Metropolitan News-Enterprise


Tuesday, September 12, 2006


Page 7



Thom, Howard Collide in 1873 in Quest for District Attorney Post




Ninth in a Series


CAMERON E. THOM and VOLNEY E. HOWARD, two of the foremost local attorneys in their time, were rivals in 1873 for the post of Los Angeles County district attorney. A spirited battle it was, culminating in a vociferous debate.

Backing up a bit, Howard had lost his job as DA in 1867 by only eight votes, and thirsted to get it back.

Thom had held the post prior to the Civil War and in 1869 made a political comeback. By a unanimous vote, he was the choice of the Democratic county convention that year, and went on to trounce the independent candidate at the polls by a vote of 1,650-705. (By contrast, more than 1 million ballots were cast in the March 29, 2004 primary election for district attorney, with the incumbent winning outright in the primary with 596,616 votes.) The losing candidate in 1869 was 29-year-old Frank H. Howard, son of Volney Howard.

In 1871, the county Democratic Party experimented with a different method of nomination: Democrats voted in a primary not for delegates to a convention but for candidates. The county Democratic Central Committee set the election for Saturday, July 22, to be held at specified places from 8 a.m. to sunset. By a vote of 834-593, Thom was chosen as the party’s nominee over Volney Howard. The Republican Party, predominant on a national level but lacking a foothold locally, held a county convention and, by a vote of 12-9, chose one W.L. Marshal as its nominee for district attorney over Henry T. Hazzard. In the general election, Thom snagged 2,293 votes to 1,198 for Marshal. (While Marshal was not heard from again in politics, Hazzard was, serving as mayor of Los Angeles in 1889-92.)

We’re back to 1873. Again the nominee of the Democratic Party—chosen by the experimental election method—was Thom…who was determined not to have the office pried from him in the September general election by the man he had bested just two years before, Volney Howard.

Howard was now running on the People’s Reform ticket. Though a Democrat in the 1871 fray with Thom, as well as in earlier days when he served as a congressman from Texas and as Los Angeles County district attorney, he had previously strayed from the Democratic Party (then referred to as “the Democracy”) when he unsuccessfully solicited the Independent Party nomination for Congress in 1869.  The Los Angeles Herald was to comment two years later that Howard “is believed to be the best informed politician in the State” given that he’d “been a member of all political parties and he changes from one to another so often and so rapidly that the history and principles of it all are fresh in his memory.”

The People’s Reform Party was short-lived, formed based on sentiment against what a Sept. 1, 1873 editorial in the Los Angeles Star calls “the old organization” that was clung to by those securing “political loaves and fishes” from it. The new party, the editorial says, was “made up of the leading Democrats and Republicans of Los Angeles County.”

The editorial goes on to say of the upstart party:

“It has all the elements of success, because it is made up of the honest, thinking, intelligent people of both parties. We are earnestly in favor of the election of several of the gentlemen on the Democratic ticket, and we shall do all in our power to-morrow to ensure their success. But we state it as our conviction, and we have had unmistakable facilities for observation, that, with a few exceptions, the Reform ticket will sweep like a whirlwind through the county.”

The Star—put out of business in 1864 based upon its assaults on the Lincoln Administration (seen as sedition) and resurrected in 1868 under new ownership—now billed itself as an “independent” journal, in contrast to its former self as a Democratic Party organ. It endorsed candidates in 1873 of both parties. For example, it backed one candidate for the House of Representatives from the Democratic Party, and one from the Reform Party.

Thom was the beneficiary of robust support from that newspaper. Its Sept. 9, 1873 editorial says:

“We regard the nomination of Mr. Thom the very strongest one on the Democratic ticket. Mr. Thom stands pre-eminently high with the fair thinking men of all parties, for the able and dignified manner in which he has met the onerous duties of the office of District Attorney of Los Angeles county.”

A conflict of interest on Howard’s part during the time he was district attorney is spotlighted in a Star editorial the following day. It points to the law firm of V.E. Howard & Sons having brought an action in mandamus against the City of Los Angeles to compel payment of a claim of one of the firm’s clients. The “Sons” included Thom’s erstwhile rival, Frank H. Howard, who was Los Angeles city attorney. Defending the city in the action was Frank H. Howard, as well as specially retained counsel.

The editorial says:

“Thus, we find the father and senior member of the firm prosecuting, and the son and junior member of the firm defending, in the same case.

“Suppose the District Attorney was to prosecute a party and his partner was to defend the same party in the same action, what would the people say?”

The “great debate” between Thom and Howard took place on Aug. 30 in Gallatin (now part of Downey). It was marked by “Yes you did,” “No, I didn’t” exchanges over Howard’s purported actions in favor of government subsidies to railroads, as well as verbal fencing over Thom’s efforts to snag the Reform Party endorsement.

A prime matter in contention was whether Thom had improperly influenced the Board of Supervisors to allocate $150 per month to pay the salary of a deputy to assist him, which the Howard forces alleged to have been without legal authority on the part of the board. As reported by the Weekly Express on Sept. 14, Thom declared:

“I lay down this proposition as self-evident, that not a man who ever came from his Creator could alone carry out the duties of District Attorney.”

That proposition might well strike us today as self-evident…unless it’s considered that Thom had time available to him to maintain a thriving private civil law practice, as Howard had when he was DA.

The account in the Express says that Thom argued that since the supervisors had undoubted authority to hire special counsel to assist the DA in any given case, it made no sense to question their power to keep a single person on staff to perform that function on an ongoing basis. The incumbent maintained that the supervisors acted with knowledge that in the one year and three months that Frank Howard had been city attorney, $1,604 had been paid out for “extra counsel to attend to the legal business of the municipality.”

The newspaper recites that Howard “declared that if elected he would perform all the duties of District Attorney at the price fixed by law.”

Howard was a skilled orator, was brilliant, and had a commanding presence. But some saw him as an opportunist, an egotist, a blowhard. Let it not be forgotten that he (like Thom, a major in the Confederate Army) had been pro-slavery. Howard was, it would seem, a complex man with aspects of greatness but with blemishes.

What counted in 1873 was that he had sided with the anti-establishment party that captured imaginations—and ballots. There were 1,866 votes cast for Howard and 1,684 for Thom. Howard was back in power.

In March, 1874, he embarked on his third and final two-year term as district attorney.

We’ll be returning to Thom, who was to make yet another comeback as district attorney…but now’s the time to finish up with Howard.

He was a delegate to the 1878-79 state constitutional convention. One of his proposals was to include this language in the new constitution:

“In the United States of America the powers of sovereignty are divided between the Government of the Union and those of States. They are each sovereign with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other.”

There’s an editorial to be found in the Sacramento Record-Union in October, 1878 that thunders in reaction to Howard’s proposal:

“Mr. Howard is a Southern man, and a believer in the ‘lost cause,’ but he ought to have kept pace with the progress of events sufficiently to comprehend that the doctrine of State Rights has been dead and buried at least thirteen years, and that there is neither sagacity nor utility in attempting to resurrect it. The issue is so very dead that it is not worth while to debate It seriously. It really does not matter at all what Mr. Howard or any antediluvian Democrat may continue to think about it for the question has been definitely settled by the arbitrament of war, and there is no appeal from that settlement.”

To that, the Mountain Democrat in Placerville retorts on Nov. 2 of that year:

“[I]n all Christendom there are not enough bayonets to root out of the breasts of the American people an unalterable devotion to the principal advocated by General Howard.”

Reverberations of Howard’s participation at that convention were to be heard in 1991. In a dissenting opinion that year, then-California Supreme Court Justice Edward Panelli disputed the majority’s conclusion that religious invocations are impermissible at high school graduation ceremonies under the federal and state constitutions. In the course of the discussion of the California Constitution, the opinion says:

“When the committee of the whole debated the draft of the religious-grants provision, the main point of contention was whether the provision would preclude the state from supporting charitable religious institutions, such as orphanages. Abraham C. Freeman proposed an amendment which would expressly have authorized such grants....Volney E. Howard argued against the amendment, declaring his ‘oppos[ition] to all measures by which any connection between church and State can be run in.’....He thought that “[i]f the authors of the American revolution achieved anything, or one thing more particularly than another, it was the separation of church and State.’ ...”

Howard’s “ ‘separationist’ view” did not prevail, Panelli notes.

Also in 1991, writing in the fall issue of the Indiana Law Journal, Barbara Allen Babcock points to another stance taken by Howard during the convention:

“Volney Howard, a Democrat from Los Angeles, proposed giving women the vote if a majority of women in the state favored it at the first regular election after the 1880 census.

“...Howard’s plan made woman suffrage possible without constitutional amendment, but he avoided the supposed menace of women lobbying. Yet the proposal was untenable within the terms of a debate that treated voting as a loss of virginity; a woman could not try it only once. His solution was to treat nonvoting women as ‘No’ votes.

“Howard’s entry into the debate with an affirmative, if half-baked proposal, roused new interest in woman suffrage, partly because Howard was the sort other men admire.”

Under Art. 22, §3 of the new Constitution, the district courts and the county courts were abolished, and each county was to have a “superior court.”

Howard was one of the two original members of that court in Los Angeles County. He and Ygnacio Sepulveda were elected on Nov. 1, 1879, and took office on Jan. 5.

After serving one term, Howard went into retirement. He died in Santa Monica on May 14, 1889, at the age of 80.

CONFLICTS OF INTEREST: The scenario of Howard and Sons representing a plaintiff while one of the sons was legal counsel for the defendant was sufficiently out of the ordinary to draw comment in the 1873 race, but not at all as bizarre then as it would be viewed today. In fact, Thom himself had acted in a matter in which there was an even more startling conflict. Harris Newmark, in his book “Sixty years in Southern California,” recounts:

“In 1856, Thom was appointed both City and District Attorney, and occupied the two positions at the same time—an odd situation which actually brought it about, during his tenure of offices, that a land dispute between the City and the County obliged Thom to defend both interests!”

WHERE’D HE GO?: As to Frank Howard, he was to become president of the Los Angeles Bar Assn. in 1891. According to historian W.W. Robinson in “Lawyers of Los Angeles,” a “mysterious disappearance” of the lawyer occurred “late in 1895 or early in 1896.”

The Oct. 12, 2004 newsletter of the Los Angeles County Law Library notes: “Frank H. Howard, who had served as the second Library Director since 1892, suddenly disappeared; he vanished without a trace, leaving behind a wife and young son. He did not leave behind, however, $600.15 in Library funds, a fact which was duly reported to the District Attorney.”


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