw his plea of guilty in the extortion case. Judge Dunne replied that he would not consider such motion.[359]

This closed the incident so far as dismissal of the case before the Supreme Court could pass upon it, was concerned. But it did not stop Ruef’s insistence that not only should he be allowed to withdraw his plea of guilty, but that he be given complete immunity from prosecution of all the charges against him.

Langdon, even before he had spoken to Judge Dunne about permitting Ruef to withdraw his plea, had become convinced, as Heney had become convinced long before, that Ruef was not playing fair with the prosecution. Ruef, when confronted with charges of holding back evidence, shifted and evaded, until Langdon, losing patience, charged him with falsehood.

About the middle of January, evidence came into Langdon’s possession[360] which convinced him beyond a shadow of a doubt that Ruef, instead of observing the immunity contract, was, as a matter of fact, dealing with and assisting his co-defendants, advising them of every move.

Langdon[361] at once called Ruef before him and notified him that the immunity contract was canceled.[362]

The abrogation of the immunity contract brought open break between Ruef and the prosecution. Ruef set up claim that under his immunity contract all the graft cases were to be dismissed against him, including that under which he had plead guilty to extortion. He insisted that he had lived up to his part of the agreement and charged that the prosecution was breaking faith.

In this position, Ruef was backed up by Rabbis Kaplan and Nieto, who for months had been clamorously active in his behalf. Indeed, long before the open breach had come, so persistent had the Rabbis become in their insistence that Ruef be released, that Heney had found it necessary to request Kaplan to remain away from his office.[363] When Ruef finally broke with the prosecution, the two Rabbis were to the fore backing up his contention that the prosecution was not keeping faith with him.[364]

Kaplan soon after filed an affidavit setting forth that under the agreement with the prosecution, Ruef was to have had complete immunity, and be allowed to withdraw his plea of guilty in the extortion case. Later on, Nieto, “Ruef’s diplomatic middle man,” as he was called, filed an affidavit to the same effect. Ruef, on his part, filed a voluminous affidavit, purporting to cover all his transactions with the prosecution, in which he not only set up the claim that he was to have been given complete immunity but alleged that Langdon, Heney and Burns, were guilty of subornation of perjury in having endeavored to get him to swear falsely against Schmitz and Ford.

Rabbis Kaplan and Nieto, in their affidavits gave versions of the meetings with Judges Dunne and Lawlor, when the Judges stated their confidence in the District Attorney and his assistants, which differed from the accounts contained in the affidavit of Heney and the judges.[365] This brought the trial judges as well as the assistant prosecuting attorney into the controversy.

The members of the Grand Jury that had indicted the graft defendants had already had their trials in open court;[366] petit jurors and witnesses had, in effect, been on trial also. And now District Attorney and trial judges were placed on their defense.[367]

Other graft defendants joined in the upholding of Ruef and the denunciation of the prosecution. Adverse newspapers joined in the cry of unfairness and hinted at worse. The story became current that no appeal would be made from the Appellate Court’s decision in the Schmitz case to the Supreme Court. Another story had it that the prosecution was breaking down, that the situation had become so complicated that no other trials could be had.[368]

On the other hand, the outcry did not in the least shake the faith of the citizens who were insisting upon the crushing out of corruption at the State’s metropolis. Colonel Harris Weinstock, one of the largest merchants of the State, in a ringing address condemned the efforts made to discredit the prosecution.[369] The same position was taken in pulpit, club room and street discussion. From all parts of the State resolutions and memorials were sent the prosecution approving and upholding its work.[370] And doggedly the prosecution proceeded to justify the expressions of confidence in its singleness of purpose and in its ability to cope with the tremendous odds brought against it.

The immediate indictments about which the controversy raised by Ruef’s claim for immunity centered were those in the United Railroad cases. The prosecution accordingly went before the Grand Jury then sitting—the Oliver Grand Jury which had brought the original indictments had long since adjourned—and secured three indictments against Ruef, Calhoun and Ford for the bribery of three Supervisors, Furey, Nicholas and Coleman.

In these indictments every technical error which the ingenuity of the defense had brought out was eliminated. The new indictments were not secured because the prosecution regarded the objections as having merit, but that the District Attorney’s office might be prepared to meet any emergency which might arise.[371]

The next step was to bring Ruef to trial. The prosecution selected the indictment under which Ruef had been brought to bar for offering a bribe to Supervisor Jennings Phillips to vote for the Parkside street railroad franchise.[372]

Prospect of immediate trial made a different man of Ruef. He was at once seized with the panic which had come upon him when the jury had been completed to try him on the extortion charge. He begged for time. He insisted that he was without counsel. He asked for three weeks, a week, even two days.[373]

Then came an entirely new technical defense based upon the immunity contract. Ruef alleged that he had been deprived of his constitutional rights as a defendant, by following the set program outlined in the contract. But here Ruef had over-reached himself. He had on January 31 entered a plea of not guilty in the Parkside case, the case on trial. The District Attorney had abrogated the immunity contract thirteen days before, on January 18. Whatever technical advantage Ruef may have had because of the immunity contract was forfeited by his plea of not guilty after its annulment.

