Note 354 — Chapter XXII · Higher Courts Free Schmitz and Ruef.

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 telling 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.”