[333]The Call, in speaking of the Taylor-Langdon meeting said: “Young Mr. Ryan ought to have been at that meeting. We have nothing against Mr. Ryan except that he is not the man of the hour. We shall not even reproach him with his youth. That is not his fault and he will get over that. But he is not the man of the hour. The people have said it. Mr. Ryan embodies no principle. To the people of San Francisco he means nothing in particular at this critical time. He might have read that message in the mighty roar that went up from the meeting in welcome of Dr. Taylor. Mayor Taylor stands for something, stands for much. Mr. Ryan has only his own ambition and a certain command of language.”[334]The San Francisco Call, in its issue of November 5, charged that orders had gone out from the United Railroads to “vote for McCarthy and the Union Labor ticket—straight.” In the cars of the United Railroads appeared dodgers which read: “Workingmen. Workingmen—Are you going to put a big stick into Spreckels’ hands to club you over the head with?”[335]The same is true of the Los Angeles Times, which has a national reputation as an opponent of organized labor. The Times, while at issue with Mr. McCarthy on the question of the desirability of unions, was scarcely less vehement than he in denunciation of the San Francisco graft prosecution.[336]One of the allegations made against Heney was that he would not prosecute Patrick Calhoun, because Heney’s brother-in-law was employed by Calhoun as a detective. This argument was intended to weaken Heney and the prosecution with the union element that Calhoun was endeavoring to crush.[337]In a political advertisement which appeared in the San Francisco Call November 3, 1907, Mr. McGowan said: “If elected District Attorney I will prosecute every man accused of crime, regardless of his position in life. I will continue the present graft prosecution with more vigor, and the District Attorney’s office will not be used for politics, nor to disturb business. I will be the District Attorney in law and in fact, and I will never allow any man or set of men to control the office for any purpose. I will honorably enforce the law without the aid of any millionaire’s money.”[338]Langdon, at the opening of the Republican campaign, took up the question of the prosecution’s policy in granting immunity to the Supervisors. He said:“In this prosecution we have tried to be practical, to be effective. What would you have said if we had made a scapegoat of a petty criminal and let the giants go? What would you have said if in all this graft and corruption we had arrested and jailed two or three obscure Supervisors you had never heard of before they came to office, and will never hear of them again now that they are retired to private life, and had let escape the giants in crime?“There have been graft exposures before in the history of American municipalities and the graft has gone on. And it was bound to go on so long as the prosecutions failed to stop the sources of evil, to gather into the fold of the penitentiary the corrupt men of business and the corrupt political leaders who have dared to use weak men for their own ends. These giants in crime are perfectly willing that the physical life of the weak men they use shall be fed into the jails of the State to appease public wrath exactly as they have been willing to use up the moral life of these men to satisfy their own greedy needs in the Board of Supervisors. Profiting by the mistakes of previous prosecutions, this office has struck straight at the very roots of public graft: at the crooked public service corporations; but which of the criminals were to be allowed to give evidence for the State and enjoy its alluring protection; the giants of crime who have always been most responsible and who have always escaped or the petty, miserable fellows who have entered upon these things through ignorance and weakness?“Immunity had to be given in order that crime might be punished and it was given to the Supervisors that the very tap roots of political corruption might be torn from the soil in which they thrived. We did it because this prosecution has a moral as well as a legal significance. It is time to stop the cynicism of common men when they view democracy and say it is for the powerful and the rich: that the poor must go to jail for the theft of bread and the rich escape for the theft of privilege, the purchase of men’s souls and the degradation of government. It is time to stop the brazen and confident effrontery of the irresponsible criminal rich, who commit crimes and rest back, thinking they can buy judges as they bought legislators and executives, and knowing they can buy legal talent to interpose every technicality in every courtroom until justice is a human travesty tangled in its own web.“We are after the ‘men higher up’ because they are the severest menace to our institutions, the enduring factors that program and bribe each Board of Supervisors as they come and go. We are after the ‘men higher up’ so as to make criminal acquisition unprofitable in terms of human desire. We are after the ‘men higher up’ so that young men and women growing up in this and other communities will once more believe with ardent fervor not only that dishonesty does not pay, but that of all the goods on this earth the greatest treasure is a straightforward life.”[339]The vote for Mayor and for District Attorney was as follows:For Mayor—Taylor28,766Ryan9,255McCarthy17,583Reguin (Soc.)1,503For District Attorney—Langdon34,923McGowan20,115Kirk (Soc.)1,298[340]In commenting upon the outcome of the election, the Examiner, in its issue of November 6, said: “And this revolt of union labor against misrepresentation in office began long ago. Before the primaries, when most of the registering was done, it was observed that the number of Republicans recorded was far in excess of the adherents of union labor. The story was told then. Disgusted with the dishonesty of the men they had placed in office, finding the local Democratic party a mere memory, they registered as Republicans because they were determined to vote against the representatives of Ruef and Schmitz who had captured their organization.“Langdon’s majority will surprise no one. His election was a matter of course, for union labor, like all other decent elements in the community, was determined to sustain the prosecution of the grafters.“The swing of union labor to Taylor will surprise the gentlemen who have been so fond of assuming that the working people would vote as a class regardless of principle. The fact that they set aside all class feeling, all personal preference, and rolled up a big majority in favor of the man considered most likely to defeat the zebra-striped bandits who had captured their organization proves that government in America is safe in the hands of the plain people.“It is union labor, and union labor chiefly, which has saved San Francisco from McCarthy and McGowan.”“Yesterday,” said the Chronicle the morning after the election, “was a great day for San Francisco. It was the turn of the tide. It was the beginning of the ascent to nobler ideals and better days. The passions of the conflict will soon die away. With an honest government assured, capital will not shun us but seek us. And we can look back on the events of the last six years as we remember a nightmare from which we awake to find ourselves in security and peace.”“The indicted bribe-givers,” said the Call, “may as well make up their minds that there is no way of escape for them except through trial and by the verdicts of the juries. The people have spoken and they have said that the clean-up must be thorough. The sweeping success of Langdon means that the prosecution of the grafters will be pressed to its fitting conclusion upon the facts and under the law. There need be no delay now. Soon all the cases should be settled and another chapter added to the history of San Francisco—a chapter in which will have been written the means, the manner and the fullness of our atonement for Schmitz-Ruef chapter just before it, the vindication of the city’s good name.”[341]The opinion was written by Justice Cooper and concurred in by Justices Hall and Kerrigan. This is the same Kerrigan who appears in the Santa Cruz banquet scene picture, in which Ruef occupies the position of honor with the Republican nominee for Governor, J. M. Gillett, standing at his back with hand resting on Ruef’s shoulder. (See Chapter IV.) Supreme Justice Henshaw, whose sensational action in Ruef’s favor will appear in another chapter, is also one of the Santa Cruz banquet group.[342]The Appellate Court enumerated the following errors at the trial:(1) That the trial court erred in allowing the peremptory challenge of a juror after he had been sworn to try the case; and the removal, after he had been sworn, of a second juror without cause.(2) That error was committed in the appointment of the elisor that had charge of the jury.(3) That the court erred in admitting hearsay evidence of witnesses, Loupe, Blanco, Malfanti, Debret and Rosenthal.(4) That error was committed when Schmitz was required, under cross-examination, to answer question as to whether he had received from Ruef part of the money extorted from the French restaurant keepers.(5) That Ruef’s testimony that he had divided the money with Schmitz was not proper rebuttal evidence.[343]California Penal Code, Sec. 518.[344]California Penal Code, Sec. 519.[345]The general feeling regarding the Schmitz decision was well expressed by Attorney J. C. Hutchinson, in a letter to Justice Cooper. The letter follows:“Hon. James A. Cooper, Presiding Justice of the District Court of Appeals, First District, 1420 Sutter street, city. Dear Sir: Yours of the 15th inst. received. I did not expect you to reply to mine of the 13th inst., which was more in the nature of an ejaculatory protest than a letter. Nevertheless, I think you are right to reply, especially as I know you have replied to letters complimenting you on the same decision.“I have never before written a letter to a judge commenting upon a decision in which he had taken part, and I ordinarily would consider such a course highly unprofessional. During twenty-five years’ practice, I have always remained silent in the face of decisions, however adverse, even in some cases where I was perfectly well aware that improper influences behind the scenes had prevented me from obtaining justice. But in this case the situation is different from anything I have ever experienced. The very air seems to be full of revolutionary feeling. At the universities, clubs, in the trains, on the streets and in the home, I find no one (except the friends, connections and lawyers of the grafters) speak with anything but emphatic protest against this decision so far as it relates to the validity of the indictment.“I have cast no personal reflection upon yourself. The attack is upon the atmospheric environment of a statement which could lead a man of your integrity and intelligence honestly to believe that such a decision could be correct; and if the Supreme Court should unanimously hold the same, that would, according to my view, only make the matter so much the worse.“Very respectfully yours,“J. C. HUTCHINSON.”[346]See 7 Cal. App. Reports, page 330.[347]The Court, in discussing this point, said: “The indictment does use the words ‘unlawful injury’ in the first part of it; but when the facts are specifically set forth as to what the defendants threatened to do we find that the threat was that defendants ‘would prevent the said Joseph Malfanti, Charles Kelb and William Lafrenz from receiving said license or obtaining the same.’ There is no allegation that any unlawful act was threatened, and the attorneys for the prosecution frankly admit that they rely upon the fact that the defendants obtained the money by threatening to do an injury, which they claim was unlawful solely for the reason that the threats were made with intent to extort money. In other words, it is claimed that even though the French-restaurant proprietors were violating the law, and conducting immoral places used as resorts by lewd women, and thus not legally entitled to a license to sell liquor, a threat to prevent the issuance of licenses to such places by laying the facts before the Board of Police Commissioners in a legal manner, constitutes a crime if such threat was made with the intent to extort money. Such, in our opinion, is not the law. The statute uses the words that the threat must be to do ‘an unlawful injury’; and in order to charge a crime the indictment must aver in some way that the threat was to do an unlawful injury. It is apparent from the language of the statute which we have hereinbefore quoted, that it is not every kind of fear that will support a charge of extortion because of property obtained thereby. The fear must be induced by one of the threats enumerated in the statute. The Legislature has seen fit to provide that the threatened injury to property upon which a charge of extortion may be predicated must be an unlawful injury to property. That is, the injury threatened must be, in itself, unlawful, irrespective of the purpose with which the threat is made. As the word ‘unlawful’ is used in the statute it qualifies the ‘injury’ and not the ‘threat.’ Unlawful means contrary to law. It is true that from a high standard of ethics it could not be claimed that one could extort money by a threat to do a lawful act, if the intent was to get money by the use of the threat, but every wrong is not made a crime. There are many wrongs done every day that are not enumerated in the category of crimes contained in the Penal Code that are of much more serious consequence in their nature than others which are defined therein; but we must look to the statute to find whether or not an act is a public offense for which a prosecution will lie. To procure property from others by a mere threat to do a lawful act is not a crime. The object of the statute—or at least one of its objects—is to protect the party from whom the property is extorted; and if such party pays the money in order to secure protection in violating the law himself he cannot be heard to complain. He in such case would be a party to the violation of the law. In this case, if the parties as a fact paid the money in order to prevent the evidence as to the character of places they kept from being exposed to the Board of Police Commissioners, they are not in a position to complain.”[348]The Examiner, in its issue of January 11, 1908, said of the decision:“The District Court of Appeal has overturned the conviction of Mayor Schmitz on the ground that threatening to prevent the French-restaurant keepers from getting a license to sell liquor does not constitute the crime of extortion, with which he is charged. This is one of the decisions that will aggravate the dissatisfaction of the public with the courts.“Abe Ruef, once political boss of San Francisco, testified that he had divided with the Mayor the ‘fees’ for getting the licenses which Schmitz had held up until the money was paid. ‘A license to sell liquor is not property in the ordinary sense of the word,’ declares the court, making the point that the indictment ‘does not allege any threat to injure property.’“Any ordinary intelligence 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, particularly when the Mayor was shown to have shared in the money thus exacted, and the fact that the contrary ruling of a court acts as a release of a man whose guilt was clearly established, will not change that view.”“Even the lay mind,” said the Call, “is competent to reach the conclusion that this decision is bad law, bad logic and had morals.”The decision was generally condemned by the interior press. The Sacramento Bee denounced it as a “palpable evasion of justice.” The Oakland Enquirer stated that it came as a “shock and a surprise to the law-respecting people of California and of the entire country.” “San Francisco in particular,” said the Los Angeles Evening News, “California in general and the republic at large have suffered great wrong by reason of this reprehensible decision.”