Story of the Session of the California Legislature of 1909
by Franklin Hichborn
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Burnett, voting with the anti-machine element, gave them twenty votes, leaving Wolfe and his following only nineteen. But twenty-one votes were necessary for concurrence. The machine, while it could not force the Senate to concur in the vicious amendments, could prevent the Senate's concurrence in the amendments to correct the clerical and typographical errors. The bill was accordingly sent back to the Assembly with the typographical and clerical amendments still in dispute.

Even before the bill had reached the Assembly, Senator Frank Leavitt and George Van Smith of The Call were on the floor of that body, fighting to prevent the Assembly receding from its amendments.

When the Assembly grasped the fact that the Senate had refused to concur in the amendments necessary for correction of typographical errors, those who were working for an effective Direct Primary bill were thrown into the greatest confusion. Speaker Stanton's rulings which followed, were not calculated to relieve the situation. Speaking from the desk, Stanton said:

"If you recede from some of these amendments and not from others where will your bill be? It will be dead. The only thing that you can do to save the Direct Primary bill now is to recede from all the amendments and let the typographical errors remain in the bill, or refuse to recede from any of the amendments and let the bill go into conference. If you recede from some of the amendments and not from others, your bill is dead. We cannot send this bill back to the Senate saying that the Assembly has receded from some of the amendments and not from others."

Assemblymen Preston, Bohnett and others who were standing for an effective measure, were amazed at the position which Stanton had taken.

"I cannot for the life of me," said Preston, "see why we cannot recede from part of the amendments and refuse to recede from the others. Some of these amendments are really necessary for the good of the bill. Others should be rejected. Give me fifteen minutes and I will guarantee to dig up authorities which will show us the course to be pursued."

Assemblyman Bohnett confessed himself unable to understand why the Assembly could not send part of the amendments to conference and not the others.

By this time matters had got so warm in the Assembly that Senator Leavitt found it necessary to lend dignity to the occasion by taking his seat at the side of Speaker Stanton, whom he engaged in conversation. The conference was, of course, carried on in whispers.

Assemblymen Young, Bohnett and others, finding that it would be impossible under the assumption of the Speaker to refuse to recede from part of the amendments while receding from the others, advised the good government members to refuse to recede from all the amendments, and pass the bill, typographical errors and all.

It was demanded of Bohnett if this would not lead to the practical defeat of the measure. Bohnett insisted that it would not; that the typographical errors, while deplorable, did not materially affect the bill.

However, many of the better element of the Assembly did not dare to take the risk, and the motion to recede was lost by a vote of 29 to 42[51].

Assemblymen who unquestionably stood for a good bill voted against receding. Had the vicious amendments alone been under consideration, they would have voted to recede. Among these were such men as Assemblyman Drew of Fresno. The Assembly, having refused to recede from its amendments, the bill went to a Committee on Conference, appointed by Speaker Stanton and President Porter. The machine had gained its point.

The Conference Committee consisted of Senators Wolfe, Leavitt and Wright, and Assemblymen Leeds, Johnson of Sacramento, and Hewitt. Of the Committee, Hewitt[59] was the only member who favored a Statewide vote for United States Senator, and opposed the advisory district vote. The committee had scarcely been missed from Senate and Assembly chambers before it was back to report that no agreement could be reached.

The same members were thereupon appointed as a Committee on Free Conference, which gave them power to amend the bill. As a Committee on Free Conference they recommended the advisory district vote plan for the nomination of United States Senators[60].

Senator Wolfe, having got the bill in shape to his liking, with a suave smirk upon his face, stated that he trusted that all the Senators present would vote for the measure.

"Not on your life," came Caminetti's protest.

And Caminetti did not vote for the Free Conference Committee's report.

But in spite of Caminetti's protest, both Senate and Assembly adopted the Conference Committee's report. They had to do so or defeat the bill entirely. Caminetti was the only Senator who voted against it. The machine, after a fight of nearly two months, in which it was twice defeated in the Senate, and escaped defeat in the Assembly by only one vote, that of Pulcifer, had carried its point, had succeeded in denying the people of California the privilege of casting a practical, State-wide vote for United States Senators.

What the anti-machine Senators[61] thought of the outcome is best expressed in the little speech which Senator Stetson made his fellow-Senators in explaining his vote to accept the report of the Committee on Free Conference.

"Before voting on this matter," said Stetson, "lest any one in the future may think that I have been passed something and didn't know it, I wish to explain my vote, and wish to say that this permission accorded a candidate to go on record to support that candidate for United States Senate, who shall have the endorsement of the greatest number of districts, comes from nobody and goes to nobody. It means nothing - mere words - idle words. The only way in which a candidate could have been pledged would have been to provide a pledge or instructions to the Legislature. The words 'shall be permitted' mean nothing and get nowhere. I shall vote for this report, not because I want to, but because I have to if we are at this session to have any Direct Primary law at all."

[57] The plain citizen will marvel at the lengths to which the machine went to prevent a provision being incorporated into the Direct Primary bill for the selection by State-wide vote of United States Senators. The plain citizen does not, however, look upon a United States Senator through the same eyes as the machine. To the plain citizen that United States Senator is desirable who represents policies beneficial to his country and his State; to the machine that United States Senator is desirable who will in effect turn his Federal patronage over to the machine. The election of United States Senators by State-wide vote would take their appointment out of machine hands, which would mean loss to the machine of Federal patronage. For this reason the almost unbelievable lengths to which the machine went to prevent the provision for State-wide vote for the election of United States Senators being incorporated into the Direct Primary bill.

[58] The vote was as follows:

Ayes: Messrs. Bohnett, Callan, Cattell, Cogswell, Collum, Costar, Flavelle, Gerdes, Gibbons, Gillis, Hinkle, Holmquist, Irwin, Johnson of Placer, Juilliard, Kehoe, Maher, Mendenhall, Odom, Otis, Polsley, Preston, Sackett, Stuckenbruck, Telfer, Whitney, Wilson, Wyllie and Young - 29.

Noes: Messrs. Barndollar, Beardslee, Beatty, Beban, Black, Butler, Coghlan, Collier, Cronin, Cullen, Drew, Feeley, Fleisher, Flint, Greer, Griffiths, Hammon, Hanlon, Hans, Hawk, Hewitt, Johnson of Sacramento, Johnson of San Diego, Leeds, Macauley, McClelland, McManus, Melrose, Moore, Mott, Nelson, Perine, Pugh, Pulcifer, Rech, Rutherford, Schmitt, Silver, Stanton, Transue, Wagner, Wheelan - 42.

[59] Hewitt voted against the amendments the day they were read into the bill.

[60] The Free Conference Committee's amendment was in full as follows:

"By nominating petitions signed and filed as provided by existing laws party candidates for the office of United States Senator shall have their names placed on the official primary election ballots of their respective parties, in the manner herein provided for State offices, PROVIDED, HOWEVER, THAT THE VOTE FOR CANDIDATES FOR UNITED STATES SENATORS SHALL BE AN ADVISORY VOTE FOR THE PURPOSE OF ASCERTAINING THE SENTIMENT OF THE VOTERS IN THE RESPECTIVE SENATORIAL AND ASSEMBLY DISTRICTS IN THE RESPECTIVE PARTIES, and the Senatorial and Assembly nominees shall be at liberty to vote either for the choice of such district expressed at said primary election, or for the candidate for United States Senator who shall have received the endorsement of such primary election in the greater number of districts electing members of his party to the Legislature."

[61] Stetson was not the only Senator to protest. Senators Campbell, Holohan and Miller sent to the Secretary's desk the following explanation of their votes: "We voted for the Direct Primary bill because it seems to be the best law that can be obtained under existing political conditions. We are opposed to many of the features of this bill, and believe that the people at the first opportunity will instruct their representatives in the Legislature to radically amend the same in many particulars, notably in regard to the election of United States Senators, and the provisions that prevent the endorsement of a candidate by a political party or organization other than the one that first nominated such candidate."

A second protest, signed by Senators Curtin, Cartwright and Sanford, was also printed in the Journal. It reads as follows: "We voted to adopt the report of the Committee on Free Conference on Senate Bill No. 3, not because we believe it to be what is desired by the people of this State, but because we believe it to be the only bill that can be adopted at this late hour, as the Legislature is about to adjourn."

Chapter XII.

The Railroad Regulation Issue.

Recent Increase in Freight Tariff Had Brought About a Condition Which Required Action - Senate Divided Into Supporters of an Effective and Supporters of an Ineffective Measure - Manipulation by Which Measures Were Placed in Hands of a Machine-Controlled Committee.

