Judge Andrew R. Schottky
Born: August 17, 1887 in Georgia
Died: February 24, 1980 Sacramento, Cal.
Boyhood Days in Los Banos
The town of Los Banos started in 1890 when the Southern Pacific Railroad's West Side line was finished. The Southern Pacific depot was built on H street and Sixth. Miller & Lux built a one story brick building at Sixth and “I” for a general merchandise store in the corner of which was the Miller & Lux office. Miller & Lux also built a three story brick hotel on the northwest corner of “I” and Sixth street with a saloon on the corner. There were a number of small, wooden buildings on “I” street occupied by small stores among which was the harness and saddlery shop of Theodore Schottky. A Methodist church was built at Fifth and “I” streets and a Catholic church at Fifth and “K” and a two story building on “H” street. Two blacksmith shops were built and quite a few saloons were built on “I” street between Seventh and Fifth streets, notably one by John Olson and one by Ben Orognen. Quite a number of residences were built but most of the town lots were vacant. The Los Banos Enterprise was established by Willard Beebe.
My folks lived in living quarters at the rear of the harness shop on “I” street and only two blocks from the school building. The first four grades were on the ground floor and the upper grades were on the second floor. F. R. Green was the principal of the school, and there were four other teachers at first. I recall Hattie Brown, Kate Davis and Fanny Howell as teachers.
My early boyhood companions were Willard (Dickie) Gardner whose folks had a small dairy of 14 cows which were pastured in an alfalfa field on the edge of town, John Bareilles, Lawrence Muth, Cyrus Abbot, Grover Wilson, Bob Cothran, Skinny Wilson and Joe Toscano. Los Banos was a small town and most of the boys had plenty of leisure time. This leisure time was spent by the boys in different ways. Some went fishing in the old canal and in Los Banos creek. Some went swimming in the swimming hole in the irrigation ditch that ran by the gum trees of the western edge of town. Others gathered bird eggs and built up a collection of linnet, robin, oriole, blackbird, lark, swallow, dove, butcher bird eggs and many others by blowing the contents out of the shells by inserting pin holes in each end and then packing the shells in sawdust. I had a large collection and quite a few boys did. There was a county bounty of two cents per tail on squirrel tails, and I and a number of others had squirrel traps which we placed in squirrel holes. We gathered many squirrel tails in this way. In rainy seasons some of us would gather mushrooms which were quite plentiful and sell them to the restaurants for 25 cents for a five pound lard bucketful. Money was scarce, and we were always trying to earn a little spending money. I sometimes cleaned up people's yards on Saturdays and earned 25 cents that way. I also gathered small, flat whiskey flasks which were left in the alleys by the Miller & Lux cowboys after their weekend drinking bouts and sold them back to the saloons for two for a nickel. The saloons sold them to people who put nipples on the bottles and used them to feed their infants.
My closest boyhood chum was Willard (Dickie) Gardner whose folks had a small dairy, and for several months one winter I stayed all night with Dickie. We got up at 4:30 a.m. and went to a pasture on the edge of town, milked seven cows apiece, strained the milk into five gallon cans, loaded them on a buckboard and delivered milk around town, using a quart cup to pour milk into five pound lard buckets.
We then went to the Gardner home, unloaded the rest of the milk, washed the cans, had breakfast and went to school. Then at 4:00 p.m. we milked the cows again. For this work I received 20 cents per day or $1.40 per week which kept me in plenty of spending money.
When I was in the seventh grade, I used to work after school and on Saturdays setting type on the Los Banos Enterprise which was run by Willard Beebe in a little shop on the corner of “I” and Fifth streets. I was paid five cents per stick, and a falley held 12 sticks. In the summer vacation I earned $1.50 per week, and times were so hard I had to loan Mr. Beebe five dollars. Mr. Beebe was an inveterate tobacco chewer and bought plugs of Battleaxe and Star tobacco. A plug contained six cuts and cost fifty cents. Saturday was press day and we ran off about three or four hundred copies on the old Washington press. I ran the roller over the forms of type to ink them, and Mr. Beebe ran the press over the type forms. There were four pages to the Enterprise, but the outside pages were printed elsewhere and had many patent medicine and other advertisements which paid for them. The inside two pages contained local advertisements and local news items.
One press day – just after noon – Mr. Beebe had to have some more chewing tobacco, so he sent me uptown to get three cuts of Battleaxe chewing tobacco. When I got to the store to get the tobacco, there was considerable excitement there because the man had come over from the Western Union office in the Southern Pacific depot with the report that President McKinley had been shot fatally at the Exposition in Buffalo, New York. I sensed at once that Mr. Beebe should have this information before we went to press, so I hurried back to the Enterprise office and told Mr. Beebe what I had heard. He immediately put on his coat and rushed uptown to get the news. He came back half an hour later and wrote a five line story about the assassination in big type. We then went to press. The Los Banos Enterprise was one of the first country newspapers to print this news.
When I was still in Grammar School, John Bareilles organized a baseball team called the Gilt Edge team after the name of the Sacramento brewery which furnished our uniforms. We had frequent team games with other teams. John was the catcher and I played second base.
I graduated from grammar school in 1901. Cyrus Abbott, John Bareilles and Willard Gardner also graduated but did not go on to high school. Cyrus Abbott went to business college in Oakland, Willard Gardner's family moved to Imperial Valley where Willard became a successful farmer, and John Bareilles stayed at his father's hotel playing and studying music. He was a natural born musician and, if his father had had the vision to give him a musical education, he could have become the head of a college music department instead of a village band leader.
The West Side Union High School was established in 1897 and took in the territory from Crows Landing to Dos Palos. When I entered high school in 1901, there were about 40 students. There was a four year academic course and the two year commercial courses. In the academic course with me were Alice Stockton, Hugh McClelland, Ethel Dwis, Letha Smith, and Gordon Lowe. A number of students came from Dos Palos on the morning Southern Pacific freight train. D. W. Lindsay was principal for my first two high school years, and George N. Huntting was my principal in my junior and senior years. I did not take too much interest in my first two years, but in my junior year I began to give some thought to my future due largely to the encouragement and influence of Miss Magdalene Ferrier who seemed to think that I should study law. She taught History and Latin and Mr. Huntting taught English and Miss Emma Hawkins taught Mathematics and Physics. All three were able and conscientious teachers and inspired me to try to make a future for myself. Professor Huntting was a most erudite English teacher and deeply versed in the classics. He drilled his pupils in the classics and I memorized much of them.
I have always been grateful for the thorough drilling in the classics that I received from Professor Huntting, who later became head of the English Department of Fresno State College, and have often wished that my children and grandchildren could have had the benefit of the same training. Miss Ferrier was a very fine teacher, and I gained much from her courses in History and Latin.
Several years before when I was still in grammar school, a relative of my good friend, Billy Stockton, came to Los Banos and gave lessons in elocution. I became one of her pupils and, because I showed some aptitude in reciting, she had me recite at numerous local gatherings and I gained quite a reputation as an elocutionist. I acquired that habit of memorizing and developed a retentive memory which was of benefit to me in my later career. In high school I often made speeches, and in my senior year I was elected president of the student body.
While I was in high school I became acquainted with Henry Miller who was known as the Cattle King because his ranches were all over the State. His headquarters was in San Francisco, but he made frequent trips to the San Joaquin valley to inspect his ranches and other property. He was a most remarkable man who had come to America from Germany as a young butcher and had, by his ability, industry and foresight, built up a large fortune. His career is well described in the book written by Edward F. Treadwell entitled, “The Cattle King.” On one of his visits to Los Banos I was employed to ride in the team driven by one of his foreman to open some of the numerous gates we had to go through. I was a talkative boy and tried to talk to Mr. Miller as we rode along. He did not seem to be interested in my conversation as his mind was on his ranch business. He did not tell me not to talk so much but, at the end of the day when we got back to the headquarters ranch at Canal Farm, he gave me a dollar and said to me, “Andrew, you are a smart boy but I want to give you some good advice – you talk too much.” My good wife has often said to me that I would have been better off if I had paid more attention to that advice.
Miller & Lux owned the general store, the lumber yard, and the butcher shop and their office kept the accounts for these businesses. During vacation I sometimes worked in the office and entered the various charges on the different accounts. This was all done in longhand, and there were no adding machines. There was no bank in Los Banos and if anyone wanted to send money to a wholesale house out-of-town, he could do so by buying a Miller & Lux bullhead draft which was issued by the local Miller & Lux office.
Mr. Miller was a most interesting man. He usually sat at a desk in the office where I worked and anyone wanting to see him personally could talk to him there. I could hear the conversation and would listen to it usually. I remember that one day Mr. Safston, who was superintendent of Santa Rita Ranch, came to see him and reported that some water had escaped from one of the firm's ditches and had flooded the farmer's land and that the farmer wanted some damages. Mr. Safston said that we should refer it to the lawyers and engineers. Mr. Miller said, “Red, you can tell if we damaged him, and if we did you settle with him. Don't refer to the lawyers and engineers. Hell is full of lawyers and engineers.”
