“When,” said Dr. William Rader of Calvary Presbyterian church, in a sermon preached on the evening of the Sunday after the decision was made public, January 12, 1908, “extortion is not a crime, when bribery is not even a wrong, when a confessed felon can learn that he is really righteous, and that his trial, confession and conviction have all been nothing but a mistake—a slight mistake—I repeat that however correct this may be legally and ethically, it has the effect of making us stand amazed at the rapid revolutions of the legal wheels. Perhaps tomorrow we shall learn that this last decision has been a mistake, too. I hope so; I believe so.”
“We of this city,” said Rev. Dr. Evans at Grace Episcopal Cathedral, “are dumbfounded by a judicial pronouncement which enables the high officials of our city to rob and plunder without any technical breaking of the law. It is enough—such an audacious mockery of the first principles of common sense—to justify the appointment of a lunacy commission to inquire into the sanity of men who could formulate such a judgment and it ought to provoke an explosion of righteous indignation from one end of the State to the other. We need not hesitate to declare that such an opinion as this has its inspiration in that place where public sentiment without a single dissenting note would give it its unanimous approval.”
The decision did not immediately release Ruef and Schmitz. The prosecution had still an appeal to the Supreme Court for a re-hearing and, pending such an appeal, the defendants remained behind the bars. This delay annoyed those interested in seeing the graft defendants go free. Stories were circulated that the prosecution would not appeal. But the prosecution did appeal. Three months later, the Supreme Court rendered its decision.[349]
The decision was against the prosecution.
“The (Supreme) court is unanimous in the opinion,” the decision read, “that the District Court of Appeal was correct in its conclusion that the indictment was insufficient, in that it did not show that the specific injury to the property of the restaurant-keepers threatened by the defendant was an ‘unlawful injury.’”
The Supreme Court went a step further than the Appellate Court had done and attacked the indictment on the ground that it had not set forth that Schmitz was Mayor at the time of the alleged extortion, nor that Ruef was a political boss practically in control of the municipal government.
The prosecution in its application for a rehearing had set forth that “it will be found and decided by this court that levying blackmail upon licensed businesses by the Mayor and the political boss of a metropolitan community is a crime under the law of California and should not go unwhipped of justice.”
This observation was denounced in the Supreme Court’s decision as “a gross misstatement of the case and of the question to be decided as presented by the indictment.”
“We again emphasize the fact,” reads the opinion, “that the indictment does not aver that Schmitz was Mayor, or that Ruef was a political boss, or that either of them had any power, or influence, or control over the Police Commissioners, or that they threatened to use such power, influence or control in preventing the issuance of a license.”
The storm of protest with which this opinion was received was even greater than that which followed the Appellate Court decision. Once more did press, pulpit and public, from one end of the State to the other, join in expression of indignation.