Some one has very well said that the real test of a Legislature is its action on railroad measures. The Legislature of 1909, if estimated by this standard would not appear to advantage. But to condemn the Legislature of 1909 for its failure to give the State an effective railroad regulation law, is to condemn every Legislature that has sat in California since the present State Constitution went into effect thirty years ago. The Constitution empowers the Legislature to pass effective railroad regulation measures, but up to the session of 1909, the machine, or system, or organization - one name is as fragrant as another - had prevented the passage, if we exclude the ineffective Act of 1880, of any railroad regulation law at all. The machine has ever moved against the interests of the people and in the interest of its dominating factor and at the same time its chief beneficiary, the Southern Pacific Railroad Company. It has so manipulated the nomination and election of Railroad Commissioners as to keep in that office men utterly dominated by railroad influences.

With weak and corrupt men as Railroad Commissioners, and machine-dominated Legislatures which have neglected to pass laws which would have made the Commission effective, or even provide funds for the Commission to carry on its work, even had the Commissioners been so inclined, California has been left helpless to oppose any extortion which the railroad might see fit to exact. The system of charging all that the traffic will bear has governed utterly. For this the Southern Pacific Company can thank, and the People of California condemn, the machine.

The cost to the people has been enormous. It was pretty conclusively shown at the Legislative investigation into the cause of recent advance of freight rates, that upwards of $10,000,000[62] a year has in this one instance been added to the freight charges exacted from the people of the Pacific Coast. The added burden falls upon the Pacific Coast manufacturer, merchant, farmer, fruit grower, consumer. All from the highest to the lowest help pay the tribute. Thirty years is a long period, and the arm of the railroad tribute-taker far-reaching. The vast sums which, unrestricted, the Southern Pacific has been able to exact run into enormous totals. From a dollar and cent standpoint, it has paid the Southern Pacific Company to control the machine.

But the railroad's absolute domination of the State could not continue forever without protest that would eventually force a hearing. This protest came toward the close of 1908. The increase in freight rates made just before the Legislature of 1909 convened emphasized the necessity for the enactment of a law that should galvanize the Railroad Commission into activity; ensure the enforcement of constitutional provisions for the protection of the public against dominant transportation companies; in a word, provide effective railroad regulation.

Governor Gillett in his biennial message to the Legislature, and Attorney General Webb in his biennial report gave expression to this aroused public sentiment.

General Webb, after reviewing railroad conditions in California, on page 13 of his report says: "It is thus apparent that the shippers of the State are practically helpless."

"I believe," continues the Attorney General, "that this review of the situation will show the imperative necessity of prompt legislation on this subject, and under the Constitution of this State, the Legislature has ample authority to enact the required legislation."

Governor Gillett, in his biennial message, takes practically the same stand as does Attorney General Webb.

"Our State," says the Governor on page 12 of his message, "has not kept pace with the majority of the States of the Union in the enactment of laws regulating railroads in their business as common carriers."

"I can virtually promise you," said General Webb at a meeting of the Senate Committee on Corporations, held on the evening of January 25th, "that in the event of this (the Stetson Railroad Regulation bill) becoming a law, and the Railroad Commission refusing or neglecting to act under its provisions, the Governor will call the Legislature together in extraordinary session for their impeachment."[63]

There was no question of the aroused public sentiment in favor of the passage of a railroad regulation measure. Even before the Legislature convened it became evident that some sort of a measure would have to be passed; even the railroad lobby saw that. The Legislature accordingly divided on the question. As the fight was carried on in the Senate - the Assembly in the rush of the closing hours of the session merely putting its "O. K." on what the Senate had done - the division in the Senate alone will be considered. The division in that body was:

(1) The minority, made up of the out and out machine Republicans and Democrats, who were prepared to pass a measure which under the name railroad regulation would leave the railroads practically independent of effective State supervision.

(2) The majority, which stood for the passage of an effective law.

The minority had the best captains in the Senate and was backed by the machine lobby made up principally of Southern Pacific attorneys.

The majority was poor in generals. But it had the backing of the shippers of - the State, who sent able counsel to Sacramento to present the shippers' side.

And in the end the machine minority wore out and defeated the majority. A comparatively effective railroad regulation bill was rejected and an ineffective measure passed.

Three railroad regulation measures were introduced in the Senate, their authors being Campbell, Stetson, and Wright.

The Campbell bill had much to commend it, but was rejected without much consideration by either side. Campbell was not in the program of either railroad or shippers. But before the session was over Campbell had made himself felt. He had, too, introduced a Constitutional Amendment for the correction of railroad abuses, which was to figure later on, but his bill was scarcely considered. The attorney for the shippers, in speaking before the Senate Committee on Corporations, confessed that he had not read the Campbell bill.

The attorney for the Southern Pacific Company, however, attempted to split the anti-machine forces by praising the Campbell bill, and setting the anti-machine Senators to disputing over the relative merits of the Campbell and Stetson bills. But nothing came of this graceful little coup. Campbell and his followers were too sensible to be caught by any such trickery. They gave their loyal support to the Stetson bill, and the Campbell bill was allowed to die in the Senate Judiciary Committee. This narrowed the fight down to the Stetson bill and the Wright bill.

The Stetson bill had been prepared in the office of Attorney General Webb, and at the instigation of Governor Gillett. As originally introduced it contained certain defects, which were afterwards corrected, but such Senators as Cutten, Caminetti, Black, Campbell, Miller, Cartwright, Bell and Thompson, admitted that the measure could be made the basis of as effective a law as could be prepared under the present constitutional provisions for the regulation of transportation companies.

The original measure was particularly weak in the section providing for demurrage charges. This was finally corrected by the passage of a separate reciprocal demurrage bill, which had been introduced by Miller. Another weakness in the Stetson bill as originally introduced was that the Railroad Commission was made a sort of barrier between the Courts and those who had grievances against the transportation companies. This objection was corrected by amendments.

Numerous other amendments adopted from time to time made the Stetson bill probably as effective as a California railroad regulation law can be made, under the Constitutional provision which places extraordinary powers in the hands of the State Board of Railroad Commissioners.

Just where the Wright bill originated nobody seems to know for certainty. But Senator Wright introduced it. Senator Wright was well selected for the job. For two years he had been groomed as the reformer who would introduce the State-saving Direct Primary Bill. So a railroad regulation measure introduced by Senator Wright might at least be calculated to bear the stamp of respectability.

Like the Stetson bill, the Wright bill was based on the constitutional provisions which make the State Board of Railroad Commissioners the center of railroad regulation in California. And here the parallel ends.

Comparison of the two measures is not at all to the advantage of the Wright bill.

The Stetson bill provided fine and imprisonment as penalty for infringement of its provisions; the Wright bill provided fine only.

The Stetson bill had a definite anti-pass provision; the Wright bill as originally introduced had no such provision.

The Stetson bill authorized not only the Attorney-General, but the District Attorney of any county of the State to proceed to enforce its provisions; the Wright bill granted the Attorney-General alone such authority.

The Stetson bill required the Railroad Commissioners to meet at least once in every two weeks; the Wright bill provided that such meetings should be held monthly.

The Stetson bill gave the Railroad Commissioners authority to make physical valuation of railroad properties; the Wright bill contained no such provision.

The Stetson bill recognized all discriminations to be unjust; the Wright bill provided that no interference should be instituted unless the discriminations complained of were shown to be unjust.

And finally, the Stetson bill provided that the State Board of Railroad Commissioners should have power to fix absolute rates, thus insuring stability of rate schedules, while the Wright bill provided that the Commissioners should fix maximum rates only, thus permitting the famous "fluidity" of schedules advocated by machine lobby and Southern Pacific attorneys.

The contest between the supporters of the Wright and the supporters of the Stetson bill, finally narrowed down to the question of providing for absolute or maximum rates.

The provision for the maximum rate in Senator Wright's bill, authorized the railroad regulating Commission to fix the highest charge which a railroad may exact from a shipper. This is called the maximum rate. The transportation company is authorized to lower the rate at will, but it cannot charge a rate beyond the maximum as fixed by the Commission. This leaves the railroads to fix a sliding schedule of rates, so long as they do not exceed the maximum. It gives the railroads the advantage of that "fluidity" of schedules, which railroad attorneys insist is necessary for railroad prosperity.

The maximum rate is provided in the Interstate Commerce Act, but the Interstate Commerce Commissioners, finding it impracticable, have for years been clamoring for Congress to authorize the fixing of absolute rates. The cry of the Interstate Commerce Commission has been taken up by the shipping interests, and from one end of the country to the other there is growing demand that authority be placed somewhere to make railroad rates, when fixed by a regulating Commission, absolute.

The absolute rate, or the fixed rate as it is better called, which was provided in the Stetson bill, can neither be lowered nor raised by the railroads. Once fixed by the regulating Commission, it must remain until the Commission grants permission for its change. The railroads cannot lower it any more than they can raise it.