[349]See California Appellate Reports, in which the Supreme Court decision is printed, Vol. No. 7, Page 369.[350]The Bee prefaced the Chief Justice’s article with the following statement: “The decision of the Supreme Court of California in the case of Eugene Schmitz is one not only of State but even of national importance. It has been the fruitful topic of varied comment throughout the Union. And yet, after all the discussion, there remains a prevailing ignorance as to WHAT WAS DECIDED; and even among those laymen who had a fair idea upon that point, there is certainly little if any knowledge as to WHY IT WAS SO DECIDED.“Having a very high idea of the granitic probity of Chief Justice Beatty of the Supreme Court, and believing it to be the duty of that Court to answer when citizens respectfully ask for light, the editor of this paper on March 31st last wrote to Chief Justice Beatty and asked him to publicly explain just what the Court had decided and just why it had so decided; to explain it so that the man in the street might easily understand. In that quite lengthy letter to the Chief Justice, the editor of The Bee wrote:“‘The ignorance of the general public as to what was decided and exactly why it was decided has undoubtedly given rise to considerable of a public suspicion that all is not as it should be—that injustice has triumphed where justice should have prevailed—that the good work of almost two years has been practically wiped out by a judicial obeisance to technicalities—that the guilty have been saved by the interposition of a judicial hand that could with more propriety and equally as much regard for the law have turned the scales to record the verdict of the highest tribunal on the side of good government.’“Justice Beatty answers the questions at length, but with such clearness that the ‘man in the street’ can understand. His explanation should be read by everybody, so that hereafter those who discuss the matter can do so with a full and thorough understanding of exactly what the Supreme Court decided in the Schmitz case, and exactly why it considered it had so to decide.”[351]“I repeat,” said the Chief Justice in his Bee article, “that the only question presented for decision was the question of statutory construction here stated, for it was never seriously contended before the Supreme Court by the Attorney General, or by the District Attorney of San Francisco, or by any of his assistants or deputies, or by the learned counsel, whose names are signed to the petition for a rehearing, that the indictment did allege a threat to do an unlawful injury of the character indicated. What it did allege on this point, and all that it alleged, was that one E. E. Schmitz (without showing that he was Mayor of the city, or that he had any official or other influence over the Board of Police Commissioners greater than, or different from, that of the humblest private citizen), and one Abraham Ruef (without showing that he had any such power or influence) had told certain keepers of a restaurant that they could, and had threatened that they would, prevent them from obtaining a renewal of their license to sell liquors, etc. The indictment, in other words, had no more force in legal contemplation than if it had been directed against Jack Stiles and Richard Noakes, for though the facts that Schmitz was Mayor and Ruef the political boss of the city may have been as notorious in San Francisco as the fire or earthquake, no lawyer would contend for a moment that they were facts of which a court could take judicial notice in passing upon the sufficiency of the indictment.”[352]Heney’s reply to Chief Justice Beatty was published in The Sacramento Bee. Section 961 of the California Penal Code expressly provides that no fact of which a court may take judicial notice, need be alleged in any indictment. The Codes enumerate certain matters of which the courts are required to take judicial notice. Among the matters are “State offices and their incumbents.” The Political Code defines who are “State officers,” and among them are included “Mayors of Cities.” Heney, in his reply, held Chief Justice Beatty and the court to be wrong, even on the face of the statute. No lawyer in the State attempted to answer Heney’s reply, although many of them would have been glad to have earned recognition from the Supreme Court by doing so.[353]James M. Kerr is author of Kerr’s California Cyclopedic Codes. These works are accepted as standards throughout the country.“It is thought,” says Kerr in California Cyclopedic Codes for 1908, “that ... the [Schmitz] case cannot be safely relied upon as an authority outside of California. It is a flagrant violation of the spirit if not the letter of Section 4 ante, and the old rule that it is the duty of the court, where it is possible, so to construe the statute as to uphold the indictment and promote justice, instead of effecting a miscarriage of justice. Several things occur in connection with a consideration of the foregoing quotation from the Supreme Court.“1. If an indictment can lawfully be upheld, the court, as the judicial voice of the State, is bound so to uphold it. It is not the province of the court to seek some strained view of the law by which an indictment of one accused of crime can be quashed.“2. The construction of the code provision on extortion is to be made, not technically, but according to the fair import of its terms, with a view to its object and to promote justice.“3. It is not charged, and the statute does not require it to be charged, that the threat was made by Schmitz, acting in his official capacity. The crime of extortion, under our statute, is not the old common-law crime of extortion, which could be committed only by an official acting in his official capacity. Under our statute it is immaterial whether Schmitz held any official position, or whether Schmitz and Ruef had any power or influence to carry out the threat; the only thing to be considered is, Did the accused extort money by means of a threat? Official position or power to carry out the threat is neither material nor proper.“4. It is entirely immaterial by what means Schmitz and Ruef intended to accomplish their threat to have the liquor license withheld; whether by fair persuasion of the Board of Supervisors, or by menace, duress, fraud, or undue influence. The crime charged did not consist in the dealings with the Board of Supervisors, but in the threat made to the French restaurateurs, by means of which the fears of the latter were aroused, and were forced to pay to Schmitz and Ruef money to which the latter were not entitled, as a means of preventing Schmitz and Ruef from carrying out the threat. To require the indictment to contain an allegation of the means intended to be used by Schmitz and Ruef to accomplish their unlawful purpose—the means to be used with, or to influence, or to menace, or duress, or fraud in dealing with, the Board of Supervisors—is indubitably bad law and bad pleading.“5. The declaration that the case ‘is not one which is sufficient to charge an offense in the language of the statute defining it,’ made by the court, needs some reason and good authorities to make it good law outside of this State, and also in this State under the system of criminal pleading provided for by the code—which should be the law by which criminal pleading is to be measured.“6. It does not seem to have been suggested to the court, and it does not seem to have occurred to the learned judges thereof, that the trial court was required to take judicial notice of the head of department of a co-ordinate department of the government of the City and County of San Francisco, and to take judicial notice of the fact that Schmitz was at least de facto Mayor. See Kerr’s Cyc. Code Civ. Proc., Sec. 1875, Subd. 5.“7. The position and practical control of Ruef, as the ‘political boss’ of San Francisco (a position unrecognized by law), and his undue influence over the Board of Supervisors (the exercise of which is contrary to public policy), was merely matter of evidence, and not a matter to be pleaded; the only thing that is important is, Was the threat made? and did the defendants, Schmitz and Ruef, through such threat, extort money, and by means of the fear raised thereby? If they did, it is utterly immaterial whether Schmitz was Mayor, or Ruef was a ‘political boss,’ and had or had not any influence with the Board of Supervisors. The Supreme Court 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.“8. A threat to do a lawful act, if made for the purpose of putting a person in fear, and thereby securing money or property which the person was not in law entitled to have and receive, renders such person guilty of extortion, under the weight of decision and the better doctrine; and taking the case in that view, the indictment is amply sufficient, and should have been upheld by the court. The case of Boyson vs. Thorn, 98 Cal., 578; 33 Pac. Rep., 492, has no application, and its citation by the court only tends to befog the issue.”[354]Dean Wigmore’s criticism of the decisions in the Schmitz case, and of the articles written in defense of them was as follows: “I have read the letter of Mr. Heney, and the letter of the Chief Justice, and have re-read the opinion of the Court in People vs. Schmitz, 94 Pac. Rep. 419. The Chief Justice’s letter and Mr. Heney’s reply turn largely on the legal rule of judicial notice. The learned Chief Justice finds himself iron-bound by the rules of that subject. But the whole spirit of the rules is misconceived by him. Their essential and sole purpose is to relieve the party from proof,—that is, from proof of facts which are so notorious as not to need proof. When a party has not averred or evidenced a fact which later turns out, in the Supreme Court’s opinion, to be vital, the rule of judicial notice helps out the judge by permitting him to take the fact as true, where it is one so notorious that evidence of it would have been superfluous. Now these helping rules are not intended to bind him, but the contrary, i.e., to make him free to take the fact as proved where he knows the proof was not needed. Moreover, it follows that, since these rules cannot foresee every case that new times and new conditions will create, they can always receive new applications. The precedents of former judges, in noticing specific facts, do not restrict present judges from noticing new facts, provided only that the new fact is notorious to all the community. For example, the unquestioned election of William H. Taft as President of the United States is notorious; but no man named William H. Taft has ever been elected President, and no judicial precedent has noticed the fact. But no court would hesitate to notice this new notorious fact.“If, then, a man named Schmitz was notoriously Mayor of San Francisco and a man named Ruef was notoriously its political boss, at the time in question, that is all that any court needs; and the doctrine of judicial notice gives it all the liberty it needs. It is conceivable that a trial judge might sometimes hesitate in applying this doctrine of notoriety, because the trial court might fear that the Supreme Court would not perceive the notoriety. But there never need be any such hesitation in a Supreme Court, if that court does see the notoriety.“And this is just where the learned Chief Justice is to be criticised. He does not for a moment ask or answer the question, ‘Did we actually, as men and officers, believe these facts to be notoriously so?’ but refers to certain mechanical rules, external to his mind. What that Supreme Court should have done was to decide whether they under the circumstances did actually believe the facts about the status of Schmitz and Ruef to be notorious. In not so doing, they erred against the whole spirit and principle of judicial notice.“And Mr. Heney’s demonstration that there is nothing in the codes to forbid them is complete; for, of course, the Code of Procedure, in telling them (Section 1875) that ‘the courts take judicial notice of the following facts,’ simply gave them a liberty of belief as to those specified facts, and did not take away their liberty as to other unspecified facts.“But there is a deeper error than this in the learned Chief Justice’s letter, and in the court’s opinion. The letter says: ‘If by means of these allegations or otherwise it had been made to appear that the defendants had caused the applicants to believe that they could and would influence the Police Commissioners to reject their application regardless of its merits I have never doubted that the indictment would have been sufficient.’ He stakes his decision on this point. The point is that, in determining the fear caused by the threat, which constituted extortion, the belief of the restaurant-keeper as to Schmitz’s and Ruef’s power, and not their actual power, was the essential thing. If that is so, then of what consequence was it whether one or the other was Mayor or boss? And of what consequence was it whether those facts were averred or judicially noticed. None at all. The indictment alleged that the threats were made to use influence or power over the Commissioners, and that their purpose was to obtain money by means of (i.e., through fear of) such threats. Obviously, then, the actual power or influence was immaterial; and the belief of the restaurant-keeper, the only material fact, was a question of the evidence on the trial, and not of the legal sufficiency of the indictment. All the lucubrations about judicial notice were therefore beside the point.“The inconsistency of the learned Chief Justice, in thus taking as essential the actual status of Schmitz and Ruef, is further seen in his next paragraph. There he declares ‘it could not be assumed that such private persons could prevent the issuance of the license otherwise than by adducing good reasons.’ But why does he assume that, on the contrary, a threat by a Mayor or a boss could prevent the issuance of the license otherwise than by adducing good reasons? He says that if it had appeared that the threats were made by a Mayor and a boss, then this would have sufficed, because, in his own words, their influence to reject the application would have been used ‘regardless of its merits.’ See what this means. Suppose that two persons, a Mayor and a private citizen, tell a restaurant-keeper that they will do all they can to induce a Commissioner to revoke the license unless money is paid; for one of these persons, the learned Chief Justice immediately assumes that he can and will do this ‘regardless of its merits’; for the other he says ‘it cannot be assumed.’ Why not for one as much or as little as the other? He does not say that the private person could not possibly succeed in influencing the Commissioner corruptly—he merely says that ‘it cannot be assumed.’ On the other hand, why assume it for the Mayor? Surely a Mayor might fail in trying to influence an honest Commissioner by a corrupt threat to remove him. In short, either assume that on the facts of the trial a private person might have power to influence corruptly the license; in which case an allegation of his Mayoralty would be superfluous. Or else refuse to assume that a Mayor, merely as such, could and would inevitably influence a Commissioner corruptly; in which case the mere allegation of his being Mayor would not be enough, and judicial notice would not cure. But the Chief Justice says it would be enough! He is plainly inconsistent.“The truth is that the learned Chief Justice, in endeavoring to support his decision, weaves a logical web, and then entangles himself in it.“Such disputations were the life of scholarship and of the law sixhundredyears ago. They are out of place today. There are enough rules of law to sustain them, if the court wants to do so. And there are enough rules of law to brush them away, if the court wants to do that.