Chapter XXIX · Ruef’s Last Refuge Fails.

That a jury of twelve men had found Ruef guilty of bribe-giving did not mean necessarily that the broken boss would be confined at San Quentin, the prison to which he had been sentenced to serve his fourteen-year term. Indeed, the probabilities were very much against his suffering any such indignity. Ruef had, at the test, continued “true to his class”; he had not assisted the State in bringing the bribe-givers to account. Men, powerful in financial, social and political circles were unquestionably under the greatest obligation to him. He had not “gone back on his class.” His “class” owed it to him to save him from stripes, as Ruef by his course had beyond question saved many of his “class” from stripes.

Having been convicted by a jury, the first move was for Ruef to appeal to the trial judge for a new trial. This appeal was denied him. Ruef then appealed from the judgment of the trial court to the District Court of Appeal. The three justices of the District Court of Appeal found nothing in Ruef’s contention to warrant the granting of a new trial.[476] Thus four judges found that Ruef’s trial had been fair, even technically fair. But Ruef’s possibilities were not exhausted.

The Supreme Court could, if four of the seven members were so inclined, grant him a rehearing, and to the Supreme Court Ruef applied.

The California State Constitution provides that “the Supreme Court shall have power to order any cause pending ... before a district court of appeal to be heard and determined by the Supreme Court. The order last mentioned may be made before judgment has been pronounced by a district court of appeal, or within thirty days after such judgment shall have become final therein.”

The District Court of Appeal found against Ruef on November 23, 1910; this action became final thirty days later, or on December 23, 1910. The Supreme Court had thirty days after December 23, that is to say, until January 22, 1911, to grant Ruef a rehearing, if a majority of the seven Supreme Justices so decided. If the Supreme Court failed to act before the close of January 22, Ruef, unless pardoned or paroled, would have to go to State prison.

Ruef, on December 31, 1910, petitioned the Supreme Court for a rehearing. On January 23, announcement was made that the Supreme Court, by a four to three decision, had decided to grant Ruef’s petition. The decision was received with protest from one end of the State to the other.[478] The Legislature was in session at the time. Senator George W. Cartwright of Fresno introduced a resolution[479] requesting the Assembly—where impeachment proceedings must originate—to take such steps as might be deemed necessary for investigation of the Supreme Court’s conduct.

And finally there came the rumor—at first not generally believed, but later confirmed by the Supreme Justices themselves—that one of the Justices at least had signed the order granting Ruef his rehearing before the Attorney-General had filed his brief in answer to Ruef’s petition. The Justice who had thus acted was Justice Henshaw, the same Supreme Court Justice who occupied prominent position in the picture of the banquet scene at the 1906 Santa Cruz convention, in which Ruef appears in the central position of honor.[480]

The facts later brought out involved the following dates:

December 31, 1910—Ruef’s petition for rehearing was filed in Supreme Court.

January 10—W. H. Metson was granted permission to file a brief in the case as Amicus Curiae.

January 10—Justice Henshaw signed the order granting Ruef a rehearing.

January 11—Justice Henshaw left the State and was absent until after the order granting Ruef a rehearing had been filed.

January 12—Metson filed his brief as Amicus Curiae.

January 12—The Attorney-General filed his reply to Ruef’s petition for a rehearing.

January 19—Justice Melvin signed the order granting Ruef’s petition.

January 20—Attorney-General filed reply to Metson’s brief.

January 21—Chief Justice Beatty, and Justices Shaw, Angellotti, Lorigan and Sloss met in the chambers of the Chief Justice for consultation regarding Ruef’s petition. Justice Lorigan signed the order granting the petition. Justices Shaw, Angellotti and Sloss declined to concur in such order, and Chief Justice Beatty reserved his decision in the matter until January 22, 1911.

January 22, 1911—(Sunday, the last day on which the order could be signed) Chief Justice Beatty signed the order, his being the fourth name on the document, four signatures being necessary to make it effective.

January 23—A typewritten copy of the order was filed with the Clerk of the Court, the original being retained in the office of the secretaries to the Justices.

