Story of the Session of the California Legislature of 1909 Part 17

With the Change of Venue bill on the Special Urgency File, the next step was to get it considered at the moment most favorable for machine purposes. Along about 11 o'clock in the forenoon - the reader should keep in mind that in the ordinary course of the Senate's work the Special Urgency File would not have been considered until 8 o'clock that evening - Senator Wolfe moved that the Special Urgency File be taken up out of order. But before the Change of Venue bill could be reached, Senator Wright, who favored the pa.s.sage of the measure, was found to be absent from the Senate chamber. On Senator McCartney's motion, the Change of Venue bill was temporarily pa.s.sed on file. With the constant coming and going of Senators, there was no time while the file was under consideration, that the eighteen Senators counted on to vote in a solid block for the bill, were all present. The Senate concluded consideration of the Special Urgency File, and still the Change of Venue bill had not been taken up. The Senate then took up the second reading of a.s.sembly bills, and then the Special File of Appropriation bills. A communication from Dr. Howard Black and Dr. Harry D. Reynolds was read setting forth that Senator Black was too ill to leave Palo Alto. Bills were pa.s.sed and bills were withdrawn. Senator Strobridge reported that Senate Bill No.

862 had been correctly engrossed. And through it all the machine was watching for the favorable moment to force the pa.s.sage of the Change of Venue bill.

The moment came just before noon. Like the snap of a trap Leavitt asked for unanimous consent to take up a.s.sembly Bill No. 6, out of order. The anti-machine Senators are never guilty of discourteous treatment of a fellow Senator. They granted the request.

Senator Wright vouched for the bill. He stated that it was a good bill and should be made a law. Senator Wolfe spoke for it, in fact led the debate to secure its pa.s.sage. On the other hand, Senator Boynton very pointedly told Senator Wright that the bill was not a good measure and should not be pa.s.sed "Judges of the Supreme Court tell me," said Boynton, "that this is a bad bill."

Senator Cutten made a strong speech against the bill, which he denounced as bad in principle. Holohan stated that if the measure became a law it would give a bunco steerer a chance to disqualify every decent Judge in the State. Roseberry denounced the measure as vicious.

When the vote was taken, every Senator who supported it was in his seat, but Burnett, Estudillo and Rush were absent. This would have made the vote 18 to 18, the backers of the measure requiring three more affirmative votes for its pa.s.sage. But Miller and Lewis were led to vote for the measure, which made 20 votes for the bill and 16 against it. At this point the bill lacked one vote of pa.s.sage. Estudillo was, however, brought in under call of the Senate, and under what amounted to misrepresentation, voted for the measure. This pa.s.sed the bill by a vote of 21 to 18. Boynton changed his vote from no to aye, to give notice that on the next legislative day he would move to reconsider the vote by which the bill had been pa.s.sed. But before he could give notice the Senate took its noon recess. Boynton under the rules had all day in which to notify the Senate of his intention, but to make a.s.surance doubly sure, he told the clerk at the desk not to send the bill to the a.s.sembly for he would as soon as the Senate re-convened, give notice of his motion to reconsider.

Nevertheless, when the Senate reconvened, Boynton found that the bill had been rushed over to the a.s.sembly, "to save time," according to the excuse given.

Senator Boynton insisted that the bill be returned from the a.s.sembly.

Wolfe asked Boynton "as a matter of Senatorial courtesy," to permit the vote on the bill to be taken on a motion to have it returned from the a.s.sembly. This request was so ludicrous, in view of the treatment that had been accorded Boynton, that it provoked a smile. Boynton refused to be "courteous," the bill was returned from the a.s.sembly and regularly reconsidered the next day.

With 21 votes against the measure, there seemed little doubt that it would be reconsidered and defeated. Twenty-one votes were necessary for reconsideration. Lewis and Miller had thought better of their vote of Friday and were prepared to vote against the bill. Estudillo, understanding the measure thoroughly, was anxious to set himself right in the record by voting against it. These, with Burnett and Rush, gave twenty-one votes, enough to force reconsideration and to defeat the bill.

But there was a weak link in the combination,Kennedy. Senator Kennedy voted throughout the session consistently with the Wolfe-Leavitt element, but he voted against the Change of Venue bill. When Sat.u.r.day morning came, however, Kennedy could not be found. When reconsideration of the bill came up, Burnett and Rush were out in the hallway. Miller and Lewis voted to reconsider, which made the vote eighteen to eighteen.

Twenty-one votes were necessary for reconsideration. With Kennedy, Burnett and Rush, reconsideration could be forced and the bill defeated.