The advantages of the absolute rate are many. In the first place, where the absolute rate is established, there can be no discrimination, because the rate is known, it can neither be raised nor lowered, and the railroads have no opportunity to favor one shipper at the expense of another.

In the second place, the shipper is guaranteed a stability of rate schedules which is deemed necessary for settled business conditions. The merchant, for example, includes transportation charges in the cost price of the goods in which he deals. But if the transportation charges on the same class of goods are subject to frequent change, the merchant can never tell when his competitor is to be given the advantage of a sudden lowering in freight rates. This uncertainty unsettles business. The merchant holds that transportation rates should be just as stable as tariff rates. On this account, the merchant advocates fixed rates and stability of schedules as against maximum rates and constantly shifting schedules.

The supporters of the Stetson bill, then, backed the shipping and merchant classes; while the supporters of the Wright bill backed the contentions of the transportation companies.

The Campbell and the Stetson bills had been originally referred to the Senate Judiciary Committee, while the Wright bill had been referred to the Senate Committee on Corporations. For the first few weeks of the session, no particular note had been taken of the Wright bill, attention being centered on the amendment of the Stetson bill.

Things were going swimmingly with the Stetson bill, when the machine lobby awoke to the fact that something was wrong in the Senate. There was at least some indication that the Senate would pass an effective railroad regulation measure.

And then, before the advocates of the Stetson measure could tell exactly what was happening, the railroad regulation measures were taken from the Judiciary Committee and placed in the hands of the Committee on Corporations.

A glance at the personnel of the two Committees at least suggests why this was done.

The members of the Judiciary Committee were Willis, Wolfe, Wright, McCartney, Savage, Boynton, Anthony, Burnett, Cutten, Estudillo, Martinelli, Roseberry, Stetson, Thompson, Curtin, Cartwright, Caminetti, Miller, Campbell.

The nine Senators whose names are printed in Italics, when the issue came to vote on the floor of the Senate, voted against the Stetson bill and for the Wright bill; nine of the ten whose names are printed in ordinary letters voted for the Stetson bill and against the Wright bill. The tenth, Roseberry, was absent, but when he found that the vote had been taken, stated that had he been present he would have voted for the Stetson bill and against the Wright bill.

Furthermore, Estudillo, who finally voted for the Wright bill, did not approve the measure and voted for it because he feared the absolute rate feature of the Stetson bill to be unconstitutional.

Thus at the time the Stetson and the Campbell bills were taken from the Judiciary Committee, the Committee was regarded as standing:

For the Wright bill - 8.

Against the Wright bill - 11.

For the Stetson bill - 11.

Against the Stetson bill - 8.

It was certainly not in the interest of the Stetson bill that the measure was taken from the Judiciary Committee and sent to the Committee on Corporations.

A glance at the personnel of the Committee on Corporations reveals a significant state of affairs. The Committee consisted of the following Senators: Bates, Welch, Wright, McCartney, Burnett, Bills, Walker, Roseberry, Finn, Miller, Kennedy.

When the test came on the floor of the Senate, the nine of the eleven Senators whose names are printed in italics voted for the Wright bill and against the Stetson bill. The two members whose names are printed in ordinary letters, voted for the Stetson bill, and against the Wright bill.

The line-up of the Committee on Corporations, when the measures were taken from the Judiciary Committee and sent to the Committee on Corporations, was then:

For the Wright Bill - 9.

Against the Wright Bill - 2.

For the Stetson Bill - 2.

Against the Stetson Bill - 9.

The change was certainly not made in the interest of the Stetson bill.

The incident stirred up Campbell and other anti-machine Senators to the fighting pitch. An arrangement was made, however, by which the measures were to be sent back to the Judiciary Committee after the Committee on Corporations got through with them that the Judiciary Committee might pass upon their constitutionality. The arrangement had two effects - it silenced the unquieting protest of the anti-machine Senators, and it delayed consideration of the bills. But, as the sequel showed, the arrangement did not help the Stetson bill in the least.

[62] The testimony was that of George J. Bradley, traffic manager of the Merchants' and Manufacturers' Traffic Association of Sacramento. It was as follows:

It is estimated on conservative figures that the increase in eastbound California products, or Pacific Coast products, I should correctly say, which is composed of canned fruits, canned vegetables and canned salmon, of which there are several million cases, go from the North Pacific coast through either San Francisco or through the North Pacific coast, the minimum being forty thousand pounds to the car, and the increase being ten cents per hundred pounds, means forty dollars a car increase. Now, taking the number of cars of all those products that are shipped, it amounted to about - and leather and other products - it amounted to about four million dollars eastbound. Now, when the question of westbound comes out, of course, it is practically impossible for any man to say just exactly what that increase will mean in dollars and cents, and the only way, therefore, to arrive at it is to take the percentage of proportion now in their westbound tariff, which is composed of about between eight hundred and a thousand items. They have raised the rates from 10 to 25 cents on over two hundred articles, all of which move in quantities; in other words, the process by which the tariff has been amended has been that in every instance where there was a commodity moving in quantities the rate has been advanced; wherever there was no movement and they wished to encourage a movement, they reduced the rate. Now, you take the five transcontinental lines that operate on the Pacific Coast, namely, the Northern Pacific and the Great Northern on the north and the Canadian Pacific; the Southern Pacific and the Santa Fe and the San Pedro and Los Angeles on the south, give you six trunk lines operating on the Pacific Coast. If you will take their gross earnings, which amount to over four hundred millions, segregate that by allowing fifty per cent of that to passenger service, which is a very conservative estimate, because the passenger service does not amount to that, leaves two hundred million dollars of gross freight earnings. Take five per cent of that for terminal business, and business is based on terminal rates from the coast, plus the local back, because the rate, of course, is felt everywhere, the rates to the interior points are made on the terminal rate, plus the local back. Take five per cent of that and their increase in every instance has been 10 per cent, and in some cases 16 2/3 and 20 per cent; but take a very liberal conservative estimate and put it at five per cent and you have ten million dollars; now, split that in two and take two and a half per cent of it and you have got five millions of dollars. Now, that and your four million dollars on eastbound freight and you have nine millions of dollars increase in freight rates, and I believe that that is a conservative estimate. I don't see how you could get at it any closer, because every man, it doesn't make any difference where he is, every man that buys pays that ten to twenty per cent increase.

[63] Senator Caminetti on February 12 introduced a concurrent resolution calling for the removal of the present Board of Railroad Commissioners from office. The Committee on Corporations reported adversely, and on March 15th the resolution was finally rejected.

Chapter XIII.

Machine Defeats the Stetson Bill.

Southern Pacific Attorney Succeeds in Clouding the Issue - Railroad Claquers Active in Advocating the Maximum Rate, Which Was Designated as Little Better Than No Rate At All - No Fight Over the Bill in the Assembly.

Having succeeded in transferring the railroad regulation measures from the Senate Judiciary Committee, the majority of whose members were anti-machine, to the Committee on Corporations, the majority of whose members were machine, the machine proceeded to discredit the Stetson bill, by making it appear that the State Constitution by implication prohibits the fixing of absolute railroad rates, and provides that the Railroad Commissioners may fix maximum rates only. Peter F. Dunne was brought to Sacramento to make this argument before the Senate Committee on Corporations.

Dunne, in his address, showed greater ability than integrity. When he had finished, even the anti-machine members of the Committee were completely befuddled. Walker, one of the members of the Committee who is not a lawyer, groped in utter darkness thereafter, until he finally stumbled into the arms of Eddie Wolfe and Frank Leavitt and Jere Burke, when the final vote on the railroad bills was taken. It was Walker's only stumble of the session. But for his unfortunate vote against the Stetson bill and for the Wright bill, Walker would have made an exceptionally clean record.

Not only did Dunne befog the lay Senators of the Committee, he shook the faith of men like Miller and Roseberry - both lawyers - on the constitutionality of the absolute rate. Miller recognizes that the absolute rate is the only practical rate; but until the end of the session he was not prepared to say that it could be constitutionally established. Dunne certainly did a good job. To be sure, his address was a mass of misrepresentations, but of misrepresentations cunningly put. He shattered the implicit faith of the anti-machine Senators in the absolute rate. And that was what he had been sent to Sacramento to do. The evil that Dunne did lived long after he had left the capital.

Curiously enough, neither the term "absolute rate" nor "maximum rate" appears in the State Constitution.

Article XII, Section 22, of the Constitution, provides that the Railroad Commissioners "shall have the power and it shall be their duty to establish rates of charges for the transportation of passengers and freight by railroad or other transportation companies."

Further on in the same section, it is provided that "any railroad corporation or transportation company which shall fail or refuse to conform to such rates as shall be established by such Commissioners, or shall charge rates in excess thereof, * * * shall be fined not exceeding $20,000 for each offense."

