Story of the Session of the California Legislature of 1909

F >> Franklin Hichborn >> Story of the Session of the California Legislature of 1909

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Story of the Session of the California Legislature of 1909

by Franklin Hichborn

The well-being of the State requires that the opponents to the machine
in Senate and Assembly, regardless of party label, organize the
Legislature. But back of this is the even more important requirement
that there be elected to the Legislature American citizens, with the
responsibility of their citizenship upon them, rather than partisans,
burdened, until their good purposes are made negative, by the
responsibility of their partisanship.

San Francisco
Press of The James H. Barry Company
1909

CONTENTS

Chapter

I. Breaking Ground
II. Organization of the Senate
III. Organization of the Assembly
IV. The Machine in Control
V. Election of United States Senator
VI. The Anti-Racetrack Gambling Bill
VII. Passage of the Anti-Racetrack Gambling Bill
VIII. The Direct Primary Bill
IX. The Machine Defeated in the Senate
X. Fight Over the Assembly Amendments
XI. Machine Amends Direct Primary Bill
XII. The Railroad Regulation Issue
XIII. Machine Defeats the Stetson Bill
XIV. Railroad Measures
XV. Defeat of the Commonwealth Club Bills
XVI. How the Change of Venue Bill Was Passed
XVII. Passage of the Wheelan Bills
XVIII. Defeat of the Local Option Bill
XIX. Defeat of the Initiative Amendment
XX. Defeat of the Anti-Japanese Bills
XXI. The Rule Against Lobbying
XXII. The Machine Lobbyist at Work
XXIII Influence of the San Francisco Delegation
XXIV. Attacks on and Defense of the Fish Commission
XXV. The Rewarding of the Faithful
XXVI. The Holdover Senators
XXVII. The Retiring Senators
XXVIII. Conclusion
Appendix
Tables of Votes
Postal Direct Primary
Dr. Montgomery's Report
The Anti-Japanese Resolution

PREFACE.

In writing the Story of the Session of the California Legislature of
1909, the purpose has been, not only to show what was done at Sacramento
last Winter, but, what is by far more important, how it was done. To
this end, the several measures are divided under three heads, namely,
those dealing with moral, with political and with industrial issues.
Instead of scattering on all the measures introduced, or even a
considerable part of them, the principal issue of each group, that which
meant the most to The People, and upon which the machine centered its
efforts, has been selected for detailed consideration. On the score of
the moral issues, the Anti-Racetrack Gambling bill has been taken as the
most important; while the Direct Primary bill is dealt with as the chief
political issue, and the railroad regulation measures as involving the
chief industrial issue. The story of the fight over these bills is the
story of the session of 1909. The events attending the passage of the
Anti-Racetrack Gambling bill, the amendment of the Direct Primary bill,
and the defeat of the Stetson Railroad Regulation bill, with the
attending incident of the passage of the Wright Railroad bill, show, as
nothing else can, how the machine controls and manipulates a
Legislature - and such is the purpose of this little volume.

The efforts of justice-loving men to simplify the criminal codes, to the
end that rich and poor alike may have equal opportunity in the trial
courts - not in theory alone but in fact - and the successful efforts of the
machine to block this reform, have made detailed consideration of the
defeat of the Commonwealth Club bills and the passage of the Wheelan
bills, and the so-called Change of Venue bill timely. And the story of
these measures illustrates again how the machine element defeats the
purpose of The People, and overrides what are the constitutional
rights - and should be rights in fact - of every American citizen.

Measures which involved no particular contest between the good
government and the machine forces - measures patched up by interested
parties and slipped through the Legislature without opposition and
generally without comment - although many of them of great importance, are
not touched upon. The histories of those selected for consideration show
the machine, or if you like, the system, at its work of passing
undesirable measures, and of blocking the passage of good measures. If
the Story of the Session of the California Legislature of 1909 assist
the citizens of California to understand how this is done; if it give
them that knowledge of the weakness, the strength, the purposes, and the
affiliations of the Senators and Assemblymen who sat in the Legislature
of 1909, a knowledge of which the machine managers have had heretofore a
monopoly; if it point the way for a new method of publicity to crush
corruption and to promote reform - a way which others better prepared for
the work than I, may, in California and even in other States, follow - the
labor of preparing this volume for the press will have been justified.