Another time a man who had bought one of his ranches a couple of years before came to see him and said, “Mr. Miller, I bought the Flow Camp from you a couple of years ago. I did a lot of work on it and I like it, but my wife is not well and wants to go back to our old home in the East, and I want you to take the place off my hands.” Mr. Miller said, “Yes, I know you bought the ranch, and it is a good ranch. How much did you pay for it?” “Twenty thousand,” the man replied. Mr. Miller then said, “I'll give you $18,000.” The man said, “Mr. Miller, I am astonished. I paid $20,000 and have improved it some, so I ought to get back what I paid for it.” Mr. Miller then said, “Listen, my friend, and I will give you some good advice. Buying and selling are two different things.”
pg. 6 1/2
Los Banos at the turn of the century was what might be termed a wild and wooly town. The population was about 300, and there were about 23 saloons. The Miller & Lux ranches employed a large number of laborers, mostly cowboys, and every payday they would come into town to celebrate on Saturday and Sunday nights. The sidewalks were wooden, and there were cracks between the boards. There was about two or three feet under the sidewalks, and a number of boys of the town would get under the sidewalks and gather up some loose coins which were dropped on the sidewalks and through the cracks by the many drunks who sometimes sat on the wooden benches at the edge of the sidewalk. My folks' harness and saddlery store was in the main block where the saloons were, and I could get under our store and go under the sidewalks and usually gathered up a few coins which were quarters, half dollars or silver dollars.
Los Banos, at the turn of the century, had a population of about 300 people, scattered over the townsite. Most of the city lots were vacant and covered with green grass in the rainy season. I recall that many mushrooms grew and, as a boy, I used to gather them in buckets full and sell them to the two restaurants in town. I would get 25 cents for half a gallon. The market was limited, but it did bring in a little pocket money which was hard to get in those days.
There were black walnut trees growing along the roadside between town and the Canal Farm. Mrs. Gysin, an aunt of the present mayor, Roy Lower, ran a bakery and candy store on I street. She wanted some black walnuts to use in making candy and hired me to gather up black walnuts and crack them for her. I gathered a great many and cracked them thereby adding to my spending money. If you have ever cracked black walnuts, you know that it is much more tedious job than cracking English walnuts.
Squirrels were quite a pest in Merced County and the Supervisors passed an ordinance to pay two cents for every squirrel tail. I had several squirrel traps and used to catch quite a few squirrels by placing the trap at the entrance to the squirrel hole. When I got 20 or 30 tails, I would turn them in to the Justice of the Peace and get a voucher that I could cash.
Los Banos at the turn of the century was a wild and wooly town. Its streets were unpaved and in the rainy season were full of mudholes and in summer were heavy with dust. There were wooden sidewalks along a good part of “I” street, and there were hitching racks in front of many of the business places to which people could tie their horses. The main part of town was on “I” street between Fifth and Sixth streets. The Miller & Lux store and office was on the northwest corner of “I” and Sixth streets, and other businesses on the north side of “I” were the bakery and candy store of Mrs. Caroline Gysin, several saloons and rooming houses, and the harness and saddlery shop of Theodore Schottky. The three story brick hotel run by Harry Thornton was on the northeast corner of “I” and Sixth streets, and James V. Toscano built a two-story general merchandise store near the southeast corner of “I” and Fifth street with living quarters in the upper story. A two-story hotel was built by Mr. Bareilles on the north side of “J” street between Sixth and Seventh, and the Bareilles family lived in the upper floor. There was a saloon on the ground floor. Edward Hoffman had a hardware store and plumbing business on the north side of “I” street between Fifth and Sixth, and Ben Orognen ran the Bon Ton Saloon on the same side of the street. There were other small businesses on “I” street.
There were a number of Miller & Lux ranches on the West Side. The main one was the Canal Farm with headquarters about a mile east of the town. The general superintendent had a residence there, and Mr. Miller usually stayed there when visiting ranches on the West side. There were living quarters for the vaqueros and other laborers who worked for Miller & Lux and a cookhouse with several Chinese cooks and a dining room. There was also a blacksmith shop and a harness shop. Many of the laborers were Italians who had come from Italy and those families had homes in town or in Badger Flat a few miles west of town.
In the foothills above Los Banos a number of Basque sheepmen had large sheep ranches and employed many Basque sheepherders. There were the Arburuas, the Gastambides, the Errceas, the Menjoulets and several others. On weekends Los Banos was a lively place with Miller & Lux cowboys celebrating in the saloons and the Basque sheepherders singing in the Basque saloons. Saturday night was usually a merry time.
The South Methodist Church in Los Banos had a very active Sunday School and some very dedicated Sunday School teachers. Mrs. Jacob Gardner, mother of Willard Gardner, one of my closest boyhood chums, was one of the teachers and Willard got me to attend. My folks were not church people, but my mother was glad to have me attend Sunday School which I did regularly and profited much from the religious instruction and became familiar with much of the Bible. I can attribute the fact that I have never ceased to be a member of the Church to the influence of my Sunday School teachers.
One of the men who encouraged me and whom I admired very much was William J. Stockton who was a blacksmith and also ran an undertaking parlor for many years. Billy Stockton had been a Supervisor and was also very much interested in sports, particularly prize fighting. His idol was Bob Fitzsimmons and through him I became quite interested in boxing. My favorites were Jimmy Britt and Tom Sharkey. Billy Stockton was a staunch Democrat and an enthusiastic follower of the peerless leader, William Jennings Bryan. He was also a very good public speaker and took part in political campaigns and delighted his audiences with his home spun humor. He was a great admirer of Henry Miller and praised him on many occasions.
The May Day picnics were started by Henry Miller in the late nineties. These were held at the Canal Farm. The meat was furnished by Mr. Miller who usually attended. Several steers were barbecued and families brought their baskets of food and ate in the shade of the eucalyptus grove. There were a number of contests, among them footraces, jumping contests and others.
People came from all over the West Side. It was a most enjoyable occasion and brought the people of various communities closer together.
While I was in high school, I became a member of the Epworth League Society and attended their meeting in the Methodist Church on Sunday nights. There meetings were very inspirational and instructive and prepared me for my activity in the Christian Endeavor Society years later in San Francisco and Merced.
The San Francisco Years 1907-1913
In August, 1907, I boarded the Southern Pacific train in Los Banos and went to San Francisco to enroll as a student in Hastings College of the Law, the law department of the University of California. Dr. Edward Robinson Taylor was Dean of the college which was located in the buildings of the Cooper Medical College at Webster and Sacramento streets in San Francisco. Due to the great earthquake of 1906, it was necessary to move the college from its former downtown location. Dr. Taylor taught Real Property and Equity; Walter Brown taught Contracts; James A. Ballen and Robert W. Harrison taught Criminal Law; and Louis T. Hengsler taught (blank)
It was a most interesting experience to meet other students who came from different parts of the State. I became particularly well acquainted with A. Frank Bray who came from Montana, Theodore P. Wittchen who came from Oakland, William S. Solari who came from Columbia, Albert Picard of San Francisco, and Adolph Tiscornia who came from Calaveras County. I lived in a boarding house at 2411 Broadway about seven blocks from the college. There were classes of about seven or eight hours a week, and I spent several hours a day studying as I was deeply interested in all the subjects. I had a room on the top floor of the boarding house which was in an old residence on Broadway, and I could look out of my window and see the lighthouse on the bay.
Dr. Taylor, our Dean, was a most interesting character although somewhat elderly. He was a doctor of medicine who became a lawyer and in 1907 was chosen Mayor of San Francisco by the Board of Supervisors after Mayor Eugene Schmitz was ousted as a result of the Graft Prosecutions. He was elected to a two year term in 1907. He was also a poet of some distinction. The other instructors were all able and prominent members of the Bar.
During my first year at Hastings, I had the misfortune of having my savings of about $800, which I had deposited in the California Safe Deposit and Trust Company to get a higher rate of interest, seriously impaired by the failure of the trust company. I eventually recovered only a little more than 50 percent of the amount.
During my first year at Hastings I attended a number of important jury trials and heard many arguments by well known lawyers. Among them were D. M. Delmas, Earl Rogers, Samuel M. Shortridge, A. A. Moore, Francis J. Heney and Hiram W. Johnson. I also attended church services at Calvary Presbyterian Church and worked as an usher at the Alcazar Theatre occasionally.
I went home to Los Banos at the end of the college year and was happy to receive word that I had passed in all the subjects. I returned to San Francisco for my second year at Hastings and roomed at (blank) Street with Hugh McClelland who was attending Cooper Medical College. We had graduated from Los Banos High School in the same class and were very close friends. I was very much interested in all my courses at law school and put in many hours studying and also attend some of the trials in the Superior Courts. Most of our classes were in the new Whittel Building downtown instead of at Cooper Medical College. I sometimes played tennis at Golden Gate Park and even played a little with Maurice McLaughlin who became a Wimbledon star a few years later.
