The number of persons indicted for the crimes we have described in the preceding pages was twenty-one, including Mayor Schmitz, Abraham Ruef, and three of the Supervisors. With the exception of these five, the indicted men represented interests which would receive the largest profits of the briberies. In order to obtain the evidence for the indictments of the bribe givers, the District Attorney deemed it necessary to make agreements to use his office to procure complete immunity for the Supervisors, and subsequently to promise aid in security leniency to Abraham Ruef. Each of these person was by law entitled to remain mute before the Grand Jury, on the ground that his evidence might tend to incriminate him.

The practice of the government's prosecuting officer agreeing with certain members of groups of lawbreakers to use the influence of his office to procure immunity from punishment or leniency in sentencing in return for a full and true disclosure of the facts has been established for many centuries in those tribunals following the criminal law developed from the Anglo-Saxon civilization in England. The exercise of this power not only has the sanction of the practice of centuries, but has been repeatedly approved by the Supreme Court of the United States. It is now the practice in nearly all the American States, and in one state the prosecuting officer's agreement for immunity is all that is needed to protect the accused in subsequent prosecutions. In most States the procedure is to stay the prosecution, or sentence till the Governor has pardoned the confessing party.

The necessity for the use of the power to grant immunity became apparent in the prosecutions. With but one exception, that of James L. Gallagher, who distributed the bribes, and as chairman of the Board in the Mayor's absence, marshaled the votes, the men of the Board of Supervisors were mere political puppets placed in power by Ruef and extremely unlikely to have any influence in the community, politically or otherwise, after the expiration of one term in office. If a choice had to be made between attempting a conviction of the apparently respectable criminal, whose large profit from crimes of this character makes him the more powerful to prey on society, and a mere pawn on the political chess board whose capacity for harmfulness would end with the exposure of his criminality, there could be no question that the people should choose the former. A democracy's permanency rests entirely in the belief of the common man that is the best form devised to protect him from the rapacity and selfishness certain to develop in some of his more powerful neighbors. In such a government, the choice by the prosecuting officer of the weak agent in the commission of a crime, because of the facility of his conviction, and the avoidance of the more arduous contest with his dangerous and resourceful master, is simply preparing ground for anarchy or revolution.

It was urged that both the receivers of the huge profits of the briberies and their tools in office could have been convicted, and that it was unnecessary to give immunity to so many of the Supervisors. The District Attorney's explanations of the reasons for his action appear to amply justify his choice of the former course. Gallagher, the leader of the Board, had paid the bribes to each Supervisor without witnesses. He was a necessary connecting link in the chain from the profiting corporation to the vote case in the Board, and without him there was no method of discovering from whom he received the money. Gallagher refused to confess unless immunity were granted to all Supervisors, and held firmly to this position.

Although the District Attorney had trapped several Supervisors in other briberies, in which Gallagher had not participated, and had these guilty persons as witnesses against him, still as he could be tried for bribing but one Supervisor at a time there could have been but this one witness contradicting his oath that he had not bribed, while a majority of the Board, in all likelihood, would have sworn that they voted for the ordinance without promise of compensation. This would have been an extremely difficult case to win, and, even if won, there was no guaranty that Gallagher would have made himself the State's witness against the person or persons supplying money to him.

Aside from this doubtful utility of a conviction of Gallagher, there was the long time that would necessarily be lost in his trial. All the city's offices were in the hands of Ruef and Schmitz. The election commission which would have had charge of the election in the succeeding November could have been remodeled to do the bidding of the Mayor and would have made fraudulent voting extremely difficult of detection. The Chief of Police was their ardent supporter and threw the whole strength of a not unwilling department to cover up the crimes and hamper the work of the District Attorney's detectives.

It appeared essential for the success of the investigation that the police force be made at least neutral. This could be done only by the removal of Mayor Schmitz on conviction of some of his Board of Police Commissioners. The Supervisors alone have the power to fill a vacancy in the Mayor's chair, and it is reasonable to suppose that, if the members of the Board were under indictment and being prosecuted, they would not elect a Mayor who would take from them the active support of the Police Department.

The Supervisors' testimony gave the Grand Jury the facts as to the passing of the ordinances, the payment of the money by Gallagher to various Supervisors, and the payment of the money to Gallagher by Ruef. The chain of evidence, however, stopped at Gallagher's testimony that Ruef paid him the money in all but the Pacific States Telephone briberies, and no further evidence was discovered against the Mayor in connection with the French restaurant extortions.

