WESTERN LEGAL HISTORY THE JOURNAL OF THE NINTH JUDICIAL CIRCUIT HISTORICAL SOCIETY VOLUME 11, NUMBER 2 1998 Western Legal History is published semiannually, in spring and fall, by the Ninth Judicial Circuit Historical Society, 125 S. Grand Avenue, Pasadena, California 91105, (626) 795-0266/fax (626) 5830-7018. The journal explores, analyzes, and presents the history of law, the legal profession, and the courts- particularly the federal courts-in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands. Western Legal History is sent to members of the NJCHS as well as members of affiliated legal historical societies in the Ninth Circuit. Membership is open to all. 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Copyright, 01998, Ninth Judicial Circuit Historical Society ISSN 0896-2189 The Editorial Board welcomes unsolicited manuscripts, books for review, and recommendations for the journal. Manuscripts (three copies, and one disk in Microsoft Word for Windows, if possible) should be sent to the Editor, Western Legal History, 125 S. Grand Avenue, Pasadena, California 91105. Texts, including quotations and endnotes, must be double-spaced. Notes must be numbered consecutively and appear in a separate section at the end of the text. Authors are requested to follow the style for citations used in this journal. Manuscripts that are no more than thirty pages in length, not counting notes, charts and tables, and photographs, are preferred. Also preferred are manuscripts not concurrently under consideration by another journal. Whether because of prejudice or custom, writers in earlier times often used language considered strange or offensive today. Because Western Legal History publishes articles that present the historical record as accurately as possible, it occasionally publishes quotations containing such language. The publication of such is not to be construed as representing the attitudes of either the authors or Western Legal History. Communication with the editor is encouraged before submission of any manuscript. At that time, other guidelines for the preparation and publication of an article may be discussed. Consultation upon punctuation, grammar, style, and the like is made with the author, although the editor and the Editorial Board are the final arbiters of the article's acceptance and appearance. Articles published in this journal are abstracted and indexed in America: History and Life; Historical Abstracts; the Index to Legal Periodicals;and the Legal Resources Index. NirTH JUDICIAL CIRCUIT HISTORICAL SOCIETY BOARD OF DIRECTORS HON, JAMES R. BROWNING HON. EUGENE LYNCH Chairman Ross San Francisco EDWARD J. MCANIFF, ESQ. CHRISTINE W.S. BYRD, ESQ Los Angeles President MICHAEL E. MCNICHOLS, ESQ. Los Angeles Lewiston FORREST A. PLANT, ESQ. HON. MARGARET M. MORROW Vice President Los Angeles Sacramento RONALD L. OLSON, ESQ. GERSHAM GOLDSTEIN, ESQ. Los Angeles Treasurer HON. DIARMUID F. O'SCANNLAIN Portland Portland CHET ORLOFF HON. MANUEL L. REAL Secretary Los Angeles Portland CHARLES B. RENFREW, ESQ. JAMES P. KLEINBERG, ESQ. San Francisco Immediate Past President HON. PAUL G. ROSENBLATT Palo Alto Phoenix H. JESSE ARNELLE, ESQ. GUY ROUNSAVILLE, JR., ESQ. San Francisco San Francisco LEROY J. BARKER, ESQ. HON. MARY M. SCHROEDER Anchorage Phoenix JEROME I. BRAUN, ESQ. MARC M. SELTZER, ESQ. San Francisco Los Angeles HON. JAMES M. BURNS DONALD C. SMALTZ, ESQ. Portland Los Angeles DAVID A. CATHCART, ESQ. GERALD K. SMITH, ESQ. Los Angeles Phoenix BARBARA A. CAULFIELD, ESQ. HON. JOSEPH T. SNEED San Francisco San Francisco RICHARD R. CLIFTON, ESQ. HON. CHRISTINA A. SNYDER Honolulu Los Angeles JOHN L. COOPER, ESQ. WILLIAM E. TRAUTMAN, ESQ. San Francisco San Francisco GEORGE C. DALTHORP, ESQ. D. BURR UDALL, ESQ. Billings Tucson F. BRUCE DODGE, ESQ. ROBERT S. WARREN, ESQ. San Francisco Los Angeles JEROME B. FALK, JR., ESQ. MICHAEL A. WHITE, ESQ. San Francisco Saipan MAX L. GILLAM, ESQ. Los Angeles BOARD MEMBERS EMERITI HON. ALFRED T. GOODWIN Pasadena JOSEPH A. BALL, ESQ. RONALD M. GOULD, ESQ. Long Beach Seattle SHIRLEY M. HUFSTEDLER, ESQ. HON. PROCTER HUG, JR. Los Angeles Reno LEONARD S. JANOFSKY, ESQ. J. STERLING HUTCHESON, ESQ. Santa Monica San Diego ELWOOD S. KENDRICK, ESQ. HON. SUSAN Y. ILLSTON Los Angeles San Francisco HON. SAMUEL P. KING CURTIS A. JENNINGS, ESQ. Honolulu Phoenix SHARP WHITMORE, ESQ. MICHAEL A. KAHN, ESQ Fallbrook San Francisco FREDERICK K. KUNZEL, ESQ. BRADLEY B. WILLIAMS San Diego Director SHERMAN V. LOHN, ESQ. WESTERN LEGAL HISTORY BRADLEY B. WILLIAMS, EDITOR JUDITH ST. GEORGE, ASSISTANT EDITOR EDITORIAL BOARD JUDITH AUSTIN MARI MATSUDA Idaho State Historical Society Law School Center, GORDON