“All the rules in the world will not get us substantial justice if the judges have not the correct living moral attitude toward substantial justice.“We do not doubt that there are dozens of other Supreme Justices who would decide, and are today deciding, in obscure cases, just such points in just the same way as the California case. And we do not doubt there are hundreds of lawyers whose professional habit of mind would make them decide just that way if they were elevated to the bench tomorrow in place of those other anachronistic jurists who are now there. The moral is that our profession must be educated out of such vicious habits of thought. One way to do this is to let the newer Ideas be dinned into their professional consciousness by public criticism and private conversation.“The Schmitz-Ruef case will at least have been an ill-wind blowing good to somebody if it helps to achieve that result.“December 7, 1908.“JOHN H. WIGMORE.”[356]When Calhoun returned to San Francisco demanding immediate trial, the Examiner announced that he “threw a bombshell into the camp of the prosecution.” The Call, however, dealt with the incident as follows:“Patrick Calhoun has come back in a hurry, shouting for an immediate trial. He is certain that he has the prosecution on the hip. His men are in treaty with Ruef. His organs in the press, the Examiner, the Chronicle and the gutter weeklies, begin to see Ruef in a wholly new light. Three weeks ago Ruef was the vilest criminal. No immunity for him. Indeed, immunity, in the lexicon of the Calhoun press, was then a worse crime than bribery or graft. It is very different now that the new alliance between Ruef and the bribe givers is in process of negotiation. Ruef has at once become the persecuted sufferer, the victim of a heartless cabal, pushing one more unfortunate to his ruin and positively ‘rushing’ him to trial with indecent haste, with no lawyers but Henry Ach to hire. It is too bad.“Why this astonishing and sudden change of front? It is simply that Calhoun has made up his mind that this is the time for grafters and boodlers and bribe givers to stand together. He has persuaded himself that the prosecution is dazed by the extraordinary decision of the Court of Appeals, and that the same has put Ruef in a receptive mood for a treaty of alliance, offensive and defensive, among all varieties of boodlers, franchise grabbers, bribe givers and bribe takers. Calhoun knows that Ruef on trial or before trial is a very different person from Ruef after conviction. He wants to keep Ruef in his present state of mind. Of course, he knows that he can not trust Ruef. No man who has had dealings with the shifty boss knows on what side he will turn up next. At present Ruef lends a responsive ear to Calhoun’s overtures. Consultations are held without disguise between Calhoun’s lawyers and Ruef. It is time for Ruef and Calhoun to stand together. The association is suggestive but natural.”[357]The graft prisoners unquestionably suffered greatly from their confinement.“No matter,” said Ruef, in an interview printed in The Examiner January 11, 1908, “how much effort is made, the place cannot be kept clean. Filth accumulates and no running water has been provided. The gases from the drain pipes permeate the cells and are always present. No prisoner can keep himself clean, and it is no wonder that clothing and everything is uncleanly.”Schmitz, long of body, complained that he needed a long cell. “I would like a longer cell,” he is reported as saying. “My legs are too long and I cannot stretch them out. The hole is beastly and no place for a clean man.”Louis Glass declared that he would be dead in a few days if not permitted to remain outside his cell.[358]See affidavit filed by District Attorney Langdon in The People vs. Patrick Calhoun et al., No. 823.[359]See affidavits filed by District Attorney Langdon, and by Judge Dunne, in the case of Patrick Calhoun et al., No. 823.[360]Langdon does not state in his affidavit what this evidence was. But at the trial of Ruef forofferingbribes to Jennings Phillips to grant the Parkside Railroad franchise, former Supervisor Wilson testified that at the first Ford trial Ruef had asked him to bury his memory of the money transactions and discussions with Ruef. Ruef at the time was pretending to be assisting the Prosecution in conformity with the terms of his immunity contract.[361]District Attorney Langdon, in an affidavit filed in the case of The People vs. Patrick Calhoun et al., No. 823, states his attitude toward Ruef. Mr. Langdon says:“Affiant further avers and declares that if affiant believed that the defendant Ruef had fully and fairly performed his part of the agreement, and had honestly rendered such service to the State as would have entitled him to the consideration set forth in the immunity contract, this affiant would have moved in open court to dismiss the indictments against defendant Ruef, and if said motion were denied and affiant was directed by the Court or any other official to proceed with the trial of said defendant, this affiant would have declined to do so, and after exhausting every resource at his command to carry out the terms and conditions of said immunity agreement, would have resigned his official position of District Attorney of the City and County of San Francisco, rather than prosecute the defendant Ruef.“This affiant avers that it was only when he became convinced that the defendant Ruef was still traitorous to the State he had debauched, and whose laws he had defied, and that instead of trying to make reparation for the wrong he had done, was endeavoring not only to save himself from the punishment he so richly deserved, but also was endeavoring to make certain the escape from punishment of his co-defendants, that affiant determined the immunity contract to have been broken by Ruef, and no longer in force and effect.”[362]The Examiner in its issue of January 19, 1908, stated that the abrogation of the immunity contract, “means among other things that Ruef will now have aligned in his defense, the massed influence of interests represented by the prosecution to command $600,000,000 in wealth.”[363]Heney, in an affidavit filed in the case of The People vs. Patrick Calhoun et al., No. 823, states that he finally said to Kaplan, “You only annoy and irritate me by coming here, Doctor, and I wish you would stay away. I don’t want to get mad at you, because I respect you and am satisfied that you are sincere, but Ruef is making a fool of you, and I have wasted more time than I can spare in talking with you about these things. You will do me a great favor if you will stay away from my office.”In spite of this suggestion, Kaplan, a few days later, called Heney up on the telephone. Of the incident, Heney says in his affidavit: “A few days later, however, he called me on the telephone. I was at my office at the time, and do not know where he was. He said over the telephone in substance, ‘Mr. Heney, I don’t like to trouble you any more, but I had a talk with Mr. Burns and I have since had another talk with Mr. Ruef, and I am sure that Mr. Ruef’s testimony will now satisfy you. He says that when he is on the witness stand and you ask him’—I interrupted him at about this point and said in a very severe tone of voice, ‘Dr. Kaplan, I don’t want you talking such stuff to me over the phone, or anywhere else. I have asked you not to talk to me about this matter any more and not to come to my office, and I will now have to ask you not to call me any more on the telephone. I don’t want to hear anything more about Ruef’s testimony.’”[364]See affidavits filed by Rabbis Nieto and Kaplan in the case of The People vs. Patrick Calhoun et al.[365]SeeChapter XV.[366]SeeChapter XV.[367]A letter from W. H. Payson, a leader of the San Francisco bar, to Rabbi Nieto fairly expressed the public attitude on the Rabbi’s stand. Mr. Payson’s letter read: “Rabbi Jacob Nieto. Dear Sir:—As you have written a letter to the public explaining your connection with the Ruef case, it may not be out of place for one of the public to reply.“When Mr. Ruef made his apparently frank statement admitting that he had betrayed his city into the hands of the spoilers, but promised to do all in his power to right the wrong, whatever the consequences might be to himself, the public believed him and believed that he was going to do right because it was right and for his own self-respect, and not at the price of saving his own skin. Acting on this assumption many of us congratulated Mr. Ruef and assured him that he had gone far toward recovering his position in the public esteem. It now turns out from your letter of explanation that Mr. Ruef’s public statement of his high and noble purpose was a mockery and hollow sham; that he had rejected any proposition to act the man, but like his contemptible associates, sought only to escape his just deserts.“We recognize the unfortunate necessity the prosecution was under of granting immunity in order to secure the evidence to convict the greater felons, but surely the officers of the law were fully qualified to attend to that miserable business. If you could have influenced Mr. Ruef to stand on the higher plane of honor and decency of which you are the advocate and representative, you would indeed have done a great public service and you might have saved him for better things, but it would seem that your services were directed chiefly to saving him from the just penalty of his crimes and that the arrangement with him was on the same sordid level as the immunity contracts with the Supervisors, for which no ministerial services were necessary. From your position and religious heritage we had a right to expect that your distinguished services would have been put to a better use. I am still sufficiently credulous as to believe that with proper influence Mr. Ruef might have been induced to take the course we were led to believe he had taken.“Your letter even leaves it to be inferred that Mr. Ruef is justified in his present attitude, and that the judges, who, from your statement, were ready to go to the extreme of mercy and consideration, are now to be censured for not carrying out an immunity contract which has been flagrantly broken by the other party to it.“The serious features of this unfortunate situation are not that officials should receive bribes, or that men of wealth and standing should bribe them, or that attorneys of reputation should engineer the filthy operation, but that not one of the army of bribed and bribers has been found of sufficient manliness or moral stamina to make a frank statement of the facts and give aid in the cause of justice, and that so many people are willing to shield the influential criminals for commercial motives, and that there is so low a state of public morals as to make these things possible.“The great body of the public is heart and soul back of this prosecution, because we believe it is an honest attempt, not merely to convict certain criminals, but to elevate the standard of public morality, and whatever may be the outcome and even though, through successive miscarriages of justice, every guilty man escape his legal punishment, the graft prosecution has, nevertheless, succeeded beyond our fondest hopes; nine-tenths of its work has been accomplished, and in the teeth of the most determined and desperate opposition perhaps ever known.“Be assured that every guilty man will be convicted at the bar of public opinion, and from that conviction there will be no appeal and no escape; they will be known and branded for life, each and every one. The public is not a party to the immunity contracts.“Very truly yours,“W. H. PAYSON.“San Francisco, January 30, 1908.”
[333]The Call, in speaking of the Taylor-Langdon meeting said: “Young Mr. Ryan ought to have been at that meeting. We have nothing against Mr. Ryan except that he is not the man of the hour. We shall not even reproach him with his youth. That is not his fault and he will get over that. But he is not the man of the hour. The people have said it. Mr. Ryan embodies no principle. To the people of San Francisco he means nothing in particular at this critical time. He might have read that message in the mighty roar that went up from the meeting in welcome of Dr. Taylor. Mayor Taylor stands for something, stands for much. Mr. Ryan has only his own ambition and a certain command of language.”
The Call, in speaking of the Taylor-Langdon meeting said: “Young Mr. Ryan ought to have been at that meeting. We have nothing against Mr. Ryan except that he is not the man of the hour. We shall not even reproach him with his youth. That is not his fault and he will get over that. But he is not the man of the hour. The people have said it. Mr. Ryan embodies no principle. To the people of San Francisco he means nothing in particular at this critical time. He might have read that message in the mighty roar that went up from the meeting in welcome of Dr. Taylor. Mayor Taylor stands for something, stands for much. Mr. Ryan has only his own ambition and a certain command of language.”
[334]The San Francisco Call, in its issue of November 5, charged that orders had gone out from the United Railroads to “vote for McCarthy and the Union Labor ticket—straight.” In the cars of the United Railroads appeared dodgers which read: “Workingmen. Workingmen—Are you going to put a big stick into Spreckels’ hands to club you over the head with?”
The San Francisco Call, in its issue of November 5, charged that orders had gone out from the United Railroads to “vote for McCarthy and the Union Labor ticket—straight.” In the cars of the United Railroads appeared dodgers which read: “Workingmen. Workingmen—Are you going to put a big stick into Spreckels’ hands to club you over the head with?”
[335]The same is true of the Los Angeles Times, which has a national reputation as an opponent of organized labor. The Times, while at issue with Mr. McCarthy on the question of the desirability of unions, was scarcely less vehement than he in denunciation of the San Francisco graft prosecution.
The same is true of the Los Angeles Times, which has a national reputation as an opponent of organized labor. The Times, while at issue with Mr. McCarthy on the question of the desirability of unions, was scarcely less vehement than he in denunciation of the San Francisco graft prosecution.
[336]One of the allegations made against Heney was that he would not prosecute Patrick Calhoun, because Heney’s brother-in-law was employed by Calhoun as a detective. This argument was intended to weaken Heney and the prosecution with the union element that Calhoun was endeavoring to crush.
One of the allegations made against Heney was that he would not prosecute Patrick Calhoun, because Heney’s brother-in-law was employed by Calhoun as a detective. This argument was intended to weaken Heney and the prosecution with the union element that Calhoun was endeavoring to crush.
[337]In a political advertisement which appeared in the San Francisco Call November 3, 1907, Mr. McGowan said: “If elected District Attorney I will prosecute every man accused of crime, regardless of his position in life. I will continue the present graft prosecution with more vigor, and the District Attorney’s office will not be used for politics, nor to disturb business. I will be the District Attorney in law and in fact, and I will never allow any man or set of men to control the office for any purpose. I will honorably enforce the law without the aid of any millionaire’s money.”
In a political advertisement which appeared in the San Francisco Call November 3, 1907, Mr. McGowan said: “If elected District Attorney I will prosecute every man accused of crime, regardless of his position in life. I will continue the present graft prosecution with more vigor, and the District Attorney’s office will not be used for politics, nor to disturb business. I will be the District Attorney in law and in fact, and I will never allow any man or set of men to control the office for any purpose. I will honorably enforce the law without the aid of any millionaire’s money.”
