Chapter XXII: Higher Courts Free Schmitz and Ruef

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The decision was against the prosecution.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FOOTNOTES:

[341] The opinion was written by Justice Cooper and concurred in by
Justices Hall and Kerrigan. This is the same Kerrigan who
appears in the Santa Cruz banquet scene picture, in which Ruef
occupies the position of honor with the Republican nominee for
Governor, J. M. Gillett, standing at his back with hand
resting on Ruef's shoulder. (See Chapter IV.)

Supreme Justice Henshaw, whose sensational action in Ruef's
favor will appear in another chapter, is also one of the Santa
Cruz banquet group.

[342] The Appellate Court enumerated the following errors at the
trial:

(1) That the trial court erred in allowing the peremptory
challenge of a juror after he had been sworn to try the case;
and the removal, after he had been sworn, of a second juror
without cause.

(2) That error was committed in the appointment of the elisor
that had charge of the jury.

(3) That the court erred in admitting hearsay evidence of
witnesses, Loupe, Blanco, Malfanti, Debret and Rosenthal.

(4) That error was committed when Schmitz was required, under
cross-examination, to answer question as to whether he had
received from Ruef part of the money extorted from the French
restaurant keepers.

(5) That Ruef's testimony that he had divided the money with
Schmitz was not proper rebuttal evidence.

[343] California Penal Code, Sec. 518.

[344] California Penal Code, Sec. 519.

[345] The general feeling regarding the Schmitz decision was well
expressed by Attorney J. C. Hutchinson, in a letter to Justice
Cooper. The letter follows:

"Hon. James A. Cooper, Presiding Justice of the District Court
of Appeals, First District, 1420 Sutter street, city. Dear
Sir: Yours of the 15th inst. received. I did not expect you to
reply to mine of the 13th inst., which was more in the nature
of an ejaculatory protest than a letter. Nevertheless, I think
you are right to reply, especially as I know you have replied
to letters complimenting you on the same decision.

"I have never before written a letter to a judge commenting
upon a decision in which he had taken part, and I ordinarily
would consider such a course highly unprofessional. During
twenty-five years' practice, I have always remained silent in
the face of decisions, however adverse, even in some cases
where I was perfectly well aware that improper influences
behind the scenes had prevented me from obtaining justice. But
in this case the situation is different from anything I have
ever experienced. The very air seems to be full of
revolutionary feeling. At the universities, clubs, in the
trains, on the streets and in the home, I find no one (except
the friends, connections and lawyers of the grafters) speak
with anything but emphatic protest against this decision so far
as it relates to the validity of the indictment.

"I have cast no personal reflection upon yourself. The attack
is upon the atmospheric environment of a statement which could
lead a man of your integrity and intelligence honestly to
believe that such a decision could be correct; and if the
Supreme Court should unanimously hold the same, that would,
according to my view, only make the matter so much the worse.

"Very respectfully yours,
"J. C. HUTCHINSON."

[346] See 7 Cal. App. Reports, page 330.