Up to this time, eleven judges had passed upon Ruef’s case. Seven of them—one Superior Judge, three Judges of the District Court of Appeal and three Justices of the Supreme Court—had decided that Ruef had had a fair trial, that no technicality could be invoked to save him. Four of the eleven judges, in a way which, to the lay mind at least, was somewhat irregular, had decided to grant a rehearing. The public was not at all backward in expressing the opinion that this would mean a new trial; and that under conditions as they were at San Francisco, Ruef would not for a second time be convicted.[481] As is usual in such cases, the public was dissatisfied, suspicious, indignant, but without plan or remedy. Some demanded investigation at the hands of the Legislature; others wanted impeachment[482] proceedings instituted. Mr. William Denman, a leader of the California bar, urged before the Senate Judiciary Committee that the Legislature owed it to the Supreme Court, as well as to itself and to the public, to make thorough investigation, and demanded of the committee if the Legislature on proper showing would declare the office of a Supreme Justice vacant.

Senator Shanahan, a member of the committee, was quick to reply that under such a showing the Legislature would certainly act. “But,” added Shanahan—and here he touched the weak point of impeachment proceedings—“it would take months if not years. That is why impeachment proceedings will not be instituted. Impeachment proceedings from the trial of Warren Hastings to the present time have proved unsatisfactory.”

But, however individuals differed on the question of impeachment proceedings, the general attitude was that the Attorney-General should take steps, if such course were practical, to have the order granting Ruef a rehearing set aside. This the Attorney-General did. He attacked the order before the tribunal which had made it, the highest tribunal in the State, the only one to which appeal could be made.

And the Supreme Court set the order aside, declaring it to be “ineffectual for any purpose and void.”

But the Supreme Court did not set the order aside because Justice Henshaw had signed the document before the argument of the prosecution had been heard. The order was set aside on the ground that Henshaw, being absent from the State when the signature of the fourth Justice was attached thereto, was at the time, being absent from the State, unable to exercise any judicial function as a Justice of the Supreme Court. Without Henshaw’s signature, the signatures of but three of the Supreme Justices appeared on the order. As the signatures of four of the Justices were required to make the order effective the Court declared it to be worthless.[483]

Thirty days from the time the judgment of the District Court of Appeal became final having expired, the Supreme Court could not interfere further. Ruef had lost his last technical play on a technicality. He went to State prison.

But Ruef did not go to State prison because a jury of twelve men had found him guilty of offering a bribe to a Supervisor; he did not go to State prison because seven out of eleven judges who passed upon the questions involved had found that he had had a fair trial. Ruef went to State prison when he did because a member of the Supreme Court of California was absent from the State at a time inopportune for Ruef.

Ordinarily, after his failure in the Supreme Court, Ruef would have had two more chances for escaping the full penalty of his bribe-giving, namely, parole at the hands of the State Board of Prison Directors, and pardon from the Governor.

But again was Ruef unfortunate. Hiram W. Johnson, as Governor of California, sat at Sacramento. He had gone into office pledged “to kick the Southern Pacific machine out of the State government.” He was keeping his pledge. There was no pressure which men of Mr. Ruef’s “class” could bring upon Governor Johnson to move him to grant Ruef freedom.

The possibility of parole was as remote, although the State Board of Prison Directors—who in California are appointed for ten-year terms—continued for a time under the old order.

One of the five directors was Tirey L. Ford[484] of the United Railroads. Ruef went to prison convicted of a charge of bribing a Supervisor to vote to give the United Railroads its overhead trolley permit. The evidence indicated, if it did not show, and Mr. Ruef has since confessed, that this money came to him from General Ford. Ruef, because of the crime, found himself confined in a prison of which General Ford was one of the five governors, with power of parole in his hands. But it developed that Governor Johnson had power to set aside such parole. So Ruef could expect little from even the Board of Prison Directors.