The dispute between those who stood for maximum rates - that is to say, the members of the machine lobby, the machine Senators, the Southern Pacific attorneys and those who wanted absolute rates - namely, the anti-machine Senators and the attorneys representing large shipping interests - waxed hot over the words in the above quotation which are printed in Italics.

The advocates of the absolute rate held, with at least apparent reason, that the words "fail to conform to such rates" mean just what the dictionaries say they do: That the railroad charging a rate in excess of that fixed by the Railroad Commissioners, or a rate less than that fixed by the Commissioners, is not conforming to the rates. Such, at least, seems reasonable construction of a very simple phrase.

But not so, insisted the railroad lobby. That aggregation of patriots skimmed over the words "fail to conform to such rates," and saw only, "or shall charge in excess thereof." Inasmuch, the pro-railroad element held, as the Constitution says that the railroads shall not charge in excess of the rates fixed by the Railroad Commissioners, the railroads are at liberty to reduce the rates as fixed by the Commissioners at will. In other words, according to the pro-railroad element, the Constitution authorizes the fixing of maximum rates only.

The pro-railroad claquers even went so far as to claim that the Supreme Court has decided that the maximum rate is the only rate that can be fixed under the State Constitution. They referred the doubtful to the notorious decision in the Fresno passenger rate case known as the Edson decision.

But no question of maximum rates was involved in the Edson case. To be sure, Chief Justice Beatty took occasion to say in his opinion in that case that his understanding had been that the State Constitution provides for the maximum rate. But this had no place in the decision, was purely dictum, and is so regarded.

Attorney-General Webb has an ingenious but very plausible explanation of Judge Beatty's much-discussed observation. General Webb points out that previous to the adoption of the present State Constitution - 1879 - Justice Beatty had been engaged in the active practice of the law in this State. Up to the time of the adoption of the Constitution of 1879 the maximum rate had prevailed in California. About that time, Judge Beatty went to Nevada and was absent from the State for several years. Returning to California, after the State Constitution had been adopted, Judge Beatty found no case in which the duties of the Railroad Commissioners had been involved, until the Edson case came up.

"I am of the opinion," said General Webb in discussing this point, "that when the Chief justice spoke of the maximum rate in the Edson case he was governed by mental impressions received previous to 1879, when the maximum rate was indeed the rule in California."

All this was a very pretty theory. To the common-sense mind "conform to the rates fixed" might mean conform to them; the normal man might be unable to dig out of the Constitution any prohibition of absolute rates. But the confusion caused by the raising of the question got the Stetson bill very much in the air.

During all the discussion, however, the Wright bill was not considered at all. Nobody was thinking of the Wright bill - that is to say, nobody outside of those scheming for its passage. Like a mongrel duck's egg under a respectable hen, it was left to incubate undisturbed, to surprise everybody at the hatching.

Finding themselves unable to clear away the doubt which raising the question of the constitutionality of the absolute rate had created, the anti-machine Senators and the attorneys of the shippers finally, after the Wright bill had been forced into prominence, put the case something like this:

"If the Courts decide that the maximum rate only is constitutional, then the Wright bill, which provides for the maximum rate, will be constitutional, and the greater part of the Stetson bill will also be constitutional.

"But if the Courts decide that an absolute rate is the only rate justified under the Constitution, then the Wright bill will be unconstitutional and all the Stetson bill constitutional."

This somewhat loose argument unquestionably kept certain Senators who recognized the impracticability of the maximum rate, but feared for the constitutionality of the absolute rate, in line for the Stetson bill.

With the situation thus confused, all was in readiness to bring the Wright bill before the public. This was done on February 17th. Up to that date the writer honestly believes that not two minutes had been devoted to public discussion of this measure, although the Stetson bill had been discussed paragraph by paragraph, line by line, every word weighed carefully.

The ceremony of giving the Wright bill prominence took place behind the closed doors of an executive session of the Senate Committee on Corporations. These executive sessions, by the way, are seldom held when the best interests of the public are to be conserved. The proceedings were evidently pre-arranged. Senator Wright opened by moving that the policy of the Committee should be that the Railroad Regulation measure to receive favorable consideration from the Committee must provide for the maximum rate.

The vote was as prompt as it was decisive. Senator Wright's motion carried by a vote of 7 to 3. The vote was as follows:

For the maximum rate - Bates, Welch, Wright, McCartney, Bills, Finn, Kennedy.

Against the maximum rate - Walker, Roseberry, Miller.

Burnett, the eleventh member of the Committee, was absent.

Gradually it dawned upon Walker, Miller and Roseberry that this meant the favorable recommendation of the Wright bill. The next moment that fact was hammered into them by the Committee deciding by the same vote, 7 to 3, to recommend that the Stetson bill do not pass; and that the Wright bill do pass.

The machine had won the opening skirmish in the railroad regulation controversy. Incidentally it had come out in the open squarely for the Wright bill. From that moment the machine Senators labored openly for the passage of the measure. However, the machine was not yet out of the woods with its Railroad Regulation bill. The Senate Judiciary Committee had still to pass upon it, and the majority of the Judiciary Committee was anti-machine.

Wright followed the same course in the Judiciary Committee as he had taken in the Committee on Corporations, namely, moved that it be the sense of the Committee that the Railroad Regulation bill to be favorably considered by the Committee should provide for the maximum rate.

Wright's motion was, however, lost by a vote of 8 to 10. The Committee not only rejected the maximum rate, but endorsed the absolute rate, thus reversing the Committee on Corporations. The vote by which this was done was as follows:

Against the maximum rate, against the Wright bill and for the Stetson bill - Campbell, Cutten, Miller, Stetson, Thompson, Caminetti, Boynton, Roseberry, Curtin and Cartwright - 10.

For the maximum rate, for the Wright bill and against the Stetson bill - Anthony, Martinelli, McCartney, Wright, Willis, Wolfe, Burnett and Estudillo - 8.

Absent - Savage - 1.

Thus the Stetson bill after two months of machine effort against it, went to the floor of the Senate from the Judiciary Committee with the recommendation that it "do pass." Of the forty Senators, nineteen were lawyers, and every one of the nineteen was a member of the Senate Judiciary Committee. Thus the majority of the lawyers of the Senate, in spite of the confusion which the machine claquers had created, were willing to take their chances on the constitutionality of the Stetson bill.

But in fairness it must be admitted that members of the Judiciary Committee who voted for the absolute rate provision of the Stetson bill were still in the befuddled condition in which Peter F. Dunne's sophistry had left them. Senator Miller, for example, in explaining his vote for the absolute rate, said:

"I take this stand, not that I am convinced that the Supreme Court will decide the absolute rate to be constitutional; I fear that it may not. But the maximum rate is little better than no rate at all. I wish the absolute rate provided in this bill, that the Supreme Court may be given opportunity to pass upon it."

Senator Roseberry, who voted for the absolute rate, confessed himself as much at sea as was Senator Miller. Senator Estudillo, who voted for the maximum rate, insisted that he had not been able to make up his mind which should be adopted.

On the other hand, Senator Cutten, himself a lawyer and a close student of the legal questions involved, stated that while he had thought originally that the maximum rate is the only constitutional rate that can be fixed, he had been forced to come to the conclusion that the absolute rate alone is constitutional.

But in the end the Wright bill and not the Stetson bill passed the Senate. It passed after a day of debate in which the issue became clouded, if anything, worse than at any stage of the proceedings. Leavitt and Wolfe, with Wright chipping in with a me-too word now and then, led the debate in favor of the Wright bill. Senators Stetson, Boynton, Cutten, Roseberry and Miller led the fight for the Stetson bill. Significant enough was the fact that the line-up of Senate leaders was precisely the same as that in the fight which the machine carried on against the Direct Primary bill.

Miller's argument in favor of the Stetson bill showed the confusion under which the advocates of effective railroad regulation were laboring:

"If we adopt the Wright bill," said Miller, "the railroads will be satisfied and never dispute it in the Courts. Whereas, by the adoption of the Stetson bill the railroads will almost be compelled to appeal to the Courts, and then we shall have a quick decision on the question in which we are all interested. If the Courts sustain the Stetson bill, we shall have a law that will do all we want for the present."[64]

The debate on the measures was on a motion by Stetson that the Stetson bill be substituted for the Wright bill. In this Stetson made a serious mistake. He staked his whole bill on one issue, that of absolute or maximum rates. On all other points, the Stetson bill was better than the Wright bill. It was a mistake in policy for Stetson to stake the fate of his measure on a single issue.

Stetson's motion was lost by a vote of 16 to 22; the Stetson bill was accordingly not substituted for the Wright bill, and the Wright bill, which had come from the Judiciary Committee with a minority report back of it, went to third reading and final passage.