[347] The Court, in discussing this point, said: "The indictment
does use the words 'unlawful injury' in the first part of it;
but when the facts are specifically set forth as to what the
defendants threatened to do we find that the threat was that
defendants 'would prevent the said Joseph Malfanti, Charles
Kelb and William Lafrenz from receiving said license or
obtaining the same.' There is no allegation that any unlawful
act was threatened, and the attorneys for the prosecution
frankly admit that they rely upon the fact that the defendants
obtained the money by threatening to do an injury, which they
claim was unlawful solely for the reason that the threats were
made with intent to extort money. In other words, it is
claimed that even though the French-restaurant proprietors
were violating the law, and conducting immoral places used as
resorts by lewd women, and thus not legally entitled to a
license to sell liquor, a threat to prevent the issuance of
licenses to such places by laying the facts before the Board
of Police Commissioners in a legal manner, constitutes a crime
if such threat was made with the intent to extort money. Such,
in our opinion, is not the law. The statute uses the words
that the threat must be to do 'an unlawful injury'; and in
order to charge a crime the indictment must aver in some way
that the threat was to do an unlawful injury. It is apparent
from the language of the statute which we have hereinbefore
quoted, that it is not every kind of fear that will support a
charge of extortion because of property obtained thereby. The
fear must be induced by one of the threats enumerated in the
statute. The Legislature has seen fit to provide that the
threatened injury to property upon which a charge of extortion
may be predicated must be an unlawful injury to property. That
is, the injury threatened must be, in itself, unlawful,
irrespective of the purpose with which the threat is made. As
the word 'unlawful' is used in the statute it qualifies the
'injury' and not the 'threat.' Unlawful means contrary to law.
It is true that from a high standard of ethics it could not be
claimed that one could extort money by a threat to do a lawful
act, if the intent was to get money by the use of the threat,
but every wrong is not made a crime. There are many wrongs
done every day that are not enumerated in the category of
crimes contained in the Penal Code that are of much more
serious consequence in their nature than others which are
defined therein; but we must look to the statute to find
whether or not an act is a public offense for which a
prosecution will lie. To procure property from others by a
mere threat to do a lawful act is not a crime. The object of
the statute--or at least one of its objects--is to protect the
party from whom the property is extorted; and if such party
pays the money in order to secure protection in violating the
law himself he cannot be heard to complain. He in such case
would be a party to the violation of the law. In this case, if
the parties as a fact paid the money in order to prevent the
evidence as to the character of places they kept from being
exposed to the Board of Police Commissioners, they are not in
a position to complain."

[348] The Examiner, in its issue of January 11, 1908, said of the
decision:

"The District Court of Appeal has overturned the conviction of
Mayor Schmitz on the ground that threatening to prevent the
French-restaurant keepers from getting a license to sell
liquor does not constitute the crime of extortion, with which
he is charged. This is one of the decisions that will
aggravate the dissatisfaction of the public with the courts.

"Abe Ruef, once political boss of San Francisco, testified that
he had divided with the Mayor the 'fees' for getting the
licenses which Schmitz had held up until the money was paid. 'A
license to sell liquor is not property in the ordinary sense of
the word,' declares the court, making the point that the
indictment 'does not allege any threat to injure property.'

"Any ordinary intelligence would construe the threat to take
away a license to sell liquor from a restaurant unless a
certain sum of money was paid as the plainest kind of
extortion, particularly when the Mayor was shown to have shared
in the money thus exacted, and the fact that the contrary
ruling of a court acts as a release of a man whose guilt was
clearly established, will not change that view."

"Even the lay mind," said the Call, "is competent to reach the
conclusion that this decision is bad law, bad logic and had
morals."

The decision was generally condemned by the interior press. The
Sacramento Bee denounced it as a "palpable evasion of justice."
The Oakland Enquirer stated that it came as a "shock and a
surprise to the law-respecting people of California and of the
entire country." "San Francisco in particular," said the Los
Angeles Evening News, "California in general and the republic
at large have suffered great wrong by reason of this
reprehensible decision."

[349] See California Appellate Reports, in which the Supreme Court
decision is printed, Vol. No. 7, Page 369.

[350] The Bee prefaced the Chief Justice's article with the
following statement: "The decision of the Supreme Court of
California in the case of Eugene Schmitz is one not only of
State but even of national importance. It has been the
fruitful topic of varied comment throughout the Union. And
yet, after all the discussion, there remains a prevailing
ignorance as to WHAT WAS DECIDED; and even among those laymen
who had a fair idea upon that point, there is certainly little
if any knowledge as to WHY IT WAS SO DECIDED.

"Having a very high idea of the granitic probity of Chief
Justice Beatty of the Supreme Court, and believing it to be
the duty of that Court to answer when citizens respectfully
ask for light, the editor of this paper on March 31st last
wrote to Chief Justice Beatty and asked him to publicly
explain just what the Court had decided and just why it had so
decided; to explain it so that the man in the street might
easily understand. In that quite lengthy letter to the Chief
Justice, the editor of The Bee wrote:

"'The ignorance of the general public as to what was decided
and exactly why it was decided has undoubtedly given rise to
considerable of a public suspicion that all is not as it should
be--that injustice has triumphed where justice should have
prevailed--that the good work of almost two years has been
practically wiped out by a judicial obeisance to
technicalities--that the guilty have been saved by the
interposition of a judicial hand that could with more propriety
and equally as much regard for the law have turned the scales
to record the verdict of the highest tribunal on the side of
good government.'

