“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.”
When Calhoun returned to San Francisco demanding immediate trial, the Examiner announced that he “threw a bombshell into the camp of the prosecution.” The Call, however, dealt with the incident as follows: