Chapter XXVII · The San Francisco Election of 1909.

Scarcely had the disagreeing jury in the Calhoun case been discharged than the Graft Prosecution was again called upon to meet the graft defense at the polls. Langdon’s second term was to expire the following January. His successor was to be elected in November.

Mr. Langdon refused positively to be a candidate to succeed himself. The supporters of the prosecution turned to Heney as the most available candidate to oppose the elements united against them.

Heney did not want to be a candidate. The grueling contest of the Calhoun trial, coupled with the nerve-shattering effects of the wound in his head, had brought him to the point of physical and nervous breakdown. But it was demonstrated to him that he had the largest personal following in San Francisco; that the public had confidence in him; that he must make the fight.

And Heney, doubtful of his physical ability to continue to the end of the primary and final campaigns, consented to become a candidate.

There followed the most astonishing campaign for municipal office ever held in San Francisco, or probably in any other American city.

California was at the time groping her way from the clutch of the Southern Pacific “machine.” The California Legislature of 1909 had adjourned after a session which had ended largely in disappointing failure for the anti-machine element. The anti-machine element had been in slight majority, but it had blunderingly permitted the machine minority to organize both houses. As a result, the “machine” had been able to defeat the passage of many anti-machine—now known as progressive—measures. In other instances progressive measures were before their passage,[443] in the face of the earnest but unavailable protest of the well-intentioned but unorganized anti-machine majority, loaded with hampering amendments.

Two of these measures bore directly upon the San Francisco situation. The first measure provided for the Direct Primary. The second provided for the elimination of the “party circle” from the election ballot.

This last named measure, known as “the Party Circle bill,” passed the Senate, but was defeated by one vote in the Assembly. The defeated measure was intended to restore the Australian ballot to its original simplicity and effectiveness.[444]

Under the machine’s tinkering of the State’s election laws, the Australian ballot had become a device for encouraging partisan voting. The “party circle” was placed at the head of the column of party candidates. A cross placed in the circle registered a vote for every candidate nominated by the party designated by the circle. The question of “distinguishing marks” invalidating entire ballots was ruled upon so closely by the State courts, that many voters voted by means of the one cross in the party circle to avoid the risk of having their entire ballot denied counting because of technical defects that might creep in if a divided ticket were voted. Had the “Party Circle bill” become a law it would have eliminated the “party circle” from the ballot, leaving the voter to select individual candidates of his choice. The one Assembly vote that defeated this measure after it had passed the Senate, went far toward bringing the San Francisco Graft Prosecution to an end.

The Direct Primary measure was not defeated, nor did the machine element succeed in amending it into complete ineffectiveness. The anti-machine Republicans and Democrats, by joining in non-partisan caucus on this measure, succeeded in forcing the passage of the Direct Primary bill, but they were not able to keep it free of defects. Harassed by the machine at every turn, the anti-machine Senators and Assemblymen were compelled to accept many undesirable provisions.[445]

One of these provisions bore directly upon the San Francisco election of 1909, and contributed to a large extent to the outcome.

This clause required a primary candidate to make affidavit giving “the name of his party and that of the office for which he desires to be a candidate; that he affiliated with said party at the last preceding general election, and either that he did not vote thereat or voted for a majority of the candidates of said party at said next preceding general election, and intends to so vote at the ensuing election.”

At the time this section was under consideration, anti-machine legislators and the unhampered press pointed out that under it, District Attorney Langdon could not, in all probability, have been nominated nor re-elected in 1907; that Mayor Taylor’s election of that year would have been impracticable, if not impossible; that Judge Dunne would have been hampered to the point of defeat in 1908; that under it, both in 1907 and 1908, the so-called “higher-up” element in the field of corruption would have been given an advantage which the better citizenship of the community would have had difficulty in overcoming.[446]

But the machine element denounced these not unreasonable objectors as “enemies of the Direct Primary bill,” and under cover of the denunciation, and the fight for practical expression of popular choice for United States Senators, the objectionable clause was permitted to remain in the bill.

No sooner had the Legislature adjourned than judicial interpretation of the partisan clause of the Direct Primary Act became necessary. The San Francisco primary election was at hand, and the partisan provisions of the new law proved the first snag which the various candidates encountered.