At the close of the college year, I returned to Los Banos for the summer vacation and worked in my folk's store until I went back to San Francisco for the final year at Hastings. Hugh McClelland went to live in a fraternity house, and I lived in a boarding house on California Street near Fillmore. Most of our classes were held in the newly built Whitcomb Hotel. It was a very interesting year and I spent many hours studying. At the end of the term, I was successful in passing all of the final examinations and received my diploma in the University of California graduating exercises held in the Greek Theatre in Berkeley. At that time graduation from Hastings entitled one to be admitted to the State Bar and Dean Taylor made a motion in the First District Court of Appeal for our admission.
The motion was opposed by a bitter opponent of Dean Taylor but was granted by the Court, and I was admitted to the Bar on June 1, 1910.
After being admitted to the bar, I decided to remain in San Francisco and had a desk in the office of Charles C. Boynton in the Mills Building. I did some research work for Mr. Boynton for which I received a small salary, but my income was very small as I had practically no law business of my own.
I became active in the Howard Presbyterian Church located at Oak and Baker Streets and in the Christian Endeavor Society there which we called the Uplift Society. Some other members were J. Coit Allen, David Graham, Jessie Laflin, and Isabel Wilkie. William Nat Friend was the pastor and was a fine minister but not an inspiring pulpit man. The church was not located in a growing section of the city, so it was quite a struggle financially.
In the elections of 1910, Woodrow Wilson was elected Governor of New Jersey and began to attract national attention. I was greatly impressed by his speeches and writings and when he was nominated for President on the Democratic ticket in 1912, I joined his campaign committee in San Francisco and made many speeches supporting his candidacy throughout Northern California. Naturally I was elated when he was elected.
During the time I was in San Francisco, I did a lot of reading. I read many books of Herbert Spencer, the great phisosopher (sic), the works of Rudyard Kipling and other writers. I made a careful study of the works of William Shakespeare and wrote out many famous passages from his plays and memorized them. I also read the Spell of the Yukon by Robert Service and the poems of many of the great poets including Longfellow, Whittier, Tennyson, Byron, Keats, Pope, Wordsworth and others. This made me very familiar with the classics, and this was very helpful to me enriching my later speeches and courtroom jury arguments.
I had a very pleasant room on Dubace Street in the residence of Mr. Mulcrevy and spent many evenings reading.
In 1913 my brother, Theodore, became very ill and died. His funeral was held in Los Banos where my parents lived. He was 16 years old and a fine looking, intelligent boy. His death was a heavy blow to me as well as to my parents and had much to do with my decision to leave San Francisco and open a law office in Merced. I felt that I was not making much progress in San Francisco and that I had a better chance to build up a law practice in my home county and also, I would be nearer my parents. So in the summer of 1913, I went to Merced and looked into the situation. I received much encouragement from leading citizens and decided to locate in Merced.
I had enjoyed living in San Francisco and knew I would miss “the queenly City of St. Francis seated by the Western Sea.” After leaving San Francisco, I wrote a poem entitled, “The City by the Western Sea,” the last stanza of which was as follows:
“Oh you're just the grandest city on this little sphere called Earthquake
And you have the rarest beauty and the most refreshing mirth.
May Dame Fortune smile upon you, may she e'er be kind to thee
Queenly City of St. Francis, seated by the Western Sea.”
I arrived in Merced on the 9:00 p.m. Sante Fe train from San Francisco on October 1, 1913 and was met by an old schoolmate, John P. Bareilles, an orchestra and band leader. I went to the Robertson Rooming House at the corner of 17th and L streets and rented a room.
The next day I went to the office I had rented a few weeks before in the Shaffer Building at the corner of 17th and M streets. I then had my office furniture and law books, which had been shipped from San Francisco, delivered to my office and spent a day or two arranging them. I had a phone installed and my name painted on the door and was ready for any business that might come my way. I also arranged to get my meals at Mrs. Meany's Boarding House on 18th street.
The following Sunday I attended services at the Central Presbyterian Church then meeting in the old Cumberland Church building at 19th and L and met a number of people who welcomed me cordially as I was a member of Howard Presbyterian Church in San Francisco. I then joined the Central Presbyterian Church on letter from Howard Church. There was an active Christian Endeavor Society in the church, and I attend its meetings. The church had called Reverend Harvey T. Babcock who was pastor at Salem, Oregon, but he did not arrive in Merced for several months. After he arrived plans were made to construct a new church building at the corner of 20th and L.
The Prohibition movement was sweeping the nation and Merced, like so many other valley towns, had a very active branch of the Anti-Saloon League. Most of the church people were in favor of outlawing the saloons, and I acted as their legal adviser which, of course alienated me from the so-called “Wets” - particularly since I was a teetotaler.
1914 was an election year and the incumbent District Attorney was not a candidate for re-election and my friends urged me to become a candidate.
I announced my candidacy and four other attorneys also announced. The saloons actively opposed me, and I made speeches all over the county on the “Saloon in Politics.” The primary election was in August and I was high man, but in the November election I was beaten by two or three hundred votes. However, the campaign made me known throughout the county and helped my law practice.
In the year 1915 I handled a number of important legal cases which enhanced my reputation as a lawyer. One was against the City of Merced and the other was against the County of Merced. As legal counsel for the Merced Anti-Saloon organization, I had prepared an initiative petition for the submission to the voters of the City of Merced of an anti-saloon ordinance. This was signed by a sufficient number of registered voters and filed with the City Clerk. The City Attorney ruled that the petition was insufficient for a number of reasons and advised the City Council not to call the election. I went to Sacramento and filed a petition for a Writ of Mandate to force the calling of an election. The matter was argued before the Appellate Court, and the Court ruled that the petition was sufficient and ordered the election to be called.
In the other case, the Board of Supervisors in December of 1914 passed an ordinance abolishing Judicial Township Number Eight upon the motion of the Supervisor from that district who had been defeated in the November election. The friends of the Justice of the Peace employed me to prepare a referendum petition which was signed by the requisite number of registered voters. The District Attorney advised the Board to ignore the petition, and the Board refused to call an election. I filed a petition for a Writ of Mandate in the District Court of Appeal at Sacramento and after a hearing the Court issued a Writ of Mandate ordering the calling of an election. My victory in these two cases and the publicity given to them were quite an asset to my law practice.
In 1917 the Board of Trustees of the Merced Union High School District decided to locate the new High School on two blocks between 17th and 19th streets and G streets.
They purchased the property and announced their intention to build. Immediately there was a great deal of opposition to locating the High School in such a small area in the city limits. Two leading citizens, John A. Robinson and W. A. Huffman retained me to take legal steps to prevent locating the High School on the proposed location. I checked into the matter and found that one of the trustees had an interest in the property. I then filed a suit to enjoin the trustees from proceeding. Superior Judge Ogden of Alameda County was assigned to try the case, and after a hearing he decided in my favor and enjoined the Board from proceeding. The new High School was afterward built across G street from the site the Board had purchased.
Another interesting case was one in which a widow, Emma Bartholomew, sued another widow, Lydia Grimes, to enjoin Mrs. Grimes from cutting the bank of the Fairfield canal and letting flood water come onto the land of Mrs. Bartholomew. The case was bitterly contested as F. W. Henderson was Mrs. Grimes' attorney, and he was a very able and aggressive lawyer. Judge Rector decided in favor of Mrs. Bartholomew. Because of the prominence of these two well-to-do widows, the case attracted a good deal of attention.
Another case that was of great interest because it vitally affected the new rice industry was the case of an Italian tomato grower named Pacini vs Tony Souza, a rice grower. Pacini had a ten acre farm on which he had been growing tomatoes for several years. Souza owned the adjoining land and planted a crop of rice on it and constructed a narrow drainage ditch on the boundary line. Rice growing requires that the land be covered with water for several months. This caused the water to come up under the ditch and greatly damage Pacini's tomato crop. Pacini retained me and I filed an action for damages and to enjoin Souza from keeping the water standing on his land. After a trial Judge Rector granted the injunction and awarded damages. The practical effect was that Souza could no longer plant rice on his land so long as it damaged Pacini's tomato crop.
I became quite active in Central Presbyterian Church and in the Christian Endeavor Society and became an officer in the Stanislaus-Merced Christian Endeavor Union which was made up of about twenty Christian Endeavor Societies in the two counties. Rallies were held in various towns in the district, an annual convention was held in the district, and a State convention was held once a year. The conventions were well attended and great interest was shown by the young people. I was elected President of the Stanislaus-Merced Union in 1916 and attended the State convention in Stockton that year.
In 1916 I became engaged to a very charming young lady who was also very active in Christian Endeavor and we were married on May 10, 1917, and we took a never-to-be-forgotten honeymoon trip to the Grand Canyon. After our marriage we continued our interest in Christian Endeavor and attended State Conventions in Riverside, Sacramento, and Long Beach. These conventions were attended by several thousand young people and were addressed by outstanding speakers of national reputation.