Franklin Hichborn.

Santa Clara, Cal., July 4, 1909.

Chapter I.

Breaking Ground.

Although the Reform Element had a Majority in Both Senate and Assembly,
Good Bills Were Defeated, and Vicious Measures Passed - Three Reasons for
This: (1) Reform Element Was Without Plan of Action, (2) Was Without
Organization; (3) The Machine Was Permitted to Organize Both Senate and
Assembly.

The personnel of the California Legislature of 1909, was, all things
considered, better than that of any other Legislature that has assembled
in California in a decade or more. There were, to be sure, in both
Senate and Assembly men who were constantly on the wrong side of every
question affecting the moral, political or industrial well-being of the
State, but a majority of each House labored for the passage of good
laws, laws which would not only silence and satisfy constituents, but
prove effective and accomplish the purpose for which they had been
drawn. Just as earnestly as they worked for the passage of good laws, a
majority of the members of the Senate as well as a majority of the
members of the Assembly opposed the passage of vicious measures, and of
measures ostensibly introduced to work needed reform but drawn in such a
manner as to be, from a practical standpoint, ineffective.

And yet, regardless of the purpose of this majority, the so-called
"Change of Venue" [1] bill was passed, and the "Judicial Column" bill,
intended to take the Judiciary out of politics, was denied passage. The
infamous "Wheelan bills," aimed at the complication of the Grand jury
system, went through both Houses, while the Commonwealth Club bills,
drawn to simplify the methods of criminal procedure, were held up and
eventually defeated. The ineffective Wright Railroad Regulation bill
became a law, while the Stetson Railroad measure effective as finally
amended - was rejected. The provision in the Direct Primary bill for the
selection of United States Senators by State-wide vote was stricken out,
and the meaningless advisory, district vote plan substituted.

Certainly, the accomplishment of the Legislature does not line with the
purpose of a majority of its members. The voter is naturally asking why
the majority in both Houses standing for good legislation and opposing
bad, accomplished so little; how it was that a minority, at practically
every turn, defeated a majority.

There were three principal reasons for this outcome.

(1) The machine, as its name indicates, is a definite organization, with
recognized leaders. The anti-machine element was without organization or
recognized leaders.

(2) The reform-advocating majority, except in the anti-racetrack
gambling fight, was without definite plan of action. The majority was,
for example, for the passage of a direct primary law that would, first,
take the control of politics out of the hands of political bosses big
and little, and, second, give the people of California the privilege of
naming their United States Senators, a privilege already enjoyed by the
people of the more progressive States of the Union. But the reform
element knew little or nothing of the details of direct primary
legislation.

They were equally unprepared on other reform issues. They recognized the
necessity of passing an effective railroad regulation law, for example,
but had little or no conception of what the provisions of the measure
should be. They recognized that the criminal laws cannot be impartially
enforced against rich and poor alike until the methods of criminal
procedure be simplified, put on a common sense basis. But even here they
had no definite policy and when told by machine claquers that the
proposed reforms were revolutionary, even the most insistent of the
reform element were content to let the simplifying amendments to the
codes die in committees or on the files.

On the other hand, the machine element, even before a member had reached
Sacramento, had their work for the session carefully outlined. This
session the bulk of the machine's work was negative; that is to say,
with a majority in both houses opposed to machine policies, the machine
recognized the difficulties of passing bad laws except by trick - and
spent the session in amending good measures into ineffectiveness, or,
where they could, in preventing their passage. Down to a comma the
machine leaders knew what they wanted for a direct primary law, for an
anti-racetrack gambling law, for a railroad regulation law. From the
hour the Legislature opened until the gavels fell at the moment of
adjournment the machine element labored intelligently and constantly,
and as an organized working unit, to carry its ends. There were no false
plays; no waste of time or energy; every move was calculated. By
persistent hammering the organized machine minority was able to wear its
unorganized opponents out.[2]

(3) The third reason for the failure of the reform majority is found in
the fact that the minority was permitted to organize both Senate and
Assembly. In the Assembly the machine element named the Speaker without
serious opposition. The Speaker named the Assembly committees. It
developed at the test that the important committees of the Assembly
were, generally speaking, controlled by the machine.