[338]Langdon, at the opening of the Republican campaign, took up the question of the prosecution’s policy in granting immunity to the Supervisors. He said:“In this prosecution we have tried to be practical, to be effective. What would you have said if we had made a scapegoat of a petty criminal and let the giants go? What would you have said if in all this graft and corruption we had arrested and jailed two or three obscure Supervisors you had never heard of before they came to office, and will never hear of them again now that they are retired to private life, and had let escape the giants in crime?“There have been graft exposures before in the history of American municipalities and the graft has gone on. And it was bound to go on so long as the prosecutions failed to stop the sources of evil, to gather into the fold of the penitentiary the corrupt men of business and the corrupt political leaders who have dared to use weak men for their own ends. These giants in crime are perfectly willing that the physical life of the weak men they use shall be fed into the jails of the State to appease public wrath exactly as they have been willing to use up the moral life of these men to satisfy their own greedy needs in the Board of Supervisors. Profiting by the mistakes of previous prosecutions, this office has struck straight at the very roots of public graft: at the crooked public service corporations; but which of the criminals were to be allowed to give evidence for the State and enjoy its alluring protection; the giants of crime who have always been most responsible and who have always escaped or the petty, miserable fellows who have entered upon these things through ignorance and weakness?“Immunity had to be given in order that crime might be punished and it was given to the Supervisors that the very tap roots of political corruption might be torn from the soil in which they thrived. We did it because this prosecution has a moral as well as a legal significance. It is time to stop the cynicism of common men when they view democracy and say it is for the powerful and the rich: that the poor must go to jail for the theft of bread and the rich escape for the theft of privilege, the purchase of men’s souls and the degradation of government. It is time to stop the brazen and confident effrontery of the irresponsible criminal rich, who commit crimes and rest back, thinking they can buy judges as they bought legislators and executives, and knowing they can buy legal talent to interpose every technicality in every courtroom until justice is a human travesty tangled in its own web.“We are after the ‘men higher up’ because they are the severest menace to our institutions, the enduring factors that program and bribe each Board of Supervisors as they come and go. We are after the ‘men higher up’ so as to make criminal acquisition unprofitable in terms of human desire. We are after the ‘men higher up’ so that young men and women growing up in this and other communities will once more believe with ardent fervor not only that dishonesty does not pay, but that of all the goods on this earth the greatest treasure is a straightforward life.”
Langdon, at the opening of the Republican campaign, took up the question of the prosecution’s policy in granting immunity to the Supervisors. He said:
“In this prosecution we have tried to be practical, to be effective. What would you have said if we had made a scapegoat of a petty criminal and let the giants go? What would you have said if in all this graft and corruption we had arrested and jailed two or three obscure Supervisors you had never heard of before they came to office, and will never hear of them again now that they are retired to private life, and had let escape the giants in crime?
“There have been graft exposures before in the history of American municipalities and the graft has gone on. And it was bound to go on so long as the prosecutions failed to stop the sources of evil, to gather into the fold of the penitentiary the corrupt men of business and the corrupt political leaders who have dared to use weak men for their own ends. These giants in crime are perfectly willing that the physical life of the weak men they use shall be fed into the jails of the State to appease public wrath exactly as they have been willing to use up the moral life of these men to satisfy their own greedy needs in the Board of Supervisors. Profiting by the mistakes of previous prosecutions, this office has struck straight at the very roots of public graft: at the crooked public service corporations; but which of the criminals were to be allowed to give evidence for the State and enjoy its alluring protection; the giants of crime who have always been most responsible and who have always escaped or the petty, miserable fellows who have entered upon these things through ignorance and weakness?
“Immunity had to be given in order that crime might be punished and it was given to the Supervisors that the very tap roots of political corruption might be torn from the soil in which they thrived. We did it because this prosecution has a moral as well as a legal significance. It is time to stop the cynicism of common men when they view democracy and say it is for the powerful and the rich: that the poor must go to jail for the theft of bread and the rich escape for the theft of privilege, the purchase of men’s souls and the degradation of government. It is time to stop the brazen and confident effrontery of the irresponsible criminal rich, who commit crimes and rest back, thinking they can buy judges as they bought legislators and executives, and knowing they can buy legal talent to interpose every technicality in every courtroom until justice is a human travesty tangled in its own web.
“We are after the ‘men higher up’ because they are the severest menace to our institutions, the enduring factors that program and bribe each Board of Supervisors as they come and go. We are after the ‘men higher up’ so as to make criminal acquisition unprofitable in terms of human desire. We are after the ‘men higher up’ so that young men and women growing up in this and other communities will once more believe with ardent fervor not only that dishonesty does not pay, but that of all the goods on this earth the greatest treasure is a straightforward life.”
[339]The vote for Mayor and for District Attorney was as follows:For Mayor—Taylor28,766Ryan9,255McCarthy17,583Reguin (Soc.)1,503For District Attorney—Langdon34,923McGowan20,115Kirk (Soc.)1,298
The vote for Mayor and for District Attorney was as follows:
[340]In commenting upon the outcome of the election, the Examiner, in its issue of November 6, said: “And this revolt of union labor against misrepresentation in office began long ago. Before the primaries, when most of the registering was done, it was observed that the number of Republicans recorded was far in excess of the adherents of union labor. The story was told then. Disgusted with the dishonesty of the men they had placed in office, finding the local Democratic party a mere memory, they registered as Republicans because they were determined to vote against the representatives of Ruef and Schmitz who had captured their organization.“Langdon’s majority will surprise no one. His election was a matter of course, for union labor, like all other decent elements in the community, was determined to sustain the prosecution of the grafters.“The swing of union labor to Taylor will surprise the gentlemen who have been so fond of assuming that the working people would vote as a class regardless of principle. The fact that they set aside all class feeling, all personal preference, and rolled up a big majority in favor of the man considered most likely to defeat the zebra-striped bandits who had captured their organization proves that government in America is safe in the hands of the plain people.“It is union labor, and union labor chiefly, which has saved San Francisco from McCarthy and McGowan.”“Yesterday,” said the Chronicle the morning after the election, “was a great day for San Francisco. It was the turn of the tide. It was the beginning of the ascent to nobler ideals and better days. The passions of the conflict will soon die away. With an honest government assured, capital will not shun us but seek us. And we can look back on the events of the last six years as we remember a nightmare from which we awake to find ourselves in security and peace.”“The indicted bribe-givers,” said the Call, “may as well make up their minds that there is no way of escape for them except through trial and by the verdicts of the juries. The people have spoken and they have said that the clean-up must be thorough. The sweeping success of Langdon means that the prosecution of the grafters will be pressed to its fitting conclusion upon the facts and under the law. There need be no delay now. Soon all the cases should be settled and another chapter added to the history of San Francisco—a chapter in which will have been written the means, the manner and the fullness of our atonement for Schmitz-Ruef chapter just before it, the vindication of the city’s good name.”
In commenting upon the outcome of the election, the Examiner, in its issue of November 6, said: “And this revolt of union labor against misrepresentation in office began long ago. Before the primaries, when most of the registering was done, it was observed that the number of Republicans recorded was far in excess of the adherents of union labor. The story was told then. Disgusted with the dishonesty of the men they had placed in office, finding the local Democratic party a mere memory, they registered as Republicans because they were determined to vote against the representatives of Ruef and Schmitz who had captured their organization.
“Langdon’s majority will surprise no one. His election was a matter of course, for union labor, like all other decent elements in the community, was determined to sustain the prosecution of the grafters.
“The swing of union labor to Taylor will surprise the gentlemen who have been so fond of assuming that the working people would vote as a class regardless of principle. The fact that they set aside all class feeling, all personal preference, and rolled up a big majority in favor of the man considered most likely to defeat the zebra-striped bandits who had captured their organization proves that government in America is safe in the hands of the plain people.
“It is union labor, and union labor chiefly, which has saved San Francisco from McCarthy and McGowan.”
“Yesterday,” said the Chronicle the morning after the election, “was a great day for San Francisco. It was the turn of the tide. It was the beginning of the ascent to nobler ideals and better days. The passions of the conflict will soon die away. With an honest government assured, capital will not shun us but seek us. And we can look back on the events of the last six years as we remember a nightmare from which we awake to find ourselves in security and peace.”
“The indicted bribe-givers,” said the Call, “may as well make up their minds that there is no way of escape for them except through trial and by the verdicts of the juries. The people have spoken and they have said that the clean-up must be thorough. The sweeping success of Langdon means that the prosecution of the grafters will be pressed to its fitting conclusion upon the facts and under the law. There need be no delay now. Soon all the cases should be settled and another chapter added to the history of San Francisco—a chapter in which will have been written the means, the manner and the fullness of our atonement for Schmitz-Ruef chapter just before it, the vindication of the city’s good name.”
[341]The opinion was written by Justice Cooper and concurred in by Justices Hall and Kerrigan. This is the same Kerrigan who appears in the Santa Cruz banquet scene picture, in which Ruef occupies the position of honor with the Republican nominee for Governor, J. M. Gillett, standing at his back with hand resting on Ruef’s shoulder. (See Chapter IV.) Supreme Justice Henshaw, whose sensational action in Ruef’s favor will appear in another chapter, is also one of the Santa Cruz banquet group.
The opinion was written by Justice Cooper and concurred in by Justices Hall and Kerrigan. This is the same Kerrigan who appears in the Santa Cruz banquet scene picture, in which Ruef occupies the position of honor with the Republican nominee for Governor, J. M. Gillett, standing at his back with hand resting on Ruef’s shoulder. (See Chapter IV.) Supreme Justice Henshaw, whose sensational action in Ruef’s favor will appear in another chapter, is also one of the Santa Cruz banquet group.
[342]The Appellate Court enumerated the following errors at the trial:(1) That the trial court erred in allowing the peremptory challenge of a juror after he had been sworn to try the case; and the removal, after he had been sworn, of a second juror without cause.(2) That error was committed in the appointment of the elisor that had charge of the jury.(3) That the court erred in admitting hearsay evidence of witnesses, Loupe, Blanco, Malfanti, Debret and Rosenthal.(4) That error was committed when Schmitz was required, under cross-examination, to answer question as to whether he had received from Ruef part of the money extorted from the French restaurant keepers.(5) That Ruef’s testimony that he had divided the money with Schmitz was not proper rebuttal evidence.
The Appellate Court enumerated the following errors at the trial:
(1) That the trial court erred in allowing the peremptory challenge of a juror after he had been sworn to try the case; and the removal, after he had been sworn, of a second juror without cause.
(2) That error was committed in the appointment of the elisor that had charge of the jury.
(3) That the court erred in admitting hearsay evidence of witnesses, Loupe, Blanco, Malfanti, Debret and Rosenthal.
(4) That error was committed when Schmitz was required, under cross-examination, to answer question as to whether he had received from Ruef part of the money extorted from the French restaurant keepers.
(5) That Ruef’s testimony that he had divided the money with Schmitz was not proper rebuttal evidence.
[343]California Penal Code, Sec. 518.
California Penal Code, Sec. 518.
[344]California Penal Code, Sec. 519.
California Penal Code, Sec. 519.
[345]The general feeling regarding the Schmitz decision was well expressed by Attorney J. C. Hutchinson, in a letter to Justice Cooper. The letter follows:“Hon. James A. Cooper, Presiding Justice of the District Court of Appeals, First District, 1420 Sutter street, city. Dear Sir: Yours of the 15th inst. received. I did not expect you to reply to mine of the 13th inst., which was more in the nature of an ejaculatory protest than a letter. Nevertheless, I think you are right to reply, especially as I know you have replied to letters complimenting you on the same decision.“I have never before written a letter to a judge commenting upon a decision in which he had taken part, and I ordinarily would consider such a course highly unprofessional. During twenty-five years’ practice, I have always remained silent in the face of decisions, however adverse, even in some cases where I was perfectly well aware that improper influences behind the scenes had prevented me from obtaining justice. But in this case the situation is different from anything I have ever experienced. The very air seems to be full of revolutionary feeling. At the universities, clubs, in the trains, on the streets and in the home, I find no one (except the friends, connections and lawyers of the grafters) speak with anything but emphatic protest against this decision so far as it relates to the validity of the indictment.“I have cast no personal reflection upon yourself. The attack is upon the atmospheric environment of a statement which could lead a man of your integrity and intelligence honestly to believe that such a decision could be correct; and if the Supreme Court should unanimously hold the same, that would, according to my view, only make the matter so much the worse.“Very respectfully yours,“J. C. HUTCHINSON.”
The general feeling regarding the Schmitz decision was well expressed by Attorney J. C. Hutchinson, in a letter to Justice Cooper. The letter follows:
“Hon. James A. Cooper, Presiding Justice of the District Court of Appeals, First District, 1420 Sutter street, city. Dear Sir: Yours of the 15th inst. received. I did not expect you to reply to mine of the 13th inst., which was more in the nature of an ejaculatory protest than a letter. Nevertheless, I think you are right to reply, especially as I know you have replied to letters complimenting you on the same decision.
“I have never before written a letter to a judge commenting upon a decision in which he had taken part, and I ordinarily would consider such a course highly unprofessional. During twenty-five years’ practice, I have always remained silent in the face of decisions, however adverse, even in some cases where I was perfectly well aware that improper influences behind the scenes had prevented me from obtaining justice. But in this case the situation is different from anything I have ever experienced. The very air seems to be full of revolutionary feeling. At the universities, clubs, in the trains, on the streets and in the home, I find no one (except the friends, connections and lawyers of the grafters) speak with anything but emphatic protest against this decision so far as it relates to the validity of the indictment.