His attorney gravely contended, however, that Ruef—one of the shrewdest practitioners at the San Francisco bar—was without legal counsel when he had entered his plea, and that he had therefore innocently foregone his constitutional rights. This contention provoked a smile even from Ruef’s partisans. The point was not urged further.

Seeing that trial could not be warded off on technicalities, Ruef endeavored to disqualify Judge Dunne, the trial judge. But this move proved premature. Judge Dunne was about to go on his vacation and Judge Dooling,[374] a Superior Court Judge from the interior, was called to sit in Judge Dunne’s stead. Ruef thereupon proceeded to disqualify Judge Dooling. He alleged that Judge Dooling, as Grand President of the Native Sons of the Golden West, had signed an order expelling him (Ruef) from the order; he alleged further that Judge Dooling had attacked him in a speech at a banquet.

Judge Dooling, placed on trial as Judges Lawlor and Dunne had been, was forced to make defense. He denied in affidavits that he had ever specially mentioned Ruef’s name in any speech, but admitted that he might have said that any man guilty of crime should be expelled from the Native Sons order.

Ruef went to the Appellate Court for a writ of prohibition to prevent Judge Dooling trying the case. The Appellate Court denied his petition. Then Ruef went to the Supreme Court. Here again his prayer was denied. Thus, protesting as vigorously as a cat pulled over a carpet by the tail, was Ruef for a second time dragged to trial. The work of securing a jury to try him began.

Gradually, the jury box filled. But before it was completed there occurred an incident of the prosecution even more startling than the sending of cash books out of the State, the trailing of members of the prosecution by agents of the defense,[375] the disappearance of witnesses, the larceny of the prosecution’s records, or the attempted kidnaping of Witness Lonergan and Editor Older.

On the eve of taking testimony in the Ruef case an attempt was made to murder James L. Gallagher by dynamiting his residence. Gallagher was the pivotal witness against Ruef, as well as against Ford, then on trial.

In the Ruef case, Gallagher had taken word from Ruef to the Supervisors that there would be $750—later increased to $1000—for each of them if they granted the Parkside franchise. Without Gallagher’s testimony the case against Ruef would fall flat.

General Ford’s third trial was then in progress and well advanced. Here again, Gallagher was the pivotal witness. He had taken the trolley bribe money from Ruef to the Supervisors. He supplied the link between those who had been bribed, and Ruef. His testimony was indispensable if Ruef and Ford—then on trial—were to be convicted. His testimony was equally necessary in the cases against Calhoun, Drum, in fact all the graft defendants, except those who had dealt directly with the Supervisors.

The evening of the day following Gallagher’s testimony in the Ford case, but before he appeared at the Ruef trial, dynamite was exploded at the front doors of the house in which he was residing. The dynamite had been placed next to the dining room. Gallagher was at the time living at the home of W. H. H. Schenck at Oakland.

So violent was the explosion that the house, a frame building, was split in twain. A pillar from the porch was thrown 150 feet. In the building on the adjoining premises, every window was broken. The family had just completed the evening meal and a number of them were still seated around the table. The table was split from end to end. At the moment of the explosion, one of those in the house was showing a curious watch guard and had the watch in his hand. The watch stopped, thus fixing the exact time of the explosion, 7:30 P. M.

There were in the house at the time of the explosion, W. H. H. Schenck and wife, and three children, the youngest seven years old; Lieutenant Guy Brown of the National Guard; and Gallagher and his wife. Every one in the building was thrown down by the force of the explosion, but extraordinary to say, none of them was seriously injured. Gallagher and his wife were in an upper room of the building. The stairway was demolished, and Gallagher was obliged to lower his wife to the ground, getting down himself the best way he could.

A month later three buildings in Oakland belonging to Gallagher were destroyed by dynamite. Soon after this second explosion a young Greek, John Claudianes, was arrested and charged with the outrage.

Claudianes made full confession, involving his brother Peter as principal. Peter Claudianes was finally captured at Chicago. On his return to San Francisco he confessed,[376] stating that he had been employed by a Greek, one Felix Pauduveris,[377] to murder Gallagher. Felix Pauduveris fled the city and the police of the world have been unable to locate him. Peter Claudianes was convicted of the attempt upon Gallagher’s life, was sentenced to prison for life, and at present writing is confined in San Quentin prison.[378]

Quite as extraordinary as the attempted assassination of Gallagher was the indifference with which the outrage was received by the press that was supporting the graft defense.[379] The Chronicle condemned the outrage, but took occasion to denounce Gallagher.[380] The weekly press, however, treated the affair as something of a joke on the confessed bribe-taker.[381]

In the face of the ridicule of the graft-defense press, the dynamiting of witnesses, and the continent-wide hunt for the dynamiters, the Ruef trial went steadily on.