The question then arose as to the advisability of treating with Ruef to secure the evidence as to the method by which the moneys came from the quasi-public corporations. Ruef was a man of very different caliber from the Supervisors. He was a graduate of the State University, had for many years been recognized as a lawyer of high skill though questionable practice, and was the organizing brain of the corruption of the Schmitz regime. He was a dangerous man to leave at large without the felon's brand on him, and yet it became apparent that, without this one man's testimony, the many bribe-givers whose enrichment by the large profits of such undertakings made them equally, if not more, dangerous to society, would not only escape the penalty which was their due, but that even their names would not be discovered and written in the "detinue book" of the city's suspicious characters.

Besides, without Ruef's assistance, the conviction of Schmitz, with the resultant change in the Mayoralty, the police and other municipal boards, seemed impossible. The District Attorney had the choice in this dilemma. He could leave the Mayor and his administrative boards in power, discover nothing regarding the profit-takers from the briberies, and content himself with a mere change in the Supervisors and a long term of imprisonment for Ruef, or he could reasonably expect the conviction of the Mayor, the cleaning up of the city government, the obtaining of a complete revelation of the grafters "high up", as well as "low down", and the possible conviction of some of them.

The District Attorney chose the latter alternative, and bargained with Ruef. The negotiations covered many weeks and were carried on through the District Attorney, his assistant, Mr. Heney, and Detective Burns for the people, and Ruef, and Rabbi Nieto and Rabbi Kaplan, both being clergymen of Ruef's faith. Sometimes all these men met together, sometimes not more than two were present at the negotiations. The terms offered on each side varied from time to time, as well as points of view of those of the same side, all of which led to considerable confusion. A written contract was finally signed, whereby Ruef agreed to tell fully and unreservedly all he knew of all the briberies and to plead guilty to certain of the French restaurant extortion cases, and the District Attorney agreed to use the power of his office to procure him immunity as to the other charges. This document was placed in the joint keeping of Detective Burns, and, at first, one of the rabbis, and later the other.

Mr. Ruef and Rabbi Kaplan and Rabbi Nieto all insist that the written agreement did not contain the entire contract and that the clause in it reserving the French restaurant case from the immunity agreement was a mere sham. The real agreement they claim was that Ruef should later be allowed to change his plea to "guilty" in the latter case to "not guilty", and then the action should be dismissed. Schmitz was convicted very largely on Ruef's testimony against him. Neither rabbi protested when Ruef led the jury to believe that the agreement was not for a complete immunity but merely that the District Attorney and Mr. Burns were to use their efforts to procure leniency for him. In the succeeding campaign for District Attorney, Mr. Heney repeated said in answer to certain assertions that complete immunity had been given Ruef, that it had not and that he would send him to prison, and his attitude very largely determined the result of the election. Yet the rabbis made no public disclosure of any agreement as to complete immunity.

All the persons representing the government, including Mr. Langdon, Mr. Heney and Mr. Burns, assert that the rabbis repeatedly asked for complete immunity, but it was at all times refused. They said that the written contract contained the actual agreement reached with Ruef and with them as Ruef's agents. Applying the common sense rule that persons do not make specific written provisions in a contract when they intend the exact contrary, and giving the clergymen the benefit of the presumption that they would not have connived at or remained mute under the suborned conviction of Schmitz, or an election of a District Attorney on fraudulent misrepresentations, we are driven to the conclusion that the agreement for entire immunity was never entered into. the confusion in the negotiations was sufficient to warrant the confusion of memory which later led to the rabbis' contradiction of the written agreement.

We have mentioned this controversy, not because we would have regarded it as an error to grant Ruef complete immunity of necessary to expose the corruption amongst the profit takers, and to oust the Mayor and his Commissions, but because it raises a serious question of good faith on the part of the people's representatives, both political and religious. If, in order to convict Schmitz and elect the District Attorney, the officers of the government and these ministers of religion were deliberately concealing the true nature of the agreement and permitting Ruef to lie about it to the jury, and Heney to lie about it to the people, then surely the hope of better things was a mere will-o-the-wisp.

Schmitz was convicted on June 13, 1907, and subsequently the Supervisors, under pressure of the District Attorney, declared his office vacant and elected Edward R. Taylor, Dean of the Hastings College of the Law–a branch of the State University–to fill the vacancy. The Supervisors then resigned, one by one, the vacancy in each case being filled by an appointee of the Mayor.

