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.