In 1918 I was persuaded to become a candidate for the State Assembly. My opponent was a mild mannered gentleman from the neighboring county of Madera. Madera County had not had an assemblyman for 25 years, and the people of that county united on their man. Merced County did not support me strongly enough due to the antagonism of the saloon interest, and I was defeated.
After our marriage we lived in an apartment in the Parkside Apartment on O Street, and early in 1918 we moved to the Harrel house at 20th and M Streets. Early in 1919 we purchased the home of Ed Sheridan at 243 22nd Street for $3000 and lived there until we built a house at 151 27th Street in 1936. Our daughter Miriam, was born on October 31, 1919; our daughter, Kathleen, was born on April 14, 1922; our son, Andrew R., Jr., was born on December 25, 1924. These additions to our family necessarily reduced our activity in Christian Endeavor, but we remained very active in Central Presbyterian Church where I was a member of the Session.
In 1916 I joined the Knights of Pythias Lodge in Merced and became Chancellor Commander in 1918. I was elected Grand Chancellor in 1928. In 1929 I joined the Masonic Lodge in Merced and was Master of the Lodge in 1938. I served on the By-laws Committee of the Grand Lodge for several years and also served on the Jurisprudence Committee.
My law practice gradually increased, and I was quite active in both civil and criminal cases. I was counsel for defendant in a number of important murder cases and was successful in securing acquittals in nearly all of them, and I acquired quite a reputation as a courtroom orator.
I also was counsel in a variety of civil cases including will contests, personal injury, injunction, water rights, and a number of others.
I became quite active in Republican party politics and was chairman of the Merced County Central Committee and a member of the State Central Committee. In 1926 I was chairman of the C. C. Young for Governor committee for Merced County, and we carried the county both in the primary and also in the General Election.
In 1930 because of the importance of the statewide water problems and because many of us felt that the incumbent Assemblyman, who was a candidate for State Senator, could not adequately represent Merced and Madera counties in this vitally important matter, I became a candidate for State Senate in the new 24th Senatorial District, comprising Merced and Madera counties. My opponent was E. G. Adams, who had been an Assemblyman for three terms and was a newspaperman and a good campaigner.
It was a hard fought campaign, and we spoke at well attended meetings all over the two counties. Adams dwelt on his record in the Assembly, and I attacked his being a joint author of a bill which, if enacted, would have been detrimental to the two counties of the district. It was a close race and in doubt until the votes of every precinct were counted. I was the victor by a scant 48 votes.
In 1915, upon a petition by the Merced County Bar Association, I was appointed a United States Referee in Bankruptcy by Federal Judge Olin Welborn of Los Angeles. The reason for this was that the nearest Referee in Bankruptcy was at Fresno, and it was quite inconvenient for Merced County lawyers to make the trip to Fresno for bankruptcy hearings. There were not a great many Merced County bankruptcies, but I held the position through regular reappointments until I was elected State Senator in 1930.
In 1921 State Controller Ray L. Riley appointed me State Inheritance appraiser for Merced County, and I held this position, also, until I was elected State Senator in 1930.
In 1928 I was appointed City Attorney for the city of Los Banos and held this office until 1933. While I was City Attorney a bond issue for $30,000 was voted by the people of the city and the City Hall and Firehouse were built.
The Legislative Years 1931-1938
After a very spirited campaign, I found that I had been elected State Senator for Merced and Madera Counties by the slender margin of 48 votes. So I prepared for the 1931 session of the Legislature which was to meet on the first Monday in January.
I went to Sacramento and registered at the Senator Hotel. The new Governor was James Rolph, Jr., the colorful mayor of San Francisco. The new Lieutenant Governor was my good friend, Frank F. Merriam, the Senator from Long Beach. After some colorful inauguration celebrations, the legislature settled down to business. I was appointed to a number of important committees among them being Irrigation, Agriculture, Judiciary, Constitutional Amendments, and Fish and Game. Inasmuch as one of the chief issues in my campaign was the State Wide Water Plan, I was much interested in that problem.
I became acquainted with many interesting personalities who were members of the Senate, notably William P. Rich of Marysville, Frank Mixter of Tulare County, Ray W. Hays of Fresno, Bradford M. Crittenden of San Joaquin County, Herbert Slater of Sonoma County, H. C. Nelson of Humboldt County, Ralph Swing of San Bernardino County, David Bush of Stanislaus County, Arthur Breed, Sr., of Alameda County, Jack Inman of Sacramento County, Herbert Jones and Sanborn Young of Santa Clara County, and several others. It was a most interesting experience meeting members from all parts of California and hearing their views on various issues.
Governor Rolph was not economy minded and, inasmuch as the victory of the State in the litigation over the King tax bill had enriched the State's general fund, many appropriation bills were passed and signed into law. The full force of the depression had not yet struck us, and we passed more appropriation bills than we should have. As a consequence the general fund was greatly reduced and by the time of the beginning of the 1933 session of the legislature, the State Treasury was in the red.
In the 1931 session I was appointed a member of a statewide Water Committee consisting of seven members of the State Senate and seven members of the Assembly. Senator Crittenden was appointed Chairman and the Senate members were Rich, Mixter, Swing, Baker, Schottky and (blank). The Committee held many hearings in various parts of the State, at which many State and Federal engineers and officials testified as to the necessity of a Statewide Water Plan with the result that the committee drafted a report which was presented to the 1933 session of the Legislature recommending the adoption of the Central Valley Project. The report was acted on favorably by the Legislature, and it was decided to submit it to the voters of the State in a special election in 1933. The voters authorized a bond issue of $375,000 but it soon appeared the bonds were not salable due to the financial condition of the State. However, the Federal government decided to take over the project and thus the Central Valley Project got underway.
When the Legislature convened in 1933, the depression was very severe, and it was necessary to pass a number of tax relief bills and also to pass bills allowing building and loan associations to defer payments. Bills were also passed reducing salaries and other expenses. The situation in the Merced Irrigation District was such that Assemblyman Ray Robinson and I sponsored legislation to enable taxpayers to pay their taxes in deferred annual installments.
Because of the depression and of the difficulty that the common property taxpayers in the counties of the State were having in meeting the heavy tax burden, the legislature and other State agencies were trying to relieve the situation. State Controller Ray Riley and State Board of Equalization member, Fred Stewart, came forward with a proposal for the adoption of a State Sales tax to provide money for the counties support of the schools and thus lessen the burden on the common property taxpayer. This plan called the Riley-Stewart plan was submitted to the voters of California at a special election and was approved. Legislation was then passed by the legislature establishing the State Sales tax in the summer of 1933, and it appeared to relieve the situation.
One of the most dedicated and able members of the State Senate was Sanborn Young of Santa Clara county. He was especially interested in the conservation of our natural resources. The canneries of Monterey operated a major industry in the canning of sardines which came annually to Monterey. However, each year more sardines were taken for use as fertilizer and Senator Young feared that the sardine supply would be so depleted as to cause the canneries to cease operations. He introduced legislation to limit the taking of sardines and made a valiant and courageous fight for such legislation. I supported his bill but the Fisheries Lobby was so powerful that his bill was defeated. His prediction of the end of the fish canning operations came true, and the canneries on Cannery Row in Monterey ceased to operate in a few years for lack of sufficient sardines.
Early in 1934 Governor Rolph became quite ill, and it became apparent that he would not be able to be a candidate for re-election. He grew worse and died in June and Lieutenant Governor Frank F. Merriam became Governor. Merriam was experienced in State government, having served ten years in the Assembly – four years as Speaker – and two years in the State Senate and was well equipped to be Governor. 1934 was an election year and I had to run for re-election. I filed for re-election and was the only candidate for the legislature in the State of California who did not have an opponent in either party. Governor Merriam was a candidate and ex-Governor C. C. Young and John R. Quinn of Los Angeles were also candidates for the Republican nomination. I did not wish to be involved in the campaign, so as soon as the time for filing was passed, I decided to make a trip East with my family. My wife, Gladys, and I and our three children – Miriam, 14, Kathleen, 12, and Andrew R., Jr., 9, left in our automobile for a seven weeks trip. We spent a few days in Salt Lake City, several days at the World's Fair in Chicago, attended the Lion's International Convention at Lansing, Michigan, and stopped briefly in Detroit. From Detroit we traveled to Niagara Falls and then on to Albany, New York where I addressed a Special session of the New York State Senate. Then over the Mohawk Trail to Boston where we spent about a week.