“I have cast no personal reflection upon yourself. The attack is upon the atmospheric environment of a statement which could lead a man of your integrity and intelligence honestly to believe that such a decision could be correct; and if the Supreme Court should unanimously hold the same, that would, according to my view, only make the matter so much the worse.
“Very respectfully yours,
“J. C. HUTCHINSON.”
[346]See 7 Cal. App. Reports, page 330.
See 7 Cal. App. Reports, page 330.
[347]The Court, in discussing this point, said: “The indictment does use the words ‘unlawful injury’ in the first part of it; but when the facts are specifically set forth as to what the defendants threatened to do we find that the threat was that defendants ‘would prevent the said Joseph Malfanti, Charles Kelb and William Lafrenz from receiving said license or obtaining the same.’ There is no allegation that any unlawful act was threatened, and the attorneys for the prosecution frankly admit that they rely upon the fact that the defendants obtained the money by threatening to do an injury, which they claim was unlawful solely for the reason that the threats were made with intent to extort money. In other words, it is claimed that even though the French-restaurant proprietors were violating the law, and conducting immoral places used as resorts by lewd women, and thus not legally entitled to a license to sell liquor, a threat to prevent the issuance of licenses to such places by laying the facts before the Board of Police Commissioners in a legal manner, constitutes a crime if such threat was made with the intent to extort money. Such, in our opinion, is not the law. The statute uses the words that the threat must be to do ‘an unlawful injury’; and in order to charge a crime the indictment must aver in some way that the threat was to do an unlawful injury. It is apparent from the language of the statute which we have hereinbefore quoted, that it is not every kind of fear that will support a charge of extortion because of property obtained thereby. The fear must be induced by one of the threats enumerated in the statute. The Legislature has seen fit to provide that the threatened injury to property upon which a charge of extortion may be predicated must be an unlawful injury to property. That is, the injury threatened must be, in itself, unlawful, irrespective of the purpose with which the threat is made. As the word ‘unlawful’ is used in the statute it qualifies the ‘injury’ and not the ‘threat.’ Unlawful means contrary to law. It is true that from a high standard of ethics it could not be claimed that one could extort money by a threat to do a lawful act, if the intent was to get money by the use of the threat, but every wrong is not made a crime. There are many wrongs done every day that are not enumerated in the category of crimes contained in the Penal Code that are of much more serious consequence in their nature than others which are defined therein; but we must look to the statute to find whether or not an act is a public offense for which a prosecution will lie. To procure property from others by a mere threat to do a lawful act is not a crime. The object of the statute—or at least one of its objects—is to protect the party from whom the property is extorted; and if such party pays the money in order to secure protection in violating the law himself he cannot be heard to complain. He in such case would be a party to the violation of the law. In this case, if the parties as a fact paid the money in order to prevent the evidence as to the character of places they kept from being exposed to the Board of Police Commissioners, they are not in a position to complain.”
The Court, in discussing this point, said: “The indictment does use the words ‘unlawful injury’ in the first part of it; but when the facts are specifically set forth as to what the defendants threatened to do we find that the threat was that defendants ‘would prevent the said Joseph Malfanti, Charles Kelb and William Lafrenz from receiving said license or obtaining the same.’ There is no allegation that any unlawful act was threatened, and the attorneys for the prosecution frankly admit that they rely upon the fact that the defendants obtained the money by threatening to do an injury, which they claim was unlawful solely for the reason that the threats were made with intent to extort money. In other words, it is claimed that even though the French-restaurant proprietors were violating the law, and conducting immoral places used as resorts by lewd women, and thus not legally entitled to a license to sell liquor, a threat to prevent the issuance of licenses to such places by laying the facts before the Board of Police Commissioners in a legal manner, constitutes a crime if such threat was made with the intent to extort money. Such, in our opinion, is not the law. The statute uses the words that the threat must be to do ‘an unlawful injury’; and in order to charge a crime the indictment must aver in some way that the threat was to do an unlawful injury. It is apparent from the language of the statute which we have hereinbefore quoted, that it is not every kind of fear that will support a charge of extortion because of property obtained thereby. The fear must be induced by one of the threats enumerated in the statute. The Legislature has seen fit to provide that the threatened injury to property upon which a charge of extortion may be predicated must be an unlawful injury to property. That is, the injury threatened must be, in itself, unlawful, irrespective of the purpose with which the threat is made. As the word ‘unlawful’ is used in the statute it qualifies the ‘injury’ and not the ‘threat.’ Unlawful means contrary to law. It is true that from a high standard of ethics it could not be claimed that one could extort money by a threat to do a lawful act, if the intent was to get money by the use of the threat, but every wrong is not made a crime. There are many wrongs done every day that are not enumerated in the category of crimes contained in the Penal Code that are of much more serious consequence in their nature than others which are defined therein; but we must look to the statute to find whether or not an act is a public offense for which a prosecution will lie. To procure property from others by a mere threat to do a lawful act is not a crime. The object of the statute—or at least one of its objects—is to protect the party from whom the property is extorted; and if such party pays the money in order to secure protection in violating the law himself he cannot be heard to complain. He in such case would be a party to the violation of the law. In this case, if the parties as a fact paid the money in order to prevent the evidence as to the character of places they kept from being exposed to the Board of Police Commissioners, they are not in a position to complain.”
[348]The Examiner, in its issue of January 11, 1908, said of the decision:“The District Court of Appeal has overturned the conviction of Mayor Schmitz on the ground that threatening to prevent the French-restaurant keepers from getting a license to sell liquor does not constitute the crime of extortion, with which he is charged. This is one of the decisions that will aggravate the dissatisfaction of the public with the courts.“Abe Ruef, once political boss of San Francisco, testified that he had divided with the Mayor the ‘fees’ for getting the licenses which Schmitz had held up until the money was paid. ‘A license to sell liquor is not property in the ordinary sense of the word,’ declares the court, making the point that the indictment ‘does not allege any threat to injure property.’“Any ordinary intelligence 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, particularly when the Mayor was shown to have shared in the money thus exacted, and the fact that the contrary ruling of a court acts as a release of a man whose guilt was clearly established, will not change that view.”“Even the lay mind,” said the Call, “is competent to reach the conclusion that this decision is bad law, bad logic and had morals.”The decision was generally condemned by the interior press. The Sacramento Bee denounced it as a “palpable evasion of justice.” The Oakland Enquirer stated that it came as a “shock and a surprise to the law-respecting people of California and of the entire country.” “San Francisco in particular,” said the Los Angeles Evening News, “California in general and the republic at large have suffered great wrong by reason of this reprehensible decision.”
The Examiner, in its issue of January 11, 1908, said of the decision:
“The District Court of Appeal has overturned the conviction of Mayor Schmitz on the ground that threatening to prevent the French-restaurant keepers from getting a license to sell liquor does not constitute the crime of extortion, with which he is charged. This is one of the decisions that will aggravate the dissatisfaction of the public with the courts.
“Abe Ruef, once political boss of San Francisco, testified that he had divided with the Mayor the ‘fees’ for getting the licenses which Schmitz had held up until the money was paid. ‘A license to sell liquor is not property in the ordinary sense of the word,’ declares the court, making the point that the indictment ‘does not allege any threat to injure property.’
“Any ordinary intelligence 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, particularly when the Mayor was shown to have shared in the money thus exacted, and the fact that the contrary ruling of a court acts as a release of a man whose guilt was clearly established, will not change that view.”
“Even the lay mind,” said the Call, “is competent to reach the conclusion that this decision is bad law, bad logic and had morals.”
The decision was generally condemned by the interior press. The Sacramento Bee denounced it as a “palpable evasion of justice.” The Oakland Enquirer stated that it came as a “shock and a surprise to the law-respecting people of California and of the entire country.” “San Francisco in particular,” said the Los Angeles Evening News, “California in general and the republic at large have suffered great wrong by reason of this reprehensible decision.”
[349]See California Appellate Reports, in which the Supreme Court decision is printed, Vol. No. 7, Page 369.
See California Appellate Reports, in which the Supreme Court decision is printed, Vol. No. 7, Page 369.
[350]The Bee prefaced the Chief Justice’s article with the following statement: “The decision of the Supreme Court of California in the case of Eugene Schmitz is one not only of State but even of national importance. It has been the fruitful topic of varied comment throughout the Union. And yet, after all the discussion, there remains a prevailing ignorance as to WHAT WAS DECIDED; and even among those laymen who had a fair idea upon that point, there is certainly little if any knowledge as to WHY IT WAS SO DECIDED.“Having a very high idea of the granitic probity of Chief Justice Beatty of the Supreme Court, and believing it to be the duty of that Court to answer when citizens respectfully ask for light, the editor of this paper on March 31st last wrote to Chief Justice Beatty and asked him to publicly explain just what the Court had decided and just why it had so decided; to explain it so that the man in the street might easily understand. In that quite lengthy letter to the Chief Justice, the editor of The Bee wrote:“‘The ignorance of the general public as to what was decided and exactly why it was decided has undoubtedly given rise to considerable of a public suspicion that all is not as it should be—that injustice has triumphed where justice should have prevailed—that the good work of almost two years has been practically wiped out by a judicial obeisance to technicalities—that the guilty have been saved by the interposition of a judicial hand that could with more propriety and equally as much regard for the law have turned the scales to record the verdict of the highest tribunal on the side of good government.’“Justice Beatty answers the questions at length, but with such clearness that the ‘man in the street’ can understand. His explanation should be read by everybody, so that hereafter those who discuss the matter can do so with a full and thorough understanding of exactly what the Supreme Court decided in the Schmitz case, and exactly why it considered it had so to decide.”
The Bee prefaced the Chief Justice’s article with the following statement: “The decision of the Supreme Court of California in the case of Eugene Schmitz is one not only of State but even of national importance. It has been the fruitful topic of varied comment throughout the Union. And yet, after all the discussion, there remains a prevailing ignorance as to WHAT WAS DECIDED; and even among those laymen who had a fair idea upon that point, there is certainly little if any knowledge as to WHY IT WAS SO DECIDED.
“Having a very high idea of the granitic probity of Chief Justice Beatty of the Supreme Court, and believing it to be the duty of that Court to answer when citizens respectfully ask for light, the editor of this paper on March 31st last wrote to Chief Justice Beatty and asked him to publicly explain just what the Court had decided and just why it had so decided; to explain it so that the man in the street might easily understand. In that quite lengthy letter to the Chief Justice, the editor of The Bee wrote:
“‘The ignorance of the general public as to what was decided and exactly why it was decided has undoubtedly given rise to considerable of a public suspicion that all is not as it should be—that injustice has triumphed where justice should have prevailed—that the good work of almost two years has been practically wiped out by a judicial obeisance to technicalities—that the guilty have been saved by the interposition of a judicial hand that could with more propriety and equally as much regard for the law have turned the scales to record the verdict of the highest tribunal on the side of good government.’
“Justice Beatty answers the questions at length, but with such clearness that the ‘man in the street’ can understand. His explanation should be read by everybody, so that hereafter those who discuss the matter can do so with a full and thorough understanding of exactly what the Supreme Court decided in the Schmitz case, and exactly why it considered it had so to decide.”
[351]“I repeat,” said the Chief Justice in his Bee article, “that the only question presented for decision was the question of statutory construction here stated, for it was never seriously contended before the Supreme Court by the Attorney General, or by the District Attorney of San Francisco, or by any of his assistants or deputies, or by the learned counsel, whose names are signed to the petition for a rehearing, that the indictment did allege a threat to do an unlawful injury of the character indicated. What it did allege on this point, and all that it alleged, was that one E. E. Schmitz (without showing that he was Mayor of the city, or that he had any official or other influence over the Board of Police Commissioners greater than, or different from, that of the humblest private citizen), and one Abraham Ruef (without showing that he had any such power or influence) had told certain keepers of a restaurant that they could, and had threatened that they would, prevent them from obtaining a renewal of their license to sell liquors, etc. The indictment, in other words, had no more force in legal contemplation than if it had been directed against Jack Stiles and Richard Noakes, for though the facts that Schmitz was Mayor and Ruef the political boss of the city may have been as notorious in San Francisco as the fire or earthquake, no lawyer would contend for a moment that they were facts of which a court could take judicial notice in passing upon the sufficiency of the indictment.”
“I repeat,” said the Chief Justice in his Bee article, “that the only question presented for decision was the question of statutory construction here stated, for it was never seriously contended before the Supreme Court by the Attorney General, or by the District Attorney of San Francisco, or by any of his assistants or deputies, or by the learned counsel, whose names are signed to the petition for a rehearing, that the indictment did allege a threat to do an unlawful injury of the character indicated. What it did allege on this point, and all that it alleged, was that one E. E. Schmitz (without showing that he was Mayor of the city, or that he had any official or other influence over the Board of Police Commissioners greater than, or different from, that of the humblest private citizen), and one Abraham Ruef (without showing that he had any such power or influence) had told certain keepers of a restaurant that they could, and had threatened that they would, prevent them from obtaining a renewal of their license to sell liquors, etc. The indictment, in other words, had no more force in legal contemplation than if it had been directed against Jack Stiles and Richard Noakes, for though the facts that Schmitz was Mayor and Ruef the political boss of the city may have been as notorious in San Francisco as the fire or earthquake, no lawyer would contend for a moment that they were facts of which a court could take judicial notice in passing upon the sufficiency of the indictment.”