The vote by which Stetson's motion was defeated, was as follows:

To substitute the Stetson bill for the Wright bill - Bell, Birdsall, Black, Boynton, Caminetti, Campbell, Cartwright, Curtin, Cutten, Holohan, Lewis, Miller, Sanford, Stetson, Strobridge, Thompson - 16.

Against substituting the Stetson bill for the Wright bill - Anthony, Bates, Bills, Burnett, Estudillo, Finn, Hare, Hartman, Hurd, Kennedy, Leavitt, Martinelli, McCartney, Price, Reily, Savage, Walker, Weed, Welch, Willis, Wolfe, Wright - 22.

Senators Roseberry and Rush were absent from the room when the vote was taken but both were for the Stetson bill, which would have made the vote 22 to 18 in favor of the Wright bill.

The twenty Senators whose names are printed in Italics are the twenty who voted with Leavitt and Wolfe to maintain the deadlock on the Direct Primary bill that the measure might be so amended that the electors of California would be denied a practical, State-wide vote for United States Senators. But one of the twenty, Lewis, voted for the Stetson bill, while nineteen of them voted for the Wright bill.

On the other hand, only three of the Senators, Estudillo, Anthony and Walker, who stood out for an honest Direct Primary law, voted against the Stetson bill and for the Wright bill. Walker had supported the Stetson bill in the Committee on Corporations, but stumbled into the machine ranks when it came to final vote. Had the anti-machine had an organization, such as the machine Democrats and Republicans maintained, Walker's blunder could have been prevented. Probably, too, Estudillo and Anthony would have remained with the anti-machine forces[65]. This would have given the Stetson bill twenty-one votes, and assured its passage.

Another vote that should have been saved to the reformers was that of Burnett. Burnett was clearly tricked into voting for the Wright bill. When the Stetson bill received the favorable recommendation of the Senate Judiciary Committee, machine claquers filled the air with the indefinite promise that in the event of the Wright bill becoming a law, a constitutional amendment would be adopted, by which all ambiguity in the State Constitution on the question of maximum and absolute rates would be removed. The amendment was then pending before the Senate Judiciary Committee, which finally reported it favorably.

After the Wright bill had been passed, the amendment was defeated by machine votes, as will be shown in the next chapter.

In the closing days of the session, when Burnett was urging that steps be taken for investigation into the increase of freight rates, he called attention to the fate of that railroad-regulation amendment.

"I was led to vote as I did for the Railroad Regulation bill," he said, "on the understanding that that constitutional amendment would be adopted. As you know, it was defeated. My attitude on the regulation bill would have been very different had I known that the amendment was to be rejected."

The Wright bill met with practically no opposition in the Assembly, being rushed through the Lower House in the closing hours of the session. Had the Stetson bill passed the Senate, the machine would have tried to block and amend it in the Assembly as was done with the Direct Primary bill, but the measure would probably have been passed.

Had the anti-machine forces in the Senate been organized, the Stetson, and not the Wright bill, would have passed that body. Without organization, or even definite policy, in the face of organized machine opposition, it is astonishing - and at the same time most encouraging - that eighteen of the forty Senators stood by the Stetson bill to the end.

[64] The question to which Senator Miller referred was: Has the Legislature power under the Constitution to authorize the Railroad Commissioners to fix the absolute rate? a question upon which the machine does not propose the Supreme Court shall be required to pass.

[65] Walker and Estudillo were bitterly condemned for their vote for the Wright bill. Incidentally, the writer has been roundly criticized for offering the excuse in their behalf that these two men indicated by their attitude on other measures throughout the session that they would have continued with the reform element in the matter of railroad regulation, had the anti-machine Senators been organized to give effective resistance to the machine. Perhaps the sanest of this criticism, certainly the most reasonable, is from a gentleman who was a close observer of the work of the session. He says:

"The course of the railroad rate bill from my point of view looked somewhat different in many details, at any rate, from your account of it. I cannot bring myself to think that it was defeated by any chance at the hands of a friendly Legislature. I think that what chances there were were mostly added to the number of votes the bill got and that the attitude of men like Walker and Estudillo on that bill was fundamental and to have been expected from the start. Of course what you say about the woeful lack of organization amongst the individual men was only too apparent. That phenomenon reaches back still deeper and is based upon the quality of human nature which exerts itself more persistently and more energetically and with soldier-like rhythm of compact organization when private selfish interests are involved, than when the general interest and somewhat vague uncentered end of public welfare is concerned."

But in spite of this very reasonable view, from a very reasonable gentleman, the fact remains that in the Committee on Corporations, Walker stood out against the machine on this very issue, and that in the direct primary fight both Walker and Estudillo stood out against the machine to the end. Had the anti-machine element been organized, the Stetson bill and not the Wright bill would in all probability have been passed.

Chapter XIV.

Railroad Measures.

Constitutional Amendment to Clear the Way for an Effective Railroad Regulation Bill Defeated - Rate Investigation Delayed Until Too Late for Effectiveness - Resolution to Continue Investigation Defeated - Reciprocal Demurrage Bill Becomes a Law - "Error" in the Full Crew Bill.

The anti-machine members of the Legislature had not proceeded far in their efforts to pass an effective railroad regulation law, before they became convinced that at best only a make-shift measure is possible, until certain alleged ambiguities of those sections of the State Constitution prescribing the powers and duties of the State Board of Railroad Commissioners have been removed. Where, to the common sense mind, no ambiguities exist, machine claquers and Southern Pacific attorneys can read them into the Constitution very easily, as in the dispute as to whether the absolute or the minimum rate is constitutional.

Advised by the attorneys representing the shipping interests, the anti-machine members undertook to simplify the language of the sections in dispute, so that a wayfaring man though a Judge on the bench or a machine legislator need not err in the construction thereof.

Early in the session, Senator Campbell had introduced a constitutional amendment to that end. The amendment went to the Judiciary Committee on January 14th. The majority of the committee, openly against the machine, favored the submission to the people of such an amendment. But it was not until February 22d that the amendment - or rather a substitute for it - was reported back to the Senate.

The day following, February 23d, Senator Campbell had the measure re-referred to the committee, that an amendment better calculated to meet the needs of the State might be prepared. The committee took until March 5th to make its report. The anti-machine Senators on the committee had to fight for every inch of the way toward securing a report upon an effective amendment. This, however, they finally succeeded in doing. The second substitute amendment smoothed out the ambiguities and the alleged ambiguities of the Constitution, of which the machine legislators made so much during the session, and of which it is feared the courts may make much later on. For the long list of constitutional powers and duties of the Railroad Commissioners, which are so worded as to confuse the legal mind, the framers of the amendment substituted the following:

"The Commission (Railroad) and each of its members shall have such powers and perform such duties as are now or may hereafter be provided for by law." Under that simple permission there could have been no question of the authority of the Legislature to empower the Railroad Commissioners to fix a system of absolute rates. Section 23, Article XII., of the Constitution, which at least confused the lawyers employed by the railroads to prevent the passage of the Stetson bill, was repealed entirely. The adoption of the amendment, would, had it been approved by the people at the general election of 1910, have removed every impediment which railroad attorneys claim to be in the way of an effective railroad regulation law for California.

Curiously enough the machine Senators who had been so much exercised over the alleged ambiguities of the Constitution when the Stetson bill was under consideration were found opposed to the submission of the amendment to the people. Every Senator who voted against the amendment had voted against the Stetson bill and had voted for the Wright bill. Burnett, who had been led to believe when he voted for the Wright bill that the amendment would be submitted to the people, voted for the amendment. Walker also switched back from the machine. Wright and McCartney, who had voted against the Stetson bill, also went on record for the amendment. The remaining fourteen Senators who voted for it, to a man, had voted for the Stetson bill and against the passage of the Wright bill. But a two-thirds vote of the Senate was required for the amendment's adoption. This meant twenty-seven votes. The amendment was defeated, the vote being nineteen for submission of the measure to the people, and sixteen against[66].

This ended all hope of a model railroad regulation law for California until 1913, for the Constitution must be amended before such a law can be realized. If a satisfactory amendment be adopted in 1911, it must before going into effect be ratified by the people. This ratification would come in 1912. The Legislature of 1913 would then be able to proceed with the passage of the model statute.

An attempt to investigate the causes and the necessity of the arbitrary increase in transcontinental freight rates failed as completely as did the attempted amendment of the Constitution.

Early in the session, on January 18, to be exact, Senator Caminetti introduced a resolution which directed the Senate Committee on Federal Relations to inquire into the cause of the increase in freight rates, and to report its findings to the Senate. Two days later Caminetti introduced a second and companion resolution, which provided that investigation should be made into the causes for the increase in express charges. On Senator Leavitt's motion this last resolution was made a special order for January 22, when the first resolution was to come up. The Senate on the 22d re-referred the resolutions back to the committee.