"Justice Beatty answers the questions at length, but with such
clearness that the 'man in the street' can understand. His
explanation should be read by everybody, so that hereafter
those who discuss the matter can do so with a full and thorough
understanding of exactly what the Supreme Court decided in the
Schmitz case, and exactly why it considered it had so to
decide."

[351] "I repeat," said the Chief Justice in his Bee article, "that
the only question presented for decision was the question of
statutory construction here stated, for it was never seriously
contended before the Supreme Court by the Attorney General, or
by the District Attorney of San Francisco, or by any of his
assistants or deputies, or by the learned counsel, whose names
are signed to the petition for a rehearing, that the
indictment did allege a threat to do an unlawful injury of the
character indicated. What it did allege on this point, and all
that it alleged, was that one E. E. Schmitz (without showing
that he was Mayor of the city, or that he had any official or
other influence over the Board of Police Commissioners greater
than, or different from, that of the humblest private
citizen), and one Abraham Ruef (without showing that he had
any such power or influence) had told certain keepers of a
restaurant that they could, and had threatened that they
would, prevent them from obtaining a renewal of their license
to sell liquors, etc. The indictment, in other words, had no
more force in legal contemplation than if it had been directed
against Jack Stiles and Richard Noakes, for though the facts
that Schmitz was Mayor and Ruef the political boss of the city
may have been as notorious in San Francisco as the fire or
earthquake, no lawyer would contend for a moment that they
were facts of which a court could take judicial notice in
passing upon the sufficiency of the indictment."

[352] Heney's reply to Chief Justice Beatty was published in The
Sacramento Bee. Section 961 of the California Penal Code
expressly provides that no fact of which a court may take
judicial notice, need be alleged in any indictment. The Codes
enumerate certain matters of which the courts are required to
take judicial notice. Among the matters are "State offices and
their incumbents." The Political Code defines who are "State
officers," and among them are included "Mayors of Cities."
Heney, in his reply, held Chief Justice Beatty and the court
to be wrong, even on the face of the statute. No lawyer in the
State attempted to answer Heney's reply, although many of them
would have been glad to have earned recognition from the
Supreme Court by doing so.

[353] James M. Kerr is author of Kerr's California Cyclopedic Codes.
These works are accepted as standards throughout the country.

"It is thought," says Kerr in California Cyclopedic Codes for
1908, "that ... the [Schmitz] case cannot be safely relied
upon as an authority outside of California. It is a flagrant
violation of the spirit if not the letter of Section 4 ante,
and the old rule that it is the duty of the court, where it is
possible, so to construe the statute as to uphold the
indictment and promote justice, instead of effecting a
miscarriage of justice. Several things occur in connection
with a consideration of the foregoing quotation from the
Supreme Court.

"1. If an indictment can lawfully be upheld, the court, as the
judicial voice of the State, is bound so to uphold it. It is
not the province of the court to seek some strained view of the
law by which an indictment of one accused of crime can be
quashed.

"2. The construction of the code provision on extortion is to
be made, not technically, but according to the fair import of
its terms, with a view to its object and to promote justice.

"3. It is not charged, and the statute does not require it to
be charged, that the threat was made by Schmitz, acting in his
official capacity. The crime of extortion, under our statute,
is not the old common-law crime of extortion, which could be
committed only by an official acting in his official capacity.
Under our statute it is immaterial whether Schmitz held any
official position, or whether Schmitz and Ruef had any power or
influence to carry out the threat; the only thing to be
considered is, Did the accused extort money by means of a
threat? Official position or power to carry out the threat is
neither material nor proper.

"4. It is entirely immaterial by what means Schmitz and Ruef
intended to accomplish their threat to have the liquor license
withheld; whether by fair persuasion of the Board of
Supervisors, or by menace, duress, fraud, or undue influence.
The crime charged did not consist in the dealings with the
Board of Supervisors, but in the threat made to the French
restaurateurs, by means of which the fears of the latter were
aroused, and were forced to pay to Schmitz and Ruef money to
which the latter were not entitled, as a means of preventing
Schmitz and Ruef from carrying out the threat. To require the
indictment to contain an allegation of the means intended to be
used by Schmitz and Ruef to accomplish their unlawful
purpose--the means to be used with, or to influence, or to
menace, or duress, or fraud in dealing with, the Board of
Supervisors--is indubitably bad law and bad pleading.