[352]Heney’s reply to Chief Justice Beatty was published in The Sacramento Bee. Section 961 of the California Penal Code expressly provides that no fact of which a court may take judicial notice, need be alleged in any indictment. The Codes enumerate certain matters of which the courts are required to take judicial notice. Among the matters are “State offices and their incumbents.” The Political Code defines who are “State officers,” and among them are included “Mayors of Cities.” Heney, in his reply, held Chief Justice Beatty and the court to be wrong, even on the face of the statute. No lawyer in the State attempted to answer Heney’s reply, although many of them would have been glad to have earned recognition from the Supreme Court by doing so.
Heney’s reply to Chief Justice Beatty was published in The Sacramento Bee. Section 961 of the California Penal Code expressly provides that no fact of which a court may take judicial notice, need be alleged in any indictment. The Codes enumerate certain matters of which the courts are required to take judicial notice. Among the matters are “State offices and their incumbents.” The Political Code defines who are “State officers,” and among them are included “Mayors of Cities.” Heney, in his reply, held Chief Justice Beatty and the court to be wrong, even on the face of the statute. No lawyer in the State attempted to answer Heney’s reply, although many of them would have been glad to have earned recognition from the Supreme Court by doing so.
[353]James M. Kerr is author of Kerr’s California Cyclopedic Codes. These works are accepted as standards throughout the country.“It is thought,” says Kerr in California Cyclopedic Codes for 1908, “that ... the [Schmitz] case cannot be safely relied upon as an authority outside of California. It is a flagrant violation of the spirit if not the letter of Section 4 ante, and the old rule that it is the duty of the court, where it is possible, so to construe the statute as to uphold the indictment and promote justice, instead of effecting a miscarriage of justice. Several things occur in connection with a consideration of the foregoing quotation from the Supreme Court.“1. If an indictment can lawfully be upheld, the court, as the judicial voice of the State, is bound so to uphold it. It is not the province of the court to seek some strained view of the law by which an indictment of one accused of crime can be quashed.“2. The construction of the code provision on extortion is to be made, not technically, but according to the fair import of its terms, with a view to its object and to promote justice.“3. It is not charged, and the statute does not require it to be charged, that the threat was made by Schmitz, acting in his official capacity. The crime of extortion, under our statute, is not the old common-law crime of extortion, which could be committed only by an official acting in his official capacity. Under our statute it is immaterial whether Schmitz held any official position, or whether Schmitz and Ruef had any power or influence to carry out the threat; the only thing to be considered is, Did the accused extort money by means of a threat? Official position or power to carry out the threat is neither material nor proper.“4. It is entirely immaterial by what means Schmitz and Ruef intended to accomplish their threat to have the liquor license withheld; whether by fair persuasion of the Board of Supervisors, or by menace, duress, fraud, or undue influence. The crime charged did not consist in the dealings with the Board of Supervisors, but in the threat made to the French restaurateurs, by means of which the fears of the latter were aroused, and were forced to pay to Schmitz and Ruef money to which the latter were not entitled, as a means of preventing Schmitz and Ruef from carrying out the threat. To require the indictment to contain an allegation of the means intended to be used by Schmitz and Ruef to accomplish their unlawful purpose—the means to be used with, or to influence, or to menace, or duress, or fraud in dealing with, the Board of Supervisors—is indubitably bad law and bad pleading.“5. The declaration that the case ‘is not one which is sufficient to charge an offense in the language of the statute defining it,’ made by the court, needs some reason and good authorities to make it good law outside of this State, and also in this State under the system of criminal pleading provided for by the code—which should be the law by which criminal pleading is to be measured.“6. It does not seem to have been suggested to the court, and it does not seem to have occurred to the learned judges thereof, that the trial court was required to take judicial notice of the head of department of a co-ordinate department of the government of the City and County of San Francisco, and to take judicial notice of the fact that Schmitz was at least de facto Mayor. See Kerr’s Cyc. Code Civ. Proc., Sec. 1875, Subd. 5.“7. The position and practical control of Ruef, as the ‘political boss’ of San Francisco (a position unrecognized by law), and his undue influence over the Board of Supervisors (the exercise of which is contrary to public policy), was merely matter of evidence, and not a matter to be pleaded; the only thing that is important is, Was the threat made? and did the defendants, Schmitz and Ruef, through such threat, extort money, and by means of the fear raised thereby? If they did, it is utterly immaterial whether Schmitz was Mayor, or Ruef was a ‘political boss,’ and had or had not any influence with the Board of Supervisors. The Supreme Court 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.“8. A threat to do a lawful act, if made for the purpose of putting a person in fear, and thereby securing money or property which the person was not in law entitled to have and receive, renders such person guilty of extortion, under the weight of decision and the better doctrine; and taking the case in that view, the indictment is amply sufficient, and should have been upheld by the court. The case of Boyson vs. Thorn, 98 Cal., 578; 33 Pac. Rep., 492, has no application, and its citation by the court only tends to befog the issue.”
James M. Kerr is author of Kerr’s California Cyclopedic Codes. These works are accepted as standards throughout the country.
“It is thought,” says Kerr in California Cyclopedic Codes for 1908, “that ... the [Schmitz] case cannot be safely relied upon as an authority outside of California. It is a flagrant violation of the spirit if not the letter of Section 4 ante, and the old rule that it is the duty of the court, where it is possible, so to construe the statute as to uphold the indictment and promote justice, instead of effecting a miscarriage of justice. Several things occur in connection with a consideration of the foregoing quotation from the Supreme Court.
“1. If an indictment can lawfully be upheld, the court, as the judicial voice of the State, is bound so to uphold it. It is not the province of the court to seek some strained view of the law by which an indictment of one accused of crime can be quashed.
“2. The construction of the code provision on extortion is to be made, not technically, but according to the fair import of its terms, with a view to its object and to promote justice.
“3. It is not charged, and the statute does not require it to be charged, that the threat was made by Schmitz, acting in his official capacity. The crime of extortion, under our statute, is not the old common-law crime of extortion, which could be committed only by an official acting in his official capacity. Under our statute it is immaterial whether Schmitz held any official position, or whether Schmitz and Ruef had any power or influence to carry out the threat; the only thing to be considered is, Did the accused extort money by means of a threat? Official position or power to carry out the threat is neither material nor proper.
“4. It is entirely immaterial by what means Schmitz and Ruef intended to accomplish their threat to have the liquor license withheld; whether by fair persuasion of the Board of Supervisors, or by menace, duress, fraud, or undue influence. The crime charged did not consist in the dealings with the Board of Supervisors, but in the threat made to the French restaurateurs, by means of which the fears of the latter were aroused, and were forced to pay to Schmitz and Ruef money to which the latter were not entitled, as a means of preventing Schmitz and Ruef from carrying out the threat. To require the indictment to contain an allegation of the means intended to be used by Schmitz and Ruef to accomplish their unlawful purpose—the means to be used with, or to influence, or to menace, or duress, or fraud in dealing with, the Board of Supervisors—is indubitably bad law and bad pleading.
“5. The declaration that the case ‘is not one which is sufficient to charge an offense in the language of the statute defining it,’ made by the court, needs some reason and good authorities to make it good law outside of this State, and also in this State under the system of criminal pleading provided for by the code—which should be the law by which criminal pleading is to be measured.
“6. It does not seem to have been suggested to the court, and it does not seem to have occurred to the learned judges thereof, that the trial court was required to take judicial notice of the head of department of a co-ordinate department of the government of the City and County of San Francisco, and to take judicial notice of the fact that Schmitz was at least de facto Mayor. See Kerr’s Cyc. Code Civ. Proc., Sec. 1875, Subd. 5.
“7. The position and practical control of Ruef, as the ‘political boss’ of San Francisco (a position unrecognized by law), and his undue influence over the Board of Supervisors (the exercise of which is contrary to public policy), was merely matter of evidence, and not a matter to be pleaded; the only thing that is important is, Was the threat made? and did the defendants, Schmitz and Ruef, through such threat, extort money, and by means of the fear raised thereby? If they did, it is utterly immaterial whether Schmitz was Mayor, or Ruef was a ‘political boss,’ and had or had not any influence with the Board of Supervisors. The Supreme Court 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.
“8. A threat to do a lawful act, if made for the purpose of putting a person in fear, and thereby securing money or property which the person was not in law entitled to have and receive, renders such person guilty of extortion, under the weight of decision and the better doctrine; and taking the case in that view, the indictment is amply sufficient, and should have been upheld by the court. The case of Boyson vs. Thorn, 98 Cal., 578; 33 Pac. Rep., 492, has no application, and its citation by the court only tends to befog the issue.”
[354]Dean Wigmore’s criticism of the decisions in the Schmitz case, and of the articles written in defense of them was as follows: “I have read the letter of Mr. Heney, and the letter of the Chief Justice, and have re-read the opinion of the Court in People vs. Schmitz, 94 Pac. Rep. 419. The Chief Justice’s letter and Mr. Heney’s reply turn largely on the legal rule of judicial notice. The learned Chief Justice finds himself iron-bound by the rules of that subject. But the whole spirit of the rules is misconceived by him. Their essential and sole purpose is to relieve the party from proof,—that is, from proof of facts which are so notorious as not to need proof. When a party has not averred or evidenced a fact which later turns out, in the Supreme Court’s opinion, to be vital, the rule of judicial notice helps out the judge by permitting him to take the fact as true, where it is one so notorious that evidence of it would have been superfluous. Now these helping rules are not intended to bind him, but the contrary, i.e., to make him free to take the fact as proved where he knows the proof was not needed. Moreover, it follows that, since these rules cannot foresee every case that new times and new conditions will create, they can always receive new applications. The precedents of former judges, in noticing specific facts, do not restrict present judges from noticing new facts, provided only that the new fact is notorious to all the community. For example, the unquestioned election of William H. Taft as President of the United States is notorious; but no man named William H. Taft has ever been elected President, and no judicial precedent has noticed the fact. But no court would hesitate to notice this new notorious fact.“If, then, a man named Schmitz was notoriously Mayor of San Francisco and a man named Ruef was notoriously its political boss, at the time in question, that is all that any court needs; and the doctrine of judicial notice gives it all the liberty it needs. It is conceivable that a trial judge might sometimes hesitate in applying this doctrine of notoriety, because the trial court might fear that the Supreme Court would not perceive the notoriety. But there never need be any such hesitation in a Supreme Court, if that court does see the notoriety.“And this is just where the learned Chief Justice is to be criticised. He does not for a moment ask or answer the question, ‘Did we actually, as men and officers, believe these facts to be notoriously so?’ but refers to certain mechanical rules, external to his mind. What that Supreme Court should have done was to decide whether they under the circumstances did actually believe the facts about the status of Schmitz and Ruef to be notorious. In not so doing, they erred against the whole spirit and principle of judicial notice.“And Mr. Heney’s demonstration that there is nothing in the codes to forbid them is complete; for, of course, the Code of Procedure, in telling them (Section 1875) that ‘the courts take judicial notice of the following facts,’ simply gave them a liberty of belief as to those specified facts, and did not take away their liberty as to other unspecified facts.“But there is a deeper error than this in the learned Chief Justice’s letter, and in the court’s opinion. The letter says: ‘If by means of these allegations or otherwise it had been made to appear that the defendants had caused the applicants to believe that they could and would influence the Police Commissioners to reject their application regardless of its merits I have never doubted that the indictment would have been sufficient.’ He stakes his decision on this point. The point is that, in determining the fear caused by the threat, which constituted extortion, the belief of the restaurant-keeper as to Schmitz’s and Ruef’s power, and not their actual power, was the essential thing. If that is so, then of what consequence was it whether one or the other was Mayor or boss? And of what consequence was it whether those facts were averred or judicially noticed. None at all. The indictment alleged that the threats were made to use influence or power over the Commissioners, and that their purpose was to obtain money by means of (i.e., through fear of) such threats. Obviously, then, the actual power or influence was immaterial; and the belief of the restaurant-keeper, the only material fact, was a question of the evidence on the trial, and not of the legal sufficiency of the indictment. All the lucubrations about judicial notice were therefore beside the point.“The inconsistency of the learned Chief Justice, in thus taking as essential the actual status of Schmitz and Ruef, is further seen in his next paragraph. There he declares ‘it could not be assumed that such private persons could prevent the issuance of the license otherwise than by adducing good reasons.’ But why does he assume that, on the contrary, a threat by a Mayor or a boss could prevent the issuance of the license otherwise than by adducing good reasons? He says that if it had appeared that the threats were made by a Mayor and a boss, then this would have sufficed, because, in his own words, their influence to reject the application would have been used ‘regardless of its merits.’ See what this means. Suppose that two persons, a Mayor and a private citizen, tell a restaurant-keeper that they will do all they can to induce a Commissioner to revoke the license unless money is paid; for one of these persons, the learned Chief Justice immediately assumes that he can and will do this ‘regardless of its merits’; for the other he says ‘it cannot be assumed.’ Why not for one as much or as little as the other? He does not say that the private person could not possibly succeed in influencing the Commissioner corruptly—he merely says that ‘it cannot be assumed.’ On the other hand, why assume it for the Mayor? Surely a Mayor might fail in trying to influence an honest Commissioner by a corrupt threat to remove him. In short, either assume that on the facts of the trial a private person might have power to influence corruptly the license; in which case an allegation of his Mayoralty would be superfluous. Or else refuse to assume that a Mayor, merely as such, could and would inevitably influence a Commissioner corruptly; in which case the mere allegation of his being Mayor would not be enough, and judicial notice would not cure. But the Chief Justice says it would be enough! He is plainly inconsistent.“The truth is that the learned Chief Justice, in endeavoring to support his decision, weaves a logical web, and then entangles himself in it.“Such disputations were the life of scholarship and of the law sixhundredyears ago. They are out of place today. There are enough rules of law to sustain them, if the court wants to do so. And there are enough rules of law to brush them away, if the court wants to do that.“All the rules in the world will not get us substantial justice if the judges have not the correct living moral attitude toward substantial justice.“We do not doubt that there are dozens of other Supreme Justices who would decide, and are today deciding, in obscure cases, just such points in just the same way as the California case. And we do not doubt there are hundreds of lawyers whose professional habit of mind would make them decide just that way if they were elevated to the bench tomorrow in place of those other anachronistic jurists who are now there. The moral is that our profession must be educated out of such vicious habits of thought. One way to do this is to let the newer Ideas be dinned into their professional consciousness by public criticism and private conversation.“The Schmitz-Ruef case will at least have been an ill-wind blowing good to somebody if it helps to achieve that result.“December 7, 1908.“JOHN H. WIGMORE.”