The Senate Committee on Federal Relations was, by Caminetti's clever; tactics in having the resolutions go to that body, forced into a prominence which evidently worried the machine. It consisted of Burnett, Black and Sanford. Black, Republican, and Sanford, Democrat, were working openly against the machine. Burnett, while he managed to land on the machine side of things at critical points in the progress of the session, was by no means a machine coolie. Had it been known that the Committee on Federal Relations was to be charged with an investigation into railroad affairs, a very different committee would unquestionably have been appointed. The machine's problem was to correct the blunder made when the anti-machine forces were given a majority on what had become a committee charged with the handling of an important railroad issue. The ease with which the blunder was corrected speaks volumes for the machine's resourcefulness.

The air at the capitol suddenly became permeated with the idea that a committee of three was altogether too small to conduct so important an investigation as that proposed in the Caminetti resolutions. Accordingly the Committee on Federal Relations very readily recommended, when it reported the resolutions back to the Senate with the recommendation that the investigation be held, that two Senators be added to the committee, making it a committee of five. Had the machine observed the unwritten rules of Senatorial courtesy[67], which machine Senators insist upon so loudly, the anti-machine element would have been safe enough in doing this. Senatorial courtesy required that the author of the resolutions, Caminetti, be made one of the two additional members. This would have given the anti-machine element at least three members of the enlarged committee, a condition which did not line with machine purposes at all. So Senatorial courtesy was thrown to the winds, Senator Caminetti was ignored, and Senators Wolfe and Bills were named as the additional members of the committee. The machine seldom blunders, but when it does, usually covers its blunders with astonishing directness and dispatch. A glance at the records made by Senators Wolfe and Bills, which will be found in Table "A" of the Appendix, will show the truth of this statement.

The machine's next move was to delay the investigation. For one reason and another the investigation was delayed. Finally, on February 19, Caminetti gave notice that on the following Tuesday, he would move that the committee be discharged and a second committee ordered to carry out the instructions contained in the resolutions. This declaration of war stirred the machine to action - machine action. Assurances were given that the investigation would be held, but it was March 12, almost two months after the resolution had been introduced, and only twelve days before adjournment, before the committee placed its first witness on the stand.

At that time the Senate was in the midst of the Direct Primary fight, and in addition, the machine after months of planning was sending literally hundreds of measures into Senate and Assembly for final action. There was no time nor were the members of the committee in a condition to conduct the investigation which the anti-machine element had contemplated. But hurried hearings were held, and a mass of evidence of railroad and express company extortion brought into the open. The interested reader will find the testimony printed in the Senate journal of March 23, 1909.

Men of the standing of Edwin Bonnheim[68], treasurer and manager of Weinstock, Lubin & Co.; Russell D. Carpenter, auditor of Hale Brothers, Inc.; J. O. Bracken, manager of the California Commercial Association; C. H. Bentley of the California Fruit Canners Association; all testified that the increase in express and freight charges has worked great hardship upon the State. They showed that in the final analysis the consumer pays the increased charges. Furthermore, testimony was produced which at least indicated that the transportation companies, if economically not to say honestly managed, would receive fair returns on their legitimate investments, were even lower freight rates to be charged than those exacted prior to the increase of 1908. It was also shown that the State of California could institute and conduct an examination into railroad affairs before the Interstate Commerce Commission[69]. It was clear to all that thorough investigation under the Caminetti resolutions would prove of enormous benefit to the State. That the committee could do little or nothing in the short time remaining before adjournment was also recognized. Burnett had come out for thorough investigation, giving the anti-machine forces a majority of the committee. Witness after witness representing the large shippers and importers of the State urged that the investigation be carried on even after the Legislature had adjourned. Burnett as chairman of the committee was urging this course, but it was March 23, the day before adjournment, before he could get his committee report ready, and filed with the Senate, as basis for a resolution to continue the investigation after the Legislature had adjourned. There were but eleven dependable anti-machine Senators in addition to Burnett who were within reach of the capitol. But the machine had a safe majority within call. Burnett's resolution was defeated, the investigation denied, by a vote of twelve for to sixteen against[70].

But two important railroad measures were finally passed by the Legislature. The first of these was the "Full Crew bill," which required adequate manning of railroad trains. After being held-up as long as the machine dared, the bill was finally passed. But the "Full Crew bill" met with one of those unfortunate "errors"[71] which played such important parts in the passage of the Anti-Gambling bill and the Direct Primary bill. When the Legislature had adjourned this error was discovered, and Governor Gillett refused to sign the bill because of it.

The second important railroad measure passed was the Reciprocal Demurrage bill, introduced in the Senate by Miller, and in the Assembly by Drew. As finally passed the bill provides that railroad companies which fail to supply shippers with cars when proper requisition has been made for them, shall pay the injured shipper demurrage at the rate of $5 per car per day. On the other hand, shippers who fail to load or unload cars after a stated time, are required to pay the railroad $6 daily as demurrage. The extra dollar which the shippers are required to pay the railroads is exacted to compensate the railroads for rental of the car.

Similar laws up to the time of the passage of the Miller-Drew bill had been adopted by seventeen States of the Union, including Oregon and Texas. During the recent car shortage, it is alleged that empty cars needed in California, were sent into Oregon and into Texas, that the railroads might escape the demurrage charges exacted in those two States. California, without a demurrage law, was helpless. At the session of 1907, however, the machine, in complete control of the Senate, defeated a reciprocal demurrage bill. To be sure the demurrage was higher in the measure proposed in 1907 than in that passed at the session of 1909, but it was the principle of demurrage, not its amount, that the machine was against in 1907. In 1909, however, not a Senator voted against the bill. And in this connection there is a story told which unquestionably had its bearing upon the fate of the Reciprocal Demurrage bill at the 1909 session. The story deals with a political adventure in the life of one Henry Lynch.

Mr. Lynch voted against reciprocal demurrage in 1907. He voted neither for nor against reciprocal demurrage in 1909, for he was not at Sacramento to vote. Mr. Lynch was not at Sacramento to vote in 1909, for one reason at least, because he did vote against reciprocal demurrage in 1907.

Mr. Lynch hailed from the Thirty-first Senatorial District, which takes in San Benito and San Luis Obispo counties. These counties are intensely Republican; they are also farming communities. And since the one-time Senator Lynch voted against the Reciprocal Demurrage bill, the farmers have seen tons upon tons of their products rot in the fields because they could not get cars to move their crops.

But while the farmers of San Luis Obispo and San Benito counties were watching their products rot for want of cars to move them, it is alleged that cars were being sent from California to Oregon to meet the requisitions of Oregon shippers. Oregon had a reciprocal demurrage law on her statute books; California had not.

Senator Lynch's vote against the Reciprocal Demurrage bill was made a sort of issue in San Benito and San Luis Obispo counties at the election of 1908. A. E. Campbell, Democrat, was running against Mr. Lynch, Republican, for the State Senate. Right or wrong - the reader may judge which - the farmers of the two counties credited the defeat of the Reciprocal Demurrage bill not to the Republican Party, but to the Republican machine, or better described perhaps as the Republican-Democratic machine, that dominates the State, a machine which the people of California are just now engaged in smashing.

Being good Republicans, the people of Mr. Lynch's district gave Mr. Taft a plurality of more than 1,700; remembering the defeat of the Reciprocal Demurrage bill, they gave Mr. Campbell, Democratic candidate for the Senate, a plurality of 416. The fact that a United States Senator was to be elected didn't influence the Republicans of San Luis Obispo County at all. They elected a Democrat to the State Senate because they knew him to be free from machine domination - a machine maintained for the purpose of defeating good measures, such as the Reciprocal Demurrage bill, and furthering the passage of bad ones.

But the influence of Lynch's vote against the Reciprocal Demurrage bill was not confined to San Luis Obispo and San Benito Counties. It spread over into the adjoining Twenty-ninth District, which takes in Santa Cruz and San Mateo Counties. These counties are also intensely Republican. They gave Taft a plurality of 2,799. But they gave the Democratic candidate for the State Senate, James B. Holohan, a plurality of 677. Holohan ran 3,476 votes ahead of his ticket in a district where only 9,483 votes were cast for State Senator. Holohan was known to be free of machine influences. He could be counted upon to vote for a Reciprocal Demurrage bill without first consulting the Southern Pacific's political agent, Jere Burke. And the Republican whose place he took in the Senate had voted against the Reciprocal Demurrage bill of 1907.