"5. The declaration that the case 'is not one which is
sufficient to charge an offense in the language of the statute
defining it,' made by the court, needs some reason and good
authorities to make it good law outside of this State, and also
in this State under the system of criminal pleading provided
for by the code--which should be the law by which criminal
pleading is to be measured.

"6. It does not seem to have been suggested to the court, and
it does not seem to have occurred to the learned judges
thereof, that the trial court was required to take judicial
notice of the head of department of a co-ordinate department of
the government of the City and County of San Francisco, and to
take judicial notice of the fact that Schmitz was at least de
facto Mayor. See Kerr's Cyc. Code Civ. Proc., Sec. 1875, Subd.
5.

"7. The position and practical control of Ruef, as the
'political boss' of San Francisco (a position unrecognized by
law), and his undue influence over the Board of Supervisors
(the exercise of which is contrary to public policy), was
merely matter of evidence, and not a matter to be pleaded; the
only thing that is important is, Was the threat made? and did
the defendants, Schmitz and Ruef, through such threat, extort
money, and by means of the fear raised thereby? If they did, it
is utterly immaterial whether Schmitz was Mayor, or Ruef was a
'political boss,' and had or had not any influence with the
Board of Supervisors. The Supreme Court seems to lose sight of
the fact that the crime of extortion in this State is not
confined to persons in office, and exercising official
influence.

"8. A threat to do a lawful act, if made for the purpose of
putting a person in fear, and thereby securing money or
property which the person was not in law entitled to have and
receive, renders such person guilty of extortion, under the
weight of decision and the better doctrine; and taking the case
in that view, the indictment is amply sufficient, and should
have been upheld by the court. The case of Boyson vs. Thorn, 98
Cal., 578; 33 Pac. Rep., 492, has no application, and its
citation by the court only tends to befog the issue."

[354] Dean Wigmore's criticism of the decisions in the Schmitz case,
and of the articles written in defense of them was as follows:
"I have read the letter of Mr. Heney, and the letter of the
Chief Justice, and have re-read the opinion of the Court in
People vs. Schmitz, 94 Pac. Rep. 419. The Chief Justice's
letter and Mr. Heney's reply turn largely on the legal rule of
judicial notice. The learned Chief Justice finds himself
iron-bound by the rules of that subject. But the whole spirit
of the rules is misconceived by him. Their essential and sole
purpose is to relieve the party from proof,--that is, from
proof of facts which are so notorious as not to need proof.
When a party has not averred or evidenced a fact which later
turns out, in the Supreme Court's opinion, to be vital, the
rule of judicial notice helps out the judge by permitting him
to take the fact as true, where it is one so notorious that
evidence of it would have been superfluous. Now these helping
rules are not intended to bind him, but the contrary, i.e.,
to make him free to take the fact as proved where he knows the
proof was not needed. Moreover, it follows that, since these
rules cannot foresee every case that new times and new
conditions will create, they can always receive new
applications. The precedents of former judges, in noticing
specific facts, do not restrict present judges from noticing
new facts, provided only that the new fact is notorious to all
the community. For example, the unquestioned election of
William H. Taft as President of the United States is
notorious; but no man named William H. Taft has ever been
elected President, and no judicial precedent has noticed the
fact. But no court would hesitate to notice this new notorious
fact.

"If, then, a man named Schmitz was notoriously Mayor of San
Francisco and a man named Ruef was notoriously its political
boss, at the time in question, that is all that any court
needs; and the doctrine of judicial notice gives it all the
liberty it needs. It is conceivable that a trial judge might
sometimes hesitate in applying this doctrine of notoriety,
because the trial court might fear that the Supreme Court
would not perceive the notoriety. But there never need be any
such hesitation in a Supreme Court, if that court does see the
notoriety.

"And this is just where the learned Chief Justice is to be
criticised. He does not for a moment ask or answer the
question, 'Did we actually, as men and officers, believe these
facts to be notoriously so?' but refers to certain mechanical
rules, external to his mind. What that Supreme Court should
have done was to decide whether they under the circumstances
did actually believe the facts about the status of Schmitz and
Ruef to be notorious. In not so doing, they erred against the
whole spirit and principle of judicial notice.