Although the members of the Legislature, machine as well as anti-machine, voted for the bill, believing that the partisan clause restricted primary nominations to members of the party of the candidates’ affiliation, the San Francisco Election Commissioners held there was nothing in the law to prevent the name of a Republican appearing on the Democratic ticket, or of a Democrat on the Republican ticket, provided the candidate made affidavit of the party of his affiliation.

Under this ruling it appeared that, in spite of the objectionable partisan provision of the Direct Primary law, the San Francisco election could be held on the non-partisan basis which had resulted in the election of Taylor and Langdon two years before. The one issue before the San Francisco electors was continuance of the Graft Prosecution. The supporters of the prosecution, Republicans as well as Democrats, desired to vote for Heney. McCarthy was the avowed Labor Union party candidate for Mayor. The Union Labor party was considering the nomination for District Attorney of Charles M. Fickert. The prospects were good that Heney would receive the Republican and Democratic nominations, as Langdon had two years before. He was supported by the better element of both parties, and opposed by the anti-prosecution element of both. This opposition found expression in the Republican party in a committee of twenty-five, at the head of which was I. W. Hellman, Jr., of the Union Trust Company.[447] The better element of the party planned the nomination of Heney, as did the better element of Democrats.

On a non-partisan basis, such as had prevailed in 1907, the Union Labor party would have nominated McCarthy for Mayor, and Fickert for District Attorney, while the anti-machine, pro-prosecution Democrats and Republicans would have nominated a strong candidate for Mayor, and Heney for District Attorney.

Conditions were thus shaping themselves admirably for continuance of the non-partisan administration of municipal affairs, which had at least blocked corruption, even though it had not beaten down the barriers of technicality, which stood between the corruptors of the municipal government and law-provided penalties.

But this developing non-partisan arrangement was suddenly overturned in an opinion rendered by the Supreme Court, reversing the ruling of the Election Commissioners.

The court held that the partisan provisions of the Direct Primary law prohibited the name of a primary candidate appearing upon any primary ticket except that of the party of the candidate’s affiliations.

Under this ruling, Fickert’s name could not go on the Union Labor party primary ticket, for Fickert had affiliated with the Republican party. The Hellman committee of twenty-five (Republican) immediately took up the Union Labor party candidate for District Attorney, whose name could not go on the Union Labor party primary ticket, Mr. Fickert being apparently quite as satisfactory to Mr. Hellman and his associates as he was to Mr. McCarthy.

Heney, under the Supreme Court’s ruling, found himself in a more difficult position. With other California Progressives, Heney had in 1908 supported Taft for the Presidency. His political affiliations were therefore, under the provisions of the Direct Primary law, Republican. His name could be placed on the Republican primary ticket, but not on the Democratic. But it soon became evident that if his name went on the Republican ticket he would be defeated at the primaries.

The registration of voters under their party designation to enable them to vote at the partisan primaries showed an astonishing condition. The machine, anti-prosecution element was discovered to be massing its strength in the Republican party. Two years before, Daniel A. Ryan, the Republican candidate for Mayor, had received only 9255 votes in San Francisco, while Taylor, the Democratic candidate, had received 28,766, and McCarthy, Union Labor, 17,583. But for the 1909 primaries, no less than 47,945 registered as Republicans, a gain of 38,609 over Ryan’s vote,[448] while the Democratic registration was 17,632 only, 11,134 less than Taylor’s vote, and the Union Labor registration, 10,546, or 7037 less than McCarthy’s vote in 1907. Heney’s name could not go on the Democratic ballot. If he permitted it to go on the Republican ballot, the tremendous Republican registration indicated that the anti-machine Republicans would be outvoted by “machine” members of all parties who had registered as Republicans.

By another provision of the election laws, Heney, should he be defeated at the primaries, could not become an independent candidate; defeat at the primaries barred him from running at the final election.

Heney was effectively shut out from participating as a primary candidate. And this, in face of the fact that the anti-machine Republicans and the anti-machine Democrats were striving to make him their candidate.

Had the 1909 primary law prevailed in 1907, Langdon’s re-election could have been, and almost to a certainty would have been blocked, and the Graft Prosecution brought to an end two years before it was.