We visited Lexington and Concord and also Harvard University, the Old North Church, Bunker Hill, the House of Seven Gables, Louisa Mae Alcott's home and many other historic places in and around Boston. We drove up to Portland, Maine and visited Longfellow's boyhood home, then back to Boston along the coast and through Cape Cod. Leaving Boston we visited Plymouth Rock and stopped at New Haven, Connecticut where Yale University is located. Then on the New York city where we spent nearly a week seeing the sights – Coney Island, the Statue of Liberty, the Empire State Building, Grant's Tomb, Wall Street, the Yankee Stadium where we saw Babe Ruth play one of his last games, and many other points of interest. Then on to Philadelphia where we visited Independence Hall and also drove out to Valley Forge. Then on to Washington, D. C., where we spent nearly a week in an apartment near the Capitol. Congress was not in session, but we visited the Capitol, the Smithsonian Institute, the Lincoln Memorial, Arlington National Cemetery, and other points of interest. We drove out to Mt. Vernon and visited Washington's old home and tomb. We also stopped in Alexandria and visited General Washington's Masonic Lodge.
Leaving Washington we stopped at Fredericktown, Maryland, and visited the cemetery where Barbara Fritsche and Francis Scott are buried. Then on to Gettysburg and the historic battlefield that virtually decided the Civil War and we were thrilled at the sight of the monument marking the spot where Abraham Lincoln stood when he delivered his famous Gettysburg address.
Then on to Indiana where we visited James Whitcomb Riley's home in Greenfield and saw the cubbyhole that Little Orphant (sic) Annie made famous. Then on to Springfield, Illinois, where we visited Lincoln's home and tomb. Then on across the Mississippi into Missouri and stopped at Hannibal where we saw the statues of Tom Sawyer and Huckleberry Finn and also went out to the famous cave where Tom Sawyer and Becky Sharp were lost. From Hannibal we motored south to Lincoln, Missouri and visited some relatives of Mrs. Schottky for a day or two.
Then we continued south and spent a night at Raton, New Mexico. We stopped at the Indian town of Taos and saw a number of Indian points of interest.
Then on over the famous Santa Fe Trail through Santa Fe, Albuquerque, and on into Arizona, pausing to view the Painted Desert and the Petrified Forest. At Flagstaff, Arizona we turned off on the road leading to the Grand Canyon, passing the San Francisco Peaks.
We spent two days viewing the wonders of the Grand Canyon and then traveled through Williams to Needles and then trough the Mojave Desert to Bakersfield and on to our home at Merced.
I arrived back in Merced about a week or ten days before the August primary election when was hotly contested in the Gubernatorial nomination in both the Republican and Democratic parties. Frank Merriam won the Republican and Upton Sinclair won the Democratic nomination. Sinclair was a Socialist who turned into a Democrat, and he waged a strong campaign on a radical platform. I strongly supported Merriam who was a conservative and made a number of radio speeches in his support. It was a hotly contested election and was won by Merriam. George J. Hatfield was elected Lieutenant Governor.
In the 1934 election a number of new State Senators who were elected were to become quite noted in future years. One was William F. Knowland from Alameda County and Culbert Olson from Los Angeles County. Senator Olson began to advocate much of the radical measures advocated by Upton Sinclair in his Gubernatorial campaign, and I vigorously opposed him on the floor of the Senate and none of them passed. The California Farm Bureau Federation strongly advocated a graduated State Income tax bill. I introduced an income tax bill in the Senate and Assemblyman Ford Chatters introduced one in the Assembly. Both bills were supported by the Governor and, although there was strong opposition, my bill was passed by the Senate and the Chatter's bill was passed by the Assembly. The Chatter's bill was signed by the Governor and became law although both bills were identical.
It became apparent in the 1935 session that there was much dissatisfaction throughout the State with the regulation of the liquor industry by the State Board of Equalization, and a resolution was adopted by the State Senate that a Senate Liquor Investigation Committee be appointed to make an investigation and report to the 1937 session of the Legislature. Lieutenant Governor Hatfield appointed the following members of the State Senate to that committee – Swing, Chairman; Powers, Frerovich, Schottky and Edwards.
Senator Schottky's separate report:
“After the 18th Amendment had been in effect for 12 years, both major political parties in their platforms of 1932 urged its repeal but, in the same sentence, declared that the saloon must never return. President Roosevelt, then the nominee of the Democratic Party, reiterated the same statement in his acceptance speech at the Chicago Convention. The 18th Amendment has been referred to as a 'noble experiment,' and it is generally declared that the 18th Amendment was a failure. In the sense that conditions were unsatisfactory under the 18th Amendment, the statement that it was a failure is undoubtedly true, but it must also be considered that no honest, sincere effort was ever made to enforce the 18th Amendment, which was due no doubt to the fact that there was not sufficient sentiment in its favor to bring about its proper enforcement. Mark Twain once was asked the question, 'Is Christianity a success?' And his reply was, 'I do not know, it has never been tried.' similarly it could be answered that the 18th Amendment could hardly be considered a failure, because it had never been really tried.
“During the agitation for the repeal of the 18th Amendment, the cry of those seeking to legalize the liquor industry was to permit the consumption of light wines and beers, but to forever and completely outlaw and prohibit the so-called saloon. To those who are old enough to remember back to the pre-prohibition days, the saloon has a rather definite meaning. It was a place, the principal part of which, outside of the liquor itself, was the mahogany bar with the iron foot rail and the cuspidors, and is not to be confused with the modern, sumptuous cocktail lounges, to which the younger generation has become accustomed. The old saloon was, to quote the words of Senator Ashurst of Arizona, “A place for perpendicular drinking.” In California in the election of 1932, when the repeal of the 18th Amendment appeared imminent, there was placed upon the ballot by initiative a constitutional amendment, which was supported and advocated by those representing the liquor interests. In the title of this constitutional amendment, it was stated that it 'prohibits public saloons, bars or drinking places where intoxicating liquors are kept, sold or consumed; permits serving wine and beer with meals furnished in good faith to patrons of hotels, boarding houses, restaurants and public eating places.' In the official argument appearing in the election pamphlet, and written by Judge Matt I Sullivan, it was stated that the adoption of the constitutional amendment would result, among other things, in the 'permanent exclusion of the public saloon, and suppression of its substitute the secret saloon or speakeasy.' The constitutional amendment was adopted by the people of California and upon the repeal of the 18th Amendment less than a year following, it went into effect. It is unnecessary to remind the people of California that the constitutional amendment referred to was not enforced in California. It limited the sale of spirituous liquors to unopened packages, yet the sale of spirituous liquors by the drink was permitted by the famous cocktail ruling of the California State Board of Equalization, a ruling which virtually repealed the original unpopular provision limiting the sale of spirits to unopened packages. This was done by the board through it ruling that cocktails, which they classified as wines, could be sold and served for consumption in bona fide hotel dining rooms and restaurants. As a result of this ruling cocktails were served freely and openly as though they were nonspirituous. It is perhaps true that the rulings of the State Board of Equalization upon this point were in accord with the desires of a majority of the people of California, but it is also true that the ruling was not in accordance with the constitutional provision.
“In the election of 1934, realizing the unsatisfactory nature of the constitutional amendment in 1932, the liquor interests placed upon the permit 'possession, sale, consumption or disposition of all liquors in bona fide constitutional amendment was adopted by the people, and with the elimination of the necessity of requiring meals to be served with liquor, the return of the consumption of intoxicating liquors in public saloons or barrooms, but it did without meals, the only requirement being that the place selling the intoxicating liquor be equipped to serve meals if they were required by the patrons, a provision which public experience has demonstrated amounts to little.
“As is stated in the main report of the committee, the problem of enforcement and administration of the liquor laws in California was placed in the hands of the State Board of Equalization. This great responsibility was suddenly placed upon the board, and it is only fair to the board to say that they were not prepared to handle a problem of such magnitude. Candor, however, must compel the statement that the administration of the liquor laws of California by the State Board of Equalization was justly subject to much criticism, and that there was considerable sentiment all over California in favor of placing the administration of the liquor laws in other hands. At the various hearings held by this committee in Sacramento, San Francisco, Los Angeles, and elsewhere, the general consensus of opinion seemed to be that the problem was too great for the Board of Equalization to handle in addition to its other manifold duties, and that there should be set up in California State Liquor Authority. Indeed, the Board of Equalization itself proposed to the committee at a hearing in San Francisco the setting up of such a liquor control board, which would take the administration of the liquor laws out of the hands of the State Board of Equalization.”
After the 1937 session of the Legislature opened, I introduced a bill which would provide for the election of members of the State Legislature on a nonpartisan basis. Senator George M. Biggar of Mendocino County was a joint author with me.
I had long felt that since the Legislature no longer elected the United States Senators there was no rational reason why the Legislature should be elected on a political partisan basis any more than that members of the Boards of Supervisors or City Councils should be elected on a partisan basis. There was a lively debate on the floor of the Senate and Senator Knowland and Senator Olson opposed the bill. However, it passed the State Senate by a vote of 23 to 14.
The bill met with strong opposition in the Assembly and, while I believe a majority of the Assemblymen favored it, the opponents of the measure were able to send it back to committee by a margin of one vote and it never emerged from the committee.