"And Mr. Heney's demonstration that there is nothing in the
codes to forbid them is complete; for, of course, the Code of
Procedure, in tellingto do the right thingto do the right thing
them (Section 1875) that 'the courts take judicial notice of the
following facts,' simply gave them a liberty of belief as to
those specified facts, and did not take away their liberty as to
other unspecified facts.

"But there is a deeper error than this in the learned Chief
Justice's letter, and in the court's opinion. The letter says:
'If by means of these allegations or otherwise it had been
made to appear that the defendants had caused the applicants
to believe that they could and would influence the Police
Commissioners to reject their application regardless of its
merits I have never doubted that the indictment would have been
sufficient.' He stakes his decision on this point. The point is
that, in determining the fear caused by the threat, which
constituted extortion, the belief of the restaurant-keeper as
to Schmitz's and Ruef's power, and not their actual power, was
the essential thing. If that is so, then of what consequence
was it whether one or the other was Mayor or boss? And of what
consequence was it whether those facts were averred or judicially
noticed. None at all. The indictment alleged that the threats
were made to use influence or power over the Commissioners,
and that their purpose was to obtain money by means of (i.e.,
through fear of) such threats. Obviously, then, the actual
power or influence was immaterial; and the belief of the
restaurant-keeper, the only material fact, was a question of
the evidence on the trial, and not of the legal sufficiency of
the indictment. All the lucubrations about judicial notice were
therefore beside the point.

"The inconsistency of the learned Chief Justice, in thus taking
as essential the actual status of Schmitz and Ruef, is further
seen in his next paragraph. There he declares 'it could not be
assumed that such private persons could prevent the issuance of
the license otherwise than by adducing good reasons.' But why
does he assume that, on the contrary, a threat by a Mayor or a
boss could prevent the issuance of the license otherwise than
by adducing good reasons? He says that if it had appeared that
the threats were made by a Mayor and a boss, then this would
have sufficed, because, in his own words, their influence to
reject the application would have been used 'regardless of its
merits.' See what this means. Suppose that two persons, a Mayor
and a private citizen, tell a restaurant-keeper that they will
do all they can to induce a Commissioner to revoke the license
unless money is paid; for one of these persons, the learned
Chief Justice immediately assumes that he can and will do this
'regardless of its merits'; for the other he says 'it cannot be
assumed.' Why not for one as much or as little as the other? He
does not say that the private person could not possibly succeed
in influencing the Commissioner corruptly--he merely says that
'it cannot be assumed.' On the other hand, why assume it for
the Mayor? Surely a Mayor might fail in trying to influence an
honest Commissioner by a corrupt threat to remove him. In
short, either assume that on the facts of the trial a private
person might have power to influence corruptly the license; in
which case an allegation of his Mayoralty would be superfluous.
Or else refuse to assume that a Mayor, merely as such, could
and would inevitably influence a Commissioner corruptly; in
which case the mere allegation of his being Mayor would not be
enough, and judicial notice would not cure. But the Chief
Justice says it would be enough! He is plainly inconsistent.

"The truth is that the learned Chief Justice, in endeavoring to
support his decision, weaves a logical web, and then entangles
himself in it.

"Such disputations were the life of scholarship and of the law
six hundred years ago. They are out of place today. There are
enough rules of law to sustain them, if the court wants to do
so. And there are enough rules of law to brush them away, if
the court wants to do that.

"All the rules in the world will not get us substantial justice
if the judges have not the correct living moral attitude toward
substantial justice.

"We do not doubt that there are dozens of other Supreme
Justices who would decide, and are today deciding, in obscure
cases, just such points in just the same way as the California
case. And we do not doubt there are hundreds of lawyers whose
professional habit of mind would make them decide just that way
if they were elevated to the bench tomorrow in place of those
other anachronistic jurists who are now there. The moral is
that our profession must be educated out of such vicious habits
of thought. One way to do this is to let the newer Ideas be
dinned into their professional consciousness by public
criticism and private conversation.

"The Schmitz-Ruef case will at least have been an ill-wind
blowing good to somebody if it helps to achieve that result.

"December 7, 1908.
"JOHN H. WIGMORE."