The only way the absent Senators could be reached was through a call of the Senate, which required a majority vote of those present. A motion for a call of the Senate was defeated by a vote of eighteen to eighteen[78].

This was the real test vote on the Change of Venue bill. It will be seen that Miller and Lewis and Estudillo, who had voted for the bill the day before, voted for a call of the Senate. They would, on reconsideration, have voted against the bill, and its pa.s.sage on reconsideration would have been impossible. Had Kennedy or Rush or Burnett been present, the motion for a call of the Senate would have prevailed, the vote on the Change of Venue bill been reconsidered, and the measure defeated.

Half an hour later, when Kennedy's vote was necessary to enable the machine to continue the deadlock on the Direct Primary bill, Kennedy turned up to do his part in that not very creditable performance.

In this way did the machine element secure the pa.s.sage of the Change of Venue bill. It was a question of good generals.h.i.+p, or, if you like, trickery. Perhaps trickery is the better name for it.

[74] Black's Senate bill, 1,144, came very near being defeated in the a.s.sembly by similar "good generals.h.i.+p." The measure in effect prohibits the sale of intoxicating liquors within a mile and a half of Stanford University. a.s.semblyman Bohnett was in charge of the bill.

Bohnett, the day that the bill was to come up, was called from the room to attend a committee meeting. Immediately did the a.s.sembly show astonis.h.i.+ng activity in consideration of the file. So fast did they go that the Stanford bill seemed destined to be reached while Bohnett was out of the room. Had it been reached with Bohnett away it could have been dropped to the bottom of the file, where it would have been lost, so far as the session of the Legislature of 1909 was concerned.

Charles R. Detrick, of Palo Alto, happened to go to the a.s.sembly chamber at this critical moment and took in the situation at a glance. He accordingly hunted up Bohnett, who got back to the a.s.sembly chamber before the bill could be reached on file. For once "good generals.h.i.+p"

had failed at the legislative session of 1909.

[74a] In 1907, the Change of Venue bill was slipped through the a.s.sembly, but in a form not to affect the San Francisco graft cases. In the Senate, however, it was amended to apply to Ruef, Schmitz and their a.s.sociates. The exposure of this turn raised such a storm that the bill was not brought to vote. However, on the night before adjournment, the measure was slipped through the Senate as an amendment tacked on another bill. But the trick was discovered in the a.s.sembly and defeated.

[75] Governor Gillett's reasons for vetoing the bill are set forth in footnote 1, Chapter 1.

[76] The a.s.sembly vote on the change of venue bill was as follows:

For the Change of Venue bill - Barndollar, Beatty, Black, Cattell, Coghlan, Collier, Collum, Cronin, Drew, Feeley, Flint, Gibbons, Griffiths, Hammon, Hans, Hawk, Hayes, Hewitt, Hinkle, Holmquist, Johnson of Sacramento, Johnson of San Diego, Juilliard, Lightner, Macauley, Maher, McClellan, McMa.n.u.s, Melrose, Mendenhall, Moore, Mott, Pugh, Rech, Schmitt, Silver, Stuckenbruck, Telfer, Transue, Wagner, Wheelan, and Wilson - 42.

Against the Change of Venue bill - Baxter, Bohnett, Butler, Callan, Cogswell, Dean, Gerdes, Gillis, Kehoe, Otis, Polsley, Preston, Sackett, Whitney, and Young - 15.

[77] The Senate Judiciary Committee for example.

[76a] The Senators whose names are printed in italics became involved in the confusion which led to the pa.s.sage of the measure.

[78] The vote was as follows:

For the call of the Senate - Bell, Birdsall, Boynton, Caminetti, Campbell, Cartwright, Curtin, Cutten, Estudillo, Holohan, Lewis, Miller, Roseberry, Sanford, Stetson, Strobridge, Thompson, Walker - 18.

Against the call of the Senate - Anthony, Bates, Bills, Finn, Hare, Hartman, Hurd, Leavitt, Martinelli, McCartney, Price, Reily, Savage, Weed, Welch, Willis, Wolfe, Wright - 18.

Chapter XVII.

Pa.s.sage of the Wheelan Bills.

Measures Extended Abuses Which the Commonwealth Club Bills Had Been Drawn to Prevent - Went Through Both Houses Without the Members Thoroughly Understanding Their Significance.

The so-called Wheelan bills were pa.s.sed in much the same way as was the Change of Venue bill. These measures will perhaps be better understood in comparison with certain of the Commonwealth Club bills which were considered in a previous chapter.