Scarcely had Ruef been placed behind the bars, however, than a State-wide campaign was inaugurated to compel his pardon or parole. The public was treated daily by the newspapers with descriptions of the discomfitures[485] which Ruef was suffering. When he was found, for example, smuggling sweet chocolates into prison, and was punished for it, the Ruef-friendly press cried out at the cruelty and unreasonableness of such punishment.[486]

The suffering which his imprisonment has brought upon the members of his family is dwelt upon at length. Letters from them, pleading for assistance for their imprisoned relative have been received by many whose assistance it was thought might prove effective in securing his release. But when Ruef was brought back from San Quentin prison to San Francisco to testify at Schmitz’s trial, the pathetic story was published broadcast that these letter-writing relatives had been kept in ignorance of his imprisonment, and thought him to be traveling in Europe.[487]

One of the most contemptible stories circulated to create public opinion for his release was that Ruef had been made scapegoat because of his religion. Ruef is a Jew, circulators of this story insisted that he is in prison because he is a Jew, while the gentile bribe-givers go free.

As a matter of fact, the gentiles associated with Ruef have gone free because of Ruef’s treachery to the graft prosecution, but this does not prevent the circulation of the story.

A saner view, breathing of better citizenship, came from Rabbi Stephen S. Wise of the New York Free Synagogue. “Israel,” said Rabbi Wise, “is not responsible for Ruef’s crimes any more than the Roman or Protestant Church is responsible for the crimes of its communicants. But we of the House of Israel in America would be in part answerable for Ruef’s misdeeds unless we made it clear, as we do, that Israel is unutterably pained by this blot upon its record of good citizenship in America.”

By far the most astonishing support of the movement to free Ruef came from the San Francisco Bulletin and Fremont Older, its managing editor. Older was one of the strongest supporters of the graft prosecution, as was the paper under his management. But once the graft prosecution was concluded, Older and the Bulletin became the most persistent of the supporters of the movement to secure Ruef his freedom.[488] Largely through Older’s influence, men of prominence throughout the country—with apparently no very clear knowledge of the situation—have been induced to express themselves as favorable to Ruef’s release.

In the publicity campaign for Ruef’s release which gives no indication of abatement, Ruef, and those who seek his release, are praised in the most extravagant terms, while those who will not enroll themselves in his interests are as extravagantly condemned.[489]

But in spite of all that is being done to create public opinion favorable to Ruef’s release, the sober expression of machine-free press and public is that Ruef should be treated both on the score of parole and confinement precisely the same as any other prisoner.[490] This attitude was clearly presented by the Fresno Republican at the time Ruef was found smuggling chocolate sweets into the prison.

In the attitude of prison officials toward Ruef, the Republican pointed out, there are two alternatives. “One,” the Republican went on to say, “is the course of Warden Hoyle, in treating Ruef like any other prisoner, and disciplining him humanely but sternly, for any infraction of the necessary prison rules. The other is to let Ruef have privileges which the other prisoners do not and can not have. News travels nowhere faster or surer than in prison. If Ruef bribes guards, the officials may not know it, but the prisoners will. If Ruef may have smuggled sweets, the other prisoner, whose every nerve-cell shrieks in agony for cocaine, but who knows he will be thrown in the dungeon if he smuggles it, will have no illusions about the smuggling privilege. If the very minions of justice do injustice, as between Abe Ruef and Convict No. 231,323, every man in that vast prison will be taught that he is the victim not of justice, but of force and favoritism. And if Ruef, at the expiration of a bare year, were to be paroled out, every other convict, whose very application can not be heard until he has served half his term, will know that he is suffering the penalty, not of his crime, but of his poverty and friendlessness. Shall Abe Ruef be suffered to teach that lesson? Shall he corrupt San Quentin prison as he did San Francisco? Or shall there be at last one place found where even Abe Ruef gets exact and equal justice?”

Ruef is getting equal justice at State prison, not because he corrupted San Francisco, not because a jury of twelve citizens found him guilty, not because seven out of eleven judges declared against him, but because the political machine, of which Ruef was one of the most powerful leaders, has been broken in California. Under the old order, to have kept Ruef jailed would have been impossible.