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Chapter XVI.

How the Change of Venue Bill Was Passed.

Slipped Through the Assembly Without Serious Opposition in Closing Days of the Session - Passed by Trick in the Senate Although a Majority of That Body Were Opposed to Its Passage - Typical Case of Machine "Generalship."

Given the presiding officers of the Senate and Assembly and the appointment of the Committees of both bodies, the machine minority in the Legislature had comparatively little difficulty in preventing the passage of desirable measures. Thus, the Commonwealth Club bills to simplify and expedite proceedings in criminal cases, or, if you like, to prevent quackery in the practice of the criminal law, were, by clever manipulation, defeated, although if fairly presented to Senate and Assembly they undoubtedly would have become laws[74].

But when it came to passing vicious measures in the face of the opposition of the unorganized majority of both Houses, the machine had a harder job on its hands. A majority vote of each House is required for the passage of a measure. To get through its bills, then, the machine had to create a situation in which vicious measures could be rushed through without the unorganized reformers knowing what was being done. By preventing action on a large majority of the measures pending before the Legislature until the end of the session, such a situation was created. In the confusion of the closing days of the session, not only were good bills denied passage, but vicious bills, in spite of the opposition of a majority of the Legislature, were passed. Some normally anti-machine members in such a situation become worn out, get discouraged and vote for machine policies to secure machine support for measures, the passage of which their constituents at home are demanding. Others, in the confusion of a whirlwind close of the session, vote for measures which they have no time to read, and which they cannot understand. Thus, even with a majority of Senate and Assembly against machine policies, the clever machine leaders often slip through measures which could not be passed early in the session, when the members have opportunity to study the bills upon which they are called upon to act, and before the ranks of the reform element have been broken.

This was very well illustrated at the Session of 1909 by the passage of the so-called Change of Venue bill[74a]. This measure was introduced in the Assembly by Grove L. Johnson. Under its provisions a person charged with crime would have been permitted upon his whim or caprice to allege bias and disqualify the Judge before whom he was to be tried. The Legislature of 1907 was admittedly controlled by the machine, but even the Legislature of 1907 did not dare pass the Change of Venue bill. The reform Legislature of 1909, however, did pass it. The manner in which it was passed is a lesson in machine methods. To the credit of Governor Gillett let it be said, however, that he vetoed the measure[75].

Grove L. Johnson having introduced the bill, it was referred to Johnson's committee, the Judiciary Committee of the Assembly. The Committee held it until February 5, when it was referred back to the Assembly with the recommendation that it "do pass." On March 13, eleven days before adjournment, it passed the Assembly, by a vote of 42 to 15, 41 votes being required for its passage. Assemblymen like Drew, Telfer, Wilson and Stuckenbruck, men who fought the machine and machine policies from the beginning to the end of the session, voted for the bill. The negative vote of any two of them would have defeated it[76].

The passage in the Assembly of an important reform measure as late as March 13, would have meant its defeat in the Senate. Though in the majority the anti-machine Senators could not have forced a reform measure through the machine-controlled committees, machine-controlled even when a majority of a committee was anti-machine[77]. Measures of the Change of Venue bill stamp, however, had a clear way. The Change of Venue bill was on March 15 referred to the Senate Judiciary Committee. On March 16, twenty-four hours after, the Committee returned the bill with the recommendation that it do pass. On March 19, with twenty-two Senators opposed to its passage, and eighteen favoring it, with twenty-one votes necessary for its passage, the bill passed the Senate. This apparently impossible feat was, in the last two weeks of the session, a comparatively easy task for the machine.

To begin with, Senator Black, who opposed the bill, was ill at his home at Palo Alto. This left twenty-one Senators against the measure and eighteen for. The line-up was as follows:

For the Change of Venue bill - Anthony, Bates, Bills, Finn, Hare, Hartman, Hurd, Leavitt, Martinelli, McCartney, Price, Reily, Savage, Weed, Welch, Willis, Wolfe, Wright - 18.

Against the Change of Venue bill - Bell, Birdsall, Boynton, Burnett[76a], Caminetti, Campbell, Cartwright, Curtin, Cutten, Estudillo, Holohan, Lewis, Kennedy, Miller, Roseberry, Rush, Sanford, Stetson, Strobridge, Thompson, Walker - 21.

On the face of it, the outlook for the passage of the Change of Venue bill in the Senate was not good. The machine, however, planned to pass the bill on March 19.

The machine leaders went at the job systematically. When the Senators took their seats that Friday morning, they found that at Senator Bates' request, Assembly Bill 6 (the Change of Venue bill) had been put on the Special Urgency File. The Special Urgency File was to be considered at 8 o'clock Friday evening. Senator Bates stated in an interview that he had placed Assembly Bill No. 6 on the Special Urgency File "at the request of a fellow Senator." Who the fellow Senator was, Bates refused to say. Bates insisted, however, that he knew nothing about Assembly Bill No, 6, and could give no reason why it should be made a matter of "special urgency." Senator Bates has since the Legislature adjourned been given a position of trust in the United States Mint.

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 passage of the measure, was found to be absent from the Senate chamber. On Senator McCartney's motion, the Change of Venue bill was temporarily passed 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 Assembly 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 passed 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 passage 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 Assembly 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 passage. On the other hand, Senator Boynton very pointedly told Senator Wright that the bill was not a good measure and should not be passed "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 passage. 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 passage. Estudillo was, however, brought in under call of the Senate, and under what amounted to misrepresentation, voted for the measure. This passed 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 passed. 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 assurance doubly sure, he told the clerk at the desk not to send the bill to the Assembly 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 Assembly, "to save time," according to the excuse given.

Senator Boynton insisted that the bill be returned from the Assembly. 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 Assembly. 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 Assembly 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 Saturday 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 passage 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 passage of the Change of Venue bill. It was a question of good generalship, 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 Assembly by similar "good generalship." The measure in effect prohibits the sale of intoxicating liquors within a mile and a half of Stanford University. Assemblyman 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 Assembly show astonishing 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 Assembly chamber at this critical moment and took in the situation at a glance. He accordingly hunted up Bohnett, who got back to the Assembly chamber before the bill could be reached on file. For once "good generalship" had failed at the legislative session of 1909.

[74a] In 1907, the Change of Venue bill was slipped through the Assembly, 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 associates. 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 Assembly and defeated.

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

[76] The Assembly 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, McManus, 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 passage 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.

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