Dean Wigmore’s criticism of the decisions in the Schmitz case, and of the articles written in defense of them was as follows: “I have read the letter of Mr. Heney, and the letter of the Chief Justice, and have re-read the opinion of the Court in People vs. Schmitz, 94 Pac. Rep. 419. The Chief Justice’s letter and Mr. Heney’s reply turn largely on the legal rule of judicial notice. The learned Chief Justice finds himself iron-bound by the rules of that subject. But the whole spirit of the rules is misconceived by him. Their essential and sole purpose is to relieve the party from proof,—that is, from proof of facts which are so notorious as not to need proof. When a party has not averred or evidenced a fact which later turns out, in the Supreme Court’s opinion, to be vital, the rule of judicial notice helps out the judge by permitting him to take the fact as true, where it is one so notorious that evidence of it would have been superfluous. Now these helping rules are not intended to bind him, but the contrary, i.e., to make him free to take the fact as proved where he knows the proof was not needed. Moreover, it follows that, since these rules cannot foresee every case that new times and new conditions will create, they can always receive new applications. The precedents of former judges, in noticing specific facts, do not restrict present judges from noticing new facts, provided only that the new fact is notorious to all the community. For example, the unquestioned election of William H. Taft as President of the United States is notorious; but no man named William H. Taft has ever been elected President, and no judicial precedent has noticed the fact. But no court would hesitate to notice this new notorious fact.
“If, then, a man named Schmitz was notoriously Mayor of San Francisco and a man named Ruef was notoriously its political boss, at the time in question, that is all that any court needs; and the doctrine of judicial notice gives it all the liberty it needs. It is conceivable that a trial judge might sometimes hesitate in applying this doctrine of notoriety, because the trial court might fear that the Supreme Court would not perceive the notoriety. But there never need be any such hesitation in a Supreme Court, if that court does see the notoriety.
“And this is just where the learned Chief Justice is to be criticised. He does not for a moment ask or answer the question, ‘Did we actually, as men and officers, believe these facts to be notoriously so?’ but refers to certain mechanical rules, external to his mind. What that Supreme Court should have done was to decide whether they under the circumstances did actually believe the facts about the status of Schmitz and Ruef to be notorious. In not so doing, they erred against the whole spirit and principle of judicial notice.
“And Mr. Heney’s demonstration that there is nothing in the codes to forbid them is complete; for, of course, the Code of Procedure, in telling them (Section 1875) that ‘the courts take judicial notice of the following facts,’ simply gave them a liberty of belief as to those specified facts, and did not take away their liberty as to other unspecified facts.
“But there is a deeper error than this in the learned Chief Justice’s letter, and in the court’s opinion. The letter says: ‘If by means of these allegations or otherwise it had been made to appear that the defendants had caused the applicants to believe that they could and would influence the Police Commissioners to reject their application regardless of its merits I have never doubted that the indictment would have been sufficient.’ He stakes his decision on this point. The point is that, in determining the fear caused by the threat, which constituted extortion, the belief of the restaurant-keeper as to Schmitz’s and Ruef’s power, and not their actual power, was the essential thing. If that is so, then of what consequence was it whether one or the other was Mayor or boss? And of what consequence was it whether those facts were averred or judicially noticed. None at all. The indictment alleged that the threats were made to use influence or power over the Commissioners, and that their purpose was to obtain money by means of (i.e., through fear of) such threats. Obviously, then, the actual power or influence was immaterial; and the belief of the restaurant-keeper, the only material fact, was a question of the evidence on the trial, and not of the legal sufficiency of the indictment. All the lucubrations about judicial notice were therefore beside the point.
“The inconsistency of the learned Chief Justice, in thus taking as essential the actual status of Schmitz and Ruef, is further seen in his next paragraph. There he declares ‘it could not be assumed that such private persons could prevent the issuance of the license otherwise than by adducing good reasons.’ But why does he assume that, on the contrary, a threat by a Mayor or a boss could prevent the issuance of the license otherwise than by adducing good reasons? He says that if it had appeared that the threats were made by a Mayor and a boss, then this would have sufficed, because, in his own words, their influence to reject the application would have been used ‘regardless of its merits.’ See what this means. Suppose that two persons, a Mayor and a private citizen, tell a restaurant-keeper that they will do all they can to induce a Commissioner to revoke the license unless money is paid; for one of these persons, the learned Chief Justice immediately assumes that he can and will do this ‘regardless of its merits’; for the other he says ‘it cannot be assumed.’ Why not for one as much or as little as the other? He does not say that the private person could not possibly succeed in influencing the Commissioner corruptly—he merely says that ‘it cannot be assumed.’ On the other hand, why assume it for the Mayor? Surely a Mayor might fail in trying to influence an honest Commissioner by a corrupt threat to remove him. In short, either assume that on the facts of the trial a private person might have power to influence corruptly the license; in which case an allegation of his Mayoralty would be superfluous. Or else refuse to assume that a Mayor, merely as such, could and would inevitably influence a Commissioner corruptly; in which case the mere allegation of his being Mayor would not be enough, and judicial notice would not cure. But the Chief Justice says it would be enough! He is plainly inconsistent.
“The truth is that the learned Chief Justice, in endeavoring to support his decision, weaves a logical web, and then entangles himself in it.
“Such disputations were the life of scholarship and of the law sixhundredyears ago. They are out of place today. There are enough rules of law to sustain them, if the court wants to do so. And there are enough rules of law to brush them away, if the court wants to do that.
“All the rules in the world will not get us substantial justice if the judges have not the correct living moral attitude toward substantial justice.
“We do not doubt that there are dozens of other Supreme Justices who would decide, and are today deciding, in obscure cases, just such points in just the same way as the California case. And we do not doubt there are hundreds of lawyers whose professional habit of mind would make them decide just that way if they were elevated to the bench tomorrow in place of those other anachronistic jurists who are now there. The moral is that our profession must be educated out of such vicious habits of thought. One way to do this is to let the newer Ideas be dinned into their professional consciousness by public criticism and private conversation.
“The Schmitz-Ruef case will at least have been an ill-wind blowing good to somebody if it helps to achieve that result.
“December 7, 1908.
“JOHN H. WIGMORE.”
[356]When Calhoun returned to San Francisco demanding immediate trial, the Examiner announced that he “threw a bombshell into the camp of the prosecution.” The Call, however, dealt with the incident as follows:“Patrick Calhoun has come back in a hurry, shouting for an immediate trial. He is certain that he has the prosecution on the hip. His men are in treaty with Ruef. His organs in the press, the Examiner, the Chronicle and the gutter weeklies, begin to see Ruef in a wholly new light. Three weeks ago Ruef was the vilest criminal. No immunity for him. Indeed, immunity, in the lexicon of the Calhoun press, was then a worse crime than bribery or graft. It is very different now that the new alliance between Ruef and the bribe givers is in process of negotiation. Ruef has at once become the persecuted sufferer, the victim of a heartless cabal, pushing one more unfortunate to his ruin and positively ‘rushing’ him to trial with indecent haste, with no lawyers but Henry Ach to hire. It is too bad.“Why this astonishing and sudden change of front? It is simply that Calhoun has made up his mind that this is the time for grafters and boodlers and bribe givers to stand together. He has persuaded himself that the prosecution is dazed by the extraordinary decision of the Court of Appeals, and that the same has put Ruef in a receptive mood for a treaty of alliance, offensive and defensive, among all varieties of boodlers, franchise grabbers, bribe givers and bribe takers. Calhoun knows that Ruef on trial or before trial is a very different person from Ruef after conviction. He wants to keep Ruef in his present state of mind. Of course, he knows that he can not trust Ruef. No man who has had dealings with the shifty boss knows on what side he will turn up next. At present Ruef lends a responsive ear to Calhoun’s overtures. Consultations are held without disguise between Calhoun’s lawyers and Ruef. It is time for Ruef and Calhoun to stand together. The association is suggestive but natural.”
When Calhoun returned to San Francisco demanding immediate trial, the Examiner announced that he “threw a bombshell into the camp of the prosecution.” The Call, however, dealt with the incident as follows:
“Patrick Calhoun has come back in a hurry, shouting for an immediate trial. He is certain that he has the prosecution on the hip. His men are in treaty with Ruef. His organs in the press, the Examiner, the Chronicle and the gutter weeklies, begin to see Ruef in a wholly new light. Three weeks ago Ruef was the vilest criminal. No immunity for him. Indeed, immunity, in the lexicon of the Calhoun press, was then a worse crime than bribery or graft. It is very different now that the new alliance between Ruef and the bribe givers is in process of negotiation. Ruef has at once become the persecuted sufferer, the victim of a heartless cabal, pushing one more unfortunate to his ruin and positively ‘rushing’ him to trial with indecent haste, with no lawyers but Henry Ach to hire. It is too bad.
“Why this astonishing and sudden change of front? It is simply that Calhoun has made up his mind that this is the time for grafters and boodlers and bribe givers to stand together. He has persuaded himself that the prosecution is dazed by the extraordinary decision of the Court of Appeals, and that the same has put Ruef in a receptive mood for a treaty of alliance, offensive and defensive, among all varieties of boodlers, franchise grabbers, bribe givers and bribe takers. Calhoun knows that Ruef on trial or before trial is a very different person from Ruef after conviction. He wants to keep Ruef in his present state of mind. Of course, he knows that he can not trust Ruef. No man who has had dealings with the shifty boss knows on what side he will turn up next. At present Ruef lends a responsive ear to Calhoun’s overtures. Consultations are held without disguise between Calhoun’s lawyers and Ruef. It is time for Ruef and Calhoun to stand together. The association is suggestive but natural.”
[357]The graft prisoners unquestionably suffered greatly from their confinement.“No matter,” said Ruef, in an interview printed in The Examiner January 11, 1908, “how much effort is made, the place cannot be kept clean. Filth accumulates and no running water has been provided. The gases from the drain pipes permeate the cells and are always present. No prisoner can keep himself clean, and it is no wonder that clothing and everything is uncleanly.”Schmitz, long of body, complained that he needed a long cell. “I would like a longer cell,” he is reported as saying. “My legs are too long and I cannot stretch them out. The hole is beastly and no place for a clean man.”Louis Glass declared that he would be dead in a few days if not permitted to remain outside his cell.
The graft prisoners unquestionably suffered greatly from their confinement.
“No matter,” said Ruef, in an interview printed in The Examiner January 11, 1908, “how much effort is made, the place cannot be kept clean. Filth accumulates and no running water has been provided. The gases from the drain pipes permeate the cells and are always present. No prisoner can keep himself clean, and it is no wonder that clothing and everything is uncleanly.”
