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The committee's action was vigorously denounced by the proponents of the measure. These proponents, however, finally consented to a compromise, by which the percentage was fixed at 33 per cent. With this percentage, the measure finaly passed the Senate without a dissenting vote.164
But the Assembly refused to accept the increase, and by amendment restored the percentage to the original 25 per cent. The Senate accepted the change, and with the Recall percentage the same as when the measure had been originally introduced, the Black bill went to the Governor for his signature.165
The Initiative and Referendum provisions of the measure require a petition signed by 30 per cent. of the electors, as shown by the last preceding general municipal election, to call a special election to vote upon an initiated measure. If the proposed law is to be voted upon at a general municipal election, a 15 per cent. petition is sufficient to have the measure submitted to the elect
164 Senate vote on Senate Bill 360 was as follows:
For the bill-Avey, Bell, Bills, Birdsall, Black, Boynton, Caminetti, Cartwright, Cassidy, Curtin, Cutten, Finn, Gates, Hare, Hewitt, Holohan, Hurd, Juilliard, Larkins, Lewis, Martinelli, Regan, Roseberry, Rush, Sanford, Shanahan, Stetson, Strobridge, Thompson, Tyrrell, Walker, Welch, Wolfe and Wright-34. Against the bill-None.
165 The Assembly vote on Senate Bill 360, giving the Initiative, Referendum and Recall to municipalities of the fifth and sixth classes, was as follows:
For the bill-Beatty, Beckett, Benedict, Bennink, Bishop, Bliss, Bohnett, Brown, Butler, Callaghan, Cattell, Clark, Coghlan, Cogswell, Cronin, Crosby, Cunningham, Denegri, Feeley, Flint, Freeman, Gaylord, Gerdes, Guill, Hamilton, Hayes, Held, Hinkle, Hinshaw, Jasper, Joel, Judson, Lamb, Lynch, Lyon of Los Angeles, Lyon of San Francisco, Maher, McDonald, Mendenhall, Mott, Polsley, Preisker, Randall, Rimlinger, Rodgers of San Francisco, Rogers of Alameda, Rosendale, Sbragia, Schmitt, Slater, Smith, Stevenot, Sutherland, Telfer, Tibbits, Walsh, Wilson and Young -58.
Against the bill-Jones-1.
ors. To compel the submission of an act that has been passed by the municipal legislative body to a referendum vote of the city, a 25 per cent. petition is required.
The Held bill (Assembly bill 100) follows the same general provisions of Senate bill 360, except that the Held bill applies to counties instead of to municipalities. Under the Held bill, a 20 per cent. petition, estimated on the vote for Congressman cast in the county at the last preceding Congressional election, is required to call a special election to pass upon an initiated measure; a ten per cent. petition is sufficient to have an initiated measure submitted at a general election.
The percentage required for a petition to submit an act of the Supervisors to a Referendum vote, or to invoke the Recall of a county official, is fixed, in both cases, at 20 per cent.
The Held bill passed both Senate and Assembly without a dissenting vote.
The Ineffective Wright Railroad Regulation Law, Which Had, at the 1909 Session, Been Substituted for the Stetson Bill, Was Repealed, and the Eshleman Bill, Based on the Stetson Measure of 1909, Passed— Constitutional Amendments Making Radical Changes in the Provisions Dealing With the Railroad Commission and Its Work Were Submitted to The People.
The key to the record of the 1911 Legislature on railroad regulation is found in Governor Johnson's inaugural address.
"I beg of you," said Johnson, "not to permit the bogie man of the railroad companies, 'Unconstitutionality,' to deter you from enacting the legislation suggested, if you believe that legislation to be necessary; and I trust that none of us will be terrified by the threat of resort to the courts that follows the instant a railroad extortion is resented or attempted to be remedied. Let us do our full duty, now that at last we have a Railroad Commission that will do its full duty, and let us give this Commission all the power and aid and resources it requires; and if thereafter legitimate work done within the law and the Constitution shall be nullified, let the consequences rest with the nullifying power."
The members of the 1911 Legislature did not permit
themselves to be deterred by the bogie man, "Unconstitutionality"; they were not terrified by the threat of resort to the courts; 166 they did what men thoroughly familiar with law governing railroads, and the constitutional provisions affecting railroads, declare to be legitimate work within the law and the Constitution. The 1911 Legislature put upon the California Statute books what has been declared to be the most comprehensive railroad regulation measure that has ever been enacted.
The measure was drawn by Railroad Commissioner John M. Eshleman, Attorney-General U. S. Webb, and State Senator John W. Stetson, author of the Stetson 167 bill of 1909, upon which the 1911 measure is based. The three were assisted by William R. Wheeler, the railroad expert, and Seth Mann, who has long acted for California shipping interests in litigation for reasonable freight rates. Eshleman directed the work of preparing the bill, he, himself, writing the greater part of it. The measure became known as the Eshleman bill.
With the exception of Mr. Wheeler, each of the five framers of the Eshleman act is a lawyer; each has made a special study of railroad legislation; each has exceptional knowledge of the laws governing transportation
166 On January 30, 1911, the Sacramento Bee printed a striking cartoon. It represented the members of the Supreme Court in session, with several documents on the floor in front of the bench. One was labeled "Schmitz decision"; one, "Ruef decision," referring to the order for a rehearing in the Ruef_case which was then agitating the State; one, "R. R. decision." Before the bench was a plain citizen, with a hook labeled "RECALL." Justices Henshaw and Lorigan are shown as pulled from the bench with the "Recall" hook; Melvin as half rising from his seat. The caption was: "WILL THIS HAPPEN IN 1912?"
167 For the manner in which the Stetson bill was defeated, and the Wright Railroad Regulation bill-which Attorney-General Webb has humorously described as the Wrong bill-was passed, at the 1909 session, see "Story of the California Legislature of 1909." The Wright law was repealed at the 1911 session.
companies, and keen understanding and appreciation of the limitations upon a State legislative body called upon to enact a railroad-regulating statute.
This is particularly true of Railroad Commissioner Eshleman, who has given the laws governing railroads careful study. Not only has Commissioner Eshleman studied and weighed the constitutional provisions and restrictions of his own State, governing railroad regulation, but he is thoroughly familiar with the railroad law and decisions of other States, as well as with the rules and the decisions of the Federal Courts and the Interstate Commerce Commission.
It is not an exaggeration to say that no attorney in California is more soundly versed in railroad law than is Railroad Commissioner Eshleman. It is equally true that no judge on the Supreme Bench-and the same probably holds true of the judges of the several Appellate Courts has had better opportunity to inform himself upon questions of railroad law. The people of California, then, have had the advantage of the best legal talent in the framing of the Eshleman railroad regulation law.168
And to every point in the Eshleman bill, Commissioner Eshleman and his associates applied the test of constitutionality. The best legal authorities in California on the subject of railroad regulation are of the opin
168 Governor Johnson in his address at the State University commencement exercises (1911), as reported in the San Francisco Call, took occasion to say of Commissioner Eshleman:
"The University of California has done much for the State, and its future rests largely on what its graduates will accomplish. Here is a university medalist of twenty-seven years ago on my right, and there before me is the hope of the State for the next four years, in the president of the Railroad Commission, John Eshleman, who is a graduate."