The Lieutenant-Governor is, under the State Constitution, presiding
officer of the Senate, under the title of President of the Senate. But
the Senators elect the President pro tem., who, in the absence of the
President, has the same power as the President. The reform element,
although in the majority, permitted the election of Senator Edward I.
Wolfe as President pro tem. Wolfe was admittedly leader of the machine
element in the Senate. At critical times during the session, the fact
that both the President and President pro tem. of the Senate were
friendly to machine interests gave the machine great advantage over its
anti-machine opponents.[3]

The reform majority in the Senate made the further mistake of leaving
the appointment of the Senate committees in the hands of
Lieutenant-Governor Warren Porter. Governor Porter flaunts his machine
affiliations; is evidently proud of his political connections; indeed,
in an address delivered before the students of the University of
California, Porter advised his hearers to be "performers" in politics
rather than "reformers." It was not at all surprising, then, that the
Senate committees were appointed, not in the interest of the reform
element, but of the machine. And yet, the reform element, being in the
majority, could have taken the appointment of the committees out of
Porter's hands. In the concluding chapter it will be shown there is
ample precedent for such a course. But the reform element let the
opportunity pass, and Warren Porter named the committees. Thus in both
Senate and Assembly the strategic committee positions were permitted to
fall into machine hands.

The importance of this on legislation can scarcely be over-estimated.
Under the system in vogue in California, the real work of a legislative
session is done in committee. When a bill is introduced in either House,
it is at once referred to a committee. Until the committee reports on
the measure no further action can be taken. Thus a committee can prevent
the passage of a bill by deliberately neglecting to report it back to
the main body.

When a measure passes either Senate or Assembly, it goes to the other
House, and is once again referred to a committee. Again does the fate of
the bill hang on committee action. Thus, every measure before it can
pass the Legislature must, in the ordinary course of legislation, pass
the scrutiny of two legislative committees, either one of which may
delay its passage or even deny Senate or Assembly, or both, opportunity
to act upon it.

To be sure, one of the rules of the Assembly of 1909 required that all
bills referred to committees should be reported back within ten days,
while the Senate rules provided that committees must act on bills
referred to them as soon as "practicable," with the further provision
that a majority vote of the Senate could compel a report on a bill at
any time. But these rules were employed to little advantage. In the
Assembly, for example, the Commonwealth Club bills, referred to the
Judiciary Committee on January 15, were not acted upon by the committee
at all. These bills, in spite of the ten days' rule, remained in the
committee sixty-seven days. The Direct primary bill was held up in the
Senate Committee on Election Laws from January 8 until February 16, and
at that late day came out of the committee with practically unfavorable
recommendation. It was noticeable that few, if any, important reform
measures were given favorable recommendation by a Senate committee. Thus
the Anti-Racetrack Gambling bill, the Direct Primary bill, the Local
Option bill, received the stamp of Senate committee disapproval. They
were returned to the Senate with the recommendation that they do not
pass. The same is largely true of the action of the Assembly
Committees.[4]

If machine-controlled committees could delay action on reform measures,
they could at the same time expedite the passage of bills which the
machine element favored, or which had been amended to the machine's
liking. Thus the Change of Venue bill, which reached the Senate on March
15, was returned from the Senate Judiciary Committee the day following,
March 16, with the recommendation that it "do pass." The Wheelan bills
reached the Senate on March 17, and were at once referred to the
Judiciary Committee. The Judiciary Committee that very day reported them
back with favorable recommendation. Had they been delayed in the
committee even 48 hours, their final passage would have been improbable.

Curiously enough, the Judiciary Committee was the one Senate committee
whose members President Porter did not name. Following a time-honored
custom, every attorney at law in the Senate was made a member of the
committee. It so happened that ten of the nineteen lawyers in the Senate
were on the side of reform as against machine policies, eight generally
voted with the machine, while the nineteenth gave evidence of being in a
state of chronic doubt. This gave the reform element a majority of the
Senate Judiciary Committee. But President Porter had the naming of the
chairman of the committee, and the order of the rank of its members. The
Lieutenant-Governor's fine discrimination is shown by the fact that the
Chairman of the Committee and the four ranking members were counted on
the side of the machine.

The Assembly committees acted quite as expeditiously on measures which
had passed the Senate in a form satisfactory to machine interests. Thus,
the Wright Railroad Regulation bill, which reached the Assembly on March
12, was reported back to the Assembly by the Assembly Committee on
Common Carriers the day following, March 13.