MORRIS BAKKEN Georgetown University California State University, R. JAMES MOONEY Fullerton University of Oregon Law MICHAL BELKNAP School California Western School of CLAUS-M. NASKE Law University of Alaska, HON. JAMES R. BROWNING Fairbanks Circuit Judge, U.S. Court of KENNETH O'REILLY Appeals for the Ninth Circuit University of Alaska, ELIZABETH J. CABRASER, ESQ. Anchorage San Francisco PAULA PETRIK ERIC A. CHIAPPINELLI University of Maine School of Law, Seattle PETER L. REICH University Whittier Law School LAWRENCE M. FRIEDMAN JOHN PHILLIP REID Stanford Law School New York University CHRISTIAN G. FRITZ School of Law University New Mexico HARRY N. SCHEIBER, PH.D. School of Law Boalt Hall, University of HON. ALFRED T. GOODWIN California Senior Circuit Judge, U.S. Court MOLLY SELVIN, PH.D. of Appeals for the Ninth Circuit Santa Monica ROBERT W. GORDON CHARLES H. SHELDON Yale Law School Washington State University MICHAEL GRIFFITH CAROLINE STOEL Archivist, U.S. District Court, Portland State University Northern District of California STEPHEN L. WASBY JAMES W. HULSE State University of New York, University of Nevada, Reno Albany LOUISE LAMOTHE, ESQ. JOHN R. WUNDER Los Angeles University of Nebraska DAVID J. LANGUM Cumberland School of Law, Samford University WESTERN LEGAL HISTORY VOLUME 11, NUMBER 2 SUMMER/FALL 1998 CONTENTS The Prohibition Agency's First Case: Official Zeal, Mistaken Identity, and Murder in Wyoming, 1919 Phil Roberts Alaska's Floating Court i 63 Claus-M. Naske 16U The Loma Prieta Earthquake and the Ninth Circuit Court of Appeals 1 85 Stephen L. Wasby 105 Railroad Consolidation and Late Nineteenth-Century Federalism: Legal Strategy in the Organization of the Southern Pacific System 2 1 s Philip L. Merkel 215 Book Reviews 259 Articles of Related Interest 283 Memberships, Contributions, & Grants 287 Cover Photograph:The Ninth District Court of Appeals building in San Francisco remained closed for repairs for more than four years after the Loma Prieta earthquake of 1989. (Courtesy of Lauren Bruder) THE PROHIBITION AGENCY'S FIRST CASE: OFFICIAL ZEAL, MISTAKEN IDENTITY, AND MURDER IN WYOMING, 1919 PHIL ROBERTS On a cool September evening in 1919, thirty- three-year-old Frank Jennings was returning home to his family ranch, twenty miles north of Laramie. The son of former legislator Isaac N. Jennings, the young man had driven to Laramie earlier in the day to take his girlfriend, Viola Boughton, to the movies. Boughton, who worked as a stenographer at the University of Wyoming, remembered watching young Jennings pull his black Franklin touring car away from the curb in front of the apartment house where he had dropped her off. He clamped a cigar he had recently purchased at Cordiner's Drugstore firmly in his mouth and drove away.' The next afternoon, the Reverend F.S. Delo, pastor of the Trinity Evangelical Church, and another man were returning from Rock River when they saw a car off the side of the Lincoln Highway some 3-1/2 miles north of Laramie. As they passed, the pastor noticed a raised knee barely visible over the dashboard. When they stopped to take a closer look, they found Jennings's body lying across the front seat. He had been shot at least three times in the head. One-third of a cigar was found in his lap. Apparently, he had been dead for hours. The discovery led to a massive manhunt that ended with a surprise. Almost from the beginning, the case was to call into question the desirability of a state law enforcement agency being given broad powers to investigate Prohibition cases and Phil Roberts is a professor of history at the University of Wyoming and editor of The Annals of Wyoming. The story is drawn from the testimony in the case of State v. Co-rdillo, from the district court file held in the Wyoming State Archives. 146 WESTERN LEGAL HISTORY VOL. 11, No. 2 bring actions anywhere in the state. Jennings's killers worked for Wyoming's newest agency charged with enforcing the Prohibition laws. Except for federal officers with statewide jurisdiction, law enforcement in Wyoming before 1919 consisted of county sheriffs, local constables, and an assortment of other munici- pal officers. No centralized state law enforcement existed. It was clear to supporters of Prohibition that uniform enforce- ment would not be possible through conventional agencies. Many sheriffs and town officials either opposed Prohibition in principle or dismissed it as "unenforceable." With such local resistance toward the new law, Prohibition supporters de- manded creation of a specific agency charged with that duty. Members of the Anti-Saloon League had been very active in passage of the Prohibition Act in Wyoming.