One incident of the beginning of the trial, because of the event that grew out of it, eventually proved even more important than the trial itself.

During the examination of jurors, an ex-convict, one Morris Haas, was discovered to have been sworn to try the case. Heney exposed him and he was excused from service.[382] The incident, compared with the other tremendous happenings of the time, was of small importance, but it was destined to lead to the greatest outrage of all the history of the prosecution, the shooting down of Assistant District Attorney Heney in open court. But for the time, Haas passed out of the graft cases and was forgotten.

The Ruef trial was not unlike the Ford trials. The courtroom was packed with detectives, agents and thugs employed by the various graft defendants.[383] There was the same hesitancy on the part of witnesses. At one stage of the proceedings Ach, Ruef’s chief of counsel, sneered that the State was having trouble with its own witness.

“Yes,” replied Heney, “The People have no witness—no volunteer witnesses. We merely produce them.”

When J. E. Green, president of the Parkside Company, who had authorized the payments to Ruef, refused to testify on the ground that he might incriminate himself, it looked as though the case was going against the prosecution. But Heney met this objection. He promptly moved the dismissal of the fourteen indictments pending against Green.[384] Ach objected, but the motion was granted. Green was left free to testify.

Green testified how he had sent his attorney,[385] Judge Walter C. Cope, to Ruef to find out what Ruef was after. Ruef wanted $50,000 to put the franchise through. Green testified that Ruef finally agreed to take $30,000, and was actually paid $15,000 on account.

G. H. Umbsen testified to having received $30,000 from the Parkside Company for Ruef and had paid Ruef $15,000, the balance being held until the deal should be consummated. In addition to this, the sorry manner[386] in which the company’s books had been juggled to cover up the transaction was shown by witnesses connected with the Parkside Company.

Ruef’s intimation through his attorney that the money had been paid as a fee was offset by testimony that the books had been juggled to cover up the payment to Ruef because Ruef was the political boss of the city, and it was believed that it would do the company no good if the fact of his employment were known.

Gallagher testified that he had been Ruef’s representative on the board; that Ruef had told him that the Parkside franchise was to be held up and delayed; that later Ruef had stated that each Supervisor would receive $750 because of the Parkside deal; that finally, after the fire, Ruef had told witness that the Parkside people wanted the franchise in a new form, and that the $750 to each Supervisor would be increased to $1,000; that he (Gallagher) had conveyed this information to the Supervisors. Supervisors testified to having been given the information by Gallagher.

Ruef offered no testimony. The jury was out forty-three hours. By a vote of 6 to 6 the jury failed to agree. Again a graft trial had ended in discouraging failure for the prosecution.[387]

After the disagreement of the jury in the Ruef Parkside case, to judge from most of the San Francisco public prints of the time, the prosecution was utterly discredited in San Francisco. But there is a surer means of estimating public opinion—namely, by the votes of the people.

Much of the graft defense’s abuse and vilification was heaped upon Judges Lawlor and Dunne, who had stood firmly for enforcement of the law regardless of who might be affected. Judge Dunne’s term as Superior Judge was to expire in 1909. He was, at the November election of 1908, a candidate for re-election.

Judge Dunne was frankly fought by the graft defense, and supported by those who approved the work of the prosecution. The Republican county convention refused to nominate him, and hissed his name. The Union Labor party convention received his name with a turmoil of hoots and jeers. A letter to the last-named convention from the Good Government League urging his nomination was thrown into the waste-paper basket.

On the other hand, when given opportunity for expression The People gave Judge Dunne encouraging endorsement. The Good Government League proceeded to have his name put on the ballot by petition. For the petition 1,765 signatures were required. Over 3,000 persons signed it the first day. The press—outside San Francisco—following the graft trials closely, was practically a unit in urging Judge Dunne’s return to the bench.[388] And in spite of the costly contest of his election, The People of San Francisco re-elected Judge Dunne.

Thus again were the contentions of the graft defense repudiated at the polls.

Another important endorsement of the prosecution came from the Board of Supervisors. The Supervisors provided in their annual budget $70,000 to meet the extraordinary expenditures because of the graft cases. Burns and the men who had theretofore been paid out of the fund controlled by Rudolph Spreckels, became regular municipal employees operating under the District Attorney.

The criticism of the defense had been that it was shameful that a privately-financed prosecution should be tolerated. Their cry now was at the shame of wasting the public funds on Burns and his staff. Action was instituted, through William H. Metson, to prevent the municipal officials paying Burns and his associates out of this fund. For months the salaries of those affected were held up. Although eventually the opposition to the prosecution lost in the contest, and the men were paid the amounts due them, the suit was an annoyance and a handicap.

But in spite of the tremendous opposition which the graft defense was working up, the prosecution went steadily on with its work. Ruef was put to trial for offering a bribe to Supervisor Furey to vote for the permit giving the United Railroads its overhead trolley franchise.