It will be seen that the reform majority unquestionably weakened its
position by permitting the machine minority to organize the Legislature.
This phase of the problem which confronts the State will be dealt with
in the concluding chapter.

[1] One of the best witnesses to the viciousness of this measure is
Governor Gillett, surely an unprejudiced observer. In giving his reasons
for vetoing the bill, Governor Gillett said:

"I have several reasons for saying that I will veto the bill. One reason
is that I have always been opposed to it. When I was in the Senate in
1897 I was against it and again in 1899 I fought it in the Judiciary
Committee. Two years ago I ignored another such measure that had passed
through the Legislature, so that I would not be living up to my policy
of the past if I should sign this bill."

"But even if I had never had the opportunity to record my opposition on
these different occasions, I should have vetoed the bill anyway, because
it is a vicious bill. The bill is not a change of venue bill in the
strict sense of the word. It simply gives the man on trial the right to
disqualify the Judge on the ground of bias on the slightest pretext."

"The worst feature about the bill is that it grants this right to the
accused after the jury has been secured. Why, if the defendant didn't
like the adverse rulings of the Judge he could easily claim bias and the
law would upheld his demand for another Judge. Think of how that would
operate in the Calhoun trial in San Francisco. Such a law would cost the
State thousands of dollars. It's vicious and I will not sign it."

[2] Most suggestively shown in the amendment of the Direct Primary bill.

[3] The seriousness of the mistake made by the reform element in
acquiescing in Wolfe's election, was emphasized at the time of the
deadlock in the Senate over the Direct Primary bill. The President of
the Senate, Lieutenant-Governor Porter - and in his absence the
President pro tem., Wolfe, - was charged with the duty of calling the
Senate to order. Inasmuch as it did not suit the machine's interests
that the Senate should be called to order, the Senators were obliged to
sit in idleness for hours at a time, while the machine leaders and
lobbyists were working openly on the floor of the Senate to force
certain of the pro-primary Senators to join the machine forces. Had
the President pro tem. been one of the group of Senators who were
opposing the machine he would have called the Senate to order, thus
permitting the regular work of the session to proceed. See Chapter 10,
"Fight on Assembly Amendments."

[4] The action of the Assembly Committee on Public Morals on the
Anti-Racetrack Gambling bill was a notable exception to this. See
chapters 6 and 7.

Chapter II.

Organization of the Senate.

Anti-Machine Republicans, Led Into a Caucus Trap, Surrendered the
Appointment of President Pro Tem., Secretary and Sergeant-at-Arms to the
Machine - Machine Given the Selection of the Standing Committees.

In the light of the events of the session, the division between the
machine or "organization" and anti-machine forces in the Senate for
purposes of organization may be regarded as follows:

Anti-machine - Anthony[5], Bell, Birdsall, Black, Boynton, Burnett[5],
Cutten, Estudillo, Hurd[5], Roseberry, Rush, Stetson, Strobridge,
Thompson, Walker (labeled Republicans), Caminetti, Campbell, Cartwright,
Holohan, Miller, Sanford (labeled Democrats) - 21.

Machine - Hare, Kennedy (labeled -Democrats), Bates, Bills, Finn,
Hartman, Leavitt, Lewis, Martinelli, McCartney, Reily, Savage, Weed,
Willis, Wolfe, Wright (labeled Republicans) - 16.

Doubtful - Curtin (Democrat).

Seekers of the winning side - Price and Welch (labeled Republicans).

Curtin is put down as doubtful because, justly or unjustly, he was at
the opening of the session so regarded. But Curtin's record shows that
generally speaking from the beginning to the end of the session he voted
with the anti-machine element. Had the anti-machine forces made a
determined effort to organize the Senate and demonstrated a strength of
twenty-one votes, which would have been enough to organize,. Curtin
would certainly have been with them. The same is true of Welch, and it
is probably true of Price. This would have given the anti-machine forces
from twenty-two to twenty-four votes, a safe margin to have permitted
them to organize the Senate to carry out anti-machine policies.