Schmitz, long of body, complained that he needed a long cell. “I would like a longer cell,” he is reported as saying. “My legs are too long and I cannot stretch them out. The hole is beastly and no place for a clean man.”
Louis Glass declared that he would be dead in a few days if not permitted to remain outside his cell.
[358]See affidavit filed by District Attorney Langdon in The People vs. Patrick Calhoun et al., No. 823.
See affidavit filed by District Attorney Langdon in The People vs. Patrick Calhoun et al., No. 823.
[359]See affidavits filed by District Attorney Langdon, and by Judge Dunne, in the case of Patrick Calhoun et al., No. 823.
See affidavits filed by District Attorney Langdon, and by Judge Dunne, in the case of Patrick Calhoun et al., No. 823.
[360]Langdon does not state in his affidavit what this evidence was. But at the trial of Ruef forofferingbribes to Jennings Phillips to grant the Parkside Railroad franchise, former Supervisor Wilson testified that at the first Ford trial Ruef had asked him to bury his memory of the money transactions and discussions with Ruef. Ruef at the time was pretending to be assisting the Prosecution in conformity with the terms of his immunity contract.
Langdon does not state in his affidavit what this evidence was. But at the trial of Ruef forofferingbribes to Jennings Phillips to grant the Parkside Railroad franchise, former Supervisor Wilson testified that at the first Ford trial Ruef had asked him to bury his memory of the money transactions and discussions with Ruef. Ruef at the time was pretending to be assisting the Prosecution in conformity with the terms of his immunity contract.
[361]District Attorney Langdon, in an affidavit filed in the case of The People vs. Patrick Calhoun et al., No. 823, states his attitude toward Ruef. Mr. Langdon says:“Affiant further avers and declares that if affiant believed that the defendant Ruef had fully and fairly performed his part of the agreement, and had honestly rendered such service to the State as would have entitled him to the consideration set forth in the immunity contract, this affiant would have moved in open court to dismiss the indictments against defendant Ruef, and if said motion were denied and affiant was directed by the Court or any other official to proceed with the trial of said defendant, this affiant would have declined to do so, and after exhausting every resource at his command to carry out the terms and conditions of said immunity agreement, would have resigned his official position of District Attorney of the City and County of San Francisco, rather than prosecute the defendant Ruef.“This affiant avers that it was only when he became convinced that the defendant Ruef was still traitorous to the State he had debauched, and whose laws he had defied, and that instead of trying to make reparation for the wrong he had done, was endeavoring not only to save himself from the punishment he so richly deserved, but also was endeavoring to make certain the escape from punishment of his co-defendants, that affiant determined the immunity contract to have been broken by Ruef, and no longer in force and effect.”
District Attorney Langdon, in an affidavit filed in the case of The People vs. Patrick Calhoun et al., No. 823, states his attitude toward Ruef. Mr. Langdon says:
“Affiant further avers and declares that if affiant believed that the defendant Ruef had fully and fairly performed his part of the agreement, and had honestly rendered such service to the State as would have entitled him to the consideration set forth in the immunity contract, this affiant would have moved in open court to dismiss the indictments against defendant Ruef, and if said motion were denied and affiant was directed by the Court or any other official to proceed with the trial of said defendant, this affiant would have declined to do so, and after exhausting every resource at his command to carry out the terms and conditions of said immunity agreement, would have resigned his official position of District Attorney of the City and County of San Francisco, rather than prosecute the defendant Ruef.
“This affiant avers that it was only when he became convinced that the defendant Ruef was still traitorous to the State he had debauched, and whose laws he had defied, and that instead of trying to make reparation for the wrong he had done, was endeavoring not only to save himself from the punishment he so richly deserved, but also was endeavoring to make certain the escape from punishment of his co-defendants, that affiant determined the immunity contract to have been broken by Ruef, and no longer in force and effect.”
[362]The Examiner in its issue of January 19, 1908, stated that the abrogation of the immunity contract, “means among other things that Ruef will now have aligned in his defense, the massed influence of interests represented by the prosecution to command $600,000,000 in wealth.”
The Examiner in its issue of January 19, 1908, stated that the abrogation of the immunity contract, “means among other things that Ruef will now have aligned in his defense, the massed influence of interests represented by the prosecution to command $600,000,000 in wealth.”
[363]Heney, in an affidavit filed in the case of The People vs. Patrick Calhoun et al., No. 823, states that he finally said to Kaplan, “You only annoy and irritate me by coming here, Doctor, and I wish you would stay away. I don’t want to get mad at you, because I respect you and am satisfied that you are sincere, but Ruef is making a fool of you, and I have wasted more time than I can spare in talking with you about these things. You will do me a great favor if you will stay away from my office.”In spite of this suggestion, Kaplan, a few days later, called Heney up on the telephone. Of the incident, Heney says in his affidavit: “A few days later, however, he called me on the telephone. I was at my office at the time, and do not know where he was. He said over the telephone in substance, ‘Mr. Heney, I don’t like to trouble you any more, but I had a talk with Mr. Burns and I have since had another talk with Mr. Ruef, and I am sure that Mr. Ruef’s testimony will now satisfy you. He says that when he is on the witness stand and you ask him’—I interrupted him at about this point and said in a very severe tone of voice, ‘Dr. Kaplan, I don’t want you talking such stuff to me over the phone, or anywhere else. I have asked you not to talk to me about this matter any more and not to come to my office, and I will now have to ask you not to call me any more on the telephone. I don’t want to hear anything more about Ruef’s testimony.’”
Heney, in an affidavit filed in the case of The People vs. Patrick Calhoun et al., No. 823, states that he finally said to Kaplan, “You only annoy and irritate me by coming here, Doctor, and I wish you would stay away. I don’t want to get mad at you, because I respect you and am satisfied that you are sincere, but Ruef is making a fool of you, and I have wasted more time than I can spare in talking with you about these things. You will do me a great favor if you will stay away from my office.”
In spite of this suggestion, Kaplan, a few days later, called Heney up on the telephone. Of the incident, Heney says in his affidavit: “A few days later, however, he called me on the telephone. I was at my office at the time, and do not know where he was. He said over the telephone in substance, ‘Mr. Heney, I don’t like to trouble you any more, but I had a talk with Mr. Burns and I have since had another talk with Mr. Ruef, and I am sure that Mr. Ruef’s testimony will now satisfy you. He says that when he is on the witness stand and you ask him’—I interrupted him at about this point and said in a very severe tone of voice, ‘Dr. Kaplan, I don’t want you talking such stuff to me over the phone, or anywhere else. I have asked you not to talk to me about this matter any more and not to come to my office, and I will now have to ask you not to call me any more on the telephone. I don’t want to hear anything more about Ruef’s testimony.’”
[364]See affidavits filed by Rabbis Nieto and Kaplan in the case of The People vs. Patrick Calhoun et al.
See affidavits filed by Rabbis Nieto and Kaplan in the case of The People vs. Patrick Calhoun et al.
[365]SeeChapter XV.
SeeChapter XV.
[366]SeeChapter XV.
SeeChapter XV.
[367]A letter from W. H. Payson, a leader of the San Francisco bar, to Rabbi Nieto fairly expressed the public attitude on the Rabbi’s stand. Mr. Payson’s letter read: “Rabbi Jacob Nieto. Dear Sir:—As you have written a letter to the public explaining your connection with the Ruef case, it may not be out of place for one of the public to reply.“When Mr. Ruef made his apparently frank statement admitting that he had betrayed his city into the hands of the spoilers, but promised to do all in his power to right the wrong, whatever the consequences might be to himself, the public believed him and believed that he was going to do right because it was right and for his own self-respect, and not at the price of saving his own skin. Acting on this assumption many of us congratulated Mr. Ruef and assured him that he had gone far toward recovering his position in the public esteem. It now turns out from your letter of explanation that Mr. Ruef’s public statement of his high and noble purpose was a mockery and hollow sham; that he had rejected any proposition to act the man, but like his contemptible associates, sought only to escape his just deserts.“We recognize the unfortunate necessity the prosecution was under of granting immunity in order to secure the evidence to convict the greater felons, but surely the officers of the law were fully qualified to attend to that miserable business. If you could have influenced Mr. Ruef to stand on the higher plane of honor and decency of which you are the advocate and representative, you would indeed have done a great public service and you might have saved him for better things, but it would seem that your services were directed chiefly to saving him from the just penalty of his crimes and that the arrangement with him was on the same sordid level as the immunity contracts with the Supervisors, for which no ministerial services were necessary. From your position and religious heritage we had a right to expect that your distinguished services would have been put to a better use. I am still sufficiently credulous as to believe that with proper influence Mr. Ruef might have been induced to take the course we were led to believe he had taken.“Your letter even leaves it to be inferred that Mr. Ruef is justified in his present attitude, and that the judges, who, from your statement, were ready to go to the extreme of mercy and consideration, are now to be censured for not carrying out an immunity contract which has been flagrantly broken by the other party to it.“The serious features of this unfortunate situation are not that officials should receive bribes, or that men of wealth and standing should bribe them, or that attorneys of reputation should engineer the filthy operation, but that not one of the army of bribed and bribers has been found of sufficient manliness or moral stamina to make a frank statement of the facts and give aid in the cause of justice, and that so many people are willing to shield the influential criminals for commercial motives, and that there is so low a state of public morals as to make these things possible.“The great body of the public is heart and soul back of this prosecution, because we believe it is an honest attempt, not merely to convict certain criminals, but to elevate the standard of public morality, and whatever may be the outcome and even though, through successive miscarriages of justice, every guilty man escape his legal punishment, the graft prosecution has, nevertheless, succeeded beyond our fondest hopes; nine-tenths of its work has been accomplished, and in the teeth of the most determined and desperate opposition perhaps ever known.“Be assured that every guilty man will be convicted at the bar of public opinion, and from that conviction there will be no appeal and no escape; they will be known and branded for life, each and every one. The public is not a party to the immunity contracts.“Very truly yours,“W. H. PAYSON.“San Francisco, January 30, 1908.”
A letter from W. H. Payson, a leader of the San Francisco bar, to Rabbi Nieto fairly expressed the public attitude on the Rabbi’s stand. Mr. Payson’s letter read: “Rabbi Jacob Nieto. Dear Sir:—As you have written a letter to the public explaining your connection with the Ruef case, it may not be out of place for one of the public to reply.
“When Mr. Ruef made his apparently frank statement admitting that he had betrayed his city into the hands of the spoilers, but promised to do all in his power to right the wrong, whatever the consequences might be to himself, the public believed him and believed that he was going to do right because it was right and for his own self-respect, and not at the price of saving his own skin. Acting on this assumption many of us congratulated Mr. Ruef and assured him that he had gone far toward recovering his position in the public esteem. It now turns out from your letter of explanation that Mr. Ruef’s public statement of his high and noble purpose was a mockery and hollow sham; that he had rejected any proposition to act the man, but like his contemptible associates, sought only to escape his just deserts.
“We recognize the unfortunate necessity the prosecution was under of granting immunity in order to secure the evidence to convict the greater felons, but surely the officers of the law were fully qualified to attend to that miserable business. If you could have influenced Mr. Ruef to stand on the higher plane of honor and decency of which you are the advocate and representative, you would indeed have done a great public service and you might have saved him for better things, but it would seem that your services were directed chiefly to saving him from the just penalty of his crimes and that the arrangement with him was on the same sordid level as the immunity contracts with the Supervisors, for which no ministerial services were necessary. From your position and religious heritage we had a right to expect that your distinguished services would have been put to a better use. I am still sufficiently credulous as to believe that with proper influence Mr. Ruef might have been induced to take the course we were led to believe he had taken.
“Your letter even leaves it to be inferred that Mr. Ruef is justified in his present attitude, and that the judges, who, from your statement, were ready to go to the extreme of mercy and consideration, are now to be censured for not carrying out an immunity contract which has been flagrantly broken by the other party to it.
“The serious features of this unfortunate situation are not that officials should receive bribes, or that men of wealth and standing should bribe them, or that attorneys of reputation should engineer the filthy operation, but that not one of the army of bribed and bribers has been found of sufficient manliness or moral stamina to make a frank statement of the facts and give aid in the cause of justice, and that so many people are willing to shield the influential criminals for commercial motives, and that there is so low a state of public morals as to make these things possible.
“The great body of the public is heart and soul back of this prosecution, because we believe it is an honest attempt, not merely to convict certain criminals, but to elevate the standard of public morality, and whatever may be the outcome and even though, through successive miscarriages of justice, every guilty man escape his legal punishment, the graft prosecution has, nevertheless, succeeded beyond our fondest hopes; nine-tenths of its work has been accomplished, and in the teeth of the most determined and desperate opposition perhaps ever known.
“Be assured that every guilty man will be convicted at the bar of public opinion, and from that conviction there will be no appeal and no escape; they will be known and branded for life, each and every one. The public is not a party to the immunity contracts.
“Very truly yours,“W. H. PAYSON.
“San Francisco, January 30, 1908.”