Among the Commonwealth bills was one which denied a defendant under indictment a copy of the testimony taken in the Grand Jury room. The measure was drawn on the theory that Grand Juries deal princ.i.p.ally with secret offenses, and that the testimony had better be brought out before the trial Court. One object of the proposed law was to prevent the defendant giving out testimony with the deliberate object of prejudicing the entire community against him, and thus increasing the difficulty of getting petty juries to try him.

Furthermore, there are instances, as when Abe Ruef was before the Grand Jury at San Francisco, when the ends of justice require that the testimony given shall be kept secret. But, in spite of these and other considerations, the measure in question was allowed to die in Committee.

On the other hand two bills requiring that transcript of such testimony be given the defendant pa.s.sed both Senate and a.s.sembly. They were introduced by Wheelan of San Francisco.

Section 925 of the Penal Code, as it stood up to the time of the opening of the session, provided that "the Grand Jury whenever criminal causes are being investigated before them, on demand of the District Attorney must appoint a competent stenographic reporter to be sworn and to report the testimony that may be given in such causes in shorthand, and reduce the same upon request of the District Attorney to long hand or typewriting." It was thus left with the District Attorney to say whether the stenographic reporter should be present, and whether his notes should be transcribed.

The first of the Wheelan bills, a.s.sembly bill 221[79], amended the law by cutting out the words in italics "on demand of the District Attorney"

and "upon request of the District Attorney," making it mandatory upon the Grand Jury to have the reporter in attendance.

Further on in the section and in a.s.sembly bill 222[79], it was provided that a true copy of the testimony thus taken should be given the defendant at the time of his arraignment.

These two measures pa.s.sed both Senate and a.s.sembly.

a.s.sembly bill 223[79], also introduced by Wheelan, provided another cause for the setting aside of an indictment by the Court in which the defendant is arraigned, upon such defendant's motion. The Commonwealth bills aimed to prevent technical attacks upon indictments. The third of the Wheelan bills - No. 223 - opened the way for further technical attacks, by providing that the Court must set aside the indictment "when it appears from the testimony taken before the Grand jury that the defendant has been indicted upon a criminal charge without reasonable or probable cause."

This measure pa.s.sed both Houses. It opened the way for review before the Court of the testimony taken in the Grand jury room, and endless technical objections, all of which by clever counsel can be employed to delay the case being brought before a trial jury, and in the end perhaps wear out the prosecution, thus preventing the case being tried on its merits. With that section in the law two years ago, it is a question whether the defendants in the graft prosecution at San Francisco would ever have been brought to trial.

It will be seen that while the Commonwealth Club bills aimed to decrease the opportunities for technical defense of men charged with crime, and thus permit the cases being tried on their merits, the Wheelan bills increased opportunity for technical objection.

The history of the pa.s.sage of the Wheelan bills is practically the same in each instance.

The three bills were introduced by Mr. Wheelan on January 11th, and referred to the a.s.sembly Judiciary Committee. The Committee, which pigeon-holed sixty-three of the Commonwealth Club bills, and reported back the two remaining too late for pa.s.sage, had better treatment in store for the Wheelan measures. They were reported back to the a.s.sembly on March 6th, at a time when the a.s.sembly was fairly swamped with pending measures. On March 17th, in the midst of a ma.s.s of legislation, they were slipped through the a.s.sembly without many of the members apparently knowing what they were. The a.s.sembly journal of that date shows that such men as Bohnett, Callan, Cattell, Cogswell, Flint, Gerdes, Gibbons, Gillis, Hayes, Hewitt, Hinkle, Johnson of Placer, Juilliard, Kehoe, Mendenhall, Polsley, Stuckenbruck, Telfer, Whitney, Wilson and Wyllie, who ordinarily voted for good measures and against bad ones, voted for the Wheelan bills.

With the exception of Bill No. 223, not one vote was cast against the measures. The vote on Bill No. 223 was the last taken. Gillis, who had voted for the two others, appears to have awakened to the fact that something was wrong. At any rate, he voted against Bill 223.

His was the only vote cast against any of the three bills in the lower House, They appear to have gone through the a.s.sembly without thorough appreciation of their significance. At any rate, there were members enough present, who were usually against bad measures, to have prevented the Wheelan bills securing the forty-one votes necessary for their pa.s.sage.

A reform measure pa.s.sing the a.s.sembly on March 17th would have had no chance whatever in the Senate. The Wheelan bills were more fortunate.