CHAPTER XXII.

HIGHER COURTS FREE SCHMITZ AND RUEF.

On January 8, 1908, the municipal officials elected with Mayor Taylor assumed the duties of their office. That day, Ruef was taken from the custody of the elisor and locked up in the county jail. In the jail with him were Schmitz, convicted of the extortion charge to which Ruef had pleaded guilty, and Glass, who had been convicted of bribery.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The decision was against the prosecution.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FOOTNOTES:

[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 tellingto do the right thingto do the right thing 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 six hundred years 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."