This extraordinary proceeding, made possibly by the wise provisions of the city charter, and which changed the entire executive and legislative personnel of the city government, was ratified by the people in the election in the following November. In that campaign the Mayor and practically all the Supervisors were elected with large pluralities to the offices to which they had been indirectly appointed by the District Attorney. This election was more significant of the attitude of the mass of the people on the prosecution of the bribers, as the new Board of Police Commissioners had given orders to the police to assist the District Attorney; and the Supervisors had voted large sums for the expenses necessary to carry on his work.

The public service corporations of San Francisco have, for a long time, furnished the State with special prosecutors in criminal cases where their interests have been concerned. Prior to and during the period of the graft prosecutions the following attorneys assisted in prosecuting various crimes on behalf of the corporations set opposite their names:

James F. Sheehan, United Railroads
Frank P. Kelly, Southern Pacific Company
J.P. Coghlan, San Francisco Gas and electric Company
Twamley & Smith, Pacific States Telephone and Telegraph Company.

When indictments were found against the officers and employees of some of these companies, a great clamor was raised on their behalf that it was an outrage for the District Attorney to accept assistance from Mr. Spreckels and other private citizens.

Mr. Calhoun, the President of United Railroads, whose attorney Mr. Sheehan had assisted the District Attorney in dozens of criminal cases, addressed a pamphlet to the chairman of this committee, in which he asks, among others, the following question:

"3. Can a private citizen contribute money to help the city's prosecuting officers in the investigation and trial of a criminal charge?"

Dean Wigmore of the Northwestern School of Law, was sent a similar pamphlet and answered the question in the following language:

"Answer: He can; and it is stupid even to put the question. Under the original English jury-system (of which you receive the benefit), and until the last century, the private citizen was usually obliged to pay the prosecuting expenses; for the State did not, and crime went unpunished otherwise. If nowadays, in a community, crime is again likely to go unpunished without the help of private citizens, there is no reason why we should not revert to the old system. As for Mr. Spreckels (the private citizen here named by you), his name should be held in honor, and will ever be, as against anything your pamphlet can say. As for Mr. Heney and his receipt of $47,500 officially and `large sums of money additionally' from Mr. Spreckels, it may be presumed that he spent most of it on trial expenses, and did not keep it as a personal reward. But even if he did so keep it, let me register the view that he is welcome to all this–and to more–if anybody will give it and that no money compensation is too high for such rare courage."

We feel we can add nothing to Mr. Wigmore's reply, save the suggestion the practice had the long standing precedent of Mr. Calhoun's own company.

Of course, if the purpose of assisting the Government is primarily to enmesh in the toils of the law entirely innocent persons for the purpose of private malice, or to assist in the confiscation of their properties, the act becomes improper. This is equally true, whether the prosecutions are initiated and carried on by private persons or public officials.

The fact that Mr. Spreckels and Mr. Phelan were among the organizers of a corporation to establish a railway system in San Francisco has been seized upon as evidence of a plot against the United Railroads. The articles of incorporation of this new company were filed on April 17, 1906, several months after the coterie of men who started to investigate the Schmitz-Ruef regime had come together.

The by-laws of the company provided for the establishment of the underground system and for a sale of the road to the city for a reasonable price, over and above cost and risk. The date of filing their articles is significant, as it is within a month after Mr. Calhoun had broken off with the Committee of Improvement and Adornment, and had abandoned a tentative agreement to change his roads on Sutter and Market streets to the underground system. During this period these gentlemen took the necessary steps to organize their company; with the avowed purpose of proving the untruth of Mr. Calhoun's assertion that an underground system could not be run profitably on an honest capitalization.

The fact that every effort had been used to persuade Mr. Calhoun to adopt the underground system in negotiations extending over weeks of time; that the proposed road was to use this system as a demonstration of its feasibility; that they contemplated a sale to the municipality at a reasonable figure; that they lent the same assistance to the indictment and prosecution of officers and employees of nearly every other quasi-public corporation in the city; and, above all, that they never attempted to attack the franchisesof the United Railroads, satisfied your committee that the ruin or embarrassment of that company played no part in the plans of the men contributing to the funds of the prosecution.

No doubt the exposure of the corruption during Mr. Calhoun's management has made the renewal of the franchises of the United Railroads very unlikely. If the value of the stocks of the company rests on the hope of renewal, it will unquestionably depreciate. It is absurd to say, however, that is the exposure of corruption and not the corruption itself which causes this depreciation. To do so is to assert that business organizations may properly be capitalized on the theory that our government is too week even to discover that crime is being committed.