The famous Court packing proposal was introduced in the United States Senate in 1937. This was strongly backed by President Franklin Roosevelt who was greatly disappointed because the United States Supreme Court had declared some of his New Deal legislation unconstitutional. The President felt that his overwhelming victory in the 1936 Presidential election was an endorsement of his criticism of the Supreme Court and he advocated adding members to the Supreme Court so that their decision would be overturned. There was immediate opposition in the Congress and throughout the country to this proposal on the ground that it undermined the independence of the Supreme Court and tended to make the Court subservient to the (blank). I was very much opposed to the proposal, and I introduced in the State Senate a resolution that the State Senate of California opposed it. The theme of the resolution was that the three great branches of our government should remain separate and independent. The resolution was opposed by leading Democrats who tried to make a partisan issue out of it. It was made a special order of business and was debated on the floor of the Senate. I led the debate and was supported by many Senators, and the resolution was adopted by a big majority. Our vote could not affect the action of the Congress but, shortly after our vote, Congress voted against the President's proposal.
The report of the Senate Liquor Investigation Committee was filed and recommended that the regulation of the liquor traffic be transferred from the Board of Equalization to a separate Liquor Control Board to be appointed by the Governor. Legislation to carry this into effect was introduced and adopted. This was a major improvement in the regulation of the liquor business and met with general public approval.
The 1937 session was marked by a number of heated debates over effects of Senator Culbert Olson to put into effect some of the radical proposals advocated by Upton Sinclair's Epic Plan. These bills were strongly opposed by Governor Merriam, myself, and other Republicans and were soundly defeated.
As the 1937 session of the Legislature was drawing to a close, I gave a great deal of thought as to whether I should be a candidate for re-election in 1938. I had spent nearly eight years as State Senator and had been unable to properly attend to my law practice. My salary was only $1200 a year and my expenses far exceeded that. I felt that I could be re-elected but that I would probably have to campaign. So I finally arrived at the conclusion that I could not afford to remain in the Senate and that it would not be fair to my family for me to continue to do so. So early in 1938 and before the time for filing for re-election expired, I announced that I would not be a candidate for re-election.
After I announced that I would not be a candidate for re-election, several newspapers in my district expressed regret and several laudatory editorials were published. Among them was one in the Merced Sun-Star which was copied by several other newspapers. It read as follows:
Schottky's Work Well Done
“All will agree with the Merced Sun-Star in this comment on the retirement of State Senator Andrew R. Schottky:
“After eight years of outstanding service Senator Schottky will retire from the legislature at the expiration of his present term in January. Regret has been expressed throughout Merced and Madera counties over the fact that the senator will not be a candidate for re-election. Four years ago he was the only member of the legislature who was opposed in the August primaries.
“The record of Senator Schottky in the senate is familiar to the people of this district. He has been a fearless, able and conscientious representative, and is justly entitled to the position of leadership that he has attained in that body. The people of Merced Irrigation district have cause to be grateful to him for his efficient, untiring and successful efforts in behalf of legislation needed for the solution of the problems of the district.
“Madera County will be grateful for his work in furtherance of the Central Valley Water project as a member of the joint legislative water committee.
“Farm organizations of both counties appreciate his sponsorship of legislation supported by the farm groups of the district and vital to agriculture.
“No matter how high are the qualifications of the man who is to succeed Senator Schottky his loss will be felt, because it takes experience as well as capability to serve a district as this district has been served in Sacramento.
“It is sincerely to be hoped that his successor will be one fitted, after the preliminary training he will have to undergo in the state capitol, to fill the niche which the present State Senator for Merced and Madera will leave to him.”
After I announced my retirement from the Senate, I became active in Governor Merriam's campaign for re-election. He was opposed by Senator Culbert L. Olson who made a vigorous campaign. I made a number of radio addresses in support of Merriam's candidacy, but there seemed to be a Democratic tide and Senator Olson was elected Governor.
The Judicial Years
Early in December, 1938, Judge Joseph J. Trabucco, Superior Court Judge of the adjoining county of Mariposa, died, and I was urged to accept an appointment as his successor. Governor Merriam was still in office and indicated that he would appoint me to succeed Judge Trabucco if I would accept it. This was a difficult decision to make as I had begun to build up my law practice again. Judge Trabucco had been Superior Judge of Mariposa County for 36 years and had been assigned by the Judicial Council to try important cases in all parts of California as there was not much Court work in Mariposa County. To succeed him meant that I would no doubt be assigned to try cases in other counties. I had practiced law in Merced for 25 years and had tried many cases before Judge Trabucco in Mariposa County and other counties. I was a good friend of Judge Trabucco and admired him very much and felt that it would be an honor to succeed him. I weighted the matter very carefully and decided to accept the appointment and so became the third Superior Court Judge of Mariposa County since the Superior Courts were established by the Constitution of (unreadable).
As soon as the school year vacation began, I moved my family from Merced to Mariposa and my daughter, Kathleen, enrolled as a senior in Mariposa High School. My son, Andrew R. Schottky, Jr., entered as a freshman. My daughter, Miriam, was a student at the University of California at Berkeley.
There was very little Court work in Mariposa County and Chief Justice Gibson, Chairman of the Judicial Council, whom I knew very well from my service in the State Senate, lost no time in assigning me to service in other counties. I followed Judge Trabucco's custom of having a Probate and Law Motion calendar on Saturday mornings and setting trials for certain days when cases were at issue and ready for trial.
I was assigned to sit Pro-tem in the Third District Court of Appeal at Sacramento and wrote a number of opinions in that Court when Justice Pullen was Presiding Justice and later when Annette Adams was Presiding Justice.
I also was assigned to sit as Justice Pro-Tem in the First Appellate District when Raymond E. Peters was Presiding Justice and also was assigned to sit as Justice Pro-Tem in the Fourth Appellate District when Charles Barnard was Presiding Justice. When I was not sitting in one of the Appellate Courts, I was sitting in the Superior Court of various counties.
One of the most sensational cases that I tried was the murder case of People vs Dewey Clark and Henry Jones in the Superior Court at Stockton. Two negroes were charged with the murder of a well known young man and girl by picking them up in Lovers Lane and taking to a field where they were brutally murdered and left in the field. The trial lasted three weeks and resulted in a verdict of first degree murder. A motion for a new trial was denied and I pronounced the only death sentence that I pronounced in my career as Judge, as it was mandatory as the law at that time. The judgment was affirmed by the Supreme Court and the defendants were executed at San Quentin Prison.
Shortly after I became Superior Judge I was assigned to San Francisco county to sit on a labor case which was attracting considerable attention. Patterson's Barbershop on Market Street was picketed by the Barber's Union and Patterson sought an injunction against the union alleging that the union was interfering with the conduct of his business by harassing prospective customers. Patterson claimed that union members were virtually preventing persons from entering the shop by using vile language and threats toward them.
The Union argued that it was exercising the constitution right of free speech and Patterson claimed that the methods used by the Union was interfering with the conduct of a legitimate business. I rendered an opinion which was widely copied in the press as a model for the conducting of picketing. I decided that the Union should be limited to three pickets who should not be nearer to the entrance than 18 feet and should not speak to prospective customers in other than a conversational tone and should not threaten them. The case attracted wide attention and the decision was copied in many newspapers.
Another case that attracted wide attention was the divorce case of Bartel vs Bartel because of the prominence of Irvin Bartel, a wealthy San Francisco ladies clothing merchant. The case was tried in San Mateo county and the trial lasted nearly a month and was a bitterly contested case. Peggy Bartel was a very attractive girl, and Irving Bartel was a divorced man with two children. When Peggy was 19 and Bartel, who was at least twice her age, went to Reno and got married, they went to live in Bartel's palatial home in Atherton, an exclusive suburb of San Francisco. Two children were born to them, and they seemed to get along well for several years. Bartel was a perfectionist and every morning before he left for San Francisco, he gave Peggy orders as to just what should be done about the household and Peggy resented this and soon friction arose between them, resulting in Peggy filing a suit for divorce and Irving filing a cross-complaint for divorce. The trial in Redwood City lasted nearly 30 days and much time was taken up by a dispute over the property as to what part was community property. Bartel has several stores in San Francisco which had been operating profitably, but they were owned by him at the time of the marriage. However, in order to keep his income tax lower, he reported the income from the stores as community property and Peggy's astute counsel argued that he was bound by the representation to the United States government. There was considerably more than a million dollars involved in the dispute, and it was not an easy case to decide.
Bartel charged that his wife was extravagant in the purchase of clothes and Peggy contended that her expenditures were not unreasonable considering the wealth of her husband. Her sister testified as to what her wardrobe should be. The case caused much publicity and the following interesting article appeared in the Chicago Tribune:
I finally decided the case by granting Peggy's divorce with custody of the two children, $225,000 in cash, and $1500 a month alimony and also support to the two children.