The machine claquers will no doubt point gleefully to the fact that when
the test on the Railroad Regulation bills came, Anthony, Burnett,
Estudillo, Hurd and Walker strayed from the anti-machine fold. This
objection would have more weight had there ever been an anti-machine
fold. As a matter of fact, the anti-machine element in the Senate from
the day the session opened until it closed was unorganized, and without
leaders or detailed plan of action.

Admittedly Estudillo and Burnett strayed on the railroad regulation
question, but they did so believing the absolute rate provided in the
Stetson bill to be unconstitutional. All this will be brought out in the
chapters on railroad regulation measures, but in passing, it may be said
that Burnett, in the closing hours of the session, stated on the floor
of the Senate that he had voted against the Stetson bill and for the
Wright bill on the understanding that a constitutional amendment would
be passed setting at rest all question of the constitutionality of the
absolute rate. The machine leaders misled Senator Burnett. Machine votes
defeated the amendment.

Anthony, Estudillo and Walker stood out against the machine in the
direct primary fight which followed the defeat of the Stetson bill, and
before the fight was over, Burnett had returned to the anti-machine
forces.

The case of Senator Hurd is not at all creditable to the machine. But
Hurd's instincts and sympathies are not those of Gus Hartman, Hare,
Wolfe and Leavitt. Had the anti-machine forces had even semblance of
organization there would have been no straying, and the accomplishment
of the legislative session of 1909 would have been more satisfactory to
the best citizenship of the State.

The fact that the anti-machine forces, without leaders and without
organization, stuck together so well as they did is one of the most
extraordinary and at the same time encouraging features of the session.

Although the anti-machine forces numbered a majority of the Senate,
nevertheless a bare majority of the regular Republican Senators - those
who were eligible to admittance to the Republican caucus - were with the
machine. The division in the Republican caucus, counting Welch and Price
with the machine element, was on machine and anti-machine lines as
follows:

Anti-machine - Anthony, Birdsall, Black, Boynton, Burnett, Cutten,
Estudillo, Hurd, Roseberry, Rush, Stetson, Strobridge, Thompson, Walker
- 14.

Machine - Bates, Pills, Finn, Hartman, Leavitt, Lewis, Martinelli,
McCartney, Price, Reily, Savage, Weed, Welch, Willis, Wolfe, Wright -
16.

By time-honored custom it has become a rule for the majority[5a] in the
Senate - and the same holds in the Assembly - to meet in caucus to
decide upon the details of organization. This is done on the theory that
the House should be so organized as to permit the majority to carry out
its policies as expeditiously and with as little friction as possible.
By the unwritten rule of the caucus, the majority governs and each
member who attends the caucus is bound in honor to vote - regardless of
his individual views or wishes - on the floor of the Senate or Assembly,
as the majority of the caucus decides. Thus, by going into caucus with
the sixteen machine Senators, the fourteen anti-machine Senators were
placed in a position where they were, under caucus rule, compelled to
vote on the floor of the Senate as the sixteen machine Senators
dictated. This gave the machine on the floor of the Senate thirty votes
out of forty on questions affecting organization, and permitted it to
name the President pro tem., the Secretary of the Senate, the
Sergeant-at-Arms, and gave it filial voice in the appointment of the
various attaches.

Had the line of division in the Senate been Republican and Democratic,
the Republicans in the Senate might very properly have caucused. But
inasmuch as the machine Republicans stood during the entire session for
one set of policies, and the anti-machine Republicans for another, the
caucus was at best an incongruous affair. Especially is this true when
it is considered that the anti-machine Republicans immediately after
they had left the caucus united with the anti-machine Democrats in a
three-months contest with the united machine Democrats and machine
Republicans. But having surrendered the organization of the Senate to
the machine, the anti-machine Senators, although in the majority, fought
under a handicap, finally lost the weaker of their supporters[6], and in
the end went down in defeat. Had the real majority, rather than the
artificial majority, of the Senate caucused on organization, that is to
say, had the anti-machine Republicans and the anti-machine Democrats
caucused, and organized to carry out the policies for which they stood
and for which they fought together during the entire session, the
Republican-Democratic-machine element would have been defeated at every
turn. But no such policy governed, and the anti-machine Republicans
waddled after precedent into the caucus trap that had been set for them.
Later on in the session the anti-machine Republicans and anti-machine
Democrats did go into caucus together, and by doing so won the hardest
fought fight of the session.[7]

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