The election of Holohan and Campbell unquestionably had its influence on the passage of the Demurrage, bill. Not a member of the Senate cast his vote against it, although several of the Senators who had voted against the bill two years before, sat in the Senate of 1909. Among these were ten Senators who, during the session of 1909, were conspicuously on the wrong side of most questions. They were Senators Bates, Hartman, Leavitt, McCartney, Reily, Savage, Weed, Willis, Wolfe and Wright. The ten, for example, constituted half the twenty Senators who opposed the plan to give The People State-wide popular vote in the selection of United States Senators. Only seven Senators voted against the Anti-Racetrack Gambling bill. Five of the seven - Hartman, Leavitt, Reily, Weed and Wolfe - had voted against reciprocal demurrage in 1907. But there was a harkening to the demand of The People in 1909, which had been wanting two years before. Seven of these ten Senators, who voted against reciprocal demurrage in 1907 - Bates, Hartman, McCartney, Savage, Willis, Wolfe and Wright - voted for reciprocal demurrage in 1909. Three of them - Leavitt, Reily and Weed - did not vote at all.

[66] The vote was as follows:

For the amendment: Bell, Birdsall, Boynton, Burnett, Caminetti, Campbell, Cartwright, Curtin, Cutten, Holohan, McCartney, Miller, Roseberry, Rush, Strobridge, Sanford, Thompson, Walker, Wright - 19.

Against the amendment: Anthony, Bills, Estudillo, Finn, Hartman, Hurd, Kennedy, Leavitt, Lewis, Price, Reily, Savage, Weed, Welch, Willis, Wolfe - 16.

[67] Machine Senators habitually exact the utmost consideration and courtesy from the anti-machine Senators, and habitually repay it with deceit and trickery. The curious feature of this is that the anti-machine Senators continue to extend the courtesy and continue to be tricked and imposed upon. A shutting off of "Senatorial courtesy" would go far toward solving the problem of machine domination of the Legislature.

[68] Mr. Bonnheim testified that prior to the new schedule of express rates enforced between New York and the city of San Francisco, the rate was $8.00 per hundred for shipments of from 10,000 to 20,000 pounds; $9.00 per hundred for 5,000 to 10,000 pounds; $10.00 per hundred for 2,000 to 5,000 pounds; $11.00 per hundred from 1,000 to 2,000 pounds. and $12.00 from 500 to 1,000 pounds; $13.50 from 100 to 500 pounds.

That the withdrawal of the bulk rates in December, 1908, resulted in an advance of 35 per cent by the withdrawal of the 2,000 pound rate, and an advance of 50 per cent by the withdrawal of the 5,000 pound rate; an advance of 66 3/4 per cent by the withdrawal of the 10,000 pound rate, and that the withdrawal of the 20,000 pound rate amounted to an advance of 92 8/10 per cent.

[69] Senator Cartwright actually introduced a resolution calling upon the Attorney-General to institute proceedings before the Interstate Commerce Commission:

To determine whether existing rates are reasonable or unreasonable.

To ascertain, fix and establish a reasonable schedule of freight rates, and to enforce the same.

To determine whether or not any existing rate is discriminatory.

And to prevent further discrimination between persons or places.

The resolution carried an appropriation of $25,000 to ensure competent legal and expert assistance.

The resolution was introduced on February 4. It went first to the Committee on Federal Relations, then to the Judiciary Committee, then to the Committee on Finance, from which it emerged March 1 with the recommendation that it be adopted. On March 2 it was sent back to the Committee on Finance and was never heard from again. The enormous benefit to the State if such an investigation could be honestly and effectively carried on, will be recognized.

[70] The vote was as follows:

For the resolution: Bell, Birdsall, Boynton, Burnett, Caminetti, Cutten, Estudillo, Holohan, Roseberry, Rush, Sanford, Thompson - 12.

Against the resolution: Anthony, Bates, Bills, Finn, Hartman, Hurd, Kennedy, Leavitt, Lewis, Martinelli, Reily, Savage, Weed, Willis, Wolfe, Wright - 16.

[71] E. F. Mitchell, Executive Secretary to Governor Gillett, makes the following statement regarding this particular error:

The electric companies which run interurban trains, also claimed that the bill, as prepared, applied to them, and would place upon them an unnecessary burden and expense.

"There is no doubt that section three of the act applies to motor cars and electric cars. The language is very plain. Section one of the bill describes passenger trains, section two refers to freight trains, and section three says "all other trains not propelled by steam locomotives." Now, there are only two classes of cars that are not propelled by steam locomotives, and those are motor and electric cars. In the Governor's opinion, an error was made in endeavoring to amend it, so it would not apply to motor cars and electric cars. The amendment was prepared, and we had here in the office, during the argument on the bill, the original committee amendments proposed. The amendment was to be made after the word "train" on the second line and had this amendment been made as contemplated, it would have excluded motor cars and electric cars, but instead of having been made on line two, as expected, it was carried into line three, where it gave the bill an entirely different meaning, It was one of those unfortunate things that crept into legislation through an oversight of somebody, which could have been readily corrected if the bill had been watched. The insertion of this amendment in the wrong place, instead of excluding motor cars and electric cars, as intended, included them. This error was not discovered until the bill came up before the Governor for consideration."

Chapter XV.

Defeat of the Commonwealth Club Bills.

Drawn By Committees of the Ablest San Francisco Attorneys Not Under Retainer of Prison-Dodging Captains of Industry - Measures Not Allowed to Reach Senate or Assembly, but Killed in Committees - Grove L. Johnson's Keen Opposition.

The graft prosecution at San Francisco not only brought the fact squarely before the public that large corporations sometimes catch the easiest way to achieve their purposes by bribing public officials, but that it is a deal easier to pass a camel through the eye of a needle than a millionaire offender through the legal cobwebs of technicality to a cell at San Quentin or Folsom[72].

That the technical defense in criminal cases was subject to grave abuses had been generally recognized. But it took the graft cases at San Francisco to fairly rub this unpleasant fact into the law-abiding element. Because for the first time in the practice of criminal law in California, unlimited wealth was available to employ the best legal talent to defend men under indictment.

The defending lawyers took advantage of every technicality. They emphasized the most trivial of them. Gradually it began to dawn upon The People that here were legal refuges, based upon the most absurd of technicalities, the sweeping away of which would in no way injure the substantial rights of a person charged with crime, refuges which were available to the rich man but denied to the poor or moderately well-to-do.

To be sure, any person accused could make his technical defense if he had the means to employ the necessary counsel. But in face of the astonishing performances going on in the courts at San Francisco, it soon became apparent to the thoughtful, that no man, whose fortune was expressed in terms of less than five ciphers could make such a defense.

Thus the unpalatable truth was forced home, that we have in California a technical defense available for the rich man charged with crime, which is in effect denied even those of the so-called middle classes.

With this conviction came demand of reform of the criminal laws to ensure:

(1) A prompt trial of an accused person on the merits of the case.

(2) A prompt judgment in the case of a verdict of guilty.

(3) A prompt hearing of the case in the Court of Appeal.

The machine was, of course, against any such "wicked innovations," as Assemblyman Grove L. Johnson would have called them.

However, at San Francisco, three considerable bodies, the Bar Association, the Commonwealth Club and the Citizens' League of Justice, took the matter up, and for months had the ablest lawyers of the State - at any rate the ablest not retained for the defense of capitalists under indictment - at work wrestling with the problem of simplifying the criminal codes and doing away so far as possible with technical defense, except in such cases as the substantial rights of the defendant might be involved.

A committee consisting of J. C. McKinstry, J. J. Dwyer, Lester H. Jacobs, Oscar Cushing and Warren Olney Jr. was appointed for this purpose by the Citizens' League of Justice. The Commonwealth Club appointed Beverly L. Hodghead, Orrin K. McMurray, Alex. G. Eells, Fairfax H. Wheelan, Sidney V. Smith, Lester H. Jacobs and Joseph Hutchinson. One would go far before finding more representative or more public-spirited bodies of citizens, or more able exponents of the law.

The labors of the several committees resulted in what may in a broad way be regarded as two sets of bills being prepared.

The first, known as the Commonwealth Club bills, were sixty-five in number, and were introduced in the Senate by Campbell, and in the Assembly by Butler. The second set was known as the Bar Association bills. They were introduced in the Senate by Burnett. They were nine in number, and while apparently covering much of the ground of the Commonwealth Club bills, were in no respects so complete as to method or detail. The Bar Association bills pin-pricked an abuse; the Commonwealth Club bills drove the knife in deep.

The sixty-five Commonwealth Club bills were readily divided into three groups, those dealing with Grand Juries and indictments, with trial juries and verdicts, and with appeals to the higher courts.