Another very interesting case that I tried in San Francisco was a paternity case brought by Katherine Ritcher against Walters to establish that Walters was the father of her daughter, Katherine. At the time of the trial, the child was 14 months old, and the mother brought the child to the Court in a Kiddy Koop and kept her in the anteroom of the Court. The mother testified that both she and Walters worked for the oil company in Saudi Arabia, and while she worked as a nurse she became quite friendly with Walter and had sexual intercourse with the result that she became pregnant. Walters denied her statement but she produced letters written by him which strongly corroborated her testimony. He returned to the United States, and after she returned she commenced the paternity action. He married after his return from Saudi Arabia and his wife was with him in court.
After the evidence was all in, I concluded that he was the father of the child and do decided.
Another case which I tried in San Francisco was the divorce action of Dunn vs Dunn. Frank Dunn was a prominent Municipal Court Judge in San Francisco and his wife, after many years of a more or less turbulent marriage, brought an action for divorce against him. She was very bitter and claimed that he was concealing his assets and that he had received improper payments of money. The proof of her allegations fell far short and it was evident that she was doing everything she could to destroy him. He did not contest the divorce, and I granted her a divorce and the family home. The trial lasted several weeks and was interrupted when, during a recess, a friend of Judge Dunn felled Mrs. Dunn's attorney with a blow that left him prostrate on the courtroom floor necessitating a recess of several weeks. I have never tried a case in which there was so much bitterness.
One of the most sensational cases that I have ever tried was the case of Kermit O. Frazier on a charge of murder. He was accused of killing an Atherton widow, Mary L. Thompson, and wounding her two daughters. Frazier was engaged to Doris Thompson until she broke off the engagement. Davis and Frazier had met during World War II when he was an officer.
After she broke off the engagement, he evidently brooded over it and tried to renew it, but she refused to have anything to do with him. She resided with her mother and sister in their Atherton home, and he lived in a rooming house in Alameda. One evening he appeared at the Atherton home and tried to induce Doris to be reconciled with him. She refused firmly and definitely, and he became enraged and drew a pistol and evidently intended to shoot Doris but fired several shots, one of which killed Mrs. Thompson and the others wounded Doris and her sister, Sharle. Frazier was ably defended by the well known attorney, George T. Davis, who was able to convince the jurors that Frazier was so upset by being jilted by Doris that he was temporarily unbalanced and had no intention of killing Mrs. Thompson. The jury deliberated several hours and brought in a verdict of second degree murder.
When I was sitting Pro-Tem in the Fourth District Court of Appeal in Fresno, the case of the Pennsylvania Railroad Company vs Midstate Horticultural Company was argued before the Court. The railroad company was granted a judgment in the Superior Court for transportation charges for grapes shipped for Midland Horticultural Company during the 1932 season from points in Fresno County to a consignee in the city of New York, the Jerome Company. Midland Company did not learn until the summer of 1933 that the Jerome Company had failed to meet the transportation charge. Shortly before the expiration of three years after delivery to Jerome Company of the various shipment of grapes, the railroad company made a demand upon Midland Company for the unpaid transportation charges and threatened suit unless payment was made. In order to enable Midland to make such investigation as it deemed essential and to avoid the immediate commencement of the threatened action, the Midland Company on October 25, 1935, signed and delivered to the railroad company an extension of time for the bringing of such action which stated that Midland would not plead the defense of the statute of limitations in a (blank) brought by the railroad company of the transportation charges.
An action was filed in the trial court and Midland Company in its amended answer set up the provision of section 16 (3) of the Interstate Commerce Act contending that the three year lapse of time before suit was filed destroyed the right asserted by the railroad company to recover the transportation charges notwithstanding the agreement not to plead the Statute of Limitations. The trial court held in favor of the railroad company and Midland Company appealed.
I was assigned to write the opinion and made an extensive examination of the authorities and concluded that under the decisions of the United States Supreme Court the railroad company could not recover the transportation charges because section 16 (3) (a) of the Interstate Commerce Act read as follows:
“All actions at law by carriers subject to this act for recovery of their charges or any part thereof, shall be begun within three years from the time of cause of action and not after.”
I concluded that under the provisions of the Interstate Commerce Act, upon the expiration of the period therein prescribed within which action must be taken by the carrier, the cause of action is destroyed and that neither the carrier, nor the shipper can legally waive provisions of said section and that any such waiver or agreement to forbear was contrary to the plain policy of the act and therefore against public policy and void.
Judges Barnard and Marks disagreed with me and Judge Marks wrote an opinion affirming the judgment which was concurred in by Judge Barnard and I filed a dissenting opinion.
The Supreme Court of California granted a hearing and handed down an opinion affirming the judgment. The attorney for Midland obtained a writ of error from the United States Supreme Court and when the matter was heard before the Court, the Court handed down a unanimous opinion upholding my views and reversing the judgment.
Needless to say the fact that my dissenting opinion was sustained by the United States Supreme Court did much to enhance my reputation.
When I was not sitting Pro-Tem on one of the Appellate Courts, I was busy trying cases in some Superior Court. I tried an important water case in Ventura County and a bribery case in Bakersfield where one of the City councilmen was charged with accepting a bribe to protect a house of prostitution.
After about three weeks of trial, the jury was unable to agree. I also tried a will contest in Santa Clara county and a very important tax case in Santa Cruz county. Chief Justice Gibson tried to keep me busy, and I tried cases from San Diego county in the south to Butte County in the north.
A very important case that I tried in the Superior Court of Tulare county was the case of Hannah vs Pogrie. This case involved the right of defendant to change the location of a dam on the Kaweah River after the river washed around the old dam which had existed for many years. The old dam was placed squarely across the river so that it forced water into the diverting ditch at a higher level than the bottom of the ditch. The new rock dam was placed at an acute angle across the river so that the end that touched the bank opposite the mouth of the diverting ditch was further upstream than the end nearest the mouth. There was able counsel on both sides, and the case was bitterly contested. I concluded that the defendants had no right to change the nature of the easement, and they could only maintain a dam on the side of the old dam and requiring them to remove the new dam and to fill in the ditch running from the new dam to the former mouth of the diverting ditch.
The defendant appealed to the District Court of Appeal and that Court rendered a decision reversing the judgment. The plaintiff filed a petition for a hearing with the Supreme Court, and the Supreme Court granted a hearing and rendered a decision affirming the judgment I had rendered.
In 1941 the California Legislature adopted an act known as the Subversive Organization Registration Act. It required registration with the Secretary of State of all organizations which directly or indirectly advocated the overthrow of the United States or of this State by force or violence or is subject to foreign control or is supported by or affiliated with, directly or indirectly, (?) a foreign government.
Robert Noble, Ellis O. Jones, F. K. Ferenz and several others were charged in amended indictment presented by the Grand Jury of Sacramento County with violating said Subversive Organization Registration Act. The defendants were members of an organization known as The Friends of Progress. The jury trial in Sacramento commenced on August 3, 1942 and on October 22, 1942, all of the defendants were found guilty. The defendants appealed to the Third District Court of Appeal. I was sitting Pro-Tem on the Court, and the case was assigned to me. The record consisted of more than 6000 pages of testimony and hundreds of exhibits and lengthy briefs were filed by the appellants.
The principal contentions of appellants were that the Act was unconstitutional and that the evidence was insufficient to sustain the verdict. The evidence dealt with the methods used by Hitler and the Nazi party to gain complete domination of Germany and the oppressive methods used to restrict Jews and other groups. In the United States, sometime in 1933, there came into existence an organization known as Friends of New Germany, devoted to the advancement of the interest of Germany. In 1936, by an edict issued in Germany, the name was changed to German American Bund. The national headquarters of the German American Bund were in New York, and the local headquarters in Los Angeles at a place known as the “Deutsches Haus.” The German American Bund was an organization of people in the United States who were sympathetic to Hitler, the control of which came from Germany. One Hermann Schwinn was the leader of the Western Division and was known as the Fuehrer. Propaganda literature was received regularly from the Nazi party in Germany. Much evidence was introduced that defendants indulged in intemperate, unreasoning, sinister and iniquitous criticism of our government officials, our allies, and praised a different form of government; but a careful study of the voluminous record convinced the Appellate court that the evidence was insufficient to show that the defendants or the organization of which defendants were charged with being members of, was subject to foreign control or advocated or advised the overthrow of the government by force or violence.
Because of the unpopularity of the defendants and the public sentiment against them, the Court appeared extremely reluctant to reverse the judgment and stated:
“We are not unmindful of the fact that individuals such as the appellants are shown by the record to be, have by their acts and statements justly earned the contempt of patriotic Americans. It is difficult to understand how persons who live under our Constitution and our laws can utter such sentiments as appellants have uttered. This court can only regret that the state of the record is such that we are compelled to reverse the judgments of conviction; but we do not believe that anyone can study the record in this case as we have studied it and arrive at a different conclusion. It must not be forgotten that the offense with which the appellants were charged was, briefly, that they were members of the governing body of an organization, 'Friends of Progress,' that advocated, advised, taught and practiced the duty, necessity and propriety of overthrowing the Government of the United States and the State of California, by force and violence; that the organization was subject to foreign control in that it accepted financial support from and was affiliated with a foreign government and an agent thereof; that the policies of said organization, or some of them, were determined by, at the suggestion of and in collaboration with a foreign government and an agent thereof; and that, as members of the governing body of such organization they willfully, unlawfully and feloniously failed to file the information and documents as required by the Subversive Organization Registration Act.