At the 1909 Primary election, Heney’s name, although he was the choice of the anti-machine element of all parties, did not appear on any of the primary ballots.[449] Nevertheless, 4594 Republicans wrote Heney’s name on their primary ballots. But this was not sufficient to give him the nomination. Fickert, whose name appeared on the Republican ballot, as a regular candidate, received 12,480 votes, which gave him the Republican nomination.

On neither the Democratic nor Union Labor primary tickets did the name of any candidate for District Attorney appear. The McCarthy element urged that Fickert’s name be written in by Union Labor party voters. They carried their point, Fickert being nominated by the Union Labor party by 3308 votes. But even here there was registered protest at what was going on. Union Labor party voters to the number of 617 wrote Heney’s name on their ballots.

In the same way, a determined effort was made to give Fickert the Democratic nomination also. He received 2298 votes. But the pro-prosecution Democrats rallied to Heney’s support, and nominated him by a vote of 2386. Thus out of a total of 28,967 who voted for nomination of District Attorney, no less than 7597, or more than 25 per cent., wrote Heney’s name on their ballots, in protest against the partisan conditions which made his regular nomination impractical.

The law was new; the election, the first held in the State under the Direct Primary. It was difficult to make the electors understand they could vote to nominate Heney by writing his name on the ballot. Of the 38,385 who voted at the primaries only 28,967 voted for District Attorney. Unquestionably, a large percentage of those who did not vote at all, would have written Heney’s name on the ballot had they known that such a course was permissible. But they did not know, and more than 25 per cent. of those voting did not vote for District Attorney. As the Rev. Charles N. Lathrop put it: “They have Heney sewed up in a bag, and the bag is the partisan features of the Direct Primary.”[450]

Out of this confusing primary election, Fickert came with two party nominations, the Union Labor and the Republican, while Heney had one nomination, the Democratic. This meant that Fickert’s name would be printed twice on the final ballot under partisan designation, while Heney’s would be printed but once. Thus, for every chance Heney had for a “party circle” vote Fickert had two.

The prosecution forces had supported Byron Mauzy for Republican nomination for Mayor, but Mr. Mauzy[451] was defeated by William Crocker, who received the Republican nomination. The Democrats nominated Thomas B. W. Leland for the mayoralty office, while the Union Labor party named P. H. McCarthy. The mayoralty-district attorney tickets were, therefore: Republican, Crocker and Fickert; Union Labor, McCarthy and Fickert; Democratic, Leland and Heney. But the issue before San Francisco, continuance of the Graft Prosecution, had no partisan significance at all. It was supported and it was opposed by members of both parties. The whole fight was over the election of Heney. But never had candidate for office opposition which had more at stake.[452]

Men with apparently unlimited means at their disposal, realized that Heney’s election would in all probability mean for them a term in the State prison. They were fighting for their liberty. The commercial interests were warned that, in the words of I. W. Hellman, Sr., the banker, the Graft Prosecution was hurting business.[453] The anti-Graft Prosecution press insisted day after day that bribery of public officials, while bad, is the most common of crimes and the most difficult to prove; that San Francisco had tried to convict, had failed and might as well give up. So-called “improvement clubs” went so far as to adopt resolutions not only protesting against further prosecution, but demanding that the Supervisors withdraw support given the District Attorney’s office in its efforts to land bribe-givers behind the bars.[454] And finally, the large business interests opposed to the prosecution, threw strength to McCarthy; not that they liked McCarthy—they united against him two years later—but because the election of McCarthy would go far toward the defeat of Heney. Members of the labor unions were, to a large extent, supporters of the prosecution. Their votes had made Langdon’s election sure in 1907. During the 1909 campaign, and down to the very day of election, the sentiment among laboring men was to vote for McCarthy and Heney. But Heney’s name did not appear on the Union Labor ticket.

Labor’s support of Heney was vigorously opposed. Appeal was made to workingmen to stay by their class; to vote for the labor candidates, McCarthy and Fickert. On the Monday night before the election, the writer, with Professor George H. Boke of the University of California Law School, joined a group of working men who were discussing the merits of the several candidates. Apparently all but one of them were for McCarthy and Heney. The exception was for Leland and Heney. He was defending himself, when the writer joined the group, against the charge that in voting for Leland he was “voting outside his class.”