The general purpose of the measures dealing with Grand Juries was to make those bodies purely accusatory, to make their findings conclusive and not subject to attack. The basis of the proposed amendments and additions to the laws governing Grand Juries was that Grand Juries are primarily required to investigate secret offenses, and should be regarded as purely accusatory bodies. On this theory the Commonwealth Club bills made the indictment of a Grand Jury as binding as the action of a committing magistrate who holds a defendant to answer. Had the Commonwealth Club bills become laws there would have been no more placing of Grand Jurors on trial for having found indictments against persons able to employ crafty criminal lawyers.

But lest the defendant under investigation might be wronged, the Commonwealth Club measures so amended the codes that a Grand Juror in any way biased against the defendant was required to absent himself from the Grand Jury room when the defendant's case was under consideration. Under the proposed laws each Grand Juror was required to take oath "not to participate in the inquiry as to any matter or affecting any person as to which or whom he is biased or could not vote freely either way that the evidence presented would in justice require him to vote."

The Commonwealth Club amendments regarding trial juries dealt with the problem in the same broad spirit. The chief object sought was to avoid the trying of citizens called for jury service[73]. The proposed laws obviated this by leaving it with the Judge to determine the qualifications of the juror, that is to say, the examination of jurors in criminal cases was to have been taken out of the hands of the lawyers and required of the Judge. To compensate the defendant for whatever substantial disadvantage he might suffer, the number of his peremptory challenges was materially increased.

To prevent the setting aside of judgments on trifling technicalities, the proposed amendments provided that the Judge should fix the legality of the jury panel by general order, after which challenges could not apply to the whole panel, although they still held as to individual jurors.

One of the most important of the provisions regarding trial jurors was that the reading of mere newspaper reports of a case should not disqualify a trial juror, unless it were shown that the newspaper article purported to be a true copy of the official testimony.

The fact that under the present law the term "reasonable doubt" is not given legal definition paves the way for frequent miscarriages of justice. The Judge is required to define the term for the jury. The defendant may take exception to the definition, thus paving the way for technical defense in the upper Courts. The Commonwealth Club bills defined "reasonable doubt" to be, "that state of the case which, after the entire comparison and consideration of all the evidence in the cause, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge."

Amendments were also proposed to the law governing instructions to juries. Under the present rule, each side presents a long list of instructions for the Judge to give to the jury. If the Judge refuse to give the instructions as requested, objections to his refusal can be taken and made basis for a technical defense[73a]. Under the proposed amendments objection could be made only to such instructions as were given, not to those which were not presented to the jury.

In none of those proposed amendments could the substantial rights of the defendant be said to be encroached upon. But the proposed laws did clear away a mass of technicalities which has kept many a scamp out of jail.

The proposed amendments dealing with appeals in criminal cases aimed at prompt judgment and sentence after conviction, prompt appeal and conclusion of the case.

To this end, the measures provided that upon conviction the defendant must be sentenced forthwith, and if appeals were taken, taken on the judgment. Instead of the cumbersome bill of exceptions, which required weeks and sometimes months to prepare, it was provided that the entire testimony given at the trial, together with the complete minutes of the proceedings, should be sent to the higher tribunal. This would place before the Appellate and Supreme Courts all the facts and testimony which the Lower Court had considered. This feature of the Commonwealth Club bills was also covered by the measures which had been prepared by the Bar Association.

Under the proposed Commonwealth Club amendments, the defendant was not permitted to appeal on questions referring to the trial jury panels or the Grand jury, nor on any error not affecting his substantial rights. Error in an immaterial issue, or of not sufficient importance to affect the substantial rights of the defendant, was not, under the provisions of the Commonwealth Club bills, to be held ground for reversal.

"We believe," said the Committee which drew up the Commonwealth Club bills, "that what we have proposed is in no way revolutionary and deprives the accused person of no substantial right. The amendments proposed are merely designed to make the present law more effective, to relieve the Courts from the necessity of considering trivial matters and to aid in determining more promptly whether a person accused of crime is innocent or guilty."

The bills as introduced in the Assembly were referred to the Assembly Judiciary Committee. In the Senate, the bills went to the Senate Judiciary Committee.

The promoters of the Commonwealth Club bills made the mistake of treating the machine Senators and Assemblymen as men who could be won over with reason and plain statement. Instead of fighting for their bills and demanding their passage, the agents of the club were willing to listen courteously to suggestions from tricksters intent upon the defeat of the measures, who were only playing for time.

Carroll Cook was at Sacramento lobbying against the bills, as were others of that gentleman's view of affairs. Cook actually appeared before the Assembly Judiciary Committee on invitation of one of its members. The courtesy shown him by Grove L. Johnson, chairman of the Committee, was touching or nauseating, as one might view it. Johnson, who was in effect the Committee, took occasion on the day of Cook's appearance to denounce the measures as revolutionary, unconstitutional, vicious.

It is interesting to note that sixty-three of the sixty-five bills as introduced in the Assembly never got beyond Johnson's Committee. They died right there. The two exceptions got out of the Committee in the closing days of the session, one on March 10th, the other on March 20th. They were reported out with the recommendation that they do pass. It was then too late to take any action on them. They died on the Assembly file.

Those who were making a fight for the measures were kept running between the Judiciary Committee of the Assembly and that of the Senate. The Senate Committee, while a majority of its members were against the machine, was led by men who were not at all in sympathy with any plan that was calculated to clear away legal cobwebs. On the pretext that the reforms proposed were covered by the Bar Association bills, or that the measures were duplicated by other bills, or that they were loosely drawn, on any pretext, in fact, the Senate Committee recommended that fifty-two of the sixty-five measures be withdrawn. And they were withdrawn. Of the thirteen remaining, seven stuck in the Committee, died there; five, just before the session closed, were referred back to the Senate with the recommendation that they do not pass. They didn't. Of the sixty-five bills, the Senate Committee gave only one favorable recommendation. This lone recipient of Committee approval got back to the Senate on March 5th. It died on the files.

Such was the fate of the measures prepared under the direction of the Commonwealth Club for reform of the methods of indictment, trial and appeal in criminal cases. The Bar Association bills received somewhat better treatment.

Of the nine so-called Bar Association bills, eight passed the Senate; the other died in the Senate Judiciary Committee. Of the eight which got through the Senate, two were defeated in the Assembly, while six passed that body and went to the Governor.

Four of the six Bar Association bills which passed dealt with the repeal of those sections of the code which provide for bills of exceptions in criminal cases and substituted the plan, described in considering the Commonwealth Club bills, of providing the higher Court with complete record of the testimony and the proceedings in the trial Court.

One of the two remaining measures requires sentence to be imposed upon a convicted felon in not less than two nor more than five days after the verdict or plea of guilty, with the right reserved for the Court of extending the time to ten days. The sixth measure defines "a motion in arrest of judgment."

Such was the outcome of the effort made by reputable lawyers and public spirited laymen to eliminate quackery from the practice of the criminal law. But measures calculated to make the practice of the criminal law even more involved and technical than it is were granted more consideration. Many of them passed both houses. How they were passed and what they are will be considered in another chapter.

[72] No sooner had the indictments been returned in the San Francisco cases than the validity of the indicting Grand Jury was attacked. For months that issue occupied the attention of the Courts. One by one the members of the Grand Jury were dragged into Court, and in effect placed on trial that technical disqualification if such existed might be established. The greater part of a day was, for example, consumed in thrashing over the question whether one or three motions had been made in nominating the stenographer to the Grand Jury.

Then came appeals to the higher Courts which occupied more months and all but endless labor and expense.

When the attacks on the Grand Jury had been met and disposed of, and the defendants brought to the trial Court, the Prosecution found its labors scarcely begun. Every trial juror was placed on trial. Weeks and even months were required, because of technical objections, to secure a trial jury.

Just before the Legislature convened, Abe Ruef, had, as example, been convicted by a jury in the securing of which the metropolis of the State had been raked as with a fine-tooth comb for talesmen who were not technically disqualified to serve. Thousands were available who would have given the defendant a fair trial, but in all San Francisco very few could be found who were not because of one technical reason or another disqualified.

After conviction came the defendant's appeal, in which the Most trivial reasons were accepted for freeing the defendant whose technical defense had failed him in the lower Courts. Former Mayor Schmitz of San Francisco, after conviction of extortion, and Abe Ruef, after having pleaded guilty to the charge, were given their freedom under circumstances which, to put it mildly, shocked the whole State.

[73] A prominent San Francisco attorney told the writer recently that "the criminal lawyer too often questions a talesman needlessly, not so much to disqualify him, as to get technical error into the record."

[73a] It was on a technicality of this kind that the District Court of Appeals found excuse for reversal of the judgment in the case of Louis Glass, convicted of bribing a member of the San Francisco Board of Supervisors. E. J. Zimmer, the auditor of the Pacific States Telephone Company, of which Glass was an official, refused to testify at Glass' trial. The trial court refused to instruct the jury to disregard the refusal. The Appellate Court held this to be a fatal error.

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.

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