“As we have hereinbefore pointed out, the evidence is insufficient to sustain the conviction of appellants of the offense charged in the indictment. Under such circumstances our duty is clear and plain. Unpleasant though it may be, and unpopular though it may prove in such a case, if our judicial system is to be true to the highest traditions of our jurisprudence as appellate tribunal should not shirk its responsibility where the record fails, as it does in this case, to support the convictions.”
Although I was the author of the opinion and it was concurred in by Presiding Justice Adams and Justice Thompson, the opinion was by “The Court.” The day the opinion was filed was the day that President Franklin Roosevelt died, and the storm of public indignation that we expected did not materialize because the adulation of the beloved President in the press left little space for mention of our opinion.
In October of 1939 I was assigned to sit in a case in Fresno county in which a group of raisin growers sought an injunction against raisin pro-rate officials to prevent disposition of the remainder of the surplus pool of $7.50 a ton. The growers contended that the zone had the authority to sell at $44 a ton and that by executing contracts at $7 per ton was going contrary to the purpose and intent of the pro-rate act and therefore was acting illegally. The case attracted a courtroom of irate growers. I felt that under the law the duty of disposing of raisins in the surplus pool was a duty and power of the pro-rate board and the Court did not have the power nor the right to pass upon the question of whether or not the committee secured the highest price obtainable.
I said in my opinion denying the injunction, that in the absence of allegation or evidence of fraud, the Court must presume that the officials acted in accordance with their best judgment.
My decision aroused a storm of protest by some angry growers, who made critical public statements, but no appeal was taken.
Early in 1952, Presiding Justice Annette Adams because of failing health decided that she would retire by the end of the year. I had been sitting Pro-Tem on the Court for nearly a year and Judge Adams went to see Governor Warren and urged him to appoint me when she retired. Late in December the Governor sent for me and told me he would appoint me. Naturally I was delighted as I felt well qualified because I had written nearly 200 opinions in three appellate districts. It was a promotion that I had been hoping for and my appointment seemed to meet with general approval. It was necessary for me to complete several matters in Mariposa County, and I was not sworn in as Appellate Court Justice until early in January, 1953.
My elevation to the Appellate Court made it necessary to resign my position as Judge of the Superior Court of Mariposa County, and I could not help feeling a tinge of regret at leaving the oldest Courthouse in California. I had become attached to the old Courthouse and the hourly ring of the Courthouse clock and my association with the county officials had been very pleasant. Before leaving I wrote a little poem and entitled it, “The Mariposa Courthouse.” it reads as follows:
THE MARIPOSA COURTHOUSE
There's a little white Courthouse, I'm leaving it soon,
And somehow it seems hard to go,
For this Courthouse has found a place in my heart,
I shall miss it always, I know.
For here I have studied and labored and dreamed,
And hoped for advancement, too,
But, oh, in my triumph I'm dearly just now,
Goodbye, little Courthouse, to you!
And though I may sit in a courtroom ornate,
With appointments so modern and fine;
Yet well do I know as now I depart
I shall miss that old courtroom of mine;
I'll think of its white boarded ceiling and walls,
The long bench and the clean, polished floor,
And I know that in fancy I'll often come back
To sit in that courtroom once more.
I look from my chambers up into the hills,
In the distance Mt. Bullion I see;
Through the warm winter sunshine so clear and so bright,
It seems to beckon to me.
The hills seem so cheery and peaceful and green,
With a charm one can never forget,
It's the thrill and romance of the old Mother Lode,
Where the pioneer spirit lives yet.
How stately you stand there amid the green hills,
A last wistful look and I go,
A century long you've stood there in the sun
Above the fog in the valley below;
Your famous old clock is just striking twelve,
Its tall tower points toward the sky,
And the time has come for me to depart,
So, little white Courthouse, goodbye!
My family had enjoyed living in Mariposa for 14 years. My son, Andrew R., Jr., and my younger daughter, Kathleen, had both graduated from Mariposa High School and had many friends in Mariposa. Mrs. Schottky and I spent some time looking for a home in Sacramento, and we moved our household effects to our new home in Sacramento in 1954. Our three children were married and had their own homes.
After my appointment to the Appellate Court, Governor Warren appointed Thomas Coakley as my successor as Superior Judge of Mariposa County. Mr. Coakley grew up in Alameda County and was a personal friend of the Governor. He was a prominent practicing attorney in San Francisco. He was not able to arrange his legal affair until March and was sworn in by Chief Justice Gibson in the Mariposa Courtroom in an impressive ceremony. Mrs. Schottky and I entertained Judge Coakley and the Chief Justice at breakfast in our Mariposa home, and following the ceremony Judge Coakley entertained a large group at a luncheon at the Ahwahee Hotel in Yosemite.
The Appellate Court Years 1954-1966
Early in January, 1954, I was sworn in as an Associate Justice of the Third District Court of Appeal by the new Presiding Justice Benjamin Franklin Van Dyke. Paul Peek was the third member of the Court. Because I had been sitting Pro-Tem on the Court for nearly a year, the work was not new to me and my associates were very congenial and we worked well together. Work on the Appellate Court is more confining and less interesting than work on the Superior Court because in the Superior Court the judge hears the testimony and observes the witnesses while in the Appellate Court the printed transcript is filed with the Court and briefs are filed and in about half the cases there is oral argument limited to 30 minutes for each side. One Justice is assigned to prepare an opinion and two Justices must concur to make it the opinion of the Court. If no hearing is granted by the Supreme Court, the opinion becomes final in 60 days.
In 1954 Mariposa County celebrated the 100th anniversary of the Mariposa Courthouse with a three day celebration. The Judicial Council granted permission for the Supreme Court to have a one day session to old historic Courthouse and, also, for the Third District Court of Appeal to have a one day session there. Chief Justice Gibson was in Europe and Justice Shenk was acting Chief Justice. Presiding Justice Van Dyke had suffered an accident and was unable to come to Mariposa and Superior Judge Arthur Paulson of Trinity County was designated to sit in his place. I was assigned to sit Pro-tem in the Supreme Court for the Mariposa session, so I had the unique distinction of sitting on the Supreme Court and the District Court of Appeal in the same courtroom that I had presided over as Superior Judge for 14 years.
Many judges from all over California were in Mariposa during the celebration and there was a parade by the members of E Clampus Vitus as well as several banquets. At the principal banquet inspiring addresses were delivered by Superior Judge Goodell of San Francisco and by Dron Holm, San Francisco City attorney. Superior Judge Thomas Coakley who succeeded me as Judge of Mariposa County presided over the celebration and did an admirable job.
I served as a Justice of the Third District Court of Appeal from January, 1953 to January, 1964, and enjoyed it very much. Judge Van Dyke was Presiding Justice until he retired in 1961 and Judge Peek was Presiding Justice until he was appointed to the Supreme Court in 1962. Judge Fred Pierce who had been appointed a Justice when Judge Van Dyke retired was appointed Presiding Justice to succeed Judge Peek, and I served under him until I retired. I declined to accept any further assignments to sit Pro-tem on the Court after I retired as I wished to resume practice of law as an associate counsel in the law firm of Malone, Dennis, Schottky and Pearl, of which my son, Andrew R. Schottky, Jr. was a member.
When I became a member of the Court, I kept Miss Julie Allen, who had been Presiding Justice Annette Adams' secretary for several years, and she was my secretary until she retired in (blank). She was a native of Kentucky and a very refined Southern lady as well as a very capable secretary. When she retired Mrs. Kathryn Bedeau, widow of a very able and popular Sacramento County Superior Judge, became my secretary and served as a very capable secretary until I retired in 1964.
During the time I was a member of the Appellate Court, I was assisted by many capable law clerks, notably Margaret Flynn who became a Municipal Court Judge and David Herzensten, who served as my law clerk during my last few years on the Court. David was a very fine law clerk and one of the keenest and best legal minds I have ever come in contact with.
I enjoyed my service on the Appellate Court although I found it more confining and less interesting than my service on the Superior Court. I enjoyed particularly my serving under Presiding Justice B. F. Van Dyke whom I consider one of the ablest judges who ever sat in Appellate Court. He was a learned and keen lawyer and wrote many fine opinions. When I notified Governor Edmund G. (Pat) Brown of my intent to retire, the Governor was kind enough to write me the following letter:
(there was no letter and this is where it ended)
Transcribed by Jeanne Sturgis Taylor.
Donated by Diane Schottky Wukmir.
© 2013 Diane Schottky Wukmir.
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