This Leland advocate was a most noticeable young man. He declared himself to be a member of the electricians’ union. Well under thirty, clear-eyed and forceful, he was prepared to stand his ground. When his immediate opponent became personal, the electrical worker, without raising his voice, without excitement, or boast, or display, remarked quietly: “Do not resort to personalities, for if it comes to personalities, what chance have you against me?”

There were no more personalities.

Incidentally his argument was fast bringing out the fact that every worker in the crowd was going to vote for Heney. The effect of it was important. Suddenly from somewhere there appeared a new man to do his part in molding public opinion.

The new-comer went through that crowd with the assurance of a practiced football player through an aggregation of amateurs. In less than five minutes he had addressed every man of the group. But he had none of the marks of a worker, and nobody thought to ask for his “card.” His was the pasty face and the pudgy neck and the soft, unclean hand of the cadet. His argument was curious and even ridiculous, but it was most effective. It at least scattered the crowd.

“Of course Calhoun is a grafter,” he said in effect. “They are all grafters. Spreckels is a grafter. Of course, Fickert is Calhoun’s man, just as Heney is Spreckels’s man. They are all out for graft. But if we are to have grafting, let’s keep the graft in our own class. Why should you vote to let Spreckels’s men do the grafting? You have a candidate of your own. Vote for him. It is only a fight between millionaires anyhow, and a toss-up which is right. Let us vote for the man of our class.”

The effect of this running fire of words was immediate. The electrician lost the attention of his associates. The discussion came to an end with murmurs of approval of the newcomer’s position. That he should have changed a vote with such argument seems incredible. But that he had created a doubt in the minds of those workingmen was apparent to all who saw. He left them well prepared for the anti-prosecution workers who would meet them at the polls the next morning.

But the laboring element was not the only “class” forced into opposition to Heney. At the exclusive clubs, fashionable hotels, social functions, support of Heney was denounced as treason to the exclusive, fashionable, social class. It was quite amusing to hear first generation descendants of honest steerage immigrants decrying the prosecution of rich men trapped in bribe-giving on the theory that to do otherwise “would be treason to our class.”

Thus, Mr. Heney was called upon to meet the “class” opposition of the laborer and the magnate. On the other hand, the unafraid, intelligent people of San Francisco, who recognized no “class” issue, rallied to Heney’s support. But they were without the concerted plan of action which the other side had perfected. The San Francisco press, with the exception of The Bulletin and Daily News, gave Heney no editorial support, but the country press, which had no circulation in San Francisco, earnestly urged his election.[455]

Good citizens throughout the country wrote urging Heney’s election. “To rout the forces of the prosecution at this juncture in San Francisco,” wrote Rabbi Stephen S. Wise of New York, “is to hoist the red flag of anarchy, to proclaim that law and order are not always enforceable, or that such enforcement is not always profitable.”

But Rabbi Wise was in New York. His influence did not, unfortunately, extend, in any important degree, to San Francisco.

On the day of election, the writer visited many voting places in the districts in which the labor vote was strong. Working men by the scores were taking less than a minute to mark their ballots. It was evident that they were voting by means of the party circle. Every Labor Union party vote of this kind was a vote against Heney. The last hope that Heney would get this support was gone. One did not need wait for the counting of the ballots. It was plain that Heney was defeated.

The election returns spoke eloquently of the means that had been employed to defeat Heney. For the primary election 47,945 had registered as Republicans, but Crocker, the Republican candidate for Mayor, received only 13,766 votes at the final election. Although but 10,546 had registered for the primaries as members of the Union Labor party, P. H. McCarthy received 29,455 votes, which, wherever voting was done by means of the party circle, carried a vote for Fickert.

Fickert, with the two nominations, received 36,192. Heney, running on the Democratic ticket, received 26,075 votes, 6481 more than Leland, the candidate for Mayor. But the combination against Heney was too great for him or any man to overcome. Fickert was elected.[456]

The Graft Prosecution had been defeated at the polls.