Story of the Session of the California Legislature of 1909

by Franklin Hichborn

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 Bills were passed and bills were withdrawn.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.

The moment came just before noon. Like the snap of a trap Leavitt asked for unanimous consent to take up Assembly Bill No. 6, out of order. The anti-machine Senators are never guilty of discourteous treatment of a fellow Senator. They granted the request.

Senator Wright vouched for the bill. He stated that it was a good bill and should be made a law. Senator Wolfe spoke for it, in fact led the debate to secure its passage. On the other hand, Senator Boynton very pointedly told Senator Wright that the bill was not a good measure and should not be passed "Judges of the Supreme Court tell me," said Boynton, "that this is a bad bill."

Senator Cutten made a strong speech against the bill, which he denounced as bad in principle. Holohan stated that if the measure became a law it would give a bunco steerer a chance to disqualify every decent Judge in the State. Roseberry denounced the measure as vicious.

When the vote was taken, every Senator who supported it was in his seat, but Burnett, Estudillo and Rush were absent. This would have made the vote 18 to 18, the backers of the measure requiring three more affirmative votes for its passage. But Miller and Lewis were led to vote for the measure, which made 20 votes for the bill and 16 against it. At this point the bill lacked one vote of passage. Estudillo was, however, brought in under call of the Senate, and under what amounted to misrepresentation, voted for the measure. This passed the bill by a vote of 21 to 18. Boynton changed his vote from no to aye, to give notice that on the next legislative day he would move to reconsider the vote by which the bill had been passed. But before he could give notice the Senate took its noon recess. Boynton under the rules had all day in which to notify the Senate of his intention, but to make assurance doubly sure, he told the clerk at the desk not to send the bill to the Assembly for he would as soon as the Senate re-convened, give notice of his motion to reconsider.

Nevertheless, when the Senate reconvened, Boynton found that the bill had been rushed over to the Assembly, "to save time," according to the excuse given.

Senator Boynton insisted that the bill be returned from the Assembly. Wolfe asked Boynton "as a matter of Senatorial courtesy," to permit the vote on the bill to be taken on a motion to have it returned from the Assembly. This request was so ludicrous, in view of the treatment that had been accorded Boynton, that it provoked a smile. Boynton refused to be "courteous," the bill was returned from the Assembly and regularly reconsidered the next day.

With 21 votes against the measure, there seemed little doubt that it would be reconsidered and defeated. Twenty-one votes were necessary for reconsideration. Lewis and Miller had thought better of their vote of Friday and were prepared to vote against the bill. Estudillo, understanding the measure thoroughly, was anxious to set himself right in the record by voting against it. These, with Burnett and Rush, gave twenty-one votes, enough to force reconsideration and to defeat the bill.

But there was a weak link in the combination,Kennedy. Senator Kennedy voted throughout the session consistently with the Wolfe-Leavitt element, but he voted against the Change of Venue bill. When Saturday morning came, however, Kennedy could not be found. When reconsideration of the bill came up, Burnett and Rush were out in the hallway. Miller and Lewis voted to reconsider, which made the vote eighteen to eighteen. Twenty-one votes were necessary for reconsideration. With Kennedy, Burnett and Rush, reconsideration could be forced and the bill defeated. The only way the absent Senators could be reached was through a call of the Senate, which required a majority vote of those present. A motion for a call of the Senate was defeated by a vote of eighteen to eighteen[78].

This was the real test vote on the Change of Venue bill. It will be seen that Miller and Lewis and Estudillo, who had voted for the bill the day before, voted for a call of the Senate. They would, on reconsideration, have voted against the bill, and its passage on reconsideration would have been impossible. Had Kennedy or Rush or Burnett been present, the motion for a call of the Senate would have prevailed, the vote on the Change of Venue bill been reconsidered, and the measure defeated.